HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Case :- CRIMINAL APPEAL No. – 96 of 1997
Appellant :- Shoib Alias Chhotey Mian Ansari
Respondent :- State Of U.P.
Counsel for Appellant :- B.K.Shukla,R.P. Yadav,Rudra Pratap Pal,Vikas Saraswat
Counsel for Respondent :- Govt. Advocate,Vimlesh Kumar Kashyap
Hon’ble Sheo Kumar Singh-I,J.
1. This criminal appeal is directed against the judgment and order dated 13.02.1997 passed by Additional Sessions Judge, Court No.6, Sitapur, in Sessions Trial No.251 of 1993 whereby and whereunder accused appellant Shoib alias Chhotey Mian Ansari son of Munshi Hashmat resident of Mohalla Bhattha, Kasba Mahmoodabad, Thana Mahmoodabad, District Sitapur, was convicted for the offences under Sections 363 IPC two years rigorous imprisonment with fine of Rs.500/-, under Section 366 IPC five years’ rigorous imprisonment with fine of Rs.1000/-, under Section 342 IPC six months’ rigorous imprisonment and under Section 376 IPC ten years’ rigorous imprisonment with fine of Rs.2000/-. In default of payment of fine, he was directed to undergo three months, six months and nine months rigorous imprisonment. All the sentences were directed to run concurrently.
2. In brief, the prosecution story is that the complainant with his family members was sleeping in the house. The victim, daughter of the complainant, was living with her parents. It is alleged that in the night of 12.01.1990, the accused appellant had carried the victim from the house of her father, when she came out of her house to answer nature’s call sometimes after midnight or before 4.00 or 5.00 AM, after the appellant with other co-accused covered the mouth of the victim so that she may not be able to raise any alarm. After that accused had brought the victim to nearby houses and compelled her to sexual intercourse and later on took her to Barabanki and remained there for some days. In the morning when the father of the victim, not finding her daughter in the room, inquired then she was not traced out in the house and it is alleged that the first information report was lodged to the police station. However, the application or report which was said to be communicated to the police authorities is not traceable on record and aforementioned first information report was lodged on the basis of a written information dated 05.02.1990 Ext. Ka-1 which was addressed to Superintendent of Police, Sitapur, who directed the Station House Officer, Mahmoodabad to register the case and investigate the matter. After investigation, the Investigating Officer submitted charge sheet under Sections 363, 366, 376 and 342 IPC against two brothers Shoib alias Chhotey Mian Ansari and Uber Ansari, both sons of Hashmat Ali Ansari.
3. After taking cognizance, the case was committed to the court of sessions for trial and at the commencement of the trial before the learned Additional Sessions Judge the charges were framed against the accused in respect of the aforesaid offences. The accused, however, did not plead guilty of the charges and claimed for trial.
4. The prosecution then examined the witnesses to bring home the offences to the accused.
5. Statement under Section 313 Cr.P.C. was recorded in which the accused denied the charges and submitted that there were certain sorts of settlement of marriage but due to some reasons, it was not finally settled and the accused was falsely implicated.
6. The trial court on basis of evidence on record came to the conclusion that the present appellant namely Shoib alias Chhotey Mian Ansari was instrumental behind this and was found guilty and was punished as above. But Uber Ahmad was not found guilty and was acquitted from charges levelled against him. Aggrieved by the order, present appeal has been filed on the following grounds:-
I. That the findings of the court below are perverse and erroneous and not proved by medical evidence.
II. That there was no motive to commit the offence.
III. That none of the independent witness had been examined by the prosecution and the story of the prosecution is highly improbable.
IV. That there are major contradictions, inconsistencies and improbabilities in the evidence of the victim as well as the complainant and there is nothing like recovery of the victim or even the evidence of kidnapping.
V. That on the same theory of evidence the co-accused has been acquitted but the present appellant has been convicted for the charges levelled against him.
7. Learned counsel for the appellant has submitted that the case of kidnapping or abduction has not been proved by the prosecution and before proceeding to analyze the offence mentioned under Section 376 IPC there must be cogent and reliable evidence to rely the case of kidnapping from lawful guardianship by the accused appellant.
8. 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.
9. 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.
10. 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.
11. 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.
12. 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 not 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 but proper to take reappraisal of this evidence.
13. The prosecution story reveals that after the midnight or at about 4.00 or 5.00 AM when the victim came out of the house, the accused appellant took away her by covering her face by blanket or some clothes. The victim is not sure whether it was midnight or it was 4.00 or 5.00 AM. She is also not sure whether she was covered by blanket or by a plain cloth.
