Rajasthan High Court - Jaipur
Satish Kumar And Ors. Etc. (In Jail) vs State Of Rajasthan on 6 September, 2000
Equivalent citations: 2001CRILJ4860, 2001(1)WLC299, 2001(1)WLN253
JUDGMENT Sunil Kumar Garg, J.
1. The above mentioned both appeals are being decided by this common judgment as they have been preferred by the accused appellants against the judgment and order dated 7-8-1999 passed by the learned Special Addl. Sessions Judge (Women Atrocities), Sri Ganganagar by which he convicted and sentenced the above named accused appellants and another accused Baljindra Singh (hereinafter referred to as 'the co-accused'), who has not preferred appeal against his conviction, as per the office report, in following manner:--
____________________________________________________________________________ Name of accused appellants Convicted Sentence awarded under Section ____________________________________________________________________________
1. Satish Kumar 366 read with Five years RI & fine of 120-B, IPC. Rs. 2,000/- and in default of payment of fine, to further undergo six months RI.
2. Raju Rajendra Singh -do- -do-
3. Boby Sikander Singh -do- -do-
4. Nimma Nirmal Singh -do- -do-
Co-accused
5. Baljindra Singh -do- -do-
By the same judgment, the learned Special Additional Sessions Judge acquitted the above mentioned four accused appellants and co-accused of the charge under Section 363 IPC.
____________________________________________________________________________
2. The facts giving rise to these appeals, in short, are as follows :--
On 25-5-1998 PW1 Amandeep Kaur (prosecutrix) lodged a written report Ex. P/ 1 before PW5 Rameshwar Lal Jangid, S.I. of Police Station, Sadar, Sri Ganganagar stating inter-alia that she studies in BA Final in Sahid Bhagat Singh College, Kotkapura (Punjab) and on that day i.e. on 25-5-1998, she appeared in the last paper of the BA Final and after finishing that paper, she proceeded to her house on foot and when she reached the Bus Stand from where she was to pick up Bus for village Lande, at about 12.30 PM suddenly a Maruti Van bearing No. PB05 B.9647 came towards her back side, in which 3-4 persons were sitting and the said Maruti Van stopped just near her and persons, who came out from the Maruti Van, took her and put in the Maruti Van and closed the windows and her face was also gaged by towel by them and thus, they abducted her. It is further stated in the report that out of these persons, one person was Satish Kumar, accused appellant, apart from him, there were three more persons. It is further stated in the report that accused appellant Satish Kumar is a notorious person and he used to tease her and he intended to marry with her forcibly. It is further stated that from the words which they were addressing to each other, she came to know the names of the other persons i.e. Baljindra Singh (co-accused), Nirmal Singh and Raju (accused appellants). When they were taking her, on the way, accused appellant Satish Kumar told her that in case she makes hue and cry, he would kill her. It is further stated that when they entered in.the Rajasthan.one man on motor cycle also met and to see him, Maruti Van was stopped and out of the persons sitting in the Maruti Van, one person came out from the Maruti Van and went with the person, who came on motor cycle. It is further stated that the Maruti Van was stopped near Dhani where accused appellants took bath and that Dhani was situated at Chak 3Y. It is further stated that at that time a police vehicle came from the side of Ganganagar in which one Driver and two more persons in simple dress were there and persons, who were sitting in the Jeep, tried to control the accused appellants and in the meanwhile, a Bus also came there in which many passengers were there and, thereafter, accused appellants were apprehended by them and at that time, accused appellant Satish Kumar scuffled with the driver of the Jeep (PW3 Pal Singh). It is further stated that before the Jeep Driver (PW3 Pal Singh), she stated that accused appellant Satish Kumar has abducted her for the purpose of marrying with her against her Will.
On this report, police registered the case and chalked out FIR No. 149/98 Ex. P/2 and started investigation. During investigation, statement Ex. P/11 of PW1 Amandeep Kaur under Section 164 Cr. P.C. was recorded on 27-5-1998 and above named accused appellants and co-accused were arrested and their arrest memo are Ex. P/6 to Ex. P/10.
After usual investigation, police submitted challan against accused appellatns and co-accused in the Court of Maigstrate and thereafter, the case was committed to the Court of Session.
