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Ashok Alias Gore Lal vs State Of U.P. on 13 February, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved

Final A.F.R.

Court No. – 83

Case :- JAIL APPEAL No. – 3490 of 2016

Appellant :- Ashok Alias Gore Lal

Respondent :- State of U.P.

Counsel for Appellant :- From Jail,Radhey Shyam Yadav

Counsel for Respondent :- A.G.A.

Hon’ble Suresh Kumar Gupta,J.

1. Being aggrieved with the judgment and order dated 21.5.2016 passed by Additional Sessions Judge, Fast Track Court No. 1, Kannauj, this jail appeal has been preferred by appellant in S.T. No. 139 of 2013, Case Crime No. 538 of 2012, under sections 363, 366, 376, 328, 506 I.P.C. Appellant has been convicted under section 363 I.P.C. for 7 years rigorous imprisonment alongwith fine of Rs. 5,000/-, under section 366 I.P.C. for 7 years rigorous imprisonment alongwith fine of Rs. 5,000/-, under section 376 I.P.C. for 10 years rigorous imprisonment alongwith fine of Rs. 10,000/-, under section 328 I.P.C. for 7 years rigorous imprisonment alongwith fine of Rs. 5,000/- and under section 506 I.P.C. for 3 years rigorous imprisonment alongwith fine of Rs. 5,000/-. In default of payment of fine, three moths further imprisonment in each. After depositing the fine, imposed upon the applicant, Rs. 25,000/- shall be given to the victim as a compensation. All the sentences shall run concurrently.

2. Brief facts of this case are as follows-:

The complainant (father of the victim) / PW-1 lodged an F.I.R. on 9.8.2012 against the appellant by way of filing an application under section 156 (3) Cr.P.C. alleging that his daughter (victim) was a student of Class VIII and on 23.7.2011 at 7.30 A.M., victim (aged about 13 years) went to school at Mochipur for studying. That after some time complainant received a call on his mobile phone by Kamlesh and Hariram. They told the complainant that his daughter was seen accompanying with appellant / Ashok @ Gore Lal and two other persons in Chhebramau Civil Court, Kannauj. That after receiving this information, complainant searched his daughter in several places but he could not succeed in locating her. The daughter of the complainant came back at her home at 4.00 P.M. on the same day told that when she was on the way of her school and reached at a deserted place, accused -appellant / Ashok @ Gore Lal alongwith one unknown person were came on a moter-cycle and abducted her and thrown her books into drain and fed her some poisonous substance and raped her one by one on the point of gun. After that they have forcefully abducted his daughter and executed written marriage agreement by obtaining the thumb impression of her daughter against her will. That due to shame of society he did not make any complaint anywhere. But when the appellant constantly started threatening to complainant by saying that I will forcefully kidnapped your daughter and get married with her and now victim is his wife. Then he went to Kannauj Police Station and made a written complaint by registered post to the S.S.P. Kannauj and other higher authorities but when no action was taken by the higher authorities, then he approached to C.J.M. Kannauj and lodged an F.I.R. Ex. Ka-2 by way of application under section 156(3) Cr.P.C. as Case Crime No. 538 of 2012 was lodged on 29.8.2012 against the appellant and one unknown person under sections 363, 366, 376, 328, 506 I.P.C. at Police Station Kannauj, District Kannauj by way of G.D. Entry (Ex.Ka-3) Serial No. 32 at 15.15 P.M. Initially the investigation was conducted by S.I. Hamid Ali (who is PW-7). S.I. Hamid Ali recorded the statement of the witnesses and prepared the site plan as Ex.Ka-8. Thereafter further investigation was conducted by subsequent Investigating Officer, Tushar Dutt Tyagi as PW-8, who after conducting the formalities of investigation, filed the chargesheet Ex. Ka-9 against the appellant before the competent court and the case was committed to the Sessions Court by Chief Judicial Magistrate, Kannauj. Thereafter learned trial court framed charge against the accused under sections 376, 363, 506, 328, 366 I.P.C. The charge is read over to the appellant and appellant denied the charge and claimed to be tried.

3. In support of the prosecution case, prosecution has examined 8 witnesses i.e. PW-1 / daughter (victim) of the complainant, PW-2 Mahesh (father of the victim), who proved the written report as Ex.Ka-2, PW-3 / Smt. Urmila (Bua of the victim), PW-4-H.C. / Ram Shankar, who is chek writer and proved chek F.I.R. as Ex. Ka-2, PW-5 / Dr. Neelima Thaigal, who proved medical examination of the victim (Ex. Ka-4 Ka-5), PW-6 / Kamlesh Katiyar, proved the date of birth certificate of the victim as well as attested photocopy of her educational qualification (Ex.Ka-6 Ka-7), PW-7 / S.I. Hamid Ali, first IO, prepared the site plan (Ex. Ka-6) and PW-8 / S.I. Tushar Dutt Tyagi, second IO, proved the charge-sheet (Ex.Ka-9).

