Court has a duty to guard itself against false charges of rape : Allahabad High Court 2018

 Court
has a duty to guard itself against false charges of rape

the 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 to prove the guilt of the accused beyond all doubt rests
on the prosecution and it never shifts.

The basic idea behind these principles is that the liberty of an
individual is a most valuable and fundamental right which inheres in him
and it should never be jeopardised unless the court, after bringing its
judicial experience and 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. No doubt in the
present times there has been certain amount of relaxation and latitude in
the manner of proof qua certain type of offence like sexual offence against
females or cruelty to them in the matrimonial home etc. but all the same
the foregoing principles stand unabridged and unscathed like beacon light
for the judicial courts.

 

Reserved
Case :- CRIMINAL APPEAL No. – 96 of 1997
Appellant :- Shoib Alias Chhotey Mian Ansari
Respondent :- State Of U.P.
Counsel for Appellant :- B.K.Shukla,R.P. Yadav,Rudra Pratap Pal,Vikas
Saraswat
Counsel for Respondent :- Govt. Advocate,Vimlesh Kumar Kashyap
Hon’ble Sheo Kumar Singh-I,J.
1. This criminal appeal is directed against the judgment and order
dated 13.02.1997 passed by Additional Sessions Judge, Court No.6,
Sitapur, in Sessions Trial No.251 of 1993 whereby and whereunder
accused appellant Shoib alias Chhotey Mian Ansari son of Munshi
Hashmat resident of Mohalla Bhattha, Kasba Mahmoodabad, Thana
Mahmoodabad, District Sitapur, was convicted for the offences under
Sections 363 IPC two years rigorous imprisonment with fine of Rs.500/-,
under Section 366 IPC five years’ rigorous imprisonment with fine of
Rs.1000/-, under Section 342 IPC six months’ rigorous imprisonment and
under Section 376 IPC ten years’ rigorous imprisonment with fine of
Rs.2000/-. In default of payment of fine, he was directed to undergo three
months, six months and nine months rigorous imprisonment. All the
sentences were directed to run concurrently.
2. In brief, the prosecution story is that the complainant with his family
members was sleeping in the house. The victim, daughter of the
complainant, was living with her parents. It is alleged that in the night of
12.01.1990, the accused appellant had carried the victim from the house
of her father, when she came out of her house to answer nature’s call
sometimes after midnight or before 4.00 or 5.00 AM, after the appellant
with other co-accused covered the mouth of the victim so that she may not
be able to raise any alarm. After that accused had brought the victim to
nearby houses and compelled her to sexual intercourse and later on took
her to Barabanki and remained there for some days. In the morning when
the father of the victim, not finding her daughter in the room, inquired then
she was not traced out in the house and it is alleged that the first
information report was lodged to the police station. However, the
application or report which was said to be communicated to the police
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authorities is not traceable on record and aforementioned first information
report was lodged on the basis of a written information dated 05.02.1990
Ext. Ka-1 which was addressed to Superintendent of Police, Sitapur, who
directed the Station House Officer, Mahmoodabad to register the case and
investigate the matter. After investigation, the Investigating Officer
submitted charge sheet under Sections 363, 366, 376 and 342 IPC
against two brothers Shoib alias Chhotey Mian Ansari and Uber Ansari,
both sons of Hashmat Ali Ansari.
3. After taking cognizance, the case was committed to the court of
sessions for trial and at the commencement of the trial before the learned
Additional Sessions Judge the charges were framed against the accused
in respect of the aforesaid offences. The accused, however, did not plead
guilty of the charges and claimed for trial.
4. The prosecution then examined the witnesses to bring home the
offences to the accused.
5. Statement under Section 313 Cr.P.C. was recorded in which the
accused denied the charges and submitted that there were certain sorts of
settlement of marriage but due to some reasons, it was not finally settled
and the accused was falsely implicated.
6. The trial court on basis of evidence on record came to the
conclusion that the present appellant namely Shoib alias Chhotey Mian
Ansari was instrumental behind this and was found guilty and was
punished as above. But Uber Ahmad was not found guilty and was
acquitted from charges levelled against him. Aggrieved by the order,
present appeal has been filed on the following grounds:-
I. That the findings of the court below are perverse and
erroneous and not proved by medical evidence.
II. That there was no motive to commit the offence.
III. That none of the independent witness had been examined
by the prosecution and the story of the prosecution is highly
improbable.
IV. That there are major contradictions, inconsistencies and
improbabilities in the evidence of the victim as well as the
complainant and there is nothing like recovery of the victim
or even the evidence of kidnapping.
V. That on the same theory of evidence the co-accused has
been acquitted but the present appellant has been convicted
for the charges levelled against him.
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7. Learned counsel for the appellant has submitted that the case of
kidnapping or abduction has not been proved by the prosecution and
before proceeding to analyze the offence mentioned under Section 376
IPC there must be cogent and reliable evidence to rely the case of
kidnapping from lawful guardianship by the accused appellant.

