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2019 DIGILAW 1445 (ALL)

Arvind v. State of U. P.

2019-05-27

RANG NATH PANDEY

body2019
JUDGMENT : RANG NATH PANDEY, J. 1. The instant criminal appeal has been filed by the appellants against the judgment and order dated 23.08.2017 passed by learned Additional Sessions Judge, F.T.C., Hardoi in Sessions Trial No.513 of 2013 arising out of case crime no. 373 of 2012, under Sections 363, 366, 376 and 506 I.P.C. relating to the Police Station Kotwali Dehat, District-Hardoi, accused-appellant, namely, Ramshankar was acquitted under Sections 363, 366 and 506 IPC. Whereas accused appellant, namely, Arvind was convicted and sentenced him under Sections 363, 366, 376 and 506 IPC. Whereby accused-appellant, namely, Arvind has been convicted and sentenced to undergo five years' rigorous imprisonment under Section 363 I.P.C. along with fine of Rs.2,000/-with default stipulation; seven years' rigorous imprisonment under Section 366 I.P.C. along with fine of Rs.3,000/-with default stipulation; nine years' rigorous imprisonment under Section 376 I.P.C. along with fine of Rs.5,000/-, with default stipulation; two years' rigorous imprisonment under Section 506 I.P.C. along with fine of Rs.1000/-, with default stipulation. The substantive sentences awarded to the appellant was directed to run concurrently. 2. The prosecution story in brief is that the daughter of informant Ramnath, Kumari Rinki @ Shilpi had love affairs with co-villager Arvind Kumar, son of Satte. For this, Arvind Kumar wanted to take away his daughter Kumari Rinki @ Shilpi. Somehow, he came to know this and he sent his daughter to her grandfather’s home so that Arvind Kumar could not take away his daughter. But Arvind Kumar with the help of his brothers eloped his daughter on 28.05.2012 at 10.00 A.M. whom he has been searching. Accused persons are threatening him. 3. In order to prove the case, P.W.1 Ramnath (Complainant), P.W.-2 Victim, P.W.-3 Dr. Sangeeta Srivastava, P.W.-4 Dr. Indra Singh, P.W.-5 Smt. Bishakha (Principal), P.W.-6 Sub Inspector Ajay Chaudhari and P.W.-7 Head Constable Vishambhar Dyal Gupta were examined by the prosecution. 4. After the prosecution evidence is over, the statement of the accused will be recorded under Section 313 Cr.P.C. The accused asked the whole incident to be wrong and to file a case due to enmity. Accused Arvind has stated in his additional statement that due to village partybandi a fake report has been made. Accused Ramshankar in his additional statement said that due to Arvind’s brother-in-law, I was falsely implicated in this case. 5. Accused Arvind has stated in his additional statement that due to village partybandi a fake report has been made. Accused Ramshankar in his additional statement said that due to Arvind’s brother-in-law, I was falsely implicated in this case. 5. Learned Trial Court after hearing the prosecution and appreciating evidence led before it, found appellant guilty and sentenced him as above. 6. According to counsel for the appellant, the theory of rape was not at all supported by the medical evidence. P.W.3 Dr. Sangeeta Srivastava, who had seen and examined the victim girl, has stated in her statement that on 13.07.2012 she had conducted the medical examination of daughter of Ramnath. On the general check-up, prosecutrix was average built, breasts were developed. There was no mark of injury present around private part. On the basis of the report supplied by the Radiologist, all epiphysis around elbow were fused. Victim's age was concluded about 18 years and no definite opinion had been given regarding rape. 7. It was one of the main contentions of counsel for the appellant that the testimony of the prosecutrix becomes highly doubtful and suspicious because of multiple contradictions and omissions on the vital aspects of prosecution case, as she has stated in her statement under Section 164 Cr.P.C. that she had eloped with Arvind out of her own sweet will. There were major contradictions between the statement made under Sections 164 Cr.P.C. and the statement given during trial. Learned Counsel in support of his contention has placed reliance in the case of Vijay Kumar Vs. State of NCT of Delhi. 8. It is no longer res integra that the age determined on the basis of Ossification test is to have margin of 2-3 years either side. As per the medical report she has been found to be around 18 years and with the margin of 2-3 years on higher side she would be 20-21 years of age. 9. So far as offences punishable under Sections 363 and 366 IPC are concerned, it is necessary to note their essential ingredients. Section 363 provides for punishment in case of kidnapping of any person from India or from lawlful guardianship. Kidnapping from lawful guardianship has been defined in Section 361. 