Kallu Kushwaha vs State Of U.P.
2016 Latest Caselaw 3970 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 28
 
Case :- CRIMINAL APPEAL No. - 75 of 2014
 
Appellant :- Kallu Kushwaha
 
Respondent :- State Of U.P. v
 
Counsel for Appellant :- Sanjeev Khare,Ram Sharan Giri
 
Counsel for Respondent :- Govt. Advocate
 
Hon'ble Abhai Kumar,J.

This appeal has been directed against the judgement and order of conviction of the appellant dated 16.11.2013, passed by the Additional Sessions Judge, Court No.2, Mahoba, in Session Trial No. 25 of 2011 (State Vs. Kallu Kushwaha and other), under Sections 363, 366, 376, 368, in Case Crime No. 192 of 2011, related to Police Station Kabrai, District Mahoba, whereby the accused-appellant was convicted under Section 363 for five years rigorous imprisonment and fine of Rs. 10,000/- and in default of payment of fine, three months additional rigorous imprisonment, under Section 366 for seven years rigorous imprisonment and fine of Rs. 15,000/- and in default of payment of fine, six months additional rigorous imprisonment, under Section 376(2)G for ten years rigorous imprisonment and fine of Rs. 25,000/- and in default of payment of fine, six months additional rigorous imprisonment was awarded, whereas co-accused Sanjay Kushwaha and Devi Dayal Kushwaha were acquitted from all the charges. Aggrieved by the same present appeal has been filed by the appellant Kallu Kushwaha.

The facts in brief are as follows:-

The first information report was lodged by the father of the prosecutrix namely Ramkishore on 23.01.2011 at about 12.45 P.M. stating that his daughter aged about 13 years was abducted on 22.01.2011 at about 5.00 P.M. by Kallu  alongwith one unknown person, when she was going to the field for easing out. She was taken to the Village Chakauthi, Police Station Kurara, District Hamirpur on the motorcycle at the residence of co-accused Devi Dayal Kushwaha. After getting information, the complainant immediately went to the house of co-accused Devi Dayal Kushwaha, from where his daughter was recovered, whereas both the accused were absconded. After that the complainant went to the Police Station Kabrai, District Mahoba and lodged the first information report under Sections 363 and 366 IPC. The statement of prosecutrix was got recorded under Section 164 Cr.P.C. by the Investigating Officer, wherein allegation of rape on both the persons was levelled. Prosecutrix was also examined medically and after finding the fact of rape Section 376 IPC was also added against the accused persons. After the investigation, charge-sheet was filed against all the above referred three accused persons. Against the co-accused Devi Dayal Kushwaha, only charge under Section 368 I.P.C. was framed, whereas charges under Sections 363, 366 and 376(2)g were framed against accused-appellant Kallu Kushwaha and co-accused Sanjay Kushwaha. In order to established its case the prosecution examined its witnesses as P.W.-1 to P.W.-11 as oral evidence. The Ext. Ka-1 to Ka-16 have been marked upon prosecution papers as documentary evidence. The statements under Section 313 Cr.P.C. were taken of accused-persons, whereby false implication has been claimed. It is also claimed by the accused persons that prosecutrix was major at the time of incident and she gave statement against her will due to pressure exerted upon her by her father, the complainant. After considering the oral and the documentary evidences, the trial court has convicted the accused-appellant Kallu Kushwaha as noted above, whereas rest of the co-accused persons namely Sanjay Kushwaha and Devi Dayal Kushwaha were acquitted from all the charges levelled against them.

Heard the learned counsel for the parties and perused the record.

Learned counsel for the accused-appellant submitted that the conclusion drawn by the trial court is perverse. According to him the inconsistencies and contradictions in the evidence of the witness are being ignored and whole story is imaginary. There is no evidence except for the evidence of prosecutrix against the accused-appellant. Elaborating his submissions the learned counsel for the accused-appellant has submitted that as per medical report the age of the victim was more than 16 years and less then 18 years of old and from the facts it can be ascertained that she was consenting party. It is also submitted that a fake school certificate in the name of Km. Ram Shri, daughter of Ram Kishore was procured by the prosecution, although nowhere it was the story of the prosecution that Km. Ram Shri is the same person who was alleged to have been abducted. It is also alleged by the learned counsel for the accused-appellant that the charge under Section 376(2)g is not made out against the accused-appellant. He further submits that co-accused Sanjay Kushwaha against whom identical allegations were made, has been acquitted by the trial court and on the same analogy accused-appellant Kallu Kushwaha should have been acquitted.

