The Lucknow Bench of the Allahabad High Court has allowed an appeal filed against the order dated 10.3.2000, passed by the Additional Sessions Judge, Lucknow in case under sections 363, 366, 376 I.P.C, whereby the appellant has been convicted and sentenced to five years rigorous imprisonment and a fine of Rs 5000/-, with default provision, under section 376 IPC.
A Single Bench of Justice Karunesh Singh Pawar passed this order while hearing a Criminal Appeal filed by Lalla.
The prosecution case is that on 14.1.1997 at about 8.00p.m, the accused Lalla enticed away the daughter of the complainant Rajaram without her consent. She has taken silver ornaments and Rs.2200/- cash along with her. Even after ample search, her whereabouts could not be found. This incident has been seen by Gama and Santram of his village. A written report of the incident was given at police station Gosainganj on 16.1.1997, on the basis of which a first information report was registered. On 27.1.1997, the victim was recovered.
Charges under sections 363, 366 and 376 I.P.C were framed against the accused which was denied by him and the accused claimed to be tried.
Statement of the accused has been taken under section 313 CrPC, in which his case was of denial.
The accused in his statement under section 313 CrPC has denied all the incriminating circumstances put to him, however, no defence was taken by him.
Amicus has submitted that the occurrence is of 14th January, 1997 at about 8.00p.m, the first information report has been lodged on 16.1.1997 at 3.40p.m after a delay of two days. The victim was recovered on 27.1.1997 after 13 days of the incident.
As per version of the written report/first information report, the prosecutrix went away with the appellant along with silver ornaments and Rs 2000 cash.
It is submitted that witnesses have stated that the prosecutrix was walking ahead and the appellant was following her which shows that the victim went out of her own accord and free will.
It is further submitted that during the period of 13 days in which she was allegedly in the captivity of the accused, the victim did not raise any alarm which, in itself, shows that she was a consenting party.
As per medical report of the prosecutrix, no mark of injury on any part of the body was found. The hymen was found to be old torn and healed.
It is submitted that since the age of the victim during trial was not proved, hence it cannot be said that she was minor at the time of alleged incident. The appellant was acquitted under sections 363, 366 I.P.C, however, he has been convicted for the offence under section 376 I.P.C without any cogent evidence.
It is also submitted that the prosecution has failed to establish its case beyond reasonable doubt and benefit of doubt must go in favour of the accused.
A.G.A, on the contrary, while opposing the argument of the appellant’s counsel and supporting the prosecution case has submitted that the testimony of the prosecutrix is intact and on the sole testimony of the victim, the accused can be convicted. No other corroborative material is needed as per law.
The Court observed that,
Having heard parties’ counsel and after perusal of the record, the court finds that in the written report, it is the case of the prosecution that the victim was enticed away by the appellant and while going away, the victim took silver jewellery and cash of Rs 2200/- with her. Written report was given by the complainant.
However, before the court, in his examination-in-chief, the complainant has stated that the victim did not take away any ornament. In his examination-in-chief and in the cross, the complainant has stated that due to envy, he has mentioned in the written report that his daughter had taken jewellery and cash with her. In his cross, he has stated that the investigating officer did not visit his village. He denied the suggestion that the victim herself on her own went with the accused. He further denied the suggestion that she is 20 years old.
In his statement, complainant has denied that the prosecutrix has taken anything with her, however, in the cross, he has admitted that he got written in the written report that she took jewellery and cash with her, however, in envy.
Even otherwise, since the incident is of 1997 and as per unamended Indian Penal Code, at that time, the age of consent for sexual intercourse was 16 years and above and therefore, the burden was on the prosecution to prove that the prosecutrix was below 16 years of age which as said above, the prosecution could not do.
The Court further observed that,
It is significant to note that the case diary has not been produced by the investigating officer. The prosecution witnesses have denied their statement under section 161 CrPC during their statement before the court. The accused has been precluded to confront the witnesses. During their cross examination also, the power of the court under section 165 Evidence Act to put any question to a witness is also couched in very wide terms and the accused has been denied this opportunity for want of case diary, although this does not vitiate the trial, however, causes a dent in the prosecution case. The investigating officer is said to have proved the site plan but considering the statement of witnesses, it can be said that the investigating officer has not even visited the village. The investigation has been conducted in a very casual manner. Overall, the prosecution failed to prove its case beyond reasonable doubt.
Thus, in view of shaky testimony of the prosecutrix which is made doubtful by the statement of witnesses, coupled with the lack of any corroborative material to determine the exact age of the prosecutrix except the medical report, according to which she appears to be above sixteen years of age, the testimony of witnesses, particularly their statement that the victim was going ahead and the accused Lalla was following her, she went with the accused with silver jewellery and cash of Rs 2200/- as per the written report of complainant himself, I am not inclined to affirm the judgment of conviction of the appellant under Section 376 IPC.
In view of what has been stated hereinabove, the Court allowed the criminal appeal and the order of conviction and sentence dated 10.3.2000, passed by the Additional Sessions Judge-XI, Lucknow in Sessions Trial State vs Lalla, P.S Gosainganj, district Lucknow is set aside. The appellant is acquitted of the charges levelled against him. The appellant be released from jail forthwith.
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