9. So far as offences punishable under Sections 363 and 366 IPC are concerned, it is necessary to note their essential ingredients. Section 363 provides for punishment in case of kidnapping of any person from India or from lawlful guardianship. Kidnapping from lawful guardianship has been defined in Section 361. Essential ingredients of the said section are four in number, i.e., (i) taking or enticing away a minor or a person of unsound mind; (ii) such minor must be under sixteen years of age, if a male, or under eighteen years of age if a female; (iii) the taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind; (iv) such taking or enticing must be without the consent of such guardian. If the girl is less than 18 years of age, it is immaterial whether the girl consents or not. The taking need not be by force, actual or constructive. There must be a taking of the child out of the possession of the guardian. The Explanation to Section 361 provides that the words 'lawful guardian' in the said section include any person lawfully entrusted with the care or custody of such minor or other person. The word 'take' means to cause to go, to escort or to get into possession. It implies want of wish and absence of desire of the person taken. There is, however, a distinction between taking and allowing a minor to accompany a person. 10. The word 'entice' involves an idea of inducement or allurement by exciting hope or desire in the other. The inducement or allurement may take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success, on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual, but imperceptible, impression culminating, after some time, in achievement of its ultimate purpose of successful inducement. The offence of kidnapping from lawful guardianship is complete when the minor is actually taken from lawful guardianship. The act of taking is not in the proper sense of the term a continuous act; when once the boy or girl has been actually taken out of the keeping, the act is a completed one. The offence of kidnapping from lawful guardianship is complete when the minor is actually taken from lawful guardianship. The act of taking is not in the proper sense of the term a continuous act; when once the boy or girl has been actually taken out of the keeping, the act is a completed one. Enticement is an act of the accused by which the person kidnapped is induced of his or her own accord to go to the kidnapper. It is not necessary that the taking or enticing should be shown to have been by means of force or fraud. Enticement need not be confined to any single form of allurement. Anything which is like to allure the minor girl would be sufficient. Where the minor kidnapped is a girl under eighteen years of age, it is no defence that the accused did not know the girl to be under eighteen, or that from her appearance or conduct she appeared to have attained the age of eighteen. There is an essential distinction between taking and enticing. The mental attitude of the minor is immaterial in the case of taking when an accused takes a minor with him, whether he or she is willing or not, the act of taking is complete and the condition is satisfied. But the word 'entice' involves an idea of inducement or allurement. One does not entice another unless the latter attempts to do a thing which she or he would not otherwise do. 11. Significantly the word 'possession' has not been used in the IPC, but the language used is 'out of the keeping, of the lawful guardian'. The word 'keeping' connotes the fact that it is compatible with independence of action and movement in the object kept. It implies neither apprehension nor detention but rather maintenance, protection and control, manifested not by continual action but as available on necessity arising. The word 'lawful' has been deliberately used in its wider connotation, and it is distinguishable from the word 'legal'. That has necessitated insertion of the Explanation. 12. It implies neither apprehension nor detention but rather maintenance, protection and control, manifested not by continual action but as available on necessity arising. The word 'lawful' has been deliberately used in its wider connotation, and it is distinguishable from the word 'legal'. That has necessitated insertion of the Explanation. 12. So far as Section 366 is concerned, the essential ingredients are : (i) kidnapping or abducting any woman; (ii) such kidnapping or abducting must be (a) with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; or (b) in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. The second part of the section requires two things. (1) By criminal intimidation or abuse of authority or by compulsion inducing any woman to go from any place; and (2) such going must be with intent that she may be, or with knowledge that it is likely that she will be, forced or seduced to illicit intercourse, with some person. The word 'woman' has been defined in Section 10. It includes a minor female. If the girl was eighteen or over, she could only be abducted and not kidnapped, but if