HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on : 06.02.2019
Delivered on: 09.04.2019
Case :- CRIMINAL APPEAL No. – 4296 of 2017
Appellant :- Suraj
Respondent :- State Of U.P.
Counsel for Appellant :- Ajai Kumar
Counsel for Respondent :- G.A.
Case :- CRIMINAL APPEAL No. 3987 of 2017
Appellant :- Kundan 2 Others
Respondent :- State Of U.P.
Counsel for Appellant :- Ajai Kumar
Counsel for Respondent :- G.A.
Hon’ble Siddharth, J.
1. Heard Sri Mohd. Farooq, learned counsel for the appellant in Criminal Appeal No. 4296 of 2017 and Sri Akhilesh Kumar, learned counsel for the appellant in Criminal Appeal No. 3987 of 2017, learned A.G.A. for the State and perused the lower court record.
2. Criminal Appeal No. 4296 of 2017 is directed against the judgment and order dated 11.07.2017 passed by Additional District Sessions, Fast Track Court, Kanpur Dehat, in S.T. No. 21 of 2012 State vs. Suraj, convicting and sentencing the appellant, under Section 366 I.P.C. to 5 years R.I. and fine of rupees ten thousands and in default of payment of fine 6 months simple imprisonment; under Section 376 I.P.C. to seven years R.I. and fine of rupees ten thousands and in default of payment of fine, 6 months rigorous imprisonment and under Section 506(2) I.P.C. to two years R.I. and a fine of rupees two thousands and in default of payment of fine, two months simple imprisonment.
3. Criminal Appeal No. 3987 of 2017 is directed against the judgment and order dated 11.07.2017 passed by Additional District Sessions Judge, Fast Track Court, Kanpur Dehat, in S.T. No. 199 of 2012 State vs. Kundan and others, convicting and sentencing the appellant nos. 1 and 2, Kundan and Vinod, under Section 366 I.P.C. to 5 years R.I. and fine of rupees ten thousands and in default of fine, 6 months simple imprisonment and appellant no. 3, Khanna, under Section 506(2) I.P.C. to two years R.I. and fine of rupees two thousands and in default of payment of fine two months simple imprisonment.
4. An application was given at police station Chaubepur, District- Kanpur Nagar, stating that on 20.09.2011 at about 9:30 am daughter of informant, Prabhu Rathor, aged about 17 years had gone for tuition when she was enticed away by the accused-appellants.
5. On the basis of the aforesaid application first information report was registered as Case Crime No. 266 of 2011, under Sections 363, 366 I.P.C., against the appellant, Suraj, and another accused, Kundan. The Investigating Officer made the site plan and recorded the statements of the witnesses. After completing the entire formality of investigation he submitted charge-sheet against accusesds, Kundan, Vinod, Smt. Ramvati and Khanna, under Sections 363, 366, 506 I.P.C., and under Sections- 363, 366, 376 and 506 I.P.C. against the appellant, Suraj. Two charge-sheets were submitted and therefore Sessions Trial No. 119 of 2012 proceeded against the accuseds, Kundan, Vinod, Ramvati and Khanna and Sessions Trial No. 21 of 2012 proceeded against the appellant, Suraj, together.
6. P.W.-1, Prabhu, the informant stated before the court that on 20.09.2011 his daughter (hereinafter referred to as victim) went to school at 9:30 am followed by Suraj and Kundan of his locality who enticed her away. When his daughter did not returned from school he made a search and was informed by Subedar and Shanu @ Ranjan son of Islam of his village that they saw her going with Kundan and Suraj. He went to the police station to lodge the report but he was directed to first search his daughter and when he failed to find her out he gave the application dated 28.09.2011 at the police station which was registered as a case. The accuseds enticed her daughter for the purpose of marriage and rape. She is student of B.A. He proved his application given to the police and the fact that his statement was recorded by police and site plan was prepared on his pointing out by the Investigating Officer. He further stated that his daughter was given in his custody from court. She was medically examined and her statement was recorded by the Magistrate.
