Asrey vs State of U.P.

Alok K. Singh, J.—This criminal appeal has been preferred against the judgment and order dated 19.11.2002 passed by Sri R. P. Singh, v. Ith Additional Sessions Judge, Gonda in Sessions Trial No. 232 of 1995, convicting the Appellant-Asrey son of Kallu u/s 363, I.P.C. and sentencing him for two years'' rigorous imprisonment and to pay fine of Rs. 500 in default one month''s additional rigorous imprisonment ; u/s 366, I.P.C., three years'' rigorous imprisonment and to pay fine of Rs. 1,000 in default two months'' additional rigorous imprisonment, u/s 376, I.P.C., seven years'' rigorous imprisonment and fine of Rs. 2,000 in default three months'' additional rigorous imprisonment. Appellants-Kallu and Atwari were convicted only under Sections 363 and 366, I.P.C. u/s 363, I.P.C., both were sentenced to two years'' rigorous imprisonment and fine of Rs. 500 each, in default one month''s additional rigorous imprisonment. u/s 366, I.P.C., both were sentenced to three years'' rigorous imprisonment and fine of Rs. 1,000 each, in default two months'' additional rigorous imprisonment.

The facts wrapped in brevity are as under:

The complainant Kabir Saran resident of village Bilauli Bhgha Jot, Police Station Utraula, district Gonda, lodged a report on 3.6.1991 at 7.10. p.m. (Ext. Ka-1) at Police Station, Utraula saying that on 1.6.1991 early in the morning at about 4 a.m. when his 14 years old daughter, Samundra had gone to ease out in the east of the village, all the four accused who belong to the same village enticed and kidnapped her with intention to perform her marriage. After registration of the case the matter was investigated upon. On 20.8.1991 the girl was recovered from the possession of Ram Asrey in front of brick kiln of Shyam Lal in village Banbhusa under Police Station, Utraula, vide Fard (Ext. Ka-2). Then on 21.8.1991 she was got medically examined. The vaginal report was found negative. The age of the girl on the basis of ossification report and the report of radiologist was found to be 15 years. She was also found to be used to sexual intercourse. On 27.8.1991 her statement u/s 164, Cr. P.C., was recorded in which she stated to have gone on her own sweet will with convict Atwari. She did not make any allegation against any of the remaining accused also (Paper No. Ka-17/1). After completing the investigation the charge-sheet was submitted against the accused persons under the aforesaid sections.

The case was committed by the concerned C.J.M. to the Court of Sessions. During trial in all seven witnesses were examined in support of the prosecution case. P.W. 1 Kabir Saran is the complainant who besides proving the report (Ext. Ka-1) and recovery fard of the girl (Ext. Ka-2) also deposed that the residences of convict Kallu and Asrey are towards north of his house. On the day of occurrence, his wife and daughter were lying on separate cots outside the house. At about 4 a.m. when his daughter went for easing Asrey, Kallu, Atwari and Kanhaiya Lal kidnapped his daughter with intention to perform her marriage. It is noteworthy that during trial Kanhaiya Lal had expired and as such the case has already abated against him. The complainant further deposed that after about 2-3 months his daughter was recovered and was given in his custody. P.W. 2, Smt. Indrani, is the wife of the complainant who has also made almost similar deposition. P.W. 3 Ayodhya is aged about 60 years. He is a witness of the recovery of the girl. P.W. 4 is the prosecutrix herself. She has deposed that while she had gone towards east of the village for easing out at about 4 a.m. all the four accused got hold of her and gave assurance of her marriage. At that time she was 14 years of age. They took her to Utraula. There she boarded a Bus alongwith convict Asrey. From that place the remaining convicts returned back. Convict Asrey took her to a village where she lived with him for about 15 days. During that period Asrey had sexual intercourse with her against her wishes several times. Asrey also took her to other places and there also he committed sexual intercourse with her against her wishes. Then finally while she was coming from Utraula she was arrested alongwith Asrey by the police and thereafter she was given in the custody of her father. She denied to have given statement (under Section 164, Cr. P.C.) to the Magistrate to the effect that she went with Asrey of her own sweet will and that her step mother is a lady of bad character. P.W. 5 Sri R. P. Maurya is the Senior Pathologist who prepared the report of vaginal smear (Ext. Ka-4). As Dr. Km. L. Nandan, who had performed medical examination of the girl, had expired, he also proved the medical examination report as Ext. Ka-6. No definite opinion about rape could be given in view of the vaginal smear report. S. I. Bhunnu Yadav has been examined as P.W. 6 who after recording statements of the witnesses inspected the site and prepared the site plan (Ext. Ka-7). He told to have recovered the girl on 20.8.1991 in the presence of witness Ayodhya and Bhiki and father of the prosecutrix from the custody of Asrey vide Ext. Ka-2. He also prepared a separate site plan in this regard (Ext. Ka-8). He also took into possession the petticoat of the girl which contained few stains of semen, vide (Ext. Ka-3). The accused-Kanhaiya Lal was arrested on 21.8.1991 and his statement was also recorded. Thereafter this witness was transferred. He also proved the original chik (Ext. Ka-9) and relevant G. D. (Ext. Ka-10). After his transfer the charge-sheet was submitted by S.I. Ram Naresh Yadav. This witness proved the charge-sheet (Ext. Ka-12). Radiologist Dr. J. N. Prasad has been examined as P.W. 7 who proved the ossification report (Ext. Ka-13) according to which the age of the girl was found to be 15 years.

