Deshraj (Jail Appeal ) vs State Of U.P. on 7 December, 2017

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

AFR

RESERVED

Case :- CRIMINAL APPEAL No. – 788 of 2015

Appellant :- Deshraj (Jail Appeal )

Respondent :- State Of U.P.

Counsel for Appellant :- Jalaj Kumar Gupta (Amicus Curaie)

Hon’ble Ajai Lamba,J.

Hon’ble Sanjay Harkauli,J.

(PER AJAI LAMBA, J)

1. Deshraj, Son of Sipahi Lal has filed the appeal in challenge to judgment of conviction and order of Sentence, both dated 30.7.2014. The said appellant has been convicted for committing offence under Sections 363, 366, and 376 Indian Penal Code. The appellant has been sentenced to undergo imprisonment for three years and pay fine Rs.1000/- for committing offence under Section 363 Indian Penal Code; undergo imprisonment for five years and pay fine Rs.2,000/- for committing offence under Section 366 Indian Penal Code, and undergo rigorous imprisonment for ten years and pay fine Rs.10,000/- for committing offence under Section 376 Indian Penal Code. It has further been directed that in case fine is recovered, Rs.5000/- be remitted to the victim of offence.

(i) Perusal of the impugned judgment of conviction indicates that co-accused, Dharmendra Verma has been acquitted of the charges.

2. Amicus Curiae Shri Jalaj Kumar Gupta, Advocate has appeared for the appellant and has given able assistance to the court. Shri Chandra Shekhar Pandey, Additional Government Advocate has appeared for the State/prosecution.

3. Learned counsel for the appellant has vehemently argued that if a reference is made to the entire evidence, it becomes evident that the prosecutrix had attained age of majority on the date of incident. In this regard, the trial court has erred in facts and in law in wrongly interpreting the evidence. The only conclusive evidence in regard to age of the prosecutrix is the statement of the Doctor and her medical examination report.

(i) The other contention of learned counsel for the appellant is that conduct of the prosecutrix as is made evident by herself in her deposition as P.W.3, read with the circumstances under which she was recovered clearly depict that she had consensual relations with Deshraj, the appellant. She had neither been induced nor coerced to go with him. The plea of being under the spell of black magic/Dawa bhabhoot/ Dua bhabhoot is an afterthought. There is no evidence of administering any intoxicant to the prosecutrix and keeping her intoxicated for the entire period while she stayed with the appellant. In such circumstances, neither offence under Section 363 Indian Penal Code has been committed nor under Section 366 and Section 376 Indian Penal Code.

4. Learned counsel for the State to the contrary has argued that the judgment rendered by the trial court is based on evidence and does not call for interference.

5. It appears that Nand Kishore filed complaint exhibited as Ka-1 dated 2.4.2010 with the allegation that he is resident of Malauli, Police Station Gosaiganj, Lucknow. On 29.3.2010 at about 3.00 p.m. his daughter ”F’ aged 14 years had been enticed away by Deshraj, son of Sipahi Lal, aged 25 years resident of Ichchhapur, District Sitapur who works on Annpurna Brick field, Malauli(brick kiln).

(i) It has further been stated in the complaint that the complainant came to know of the incident on returning home; and till the date of lodging the report had been looking for his daughter who could not be traced.

6. In view of the complaint Exh ka-1, formal First Information Report Exh. Ka-10 was registered as Crime No.166 of 2010, under Sections 363, 366 Indian Penal Code, Police Station Gosaiganj (First Information Report No.121 of 2010) on 2.4.2010 at 2.30 p.m in regard to the incident of 29.3.2010.

7. It appears that the victim ”F’ was recovered on 12.4.2010. Recovery memo is available on record as Exh. Ka-2.

(i) In Exh. Ka-2, it has been stated that in the presence of witnesses and Sub Inspector Shri Musafir Prasad, Constable Shailendra Singh, Female Constable Sarla Devi, complainant Nand Kishore, mother of the victim Shayama Devi, the victim was recovered from the doorway of the house of Deshraj (appellant), son of Sipahi Lal. On asking the name, the victim disclosed her particulars. The time of recovery is stated to be 22.45 hours (10.45 p.m.) on 12.4.2010.

8. Document Exh. Ka-4 is medical examination report of the victim dated 13.4.2010. The doctor has recorded in Exh. Ka-4 that the victim aged about 18 years was examined at about 5.00 p.m. on 13.4.2010. No external or internal injury was found on the body of the prosecutrix.

9. Ossification test of the victim was done. The report is available on record as Exh. Ka-7 dated 16.4.2010 giving radiological age of the victim as 17 years.

10. Statement of the victim was recorded under Section 164 Criminal Procedure Code on 17.4.2010. The victim, in the statement gave her age as 17 years.

(i) The victim stated that about 25-26 days back Deshraj took her from the village to Sitapur and from Sitapur to Ichcchapur. They stayed in the same village for 20-25 days. Deshraj committed rape on her 5-6 times. The victim did not notice this because she was under spell of Dawa Babhut(Black Magic). Kallu, wife of kallu Renu, Dharmendra, Gita and Aditiya Mishra were also involved in doing black magic. Black magic was done in the village of the victim, also by the mother of Deshraj whereupon the victim could not think straight. She has further stated that she wanted to go in the company of her mother.

11. On the basis of evidences collected in the course of investigation, charge sheet Exh. Ka-9 was filed for committing offence under Sections 120-B, 363,366,376 Indian Penal Code.

