# Kallectariya & Anr. (In Jail) v. State of U.P

- **Citation:** (2019) 4 ILRA 412
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-03
- **Case number:** Criminal Appeal No. 792 of 1982
- **Bench:** Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kallectariya-anr-in-jail-v-state-of-u-p-44998
- **Pages:** 11

## Headnote

A. Criminal Law - Indian Penal Code,
1860 - Conviction - Under Sections 363
I.P.C. (Punishment for kidnapping) &
366 I.P.C. (Kidnapping, abducting or
inducing woman to compel her marriage,
etc.) - prosecution has been able to
prove its case to the extent that the
accused appellant along with co-accused
had
taken
the
victim
out
of
the
guardianship of her father - she being
less than 18 years was not competent to
give consent to leave her father's house
4 All. Kallectariya & Anr. Vs. State of U.P.
413
without
permission
of
her
father
-
intention was to commit sexual assault
upon her - ingredients of both the sections
i.e. Sections 363 and 366 I.P.C. satisfied on
the basis of evidence - no error committed
by trial court in holding the accused
appellant guilty under Sections 363 and
366 I.P.C. (Para 28 & 30)

B. Criminal Law - Probation of Offenders
Act, 1958 - Section 4 - Power of the
court to release certain offenders on
probation of good conduct.

Any person found guilty of having committed
an offence not punishable with death or
imprisonment for life and the Court by which
the person is found guilty is of opinion that,
having regard to the circumstances of the case
including the nature of the offence and the
character of the offender, it is expedient to
release him on probation of good conduct,
then, notwithstanding anything contained in
any other law for the time being in force, the
Court may, instead of sentencing him at once
to any punishment direct that he be released
on his entering into a bond, with or without
sureties. (Para 31)

Held: - Judgement of the trial court is upheld -
sentence
awarded
to
the
appellant
maintained-
provision
of
Probation
of
Offenders Act, 1958 should be invoked and,
hence instead of
sending
the
accused
appellant to jail, it is directed that he shall be
released on probation. (Para 33)

Criminal Appeal dismissed. (E-7)

List of cases cited: -

## Text

412 INDIAN LAW REPORTS ALLAHABAD SERIES
affirmative, the High Court shall be well
within its jurisdiction to quash the
criminal proceeding."
The Court in
Gian Singh case was categorical that in
respect of serious offences or other
offences of mental depravity or offence of
merely dacoity under special statute, like
the Prevention of Corruption Act or the
offences committed by Public Servant
while working in that capacity. The mere
settlement between the parties would not
be a ground to quash the proceedings by
the High Court and inasmuch as
settlement of such heinous crime cannot
have imprimatur of the Court."

13. Bearing in mind the above facts
and circumstances and on perusal of the
charge sheet material, though the offences
are punishable under Section 3(1)(X) of
SC & ST Act, the said offences are noncompoundable in nature. But as could be
seen from the records, the parties have
compromised
the
matter
amicably.
Therefore, in my opinion, if the said
compromise is allowed by keeping in
view the above said decision endorsed,
the parties can lead a cordial life
hereinafter. The said alleged offences are
not
punishable
with
death
or
imprisonment for life and both the
complainants
and
the
accused
are
intending
to
join
their
hands
and
compound the offence and no injuries
have also been caused to the body of the
complainant.

14. Therefore, keeping in view the
above said facts and circumstances, I am
of the opinion that the instant criminal
appeal is allowed.

15. For the reasons stated above and
the fact that the incident took place on
12.07.1995 and more than 25 years have
lapsed, the sentenced awarded by the trial
court under Section 3(1)(X) of the SC &
ST Act is quashed.

16. Appellants are on bail. They
need not surrender, in case they are not
wanted in any other case. Their bail bonds
are
hereby
cancelled.
Sureties
are
discharged from their liability.

17. Record of the lower court, if
summoned, shall be remitted back to the
court concerned forthwith along with the
copy of this order.
----------
(2019)12 ILR A412

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.12.2019

BEFORE
THE HON'BLE DINESH KUMAR SINGH-I, J.

Criminal Appeal No. 792 of 1982

Kallectariya & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Keshav Sahai, Sri Brijesh Sahai, Ms. Rashmi
Srivastava (A.C.), Sri Sunil Kumar Yadav.

