Allahabad High Court
Pramod Kumar vs State Of U.P. on 21 December, 2021
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 2.11.2021. Delivered on 21.12.2021 Court No. - 87 Case :- JAIL APPEAL No. - 73 of 2020 Appellant :- Pramod Kumar Respondent :- State of U.P. Counsel for Appellant :- From Jail,Shyam Kumar Verma Counsel for Respondent :- G.A. Hon'ble Mrs. Sadhna Rani (Thakur),J.
This jail appeal has been preferred by the appellant Pramod Kumar against the judgment and order dated 13.11.2018 passed by Special Judge, (POCSO Act)/ 8th Additional Sessions Judge, Agra in Special Case No. 2446 of 2017, case crime no. 441 of 2017 State Vs. Pramod Kumar, under sections 363, 366 and 376 I.P.C. and 3/4 POCSO Act, police station Atmadpur District Agra.
By the impugned judgment and order dated 13.11.2018 the learned lower court convicted the present accused Pramod Kumar under section 363, 366 and 376 I.P.C. and acquitted under section 3/4 POCSO Act, whereby the accused persons Dinesh, Choota @ Atendra and Tinchu @ Sarvesh were acquitted of all the charges levelled against them by the same judgment passed in the connected Special Sessions Trial No. 821 of 2018, State Vs. Tinchu and others under the same sections.
The facts germane to this appeal are that on 4.9.2017 on 18.10 hours Mannu son of Niroti Lal lodged a first information report at case crime no. 0441 of 2017 under sections 363 and 366 I.P.C. against Lakhan and Chhotu, both sons of Suresh with the allegation that he is a peace loving and law abiding poor person belonging to scheduled caste. He works as a labourer in Ballabhgarh Faridabad and his family members reside in village Siktara police station Atmadpur District Agra. On 1.9.2017 his wife Smt. Ranno Devi had gone to graze animals at about 4.00 p.m. His daughter Pooja aged about 16 years was alone at the house. Lakhan and Chhotu sons of Suresh r/o house no. 83 lane no. 2, police station and District Firozabad enticed her daughter away and her whereabouts are not known till now so the steps be taken against them.
After lodging the first information report, Sub Inspector Jai Prakash recorded necessary statements, prepared site plan, made attempt to recover the girl and ultimately the girl was recovered by him on 22.9.2017. Her statements were recorded under sections 161 and 164 Cr.P.C. and she was given in supurdagi of her parents as per her wish. The girl was medically examined. Her statement against sexual violence was recorded by the concerned doctor. According to the report of C.M.O. she was found to be about 18 years of age. All the necessary endorsements were made in case diary and following the due procedure chargesheet no. 284/2017 dated 14.12.2017 was submitted against the present accused Pramod Kumar under sections 363, 366, 376D I.P.C. and 3/4 POCSO Act and charge sheet no. 284A/2017 dated 15.3.2018 was filed against Chhota @ Atendra, Dinesh and Tinchu @ Sarvesh under the same sections 363, 366, 376D I.P.C. and 3/4 POCSO Act. After receiving the chargesheets, learned Magistrate took cognizance against the accused persons and under due procedure of law the cases were committed to the court of Sessions.
On 10.5.2018 and 20.4.2018 charges under section 363, 366, 376-D I.P.C. and 3/ 4 POCSO Act were framed against accused Pramod Kumar, Dinesh and Tinchu @ Suresh respectively. The accused persons denied of the charges and pleaded not guilty.
The prosecution produced as many as 7 witnesses in support of their case. P.W.-1 Mannu is the father of the victim. P.W.-2 Ranno Devi is mother of the victim, P.W-3 Shivnath is the Principal of the school where victim is said to have studied, P.W.-4 is the victim herself, P.W.-5 Jai Prakash Singh is the first Investigating Officer, P.W.-6 Dr. Sunita Kumari has proved the medical report of the victim. P.W.-7 Vijay Kumar is the second Investigating Officer.