12. After committal of the case, charge was framed for committing offence under Sections 120B Indian Penal Code read with Sections 363, 366 and 376 Indian Penal Code.

13. As noticed above, the appellant accused has been convicted for committing offence punishable under Sections 363, 366 and 376 Indian Penal Code.

(i) Before proceeding further and examining the evidence led by the prosecution, we would like to refer to, and consider the ingredients of the penal provisions for which the appellant has been convicted.

14. Section 363 of the Indian Penal Code inheres that whoever kidnaps any person from lawful guardianship shall be punished in terms of sentence provided in the provision.

15. “Kidnapping from lawful guardianship” has been defined under Section 361 of the Indian Penal Code. The provision when extracted reads as under:-

“Whoever takes or entices any minor under *[sixteen] years of age if a male, or under **[eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation: – The words “lawful guardian” in this Section include any person lawfully entrusted with the care or custody of such minor or other person.

Exception: – This Section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.”

16. The provisions of Section 363 of the Indian Penal Code are required to be considered in context of provisions of Section 361 of the Indian Penal Code. So as to satisfy the ingredients of Section 361 of the Indian Penal Code, it has to be established by the prosecuting agency that the accused took or enticed the victim, aged under eighteen years, out of the keeping of the lawful guardian , without the consent of the guardian.

17. A holistic view is required to be taken in cases such as the one under consideration.

18. A girl who has attained the age of discretion and was on the verge of attaining majority and is capable of knowing what was good and what was bad for her, cannot be said to be a victim of inducement. In such circumstances, desire of the girl/victim is required to be seen. Ingredients of Section 361 Indian Penal Code are required to be considered accordingly, and not in mechanical or technical interpretation.

19. Ingredients of Section 361 Indian Penal Code cannot be said to be satisfied in a case where the minor having attained age of discretion, left her guardian’s protection knowingly (having capacity to know the full import of what she was doing) and voluntarily joins the accused person. In such a case, it cannot be said that the victim had been taken away from the keeping of her lawful guardian.

20. So as to show an act of criminality on the part of the accused, some kind of inducement held out by the accused person, or an active participation by him in the formation of the intention of the minor to leave the house of the guardian, is required to be shown. Conclusion might be different in case evidence is collected by the investigating agency to establish that though immediately prior to the minor leaving the guardian’s protection no active part was played by the accused, however he had at some earlier stage solicited or persuaded the minor to do so.

(i) The Court in above regards takes a cue from the judgment rendered by Hon’ble Supreme Court of India reported in (1965) 1 SCR 243, S. Varadarajan versus State of Madras. Relevant portions from paras 9,10,15,16,18 and 19 of the judgment are extracted herebelow :-

9. It must, however, be borne in mind that there is a distinction between “taking” and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father’s protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.

10. It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father’s protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our opinion, if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian’s house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian’s house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to “taking”.

11. XXXXX

12. XXXXX

13. XXXXX

14. XXXXX

15. The view which we have taken accords with that expressed in two decisions reported in Cox’s Criminal Cases. The first of them is Reg v. Christian Olifir [X Cox’s Criminal Cases, 402] . In that case Baron Bramwell stated the law of the case to the jury thus:

“I am of opinion that if a young woman leaves her father’s house without any persuasion, inducement, or blandishment held out to her by a man, so that she has got fairly away from home, and then goes to him, although it may be his moral duty to return her to her parent’s custody, yet his not doing so is no infringement of this Act of Parliament (24 and 25 Vict. clause 100 Section 55) for the Act does not say he shall restore her, but only that he shall not take her away.”

The jury returned a verdict of guilty in this case because the girl’s evidence showed that the initial formation of her intention to leave her father’s house was influenced by the solicitations of the accused and by his promise to marry her.

16. The other case is Rex v. James Jarvis [XX Cox’s Criminal Cases, 249] . There Jelf, J., has stated the law thus to the Jury:

“Although there must be a taking, yet it is quite clear that an actual physical taking away of the girl is not necessary to render the prisoner liable to convictions; it is sufficient if he persuaded her to leave her home or go away with him by persuasion or blandishments. The question for you is whether the active part in the going away together was the act of the prisoner or of the girl; unless it was that the prisoner, he is entitled to your verdict. And, even if you do not believe that he did what he was morally bound to do — namely, tell her to return home — that fact is not by — itself sufficient to warrant a conviction: for if she was determined to leave her home, and showed prisoner that that was her determination, and insisted on leaving with him — or even if she was so forward as to write and suggest to the prisoner that he should go away with her, and he yielded to her suggestion, taking no active part in the matter, you must acquit him. If, however, prisoner’s conduct was such as to persuade the girl, by blandishments or otherwise, to leave her home either then or some future time, he ought to be found guilty of the offence of abduction.”

In this case there was no evidence of any solicitation by the accused at any time and the jury returned a verdict of “not guilty”. Further, there was no suggestion that the girl was incapable of thinking for herself and making up her own mind.

17. XXXXX

18. Relying upon both these decisions and two other decisions, the law in England is stated thus in Halsbury’s Laws of England, 3rd Edn., Vol. 10, at p. 758:

“The defendant may be convicted, although he took no part in the actual removal of the girl, if he previously solicited her to leave her father, and afterwards received and harboured her when she did so. If a girl leaves her father of her own accord, the defendant taking no active part in the matter and not persuading or advising her to leave, he cannot be convicted of this offence, even though he failed to advise her not to come, or to return, and afterwards harboured her.”

