Pradeep Bind vs State Of U.P.
2023 Latest Caselaw 12311 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Reserved On: 23.11.2022
 
Delivered On: 21.04.2023
 
Court No. - 50
 

 
Case :- CRIMINAL APPEAL No. - 4124 of 2018
 

 
Appellant :- Pradeep Bind
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Indrajeet Kumar Shukla,Shailendra Nath Tiwari
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Ram Manohar Narayan Mishra,J.

1. Heard Sri Indrajeet Kumar Shukla, learned counsel for the convict-appellant, learned A.G.A. appearing for the State and perused the material placed on record.

2. This criminal appeal has been filed against the judgment and order dated 4.6.2018, passed by learned Additional Sessions Judge, Court No.1, Ghazipur, in Sessions Trial No. 31 of 2016, State Vs. Pradeep Bind, arising out of Case Crime No. 2058 of 2015, under Section 376-A IPC & Section 3/5 of POCSO Act, Police Station Kotwali, District Ghazipur, whereby the appellant was convicted and sentenced under Section 376-A I.P.C. for seven year rigorous imprisonment, with fine of Rs.10,000/-, in default thereof he has to undergo six months additional rigorous imprisonment. The appellant has been acquitted of charge under Section 3/5 of POCSO Act, as being extended the benefit of doubt.

3. The brief facts of the case for the purpose of present appeal is that the first informant Smt. Jagrani, wife of Sri Narayan Bindh, resident of Mohalla Kapoorpur, Police Station Kotwali, District Ghazipur, lodged an FIR with police station concerned on 20.11.2015 at about 16:00 hours, on the basis of written report stating therein that her daughter, the prosecutrix used to visit her relative Jairam at Mahmudpur, where accused who was also frequenting as he is relative of Jairam. Pradeep used to sell 'Toddy' in Tadishop stalled by Jairam where he met prosecutrix 6 years ago and they developed intimacy. He would say that he would solemnize marriage with prosecutrix and his assurance was relied upon by prosecutrix as well as by her parents. He would also visit the home of the informant and used to make relations with prosecutrix on assurance of marriage. After some time, he got a job in CISF and even then he would assure prosecutrix to marry her but after some time he refused to marry her on pretext that eh would not solemnize marriage against wishes of her parents. The medico legal examination of the prosecutrix was conducted on 21.11.2015 at Government Hospital, Ghazipur, in which Doctor opined that there are no signs/suggestion of recent vaginal intercourse, yet there is evidence/suggestion of old genital assault. No physical injury is found. In pathological examination of vaginal smear of victim, no live or dead spermatozoa is detected. The radiological age of the victim was found by Doctor as 18 years as epiphysis around the elbow and writ joint were found to be fused in her X-ray report. Old healed hymen tear at 6 O'clock position was found in her internal examination. The prosecutrix supported the version set out in FIR lodged at the instance of her mother in her statement recorded under Sections 161 as well as 164 Cr.P.C. She in her statement recorded under Section 164 Cr.P.C. dated 2.12.2015 stated that she was aged around 18 years. She had gone to the place of her maternal uncle where the brother-in-law (saala) of her maternal uncle was also residing. He kept her in good humor and established physical relations with her for around six years on assurance of marriage and on his advice, she kept mum to this and went back to her home. He would visit her parental home and would make physical relations with her surreptitiously. She became pregnant two years before and he gave her some medicine, which resulted in miscarriage. When her mother caught both of them, he stated to marry her but when he got job, he refused to marry her. He also expressed his refusal before Panchayat and subsequently he began to demand Rs.5 lacs as dowry for marriage. Police submitted the charge-sheet against appellant after completing the investigation, with prayer to prosecute him for charge under Section 376-A IPC and Section 3/5 of POCSO Act. The accused was enlarged on bail by orders of this Court during trial. After filing of charge-sheet, the case was committed to court of Sessions, Ghazipur. The charge-sheet was filed in the court of Special Judge, POCSO Act. At the stage of prosecution evidence, PW-1 Smt. Jagrani Devi, the mother of the prosecutrix, PW-2 prosecutrix, PW-3 Praveen Kumar, PW-4 Constable Muharrir Rajkumar, PW-5 Doctor Chandra Sinha, PW-6 Sri Narayan Pandey- father of the prosecutrix, PW-7 Lallan Singh Yadav, were examined in support of the prosecution case.

4. After conclusion of the prosecution evidence, the statement of accused were recorded under Section 313 Cr.P.C., in which he has not taken any specific defence. His defence is of denial.

