Allahabad High Court
Virendra vs State Of U.P. on 11 February, 2019
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgment reserved Case :- JAIL APPEAL No. - 5344 of 2016 Appellant :- Virendra Respondent :- State Of U.P. Counsel for Appellant :- From Jail,Archana Singh (A.C.),Shubham A./C. Counsel for Respondent :- A.G.A. Hon'ble Saurabh Shyam Shamshery,J.
Present appeal is a jail appeal. Appellant has challenged the order dated 11.1.2016 passed by Additional Sessions Judge (Fast Track Court), District Kannauj, whereby the appellant has been convicted under Sections 363 and 366 I.P.C. and has been awarded imprisonment of 7 years Rigorous Imprisonment and fine of Rs.5,000/- under Section 363 I.P.C. and 7 years Rigorous Imprisonment and fine of Rs.5,000/- under Section 366 I.P.C. In default, appellant has to undergo further imprisonment of 3 months respectively. Appellant was also directed to pay Rs.8,000/- as compensation to the victim.
During pendency of the present appeal, the appellant has been granted bail by this Court vide order dated 09.11.2017.
Heard Smt. Archana Singh, Advocate (Amicus Curiae), Shri J.P. Tripathi, learned Additional Government Advocate for the State at length.
Factual matrix of the case is as follows:
P.W.1-Ram Sharan (complainant) lodged a written complaint on 04.5.2013 at the Police Station-Kotwali, District-Kannauj to the effect that:
"fuosnu gS fd izkFkhZ jke'kju iq= Lo0 lksusyky fuoklh fe;kxat Fkkuk o ftyk dUukSt dk gw¡A izkFkhZ dh iq=h tks d{kk 11 dh Nk=k FkhA mldh tUefrfFk 15-07-1997 gS] ds vuqlkj mldh mez 16 o"kZ 9 ekg gS] tks fd ukckfyx gS] dks xkao ds ohjsUnz iq= jkelgk; o vej flag iq= NksVs yky] jktsUnz iq= jkelgk;] usgk iq=h jkelusgh] jkedyh iRuh jkelgk; fnukad 26-04-2013 le; djhc 4 cts lqcg dks cgyk Qqlyk dj Hkxk ys x;s gSA tc eSus mDr yksxks ds ?kj x;k rks ;s yksx ?kj ij ekStwn ugha FksA eSus dkQh viuh iq=h ukckfyx dks [kkstchu dh] ysfdu irk ugha pykA vr% izkFkZuk gS fd esjh fjiksVZ ntZ djk dj dk;Zokgh dh tk;s ,oa esjh iq=h ukckfyx dks fnyk;k tk;sA"
On the basis of the said complaint, F.I.R. No.117/2013 was lodged and Case Crime No.231/2013 under Sections 363/366 I.P.C. was registered against the appellant and three others.
Investigating Officer, Ramesh Chand (P.W.-5) conducted investigation. He prepared site map. He also recorded statements of witnesses Usha Devi and Sharda Nand etc. under Section 161 Cr.P.C. During investigation, appellant and victim came back and reached the District Court on 4.7.2013 where the appellant was arrested. Medical examination of the victim was conducted. On 8.6.2013, statement of victim was recorded under Section 161 Cr.P.C. Later on 20.7.2013 victim's statement was recorded under Section 164 Cr.P.C. before the Judicial Magistrate, Kannauj. Meanwhile, she was also medically examined on 15.7.2013.
After investigation was concluded, Charge-sheet No.255/2013 was filed against the appellant only on 2.8.2013 under Sections 363/366 I.P.C.
Case was committed to the Additional District Judge and charges were framed on 12.11.2013 against the appellant under Sections 363 and 366 I.P.C. The appellant denied the charges and sought trial.
Prosecution examined following witnesses to prove their case.
P.W.1- Ram Saran- Complainant/Father of the victim.
P.W.2- Victim-Daughter of complainant.
P.W.3- Shiv Narain Mishra-chick writer.
P.W.4-Dr. Kiran Sachan-Doctor.
P.W.5- Ramesh, Sub Inspector-Investigating Officer.
P.W.6.- Pradeep Yadav, Principle-who clarified the date of birth.
After examination-in-chief and cross-examination of the prosecution witnesses were over, appellant recorded his statement under Section 313 Cr.P.C. where he denied the evidence on record and refused to produce any defence witness.