8. So far as offences punishable under Sections 363 and 366, IPC are
concerned, it is necessary to note their essential ingredients. Section 363
provides for punishment in case of kidnapping of any person from India or
from lawful guardianship.

Kidnapping from lawful guardianship has been
defined in Section 361. Essential ingredients of the said section are four in
number, i.e.,
(i) taking or enticing away a minor or a person of unsound
mind;
(ii) such minor must be under sixteen years of age, if a male, or
under eighteen years of age if a female;
(iii) the taking or enticing must be
out of the keeping of the lawful guardian of such minor or person of
unsound mind;
(iv) such taking or enticing must be without the consent of
such guardian.
If the girl is less than 18 years of age, it is immaterial
whether the girl consents or not. The taking need not be by force, actual or
constructive. There must be a taking of the child out of the possession of
the guardian.

The Explanation to Section 361 provides that the words

‘lawful guardian’ in the said section include any person lawfully entrusted
with the care or custody of such minor or other person. The word ‘take’
means to cause to go, to escort or to get into possession. It implies want
of wish and absence of desire of the person taken. There is, however, a
distinction between taking and allowing a minor to accompany a person.
9. The word ‘entice’ involves an idea of inducement or allurement by
exciting hope or desire in the other. The inducement or allurement may
take many forms, difficult to visualise and describe exhaustively; some of
them may be quite subtle, depending for their success, on the mental
state of the person at the time when the inducement is intended to
operate. This may work immediately or it may create continuous and
gradual, but imperceptible , impression culminating, after some time, in
achievement of its ultimate purpose of successful inducement. The
offence of kidnapping from lawful guardianship is complete when the
minor is actually taken from lawful guardianship. The act of taking is not in
the proper sense of the term a continuous act; when once the boy or girl
has been actually taken out of the keeping, the act is a completed one.
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Enticement is an act of the accused by which the person kidnapped is
induced of his or her own accord to go to the kidnapper. It is not
necessary that the taking or enticing should be shown to have been by
means of force or fraud. Enticement need not be confined to any single
form of allurement. Anything which is like to allure the minor girl would be
sufficient. Where the minor kidnapped is a girl under eighteen years of
age, it is no defence that the accused did not know the girl to be under
eighteen, or that from her appearance or conduct she appeared to have
attained the age of eighteen. There is an essential distinction between
taking and enticing. The mental attitude of the minor is immaterial in the
case of taking when an accused takes a minor with him, whether he or
she is willing or not, the act of taking is complete and the condition is
satisfied. But the word ‘entice’ involves an idea of inducement or
allurement. One does not entice another unless the latter attempts to do a
thing which she or he would not otherwise do.
10. Significantly the word ‘possession’ has not been used in the IPC,
but the language used is ‘out of the keeping, of the lawful guardian’. The
word ‘keeping’ connotes the fact that it is compatible with independence of
action and movement in the object kept. It implies neither apprehension
nor detention but rather maintenance, protection and control, manifested
not by continual action but as available on necessity arising. The word
‘lawful’ has been deliberately used in its wider connotation, and it is
distinguishable from the word ‘legal’. That has necessitated insertion of the
Explanation.
11. So far as Section 366 is concerned, the essential ingredients are :
(i) kidnapping or abducting any woman; (ii) such kidnapping or abducting
must be (a) 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
(b) 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. The second part of the section requires two things. (1) By
criminal intimidation or abuse of authority or by compulsion inducing any
woman to go from any place; and (2) such going must be with intent that
she may be, or with knowledge that it is likely that she will be, forced or
seduced to illicit intercourse, with some person. The word ‘woman’ has
been defined in Section 10. It includes a minor female. If the girl was
eighteen or over, she could only be abducted and not kidnapped, but if
she was under eighteen she could kidnapped as well as abducted if the
taking was by force or the taking or enticing was by deceitful means. The
intention of the accused is the basis and the grave men of offence under
Section 366. The volition, the intention and the conduct of the woman do
not determine the offence; they can only bear upon the intent with which
the accused kidnapped or abducted any woman and the intent of the
accused is the vital question for determination in each case. Kidnapping
and abduction are two distinct offences. The ingredients of the two
offences are entirely different. Kidnapping except kidnapping from India is
an offence against guardianship. It consists of enticing or removing a girl
from the keeping of the lawful guardian without her consent. Abduction is
an offence as defined in Section 362 when a person is by force compelled
or by deceitful means induced to go from any place. In abduction the
person abducted may be a minor or a major. Kidnapping is punishable per
se in terms of Section 363. Abduction on the other hand is not punishable
per se, and is punishable only when accompanied by a particular purpose
as contemplated in sections 364 to 366. But as kidnapping also may be
for the same purposes, Sections 364 to 366 deal with both kidnapping and
