Sunil Kumar @ Susheel vs State Of U.P.
2023 Latest Caselaw 23987 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


Neutral Citation No. - 2023:AHC-LKO:58263
 
Reserved on 09.08.2023                                                                                                   Delivered on 30.08.2023
 
Court No. - 29
 
Case :- CRIMINAL APPEAL No. - 322 of 2001
 

 
Appellant :- Sunil Kumar @ Susheel
 
Respondent :- State of U.P.
 
Counsel for Appellant :- K.B.Tripathi,Aditya Vikram Singh,Arun Sinha,Kamlesh Singh,Ms. Archana Singh,Nadeem Murtaza,Rohit Kant,Sri Neetesh Kumar
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Mrs. Jyotsna Sharma,J.

01. Heard Sri Nadeem Murtaza, learned counsel for the appellant and learned A.G.A. for the State and perused the record.

02. By means of this criminal appeal, the appellant-accused Sunil Kumar @ Susheel has challenged a judgment and order of conviction and sentence passed by 4th Additional District & Sessions Judge, Lucknow in S.T. No.361 of 1998, under Section 363, 366 and 376 I.P.C. dated 24.03.2001, whereby accused-appellant was convicted under Section 363 and sentenced to undergo five years rigorous imprisonment and a fine of Rs.5000/-; convicted under Section 366 and sentenced to undergo seven years rigorous imprisonment and a fine of Rs.2000/-; convicted under Section 376 I.P.C. and sentenced to undergo 10 years rigorous imprisonment and fine of Rs.5000/- and further six months simple imprisonment in default of fine.

03. As per the prosecution case, the first informant Sukhdev lodged an F.I.R. alleging that at about 9.00 P.M. on 01.01.1998, when his daughter aged 13 years came out of her house to relieve herself, she was kidnapped by Suneel. This incident was witnessed by Pramod and Ramsewak. At that time the first informant and his family members were sleeping inside their house and came to know about the occurrence on next morning only. They searched for her but could not find her and, therefore, lodged the F.I.R.

On the basis of this F.I.R. case crime no.26 of 1998, under Sections 363 and 366 I.P.C. was registered and investigated upon. During the course of investigation, after the F.I.R. was registered on 13.01.1998 at 9.40 A.M., the girl as well as the accused-appellant were apprehended from Alamnagar railway station the same day at 4.30 P.M.; her medical examination was done on 14.01.1998 at 3.00 P.M.; her radiological age was found about 16 years; her's and witnesses' statements were recorded; after completing other formalities charge-sheet under Section 363, 366 and 376 I.P.C. was submitted. The case was committed to sessions court. The accused was put to trial;judgment and order of conviction pronounced. Now he is before this Court in appeal.

04. The prosecution examined the victim as P.W.1, her father ( the first informant) Sukhdev as P.W. 2 and an eye witness Ram Sewak as P.W.3. Besides the aforesaid witnesses of fact Dr. Minakshi Joshi, Head Constable Ram Dayal Varma, I.O. Bateshwar Dayal Arun were examined as P.W.4, P.W. 5 and P.W.6 respectively. The prosecution submitted documentary evidence which shall be referred to wherever required.

05. Before proceeding to evaluate the evidence I find it appropriate to briefly refer to the evidence given by the witnesses.

(i) P.W.1, the victim herself, has supported the story of the F.I.R. She has testified that the accused-appellant told her that she will be given food, clothes and jewelry and took her away; he kept her in a hut for 12 days where he established sexual relations with her; they were caught by the police when they were waiting for a train to Delhi at Alamnagar railway station, Lucknow.

(ii) P.W.2 has deposed that he came to know about Suneel Kumar having enticed his daughter the next day; Ramsewak and Pramod had told him that they saw both of them talking to each other at Devpura culvert; he did not lodge a report as he feared bad name to his family; he kept on searching for her daughter; the police handed over the custody of his daughter on 15.01.1998; at the time of incident his daughter was merely 13 years in age.

(iii) P.W.3 Ram Sewak has given evidence that he had seen the victim and the accused Suneel Kumar talking to each other at Devpura culvert, when he was returning from his duty. He came to know from Sukhdev that Suneel had took away her daughter.