The learned trial court considered the evidence and material brought on record and after considering the submissions of prosecution and defence, convicted the accused under Sections 363/366 I.P.C. in S.T. No.246/2013 vide order dated 11.1.2016 and sentenced as abovementioned earlier.
The judgment and order dated 11.1.2016 is impugned in the present appeal.
Smt. Archana Singh, Advocate (Amicus Curiae), on behalf of the appellant has submitted that the conviction is based on conjectures and surmises and she elaborated her arguments on the following issues:
(i) Occurrence took place on 26.4.2013 and the complainant P.W.1 (father of victim) lodged the complaint on 4.5.2013. The delay of 8 days is inordinate and it remained unexplained therefore, the present case has to be rejected in its entirety.
(ii) Victim in her statement recorded under Section 161 Cr.P.C. has stated that she went with the appellant on her own will and her father (P.W.1) used to torture her and due to which she was very upset and this was the reason she went with the appellant in order to marry him and to live with him. Amicus Curiae further submitted that on the basis of such statement, no case is made out under Sections 363/366 I.P.C. against the appellant.
(iii) The victim P.W.3 who in her statement on oath before the Court has stated that appellant took her to Delhi and she never said about bad treatment by her father to her in her statement recorded under Section 161 Cr.P.C. Learned Amicus Curiae further submitted that there are major contradictions between the statement of victim (P.W.2) recorded under Section 161 Cr.P.C. and recorded on oath. Amicus Curiae submitted that as the victim went with the appellant on her own will, no case is made out under Section 363 I.P.C. The contradictions are fatal for the prosecution.
(iv) Medical report dated 15.7.2013 of the victim opined that "No spermatozoa seen. No definite opinion regarding sexual assault can be given". On the basis of this report Amicus Curiae submitted that there is no intercourse between the appellant and victim, which is also corroborated by the statement of victim (P.W.2) when she said on oath that "Virendra ne mere saath koi galat karya nahi kiya" therefore, she submitted no offence is made out under Sections 366 I.P.C.
(v) Amicus Curiae also submitted that appellant's family and victim's family belong to different caste and due to this F.I.R. was lodged.
(vi) Amicus Curiae also submitted that the victim is not less than 18 years and she was adult at the time of occurrence.
(vii) Lastly Amicus Curiae submitted that appellant be released on sentenced already undergone.
Learned counsel for the State submitted that submissions made by the learned amicus curiae are not legally sustainable. Delay in lodging the F.I.R. is not fatal as the P.W.1 has explained that during this period he was searching the victim and only when he was unable to found her, lodged complaint. Counsel for the state also submitted that there are minor contradictions between the statement and they are not fatal for prosecution.
On the issue of submission of no offence is made out under Sections 363/368 I.P.C., counsel for the State submitted that as per the medical report victim was less than 18 years on the day of occurrence and as she was kidnapped from lawful guardianship without taking consent and by inducing the victim to compel her marriage, the offence under Sections 363/366 I.P.C. are completely made out. Lastly the counsel for the State submitted that any leniency in regard to quantum of sentence would be against the principles of sentencing.
Heard learned counsel for the parties and perused the record.
Sections 363 and Section 366 I.P.C. are mentioned hereinafter:
"363. Punishment for kidnapping.--Whoever kidnaps any person from 1[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."
"366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman 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 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, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 2 [and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid]."