5. Learned trial court heard submissions of learned counsel for the accused appellant and learned A.D.C.(Criminal) for the State and after appreciation of evidence on record and considering the submissions of learned counsel for the parties, gave a finding that the accused established physical relations with the prosecutrix on giving her assurance of marriage and her consent for establishing physical relations cannot be deemed as a free consent. The prosecutrix, in her cross-examination on 24.6.2017, deviated from her stand in her examination-in-chief and tried to exculpate the accused and stated that her previous statements before the Court was outcome of pressure but she could not specify the person on whose pressure, she had previously given evidence against the accused. Learned court below also observed that although PW-7, Lallan Singh Yadav, the teacher in Phoolchand Yadav Inter College, Dandapur, Ghazipur had proved the date of birth of prosecutrix in scholar register, recorded as 10.8.1997 but he admitted in cross-examination that he has not brought the scholar register of year 2013, in which admission date of prosecutrix in his school has been recorded. He also admitted that the prosecutrix did not filed the pass certificate of class 8 issued by her previous school and for that reason, her transfer certificate was not issued by his school. No document was filed by the parents of the prosecutrix in confirmation of her date of birth. He came to know that primary education of prosecutrix was carried out in Raiganj School, Second, Ghazipur and in the record of that school, her date of birth is mentioned. He subsequently, came to know that her date of birth in record of her previous school is recorded as 1.7.1993. Learned court below after considering the entire evidence of PW-7 and statement of prosecutrix in her cross-examination that her actual date of birth is 1.7.1993, she was found aged to be exceeding 18 years and the trial court has given categorical finding that the prosecutrix was major at the time of incident and she has stated that her first interaction with accused took place in the year 2012, however, learned court below concluded that on the basis of evidence, it is found that the consent given by the prosecutrix to accused to have physical relations with her was not a free consent and was given on assurance of the accused that he would marry her in course of time, thus learned court below placing reliance on initial statement of prosecutrix, which was consistent with her statement under Section 164 Cr.P.C., found the accused guilty of charge under Section 376-A IPC but acquitted him of the charge under Section 3/5 of POCSO Act.

6. Learned counsel for the appellant submitted that the learned trial court has recorded a verdict of guilt against appellant for charge under Section 376-A IPC, which is against weight of evidence on record. Learned trial court has misappreciated the evidence on record while recording the finding of guilt and sentencing the appellant. He further submitted that from the perusal of allegations made in the FIR itself, it is clear that the same has been lodged after an unexplained delay of six years. Appellant was enlarged on bail during trial as well as by orders of this Court in present criminal appeal vide order dated 16.1.2019 by Co-ordinate Bench of this Court. The allegations against the appellant is that he had established physical relationship with the prosecutrix on false promise of marriage is unfounded. He further submitted that PW-5 Dr. Chandra Sinha, who had carried out medico legal examination of the victim on 21.1.2015 has stated before the Court that on the date of medical examination, the victim had stated that a boy namely Pradeep Kumar, who is her relative, has established physical relationship with her by enticing her. She met him at the place of her maternal uncle. He would make physical relations with her intermittently. However, when he secured a job, he refused to marry her and also refused to be abide by decisions of Panchayat. The Doctor has further stated that no mark of injury was found on the person of victim. According to the X-ray report dated 31.11.2015, epifices of her elbow and writ joints were found to be fused and accordingly, she was found to be exceeding 18 years. In cross-examination, the Doctor has clarified that between the age of 18 to 24 years, the fusion of writ and elbow joints occurs in girls, therefore, her age may be of between 18 to 24 years. The Doctor also clarified that old healed hymen tear, recorded by her, need not be due to sexual assault. The Doctor has also clarified that the old healed hymen torn may be due to sexual intercourse and may not be due to that, no definite opinion can be given in this regard. Learned counsel for the appellant further submitted that in FIR no date or time of occurrence has been mentioned. There is no consistency between statement of first informant and the prosecutrix recorded under Section 161 Cr.P.C. during investigation. The victim stated that the appellant and she had fallen in love and when she caught red handed by her mother, only then the accused stated for marriage. The accused has been falsely implicated in the case. He has committed no offence. He deserves to be acquitted of the charge, for which he has been convicted and sentenced, as above.

