Akshay Kumar vs State of U.P.

Mohammad Tahir, J.—This criminal appeal has been filed against the judgment and order dated 27.11.2013 passed by Sessions Judge, Sonbhadra in Sessions Trial No. 131 of 2008 (State v. Akshay Kumar and others) under Section 363 , 366 and 376 IPC whereby the accused appellant Akshay Kumar has been convicted and sentenced u/s. 363 IPC to undergo five years rigorous imprisonment and to pay a fine of Rs. 5,000/- with default clause, u/s. 366 IPC to undergo seven years'' rigorous imprisonment and to pay a fine of Rs. 10,000/- with default clause and u/s. 376 IPC to undergo seven years'' rigorous imprisonment and to pay a fine of Rs. 10,000/- with default clause. All the sentences of the accused appellant were directed to run concurrently. The other co-accused Chandrama Ram and Smt. Urmila Devi were acquitted of the charges framed against them under Section 363 and 366 IPC.

The prosecution case, in brief, is that the first informant Shivchan lodged a written report in P.S. Obra, District Sonbhadra on 6.2.2008 at 7.30 p.m. alleging therein that in the night of 5/6.2.2008 at 12.30 a.m. his daughter (hereinafter referred to as the prosecutrix) aged about 15 years was enticed away by accused appellant Akshay Kumar. She was frantically searched out but she was not found.

On the basis of the above written report (Ext. Ka.1) check FIR (Ext. Ka.5) was prepared by H.M. Ram Narain who also made an entry in the G.D. regarding registration of the case, the extract of which is Ext. Ka.6.

The investigation of this case was entrusted to S.I. Sri Sitaram Yadav (PW-5), who inspected the spot and prepared site plan thereof which is Ext. Ka.3. On 2.4.2008 the Investigating Officer arrested the accused Akshay Kumar, Chandrama Ram and Smt. Urmila Devi and recovered the prosecutrix from their company. The prosecutrix was handed over to her parents and the accused persons were taken to police station. On 3.4.2008 the statement of the prosecutrix under Section 164 Cr.P.c. was got recorded before the Judicial Magistrate. That statement is Ext. Ka.2.

On 3.4.2008 at 1.10 p.m. the prosecutrix was medically examined by Dr. Smt. Ramshree Gupta (PW-7). The medico-legal examination report is Ext. Ka.8, according to which following injuries were found:--

"General Examination

The prosecutrix had average built body. Her breast was developed. Her teeth were 7+7/7+7. Axillary and pubic hair were present.

External Examination

No external injury was found on the person of the prosecutrix.

Internal Examination

No injury was found on her private part. Old healed hymen tags were present. Vagina admitted one finger easily and two fingers tightly. LMP about to come. The doctor prepared the slide from the vaginal smear of the prosecutrix for determination of the presence of spermatozoa.

The prosecutrix was referred to Radiologist for x-ray of (1) wrist joint (2) elbow joint and (3) shoulder joint for determination of her age."

After the receipt of the Pathological report and Radiologist report, Dr. Smt. Ramshree Gupta prepared supplementary medical report in this regard which is Ext. Ka.9. According to this report, the age of the prosecutrix was found 15-16 years. No spermatozoa was seen in her vaginal smear. No definite opinion could be given about rape. Evidence of sexual penetration was found present.

The Investigating Officer (PW-5) after collecting the medical reports; recording the statement of the witnesses and completing all other formalities submitted charge sheet u/s. 363 , 366 , 376 IPC against accused Akshay Kumar and u/s. 363 , 366 IPC against accused Chandrama Ram and Smt. Urmila Devi in the court of Magistrate concerned wherefrom this case was committed to the court of Sessions for trial.

The trial court framed charges u/s. 363 , 366 , 376 IPC against accused Akshay Kumar and charges u/s. 363 , 366 IPC were framed against accused Chandrama Ram and Smt. Urmila Devi. All the accused pleaded not guilty to the charges and claimed to be tried.

The prosecution in order to prove its case against the accused persons examined eight witnesses in all in the trial court. Out of those witnesses PW-1 Shivchan is the first informant of this case. He is the father of the prosecutrix. PW-2 is the prosecutrix. PW-3 Hari Prasad is the uncle of the prosecutrix. PW-4 is Sandeep Kumar. PW-5 is S.I. Sitaram Yadav who is the Investigating Officer of this case. PW-6 Dr. Abhay Banerjee is the Radiologist. PW-7 Dr. Ramshree Gupta is the doctor who conducted the medico-legal examination of the prosecutrix. PW-8 Dr. Sureshh Kumar Misra is the Lecturer of Obra Inter College, Obra, who proved the date of birth of the prosecutrix as recorded in the scholar register of that College.

