Allahabad High Court
Ramji Tewari vs State Of U.P. on 29 January, 2018
Author: Dinesh Kumar Singh
Bench: Dinesh Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 31 Case :- CRIMINAL APPEAL No. - 1618 of 2005 Appellant :- Ramji Tewari Respondent :- State Of U.P. Counsel for Appellant :- Vimal Shukla,Amol Kumar Counsel for Respondent :- Govt.Advocate Hon'ble Dinesh Kumar Singh,J.
1. The present appeal is preferred against the judgment and order dated 26.10.2005 passed by the Additional Sessions Judge, Fast Track Court, in Sessions Trial No. 02/2003 arising out of Case Crime No. 135/2002 under Sections 363, 366 and 376 of the Indian Penal Code, 1860 (hereinafter ''IPC').
2. The complainant, Ram Naresh on 8th of June 2002 gave a written complaint (Ex. Ka 1) at the police station alleging that his daughter, aged about 13 years (Prosecutrix) had been enticed away by Nankau Prasad Tiwari, s/o Ayodhyanath Tiwari and Mrs. Mayadevi w/o Nankua, on 25.04.2002. She was seen in the company of these two persons by Shri Gopal, r/o Kolhua, and Doctor @ Jagdamba Prasad, r/o Gaudpurva, P.S. Bhinga, District Shrawasti. He said in the complaint that he had been trying to locate her and on 6th June 2002, he came to know that his daughter had been kept by one Amrika Prasad Mishra, r/o Village Kaudha Jagad, P.S. Kattara (Bazaar), District Kolhua, and this fact was told to him by Omkar Nath, Chedan Tiwari and Santosh residents of the same village. It was further said that these people informed the complainant that his daughter was shifted from the house of Amrika Prasad to another place and they had seen his daughter clearly.
3. On the basis of the aforesaid complaint, FIR at Case Crime No. 135/2002 was registered u/s 363/366 IPC at P.S. Kotwali (Rural) (Exh. Ka-5). The Accused/Appellant Ramjit was arrested on 15.06.2002 in the presence of Ramchandra and the Complainant, Ram Naresh. The prosecutrix was recovered and recovery memo (Exh.Ka-2) was prepared. The medical examination of the prosecutrix was conducted, and medical reports were prepared (Exhs. Ka-3 and Ka-4). The Investigating Officer (IO) got recorded the statement of the Prosecutrix under Section 164 Cr.P.C. (Exh. Ka 11). After completing the investigation, the IO submitted Chargesheet (Exh. Ka-9) against Ramjit, Smt. Mayadevi, Nankau and Shambunath.
4. Charges were framed against Ramjit and Shambhu Nath under Sections 363, 366, 376 IPC and against Nankau & Mayadevi under Sections 363, 366 IPC.
5. Posecution to prove its case examined Ram Naresh Sharma, Complainant and father of prosecutrix as PW-1, Gopal Sharma as PW-2, the Prosecutrix as PW-3, Dr. Archana as PW-4, and IO, S.I. Ram Narain Shuka as PW-5.
6. The Accused in their statements under section 313 CrPC said that they were falsely implicated for enmity and the matter of fact was that Ramjit got married with the Prosecutrix in accordance with Hindu rites rituals and customs. After marriage she went with him to Punjab, where he was living, in relation to his employment. The recovery was fabricated, even the memo was a false and fabricated document. The Prosecutrix was a major and she gave the statement under Section 164 CrPC under the influence of the police. The witnesses have falsely deposed out of enmity to implicate them. The IO has also not investigated the matter properly and he had prepared a false charge sheet and falsely deposed. In support of its case, the defense examined, DW-1, Shri Chintamani, DW-2 Shri Radhey shyam Dubey, DW-3 Ramjit and DW-4 Dudhnath.
7. According to the prosecution case, as emerges from the complaint, the incident is of 25th of April, 2002, and the age of the Prosecutrix was mentioned as 13 years. It is very strange that the Complainant, PW-1, did not lodge even a missing report for almost a month and a half, with respect to his minor daughter going missing. No intimation of any kind was given at the Police station. There is no explanation coming forth for this delay, and not even lodging a missing report, though he came to know, through the villagers, that his daughter was seen in the company of Accused, Mayadevi and Nankau Prasad.
8. In the medical examination of the Prosecutrix, the Prosecutrix was found to be around 17 years of age. In her examination, no external injury was found. No sign of injury was present over the genitals. Hymen was found torn. No discharge and bleeding was noticed. The vagina admitted two fingers easily, and it was opined that she was used to sexual cohabitation. No definite opinion of rape could be given.
