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2017 DIGILAW 1606 (ALL)

Saroj Devi v. State of U. P.

2017-07-05

ASHOK KUMAR

body2017
JUDGMENT : Hon'ble Ashok Kumar, J. 1. The present criminal appeal has been filed by Smt. Saroj Devi, W/o Kailash Chandra, R/o Bhagwan Nagar, Bulkeshwar, P.S. New Agra, District Agra and Anil, S/o Sri Bhagwan, R/o Badi Road, Housing Board Colony, P.S. Kotwali, District Dhaulpur (Rajasthan). 2. The present appeal arises out of judgment and order dated 25.1.2016 passed by the learned Additional Sessions Judge, Court No.5, Agra in Sessions Trial No. 352 of 2010 (State vs. Rinku and others) under Sections 363, 366 (Ka) IPC (Case Crime No. 1079 of 2009), P.S. New Agra, District Agra. 3. By means of the present criminal appeal the appellants have challenged the impugned judgment and order of the Sessions Court on the ground that the conviction and sentence of the appellants is against the weight of evidence and contrary to the law. Further, the Trial Court has not thoroughly considered the evidence which has been placed by the appellants and as such has proceeded on the basis of the evidence which has been placed by the prosecution while convicting the appellants. 4. Further the appellants have submitted that the victim Km. Meenu had love affair with the other co-accused Rinku (now deceased) and the said love affair has fully proved and is fully clear from the statement of the victim Km. Meenu, which has been recorded during the course of the trial Court proceedings. 5. The appellants have further submitted that even according to the medical report the age of the victim was 18 years at the time of alleged incident and there was no participation/role of the appellants for the alleged kidnapping of the victim Km. Meenu and the trial Court has based on the story which has been framed by the victim Km. Meenu, which is totally doubtful, as such has no relevance even showing no involvement of the appellants. 6. During the course of the proceedings before this Court learned counsel for the appellants has submitted that the main accused Rinku has died at trial Court proceedings and even the trial Court has held that the deceased Rinku was the main accused in committing the offence under Sections 363, 366(A) and 376 read with Section 120(B) IPC. 7. 6. During the course of the proceedings before this Court learned counsel for the appellants has submitted that the main accused Rinku has died at trial Court proceedings and even the trial Court has held that the deceased Rinku was the main accused in committing the offence under Sections 363, 366(A) and 376 read with Section 120(B) IPC. 7. Having heard learned counsel for the appellants and the counsel for the prosecution, this Court prima facie found that the order of the trial Court dated 21.1.2016 passed by the Additional District Judge, Court No.5, Agra is not correct as such is liable to be set aside. 8. This Court while passing the order dated 29.5.2017, the order and judgment of the trial Court has been set aside and based on the peculiar facts of the present case this Court has passed the following order : "Heard Sri Tapesh Kumar Agrawal, learned counsel for the appellants and Sri Pradeep Kumar, learned counsel for the State. 9. The present criminal appeal has been filed by Smt. Saroj Devi, W/o Kailash Chandra and Anil, S/o of Shri Bhagwan, by which the appellants have challenged the judgment and order dated 25.1.2016 passed by learned Additional Sessions Judge, Court No.5, Agra in Sessions Trial No. 352/2010 (State vs. Rinkoo and others) under Section 363, 366 (Ka) IPC (Case Crime No. 1079 of 2009), P.S. New Agra, District Agra. 10. The Trial Court has convicted the appellants for three years rigorous imprisonment along with fine of Rs.5000/- each under Section 363 IPC, due to default in payment of fine the appellants further convicted additional rigorous imprisonment of 15 days each and rigorous imprisonment for 7 years along with fine of Rs.10,000/- each under Section 366 (Ka), due to default in payment of fine the appellants further convicted additional rigorous imprisonment for one month each. 11. From perusal of the impugned judgment, this Court finds that the order of the Additional District Judge, Court No.5, Agra dated 21.1.2016 is liable to be set aside. 12. Considering the facts of the present case and since the appellants are in jail since two and half years, it is ordered that the appellants be released forthwith in Sessions Trial No. 352/2010 (State vs. Rinkoo and others) under Section 363, 366 (Ka) IPC (Case Crime No. 1079 of 2009), P.S. New Agra, District Agra. 12. Considering the facts of the present case and since the appellants are in jail since two and half years, it is ordered that the appellants be released forthwith in Sessions Trial No. 352/2010 (State vs. Rinkoo and others) under Section 363, 366 (Ka) IPC (Case Crime No. 1079 of 2009), P.S. New Agra, District Agra. The detail judgment shall be delivered on 5th July 2017." 