abduction for the purposes stated therein and prescribe the punishments.
12. I have heard the learned Counsel for the parties and also gone
through the record of the case carefully. The learned Counsel for the
accused has contended that since there was not cogent and satisfactory
evidence on record the conviction of the accused qua the offences in
question was not sustainable. The learned Counsel for the respondent on
the other hand controverted this contention. Since the fate of this case
hinges mainly upon the evidence on record, it would be but proper to take
reappraisal of this evidence.
13. The prosecution story reveals that after the midnight or at about
4.00 or 5.00 AM when the victim came out of the house, the accused
appellant took away her by covering her face by blanket or some clothes.
The victim is not sure whether it was midnight or it was 4.00 or 5.00 AM.
She is also not sure whether she was covered by blanket or by a plain
cloth.
14. It is submitted by learned counsel for the appellant that the
complainant was working as official of Treasury office and he was residing
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in official accommodation on first floor and the bathroom was inside the
house. There was no need to come out of the gate for nature’s call. Thus,
the theory that the victim came out of the house for nature’s call is
improbable and not believable. Secondly when the door was closed from
the outside, nobody can catch the victim without opening the door. There
was no hue and cry by the victim while she was in her house and more
than six or seven family members were there at that point of time. Thirdly
there was no means to go on the first floor without any external aid and
there was no such aid as narrated by the prosecution. The prosecution
story as narrated in the first information report reveals that the victim was
taken away somewhere else in Barabanki district. PW-1, the victim, had
narrated that she never went to Barabanki or Bahraich. The story reveals
that the complainant came to know the kidnapping of her daughter
through one of his neighbour but she was not examined before the Court
and she had never stated that she saw the appellant taking away the
victim, the daughter of the complainant. The complainant had stated on
oath that when his daughter was not found in the house, he intimated the
police by naming two persons as accused who happened to be Shoib @
Chhotey Mian, present appellant, and second his brother. There is no
means of knowledge or information as to how he came to know that
present appellant took away his daughter. PW-1, the victim, had stated on
oath that she had never seen the appellant and thus learned counsel for
the appellant has submitted that without identification by the victim,
naming of appellant in the first information report or even investigation
without identification is defective and against the provisions of law. There
is no medical report regarding rape and it has come on record that the
complainant himself had intimated to the police authorities that he did not
want his daughter to be medically examined. It is the theory of the
prosecution that the victim was recovered from the possession of the
accused and was given into the custody of the complainant and the
accused was taken into custody. On this point, there is nothing on record
that the victim or the accused at any point of time was taken into custody
or given in the custody of the guardian. PW-1, the victim, herself had
stated that she was never arrested or recovered by the police.
15. Learned counsel for the appellant has submitted that the
application dated 05.02.1990 addressed to Superintendent of Police,
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Sitapur, reveals that complainant was apprehending some threatening on
01.02.1990 and thus for the security reasons he had requested to
Superintendent of Police, Sitapur, for providing security and thus made a
false story by implicating the accused appellant.
16. PW-3 SI Harinath Pandey was also examined. He had stated that
there was no first information report on 12.01.1990 and there was nothing
that the accused was arrested on 21.01.1990 from Barabanki or there was
nothing like recovery of daughter of the complainant or giving in the
custody of the complainant. He had further stated on oath that first
information report which was given by the complainant was found to be
forged and there was nothing about rape in the first information report or
in the statement of the witnesses. There is statement of Afsarjahan during
investigation, who happened to be wife of the complainant, who had
intimated to the police that the information of kidnapping of her daughter
was given by wife of one Naseer, her neighbour, but she had not been
examined by the prosecution. At one point of time the prosecution says
that the victim was recovered from Barabanki while at another place it is
narrated that she was given in the custody of guardian in the police
station. There is also complaint against the Investigating Officer that the
accused was not arrested on the day of the first information report i.e.
12.01.1990 while the Investigating Officer says that there was no first
information report on 12.01.1990 or there was nothing like recovery of the
daughter of the complainant on 21.01.1990. Since the statement of the
witnesses are self-contradictory and seem to be imaginary, the allegation
for the Investigating Officer that he had made request to the complainant
or his family members not to make any complaint so that he may get
award is not trustworthy. PW-2, the complainant and father of the victim,
who had admitted that during settlement of marriage it was found that the
marriage could not be settled due to the reason that one of the parties
Sheikh and the appellant belonged to Ansari category. Thus, due to their
social problems the marriage could not be settled and that was the reason
the complainant had lodged this false complaint against the accused
appellant.

