Manishankar vs State Of U.P.
2021 Latest Caselaw 11224 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Reserved  on: 15.09.2021
 
Delivered on: 21.10.2021
 
Case :- CRIMINAL APPEAL No. - 141 of 2021
 

 
Appellant :- Manishankar
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Shiv Shankar Mishra,Anil Kumar Awasthi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Suresh Kumar Gupta,J.

1. Heard learned counsel for appellant, learned A.G.A. for the State and perused the lower court record.

2. This appeal has been preferred on behalf of appellant Manishankar challenging the impugned judgment and order dated 09.12.2020 passed by learned Special Judge (Protection of Children From Sexual Offences Act, 2012)/Additional District & Sessions Judge Lucknow. By the said judgment, the appellant has been convicted and sentenced three years' rigorous imprisonment and fine of Rs.1,000/- with default stipulation for offence punishable under Section 363 IPC and five years' rigorous imprisonment and fine of Rs. 2,000/- with default stipulation by the court of learned Special Judge (Protection of Children From Sexual Offences Act, 2012)/Additional District & Sessions Judge Lucknow in Sessions Trial No. 593 of 2015 (State Vs. Manishankar) arising out of Case Crime No. 142 of 2015, Police Station Kakori, District Lucknow. Both the sentences were directed to run concurrently.

3. Brief facts of this case emerges as under:-

The first information report was lodged by father of the victim on 31.03.2015 with the allegation that the accused appellant enticed away his minor girl aged about 16 years. He search everywhere but she could not traced out. Therefore, on the basis of these allegations, FIR of this case against the appellant was lodged as Case Crime No. 142 of 2015 under Sections 363 & 366 IPC and Section 7/8 of the Protection of Children from Sexual Offences Act, 2012.

4. After lodging of this FIR, investigation of this case was entrusted to PW-6 Shailendra Kumar. During course of investigation, he recorded the statement of the victim. After recording the statement of the complainant and Head Moharir, the victim was recovered by police in presence of complainant near Kakori Naroha Road Lucknow on 02.04.2015. After recovery of the victim, the statement of the victim was recorded under Section 161 Cr.P.C. and then the victim was sent for medical examination on at Rani Laxmibai Hospital Rajajipuram, Lucknow where only external examination of the victim was done but father of the victim refused to internally examined the victim. During course of examination, x-ray of the victim was done for determination of age. As per x-ray report, the age of the victim was found to be 17-18 years at the time of the incident. During course of the investigation, Investigating Officer prepared site plan of incident as Ex. Ka-6 and place of recovery of the alleged victim as Ex. Ka-7. During investigation the victim was brought for recording the statement under Section 164 Cr.P.C. (Ex. Ka-3) on 04.04.2015 wherein she has stated as under:-

"eSa 30 ekpZ 2015 dks vius ?kj ls vdsys viuh ethZ ls fudyhA fQj eSa vius ifr ef.k'kadj] ftuls eSa igys gh efUnj esa 'kknh dj pqdh Fkh] ds lkFk lhrkiqj pyh x;hA ogkW ,d eafnj Fkk ogha x;saA eSa jkth Fkh tkus ds fy,A eSa vius ?kj ls Hkkxh Fkha] iqfyl sa cgyk Qqlykdj ugh ys x;k FkkA

;g c;ku eSa fdlh Mj esa ugha ns jghs gWw] lp cksy jgh gWwA"

5. After collecting entire evidence and formality of the investigation, the Investigating Officer submitted charge sheet against the appellant under Sections 363 and 366 IPC and Section 7/8 of the Protection of Children from Sexual Offences Act on 01.06.2015 and the cognizance taken by the Special Judge (Protection of Children from Sexual Offences Act, 2012) and charge against the appellant was framed on 13.01.2016 under Sections 363 and 366 IPC and Section 7/8 of the Protection of Children from Sexual Offences Act, 2012 and the charge was read over to the appellant in hindi and the appellant denied the charges levelled against him and claimed to be tried.

6. In order to prove its case, the prosecution has examined as many as six witnesses. PW-1 complainant and father of the victim, PW-2 the victim herself, PW-3 Dr. Shashi Verma, who medically examined the victim, PW-4 Investigating Officer Teerath Raj Yadav, PW-5 Head Moharir Rajesh Kumar Saroj and PW-6 Shailendra Kumar, who reported himself to be Head Master of Primary School Pyare Pur Mauda. He proved the age of the victim and statement of this witness is based on scholar register. As per scholar register, her date of birth was 16.07.1999, which is proved as Ex. Ka-12.