As documentary evidence, the prosecution has produced chik FIR as exhibit K-1, School leaving certificate of the victim as exhibit K-2, statement of victim under section 164 Cr.P.C. as exhibit-K-3, siteplan as exhibit-K-4, Supurdaginama as exhibit K-5, Chargesheet no. 284 of 2017 against the accused Pramod Kumar as exhibit K-6. Medical report exhibit K-7, pathologist report exhibit K-8, X-ray report and report of C.M.O. as exhibit K-9. Charge sheet no. 284-A of 2017 against Tinchu @ Sarvesh, Dinesh and Chhota @ Atendra as exhibit K-10.
On 23.10.2018 statements of accused persons were recorded under section 313 Cr.P.C. wherein they denied of their charges and claimed their implication to be false. No defence evidence has been adduced by accused persons.
As per x-ray report and the report of C.M.O. exhibit K-9 the age of victim is determined about 18 years and regarding rape it is opined that no definite opinion regarding rape can be given. As per finding of the lower court record, the girl was found to be about 18 years of age at the time of incident and the date of birth of the victim mentioned in the school leaving certificate 8.7.2000 is disbelieved by the trial court. There is no dispute regarding the same and because the age of girl is determined as about 18 years at the time of incident so the lower court on the application for custody of the girl ordered to let the girl go as per her own wish. As per supurdaginama exhibit K-5 the girl consented to go with her parents so the Sub Inspector Jai Prakash gave the girl in the custody of her parents.
As per the judgment of learned lower court dated 13.11.2018, the three accused persons namely Dinesh, Choota @ Atendra and Tinchu @ Sarvesh have been acquitted of all the charges levelled against them under section 363, 366, 376 D I.P.C. and section 3/4 POCSO Act. The accused Pramod Kumar has also been acquitted of the charge under section 3/4 POCSO Act but he has been convicted under section 363, 366 and 376 I.P.C. as noted above.
The present appeal has been preferred on behalf of Pramod Kumar only with the contention that the impugned judgment is against the law and facts on record. The accused has been illegally convicted and undue weightage has been given to the prosecution evidence. The version of the accused has been illegally rejected. The sentence awarded is excessive. The prosecution has utterly failed to prove its case beyond reasonable doubt. No benefit of doubt has been given to the accused. The accused is innocent and has committed no offence. He has been falsely implicated in the present case. He has been illegally convicted, so judgment is prayed to be set aside.
From perusal of the lower court judgment it is clear that the present accused has been convicted under section 363, 366, 376 I.P.C. If we go through the finding of the lower court on page ''13' of the judgment it has reached at the conclusion that on the basis of C.M.O. report the girl was found to be of age of 18 years at the time of occurrence so the accused Pramod Kumar is acquitted of the charges under section 3/4 POCSO Act. In my opinion, the finding of lower court is self contradictory. If the court has found the girl to be of 18 years of age at the time of occurrence then the accused could not be convicted under section 363 I.P.C. For the offence under section 363 I.P.C. In this regard section 361 of I.P.C. is to be looked into which can be reproduced as under;
Section 361 :- 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.
The punishment of kidnapping is given in section 363 I.P.C. Thus, if any person who entices away any minor girl under age of 18 years out of keeping of the lawful guardianship of such minor without the consent of such guardian will said to have kidnapped such minor from the lawful guardianship and such person shall be punished under section 363 I.P.C. As per finding of learned lower court at page 13 of its judgment the age of victim girl has been decided to be 18 years at the time of occurrence. So in my opinion, if the girl is found to be of 18 years i.e. major on the date of occurrence then the person who is said to entice away her cannot be held guilty under section 363 I.P.C. so finding of the judgment of learned lower court to the extent of section 363 I.P.C. is erroneous and against the law.
So far as conviction under section 366 I.P.C. is concerned it is to be proved that the girl was induced with the intent that she may be compelled or knowingly it to be likely 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.
For the offence under section 376 I.P.C. the word rape has been defined under section 375 I.P.C. wherein a man is said to commit rape on a female if the act is done against her will, without her consent, if it is with her consent it has been obtained by putting her or any person in whom she is interested in fear of death or of hurt with or without her consent when she is under 18 years of age or if she is unable to communicate her consent.
Here it is not the case that the girl was unable to communicate her consent. It has been decided by the lower court that at the time of occurrence the girl was 18 years of age i.e. she was major. So the conviction under section 363 I.P.C. becomes against the law.
Now it is to be seen whether the girl was abducted with the intend that she may be compelled or likely to be compelled to marry against her will or she may be forced or seduced to illicit intercourse or likely to be forced or seduced to illicit intercourse and physical relations are made with the girl against her will or consent.