13. Having heard the learned counsel for the parties and after perusal of the evidence and material available on record this Court proceeds to pass the following order. 14. The brief facts of the present case are that an FIR has been lodged against the appellants Smt. Saroj Devi and Anil on 6.12.2009 and the same is registered in Case Crime No. 1079 of 2009, under Sections 363, 366(A), 376 and 120(B) IPC, P.S. New Agra Road, District Agra. In the FIR, the complainant one Sunil Kumar has submitted that his younger sister Km. Meenu, D/o Pratap Singh, R/o B-35 Prateek Enclave, Kamal Nagar, P.S. New Agra, who is studying in Sanatan Dharma Inter College, Balkeshwar, Agra, is missing since 1.12.2009. In the FIR it has been narrated that on 1.12.2009 at about 7.15 a.m. Km. Meenu, the victim has left for her school and after all the efforts to search her, the complainant has lodged the FIR stating therein that at the time of the missing of the sister Km. Meenu, she was 15 years of age and is not traceable since 1.12.2009. 15. Based on the aforesaid FIR the concerned police has proceeded to investigate the matter, thought there was no named FIR however, the investigating officer has submitted its charge-sheet naming the present appellants as well as Rinku (now deceased), the main accused. 16. The investigation continued and after about one month the victim Km. Meenu was recovered at the Railway Station, Bhopal whereas the alleged kidnapping and missing has happened at District Agra. 17. The victim PW 1 Km. Meenu has recorded her statement before the Magistrate and the statement of PW 2 constable Roshan Lal, PW 3 constable Geetam Singh, PW 4 Sunil Kumar, the complainant, PW 5 one Harendra, PW 6 Dr. S.K. Kulshreshtha and PW7 S.I. Divakar Singh has been recorded and examined. 17. The victim PW 1 Km. Meenu has recorded her statement before the Magistrate and the statement of PW 2 constable Roshan Lal, PW 3 constable Geetam Singh, PW 4 Sunil Kumar, the complainant, PW 5 one Harendra, PW 6 Dr. S.K. Kulshreshtha and PW7 S.I. Divakar Singh has been recorded and examined. The statements of the accused/appellants are also recorded under Section 313 Cr.P.C. In the statement recorded under Section 313 Cr.P.C. the accused has denied the said incident and further stated that incorrect statements of the alleged witnesses has been recorded as such the false case has been lodged against the appellants. 18. The learned Court below has proceeded on the basis of the submissions of the learned counsels for the respective parties and after considering the statements as well as other evidences, which has been adduced. 19. Before the Court below the appellants/alleged accused has submitted that neither any incident of kidnapping is committed by them and neither the appellants/accused are involved in any kind of kidnapping nor the appellants have kept the victim Km. Meenu for a period of about one month between 1.12.2009 to 30.12.2009 at Bhopal. The Court below has proceeded and has concluded, that after perusal of the evidence and the oral statement it is clear that the appellant No.1 Rinku (now deceased), S/o Kailash Chandra was involved in the kidnapping of the victim Km. Meenu and has been held guilty of the offence being the main accused. 20. Before the trial Court the prosecution has submitted that the accused had kidnapped the victim Km. Meenu for the purposes of marriage with the appellant no.1, Rinku (now deceased) and that the said Rinku has illegally confined the victim between 1.12.2009 to 30.12.2009 at Bhopal in a room, where without the consent of the victim the accused/appellant no.1, before the trial Court, has continued to rape the victim and further the said incident of kidnapping and rape is being proved on the basis of several evidences, which have been adduced by the prosecution. In support of the submission, the prosecution has also relied upon the certain judgments which are being mentioned by the learned trial Court in its order in para 11 of the impugned judgment. In support of the submission, the prosecution has also relied upon the certain judgments which are being mentioned by the learned trial Court in its order in para 11 of the impugned judgment. The judgments, which are relied by the prosecution are in fact based on the facts that the accused should have been provided proper opportunity to defend the allegation made against them. 21. The prosecution has produced the victim Km. Meenu and the statement of Km. Meenu has been recorded, in which she has narrated the incident by saying that on 1.10.2009 at about 7.15 a.m. she proceeded for her school and further on the date of incident she was studying in class 11. She has stated in her statement that on way to school near I.T.I., Balkeshwar crossing, the