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Synopsis

The Delhi High Court recently opined that the appreciation of evidence is crucial to do justice. Court said,  "casually written judgment and casually appreciated evidence is a casualty to justice".

A bench of Justice Swarana Kanta Sharma noted, "A judgment is the nectar explaining every aspect of the facts & circumstances and the reason to reach a decision."

The order has been passed in an appeal filed against the Karkardooma Court's order holding the appellants guilty of kidnapping and sentencing them to rigorous imprisonment for three years. The Karkardooma Court had convicted two women for concealing a girl kidnapped by the accused in their home.

However, the counsel appearing for the appellants submitted before the bench that "it was evident from the judgment that there was no scientific proof or evidence to show that the victim/prosecutrix was less than eighteen years of age."

Additionally, the testimonies of the witnesses were contradictory in nature and such contradictions were sufficient to declare the impugned judgment and order a nullity, he added.

Whereas, the Additional Public Prosecutor argued that the trial court had rightly convicted the appellants, and the impugned judgment and order on sentence did not suffer from any infirmity.

After going through the testimonies of the father and mother of the prosecutrix, the bench, on the aspect of the age of the prosecutrix noted that it "reflected the age of prosecutrix to be around 18 years at the time of incident.

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 court observed.

"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," further held the court.

Moreover, on the aspect of concealment of the prosecutrix, the bench said that 'concealment’ to be covered under Section 368 IPC must be coupled with an 'intention' to hide the whereabouts of the victim, whereas, the testimonies revealed that it was the appellants who had come and informed them about the victim's whereabouts.

Given the above, the bench observed, "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 appreciation of evidence is crucial to do justice."

In conclusion, the bench held the following: 

• prosecution failed to prove the existence of the essential ingredients required to secure a conviction under Section 368 of IPC beyond a reasonable doubt.
• There were serious and material contradictions between the testimony of the victim and the testimonies of the victim's parents, with regard to the concealment of the whereabouts of the victim, which could not be overlooked.
• The age of the victim had not been proved to be less than 18 years on the day of the incident.

Noting the above, the bench set aside the trial court's order stating that the appellants were entitled to the benefit of doubt.

Case Title: NAYAB & ANR. Vs. STATE