In the statements u/s 313, Cr. P.C. all the accused denied the evidence which came against them. None of them adduced any evidence in defence.

After relying upon the ocular evidence of the prosecutrix and the other witnesses the learned lower court convicted and sentenced the accused persons in the manner mentioned hereinbefore.

I have heard Sri K. K. Singh, advocate for convict Atwari and Sri Amanur-Rahman, advocate, amicus curiae for convict Ram Asrey (who was initially in jail and was bailed out vide order dated 26.10.2005) and Sri Sarvajeet Dubey, learned A.G.A. on behalf of the State, and perused the record.

As already mentioned the case has already abated against Kanhaiya due to his death. Out of the remaining three, convict Kallu, the father of Appellant Asrey, did not file any appeal. The impugned judgment was delivered in the year 2002. Since then about more than four years have elapsed. As both the sentences against him had to run concurrently, the maximum sentence being for three years, he must have been released from jail after completion of sentence. It appears that Appellant Asrey had also undergone a total period of about three years imprisonment. Similarly Atwari had undergone imprisonment for about nine months.

First of all I propose to deal with the offences under Sections 363 and 366, I.P.C. The definitions of these sections are extracted hereinbelow :

Punishment for kidnapping.-Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

Kidnapping, abducting or inducing woman to compel her marriage etc.-Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine ; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person shall also be punishable as aforesaid.

Kidnapping is defined u/s 359, I.P.C. which is as under :

Kidnapping.-Kidnapping is of two kinds: kidnapping from India, and kidnapping from lawful guardianship.

In the instant case kidnapping from lawful guardianship is involved which is defined in Section 361, I.P.C. as under :

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.

Explanation. - The words "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Exception. - This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

In view of the aforesaid definition now the first and foremost question is whether the girl was under 18 years of age at the time of occurrence as alleged by prosecution or she was adult (18 years or above) and a consenting party as claimed by defence. It is needless to say that the entire criminal trial is based on preponderance of probabilities. On the point of age the oral evidence on record consists of father (the complainant) the mother and the prosecutrix. According to father her age was 14 years. It has also come on record that the complainant had three children including the prosecutrix from his first wife who remained with him for 15 years. The present one is his second wife who is living with him for the last about 22 years. There does not appear to be any issue from the second wife. When cross-examined he told that the eldest issue is the son, the second issue is the prosecutrix and the third is again a daughter, namely Muntu, who was also married at the time of his evidence (he was examined on 20.1.2001). When his wife died the prosecutrix was 1-1/2 years old. In reply to a question he also told that the younger daughter Muntu is two years younger than the prosecutrix. Probably he is not telling the truth because at the time of death of his first wife his middle child Samundra was 1-1/2 years old and she is two years older than Muntu, then how it could have been possible. It appears that whenever the defence tried to pinpoint him and asked some crucial questions indirectly or directly connected with the age of the prosecutrix, he tried to evade those questions. In reply to one of such questions he expressed his inability to tell as to how many years before his first wife died. His second wife Indrani (P.W. 2) was also examined in the year 2001, and at that time she told her age as 40 years. According to her the age of Samundra, i.e., prosecutrix was 8 or 9 years at the time of incident. This is again a funny statement. When asked about her own age she told that at the time of her Gauna (after which the lady comes to reside in her in-laws'' house) she was 20-25 years old and at that time the age of Samundra was 12-13 years. If from the aforesaid age of 40 years these 25 years are subtracted then it comes out that about 15 years before (with effect from 2001 when evidence was recorded) she was married. That means she was married around 1986. She has told that at the time of her marriage the prosecutrix was 12-13 years of age which means that on the date of incident which is said to have taken place after 5 years, i.e., on 30.6.1991, she was 13+5=18 years of age. From the aforesaid statement it also comes out that the age difference between the step mother and the prosecutrix was about 25-13=12 years. If we check it out from this angle then also her age at the time of occurrence comes to about 18 years because she was examined in 2001 and at that time she was 40 years of age. The age difference between step mother and the prosecutrix being 12 years in the year 2001, the age of the prosecutrix was 28 years. The incident is said to have taken place about 10 years before, i.e., in 1991. Therefore, in 1991, the prosecutrix was in any case 18 years of age. Besides these two witnesses Samundra herself entered in the witness box and stated her age at the time of occurrence to be 14 years. She was also examined in the year 2001. According to her at the time of incident, i.e., in the year 1991, she was 14 years of age. Apparently she is giving tutored version. Her real age has come out to be 18 years as discussed above.

