Allahabad High CourtHanoman Loniya vs State Of U.P. on 22 August, 2017Author:Sheo Kumar Singh-IBench:Sheo Kumar Singh-IHIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 

 
Case :- CRIMINAL APPEAL No. - 90 of 1999
 

 
Appellant :- Hanoman Loniya
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Anil Srivastava
 
Counsel for Respondent :- Government Advocate
 
And
 
Case :- CRIMINAL APPEAL No. - 91 of 1999
 

 
Appellant :- Dileep Verma
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Suresh Singh,Akhter Abbas
 
Counsel for Respondent :- Government Advocate
 

 
Hon'ble Sheo Kumar Singh-I,J.1.	Since both these criminal appeals arise out of a common order, they are being decided by a common order.2.	The aforesaid criminal appeals have been filed against the judgment and order dated 24.02.1999 passed by Special Judge (SC/ST Act), Barabanki, in Sessions Trial No.42 of 1994 arising out of case Crime No.83 of 1994, Police Station Safdarganj, District Barabani, whereby and whereunder the appellants Hanoman Loniya and Dileep Verma were found guilty and sentenced as under:-I. Hanoman Loniya
 
U/s 366IPC- 3 years' RI with fine of Rs.200/-with default stipulation of one month's rigorous imprisonment.U/s 376IPC- 7 years' RI with fine of Rs.500/- with default stipulation of one month's rigorous imprisonment.U/s 3 (1) (x) SC/ST Act - 1 year's RI with fine of Rs.200/- with default stipulation of one month's rigorous imprisonment.II	Dileep Verma
 
U/s 363IPC- 3 years' RI with fine of Rs.200/- with default stipulation of one month's rigorous imprisonment.U/s 366IPC- 3 years' RI with fine of Rs.200/- with default stipulation of one month's rigorous imprisonment.U/s 376IPC- 7 years' RI with fine of Rs.500/- with default stipulation of two months' rigorous imprisonment.U/s 3 (1) (x) SC/ST Act - 1 year's RI with fine of Rs.200/- with default stipulation of one month's rigorous imprisonment.3.	The prosecution story reveals that on 02.05.1994 at about 07.00 AM Bhabhuti son of Jagannath (informant) was cutting the crops in the fields of Chhotey Lal. In the meantime, Dileep, Rampal, Mahadeo, Chhotey Lal - all residents of Mahmoodpur, Bhondu, Harish Chandra Yadav - residents of  Mahuwari, Majeed, Ram Sagar - residents of Saifpur came there and called the son and daughter in law of the complainant and after scolding the son Bhabhuti, directed him to go away from there. After that, all these persons with daughter in law of the complainant went somewhere. This fact was communicated to the police station by means of Ext. Ka-1 on 11.05.1994 at about 08.35 AM and was registered as first information report. The matter was investigated and after spot inspection and preparation of map, the charge sheet Ext. Ka-3 was submitted before the Court. Learned Chief Judicial Magistrate took the cognizance and committed the case to the Court of Sessions for trial. The charge sheet was submitted against accused Dileep Verma and Hanoman Loniya. They were summoned by the Court and  charges underSections 363,366,376and3(1)(x)of SC/ST Act were framed for which they pleaded not guilty and claimed for trial.4.	In order to prove the prosecution case, PW-1 Smt. Shiv Kumari, PW-2 Jagannath, PW-3 Bhabhuti, PW-4 Mangulal, PW-5 Hublal and PW-6 S.I. Kailash Yadav were examined. It is noteworthy that PW-3 Bhabhuti is husband of the prosecutrix and PW-2 Jagannath is father-in-law of the prosecutrix. PW-4 Mangulal and PW-Hublal stood signatory of the recovery. In the statement underSection 313Cr.P.C. the appellants have stated that they have been falsely implicated in this case due to inimical relations with the complainant. Learned trial court after hearing the prosecution as well as defence concluded and found the appellants guilty and sentenced them as above. Aggrieved by the order, the appellants by filing the aforesaid criminal appeals have submitted that:-I. the trial court has erred in believing the prosecution evidence on record;II. the trial court has erred in disbelieving the defence version of the case which is more probable and reliable than the prosecution version;III. there  is inordinate delay in lodging the first information report for which no satisfactory explanation has been given by the prosecution;IV. in the first information report the complainant has alleged that in all eight named accused persons including appellant Dileep Verma had forcibly taken away the prosecutrix while she was working with her husband in the fields but later on the witness had not named rest of the seven persons in the statement;V. the prosecutrix has not stated anything which is coming within the purview of offence as charged because there was free consent of the prosecutrix, and
 
