Ishwar Kewat vs State Of U.P.
2015 Latest Caselaw 2301 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Court No. - 36
 

 
Case :- CRIMINAL APPEAL No. - 63 of 2014
 

 
Appellant :- 	Ishwar Kewat
 
Respondent :- 	State Of U.P.
 
Counsel for Appellant :- Prabha Shankar Pandey, Shyam Babu Chaturvedi
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Amreshwar Pratap Sahi, J.

Hon'ble Pramod Kumar Srivastava, J.

(Delivered by Pramod Kumar Srivastava, J.)

1.This appeal has been preferred against the judgment of conviction and punishment dated 31.10.2013 passed by the Additional District Judge, Court No. 3, Maharajganj in Sessions Trial No. 38 of 2007 (State Vs. Ishwar Kewat), case crime no. 620/ 2005, u/ss 363, 366 IPC and Section 3(2)(v) of the Scheduled Castes or Schedule Tribes (Prevention and Atrocities) Act, 1989, PS- Paniyara, Maharajganj, by which sole accused Ishwar Kewat was convicted and punished for the charge u/s 363 IPC with rigorous imprisonment of 5 years and fine of Rs. 2000/- (in default of payment, further imprisonment of two months), for the charge u/s 366 IPC with imprisonment of 10 years rigorous imprisonment and fine of Rs. 5000/- (in default of payment, five months further imprisonment) and for the charge of Section 3(2)(v) the Scheduled Castes or Schedule Tribes (Prevention and Atrocities) Act, 1989 [hereinafter referred to as SC/ST Act] with life imprisonment and fine of Rs. 10,000/- (in default of payment, further imprisonment of 10 months), and it was also directed that all sentences would run concurrently.

2.The prosecution case in brief was that the informant Indrajeet Pasi (PW-1) had moved an application u/s 156(3) Cr.P.C., which was later registered as FIR of case crime no. 620/2005. According to the prosecution case on 14.10.2005, informant's minor daughter Sushila had informed at 09:00 pm in the night to the informant and his wife at their tea shop in market that her elder sister Poonam is not at home. After receiving this information, they closed their shop and searched their daughter Poonam. It was informed to them that wife of Gulab Seth and a lady Dukhani had conspired with Girijesh Yadav of village Chandan Chaki and persuaded their daughter Poonam to go with them alongwith Rs. 35,000/- cash and a gold chain. All these accused were seen with Poonam by witnesses Sallaudin, Sarafat Ali and Allaudin. During investigation, the victim Poonam was recovered and after completion of investigation charge-sheet was filed against the sole accused Ishwar Kewat for the offence u/ss 363, 366 IPC and Section 3(1)(xii) SC/ST Act, on the basis of which, S.T. No. 38 of 2007 was registered.

3.During trial, the accused Ishwar Kewat was charged with the offence u/ss 363, 366 IPC and Section 3(1)(xii) SC/ST Act (which was later on amended as Section 3(2)5 SC/ST Act.). The accused pleaded not guilty and claimed to be tried.

4.During trial, the prosecution examined PW-1 Indrajeet Pasi, PW-2 Dhurpatti Devi, PW-3 Sunila @ Sushila, PW-4 Kullu, PW-5 Gulab, PW-6 CP Kalpnath Prasad, PW-7 Additional S.P. Sanjay Kumar and PW-8 Rajkumar Singh.

5.After closure of the prosecution evidence, statement of accused u/s 313 Cr.P.C. was recorded, in which he denied the prosecution case. He had examined DW-1 Poonam (victim and daughter of the informant) in his defence.

6.After affording opportunity of hearing to the parties, the trial court had passed the judgment dated 31.10.2013, by which accused appellant Ishwar Kewat was convicted and punished as above. Against this judgment dated 31.10.2013, he had preferred the present appeal.

