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Pintu @ Ajay vs State Of U.P. on 12 July, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Judgement Reserved

Court No. – 82

Case :- JAIL APPEAL No. – 1045 of 2015

Appellant :- Pintu @ Ajay

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail,Amarnath Tiwari,Mahesh Prasad Pandey,Mohammad Khalid,Seema Pandey A.C.

Counsel for Respondent :- A.G.A.

Hon’ble Pradeep Kumar Srivastava,J.

1. Heard Ms. Seema Pandey, Amicus Curiae, and Shri Manu Raj Singh and Mrs. Alpana Singh, learned AGA for the State and perused the record.

2. This Jail Appeal has been preferred against the impugned Judgment dated 29.09.2014 passed by Additional Sessions Judge, Court No.-9, Ghaziabad, in S.T. No. 2106 of 2012 (State Vs. Pintu @ Ajay), arising out of Case Crime No. 1339 of 2012, under section 363, 366, 376 IPC, P.S. Indrapuram, District Ghaziabad by which the accused-appellant has been sentenced for the offence under section 363 IPC for 05 years rigorous imprisonment and Rs.5,000/- fine and in default in payment of fine for 01 year additional simple imprisonment, for the offence under section 366 IPC for 05 years rigorous imprisonment and Rs. 5000/- fine and in default in payment of fine for 01 year additional simple imprisonment and for the offence under section 376 IPC for 07 years rigorous imprisonment and Rs. 10,000/- fine and in case of default in payment of fine for 01 years additional simple imprisonment. All the sentences have been directed to run concurrently and it has been further directed that half of the amount of fine shall be given to the victim by way of compensation.

3. Brief facts of the case is that the FIR was lodged by informant Satveer stating that he has taken his 13 years old sister who is victim in this case from his village Mohanpur, P.S. Tilhar, Post Pirauli, District Shahjahanpur for a month to Khoda Colony, Ghaziabad. On 28.08.2012 at about 8 p.m. one Pintu kidnapped her sister from his guardianship. Pintu is aged about 35 years. It has been further stated that prior to the incident, Pintu came to his room once or twice. The kidnapping of victim by Pintu has been admitted by Pintu’s sister Radha, who lives in Bahlol Pur, Sector 63, Noida. On the basis of written report FIR was registered against the accused for the offence under section 363, 366 IPC against accused-appellant Pintu. The case was investigated and after about one month the victim was recovered and on the basis of her statement under section 164 Cr.P.C., offence section 376 IPC was added. The victim was medically examined and after investigation charge-sheet was submitted against the accused-appellant for the offence under sections 363, 366, 376 IPC for which he was tried and convicted by the impugned judgement.

4. Aggrieved by the impugned judgement this Jail Appeal has been filed stating that the impugned judgement is against law and evidence on record and he was falsely implicated. The FIR was registered after a delay of 02 days. There was no internal or external injury caused to the victim and at the time of incident she was more than 16 years in age, therefore the impugned judgement is liable to be set aside and the accused appellant is entitled for acquittal.

5. From the perusal of the record, it appears that the prosecution examined 07 witnesses in support. PW-1 Satveer is informant who has proved written report Ext-Ka-1. He has stated that his sister had gone to purchase vegetable in the neighbour locality on 28.08.2012 at 8 PM and did not return thereafter. Sister of the accused-appellant Pintu told him that Pintu has taken away his sister. He has denied the suggestion that his sister went with the accused-appellant willingly and entered into marriage with him.

6. PW-2 victim has stated that on the date of incident she was living with her brother and Bhabhi in Khoda Colony. At about 8 PM on 28.08.2012, she went to take vegetables in the local market and on the way 05 persons namely Pintu, Arvind, Soni, Ramlade and Ramvati met in a four wheeler. Pintu was driving the vehicle and remaining four persons caught her, forcibly took her in the vehicle by closing her mouth. Pintu took her to her to sister house in Haryana and kept her in a rented room, without her consent he committed rape with her several times. She was taken back by sister of Pintu to police station from where her brother Satveer got her back. She has proved her statement given before Magistrate under section 164 Cr.P.C. and her photograph thereon has been identified by her. She was cross-examined by the accused side and in the cross-examination also she continuously stating that she was raped by the accused during one month stay in Haryana. She has denied the suggestion that she was in love with accused Pintu and she herself went with him to Haryana. The defence side has got proved by her the agreement and affidavit in the form of marriage between the two, but she has stated that she was forced to sign on that. She has also denied that on 29.08.2012 both married in Bhadra Kali Temple, Kurukshetra.