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Indian Penal Code,
1860 - Conviction - Under Sections 363
I.P.C. (Punishment for kidnapping) &
366 I.P.C. (Kidnapping, abducting or
inducing woman to compel her marriage,
etc.) - prosecution has been able to
prove its case to the extent that the
accused appellant along with co-accused
had
taken
the
victim
out
of
the
guardianship of her father - she being
less than 18 years was not competent to
give consent to leave her father's house
4 All. Kallectariya & Anr. Vs. State of U.P.
413
without
permission
of
her
father
-
intention was to commit sexual assault
upon her - ingredients of both the sections
i.e. Sections 363 and 366 I.P.C. satisfied on
the basis of evidence - no error committed
by trial court in holding the accused
appellant guilty under Sections 363 and
366 I.P.C. (Para 28 & 30)

B. Criminal Law - Probation of Offenders
Act, 1958 - Section 4 - Power of the
court to release certain offenders on
probation of good conduct.

Any person found guilty of having committed
an offence not punishable with death or
imprisonment for life and the Court by which
the person is found guilty is of opinion that,
having regard to the circumstances of the case
including the nature of the offence and the
character of the offender, it is expedient to
release him on probation of good conduct,
then, notwithstanding anything contained in
any other law for the time being in force, the
Court may, instead of sentencing him at once
to any punishment direct that he be released
on his entering into a bond, with or without
sureties. (Para 31)

Held: - Judgement of the trial court is upheld -
sentence
awarded
to
the
appellant
maintained-
provision
of
Probation
of
Offenders Act, 1958 should be invoked and,
hence instead of
sending
the
accused
appellant to jail, it is directed that he shall be
released on probation. (Para 33)

Criminal Appeal dismissed. (E-7)

List of cases cited: -

(Delivered by Hon'ble Dinesh Kumar
Singh-I, J.)

1. Heard Ms. Rashmi Srivastava,
learned Amicus Curiae for the appellant
and Sri B.A. Khan, learned A.G.A. for the
State.

2. This Appeal has been filed by the
appellants, Kalletariya and Bhola against
the judgement and order dated 12.03.1982
passed by Additional Sessions Judge XI,
Agra in S.T. No. 404 of 1979 convicting
the appellants under Sections 363, 366
I.P.C. and sentencing them each to
undergo three years R.I. for each offence
and also to pay a fine of Rs. 500/- for
each offence and in default of payment,
the appellants have further been directed
to undergo R.I. for three months and both
the
sentences
are
directed
to
run
concurrently.

3. Out of the two appellants,
Kalletariya and Bhola, Bhola has expired
and his appeal has been abated vide this
Court's order dated 5.01.2019, therefore
before this Court, Appeal of Kalletariya
remains which is being taken up.

4. As per prosecution version as
narrated
in
F.I.R.,
the
victim/first
informant, Vidya aged about 16 years was
living with her father, Dhanvaj under his
guardianship in village Ram Nagariya,
P.S. Jaitpur, District Agra who was earlier
married to one Karua. She stayed in her
matrimonial home only for four to five
days, thereafter she returned to her
father's house and was living there since
then continuously. Her Gauna had not
taken place. The accused, Kalletariya was
a resident of village, Nagaria, P.S.
Pattora, District Agra who was jeth of the
victim and at the time of occurrence, he
used to work at the place of Village
Pradhan, Dhandhu and used to often visit
the house of victim and the accused
appellant no. 2, Bhola (deceased) was his
companion. On 10.01.1978, at about 8:30
a.m. when she had gone to ease herself
out, both the appellants had met her and
gave her temptation that they would
provide her good clothes and jewellery
and thus, in this way they beguiled her.
414 INDIAN LAW REPORTS ALLAHABAD SERIES
On
their
said
promise,
the
victim
accompanied them whereafter the appellant
along with co-accused took her to sookhatal
where in the field of arhar, at the point of
knife and giving her threat to kill, she was
forcibly raped by both of them, thereafter
appellants took her to Mauran where she was
kept in the house of Bhola for about two and
a half hours and from there, appellant along
with co-accused took her to Kori Kuan and
from there, she was taken in a bus to Etawah.
When the said bus stopped at Oodi Mod,
there, constables and an inspector came,
whom she narrated the entire story and then
both the appellants were arrested by police,
thereafter the said police personnel had
brought driver, conductor, Gambhir Singh
and Ram Autar respectively along with
informant to P.S. Badhpura where the victim
narrated the entire story and on her oral
statement, a report was lodged on 10.01.1978
at 6:30 p.m. at P.S. Badhpura, District
Etawah on the basis of which chick F.I.R.,
Exhibit Ka-1 and G.D., Exhibit Ka-2 were
prepared, thereafter police also took into
possession victim's petticoat and the underwear of Kalletariya, recovery memo of
which is mentioned as Exhibit Ka-3. On the
next day, i.e. on 11.01.1978 at about 6:00
p.m., medical examination of the victim was
conducted by Dr. S. Bhatiya at Agra and
medical examination report, Exhibit Ka-4
was prepared by her. Thereafter police
brought the accused from Badhpura to P.S.
Jaitpur and G.D., Exhibit-9 was prepared.
The investigation of this case was assigned to
I.O. who prepared site-plan as Exhibit Ka-5
and Exhibit Ka-6 and recorded statements of
other witnesses and submitted charge-sheet,
Exhibit Ka-8 against the appellants under
Section 363, 366, 368 and 376 I.P.C.

