Court No. - 28
Case :- CRIMINAL REVISION No. - 1642 of 1990 Revisionist :- Rayess Opposite Party :- State Of U.P. Counsel for Revisionist :- S.K. Sharma Counsel for Opposite Party :- A.G.A.
Hon'ble Umesh Chandra Tripathi,J. [1]. Heard learned counsel for the parties.
[2]. This revision has been preferred against the judgment and order dated 06.09.1990 passed by Sessions Judge, Etawah in Criminal Appeal No. 72 of 1989 (Rayess @ Rayess Ali and others v. State), whereby conviction and sentence of the accused-revisionist Rayess under Section 363 and 366 of the Indian Penal Code (in short 'IPC') were upheld. However, his conviction and sentence under Section 376 of IPC were set aside. The conviction and sentence of co-accused Farman Ali, Latif, Saddiq, Abbul @ Abdul, Aziz, Kamruddin, Nasruddin, Poota @ Sajjak, Baula @ Om Prakash, Zahid, Ram Sewak, Sukhai, Israz Ali, Shyam Babu, Ram Swaroop, Farukh, Munni Devi @ Munni, Shahnoor were set aside and they were acquitted.
[3]. Vide impugned judgment and order dated 16.09.1989 passed by Assistant Sessions Judge, Etawah, the accused were convicted and sentenced as follows :
(i) Accused Rayess Ali (revisionist) was sentenced to two years' rigorous imprisonment and fine of Rs. 500/-, three years' rigorous imprisonment and fine of Rs. 500/- and seven years' rigorous imprisonment and fine of Rs. 500/- for the offence punishable under Sections 363, 366 and 376 of IPC, respectively and in case of default in payment of fine, six months' additional simple imprisonment had to be undergone by him.
(ii) Accused Farman Ali, Shahnoor, Zahid, Ram Sewak, Israz, Shyam Babu, Bhaula @ Om Prakash, Ram Swaroop and Farukh were sentenced to seven years' rigorous imprisonment each and fine of Rs. 500/- each for the offence punishable under Section 376 of IPC and in case of default in payment of fine, three months' additional simple imprisonment had to be under by each one of them.
(iii) Accused Munni Devi @ Munni was sentenced to two years'
rigorous imprisonment and fine of Rs. 500/- and three years' rigorous imprisonment and fine of Rs. 500/- for the offence punishable under Sections 363/109 and 366/109 of IPC, respectively and in case of default in payment of fine, six months' additional simple imprisonment had to be undergone by her.
(iv) Accused Poota was sentenced to three years' rigorous imprisonment and fine of Rs. 500/- and seven years' rigorous imprisonment and fine of Rs. 500/- for the offence punishable under Sections 366 and 376 of IPC, respectively and in case of default in payment of fine, six months' additional simple imprisonment had to be undergone by him.
(v) Accused Saddiq, Latif, Sukhai, Abdul @ Abbul, Aziz, Kamruddin and Nasruddin were sentenced to three years' rigorous imprisonment each and fine of Rs. 500/- each for the offence punishable under Section 368 of IPC and in case of default in payment of fine, three months' additional simple imprisonment had to be undergone by each one of them.
[4]. All the respective sentences awarded to the above mentioned accused were directed to run concurrently.
[5]. As per prosecution version, on 08.01.1986 at about 4.00-
4.30 P.M. accused Munni Devi took away the prosecutrix, aged about 14 years, from her residence. First information report of the occurrence was lodged on 14.01.1986. The prosecutrix was recovered with co-accused Shahnoor. Statement of the prosecutrix under Section 164 of the Code of Criminal Procedure was recorded and after investigation, the police submitted charge-sheet against the accused.
[6]. By the impugned order of trial court dated 16.09.1989, except accused Malkhan, all the 19 accused were convicted. The aforesaid order passed by Assistant Sessions Judge, Etawah was challenged in the appellate court by accused Rayess @ Rayess Ali (revisionist) and 18 other accused and the appellate court (Sessions Judge, Etawah) vide its order dated 06.09.1990, convicted accused Rayess @ Rayess Ali (revisionist) and all the 18 other accused was acquitted from the respective charges framed against them.
[7]. Learned counsel for the revisionist contended that there is no evidence on record to show that accused-revisionist Rayess took away the prosecutrix. Learned courts below have not recorded this finding and without any evidence and material on record, passed the impugned order of conviction, which is perverse and liable to be set aside. Accordingly, the instant revision deserves to be allowed.
[8]. Learned A.G.A. contended that there is no illegality or infirmity in the impugned orders passed by the courts below.
[9]. Learned trial court has recorded the finding that co-accused Munni Devi had taken away the prosecutrix from her residence and sent the prosecutrix with the accused-revisionist Rayess. Learned trial court has not recorded the finding that accused- revisionist took away the prosecutrix from the residence. Learned appellate court has recorded a contradictory finding that it may be concluded that accused-revisionist Rayess had taken away the prosecutrx with him. This finding of the appellate court is based on probability and there is no conclusive proof about the same. The appellate court has not recorded a definite finding that the accused-revisionist had taken away the prosecutrix with him.
[10]. The appellate court has observed the age of the prosecutrix to be above 16 years and below 18 years. This shows that the prosecutrix was on the verge of her majority. The appellate court has further observed that the accused-revisionist had intercourse with the prosecutrix with her consent. This shows that the prosecutrix had gone with the accused- revisionist on her own sweet will.
[11]. The appellate court held the statement of the prosecutrix to be totally false and unnatural. Even so, it punished the accused- revisionist Rayess on the basis of her statement. The prosecutrix had narrated before the court that accused Poota, Rayess, Zahid and Farukh had committed rape on her. Learned appellate court has acquitted all of them from the offence of rape.
[12]. In view of above, offence punishable under Sections 363 and 366 of IPC against the accused-revisionist Rayess is not proved. On the same evidence, the appellate court had acquitted all the 18 other accused from the respective charges framed against them.
[13]. Accordingly, I am of the considered view that the finding recorded by the appellate court against accused-revisionist Rayess is not based on evidence and material on record, but merely on hypothesis. Therefore, the impugned judgment and order of conviction against the revisionist passed by the appellate court is liable to be set aside and the accused- revisionist should be exonerated from the offence punishable under Sections 363 and 366 of IPC.
[14]. Resultantly, the instant revision succeeds and the same is allowed. Judgment and order of conviction and sentence of revisionist - Rayess for the offence punishable under Sections 363 and 366 of IPC passed by Sessions Judge, Etawah is hereby set aside and he is acquitted.
[15]. Revisionist Rayess is in jail. He shall be set free forthwith, if not wanted if any other case.
[16]. Let a copy of this order be certified to the court below for the purposes of intimation and necessary compliance.
Order Date :- 30.5.2018 I. Batabyal .
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Court No. - 28
Case :- CRIMINAL REVISION No. - 1642 of 1990 Revisionist :- Rayess Opposite Party :- State Of U.P. Counsel for Revisionist :- S.K. Sharma Counsel for Opposite Party :- A.G.A.
Hon'ble Umesh Chandra Tripathi,J.
[1]. Today, the revision was allowed. Sri Amber Khanna, Advocate has appeared and argued on behalf of the revisionist as amicus curiae. I appreciate the assistance provided by him to the Court.
[2]. Office/Registry is directed to pay Rs. 5,000/- to Sri Amber Khanna, learned amicus curiae on behalf of the revisionist as fees.
Order Date :- 30.5.2018 I. Batabyal