Allahabad High Court
Sunauvvar vs State Of U.P. on 9 February, 2017
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Reserved on 17.1.2017
Delivered on 09.2.2017
Case :- CRIMINAL APPEAL No. - 90 of 1997
1. Sunauvvar son of Abdulla, Village Padamnapur, P.S. Sohramau, District- Unnao.
2. Lala son of Mohammad Nazir resident of 8/99, Mohalla Gandhi Nagar, Back of Cinema Hall, P.S. Gangaghatt, Unnao.
............. Appellants
(In Jail)
-VERSUS-
State of U.P. ............ Opposite Party
Counsel for Appellant:- Rishad Murtaza,Ahsan Zaidi,Alok Singh,Ashok Kumar, Lakshman Singh, Mohd. Arif Khan, ShamimRaza.
Counsel for Respondent :-Govt. Advocate
Hon'ble Anil Kumar Srivastava-II,J.
1. Heard Sri Rishad Murtaza counsel for accused-Lala and Sri Lakshman Singh learned counsel for the appellant Sunauvvar and learned AGA for the State.
2. Instant appeal has been filed against the judgment and order dated 22.2.1997 passed by learned Special Judge, Unnao in Sessions Trial No.650 of 1994; State vs. Sunauvvar and others arising out of Crime No.62 of 1993 under Sections 363, 366A, 368, 376 IPC, relating to Police Station Sohramau, District- Unnao whereby the learned trial court has acquitted the accused Faridi and Kallo and convicted accused Sunauvvar under Section 366 IPC and sentenced to imprisonment for 10 years, under Section 368 IPC and sentenced to imprisonment for 10 years, under Section 376 IPC and sentenced to rigorous imprisonment for 10 years. All the sentences were directed to run concurrently. Accused Sunauvvar was acquitted for an offence punishable under Section 363 IPC. Accused Lala was convicted under Section 368 IPC and sentenced for 10 years imprisonment.
3. According to the prosecution version, the FIR was lodged by complainant Manohar Singh father of the victm on 28.4.1993 stating that on 26.4.1993 his daughter victim 'A' (name of the victim is not being disclosed) at about 4.00 AM went to meet the call of nature. When she did not came back then the complainant inquired about her. On 28.4.1993 in the morning Mahadev and Chheda told him that they have seen his daughter victim 'A' was going with accused Sunauvvar, niece Kallo and Faridi brother of the Sunauvvar going towards Lucknow in the morning at about 4.30 AM. Kallo was a friend of the victim. They used to visit each other place. On the preceding day of the incident, Kallo had called victim to her house.
4. On the basis of written report, FIR under Sections 363, 366 IPC was registered at Case Crime No.62 of 1993 at Police Station Sohramu, District Unnao. Investigation was handed over to S.I. B.R. Singh. During investigation on 7.5.1993 victim was recovered along with the accused Sunauvvar and Lala from Lucknow by pass teraha. Victim was handed over to the complainant. Victim was medically examined on 7.5.1993. Her statement under Section 164 Cr.P.C. was recorded on 11.4.1993 wherein she has stated that she was kidnapped by Sunauvvar and Faridi. Sunauvvar kept her in the house of Lala. Sunauvvar also committed rape upon her. Statement of the witnesses were recorded and after concluding the investigation, Investigating officer submitted a charge-sheet against accused-Sunauvvar, Faridi, Kallo and Lala under Sections 363, 366A, 368, 376 IPC.
5. Learned trial court has framed the charge against Faridi and Kallo under Section 363, 366 IPC, against Lala under Section 368, against Sunauvvar under Sections 363, 366 and 376 IPC.
6. Accused denied the charges and claimed trial.
7. In order to prove its case, prosecution has produced P.W.1 Manohar Singh complainant father of the victim, P.W.2 'A' victim, P.W.3 Mahadeo, P.W.4 Smt. Chandra Rani Singh headmistress Kanya Vidyalay, Goyapur, District Unnao,P.W 5 Dr. Kusum Dubey who has medically examined the victim on 7.5.1993. On internal examination of the victim, old torn and healed hymen was found present. No mark of injury over private part was found. Vagina admitting two fingers easily. Smear taken on two slights and sent for pathological examination. A supplementary report was also given on 21.5.1993 wherein on the basis of X-ray report, she assessed the age of the victim about 17 years. It is also opined that she is habitual to sexual intercourse. No definite opinion about rape could be given.
8. P.W.6 Head Constable Dev Prayag Dwivedi is former witness, P.W.7 S.I. Ram Singh is the investigating officer who has submitted the charge-sheet against the accused.