5. Against the accused appellant,
Kalletariya, charges under Sections 363,
366 and 376 I.P.C. were framed to which
he pleaded not guilty and claimed to be
tried.

6. From the side of prosecution, as
many as seven witnesses have been
examined. P.W. 1, Vasdev Singh is a
witness of fact, P.W. 2, Constable Girish
Chand of P.S. Badhpura has proved
F.I.R., Exhibit Ka-1, G.D., Exhibit Ka-2,
Recovery Memo, Exhibit Ka-3 and also
Material Exhibits, Petticoat and underwear, Material Exhibit-1 and Material
Exhibit-2. P.W. 3 is Dr. S. Bhatiya who
conducted the medical examination of the
victim
and
has
proved
medical
examination report, Exhibit Ka-4. The
victim herself was examined as P.W.4.
S.I., Sri Ratan Lal who has investigated
the case was examined as P.W.5 and has
proved site-plan, Exhibit Ka-5 to Exhibit
Ka-7 and also charge-sheet, Exhibit Ka-8.
Bharat Kishore, P.W. 6 was posted at
P.S., Badhpura, Etawah as a constable and
had come to the P.S. Jaitpur along with
accused with other papers, has been
examined. P.W. 7 is Head-Constable,
Udal Singh who was posted at P.S. Jaitpur
as Head Moharrir and has proved G.D. as
Exhibit Ka-9.

7. Thereafter prosecution evidence
was closed and statement of accused was
recorded under Section 313 Cr.P.C. in
which he has stated that he was falsely
implicated in this case. He lived in
village, Nagaria, District Etawah with his
sister and he did not make frequent visit
to the house of victim. The victim was
married to his cousin brother. He had not
abducted or kidnapped her nor did he
commit any rape upon her. He was going
from Vahvah to Chamarpura in Etawah in
his relationship and husband of the
victim, Kalua started having quarrel with
him at Oodi Mod and because of that, the
4 All. Kallectariya & Anr. Vs. State of U.P.
415
police had arrested and challaned him.
There was an old enmity between him and
Kalua and both of them did not visit each
other's house. Kalua was also sitting in the
same bus in which the victim was sitting
and there, both of them had a quarrel and
because of enmity with Kalua, the
appellant has been falsely implicated in
this case. In defence, one witness, Puttu
Singh was examined as D.W.-1.

8. Learned Amicus Curiae for the
appellant has argued that appellant was
falsely implicated in this case. There is no
evidence against him on record and yet,
trial court has proceeded to convict him
and, accordingly, the judgement needs to
be set-aside. If the accused is found to be
guilty, he should be given benefit of
Probation of Offenders Act, 1958 and be
released on probation.

9. In this case, the most important
witness is the victim herself who has been
examined as P.W. 4, therefore her
testimony has to be scrutinized very
minutely and cautiously. She has stated
that she was living with her father at Ram
Nagaria, P.S Jaitpur and the accused
appellant, Kalletariya was employed by
the village Pradhan of the said village,
Dhandhu and the said accused frequently
came to the house of victim. The said
accused was her jeth. On the date of
occurrence at about 8.30 a.m., when she
had gone to attend the nature's call,
accused appellant and other co-accused
had met her and both of them had given
her temptation that they would provide
her good clothes and jewellery and that
she
would be
married to accused
appellant, Kalletariya and at this, she
proceeded with them and thereafter they
had taken her to sookhatal and at the point
of knife, she was raped by them in the
field of arhar against her wish, thereafter
the accused had taken her to village,
Mauran in the house of Bhola and
remained there for two and a half hours
and from there, she was taken to Kori
Kuan and from there, she was taken to
Etawah by bus. When the said bus
stopped at Oodi Mod, she saw policemen
there, after seeing them, she raised an
alarm and, thereafter she revealed all the
details to them pursuant to which, the
appellants were arrested and were taken to
P.S. Badhpura where the victim lodged a
report and, thereafter she was taken to
P.S. Jaitpur along with accused.

