24 Oct 2022 4:31 AM GMT
Observing that appreciation of evidence is crucial to do justice, the Delhi High Court has said that a casually written judgment and casually appreciated evidence is a casualty to justice.Justice Swarana Kanta Sharma said that a judgment is the nectar explaining every aspect of the facts and circumstances in each case and as such, is a reason for reaching to a decision.The court made...
Observing that appreciation of evidence is crucial to do justice, the Delhi High Court has said that a casually written judgment and casually appreciated evidence is a casualty to justice.
Justice Swarana Kanta Sharma said that a judgment is the nectar explaining every aspect of the facts and circumstances in each case and as such, is a reason for reaching to a decision.
The court made the observations while setting aside the conviction and order of sentence against two individuals namely Nayab and Khushnuma in a 2007 case connected to alleged kidnapping of a girl. The duo were accused of concealing the girl, who was allegedly kidnapped by another accused, in a house.
In 2009, the trial court had sentenced them to rigorous imprisonment for three years and a fine of Rs. 5,000 for the offence under Section 368 of IPC.
In appeal before the High Court, it was the appellants' case that there was no scientific proof or evidence to show that the victim was less than 18 years old. It was also submitted that the testimonies of the witnesses were contradictory in nature and that such contradictions were sufficient to declare the conviction and order of sentence as invalid.
Giving benefit of doubt to the appellants, the High Court noted that the victim's age was about 18 years old on the date of the incident, as per the testimonies of victim's parents which stated that their first child was born a year after their marriage and the victim, being the second child, was born a year after the birth of their first child.
The court also said that the determination of age on the basis of menarche cannot be a conclusive criterion as done by the trial court.
"There is nothing to show that the prosecutrix was 13 years of age at the time of the incident, except the statement of prosecutrix to the effect that she attained menarche 3 months prior to the incident. The said facts have been completely ignored in the impugned judgment. In case the prosecution could not prove that the prosecutrix was less than 18 years of age, the essential ingredient for the commission of the offence of kidnapping itself would not be made out," the court said.
The court also noted that the appellants themselves had revealed the whereabouts of the victim by going to her parent's house, adding that the inconsistencies in testimonies of prosecution witnesses created doubts in the prosecution's case.
Furthermore, the court also noted that the victim had raised no alarm during the entire period of almost 14 days although she travelled to different residential areas.
In such circumstances, the trustworthiness and reliability of the statement of the prosecutrix is questionable, the court said.
The court also said that the victim neither identified nor described the place where she was kept.
"Investigating Officer has also not investigated the case from this angle and has also not filed any record in this regard in the charge sheet. In the charge sheet, no investigation was carried out concerning the place where the prosecutrix was allegedly kept by the appellants," the court said.
It added "Considering the above observations, it is worthwhile to mention that this is "not a case of concealing the whereabouts, but of rather revealing the whereabouts" of the victim."
The court thus allowed the appeals by holding that the prosecution had failed to prove the existence of the essential ingredients for securing conviction under Section 368 of IPC beyond reasonable doubt.
"There are serious and material contradictions between the testimony of the victim and testimonies of victim‟s parents, with regard to the concealment of whereabouts of the victim, which cannot be overlooked. The age of the victim has not been proved to be less than 18 years on the day of incident," the court said.
Title: NAYAB & ANR v. STATE
Citation: 2022 LiveLaw (Del) 1006