VI. there are material contradictions in the statements of the prosecution witnesses.5.	Before proceeding with the case, it will be just and proper to give brief of the facts as stated on oath by the prosecutrix who was examined before the Court as PW-1. In her statement she had stated that while she was working in the fields with her husband only Dileep came there and none of the accused persons were there nor called her nor were present there. Thus, the theory of the prosecution as narrated in the first information report that all eight accused persons were there and taken away the prosecutrix with use of force is not tenable and has not been corroborated by the evidence of the prosecutrix. Further she had stated that she had her son whose age was about one year and she left her son on culvert (Pulia). The version of leaving her one year old son is highly improbable if it was forcible taking away of that lady. She had further stated that appellant Dileep took her to Ayodhya then Barabanki, then came to bus stand and then to the court where another accused appellant Hanoman Loniya met her from where she went to his Sasural. The story as narrated above reveals that the prosecutrix had never made any loud or never made any resistance or never tried to flew away or never stated in her statement that any kind of force was used on her to restrain her. She had further stated that she remained with appellant Dileep for more than one month and never asked to him as to why he took her and never narrated to anybody else or any passerby or any person where she was residing and further stated that she stayed in a hut where there was no door at all and the appellant Dileep used to go out of there for some time or throughout the day and she never tried to come out of that situation and further during visit towards Bababanki with bus there were so many passengers but she never told that she has been kidnapped or abducted or she remained for one night at Ayodhya railway station and never stated to anybody or even police personnel or the statement that the appellant never threatened or scolded at any point of time or never restrained her or she remained in the house of the appellant for one month or she used to visit with one of the relatives of the appellant towards the field for natures call or the fact that the residential accommodation hut or house in which she was kept was never closed or never stated to the appellant she may be left to her husband's house or the fact that she was never subjected to any kind of torture or the fact that until the period she was with the appellant she was very happy. All these facts reveal that there was a free consent and there was no force at all used by the appellants.6.	In the first information report, eight persons were named while in the charge sheet only two persons were named to commit the present offence. Further the incident is said to have taken place on 02.05.1994 and the story reveals that the son of the complainant was present there and in spite of these facts the first information report was not lodged upto 11.05.1994 and the story of prosecution reveals that the complainant and his family were searching the prosecutrix. PW-2 Jagannath had simply lodged the first information report about the fact and PW-3 Bhabhuti had stated that the named persons were instrumental in kidnapping her wife but there was no resistance by PW-3. PW-4 Mangulal and PW-5 Hublal are the witnesses of Fard Baramadgi where after recovery of the prosecutrix she was given to the custody of her husband and father in law.  Rest of the witnesses are formal in nature where the Investigating Officer in his statement had stated that the prosecutrix was recovered from a place or hut where there was no gate at all and further she never tried to come out of that situation.7.	Learned counsel for the appellants has submitted that the case of kidnapping or abduction has not been proved by the prosecution and before proceeding to analyze the offence mentioned underSection 376IPC there must be cogent and reliable evidence to rely the case of kidnapping from lawful guardianship by the accused appellants.8.	So far as offences punishable underSections 363and366, IPC are concerned, it is necessary to note their essential ingredients.Section 363provides for punishment in case of kidnapping of any person from India or from lawful guardianship. Kidnapping from lawful guardianship has been defined inSection 361. Essential ingredients of the said section are four in number, i.e., (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. If the girl is less than 18 years of age, it is immaterial whether the girl consents or not. 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 toSection 361provides 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.9.	The word 'entice' involves an idea of inducement or allurement by exciting hope or desire in the other. The inducement or allurement may take many forms, difficult to visualise and describe exhaustively; some of them may be quite subtle, depending for their success, on the mental state of the person at the time when the inducement is intended to operate. This may work immediately or it may create continuous and gradual, but imperceptible , impression culminating, after some time, in achievement of its ultimate purpose of successful inducement. The offence of kidnapping from lawful guardianship is complete when the minor is actually taken from lawful guardianship. The act of taking is not in the proper sense of the term a continuous act; when once the boy or girl has been actually taken out of the keeping, the act is a completed one. Enticement is an act of the accused by which the person kidnapped is induced of his or her own accord to go to the kidnapper. It is not necessary that the taking or enticing should be shown to have been by means of force or fraud. Enticement need not be confined to any single form of allurement. Anything which is like to allure the minor girl would be sufficient. Where the minor kidnapped is a girl under eighteen years of age, it is no defence that the accused did not know the girl to be under eighteen, or that from her appearance or conduct she appeared to have attained the age of eighteen. There is an essential distinction between taking and enticing. 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, the act of taking is complete and the condition is satisfied. 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.10.	Significantly the word 'possession' has not been used in theIPC, but the language used is 'out of the keeping, of the lawful guardian'. The word 'keeping' connotes the fact that it is compatible with independence of action and movement in the object kept. It implies neither apprehension nor detention but rather maintenance, protection and control, manifested not by continual action but as available on necessity arising. The word 'lawful' has been deliberately used in its wider connotation, and it is distinguishable from the word 'legal'. That has necessitated insertion of the Explanation.11.	So far asSection 366is concerned, the essential ingredients are : (i) 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 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 inSection 10. 