Abboo vs State Of U.P.
2017 Latest Caselaw 4382 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved
 

 
Case :- CRIMINAL APPEAL No. - 410 of 1997
 

 
Appellant :- Abboo
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- I.Murtaza,Rishad Murtaza
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Sheo Kumar Singh-I,J.

1. This criminal appeal is directed against the judgment and order dated 28.07.1997 passed by VI Additional Sessions Judge, Sitapur, in Sessions Trial No.418 of 1989 whereby and whereunder accused appellant Abboo was found guilty for the offences under Sections 363 IPC and was sentenced to undergo rigorous imprisonment for a period of three years with fine of Rs.1000/-, under Section 366 IPC five years' rigorous imprisonment with fine of Rs.1000/- and under Section 376 IPC ten years' rigorous imprisonment with fine of Rs.5000/-. In default of payment of fine, he was directed to undergo six months, six months and one year's imprisonment respectively. All the sentences were directed to run concurrently.

2. Brief facts, as narrated by the prosecution, are that the complainant Santu lodged a first information report on 13.06.1987 with the facts that on 10.06.1987 at about 02.00 PM his daughter and another girl had gone to market but did not return to home. When he searched then Dammu Lal, Bhairon Mali and Ram Shankar of his village told him that both the girls were talking to appellant Abboo and one Jaahid near the pond. He had also communicated that after certain discussions, appellant Abboo and Jaahid along with girls proceeded towards Saraiya. After the search when they were not traced out, information was given to the police station where an offence under Section 363 and 366 IPC was registered at Crime No.34 of 1987. During investigation, both the girls were recovered from the house of one of their close relative, sister, and they were produced before the Magistrate for recording statement under Section 164 Cr.P.C.

3. After investigation, the Investigating Officer submitted charge sheet against the appellant.

4. After taking cognizance, the case was committed to the court of sessions where the accused/appellant was summoned and charges under Sections 363, 366 and 376 IPC were levelled against him for which he pleaded not guilty and claimed for trial.

5. In order to prove the prosecution case, PW-1 Km. Geeta, PW-2 Santu, PW-3 Dr. (Smt.) Uma Prasad, PW-4 Dr. O.P. Pandey, PW-5 Constable Sri Ramdas and PW-6 S.I. Vijay Bahadur Singh were examined.

6. In the statement recorded under Section 313 Cr.P.C, the accused/appellant denied from the charges and stated that due to certain dispute with regard to house/property and enmity with the village Pradhan, he has been falsely implicated in this case.

7. In defence, DW-1 Tauvar, Dw-2 Jaahid Ali, DW-3 Ram Shankar and DW-4 Iqbal Ahmad, retired Reader, S.D.M Mahmoodbad, were examined.

8. The trial court, on the basis of evidence on record, came to the conclusion that the present appellant Abboo had committed the offence and found the appellant guilty and sentenced him, as above.

9. Aggrieved by the order, the appellant has filed the present appeal on the following grounds:-

I. That the findings of the court below are perverse and erroneous and not proved by medical evidence.

II. That there was no motive to commit the offence.

III. That none of the independent witness had been examined by the prosecution and the story of the prosecution is highly improbable.

IV. That there are major contradictions, inconsistencies and improbabilities in the evidence of the victim as well as the complainant and there is nothing like recovery of the victim or even the evidence of kidnapping.

10. Learned counsel for the appellant has submitted that the case of kidnapping or abduction has not been proved by the prosecution and before proceeding to analyze the offence mentioned under Section 376 IPC there must be cogent and reliable evidence to rely the case of kidnapping from lawful guardianship by the accused appellant.

11. So far as offences punishable under Sections 363 and 366, IPC are concerned, it is necessary to note their essential ingredients. Section 363 provides for punishment in case of kidnapping of any person from India or from lawful guardianship. Kidnapping from lawful guardianship has been defined in Section 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 to Section 361 provides 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.

12. 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.

13. Significantly the word 'possession' has not been used in the IPC, 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.

14. So far as Section 366 is 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 in Section 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 under Section 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 in Section 362 when 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 of Section 363. Abduction on the other hand is not punishable per se, and is punishable only when accompanied by a particular purpose as contemplated in sections 364 to 366. But as kidnapping also may be for the same purposes, Sections 364 to 366 deal with both kidnapping and abduction for the purposes stated therein and prescribe the punishments.

15. 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.