9. In the statement under Section 313 Cr.P.C. all the accused have denied the allegations leveled against them.
Sri Survesh Kumar Judicial Magistrate, Shababad Mathura C.W.1 has proved the statement of the victim recorded under Section 164 Cr.P.C.
10. After appreciating the evidence on record, learned trial court has acquitted the accused Faridi and Kallo. There was no sufficient evidence on record to prove the guilt against them beyond reasonable doubt. Learned trial court has recorded a finding of conviction under Sections 366, 368 and 376 against Sunauvvar and under Section 368 against Lala.
11. Feeling aggrieved by the impugned judgment, appellants have preferred the appeal.
12. Learned counsel for the applicant- Lala submits that there is absolutely no evidence against Lala who was convicted under Section 368 IPC. It is submitted that prosecution has failed to prove the necessary ingredients of Section 368 IPC against Lala. It is further submitted that the facts of the case are such which improbablized the prosecution version that the victim was kept in the house of Lala. Lala was knowing that the victim has been kidnapped by accused- Sunauvvar.
13. Firstly, which shall deal with the case of Lala, Lala is convicted under Section 368 IPC by the learned Trial Court.
14. To constitute an offence under Section 368 IPC, the prosecution must establish the following ingredients:-
(i) The person in question has been kidnapped.
(ii) The accused knew that the said person had been kidnapped.
(iii) The accused having such knowledge wrongfully conceals or confines the person concerned. It has been held in the case of Saroj Kumari vs. State of U.P. 1973(III) SCC 669.
15. It has further been held in Giraftar Alla Bax vs. State 1973 CRLJ 12 that knowledge on the part of accused cannot be presumed to convict him under Section 368 IPC.
16. It is a mixed question of fact as to whether Lala was knowing that victim has been kidnapped which could only be dealt alongwith the co-accused Sunauvvar.
17. According to the first information report, victim was kidnapped by Sunauvvar on 26.4.1993 at 4.30 AM while they were going together. First information report of the incident was lodged on 28.4.1993. P.W.1 Manohar Singh is father of victim who had explained the delay by saying that he inquired from Faridi, Kallo about his daughter when he did not get satisfactory reply then he lodged the first information report. It is further stated that information was given to him by Chheda and Mahadev that they have seen that the victim was going with accused Sunauvvar, Faridi and Kallo. P.W.3 Mahadev has stated that his house is at a distance of about 400 steps from the house of complainant but he informed the complainant on the 3rd day when complainant came to his village inquiring about his daughter. It is admitted by the P.W.3 Mahadev that Village Goyapur and Padmanapur wherein Manohar Singh and Mahadev are residing are adjoining. There is no explanation on record which can suggest that as to why for three days, no information was given by the P.W.3. Mahadev to Manohar Singh. Although, P.W. 3 Mahadev admits that he used to visit the house of Manohar Singh. Manohar Singh who had been the Pradhan of the Village. Hence, there is considerable delay in lodging of FIR which could not be explained by the prosecution.
18. Further P.W.1 Manohar Singh states that his daughter is aged about 14 years. She was recovered on 7.5.1993 that is after about 12 days of the incident. She was recovered alongwith accused Sunauvvar and Lala. In the statement under Section 164 Cr.P.C. victim has stated her age as 14 years. P.W.5 Dr. Kusum Dubey who has examined her has assessed her age as 17 years. It is admitted by P.W.1 Manohar Singh that in the voter list name of her daughter is mentioned. P.W. 2 victim has also admitted that in voter list her age is written as 18 years. Although, she has also stated that it is wrongly mentioned but the fact remaining that in the medico legal examination her age was 17 years. There can be difference of two years on either side. In the voter list her name is printed. A judicial notice of the fact can be taken that name of adult person is printed in the voter list. P.W.4 Smt. Chandra Rani Singh has given a certificate showing the date of birth of the victim as 1.5.1978 but the learned trial court has not believed on this certificate after giving the cogent reasons. Learned trial court has disbelieved the version of P.W.4 holding that she is closely related to the victim. There are interpolations in the register of school. A certificate exhibit K6 was issued by the Principal in her own hand writing and gave it to be P.W.1. There is apparent cutting in the certificate regarding the date of admission. Apparently, this certificate could not be relied upon. In this certificate, the date of birth is shown as 1.5.1978 and the child left the school on 1.11.83 at the age of about five and half years and the class from which she left the school is shown as Class IV. At the age of five and half years no child generally can study in Class IV particularly in rural background where children used to go to school at a later stage. Apparently, the certificate appears to be a fictitious documents which has been prepared in order to help the prosecution. Hence, the age of the victim at the time of incident cannot be said to be below 18 years. Rather, there is evidence on record to show that when her radiological age is shown as 17 years which could have a margin of two years on either side then the victim at the time of incident was major.