10. In cross-examination, several
questions were put to her which were
superfluous such as when she was going
for easing herself out; whether she had
any 'lota' regarding which she had stated
that the accused had got the said lota
thrown away but when asked as to why
the same was not written in F.I.R., no
cogent reply could be given by her but
such kind of minor and insignificant
questions and their answers would not
impact the case adversely. She further
stated in her cross-examination that she
was given temptation of good jewellery
and good clothes by the appellant and she
fell prey to the same because of
immaturity and proceeded with the
accused. Several questions were also
asked with respect to the time as to when
she reached Oodi Mod and some
discrepancies have been noticed in reply
to the same and it was argued that if her
testimony be taken into consideration in
totality, the hours which she is stated to
have consumed in travelling from one
place to another before reaching the Oodi
Mod by 5:00 p.m., the same would not
bear out to be true, therefore her statement
should not be believed. But it has also
416 INDIAN LAW REPORTS ALLAHABAD SERIES
come on record that she is an illiterate
lady, hence, such kind of discrepancies
for difference in time may be very natural
and on this count alone, her statement
cannot
be
disbelieved.
One
more
important aspect regarding which she was
cross-examined was the knife which she
is said to have been shown at the time of
commission of offence, the same was not
found to have been entered in police
record as there was no recovery memo of
the
same,
therefore,
it
cannot
be
concluded that she was taken away from
her house under threat and later on rape
was committed upon her by showing her
knife and she had gone out of her own
free will with the accused. The said
argument also does not stand good
because if the said knife was not taken
into possession by the I.O. that would be
taken as fault on the part of I.O. and not
on the part of victim. As regards her
consent being there in going with the
accused, the same cannot be taken as free
consent because in F.I.R., she has stated
herself to be 16 years of age on the date of
occurrence and in statement of P.W. 3,
Dr. S. Bhatiya, in elbow joint of the
victim, Epiphysis was found fused in
metaphysic and in wrist joint, Epiphysis
with Metaphysic was not found fused
completely and on that basis, she had
opined that her age could not be 19 years
because such fusion takes place at the age
of 18 years and in the case at hand when
in the
wrist joint, Epiphysis
with
Metaphysic
was
not
found
fused
completely that would mean that she was
less
than
18
years,
therefore,
the
prosecution version that the victim was
minor at the date of occurrence, so could
not give consent to accompany the
accused appellant has substance and when
she was tempted to accompany the
accused that would mean that she was
taken away by the accused appellant
without her consent.

11. Next important statement is that
of P.W. 1, S.I. Vasdev Singh who has
stated in his examination-in-chief that on
10.01.1978, he was posted at chauki, Oodi
Mod, P.S. Badhpura, District Etawah as
In-charge of the chauki. On the said date
at about 5.00 p.m., one bus was standing
in front of the said chauki and he heard a
sound 'bachao' of a girl, on which he
along
with
Constables
Ashok
and
Indradev reached the bus stand and
enquired from the said girl as to what
happened then she revealed that these
accused i.e. Kalletariya and Bhola had
beguiled her away at about 8:30 O' clock
that they would provide her ornaments
and good clothes and was being taken
away with a view to marrying her. They
had committed rape upon her near
sookhatal in the village in the field of
arhar and, thereafter she was taken to
village, Mauran at the place of Bhola
where she was kept for 2-3 hours and
from there, she was brought to Kori Kuan
and after making her aboard the bus, she
was taken to Etawah. The said statement
was made by the victim in presence of
Ram Autar and one another, thereafter
after arresting the said accused persons,
he had taken them to P.S., Badhpura,
District Etawah where the report of the
victim/informant was lodged.

12. In cross-examination, this
witness has stated that there were few
shops situated near the bus stand and
several people had come there during the
time when the victim narrated her version
but he did not make them witnesses in this
case. The said witnesses were not resident
of Oodi Mod but are of the villages which
are located nearby. In the said bus, about
4 All. Kallectariya & Anr. Vs. State of U.P.
417
30-35 passengers were aboard. Several
other questions were put to him with respect
to the direction in which the bus was facing
etc. but they are not very relevant.

