Vijai Kumar vs State Of U.P.
2022 Latest Caselaw 8026 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 91
 

 
Case :- CRIMINAL APPEAL No. - 901 of 1984
 

 
Appellant :- Vijai Kumar
 
Respondent :- State of U.P.
 
Counsel for Appellant :- S.R.Niwas Sharma,Aarushi Khare Amicus Curiae,Pavan Kishore
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Samit Gopal,J.

1. The present appeal under Section 374(2) Cr.P.C. has been filed by Vijai Kumar son of Jagdish Prasad against the judgment and order dated 21.03.1984 passed by IIIrd Additional Sessions Judge, Meerut in Sessions Trial No. 320 of 1982 (State of U.P. Vs. Vijai Kumar) whereby the appellant has been convicted and sentenced under Section 366 IPC for three years rigorous imprisonment and under Section 376 IPC for five years rigorous imprisonment. The trial court has ordered the sentences to run concurrently.

2. The name of the prosecutrix is not being disclosed and mentioned in the present judgment in the light of directions of the Apex Court in various judgments and as per Section 228 of the Indian Penal Code. She is thus referred to as ''X' in the judgment.

3. The First Information Report of the present case was lodged against the appellant Vijai Kumar and Bulaki but Bulaki absconded and as such a charge sheet was submitted against him as an absconder. The trial thus was taken up against Vijai Kumar only. It was decided against which the present appeal has been preferred by the accused appellant Vijai Kumar.

4. The prosecution case as per application dated 28.10.1980 given by Harish Chandra (PW-1) son of Jwala Prasad R/o 50 Gudri Bazar, Chattey Wali Dukan, Meerut at the police station is that Vijai Kumar was a visitor to his house. He allured his daughter ''X' aged about 15 years and enticed her away on 26.10.1980 at about 11:30 pm when he and his wife were sleeping. In the morning, when he and his wife woke up, then they came to know of their daughter missing and Rs. 5,000/-, one pair pahuchi of three tola, one chain of one tola, one tops of half tola and one ring of half tola have already been taken by her. After getting up in the morning, he searched his daughter a lot and then Asha Ram son of Munshi Ram and Sundar Lal told him that they saw his daughter ''X' who was being taken by Vijai Kumar on his cycle. He, his son-in-law and other relatives are searching for his daughter but she could not be traced. Co-accused Bulaki (who is absconder) R/o Mohallah Holi is also involved in the present case as in the night of the incident at about 08:00 pm, he came to his house and was said that no one can stop Vijai Kumar from coming here. If anyone obstructs it, he will be murdered. The report is being lodged with delay as he was searching for his daughter. He prays that the matter be investigated and his daughter be recovered. The said application is Exb: Ka-1 to the records.

5. On the basis of the said application, a First Information Report was lodged on 28.10.1980 at about 05:15 pm as Case Crime No. 675 of 1980, under Section 363 IPC at Police Station Dehli Gate, District Meerut against Vijai Kumar and Bulaki. The Chik FIR was marked as Exb: Ka-9 to the records.

6. The victim ''X' was recovered on 26.11.1980 by Sub-Inspector Shiv Raj Singh PW-7 and his team from the house of Sant Ram son of Ram Khelawan residence of Mohallah Khalasi Line, Police Station Sadar Bazar, District Saharanpur. The recovery memo of the same is Exb: Ka-3 to the records. The victim ''X' was then given in custody of her father. A supurdagi memo was prepared which is Exb: Ka-2 to the records.

7. The victim ''X' was taken for medical examination and she was medically examined by Dr. Sushma Prakash PW-5 on 27.11.1980 at about 02:00 pm being brought by Constable 669 Omichand of Police Station Delhi Gate, District Meerut. The doctor gave the following opinion on medical examination:-

"The upper and lower jaws had 14 teeth each, height was 4 ft, weight 86 lbs, hair pubic and axillary present, breasts were developed, hymen had old tears and vagina admitted two fingers easily and there were no signs of external and internal injury. The girl is used to sexual intercourse".

The report is Ext. Ka-4 to the records.

8. The x-ray examination of the victim ''X' was conducted on 29.04.1980 after which a supplementary medical report dated 06.12.1980 was given by Dr. Sushma Prakash PW-5. Her opinion is as follows:-

"In my opinion according to the x-ray report, the girl's age is above 19 (nineteen) years". The said report is Exb: Ka-5 to the records.

9. The investigation concluded and a charge sheet no. 33 dated 02.02.1981 was submitted against the appellant Vijai Kumar under Sections 376, 120-B IPC. In so far, co-accused Bulaki is concerned, his name figured in the column of absconded accused. The said charge sheet is Exb: Ka-8 to the records.

10. Vide order dated 14.01.1983, the IIIrd Additional District and Sessions Judge, Meerut framed charges against the appellant under Sections 366, 376 IPC. The accused pleaded not guilty and claimed to be tried.

