HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. – 27
Case :- CRIMINAL APPEAL No. – 860 of 2002
Appellant :- Balak Ram And (2) Others.
Respondent :- State Of U.P.
Counsel for Appellant :- Suresh Singh,Shiv Pal Singh
Counsel for Respondent :- Govt.Advocate
Hon’ble Rang Nath Pandey,J.
1. The instant criminal appeal has been filed by the appellants against the judgment and order dated 03.07.2002 passed by Additional Sessions Judge/Fast Track Court No. 30, Barabanki in sessions trial no. 235 of 2000 arising out of case crime no. 239 of 1999 under Sections 363,366 and 376 of the Indian Penal Code (hereinafter referred to as, ”I.P.C.’) relating to Police Station Jaitpur, District Barabanki, whereby, all the appellants were convicted and sentenced to undergo five years rigorous imprisonment along with a fine of Rs. 2,000/- under section 366 I.P.C. with default stipulation. Appellant no. 1-Balakram was also convicted and sentenced to undergo seven years rigorous imprisonment with a fine of Rs. 5,000/- under Section 376 of I.PC. with default stipulation. The substantive sentences awarded to appellant no. 1-Balakram were directed to run concurrently.
2. In brief, the prosecution story is that on 15.12.1999 at 12:30, a report to this effect was lodged by complainant Ganga Ram Yadav that Balak Ram with the help of Shesh Ram and Malti, had eloped with his daughter. In order to deceive us, Balak Ram went with his suitcase in the day but again came back in the village after 9.P.M. On the basis of this, case crime no. 239 of 1999 under Section 363, 366 of Indian Penal code was registered. Thereafter, during investigation the daughter of the complainant Bhanu Kumari was recovered. Her statement was recorded under Section 164 Cr.P.C. Medical Examination was conducted and collecting all the evidences, Charge-sheet had been filed in the Court concerned.
3. In order to prove the case, PW-1 Ganga Ram, PW-2 Dr. P.C. Dubey, PW-3 Dr. Ranjana Khare, PW-4 Bhanu Kumari (victim ), PW-5 Head Constable Ram Vilash and PW-6 Ram Badan Singh (Investigation Officer) were examined by the prosecution.
4. After the prosecution evidences, statements of the accused persons were recorded under Section 313 Cr.P.C. in which they denied the incident and stated the fact of delivery of false testimony due to enmity by the witnesses and accepted to give the defence. In their defence, accused persons have got examined D.W-1 Ramprakash and produced the copy of the Family Register. This family register has been got proved by D.W. 1 Ram prakash, which is marked as Exhibit Kha-2.
5. Learned trial Court after hearing the prosecution as well as defence found appellants guilty and sentenced them as above.
6. Aggrieved by the order, the accused-appellants approached this Court by way of filing instant criminal appeal.
7. According to counsel for the appellants, the theory of rape was not at all supported by the medical evidence. PW-3 Dr. Ranjana Khare, who had seen and examined the victim girl, has stated in her statements that on 17.1.2000 she had conducted the medical examination of Jullu alias Bhanu Kumari daughter of Gangaram. On the general check-up, prosecutrix was found average built, breasts were developed. There was no injury near the reproductive organ. She further stated that on the basis of the report supplied by the Radiologist, she concluded that the age of prosecutrix was 18 years and no definite opinion can be given regarding rape.
8. It was one of the main contentions of counsel for the appellants 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 of Cr.P.C. that she had eloped with Balak Ram out of her own will. She had neither been abducted by anyone nor her rape was committed by Balak Ram. It was also argued that prosecutrix Bhanu Kumari herself had admitted in both, the examination-in-chief and cross-examination, that the wrong act had been committed with her. It is also stated that wrong act does not mean rape, nor committing wrong act falls under the legal definition provided in Section 375 of the Indian Penal Code. There were major contradictions between the statement made under 164 of Cr.P.C. and another one made before trial court.
9. According to prosecutrix in her statement under Section 164 of Cr.P.C., her age was 21 years of age, meaning thereby, the prosecutrix was a major party and according to statement of P.W.-3 Ranjana Khare there is no internal or external injury on the private part of the prosecutrix.
10. The witness does not corroborate the story of prosecution. The story of the prosecution found fabricated and circumstances of the case has failed to prove under Section 366 and 376 of the Indian Penal Code. The trial court has not considered the matter in proper manner.