On behalf of the appellant reliance was placed before us upon the decisions in Rajappan v. State of Kerala [ILR 1960 Kerala, 481] and Chathu v. Govindan Kutty [ILR 1957 Kerala, 591] . In both the cases the learned Judges have held that the expression “taking out of the keeping of the lawful guardian” must signify some act done by the accused which may be regarded as the proximate cause of the person going out of the keeping of the guardian; or, in other words an act but for which the person would not have gone out of the keeping of the guardian as he or she did. In taking this view the learned Judge followed, amongst other decisions, the two English decisions to which we have adverted. More or less to the same effect is the decision in Nura v. Rex [AIR 1949 All. 710] . We do not agree with everything that has been said in these decisions and would make it clear that the mere circumstance that the act of the accused was not the immediate cause of the girl leaving her father’s protection would not absolve him if he had at an earlier stage solicited her or induced her in any manner to take this step.

19. As against this Mr Ranganadham Chetty appearing for the State has relied upon the decisions in Bisweswar Misra v. King [ILR 1949 Cuttack 194] and In re Khalandar Saheb [ILR 1955 Andhra, 290] . The first of these decisions is distinguishable on the ground that it was found that the accused had induced the girl to leave the house of her lawful guardian. Further the learned Judges have made it clear that mere passive consent on the part of a person in giving shelter to the minor does not amount to taking or enticing of the minor but the active bringing about of the stay of the minor in the house of a person by playing upon the weak and hesitating mind of the minor would amount to “taking” within the meaning of Section 361……”

(emphasised by us)

21. Section 366 of the Indian Penal Code inheres that whoever kidnaps or abducts any woman 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 in order that she may be forced or seduced to illicit intercourse, shall be punished with a sentence, as provided in the provision.

22. So far as Section 376 Indian Penal Code is concerned, the offence of rape has been defined under Section 375 of the Indian Penal Code. For the facts and circumstances of the case Section 376 Indian Penal Code would be attracted if a man commits rape with or without consent when the victim is under eighteen years of age; without consent of the victim; or with her consent when her consent has been obtained under circumstances detailed in Section 375 Indian Penal Code.

23. The following from Section 375 Indian Penal Code needs to be extracted in the limited context of this case:-

“375. RAPE.–A man is said to commit “rape” if he–

(a) XXX

(b)XXX

(c) XXX

(d) XXX

under the circumstances falling under any of the following seven descriptions:–

First.–Against her will.

Secondly.–Without her consent.

Fifthly.–With her consent when, at the time of giving such consent, by reason of unsoundness of

mind or intoxication or the administration by him personally or through another of any stupefying or

unwholesome substance, she is unable to understand the nature and consequences of that to which she

gives consent.

Sixthly.–With or without her consent, when she is under eighteen years of age.

Explanation 2.–Consent means an unequivocal voluntary agreement when the woman by words,

gestures or any form of verbal or non-verbal communication, communicates willingness to participate in

the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason

only of that fact, be regarded as consenting to the sexual activity.

Exception 1.–XXX

Exception 2.–XXX

24. Cumulatively considering the ingredients of the penal provisions in context of which the appellant has been convicted, we are required to examine firstly whether ”F’ had attained age of 18 years at the time of the incident.

(i) We are also required to consider the evidence to see whether ”F’ had been ”kidnapped’ and/or ”abducted’ so as to satisfy ingredient of Sections 361 and 362 Indian Penal Code read with Sections 363 and 366 Indian Penal Code.

(ii) The court is also required to consider whether ”F’, the victim had given her consent; or she had been subjected to sexual intercourse against her will and offence punishable under Section 376 Indian Penal Code read with Section 375 Indian Penal Code, relevant portion of which has been extracted above, has been committed.

25. We shall now examine the relevant portions of the statements of prosecution witnesses, in context of the ingredients detailed hereinabove.

26. So far as age of the victim ”F’ is concerned, P.W.1 Nand Kishore father of the victim in his deposition in court has stated that at the time of incident his daughter ”F’ was 14 years of age. She had studied up to 5th Class in school in the village. At the time of the incident she was not a student.

(i) In cross-examination P.W.1 stated that he had been married since 27-28 years before the incident. He had five children out of whom one daughter had died and four survived. The witness could not state as to after how many years of marriage the daughter was born. The witness has stated that after 2-2 ½ years of birth of the eldest daughter second daughter was born. The eldest daughter was named Manju who passed away. The third child born was a son. The children were born at intervals of 2-2½ years. The youngest daughter was born after a longer interval. The third child, a son is presently 21 years of age. Fourth child is also a son named Rajesh who is 17 years. Phoolmati is the youngest daughter. The witness in cross examination clarified that the victim did not go to school and used to go socialising in the neighbourhood.

(ii) In cross examination conducted on behalf of co-accused Dharmendra the witness stated that he got married 25-30 years back. His eldest daughter was 22-23 years old. After 6-7 years she died. After two years thereof second daughter Anju was born. Thereafter another son was born after 2 years. Thereafter a son was born. This daughter was born last and was born at a interval of 3-4 years. This daughter also used to go for work to a brick kiln. Deshraj also used to work there.

27. Shyama Devi mother of the prosecutrix has been examined as P.W.2 and in her examination-in-chief she has not given the age of the prosecutrix.

(i) No question in context of age of ”F’ was posed to the witness in cross examination.

