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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Suneet Kumar, Umesh Chandra Sharma, JJ.
Sonu - Appellant
Vs.
State of U.P. - Respondent
Jail Appeal No. - 153 of 2021
Decided On : 31-05-2022
POCSO Act - Kidnapping - Sections 363, 366, 376D, 5/6 - The court discussed the legal provisions of kidnapping, abduction, and rape under the Indian Penal Code and the Protection of Children from Sexual Offences (POCSO) Act. The court referred to the Juvenile Justice Act, 2015, and various Supreme Court cases to establish the age of the victim and the applicability of the relevant sections. The court also highlighted the importance of timely lodging of FIR and the explanation for any delay, citing relevant Supreme Court judgments. The court concluded that the accused was guilty of kidnapping, abduction, and rape, but not gang rape, and modified the conviction under Section 376D IPC and Section 6 POCSO Act to Section 376 IPC and Section 4 of the POCSO Act, sentencing the accused to seven years rigorous imprisonment and a fine of Rs. 50,000.
Fact of the Case:
The victim, a minor, was kidnapped and abducted by the accused, who also subjected her to physical and sexual assault. The prosecution presented evidence including the victim's statement, medical reports, and witness testimonies to establish the guilt of the accused. The accused denied the charges, claiming false implication due to enmity between the informant's family and his maternal uncle.
Finding of the Court:
The court found the accused guilty of kidnapping, abduction, and rape, but not gang rape, based on the evidence presented by the prosecution. The court also considered the age of the victim, the explanation for the delay in lodging the FIR, and the absence of criminal antecedents for the accused. The court modified the conviction under Section 376D IPC and Section 6 POCSO Act to Section 376 IPC and Section 4 of the POCSO Act, sentencing the accused to seven years rigorous imprisonment and a fine of Rs. 50,000.
Issues: The key issues revolved around the age of the victim, the applicability of relevant sections of the IPC and POCSO Act, the explanation for the delay in lodging the FIR, and the guilt of the accused in the absence of criminal antecedents.
Ratio Decidendi: The court applied the legal principles established in the Juvenile Justice Act, 2015, and relevant Supreme Court judgments to determine the age of the victim and the applicability of the relevant sections. The court also emphasized the importance of timely lodging of FIR and cited relevant Supreme Court judgments to support its decision.
Final Decision: The court partly allowed the appeal and partly rejected it. The punishment and sentence awarded by the Lower Court under Section 363, 366 IPC were maintained. The conviction under Section 376D IPC and Section 6 POCSO Act was modified under Section 376 IPC and Section 4 of the POCSO Act, and the accused was sentenced to seven years rigorous imprisonment and a fine of Rs. 50,000. The fine imposed was to be given to the victim as compensation.
JUDGMENT :
Umesh Chandra Sharma, J.
1. The appeal has been preferred against the conviction and sentence of the appellant Sonu S/o Late Phool Chand, under Section 363, 366, 376D I.P.C. & Section 5/6 of POCSO Act in Session Trial No. 8/2018 in Case Crime No. 111/2017, P.S. Kotwali, District Vindhyachal, U.P. By Special Judge POCSO Act/Additional Sessions Judge, Mirzapur on 14.10.2020.
2. The grounds of appeal are that there was no evidence on record to prove the alleged incident. No one had seen Sonu along with the victim on the date and time of incident. Though, it is stated that the victim was kidnapped at about 10:00 A.M from the nearby market place, no eye-witness saw the occurrence in day light makes the allegation improbable. No witness, neither father nor mother of the victim were aware about the date-of-birth of the victim as to whether at the time of occurrence she was minor or not. There was dispute between the father of the victim and the uncle of the appellant. The victim had relations with Dinesh and Sonu. Sonu has helped the victim to get married with Dinesh. Sonu has been made scapegoat in the matter. There are glaring contradiction between the statement and cross-examination of the witnesses P.W.-1, P.W.-2 & P.W.-3. The Trial Judge has not relied upon the medical age already framing mind to convict the appellant. In cross-examination, witness has stated that Sonu had done nothing and had not gone with the victim though at some places, victim has deposed against the appellant. There is no explanation of delay in lodging the F.I.R. after three months from the incident. The victim has stated to the I.O. that she was living in Bahraich with her husband Dinesh. There is no independent eye-witness. P.W.-1 and P.W.-2 have given heresay evidence. The charge is not proved from the evidence of sole witness, victim P.W.-3. Appellant has no previous criminal antecedent, therefore, the appeal be allowed and the conviction and sentence awarded by the learned Trial Court be quashed.
3. In brief, the case of the prosecution is this that informant/plaintiff PW1- Ram Ashrey father of the victim, moved an application for lodging the F.I.R. with the averment that on 27.10.2016, daughter of the informant P.W.- 1 aged about 17 years old left the house at about 10 A.M. for school, appellant-Sonu with two unknown youngsters kidnapped and abducted her daughter. Even after prolong search, he could not find her daughter. He used to talk with his daughter from an unknown mobile no. 9565005779 provided by Sonu. Sonu informed P.W.-1 that on mobile no. 946763015, he will know about his daughter. Through that given mobile number, he contacted his daughter who informed that she was in Jammu & Kashmir.
4. On the basis of written FIR Ex. Ka-1, a case was registered under Section 363 IPC on 12.03.2017, S.I. Bhuval Singh, Virendra Yadav, Krishna Nand Rai, Jai Lal and lastly, S.H.O. Ashok Kumar Singh investigated the matter. The charge-sheet was submitted by the last I.O.. The victim was found in injured condition in a field near pitch road in P.S. Hardi, District Bahraich, U.P., for which another crime no. 0338/2017, under Section 307 IPC was registered on 05.03.2017. That case was transferred to District Mirzapur where investigation was completed against the appellant Sonu and charge-sheet was submitted under Sections 363, 366, 376, 307 IPC and 3,4 POCSO Act. Investigation about rest accused persons remain pending.
5. The accused was charged under the above sections which he denied and sought trial. Prosecution submitted following documentary evidences:-
2. Statement of victim under Section 164 Cr.P.C., Ex. Ka.-2
3. Medical Report Ex. Ka.-3.
4. G.D. regarding institution of case, Ex. Ka.-4.
6. Map of Case Crime No. 338/17, under Section 307 IPC, P.S. Hardi, District Bahraich. Ex-K-5 (Map of this Case Crime No. 3K/10 and chik FIR 3K/2 and also chik 3k/4 and 5 relating Section 307 IPC, P.S. Hardi, District Bahraich, have not been exhi
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