13. In cross-examination, nothing
such has emerged which would make his
testimony/examination-in-chief
to
be
impeachable and his statement proves this
much that the victim had cried aloud at
Oodi Mod, hearing which, this witness
had reached on the spot along with other
police personnel and she was being
accompanied by the accused appellant
and other co-accused in the said bus.

14. Constable, Girish Chandra
(P.W.2) is a formal witness. He has
proved only F.I.R., Exhibit Ka-1 and the
G.D. of Registration of case, Exhibit Ka2. This witness was also recalled on
22.09.1981 and has proved the material
Exhibits 1 and 2 i.e. Petticoat of the
victim and under-wear of the accused.

15. Dr. S. Bhatiya has been examined
as P.W.3 who has stated in examination-inchief that on 11.1.1978 at about 6.00 p.m.,
the informant/victim, Vidya was brought
before her for being medically examined.
She did not find any external injury on her
body. Hymen was found torn, old and
healed. No spermatozoa was found. On the
basis of x-ray of elbow joint, Epiphysis was
found fused in metaphysic and in wrist joint,
Epiphysis with Metaphysic was not found
fused completely and it has been expressed
that no opinion could be given with regard to
rape as she was used to sexual intercourse.
X-ray had shown her age above 16 years but
below 18 years. She has proved her medical
examination report as Exhibit Ka-4.

16. P.W.3 has been cross-examined
at length and nothing such has come in
her cross-examination which would create
any doubt about truthfulness of her
testimony and she has emphatically
opined in cross-examination that the age
of the victim/informant was 16-18 years
only and she could not be 19 years' old,
therefore, this witness has also clinchingly
given evidence to the effect that victim
was less than 18 years on the date of
occurrence, therefore she could not be
taken to be a consenting party for having
been allowed to have sexual intercourse.

17. P.W.5, S.I. Ratan Lal who has
conducted the investigation has stated in
examination-in-chief that on 10.01.1978
when he was posted at P.S. Jaitpur, he
was assigned investigation of this case.
On 11.01.1978, he has taken statement of
informant/victim
(Vidya)
and
on
19.01.1978 at her instance, he had gone to
village, Ram Nagaria and investigated the
place of occurrence from where the victim
was said to have been taken away and
prepared the site-plan of the said place
which is Exhibit Ka-5. In the site-plan by
letter 'A' is shown the place where the
victim had gone for easing herself out,
thereafter she had also shown him the
place where rape was committed upon her
and he prepared the site-plan of the same
which is Exhibit Ka-6 in which by letter
'A' is shown the place where the said
occurrence happened in the field of arhar
of Raghuraj Singh. On the same day, he
came to village of accused, Bhola and at
the instance of victim, he prepared the
site-plan of the place where she was kept
by the accused which is Exhibit Ka-7,
thereafter he went to P.S. Badhpura and
interrogated S.I., Vasdev Singh of police
chauki, Oodi Mod, P.S. Badhpura,
District
Etawah
and
recorded
his
statement
and
statement
of
other
witnesses i.e. Ram Autar Singh and
418 INDIAN LAW REPORTS ALLAHABAD SERIES
Gambhir Singh. On 6.02.1978, after
having concluded the investigation, he has
submitted the charge-sheet, Exhibit Ka-8.

18. In cross-examination, this
witness has stated that the place from
where the victim was abducted was about
one and half furlong away from Ram
Nagaria. The distance from Nagaria to the
field of arhar in sookhatal would be
around 5-6 kms. From village, Mauran to
sookhatal, the distance was about two and
half kms. Mauran to Kori Kuan, the
distance was about 1 1/2 to 2 kms. The
distance from Kori Kuan to Oodi Mod, he
does not recollect. In the field of pulses
(arhar), the crop would be of a height of a
man. He had found the crop of pulses in
bent condition but has not shown them
that way. In village, Mauran, he did not
meet Natthu Singh, Baldev and Sukhram
but
had
interrogated
others
which
included Naresh Singh and Babu Singh
but they were not made witnesses in this
case. Further he has stated that on the next
day of occurrence, he had taken the victim
to the field of pulses and village of Bhola.
The victim, Vidya had not disclosed to
him that in the bus, the accused had
shown her knife nor had she told him
about knife being recovered from them.
During investigation, it had not come in
his knowledge that from both the accused,
knife was recovered. At Jaitpur police
station, the victim, Vidya has not lodged
any report. From P.S., Badhpura to P.S.
Jaitpur, victim had come in the night at
about 10.00 p.m. on 10.01.1978, entry
regarding which is made in G.D. No. 41.
Further he has stated that he had not
interrogated any of the shop-keepers who
were located near Oodi Mod. Gambhir
Singh and Ram Autar told him that they
were in the bus. Bus number was not
mentioned in the report of P.S. Badhpura
nor the same was mentioned in the
statement of witness under Section 161
Cr.P.C. The name of the bus driver was
Munna Lal and that of conductor was
Raja Ram. He has recorded statement of
both of them and has denied that he has
submitted false charge-sheet against the
appellants.