28. The prosecutrix ”F’ has been examined as P.W.3. Her age has been given as 15 years while defining the witness at the time of taking oath. In examination-in-chief P.W.3 has not given out her age.

(i) In cross examination P.W.3 stated that she had two brothers and two sisters who all are elder to her. She stated that she did not know how elder to her were the sisters. Likewise, P.W.3 stated that she did not know how elder to her were the brothers. She stated that her mother, father and sister-in-law were alive. She stated that she did not know when her mother and father got married. In cross examination she further stated that she got married one and a half years before the date of deposition and has a daughter.

Note:- The witness was examined in court on 21.7.2014 therefore as per her deposition she got married sometime in January-February, 2013.

(ii) The witness in her cross examination was confronted with the fact that in the statement before the Magistrate she had given her age as 17 years. The witness stated that she did not recollect that she had given her age as 17 years, rather has stated that she did not recollect her date of birth.

29. Dr. Geeta Choudhary has been examined as P.W.4. P.W.4 medically examined the prosecutrix and has stated in her examination-in-chief that she medically examined the prosecutrix whose age was approximately 18 years. The witness has further stated that on the basis of ossification test the age of the prosecutrix has come as 17 years.

(i) In cross examination the Doctor clarified that age of the prosecutrix could be with a variation of plus minus two years.

30. Yogendra Singh has been examined as P.W.8 who produced School Register. As per the Register the prosecutrix was admitted to Class-1 on 3.8.2002. The witness has stated that the prosecutrix passed fourth class and thereafter was promoted to 5th class. Name of the prosecutrix was struck off the roll of the school on 28.2.2007 on account of continuous absence. The Admission Register has been exhibited as Exh. Ka-12.

(i) A perusal of the School Register Exh. Ka-12 indicates that columns have been made on a page. At Serial No.1463 Phoolmati name occurs. The date of birth given in the relevant column is 10.5.1996. Father’s name, as given is Nand Kishore/Vidya Wati. The address given is Malauli, Mohanlal Ganj, Lucknow. The columns in regard to the religion and profession of the father are not relevant for the purpose of this case.

31. The most relevant factor to be considered by this court is whether the prosecutrix had attained the age of majority i.e 18 years, on the date of incident viz. 29.3.2010.

(i) Relevant portions from the statements of the witnesses have been extracted above, in context of age. A detailed reference has been made to the statement of the prosecutrix ”F’ recorded under Section 164 Criminal Procedure Code. Reference has also been made to the documentary evidence(School Register) produced by the prosecution viz. Exh. Ka-12.

32. The victim herself in her statement recorded under Section 164 Criminal Procedure Code has given out her age as 17 years which clearly is discrepant by three years with the age given in the First Information Report by her father. The father gave age of the prosecutrix as 14 years. Discrepancy of three years, under the circumstances, cannot be reconciled, rather it raises a grave suspicion in the mind of the Court as to whether true facts have been suppressed by the witnesses in their deposition .

(i) In Ossification Test Report the age of the prosecutrix ”F’ has been recorded as 17 years. As noted above the concerned Doctor has clarified that the age could be with a variation of plus minus two years.

33. The complainant, father of the victim, was examined as P.W.1. In examination-in-chief the said witness gave out the age of the prosecutrix as 14 years. If a reference is made to the entire statement, it becomes evident that the said witness was not even sure as to whether he was married 27-28 years or 25-30 years back. Likewise, the witness could not give the gap between the birth of his children. The statement is based on surmises and conjectures therefore this court is unable to record a finding as per the prosecution case that the victim of offence was 14 years of age at the time of the incident.

34. The prosecutrix ”F’ herself was examined as P.W. 3. While defining the witness, her age is given as 15 years. In examination-in-chief, P.W.3 did not disclose her age. In cross examination, P.W.3 stated that she had two brothers and two sisters who all are elder to her. She could not say as to how elder were the brothers and the sisters.

(i) In the cross examination, P.W.3 was confronted with the fact that in her statement recorded before the Magistrate she had given her age as 17 years. The witness, however, stated that she did not recollect the said fact, rather stated that she did not recollect her date of birth.

(ii) Statement of P.W.3 the prosecutrix ”F’ is also based on surmises and conjectures.

(iii) From the above, it is evident that the age of the prosecutrix cannot be determined on the basis of the statements of P.Ws 1, 2 and 3.

35. The other evidence on which reliance has been placed by the prosecution is the school register Exh. Ka-12 referred to above. Although date of birth of the prosecutrix has been given as 10.5.1996, however, no evidence has been produced by the prosecution to establish that the said entry was made on the basis of birth certificate, or any such other relevant evidence. P.W.8 Yogendra Singh who produced the document has not given the basis of recording the date of birth in the document. Even Prosecution Witnesses 1, 2, and 3 have not given out the basis of the entry in the register in their testimony in court. Rather none of the said witnesses stated in their statements that the date of birth of the prosecutrix is 10.5.1996.

