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Shareef vs State Of U.P. on 21 October, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.

Reserved on : 20.09.2019

Delivered on : 21.10.2019

Court No. – 79

Case :- JAIL APPEAL No. – 4305 of 2014

Appellant :- Shareef

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail,Awadhesh Kumar Mishra

Counsel for Respondent :- A.G.A.

Hon’ble Ram Krishna Gautam,J.

1. This appeal under Section 374(2) read with Section 383 of Code of Criminal Procedure (hereinafter referred to as ‘SectionCr.P.C.’) has been filed against the judgment of conviction and sentence made therein by Court of Additional Sessions judge, Court No. 5, Ghaziabad, in Sessions Trial No. 572 of 2013, arising out of Case Crime No. 1469 of 2011, under Sections 363, 366 and 376 of I.P.C., Police Station Loni, District Ghaziabad, wherein convict-appellant Sharif son of Babu has been convicted for offence punishable under Section 363, 366 and 376 I.P.C. and thereby he has been sentenced with three years rigorous imprisonment and fine of Rs. 3,000/- and in default of making payment of fine, rigorous imprisonment of six months under Section 363 of I.P.C., five years rigorous imprisonment with fine of Rs. 5,000/-, and in default one years additional rigorous imprisonment for offence punishable under Section 366 of I.P.C., ten years rigorous imprisonment and fine of Rs. 10,000/-, and in default two years additional rigorous imprisonment under Section 376 I.P.C., with a direction for concurrent running of sentences and adjustment of previous imprisonment, if any, in this very case crime number, as per Section 428 of Cr.P.C.

2. Memo of appeal contends that trial Court failed to appreciate facts and law placed upon record. There was no proof of rape with victim nor it was medically corroborated. First Information Report was delayed and no reason for this delay, was given. Prosecutrix was major, thereby, capable to understand her wellness. It was a fleeing with someone else but convict-appellant has been falsely implicated in this case crime number, having no independent eye-witness account. He was having no concern with prosecutrix. No circumstantial evidence was against him nor it was medically corroborated for offence of rape. Even then, judgment of conviction was awarded by trial Court, which was based on surmises and conjunctures. Prosecution failed to prove charge beyond reasonable doubt and convict-appellant was entitled for benefit of doubt. Prosecutrix is mother of one healthy child and she never said that convict-appellant is father of that child. Hence, this appeal.

3. From the very perusal of record of lower court, it is apparent that First Information Report, Ex.Ka-1, was got lodged at Police Station Loni, District-Ghaziabad on 28.12.2011 at 09:15 hrs., for an occurrence of 11.12.2011, upon the report of Jameel, son of Mateen, against Sharif, Sheru and Sonu son of Babu and Noor Hasan son of Ismail, all resident of Badarpur, Loni, Ghaziabad, for an offence punishable under Sections 363, Section366 I.P.C., with contention that Jameel’s daughter prosecutrix “R”, aged about 15 years, was enticed and taken away on 11.11.2011 by Sharif son of Babu, aged about 45 years with 5 kids. Sharif was residing in a rented portion of a house of Nanhe, situated at Yamuna city. He was used to visit applicant’s house. On above date of occurrence, entire family members, except prosecutrix “R”, were out of home, for attending a marriage ceremony and prosecutrix “R” was all alone at home. Prosecutrix “R” had taken cash of Rs.1,00,000/- and ornaments, with her. She was vehemently searched. But of no trace. This fleeing was assisted by his brothers Sheru, Shabu both son of Babu and his brother-in-law Noor Hasan son of Ismail, resident of Badarpur, Loni, Ghaziabad. Sheru and others are aware of their trace. Hence, this report for legal action.