P.W.-1 Complainant, Ram Saran (father of victim) has stated in his evidence that:
"?kVuk fnukad 26-4-13 dh gSA lqcg 4 cts dh gSA eS vius ?kj ij lks jgk FkkA lksdj eS 6 cts mBkA rc eSus ns[kk izhfr ?kj ij ugh gS eSus mldks ryk'k fd;kA yM+dh ugh feyhA fQj eSus ohjsUnz] jktsUnz] jkedyh] vej flag rFkk usgk dks ryk'k fd;kA ijUrq ;g yksx ugh feysA tc ;g yksx Hkh ?kj ij ugh feys rks eSus iqfyl dks lwpuk nhA eSus ,Q0vkbZ0vkj0 es fy[kk;k fd cgyk Qqlykdj ohjsUnz] jktsUnz] usgk vkfn yksx Hkxk ys x;sA eq>s 'kd gqvk Fkk rc eSus ryk'k fd;kA eSus viuh vka[kks ls fdlh dks ys tkrs ugh ns[kkA vkSj u eq>s fdlh xkao okyks us crk;k fd fdlh ds lkFk tkrs ns[kkA 'kd ds vk/kkj ij eSus fjiksVZ fy[kkbZA eq>s 'kd lqcg gh rks x;k Fkk eS mlh fnu fjiksVZ fy[kkus x;k Fkk ysfdu fjiksVZ ugh fy[kh x;hA fnukad 4-5-13 dks fjiksVZ fy[kh x;hA bu 6&7 fnu viuh yM+dh dks ryk'krs jgs rgjhj eS vius ?kj ls fy[kdj ys x;k FkkA izki= eSus vius eu ls fy[kk FkkA usgk rFkk vej flag dusfj;k tkfr ds gSA ohjsUnz teknkj gSA eS tkVo tkfr dk gWwA fjiksVZ fy[kkus ds 2&2½ ekg ckn yM+dh feyh FkhA yM+dh eq>s iqfyl us nh FkhA tc yM+dh fey x;h rc iqfyl us esjs ikl lwpuk dh fd yM+dh fey x;h ys tkvksA yM+dh ns[kus ds fy;s dpgjh es cqyk;k FkkA yM+dh xk;c gksus ds ckn lcls ifgys yM+dh dpgjh es ns[kh FkhA yM+dh fdl rkjh[k dks feyh irk ughA"
P.W.2 Preeti (Victim) has stated in her evidence that:
"fnukad 26-4-13 dh ckr gSA lqcg dks 4 cts dk le; FkkA eq>s xkao dk ohjsUnz ,l@vks jkelgk; tks esjs xkao dk gSA eq>s fnYyh fyok ys x;k FkkA fnYyh es eS mlds lkFk jghA djhc 2 eghus jgh FkhA vkSj bl chp gfj;k.kk Hkh x;h FkhA fQj eSuiqjh eafnj es vkdj eSus rFkk ohjsUnz us 'kknh dj yhA 'kknh ds ckn fQj fnYyh pyh x;hA vkSj ogh ij mlds lkFk jghA ohjsUnz us esjs lkFk dksbZ xyr dk;Z ugh fd;kA"
"?kVuk ds le; ij eS d{kk 11 es i<+rh FkhA esjh tUefrfFk 15-7-1997 gSA ;gh esjs 'kSf{kd izek.k i= es vafdr gSA ?kVuk ds le; esjh mez 15 o"kZ 9 ekg FkhA"
"esjs firk nk: ugh ihrs gSA eSus vius C;ku 161 lh0vkj0ih0lh0 es firk th }kjk 'kjkc ihus dh ckr ugh crkbZ gSA eSus vius C;ku es ugh crk;k fd firk th 'kjkc ihdj esjs lkFk ekjihV djrs FksA"
P.W.4-Dr. Kiran who examined the victim has stated in her evidence that:
"dksbZ Hkh 'kqØk.kq ugh ik;s x;s Fks rFkk cykRdkj ds lEcU/k es dksbZ fuf'pr jk; O;Dr ugh dh tk ldrh FkhA"
P.W.5-Ramesh Chand, Sub Inspector-Investigating Officer supported the prosecution case mentioned in detail about the investigation conducted by him in regard to the present case.
P.W.6-Pradeep Yadav (Principle) who mentioned that the date of birth of the victim according to the High school Certificate is 15.7.1997.
In the present case, the delay in lodging the F.I.R. is about 8 days. The P.W.1 has mentioned that he was searching her daughter for these days. The trial court has also considered the issue and rightly held that:
"izFke lwpuk fjiksVZ fy[kkus esa tks Hkh foyEc gqvk gSA og oknh us viuh iq=h dks Hon'ble Supreme Court in the matter of State of Himachal Pradesh Vs. Prem Singh, reported in 2009 (1) SCC 420, has held that:
"There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition-bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR."
In view of above discussions, the submission of the Amicus Curiae lacks merit, hence rejected on this issue.
Secondly, so far as imprisonment/undertaking in the evidence on oath and statement recorded under Section 161 Cr.P.C. is concerned, Hon'ble Supreme Court recently in the matter of Virender Singh Vs. State of Haryana, reported in 2017 (11) SCC 126 has held that:
".....The statements made by her in the course of her investigation and recorded under Section 161 Cr.P.C. do not constitute evidence that can be relied upon by a court to convict an accused. But this is what the High Court seems to have done. It was open for the High Court to consider all other evidence, ocular or circumstantial, implicating the accused, if such evidence was available. But no reliance could have been placed on the statements recorded under Section 161 Cr.P.C."