The learned Special Additional Sessions Judge (Women Atrocities), Sri Ganganagar framed charges under Sections 363, 366 & 120-B IPC against the accused appellants and co-accujsed on 23-10-1998 and charges were read over and explained to accused appellants and co-accused, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined as many as five witnesses and got exhibited some documents. Thereafter, statements of accused appellants and co-accused recorded under Section 313 Cr. P.C. and the accused appellant Satish Kumar, in his statement recorded under Section 313 Cr. P.C., stated as under :--
veunhi dkSj I;kj djrh Fkh A og esjs lkFk dksVZ esfjt djus ds fy;s xaxkuxj vkbZ Fkh A ogk esjs ?kj okys bUdkj gks jgs Fks A og tV&fl[k gS A ge [k=h gS A vyx tkfr gSa A eS ipkl gtkj ysdj vk;k A iqfyl us dkxtkr ekaxs A geus dkxt fn[kk;s A ckn esa ipkl gtkj :i;s iqfyl us ys fy;s A yM+dh dks D;ksa yk;s gks rks geus crk;k dksVZ esfjt dgk A bl ij yM+dh us Hkh ,slk gh dgk A fQj yMdh ds ekW&cki dks cqyk;k A mUgksus esjs o yMdh dks ihBk A yMdh igys esjs gd esa cksyh Fkh a ekW&cki us /kedk;k rks yMdh xyr cksyh A Fkkusokyks us dgk fd tt ds vkxs dqN er cksyuk A eSa funksZ"k gwW A nLrkost ,s'k djrk gwW A In defence, one witness was produced by the accused persons.
The learned Special Additional Sessions Judge (Women Atrocities), Sri Ganganagar vide his judgment, and order dated 7-8-1999 acquitted the accused appellants and co-accused of the charge under Section 363 IPC, but convicted each of them for the offence under Section 366 read with Section 120-B IPC and sentenced in the manner stated above, holding inter alia :--
1. That on the date of occurrence, PW1 Amandeep Kaur was more than 18 years of age.
2. That if identification parade was not held, it does not affect the prosecution case, in as much as, apart from accused appellant Satish Kumar, PW1 Amandeep Kaur had the opportunity to see other accused persons also for more than 3 hours and thus, in these circumstances, prosecution case is not affected at all for want of identification parade.
3. That involvement of accused appellants and co-accused is found in abducting PW1 Amandeep Kaur.
4. That no case of consent on the part of PW1 Amandeep Kaur is made out.
5. That prosecution has not been able to prove its case against accused appellants and co-accused for the offence under Section 363 IPC, but the prosecution has well proved its case against accused appellants and co-accused for the offence under Section 366 read with Section 120-B IPC.
Aggrieved from the said judgment and order dated 7-8-1999 passed by the learned Special Additional Sessions Judge (Women Atrocities), Sri Ganganagar, the accused appellatns have preferred these appeals.
3. In both appeals, the following submissions have been made by the learned counsel for the accused appellants :--
1. That no case is made out so far as accused appellant Boby @ Sikander Singh is concerned as he was not found in theMaruti Van, when PW1 Amandeep Kaur was abducted.
2. That PW1 Amandeep Kaur was in love with accused appellant Satish Kumar and accused appellants have not abducted her, rather she has eloped with the accused appellant Satish Kumar and thus, it is a case of consent and not a case of forcible abudction.
3. That after the alleged incident, no report has been lodged by the father of PW1 Amandeep Kaur. Thus, this fact creates doubt on the prosecution story.
4. That in case findings of conviction are being sustained, accused appellants who have remained in jail for sufficient time, may be sentenced to the period already undergone by them.
4. On the other hand, the learned Public Prosecutor and the learned counsel for the complainant supported the impugned judgment and order passed by the learned Special Additional Sessions Judge (Women Atrocities), Sri Ganganagar.
5. I have heard the learned counsel for the accused appellants learned Public Prosecutor and the learned counsel for the complainant and perused the record of the case.
6. In this case, there is no dispute on the point that PW 1 Amandeep Kaur, at the time of occurrence, was more than 18 years of age.
7. PW1 Amandeep Kaur is the main witness in the present case, who lodged report Ex. P/l on 25-5-1998. In her statement as PW1, she has supported the version given by her in report Ex. P/1 in all material particulars and she has also stated that in the Maruti Van four persons, namely, Satish Kumar, accused appellant, Nirmal @ Nima, accused appellant, (Baljindra Singh, co-accused) and Raju @ Rajendra Singh, accused appellant were there at the time of occurrence and accused appellant Boby @ Sikander Singh met on the way on motor cycle and, thereafter, on that motor cycle, accused appellants Boby @ Sikander Singh and Raju @ Rajendra Singh went away. She has also stated that one police Jeep also came there and, thereafter, Bus also came there in which there were many passengers and some scuffle took place between accused appellant Satish Kumar and the priver of the Jeep i.e. PW3 Pal Singh. She has further stated that when she was abducted by accused persons, two girls namely, PW2 Santosh Kumari and Kuldeep Kaur were also there.