19. From the statement of this
witness narrated above, nothing such has
come to light which could cast any doubt
in respect of truthfulness of his statement
in examination-in-chief and this witness
has clearly proved that a fair investigation
was made by him and has prepared not
only one but three site-plans of each place
i.e. place from where the victim was said
to have been taken away by the accused
appellant and the place where rape was
committed upon her and the place where
she was kept for few hours in the house of
co-accused appellant. The only thing that
would create doubt in the mind was about
the fact that the knife which was stated by
the victim to have been used by the
accused appellants to threaten her and by
showing the same, she was said to have
been raped, the same fact was not stated
by the victim to the I.O. that such a knife
was used by the accused persons and in
this regard, there is contradiction in the
statement of victim because in her
statement before court, she has stated that
she had revealed it to the I.O. that such a
knife was used by the accused persons at
the point of which she was raped but I do
not find such contradiction to be minor
contradiction
with
regard
to
the
happening of occurrence with the victim.

20. One Bharat Kishore Singh has
been examined as P.W. 6 who was
Constable
at
P.S.,
Badhpura
on
10.01.1978 and has stated in examination-
4 All. Kallectariya & Anr. Vs. State of U.P.
419
in-chief that on the same day, in the
evening at about 6:30 p.m., he along with
other constable, Hari Kishan had taken
chick, G.D., recovery-memo and the
sample-seal etc. to the P.S. Jaitpur for
which he had departed from there at about
22:00 hours and these articles were
deposited at P.S. Jaitpur. He is a formal
witness, therefore, his statement does not
require to be analysed in depth.

21. Constable Udal Singh has been
examined as P.W. 7 who has stated that on
10.01.1978, he was posted at P.S., Jaitpur
and on the same day in the night at about
10:00 P.M., Constable Bharat Kishore
Singh (P.W. 6) and Hari Kishore had come
to his P.S. along with victim and two sealed
bundle, copy of F.I.R. and G.D. etc., entry
regarding which was made at G.D. no. 41
dated 10.01.1978 by him which is Exhibit
Ka-9. This witness is also a formal witness
and his testimony also does not require to be
discussed at length.

22. Before analysing said evidence
and to see whether offence under the
above-mentioned sections are made out or
not, it would be appropriate to refer here
necessary ingredients of those offences.

23. For offence under Section 363
I.P.C., following ingredients are required
to be fulfilled:-

"(i) That the accused did:

(a)
Forceful
compulsion
or
inducement by deceitful means;

(b) The object of such
compulsion or inducement must be the
going of a person from any place;

(ii) That such kidnapping of any
person was done from India or from the
lawful guardianship."

24. As regards offence under
Section 366 I.P.C., following ingredients
are required to be fulfilled:

"(i) Kidnapping or abducting of
any woman;

(ii)
Such
kidnapping
or
abducting must be-

(i) with intent that she may
be compelled or knowing it to be likely
that she will be compelled to marry any
person against her will; or

(ii) in order that she may
be forced or seduced to illicit intercourse,
or knowing it to be likely that she will be
forced or seduced to illicit intercourse; or

(iii) by means of criminal
intimidation or otherwise by inducing any
woman to go from any place with intent
that she may be, or knowing that she will
be,
forced
or
seduced
to
illicit
intercourse.

