Back
2017 Supreme(All) 1948
IN THE HIGH COURT OF ALLAHABAD
OM PRAKASH-VII, J.
KRISHAN KUMAR @ KUKKOO - APPELLANT
Vs.
STATE OF U.P. - RESPONDENT
Criminal Appeal No. 118 of 1989
Decided On : 30-05-2017
For the Appellant : G.C. Saxena, A.M. Tripathi, Amod Tripathi, Santosh Kumar Shukla
The main legal point established in the judgment is the significance of mens-rea and the knowledge of the accused in providing shelter to the victim in determining the offence under Section 368 IPC, as well as the principles of sentencing and proportionality.
Headnote:
Section 368 IPC - Criminal Appeal - 368 IPC - Summary of the acts and sections referenced and discussed by the court: The court discussed the provisions of Section 368 IPC, which deals with the offence of wrongful confinement to extort property, or constrain to an illegal act. The court referred to the law laid down by the Apex Court in Puran Singh Case (supra) to establish the elements required to constitute the offence under Section 368 IPC. The court emphasized the importance of mens-rea and the knowledge of the accused in providing shelter to the victim, and how it influenced the court's decision.
Fact of the Case:
The victim, a minor girl, was kidnapped and confined in the house of the accused. The accused was found guilty of wrongfully concealing and confining the victim, leading to his conviction under Section 368 IPC.
Finding of the Court:
The court found that the prosecution had fully succeeded in proving the charges against the accused beyond reasonable doubt, leading to his conviction under Section 368 IPC.
Issues: The key issues revolved around the knowledge and mens-rea of the accused in providing shelter to the kidnapped victim, as well as the appropriateness of the sentence imposed.
Ratio Decidendi: The court emphasized the importance of mens-rea and the knowledge of the accused in providing shelter to the victim, and how it influenced the court's decision. The court also considered the principles of sentencing and proportionality in determining the appropriate sentence.
Final Decision: The appeal was allowed in part, upholding the conviction of the appellant under Section 368 IPC but altering and reducing the sentence to the imprisonment already undergone.
Om Prakash-VII, J.
The present criminal appeal has been preferred by the accused/appellant against the judgement and order dated 15.12.1988 passed by the VII Additional District & Sessions Judge, Meerut in Session Trial No. 251 of 1986 convicting and sentencing the appellant for the offence punishable under Section 368 IPC for two years rigorous imprisonment.
2. The facts of the case, as unfolded by the informant Prem Singh son of Faqir Chand in the First Information Report (in short 'F.I.R.'), are that the informant was a rickshaw-puller and his wife worked in a school. On 10.12.1985, the informant had gone with his rikshaw and his wife had gone to school. His two daughters, namely, Kamla aged 14 years and Kusum aged 10 years were at the house. At 5.30 P.M. when the complainant came to his house, his younger daughter told him that Ram Bharose and Jai Prakash had taken Kamla at about 2.30 p.m. on the pretext that her father had directed them to take footwear (chappal) for her. The complainant also suspected that Kamal Singh was also having his hand in this occurrence. When the complainant went to enquire about the girl from Kamal Singh, he replied that he did not know anything about her daughter and when the complainant enquired from his father Bhagirath, both his sons beaten their father Bhagirath. These persons had kidnapped his minor daughter by enticing her away from his house.
3. On the basis of the written report (Ext. ka-3), chik First Information Report was registered at Police Station concerned on 10.12.1985 at 10.30 p.m. mentioning all the details as had been described in Ext. Ka-.3. G.D. entry was also made at the same time.
4. Investigation started in the matter. During investigation, Kamla was recovered from the house of the appellant. After completing the investigation, charge-sheet against all the accused was filed. Concerned Magistrate took the cognizance. The case being exclusively triable by sessions court, was committed to the Court of sessions.
5. Accused/appellant appeared and charge under Section 368 IPC was framed. Accused denied the charges framed against him and claimed his trial.
6. Trial proceeded and on behalf of prosecution, four witnesses namely, PW-1 Dr. Vandana Srivastava, who examined the prosecutrix Kamla, PW-2 Kamla, the prosecutrix, PW-3 Prem Singh (complainant) and PW-4 Sub-Inspector R.K. Sharma, the investigating officer, were examined.
7. After closure of prosecution evidence, statement of accused appellant under Section 313 Cr.P.C. was recorded. Accused person in their statement under Section 313 Cr.P.C. denied the entire allegations levelled by the prosecution and stated that he has been falsely implicated due to enmity. Defence has not produced any evidence in support of its case.
8. Having heard the learned counsel for the parties and going through the record, the trial court has found that the prosecution has fully succeeded in bringing home the charges against the accused appellant beyond reasonable doubt and convicted and sentenced the accused appellant, hence this appeal.
9. I have heard S/Shri Santosh Kumar Shukla and Amod Tripathi, learned counsel for the appellant and Shri R.D. Yadav, learned AGA for the State at length, and perused the entire record carefully.
10. Castigating the impugned judgment and order, learned counsel for the appellant has submitted that appellant is innocent and has been falsely implicated in this case. Victim was aged about 18 years. Offence under Section 368 IPC is not attracted in the present matter. No specific role has been assigned to the appellant. There are major contradictions on the material points in the prosecution evidence. If the entire prosecution case is taken to be true, then also victim girl was consenting party. She stayed alongwith the co-accused for a long-time but no complaint was made nor she made effort to get herself free from the clutches of the accused. It was further submitted that the appellant was not aware about the offenc