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 underSection 366. The volition, the intention and the conduct of the woman do not determine the offence; they can only bear upon the intent with which the accused kidnapped or abducted any woman and the intent of the accused is the vital question for determination in each case. Kidnapping and abduction are two distinct offences. The ingredients of the two offences are entirely different. Kidnapping except kidnapping from India is an offence against guardianship. It consists of enticing or removing a girl from the keeping of the lawful guardian without her consent. Abduction is an offence as defined inSection 362when a person is by force compelled or by deceitful means induced to go from any place. In abduction the person abducted may be a minor or a major. Kidnapping is punishable per se in terms ofSection 363. Abduction on the other hand is not punishable per se, and is punishable only when accompanied by a particular purpose as contemplated insections 364to366. But as kidnapping also may be for the same purposes,Sections 364to366deal with both kidnapping and abduction for the purposes stated therein and prescribe the punishments.12.	I have heard the learned Counsel for the parties and also gone through the record of the case carefully. The learned Counsel for the accused has contended that since there was not cogent and satisfactory evidence on record the conviction of the accused qua the offences in question was not sustainable. The learned Counsel for the respondent on the other hand controverted this contention. Since the fate of this case hinges mainly upon the evidence on record, it would be but proper to take reappraisal of this evidence, as discussed above.13.	It may well be to recall, at this stage, the age old axioms which run like a golden thread through our criminal jurisprudence. They are that the accused is presumed to be innocent unless proved guilty, the quality of proof must be beyond any reasonable doubt, the Court must be morally certain of the guilt of the accused before recording conviction of the accused and in case any doubt remains lurking in the mind of the Court in this behalf, the benefit thereof must go to the accused. In the second place the burden to prove the guilt of the accused beyond all doubt rests on the prosecution and it never shifts.14.	The basic idea behind these principles is that the liberty of an individual is a most valuable and fundamental right which inheres in him and it should never be jeopardised unless the court, after bringing its judicial experience and acumen to bear upon the facts placed before it, comes to an inescapable conclusion that the guilt against the accused before him has been proved beyond all reasonable doubt. No doubt in the present times there has been certain amount of relaxation and latitude in the manner of proof qua certain type of offence like sexual offence against females or cruelty to them in the matrimonial home etc. but all the same the foregoing principles stand unabridged and unscathed like beacon light for the judicial courts.15.	Now looking on the facts of the case in hand in the light of the above foregoing principles, I feel that the conviction of the accused is not sustainable. In fact this Court is constrained to observe that the trial court has not cared to use his judicial acumen and experience while appreciating the evidence on record. It is clear that in order to hold a person guilty of an offence underSection 363of the Indian Penal Code it must be proved that the accused played an active part in taking away a female out of the keeping of her guardian without the consent of the guardian either prior to, or at the time of her taking away out of such guardianship by either directly using force or threat against the female or injecting into her mind some irresistible allurements or temptations which may impel her to leave or forsake the custody of her guardian.16.	Learned counsel for the State has submitted that the victim was below 16 years of age at the time of occurrence while learned counsel for the appellants has submitted that she was about 24 years of age or more than 20 years. The prosecutrix while stating on oath before the Court had herself stated her age as 25 years. She is married one and had one male issue. In light of above facts, she was major at the time of occurrence. Learned court below has also found that the prosecutrix was major at the time of occurrence.17.	This Court is also not unmindful of the observations made by the Apex Court in Sadashiv Ramrao Hadbe v. State of Maharashtra MANU/SC/0607/2006: (2006) 10 SCC 92, wherein it has been observed that it is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix if it is capable of inspiring confidence in the mind of the Court and if the version given by the prosecutrix is supported by medical evidence and the whole surrounding circumstances makes the case set up by the prosecutrix highly probable and believable. Therein it is also observed that the Court shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen.18. 	Considering the questionable propensity of the prosecutrix, I am tempted to refer to the case ofMoinul Hoque and Ors. v. State of Assam(2001) 1 GLR 516. In paragraph 16 of the judgment it is held as under:"It is true that a Court has to take seriously the cases relating to violence against woman. Simultaneously, the Court has a duty to guard itself against false charges of rape. The narration of the prosecution case is full of vital omissions and contradictions and it raises strong doubt which over-shadows the genesis of the prosecution case. In my opinion, it would be unsafe to sustain the conviction in this case relying upon the testimony of the prosecutrix alone. Dignity of woman will have to be protected, but without aid of emotion. This is undoubtedly not a case where the prosecutrix has the last 'say'."19.	Having considered the whole prosecution and defence version, it is found that the prosecution was a consenting party and willingly went with one of the appellants. The manner in which the story has been picturized by the prosecution witnesses whereby in the first information report eight persons had been named, in spite of that PW-3 was there, he failed to lodge the first information report immediately. All these lead the Court to hold the prosecution case totally manured, manipulated and far from truth. Through the corroboration of the prosecutrix statement is not required when her statement  is trustworthy but if the statements of the prosecutrix is not found to be trustworthy and she is found to be consenting  and willing party then the corroboration from the independent witnesses and circumstantial evidence is required to convict the accused persons. To bring home the guilt of the offence of rape, the prosecution is required to prove beyond reasonable doubt that the accused persons have committed rape upon the prosecutrix without her consent and against her will. The duty is cast upon the prosecution to prove the alleged offence. In the absence of a woman's consent the essential feature of actus reus is rape, which is totally wanting in the instant case. The statements of the prosecution and prosecutrix do not inspire confidence. In light of the material contradictions and inconsistencies creeping in the statements of the prosecution witnesses, the defence version seems to be just and reasonable.20.	The Supreme Court in S. Varadarajan v. State of Madras MANU/SC/0081/1964: 1965CriLJ33 has ruled :"... But when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) from the house of the relative of the father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places ultimately to the Sub-Registrar's office where they get an agreement to marry registered, and there is no suggestion that this was one by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have 'taken' her out of the keeping of her lawful guardianship, that is, the father.The fact of her accompanying the accused all along is quite consistent with her own , desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She had willingly accompanied him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him.x x x x x x x
 