Learned trial court considered the evidence of witnesses regarding facts and found that P.W.-3 Mangelal's evidence is of no value, who in his statement recorded during the course of examination-in-chief, stated that he did see the accused-appellant Kallu Kushwaha and Sanjay Kushwaha taking away the victim forcefully and fled away from the spot on motorcycle. Although in the cross-examination this witness failed to stand his earlier statement, and on that basis he was rightly disbelieved by the trial court. From the facts it can be inferred that nobody saw the abduction of the proxecutrix. It is also admitted facts that recovery of the prosecutrix was not made from the accused-appellant Kallu Kushwaha and co-accused Sanjay Kushwaha. The complainant is not the eye witness of the incident and he did not see the accused-appellant Kallu Kushwaha and co-accused Sanjay Kushwaha abducting or kidnapping the prosecutrix. He found his daughter at the house of another co-accused Devi Dayal Kushwaha, and all the story as narrated by his daughter, he got the first information report lodged.

The learned trial court discussed the matter in detailed regarding the innocence of the co-accused Devi Dayal Kushwaha and Sanjay Kushwaha in the matter, and considering the facts that the statement of complainant namely Ram Kishore, the P.W.-1 are not trustworthy, there are so many improvements in his statement and trial court disbelieved his evidence. I also found that this witness is not a trustworthy witness as he has narrated and improved several facts during the course of investigation as well as during his statement given in the trial court. As per him the first information report was not read over to him and various facts are being not incorporated in that, but he did not make any complaint to any officer in this regards, then he stated that the accused persons were having intention to kill the prosecutrix, but at his behest, the police contacted Chunnu Yadav and directed him that victim girl should be returned safely. It is worthwhile to mentioned here that the accused-appellant Kallu Kushwaha is said to be the driver of Chunnu Yadav, and this facts has not been disputed. Then the Chunnu Yadav directed the accused-appellant Kallu Kushwaha not to kill the victim, but all these facts are improvement made by this witness during the course of statement given before the trial court. The prosecution is totally silent upon the points as to how the complainant got the information regarding kidnapping of victim by the accused-appellant Kallu Kushwaha and how he came to know that Kallu Kushwaha has taken the prosecutrix to the house of co-accused Devi Dayal and why the complainant and other persons rushed to the house of co-accused Devi Dayal in the district Hamirpur which is far away from the place of incident. Similarly there is no allegation of rape in the first information report. From the statement of P.W.-1 it can very well be inferred that he inquired about the incident from his daughter the victim and after that the first information report was lodged. In the cross-examination it is stated by this witness that nobody told him regarding the complicity of the accused-appellant Kallu Kushwaha, rather on his own, he suspected the complicity of the accused-appellant Kallu Kushwaha in the incident. He further stated that it was Raghuvir Yadav, who told him about the whereabout of the proxecutrix, then they went to Chakauthi. So whole story narrated by this witness is full of doubts and not trustworthy, and on the same evidence of this witness, co-accused Sanjay Kushwaha, whose role was also identical to that of the accused-appellant Kallau Kushwaha, was acquitted by the trial court.

Learned trial court after considering the evidence at length, disbelieved most of the story of the prosecution and acquitted the co-accused Sanjay Kushwaha and Devi Dayal Kushwaha, but in the end of the judgement it is concluded by the trial court that rape upon the victim was committed and the accused-appellant Kallu Kushwaha was found guilty for the same.

It is vehemently argued by the learned counsel for the accused-appellant that co-accused Sanjay Kushwaha was acquitted on the same evidence, but in the end of the judgement the accused-appellant Kallu Kushwaha was convicted without any basis and evidence regarding that. From the facts and observations made by the trial court, it can be inferred that trial court convicted the accused-appellant on two grounds, firstly he was named in the first information report and secondly committal of rape is proved. The charges under Section 363 IPC was also found true by the trial court and arrived at the finding, on the ground that prosecutrix was taken away from the lawful custody of her guardian.