9. It is no longer res integra that the medical report is only the opinion of the doctor, and there can be variation of 2 years on either side. Looking at the other parameters including the report of examination of the genitalia, it can be said that she was a major as the doctor has found her to be of around 17 years.
10. The trial court after considering the evidence on record and the arguments advanced by the prosecution and the defense, acquitted Accused Nankau, Mayadevi and Shambhu Nath.
11. The complainant, father of the prosecutrix, P.W.-1, had specifically stated before the trial court during his examination-in-chief that he gave the complaint at the police station after the elapse of one and a half months from the date when his daughter was allegedly enticed away. As per his deposition, the I.O. of the case called the complainant and his brother to the police station and informed them about the possibility of recovering the complainant's daughter. Thereafter, a police team accompanied by a lady constable along with the complainant and his brother reached Ailaha threeway where the complainant's daughter was sitting with the accused appellant. Upon spotting them, the police team arrested the complainant's daughter and the accused appellant and subsequently, prepared a recovery memo (Exh.Ka-2) which was duly signed by the complainant.
12. During the cross examination, the complainant has categorically denied any suggestion regarding a romantic affair between his daughter and the accused appellant. He has further denied the suggestion that the accused appellant had been married to his daughter and post marriage, the accused appellant had taken his daughter to Phagwada, Punjab, where the accused appellant was residing for employment related reasons. It is pertinent to note that the complainant failed to furnish any convincing reasons to explain the delay between his daughter being enticed away and his complaint. If he was informed by PW2 that PW2 had spotted the complainant's daughter with Nankau and Mayadevi (parents of the accused appellant) on the day she went missing, the complainant's act of not having a complaint registered despite of having some knowledge about the whereabouts of his daughter and further, not acting upon it for another one and a half months, severely affects the credibility of his testimony and fails to inspire confidence.
13. PW2, Gopal Sharma deposed that he saw the prosecutrix in the company of Nankau, Maya Devi and Ramji on the date of incident and enquired from them that where were they going. However, he didn't convey the same to the complainant for one and a half months, despite of having met him some 3-4 times during that period. Furthermore, as per the deposition of PW2, it was a known fact that the complainant's daughter had gone missing amongst his village community. However, despite this, he failed to inform about the potential whereabouts of the complainant's daughter despite possessing information regarding the same. It makes little sense to rely on PW2's testimony as his behavior does not seem to be that of a reasonable person and fails to inspire any confidence of this court.
14. As per the testimony of PW3, the complainant's daughter and prosecutrix, she was put under threat due to which she could not divulge to anyone regarding her being taken away forcefully. It is pertinent to mention here that she was residing in Punjab with the accused appellant where she reached by public transport and had come into contact with scores of people. However, she failed to inform anyone about her alleged ordeal. Furthermore, during her cross examination, she stated that she was residing in a single room house in Punjab with the accused appellant and his brother, Shambhu where both, the accused appellant and his brother used to inflict rape on her.
15. This court is skeptical about the credibility of the prosecutrix testimony as it is very unlikely that while she met neighbours from her village, travelled in public transport to thousands of miles away from her home and further met scores of other people, she did not raise any alarm, nor did she inform anyone about her whereabouts for one and a month. Furthermore, she continued to reside with the accused appellant and his brother for a period of one and a half months while she was being subjected to the alleged crimes. The I.O. for the case also failed to make any substantial efforts to investigate the crime and record statement of witnesses at the place where the prosecutrix was allegedly kept in wrongful confinement and was subjected to sexual offences by the accused appellant and his brother. Therefore, I feel it is unsafe to place reliance on such a testimony which suffers from numerous infirmities and fails to inspire confidence of the court.
16. PW4, Dr. Archana is the doctor which conducted medical examination of the prosecutrix. She proved the medical report and reiterated the contents of the report. It is pertinent to mention here that as per the results of the ossification test, the prosecutrix's estimated age was 17 years old. However, as per the dentist report, the prosecutrix's age was estimated to be 18 years old. PW4 has stated that there might be an error of 2 years on either side while determining the prosecutrix's age through the aforementioned medical examinations.
