Allahabad High Court
Dhirendra Patel Alias Jony vs State Of U.P. on 6 February, 2019
Author: Aniruddha Singh
Bench: Aniruddha Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 17.01.2019 Delivered on 06.02.2019 Court No. 50 Case :- CRIMINAL APPEAL No.- 4988 of 2016 Appellant :- Dhirendra Patel Alias Jony Respondent :- State of U.P. Counsel for Appellant :- Dev Prakash Singh Counsel for Respondent :- G.A. Hon'ble Aniruddha Singh, J.
1. Heard Sri P.K. Singh, learned counsel for the appellant, Sri P.K. Srivastava, learned A.G.A. for the State and perused the record.
2. This criminal appeal has been preferred under Section 374 (2) of Cr.P.C. by the appellant-Dhirendra Patel Alias Jony challenging the impugned judgment and order dated 05.09.2016 passed by Additional Sessions Judge/Fast Track Court, Chitrakoot in S.T. No. 142 of 2012, arising out of Case Crime No. 102 of 2012, under Sections 363 & 366 I.P.C., Police Station Mau, District Chitrakoot whereby the appellant was convicted and sentenced under Section 363 I.P.C. for four years rigorous imprisonment with fine of Rs.4,000/- and in case of default of payment of fine, he shall undergo further one month additional imprisonment and under Section 366 I.P.C. for five years rigorous imprisonment with fine of Rs.5,000/- and in case of default of payment of fine, he shall undergo further one month additional imprisonment. It was further ordered that 50% of the fine, so deposited by the appellant, shall be paid to the complainant as compensation. All the sentences shall run concurrently and the sentence already undergone by the appellant shall be adjusted in the sentence awarded by the court.
3. Learned counsel for the appellant submitted that the impugned judgment is against fact and law. The prosecutrix had gone with the appellant on her free will and consent along with golds, silvers and cash. It is admitted case of the prosecutrix that she was major hence no offence under Sections 363 & 366 I.P.C. is made out. According to medical report, prosecutrix was above 16 to 17 years of age. In view of settled law, two years benefit may be given to the accused. Then she becomes major. There is no allegation of threat agaisnt the appellant to compel her to marry. Signature at paper 20-Kha was admitted that is marriage agreement between Salman and prosecutrix, which was executed on 27.7.2012 after two days of the incident and in this document the prosecutrix has clearly admitted her signature hence this document is admitted to the prosecution. It was executed between Salman and prosecutrix and she stated therein she is 20 years of age and Salman is 21 years of age.
4. Learned counsel for the appellant further submitted that in her statement recorded under Section 164 Cr.P.C. she admitted the fact that she went with the appellant on her own free will and consent and she clearly stated in the statement that she was in love with the appellant Dhirendra Patel and went with him and she wants to marry with him but her mother and father were not agreed, hence F.I.R. was lodged. Therefore, it is admitted fact that the prosecutrix was having love affair with the appellant and she went with him on her own free will and consent to get married with the appellant Dhirendra Patel. she admits this fact also in her statement recorded under Section 161 Cr.P.C. but she stated that she has given her statement in pressure that was after thought and with due legal consultation and amounts to be an improvement, the appellant was convicted without considering the evidence on record.
5. Learned counsel for the appellant also submitted that according to X-ray report and statement of doctor about the age of the prosecutrix, he clearly stated that bone of wrist and knee was partially fused hence prosecutrix was major. According to medical report, the prosecutrix is 16 to 17 years of age on the date of incident. Hence, according to medical report, it is admitted fact that prosecutrix was major at the time of incident. On this issue, finding given by the court below that prosecutrix was minor at the time of incident is perverse and not according to law.
6. Learned A.G.A. submitted that there is sufficient evidence against the accused-appellant to convict him under Sections 363 and 366 I.P.C.
7. First of all, it will be proper to quote Sections 363 and 366 I.P.C., which are as under:
"Section 363. Punishment for 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.