11. Before adverting to the arguments advanced on behalf of the appellants, I would examine in general the scope and intent of Section 363 and 366 of the I.P.C.
12. 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 lawful 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.
13. 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. 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.
14. 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.
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. 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.
15. I have heard the learned Counsel for the parties 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. The learned Counsel for the respondent on the other hand controverted this contention. Since the fate of this case hinges mainly upon the evidence on record, it would be proper to take reappraisal of this evidence, as discussed above.
16. 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.
17. The basic idea behind these principles is that the liberty of an individual is a most valuable and fundamental right which inheres in him and it should never be jeopardised unless the court, after bringing its judicial experience and acumen to bear upon the facts placed before it, comes to an inescapable conclusion that the guilt against the accused before him has been proved beyond all reasonable doubt. No doubt in the present times there has been certain amount of relaxation and latitude in the manner of proof qua certain type of offence like sexual offence against females or cruelty to them in the matrimonial home etc. but all the same the foregoing principles stand unabridged and unscathed like beacon light for the judicial courts.
18. 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.
19. A bare perusal of the trial court order reveals that prosecutrix herself stated in her statement made under Section 164 of Cr.P.C., she went with accused appellant with her own will. She further stated that she resided with accused appellant for a span of one month with her consent. But, learned trial court has failed to appreciate the aforesaid and while ignoring the aforesaid statement made by the prosecutrix herself, itself observed that she might be in dangerous that is why she did not raise any alarm within a span of one month and in para 35 of the impugned judgment the learned trial court further observed that the prosecutrix had not even uttered that she had penetration from accused but learned trial court while stretching its imagination observed that if, she slept with the accused, she had definitly intercourse with the accused-Balakram.
20. After perusing aforesaid, it appears that the learned trial court forgot to travel in and around theme of the charge framed by him against the appellants. It may be a guess work as to how and in what manner things happened but to base the entire reasoning solely on guess work and give concrete shape to such assumption and then to construe facts and circumstances of the case falling in line with the evidence on record appears to be a futile attempt which attempt altogether acts like a paradox.
21. While appreciating evidence vis-a-vis facts, it was incumbent on the trial court to have angled things from a common platform and would not have deviated from that platform as and when the evidence took another turn.
22. Pointer is that the trial court should evaluate evidence in its existing form, should not tinge it with his passionate reasoning so as to give a different construction than the one which is naturally reflected and forthcoming. The entire judgment is on the whole creation of fanciful reasoning with pick and choose presuming facts with indomitable obstinacy and taking things for granted, thus, basing conclusion on unfounded evidence.
23. Learned counsel for the State has submitted that the victim was below 15 years of age at the time of occurrence while learned counsel for the appellants has submitted that she was about 20 years of age or more than 20 years. The prosecutrix while stating on oath before the Court had herself stated her age as 20 years. In light of above facts, she was major at the time of occurrence.
24. 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.
25. 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’.”
26. Having considered the whole prosecution and defence version, it is found that the prosecution was a consenting party and willingly went with one of the appellants. 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 persons have 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. In light of the material contradictions and inconsistencies creeping in the statements of the prosecution witnesses, the defence version seems to be just and reasonable.
27. Now once, it is held that the preponderance of probabilities is that the prosecutrix had voluntarily gone with the accused appellants 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-appellants and once this Court reaches this conclusion the offence under Section 366 automatically falls to the ground.
28. 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 one of the accused appellants for more than one month voluntarily with her free will and consent to follow and to reside and never objected, 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 evidence is that she was above 20 years of age at that time. Then there is also no doubt that on the facts and in the circumstances of the case the prosecutrix was a willing party. Any way by no stretch of imagination can it be said that this sexual intercourse between her and the accused was under circumstances to which any of the five situations or ingredients set out under Section 375 of the I.P.C. are attracted and as such the accused appellant no. 1-Balak Ram is not guilty of the offence of rape.
29. In view of the above discussion, the appeal is allowed. The conviction and sentence passed against the accused appellants under Sections 363,366 and 376 of the Indian Penal Code is set aside and the appellants are acquitted on all counts. The fine, if realised, be refunded to them forthwith. If the appellants are in imprisonment they are liable to be set at liberty at once if not required in any other criminal case and in case they are on bail they need not surrender to their bail and the bail bonds are discharged. The case property shall be dealt with in a manner as directed by the trial court.
30. Lower Court’s record be sent back.
Order Date :- 20.12.2017