Sandeep Sharma vs The State Of U.P
2023 Latest Caselaw 25297 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:60078
 
Court No. - 13
 

 
Case :- CRIMINAL APPEAL No. - 355 of 2015
 

 
Appellant :- Sandeep Sharma
 
Respondent :- The State Of U.P
 
Counsel for Appellant :- Atul Verma
 
Counsel for Respondent :- Govt. Advocate
 

 
Hon'ble Karunesh Singh Pawar,J.

1. This criminal appeal has been preferred against the judgment and order dated 9.3.2015 passed by Special Judge, POCSO Act/Addl. Sessions Judge, Room No.10, Lucknow in Sessions Trial No.260 of 2014 State of UP. versus Sandeep Sharma whereby the appellant has been convicted and sentenced to five years imprisonment and a fine of Rs.5000/- under section 363 I.P.C., seven years imprisonment and a fine of Rs.7000/- for the offence under section 366 I.P.C., ten years imprisonment and a fine of Rs.10,000/- for the offence under section 376 I.P.C. and ten years imprisonment along with a fine of Rs.10,000/- for the offence under section 4 of Protection of Children from Sexual Offences Act, with default provision in each of the offences. All the sentences were directed to run concurrently.

2. The prosecution case as per written report is that on 11.1.2014 at about 6.00p.m., the daughter of the complainant Aradhana Gupta (Mona), all of a sudden went away from home with one pair of clothes, mark sheet and cash of Rs.1 lac, with one Mukesh Savita along with his cousin Sandeep Savita in a black car. On being enquired, their family members did not tell anything; rather got ready to fight. On the basis of written report, Ext. Ka-1, first information report was registered. The investigation was handedover to S.I. Rajesh Singh who conducted site inspection, recorded the statement of prosecution witnesses, completed necessary formalities and filed charge sheet against the accused appellant under sections 363, 366, 376 I.P.C. and sections 3/4 Protection of Children from Sexual Offences Act. Charges against the appellant were framed for the above referred offences.

3. In support of its case, the prosecution has examined P.W.1 complainant Saroj Gupta, P.W.2 Aradhana Gupta, victim and P.W.3 Dr. Anjana Sahu. Statement of the accused under section 313 CrPC was recorded, in which his case was of denial. He has stated that the statement under section 164 CrPC was given by the prosecutrix under pressure of the parents. He has further stated that he is innocent and has been falsely implicated due to enmity.

4. P.W.1 in her statement before the court has stated that her daughter aged about 16 years was abducted by the accused persons by a 4-wheeler, including the accused Sandeep who came on the car. She went to the house of Sandeep and complained with his mother. Thereafter, she went to the police station and gave tahrir. She further stated that her daughter while going away has taken Rs.1 lac cash, two golden rings, a golden chain and other ornaments along with mark sheet. She was recovered on 17.1.2014. She has proved the recovery memo. She further stated that her daughter was medically examined in Rani Laxmi Bai Hospital, Rajajipuram. Thereafter, she was handed over to her. She confirmed her statement given to the investigating officer.

P.W.2 Aradhana Gupta while giving statement before the court has stated that on 11.1.2014 at about 6.00p.m., she went away from home to the hotel along with the accused. They took room in hotel and she stayed there for six days. She used to go outside for walking during day time and in the night, they stayed in the hotel. The accused Sandeep has not committed any wrong with her while in the hotel. Sandeep did not sleep with her at night. Both wanted to marry each other. She loved Sandeep and so does the latter. They went to the railway station where they were caught by police. She confirmed her statement under section 164 CrPC.

P.W.3 Dr. Anjana Sahu who conducted medical examination of the victim has not found any external injury on the person of the prosecutrix, nor any internal injury was found. Hymen was old torn. She prepared supplementary report also, in which no spermatozoa was found. According to the radio-logical report, prepared by the doctor M.K. Yadav, the prosecutrix was found to be 16 years old.

5. I have heard Mr. Atul Verma, learned counsel for the appellant and Ms. Mamta Pandey, learned Additional Government Advocate.

6.Learned counsel for the appellant submits that the victim went away with the appellant on her own accord and free will along with cash, jewellery and mark sheet which shows that she was not enticed away and no offence under sections 363, 366 and 376 I.P.C. is made out. He further submits that there is no corroborative evidence in the medical examination report as well as the statement of P.W.3. High School certificate has not been exhibited by the prosecution. It has not been accepted and hence could not have been relied by the trial court.