7. Victim was examined as P.W.-2 before the court. She stated that she went to her college on bicycle at 9:00 am or 9:30 am on 20.09.2011. She parked her bicycle at Chaubepur and went to school by tempo alone for inquiry about a form and when she was returning from school she met Ramwati, Suraj, Kundan and Vinod, in a car of black colour. Ramwati stated that if she is going to her house she can sit in the car and she accordingly sat in the car. Ramwati got down from the car at Mandhana and thereafter Vinod snatched her phone and gave her water to drink. After drinking water she became unconscious and when she gained consciousness she found herself at Hardoi. She had never gone to Hardoi earlier. She met the aunt (bua) of appellant, Suraj, at Hardoi. She is a sister of Vinod. Vinod is uncle of Suraj and he was driving the car and Suraj was sitting. Aunt (bua) of Suraj came to her village many times and therefore she knows her. She knew Suraj, Kundan and Ramvati. She stayed at the house of the friend of aunt of Suraj, called as Mausi, for eight days. Thereafter Kundan and Vinod went back. Suraj, his Mausi and son of Mausi, Shiva, went to NOIDA. Shiva had gone to NOIDA for doing service. On the date Suraj took her to Hardoi, he made physical relationship with her. He did the same thing at Noida without her consent and she became pregnant. She had not gone with them on her own but was taken forcefully. She was produced in court by brother-in-law of Suraj, Ram Prakash, elder brother of Suraj, Ram Prakash and Khanna. Suraj was sent to jail and victim was given in custody of her parents. Khanna had threatened her of life in case she stated anything against them. She proved her statement under Section 164 Cr.P.C. recorded before the Magistrate.
8. P.W.-3, Usha, mother of the victim repeated the statement made by her husband, P.W.-1, and further stated that Suraj is a married man having 3 years old child and his intention was to rape and sell his daughter.
9. P.W.-4, K. Lal, uncle of the victim affirmed the statement made by P.W.-1 and P.W.-3.
10. P.W.-5, Shiv Pal Singh, constable of Police, Chaubepur proved the lodging of FIR and copy of the FIR and its G.D. entry.
11. P.W.-6, Dr. Anita Singh, stated that she did not found any external injury on the body of victim. Regarding internal examination she stated that the hymen of victim was old torned and proved that for the purpose of determination of age she referred the victim to the radiologist and sent two slides of her vaginal smear for pathological examination. On the basis of supplementary medical report she proved the age of the victim as 21 years.
12. P.W.-7, Sub-Inspector, Ram Chandra Pal, stated that he conducted the investigation and recovered the witnesses, prepared a site plan and proved the charge-sheet and the fact that he got the statement of the victim recorded under Section 164 Cr.P.C.
13. P.W.-8, Dr. Arvind, proved the ultrasound report of the victim which proved that she was six weeks pregnant on 03.11.2011.
14. P.W.-9, K. Dubey, head mistress proved the school register wherein the date of birth of the victim was recorded as 20.10.1990 and she has taken admission in class 9th on 06.09.2005 and passed high school in the year 2007.
15. Statement of the appellants were recorded under 313 Cr.P.C. wherein they stated that they have been falsely implicated and did not produced any documentary evidence in their defense.
16. The trial court found that the offences under Section 366, 376, 506 I.P.C. are made out against the appellant, Suraj, in S.T. No. 31 of 2012, while offences under Section 366 are made out against the accuseds, Kundan and Vinod, in S.T. no. 1991 of 2012 and offence under Section 506(2) I.P.C. is made out against accused, Khanna, in S.T. No. 199 of 2012.
17. The appellant, Suraj, has been exonerated of charges under Section 363 and 506 I.P.C. The accused, Ramvati, was acquitted of all the charges by the trial court.
18. The counsel in Criminal Appeal No. 4296 of 2017 has submitted that from the statement of the victim, P.W.-2, it was clear that she eloped with the appellant, Suraj, in a pre-planned manner. The facts and circumstances which have come on record clearly indicate that the victim was not abducted but she willingly went with the appellant, Suraj. There was affair between the two therefore planning was made with her consent and accordingly the car was kept ready for the victim by the accused to elope from the village. There is no convincing evidence on record to prove that the victim was drugged and taken to Hardoi.
19. Except the statement of the victim that Vinod gave her water to drink and thereafter she became unconscious, there was no other evidence on record to prove that she was drugged. The victim went to Hardoi and then from Hardoi she went to Noida and lived with appellant but at no point of time she raised any alarm or made any complaint to anyone that she has been abducted and is being subjected to rape. He has further submitted that as per the report of the doctor her age was 21 years at the time of incident and she cohabited with the appellant and became pregnant by her own will. She never stopped the co-accuseds from departing gradually and leaving her alone with the appellant. She admitted that first of all Ramvati got down from the car, thereafter the other co-accuseds, Kundan and Vinod, left her at Hardoi. She lived with the appellant alone at NOIDA and thereafter, it appears that due to pressure of police she was produced before the court by the relatives of Suraj.