7. Learned counsel for the appellant placed reliance on a judgement of Apex Court in the case of Shambhu Kharwar vs. State of Uttar Pradesh & Another, 2022 LawSuit (SC) 973, whereby, vide order dated 5.10.2018, a Single Judge of the High Court of Judicature at Allahabad dismissed an application instituted by the appellant under Section 482 of the Code of Criminal Procedure 1973, for quashing Criminal Case No 785 of 2018 in the Court of the Addl. Chief Judicial Magistrate (First), Ballia arising out of Case Crime No 11 of 2018 registered at Police Signature Not Verified Station Rasra, District Ballia for an offence punishable under Section 376 of the Indian. The appellant had also sought the quashing of a charge-sheet in that case. Hon'be Apex Court observed that the facts of the case, as they stand, which are not in dispute, would indicate that the ingredients of the offence under Section 376 IPC were not established. The High Court has, therefore, proceeded to dismiss the application under Section 482 of CrPC on a completely misconceived basis. Hon'ble Apex Court has placed reliance on the case of Sonu @ Subhash Kumar v. State of Uttar Pradesh, wherein it is observed that :

"12. This Court has repeatedly held that consent with respect to Section 375 of the IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action... [...]

14. [...] Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled... [...]

16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To 7 2019 (9) SCC 608 8 2021 SCC OnLine SC 181 establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act... [...]

18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."

8. Learned AGA has vehemently opposed the submissions made by the learned counsel for the appellant and submitted that there is no error or infirmity in the impugned judgment and order passed by learned trial court and the same is in consonance with law and the evidence adduced during trial, which needs no interference in present criminal appeal.

9. I have gone through the sworn testimony of the witnesses recorded before the trial court and considered the same in the light of other documentary evidence on record. The accused was charged for offence punishable under Section 376-A IPC and section 3/5 of POCSO Act on 22.6.2016.

10. Smt. Jagrani Devi- the mother of the victim and informant of the case, as PW-1 has has supported the FIR version and proved her written report as Ex.Ka-1. She has stated that the accused Pradeep Kumar Bind has established physical relations with her minor daughter on assurance of marriage and he used to say that he would love her. She got written report scribed by a person sitting outside the police station and affixed her thumb impression thereon, before producing the same for lodging of FIR. She got custody of her daughter by orders of Court in presence of her husband. Her marriage took place in childhood and she has been blessed with six children. The victim is her fourth issue. Her brother Jairam started the business of sale of toddy. She is not aware whether he has obtained any license for that. He used to visit her parental home. Her brother used to call her daughter (victim) in harvesting season. Whenever, she visit the place of Jairam, some family member would also accompany her. Her daughter used to go there once in a year.

11. PW-2, the victim admitted her statement under Section 164 Cr.P.C. recorded by the Magistrate during her evidence before court as PW-2. She stated that accused is brother-in-law of her maternal uncle Jairam Bind and she got acquainted with him at the place of her maternal uncle. 5 to 6 years before, once he established physical relations with her finding her alone, forcefully and thereafter he told her that he would love her and on assurance of marriage, he had made physical relations with her subsequently also. She was in telephonic contact with the accused also, when she returned to her parental place. He would also visit her parental place and continued making physical relations with her on assurance of marriage. However, when he got a job in CISF, he refused to marry her in September, 2015 and also demanded Rs.5 lacs before Panchayat. In cross-examination, she stated that she received education from class Ist to VIth at Raiganj Second, Ghazipur. She is not passed out of Class VII. She stated that her medico legal examination was conducted at District Hospital, Ghazipur. She stated that in primary school record, her date of birth is recorded as 1.7.1993. She met accused Pradeep Bind in the year 2012 for the first time and they became friends. He is related to her. Her parents had spoken to his parents in connection with their marriage but the parents of Pradeep Bind refused their proposal. He is posted in CISF since year 2012. In cross-examination dated 24.6.2017, she stated that accused had never cheated her and he did not commit rape on her. The statements she has given prior too, were result of some pressure. After this statement, she was permitted to be cross-examined by learned ADC (Criminal), in which she has stated that she had given her previous statement in the court under pressure, however, she declined the suggestion that her subsequent statement was result of some sort of settlement with accused.

12. PW-3 Constable Praveen Kumar, proved chik FIR as Ex.Ka-4 and extract of G.D. of registration of case dated 20.11.2015 as Ex.Ka-5 and stated that these papers are in his writing and signature. PW-4 Moharrir Raj Kumar also proved these papers in his statements.

13. PW-5 Doctor Chandra Sinha, who conducted medico legal examination of the victim on 21.11.2015, stated that the victim told her that her relative Pradeep Bind enticed her and made physical relations with her on the pretext of marriage and subsequently refused to marry her before Panchayat. She stated that in internal examination of the victim, her hymen was found in 6 O'clock position, bearing old mark of injury and on the basis of her X-ray report, her radiological age was found exceeding 18 years. Her age was determined on the basis of fusion of her elbow and writ joints and due to the fact that epyfices of these bones had fused. She might have been aged between 18 to 24 years.