7.Sri Prabha Shankar Pandey, Advocate, appeared on behalf of the appellant, Sri Sagir Ahmad, learned AGA appeared on behalf of the State respondents. We have heard the rival contentions, perused the original records of the case and gone through the available evidence. The appeal is being finally disposed off with their consent at this stage itself.

8.Learned counsel for the appellant contended that the victim of this case, who is daughter of the informant (PW-1) Indrajeet Pasi was major at the time of the incident and who married the appellant without the consent of her parents. Due to this a wrong case was registered and false evidence was given in the matter. He also contended that the victim is still the legally wedded wife of the appellant who has been living with appellant and doing pairvi of this case during the trial and in this appeal, and had given evidence in his favour as defence witness DW-1. He also contended that the victim and appellant had moved this court together during investigation in a writ petition, but the direction of the court was not complied with. He also argued that two children were born out of the wedlock of the appellant and victim. But these facts were not considered by the trial court at the time of passing of the impugned judgment. Therefore, this appeal should be allowed.

9.Learned AGA refuted the contentions of the appellant and urged that at the time of the incident, victim Poonam (DW-1) had not attained the age of majority and she was taken away from the custody of her legal guardianship. The victim belongs to scheduled-caste community and the appellant accused does not belong to this community, therefore, the trial court had rightly convicted and punished the accused-appellant for the offence u/s 363, 366 IPC and Section3(2)(v) SC/ST Act. In these circumstances, the judgment of conviction should be upheld.

10.We have considered facts, circumstances and available evidence of this case in the light of rival contentions and have gone through the records.

11.A perusal of the available record reveals that PW-1 Indrajeet Pasi was not an eye witness of the incident. The victim had not gone within his personal knowledge and his statement is based on hearsay evidence. He had admitted during his examination that since his daughter had married Ishwar Kewat without his consent, therefore he was infuriated and enraged. He had also admitted during cross-examination that after 23 days of lodging of the FIR, he received information that his daughter Poonam was living with accused Ishwar Kewat. He had not stated the age of his daughter-victim.

12.PW-2 Dhurpatti Devi is the mother of the victim Poonam who stated that her younger daughter had informed on the date of incident that Poonam had gone with Girijesh Yadav, Chandan and Ishwar Kewat on a motor cycle, but her statement is also based on hearsay evidence. In fact she had not seen anything relating to this incident. She had not stated the age of her daughter-victim based upon her own knowledge, and only stated that her daughter Sunila had told her that 10 year old Poonam is missing.

13.PW-4 Kullu stated that three years ago (date, time not given)he had seen a mob in front of his house and saw that Brajesh, Rajendra and Tulsi were going on two motor cycles with Poonam. Next day he came to know that those three persons have run away with Poonam. He is a 70year old witness who stated that he cannot see properly, and his eye has been operated. He could not tell as to in which direction the accused had gone. In cross-examination he contradicted his statement in examination-in-chief that all the four persons were riding on one motor-cycle and Poonam was sitting between the accused. The weak eye sight, old age and self contradiction in his statement makes the statement of this witness untrustworthy. In any case his statement is to the effect that the victim had willingly gone with the appellant and others.

14.PW-5 Gulab stated that on 14-10-2005 at about 9.00 p.m. at night he was going on Paniyara bridge on a cycle, when he saw in the light of his torch that Ishwar was going with Lalla on a motor-cycle from his opposite side, and Poonam was going with Girijesh on another motor-cycle. The age of Poonam was 14 years. At that time a third motor-cycle was also coming from his opposite side. Light of all motor-cycles were on his face.