Section 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; and whoever, by means of criminal intimidation as defined in the 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."
8. According to Section 363 I.P.C. the word used is kidnapped and the word kidnapping is defined under Section 359 I.P.C. and kidnapping from lawful guardianship is defined under Section 361 I.P.C.
9. From perusal of Sections 363, 359 & 361 I.P.C., it is very clear that to punish under Sections 363 & 366 I.P.C., first of all, it is necessary that kidnapped girl must be minor and under 18 years of age or any person of unsound mind.
10. From perusal of the record, it transpires that there is no documentary evidence, school certificate, etc. to prove the age of the prosecutrix. According to medical report, she was 16 to 17 years of age at the time of incident.
11. It is settled principle of law that if there is two years of variation of age according to medical report then margin of two years on either side may be taken into consideration as it was held in the case of Jaya Mala v. Home Secretary, Government of Jammu and Kashmir and others, reported in AIR 1982 Supreme Court 1297. As such two years benefit be given in favour of the appellant-accused. The age of the prosecutrix girl will be 18 to 19 years. It is very clear that if two years benefit is given to the appellant-accused about the age of the prosecutrix certainly the prosecutrix will be held major.
12. Further in the case of Government Appeal No. 2072 of 2011, State of U.P. Vs. Santosh Singh vide judgment and order dated 6.7.2012, it was held by the Division Bench of this Court that benefit of three years will go in favour of the accused-appellant. Therefore, it is very clear that if this benefit shall be given in favour of the appellant-accused, the age of the prosecutrix will be more than 18 years and, accordingly, she was said to be major at the time of incident.
13. On this issue, it is also pertinent to mention here that prosecutrix had lifted from her house to company with appellant-accused by using ladder in the house and she went along with gold, silver and cash Rs.10,000/-. Hence, it is a clear case of the prosecution, according to F.I.R. as well as statement of the prosecutrix and other evidence, that the prosecutrix went with the appellant on her own free will and consent. Later on, statement under Section 164 Cr.P.C. of the prosecutrix was recorded on 18.12.2012 and proved as Ext.Ka-1, which was to the effect that she went with the appellant on her free will and consent. Hence, the question is that whether she was a consenting party, it is admitted fact of the prosecution that she went with the appellant-accused on her free will and consent.
14. According to medical report, as examined on 18.8.2012, no injury was found on the body of the prosecutrix. It is also admitted by the prosecutrix that when she was in Class-I, the age of the prosecutrix was 6 to 7 years. It is also admitted that she was entered into the school and get studied but no certificate to prove her age has been filed by the prosecution as well as on the side of the prosecutrix to prove her age. This certificate was concealed by the prosecution.
15. It is also pertinent to mention here that the prosecutrix is an literate girl/lady and the statement recorded under Section 164 Cr.P.C. as well as the statement recorded before the court, she was examined as P.W.1 and she signed at every page in Hindi i.e. 'Jarina Bano'. Therefore, it is clear that she is not an illiterate lady. This fact also goes against the prosecutrix about her age. At page 18 of the paper book, the prosecutrix has clearly stated that the statement was recorded under Section 164 Cr.P.C. and signed by her but she stated before the court that the said statement under Section 164 Cr.P.C. was given under pressure.
16. This fact was not shown by the prosecutrix before the evidence recorded in the court that she has given statement under Section 164 Cr.P.C to the concerned Magistrate under pressure. Hence, this fact is neither written in the F.I.R., nor in the statements recorded under Section 161 Cr.P.C. nor under Section 164 Cr.P.C. that the said statements was given under pressure, is completely comes within the category of improvement so it is not reliable. The statement before the court was recorded after a long time of the incident. No oral or written complaint was made by the prosecutrix before any competent authority/court or Police personnel or any body alleging that statement under Section 161 Cr.P.C. was given by her under pressure.