The summary of the statement of the witnesses of fact that they have given in their examination-in-chief is as follows:--

"(i) PW-1 Shivchan has stated that in the intervening night of 5/6.2.2008 at about 12.30 a.m. his daughter (prosecutrix) aged about 14-15 years had been enticed away by accused Akshay Kumar and he made search of his daughter in the night itself and also on the next date in the morning. Then it came to his knowledge that accused Akshay Kumar was also not present in his house. One Sandeep Kumar (PW-4) who is the friend of Akshay Kumar told him that his daughter and Akshay Kumar were seen by him at Bus Stand Obra in the night. All the possible places were searched by him but to no avail. He has further stated that on 2.4.2008 the police arrested Akshay Kumar, his father and mother along with the prosecutrix. He got the First Information Report scribed by his friend Sanjay Yadav which is Ext. Ka.1. He made it over in the P.S. Obra where the case was registered.

(ii) PW-2 is the prosecutrix. She in her examination-in-chief has stated that the said occurrence took place on 5.2.2008 at 12 o''clock in the night. When she was going to sleep after study, she went out of her house for the purpose of urinating. Akshay Kumar caught her hand from behind, gagged her mouth and dragged her to some distance and thereafter got her seated on his scooter on the point of knife. She was threatened by Akshay Kumar that if she cried, she will be killed. Due to fear she could not raise alarm. Akshay Kumar took her to Chopan on the scooter. He parked his scooter at some shop and took the prosecutrix to his village Manikpur Chandauli by bus. When Akshay Kumar was boarding her in the bus, one Sandeep Kumar met them on Chopan Bus Stand. Sandeep is a hawker of newspapers in Obra who used to distribute newspapers in Obra. She wanted to say something to him but Akshay Kumar had threatened her that if she spoke something to him, she would be thrown after having been killed. Akshay Kumar took her to his hosue at Chandauli. His father Chandrama Rama and mother Smt. Urmila Devi were there in their house. She started weeping and asked them to send her to her Mummy-Papa whereupon they asked her to follow their command. Thereafter they took her to Mandir where they got her married forcibly with the accused appellant Akshay Kumar. During the period the accused persons had kept her in their house. Akshay Kumar had forcibly committed wrong act (rape) with her. The accused persons used to keep her confined in a room in their house. They opened the door in the night. Thereafter Akshay Kumar took her to Ghaziabad. He was alone with her in Ghaziabad. He used to subject her to forcible intercourse there also. Thereafter he took her to Allahabad, Govind Nagar and Kanpur. When Akshay Kumar took her to Allahabad, then his Jija (brother-in-law) Arvind and three co-accused persons had also come there. His brother-in-law and his friends attempted to commit rape on her. His Jija Arvind had committed rape on her. When she raised hue and cry, then they all had fled away from there. Where Akshay Kumar had kept her in Allahabad, his Jija had beaten her there also. She has further stated that Akshay Kumar had brought her back to Chandauli for the performance of court marriage and took her signature on so many papers in Chandauli. When he was performing the marriage with her, at that time his family members, relatives and friends were present there. All they forcibly got her photographs shooted. On 2.4.2008 when Akshay Kumar was bringing her to Obra from Chandauli, the police had caught her near Sharda Mandir in Obra. At that time Akshay Kumar and her parents were also with her. She was got medically examined in District Hospital and her statement was got recorded before the Magistrate. That statement was given by her on her own accord. She proved her statement under Section 164 Cr.P.C. which is Ext. Ka.2. She has further stated that her date of birth is 25.6.1994. She has filed the original copy of Transfer Certificate (T.C.) of Obra Inter College, Obra and also filed the certified copy of certificate of marriage which was performed by her with Akshay Kumar.