4. After examination of these witnesses, statement of the accused -appellant was recorded under section 313 Cr.P.C. Accused/ appellant denied all the charges levelled against him and stated that due to enmity, all the witnesses had given false statements against him. No defence witness was produced by the appellant in his defence. After hearing the argument of both the parties, learned trial court has convicted the accused-appellant as aforesaid. Aggrieved with the same, accused-appellant has preferred this appeal.

5. Learned counsel for the appellant submits that impugned judgment dated 21.5.2016 is illegal, perverse and passed only on surmises and conjectures. It is submitted by the learned counsel for the appellants that F.I.R. is lodged against the applicant after approx two months of the incident after due deliberation and consultation and there were no plausible explanation regarding the delay. It is next contended that medical examination of the victim was conducted by Dr. Neelima Thaigal but as per medical examination report there is no mark of injury on the body of the victim. It is next contended that as per opinion of Dr. Neelima Thaigal, she was not sure whether any rape was committed or not so there is no definite opinion that victim was raped. It is next contended that there was no motive for appellant to commit such offence and there are several contradictions and infirmities in the statements of PW-1, PW-2 and PW-3. Further submitted that there was love affair between the victim and appellant so the victim has voluntarily entered into relationship with the appellant. It is next contended that as no definite opinion regarding rape can be given so learned trial court wrongly convicted the appellant in this case without applying its judicial mind. Learned counsel further submitted that in this scenario appellant is liable to be acquitted from all the charges levelled upon him. It is lastly contended that there is no definite opinion regarding administering of poison as there is no medical report nor any visible sign which suggest that the poison was administered by the appellant. Learned counsel for the appellant vehemently argued above sentence being highly excessive and not in commensurate with degree of offence.

6. Per contra, rebutting the above argument, the learned A.G.A. supports the judgment of conviction and order of sentence and submitted that the prosecutrix was a minor girl and appellant abducted her forcefully and committed rape. He further argued that alleged offences against the applicant are serious in nature and due to shame of society, there is delay in lodging the F.I.R., which is clearly explained by the complainant (PW-2) in his statement. He further submits that victim has clearly stated in her statement recorded under section 164 Cr.P.C. that accused-applicant had committed rape upon her on the point of gun. It is next submitted that as per her educational certificate, victim was studying in class 8th at the time of alleged incident and as per educational record, at the time of alleged offence, she was about 13 years old. It is next submitted that as per X-ray report and supplementary report, age of victim is less than 17 years. So it is clear that at the time of alleged incident, victim was minor. He further submits that impugned judgment of conviction and order of sentence is well reasoned and there is no illegality or perversity in the impugned judgment of trial court. He further submits that keeping in view the facts and circumstances and evidences tendered before the trial court alongwith the documentary evidence no interference warranted in this case.

7. In this case, prosecution has examined the prosecutrix as PW-1 and she clearly states in her statement that she was subjected to rape by accused on the point of gun against her wishes. On perusal of the statement of the witnesses it reveals that appellant was extending threats to victim and forcefully taken her to Chhibramau Court where a false document of marriage prepared by the appellant. She clearly denied that she was fall in love with appellant and also denied that she never solemnized marriage with appellant.

8. PW-2 is the father of the PW-1(victim). PW-2 has clearly stated in his statement that immediately after the occurrence he did not lodge a report for a fear of slander in the society and when he received threatening call from the appellant then he compel to lodge an F.I.R. against the appellant.

9. PW-3 is the Bua of the victim, who also supported the prosecution version and she clearly stated that on the date of alleged incident, she was also present in the house of his brother to celebrate Rakshabandhan festival.

10. One of the argument of the appellant is that there is delay in lodging the F.I.R.

11. Submission of learned counsel for the appellant is that the F.I.R. was lodged near about 2 month after the alleged incident so no reliance can be placed but on perusal of the statement of PW-2, it transpires that delay is clearly explained.

12. Hon’ble Apex Court held in State of Punjab Vs. Ramdev Singh 2004 (48) ACC 300 as under:-

“Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the same would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, same cannot by itself be a ground for disbelieving and discarding the entire prosecution version, as done by the High Court in the present case.”

13. So the contention of appellant have no force that due to delay in lodging the F.I.R., no reliance can be placed against the prosecution case.

14. Learned counsel for the appellant vehemently argued that as per medical report Ex.Ka-4 Ex.Ka-5 and as per the statement of PW-5/Dr. Neelima Thaigal as there is no mark of injury found on the body of victim and medical evidence does not support the prosecution case as no definite opinion has been recorded by the doctor with regard to the injuries inflicted on the body of prosecutrix and no definite opinion of rape has been mentioned. Before examining this aspect, it would be relevant to mention that in State of Rajasthan Vs. Om Prakash, 2002 (2) JIC Page 870 (Crime), Hon’ble Apex Court held that “there is no force in the contention that if there was any forcible sexual intercourse, it would have resulted in some injuries upon the prosecutrix. Presence of injuries are not always sine qua non to prove the charge of rape.”