In cross-examination, she has admitted the following facts:--
1. That she knows English and her knowledge about Hindi is very poor.
2. That report Ex. P/l bears her signatures, but it was not written by her.
3. That in Ex. P/1, the name of her father Vajindra Singh is wrongly mentioned, but correct name of her father is Baljindra Singh.
4. That on the date of occurrence, she was kept in the police station in one room.
5. That on the date of occurrence, her parents came in the night.
6. That accused appellant Satish Kumar is by caste Khatri and she is Jat Sikh.
7. That in Ex. D/6 police statement recorded under Section 161 Cr. P.C., the naems of PW2 Santosh Kumari and other are not mentioned though she told their names.
8. That the place from where she was abducted by accused persons was not shown to the police of Kot Kapura.
9. That it is true that she knew accused appellant Satish Kumar before this incident.
10. That she did not know rest accused before this incident.
11. That it is also correct that in the statement recorded under Section 164 Cr. P.C. (Ex. P/4 or Ex.P/11), the names of accused appellants Raju and Sikander Singh are not there.
12. That report Ex.P/1 was not written on the way, but on reaching the police station, it was written.
13. That in the Maruti Van, she was sitting with accused appellant Satish Kumar on the back seat and other accused persons were sitting on the next seat.
8. PW2 Santosh Kumari has also supported the statement of PW1 Amandeep Kaur so far as the incident of abduction is concerned.
9. PW3 Pal .Singh, who is police personnel and Driver of the Jeep, corroborates to the statement of PW 1 Amandeep Kaur that Jeep came there and Bus also came there and on being enquiry, he was told by PW 1 Amandeep Kaur that she has been abducted. In cross-examination, this witness further admits that he was told by PW1 Amandeep Kaur that accused appellant Satish Kumar has abducted her for the purpose of marrying with her.
10. PW4 Jogendra Singh is an independent witness, who was waiting for the Bus. He also supports the statements of PW1 Amandeep Kaur and PW3 Pal Singh.
11. Thus, from the statements of PW1 Amandeep Kaur and other witnesses, it appears that accused appellants (1) Satish Kumar ; (2) Raju @ Rajendra Singh ; and (3) Nima@ Nirmal Singh and co-accused (4) Baljindra Singh were in the Maruti Van and they took PW1 Amandeep Kaur in the Maruti Van and proceeded further and thereafter, police Jeep came, which was being driven by PW3 Pal Singh and on interrogration, PW1 Amandeep Kaur told to PW3 Pal Singh that she has been abducted and accused appellant Boby @ Sikander Singh met on the way and he was not present when PW1 Amandeep Kaur was abducted. Hence, involvement of abovenamed four accused persons is found in the incident.
Case of accused appellant Boby @ Sikander Singh
12. So far as the case of accused appellant Boby @ Sikander Singh is concerned, it may be stated here that he was not present at the time when PW1 was abducted and he met only on the way and from his act or conduct, it cannot be inferred that he took part in abducting PW1 Amandeep. Hence, it cannot be said that the prosecution has proved its case beyond reasonable doubt for the offence under Section 366 read with Section 120-B IPC against accused appellant Boby @ Sikander Singh and he is entitled to be acquitted of the said charges.
13. Thus, the judgment and order passed by the learned Special Additional Sessions Judge (Women Atrocities), Sri Ganganagar so far as they relate to accused appellant Boby @ Sikander Singh, are liable to be set aside.
Cases of other accused appellants Satish Kumar, Raju @ Rajendra Singh and Nima @ Nirmal Singh
14. The main argument, which has been putforward by the learned counsel for the accused appellants, is that PW 1 Amandeep Kaur was consenting party in the alleged incident. Thus, it is a case of free consent.
15. To appreciate the above argument, we have to see what free consent means.
16. Before proceeding further, it would be worthwhile to state what are the necessary ingredients for proving the offence under Section 366 IPC. The necessary ingredients are as follows :--
1. Kidnapping or abducting any woman.
2. 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 illict intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse.