main accused Rinku (now deceased) and her mother Smt. Saroj Devi (appellant no.1 in the present appeal) met her and thereafter the appellant Smt. Saroj Devi has called her and the victim on calling by the mother of the main accused Rinku went to meet his mother where she has noticed that one Banti was also present as well as the brother in law (sister's husband) of the main accused Rinku namely Anil was also present. She has stated that she never met Anil earlier and the appellant no.1 Smt. Saroj Devi has introduced her with Anil. 22. In her statement the victim Km. Meenu has stated that the sister of Rinku was studying with her and therefore she used to visit the house of the accused Rinku as such she was well aware of the family members of Rinku. The victim Km. Meenu has further stated that the mother of the main accused Rinku has asked about the welfare of the family and has given her 'Prasad' which she has brought from a temple. The victim Km. Meenu has further stated that after eating the 'Prasad' she has become unconscious and seeing the said situation the mother of the main accused Rinku (appellant no.1) has told her that she will accompany her for the treatment to a doctor's clinic. The victim Km. Meenu further stated that she went to doctor's clinic on an Auto which has been engaged by Anil and Banti, who were present at the site. The victim Km. Meenu further stated that she went to doctor's clinic on an Auto which has been engaged by Anil and Banti, who were present at the site. She has further stated that while proceeding towards the clinic of the doctor Banti and Anil were seated with the driver of the Auto on front seat whereas Rinku and his mother along with the victim were seated at the back seat of the Auto. 23. The victim Km. Meenu has further stated in her statement that thereafter she became fully unconscious and when she became conscious she has noticed that she was travelling in a train where Rinku and his mother were seated. She has further stated that when she has became conscious Rinku has again given her some medicine and therefore again she became unconscious. 24. In her statement the victim Km. Meenu has stated that when she became fully conscious she has noticed that she along with Rinku were in a room where she was remained in the same room for about one month and at no point of time she was ever allowed to go out from the said room by the appellant no.1 Rinku (now deceased). 25. She has further stated that whenever Rinku goes out from the said room he used to lock the room from out side and further that the accused Rinku raped her frequently. She has further stated that she is educated and is aware about the English words also as such knows the meaning of sexual intercourse and further that the sexual intercourse has been committed against her wishes. She has further stated that Rinku always threatened her during the period of illegal confinement and after one month Rinku allowed her and has brought her to Bhopal Railway Station where he went to inquire the train timing and when after 10-15 minutes he came back the mother and brother along with the police reached at the spot where the victim was sitting alone on a Riksha and the police has caught the main accused Rinku and brought her along with Rinku at police station Agra from Bhopal. At the end, the victim has stated in her statement that Rinku, the mother of Rinku, the present appellant no.1 and Banti as well as Anil (the appellant no.2 in the present appeal) are guilty of the offence. 26. At the end, the victim has stated in her statement that Rinku, the mother of Rinku, the present appellant no.1 and Banti as well as Anil (the appellant no.2 in the present appeal) are guilty of the offence. 26. The Trial Court has also considered the statement of the constable Roshan Lal who has written first information report lodged by Sunil Kumar, the brother of the victim. The statement of constable Geetam Singh, who is the clerk in police station New Agra, the statement of the complainant Sunil Kumar, the brother of the victim who has narrated the case so as are mentioned in the first information report as well as the statement of the Harendra Singh, another brother of the victim Km. Meenu, who has stated that at the time of incident/kidnapping the age of the victim Km. Meenu was 16 year and further that she was studying in class 11 in Sanatan Dharama Inter College at Balkeshwar from where she has been kidnapped and further that the FIR has been lodged on 6.12.2009 and in the charge-sheet the names of the appellants are being mentioned by the investigating officer and further that the victim has been recovered by the police with the help of the complainant, the brother and mother of the victim at Railway Station Bhopal. 