she was under eighteen she could kidnapped as well as abducted if the taking was by force or the taking or enticing was by deceitful means. The intention of the accused is the basis and the grave men of offence under Section 366. The volition, the intention and the conduct of the woman do not determine the offence; they can only bear upon the intent with which the accused kidnapped or abducted any woman and the intent of the accused is the vital question for determination in each case. Kidnapping and abduction are two distinct offences. The ingredients of the two offences are entirely different. Kidnapping except kidnapping from India is an offence against guardianship. It consists of enticing or removing a girl from the keeping of the lawful guardian without her consent. Abduction is an offence as defined in Section 362 when a person is by force compelled or by deceitful means induced to go from any place. In abduction the person abducted may be a minor or a major. It consists of enticing or removing a girl from the keeping of the lawful guardian without her consent. Abduction is an offence as defined in Section 362 when a person is by force compelled or by deceitful means induced to go from any place. In abduction the person abducted may be a minor or a major. Kidnapping is punishable per se in terms of Section 363. Abduction on the other hand is not punishable per se, and is punishable only when accompanied by a particular purpose as contemplated in sections 364 to 366. But as kidnapping also may be for the same purposes, Sections 364 to 366 deal with both kidnapping and abduction for the purposes stated therein and prescribe the punishments. 13. I have heard the learned Amicus Curiae and learned Additional Government Advocate and also gone through the record of the case carefully. The learned Counsel for the accused has contended that since there was no cogent and satisfactory evidence on record the conviction of the accused qua the offences in question was not sustainable. 14. It may well be to recall, at this stage, the age old axioms which run like a golden thread through our criminal jurisprudence. They are that the accused is presumed to be innocent unless proved guilty, the quality of proof must be beyond any reasonable doubt, the Court must be morally certain of the guilt of the accused before recording conviction of the accused and in case any doubt remains lurking in the mind of the Court in this behalf, the benefit thereof must go to the accused. In the second place the burden to prove the guilt of the accused beyond all doubt rests on the prosecution and it never shifts. 15. Now looking on the facts of the case in hand in the light of the above foregoing principles, I feel that the conviction of the accused is not sustainable. In fact this Court is constrained to observe that the trial court has not cared to use his judicial acumen and experience while appreciating the evidence on record. 15. Now looking on the facts of the case in hand in the light of the above foregoing principles, I feel that the conviction of the accused is not sustainable. In fact this Court is constrained to observe that the trial court has not cared to use his judicial acumen and experience while appreciating the evidence on record. It is clear that in order to hold a person guilty of an offence under Section 363 of the Indian Penal Code it must be proved that the accused played an active part in taking away a female out of the keeping of her guardian without the consent of the guardian either prior to, or at the time of her taking away out of such guardianship by either directly using force or threat against the female or injecting into her mind some irresistible allurements or temptations which may impel her to leave or forsake the custody of her guardian. 16. Learned counsel for the State has submitted that the victim was more than 17 years of age at the time of occurrence while learned counsel for the appellant has submitted that she was about 18 years of age as is evident from the medical report and with the margin of 2-3 years on higher side she would be 20-21 years of age. In light of above facts, she was major at the time of occurrence. 17. This Court is also not unmindful of the observations made by the Apex Court in Sadashiv Ramrao Hadbe v. State of Maharashtra MANU/SC/0607/2006: (2006) 10 SCC 92 , wherein it has been observed that it is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix if it is capable of inspiring confidence in the mind of the Court and if the version given by the prosecutrix is supported by medical evidence and the whole surrounding circumstances makes the case set up by the prosecutrix highly probable and believable. Therein it is also observed that the Court shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen. 18. Considering the questionable propensity of the prosecutrix, I am tempted to refer to the case of Moinul Hoque and Ors. v. State of