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2014 DIGILAW 921 (ALL)

Sanjay v. State of U. P.

2014-03-24

ARVIND KUMAR TRIPATHI II

body2014
JUDGMENT Arvind Kumar Tripathi (II),J. 1. Heard Sri Ravi Dingar, learned counsel for the appellants and Sri Sharad Dixit learned AGA for the State. 2. The instant criminal appeal has been filed by Sanjay and Vijay Bahadur, both sons of Sri Banwari Mallah resident of Barkathi, Hemlet of Tinwari, P.S. Satrikh, District-Barabanki, challenging the judgment dated 26.4.2003 passed by Additional District and Sessions Judge (Fast Track Court No.28), Barabanki in S.T. No.439 of 2001, Crime No.18 of 2000, P.S. Satrikh, District-Barabanki (State Vs. Sanjay and Another), by which appellant Sanajy was convicted under Sections 363,366 and 376 IPC and was directed to undergo rigorous imprisonment for three years and to pay fine of Rs.1000/-for under section 363, to undergo rigorous imprisonment for five years and to pay fine of Rs.2,000/-for under Section 366 IPC and was further directed to undergo seven years R.I. and to pay fine of Rs.5000/- for offence under Section 376 IPC. Appellant Vijai Bahadur was convicted under Sections 363,366 IPC and was directed to undergo R.I. for three years and to pay fine of Rs.1000/-, under Section 363 IPC and was directed to undergo R.I for five years and to pay fine of Rs.2000/- for offence under Section 366 IPC. In default of payment of fine. Both the appellants were directed to undergo further rigorous imprisonment of various periods. 3. According to the prosecution version, a first information report was lodged by Mangal Prasad by moving an application before Superintendent of Police, Barabanki on 27.3.2000 alleging that his daughter (the victim) aged about 13 years was enticed away by Sanjay and Vijai Bahadur on 8.3.2000 at about 7.00 P.M. and her daughter is still trace less. On this, a case under Sections 363,366 IPC was registered in P.S. Satrikh, District-Barabanki, on 28.3.2000 at about 9.15 p.m. Later on, the victim was recovered on 11.4.2000 by the Police Party from Panchayat Ghar, Village Tirwari at about 6.30 p.m. along with Sanjay. Her statement was recorded and offence under Section 376 IPC was added and later on charge-sheet under-section 363,366,376/511/506 IPC was submitted. After committal of the case charge under Sections 363,366,376 read with Section 511 and Section 506 IPC was framed against Vijay Bahadur and charge was also framed against Sanjay under Sections 363,366,506 and 376 IPC. Accused persons pleaded not guilty and claimed to be tried. 4. After committal of the case charge under Sections 363,366,376 read with Section 511 and Section 506 IPC was framed against Vijay Bahadur and charge was also framed against Sanjay under Sections 363,366,506 and 376 IPC. Accused persons pleaded not guilty and claimed to be tried. 4. Prosecution has, in order to prove its case examined P.W.1 Mangal Prasad, P.W.2 the Victim, P.W. 3 Dr. D.L. Arun, P.W.4 Dr. Sapna Nangoli P.W.5, constable 685 Ram Ajor and P.W. 6 Dr. O.D. Singh Senior Medical Officer, Barabanki. After close of evidence, accused persons denied their involvement in the case in there statement under Section 313 IPC. No defence witness was examined from the side of accused person. 5. Learned court below, after going through the record and evidence and after hearing their counsel, convicted Sanjay under Sections 363, 366, 376 IPC and Vijay Bahadur under Section 363,366,376 read with 511 IPC and acquitted him in Section 506 IPC. Feeling aggrieved, this criminal appeal has been preferred. 6. At the very outset, it was argued by learned counsel for the appellant that the appellant Sanjay has already completed his sentence in jail and now he has been released. 7. In the background of above facts, present appeal is to be decided. 8. Age of the victim has been mentioned in the first information report to be of 13 years. From medical examination. Her age was found to be above 14 years. P.W.6 Dr. O.D.Singh was posted at District Hospital, Barabanki as radiologist on 13.4.2000. On that day X-ray of the victim, was done under his supervision. This witness has proved X-ray plate and on the basis of X-ray plate and X-ray report, he has fixed age of the victim to be about 14 years with variation of six months on either side. From the statement of this witness, it is sufficiently established that the victim was aged about 14 years at the time of occurrence. 9. The victim has been examined as P.W.2. She has stated that on the date of occurrence she and her sister Suman had gone outside of village to ease herself, where Sanjay and Vijay Bahadur met them. They persuaded Suman to leave them and to return back to her house. After that, on the point of country made pistol, they lifted her on a cycle and after gagging her, took her to Charbagh Railway Station. They persuaded Suman to leave them and to return back to her house. After that, on the point of country made pistol, they lifted her on a cycle and after gagging her, took her to Charbagh Railway Station. From Charbagh they took her to Delhi by a bus. They kept her there at house of Sharmi for six or seven days. After that they kept her, in a separate rented room where Sanjay and Vijay Bahadur were also residing and they turn by turn committed rape on her against her will. They remained there for 27 days. They returned to Barabanki Ghaghara Ghat and remained at Barabanki for five days. When, they took her to Panchayat Ghar to Tinvari she was recovered by the police. She has further stated that she was examined before the Magistrate and her statement under Section 164 Cr.P.C. was recorded. 10. In her cross-examination she has admitted that Suman is her cousin. She was made to sit on front rod of the bicycle and Vijay Bahadur was driving the cycle by one hand and by another hand he was pointing a country made pistol towards her. Sanjay was pillion riding. She has further stated that she reached Charbagh Railway Station at about 10.00 p.m. Her hands were tied behind her back. Sanjay went back with the cycle. She was made to board a bus in the same condition and she travelled to Delhi in the same condition. Her mouth was free but she did not raise any alarm in the bus. When she reached Delhi Bus Stand she again did not raise alarm because she was threatened. When she reached to the Sanjay's sister house, she again did not make any complaint to anybody from that house and remained there for seven days. After that she was kept in an another rented room for 27 days but she never complained to anybody. From there she was taken to Barabanki by a train in general compartment. She reached Ghaghara Ghat in the morning by pillion riding on cycle by Sanjay. She has further submitted in her cross-examination that she was forcefully made to marry with Vijay Bahadur Singh. 11. It was submitted by learned counsel for the appellant that from the statement of the witness, it is crystal clear that she was a willing partner and had gone on her freewill. She has further submitted in her cross-examination that she was forcefully made to marry with Vijay Bahadur Singh. 11. It was submitted by learned counsel for the appellant that from the statement of the witness, it is crystal clear that she was a willing partner and had gone on her freewill. Learned counsel for the appellant preferred the statement of victim in her cross-examination in which she has admitted that at the time of marriage she was asked that she whether she is marrying with her freewill then she has stated that yes she is marrying with her freewill. 12. At this stage, it is to be made clear that willingness of the victim is of no consequence as her age was 14 years and the evidence of victim is sufficient to prove the offence under Sections 363, 366 IPC against Vijai Bahadur and under Sections 363,366,376 IPC against Sanjay, but the fact of willingness of victim will affect the quantum of punishment for Vijai Bahadur. 13. Considering the evidence on record, the appeal is liable to fail with modification in sentence for Vijai Bahadur. The appeal is dismissed with modification of sentence of Vijay Bahadur. He is sentenced to undergo the period already undergone, and will also pay the fine awarded by the trial Court. Fine will be paid within a month from the date of judgment, failing which he will have to undergo simple imprisonment for the period already mentioned in the judgment of the Trial Court. The appellant Sanjay has already served entire sentence, hence he need not surrender.