4. On 05.01.2012, while S.I. Rajpal Singh Tomar along with his police team, after moving from police station vide G.D. Entry No. 17 by 08:35 p.m., with regard to investigation and search of prosecutrix of Case Crime No. 1469 of 2011 under Sections 363, Section366 I.P.C., was busy in area of his police station, he met with police team led by other Sub-Inspector and an information was received that prosecutrix along with accused, is present at Loni triangle. They were in get up of someone else. Police team rushed on spot, on the way, informant Jameel, father of prosecutrix, met together. They went on spot. Jameel identified his daughter. The person present thereat could manged to run from spot. Prosecutrix “R” was apprehended at 10:00 A.M. Recovery memo, Ex. Ka-2, was prepared on spot. Her statement, under Section 164 of Cr.P.C. was got recorded. She was medically examined and her Medico Legal Report was got prepared. Her age determination test was got conducted, wherein she was held to be of 18 years. Spot map, Ex. Ka-4, was prepared. Investigation resulted submission of charge-sheet Ex.Ka-6, for offence punishable under Sections 363, Section366 and Section376 I.P.C. against Sharif, Sheru, Sabu, Sanu and Noor Hasan. Magistrate took cognizance over it on 31.3.2013. As offences punishable under Sections 363, Section366 and Section376 I.P.C. were exclusively triable by Court of Session, hence, file was committed to Court of Session by Court of Chief Judicial Magistrate, Ghaziabad, where Session Judge, vide order dated 28.3.2013, registered sessions trial number and then after vide order dated 28.3.2013, file was made over to A.S.J. Ist, Ghaziabad, wherein, learned counsel for the State and learned counsel for the defence, were heard and vide order dated 2.4.2013, charge for offences punishable under Sections 363, Section366 and Section376 I.P.C. were framed against Sharif whereas charge for offences punishable under Sections 363 and Section366 were framed against Sheru, Sabu, Sonu and Noor Hasan. The same is being written in its English translation by Court itself, the vernacular part is not being reproduced.

I, Shankar Lal, Additional District and Session Judge, Ghaziabad, Court No. 5, do hereby, charge you, Sharif:

“(1) That on 11.11.2011 at any time at Jamuna City, Badarpur, within area of Police Station Loni, District Ghaziabad along with your other friends enticed minor girl of Jameel, prosecutrix, aged about 15 years and thereby kidnapped from her lawful guardianship of her legal guardians. Thereby you committed offence of kidnapping punishable under Section 363 of I.P.C. within the cognizance of above Court.

(2) That on above date, time and place, you did kidnapping of minor daughter of informant Jameel, from his legal guardianship with intent that she will be compelled to marry or likely to marry or likely that she will be forced or seduced to illicit intercourse, thereby committed offence punishable under Section 366 of I.P.C. within the cognizance of above Court.

(3) That on above date, time and place, you enticed and thereby kidnapped minor prosecutrix daughter of informant and took her somewhere else where you committed rape against her wishes. Thereby, committed offence punishable under Section 376 of I.P.C. within the cognizance of this Court.”

——Sd——-

I, Shankar Lal, Additional District and Session Judge, Ghaziabad, Court No. 5, do hereby, charge you, Sheru, Sabu, Sonu and Noor Hasan:

“(1) That on 11.11.2011 at any time at Jamuna City, Badarpur, within area of Police Station Loni, District Ghaziabad along with your other friends enticed minor girl of Jameel, prosecutrix, aged about 15 years and thereby kidnapped from her lawful guardianship of her legal guardians. Thereby you committed offence of kidnapping punishable under Section 363 of I.P.C. within the cognizance of above Court.

(2) That on above date, time and place, you did kidnapping of minor daughter of informant Jameel, from his legal guardianship with intent that she will be compelled to marry or likely to marry or likely that she will be forced or seduced to illicit intercourse, thereby committed offence punishable under Section 366 of I.P.C. within the cognizance of above Court.”

——Sd——-

5. Charges were read over to accused persons. Who pleaded not guilty and claimed for trial. Prosecution examined informant PW-1 Jameel, PW-2 and prosecutrix ‘R’, daughter of Jameel, PW-3, Dr. Sumata Talib, PW-4 Sarfaraj, PW-5 Smt. Vakeela, PW-6 Investigating Officer S.I. Rajpal Singh Tomar, PW-7 Constable Rahul Kumar.

6. With a view to obtain explanation, if any, and version of accused persons, their statements were got recorded under Section 313 of Cr.P.C. wherein each of accused persons gave one and same answer to each of the questions put to them under Section 313 of Cr.P.C. In answer of each questions that testimony of PW-2, PW-6 are wrong. Regarding testimony of PW-3 Dr. Sumata Talib about Ex. Ka-3 and Medico Legal Examination made on prosecutrix as well as testimony of PW-6, regarding preparation of recovery memo Ex. Ka-2, thereby determination of age by medico legal age determination wherein age of prosecutrix was held to be of 18 years, has not been submitted. Each of accused persons replied that they are innocent and they have been falsely implicated in this very case crime number.