11. Before the trial court, Harish Chandra PW-1 was examined who is the father of the victim ''X' and the first informant of the case, Asha Ram PW-2 was examined who alleges that he saw the appellant taking away the victim on his cycle, victim ''X' was examined as PW-3, Sub-Inspector Shiv Raj Singh who recovered the victim ''X' on 26.11.1980 and prepared the recovery memo which is Exb: Ka-3 was examined as PW-4, Dr. Sushma Prakash was examined as PW-5 who conducted the medical examination of the victim and also gave supplementary medical report, Sub Inspector Pitamber Singh was examined as PW-6 who was the Investigating Officer of the present case.

12. Heard Ms. Aarushi Khare, learned Amicus Curiae and Sri Satendra Kumar Mishra, Advocate for the appellant and Sri Ankit Srivastava, learned counsel for the State and perused the record.

13. The matter was heard in part yesterday i.e. 25.07.2022 which was argued by Ms. Aarushi Khare, learned Amicus Curiae for the appellant. Today, Sri Satendra Kumar Mishra has also appeared who states that he has been engaged and has filed his vakalatnama today in the office. This Court thus proceeds to hear to both the learned counsels for the appellant.

14. Learned counsels for the appellant argued that the prosecutrix is a major girl. She went with the appellant out of her own sweet will. The medical evidence shows that she was aged about 19 years and as such she was a major. She went with the appellant with due preparation as is evident from the fact that she had taken away the valuables from the house for her utilisation. It is further argued that the First Information Report has been lodged after two days of the incident for which there is no plausible explanation at all.

15. It is further argued that doctor did not find any evidence of rape being committed on her. The victim girl ''X' married the appellant. There is a photograph of the appellant and the victim in which the victim is sitting on the left side of the appellant. The same is Exb: -1 to the records.

16. The victim and the appellant appeared before the Marriage Officer, Ghaziabad who registered their marriage. She has given an affidavit and an application stating therein that she is aged about 19 years and is a student of Intermediate and since her parents were not ready for the relationship with the appellant, she left her house as she was tortured and beaten and she was living with the appellant out of her own sweet will. The said application is dated 03.11.1980 and is Exb: Kha-3 to the records. Even an application to the same effect has been given by the victim to the District Magistrate, Meerut which is dated 01.10.1980 which is Exb: Ka-2 to the records.

17. The victim has given an affidavit in Arya Samaj, Saharanpur for getting herself married with the appellant which is dated 10.11.1980. The same is Exb: Kha-1 to the records. It is argued that looking to the facts of the case, the present case is a case of elopement. The trial court has wrongly disbelieved the evidence of defence witnesses.

18. In defence, the accused has produced Nirmal Swaroop as DW-1 the Record Keeper in the Office of Marriage Registrar, Ghaziabad who has produced the document related to the marriage of the appellant with the prosecutrix. Further, Virendra Singh Yadav, Marriage Officer, Ghaziabad has been produced as DW-2 who has stated that the appellant has married ''X' on 17.11.1980 and the same was got registered by him as per law. It is argued that the present appeal be thus allowed and the appellant be acquitted.

19. Per contra, learned counsel for the State rebutting the arguments of learned counsels for the appellant and argued that the prosecutrix has stated that initially she was going with the appellant after which he offered her tea which was mixed with some intoxicant and after consuming the same, she became unconscious and then found herself to be in a Dharamshala in Haridwar. It is argued that the prosecutrix has further stated the reason why she had gone out of the house which is for seeing the barat only after which she was allured by the accused and enticed away. She was under continuous threat and as such she was unable to run away and raise any alarm while being with the appellant. The trial court after thread bare analysis of the documents and evidence on record, has passed the judgment and order convicting the accused as stated above.

20. PW-1 Harish Chandra is the first informant and father of the victim girl. He gave an application at the police station which was lodged as a First Information Report. The version of the prosecution has already been stated above. He reiterates the same in the court.

21. PW-2 Asha Ram is a resident of village of the first informant who states that he saw the accused taking the prosecutrix on his cycle. He saw them near the Ghantaghar. On seeing him, the accused did not make an eye contact with him. He states that on the next day, he told the first informant about the same.

22. PW-3 the victim ''X' states that on the day of the incident, she went from the house to see a barat, she went all alone at about 10:00 pm, she met Bulaki there who said that Vijai is calling her. She knew Bulaki as he used to go to her house and was a residence of the same Mohallah in which she lived. She went with Vijai who took her on his cycle for Ghantaghar for consuming tea. She met Sundar Lal and Asha Ram on the way. They stopped at a hotel at Ghantaghar and tea was offered to her and after consuming it she became unconscious. When she regained her unconsciousness, she found herself to be in a Dharamshala in Haridwar. She was in Dharamshala for three days. Sexual assault was done on her without her consent. She was threatened of being murdered and as such she did not tell anyone anything. The accused then took her to Ghaziabad and made her sign on many papers. From Ghazaibad, he took her to Saharanpur where also the accused raped her without her consent and they stayed in a hotel for two days and then a room was taken on rent where she was kept as the wife of the accused. There also, she used to be regularly scolded. The accused used to forcibly establish physical relationship with her. Police recovered her from the room and then brought both the persons to Meerut where she was medically examined and was given in the custody of her father. She was aged about 15 years at that time.