15.One witness of fact is PW 3 Sunila @ Sushila who is the younger daughter of the informant, who age was 12 years on the date of her statement in the Court on 18.11.2008, that is after more than three years of the incident. She stated in her examination-in-chief that on the date of the incident, Amarnath Pradhan and Brajesh, Rajendra and Ishwar Kewat had come on motor-cycles at her house and taken her sister Poonam with them. But during cross-examination she stated that before the incident she had never met Ishwar Kewat nor had talked with him. In these circumstances, after about more than 3 years, it was not possible for this girl PW-3 Sunila @ Sushila, aged about 8 years and 10 months at the time of the incident, to give the exact details and description of four named accused persons, who were not known to her before the incident and whom she had never met or talked earlier. There is every possibility that PW-3 Sunila @ Sushila may be a tutored witness who had deposed under the influence of her parents who were dissatisfied and infuriated with the appellant and Poonam because they had eloped and married against their consent. Tutoring of this witness (PW-3) is also evident from the fact that when she initially, and immediately after the alleged incident, informed her parents about her sister Poonam then she had not taken the name of any accused or had said that the victim had gone with any named person, but had only informed that her sister is missing. This fact is mentioned in the written FIR (Ex. Ka-1) of the informant. Had she known the name of any person then she would have definitely informed her parents, and the name of accused would have surfaced in the FIR on her information. But in the FIR name of accused- appellant had come on the basis of inquiry made by informant (PW-1) and not on the information of PW-3. In these circumstances, it appears from the evidence of witnesses of facts, namely, PW-1, 2 and 3, that the prosecution had not been able to prove its case beyond doubt.

16.The best witness of the incident was the victim of this case herself namely, Poonam, who was medically examined in police custody, and according to this report dated 23.03.2006 of Chief Medical Officer, Maharajganj her age was about 17 years.

17.If about 8 years and 10 months old PW-3 Sunita @ Sushila could be produced by the prosecution as a competent witness, then there was no explanation for not examining the alleged victim Km. Poonam as a prosecution witness in this case. Being a victim she was the best witness of the incident. But without any explanation the Investigating Officer had not mentioned the name of victim Km. Poonam in the list of witnesses of the charge-sheet. Again, without any explanation the prosecution had not attempted to examine the victim Km. Poonam in this case, which would have helped the court to reach at a just and proper judgment. In this way the prosecution deliberately concealed and suppressed the best available evidence of the case, which leads to the inference of presumption of fact against the prosecution case.

18.The point of determination of the age of the victim at the time of incident is most vital. In written FIR informant (PW-1) had mentioned her age to be 10 years on the basis of information given by his younger daughter (PW-3). In fact neither PW-1 (father) nor PW-2 (mother had stated anything about the age of victim on the basis of their own knowledge. They were the best witnesses to know the age of their daughter, but they had not given any statement on the basis of their own knowledge. Only PW-2 (mother) had stated that her younger daughter (PW-3 aged less than 9 years on date of incident) had informed her about the age of her elder sister. These facts prove that the real date of birth was deliberately concealed by the prosecution witnesses and the prosecution version.

19.In writ petition no. 2668/ 2006 filed by Poonam (victim) and Ishwar Kewat (appellant) she was mentioned as a major at the time of the incident. In her statement u/s 164 CrPC recorded in compliance of the directions of this Court she had mentioned her age to be 20 years (on 21-03-2006). The prosecution had examined PW-8 Raj Kumar Singh, Head Master of a primary school, where the victim had allegedly attended schooling. He had proved the photo copy of a certificate issued by him on 27-03-2006 (after the date of incident and after the recording of statement of victim u/s 164 CrPC) in which the date of birth of Poonam is mentioned as 29-07-1991 on the basis of records of the school. But firstly this document was procured and prepared after the date of incident, after filing of the writ petition and recording of statement u/s 164 CrPC; and secondly the alleged register of BSA office relating to the said certificate contained no seal or signature of any officer or official of BSA office. Said register did not contain any entry made/ written by PW-8. It was such a document which cannot be accepted as admissible in evidence. The alleged certificate (photostat copy, that too with lots of overwriting by another hand writing) issued by PW-8 is without any doubt a suspicious document. Being a photo copy and not original this document is inadmissible in evidence.