7. The prosecution has also relied upon the following documentary evidence. Ex. Ka-1 written report, Ex. Ka-2 statement of the victim under Section 164 Cr.P.C., Ex. Ka-3 medical examination of the victim, Ex. Ka-4 x-ray report, Ex. Ka-5 supplementary medical report, Ex. Ka-6 site map of alleged place of occurrence, Ex. Ka-7 site map of the recovery of the victim and Ex. Ka-8 recovery memo of girl dated 2.4.2015, Ex. Ka-9 charge sheet, Ex. Ka-10 chick FIR Ex. Ka-11 is G.D. entry and Ex. Ka-12 is the scholar register. Thus the prosecution relied upon oral evidence of PW-1 and PW-6 and documentary evidence of Ex. Ka-1 to Ex. Ka-12.

8. PW-1 complainant of the case in examination-in-chief has stated before the court that he does not know the name of the accused, who voluntarily enticed away his girl. He clearly stated that he does not know about the written report as alleged by him. Thus this witness was declared hostile. In cross examination nothing adverse was disclosed against the appellant.

9. PW-2 victim has stated before the court that she know the accused for more than two years of the incident. At the time of alleged incident she herself called the accused/appellant and went with him at her own freewill. She clearly stated that the accused/appellant did not entice away. She voluntarily accompanied the appellant at her own freewill. The victim clearly stated that the accused/appellant have not made any physical relation with her. The victim further stated in her statement that she also instigated the appellant to solemnize marriage at Sitapur in a temple. She further stated that at the time of incident, her age was about 19 years. Therefore, this witness also does not support the version of the prosecution and was declared hostile. In cross-examination she clearly stated that she was never kidnapped nor abducted by the appellant. She herself join the company of the appellant.

10. PW-3 is Dr. Shashi Verma, who medically examined the victim. She deposed before the court that on 2.4.2015 at about 5:30 she externally examined the victim as the father of the victim only permitted for external examination of the victim, therefore, the internal examination of the victim could not be done by her. She clearly stated that as per external examination no injury was found on the body of the victim. The victim was appeared to be married and for determination of the age, x-ray was advised. Thus this witness proved the medical examination as Ex. Ka-3 and was also proved the x-ray report Ex. Ka-4 as secondary evidence. As per x-ray report, she proved the supplementary report as Ex. Ka-5 and as per x-ray report, the age of the victim was found to be 17-18 years.

11. PW-4 Teerath Raj Yadav is the formal witness and Investigating Officer of this case. The evidence as stated by this witness has already discussed earlier to PW-5 Rajesh Kumar, who prepared the Chick FIR on the basis of written report and proved the same as Ex. Ka-10. He also proved G.D. No. 19 time 11:20 Ex. Ka-11 and PW-6 another formal witness is the Pradhanadhyapak Primary School Pyarepur Mauda. He proved the date of birth of the victim as per scholar register as 16.07.1999.

12. Subsequent to closure of prosecution evidence, statement of appellant under Section 313 Cr.P.C. was recorded by trial court on 10.11.2020 explaining entire evidence and other incriminating circumstance. In statement recorded under Section 313 Cr.P.C., the accused appellant denied prosecution version and said that he has been falsely implicated in this case as the entire prosecution story was based on wrong facts. The appellants did not choose to lead any evidence in defence.

13. After hearing both the parties and appreciating entire oral and documentary evidence available on record, the trial court convicted the accused appellants as aforesaid.

14. Being aggrieved and dissatisfied with the impugned judgment and order dated 09.12.2020, the appellant preferred this appeal.

15. I have heard learned counsel for appellant and learned A.G.A. for the State.

16. Learned counsel for appellant has submitted that the trial court without appreciating the evidence available on record wrongly convicted the appellant. Further submission is that whole prosecution story is based on conjectures and surmises. Learned counsel for appellant argued that the prosecutrix herself wanted to marry with the appellant. She clearly stated that she had not been enticed away by the appellant from lawful guardianship of her parent. The victim voluntarily accompanied with the appellant. It is also submitted that PW-1 complainant, who is the father of the victim as well as the victim also did not support the prosecution version but the trial court without considering the statement of the victim as well as complainant wrongly convicted the appellant. The appellant was convicted only on the basis of scholar register as well as statement of PW-6 Pradhanadhyapak that at the time of incident, the victim was minor. Thus the conviction and sentence of the appellant could not sustain in the eyes of law.

17. In support of his submission, learned counsel for appellant relied upon a judgment of this Court in the case of Dhirendra Patel alias Jony Vs. State of U.P. passed in Criminal Appeal No. 4988 of 2016.