16. After examining the first information report and the statement of the witnesses, it seems that the case has been narrated in two parties, namely (1) the offence which has been narrated in the first information report is kidnapping from lawful guardianship with ulterior motive simply coming within the purview of Sections 363 and 366 IPC and (2) the offence which was narrated during the examination before the Court committed four months' ago before lodging the first information report. Let me deal the first offence.

17. The informant had communicated to the police station that on 10.06.1987 at about 02.00 PM accused/appellant with another person named Jaahid kidnapped two minor girls from his lawful guardianship. Before proceeding with the case, it would be better to discuss the statement recorded under Section 164 Cr.P.C.. In the report dated 13.06.1987, the complainant Santu had submitted simply that when both girls did not return to home from market, two persons of the village communicated him that both the girls were talking with appellant Abboo and another named Jaahid. The victims were recovered and were taken to the Executive Magistrate for recording their statement on 15.06.1987 where the first girl had stated that she had gone to the house of her sister and from there her brother took her and she returned back to her house. While she was playing in the field the brother of village Pradhan Munna named Abboo came there and induced to go somewhere then both of them followed Abboo towards Saraiya village and boarded a bus. Appellant Abboo was not in the bus. They reached at Mahmoodabad but appellant was not there then they reached at Sitapur and then went to Bahadurpur, the house of her sister, where her brother came and they returned to their house. The perusal of the evidence shows that the accused/appellant was not with them, neither in the bus nor in the total journey. The second girl was also produced before the Executive Magistrate who had also stated that while she was playing with first girl the accused/appellant Abboo allured them to provide something. They followed him and boarded in a bus. They reached Mahmoodabad but the accused/appellant was not with them. Again they went to Sitapur and then to Laharpur to the house of her sister when her brother came and she came back to her house.

18. The statement of these two girls recorded before the Magistrate just after the incident reveals that nothing was committed with these girls which may be interpreted to be within the definition of offence under Section 376 IPC. There was no motive or taking away from the lawful guardianship because according to their statement after boarding the bus accused/appellant was not with them.

19. Learned counsel for the appellant has submitted that the appellant has been falsely implicated in this case. If the intention of the appellant was to kidnap them from lawful guardianship, he might have accompanied them or would have taken away to them to his destination but neither the appellant accompanied them nor was seen by anybody else. Further it is submitted that the girls were seen by two persons who communicated this fact to the complainant. Learned counsel for the appellant has submitted that both the girls were fast friends and they used to roam about in the village together. Kishana's elder sister was married to one Rajendra residing in Laharpur district Sitapur and above two girls had gone to Sitapur on 10.06.1987 and father of one lodged first information report in police station Rampur on 13.06.1987 falsely implicating him. It has further been submitted that Smt. Ratna along with son Gaya Prasad were searching her girl and found them at Rajendra's house and brought them at their residence. Smt. Ratna and Gaya Prasad were searching for girls and found them at Rajendra's house and brought them at their residence. Smt. Ratna and Gaya Prasad had sent an application to Superintendent of Police with an affidavit by Registered post and to court concerned intimating therein that the said girls had gone to Laharpur at their own sweet will. A similar application was given to the Court of Judicial Magistrate on 24.06.1987. It has further been submitted that as per prosecution story Dammu and Bhairon had communicated the complainant with regarding to talking of two girls with the appellant. They had also given affidavit and application before the Magistrate that they had not seen such incident and never communicated to the complainant. It has further been submitted that in the statement recorded under Section 164 Cr.P.C no case under Section 376 IPC is made out and the police has arrested the accused/appellant against which a telegram was sent to the authorities concerned. There is an affidavit on behalf of Asfaq Husain that there was an election rivalry between the parties.

20. It is a prosecution theory that Kishana also accompanied the victim, first girl, and while going with the accused/appellant Ram Shankar, Bhairon and Dammu had communicated the complainant that they had seen them talking with the appellant Abboo and going with him. All three were very important witnesses but they have not been examined by the prosecution.

21. It is stated by learned counsel for the State that they had not supported the prosecution case while learned counsel for the appellant has submitted that no incident occurred in the way, as narrated by the prosecution. Dammu and Bhairon had filed an affidavit and application before the Court concerned that they had never communicated the fact that two girls were talking with the appellant Abboo or they went to Saraiya and boarded a bus. Smt. Ratana and Gaya Prasad are mother and brother of the second girl. They had filed an application along with affidavit that both the girls had gone to the house of her daughter, sister of second girl voluntarily on 10.06.1987 because they were angry with their family members for some reasons on that day. They had filed an affidavit that when they visited the house at Laharpur they found both the girls and came back with the girls.