20.The victim Poonam was medically examined during investigation on 23-03-2006, and her age was reported by the Chief Medical Officer to be about 17 years. 'About 17 years' may be plus or minus 17 years which can be flexible upto two years on either side. But by no stretch of imagination this may be 10 years as stated by the father of the victim informant (PW-1). Thus the age of victim as projected by the prosecution is found to be incorrect. The factum of the victim Poonam being mother of two children (on 05-12-2009 at the time of her statement as DW-1) aged about 2½-3 years and 8 months was never challenged by the prosecution. She was not put to any suggestion that she was a minor at the time of the incident. The age mentioned by her in her statement being 20 years at the time of the incident, and 24 years at the time of her statement, was not challenged by the prosecution, nor any suggestion was given to her to this effect. She (DW-1) had stated that she was in class-3 in the year 1988. This fact is against and in contradiction with the statement of PW-8; but her statement on this point was not challenged by the prosecution. These facts prove that victim (DW-1 Poonam had attained the age of majority at the time of the charged incident.

21.There can be no doubt that in a case of kidnapping/ abduction, the best available evidence will be that of a victim, if she is able to depose in the court as a competent witness. In the present matter although the prosecution had deliberately concealed the best evidence of the victim but the accused had examined the victim Poonam as a defence witness DW-1. She was examined on 05.12.2009 and she had stated her age to be 24 years, and that her age was about 20 years at the time of the incident. She said that she had willfully and happily performed her marriage in a temple with Ishwar Kewat, and out of this marriage she had two children and she is living happily with her husband. Before the incident her father used to beat her and did not provide proper food or clothes, and also used to tell her that he cannot afford her marriage, so she may arrange her own marriage. During cross-examination she had stated that no one had kidnapped/ abducted her, she had gone out of her own free will with her husband Ishwar Kewat and resided in Ludhiyana, where she has gave birth to two children. The prosecution did not give any suggestion to DW-1 Km. Poonam in support of the prosecution case. Her deposition appears to be truthful and believable.

22.It is not proved beyond doubt by the prosecution that the age of the victim Km. Poonam DW-1 was below 18 years. To the contrary it is proved from available evidence, as discussed above, that the victim had already attained the age of majority on the date of incident. In any case she was a competent witness. In her statement she had not stated that the accused had ever persuaded, induced, threatened or forced her to go with him. To the contrary, she stated that she herself had willfully left her parental house because her father used to beat her and did not provide proper food and clothes. Even from the statements of the prosecution witnesses of fact it is proved that she (victim) had gone wilfully with the appellant and other persons. No suggestion was given to her that she was telling incorrect facts. There is no reason to disbelieve her apparently truthful testimony which is based on personal direct experience. Therefore, from her statement it is established that due to maltreatment of her father and his inability to maintain her, victim Poonam, a major, had herself willingly left her parental house and started living with the accused after marrying him.

23.These very relevant facts were not considered by the learned Additional Sessions Judge who passed the impugned judgment without considering important facts, circumstances and evidence. It is strange that learned Additional Sessions Judge had believed the testimony of PW-3 (on point of identification of appellant and his companions) whose age was less than 9 years at the time of incident and who had no previous introduction with the accused persons, but had apparently without any plausible reason ignored the statement of victim DW-1 Poonam.

24.From a perusal of the evidence available on record it is proved that the charge of kidnapping/ abduction punishable u/s 363, 366 IPC was framed on the ground that the victim belonged to the scheduled caste community and the accused was not a member of such community. It has therefore to be considered from proved facts whether the commission of the offence u/s 3(2) (v) SC/ST Act is made out or not.

25.Section 3(2)(v) of the Scheduled Castes or Schedule Tribes (Prevention and Atrocities) Act, 1989 reads as under:

"3(2) whoever, not being a member of Scheduled Caste or Schedule Tribe-

(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine".