36. The Hon’ble Supreme Court of India in the case of Birad Mal Singhvi vs. Anand Purohit, 1988 (Supp) SCC 604, has held in the following terms in Para 14 and 15 (relevant portion only):-

14. …….He stated that Hukmi Chand was admitted in 9th class on the basis of transfer certificate issued by the Government Middle School, Palasni from where he had passed 8th standard. He proved the signature of Satya Narain Mathur the then Principal who had issued the copy of the scholar’s register Ex. 8. Satya Narain Mathur was admittedly alive but he was not examined to show as to on what basis he had mentioned the date of birth of Hukmi Chand in Ex. 8. The evidence of Anantram Sharma merely proved that Ex. 8 was a copy of entries in scholar’s register. His testimony does not show as to on what basis the entry relating to date of birth of Hukmi Chand was made in the scholar’s register. Kailash Chandra Taparia PW 5 was Deputy Director (Examination) Board of Secondary Education, Rajasthan, he produced the counter foil of Secondary Education Certificate of Hukmi Chand Bhandari……..”

15. ……..Section 35 of the Indian Evidence Act lays down that entry in any public, official book, register, record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty specially enjoined by the law of the country is itself the relevant fact. To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record, secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded………..”

(emphasised by us)

37. When the law on the issue as referred to above is considered in context of the evidences brought before the court by the prosecution it becomes incontestable and indisputable that the court cannot rely on the register entry Exh. Ka-12. The entry in the register Exh. Ka-12 does not establish the date of birth of the prosecutrix, for the reason that the basis of the entry has not been given.

38. In the above circumstances, we are left with the testimony of Dr. Geeta Choudhary examined as P.W.4, who medically examined the prosecutrix. On clinical examination, P.W.4 apparently found the prosecutrix aged approximately 18 years.

(i) As per ossification test the prosecutrix ”F’ has been found to be 17 years of age.

(ii) Dr. Geeta Choudhary in her deposition has clarified that the age of the prosecutrix could be with a variation of plus minus two years.

39. The medical tests have scientific basis. Dr. Geeta Choudhary P.W.4 has herself stated that age of the prosecutrix could be plus-minus two years vis-a-vis the medical age of 17 years. In clinical examination P.W.4 found the prosecutrix to be of 18 years old, as is evident from her testimony/report. In such circumstances, it is evident that the Doctor herself has established the age of the prosecutrix to be 18 years by way of adding years to the medical age. In the above noted facts and circumstances, we have no hesitation in holding that the prosecutrix had attained age of 18 years and, therefore, age of majority on the date of the incident.

40. In view of the conclusion drawn by the court that the prosecutrix had attained age of 18 years, and, therefore, age of majority, it follows that offence under Section 363 Indian Penal Code has not been committed.

41. We are now required to consider whether offence under Sections 366 and 376 Indian Penal Code has been committed? For the said purpose, we are required to examine the entire evidence led by prosecution in this regard.

42. In context of the disputed fact whether relationship of the prosecutrix with the appellant was consensual or not, we shall first examine the circumstances under which the prosecutrix was recovered. Detailed reference to the recovery memo Exh. Ka-2 has been made hereinabove.

43. To recapitulate the facts the prosecutrix ”F’ went missing on 29.3.2010 and was recovered after approximately 15 days on 12.4.2010.

(i) Recovery memo Exh. Ka-2 dated 12.4.2010 records that the prosecutrix was recovered in the presence of police witnesses and father of the prosecutrix/P.W.1 Nand Kishore and mother of the prosecutrix/Shyama Devi P.W.2. The prosecutrix ”F’ was recovered from the doorway of the house of Deshraj appellant. Time of recovery as recorded in the document is 22.45 hrs on 12.4.2010.

(ii) From the circumstances emerging on perusal of the recovery memo, it is evident that the prosecutrix was not confined in the house of the appellant, rather was found sleeping in the doorway of the house of the appellant, without there being any restriction on her liberty.

44. A reference to the statement of the prosecutrix recorded under Section 164 Criminal Procedure Code as noticed above, would indicate that the prosecutrix ”F’ stated that about 25-26 days back the appellant took her from the village to Sitapur and from Sitapur to Ichchhapur. They stayed in the same village for about 20-25 days. Deshraj raped her 5-6 times. The prosecutrix ”F’ did not notice this because she was under spell of ”Dawa-Bhabhut’. Names of other family members of the appellant have been given as being involved in doing black magic/Dawa Bhabhut. On account of black magic, the prosecutrix ”F’ could not think straight.

(i) We have taken judicial notice of the allegation that the prosecutrix ”F’ was brought under spell of black magic/dawa bhabhoot by Kallu, Renu wife of Kallu, Dharmendra, Geeta, Aditya Mishra. Charge sheet was filed only against Dharmendra and the appellant. Dharmendra has been acquitted. The judgment of acquittal qua Dharmendra has not been challenged. It shows that even the prosecuting agency has accepted that no such black magic was exercised upon the prosecutrix. It has been accepted by the prosecution that Dharmendra had not conspired with the appellant.

45. We shall now refer to the gist of the statements of the witnesses in context of the fact whether the prosecutrix ”F’ had voluntarily of her free will and consensually gone with the appellant and had physical relations with him?

46. P.W.1 Nand Kishore has stated to the effect that appellant used to work on a brick-kiln. He had induced away the prosecutrix, who was recovered after about fifteen days. The prosecutrix ”F’ was recovered in his presence from the area of Police Station Ichchhapur.

(i) In the same context, in cross examination P.W.1 has stated that he did not know whether Deshraj had earlier been meeting the prosecutrix. The witness further stated that he did not know that his family members had seen the prosecutrix with Deshraj or not.

(ii) In the cross examination, the witness admitted that his daughter used to go to brick-kiln for work. Dharmendra also used to go to that brick-kiln for work. The witness stated that on enquiry he came to know that at about 3.00 p.m. his daughter had gone with Deshraj. Witness P.W.1 admitted that Deshraj used to come to his house.

