Buddhu Raidas vs State Of U.P.
2023 Latest Caselaw 8696 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Reserved on :-    30.01.2023
 
		                         Delivered on :-    24.03.2023
 
Court No. - 29
 

 
Case :- CRIMINAL APPEAL No. - 84 of 2002
 

 
Appellant :- Buddhu Raidas
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Anil Kumar Pal,M.V.S. Chauhan,Satyendra Kumar Tiwari
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Mrs. Renu Agarwal,J.

1. The instant criminal appeal under Section 374 Cr.P.C. is preferred against the judgment and order dated 11.01.2002 passed by learned Additional Sessions Judge, Fast Track Court-V, Lucknow in Sessions Trial No. 913 of 2001, Crime No. 62 of 2000 under Section 363, 366, 376 I.P.C., Police Station Gosaiganj, Lucknow whereby the accused appellant Buddhu Raidas has been convicted and sentenced under Section 363 I.P.C. with rigorous imprisonment for a period of four years along with fine of Rs. 2,000/- and in default of fine, additional six months imprisonment, under Section 366 I.P.C. with rigorous imprisonment for a period of four years along with fine of Rs. 2,000/- and in default of fine, additional imprisonment for six months and under Section 376 I.P.C. with rigorous imprisonment for a period of seven years along with fine of Rs. 2,000/- and in default of fine, additional six months rigorous imprisonment.

All the sentences were instructed to run concurrently.

2. In the guidelines of the Hon'ble the Supreme Court, the name of the victim is not disclosed in the present judgment and is being referred to as letter ''X'.

3. Prosecution story in nut-shell is that the daughter of the complainant, aged about 13 years, had gone to fetch water from well on 29.03.2000 at about 10:00 PM and when she did not return in late night, the complainant-Ram Asrey started search of his daughter. The complainant came to know through Shri Ram Kori, son of Ram Autar and Sia Ram son of Ram Prasad that they have seen his daughter with Buddhu Raidas, Sunil and Nand Kishore going towards the road. The complainant believed that his daughter got enticed away by accused with the help of Ishwari, his wife and daughter. The prosecutrix is alleged to have took away two pairs of Payal, three golden nose pins, four silver Bichhias, one jug, one Thali, Kambal, Chaddar and Rs. 15,000/- cash with her. Having believed that Ishwari and his brother-in-law and Kishan had full knowledge of the whereabouts of his daughter, complainant-Ram Asrey made a written report on 02.04.2000 to S.O. Gosaiganj, Lucknow, on the basis of which a case was registered.

4. The investigation was conducted by the P.W.5-Uma Nath Tewari, Investigating Officer, who recorded the statement of witnesses, inspected the site of the incident and prepared the site plan. Prosecutrix was medically examined by P.W.3-Dr. Sikha Srivastava who prepared medical report. Thereafter, the statements of prosecutrix under Section 164 Cr.P.C. were recorded on 04.05.2000 and after completion of investigation, charge-sheet was submitted against Buddhu Raidas, Sunil and Nand Kishore.

5. Learned Sessions Court framed the charges against the accused Buddhu Raidas, Sunil Kumar and Nand Kishore who abjured from the charges and claimed to be tried.

6. Prosecution adduced P.W. 1-Ram Asrey (complainant), P.W. 2-Victim (X), P.W. 3-Dr. Sikha Srivastava, P.W. 4-Dr. Ratna Pandey and P.W. 5-S.I. Uma Nath Tewari (Investigating Officer).

7. After recording of evidence, statements of accused under Section 313 Cr.P.C. were recorded on 10.12.2001. Accused denied all the allegation and evidence produced against them and stated that they are innocent and are falsely implicated due to previous enmity.

8. After hearing both the parties and perusal of record, learned Trial Court held the accused Buddhu Raidas guilty of offence punishable under Section 363, 366 and 376 IPC and acquitted accused Sunil Kumar and Nand Kishore of the allegation made against them.