17. From the above, it is also clear that this aspect that she, will be compelled to marry against her will must also be proved by the prosecution.
18. Before proceeding further, it may be stated here that if the girl was eighteen or over, she could be abducted and not kidnapped, but if she was under eighteen she could be kidnapped as well as abducted if the taking was by force or the taking or enticing was by deceitful means.
19. Consent is said to be free when it is not caused by :-
1. coercion
2. under influence
3. fraud
4. misrepresentation
5. mistake
20. Consent is said to be so caused when it would not have been given but for the existence of such coercion, under influence, fraud, misrepresentation or mistake.
21. The question of consent is by far the most important in deciding the appeals.
22. Submission without resistance is not necessarily tantamount to consent. There is difference between submission and consent. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act of criminal character must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance the good and evil on each side, with the existing power and capacity to withdraw the assent according to one's will or pleasure. A woman is said to consent only when she agrees to submit herself while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.
23. The consent, to be operative in negative criminality, must be a free consent. If it is induced by fear, it is no consent at all but a mere submission. Submission of her body under the influence of fear or terror is no consent.
24. Consent of the woman should have been obtained prior to the act. It is no defence that the woman consented after the act.
25. Consent must be for the specific act otherwise it should not be treated as consent. Consent obtained by fraud cannot be termed as valid consent. In this respect, something should be said about the word 'fraud'.
26. A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage.
27. Keeping the above propositions in mind in respect of the word 'consent', the facts of the present case are being examined to hold whether there was a free consent on the part of PW1 Amandeep Kaur or not at the time when she was abducted by accused persons.
28. As stated earlier, there is no dispute on the point that PW1 Amandeep Kaur was familiar with accused appellant Satish Kumar as he was her school-mate. There is also no dispute on the point that when she was being taken away from her native village in a Maruti Van, there were four persons in the Maruti Van and accused appellant Satish Kumar was not alone. From the statement of PW1 Amandeep Kaur, it further appears that accused appellant Satish Kumar wanted to marry with her, but she was not agreeable to his proposal and accused appellant Satish Kumar in his statement recorded under Section 313 Cr. P.C. has himself admitted that he wanted to marry with PW1 Amandeep Kaur, but her parents refused to marry PW1 Amandeep Kaur with accused appellant Satish Kumar because of the caste factor.
29. In these circumstances, there is a clear demarcation on the point that accused appellant Satih Kumar wanted to marry with PW1 Amandeep Kaur by deceitful means and there is not an iota of evidence on record to support the plea that she has ever been agreeable to his proposal. The fact that four accused persons were in the Maruti Van when PW1 Amandeep Kaur was abducted, itself goes to show that intention of the accused appellant Satish Kumar in taking away of PW1 Amandeep Kaur was not fair at all, but on the contrary, it appears that he wanted to put PW1 Amandeep Kaur in fear so that because of fear she may agree to his proposal and thus, he took the help of other accused persons in abducting her.
30. From the above facts and circumstances, it cannot be said that the present case is of free consent and at the most it can be said that whatever has taken place, it has taken place against the will of PW1 Amandeep Kaur and she can never be a consenting party to the alleged incident. If she had been consenting party, she would have not said to PW3 Pal Singh that accused appellant Satish Kumar has taken her forcibly for the purpose of marrying with her. The fact that accused appellant Satish Kumar was known to her and she was found on the back seat with the accused appellant Satish Kumar does not lead to the conclusion that she has given her consent, but on the contrary, it may be a case of submission under fear and submission without resistance can-I not tantamount to consent,
31. In such cases, the intention of the accused is the basis. The volition, intention and the conduct of the accused determine the offence and the intention of the accused is the vita! question for determination in such cases. The circumstances, in the present case, that PW1 Amandeep Kaur was taken from the school premises in a Maruti Van consisting of four persons and, thereafter, she was kept in the Maruti Van and accused appellant Satish Kumar was making efforts that she may be compelled to marry with him, strongly suggest that PW1 Amandeep Kaur was not a consenting party, but she was over-powered by accused appellant Satish Kumar and his henchmen so that she may consent to marry with accused appellant Satish Kumar under fear.
32. Thus, it is held that PW1 Amandeep kaur on 25.5.1998 was abducted by accused persons so that, she may be compelled to marry with accused appellant Satish Kumar against her will.
33. Hence, the findings of the learned Special Additional Sessions Judge that there is no consent on the part of PW1 Amandeep Kaur in going away with accused persons are liable to be confirmed and the plea of the learned counsel for the accused appellants that it is a case of free consent stands rejected.