20. Counsel for the appellant in Criminal Appeal No. 3987 of 2017 has submitted that the offences alleged against the appellants of Criminal Appeal No. 3987 of 2017 are not made out at all. The appellant nos. 2 and 3, namely, Vinod and Khanna, were not named in the FIR. Their names appeared in the statement of the victim. Name of Kundan was informed by co-villagers, Subedar and Sonu, to the informant, but they were not produced before court to prove where they saw the appellant, Kundan, with the victim and co-accused, Suraj. It has been submitted that implication of appellant, Kundan, is without any basis. The victim has taken the name of accused, Kundan, as the person who was sitting in the car of Suraj. She was asked to sit in the car by Ramwati if she wants to go home and she willingly sat in the car. The prosecution has failed to explain that when the victim went to the college by bicycle and her bicycle was parked at Chaubepur why she boarded the car leaving her bicycle at Chaubepur. The fact that she boarded the car on the asking of Ramvati, who was sitting in the car along with accuseds, Kundan and Vinod and also Suraj, proves that she knew them well and therefore she boarded the car. When Ramvati alighted from car, victim never stated that she is feeling insecure in the presence of other male passengers in the car nor tried to stop Ramvati. Thereafter she has admitted that she continued with the journey though being unconscious and reached Hardoi. The conduct of the victim shows that she was comfortable with all the persons in the car and therefore she continued her journey with them from Kanpur to Hardoi. Her explanation that she was drugged and became unconscious cannot be accepted without any substantiation. The appellants of Criminal Appeal No. 3787 of 2017 have been falsely implicated by cooking up story of abduction by the victim who knew everyone well prior to her elopement with appellant, Suraj, as clear from her statement. She even knew the relatives of appellant, Suraj, well, like his aunt and even friends of the aunt where she stayed for 8 days at Hardoi. It is not proved from the record that accused-appellants were strangers and victim was abducted by them and subjected to rape.
21. Learned A.G.A. has disputed the entire arguments made on behalf of the appellants and has supported the judgment of the court below.
22. After hearing the rival contentions this court finds that before holding a person guilty under Section 366 and 376 I.P.C., it necessary that the court should find out the reason for kidnapping or abduction of the victim by the accused. There is no allegation against the accused-appellant, Kundan and Vinod, that they abducted the victim to compel her to marry any person against her will or she was forced or seduced to illegal intercourse by them or even the appellant, Suraj, made any promise of marriage to the victim. From the facts considered above it is clear that the victim eloped with Suraj in a pre-planned manner and in order to make out a case of her abduction she has implicated the other appellants as well. The investigation officer failed to find out the black colour car or its number wherein the victim was allegedly abducted. The persons who were close to Suraj, were implicated by the victim in order to make out a case of her forceful abduction and rape.
23. The Apex Court in the case of Rajak Mohd. Vs. State of Himachal Pradesh (2018) 9 SCC 248,5 has held that where the prosecutrix lived with the accused and freely moved around with the accused and during this period she came across many people at different points of time but never complained of any criminal act, the conviction of the accused under Section 363, 366, 376 I.P.C was held to be unwarranted in law.
24. It is settled law that in a case under Section 376 I.P.C. the sole testimony of the victim is sufficient to sustain the victim of the accused provided court is convinced about the truthfulness of her statement and their are no circumstances which make the court doubt its veracity. The testimony of the victim, as discussed above is not of sterling quality on the basis whereof conviction of appellants can be sustained.