(iii) PW-3 Hari Prasad is the uncle of the prosecutrix. He has stated in his examination-in-chief that the prosecutrix is his niece. The incident is of 5.2.2008. At that time the prosecutrix was a student. Her age was 15 years. Her date of birth is 25.6.1994. Her brother Shivchan had told him that the prosecutrix was not at the house. Thereupon they searched her in the Mohalla and also went to the house of Chandrama Rama. He was found in his house along with his family members. During the course of search one Sandeep had told them that he had seen the prosecutrix with the accused Akshay Kumar at Chopan Bus Stand in a bus. The mobile number was taken from the parents of Akshay Kumar and talked with him. He replied that he was going to perform the marriage with his niece (prosecutrix). After that on being fully acquainted with the facts his brother Shivchan lodged report of this incident in the police station. The boy and the girl were caught by the police near Sharda Mandir Crossing, Obra on 2.4.2008. The Investigating Officer had interrogated him (PW-3) in this regard.

(iv) PW-4 is Sandeep Kumar. He has stated that on 5.2.2008 at 4.30 a.m. he was coming to Obra from his village. When he came to Chopan Bus Stand he saw the prosecutrix and Akshay Kumar sitting there. He asked them as to where they were going. Akshay Kumar replied that he was going to leave her at her house. When in the morning he went to Obra colony for distributing the newspapers he found the parents of the prosecutrix weeping. He asked them the reason of weeping and told the parents of the prosecutrix that he had seen her along with Akshay Kumar at Chopan Bus Stand. The Investigating Officer had also interrogated him (PW-4) in this regard.

(v) PW-5 S.I. Sitaram Yadav, PW-6 Dr. Abhay Banerjee (Radiologist), PW-7 Dr. Smt. Ramshree Gupta and PW-8 Dr. Suresh Kumar Misra, lecture of Obra Inter College, Obra, who proved the entry regarding date of birth of prosecutrix, are of formal nature, so their statement made by them in their examination-in-chief need not be repeated. The relevant portion of the statement of the witnesses which they have made in their cross-examination shall be referred to hereinafter while evaluating the prosecution evidence."

The accused persons in their statement recorded under Section 313 Cr.P.C. denied the prosecution case and have further stated that they have been falsely implicated in this case and that the Investigating Officer had filed false charge sheet against them.

No evidence in defence has been adduced from the side of the accused persons.

The trial court after hearing the counsel for both the sides and perusing the evidence available on record, convicted and sentenced the accused appellant Akshay Kumar as hereinbefore mentioned in the beginning of the judgment but the trial court had acquitted co-accused Chandrama Ram and Smt. Urmila Devi of the charges framed against them under Section 363 and 366 IPC.

Aggrieved by the judgment and order of the trial court as regards the conviction and sentence, accused appellant Akshay Kumar has filed this criminal appeal.

I have heard, Sri Vinod Kumar Sharma, learned counsel for the appellant assisted by Sri S.K. Mathur Advocate, learned AGA for the State and perused the evidence available on record.

Learned counsel for the accused appellant has submitted that the said prosecutrix was major at the time of occurrence in question; that her age was above 18 years at that time; that the accused appellant had not taken her away anywhere against her wishes without her consent and he had committed no rape on her; that the appellant has been falsely implicated in this case; that the said prosecutrix due to influence and pressure of her parents has given false evidence against the appellant and that the trial court has committed an error in convicting and sentencing the accused appellant. So the impugned judgment and order as regards the conviction and sentence of the accused appellant is liable to be quashed.

On the other hand, learned AGA has supported the impugned judgment and order as regards the conviction and sentence of the appellant and has further submitted that the prosecutrix was below 18 years of age so she was a minor girl at the time of occurrence in question and that the accused appellant had committed rape on her. So the appellant has been rightly convicted and sentenced by the trial court.

I have thoughtfully considered the rival submissions of the counsel for both the parties in the light of the evidence and the facts and circumstances of the matter.

