CRLA/59/2019 of DOOTHNATH ALIAS DUDHNATH Vs STATE OF UTTARAKHAND

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Appeal No.59 of 2019

Doothnath Alias Dudhnath

.......Appellant

State of Uttarakhand

..........Respondent

Present:-

Mr. Syed Kashif Jafri, Advocate holding brief of Mr. Alok Dalakoti, Advocate for the appellant.

Mr. Lalit Miglani, A.G.A. assisted by Ms. Sonika Khulbe, Brief Holder for the State.

Hon’ble Ravindra Maithani, J. (Oral)

The present appeal is preferred against the judgment and order dated 10.04.2018, recorded by the court of Special Sessions Judge, Uttarkashi in Special Sessions Trial No. 38 of 2017, State Vs. Dootnath alias Dudhnath. By the impugned judgment and order, the appellant has been convicted under Sections 363, 376 IPC and 3 read with 4 of the

Protection of Children from Sexual Offences Act, 2012 (for short, “the Act”). He has been sentenced under Section 363 IPC and Section 3/4 of the Protection of Children from Sexual Offences Act, 2012 (for short “the Act”) as hereunder:

(i) Under Sections 363, IPC- Three years rigorous imprisonment with fine of Rs. 5,000/-. In default of payment of fine, additional imprisonment for period of six months, and;

(ii) Under Section 3/4 of the Act- seven years rigorous imprisonment with fine of Rs. 10,000/-. In default of payment of fine, additional imprisonment for period of six months.

The prosecution case, briefly stated in as

follows:

The victim was girl aged 14 years and studying in class 10[th] in the year 2017. On 25.07.2017, she left her house at 1:00 P.M. for tuition but did not return. Her father PW1 suspected the appellant as person, who might have taken her away. Therefore, he lodged an FIR on 26.07.2017 at Police Station, Dharasu. Based on it, an FIR under Section 363 IPC was lodged and case registered. It is the prosecution case that on 26.07.2017, the victim

was recovered when she was in the company of appellant at Roorkee. They wanted to leave that place. The victim was medically examined. The Investigating Officer (the IO) took into custody the record pertaining to the date of birth of the victim. In fact, on 26.07.2017, when the victim went along with the appellant, they stayed in hotel at Rishikesh. The records were proved by PW5 Rakesh Kumar, the Manager of the hotel. The IO prepared site plan of the place from where the victim left for tuition; the hotel where they stayed in the night of 25.07.2017; and the place from where they were recovered on 26.07.2017. After investigation, chargesheet under Section 363, 376 IPC and 3/4 of the Act was submitted against the appellant.

3. On 10.08.2017, charge under Sections 363, 376 IPC and 3/4 of the Act was framed against the appellant, to which he denied and claimed trial.

4. In order to prove its case, the prosecution examined eight witnesses, namely, PW1, father of the victim, PW2, the victim, PW3 Dr. Smt. Sudha Singh, who medically examined the victim, PW4 Shankar Datt Ghildiyal, who is the Principal of the school where the victim was studying at the relevant time, PW5 Rakesh

Sharma, the Hotel Manager, PW6 Constable Deepak Singh Rawat, who prepared the chik FIR , PW7 Head Constable Harpal Singh, who is witness to the recovery, PW8 Uttam Ramola, the IO.

5. After examination of the witnesses, the appellant was examined under Section 313 of the Code of Criminal Procedure, 1973 (“the Code”). According to him, he has been falsely implicated and false report was lodged against him.

6. After hearing the parties, by the impugned judgement and order the appellant has been convicted and sentenced, as stated hereinbefore. Aggrieved by it, the instant appeal has been preferred.

7. Heard learned counsel for the parties and perused the records.

8. Learned counsel appearing for the appellant has raised two points in his submission. They are as follows:

(i) The medical evidence does not support the prosecution case. On 27.07.2017, the victim was medically examined by PW3 Dr. Smt. Sudha Singh, but she did not find any sign of force having

been used with the victim and she has observed that the victim was habitual to sexual intercourse. It is argued that it belies the prosecution case, and;

(ii) The victim was not kidnapped by the appellant because it is the victim, who on her own left her house for tuition. She willingly joined the company of the appellant.

9. On the other hand, learned counsel for the State would submit that the victim was minor girl. Her date of birth is 07.02.2003. The victim herself, her father and the Principal of School, have stated her date of birth and proved the school records.

