Allahabad High Court
Sanjay Kumar vs State Of U.P. on 25 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Court No.50 Reserved on 10.01.2023
Delivered on : 25.04.2023
Case :- CRIMINAL APPEAL No. - 3175 of 2017
Appellant :- Sanjay Kumar
Respondent :- State of U.P.
Counsel for Appellant :- Rajehs Yadav,Dileep Kumar Singh,Mukhtar Alam,Saquib Mukhtar
Counsel for Respondent :- G.A.
Hon'ble Ram Manohar Narayan Mishra,J.
1. Instant criminal appeal under Section 374(2) has been preferred by accused Sanjay Kumar against judgment and order dated 02.06.2017, passed by Addl. District and Sessions Judge, Court No.7, Gorakhpur in S.T. No. 89 of 2016 arising out of Case Crime No. 313 of 2015 under Sections 366 and 363 I.P.C., P.S.- Pipiganj, District- Gorakhpur, whereby the accused appellant have been convicted for charge under Sections 363, 366 I.P.C. and sentenced as under:
i) under Section 363 I.P.C., to undergo 5 years rigorous imprisonment and a fine of Rs. 5,000/- fine;
ii) under Section 366 I.P.C., to undergo 7 years rigorous imprisonment and a fine of Rs. 10,000/- fine;
all the sentences were directed to run concurrently and out of total amount of fine, fifty percent thereof is directed to be paid to the victim as compensation.
2. The factual matrix of the case, which is relevant for present appeal is that informant Shiv Kumar lodged an F.I.R. with P.S. concerned on 03.12.2015 at 06:45 hours, wherein he stated that in the night of 26.11.2015, his minor daughter aged around 15 years was kidnapped by seducing and enticing her by accused Sanjay, who also resides in his ward. When he made a complaint regarding this to his family members, his family members abused and threatened him. The contents of F.I.R. were opened in Report No. 10 at 06:45 hours on 03.12.2015 P.S.- Pipiganj, (exhibit KA -1). The police investigated the case, the victim was recovered by police on 03.12.2015, in the company of accused Sanjay near Boriganj Railway Station Trisection, Pipiganj, accused was also arrested on 03.12.2015 and sent to jail.
3. The victim stated in her statement recorded under Section 164 Cr.P.C. before Magistrate on 11.12.2015 that she is acquainted with accused for past four years and she loved him. On 27.11.2015, he visited her home where she, Sanjay and her younger sister were watching a video cassette of marriage of his sister together. In the meanwhile, her father and aunty appeared and they had seen accused Sanjay there and gave him beating, he also threatened her, therefore, she became scared. On that day, in the evening, she went to the place of a relative of Sanjay along with him. Police caught both of them after three days. The accused did not do any forceful act to her. The medico legal examination of the victim was conducted on 04.12.2015 at 06:20 P.M. which is placed on record as exhibit K-5. In description of the case, the doctor has stated "She has fled away from home alone, not with any boy". Her hymen was found torn, old and healed. For determination of age, the victim was subjected to radiological examination and C.M.O. in his report dated 07.12.2015, opined that according to X-Ray report and general appearance, he is of the opinion that she was about 16 years old. Exhibit K-13 is a X-Ray report of the victim. In radiological examination of vaginal smear of victim dated 05.15.15, doctor opined that after examination of both slides, no RBCs, spermatozoa or gonococci were seen. In High-School Marksheet, the date of birth of victim, exhibit K-17, is 17.08.2001. Accordingly, the Investigating Officer found that on the date of incident, victim was 14 years 3 months old, the accused was enlarged on bail by orders of this Court dated 06.04.2016. The I.O. after completing investigation filed charge-sheet against accused with prayer to prosecute him for charges under Sections 363, 366 I.P.C. Learned Magistrate committed the case and Sessions Court taken up the case, charges were framed against accused appellant under Sections 363, 366 I.P.C. on 27.08.2015 by Addl. Sessions Judge, Court No.-7, Gorakhpur. The accused denied the charges. During prosecution cross-examination, P.W.-1 Shiv Kumar, the informant who is father of the victim proved written report filed by him on Police Station as exhibit K(1), the recovery cum arrest memo of accused and victim as exhibit K(2), which is prepared by Investigating Officer, Omkarnath Srivastava. He acknowledged his signature thereon along with his wife bearing signature of victim and accused also. He acknowledged his signature on custody papers regarding victim as per exhibit K(3). P.W. 2- Khusbhu, is victim who stated her age as 18 years 1 months on the date of her examination dated 21.09.2016. She acknowledged her statement under Section 164 Cr.P.C. which is marked as exhibit K(4). However, she declared hostile and was cross-examined by ADC(Crime) Cri Raj Kumar. The brother of the informant was also declared hostile when cross-examined by prosecution with permission to the Court. P.W.