Thereafter, if we enter into medical evidence then also the aforesaid age is substantiated. If we carefully examine the supplementary report (Ext. Ka-6) then in the last but one line her age is mentioned as "sixteen" years which has been subsequently made "fifteen" by superimposing alphabets "fif" on "six" without any initials. There is also overwriting in the alphabet ''Y'' in word "years old". Then with a view that age "sixteen" may appear as "fifteen" after full stop a bracket has also been added to write ''15'' in numerical. The Hon''ble Apex Court has settled the law on the point that when the age has to be determined on the basis of radiological or orthopaedic test the Court can always take judicial notice that margin of error of age ascertained by such medical tests is two years on either side. One of such case is of Jaya Mata v. Home Secretary 1982 SCC 502, on which the learned Counsel has placed reliance. It is needless to say that if two interpretations are possible then the interpretation which is in favour of the accused will have to be taken into account. Therefore, in the present case margin of error of two years has to be on the side of the accused and from this calculation also it comes to 16+2=18 years.

Thus, if we take into account both the oral evidence as well as the medical evidence and read it together then we come to the conclusion that the age of the prosecutrix was 18 years at the time of alleged occurrence. In other words she was not below 18 years. Therefore, at least reasonable doubt is created in favour of the accused that probably the prosecutrix was not below 18 years of age. Therefore, the defence case of her being consenting party can also be taken into account. Some of the points occurring in oral evidence may be of great significance to reach to any conclusion in respect of her being a consenting party. Concededly the house of convict-Appellant and his father Kallu (who has not filed any appeal) is adjacent to the house of the complainant towards north. In her statement u/s 164, Cr. P.C. (Paper No. Ka-17/1) she has stated that about three years before she was married with one Babu Lal and in the year when the incident is said to have taken place in the month of Baisakh her Gauna was also performed and thereafter she went to the house of Babu Lal and remained there for 5-6 days but her father-in-law Madhau used to tease her and wanted to have intimate relations with her to which she denied. Her father-in-law used to beat her also. Therefore, after 5-6 days she came back to her mother''s place alongwith her father. She also stated that she has a step mother, namely Indrani. She told about behaviour of her father-in-law to her mother and father but they did not do anything. Her step mother was also a lady of bad character who had illegitimate relations with several villagers and she wanted her also to adopt the same way but she refused. She further stated that due to this reason about 3 months before she had gone on her sweet will with Ram Asrey who resides in the same village. Initially she went to village Ghuswa where Kaka of Ram Asrey (convict) resides. Ram Asrey did not do any wrong with her. Rather he wanted to marry her. His mother and father were also agreeable to this marriage. After some days Ram Asrey look her to another village Khajuria where his father''s sister lives. There also she was not teased or misbehaved. In this way she lived with Ram Asrey for about 2-1/2 months in village Ghuswa and Khajuria. In the last she expressed her desire to go and live with Ram Asrey to whom she wants to marry also. She also stated that she does not want to live with Babu Lal and also does not want to go to her mother and father''s place. It is true that this statement has not been formally proved. Nevertheless such type of previous statements can be referred to its author. She admitted to have given the statement before the Magistrate after recovery. So the factum of recording her statement u/s 164, Cr. P.C. is proved. It is another matter that after a gap of about 10 years when this time she appeared before the Court to give substantive statement she was a more grown up lady and by that time had also performed another marriage with another person as has come in evidence and, probably due to this she was bound to deny the contents of her earlier statement lest she may be ridiculed to have consented to go with Appellant Ram Asrey on her own sweet will at that time. Therefore, when she was asked about her earlier statement she simply evaded the question by saying that she does not remember as to what statement she had given. But it is difficult to believe because she remembers all other things and tried to give out each and every detail of her tutored version in respect of alleged incident. She also took the pretext of fear for deposing before the Magistrate. But she did not make it clear as to from which fear she was suffering. In fact after the alleged recovery she was given in the custody of her father only. Before the learned Magistrate she gave entire statement in favour of the accused-Appellant and did not mention anything about the remaining accused persons.