7. No evidence in defence was there.

8. After hearing learned Additional District Government Counsel (Cri) and learned counsel for the defence, the impugned judgment of conviction and sentence was made therein, regarding convict Sharif for offence punishable under Section 363, Section366 and Section376 and judgment of acquittal of those charges, leveled against Sheru, Sabu, Sonu and Noor Hasan, was passed.

9. No state appeal or appeal by prosecutrix or informant, against judgment of acquittal, passed for accused Sheru, Sabu, Sonu and Noor Hasan, is there on record. This appeal is limited against judgment of conviction and sentence passed therein for convict-appellant Sharif, who has been convicted and sentenced as above.

10. Heard Sri Madhvendra Singh, Advocate, holding brief of Sri Awadhesh Kumar Mishra, learned counsel for the appellant as well as Sri Munne Lal, learned AGA for the State.

11. Learned counsel for the appellant argued that charge was made for offence of kidnapping of a minor girl of informant, whereas she has been held to be of 18 years of age in medical age determination. Hence, neither she was minor nor of unsound mind. Being above 18 years, offence punishable under Section 363 I.P.C. is not made out. Same was the situation for offence punishable under Section 366 I.P.C. Because in Ex.Ka-1, itself it was mentioned that prosecutrix had eloped herself with preparation by taking Rs. 1 lac in cash and golden ornaments. She was major and held to be of 18 years in medical age determination, hence, she went upon her own volition, after making preparation by taking Rs. 1 lac and golden ornaments, while fleeing. Hence, it was not kidnapping or abduction, with above essential ingredients of having intention that she will be compelled to marry or likely to marry or likely that she will be forced or seduced to illicit intercourse. Co-accused persons Sheru, Sabu, Sonu and Noor Hasan, against whom, same set of evidence was there, have been acquitted of the offence of kidnapping and abduction with a view that she will be compelled to marry or likely to marry or likely that she will be forced or seduced to illicit intercourse. No appeal against above judgment of acquittal is there. Hence, there was no proof beyond reasonable doubt for those offences against convict-appellant Sharif too. Regarding offence of rape, there is material contradiction, exaggeration and embellishment, with no corroboration from medical evidence or independent eye-witness account. Even then, above conviction with above deterrent punishment, is there.

12. There remained single testimony of prosecutrix, that too, with major contradiction. Convict-appellant has been sentenced with ten years rigorous imprisonment, which is the highest one for offence punishable under Section 376 I.P.C. and he is languishing in jail since 11.11.2011. Punishment awarded is of maximum ten years, out of which seven years has been served by convict-appellant. Whereas, punishment for offence of rape, provided under Section 376 of I.P.C., was imprisonment of either description of a term, which shall not be less than seven years, which may be for life or for a term which may extend to ten years and shall also be liable to fine and the maximum sentence of ten years with fine of Rs. 10,000/-, has been imposed whereas minimum sentence was seven years without fine but the Presiding Judge has sentenced with ten years rigorous imprisonment and fine of Rs. 10,000/-, which shows that second portion of punishment has been exercised, in which maximum sentence of ten years with fine of Rs. 10,000/-, has been awarded. Hence, this Court of appeal to give a sentence for period already undergone.

13. Sri Munne Lal, learned AGA argued that trial judge has rightly appreciated facts and law, placed before it and has convicted appellant Sharif for offence punishable under Section 363, Section366 and Section376 I.P.C., wherein sentence of three years rigorous imprisonment with fine of Rs. 3,000/-, and in default six months additional imprisonment under Section 363 I.P.C., five years rigorous imprisonment and with fine of Rs. 5,000/-, and in default one year additional imprisonment under Section 366 I.P.C. and ten years rigorous imprisonment and with fine of Rs. 10,000/-, and in default one year additional imprisonment under Section 376 I.P.C. has been awarded, which was adequate sentence in perspective of fact of circumstances, in which accused being relative of prosecutrix and of being 45 years of age, enticed prosecutrix, was minor and committed rape with her. He was having siblings, even then committed this offence. Hence, even on the point of sentence, appeal be dismissed.