14. PW-6 Ram Narayan Bind, father of the victim, stated that accused was close to his daughter and his entire family. Negotiations about their marriage were under way and even the time of their marriage were fixed but 6 to 7 months before, the accused got job in CISF and refused to marry her. He established physical relationship with his daughter. In the meanwhile, a Panchayat was also called in the matter. His daughter was aged around 17 years at the time of incident. However, in cross-examination, the witness stated that the Investigating Officer had never recorded his statement. His family members told her that accused established physical relations with his daughter on the pretext of marriage. The date of birth of his daughter is 1.7.1993 in primary school records. He also stated that when the accused secured a job, his family members refused to marry him with his daughter. He also admitted that as marriage could not be settled, this wrong FIR was lodged in the case, with a view to exert pressure for marriage of accused.

15. PW-7 Lallan Singh Yadav, a teacher of Phoolchand Yadav Inter college, Dandapur, Ghazipur has proved the academic records of the victim, in which her date of birth recorded as 10.3.1997. However, in cross-examination, he has stated that the T.C. of previous school was not filed by the victim in spite of his directions and for that reason, T.C. was not issued to her by his school. Subsequently, he came to know that her actual date of birth is 1.7.1993.

16. In prosecution case based on FIR as well as statement of the informant as well as victim recorded during investigation, this fact emerged that FIR was lodged in the case on 20.11.2015 whereas in FIR, this fact surfaced that accused was having physical relations with the victim six years prior to lodging of the FIR but no prior report or complaint has been made in connection with said charge. The victim has stated in her statement recorded under Section 164 Cr.P.C. as well as in her statement before the court that she continued to have physical relations with accused, even when she came back her home from the place of her maternal uncle. In statement of informant, who is mother of the victim, this fact emerged that the victim used to visit once in a year in harvesting season the place of her maternal uncle and that too she was accompanied by some family member. On the basis of her date of birth recorded in school record of Phoolchand Yadav Inter College, she has attained age of majority 8 months before the lodging of the FIR. In medico legal examination report also, the Doctor has categorically stated that on the basis of X-ray report, her age was more than 18 years. On the basis of radiological examination, it might be with 18 years to 24 years. The victim, in her cross-examination has exculpated the accused for reasons best known to her. The victim has changed her stand from stage to stage. Therefore, it is difficult to place reliance on her version. However, from perusal of evidence on record and version of victim including her statement recorded under Section 164 Cr.P.C., it is discerned that the relations of the victim and accused was consensual and this fact is not proved that the promise of marriage given by the accused to prosecutrix was false from very inception and the false promise borne a direct nexus to the decision of the prosecutrix to engage in sexual act with the accused. No specification of date, time and months of sexual acts is given by the prosecutrix in her various statements recorded under Section 164 Cr.P.C. as well as during trial. The father of the prosecutrix has stated during his evidence before the court that the FIR was lodged in the case due to the fact that the accused side refused to marry his daughter, after he secured a job. On meticulous examination of evidence on record, it is not proved beyond reasonable doubt that the accused appellant had given a promise to the prosecutrix to marry with him, which at the inception was false and on the basis of this, she was induced into a sexual relationship. Therefore, it can be held that the relationship between the parties were purely consensual in nature. This finding emerged after taking into consideration the testimony of prosecutrix as well as her parents recorded before the court in the light of facts and circumstances of the case. Taking into consideration, the evidence regarding age of prosecutrix as recorded in school records, the evidence of Head Master as well as her radiological age determined by the medical experts and evidence of the Doctor who conducted medico legal examination of the victim, it would be held definitely that at the time of alleged sexual interaction with the accused, she was not minor. Learned court below has lost sight of these facts while recording the verdict of guilt against the accused appellant and sentencing him. In my considered opinion, the prosecution has failed to prove its case against accused appellant beyond reasonable doubt. Therefore, the judgement and order passed by learned court below is not sustainable and liable to be set aside.

17. Accordingly, this appeal succeeds and is allowed. Impugned judgment and order of conviction dated on 4.6.2018, passed by learned Additional Sessions Judge, Court No.1, Ghazipur, in Sessions Trial No. 31 of 2016, State Vs. Pradeep Bind, arising out of Case Crime No. 2058 of 2015, under Section 376-A IPC & Section 3/5 of POCSO Act, Police Station Kotwali, District Ghazipur is hereby, set aside and accused appellant Pradeep Bind is acquitted from charge under Section 376-A IPC.

18. It is directed that the accused appellant shall furnish a personal bond to the satisfaction of court concerned and two reliable sureties each in the like amount before the trial court, which shall be effective for a period of six months, along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellants on receipt of notice thereof shall appear before the Hon'ble Supreme Court.

19. 22. Let a copy of this judgment along with lower court's record be sent back to the court concerned for immediate compliance and necessary action.

Order Date :- 21.4.2023

Kamarjahan