47. P.W.2 Smt. Shyama Devi mother of the prosecutrix ”F’ has stated that Deshraj had enticed away her daughter. Deshraj used to work on bricks near the house of the witness. There is a water tap close to the house of the witness, where from Deshraj appellant used to take water. People informed that daughter of the witness was seen going towards Gosainganj and Deshraj had taken her. The prosecutrix/’F’ was recovered from the custody of Deshraj.

(i) In cross examination the witness stated that villagers Ramdev and Ram Naresh had seen Deshraj taking away prosecutrix ”F’. The witness stated that Deshraj did not frequent their house. She further stated that her daughter did not go to the brick kiln. She had not seen Deshraj with her daughter.

(ii) In regard to recovery, the witness has stated that the prosecutrix was recovered from the house of the Deshraj. The witness did not enter the house of the Deshraj. The house was open. Anybody could enter the house with ease. The prosecutrix was wearing Sari, Peticoat and blouse.

(iii) In cross examination P.W.2 further stated that she had never seen her daughter with Dharmendra. Name of Dharmendra had been given in the statement on the asking of other people.

48. The prosecutrix was examined as P.W.3 and she stated that at about 3.00 p.m. on the day of incident she was at her house. Deshraj came and took her from house to Gosaiganj. They went to the bus stop. On Vikram (mode of transport) they went to Bakshi Ka Talab. From Bakshi Ka Talab they went by train to Sitapur and thereafter to the house of the appellant. He committed bad act with her without her consent. His father was at the house. Aditya Mishra, Kallu, Renu wife of kallu, Dharmendra, Geeta and Deshraj are involved in doing blackmagic/Dua Bhabhoot.

(I) In cross examination the witness stated that she started feeling strange on being administered Dawa Bhabhoot. Thereafter, the prosecutrix would do as Deshraj would command. Sometimes she would feel alright and sometimes strange. The prosecutrix explained that these people had got Dawa Bhabhoot/black magic done at Neemsar. The witness admitted that she did not go to Neemsar. Deshraj had brought Prasad/religious offering which was given to the prosecutrix. It was in the shape of a laddoo/sweet which Deshraj had asked her to eat. The witness stated that she did not know from where the religious offering was brought. The witness further stated that she did not know that Deshraj had gone to Neemsar or who had gone with Deshraj. Deshraj did not inform the witness as to from where the prasad/religious offering had been brought.

(ii) In cross examination, the prosecutrix ”F’ admitted that she knew Deshraj since before the occurrence because he used to mould bricks. Aditya Mishra is the owner of the brick kiln. She admitted that when going via main road the brick kiln came first and thereafter the house of the prosecutrix. She admitted that she used to go to her house via brick kiln and used to see Deshraj working on the kiln. She admitted that she used to speak to Deshraj sometimes. She admitted that she knew Deshraj from earlier, however, disputed that she was in love with Deshraj.

(iii) The witness stated that on the date of incident at about 3.00 p.m. she went with Deshraj. There was no one else with them. Deshraj had come on foot. The prosecutrix met Deshraj in the field where process of moulding bricks was going on. She did not recollect what was said to her by Deshraj.

(iv) The victim clearly stated that she followed Deshraj at a distance of 2-4 steps.

(v) A question was posed as to whether on the date of incident she had gone to meet Deshraj or Deshraj had summoned her. The victim responded by saying that on the date of incident Deshraj came to her and scolded her. This fact was not disclosed either before the police or earlier to any person.

(vi) In the cross examination the witness further stated that for approximately two kilometers they went on foot. There were other people coming and going on the path. There were other passengers sitting on the vikram. How many passengers were there, she could not recollect. Deshraj took her to his house where his father also resides. She stayed there for 16 days. Other than the father, other people also used to come and go. Men and women used to visit their house. Other houses were about 100 and 150 steps away. The witness stated that she herself cooked food. The witness stated that Deshraj did bad things to her against her wish, which are done amongst husband and wife. The witness has stated that she was mentally controlled by Deshraj. No hurt was caused to her. The witness denied the suggestion that she was in love with Deshraj and had gone with him of her free will.

49. It would be relevant to note that the witness stated that she got married about one and a half years before deposing in court and has a daughter from the wedlock.

50. P.W.4, Dr. Geeta Choudhary did not find any external or internal injury on the person of the prosecutrix.

51. Ram Pravesh Pandey, Sub Inspector has been examined as P.W.-5, who was posted in Police Station Gosainganj on 2.4.2010. In cross examination, the witness has stated that at the time of recovery of prosecutrix/F, the lock of the house was not broken. The house was not even entered. Recovery of the prosecutrix was from outside the house. It was about 3 O’ Clock at night, the girl was recovered from the doorway. Deshraj was also with her. Both were lying on a cot. When police party recovered the girl, the girl did not raise hue and cry.

(i) P.W.5 has further stated that the victim stayed in Sitapur for 20-22 days of her free will. She was not questioned as to why she did not raise a hue and cry. Even the villagers did not ask her as to in what capacity, she was living there. Father aged about 55-60 years, was there who appeared to be a tuberculosis patient and was unable to speak.

52. We have considered the evidence above referred in context of the issue. For considering whether the offence in context of the prosecutrix has been committed or not, the statement of the prosecutrix would be most relevant. Prosecutrix being the victim of the offence is the person who would be able to narrate the facts and circumstances.

