Supreme Court – Daily Orders
Dalip Kumar @ Dalli vs State Of Uttarakhand on 16 January, 2025
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1005 OF 2013
DALIP KUMAR @ DALLI APPELLANT(S)
VERSUS
STATE OF UTTARANCHAL RESPONDENT(S)
O R D E R
1. Heard Mr. Avneesh Garg, learned counsel appearing for the
appellant. The State of Uttarakhand is represented by Mr. Advitiya
Awasthi, learned counsel.
2. The challenge here is to the judgment and order dated
25.03.2013 in the Criminal Appeal No. 203 of 2003 whereunder the
learned Judge of the High Court of Uttarakhand has upheld the
conviction of the appellant under Sections 363 and 366-A of the
IPC.
3. According to the prosecution, the appellant had kidnapped the
daughter of one Jawahari Lal (PW-1), who had filed the FIR No. 2 of
1998. In the said FIR, the appellant was not named but he was
charged along with other accused under Sections 363, 366-A, 366,
376 read with Sections 149 and 368 of the IPC.
4. The learned Sessions Judge, Pauri Garhwal in the Sessions
Trial No. 40 of 1998 evaluated the evidence of the prosecutrix (PW-
2), her father Jawahari Lal (PW-1), Rajendra Singh (PW-4) – treated
as an eye-witness, and the evidence of the Doctor (PW-3). The
trial court acquitted the accused of the more serious charges but
Signature Not Verified
Digitally signed by
convicted the appellant and another accused, under Sections 363 and
NITIN TALREJA
Date: 2025.01.17
17:06:05 IST
Reason:
366-A of the IPC.
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5. On appeal by the accused, the High Court under the impugned
judgment upheld the trial court verdict of conviction against the
appellant, leading to the present appeal.
6. The prosecutrix was recovered and the recovery memo (Ex.K-2)
indicates that she was recovered from the house of the appellant
Dalip Kumar @ Dalli and then, on the spot, she was given over in
custody to her father. The evidence of the prosecutrix (PW-2)
herself is the most significant. In her testimony, she stated that
talks of her marriage with the appellant was going on but her
father was opposed to the marriage as both belong to different
castes. In her cross-examination, the PW-2 clearly indicated that
she voluntarily went with the appellant and she never shouted or
demonstrated that she was being abducted by the appellant. In
fact, her younger sister Sarita saw the prosecutrix going with the
appellant near her school but unnaturally, Sarita was never
presented as a witness in the case. That apart, although the
alleged incident had happened on 18.03.1998 at around 3:00 p.m. and
Sarita reached home soon after seeing the prosecutrix proceeding
with the appellant, information about the so-called alleged
abduction was never given to the police and the FIR came to be
lodged at 7:00 p.m. on 19.03.1998 (next day evening).
7. The evidence of the Doctor (PW-3) is vital and relevant. She
examined the prosecutrix soon after the alleged incident and
observed that there was no sign of injury on her person. She was
overall normal and no injury or swelling was found in her person.
Sexual assault on the prosecutrix was completely ruled out by the
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PW-3. She was also referred to a Radiologist and her report is
marked as Ex.K-3. The Doctor opined that the age of the
prosecutrix will be in the range of 16-18 years.
8. We must caution that bodily injuries are not necessary to
prove sexual assault1 and neither it is important to raise a hue or
cry. In this regard, the Supreme Court’s Handbook on Gender
stereotypes(2023) provides as under:
“Different people react differently to traumatic
events. For example, the death of a parent may
cause one person to cry publicly whereas another
person in a similar situation may not exhibit any
emotion in public. Similarly, a woman’s reaction
to being sexually assaulted or raped by a man may
vary based on her individual characteristics.
There is no “correct” or “appropriate” way in
which a survivor or victim behaves.”
9. It is a common myth that sexual assault must leave injuries.
Victims respond to trauma in varied ways, influenced by factors
such as fear, shock, social stigma or feelings of helplessness. It
is neither realistic nor just to expect a uniform reaction. The
stigma associated with sexual assault often creates significant
barriers for women, making it difficult for them to disclose the
incident to others. In the present case however, the prosecutrix
herself had clearly indicated that she was not forcibly taken away
by the appellant. The above evidence indicates that the ingredients
for sustaining a charge under Section 366-A of the IPC of
abductions with the intent to illicit intercourse of the
prosecutrix, was totally absent in the present case. Therefore, the
conviction of the appellant under Section 366-A IPC cannot be
1 State of UP v Chotey Lal (2011) 2 SCC 550; BC Deva v State of Karnataka (2007) 12 SCC
122
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sustained.
10. Insofar as the conviction for kidnapping under Section 363
IPC, another witness to prove the charge of kidnapping would be the
testimony of the prosecutrix’s sister – Sarita. She was however
withheld by the prosecution. The age of the prosecutrix as per the
opinion of the Doctor as earlier noted ranged between 16-18 years
and in the absence of any contrary evidence, the possibility of the
prosecutrix, being of 18 years age, cannot entirely be ruled out.
11. The evidence of the prosecutrix does not at all support the
case of the prosecution. The independent eye-witness Rajendra
Singh (PW-4) also did not support the prosecution case on recovery
and was therefore subjected to cross-examination by the
prosecution. The cross-examination of PW-4 is appreciated and the
evidence lets down the theory of recovery as evidenced through
Ex.K-2.
12. We are therefore of the view that to sustain the conviction of
the appellant on the basis of evidence adduced, would not at all be
justified. The prosecution failed to prove the ingredients of both
Sections 363 and 366-A of the IPC. The impugned judgment is
accordingly set aside and quashed. The appellant stands discharged
of the bail bond furnished by him. The appeal is accordingly
allowed.
……………………..J.
(HRISHIKESH ROY)
……………………..J.
(S.V.N. BHATTI)
NEW DELHI;
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JANUARY 16, 2025.
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ITEM NO.102 COURT NO.4 SECTION II-B
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 1005/2013
DALIP KUMAR @ DALLI Appellant(s)
VERSUS
STATE OF UTTARAKHAND Respondent(s)
Date : 16-01-2025 This appeal was called on for hearing today.
CORAM : HON’BLE MR. JUSTICE HRISHIKESH ROY
HON’BLE MR. JUSTICE S.V.N. BHATTI
For Appellant(s) :
Mr. Avneesh Garg, Adv.
Mr. Anshul Singh, Adv.
Ms. Iptisha, Adv.
Mr. Harsh Pal, Adv.
Mr. Rameshwar Prasad Goyal, AOR
For Respondent(s) :
Mr. Advitiya Awasthi, Adv.
Mr. Akshat Kumar, AOR
UPON hearing the counsel the Court made the following
O R D E RThe appeal is allowed in terms of the signed order.
The operative part of the order reads as under:
“12. We are therefore of the view that to sustain the
conviction of the appellant on the basis of evidence
adduced, would not at all be justified. The prosecution
failed to prove the ingredients of both Sections 363 and
366-A of the IPC. The impugned judgment is accordingly
set aside and quashed. The appellant stands discharged of
the bail bond furnished by him. The appeal is accordingly
allowed.”Pending application(s), if any, shall stand closed.
(NITIN TALREJA) (KAMLESH RAWAT)
ASTT. REGISTRAR-cum-PS ASSISTANT REGISTRAR
(Signed order is placed on the file)
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