Where the minor leaves her father's protection knowing and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot 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.x x x x x x x
 
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. 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 fulfilment of the intention of the girl. But that part 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'."21.	Now once it is held that the preponderance of probabilities is that the prosecutrix had voluntarily gone with the accused appellants without the accused playing any overt or covert role therein, no offence underSection 363of the Indian Penal Code can be said to have been proved against the accused and once this Court reaches this conclusion the offence underSection 366automatically falls to the ground.22.	As regards the offence underSection 376of the Indian Penal Code, this Court has no doubt on the basis of evidence and the statement of the prosecutrix  that she remained with the one of the accused appellants for more than one month voluntarily with her free will and consent to follow and to reside and never objected, the question is as to whether  in case she was major the offence underSection 376of the Indian Penal Code is  found proved or not. The answer to this poser must be in the negative. In the first place, as I have already held, it has not been proved by the prosecution that at the time of this incident the age of the prosecutrix was below 16 years. In fact the evidence is that she was above 20 years or about 24 years of age at that time. Then there is also no doubt that on the facts and in the circumstances of the case the prosecutrix was a willing party to this carnal intercourse. Any way by no stretch of imagination can it be said that this sexual intercourse between her and the accused was under circumstances to which any of the five situations or ingredients set out underSection 375of the I.P.C. are attracted and as such the appellants are not guilty of the offence of rape either.23.	 In view of the above discussion, the appeals are accepted. The conviction and sentence passed against the accused appellants underSections 363,366and376of the Indian Penal Code andSection 3(1) (x)of the SC/ST Act is set aside and the appellants are acquitted on all counts. The fine, if realised, be refunded to them forthwith. If the appellants are in imprisonment they are liable to be set at liberty at once if not required in any other criminal case and in case they are on bail they need not surrender to their bail and the bail bonds are discharged. The case property shall be dealt with in a manner as directed by the trial court.24.	Lower Court's record be sent back.Order Date :- 22.8.2017
 
A. Katiyar