26.The provision of Section 3(2)(v) of the SC/ST Act, as noted above provides that a person can be punished under this provision only when he commits such offence against a person of the SC/ST community on the ground that such a person/victim is a member of SC/ST. From the evidence in the present case, it appears that alleged act of the victim going with the accused-appellant had been committed because the victim was not willing to live with her parents and they had developed love and intimacy, and not for any other reason. It was not the prosecution case that offence was committed because the victim belongs to the scheduled-caste community. At least there is no evidence in this regard. Therefore, we are of the considered opinion that had the factum of charges been proved, in that event also, the accused-appellant cannot be punished for the offence punishable under Section 3(2)(v) of SC/ST Act.

27.Hon'ble Supreme Court in Dinesh @ Buddha v. State of Rajasthan, AIR 2006 SC 1267 has held as under:

"15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes. In the instant case no evidence has been led to establish this requirement. It is not case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and fine.

16. In view of the finding that Section 3(2)(v) of the Atrocities Act is not applicable, the sentence provided in Section 376(2)(f), IPC does not per se become life sentence."

28.Hon'ble Supreme Court in Ramdas v. State of Maharashtra, (2007) 2 SCC 170 has held as under:

"11. At the outset we may observe that there is no evidence whatsoever to prove the commission of offence under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The mere fact that the victim happened to be a girl belonging to a Scheduled Caste does not attract the provisions of the Act. Apart from the fact that the prosecutrix belongs to the Pardhi community, there is no other evidence on record to prove any offence under the said enactment. The High Court has also not noticed any evidence to support the charge under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and was perhaps persuaded to affirm the conviction on the basis that the prosecutrix belongs to a Scheduled Caste community. The conviction of the appellants under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 must, therefore, be set aside."

29.On the basis of the above discussion of evidence adduced in this case it is explicitly clear that the charged offence of the victim allegedly going with the appellant had not been committed because the victim was a member of the SC/ST community. to the contrary it is proved that this act had been committed for fulfilling the wishes of the victim who wanted to marry the appellant and live with him. In such a case the offence punishable under section 3(2)(v) of Scheduled Castes or Schedule Tribes Act has not been committed.

30.Apart from it, there is nothing on record that may show that the accused-appellant Ishwar Kewat had gone with the victim Poonam because she was a member of the scheduled caste community, nor such finding was given. It appears from the evidence of victim Poonam and appellant Ishwar Kewat that they had developed friendship and intimacy; and then they had performed marriage without the consent of informant PW-1. Charged act had not been committed by appellant because of the fact that the victim belong to the scheduled caste or scheduled tribe community. Even if the prosecution case is accepted to be true, in that case also no offence u/s 3(2)(v) SC/ST Act appears to have been committed. But without considering these facts, the learned Additional Sessions Judge convicted the appellant for the charge u/s 3(2)(v) SC/St Act, which reflects lack of correct appreciation of the legal position by the court below.

31.On the basis of the discussion above, we are of the considered opinion that in this case there is no evidence of kidnapping or abduction of the victim from lawful custody or by use of criminal force or by misrepresentation etc. The prosecution had all along suppressed the important, relevant and best possible evidence. Due to concealment and suppression of important facts and evidence the presumption of fact was clearly against the prosecution. In any eventuality the prosecution had failed to prove the charges against the appellant. Therefore, our conclusion is that the impugned judgment of conviction and punishment of the appellant by the court below is erroneous on facts and on law, which deserves to be set aside.

32.On the basis of above discussion, this appeal is allowed. The judgment of conviction and punishment dated 31.10.2013 passed by Additional Sessions Judge, Court No. 3 Maharajganj in S.T. No. 38 of 2007, State v. Ishwar Kewat, case crime no. 620/2005, u/ss 363, 366 I.P.C. and section 3 (2)(v) of SC/ST Act, p.s. Paniyara is set aside and the accused-appellant is acquitted of all the charges. If not wanted in any other case, the accused-appellant Ishwar Kewat be released immediately from custody in this case.

33.Let a copy of this order be sent to the learned Sessions Judge, Maharajganj for ensuring immediate compliance.

Order Date :- 14.9.2015

Sanjeev