27. PW 6 Dr. S.K. Kulshreshtha has recorded his statements on 1.1.2010 and has stated that he was the senior consultant at District Hospital, Agra and along with one Dr. Chaya Upadhyay he has examined the victim Km. Meenu, who has been brought by constable Savitri Devi, Police Station New Agra and on examination he has not found any sperm and accordingly he has prepared his report. 28. Chaya Upadhyay he has examined the victim Km. Meenu, who has been brought by constable Savitri Devi, Police Station New Agra and on examination he has not found any sperm and accordingly he has prepared his report. 28. After considering the material and evidence as well as the statements and oral statement the Court below has proceeded to pass the impugned order by which the Court below has held that the present appellants namely Smt. Saroj Devi and Anil has committed the offence under Sections 363 read with section 366-A IPC and convicted the appellants for imprisonment of three years along with fine of Rs.5000/- each under Section 363 IPC and further additional rigorous imprisonment of 15 days in case of default in payment of fine and rigorous imprisonment for seven years along with fine of R.10000/- each under Section 366 (ka) and due to default in payment of fine the Court below has further directed that the appellants shall be convicted additional rigorous imprisonment for one month each. 29. After hearing the parties at length and after considering the materials and evidence this Court finds that the offence has been committed by the main accused Rinku (now deceased) and admittedly the facts reveals that the accused Rinku has involved in love affair with the victim Km. Meenu. This fact is clear even from the statement of the victim that she was regularly or frequently visited the residence of the accused being the friend of the younger sister of Rinku, who was studying in same class in which the victim was studying. 30. Admittedly, the first information report has been lodged after a gap of about six days in which no names are being mentioned by the complainant whereas the complainant is the real brother of the victim. Even in the statement, which has been recorded, the victim Km. Meenu has given the contrary facts namely, that she went towards the clinic in an Auto and in the Auto Anil and Banti were also seated with the driver of the Auto and that from the place of kidnapping till the railway station, Agra Cantt. she was fully unconscious. Again in her statement the victim has stated that she was totally unconscious throughout the journey till Bhopal therefore she has not given any alarm. 31. she was fully unconscious. Again in her statement the victim has stated that she was totally unconscious throughout the journey till Bhopal therefore she has not given any alarm. 31. In her statement she has stated that she was not aware as to whether there was any Marpeet took place with her brother and Rinku and that her brothers were not aware about Rinku nor they ever visited the house of Rinku. In her statement she has stated that she used to go to coaching along with Surabhi, the sister of Rinku and she never went to school with Surabhi. In her statement she has given the details about the family tree of the appellants by mentioning that Surabhi, the sister of Rinku is having two brothers and two sisters and both the sisters are younger to Rinku and out of one was married and she was not aware as to where the married sister resides with them nor she is aware about the name of brother-in-law of Surabhi/Rinku, whereas she has stated that she was regularly visiting the house of the accused. 32. She has further stated in her statement that some times Surabhi also visited her residence and has further stated that after eating the 'Prasad' after about 5 to 10 minutes she has become unconscious and further that the unconsciousness was not to this extent that she may fell down on the floor. She has further stated that when she was kidnapped she was wearing the school dress and she has not seen any items with the mother of the Rinku, the appellant no.1 nor she has been able to give the details of the colour of Auto Riksha. 33. The victim Km. Meenu has further stated in her statement that she was remained wearing the same dress (Salwar Suit) throughout one month and was continuously confined in a room as such has not even taken the bath for one month. She has also stated in her statement that the accused Rinku provides food occasionally and she is not able to give any details about the availability of Auto nor anythings after she has been taken in the Auto as she was totally unconscious. 34. In the cross-examination the victim Km. She has also stated in her statement that the accused Rinku provides food occasionally and she is not able to give any details about the availability of Auto nor anythings after she has been taken in the Auto as she was totally unconscious. 