Further there are catena of decisions of Hon’ble Apex Court that it is necessary for the court to have a sensitive approach when dealing with the cases of rape. It is also trite that in the case of State of Himachal Pradesh Vs. Dharmapal, (2004) 9 SCC Page 681, Hon’ble Apex Court held that “rape is a serious offence, as it leads to an assault on the most valuable possession of a woman i.e. character, reputation, dignity and honour.”

15. In State of Punjab Vs. Ramdev Singh 2004 (48) ACC 300 Hon’ble Apex Court held as under:-

“Sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity. It degrades and humiliates the victim and where the victim is a helpless innocent child or a minor. It leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by Apex Court in Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty, AIR 1996 SC 922 the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim’s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950 (in short the ‘Constitution’). The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized judge, in our opinion, is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos.”

16. In this case, it is not only the evidence of PW-1 but immediately after commission of rape the prosecutrix narrated the whole incident to her father and her Bua, who were produced by the prosecution as PW-2 PW-3. It is pertinent to mention here that on the sole testimony of the prosecutrix, conviction is sustainable in the eye of law without any corroboration of medical evidence. Prosecution by cogent and credible evidence is able to prove the charge under section 376 I.P.C. against the appellant.

17. So far as regard section 363 I.P.C. is concerned, it is clearly established beyond reasonable doubt that at the time of alleged incident, victim was below the age of 17 years, regarding this charge u/s 363 I.P.C. framed against the appellant. Section 363 I.P.C. provides that “Punishment for kidnapping.–Whoever kidnaps any person from 1[India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” Kidnapping from lawful guardianship defined in section 361 I.P.C. Kidnapping from lawful guardianship.–Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[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.”

On a plain reading of this Section, the consent of the minor, who is taken or enticed, is wholly immaterial, it is only the guardian’s consent which takes the case within its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person, which creates willingness on the part of minor to be taken out of the keeping of the lawful guardianship would be sufficient to attract this Section 361 I.P.C., as has been held by Apex Court in State of Haryana Vs. Raja Ram AIR 1973 SC 819.

18. So far as regard section 366 I.P.C. is concerned requires three principles ingredients:- “Offence punishable under Section 366 I.P.C. requires three principal ingredients (I) kidnapping or abduction to any women (II) such kidnapping or abduction must be (i) 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 (ii) 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 illegal intercourse, or (iii) by means of criminal intimidation or otherwise by enticing any women to any place with intent that she may be or knowing that she will be forced or seduced to illicit intercourse. It is immaterial whether the women kidnapped is married women or not.”

In this appeal prosecution by means of credible and cogent evidence clearly established that victim was forcefully kidnapped by the appellant in order to solemnize marriage and by deceitful means appellant force the victim to sign on the marriage certificate. So prosecution is able to prove the charge under section 366 I.P.C. against the appellant.

19. So far as regard section 328 I.P.C. is concerned ” Causing hurt by means of poison, etc., with intent to commit an offence.–Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” After perusing the statement of PW-1/victim, wherein she has stated that appellant fed her some poisonous substance but no sign or any visible injury inflicted to victim of having any poisonous substance and it is also not the case of prosecution that due to administering of poisonous substance victim become unconscious. So offence under section 328 I.P.C. is not proved against the appellant.

20. Appellant was also charged under section 376 I.P.C. which provides as “Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both: Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.” Regarding section 376 I.P.C. the maximum sentence provided for offence of rape is 7 years. Apex Court in Gopal Singh vs State Of Uttarakhand (2013) 3 SCC (Cri) 608 has propounded:-

“Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect – propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, etc. etc.”

21. Though in a case of rape, when an adult commits rape on a girl of tender age, deterrent punishment is called for, taking a lenient view is out of question. Once a person is convicted for the offence of rape, he should be treated with heavy hands and undeserved indulgence or liberal attitude in not awarding adequate sentence is improper.

22. On present scenario, the appellant is in jail since 5.1.2013 and during trial he remained in jail. Presently he is incarceration for more than 7 years. That appellant is very poor and not represented by counsel of his choice during trial so the contention of learned counsel to adopt a lenient view and award the custodial sentence to the appellant is fully acceptable.

23. Considering the peculiar facts and circumstances of the case, the appellant is acquitted against the charge under section 328 I.P.C. levelled against him. Conviction of the appellant is confirmed under sections 363, 376, 506 366 I.P.C. So on the point of conviction, appeal is dismissed. On quantum of sentence this court thinks that end of justice would be met if the appellant is sentenced to imprisonment under section 376 I.P.C. which he has already undergone. It is hereby clear that fine clause shall be unaltered. After depositing fine of Rs. 20,000/-, the victim shall entitle of Rs. 15,000/- under section 357 (2) Cr.P.C. On the point of sentence appeal is partly allowed.

24. On above terms, appeal is finally disposed off.

25. Let a copy of the judgment alongwith lower court record be transmitted to the trial court for necessary compliance.

Order Date:- 13.2.2020

Vibha Singh

 

 

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