22. Perusal of the statement and all the facts reveals that there is nothing like kidnapping or abduction from lawful guardianship. Thus, the story, as narrated by the prosecution, has not been found proved.

23. Now the question relates to the second charge, which relates to four months' back from lodging the first information report.

24. It is submitted by learned counsel for the appellant that the story is false because no first information report was lodged with regard to the aforesaid fact. Secondly, it has been submitted in the prosecution theory during the course of examination in chief that before lodging the first information report of kidnapping another incident, which took place four months' earlier relating to sexual offence, was committed by the appellant. The fact, as stated, had never been communicated to anyone or even to the police authorities for taking action. It is the version of the prosecution that Ram Shankar and another were witnesses. PW-1 the victim had stated on oath with regard to second fact that accused/appellant took her in a house which was locked from outside. It is stated that the theory of committing the offence within a house is impossible because the victim herself has stated that the house was locked from outside. DW-1 Tauvar (owner of the house) has been examined from the defence side who had stated that the boundary of the house was about 5 to 6 feet in height, which cannot be jumped by the appellant or the victim and this fact, as narrated by the prosecution, has never happened nor has ever been communicated to anyone. The prosecution has stated that Jaahid was directed to provide medicine to the victim while DW-2 Jaahid Ali in defence had stated on oath that he never injected any medicine to the victim and was never communicated by the appellant to provide any medicine to the victim. DW-3 Ram Shankar had stated on oath that he had never seen the accused/appellant with the victim. DW-4 Iqbal Ahmad, retired reader of the Court of SDM Mahmoodabad was examined who had proved the statement recorded under Section 164 Cr.P.C. In this statement nothing has been disclosed coming within the purview of the charges contained in the first information report.

25. One thing is required to be mentioned that on 01.12.1989, a charge was framed against appellant Abboo under Section 363, 366 and 376 IPC. The date was again corrected as 22.03.1990. The date of framing charge is not clear. Further there is another charge under Section 363 and 366 IPC which was framed on 03.01.1992. Dr. (Smt.) Uma Prasad was examined as PW-3, who had stated on oath that there was no injury on any internal part of the victim and no opinion of rape can be given on this point.

26. 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.

27. 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.

28. 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 under Section 363 of 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.

29. In light of above facts, the prosecution has failed to prove that the accused played any active part in taking away the victim out of keeping of her lawful guardianship and even on the sole testimony of the victim it is not at all reliable on the facts and in the circumstances of this case.

30. Learned counsel for the appellant has further submitted that there is an inordinate delay in lodging the first information report. So far as the first incident is concerned, the complainant himself is not sure about the commission of offence. Further with regard to first incident the report is very much delayed and lodged after due consideration due to inimical background between the parties and there was no first information report with regard to second offence as mentioned in paragraph 16 of this judgment. No explanation has been given by the prosecution regarding delay. There was no hue and cry in the family or in the neighbourhood by referring the appellant about the incident. There was no hue and cry by both the girls while travelling by bus though accused/appellant was not with them. 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 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'.

31. 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.

32. As discussed earlier her evidence has been found as much artificial as imaginary, which is due to subsisting rivalry between her family and the accused appellant. The possibility of making false allegation against the appellant is not unusual and cannot be ruled out. This Court would definitely sustain the impugned conviction had her evidence been found to be natural, trustworthy and inspiring confidence of the Court. The Apex Court in Narayan v. State of Rajasthan reported in MANU/SC/7284/2007 : (2007) 6 SCC 465, held that though evidence of prosecutrix can alone sustain conviction of the accused but if the evidence is found so artificial that it cannot be accepted, conviction and sentence imposed upon the accused for offences punishable under Sections 363, 366 and 376 IPC is liable to be set aside. On appreciation of the evidence on record, particularly the evidence of prosecutrix, whose evidence has been found artificial, unreliable and inconsistent, which, as per the settled position of law, cannot be accepted or acted upon for awarding conviction, I would desist from affirming/upholding the conviction and sentence awarded by the learned trial Court. I am not satisfied that the prosecution has been able to prove the charge against the appellant beyond all reasonable doubt. The convict appellant is entitled to get the benefit of doubt and acquittal on that score. The impugned conviction and sentence are hereby quashed and set aside. The appellant is acquitted on benefit of doubt. The bail bond shall stand discharged. The appellant is on bail. His bail is cancelled and sureties discharged. The appeal is allowed. Sent down the LCRs forthwith.

Order Date :-14.09.2017

A. Katiyar