7.Learned A.G.A. has opposed the appeal and submitted that the victim was sixteen years old. The victim was minor. She may have gone as per her own consent but as per definition of section 363 I.P.C. given in section 361 I.P.C., offence under sections 363, 366 and 376 I.P.C. shall be deemed to have been committed by the accused.

8.On due consideration to the argument advanced, perusal of the record as also the finding given by the trial court in paras 19 and 20 of the judgment, it is evident that the judgment of the trial court and the finding given by it suffers from grave error. The finding has been recorded on the basis of surmises and conjectures. Once the victim has outrightly denied before the trial court that she was not subjected to any sexual intercourse by the accused, it was not open for the trial court to have presumed that only because the victim resided with the appellant in a hotel for a period of six days shall itself constitute that the victim was subjected to sexual intercourse.

As per admitted case of the prosecution, the victim has herself stated that she on her own accord and free will went with the accused. There is no element of inducement in it. The Supreme Court in S. Varadarajan versus State of Madras AIR 1965 SC 942 (relevant paras 9 and 10) has held that once the victim has gone out of her own accord and free will, it will not constitute an inducement, hence no offence under section 363 I.P.C. shall be made out. Relevant paras 9 and 10 are extracted below :

"9.It must, however, be borne in mind that there is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though we would like to guard ourselves from laying down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purposes of s. 361 of the Indian Penal Code. We would limit ourselves to a case like the present where the minor alleged to have been taken by the accused person left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joins the accused person. In such a case we do not think that the accused can be said to have taken her away from the keeping of her lawful guardian. Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.

10.It would, however, be sufficient if the prosecution establishes that though immediately prior to the minor leaving the father's protection no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so. In our, opinion if evidence to establish one of those things is lacking it would not be legitimate to infer that the accused is guilty of taking the minor out of the keeping of the lawful guardian merely because after she has actually left her guardian's house or a house where her guardian had kept her, joined the accused and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place. No doubt, the part played by the accused could be regarded as facilitating the fulfillment of the intention of the girl. That part, in our opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is, therefore, not tantamount to "taking".

Since the victim as per her own statement has gone with her own volition and free will along her belongings such as ornaments and High School mark sheet, therefore, in view of the law laid down by the Supreme Court in the case of S. Varadarajan (supra), it cannot be said that any offence under section 363 or section 366 I.P.C. has been committed by the accused.

As regards offence under section 376 I.P.C., the victim before the court has outrightly denied that the accused committed rape upon her. She further denied that any wrong was committed upon her by the accused appellant. She and the accused appellant wanted to marry each other. There is no other corroborative evidence such as medical etc which may support the prosecution case.

The trial court while giving finding in para 19 of the judgment has, sans any application of judicious mind, went on to presume that she was subjected to rape in spite of the statement of the victim before the court that no physical relationship was made by the accused with the prosecutrix.

Besides, the statement of the victim under section 164 CrPC and before the court are not the same. Improvement has been made by the prosecutrix while giving statement before the court. On one hand, she in her statement under section 164 CrPC states that the accused appellant had made physical relationship with the prosecutrix with her consent and she did not carry along with her the ornaments and money, however, she has stated before the trial court that Sandeep did not sleep with her and no wrong was committed by him. There is no other corroborative material nor anything sort of corroboration.

9.As regards offence under POCSO Act, the testimony of the prosecutrix where she has clearly denied rape upon her by the accused under any circumstance cannot be inferred that even if she is minor being 16 years of age, although she herself stated in her statement under section 164 CrPC that she is nineteen years of age and she has also stated before the trial court that she is a student of B.A. First Year which in itself shows that she was mature enough to understand her interest, and has resided with the accused for a period of six days cannot, in any circumstance, infer to arrive at a conclusion that she was subjected to rape. Therefore, the finding recorded by the trial court in para 19 of the judgment is perverse and is nothing but has been given on the basis of surmises and conjectures, without there being any material on record to support such a finding.

13. In view of what has been stated hereinabove, the criminal appeal is allowed and the judgment and order dated 9.3.2015 passed by Special Judge, POCSO Act/Addl. Sessions Judge, Room No.10, Lucknow in Sessions Trial No.260 of 2014 State of UP. versus Sandeep Sharma is set aside. The appellant is acquitted of the charges levelled against him. The appellant is on bail. The bail bonds are discharged.

14. Let a copy of this judgment be transmitted to the learned trial Court as well as Superintendent, Jail concerned, for compliance. The lower court records be also sent back to the lower court.

Order Date :- 19.9.2023

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