Sanjay Kumar vs State of U. P. - 2023 Supreme(All) 813

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 813

IN THE HIGH COURT OF ALLAHABAD
Ram Manohar Narayan Mishra, J.
Sanjay Kumar – Appellant
Versus
State of U.P. – Respondent
Criminal Appeal No. - 3175 of 2017
Decided On : 25-04-2023

Advocates:
Advocate Appeared:
For the Appellant : Rajehs Yadav, Dileep Kumar Singh, Mukhtar Alam, Saquib Mukhtar

Headnote:
Indian Penal Code, 1860 - Sections 363, 366 - Criminal Procedure Code, 1973 - Section 16, 164 - Appeal - Offence of Kidnapping - Criminal appeal been preferred by accused against judgment and order factual matrix case relevant for present appeal is that informant an F.I.R. - Held, Court considered opinion that preponderance of probabilities indicate that victim had voluntarily gone accused appellant and in process accused did not play an active role cannot be set to have been proved against appellant conclusion is reached offence victim has not levelled any allegations of mala fide or sexual intent against accused prosecution failed to prove its case against accused beyond reasonable doubt - Appeal is allowed.

JUDGMENT :

1. Instant criminal appeal under Section 374(2) has been preferred by accused Sanjay Kumar against judgment and order dated 02.06.2017, passed by Addl. District and Sessions Judge, Court No.7, Gorakhpur in S.T. No. 89 of 2016 arising out of Case Crime No. 313 of 2015 under Sections 366 and 363 I.P.C., P.S.-Pipiganj, District-Gorakhpur, whereby the accused appellant have been convicted for charge under Sections 363, 366 I.P.C. and sentenced as under:

i)	under Section 363 I.P.C.,	to undergo 5 years rigorous imprisonment and a fine of Rs. 5,000/- fine;
ii)	under Section 366 I.P.C.,	to undergo 7 years rigorous imprisonment and a fine of Rs. 10,000/- fine;
all the sentences were directed to run concurrently and out of total amount of fine, fifty percent thereof is directed to be paid to the victim as compensation.

2. The factual matrix of the case, which is relevant for present appeal is that informant Shiv Kumar lodged an F.I.R. with P.S. concerned on 03.12.2015 at 06:45 hours, wherein he stated that in the night of 26.11.2015, his minor daughter aged around 15 years was kidnapped by seducing and enticing her by accused Sanjay, who also resides in his ward. When he made a complaint regarding this to his family members, his family members abused and threatened him. The contents of F.I.R. were opened in Report No. 10 at 06:45 hours on 03.12.2015 P.S.-Pipiganj, (exhibit KA -1). The police investigated the case, the victim was recovered by police on 03.12.2015, in the company of accused Sanjay near Boriganj Railway Station Trisection, Pipiganj, accused was also arrested on 03.12.2015 and sent to jail.

3. The victim stated in her statement recorded under Section 164 Cr.P.C. before Magistrate on 11.12.2015 that she is acquainted with accused for past four years and she loved him. On 27.11.2015, he visited her home where she, Sanjay and her younger sister were watching a video cassette of marriage of his sister together. In the meanwhile, her father and aunty appeared and they had seen accused Sanjay there and gave him beating, he also threatened her, therefore, she became scared. On that day, in the evening, she went to the place of a relative of Sanjay along with him. Police caught both of them after three days. The accused did not do any forceful act to her. The medico legal examination of the victim was conducted on 04.12.2015 at 06:20 P.M. which is placed on record as exhibit K-5. In description of the case, the doctor has stated “She has fled away from home alone, not with any boy”. Her hymen was found torn, old and healed. For determination of age, the victim was subjected to radiological examination and C.M.O. in his report dated 07.12.2015, opined that according to X-Ray report and general appearance, he is of the opinion that she was about 16 years old. Exhibit K-13 is a X-Ray report of the victim. In radiological examination of vaginal smear of victim dated 05.15.15, doctor opined that after examination of both slides, no RBCs, spermatozoa or gonococci were seen. In High-School Marksheet, the date of birth of victim, exhibit K-17, is 17.08.2001. Accordingly, the Investigating Officer found that on the date of incident, victim was 14 years 3 months old, the accused was enlarged on bail by orders of this Court dated 06.04.2016. The I.O. after completing investigation filed charge-sheet against accused with prayer to prosecute him for charges under Sections 363, 366 I.P.C. Learned Magistrate committed the case and Sessions Court taken up the case, charges were framed against accused appellant under Sections 363, 366 I.P.C. on 27.08.2015 by Addl. Sessions Judge, Court No.-7, Gorakhpur. The accused denied the charges. During prosecution cross-examination, P.W.-1 Shiv Kumar, the informant who is father of the victim proved written report filed by him on Police Station as exhibit K(