(iv) P.W.4 Dr. Minakshi Joshi, who medically examined the victim, found no mark of injury on her person; secondry sexual characters were well developed; radiological age about 16 years.

(v) P.W.5 is a formal witness and P.W.6 is Investigating Officer.

06. The definition for "kidnapping from lawful guardianship" under Section 361 I.P.C. is as below:-

"361. Kidnapping from lawful guardianship.--Whoever takes or entices any minor under 1[sixteen] years of age if a male, or under 2[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."

The important factor, which has to be considered, in such matters is that when a minor female below 18 years of age is taken out of keeping of lawful guardian, her consent is immaterial and the consent of the guardian assumes importance.

07. Dr. Minakshi Joshi P.W4, who prepared supplementary report on the basis of X-ray, found that epiphyseal process around elbow joint were fused, while around knee joint and wrist joint were not fused, therefore, in her opinion, victim's radiological age was around 16 years. The secondary sexual characters were found to have been well developed.

08. It is forcefully contended on behalf of the defence that the victim girl was above 18 years; she very well knew about her well being and that she, on her own volition, accompanied the accused and that in fact no offence under Sections 363, 366 and 376 I.P.C. is made out against the accused.

09. The defence has crossed examined the victim as well as her father as regard her probable age at the time of incident. Her father in his testimony has told that she was eldest amongst her siblings, who were between 1 to 8 years. On the other hand the victim has said that she is 12 years elder to her youngest sibling. P.W.2 has given evidence that all his children were born with a gap of two to two and half years and when the youngest child born, he was about 44 years.

10. I went through the oral evidence given by the prosecution with regard to her age. My attention has been drawn to certain parts of the oral evidence given on behalf of the prosecution. P.W.1 the victim was examined by the prosecution after lapse of about 11 months from the date of occurrence and at the time of occurrence the prosecuterix was supposedly merely 13 years of age as per prosecution case. She in her statement recorded after a lapse of enough time has, in a parrot like reiteration again mentioned her age as merely 13 years. Further this has come in her evidence that by the time of her examination before the trial court, she had got married. Presumably she was of a marriageable age by then.

11. She has mentioned that she studied in a school till class-5th. It may be noted that the prosecution failed to produce any educational paper to demonstrate that she was minor at the time of occurrence. The prosecution is burdened to produce the best evidence as might have been available to it. Holding of educational papers with regard to her age is a fact which cannot be ignored by the courts.

12. Her father Sukhdev, P.W.2 is best witness to depose about the age of his daughter. He has stated that at the time of his marriage, he was merely 14-15 years old; five children were born to him and there has been a gap of about 2-3 years between his children. He, at page-6 said that his first kid is the victim in the instant case. At least 22 years have gone since his marriage. In his cross examination at page 9 he clearly admits that presently his daughter is major. It may be noted that this witness was cross examined on 11.01.1999 i.e. almost a year after the incident. This admission indicates clearly that by time she had attained the age of majority. Further; her father P.W.2 has in his statement said that at least 28 to 30 years have gone since his marriage.

If this part of prosecution evidence is considered in totality, the age of the victim appears to be much more than the age told by herself or her father. Though radiological age has been assessed at 16 years, however, there are a number of factors which may quicken or delay the process of fusion of epiphysis. Moreover at the most medical evidence has a corroborative value. No doubt, the court may have to, in certain circumstances and where no better evidence is available, depend on radiological age. However, legally speaking even lack of other evidence can not impart conclusiveness to the medical evidence.

In the present case oral evidence is available and the defence has sufficiently cross examined the witnesses. If the oral evidence is reconciled with the medical evidence there appear more than fair chance that she was not less than 18 years at the time of occurrence. This inference finds strength from her own evidence wherein, she said that she is married and that she very well understood her welfare and pros and cons of her actions. Moreover, in my opinion, had she been much younger or say a girl of 13 years only, the prosecution could have proved this fact by producing her educational certificates.

13. The definition of rape under Section 375 I.P.C. before amendment of 2013 read as below-:

"375. Rape-A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

First.-Against her will.

Secondly.-Without her consent.

Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly.-With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.-With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or through administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.- With or without her consent, when she is under sixteen years of age."