18. Learned A.G.A. for the State has submitted before the Court that the trial court after appreciating the evidence available on record has rightly convicted the appellant. It is further submitted that although the victim as well as complainant was declared hostile but considering the fact that prosecutrix at the time of incident as per scholar register was aged about 15 years, 8 months and 14 days. Thus the victim was minor at the time of incident, therefore her consent was wholly irrelevant for the charges of kidnapping in the light of the age of the victim which clearly shows that the appellant voluntarily enticed away and lured the minor girl with the intention to have intercourse and marry her. Therefore, all the ingredients of Sections 363 and 366 IPC were fully established and proved. The trial court considering the serious nature of the offence, rightly awarded the sentence of five years rigorous imprisonment under Section 366 IPC and under Section 363 IPC three years rigorous imprisonment and fine of Rs. 1,000/-.

19. I have heard learned counsel for parties. Now the questions arise as to whether the prosecution has been able to prove its case beyond reasonable doubt or not? So first of all, this Court to see the provisions relating to kidnapping from lawful guardianship as defined under Section 361 IPC, which reads as under:-

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.

Explanation.- The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Section 366 IPC reads as under:-

366. Kidnapping, abducting or inducing woman to compel her marriage, etc.--Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; 1[and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid].

20. On perusal of the entire evidence, it transpires that the victim herself stated before the Court that the appellant never enticed away the victim in order to taking from his legal guardianship, but she clearly stated in her statement that she herself induced the appellant to take away in order to marry with him. The appellant had no active role to play in occurrence for kidnapping or abducting the minor girl. In the case of Anversinh alias Kiransinh Fatesinh Zala Vs. State of Gujarat reported in (2021) 3 SCC 12 wherein Hon'ble Apex Court in paragraph no. 13 has held as under:-

"13. A perusal of Section 361 IPC shows that it is necessary that there be an act of enticing or taking, in addition to establishing the child's minority (being sixteen for boys and eighteen for girls) and care/keep of a lawful guardian. Such "enticement" need not be direct or immediate in time and can also be through subtle actions like winning over the affection of a minor girl. However, mere recovery of a missing minor from the custody of a stranger would not ipso facto establish the offence of kidnapping. Thus, where the prosecution fails to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible to bring the guild home."

21. In the case of S. Varadarajan Vs. State of Madras reported in AIR 1965 SC 942 : (1965) 1 SCR 243 explicitly held that a charge of kidnapping would not be made out only in a case where a minor, with the knowledge and capacity to know the full import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on the part of the accused then it cannot be said that the appellant abducted the victim from lawful guardianship of the complainant.

22. In order to constitute the offence of an abduction a person must be carried off illegally by force or deception, that is, to compel a person by force or deceitful means to induce to go from one place to another. The intention of the accused is the basis and the gravamen of an offence under this section. The volition, the intention and the conduct of the accused determine the offence; they can only bear upon the intent with which the accused kidnapped or abducted the woman, and the intent of the accused is the vital question for determination in each case. Once the necessary intent of the accused is established, the offence is complete, whether or not the accused succeeded in effecting his purpose, and whether or not the woman consented to the marriage or the illicit intercourse.

23. Apart from this, to constitute an offence under Section 366 IPC, it is necessary for the prosecution to prove that the accused induced the complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to illicit intercourse as a result of her abduction.

24. On perusal of the entire evidence, it transpires that although at the time of incident, the victim was minor but as the medical evidence the age of the victim is about 17-18 years which shows that she have sufficient maturity to know her act. When the statement of the victim was recorded under Section 164 Cr.P.C., she clearly stated that she voluntarily accompany the appellant. She further clearly stated that no inducement has been done by the appellant. In the present case, PW-1 complainant as well as other witnesses did not support the version of the prosecution. On perusal of the statement of the complainant and victim, it transpires that the appellant never abducted or kidnapped the victim but the trial court convicted the appellant in a very hyper technical manner without considering the criminal principle of "Penology", so in my considered opinion, no offence under Section 363 and 366 IPC is proved against the appellant beyond reasonable doubt. Therefore, the appellant is entitled to be acquitted of the charges levelled against him. The appellant is acquitted against the charge levelled against him.

25. The appeal is allowed. Impugned judgment and order dated 09.12.2020 passed by learned Special Judge (Protection of Children From Sexual Offences Act, 2012)/Additional District & Sessions Judge Lucknow is hereby set aside.

26. Presently the appellant is on bail. He need not surrender. The bail bond of the appellant is cancelled and sureties discharged.

Office is directed to communicate this order to the court concerned for necessary compliance.

27. Lower court record be sent back.

Order Date :- 21.10.2021

Virendra