Allahabad High Court
Chhotey Lal & Another. vs State Of U.P. on 25 April, 2013
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 17 Case :- CRIMINAL APPEAL No. - 256 of 2001 Petitioner :- Chhotey Lal & Another. Respondent :- State Of U.P. Petitioner Counsel :- Abdul Rafiq,Manish Kumar Singh,Rajendra Kumar Respondent Counsel :- Govt. Advocate Hon'ble Zaki Ullah Khan,J.
1. Heard Sri Manish Kumar Singh, learned Amicus Curiae for the appellant and learned Additional Government Advocate for the State.
2. The instant appeal has been preferred by appellants-Chhote Lal and Shri Ram against the judgment and order dated 24.03.2001 passed by IIIrd Additional Sessions Judge, Sitapur convicting and sentencing appellant no.1-Chhotey Lal with rigorous imprisonment for five years under Section 366 I.P.C. along with a fine of Rs.2000/- and convicting appellant no.2-Shri Ram under Section 376 I.P.C. and sentencing him to undergo rigorous imprisonment for ten years and a fine of Rs.5000/-, and further convicting him under section 366 I.P.C. and sentencing him five years rigorous imprisonment and also a fine of Rs. 2000/-.
3. Appellant No.2-Shri Ram, however, died during the pendency of appeal, therefore, his appeal is abated and only the appeal of Chhote Lal is being heard and decided finally.
4. As per prosecution version, the complainant Smt. Vishuna Devi was at father's house at village-Tulsipur, Police Station-Kamlapur, on the day of occurrence i.e. on 22.04.1993. Accused Prakash came to her and said that her husband had become annoyed and was leaving the village. He had asked her to come to the culvert on the eastern side of the village. On the information given by accused Prakash, the complainant came at culvert where accused Ram Bharosay, Baij Nath, Harihar, Govind, Prakash and Shri Ram appeared with armed weapons and they captured her and gagged her mouth with cloth and she was taken to the house of Prakash Pradhan of village Basai Deeh where she was kept for two days. All the aforesaid accused-persons committed rape on her during these days. After two days, she was taken to the bank of river and was kept at Basai Deeh Ghat for three days. The accused Prakash, Baij Nath, Harihar and Chhotey Lal brought her to Sidhauli and she was kept in the house of Govind for about two and half months. From there she was taken to the house of Rajesh Pandit and was kept for about 25 days. On 29.07.1993 at about 1:00 p.m. the complainant somehow rescued herself and flew away to her husband's house and thereafter she lodged the written report at P.S, Kamlapur and on that basis the F.I.R. was lodged on 04.08.1993 at 10:30 p.m. The complainant Smt. Vishuna Devi was medically examined on 05.08.1993 at District Women Hospital, Sitapur.
5. The investigating officer recorded the statements of the complainant and her husband, inspected the place of occurrence, recorded the statements of mother and father of the complainant and after concluding the investigation submitted charge-sheet against the accused persons, who pleaded not guilty and pleaded for trial.
6. After recording the evidence of the witnesses, the court was of the view that accused Chhotey Lal is guilty under Section 366 I.P.C. only. However, he was given benefit of doubt against the charge of rape but the other co appellant Shri Ram was convicted under section 376 IPC also and was sentenced as above. Against the aforesaid judgment and order the instant appeal has been preferred by two appellants one of them Shri Ram died during the pendency of appeal, therefore, only the appeal of appellant (Chhotey Lal) is being decided.
7. Learned counsel for the appellant pointed out that as per prosecution story appellant Chhotey Lal did not take any part in the abduction of the prosecutrix/complainant Vishuna Devi. She was called by Prakash and when Prakash asked her to go to certain place there were other persons other than appellant. The accused persons then captured her. They were armed with weapons and gagged her mouth by cloth that means she was incapable either for movement or for crying but the fact is that the accused appellant Chhotey Lal was not there.
8. As per prosecution version, the role of Chhotey Lal started only when she was taken to river bank and kept at Basai Deeh Ghat. There it has been alleged that accused Chhotey Lal came into contact with her.
9. Learned counsel for the appellant argued that the prosecutrix was not enticed or intimidated by Chhotey Lal appellant. She was misinformed and called on false pretext by other co-accused and some other accused gagged her mouth and took liberty and raped her.
10. Learned counsel for the appellant argued that it is subsequent act when Chhotey Lal joined at the river bank. He argued that P.W.1 in her testimony specifically mentioned that she was taken from river bank on bicycle of Prakash and there were chances that she could have moved away but and she did not escape even when she was independently sitting on the bicycle and ample chance to flee. She neither ran away nor she tried to escape.
11. Learned counsel for the appellant cited a judgment of Hon'ble Supreme Court in the case of Shyam and another vs. State of Maharashtra, reported in 1995 SCC (Crl) 851, wherein it has been held that in the circumstances of the case, prosecutrix was a willing party and there was no taking out of the guardianship of her mother. Learned counsel argued that the facts of the aforesaid case and circumstances shown are identical because the prosecutrix had a chance to flee away but she remained there without any resistance. Learned counsel reiterated that although the prosecutrix in her statement as PW-1 implicated appellant-Chhotey Lal stating that the appellant Chhotey Lal also took liberty and forcibly raped her but this fact has not been corroborated by the investigating officer and due to major contradictions, the Court did not believe it to be true and accordingly granted the benefit of doubt because there was strong contradiction which was not corroborated by the prosecution witness.