10. Learned State counsel would submit that in her statement given before the Court, the victim has supported the prosecution case and categorically stated, as to how, she left her house and joined the company of the appellant and the appellant forcibly established physical relations with her. Therefore, it is argued that the prosecution has been able to prove its case beyond reasonable doubt. The court below did not commit any error in convicting and sentencing the appellant. There is no reason to make any interference and the present appeal deserves to be dismissed.

11. PW1 is the informant, who is father of the victim. According to him, the date of birth of the victim is 07.02.2003. According to him, on 25.07.2017, the victim had left for tuition but she did not return. This witness enquired from the tuition centre but he was told that the victim did not join the tuition on that date. This witness suspected the role of the appellant. Therefore, he lodged FIR Ex-A1. According to PW1 father of the victim, on 26.07.2017, the victim was recovered from Railway Station, Gangnagar, Roorkee. This witness had identified his daughter. She was with the appellant, when recovered.

12. PW2 is the victim. She has also stated her date of birth as 07.02.2003. According to her, the appellant was her neighbour. On 25.07.2017, the appellant told her that he loves her and their family members would not allow them to continue their relationship. He cannot live without her. According to the victim, they left their house, reached Rishikesh, where they stayed in Rishabh Lodge. It is the appellant who made entry in the lodged register and introduced the victim as his younger sister. PW2, the victim would tell that in the night the appellant told the victim that

he loves her and despite her resistance, the appellant established physical relationship with her. According to this witness, although earlier also, on multiple occasions, the appellant had established physical relations with her. On the next date, i.e. on 26.07.2017, according to PW2 the victim, they left for Roorkee. The appellant had told her that they would go at far place but, meanwhile, they were spotted by the police and taken to Dharasu. The victim has also stated about her medical examination and her statement recorded under Section 164 of the Code.

13. PW3 Dr. Smt. Sudha Singh medically examined the victim on 27.07.2017. She has proved in the medical examination report Ex-A2. According to her, the patient was habitual to sexual intercourse. In fact, she did not find any injury on the person of the appellant.

14. PW4 Shankar Datt Ghildiyal is the Principal of the school where the victim was studying at the relevant time. He appeared in the court along with the original records and proved the transfer certificate of the victim which records her date of birth as 07.02.2003. This witness was not cross examined at all.

15. PW5 Rakesh Sharma is the Manager of Rishabh Lodge where, according to the prosecution, on 25.07.2017, the appellant stayed with the victim, introducing her as his younger sister. According to this witness, on that day, the appellant made entry in the visitors register in his own handwriting and gave his Aadhar Card as identity proof. This witness has proved the extract of the hotel register as Ex-A4 in which the appellant has written his age as 22 years.

16. PW6 Constable Deepak Singh Rawat has proved chik FIR and entry in the general diary of the Police Station.

17. PW7 Head Constable Harpal Singh is the person who had gone to arrest the appellant. According to him, he along with the father of the victim reached at Roorkee where they spotted the appellant and the victim. The appellant was arrested. He proved certain documents prepared by the police then.

18. PW8 S.I. Uttam Ramola conducted the investigation. He prepared site plan of the various places, i.e., the place from where the victim left her house; the lodge where the appellant and the victim

stayed in the night of 25.07.2017 and the place where they were recovered on 26.07.2017. This witness has also proved the charge sheet and other documents. This is the entire evidence.

19. The appellant has been convicted under Sections 363, 376 IPC and Section 3/4 of the Act. Section 363 IPC provides for punishment for kidnapping. It read as hereunder:

“ 363. Punishment for kidnapping.—Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for term which may extend to seven years, and shall also be liable to fine.”

20. Kidnapping, in the cases of minor, is defined under Section 361 IPC. It reads as hereunder:

“361. Kidnapping from lawful

guardianship.—Whoever takes or entices any minor under sixteen years of age if male, or under eighteen years of age if female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation.—The words “lawful guardian” in this section include any person lawfully entrusted with the care or custody of such minor or other person.

Exception.—This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is

committed for an immoral or unlawful purpose.”

21. In order to attract the provision of 363 IPC, first and foremost, it has to be established that the victim girl was below 18 years of age. Similar is the case for attracting the provision of the Act. Therefore, first and foremost, the question of age of the victim needs scrutiny.