It is immaterial whether the
woman kidnapped is a married woman or
not. "

25. Now in the light of above
ingredients, I find in this case according
to the prosecution version that the victim
(P.W.4) was beguiled away by the
accused appellant, Kalletariya along with
co-accused (Bhola) on the date of
occurrence at about 8:30 p.m. when she
had gone for easing herself out by telling
her that she would be provided good
clothes and ornaments and that she would
be
married
to
accused
appellant,
Kalletariya. When she proceeded little
ahead of Kori Kuan towards sookhatal,
these accused had shown her knife and by
giving her threat to kill, they had forcibly
taken her to the field of pulses where she
was raped and, thereafter from the Kori
Kuan, she was taken to the village of
Bhola where she was kept for two to three
420 INDIAN LAW REPORTS ALLAHABAD SERIES
hours and, thereafter both the appellants had
taken her to Etawah by motor. At about
5:00 p.m. when the bus stopped at Oodi
Mod, the victim cried loudly to call the
policemen who were standing there and told
them the entire occurrence whereafter both
the appellants were arrested by the
policemen and were brought to the P.S. The
statement of the victim in support of the
prosecution version is given in examinationin-chief and in cross-examination as well,
she has stood her ground that she was taken
away being beguiled by these appellants
and subsequently was raped at the point of
knife. The Doctor (P.W. 3) has stated that
she did not find any injuries upon the body
of the victim and could not express any
definite opinion of rape because the victim
was used to sexual intercourse but she did
say that the age of the victim was between
16-18 years and certainly not 19 years.

26. The trial court has not found the
case of rape proved because it has written
its finding that if two men would commit
rape upon the victim, certainly some
injuries would have been caused to the
victim and the place where the said
incident is said to have taken place, crop
etc. would have been found crushed under
the weight but such a case was not found
by the trial court because of which it has
given benefit of doubt to the appellants
with respect to the offence of rape being
committed by the appellants.

27. The said finding need not to be
disturbed because the conviction is made
under Section 363 and 366 I.P.C. only,
hence I uphold the said finding of the trial
court for the reasons given by it.

28. As regards the offence under
Sections 363, 366 I.P.C. is concerned, it is
apparent that the ingredients mentioned
above of these two sections appear to be
clearly made out on the basis of testimony
of the victim (P.W.4) as well as of P.W. 1
and the corroboration of the same by the
testimonies of P.W. 3 (doctor) and I.O.
(P.W.5). The trial court has also written a
finding that because the victim was less
than 18 years, she was not competent to
give consent to have sexual intercourse
with her and her age was found to be
proved by the statement of the P.W. 3
who had examined her medically and on
the basis of x-ray report, P.W. 2 had
opined that she was less than 18 years,
therefore, it was held by the trial court
that she could not give consent for being
taken away by the accused appellants in
order to be provided jewellery, clothes
and for the purposes of marrying one of
the
appellants
from
out
of
the
guardianship of her father where she was
residing after her marriage away from her
husband. It is also mentioned by the trial
court that the evidence which has been
adduced from the side of defence of
D.W.1, Puttu Singh was not trust-worthy
and the same has been discarded. This
witness has stated that he was also
travelling by the same bus in which the
victim was travelling with one man and in
the said bus, the said man had a quarrel
with the accused appellant, Kallectaria
and, thereafter the police had forcibly deboarded them from the said bus along
with victim.

29. In cross-examination, this
witness could not give any detail as to
what led to the dispute between them and
has
admitted
that
it
was
accused
appellant, Kallectaria who had brought
him to court for deposition. He did not
know the said accused from before and
about the fact that who was that man who
was accompanying the victim, he could
4 All. Kallectariya & Anr. Vs. State of U.P.
421
not throw light upon it. The defence
version is that in the said bus, husband of
the victim i.e. Karua was also travelling
and with him, the accused had picked up
quarrel. The victim was sitting in the said
bus but he did not know where the Karua
was going with Vidya. The said defence
as well as the effort of the defence side to
prove their version by getting examined,
D.W. 1, Puttu Singh does not appear to be
believable because it is a case of the
prosecution that the victim was living
away from her husband under the
protection/guardianship of her father.
There was no occasion for the husband of
the victim accompanying her in bus and
the accused appellants picking up a row
with him. It appears to be story concocted
by the defence side. The trial court has
rightly held the statement of D.W.1 to be
untrustworthy and this Court concurs with
the opinion of trial court in this regard.