14. It is submitted by learned counsel for the appellant that the complainant was working as official of Treasury office and he was residing in official accommodation on first floor and the bathroom was inside the house. There was no need to come out of the gate for nature’s call. Thus, the theory that the victim came out of the house for nature’s call is improbable and not believable. Secondly when the door was closed from the outside, nobody can catch the victim without opening the door. There was no hue and cry by the victim while she was in her house and more than six or seven family members were there at that point of time. Thirdly there was no means to go on the first floor without any external aid and there was no such aid as narrated by the prosecution. The prosecution story as narrated in the first information report reveals that the victim was taken away somewhere else in Barabanki district. PW-1, the victim, had narrated that she never went to Barabanki or Bahraich. The story reveals that the complainant came to know the kidnapping of her daughter through one of his neighbour but she was not examined before the Court and she had never stated that she saw the appellant taking away the victim, the daughter of the complainant. The complainant had stated on oath that when his daughter was not found in the house, he intimated the police by naming two persons as accused who happened to be Shoib @ Chhotey Mian, present appellant, and second his brother. There is no means of knowledge or information as to how he came to know that present appellant took away his daughter. PW-1, the victim, had stated on oath that she had never seen the appellant and thus learned counsel for the appellant has submitted that without identification by the victim, naming of appellant in the first information report or even investigation without identification is defective and against the provisions of law. There is no medical report regarding rape and it has come on record that the complainant himself had intimated to the police authorities that he did not want his daughter to be medically examined. It is the theory of the prosecution that the victim was recovered from the possession of the accused and was given into the custody of the complainant and the accused was taken into custody. On this point, there is nothing on record that the victim or the accused at any point of time was taken into custody or given in the custody of the guardian. PW-1, the victim, herself had stated that she was never arrested or recovered by the police.
15. Learned counsel for the appellant has submitted that the application dated 05.02.1990 addressed to Superintendent of Police, Sitapur, reveals that complainant was apprehending some threatening on 01.02.1990 and thus for the security reasons he had requested to Superintendent of Police, Sitapur, for providing security and thus made a false story by implicating the accused appellant.
16. PW-3 SI Harinath Pandey was also examined. He had stated that there was no first information report on 12.01.1990 and there was nothing that the accused was arrested on 21.01.1990 from Barabanki or there was nothing like recovery of daughter of the complainant or giving in the custody of the complainant. He had further stated on oath that first information report which was given by the complainant was found to be forged and there was nothing about rape in the first information report or in the statement of the witnesses. There is statement of Afsarjahan during investigation, who happened to be wife of the complainant, who had intimated to the police that the information of kidnapping of her daughter was given by wife of one Naseer, her neighbour, but she had not been examined by the prosecution. At one point of time the prosecution says that the victim was recovered from Barabanki while at another place it is narrated that she was given in the custody of guardian in the police station. There is also complaint against the Investigating Officer that the accused was not arrested on the day of the first information report i.e. 12.01.1990 while the Investigating Officer says that there was no first information report on 12.01.1990 or there was nothing like recovery of the daughter of the complainant on 21.01.1990. Since the statement of the witnesses are self-contradictory and seem to be imaginary, the allegation for the Investigating Officer that he had made request to the complainant or his family members not to make any complaint so that he may get award is not trustworthy. PW-2, the complainant and father of the victim, who had admitted that during settlement of marriage it was found that the marriage could not be settled due to the reason that one of the parties Sheikh and the appellant belonged to Ansari category. Thus, due to their social problems the marriage could not be settled and that was the reason the complainant had lodged this false complaint against the accused appellant.
17. 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.
18. 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.
19. 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.
20. Learned counsel for the appellant has submitted that the victim was above 16 years while learned counsel for the State has submitted that she was below 16 years but this is immaterial. Before we assess the relevancy of the consent of the victim for anything coming within the purview of offence, this Court has to examine as to whether the accused was instrumental in kidnapping the minor from lawful guardianship. On the basis of evidence, as discussed above, I feel that the prosecution has miserably failed to prove that the accused played any part in the removal of the victim out of keeping of her lawful guardianship. The victim while in the witness box had deposed that at the time of the incident i.e. some time after midnight when she came to answer the nature’s call out of her house, the accused met her, covered her mouth with cloth or blanket so that she may not raise any alarm and carried her to other places and subjected her to forcible sexual intercourse under threat to her life. The theory, however, appears to be totally imaginary for the reason that sine bathroom was inside the residence, there was no need to come out of the house. Secondly, admittedly, it was the month of January when the winter season was at its peak and it is highly improbable that the accused would have kept on waiting for the victim outside of her house in the hope that she might by chance come out to answer nature’s call when he would carry her to his house. The deposition of PW-1, the victim, that she was taken from the first floor to ground floor and then to any house in the near about, that she was not given food for four days, that in the fourth night she was taken to one of the car and went to Rasauli in district Barabanki, that she remained there for eight or nine days and made no noise, that she was not medically examined as her father or she did not desire to be medically examined, that she was residing on second floor and bathroom was inside the house and all the neighbours were present in their houses, that he never committed any bad thing with her as stated in the statement under Section 161 Cr.P.C., which has been verified at the time of statement before the Court to be true, that the accused appellant threatened her father, that another accused was not known to PW-1, the victim, that she had never seen the present accused appellant also, that she never visited anywhere with Shoib, the present appellant, that she never visited to police station or she was never arrested by the police ……all reveal that the theory of kidnapping or abduction with intention to marry is false and imaginary and not trustworthy.