If we go through the medical report exhibit K-6, the opinion of doctor is that no definite opinion regarding rape can be given. P.W.-6 Dr. Sunita has proved this report by her statement. If we go through the report, it is mentioned therein that the girl had changed clothes under-garments, she had washed her clothes and under-garments, she had passed urine and stool, rinsed her mouth. The girl is said to be recovered on 22.9.2017 and is said to have been examined next day i.e. on 23.9.2017. Hon'ble Apex Court in the case of Wahid Khan Vs. State of Madhya Pradesh, 2010 (68) ACC 266 held that rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is to the effect whether there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one.
So the physical assault on the victim was a rape or not is to be decided by the court on the basis of evidence on record. Whether the said victim was abducted or kidnapped with the intent of compelling her to marry any person against her will or that she may be forced or seduced to illicit intercourse and whether the physical assault on the victim comes under section 375 of I.P.C. is to be looked into and the evidence is to be scrutinized to come to a definite conclusion.
As per first information report Lakhan and Chhotu both sons of Suresh were said to have enticed away the victim. During investigation the involvement of these two persons was found wrong. When the girl was recovered by the police on 22.9.2017 she was found in the company of the present accused Pramod Kumar. When her statement under section 161 Cr.P.C. was recorded on 22.9.2017 she stated that on the missed call of accused Pramod they started conversation with each other and at the last on the call of Pramod Kumar she left her home. In the way she met Chhotu who take her to Atmadpur where she met Pramod Kumar and Pramod Kumar took her NOIDA Mamura by bus. There they solemnized marriage and started living like husband and wife. Next day on 23.9.2017 when she was produced before the doctor there she narrated the incident that on 1.9.2017 Dinesh, Tinchu and Chhota lifted her from her home to some unknown place. They kept her for 3-4 days there then they left her with Pramod Kumar and Chhota. Pramod Kumar committed rape upon her. She lived for 6-7 days along with Pramod after that police recovered her.
On 4.10.2017 her statement under section 164 Cr.P.C. was recorded before the Magistrate wherein she stated that on 1.9.2017 at 4.00 p.m. she went alone to Admadpur to purchase vegetables. She met there Dinesh,Tinchu and Chhota who administered her juice and after having juice she felt dizziness. She was taken away from there by a roadways bus. When she boarded on bus she became unconscious. When she gained her conscious she found herself in a room in Mamura. Chhota put off her trouser and Tinchu and Dinesh caught hold her hands and legs. Chhota committed rape on her. After Chhota, Dinesh and Tinchu also raped her and then they handed over the victim in custody of a boy named Pramod Kumar who took her to his house by auto rickshaw and next day he also committed rape on her. During traveling in auto rickshaw she did not raise any alarm as Pramod Kumar had given threat to kill her brother.
On 6.10.2017 the Investigating Officer recorded her additional statement wherein she stated that she is not familiar with Chhotu. Chhotu is the nephew of Tinchu. Chhota, Tinchu and Dinesh administered her juice, raped her and then gave her in custody of Pramod Kumar.
If we go through the evidence on record of p.w.-1, the father of the girl, he has proved the complaint wherein he has mentioned that on 1.9.2017 her daughter was enticed away by Lakhan and Chhotu. The only statement regarding the present accused, the witness has made is that on 21.9.2017 her daughter was recovered with Pramod and Pramod was arrested.
P.W.-2 mother of the victim has also stated that on 1.9.2017, she had gone to house of her parents. Her husband informed her in the evening that Lakhan and Chhotu have enticed away their daughter Pooja. Pooja came back on 21.9.2017 and on being asked she did not name Dinesh, Chhota and Tinchu. She also admitted that her daughter was recovered along with Pramod Kumar. Pramod Kumar was arrested by the police. Both these witnesses have not mentioned the name of the present accused in committing the rape on their daughter. They have only stated that the girl was recovered along with Pramod.