This is clear from the definition that any sexual intercourse committed by man with a woman without her consent or against her will constituted an offence of rape. There are a number of facts which give a definite indication that the victim voluntarily accompanied the accused and had sexual relations with him, neither without her consent nor against her will. This has come in evidence that she came out of her house all alone at about 9.00 P.M in the night of 01.01.1998 and accompanied him; she has not said anywhere that any fear or violence was applied when she was being taken; she did not try to wake up any of her family members. She made no sound, showed no resistance. Admittedly, she stayed with him in a hut near IIM Lucknow for 12 days; she was not put to any physical restraint. The hut was open; there was no door to lock it; there was none to keep an eye on her movements from that place; she never raised any alarm to draw attention of any person living in the locality. The place of stay near IIM Lucknow was given to them by an old man living in that locality. He used to visit them; a number of people lived around her place of stay; she and accused were apprehended by the police when both of them were waiting at Alamnagar railway station. She knew the accused since before occurrence as he resided in the same village. Besides her oral evidence, several other facts are also important in this case. The victim left her house at the night of 01.01.1998 but the F.I.R. was lodged 12 days thereafter. There is no plausible explanation given by the first informant regarding delay in filing the F.I.R. It has come in evidence that when she was going with the accused she was spotted by two persons Ramsewak and Pramod next morning. All these facts indicate that probably the first informant was aware of the fact that she had gone with the accused on her own. Therefore, he kept on waiting till she was recovered. Secondly it may again be noted in this case that F.I.R. has been registered the day when she was caught with the accused, not before that. The details of the incident as have been mentioned in the F.I.R. could never have come in the knowledge of the first informant unless he knew the same before she left or unless she herself told him after her recovery. Either of the two situations/propositions make the prosecution case doubtful. The above facts further corroborate the inference drawn by this court that she accompanied the accused on her own; stayed with accused for 12 days and had sexual physical relations with him. There was no lack of consent or willingness in her conduct. The victim is educated; her father has said that she was one of his wisest child and knew pros and cons of her conduct. There appears a fair possibility that her family members or father did not lodge the F.I.R. or missing report because they almost knew that she has eloped.

14. I am of a firm view that to draw a definite inference the prosecution evidence has to be read in totality, rather than in a piecemeal manner. The facts and circumstances of the matter may have more to say than the statements given by the witnesses. In the facts and circumstances of the case, the victim appears to be more than 18 years of age and she accompanied the accused knowing-fully well the consequences of her conduct. She stayed with him for a number of days and established physical relations with him, neither without her consent nor unwillingly.

15. The trial court, in my opinion, while evaluating the evidence has stressed some facts beyond logic and has drawn conclusions by giving them a dash of artificiality. This is not a case where the girl had surrendered to the demands of accused out of fear, terror or under his undue influence etc. I am constrained to observe that judgments of Hon'ble Supreme Court cannot be applied to the facts of the case mechanically. Each of the precedents or the judgments of High Court and Supreme Court is pronounced in peculiar facts and circumstance of a particular case. While applying the precedents or the judgments, the trial court has to keep in mind the broad probabilities of the case in hand.

16. I am of the view, the offences under Section 363, 366 and 376 I.P.C. are not proved beyond reasonable doubt. The judgment given by learned 4th Additional District & Sessions Judge, Lucknow convicting the accused-appellant is not sustainable and the accused-appellant deserves to be acquitted.

17. The impugned judgment and order dated 24.03.2001 passed by learned 4th Additional District & Sessions Judge, Lucknow in S.T. No.361 of 1998 is set aside and the accused is acquitted of charges under Section 363, 366 and 376 I.P.C. He is on bail. Sureties and personal bond are hereby discharged.

18. Accordingly, this criminal appeal is allowed.

19. Let a copy of this order be transmitted to the court concerned for necessary action.

20. Let lower court record be returned to the court concerned immediately.

21. The appellant shall, before the court concerned, within a period of next four weeks, execute bail bonds with two sureties and personal bond of the same amount, to the satisfaction of the court concerned, to ensure his appearance before the higher court as and when such court issues notice in respect of this case. Such bail bonds shall be in force for a period of six months from the date of execution thereof.

Order Date :-30.08.2023

Asha