-4 Ranjana Jaiswal is aunt of the victim, P.W.-5 Jagdish is uncle of the informant, P.W.-6 Firoz Ali is neighbour of the informant, he has also declared hostile. P.W.7- Sri Mohan was also declared hostile, P.W.-8 Dr. Sushma Sinha has proved medical examination papers of the victim as exhibit K(5) and supplementary medical report as exhibit K(6). P.W.-9 Manju Devi is a witness of recovery of the victim and arrest of the accused on 03.12.2015. P.W.-10 Constable Ram Vilas Bhaskar is author of F.I.R., exhibit K(7) and extracts of G.D. of registration of case as exhibit K(8). The I.O. was not produced during trial and the paper authored by him like site plan, chargesheet are accepted in evidence and exhibited on basis of their genuineness admitted by learned counsel for the accused during trial. Learned Trial Judge after hearing submissions of learned counsel for the parties and appreciating the evidence on record gave a finding that accused Sanjay kidnapped the victim and subsequently, married with her also. The prosecution has been successful to prove charges under Sections 363, 366 I.P.C. against the accused. The ingredients of Section 363, 366 I.P.C. are applicable in the case as the victim was minor at the time of the offence and she was seduced and enticed away by the accused, from lawful guardianship of her parents. Learned trial Judge also observed that although none of the witnesses of the fact including the victim have supported prosecution version, but as per date of birth mentioned in High-School Marksheet of the victim, she had not even completed age of 15 years, however, even after the witnesses of fact turning hostile, the facts and attending circumstances of the case and other evidence can be taken into account to find out as to whether cogent evidence is on record on the basis of which the accused can be convicted and in that situation, the accused cannot be acquitted on ground that witnesses of fact have turned hostile. He observed that P.W.-1, Shiv Kumar, father of the victim has stated in F.I.R. that his daughter was aged around 14 years and after appreciating the evidence on record, learned Trial Judge recorded verdict of guilt against accused and sentenced him as aforesaid.
4. Heard learned counsel for the appellant, learned A.G.A. for the State and perused the material on record.
5. Learned counsel for the appellant submitted that the learned Court below has recorded the verdict of guilt and sentenced the appellant against strength of evidence on record and the impugned judgment is not sustainable under eye of law. The appellant was enlarged on bail during trial as well as during pendency of present criminal appeal by order of this Court. None of the witnesses of fact have supported prosecution version, including the victim in spite of that the Trial Court has convicted the accused appellant and sentenced him without cogent evidence appearing against him. The victim in her statement before the Trial Court has specifically stated that she had gone with the appellant out of her own free will, she also stated that she had come with her husband Sanjay for evidence and also engaged a counsel after affixing her photo on Vakalatnama. She had also stated that she had not made any statement in police against her husband. P.W.1, Shiv Kumar has stated in his cross-examination before the Trial Court that his marriage was performed in the year 1995 and after two years of marriage in the year 1997, the victim Kushbu was born and at the time of incident, she was studying in Class-XI. Her age was around 18 years. He also stated that date of birth of victim recorded in her High-School Marksheet is less than 4 years and her actual age was wrongly entered by her teacher. The ingredients of offence under Section 363, 366 I.P.C. are not made out against the appellant on basis of evidence on record. Therefore, he deserves to be acquitted of these charges.
6. Per contra, learned A.G.A. appearing for the State submitted that despite fact that witnesses of fact, including the victim have not supported prosecution version in their statement during trial, however, on basis of documentary evidence, this fact is established that victim was minor at the time of incident and she was less than 15 years of age at that time. She was seduced and enticed away by the accused to leave her parental place, out of guardianship of her parents and subsequently, the accused married her. This fact itself suggests that the victim was kidnapped by the accused from legal guardianship of her parents in order, she might be forced to seduce or sexual intercourse and, therefore, offence under Section 363, 366 I.P.C. is made out in the case. Learned Trial Court has rightly convicted and sentenced the appellant as aforesaid and no interference in impugned judgment is required in present criminal appeal.