25. The Apex Court in paragraph 21 in the case of Md. Ali @ Guddu (2015) 3 SCC (Cri) 82 had held :-
21. Be it noted, there can be no iota of doubt that on the basis of the sole testimony of the prosecutrix, if it is unimpeachable and beyond reproach, a conviction can be based. In the case at hand, the learned trial Judge as well as the High Court have persuaded themselves away with this principle without appreciating the acceptability and reliability of the testimony of the witness. In fact, it would not be inappropriate to say that whatever the analysis in the impugned judgment, it would only indicate an impropriety of approach. The prosecutrix has deposed that she was taken from one place to the other and remained at various houses for almost two months. The only explanation given by her is that she was threatened by the accused persons. It is not in her testimony that she was confined to one place. In fact, it has been borne out from the material on record that she had travelled from place to place and she was ravished number of times. Under these circumstances, the medical evidence gains significance, for the examining doctor has categorically deposed that there are no injuries on the private parts. The delay in FIR, the non- examination of the witnesses, the testimony of the prosecutrix, the associated circumstances and the medical evidence, leave a mark of doubt to treat the testimony of the prosecutrix as so natural and truthful to inspire confidence. It can be stated with certitude that the evidence of the prosecutrix is not of such quality which can be placed reliance upon. True it is, the grammar of law permits the testimony of a prosecutrix can be accepted without any corroboration without material particulars, for she has to be placed on a higher pedestal than an injured witness, but, a pregnant one, when a Court, on studied scrutiny of the evidence finds it difficult to accept the version of the prosecutrix, because it is not unreproachable, there is requirement for search of such direct or circumstantial evidence which would lend assurance to her testimony. As the present case would show, her testimony does not inspire confidence, and the circumstantial evidence remotely do not lend any support to the same. In the absence of both, we are compelled to hold that the learned trial Judge has erroneously convicted the accused-appellants for the alleged offences and the High Court has fallen into error, without re-appreciating the material on record, by giving the stamp of approval has reduced the punishment of rigorous imprisonment of 7 years to the period of approximately three and the half year undergone by the accused as sufficient punishment. In the present case the appellant has undergone about four years and 9 months of imprisonment out of maximum sentence of 7 years awarded to him. to the same.
26. In this case the victim is a major. Record reveals that she has not leveled the allegation of rape because of any crime committed against her by the appellant but it is clear that she has made the allegation only to protect herself from social stigma because of running with appellant, Suraj. This court in the case of Bhoora Yadav and Ors. vs. State of U.P. MANU/UP/0186/2016 has held in paragraph 10 and 11 as follows:-
“10. Generally, in cases of rape, the court does not ponder to find corroboration if the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions are insignificant. Discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony as has been held in Vishnu Vs. State of Maharashtra, AIR 2006 SC 508.
11. The evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her persons even though her version may be otherwise, no reliance can be placed upon her evidence as has been held in Suresh N. Bhusare others Vs. State of Maharashtra, (1999) 1 SCC 220.”
27. 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.
28. 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 has been held:
“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’.”
29. The facts and circumstances clearly prove that the prosecutrix had pre-planned to elope with the appellant, Suraj, and only to give colour to the episode and make it case of kidnapping the other accused-appellants, namely, Kundan, Vinod, Khanna and Ramvati, were implicated. Ramvati has already been acquitted by the trial court but Kundan, Vinod and Khanna have been convicted and sentenced. Prosecution tried to prove that the victim was minor but the court below has not accepted the contention, even in the FIR the age of the victim was mentioned as 17 years and the doctor has found her age to be 21 years as per radiological report. Even if the age of the victim is accepted to be 17 years, giving two years margin on either side she can be safely held to be major as held by the Apex Court in Jai Mala vs. Home Secretary, Govt. of J.K., 1982 CrL.J 1777. It is also settled law that if two views are possible then the one favourable to the accused has to be adopted as per the judgment of the Apex Court in the case of Harendra Narayan Singh vs. State of Bihar, 1991 CrL.J. 2666. The victim having been found to be major, was required to explain why she submitted to physical relationship with the appellant, Suraj, and she never objected to the same at any point of time when it is not her case that she was threatened by any of the appellants. The Apex Court in the case of Uday vs. State of Karnataka, 2003 Law Suit (SC) 211 has considered the meaning of “consent” with regards to section 376 I.P.C. as follow:-
10. Learned counsel for the appellant submitted that in the context of Section 375 of the Indian Penal Code, which is a special provision, the general provision namely section 90 of the Indian Penal Code was not of much assistance to the prosecution. According to him Section 375 thirdly, fourthly and fifthly exhaustively enumerate the circumstances in which the consent given by the prosecutrix is vitiated and does not amount to consent in law. According to him one has to look to Section 375 alone for finding out whether the offence of rape had been committed. Secondly, he submitted that even under Section 90 of the Indian Penal Code the consent is vitiated only if it is given under a misconception of fact. A belief that the promise of marriage was meant to be fulfilled is not a misconception of fact. The question of misconception of fact will arise only if the act consented to, is believed by the person consenting to be something else, and on that pretext sexual intercourse is committed. In such cases it cannot be said that she consented to sexual intercourse. He sought to illustrate this point by reference to English cases where a medical man had sexual intercourse with a girl who suffered from a bona-fide belief that she was being medically treated, or where under pretense of performing surgery a surgeon had carnal intercourse with her. In Stroud’s Judicial Dictionary (Fifth Edition) page 510 “consent” has been given the following meaning:-
“Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side.”