9. Heard Shri Anil Kumar Pal, M.V.S. Chauhan and Satyendra Kumar Tiwari, learned counsel for the appellant and learned AGA for the State.

10. Learned counsel for the appellant submitted that besides the victim (X), only one witness of fact i.e. P.W.-1 is produced in the Court to prove the prosecution's version. P.W. 1-Ram Asrey (the complainant and father of the victim) who clearly asserted that his first marriage was solemnized when he was 14 years old and after 9 years, first issue was born from his first wife. When the fist issue was 11 months old, he got married again. P.W. 1 had four issues from his second wife and victim is second issue from second wife. The first issue from second wife was born after three years of marriage and when first child of second wife was 3 years old then the victim "X" was born.

11. It is also submitted that the age of the victim, as per the statement of complainant recorded on 12.11.2001, was 20 years and 6 months at the time of incident. It is further argued that the learned Trial Court misread the evidence on record that there were four issues from first wife as well as four issues from second wife and as such court determined the age of victim "X" as 19 years which is wrong. It is also submitted that the photocopy of school leaving certificate is collected by P.W. 5- S.I. Uma Nath Tewari Investigating Officer but the certificate was never verified by the Investigating Officer during investigation from original record of school. It is also stated that when I.O. contacted the Principal of the School regarding verification, the Principal said tht name of "X" was struck of from School. Original record of school leaving certificate, as such, is not annexed with the file, therefore, photocopy is not admissible in the evidence and finding of the learned Trial Court on the basis of this document is perverse. The victim herself stated that she was not happy as her father who settled her marriage with some other person, therefore, she left her house with appellant-Buddhu Raidas on 23.04.2000 and she made up her mind to marry with accused-appellant. In her cross-examination, she deposed that after her elopement with the appellant-Buddhu Raidas, she married with him in Court as well as in temple and since then they are living as husband and wife after the incident. She expressed her willingness to live with appellant and as such she is still living with the accused.

12. It is also stated that the parents of the victim never tried to get the custody of their daughter. Appellant has moved application in the Court for custody of victim which was strongly opposed by the father of the victim Ram Asrey who was against the marriage of victim with the present appellant. It is also argued on behalf of the appellant that P.W. 3-Dr. Shikha Srivastava examined the Victim "X" and no apparent injury was found on her body and Doctor opined that age of victim was about 16 to 17 years and she was used to sexual intercourse. It is also submitted by learned counsel that from the wedlock of appellant and victim, four children are born and all are pursuing their studies and at this time no purpose shall be served if he is sent to jail as the accused and victim are still living as husband and wife with their four children. The sentence passed by learned Trial Court is too severe and appellant is innocent and still shows willingness to live with victim as husband, therefore, it is prayed to set-aside the judgment passed by learned Trial Court and acquit the appellant.

13. Per contra, learned AGA stated that judgment and order passed by the learned Trial Court is in consonance with the fact and merit of the case and does not require or warrant any interference by the appellate court.

14. Before analyzing the facts, it is considered apt to recapitulate the statement of witnesses.

15. P.W. 1-Ram Asrey stated that his daughter was 13 years old at the time of incident when she eloped with accused at about 10:00 PM taking away Bichia, Payal, Golden Nose Pins, Kambal, Chadar, Thali, one jug and Rs. 15,000/- cash. The witnesses Sia Ram and Shri Ram Kori had seen the victim going with accused towards the road. This witness proved F.I.R. as exhibit Ka-1.

16. P.W. 2-X deposed in Court that at the time of incident, she was student of Class-VIII in Junior High School, Shivlar. She also deposed that Buddhu Raidas used to sit on the shop of Ibrahim situated in front of her house. Buddhu Raidas never enticed her away and never offered her to elope with him. This witness was declared hostile by the AGDC in Trial Court and during her cross-examination she admitted that in her statement under Section 164 Cr.P.C., she never stated that accused offered her to elope with him and she denied from taking away any article or belonging with her. She admitted her Court marriage and the marriage performed in temple. She also deposed that before eloping with appellant, she had made her mind to marry appellant Buddhu Raidas. She also admitted that she has performed marriage with appellant Buddhu Raidas and denied the presence of Sunil and Nand Kishore with appellant. In short, the victim did not support the prosecution version and she was declared hostile as such.