21. In light of above facts, the prosecution has failed to prove that the accused played any active part in taking away the victim out of keeping of her lawful guardianship and even on the sole testimony of the victim it is not at all reliable on the facts and in the circumstances of this case.
22. Admittedly the victim was not examined by any Medical Officer and naturally there is no medical report to ascertain or have the opinion of the Medical Officer on forcible rape and also to ascertain whether the victim received any injury on her person. It is to be noted that all the PWs, except the official witness, are related and interested witnesses. The prosecution did not examine any independent witness, not even any neighbour. It was necessary to do so to corroborate the evidence of the victim that she shouted in the night of incident and her cry for help was heard by at least some neighbours and search was made by the brothers of the victim. There is no evidence that the said brothers of the victim tried to wake up or inform some neighbours and join them in searching or apprehending the accused whom they met at the courtyard; after all the alleged incident took place in the village and it was expected that the villagers, at least the neighbours, would come out at any time if any commotion is created, particularly during night time. Why the brothers of the victim did not inform the villagers although they have suspicion over the presence of the accused in their court-yard in the night time in a doubtful manner, has not been explained and as such the veracity or truthfulness of the evidence of prosecution witnesses, is not above any doubt. The evidence of prosecution witnesses is quite unnatural and unbelievable. Such evidence cannot lend any corroborative value to the evidence of the victim and it cannot be a basis for conviction of the accused.
23. There is inordinate delay in lodging the first information report. The case is narrated to be an incident of midnight of 12.01.1990 while it was reported to the Superintendent of Police, Sitapur on 05.02.1990 and on this application the first information report was lodged on 19.02.1990. No explanation has been given by the prosecution regarding delay. There was no hue and cry in the family and neighbours or by reporting the police for the incident. The statements of the victim and other witnesses reveal that just after the day of aforesaid incident the victim was sent to Bahraich with the brother of the complainant and she remained there but due to inimical relations with the accused for not marrying the daughter, a false report was lodged in the police station by way of application to Superintendent of Police, Sitapur after 25 days. 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’.
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. The improbability factor found in the present case is that the accused appellant who had a stained relationship with the family of the complainant would never take any risk by visiting his house in the night time regularly in the chilled winter only to wait the chance of coming the victim out of her house. The other improbability factor is that all the brothers, sisters, mother and father were present in the house in the night of the incident. There was no reason to come out of the house and even the incident of kidnapping is happening from the house or just out of the gate on the second floor and there was no hue and cry by the victim or none of the family members attended her immediately.
26. Since the prosecutrix avoided medical examination, she could not be examined medically to obtain a report of the Medical Officer or to ascertain whether she received any injury on her person due to alleged rape committed upon her by the appellant. Except her oral evidence, there is no other medical or other documentary evidence supporting her allegation. As discussed earlier her evidence has been found as much artificial as imaginary, which is due to subsisting rivalry between her family and the accused appellant. The possibility of making false allegation against the appellant is not unusual and cannot be ruled out. This Court would definitely sustain the impugned conviction had her evidence been found to be natural, trustworthy and inspiring confidence of the Court. The Apex Court in Narayan v. State of Rajasthan reported in MANU/SC/7284/2007 : (2007) 6 SCC 465, held that though evidence of prosecutrix can alone sustain conviction of the accused but if the evidence is found so artificial that it cannot be accepted, conviction and sentence imposed upon the accused for offences punishable under Sections 363, 366, 376 and 342 IPC is liable to be set aside. On appreciation of the evidence on record, particularly the evidence of prosecutrix, whose evidence has been found artificial, unreliable and inconsistent, which, as per the settled position of law, cannot be accepted or acted upon for awarding conviction, I would desist from affirming/upholding the conviction and sentence awarded by the learned trial Court. I am not satisfied that the prosecution has been able to prove the charge against the appellant beyond all reasonable doubt. The convict appellant is entitled to get the benefit of doubt and acquittal on that score. The impugned conviction and sentence are hereby quashed and set aside. The appellant is acquitted on benefit of doubt. The bail bond shall stand discharged. The appellant be set at liberty forthwith provided his further detention is not required in connection with any other case. The appeal is allowed. Sent down the LCRs forthwith.
Order Date :- 11.8.2017