The most important and the only witness of the occurrence is the girl herself who has appeared as P.W.-4 in the court. In her examination-in-chief she stated that on 1.9.2017 in the evening she went alone to Atmadpur for purchasing vegetables, Pramod Kumar met there along with his friends. Pramod Kumar administered her juice after that she felt dizziness and then they took her by a bus and kept her in a room. Pramod Kumar raped her and on 21.9.2021 when he was bringing her to Agra she was recovered by the police at Taj Expressway. She was medically examined and Pramod was arrested. She specifically denied the involvement of Dinesh, Chhota and Tinchu in enticing her away or committing rape on her. She was declared hostile and in the cross examination by the learned Government Advocate she denied of her statement under section 161 Cr.P.C. and stated that she is not aware of the said statement. She has no knowledge how this statement has been recorded by the police and in cross examination again she stated that Pramod Kumar committed rape on her. He kept her in his house and gave threat to kill her brother. In the cross examination by the counsel on behalf of Tinchu, Chhota and Dinesh she again denied of rape committed by Tinchu, Chhota and Dinesh.
It is noteworthy that only three witnesses of fact have been produced on behalf of the prosecution wherein p.w.1 and 2, the parents of the victim are neither the eye witnesses of the incident nor have made allegation against Pramod of enticing the girl away or that he committed rape on their daughter. They have only admitted the fact that their daughter was recovered with Pramod Kumar, however, the victim has in her examination-in-chief and also in cross examination stated that Pramod Kumar committed rape on her. It is true that the victim the PW-4 has not been cross examined by the learned counsel of accused Pramod Kumar rather none of the witnesses have been cross examined by the counsel of accused Pramod Kumar. It is found that on 29.10.2018 when the statement under section 313 Cr.P.C. of the accused persons had been recorded and the arguments were heard in part an application on behalf of the accused Pramod Kumar was moved that his counsel be permitted to cross examine the witnesses. This application was rejected on the ground that it was moved at a very belated stage. However, the judgment on the basis of uncontroverted evidence of the victim was passed which resulted into conviction of accused Pramod Kumar. The evidence of the victim only is enough to hold the accused guilty but for holding a person guilty of offence, it is necessary that the statement of only witness i.e. prosecutrix must be convincing, reliable and trustworthy. Now we have to see whether the uncontraverted statement of victim is reliable enough to bring home the guilt of accused.
It is true that when the first information report was lodged by the father of the victim he had no knowledge that with whom his girl has eloped. Only on the basis of suspicion the names of Chhotu, Lakhan were mentioned therein and the implication of these two persons was found wrong by the police, they were not even chargesheeted.
When the girl was recovered on 22.9.2017 she stated in her statement under section 161 Cr.P.C. that she went along with Pramod Kumar on her own on the phone call of Pramod Kumar. They went to Noida Mamura. Pramod Kumar kept her in his house. They both solemnized their marriage and lived like husband and wife. It is noteworthy that in the bail application also the same ground was taken by Pramod Kumar that both had solemnized marriage and were living as husband and wife. A photocopy of marriage certificate was produced, then the accused Pramod Kumar was released on bail on 28.10.2017.
After admitting the fact of marriage with Pramod Kumar in statement under section 161 Cr.P.C., the girl was produced before the doctor for her medical examination. There she named Dinesh, Tinchu and Chhota that they lifted her from her house and she was kept with them and afterward she was left with Pramod Kumar by them. Chhota and Pramod committed rape upon her. Thus on the next day of her recovery along with Pramod Kumar she implicated Dinesh, Tinchu and Chhota also in the offence and alleged that they lifted her from her house. After the statement before the doctor which has been proved by the doctor as P.W. 6 in the court, on 4.10.2017 in her statement under section 164 Cr.P.C. she cooked up a fresh story that on 1.9.2017 at 4.00 p.m. she had gone to buy some vegetables to Atmadpur where Tinchu and Chhota administered her juice and took her in a bus to Mamura. In the bus she got unconscious and when she gain her conscious Tinchu, Dinesh and Chhota committed rape on her one by one. After that they gave her in the custody of Pramod Kumar who took her in his house and there he also committed rape on her. On 6.10.2017 her additional statement was recorded by the police wherein she again named Chhota, Tinchu and Dinesh for administering her juice, committing rape on her and transferring her in custody of Pramod Kumar and when she was produced in the court as P.W.-4, she clearly refused the involvement of Chhota, Dinesh and Tinchu in enticing her away and committing rape on her. Here she only implicated Pramod Kumar and made allegations against him of committing rape on her.