7. The main question which has been addressed by the learned trial court in the judgement is about the age of the victim after a detailed discussions of evidence on record with regard to age of the victim. Learned trial court concluded that victim was below 16 years in age at the time of incident . This conclusion is based on the educational certificate in the form of transfer certificate of the victim and the medical evidence on record. In the medical evidence also it was found that the victim was about 16 years in age. The learned trial court concluded that the educational certificate where the victim was studying contains that her date of birth was 15.06.1997 and she passed IXth examination on 20.05.2011. She did not continue further after 05.07.2011 in Class -Xth and her name was struck off from the admission register. On the basis of school certificate the learned trial court concluded that her date of birth was 15.06.1997 and as such she was 15 years 13 days in age. The medical report also supports her age and she was found below 16 years in age. There appears to be no error or illegality in the conclusion of the learned trial court as the determination of the age of the victim is based on school leaving certificate as well as the medical evidence.

8. In his statement under section 313 Cr.P.C. the accused himself has stated that he and victim were in love with each other she called him on 28.08.2012 by phone and asked him to marry with her and they got married on 29.08.2012 in Kurukshetra, Haryana. They lived in Shahbad, Haryana as husband and wife. The victim has stated that during one month stay in Haryana the accused used to commit sexual intercourse with her and her age being below 16 years, even for the sake of argument, if it is assumed that she gave consent for the same, the same is immaterial and the sexual intercourse with her will come in the category of legal rape as defined in section 375 IPC.

9. The accused has examined himself as DW-1 in defence and has stated that he used to go to meet with his sister in in Tilhar, District Shahjahanpur and there he got acquainted with victim. They used to talk with each other on phone. After, some time she come to her brother in Voda Colony, Ghaziabad and there also she continued talking with each other on phone. On the date of incident, she called him on phone and said that she is standing on the side of Voda Colony. When he reached there with a vehicle, she asked him to run away because his brother is forcibly trying to marry her with some one else. He further stated that the victim told him to be of 18 years in age, from there they went to Markandey temple, Shahbad and got married in the presence of his 2-3 friends. He was informed about the police case from his friends and thereafter on 30.09.2012, he was arrested by police.

10. During cross-examination he has admitted that he took away the victim, lived with victim for a month. During that period, he entered into sexual relationship with her once in every 2 or 3 days. He has further stated that the victim gave consent for the same and she never opposed it.

11. The learned trial court, referring the judgement of the supreme court in State of Rajasthan vs Noore Khan, AIR 2000 SC 1812, Gurucharan Singh vs State of Haryana, AIR 1972 SC 2661 and Virendra Singh vs State of Haryana, 2007 Cri. LJ 2459 (PH) in which it has been laid down that sexual intercourse by a man with a woman with or without her consent when she is under the age of 16 years amounts to rape, rightly concluded that because the victim was below the age of consent, therefore, her consent is not material. In Rasool vs State, 1976 Cri. LJ 363 (All), it has been held that the consent of minor is immaterial for the offence u/s 363 IPC and it is only the consent of the lawful guardian that takes away the case from the purview of section 363 IPC. From the statement of the victim and the accused himself, it was very much established that the accused took the victim with him from the lawful guardianship of the informant. The fact is established that the accused-appellant took the victim who was under the age of 16 years out of lawful guardianship of the informant and this he did in order to compel her to marry with him and for illicit intercourse, as such the offence under section 363 and 366 IPC was established. Sexual relation being the admitted fact by the accused himself, looking to the age of the victim which was below 16 years. It is also established that he committed rape with victim. Attempt has been made from the side of defence that both married in a temple and the victim herself sworn affidavit of this fact which is on record. This argument looses its significance as the victim has herself stated that she was forced to sign on affidavit. Since, the victim was below the age of consent, the agreement of marriage in the form of affidavit filed by the defence has no legal effect. Moreover, affidavit is no proof of marriage and the victim has stated that she was raped by the accused several times against her wishes. It has also come in her evidence that she was subsequently married with someone.