14. Apex Court in SectionNarbada Prasad vs Chhagan Lal And Ors AIR 1969 SC 393, has held that in an appeal the burden is on the appellant to prove how the judgment under appeal is wrong? He must show where the assessment has gone wrong? In criminal trial Apex Court in SectionKali Ram vs State Of Himachal Pradesh AIR 1973 SC 2773, has propounded that the onus is upon the prosecution to prove the different ingredients of the offence and unless it discharges that onus, the prosecution cannot succeed. SectionIn Partap vs The State of U.P. AIR 1976 SC 966, Apex Court has held that prosecution has to prove case beyond all reasonable doubt whereas accused is to prove only establishing preponderance of probabilities. Though Apex Court in SectionShankarlal Gyarasilal Dixit vs State Of Maharashtra AIR 1981 SC 765 has propounded that feasibility of defence does not shape prosecution case and suspicion how so strong cannot take place of proof.

15. Section 363 I.P.C. provides:- “whoever kidnaps any person from 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 has been defined under Section 361 I.P.C. that “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, i.e. for punishment of offence under Section 363 I.P.C.” Section 361 I.P.C. and its ingredients are to be proved, which requires taking or enticing of a minor under 16 if male and under 18 if female, from lawful guardianship or a person of unsound mind of any age, without consent of that guardian. Apex Court in SectionThakorlal D. Vadgama vs The State Of Gujarat AIR 1973 SC 2313, has propounded the words “whoever takes or entices any minor” under Section 361 I.P.C. and observed as to what actually means. According to the Supreme Court, the word “takes”, does not necessarily connote taking by force and does not confined to use of force, actual or constructive. These words merely mean “to cause to woke”, “to support” or “to get into possession”. The gravamen of this offence under Section 361 I.P.C. lies in the taking or enticing of a minor, specified in this section out of the keeping of the lawful guardianship without the consent of such guardian.

16. 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. In the present case, Ex. Ka-1, First Information Report was got lodged by PW-1 Jameel, who, in his cross-examination, has said prosecutrix to be of 15 to 16 years and she was missing since evening of 11.11.2011. This occurred, while this informant and other family members, were not at their house and prosecutrix eloped with cash of Rs. 1 lac and ornaments of gold and silver and when being searched, it was apprised by Sarfaraz and his wife that Sharif had come and had taken prosecutrix with him. Meaning thereby, Ex.Ka-1, was got reported on the basis of information given by Sarfaraz and his wife and this witness is not eye-witness account of same. He, in his cross-examination, has specifically said that he is not aware as to when and with whom his daughter went. Whereas, prosecutrix has been held to be of 18 years of age in medico legal examination, wherein, she was written to be of 18 years by Medical Board of Chief Medical Officer, Ghaziabad. She, in her examination, was having with no mark of injury over her person. Hence, prosecutrix being of 18 years, was major and she had gone with preparation by taking cash of Rs. 1 lac and golden and silver jewelry with her. Hence, this was not an enticing or kidnapping of any person from India or from lawful guardianship because the essential ingredients of kidnapping from lawful guardianship, provided under Section 361 of I.P.C., could not be proved. Hence, the conviction and sentence awarded by trial Court for offence punishable under Section 363 of I.P.C., was not substantiated with evidence on record, for which this appeal is to be partly allowed.

17. Regarding offence punishable under Section 366 of I.P.C., prosecutrix being major had gone with convict appellant with preparation by taking Rs. 1 lac in cash and golden and silver ornaments with her, as was written in Ex. Ka-1. Recovery memo, Ex. Ka-2, reveals that prosecutrix was recovered from Loni Tiraha and she had never made any protest or any complaint in between leaving house and recovery at Loni. Prosecutrix, in her statement recorded under Section 164 of Cr.P.C., Ex. Ka-1, has said herself to be of 15 years and has admitted that she went with Sharif with cash of Rs. 1 lac at Agra, where she resided for two months. But she never lodged any protest or any report about his abduction or kidnapping. Hence, offence punishable under Section 366 of I.P.C. was also not proved beyond reasonable doubt. Rather, it was a consensual fleeing by prosecutrix, who was major and had left her home with preparation by taking Rs. 1 lac in cash and golden and silver ornaments. Hence, the conviction and sentence awarded for this offence punishable under Section 366 of I.P.C., was not substantiated by evidence on record, for which this appeal merits its allowance.