19. Now, it is to be seen as to whether victim was kidnapped with intent to marry Sunauvvar or with intent to force her for illicit intercourse or Lala was knowing this fact that she has been kidnapped or abducted whether the sexual intercourse was with consent or it was a case of rape.
20. On this count, victim is the star witness whose evidence is to be very minutely appreciated.
21. According to the P.W.2 victim she was induced to run away with Sunauvvar by Kallo as he was having enough money. On the date of incident victim left her house in the morning at about 4.00 AM. On the pretext that she is going to meet call of the nature. She sat on the cycle of Sunauvvar, Kallo and Faridi were on other cycle. It is relevant here that Kallo is the daughter of Faridi. At the very outset, it is highly improbable that a Faridi would induce a girl to run away with help of his own daughter.
22. Further victim boarded the truck along with Sunauvvar, they got down from the truck and reached at the house of accused Lala by a bicycle. Lala is living with his young daughter of 14, 15 years. They remained here for 9-10 days where Sunauvvar committed rape upon her. The only allegation against Lala is that he asked the victim that if any one asked about her she will tell, she is wife of Sunauvvar. Thereafter, Sunauvvar, victim and Lala came by a tampo from Shuklagang to Lucknow by pass where the police arrested them. P.W. 2 victim further states that she is having good relation with Sunauvvar prior to the incident. Sunauvvar had taken her lone photograph. She did not make any complaint to her parents when Sunauvvar asked the victim to run away with him. Further the victim did not make any noise or shout from the time when she left the house with Sunauvvar and till she was recovered by the police. She was having sufficient opportunity for shouting or drawning the attention of others that she is being kidnapped by Sunauvvar. She did not say a single word when she boarded the truck. When she went to the house of Lala where there were so many persons used to come. Further when she was brought to Lucknow by pass from Shuklagang. Consent of a person can only be assessed and judged by the conduct. When young lady was kidnapped by the accused if it was not with her consent then definitely she will raise a voice to save herself. It is more significant at a time when she has an opportunity to draw the attention of the others towards her. She did not try to save herself. She did not make any attempt either to inform any one or to her father, even after 10 to 12 days of the incident. Such conduct of the victim itself supports the defence version that she was a consenting party. She herself left the house with Sunauvvar. Victim was medically examined by the Dr. Kusum Dubey who did not find any mark of injury. Rather, she has stated that the victim hymen was old torn. There was no injuries on the private parts of the victim. So, there is no evidence of rape.
23. In the statement under Section 164 Cr.P.C. and in the statement recorded before the trial court there are material improvement. Statement under Section 161 Cr.P.C. was recorded on 11.4.1993 wherein she is stated that when she went to meet the call of the nature at about 4.00AM. Kallo met her who asked the victim to accompany her, thereafter, Sunauvvar and Faridi met and incited her that they will go to city and then she went with them. In the statement, she states that prior to Sunauvvar used to incite her to run away with him. Such improvement is fatal for the prosecution.
24. Conduct of the victim is such which itself creates doubt about the prosecution version. According to the prosecution, Lala was living with young girl of 14-15 years in the same house. Victim was kept in a room which is highly improbable. No one will allow an outsider who has kidnapped a young girl to live in his house where the young daughter of the owner is also living. This story also improbablised the prosecution version.
25. Learned Trial Court has misappreciated the evidence on record wherein the learned trial court has placed reliance upon the prosecution version and the statement of victim as well as other witnesses. Prosecution has utterly failed to prove that the victim was a minor who has been kidnapped by Sunauvvar and was kept in the house of Lala which could also not be proved that the victim was raped without her consent. Rather, evidence on record shows that victim was a consenting party. Consequently, learned trial court has committed patent illegality or misappreciation of evidence on record which find is liable to be set a side and is accordingly set a side. Appeal deserves to be allowed and is allowed.
26. Judgment and order dated 22.2.1997 passed by learned trial court is set aside. Accused- Sunauvvar is acquitted of the offence punishable under Sections 363, 366, 368 and 376 IPC. Accused-Lala is also acquitted for the offence punishable under Section 368 IPC. They are on bail. Their bail bonds have been cancelled and sureties are discharged.
27. Office is directed to certify this judgment to the learned trial court to ensure the compliance.
Order Date :-09.2.2017 [Justice Anil Kumar Srivastava-II.] Subodh/-