7. From perusal of evidence on oath of P.W.2, it is found that she stated therein that she is eldest off spring of her parents, she was residing at her parental place in Ward No. 3, Pipiganj. Her date of birth is 17.08.2001 in her High-School Marksheet, on the date of incident on 26.11.2015, in the evening she was watching video cassette of marriage with her acquaintance Sanjay in her home, his sister came there and asked her to go to her home and she accompanied her, when this fact came to the knowledge of her father, he threatened to kill her and thereupon she called Sanjay in the evening and went to the place of his relative along with him. Subsequently, she came to know that her father had lodged a report at police station to the effect that she got missing, on 03.12.2015. She came to the place of her father and police reached there and performed some paperwork on which she appended her signature along with her parents. The victim acknowledged her signature on exhibit K-2, recovery memo, but stated that she had not made any statement at police station and she was given to custody of her father by orders of Court. She has also acknowledged the photo impression of her photograph on her High-School Marksheet in which her date of birth is mentioned as 17.08.2001. She denied the fact that her parents had abused or threatened the accused. She also stated that she came to depose in the case along with Sanjay, who is now her husband. She acknowledged in her statement under Section 164 Cr.P.C., recorded by Magistrate on which exhibit K-4 was marked. After this statement the victim was declared hostile in her cross-examination by ADC, Government Counsel (Crime) Cri, she stated that she was aged about 18 years, she disowned her statement recorded under Section 161 Cr.P.C. by I.O. She clarified that the accused had not done anything wrong with her forcefully, she also stated her age as 16 years on instructions of her father, in her statement 164 Cr.P.C. She also stated that she got married with Sanjay on 20.07.2016, she dispelled suggestion made by prosecution that accused had enticed her away by luring her on pretext of marriage from lawful guardianship of her parents and subsequently, married with her and for that reason she was describing her age in enhanced manner. In cross-examination by defence, she admitted that presently she and accused are residing together as husband and wife. P.W.-3 Jay Kumar, P.W.-4 Ranjana Jaiswal, P.W.-5- Jagdish, P.W.-6 Firoz Ali and P.W.-7 Sri Mohan, have not made any statement in favour of prosecution and they were declared hostile by prosecution and permitted to cross-examination by the learned A.D.C. (Crime) but nothing material could be elicited in their cross-examination, which would likely, benefit to the prosecution.
8. Learned counsel for the appellant placed reliance on judgment of Hon'ble Apex Court in MAFAT LAL & ANR VERSUS THE STATE OF RAJASTHAN 2022 Live Law SC 362, which is Criminal Appeal No. 592 of 2022 filed against High Court Judgment which refused to quash criminal proceedings against the appellant accused for abducting or kidnapping a girl. The appeal was allowed. In that case, the father of the victim lodged an F.I.R. with police station that his minor daughter has been abducted by the accused and case under Section 363/366 I.P.C. was registered against the accused. The abductee and accused could not be traced for long time and police filed a chargesheet against the father of the accused under Sections 363, 366, 120-B I.P.C. in the year 2020, the accused along with abductee filed a petition under Section 482 Cr.P.C. before the High Court praying for quashing of F.I.R. and all the proceedings arisen from there. The status therein is that they were well known to each other and were into deep love affairs, which relationship was not acceptable to the father of the abductee, under compelling circumstances, both of them parted from their family members in the year 2005 and later got married on 25.12.2006. They also stated that almost 15 years have passed, accused and abudctee were living happily married life and they were also been blessed with a boy. They also stated that abductee was never victimized, abducted nor kidnapped but on her free volition left her parental home on account of unpleasant and disturbing circumstances created by her father. It is also stated that abductee was 17 years of age at the time when she left her home on her own volition and that the accused had no role to play in her parting with her family. Hon'ble Apex Court found that the accused and victim has stated before High Court that she had left her parental home on her own volition, they were married since December, 2006 and have been living happily. No fruitful purpose would be served by relegating the matter for conducting the trial as the same would not be conducive for either of the appellants. It would be a futile exercise. Kidnapping would necessarily involve enticing or taking away any minor under eighteen years of age, if a female for the offence under Section 363 IPC. Section 366 IPC would come into play only where there is a forceful compulsion of marriage, by kidnapping or by inducing a woman. This offence also would not be made out once the appellant no. 2 the abductee has clearly stated that she was in love with the appellant no.1 and that she left her home on account of the disturbing circumstances at her parental home.
9. Hon'ble Apex Court in S. Varadarajan vs State Of Madras 1964, 1965 SCR (1) 243, considered Section 363 and 366 I.P.C. elaborately. Hon'ble Court observed in following paras:-
(9) It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of s. 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.
(10) It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking".
Hon'ble Court also quoted an English judgment of Reg. v. Christian Olifier(1) (1866) 10 Cox CC 402, in which it was observed "I am of opinion that if a young woman leaves her father's house without any persuasion, inducement, or blandishment held out to her by a man, so that she has got fairly away from home, and then goes to him, although it may be his moral duty to return her to her parent's custody, yet his not doing so is no infringement of this Act of Parliament for the Act does not say he shall restore her, but only that he shall not take her away."
10. Section 363 of I.P.C. provides as under:-
363. Punishment of kidnapping.- Whoever kidnaps any person from 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.
363-A. Kidnapping or maiming a minor for purposes of begging.