In the present matter, the victim is consistent on the fact that appellant has taken her to Delhi. In the light of judgment in Virender Singh (supra) the contradictions, if any, on the alleged behaviour of her father cannot be considered to be fatal for the prosecution, therefore, the submission of the learned Amicus Curiae is rejected on this issue also.
Thirdly, age of the victim is determined on the basis of her matriculation certificate and the trial court has right held that:
"fd'kksj U;k; ¼ckydks ds ns[kjs[k ,oa laj{k.k½ fu;ekoyh 2007 dk fu;e 12 fd'kksj vipkjh o fd'kksj nksuks ds vk;q ds fu/kkZj.k gsrq ykxw gksrk gSA bl laca/k esa ekuuh; mPpre U;k;ky; us tjuSy flag cuke gfj;k.kk jkT; ¼2013½ 7 ,l0lh0lh0 263 rFkk ekuuh; mPp U;k;ky; bykgkckn us Hkh vyh eksgEen cuke m0iz0 jkT; fo'ks"k vihy la[;k 559@2015 fu.kZ; fnukafdr 25-08-2015 esa ;g vo/kkfjr fd;k gS fd fu;e 12 fd'kksj U;k; ¼ckydks ds ns[kjs[k ,oa laj{k.k½ fu;ekoyh 2007 fd'kksj vipkjh o fd'kksj nksuks ds vk;q ds fu/kkZj.k gsrq ykxw gksrk gSA bl fu;e es gkbZ Ldwy izek.k i= esa vafdr tUefrfFk dks fd'kksj dh vk;q ds fu/kkZj.k gsrq loZ izFke ojh;rk nh x;h gS rFkk fpfdRlh; lk{; dks lcls vfUre ojh;rk nh x;h gSA vr% izLrqr ekeys es Hkh vfHk;kstu }kjk ihfM+rk dh vk;q ds laca/k esa fn;s x;s gkbZLdwy ds izek.k i= ftls ih0MCyw0 6 iz/kkukpk;Z us tks ml fo|ky; ds gS] tgka ls ihfM+rk us gkbZ Ldwy ikl fd;k gS] dks lkfcr djk;k x;k gSA og mDr fu;ekoyh ds vuqlkj ekU; gksxkA"
The submission of the learned Amicus Curaie sans merit, hence rejected.
Fourthly, the Amicus Curiae has submitted that F.I.R. is lodged only due to caste factor, however, there is no evidence produced by the defence in this regard, therefore, this submission is rejected.
Lastly, she has submitted on the issue of quantum of sentence, that as the victim is living peacefully and the conduct of the appellant is good in jail, sentence be modified for sentence already undergone.
Hon'ble Supreme Court in the matter of State of Madhya Pradesh Vs. Babulal & Ors, reported in 2013 (12) SCC, 308 that:
"19. In view of the above, the law on the issue can be summarised to the effect that one of the prime objectives of criminal law is the imposition of adequate, just, proportionate punishment which is commensurate with the gravity and nature of the crime and manner in which the offence is committed. The most relevant determinative factor of sentencing is proportionality between crime and punishment keeping in mind the social interest and consciousness of the society. It is a mockery of the criminal justice system to take a lenient view showing misplaced sympathy to the accused on any consideration whatsoever including the delay in conclusion of criminal proceedings. The punishment should not be so lenient that it shocks the conscious of the society being abhorrent to the basic principles of sentencing. Thus, it is the solemn duty of the court to strike a proper balance while awarding sentence as awarding a lesser sentence encourages a criminal and as a result of the same society suffers."
In case at hand, the appellant is guilty under Sections 363/366 I.P.C. The appellant has kidnapped a minor girl from lawful guardianship by inducing her for marriage. These crimes are not only against the individual victim but also against the society at large.
In these circumstances, I am of the considered opinion that the appellant is not entitled for any lenient view. Thus, the submission advanced is liable to be rejected.
In view of the aforesaid discussions, the appeal lacks merit, therefore dismissed.
The appellant is on bail vide order dated 09.11.2017 passed by this Court. His bail bonds are cancelled. Appellant is directed to surrender and to undergo the remaining sentence.
The Court appreciates the valuable assistance rendered by Smt. Archana Singh, as Amicus Curiae in the present appeal.
The Registrar General, High Court is directed to pay Rs. 15,000/- (fifteen thousand) to Smt. Archana Singh, Amicus Curiae at the earliest.
Order Date :- 11.2.2019 SB