Therefore, the story of enticing away on the ground of performing her marriage or taking her away from the guardianship of her father and mother does not inspire confidence. It also becomes doubtful from the manner of the incident as has come in evidence of the prosecutrix herself. First of all she is said to have gone on that particular day early in the morning at about 4 a.m. to ease out because of some pain in her stomach. That means that usually she was not supposed to go for easing out so early. Therefore, unless the Appellant Ram Asrey or his alleged associates had some inclination given by the prosecutrix herself, there was no reason for them to have met her at about 4 a.m. in the field to entice her away. Though according to her mother and father all the three were sleeping that day outside their house on separate cots but according to her all of them were sleeping inside the house. Similarly it has come in evidence that the place of occurrence was hardly 100 yards from her house but she did not raise any alarm allegedly due to fear although none of the four accused (the original F.I.R. was against four persons) had any weapon in their hands. She was taken on a bicycle from that place upto Bus stop. Even at that time she also did not shout or raise any alarm. When she reached alongwith them at the Bus stop there were about 4 persons waiting for the Bus but at that time also she did not raise any alarm or try to run away. After she boarded the Bus with Ram Asrey Appellant the rest of the accused went back from there. Then Appellant Ram Asrey took her from one village to another. She used to go by sitting on the back of bicycle or travelling in tempo with other passengers but there also she never told anything to any body or tried to run away. It is law of the nature that some how or the other truth ultimately comes on the surface. In the present case also one of the prosecution document reveals the real fact. This document is copy of G. D. dated 27.8.1991, time 3.25 p.m., of Police Station, Utraula, district Gonda (Ext. Ka-11). This G. D. speaks about addition of Section 376, I.P.C., when the girl was found to be habitual of sexual intercourse. It also mentions about the statement of the girl u/s 164, Cr. P.C. The significant thing which is mentioned in this G. D. is that after getting her statement recorded u/s 164, Cr. P.C. the girl refused to go with her parents. It is further mentioned that the girl expressed her desire to go with Appellant Ram Asrey. It has already been mentioned hereinabove that the girl was 18 years of age and in that back drop if we evaluate and assess the entire evidence discussed above including the aforesaid G. D. (Ext. Ka-11) it becomes clear that the girl was major at that time and she was a consenting party who wanted to go with Appellant Ram Asrey and to marry him. Her step mother was also not treating her well. Further, she was initially married to one Chhotey Lal. She remained there for 5-6 days only. Her father-in-law had an eye upon her and also used to beat her. Therefore, she did not want to go there. In this backdrop she wanted to marry Ram Asrey who was of her own caste and was also her next door neighbour and further Ram Asrey and his parents were also agreeable to marry her. In fact the entire prosecution story regarding alleged kidnapping etc. and alleged recovery comes under heavy cloud of doubt by the statement of none other than the mother of the prosecutrix herself who has said that after three months they came to know that accused persons had enticed her away, then they went to lodge report at the police station. It is also worthwhile to mention that according to prosecution story one Ayodhya was present who told the complainant to have seen the accused persons taking away his daughter. This Ayodhya belongs to village Mahua which is 4-5 kilometers away from the village of the complainant. According to the prosecution itself he is a chance witness who is said to be present on that day in the odd hours, i.e., about 4 a.m. in that village because he had come to that village to see a dance (naach). The complainant has categorically stated that no person of his village told him about it and it was only Ayodhya who told him. It may be curiously noted here that the same Ayodhya and his son are again chance witnesses of the alleged recovery which is said to had been made after about 2-1/2 months. Thus, by chance this witness was present on both the occasions. It is also interesting to note that though he is said to be the only person who witnessed the event of alleged enticing away. But he did not stop them, though they were unarmed. It is also noteworthy that the prosecution examined him only on the point of alleged recovery. It is difficult to believe that the same person reaches everywhere by chance and is ready to depose in favour of the prosecution. The defence has suggested that the prosecutrix was married to a close relation of this witness but wanted to go with Appellant Ram Asrey due to which this witness is deposing in favour of the prosecution on the point of alleged recovery.