17. P.W. 3-Dr. Shikha Srivastava examined the victim on 30.04.2000 and deposed that at the time of medical examination, there was no mark of injury on the body of the victim. No sign of mark of injury was found on her private parts. Vaginal smear was taken and sent to pathological test and she was advised for ossification test in order to determine the age of victim. According to X-ray report epiphyseal line of elbow was found fused. Wrist joint were not found fused and on the basis of X-ray report the age of the victim was determined between 16 to 17 years.

18. P.W. 4-Dr. Ratna Pandey has deposed that she examined vaginal smear of the victim and found no spermatozoa.

19. P.W. 4-S.I. Uma Nath Tewari investigated the case and recorded the statement of witnesses, inspected the site of occurrence, verified the date of birth of the victim from the school certificate and recovered the victim on 30.04.2000 from the possession of the accused Buddhu Raidas.

20. Learned counsel for the appellant stated that victim was studying in Class -VIII at the time of incident. P.W. 1-Ram Asrey state that his daughter was studying in Class-VIII and P.W. 2-X corroborated this fact. In School Leaving Certificate, the date of birth is mentioned as 01.04.1986 and occurrence took place on 29.03.2000 and, as such, the age of victim was found 13 years, 11 months and 28 days at the time of occurrence. Learned AGA argued that the date mentioned in the School Leaving Certificate is accurate and is corroborated by medical evidence and she was minor at the time of incident. However, it is worth mentioning here that the age of victim, as per the medical report, was found 16 to 17 years. As per medical jurisprudence, there can be a margin of two years from both sides.

21. Learned Trial Court arrived to the conclusion that epiphyseal line was not fused around knee and wrist, therefore, she was below 16 years. It was unwarranted for the learned Trial Court to determine the age of the victim against the age determined by the medical report disclosed by the Doctor. It is well established law that where two opinions can be formed, then the opinion in favour of the accused should be considered. Learned Trial Court determined the age of X to be 14 years against the interest of accused-appellant which was unwarranted and against the established principle of law.

22. Hon'ble Apex Court in the case of Achhar Singh Vs. State of Himachal Pradesh reported in 2021 SCC Online HP 870 in this regard has laid down as under:- 

"It is thus a well crystalized principle that if two views are possible, the High Court ought not to interfere with the trial Court's judgment. However, such a precautionary principle cannot be overstretched to portray that the "contours of appeal" against acquittal under Section 378 CrPC are limited to seeing whether or not the trial Court's view was impossible. It is equally well settled that there is no bar on the High Court's power to re-appreciate evidence in an appeal against acquittal11. This Court has held in a catena of decisions (including Chandrappa v. State of Karnataka, (2007) 4 SCC 415, 42. State of Andhra Pradesh v. M. Madhusudhan Rao, (2008) 15 SCC 582 20-21 and Raveen Kumar v. State of Himachal Pradesh, 2020 SCC Online SC 869, 11.) that the Cr.P.C does not differentiate in the power, scope, jurisdiction or limitation between appeals against judgments of conviction or acquittal and that the appellate Court is free to consider on both fact and law, despite the self-restraint that has been ingrained into practice while dealing with orders of acquittal where there is a double presumption of innocence of the accused".

23. Learned Trial Court analysed the remaining evidence of the prosecution in the light of the fact that victim was 14 years old at the time of incident. On the contrary, learned counsel for the appellant submitted that the victim was not minor on the date of occurrence because complainant himself was 14 years old when he got married and after 9 years of marriage his first issue was born i.e. at age of 23 years. He had four issues from the wedlock of second wife thus the victim born to him when he was 27 years of age. The first issue was born after 3 years of marriage, it means the first issue from second wife was born in the age of 30 years and after 3 years, this issue Victim "X" was born. From this calculation, it appears that the Victim was 19 years of age at the time of incident.