53. The prosecutrix examined P.W.3 has categorically stated that she went to the place where Deshraj was moulding bricks; thereafter they went on foot for about 2 kms on a path on which others were walking; the prosecutrix followed Deshraj at a distance of 2-4 steps; prosecutrix and Deshraj boarded Vikram in which other passengers were also seated; the prosecutrix and the accused went by train which is a public transport and thereafter they reached the house of the Deshraj. Recovery of the prosecutrix, as noticed above, is from the doorway while the prosecutrix was sleeping on a cot with Deshraj at the dead of night. Admittedly, the prosecutrix was not kept behind locked doors. The house where the prosecutrix lived for more than two weeks was frequented by other villagers.

54. The conduct of the prosecutrix before her recovery is relevant to be examined to see whether she had been enticed or had been coerced.

(i) From the statement of the prosecutrix the only conclusion that can be drawn is that the prosecutrix consensually went with Deshraj accused and lived in his house for more than two weeks, till the time of her recovery. The prosecutrix did not raise any alarm during the entire period. The denial of the prosecutrix as regards her love affair with Deshraj etc., are an afterthought, after she had stayed with her parents.

(ii) We have taken into account the fact that the statement of the prosecutrix under Section 164 Criminal Procedure Code was not recorded soon after her recovery, as is required under Section 164 (5A)(a) Criminal Procedure Code. The statement was recorded after 5 days of her recovery.

55. The only plea taken by the prosecutrix in explanation of her conduct is that she was under the spell of Deshraj. At places the prosecutrix has said that the accused did Dawa Bhaboot, and at other places, she has said that the accused did Dua Bhaboot. The statement of the prosecutrix that some offering was brought from Neemsar and administered to her are required to be ignored for the reason that no evidence in that regard has come on the record. It is not the case of the prosecutrix that Deshraj administered intoxicant before taking her along with himself, rather it is the case of the prosecutrix that she went to the place where Deshraj was working and thereafter they went together. In regard to consumption of religious offerings from Neemsar, there is not a whisper in the statement of the prosecutrix in her statement recorded under Section 164 Criminal Procedure Code. It is, therefore, apparent that a story has been fabricated by the prosecutrix as an afterthought .

(I) Learned Counsel for the prosecution has also not been able to justify the explanation of the prosecutrix of Dua Bhabut/Dawa Bhabhut as sufficient to justify her conduct in going with the appellant and staying with him for over two weeks.

56. This Court is required to consider whether the plea of the prosecutrix that she was subjected to black magic is an acceptable explanation or not.

57. As a court of law, this Court cannot accept the doing of Dua Bhabut/Dawa Bhabut/ Black Magic as an explanation for the conduct of the prosecutrix. The excuse and the justification for the conduct of the victim in going with the accused in various modes of public transport and staying with him for over two weeks without any resistance, as given by her, is absurd, fantastic, fanciful, fictional and imaginative, of which no judicial notice can be taken in law.

58. The Hon’ble Supreme Court of India in judgment dated 17.11.2017 while dealing with Criminal Appeal No. 677 of 2010: Kuna @ Sanjaya Behera Vs. The State Of Odisha has held as under (relevant portions only from paras 17, 21, 22 and 24):-

“17. That conviction can be based on a testimony of a single eye witness if he or she passes the test of reliability and that it is not the number of witnesses but the quality of evidence that is important, have been propounded consistently in Anil Phukhan1, Ramji Surya2, Patnam Anandam4 and Gulam Sarbar9 with the apparent emphasis that evidence must be weighed and not counted, decisive test being whether it has a ring of truth and it is cogent, credible, trustworthy or otherwise.

***********

21. The quintessence of the enunciation is that the expression “proved”, “disproved” and “not proved”, lays down the standard of proof, namely, about the existence or non existence of the circumstances from the point of view of a prudent man, so much so that while adopting the said requirement, as an appropriate concrete standard to measure “proof”, full effect has to be given to the circumstances or conditions of probability or improbability. It has been expounded that it is this degree of certainty, existence of which should be arrived at from the attendant circumstances, before a fact can be said to be proved.

22. It is on the touchstone of this legal exposition that the evidence in the case in hand, has to be appreciated. Admittedly, PW1 is the solitary eye witness to the incident. He is related both to the deceased and the accused-appellant. Whereas the deceased is his uncle, the appellant is his cousin brother. He claims to have accompanied the appellant from the video show till the place of occurrence. At the relevant time, he was admittedly intoxicated. The incident, as per the prosecution version, occurred between 1 a.m. to 2 a.m. in the intervening night of 19/20.2.2000 in the house of the deceased which was located about 15 cubits from the compound where the house of PW1 was situated . The spot map Ex. P-11 prepared by the I.O. (PW16) noticeably does not mention about any source of light in the locality. It does not even indicate as to whether the area was lighted at the time of incident so as to make the viewing of the incident possible by PW1 from the place, where he was located.