22. PW1 father of the victim has categorically stated that the date of birth of the victim was 07.02.2003. In fact, in the FIR itself, it is recorded that the age of the victim was 14 years. The victim has also been categorical with regard to the date of birth. She has stated that her date of birth is 07.03.2003. Apart from it, PW4 Shankar Datt Ghildiyal, the Principal of the school, has also been examined where the victim was studying at the relevant time. He appeared in the court along with all the original documents. He proved the transfer certificate of the victim as Ex-A4. It records 07.02.2003 as the date of birth of the victim.

23. Section 94 of the Juvenile Justice Act (Care and Protection of Children), 2015 (the JJ Act)

makes provision with regard to presumption and determination of age. It is as hereunder:

94. (1) Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

(2) In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining —

(i) the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof; (ii) the birth certificate given by corporation or municipal authority or panchayat;

(iii) and only in the absence of (i) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board: Provided such age determination test conducted on the order of the Committee or the Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be the true age of that person.

24. The above provisions make it clear that in order to determine the age of the child in conflict with law, the date of birth certificate from the school or the matriculation certificate has pre dominance. The manner in which the age of child in conflict with law is determined, in the same manner, the age of the victim may also be determined.

25. In the instant case, it is categorical case of the prosecution that the date of birth of the victim is 07.02.2003. The victim has stated about it. It has been recorded in the FIR that the age of the victim was 14 years when she left her house and her father has also stated about it. In addition to it, the school record supports it. Therefore, this Court is of the view that the prosecution has been able to prove that the date of birth of the victim is 07.02.2003. She left her house on 25.07.2017. It means she was barely 14 years of age when she left her house.

26. It has been argued that the victim had left her house on her own. She willingly joined the company of the appellant. Therefore, no offence under Section 363 IPC is made out.

27. In order to attract the offence of kidnapping from lawful guardianship, it has to be proved and established by the prosecution that the guilty person took or enticed the victim, the words “takes” and “entice” have great significance.

28. These aspects have been discussed by the Supreme Court in the case of Thakorlal D. Vadagama Vs. The State of Gujarat (1973) 2 SCC 413. The Hon’ble Supreme Court observed that “The statutory language suggests that if the minor leaves her parental home, completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in s. 3 6 1, I.P.C. But if the, 'guilty party has laid foundation by inducement, allurement or threat, etc. and if this can be considered to have influenced the minor or weighed: with her in leaving her guardian's custody or keeping and going to the guilty party, then prima facie it would be, difficult for him to plead innocence on the ground that the minor had voluntarily come to him.”

29. In the case of S.Vardarajan Vs. State of Madras AIR 1965 SC 942, the Hon’ble Supreme Court has also discussed the aspect of willingly accompanying by the victim. The Hon’ble Court observed “she willingly accompanied him and the law did not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him. She was not child of tender years who was unable to think for herself but, as already stated, was on the verge of attaining majority and was capable of knowing what was good and what was bad for her. She was no uneducated or unsophisticated village girl but senior college student who had probably all her life lived in modern city and was thus far more capable of thinking for herself and acting on her own than perhaps an unlettered girl hailing from rural area.”

30. This aspect has further been discussed by the Hon’ble Supreme Court in the Case of Anversinh @ Kiransinh Fatesinh (2021) 3 SCC 12. The Hon’ble Supreme Court observed “However, mere recovery of missing minor from the custody of stranger would not ipsofacto establish the offence

of kidnapping. Thus, where the prosecution fails to prove that the incident of removal was committed by or at the instigation of the accused, it would be nearly impossible to bring the guilt home.”

31. Discussing the ratio in the case of S. Vardarajan (supra), the Hon’ble Supreme Court in the case of Anversinh (supra) observed in Para 18 and 19 as hereunder:

“18. The ratio of S. Varadarajan [S. Varadarajan v. State of Madras, (1965) 1 SCR 243 : AIR 1965 SC 942 : (1965) 2 Cri LJ 33] , although attractive at first glance, does little to aid the appellant's case. On facts, the case is distinguishable as it was restricted to an instance of “taking” and not “enticement”. Further, this Court in S. Varadarajan [S. Varadarajan v. State of Madras, (1965) 1 SCR 243 : AIR 1965 SC 942 : (1965) 2 Cri LJ 33] explicitly held that charge of kidnapping would not be made out only in case where minor, with the knowledge and capacity to know the full import of her actions, voluntarily abandons the care of her guardian without any assistance or inducement on the part of the accused. The cited judgment, therefore, cannot be of any assistance without establishing: first, knowledge and capacity with the minor of her actions; second, voluntary abandonment on part of the minor; and third, lack of inducement by the accused.