Though on single testimony of the prosecutrix the accused can be convicted but her evidence must be convincing and reliable as the Hon'ble Apex Court in Santosh Prasad Vs. State of Bihar (2020) 3 Supreme Court Cases 443 and Sudhansu Shekhar Sahoo Vs. State of Orisa, 2003 AIR SCW 154 has opined that there can be a conviction solely based on the evidence of the prosecutrix however the testimony of the prosecutrix must be trustworthy and convincing and reliable. Non-examination of other witnesses cannot be ground to reject the prosecution case. In the judgment of Abbas Ahmad Choudhary Vs. State of Assam, 2010 (12) SCC 115, the Apex Court held that the statement of prosecutrix must be given primary consideration but at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that the prosecutrix would always tell entire story truthful. Here the statement of prosecutrix is the only evidence produced in support of charges levelled by the prosecution but the evidence of the prosecutrix cannot be said to be reliable. It is completely shaky. The girl has changed her stand every time.
At one place, when she has been recovered by the police she admits in the statement under section 161 Cr.P.C. the present accused Pramod Kumar to be her husband and stated that they had solemnized marriage and were living as husband and wife and very next day in her statement before the doctor she implicated Chhota, Dinesh and Tinchu and blamed them of committing rape upon her and transferring her custody to Pramod Kumar by these three persons. She also stated that these three persons lifted her from her home. On 4.10.2017 in her statement under section 164 Cr.P.C. she again changed her stand that on the date of incident she had gone to Atmadpur to buy some vegetables and there Tinchu, Dinesh and Chhota administered her juice. She felt dizzy and she was taken away by a bus where she got unconscious and these three persons committed rape on her and gave her in custody of Pramod Kumar. On 6.10.2017 in her additional statement under section 161 Cr.P.C. again she repeated this statement. When she was produced in the court as P.W.-4 she totally exonerated Chhota, Dinesh Tinchu and denied the involvement of the other persons in the offence except Pramod Kumar.
It is noteworthy that after her recovery and recording her statement under section 161 Cr.P.C., she was living with her parents. These changed circumstances changed her stand also.
As the girl has been found to be major on the date of incident, so her consent makes a difference in the commission of the offence. It is admitted fact that girl was recovered from the custody of Pramod Kumar and her statement that after committal rape by Chhota, Tinchu and Dinesh they handed over her to Pramod Kumar next day means after eloping on 1.9.2017 till her recovery on 22.9.2017 at least for 20 days she was with accused Pramod Kumar and if she was taken forcefully she could have raised alarm, she could have come out from his house and report the matter to police but she did not do so rather she continued living with him and when she was recovered by the police she was in the company of Pramod Kumar. There also she did not state before the police that she was being taken forcefully by the accused Pramod Kumar rather in her first statement of the recovery under section 161 Cr.P.C. she accepted that she had solemnized marriage with accused Pramod Kumar which makes it clear that she was a consenting party who left her house on her own and went to meet Pramod Kumar and both solemnized marriage and lived as husband and wife together. Later on, she was recovered by the police and started living with her parents and then she changed her stand implicating Pramod Kumar in the offence punishable under sections 363, 366 and 376 I.P.C. The lower court has held the prosecutrix major on the date of occurrence on the basis of the above discussion, the evidence of the prosecutrx with regard to the offence committed with her is found to be totally unreliable, untrustworthy and unconvincing, hence the accused cannot be convicted of the charges levelled against him.
The finding of lower court convicting the accused Pramod Kumar under section 363 Cr.P.C. after holding the victim major is completely erroneous and against the law. The conviction of Pramod Kumar under other sections is also based on unreliable and shaky evidence. The sexual intercourse in question is not proved amounting to rape and no offence is brought home to Pramod Kumar appellant. Learned lower court has misconstrued the evidence produced by the prosecution in recording perverse finding regarding conviction of the accused. Hence the judgment of lower court is liable to be set aside.
For the reasons mentioned above, the impugned judgment and order cannot be upheld and it is set aside.
Accordingly, the appeal is allowed.
The appellant Pramod Kumar is acquitted of the charges levelled against him and he be set at liberty forthwith if not required in any other case.
Order Dated :-21.12.2021 Gss