The argument of the learned counsel for the accused-appellant regarding acquittal of co-accused Sanjay Kushwaha, I don't find that argument does hold any water. The name of the accused-appellant Kallu Kushwaha finds place in the first information report, whereas name of co-accused Sanjay Kushwaha was not even stated by the prosecutrix in her statement recorded under Section 164 Cr.P.C. before the Magistrate. Name of co-accused Sanjay Kushwaha was not even revealed by the co-accused Devi Dayal, in whose house the victim was said to have been kept after kidnapping. So there is material differences in the evidence against the accused-appellant Kallu Kushwaha and co-accused Sanjay Kushwaha.

Before considering the charges under Section 363 IPC, matter under Section 366 and 376 IPC is being taken prior to that. During the argument learned counsel for the accused-appellant accepted and argued that victim was a consenting party and on her own free will she accompanied with the accused-appellant Kallu Kushwaha. It is also submitted by the learned counsel for the accused-appellant that complainant did admit the facts that Chunnu Yadav was willing to get the victim married with accused-appellant Kallu Kushwaha. Kallu Kushwaha was also known to the complainant prior to the incident. There is shop of Kallu Kushwaha in front to the house of the complainant and Kallu Kushwaha used to visit the house of prosecutrix. Although, all the facts are not being admitted clearly by the complainant, but most of the facts are admitted by the complainant during his cross-examination. So it can be said that prosecutrix was known to the accused-appellant Kallu Kushwaha and she might have travelled with the Kallu Kushwaha out of her own free will.

It submitted by the learned AGA for the State that even if it is presumed that the prosecutrix went out of her own free will, but in her statement given before the court as well as in the statement recorded under Section 164 Cr.P.C. before the Magistrate, she had clearly made allegation of rape and in the circumstances presumption under Section 114-A of Evidence Act, 1872 will be done and on that basis the charges of rape are being proved against the appellant Kallu Kushwaha.

The presumption under Section 114-A can be drawn where sexual intercourse by the accused is proved and if it is stated by prosecutrix before the court that she did not consent, the court shall presume that she did not consent. For ready reference Section 114-A is reproduced herein below:-

"114-A. Presumption as to absence of consent in certain prosecution for rape:- In a prosecution for rape under clause (a), clause (b), clause(c), clause(d), clause (e), clause(f), clause(g), clause (h), clause (i), clause(j), clause(k), clause (l), clause(m), or clause(n), of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and such woman states in her evidence before the court that she did not consent, the court shall presume that she did not consent."

The age of the victim was narrated as 13 years in the first information report. A school certificate was also produced in the name of the Km. Ram Shri and during the investigation it is stated by the complainant that other name of the prosecutrix is Ram Shri, but this facts is not being incorporated during the statement in the court. Moreover, the trial court also not relied this certificate regarding the age of prosecutrix, but on the basis of medical report, it was found that the age of the victim was more than 16 years and less than 18 years at the time of incident.

The incident is of the year 2011 and at that time the consent of a girl, who is aged about more than 16 years was a valid consent, and if it is proved that victim was a consenting party then no allegation regarding rape can be accepted.

In this case medical report corroborated the sexual intercourse as per Ext. Ka-4 i.e. report of vaginal smear in which 2 to 4 dead spermatozoa per high power field were found. On the basis of which the trial court came to the conclusion that sexual intercourse is being taken and I also don't find any reason to defer from that finding. Now the question arises as to whether the prosecutrix is a consenting party for sexual intercourse or is being done against her will and whether a presumption under Section 114-A of the Evidence Act, 1872 can be done. Nobody saw the incident of abduction. Complainant suspected abduction by Kallu Kushwaha as per his own admission and that means he was having some knowledge regarding relation of prosecutrix with the accused Kallu Kushwaha, and a girl of more than 16 years old cannot be abducted forcefully by a single person in a given circumstances, then the story was hatched that two persons did the job of kidnapping. The complicity of second person namely Sanjay Kushwaha was not found correct by the trial court. The statement of P.W.-2 the prosecutrix also not helpful to the prosecution to prove its case regarding no consent. Prosecutrix was recovered by the complainant from the house of co-accused Devi Dayal, although at some places it has come that co-accused Devi Dayal handed over the prosecutrixe to the complainant at the outskirts of the village, so as to this facts might not come in the knowledge of villagers, but that makes no difference. No allegation of rape is being made in the first information report, although the prosecutrix must have told the whole story regarding her elopement and certainly she did not tell anything about rape in the incident to the complainant. After the medical examination of the prosecutrix it was found that sexual intercourse took place, then a theory of rape is being cooked.

