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2017 Supreme(All) 2833
IN THE HIGH COURT OF ALLAHABAD (LUCKNOW BENCH)
ANIL KUMAR SRIVASTAVA-II, J.
SUNAUVVAR - Appellant
Vs.
STATE OF U.P. - Respondent
Criminal Appeal No. 90 of 1997
Decided on : 09-02-2017
For the Appellant :Rishad Murtaza, Ahsan Zaidi, Alok Singh, Ashok Kumar, Lakshman Singh, Mohd. Arif Khan and Shamim Raza, Advocates
For the Respondent:Govt. Advocate
The central legal point established in the judgment is the requirement for the prosecution to prove the victim's age, consent, and the accused's knowledge and involvement in the alleged crime.
Headnote:
Kidnapping - Prosecution of Sunauvvar - Sections 363, 366A, 368, 376 IPC - Saroj Kumari v. State of U.P. 1973(III) SCC 669, Giraftar Alla Bax v. State 1973 CRLJ 12 - The court acquitted Sunauvvar and Lala of the charges under Sections 363, 366, 368, and 376 IPC. The court found that the prosecution failed to prove that the victim was a minor who had been kidnapped and raped without her consent. The court highlighted the inconsistencies in the victim's statements and the lack of evidence to support the prosecution's version.
Fact of the Case:
The case involved the prosecution of Sunauvvar and Lala for kidnapping and rape under Sections 363, 366A, 368, 376 IPC. The victim's father lodged an FIR stating that his daughter was kidnapped by Sunauvvar, niece Kallo, and Faridi. The victim was recovered along with Sunauvvar and Lala from Lucknow. The victim alleged that she was induced to run away with Sunauvvar by Kallo and was raped by Sunauvvar.
Finding of the Court:
The court acquitted Sunauvvar and Lala of the charges under Sections 363, 366, 368, and 376 IPC, citing the lack of evidence to prove the victim was a minor who had been kidnapped and raped without her consent. The court highlighted the inconsistencies in the victim's statements and the lack of evidence to support the prosecution's version.
Issues: The key issues included the age of the victim, her consent in the alleged kidnapping and rape, and the involvement of Lala in the crime.
Ratio Decidendi: The court found that the prosecution failed to prove that the victim was a minor who had been kidnapped and raped without her consent. The court highlighted the inconsistencies in the victim's statements and the lack of evidence to support the prosecution's version.
Final Decision: The court acquitted Sunauvvar and Lala of the charges under Sections 363, 366, 368, and 376 IPC. Their bail bonds were cancelled and sureties discharged.
Anil Kumar Srivastava-II, J.
Heard Sri Rishad Murtaza counsel for accused-Lala and Sri Lakshman Singh learned counsel for the appellant Sunauvvar and learned AGA for the State.
2. Instant appeal has been filed against the judgment and order dated 22.2.1997 passed by learned Special Judge, Unnao in Sessions Trial No.650 of 1994; State v. Sunauvvar and others arising out of Crime No.62 of 1993 under Sections 363, 366A, 368, 376 IPC, relating to Police Station Sohramau, District-Unnao whereby the learned trial court has acquitted the accused Faridi and Kallo and convicted accused Sunauvvar under Section 366 IPC and sentenced to imprisonment for 10 years, under Section 368 IPC and sentenced to imprisonment for 10 years, under Section 376 IPC and sentenced to rigorous imprisonment for 10 years. All the sentences were directed to run concurrently. Accused Sunauvvar was acquitted for an offence punishable under Section 363 IPC. Accused Lala was convicted under Section 368 IPC and sentenced for 10 years imprisonment.
3. According to the prosecution version, the FIR was lodged by complainant Manohar Singh father of the victim on 28.4.1993 stating that on 26.4.1993 his daughter victim 'A' (name of the victim is not being disclosed) at about 4.00 AM went to meet the call of nature. When she did not came back then the complainant inquired about her. On 28.4.1993 in the morning Mahadev and Chheda told him that they have seen his daughter victim 'A' was going with accused Sunauvvar, niece Kallo and Faridi brother of the Sunauvvar going towards Lucknow in the morning at about 4.30 AM. Kallo was a friend of the victim. They used to visit each other place. On the preceding day of the incident, Kallo had called victim to her house.
4. On the basis of written report, FIR under Sections 363, 366 IPC was registered at Case Crime No.62 of 1993 at Police Station Sohramu, District Unnao. Investigation was handed over to S.I. B.R. Singh. During investigation on 7.5.1993 victim was recovered along with the accused Sunauvvar and Lala from Lucknow by pass teraha. Victim was handed over to the complainant. Victim was medically examined on 7.5.1993. Her statement under Section 164 Cr.P.C. was recorded on 11.4.1993 wherein she has stated that she was kidnapped by Sunauvvar and Faridi. Sunauvvar kept her in the house of Lala. Sunauvvar also committed rape upon her. Statement of the witnesses were recorded and after concluding the investigation, Investigating officer submitted a charge-sheet against accused-Sunauvvar, Faridi, Kallo and Lala under Sections 363, 366A, 368, 376 IPC.
5. Learned trial court has framed the charge against Faridi and Kallo under Section 363, 366 IPC, against Lala under Section 368, against Sunauvvar under Sections 363, 366 and 376 IPC.
6. Accused denied the charges and claimed trial.
7. In order to prove its case, prosecution has produced P.W.1 Manohar Singh complainant father of the victim, P.W.2 'A' victim, P.W.3 Mahadeo, P.W.4 Smt. Chandra Rani Singh headmistress Kanya Vidyalay, Goyapur, District Unnao, P.W 5 Dr. Kusum Dubey who has medically examined the victim on 7.5.1993. On internal examination of the victim, old torn and healed hymen was found present. No mark of injury over private part was found. Vagina admitting two fingers easily. Smear taken on two slights and sent for pathological examination. A supplementary report was also given on 21.5.1993 wherein on the basis of X-ray report, she assessed the age of the victim about 17 years. It is also opined that she is habitual to sexual intercourse. No definite opinion about rape could be given.
8. P.W.6 Head Constable Dev Prayag Dwivedi is former witness, P.W.7 S.I. Ram Singh is the investigating officer who has submitted the charge-sheet against the accused.
9. In the statement under Section 313 Cr.P.C. all the accused have denied the allegations levelled against them. Sri Survesh Kumar Judicial Magistrate, Shababad Mathura C.W.1 has proved the statement of the victim record