17. It may well be to recall, at this stage, the 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 to prove the guilt of the accused beyond all doubt rests
on the prosecution and it never shifts.

18. The basic idea behind these principles is that the liberty of an
individual is a most valuable and fundamental right which inheres in him
and it should never be jeopardised unless the court, after bringing its
judicial experience and 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. No doubt in the
present times there has been certain amount of relaxation and latitude in
the manner of proof qua certain type of offence like sexual offence against
females or cruelty to them in the matrimonial home etc. but all the same
the foregoing principles stand unabridged and unscathed like beacon light
for the judicial courts.

19. Now looking on the facts of the case in hand in the light of the
above foregoing principles, I feel that the conviction of the accused is not
sustainable. In fact this Court is constrained to observe that the trial court
has not cared to use his judicial acumen and experience while
appreciating the evidence on record. It is clear that in order to hold a
person guilty of an offence under Section 363 of the Indian Penal Code it
must be proved that the accused played an active part in taking away a
female out of the keeping of her guardian without the consent of the
guardian either prior to, or at the time of her taking away out of such
guardianship by either directly using force or threat against the female or
injecting into her mind some irresistible allurements or temptations which
may impel her to leave or forsake the custody of her guardian.
20. Learned counsel for the appellant has submitted that the victim was
above 16 years while learned counsel for the State has submitted that she
was below 16 years but this is immaterial. Before we assess the relevancy
of the consent of the victim for anything coming within the purview of
offence, this Court has to examine as to whether the accused was
instrumental in kidnapping the minor from lawful guardianship. On the
basis of evidence, as discussed above, I feel that the prosecution has
miserably failed to prove that the accused played any part in the removal
of the victim out of keeping of her lawful guardianship. The victim while in
the witness box had deposed that at the time of the incident i.e. some time
after midnight when she came to answer the nature’s call out of her
house, the accused met her, covered her mouth with cloth or blanket so
that she may not raise any alarm and carried her to other places and
subjected her to forcible sexual intercourse under threat to her life. The
theory, however, appears to be totally imaginary for the reason that sine
bathroom was inside the residence, there was no need to come out of the
house. Secondly, admittedly, it was the month of January when the winter
season was at its peak and it is highly improbable that the accused would
have kept on waiting for the victim outside of her house in the hope that
she might by chance come out to answer nature’s call when he would
carry her to his house. The deposition of PW-1, the victim, that she was
taken from the first floor to ground floor and then to any house in the near
about, that she was not given food for four days, that in the fourth night
she was taken to one of the car and went to Rasauli in district Barabanki,
that she remained there for eight or nine days and made no noise, that
she was not medically examined as her father or she did not desire to be
medically examined, that she was residing on second floor and bathroom
was inside the house and all the neighbours were present in their houses,
that he never committed any bad thing with her as stated in the statement
under Section 161 Cr.P.C., which has been verified at the time of
statement before the Court to be true, that the accused appellant
threatened her father, that another accused was not known to PW-1, the
victim, that she had never seen the present accused appellant also, that
she never visited anywhere with Shoib, the present appellant, that she
never visited to police station or she was never arrested by the police ……
all reveal that the theory of kidnapping or abduction with intention to marry
is false and imaginary and not trustworthy.
21. In light of above facts, the prosecution has failed to prove that the
accused played any active part in taking away the victim out of keeping of
her lawful guardianship and even on the sole testimony of the victim it is
not at all reliable on the facts and in the circumstances of this case.
22. Admittedly the victim was not examined by any Medical Officer and
naturally there is no medical report to ascertain or have the opinion of the
Medical Officer on forcible rape and also to ascertain whether the victim
received any injury on her person. It is to be noted that all the PWs,
except the official witness, are related and interested witnesses. The
prosecution did not examine any independent witness, not even any
neighbour. It was necessary to do so to corroborate the evidence of the
victim that she shouted in the night of incident and her cry for help was
heard by at least some neighbours and search was made by the brothers
of the victim. There is no evidence that the said brothers of the victim tried
to wake up or inform some neighbours and join them in searching or
apprehending the accused whom they met at the courtyard; after all the
alleged incident took place in the village and it was expected that the
villagers, at least the neighbours, would come out at any time if any