First of all, it is to be seen as to what was the age of the prosecutrix at the time of occurrence in question because in such cases the age of the prosecutrix is very relevant. According to the statement of PW-1 Shivchan, the father of the prosecutrix, his age was 36 years in the year 2009 when his statement was recorded. Thus, according to this statement, he was born in the year 1973 and according to his statement when he was of 15 years his marriage was held and after 5 years of his marriage the prosecutrix was born to him. Thus, according to this statement, the prosecutrix was born in the year 1993. But according to her date of birth which has been shown in the Transfer Certificate (T.C.) she was born in the year 1994. So there is contradiction in the statement of the father of the prosecutrix and the T.C. as regards the date of birth of the prosecutrix. It is also notable that PW-8 Dr. Suresh Kumar Misra who brought the scholar register has admitted that where the name of the prosecutrix is mentioned in the register, there is some overwriting and that the entry in the register was made by one Smt. Shashi Prabha Singh but there is no signature on the original record. Thus, the person who made the entry in the register has not been examined and the Principal of that school has also not been examined by the prosecution. This T.C. is of the 8th Class and the same is not supported by the record of the school first attended by the prosecutrix nor the same is supported by any record of Municipal authority or Panchayat concerned in regard to the age of the prosecutrix. Hence in these circumstances, it does not appear safe to rely upon either on the statement of the first informant or on the transfer certificate as regards the age of the prosecutrix. So we will have to depend upon the medical evidence which has been adduced in this case.

According to the supplementary medical report (Ext. Ka.9), the age of the prosecutrix was 15-16 years at the time of occurrence in question. There may be a margin of two years on either side as has been held by the Apex Court in the case of Jaya Mala Vs. Home Secretary, Government of Jammu and Kashmir and Others, . So the age of the prosecutrix might be 17-18 years at the time of occurrence in question. When two views are possible, the view favourable to the accused should be adopted as held by the Apex Court in the case of Kali Ram Vs. State of Himachal Pradesh, . Thus, the prosecutrix was above 16 years but below 18 years at the time of the occurrence in question.

Now I come to the offence under Section 363 IPC allegedly committed by the accused appellant. To constitute this offence the age of the prosecutrix should be less than 18 years. In this Section 363 IPC the punishment of kidnapping has been given and the definition of kidnapping has been given in Section 361 IPC. Section 361 IPC runs as follows:--

"361. Kidnapping from lawful guardianship.--Whoever takes or entices any minor under sixteen years of age if a male, or under 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 prosecutrix in her statement recorded under Section 164 Cr.P.C. had clearly stated that when she opened the door she saw that the accused appellant Akshay Kumar was standing at her door. He knew the accused appellant very well from before. She has further stated that she loves him very much, so due to this reason she eloped with him and she lived with him for two months. She in her statement recorded in the court has stated that on the day of occurrence the accused appellant had forcibly taken her away from her house. Whether she was taken away forcibly or not, makes no difference but the fact is this that the accused appellant had taken her away from her house without her parents'' consent. She was, later on, after about two months, recovered from the company of the accused appellant also. Thus, from the evidence on record it is clearly proved that it is the accused appellant who had taken her away from her parental house. Since the age of the prosecutrix has been proved to be below 18 years at the time of the occurrence in question and there is ample evidence on record to prove that it is the accused appellant who took the prosecutrix from her parental house out of the keeping of the lawful guardian of that prosecutrix without the consent of her guardian, so the offence of kidnapping punishable under Section 363 IPC is proved against the accused appellant beyond reasonable doubt and the accused appellant has been rightly convicted under that Section.

Now it is to be seen as to whether the offence punishable under Section 366 and 376 IPC is proved against the accused appellant or not.

In this reference, there is no reliable evidence on record to show that any deception was played by the accused appellant in taking the said prosecutrix from her house or any force was applied by him to take her away or she was compelled to accompany him from her house. The evidence of the prosecutrix that she was taken forcibly by the accused appellant does not inspire confidence. She does not appear to be a fully reliable witness. In the statement of the prosecutrix recorded under Section 164 Cr.P.C. there is no mention that the accused appellant compelled her to accompany him on the point of knife but in the statement recorded in the trial court she had added that the accused appellant had compelled her to accompany him by showing the knife. In the statement recorded under Section 164 Cr.P.C. there is no mention that her mouth was gagged and she was dragged to some distance by the appellant and was forced to sit on his scooter and moreover, it is highly improbable that the accused appellant simultaneously would have shown knife to her, would gagged her mouth and would have forced her to sit on the scooter and thereafter would have taken her on that scooter forcibly. Moreover, she made no complaint to anyone in the bus or on the way to village Manikpur and that she lived with the accused appellant for two months. She went along with him from Manikpur to Ghaziabad, Ghaziabad to Allahabad, Ghaziabad to Banaras and Banaras to Mughal Sarai but surprisingly enough that she made no complaint to anyone against the accused appellant. These circumstances are clearly indicating that she was not compelled nor she was threatened to go with the accused appellant or any deception was played by the accused appellant on her to accompany him or to live with him for two months. It is also pertinent to mention here that the prosecutrix in her statement recorded in the court has proved her statement recorded under Section 164 Cr.P.C. which is Ext. Ka.2 and has clearly stated in the trial court that she had given out that statement before the Magistrate on her own accord. In that statement she had clearly stated that on the day of occurrence at about 12 o''clock in the night as soon as he opened the door she found accused appellant standing on her door. She loves him very much. So she went along with him and she loved with him for two months and that she entered into matrimonial alliance with him in a temple and that she lived in Ghaziabad with him in a flat voluntarily. Thereafter she went to Allahabad, Banaras and Mughal Sarai with him. Thus, from her statement recorded before the Magistrate concerned it is clear that she was not compelled or seduced to illicit intercourse against her will.