The medical report Ext. Ka-4 is dated 24.01.2011 whereas the statement of prosecutrix under Section 164 Cr.P.C. was taken on 27.01.2011 and in that statement she made allegation of rape on accused-appellant Kallu Kushwaha as well as one another person. It is worthwhile to mention here that as per the prosecutrix she was raped twice by both the accused persons. Firstly immediately after kidnapping in the same village of the prosecutrix in the field of Kallu Kushwaha and then she was again raped by both the accused in the house of co-accused Devi Dayal. From the medical report, it is clear that no injury was found on the part of prosecutrix. As per Ext. Ka-6 no external injury was found on any part of body, and in the examination of private part hymen was found torned. No bleeding was found and no discharge was present on vulua or inside vagina. No injury was found on vulua or inside vagina.

If a lady of 16 years is being raped by two persons twice, firstly in the field and again in the house of co-accused Devi Dayal, then there should have been injuries on the part of victim. There should have been injuries regarding resistance against rape and then injuries should have been on the private party also. More so, in the circumstances when rape is being committed in an agricultural field then there are more chances of receiving injuries on the body, firstly the resistance caused by the victim and the injuries caused by the rough surface of the field.

From the above facts, it can be inferred that absence of any injuries on the part of victim was because that she was a consenting party and out of her own free will she made physical contact with the accused-appellant Kallu Kushwaha. Presumption of Section 114-A of the Indian Evidence Act, 1872 is a rebuttable presumption and by mere statement of the victim that she did not give consent, it cannot be conclusively accepted, rather if consent is rebutted then benefit of Section 114-A of the Indian Evidence Act, 1872 cannot be given to the prosecution and in that case offence of rape cannot be accepted.

Bombay High Court in the case of 'Subhedar Khan s/o Sher Khan Vs. State of Maharashtra, reported in 2005(1) ALL MR(Crl) 874' has elaborately discussed this matter and observed that 'No injuries were found on her private parts, then the victim can be said to be a consenting party and presumption under Section 114-A of the Evidence Act can be said to have been rebutted'. Hon'ble Mr. Justice A. S. Bagga,J. has observed as follows:-

"13. If there is sexual intercourse with consent of the girl who is more than 16 years of age, it cannot amount to rape. Once it is shown that the age of the girl is more than 16 years and once it is held (as has been so held in this case in the foregoing paragraphs that there was consent, the age, status in society and the relationship of the accused with the girl is irrelevant and insignificant. Therefore, even if it is shown that the appellant was an aged person, he was teacher or that he was respected as a guardian of students, could not make any difference. The appellant cannot be convicted for the offence of rape. Therefore, the conviction of the appellant for the offence punishable under Section 376 of the Indian Penal Code and sentence awarded to him on that count, will have to be quashed and set-aside".

From the above facts, I come to the conclusion that prosecutrix was a consenting party and trial court conclusion again this was erroneous and not based upon the proper elucidation of the evidence on record.

Consent of the prosecutrix can also be inferred from the altered stand taken by her. In the first information report rape was not alleged. In the statement of the prosecurtix under Section 164 Cr.P.C. rape was alleged but at what place it is not made clear, later on this is stated that rape was committed firstly in the field of accused-appellant Kallu Kushwaha, then in the house of co-accused Devi Dayal by the accused-appellant Kallu Kushwaha as well as co-accused Sanjay. Then another story was cooked that phone of the police official was received for safe return of the prosecutrix. The complaint, father of the prosecutrix also changed his stand at several places already discussed. The prosecutrix was taken to another district i.e. for away from the place of incident, where she was recovered. During the period of travelling she did not raise alarm at any point of time and it cannot be believed that a young girl is being taken away without her consent to a place i.e. about 40 kilometre away form the place of incident and not raising any alarm, more so when was not having consented. From this facts it can be accepted that prosecutrix did go with the accused-appellant Kallu Kushwaha out of her own free will. Had she not gone out of her free will, then she would have stated single story, but changing the story various time it can very well be inferred that false story are being cocked up and false implication is being made, and in the contest it can very well be accepted that prosecutrix went with accused-appellant Kallu Kushwaha out of her free will or consent.

So the charges under Section 376 IPC against the accused-appellant were not proved beyond all reasonable doubt and the learned trial court misdirected itself and reached to a wrong conclusion without properly discussing the evidence. No where it is discussed by the trial court whether victim was consenting party or not. As charges under Section 376 IPC not proved, consequently charges under Section 366 IPC can very well be said to have not proved.