24. Learned Trial Court believed the School leaving certificate, in which the date of birth is mentioned as 01.04.1986. It is emphasized by learned counsel for the appellant that school leaving certificate is photocopy and that cannot be relied upon in evidence. From the perusal of record, it appears that the photocopy of school leaving certificate was produced and none appeared in Court to prove this document, therefore, learned Trial Court committed error relying upon this document which is not proved in the Court.

25. P.W. 2-X did not support the prosecution version and she was declared hotile in Court. In the cross-examination, she deposed that Buddhu Raidas did not offer any elopement with him rather X and Buddhu Raidas had relations for one year before date of occurrence and when the father of victim fixed her marriage with some other person on 23.04.2000, then she had no option but to leave her house along with the appellant, therefore, she went away with the accused by her own consent.

26. Learned Trial Court did not consider the fact that the victim eloped with Buddhu Raidas at 10:00 PM along with household goods. If she was enticed away with accused, there could be no possibility of leaving her house in the mid-night with the household goods. Learned Trial Court has held that "where a girl under the age of 18 years is kidnapped, it is no defence that accused did not know the girl to be under that age or that from her appearance he might have thought that she was of greater age. Any person dealing with such a girl does rot at his peril, and if she turns out to be under eighteen he must take the consequences."

27. At the cost of reiteration, learned Trial Court relied upon the document which a photocopy and which is not proved in Court. Therefore, it is not admissible in evidence and it is unsafe to rely upon such type of wastepaper. It is noted that victim herself left the house without raising any alarm without intimating his father and it is not the case of the prosecution that accused took her forcefully with him.

28. It may be recalled that 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 of prove the guilt of the accused beyond all doubt rests on the prosecution and it never shifts. The basic idea behind these golden principles is that the liberty of an individual is most valuable and fundamental right guarded by Indian Constitution and it should not be jeopardised unless the court, after bringing its judicial 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.

29. As it has been ascertained that the medical age of victim is about 16 to 17 years, Court cannot go beyond the medical opinion unless there is educational certificate or school leaving certificate before Court. School leaving certificate which is filed in the form of photocopy and is not proved as per Indian Evidence Act and is not a reliable document and is a wastepaper.

30. On the basis of material produced before Court, the age of victim is found to the 16 to 17 years and with the margin of two years on higher side she would be 18 to 19 years of age, thereby, prosecutrix was major at the time of incident. Now, looking to the facts of the case at hand, Court feels that conviction of accused is not sustainable as prosecutrix did not support the version of prosecution and she asserted that she was in relation with appellant from one year from the date of incident. Accused appellant had already married with victim and the accused has not committed rape with her within the definition of 375 IPC. Thus, it cannot be said that accused appellant has abducted the prosecutrix, as prosecutrix being major at the time of incident voluntarily accompanied the accused.

31. Therefore, in the light of above discussion, the appeal is liable to be allowed and judgment and order passed by the learned Trial Court convicting and sentencing the accused Buddhu Raidas of the offence punishable under Sections 363, 366, 376 I.P.C. is liable to be setaside.

32. The appeal is allowed and the appellant is acquitted of the allegations made against him. Fine, if realized be refunded to him forthwith. The appellant is in jail since 20.11.2022. Let the appellant be released from jail forthwith, if not required in any other case.

33. Having been acquitted by the trial court and confirmed by this Court in the above noted case the accused shall furnish bail bonds with sureties to the satisfaction of the court concerned in terms of the provision of Section 437-A Cr.P.C.

34. Let a copy of judgment along with lower court record be sent to the Chief Judicial Magistrate concerned for compliance.

(Renu Agarwal, J)

Order Date :- 24.03.2023

Karan