1. Whoever kidnaps any minor or, not being the lawful guardian of a minor, obtains the custody of the minor, in order that such minor may be employed or used for the purposes of begging shall be punishable with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
2. Whoever maims any minor in order that such minor may be employed or used for the purposes of begging shall be punishable with imprisonment for life, and shall also be liable to fine.
3. Where any person, not being the lawful guardian of a minor, employs or uses such minor for the purposes of begging, it shall be presumed, unless the contrary is proved, that he kidnapped or otherwise obtained the custody of that minor in order that the minor might be employed or used for the purposes of begging.
4. In this section
1. "begging" means:
1.1. soliciting or receiving alms in a public place, whether under the pretence of singing, dancing, fortunetelling, performing tricks or selling articles or otherwise;
1.2. entering on any private premises for the purpose of soliciting or receiving alms;
1.3. exposing or exhibiting, with the object of obtaining or extorting alms, any sore, wound, injury, deformity or disease, whether of himself or of any other person or of an animal;
1.4. using a minor as an exhibit for the purpose of soliciting or receiving alms;
2. "minor" means:
2.1. in the case of a male, a person under sixteen years of age; and 2.2. in the case of a female, a person under eighteen years of age Thus, the ingredients of Section 363 I.P.C. can be carved out as below:
, (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. 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. The word 'entice' involves an idea of inducement or allurement by exciting hope or desire in the other.
11. Section 366 of I.P.C. provides as under:-
366. Kidnapping, abucting 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;
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 also be punishable as aforesaid.
On examining the provisions of Section 366 I.P.C., its essential ingredients can be summarized as below:
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 366 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 of the code which denotes the word "woman" as female human being of any age. Thus, 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. Kidnapping and abduction are two distinct offences. Kidnapping is an offence against guardianship, it consists of enticing or removing a girl from the keeping of lawful guardians without her consent, abuction is an offence as defined under Section 362 I.P.C., when a person is by force compelled or by deceitful means induces to go from any place. In abduction, the person abducted may be minor or major. Kidnapping is punishable per se in terms of Section 363 without any specific intent, on the other hand, abduction is not punishable per se, and is punishable only when accompanied by a particular purpose as contemplated in sections 364 to 366. Sometimes abducting and kidnapping is committed for the same purpose, but it is not necessary in each case.
12. In present case, the age of victim appears on basis of her High-School Marksheet below between 14 to 15 years and according to medical examination report 16 years as opined by C.M.O. In any case, it cannot be doubted that the victim was minor at the time of incident. The statement of her father on this point before the Court that her age was recorded as 4 years less than her actual age in school record is not based on any concrete logic or proof. However, if we peruse the statement of victim recorded under Section 164 Cr.P.C. before the Magistrate as well as before the Court during Trial, it cannot be stated that accused had taken or enticed away the victim out of the keeping of the lawful guardianship of her parents, as the victim has stated at both stages that on being threatened by her father and out of fear, she called the accused and went to the place of his one relative along with him. Therefore, if we take the statement of the victim, the role played by the accused in her going from parental place is of a nature of passive action and it cannot be discerned that he played active role in the going of the victim from place of her parents, without their consent. 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. 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. In the present case, there is no evidence whatsoever in support of the allegations that accused enticed the victim to leave her parental place and accompany to go somewhere else. If we go through the statement of victim recorded under Section 161 Cr.P.C., are not admissible in evidence, it is found that the victim herself enticed the accused and go with her to some other suitable place out of keeping of her parents. Therefore, the role of accused at best stated as a facilitator and cannot be held that he either took her or enticed her away from lawful guardianship of her parents. The element of initiative is lying at the end of the victim and not on the accused.
13. Now, on the basis of foregoing discussions this Court is of considered opinion that preponderance of probabilities indicate that the victim had voluntarily gone with the accused appellant and in the process accused did not play an active role, therefore, the charge under Section 363 I.P.C. cannot be set to have been proved against the appellant and once this conclusion is reached, the offence under Section 366 automatically fails as the victim has not levelled any allegations of mala fide or sexual intent against the accused. Consequently, it is held that prosecution failed to prove its case against the accused beyond reasonable doubt.
14. In view of the above discussion, the appeal is allowed. The conviction and sentence passed against the accused appellant under Sections 363 and 366 of the Indian Penal Code is set aside and the appellant is acquitted of both the charges as same are not found to be proved against him as beyond reasonable and doubt. The fine, if realised, be refunded to him forthwith. The case property shall be dealt with in a manner as directed by the trial court.
15. The appellant is directed to file a personal bond and two sureties each in the like amount to the satisfaction of the court concerned, in compliance of Section 437(A) Cr.P.C. which shall be in force for 6 months.
Order Date:- 25.04.2023 Nitika