30. It is apparent from the testimony
of the above cited witnesses that the
version of P.W. 4 i.e. victim gets support
from the version of P.W. 1 that he had
found the P.W.4 crying aloud at Oodi
Mod, hearing which he had approached
the victim and when she narrated as to
how she was forcibly taken away by the
appellants, the accused appellants were
arrested and taken to P.S. and thereafter,
F.I.R. was lodged, therefore, I find that
the prosecution side has been able to
prove its case to the extent that the
accused appellant along with co-accused
had taken the victim, Vidya out of the
guardianship of her father and she being
less than 18 years was not competent to
even give consent to leave her father's
house without permission of her father
and the intention certainly was to commit
sexual assault upon her and, therefore,
ingredients of both the sections i.e.
Sections 363 and 366 I.P.C. appeared to
be satisfied on the basis of evidence and
trial court does not appear to have
committed any error in holding the
accused appellant guilty under Sections
363 and 366 I.P.C.

31. Section 4 of Probation of
Offenders Act, 1958 says that if any
person
is
found
guilty
of
having
committed an offence not punishable with
death or imprisonment for life and the
Court by which the person is found guilty
is of opinion that, having regard to the
circumstances of the case including the
nature of the offence and the character of
the offender, it is expedient to release him
on probation of good conduct, then,
notwithstanding anything contained in
any other law for the time being in force,
the Court may, instead of sentencing him
at once to any punishment direct that he
be released on his entering into a bond,
with or without sureties, to appear and
receive sentence when called upon during
such period, not exceeding three years, as
the Court may direct, and in the meantime
to keep the peace and be of good
behaviour.

32. Looking to the fact that on the
date of recording of statement of accused
under Section 313 Cr.P.C. i.e. on
24.02.1982, the accused appellant was 22
years' old, therefore, by now, he must be
more than 59 years old person which by
any standard would be considered to be
old at this distant point of time and since
it is being found that co-accused had
already died, it is appearing to be very
inhuman to send the appellant, Kalletariya
to jail to serve out the sentence awarded
by the trial court of three years
422 INDIAN LAW REPORTS ALLAHABAD SERIES
particularly looking to the fact that he was
not found to have committed offence of
rape and only offence which has been
found proved is that of Section 363 and
366 I.P.C. which is punishable up to ten
years only and with fine.

33. In view of the above, the
judgement of the trial court is upheld and
the sentence awarded to the appellant is
maintained, however, looking to the
special circumstance narrated above, I
find that this would be suitable case in
which
provision
of
Probation
of
Offenders Act, 1958 should be invoked
and, hence instead of sending the accused
appellant to jail, it is directed that he shall
be released on probation for a period of
three years on his furnishing two sureties
and personal bond of same amount to the
satisfaction of the trial court with the
direction that he shall appear before the
court as and when he is called upon to
receive sentence. During this period, he
shall maintain peace and shall be of good
behaviour.

34. The appeal is, accordingly
dismissed.

35. Appellant is on bail. He shall
appear before the trial court at the earliest
within a period of one month and shall fill
up bonds as directed, in case of default, he
shall serve out the remaining sentence.

36. Copy of this judgement be
transmitted back to the trial court along
with lower court record at the earliest by
office for strict compliance of the
judgement forthwith.

37. Learned Amicus Curiae has
assisted this Court for deciding this
Appeal, hence for the said effort on her
part, it is deemed proper that she should
be paid Rs. 5,000/- as remuneration in
accordance with rules.
----------
(2019)12 ILR A422

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.11.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Criminal Appeal No. 811 of 1996

Rajwa & Ors. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri A.K. Singh, Sri Apul Misra, Sri Nand
Kishor Mishra, Sri Raja Ram Kushwaha,
Ms. Shilpa Ahuja

Counsel for the Opposite Party:
A.G.A., Sri Rakesh Kumar Gupta

A. Evidence Law - Indian Evidence Act,
1872, Criminal Appeal - Motive - In face
of direct evidence of eye-witnesses and
injured witnesses - motive not required
to be proved. (Para 2) Prosecution examined
PW-1 and PW-2 who are eye-witnesses and
injured witnesses - they are the real brothers
of the deceased - they have supported the
prosecution version - stated that they saw the
whole incident and the accused persons also
caused injuries to them - the testimony of a
witness cannot be discredited only on the
ground that the witnesses are related or
interested - the testimony of such witness
should be scrutinized cautiously and carefully-
relationship by itself will not render the
witness untrustworthy. (Para 25, 26 & 28)

B. Criminal Law - Indian Penal Code,
1860 - Section 149 - Every member of
unlawful assembly guilty of offence
committed in prosecution of common
object
-
There
is
no
substantial