18. Regarding charge No. 3 i.e. offence of rape, punishable under Section 376 I.P.C., Section 375 of I.P.C. provides “A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:–

(Firstly) — Against her will.

(Secondly) –Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) –With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

(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 sixteen years of age. Explanation.–Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

(Exception) –Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

19. Section 376 I.P.C. provides for punishment of rape that – (1) “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.”

20. Prosecutrix, PW-2, in her statement recorded under Section 164 of Cr.P.C., Ex. Ka-1, has categorically said that she was forcibly subjected to rape. She has proved her testimony recorded under Section 164 of Cr.P.C., Ex. Ka-1. In her cross-examination, there is no material contradiction, exaggeration or embellishment on this part of her testimony. Rather, she has reiterated that the accused was subjecting her to rape. Though, a lengthy cross-examination at various stages has been made by learned counsel for the defence but rather offence of rape, there is no material variance.

21. PW-3, Dr. Sumata Talib, in her testimony has formally proved Ex.Ka-3 (Medico Legal Report). There is no contest on her testimony.

22. PW-6, Sub-Inspector Rajpal Singh Tomar, in his testimony, has proved that while deputed as Investigation Officer of this case crime number, he got prosecutrix medically examined. Then after, her statement was got recorded under Section 164 of Cr.P.C. Spot map was got prepared. Formal proof of Ex. Ka-4 and Ex.Ka-5, was made by this witness.

23. PW-7, Constable-Clerk Rahul Kumar, who has formally proved registration of this case crime number, chick FIR and G.D. Entry of same, Ex.Ka-6 and Ex.Ka-7. There is no variance in his testimony.

24. PW-4, Sarfaraz, is hostile witness, who has denied that he had ever disclosed the fact that Sharif had taken prosecutrix and this was disclosed by him to informant.

25. PW-5, Shakeela, wife of Sarfaraz, who too, had resiled from this statement of informant PW-1. These were the evidence, who given by prosecution on record. Hence, under all above evidence, the offence punishable under Section 376 of I.P.C. was proved beyond doubt and for which there was conviction by trial Judge.

26. Moreso, learned counsel for the appellant has pressed his appeal on the point of sentence, with request of imposing sentence of period undergone. Hence, judgment of conviction is not so being disputed.

27. Regarding Section 376 I.P.C., the minimum sentence provided for offence of rape is seven years and in case of punishment, less than seven years, Court is required to write reasons being adequate and special reasons to be mentioned in the judgment for imposing a sentence of imprisonment for a term less than seven years.

28. Apex Court in SectionGopal 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.”

29. 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 offence of rape, he should be treated with heavy hands and undeserved indulgence or liberal attitude in not awarding adequate sentence is improper. As per law laid down by Apex Court in SectionState of U.P. vs. Babu Lal, AIR 2008 SC 582, the adequate and proper sentencing is to be made.

30. In the present case, convict-appellant has been sentenced with ten years rigorous imprisonment. Prosecutrix, who was major, was subjected to rape. Under all above facts and circumstances, award of eight years rigorous imprisonment with fine of Rs. 10,000/-, and in default two years rigorous imprisonment will proved to be adequate sentence.

31. Accordingly, this appeal is to be partly allowed regarding conviction and sentence awarded for offence punishable under Sections 363, Section366 and Section376 I.P.C., hence, the conviction and sentence awarded by trial Court is being amended as follows:-

Order

(1) Convict-appellant Sharif is being convicted for offence punishable under Section 376 I.P.C. He is being sentenced with eight years rigorous imprisonment and fine of Rs. 10,000/-, and in default two years additional rigorous imprisonment for offence punishable under Section 376 I.P.C. His previous incarceration in this very case crime number shall be counted towards this sentence under Section 428 of I.P.C. He is being acquitted of the charge leveled for offence punishable under Sections 363 and 366 of I.P.C.

(2) Copy of the judgment along with lower Court record be transmitted to trial Court for amendment of warrant of conviction and sentence as per above conviction and sentence and for follow up action.

Order Date :- 21.10.2019

Kamarjahan

 

 

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