19. Unfortunately, it has not been the appellant's case that he had no active role to play in the occurrence. Rather the eyewitnesses have testified to the contrary which illustrates how the appellant had drawn the prosecutrix out of the custody of her parents. Even more crucially, there is little to suggest that she was aware of the full purport of her actions or that she possessed the mental acuities and maturity to take care of herself. In addition to being young, the prosecutrix was not much educated. Her support of the prosecution version and

blanket denial of any voluntariness on her part, even if presumed to be under the influence of her parents as claimed by the appellant, at the very least indicates that she had not thought her actions through fully.”

32. The law is well settled. Mere recovery of child from the custody of an accused person will not amount to an offence. The role of an accused has to be seen. It has to be seen as to whether he influenced the choice of the victim leaving her house. The level of understanding or the ability to understand the consequences of the act by the victim are also determining factors.

33. In the instant case, it has already been established and concluded by the victim that the victim was 14 years of age when she left the house. The age of the appellant have certain bearing on this issue. In the chargesheet, the age of the appellant has been written as 21 years but when he was examined under Section 313 of the Code on 12.03.2018, his age is recorded as 18 years.

34. During the course of argument, learned counsel for the appellant has submitted that the appellant does not claim minority or does not claim

that he was below 18 years of age on the date when allegedly the offence took place.

35. PW5 Rakesh Sharma, who is the Manager of Rishabh Lodge has proved the abstract of the register of Rishabh Lodge where on 25.07.2017 the appellant stayed with the victim. It is Ex-A4. He has also stated that the appellant had given his Adhaar Card as his identity proof. The entry in Ex-A4 reveals that, according to the appellant, he was 22 years of age then. The copy of Adhaar Card, which allegedly was given by the appellant, is also on record, though not proved. It records the date of birth of the appellant as 21.01.1993. Without exactly recording the date of birth of the appellant, when the date of birth recorded by the appellant in the Hotel register is taken into consideration, it also reveals that the appellant was 22 years of age at the relevant time. He is resident of Bihar and has been working/living in hilly District of Uttarakhand.

36. PW2 the victim in her cross examination has admitted that she had an acquaintance with the appellant for about one and half years prior to the date when her statement was recorded (her statement was recorded on 06.11.2017). She also tells that

appellant had given her mobile phone. She used to meet the appellant. She also tells that on 25.07.2017, the appellant had informed her telephonically and persuaded her to accompany him. She also tells that they travelled from her place of residence to Rishikesh. They stayed in lodge. She did not raise any alarm. She, in fact, was consenting to join the company of the appellant. She took decision to leave her house. But the circumstances establish that her decision was influenced by the appellant. It is the appellant who wanted to take her away from her family. He wanted to stay with the victim. He was about 22 years of age then. The victim was young girl of 14 years. Therefore, this Court is of the view that the prosecution has, in fact, been able to prove, beyond reasonable doubt that it was the appellant, who enticed and took the victim away from her legal guardians. The prosecution has been able to prove the offence under Section 363 IPC.

37. It has been argued that offence under 376 IPC has not been made because the medical evidence does not support it. It has also been argued that the medical examination report reveals that the victim was habitual to sexual intercourse. But this medical examination report does not belie the

prosecution case. Instead, it supports the prosecution case. The victim has stated that the appellant had established relations with her on multiple occasions. In fact, the victim was in relationship with the appellant. This aspect has been discussed in the impugned judgment quite in detail. The facts and circumstances of this case prove and establish that the victim was consenting but, since she was minor, her consent has little significance.

38. Therefore, this Court is of the view that, in fact, the prosecution has also been able to prove the charge under Section 376 and 3/4 of the Act. The court below has rightly convicted the appellant and sentenced in accordance with law. There is no merit in this appeal and it deserves to be dismissed.

39. The appeal is dismissed.

40. Let the lower court record, along with copy of this judgment be sent back to the court concerned.

Ravi/

(Ravindra Maithani, J.)

27.04.2022