12. Replying to the arguments learned counsel appearing for the State argued that the shortcomings of the investigating officer cannot influence the merits of the case. The sole testimony of the prosecutrix is sufficient to hold the appellant guilty. In so many words the prosecutrix described that how she has been raped by Chhotey Lal also. Chhotey Lal joined the other accused persons with same intention and knowledge. He also pointed out right from the statement of the witnesses and from the statement in the F.I.R. all these persons have been on the same footing, Chhotey Lal was equally responsible as the other co-accused persons. If the court has granted the benefit of doubt it does not mean that the statement of the prosecutrix has been disbelieved. On the basis of entire evidence against the appellant, it cannot said that he was not there. He joined the gang with the same intention and knowledge. She has been kidnapped and abducted only for the purpose of committing rape. Under section 106 of the Evidence Act, the responsibility lies on the appellant to establish that he had no intention or knowledge. It shall be presumed that when a person joined the gang he has full knowledge and intention and shall be equally liable for the consequences of the act committed by the gang specially when prosecutrix implicates him that he is also the person who had committed rape upon her against her will or out of her wishes and used force in committing rape. Learned counsel the appellant argued that it was a gang rape, each of them is equally responsible for the rape.
13. Learned trial court convicted the appellant under Section 366 I.P.C. that means he had full knowledge, intention and this has been proved beyond reasonable doubt that he participated in abduction. The factual aspect is that the prosecutrix had a chance to run away is not very logical because all the accused persons were armed and may cause harm to prosecutrix. She was alone in the group of so many hounds and she had no option but to surrender herself. P.W.1 during her cross-examination also admitted that she was confined and she was put under lock and she was not allowed to move freely, therefore, she had no chance at that moment to flew away and as soon as she get a chance she ran away and reached to her husband.
14. Replying to the arguments learned counsel for the appellant showed that initially it has been alleged that the accused-persons were armed when the accused-Chhotey Lal was not accompanied them but the moment the presence of Chhotey Lal has been shown there was no such allegation that the accused persons were moving with weapons. As per testimony of P.W.1, all the accused persons were moving on bicycles independently and the prosecutrix was sitting on the carrier of Prakash. She could have raised alarm and she could call for help but she did not make any hue and cry that means she was a consenting party.
15. The appellant has been convicted under section 366 I.P.C. only and he was acquitted under section 376 I.P.C. getting the benefit of doubt, therefore, the present appeal is for setting aside the conviction under section 366 I.P.C. Section 366 I.P.C. is reproduced hereinbelow;
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; 4[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 be punishable as aforesaid]
16. It is necessary for kidnapping that a person must abduct a woman with intent that she may be compelled, or knowingly 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 intercourse. In case of the appellant it is very peculiar that initially he was not a person who enticed or allured the complainant. The complainant was at her father's house and one Prakash co-accused went to her and narrated a story that her husband wants and believing him, she followed him where she met another group of persons who were armed with weapons and they took her to a destination by ganging her and then raped. The appellant's entry is at the juncture when they were at the bank of river, the appellant joined at that stage. Section 366 IPC clarifies that abduction must be clear. As far as the appellant is concerned, he was not a party either for allurement or misleading the complainant to come along with them or he was not a member of the gang who initially abducted her. The appellant was friendly with other co-accused and met them at the river bank and joined them.
17. The other most important thing is that prosecutrix alleged that she has been raped by him but her statement was disbelieved by the court below. In view of Hon'ble Apex Court decision in the case of Shyam and another vs. State of Maharashtra (supra), the prosecutrix had ample opportunity to escape or raise alarm. The appellant was the person who says that he joined only the group but he was not concerned with lady. The above cited ruling is, therefore, applicable in appellant's case because he was neither a party in abduction nor he has been found guilty of committing rape by learned lower court. The prosecution did not file any cross appeal against acquittal under section 376 I.P.C.
18. In the criminal law mens rea is very important. Means rea means intention to do an act. As far as appellant is concerned, mens rea for abduction is lacking and the other part at joining gang rape was not believed by the court below and the prosecution did not file any cross appeal, therefore, in nutshell and in view of the definition of abduction under section 366 IPC charges against the appellant were not proved beyond all reasonable doubts. Mere joining the gang without any intention will not make him liable under section 366 IPC, therefore, the appeal is liable to be allowed.
19. Accordingly, the appeal is allowed. The judgment convicting the appellant under section 366 IPC is set aside. The appellant is in jail. He shall be released forthwith unless wanted in any other case.
20. A copy of this order be sent to the Superintendent of Jail concerned to release the appellant if he is not wanted in any case.
Order Date :- 25.4.2013 Akhilesh/-