It refers to the case of Holman v. The Queen : (1970) WAR 2 wherein it was held that “there does not necessarily have to be complete willingness to constitute consent. A woman’s consent to intercourse may be hesitant, reluctant or grudging, but if she consciously permits it there is consent “. Similar was the observation in R.V. Olugboja : (1981) 3 WLR 585 wherein it was observed that “consent in rape covers states of mind ranging widely from actual desire to reluctant acquiescence, and the issue of consent should not be left to the jury without some further direction”. Stephen, J. in Queen v. Clarence (1888) 22 QBD 23 observed – “It seems to me that the proposition that fraud vitiates consent in criminal matters is not true if taken to apply in the fullest sense of the word, and without qualification. It is too short to be true, as a mathematical formula is true.” Wills, J. observed – “the consent obtained by fraud is not consent at all is not true as a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent.”
11. Some of the decisions referred to in Words and Phrases – Permanent Edition Volume 8A at page 205 have held “that adult female’s understanding of nature and consequences of sexual act must be intelligent understanding to constitute ‘consent’. Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. Legal consent, which will be held sufficient in a prosecution for rape, assumes a capacity to the person consenting to understand and appreciate the nature of the act committed, its immoral character, and the probable or natural consequences which may attend it. (See : People v. Peery, 26 Cal. App. 143).
12. The courts in India have by and large adopted these tests to discover whether the consent was voluntary or whether it was vitiated so as not to be legal consent. In Rao Harnarain Singh vs. State, AIR 1985 Punj 123 it was observed:-
“A mere act of helpless resignation in the face of inevitable compulsion, acquiescence, nonresistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be ‘consent’ as understood in law. Consent, on the part of a woman as a defense to an allegation of a rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but after having freely exercised a choice between resistance and assent.
Submission of her body under the influence of fear or terror is not consent. There is a difference between consent and submission. Every consent involves a submission but the converse does now follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act, of a criminal character like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one’s will or pleasure.”
21. It, therefore, appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.
30. Keeping in view the above consideration of the word “consent”, the facts of the present case are required to be considered. In the present case the victim was grown up girl student of class B.A. in a college. She was aware that the appellant, Suraj, was a married man having a child aged about 3 years. She eloped with him without making any resistance in a car. She left behind her bicycle from which she went to college and she herself has admitted that car was ready and waiting along with other accuseds and she went in car to Hardoi only to make out a case of forcible abduction she alleged that Vinod gave her water to drink and she became unconscious and gained consciousness only at Hardoi when she was abducted from Kanpur. She alleged that the was subjected to rape by Suraj without when there is no explanation where all the other accuseds-appellants were there at that time. She stayed at Hardoi for 8 days but never made any effort to extricate herself from the company of the appellants nor made any complaint to anyone in the house where she was kept. The house belonged to the friend of the aunt of the appellant, Suraj. She could have informed the aunt of the appellant, Suraj, that she has been kidnapped and she wants to go back to her parents. She never sought any help from anyone and during her stay with appellant. There is no such statement of the victim on record. These facts prove that victim was perfectly at ease in the company of the accused-appellant, Suraj, and other appellants and she never tried to run away from their company. She entered into physical relationship with Suraj and became pregnant as proved by the doctor.
31. The statement of the victim cannot be believed. The prosecution failed to prove that victim never consented to her relationship with appellant, Suraj.
32. Consequently, the judgment and order of the court below is set aside. All the appellants in both the appeals are acquitted. They are directed to be released from jail forthwith, if in jail and not wanted in all other case.
33. Let the record of the court below be sent back to the court below with a copy of this judgment for compliance.
34. Both the Criminal Appeals are allowed.
Order date:- 09.04.2019