17. In the statement before the court the prosecutrix admitted that at Paper No. 20-Kha, she signed the paper. Hence, signature at Paper No. 20-Kha are admitted by the prosecutrix.
18. From perusal of the record, it transpires that Paper No.20-Kha is the agreement (Rajinama/Nikhanama) dated 27.1.2012, which shows that is agreement between the prosecutrix and one Salman Khan having photos of prosecutrix and Salaman Khan, in which they clearly stated that they were competent to understand every thing. The age of the prosecutrix is 20 years and age of Salman Khan is 21 years. It is completely a marriage agreement between the prosecutrix and Salman Khan and every thing relating to marriage is noted/laid-down in the agreement (Rajinama/Nikahnama). The agreement of marriage is certified by the competent Notary/competent authority of agreement.
19. The date of incident is of 25.7.2012 at night. Date of agreement is 27.7.2012, it means the agreement was executed just after two days of the incident.
20. The question is that when on the date of agreement on 27.7.2012, the prosecutrix age was 20 years. How and in what circumstances, two days before the agreement, the age of the prosecutrix will be below 18 years. Hence, this factor is also very material on the point of age and this Court finds that prosecutrix was not minor on the day of incident.
21. It is also very material to mention here that F.I.R. was lodged on 6.8.2012 after twelve days of the incident. The prosecutrix went with the appellant on 25.7.2012 and got married after two days i.e. on 27.7.2012 with Salman. She came down from her house by using ladder and went with ornaments, etc. on her own free will and consent. In these circumstances, only on the basis of statement given before the court below after a long time, this Court finds that it will not be proper to convict the appellant under Section 363 & 366 I.P.C.
22. It is also pertinent to mention here that charges framed against the appellant-accused are that appellant had kidnapped or abducted the prosecutrix compelling her to marry with him. The prosecutrix got married with one Salman Khan after two days of the so called kidnapping or abduction. In these circumstances, this Court finds that in view of the statement given by the prosecutrix before the court below and the statement given by his relative before the court below, it will not be proper to convict the appellant under Sections 363 & 366 Cr.P.C.
23. This Court after scanning the evidence on record, has to adjudicate whether the prosecution has proved charges levelled against the accused-appellant beyond reasonable doubt or not. Word 'proved' is defined under Section 3 of Evidence Act as under:-
"Proved".-A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists."
24. The question is whether a prudent man under these circumstances can believe that the facts deposed by the witnesses do exist beyond reasonable doubt.
25. The charges levelled against the appellant is that he kidnapped the prosecutrix by alluring her but it is clearly admitted that she went with the appellant on her own free will and consent, she came down from her house, by suing ladder with cash and ornaments and after two days, she got married with one Salman Khan. She went in several places, without raising any alarm and without making complaint to anybody. Subsequently, she was recovered and after twelve days of the incident F.I.R. was lodged and her statement under Section 164 Cr.P.C. was recorded on 18.12.2012 in which she has not stated anything against the appellant.
26. In above backdrop, this Court finds that charges levelled against the appellant under Sections 363 & 366 I.P.C. are not proved beyond reasonable doubt and appellant is entitled for the benefit of doubt and is liable to be acquitted.
27. Learned counsel for the appellant placed reliance on the case of S. Varadarajan v. Stae of Madras, reported in 1965 AIR (SC) 942. In this case the Hon'ble Supreme Court has acquitted the appellant, when the girl was college going student and she was on verge of attaining majority, and the appeal was allowed. The observations made in para-7, 9, 13, 19 and 20 of the said case are quoted below:
" 7. The question whether a minor can abandon the guardianship of his or her own guardian and if so the further question whether Savitri could, in acting as she did, be said to have abandoned her father's guardianship may perhaps not be very easy to answer. Fortunately, however, it is not necessary for us to answer either of them upon the view which we take on the other question raised before us and that is that "taking" of Savitri out of the keeping of her father has not been established. The offence of "kidnapping from lawful guardianship" is defined thus in the first paragraph of s. 361 of the Indian Penal Code :
"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."