34. In the cross-examination the victim Km. Meenu has stated that she is not able to give any details about the facts as to when she has been brought in the train or by which conveyance that too on account of her unconsciousness. She has stated that she has even not heard any announcement about the movement of the train at the Railway Station nor she is able to give any details as under what circumstances she has been brought to the train from the Auto. No details are being given by the victim about the timing i.e. when she has been brought to the Railway Station and when the train left. In her cross-examination she has stated that after about 3-4 hours she became conscious and she found herself travelling in three tier coach in which only 3 to 4 persons were travelling. She has stated that she is not seen much as she has not checked about the status of the availability of the passengers in the train/coach. 35. In the cross-examination she has stated that Rinku has again provided the medicine and when she has become conscious she has requested Rinku to leave her alone and permit her to go back. She has further stated that the medicine has been given with the water and she is not able to give any specific reply as to whether the medicines and water are separately brought in a bag or in a suitcase and further that she is not able to give any details about the Railway Station in which she has been taken away as she was totally unconscious and that Rinku alone has brought her in a room where after 5-6 hours she has become conscious. On asking about the room she has stated/replied that she is not able to give any reply as to whether the room was situated in a Hotel or any other place and the room was a vacant room. On asking about the room she has stated/replied that she is not able to give any reply as to whether the room was situated in a Hotel or any other place and the room was a vacant room. Nobody was there to cook food and there was only one door which has been locked by Rinku and Rinku used to visit the said room after a gap of 2-3 days. 36. She has further stated that she has no love affair with Rinku and nor she has left her house on account of quarrel and Marpeet with Rinku by her brothers. She has stated that whenever she wants to go out of the room Rinku used to put her back and at the Bhopal Railway Station her mother and brother reached from where she has been brought to the police station at Agra. 37. The trial Court has considered the statements of the witnesses, victim and other persons, however has failed to consider the fact that the statement of the victim Km. Meenu itself was contradictory on different points. The victim Km. Meenu has stated that she was studying in Class 11 when the incident took place and further that she understand English language as well. Admittedly, the fact reveals that according to the prosecution, the victim has been kidnapped in the morning at about 7.15 a.m. when she was going to her school in school dress by Rinku. Rinku being the main accused has been convicted, though he died during trial proceedings. 38. During the course of the statement, which has been recorded under Section 164 Cr.P.C., the victim even has not stated that the accused were accompanying her during the movement of the train from Agra Railway Station to its onward journey and further the said accused/appellants has given her some medicine with water in the train coach. 39. The victim herself has stated, both at the time of recording of the statement as well as cross-examination, that it is only and solely Rinku has brought her to room where she has been confined for about one month and the said accused Rinku alone visited the room and committed rape and provided the food etc. etc. At no point of time, the appellant Nos. etc. At no point of time, the appellant Nos. 1 and 2, in the present appeal, namely Smt. Saroj Devi and Anil were found at the alleged place of the offence so committed under Section 376 IPC nor both of them even provide any help to main accused Rinku. 40. Surprisingly, the girl studying in Class 11 knowing/understanding English as well, has never raised any alarm at any point of time at any place during the course of first stage of her alleged kidnapping till her recovery at the Railway Station, Bhopal by the police in presence of her mother and brother of the victim. Even according to the statement of the victim Km. Meenu when she has been recovered by the police in presence of her mother and brother at the Railway Station, Bhopal she was alone sitting on a Riksha since last 10-15 minutes when the main accused Rinku went for inquiry at the Railway Station. 41. There is no specific evidence against the present appellants as such even the statement of the witnesses does not support the prosecution story. Except the victim Km. Meenu no other witness, who supports the prosecution story is being produced. 