23. In her cross examination, she states that she has passed her High School from Meerut. Her date of birth in the college is written as 15.07.1962. She went to see the barat without informing her parents. She stated that she was kept in Dharamshala where she was even served food in it. Bathroom was attached to it but there was a common toilet. She did not take bath in the Ganges. She states that she was in continuous threat in Khalasi Line. She lived in a rented room where the accused started his own business.

24. She further states that she stayed for 4-5 days in a hotel in Saharanpur but she did not remember its name. Many other people were staying in the said hotel. The owner of the house in which she was living in Khalasi Line near the Railway Station was also living in the same house. She stayed there for 15-16 days. The accused used to go to the market with regards to his work of Goldsmith after which she used to live alone in the house. She was not having any problem in the house. She did not try to run away from the house. She was living happily with Vijai Kumar in the said house.

25. PW-4 S.I. Shiv Raj Singh recovered the victim and also arrested the accused on 26.11.1980 from the house of Sant Ram in Saharanpur. He prepared the recovery memo which is Exb: Ka-3.

26. Dr. Sushma Prakash PW-5 examined the victim for the first time on 27.11.1980 and then gave a supplementary medical report on 06.12.1980. The opinion of the doctor has already been quoted above.

27. Sub-Inspector Pitamber Singh PW-6 took up the investigation and concluded it by filing charge sheet against the appellant and arraying Bulaki in the column of absconded accused in the said charge sheet.

28. The trial court thus convicted the appellant as stated above against which the present appeal has been preferred.

29. The victm ''X' as per the medical evidence was aged about 19 years at the time of the incident. Even as per her own disclosure in the cross examination, she gives her date of birth as 15.07.1962 and as such she was aged about 18 years at the said time. She was thus a major. The evidence as is coming forward shows that the victim ''X' was initially taken from Meerut to Haridwar by the accused where she was kept in a Dharamshala for three days, then she was taken to Ghaziabad and then taken to Saharanpur where she was kept for two days in a hotel. Lastly, a room was taken on rent in Saharanpur where the accused and the victim ''X' were living in it from where they have been apprehended.

30. As per the prosecution case, she went from the house on 26.10.1980 and was recovered on 26.11.1980 which is after one month of her being taken away. In the meantime, the evidence of DW-1 and DW-2 shows that she was produced before DW-2 on 17.11.1980 on which date, the marriage of the victim ''X' was registered with the appellant. The cross examination of the prosecutrix is quite fruitful to the accused. In the cross examination, it has been elicitated that many times she was alone in the house and even she was at the place where there were many other people. There were good opportunities to the victim ''X' to resist her being abducted and also raise a hue and cry so as to attract people after which she could have been saved but she chose not to do so. Her silence for about one month during which period she continued to travel to various cities and stayed at various places where other people also were staying would go to show that there was no resistance by her for the same. She even stayed in a rented house, the accused used to go to the market with regards to his profession and she used to live all alone but she never tried to run away from the said place. This also gives a dent to the prosecution story with regards to the story of the accused forcibly detaining the prosecutrix. She states that she was happy living with the accused in the said house.

31. The trial court has although disbelieved the two defence witnesses but the reason as given for disbelieving them appears to be that the Exb: Kha-1 in the same is credited to some other persons. In the same way, Exb: Kha-2 and Kha-3 have also been disbelieved by the same strike of pen. The said documents bear the signature of the victim which has not been disbelieved by the trial court and as such completely disbelieving the same, would not be proper.

32. In these circumstances, this Court comes to a conclusion that the prosecutrix was a major, she travelled with the accused-appellant to various places which was with her consent and was without any resistance. She indulged in physical relationship out of her own sweet will. She even after getting various opportunities to show her resistance, did not do so which would go to show that she was in the company of the appellant out of her own sweet will and consent.

33. The judgment and order dated 21.03.1984 passed by IIIrd Additional Sessions Judge, Meerut in Sessions Trial No. 320 of 1982 (State of U.P. Vs. Vijai Kumar), is hereby set aside. The present appeal is allowed.

34. The appellant is acquitted of the charges levelled against him. The appellant is on bail. His bail bond is cancelled and sureties discharged.

35. Office is directed to transmit the lower court records along with the copy of this judgment to the trial court forthwith for its compliance and necessary action.

36. Ms. Aarushi Khare, learned Amicus Curiae who was appointed Amicus Curiae vide order dated 16.07.2021 passed by a co-ordinate Bench of this Court assisted the Court in deciding the appeal.

37. Office is directed to pay a sum of Rs. 8,000/- for assistance of the Court to learned Amicus Curiae within two months from today.

Order Date :- 26.7.2022

M. ARIF

(Samit Gopal,J.)