It will thus be seen that taking or enticing away a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. Here, we are not concerned with enticement but what, we have to find out is whether the part played by the appellant amounts to "taking", out of the keeping of the lawful L2Sup./64--3 guardian, of Savitri. We have no doubt that though Savitri had been left by S. Natarajan at the house of his relative K. Natarajan ,She still continued to be in the lawful keeping of the former but then the question remains as to what is it which the appellant did that constitutes in law "taking". There is not a word in the deposition of Savitri from which an inference could be drawn that she left the house of K. Natarajan at the instance or even a suggestion of the appellant. In fact she candidly admits that on the morning of October 1st, she herself telephoned to the appellant to meet her in his car at a certain place, went up to that place and finding him waiting in the car got into that car of her own accord. No doubt, she says that she did not tell the appellant where to go and that it was the appellant himself who drove the car to Guindy and then to Mylapore and other places. Further, Savitri has stated that she had decided to marry the appellant. There is no suggestion that the appellant took her to the Sub- Registrar's office and got the agreement of marriage registered there (thinking that this was sufficient in law to make them man and wife) by force or blandishments or ,anything like that. On the other hand the evidence of the girl leaves no doubt that the insistence of marriage came from her own side. The appellant, by complying with her wishes can by no stretch of imagination be said to have taken her out of the keeping ,of her lawful guardian. After the registration of the agreement both the appellant and Savitri lived as man and wife and visited -different places. There is no suggestion in Savitri's evidence, who, it may be mentioned had attained the age of discretion and was on the verge of attaining majority that she was made by the appellant to accompany him by administering any threat to her or by any blandishments. The fact of her accompanying the appellant all along is quite consistent with Savitri's own desire to be the wife of the appellant in which the desire of accompanying him wherever he went was of course implicit. In these circumstances we find nothing from which an inference could be drawn that the appellant had been guilty of taking away Savitri out of the keeping of her father. She willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not a child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was no uneducated or un- sophisticated village girl but a senior college student who had probably all her life lived in a modern city and was thus far more capable of thinking for herself and acting on her own than perhaps an unlettered girl hailing from a rural area. The learned Judge of the High Court has referred to the decision In re : Abdul Sathar(1) in which it was held that where the evidence disclosed that, but for something which the accused consented to do and ultimately did, a minor girl would not have left her husband's house, or would not have been able to leave her husband's house, there was sufficient taking in law for the purpose of S. 363 and expressing agreement with this statement of the law observed: "In this case the minor, P.W. 4, would not have left the house but for the promise of the appellant that he would marry her." Quite apart from the question whether this amounts to blandishment we may point out that this is not based upon any evidence direct or otherwise. In Abdul Sathar's case(1) Srinivasa Aiyangar J., found that the girl whom the accused was charged with having kidnapped was desperately anxious to leave her husband's house and even threatened to commit suicide if she was not taken away from there and observed :
"If a girl should have been wound up to such a pitch of hatred of her husband and of his house or household and she is found afterwards to have gone out of the keeping of her husband, her guardian, there must undoubtedly be clear and cogent evidence to show that she did not leave her husband's house herself and that her leaving was in some manner caused or brought about by something that the accused did."
In the light of this observation the learned Judge considered the evidence and came to the conclusion that there was some legal evidence upon which a court of fact could find against the accused. This decision, therefore, is of little assistance in this case because, as already stated, every essential step was taken by Savitri herself : it was she who telephoned to the appellant and fixed the rendezvous, she walked up to that place herself and found the appellant waiting in the car; she got into the car of her own accord without the appellant asking her to step in and permitted the appellant to take her wherever he liked. Apparently, her one and only intention was to become the appellant's wife and thus be in a position to be always with him.
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. 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".