commotion is created, particularly during night time. Why the brothers of
the victim did not inform the villagers although they have suspicion over
the presence of the accused in their court-yard in the night time in a
doubtful manner, has not been explained and as such the veracity or
truthfulness of the evidence of prosecution witnesses, is not above any
doubt. The evidence of prosecution witnesses is quite unnatural and
unbelievable. Such evidence cannot lend any corroborative value to the
evidence of the victim and it cannot be a basis for conviction of the
accused.
23. There is inordinate delay in lodging the first information report. The
case is narrated to be an incident of midnight of 12.01.1990 while it was
reported to the Superintendent of Police, Sitapur on 05.02.1990 and on
this application the first information report was lodged on 19.02.1990. No
explanation has been given by the prosecution regarding delay. There was
no hue and cry in the family and neighbours or by reporting the police for
the incident. The statements of the victim and other witnesses reveal that
just after the day of aforesaid incident the victim was sent to Bahraich with
the brother of the complainant and she remained there but due to inimical
relations with the accused for not marrying the daughter, a false report
was lodged in the police station by way of application to Superintendent of
Police, Sitapur after 25 days. It is true that a Court has to take seriously
the cases relating to violence against woman. Simultaneously, the Court
has a duty to guard itself against false charges of rape. The narration of
the prosecution case is full of vital omissions and contradictions and it
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raises strong doubt which over-shadows the genesis of the prosecution
case. In my opinion, it would be unsafe to sustain the conviction in this
case relying upon the testimony of the prosecutrix alone. Dignity of
woman will have to be protected, but without aid of emotion. This is
undoubtedly not a case where the prosecutrix has the last ‘say’.
24. This Court is also not unmindful of the observations made by the
Apex Court in Sadashiv Ramrao Hadbe v. State of Maharashtra
MANU/SC/0607/2006: (2006) 10 SCC 92, wherein it has been observed
that it is true that in a rape case the accused could be convicted on the
sole testimony of the prosecutrix if it is capable of inspiring confidence in
the mind of the Court and if the version given by the prosecutrix is
supported by medical evidence and the whole surrounding circumstances
makes the case set up by the prosecutrix highly probable and believable.
Therein it is also observed that the Court shall be extremely careful in
accepting the sole testimony of the prosecutrix when the entire case is
improbable and unlikely to happen.
25. The improbability factor found in the present case is that the
accused appellant who had a stained relationship with the family of the
complainant would never take any risk by visiting his house in the night
time regularly in the chilled winter only to wait the chance of coming the
victim out of her house. The other improbability factor is that all the
brothers, sisters, mother and father were present in the house in the night
of the incident. There was no reason to come out of the house and even
the incident of kidnapping is happening from the house or just out of the
gate on the second floor and there was no hue and cry by the victim or
none of the family members attended her immediately.
26. Since the prosecutrix avoided medical examination, she could not
be examined medically to obtain a report of the Medical Officer or to
ascertain whether she received any injury on her person due to alleged
rape committed upon her by the appellant. Except her oral evidence, there
is no other medical or other documentary evidence supporting her
allegation. As discussed earlier her evidence has been found as much
artificial as imaginary, which is due to subsisting rivalry between her family
and the accused appellant. The possibility of making false allegation
against the appellant is not unusual and cannot be ruled out. This Court
would definitely sustain the impugned conviction had her evidence been
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found to be natural, trustworthy and inspiring confidence of the Court. The
Apex Court in Narayan v. State of Rajasthan reported in
MANU/SC/7284/2007 : (2007) 6 SCC 465, held that though evidence of
prosecutrix can alone sustain conviction of the accused but if the evidence
is found so artificial that it cannot be accepted, conviction and sentence
imposed upon the accused for offences punishable under Sections 363,
366, 376 and 342 IPC is liable to be set aside. On appreciation of the
evidence on record, particularly the evidence of prosecutrix, whose
evidence has been found artificial, unreliable and inconsistent, which, as
per the settled position of law, cannot be accepted or acted upon for
awarding conviction, I would desist from affirming/upholding the conviction
and sentence awarded by the learned trial Court. I am not satisfied that
the prosecution has been able to prove the charge against the appellant
beyond all reasonable doubt. The convict appellant is entitled to get the
benefit of doubt and acquittal on that score. The impugned conviction and
sentence are hereby quashed and set aside. The appellant is acquitted on
benefit of doubt. The bail bond shall stand discharged. The appellant be
set at liberty forthwith provided his further detention is not required in
connection with any other case. The appeal is allowed. Sent down the
LCRs forthwith.
Order Date :- 11.8.2017
A. Katiyar