42. Admittedly, the first information report has been lodged by the complainant, brother of the victim under Sections 363, 366 (converted into under Section 366-A), Section 376 IPC read with Section 120-B IPC. However, the present appeal arises out of the impugned judgment of the Court below wherein the trial Court has proceeded in pursuance of the charge-sheet which has been filed against the appellants under Sections 363, 366 (Ka) IPC. This goes to show that the charge-sheet has not been filed by the investigating agency against the present appellants under Section 120-B IPC. 43. Section 120-B IPC deals for punishment of criminal conspiracy. The opening sentence of Section 120-B IPC provides that 'whoever is a party to a criminal conspiracy to commit an offence punishable ........, shall, .......be punished in the same manner as if he had abetted such offence. 44. In the present case, both the appellants are being discharged from committing the offence punishable under Section 120-B IPC and if that being so the appellants cannot be held guilty of provisions of Section 120-B IPC, which clearly provides the involvement of a person to be a party in a criminal conspiracy. 44. In the present case, both the appellants are being discharged from committing the offence punishable under Section 120-B IPC and if that being so the appellants cannot be held guilty of provisions of Section 120-B IPC, which clearly provides the involvement of a person to be a party in a criminal conspiracy. Once the prosecution itself has discharged the appellants to be a part of the criminal conspiracy than they cannot be held guilty of an offence allegedly committed under Section 363 IPC read with Section 366 (Ka) IPC. 45. Section 363 IPC provides the punishment for kidnapping. Opening word of Section 363 IPC provides as follows : "whoever kidnaps any person from India ......., shall be punished...... ." 46. In the present case from the material and evidence so adduced by the prosecution, it is clearly established that so far as the present appellants are concerned, there is no evidence available which can establish the involvement of the appellants in kidnapping of the victim Km. Meenu. Therefore, in my opinion, the appellants cannot be held guilty of punishment of kidnapping under Section 363 IPC. 47. As held by this Court that the appellants are not guilty under Section 363 IPC the provision of Section 366-A IPC are also not applicable in view of the facts of the present case. Section 366-A provides the procuration of minor girl. The plain reading of the aforesaid provisions indicates that "any person forced or seduced to illicit intercourse with another persons (any minor girl under the age of 18 years) shall be punished ....... ." Section 366-A would come into play if it is established by the prosecution that the present girl was taken away with intent or knowledge that she was likely to be forced or seduced the illicit intercourse with another person. 48. In the present case the victim Km. Meenu was neither taken away forcibly nor she has been seduced to illicit intercourse and further the fact reveals that on account of love and affairs with the main accused Rinku (now deceased) the victim accompanied him from Agra to Bhopal. 48. In the present case the victim Km. Meenu was neither taken away forcibly nor she has been seduced to illicit intercourse and further the fact reveals that on account of love and affairs with the main accused Rinku (now deceased) the victim accompanied him from Agra to Bhopal. Merely giving shelter to the girl or taking her from one place to another without knowing that she is a married girl or without any intention or knowledge that she is likely to be forced or seduced to illicit intercourse with another person is no offence under Section 366-A. There is no evidence that the victim Km. Meenu was compelled or accompanied the accused (present appellants) by force or by deceitful. There is no evidence adduced by the prosecution which can suggest that the appellants are guilty of an offence under Section 366-A. Even assuming if the appellants were present when the girl was going to her school, the appellants cannot be held guilty for an offence under Section 366-A as there is no evidence that the victim has been compelled to accompany the main accused namely Rinku by the appellants either by force or by deceitful means. 49. In view of the aforesaid facts and the material evidence available on record and the discussion made hereinabove, according to me the present appeal has to be allowed and the impugned judgment and order dated 25.1.2016 passed by the trial Court in Sessions Trial No. 352 of 2010 (State vs. Rinku and others) under Sections 363, 366 (Ka) IPC (Case Crime No. 1079 of 2009), P.S. New Agra, District Agra is liable to be set aside. 50. Accordingly, the present appeal is allowed. The impugned judgment and order passed by the trail Court is set aside.