34. For the reasons stated above the findings of the learned Special Addl. Sessions Judge convicting accused appellants Satish Kumar, Raju alias Rajendra Singh and Nima alias Nirmal Singh are liable to be confirmed and appeal of these accused appellants are liable to be dismissed.
On Sentence
35. The accused appellant Satish Kumar was arrested on 25-5-1998 through arrest memo Ex. P/6 and since then he is in jail. The accused appellant Raju Rajendra Singh was arrested on 20-6-1998 through arrest memo Ex.P/10 and he was ordered to be released on bail on 5-11-1999 and thus, he has remained in jail from 20-6-1998 to 5-11 -1999 positively and, thereafter, till he was released after submitting bail bonds etc. The accused appellant Nima Nirmal Singh was arrested on 25-5-1998 through arrest memo Ex. 7 and since then he is in jail.
36. In my opinion, looking to the facts and circumstances of the case and looking to the fact that the main accused appellant Satish Kumar has remained in jail for near about two years, ends of justice would be met if the accused appellants Satish Kumar, Raju @ Rajendra Singh and Nima @ Nirmal Singh are sentenced to the period already undergone by them.
About co-accused Baljindra Singh, who has not filed appeal
37. A report has been taken from the office whether co-accused Baljinder Singh has filed any appeal before this Court or not and as per the office report, it appears that no appeal has been filed on behalf of the Co-accused Baljindra Singh, who was also convicted along with the present accused appellants on 7.8.1999. it means since then he is in jail.
38. The Hon'ble Supreme Court in Kameshwar Singh & Ram Babu Singh v. State of Bihar (1992) 6 JT (SC) 85 has held as under :--
Criminal case- Accused 4 not filing appeal against conviction and sentence other co-accused, who filed the appeal, granted benefit of doubt as prosectuion failed to prove its case. Held that accused 4 was also entitled for the same benefit of doubt and consequential acquittal.
39. In Aiit Singh v. State of Haryana (1996) 2 JT (SC) 234 the Hon'ble Supreme Court has held as under :--
Criminal law Conviction-Co-accused fails to prefer appeal- Held that co-accused is entitled to the same benefit of the modification of sentence passed against the other accused.
40. Looking to the above proposition of law as explained by the Hon'ble Supreme Court in above two cases, co-accused Baljindera Singh, who has not preferred any appeal, is also entitled to the same benefit of modification of sentence as given to the other accused appellants, hence, co-accused Baljindra Singh is also entitled to be sentenced to the period already undergone by him.
The result of the above discussion is that :--
1. The appeal of the accused appellant Body @ Sikander Singh is allowed and the judgment and order dated 7-8-1999 passed by the Special Additional Sessions Judge (Women Atrocities), Sri Ganganagar convicting and sentencing him for the offence under Section 366 read with 120B IPC are set aside and he is acquitted of the said charges.
Since accused appellant Boby @ Sikander Singh is on bail, he need not surrender and his bail bonds stands cancelled.
2. The appeal of the accused appellants Satish Kumar, Raju @ Rajendra Singh and Nima @ Nirmal Singh against their conviction under Section 366 read with 120-B IPC is dismissed, after confirming the judgment dated 7-8-1999 passed by the learned Special Additional Sessions Judge (Women Atrocities), Sri Ganganagar.
However, the order of sentence dated 7-8-1999 passed by the learned Special Additional Sessions Judge (Women Atrocities), Sri Qanganagar so far as it relates to the accused appellants Satish Kumar, Raju @ Rajendra Singh and Nima @ Nirmal Singh, is modified to the extent that they are sentenced to the period already undergone by them.
Since the accused appellants Satish Kumar, and Nima @ Nirmal Singh are in jail, they shall be released forthwith, if not required in any other case.
Since the accused appellants Raju @ Rajendra Singh is on bail, he need not surrender and his bail bonds stands cancelled.
Thus, both the appeals stand partly allowed in the manner indicated above.
About co-accused Baljindra Singh So far as co-accused Baljindera Singh is concerned, it does not appear that he has preferred any appeal against his conviction. However, in view of the findings in respect of other accused appellants, co-accused Baljindra Singh is also entitled to the same benefit of modification of sentence as given to other accused appellants. Hence, he is sentenced to the period already undergone by him.
Since co-accused Baljindra Singh is in jail, he shall be released forthwith, if not requiredin any other case.