Assam (2001) 1 GLR 516. Therein it is also observed that the Court shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen. 18. Considering the questionable propensity of the prosecutrix, I am tempted to refer to the case of Moinul Hoque and Ors. v. State of Assam (2001) 1 GLR 516. In paragraph 16 of the judgment it is held as under: "It is true that a Court has to take seriously the cases relating to violence against woman. Simultaneously, the Court has a duty to guard itself against false charges of rape. The narration of the prosecution case is full of vital omissions and contradictions and it raises strong doubt which over-shadows the genesis of the prosecution case. In my opinion, it would be unsafe to sustain the conviction in this case relying upon the testimony of the prosecutrix alone. Dignity of woman will have to be protected, but without aid of emotion. This is undoubtedly not a case where the prosecutrix has the last 'say'." 19. Having considered the whole prosecution and defence version, it is found that the prosecution was a consenting party and willingly went with the appellant. The manner in which the story has been depicted by the prosecution was a fragile one. All these lead the Court to hold the prosecution case totally manured, manipulated and far from truth. Though, the corroboration of the prosecutrix statement is not required when her statement is trustworthy but if the statements of the prosecutrix is not found to be trustworthy and she is found to be consenting and willing party then the corroboration from the independent witnesses and circumstantial evidence is required to convict the accused persons. To bring home the guilt of the offence of rape, the prosecution is required to prove beyond reasonable doubt that the accused person has committed rape upon the prosecutrix without her consent and against her will. The duty is cast upon the prosecution to prove the alleged offence. The statements of the prosecution and prosecutrix do not inspire confidence. 20. To bring home the guilt of the offence of rape, the prosecution is required to prove beyond reasonable doubt that the accused person has committed rape upon the prosecutrix without her consent and against her will. The duty is cast upon the prosecution to prove the alleged offence. The statements of the prosecution and prosecutrix do not inspire confidence. 20. Now once, it is held that the preponderance of probabilities is that the prosecutrix had voluntarily gone with the accused appellant without the accused playing any overt or covert role therein, no offence under Section 363 of the Indian Penal Code can be said to have been proved against the accused-appellant and once this Court reaches this conclusion the offence under Section 366 automatically falls to the ground. 21. As regards the offence under Section 376 of the Indian Penal Code, this Court has no doubt on the basis of evidence and the statement of the prosecutrix that she remained with the accused appellant for one month voluntarily with her free will, the question is as to whether in case she was major the offence under Section 376 of the Indian Penal Code is found proved or not. The answer to this poser must be in the negative. In the first place, as I have already held, it has not been proved by the prosecution that at the time of this incident the age of the prosecutrix was below 16 years. In fact, the medical report reveals that she was 16 years of age at that time and with the margin of 2-3 years on higher side she would be 18-19 years of age. It is also clear from the medical report that no mark of injury was present on the private part as well as in the vaginal smear report given by Dr. P. N. Singh, Pathologist that no spermatozoa seen. Further, on the basis of clinical examination, x-ray report and vaginal smear report no definite opinion regarding sexual assault was given. Then there is also no doubt that on the facts and in the circumstances of the case the prosecutrix was a willing party and as such the accused appellant Arvind is not guilty of the offence of rape. 22. In view of the above discussion, the appeal is allowed. Then there is also no doubt that on the facts and in the circumstances of the case the prosecutrix was a willing party and as such the accused appellant Arvind is not guilty of the offence of rape. 22. In view of the above discussion, the appeal is allowed. The conviction and sentence passed against the accused appellant under Sections 363, 366, 376 and 506 of the Indian Penal Code is set aside and the appellant is acquitted on all counts. The fine, if realised, be refunded to him forthwith. If the appellant is in imprisonment he is liable to be set at liberty at once if not required in any other criminal case and in case he is on bail he need not surrender to his bail and the bail bonds are discharged. 23. Lower Court's record be sent back. Copy of this judgment be also forwarded for compliance.