13. While, therefore, it may perhaps be argued on the basis of the two Madras decisions that the word "taking" occurring in ss. 497 and 498 of the Indian Penal Code should be given a wide interpretation so as to effectuate the object underlying these provisions there is no reason for giving to that word a wide meaning in the context of the provisions of s. 361 and cognate sections.
19. As against this Mr. Ranganadham Chetty appearing for the State has relied upon the, decisions in Bisweswar Misra v. The King (1) and In re : Khalandar Saheb(2). The first of these decisions is distinguishable on the ground that it was found that the accused had induced the girl to leave the house of her lawful guardian. Further the learned Judges have made it clear that mere passive consent on the part of a person in giving shelter to the minor does not amount to taking or enticing of the minor but the active bringing about of the stay of the minor in the house of a person by playing upon the weak and hesitating mind of the minor would amount to "taking" within the meaning of s. 361. In the next case, the act of the accused, upon the facts of the case was held by the Court to fall under s. 366, I.P.C. and the decision in Nura v. Rex(3) on which reliance has been placed on behalf of the appellant is distinguished. Referring to that case it was observed by the Court :
"Reliance is placed upon the decision of Mustaq Ahmed J. in Nura V. Rex wherein the learned Judge observed that where a minor girl voluntarily leaves the roof of her guardian and when out of his house, comes across another who treats her with kindness, he cannot be held guilty under secti on 361, Indian Penal Code. This decision cannot help the accused for, on the facts of that case, it was found that the girl went out of the protection of her parents of her own accord and thereafter went with the accused...... In the present case it is not possible to hold that she is not under the guardianship of her father. In either contingency, namely, whether she went out to answer calls of nature, or whether she went to the house of the accused pursuant to a previous arrangement, she continued to be under the guardianship of her father. On the evidence, it is not possible to hold that she abandoned the guardianship of her father and, thereafter, the accused took her with him."
After pointing out that there is an essential distinction between the words "taking" and "enticing" it was no doubt observed that the mental attitude of the minor is not of relevance in the case of taking and that the word "take" means to cause to go, to escort or to get into possession. But these observations have to be understood in the context of the facts found in that case. For, it had been found that the minor girl whom the accused was charged with having kidnapped had been persuaded by the accused when she had gone out of her house for answering the call of nature, to go along with him and was taken by him to another village and kept in his uncle's house until she was restored back to her father by the uncle later. Thus, here there was an element of persuasion by the accused person which brought about the willingness of the girl and this makes all the difference. In our opinion, therefore, neither of these decisions is of assistance to the State.
20. We are satisfied, upon the material on record, that no offence under S. 363 has been established against the appellant and that he is, therefore, entitled to acquittal. Accordingly we allow the appeal and set aside the conviction and sentence passed upon him.
Appeal was allowed."
28. Learned counsel for the appellant has also submitted that the appellant has served out the sentence in jail intermittently i.e. from 7.8.2012 to 30.8.2012 (23 days), 8.3.2016 to 7.4.2016 (one month), 13.7 2016 to 3.9.2016 (on month and 20 days) and from 24.9.2018 and till date the appellant is languishing in jail (about eight months).
29. In view of above backdrop, no offence under Sections 363 & 366 I.P.C. is proved beyond reasonable doubt against the appellant and he is therefore, entitled to be acquitted. Hence acquitted accordingly.
30. The appeal is allowed. The impugned judgment and order dated 05.09.2016 passed by Additional Sessions Judge/Fast Track Court, Chitrakoot is set aside.
31. The appellant is in jail. He shall be released forthwith in this case, if he is not wanted in any other case. His bail bonds are cancelled and sureties are discharged.
32. Appellant is directed to furnish bail bond according to Section 437A Cr.P.C.
33. Office is directed to send a copy of this order along with lower court record to the concerned court immediately for information and compliance. Compliance report be submitted within one month, which shall be kept on record.
34. A copy of this order be also sent to the Jail Superintendent of Police where the appellant is serving out the sentence immediately.
Order Date :- 06.02.2019 OP