As defined under Sections 359 and 361, I.P.C., kidnapping from lawful guardianship or minor girl under 18 years of age, if female, is required to be proved. But in the instant case, as has been discussed above, the girl was 18 years of age and at least a reasonable doubt is created in this regard on the basis of prosecution evidence itself. Even if a girl, though a minor, is at the verge of attaining majority and accompanies the accused all along, it is quite apparent that she has her own desire to be the wife of the accused. In such circumstances no inference can be drawn that the Appellant-Ram Asrey or his associate Atwari were guilty of taking away the girl out of the keeping of her father. The Hon''ble Supreme Court in the case of S. Varadarajan Vs. State of Madras, upon which reliance has been placed from the side of the Appellants, has laid down that there is distinction between ''taking'' and ''allowing to accompany a person''. The expressions are not synonymous. It cannot be laid down that in no conceivable circumstance can the two be regarded as meaning the same thing for the purpose of Section 361, I.P.C. Where the minor lady leaves her father''s protection knowing and having capacity to know the full import of what she was doing voluntary joins the accused person, the accused cannot be said to have taken her away from keeping of her lawful guardian. The Hon''ble Apex Court emphasized that something more has to be shown in a case of this kind that is some kind of inducement held out by the accused persons or an active participation by him in the formation of the intention of the minor to leave the house of the guardian. It would 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. If evidence to establish one of those things is lacking, it is not legitimate to infer that the accused is guilty of taking the minor out of keeping the lawful guardian merely because after she has actually left her guardian''s house, joined the accused and the accused helped her in her design not to return to her guardian''s house by taking her alongwith him from place to place. No doubt the part played by the accused could be regarded as facilitating the fulfilment of the intention of the girl. But that part 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". In the present case even if the girl is taken to be minor then also the aforesaid evidence is lacking in respect of both the Appellants. Therefore, in either of the situation, i.e., if she was ''minor'' or ''major'' the prosecution has failed to bring home both the charges, i.e., Sections 363 and 366, I.P.C.

Now conviction u/s 376, I.P.C. of the Appellant-Ram Asrey remains to be considered. At the out set it may be mentioned that in her medical examination it was found that vagina admitted two fingers easily but neither any tear or any laceration was found present. In the vaginal smear report also no spermatozoa was found. It may be recapitulated that in her statement u/s 164, Cr. P.C. (paper No. Ka-17) she clearly stated to have gone with Ram Asrey on her own choice but categorically denied any rape upon her by Ram Asrey or any body else. She also stated about going with Ram Asrey and staying in two villages at the place of his relatives but according to her Ram Asrey did not do anything wrong with her. Ram Asrey and his parents were agreeable to perform her marriage with Ram Asrey. When confronted with her aforesaid earlier statement she evaded the question and merely took pretext of the memory loss. It is true that she came to give her substantive statement after about 10 years of the alleged incident and this time she supported the prosecution version which is opposed to her earlier statement u/s 164, Cr. P.C. As noted before she has now married another person and has attained more maturity. Therefore, she supported the prosecution version lest she may be looked upon by her husband to be a lady of easy virtues who had gone on her own with accused Ram Asrey 10 years before. Though she admitted to have given statement u/s 164, Cr. P.C. before the Magistrate but expressed her inability to recapitulate the contents of her earlier statement. When specifically confronted she told to have given such statement under some fear. But she could not give one single reason for any fear. It may be mentioned here that after the alleged recovery she was given in the custody of her father on 20.8.1991 and after about a week, i.e., on 27.8.1991 her statement u/s 164, Cr. P.C. was recorded. Therefore, there was no question of any fear. Thus, her evidence does not inspire confidence and it would not be safe to place any credence on her statement and on the basis of her statement alone it would not be safe and proper to deprive the Appellant Ram Asrey of his personal liberty by convicting and sentencing him to jail. Unfortunately he has already undergone a period of about 3 years. First of all the alleged commission of rape is not established beyond reasonable doubt. Secondly, even if intercourse took place between the two, it was probably with her consent. Some of the following factors are indicative of the same :

(i) going out on the pretext of easing out due to stomach pain without informing her father and mother at an unusual time, i.e., 4 a.m. in the early morning.

(ii) travelling on bicycle and tempo etc. without making any noise or protest or resistance

(iii) living with Ram Asrey for about 2-1/2 months in different villages

(iv) stating everything in favour of Ram Asrey in her statement u/s 164, Cr. P.C. but subsequently denying it under compulsion of present married life

(v) the doctor finding nothing in her medical examination suggestive of rape or intercourse.

Finally, therefore, the charge u/s 376, I.P.C., against Appellant Ram Asrey is also not established beyond reasonable doubt.

In the result both the appeals are allowed. The conviction and sentence of the Appellant Ram Asrey and Atwari under Sections 363 and 366, I.P.C., are set aside. Further, the conviction and sentence of Appellant Ram Asrey u/s 376, I.P.C. is also set aside. They are acquitted of the aforesaid charges. As they are on bail, they need not surrender. Their bail bonds are cancelled.