17. As per the testimony of PW5, the I.O. for the case, while proving the several documents prepared by him during investigation, he has stated that the complaint was lodged after the elapse of one and a half months from the date of the incident. Furthermore, during the period between the disappearance of the prosecutrix and the complaint informing the same in the police, the complainant did not approach any authority or police station. PW5 further recorded the statement of PW2 wherein the PW2 had informed the complainant about spotting the prosecutrix on the day of her disappearance. The testimony of PW5 completely contradicts the PW2's testimony. Furthermore, PW5's testimony doesn't support the case set up by PW1, 2 and 3.
18. The defense examined three witnesses. As per the deposition of DW1, Shri Chinta Mani, he is the elder brother of the accused appellant and head of the family and he is the one who got the accused appellant married to the prosecutrix in accordance with Hindu rites and rituals on 16.04.2002. He states that the marriage was performed at Shiv Mandir, village Sirasiya and it was conducted by one, Doodhnath Pandey. He further states that PW1 along with numerous other relatives of the prosecutrix were guests at the wedding. He states that the newly married couple, after staying in the village for 2 days, moved to Phagwada Punjab where the accused appellant was working as a guard. DW1, in order to support his testimony, produced the invitation card for the accused appellant and the prosecutrix's marriage. However, the card did not contain the name of the printing house. He further states no invitation cards were sent out by the prosecutrix's family.
19. The evidence produced by DW1 can not be discarded. Furthermore, his testimony corroborates with the testimony put forth by DW2, Radhey Shyam, who is the brother-in-law of the accused appellant and is supposed to have been present for the marriage ceremony. The accused appellant is also DW3 who has also testified stating that he was married to the prosecutrix and post the marriage, he and the prosecutrix left for Phagwada, Punjab due to his employment related reasons. He states that the complainant reached Phagwada after a month of DW1's marriage and demanded Rs. 50,000/- from him in response to which the accused appellant expressed his inability to meet the same. He alleges that this was the reasons because of which the complainant has instituted the present criminal proceedings against him and his family members. DW3 further states that even prior to the marriage, he was in a relationship with the prosecutrix.
20. Pandit Doodhnath, DW4 is the priest who allegedly performed the accused appellant and the prosecutrix's marriage. He stated that the marriage was performed in accordance to Hindu rites and rituals at the Shiva Temple and that the ceremony was attended by family members from both sides. Furthermore, the complainants performed kanyadan of the prosecutrix.
21. However, the learned Trial Court has not accepted that the prosecutrix was validly married to the accused appellant as the same was not performed in accordance with Hindu rites and rituals. Therefore, the prosecutrix could not have been deemed to be the legally wedded wife of the accused appellant.
22. The question which needs to be considered here is that even assuming that the marriage was not performed in accordance to Hindu rites and rituals, can the accused appellant be held guilty for offences under Sections 366, 376 IPC and whether, in the light of the aforementioned circumstances, particularly the medically determined age of the prosecutrix, can the accused appellant be held guilty for offence under Section 363 IPC.
23. Considering the evidence adduced by the defense, this Court is of the opinion that the marriage between the prosecutrix and the accused appellant had been indeed performed. It might not have been performed strictly in accordance with Hindu rites and rituals, however, the same does not render the marriage illegal or invalid. Furthermore, the issue at hand is not the determination of the validity of the marriage, rather, this court is more concerned with whether the alleged offences were indeed committed by the accused appellant.
24. The prosecutrix was estimated to be of 17-18 years of age as per medical tests. She accompanied the accused appellant and travelled thousand of miles away from home via public transport and further resided with the accused appellant in a single room house for more than a month without either raising an alarm or confiding in anyone. Considering the aforementioned facts, it is unlikely that she did not accompany the accused appellant voluntarily and instead, she had been abducted/kidnapped by the accused appellant for the purpose of marriage or committing sexual offences. Therefore, offences under Section 366 or Section 363 can not be made out against the accused appellant.
25. The medical evidence does not support the prosecutrix's version wherein she alleges commission of rape against her by the accused appellant. Furthermore, the doctor has specifically opined that she was habituated to sexual intercourse and no internal or external injury was present on her body or her private parts, thereby suggesting forceful intercourse. Moreover, the doctor has categorically stated that she is more than 16 years of age. Keeping in mind the medical evidence along with the witness statements and other evidences adduced by both sides, the accused appellant can not be held guilty for offence under Section 376 IPC beyond reasonable doubt.
26. Therefore, the appeal is allowed, and the accused appellant is acquitted of all charges. His bail bonds are cancelled and sureties are discharged.
Order Date:-29.01.2018 prateek*