It is intriguing that though PW1 claimed that the duration of the the incident was about one hour and that the appellant first did assault the deceased from behind twice on which he (deceased) fell down, whereafter he (appellant) sat on his chest and throttled him and that co-accused Pravati Behera covered the mouth of deceased to facilitate his suffocation to death, he did not utter a sound or make a shriek or raise any alarm either to prevent the occurrence or to muster assistance from the inhabitants in the locality. This is more so as he admitted that there were about 150 to 200 inhabitants, lodging nearby apart from the fact that thehouses of his relatives as well of the deceased were almost in the same campus. His plea that he did not disclose the incident to others immediately as he had been threatened by the appellant does not explain or justify in any manner whatsoever his inexplicable silence or indifference during the time of commission of occurrence. In the overall scenario, the plea of the defence that the evidence of PW1 is highly improbable, absurd and doubtful,cannot be lightly brush aside more particularly in view of the test of essentiality of the degree of certainty, necessary to accept that the facts narrated by this witness as proved. To recall, the incident at the first place had been registered as a case of unnatural death and was after six days of the occurrence converted into one under Sections 302/203/34 IPC against the appellant and the co-accused on the disclosures made by PW1, PW5, PW6 and PW8. Apart from the fact that testimony of PW5, PW6 and PW8 can by no means be construed to be substantive in nature, these witnesses having derived the knowledge from PW1, we are inclined to accept the analysis of the materials on record on the aspect of motive as made by the Trial Court.

*************

24. On a totality of the consideration of all relevant facts and circumstances, we are of the unhesitant opinion that the evidence of PW1, as a witness of incident of murder, as projected by him is wholly unacceptable being fraught with improbabilities, doubts and oddities inconceivable with normal human conduct or behaviour and, thus cannot be acted upon as the basis of conviction. The testimonies of PW3, PW5, PW6, PW8 and PW11, even if taken on their face value, fall short of the requirement of proof of the charge beyond all reasonable doubt.

The appellant and the co-accused are thus entitled to the benefit of doubt in the singular facts and circumstances of the case. The contrary view taken by the courts below is against the weight of the evidence on record and the exposition of law attested by the decisions cited at the Bar and traversed as hereinabove.”

(emphasised by us)

59. We find that the case in hand would be covered by the judgment rendered by Hon’ble Supreme Court of India, portion of which is extracted hereinabove. The fact required to be proved by the prosecution was that the prosecutrix had been kidnapped or abducted as defined under Section 366 read with Section 362 of the Indian Penal Code. The prosecution was further required to prove that the prosecutrix was raped, as defined under Section 375 read with Section 376 Indian Penal Code. The prosecution was required to bring evidence in regard to existence of facts from the attendant circumstances.

60. In the considered opinion of the Court, the statement of P.W.3 the prosecutrix is absurd being fraught with improbabilities, doubt, oddities and, therefore, cannot be relied upon as basis of conviction. The conduct of the prosecutrix in following the appellant at a distance of 2-4 step on a common path for 2 kms where others were also coming and going, yet not raising an alarm reflects tacit consent on the part of the prosecutrix. The conduct of the prosecutrix in travelling in public transport and not raising alarm would naturally invite a conclusion that she was a consenting party. The conduct of the prosecutrix in living in the house of the accused for more than two weeks where she used to cook meals herself reflects her consensual conduct. The house was frequented by the villagers yet the prosecutrix did not raise alarm. The circumstances in which the prosecutrix was recovered viz. sleeping on a cot with the appellant in the doorway indicates her implicit consent to be with the appellant. Right from the time when prosecutrix went with Deshraj till the time she was recovered by the police party, the prosecutrix did not show any unease or distress before any person. Such silence for such a long time invites a conclusion that the prosecutrix of her own free will and accord went with the appellant to his house in public transport , had physical relations with him and lived with him till the time of recovery. In view of such evidence it cannot be held that the appellant committed offence under Section 366 Indian Penal Code, or under Section 376 Indian Penal Code.

61. From the facts and circumstances emanating from the evidences, it becomes apparent that after recovery of the prosecutrix, under the influence of her parents, the prosecutrix gave her statement under Section 164 Criminal Procedure Code indicating that she was victim of a crime. So as to justify the long stay with the accused, the story of being subjected to Dua Bhaboot/ Dawa Bhaboot has been developed. The circumstances however clearly show that the prosecutrix went with the appellant and had consensual sex with the accused willingly and without any influence of intoxication.

62. We have already held that the petitioner was aged 18 years at the time of the incident and, therefore, it is not even a case of statutory rape.

63. The Trial Court has recorded conviction of the appellant, essentially holding that the prosecutrix/victim was a minor on the date of incident. The said finding having been reversed by us for reasons recorded in the judgment, we find the judgment of conviction to be based on perverse reading and interpretation of the evidences. The statements of P.Ws. 1, 2 and 3 have not been read in the right perspective. The statements in regard to age of the prosecutrix are based on surmises and conjectures. The doctor in her statement and in reference to the medical reports has held the prosecutrix to have attained age of majority. Due credence to the medical report has not been given by the Trial Court. The Trial Court has also not considered the conduct of the prosecutrix, as noticed above, in the right perspective.

64. In view of the above, we have no hesitation in holding that offence in context of the prosecutrix has not been committed by the appellant.

65. The appeal is allowed.

66. Judgment of conviction dated 30.7.2014 passed by Additional Session Judge, Court no.15 Lucknow in Sessions Trial No. 890 of 2010, and order of sentence are hereby set aside.

67. The appellant accordingly is acquitted.

Consequently, we hereby direct that release order of the appellant be issued forthwith.

(JUSTICE SANJAY HARKAULI) (JUSTICE AJAI LAMBA)

Order Date:- 7th December, 2017

Madhu

 

 

Leave a Comment

Your email address will not be published. Required fields are marked *