The prosecutrix during the course of her statement in the trial court filed the certified copy of marriage certificate also which shows that on on 26.2.2008 she married with the accused appellant before the Registrar of Hindu Marriage, Chandauli. This circumstance also indicates that she was a consenting party. The statement of the prosecutrix that the accused appellant had forced her to marry with him does not appear to be reliable because the Registrar of Hindu Marriage is a public servant and the presumption of regularity of performance of official duties is also attracted in his favour also as provided under Section 114(e) of the Evidence Act.

It is also worth mentioning that the offence under Section 366 IPC is merely an aggravated form of offence punishable under Section 363 IPC and the same person cannot be convicted on the same facts under both the Sections. Section 366 IPC does not apply to a case in which a minor girl at the time of kidnapping from the lawful guardian intended to cohabit of her own freewill with the kidnapper. This Section 366 IPC applies where the prosecutrix was compelled to marry with a person against her will or she was forced or seduced to illicit intercourse. In the case at hand, in her statement under Section 164 Cr.P.C. which she testified to be correct in the trial court, there is no allegation against the accused appellant that she was ever forced or compelled to marry him against her will or was seduced to illicit intercourse. The circumstances that she lived with the accused appellant for two months and that she went from place to place in public vehicles along with the accused appellant are clearly speaking that she was a consenting party. I have already held that she was above 16 years of age at the time of occurrence in question. Thus she had reached the age of consent as per law prevailing at that time. So no offence punishable under Section 366 and 376 IPC is made out or proved against the accused appellant.

For the foregoing reasons and discussion, I come to this conclusion that the prosecution has succeeded in proving the charge under Section 363 IPC against the accused appellant beyond reasonable doubt but it has failed to prove the charges framed under Section 366 and 376 IPC against the accused appellant beyond reasonable doubt and the accused appellant is entitled to be acquitted of the charges framed under Section 366 and 376 IPC.

Now I come up to the question as to whether the sentence awarded to the accused appellant by the trial court under Section 363 IPC is justified or not.

The accused appellant as per his statement recorded under Section 313 Cr.P.C. was about 25 years of age on 24.9.2013. So at the time of occurrence in question he was about 20 years of age. From the evidence on record it is clear that the said prosecutrix was a consenting party. So regard being had to all the facts and circumstances of the matter, the sentence of imprisonment of five years appears to be on higher side. The accused appellant is in jail since 27.11.2013 and during investigation and trial he also remained in jail from 2.4.2008 to 17.11.2008. Thus, the accused appellant has already suffered incarceration of about two and an half years. In these circumstances, I find it proper to reduce the sentence of imprisonment already undergone by him and to increase the fine from Rs. 5,000/- to Rs. 15,000/-.

In the result, the appeal is partly allowed. The conviction of the appellant under Section 363 IPC is maintained but his sentence of imprisonment is reduced to the period of imprisonment already undergone by him and fine is increased to Rs. 15,000/- from Rs. 5,000/- thereunder. In default of payment of fine he shall undergo 9 months'' rigorous imprisonment.

Accused appellant Akshay Kumar is not found guilty of the charges under Section 366 and 376 IPC and he is acquitted accordingly of both these charges.

Accused appellant is in jail. Since the appellant has already suffered the sentence of imprisonment, so on payment of fine of Rs. 15,000/- in the lower court he shall be released forthwith, if he is not wanted in any other case.

This order be communicated to the lower court concerned without any further delay.

Office is directed to send back the lower court record to the lower court concerned for compliance along with the copy of this judgment.

The certified copy of this judgment be issued to the appellant''s counsel as per rule without any delay.