12. Here, it needs to be pointed out that the Child Marriage Act, 1929 has been enacted to eradicate the evil of child marriage and it applies to all religion. It provides that child marriage means a marriage to which either of the contracting parties is a child and a child means in case of male, under 21 years in age and in case of female, under 18 years in age. It provides punishment for such male above 18 years in age contracting marriage with a female below 18 years in age. Section 5 of the Act provides punishment for a person solemnising a child marriage. The liability of such person under criminal law is that of the abettor. The offence is cognizable for certain purpose and the Code of Criminal Procedure applies thereto. The court can take cognizance of any offence under the Act before the expiry of one year. In this instant case the age of the victim has been established to be below 16 years whereas the age of the accused is more than 21 years at the time of incident. An affidavit in the form of marriage agreement bearing signatures of two witnesses namely Rampal and Suresh has been filed by defence and the same has been notarised by a notary. The court is constrained to observe that such persons must be treated to be abettors within the meaning of the Child Marriage Restraint Act. Sometimes, it is seen that marriage certificate is also issued in the name of temple or committee etc. It is observed that if such marriage has been solemnized with a female child below the age of 18 years and such persons or institutions of whatever religion have not assured themselves with regard to the age of the victim child, criminal law will apply to them and investigating agencies should also investigate the offence in the light of the Child Marriage Restraint Act. It is further observed that in such cases mere verbal saying of the child about her age is not enough and there must be some objective proof of age in terms of school certificate/medical certificate as provided under the Juvenile Justice Act.

13. The law of rape as defined in section 375 IPC makes it clear that where victim is below 16 years in age, (Now after the amendment in IPC below 18 years in age) sexual intercourse, with or without her consent, amounts to rape. The victim was living under the guardianship of the informant at the time of incident and she was taken or enticed away by accused out of the keeping of the lawful guardian without his consent and it is sufficient for constituting the offence u/s 363 IPC. The victim was so kidnapped in order to seduce or force her to illicit intercourse or to force her to marry with the accused and this is sufficient to make an offence u/s 366 IPC.

14. Therefore, in view of above discussions, I find that the learned trial court very rightly found the accused-appellant guilty of the offence under sections 363, 366, 376 IPC. I do not find any perversity and illegality in the finding of the learned trial court and conviction is liable to be upheld.

15. Another argument which has been advanced by the learned Amicus Curiae is that the accused-appellant is in jail since 30.09.2012 and as such he has already served out 6 years and 7 months in jail and therefore, it has been requested that this much of sentence must be considered to be sufficient and the accused may be released on undergone.

16. From the perusal of the section 376 IPC, it is clear that prior to the amendment of 2013 the minimum sentence which was prescribed for the offence of rape was 7 years and the learned trial court has awarded 7 years rigorous imprisonment to the accused. Clearly, the accused-appellant has already passed about 6 years and 7 months in jail and it appears that substantive period is almost complete and there is no necessity to reduce the same. The learned trial court has further awarded fine of Rs. 5000/- under section 363 IPC, Rs. 5000/- under section 366 IPC and Rs. 10,000/- under section 376 IPC and the fine so awarded is adequate and reasonable and the same is not required to be disturbed. In default in payment of fine, the learned trial court has awarded one year imprisonment for each offence. The learned Amicus Curiae has therefore requested that the default sentence is too excessive and the same may be reduced.

17. Considering the submission and taking in view that the accused-appellant is in jail continuously since 30.9.2012, the default sentence in lieu of fine may be reduced.

18. Accordingly, the conviction along with substantive sentence and fine is upheld. The default sentence in lieu of fine for the offence u/s 376 is reduced from one year to four months, for the offence u/s 366 from one year to three months and for the offence u/s 363 from one year to three months. With this modification, the appeal is finally disposed of.

19. The Amicus Curiae MS. Seema Pandey shall be paid Rs. Ten Thousand only for the assistance and legal service provided by her in conducting this appeal for the accused-appellant.

20. Office is directed to transmit the lower court record along with copy of this judgement to the learned court below for information and necessary compliance.

Order Date :- 12.07.2019

Bhanu

(Justice Pradeep Kumar Srivastava)

 

 

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