As held above the prosecutrix was a consenting party, so it can very well be said that she was not abducted with the intention to compel her to merry any person against her will, or she was likely to be forced or seduced to illicit intercourse, and consequently I find that appellant is also entitled to be acquitted of the charges under Section 366 IPC.

Accused is also convicted under Section 363 IPC. Kidnapping from lawful guardianship is defined in Section 361 of IPC, which runs as follows:-

"361. Kidnapping from lawful guardianship.- Whoever takes or entices any minor under (sixteen) years of age if a male, or under (eighteen) years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."

If a female, under the age of 18 years is removed from the lawful guardianship without the consent of her guardian, then it is said to be kidnapping of such minor. This Section requires the consent of the guardian, and the consent of the minor is of no consequence. So it is to be seen whether the victim was minor (eighteen years of age) at the time of incident or not. It is observed by the trial court that as per medical report the age of the victim was above 16 years and below 18 years and in the circumstances it was found by the trial court that addition of two years cannot be given and it will be presumed that the victim was above 16 years but below 18 years of age. The trial court fortified its observation on the law as held by Hon'ble Apex Court in 2011 (1) JIC 666 U.P. State Vs. Chotey Lal, wherein it was held by the Hon'ble Apex Court that two years of extra benefit cannot be given in the cases where medical report says the age keeping the two years difference. Counsel for the accused-appellant also could not dispute this facts, hence the conclusion drawn by the trial court is not liable to be interfered with. On that basis it can very well be said that prosecutrix was below 18 years of age at the time of incident. Although prosecutrix might have consented the elopement with the appellant but it was accused-appellant persuasion, which compelled the proxecutrix to go with the appellant. Even if the proxecutrix accompanied the appellant with her own free will and without persuasion, even then the continuous association of the appellant with the prosecutrix, then taking her to the house of his Mausiya, which is far away from the place of proxecutrix's father, can't be justified. Although it may be his moral duty to return her to her parents custody, when is not doing so, is no infringement of the Act, or the Act does not says that he shall restore her, but he shall not take her away. It is however, very well clear that if the girl acting under his persuasion or out of her own free will and leaves her father's house, yet he aware himself for that leaving, that would be taken her out of her father's possession, because the persuasion would be motive cause for her leaving. Initially persuasion may not be there, but after the victim accompanied that appellant, then taking her on the motorcycle or by any other means, which were far away place, can very well be assumed the inducement by the appellant and keeping her away from her father custody continuously, such person is guilty of the offences. There was no consent of the guardian of the prosecutrix, i.e. complainant, the father of the prosecutrix, and in the circumstances it can very well be assumed that prosecutrix was taken away from the lawful guardianship of her father and in the instant facts if learned trial court held the appellant guilty for the offence under Section 363 IPC, that cannot said to be perverse or without the material on record. Offence punishable under Section 363 IPC is therefore proved against the appellant.

Since, in the case it has been held in the foregoing paragraphs that the girl/victim voluntarily went with the appellant and she is having sexual intercourse out of her consent, so offences punishable under Section 366 and 376 I.P.C. are not made out.

The conviction of the appellant for the offences punishable under Section 363 IPC is upheld and affirmed. The order of conviction and sentence of the appellant for the other offences is set-aside.

Though the appellant was convicted under Section 363 IPC for five years rigorous imprisonment and fine of Rs. 10,000/- and in default three months further rigorous imprisonment was given, this punishment was awarded on the ground that prosecutrix was kidnapped against her will and she was also raped and that is why a severe punishment was awarded. Counsel for the appellant in the circumstances argued that a lenient view should be taken, where prosecutrix is consenting party.

The request made by the counsel for the appellant is considered worthy, and seeing the facts and circumstances of the case and the manner of incident and the consent of prosecutrix, a lesser punishment can be given and sentence is accordingly modified. Accused-appellant is directed to serve out rigorous imprisonment of two years and to pay a fine of Rs. 10,000/- and in default, he shall further undergo rigorous imprisonment for a term of three months for the offence punishable under Section 363 IPC. In the event of realization of fine, the same shall be paid to the complainant, the father of the prosecutrix. He will, of course, be entitled to set off for the period, if any, he has undergone in jail earlier.

The accused-appellant shall surrender his bail to serve out the aforesaid sentence.

In the result, appeal is allowed partly.

Order Date :- 08.07.2016

VKG