Obscene video of Mansya Kalan, District Hathras: Part 2

Appellants Argument:

In the Indian legal system, the Sessions Court (where the trial judge, the Additional Sessions Judge, sits) is the highest criminal court in a district. A criminal appeal against a conviction passed by the Sessions Court is heard directly by the High Court. Appellants argued to challenge their conviction after they have filed an appeal before AHC, against the order of trial court.

Challenge to Conviction under Section 363 IPC (Kidnapping)

The primary legal argument against the conviction under Section 363 of IPC was that the charge was legally unsustainable because the prosecution failed to establish that the victim was taken out of the keeping of her lawful guardian or that she was enticed, kidnapped, or abducted. The defense pointed out that the victim and Dhirendra eventually returned home, and there was no evidence that the accused persons protested their return.

Challenge to Complicity of Specific Appellants

The appellants Ravi and Eloo alias Ram Naresh argued that they did not actively participate in the commission of the crime. The defense cited the victim’s own cross-examination, which stated that these two appellants were not shown doing beating or any wrongful act in the video clipping, and no overt act was specifically assigned to them. They argued they should be acquitted of all charges.

AHC’s reasoning:

The AHC’s reasoning focused on correcting severe procedural errors made by the Trial Court, reviewing the evidence for each appellant’s complicity, and ensuring the final sentence was both proportionate and legally valid. The Court examined the Trial Court’s conviction on a section-by-section basis, leading to the acquittal of two appellants and the dropping of several charges against all accused:

Procedural Flaw and Setting Aside Kidnapping (Section 363 IPC)

The Court determined that the conviction under Section 363 IPC (Kidnapping) was unjustified for two major reasons:

The prosecution failed to establish the essential element of kidnapping—that the victim was taken out of the keeping of her lawful guardian without consent. The court noted that the victim and Dhirendra ultimately returned home themselves.
Failure of Justice: Crucially, the Trial Court had not framed a specific charge under Section 363 IPC (kidnapping) during the trial, yet convicted the appellants for it. The AHC held that this omission violated mandatory provisions of the CrPC (Sections 216, 222, etc.) and prejudiced the defense, thereby resulting in a failure of justice.

Acquittal of Ravi and Ilu alias Ram Naresh

The Court accepted the defense’s argument regarding lack of participation by two of the appellants:

Based on the cross-examination of the victim and other evidence, the Court inferred that Ravi and Eloo alias Ram Naresh did not actively participate in the physical assault or the unbecoming behavior.
The Court found evidence suggesting they were only present on the spot and may have attempted to save the alleged victim and Dhirendra.
Since their complicity was not established beyond a reasonable doubt, the Court acquitted Ravi and Eloo of all charges.

Setting Aside Minor IPC Offenses

The convictions under Section 147 (Rioting), 323 (Voluntarily causing hurt), and 504 (Intentional insult) were also set aside:

The charge of rioting (Section 147) was no longer tenable as two primary accused were acquitted.
The charges of hurt (Section 323) were not established because no injury was found on the body of the victim or Dhirendra.
The charge of intentional insult (Section 504) lacked sufficient proof regarding the required ingredients of intent to provoke a breach of peace.

Final order of modified sentence:

For the remaining appellants (Dara Singh, Pankaj, Ramu alias Ram Kumar, and Sanjay), the Court upheld the conviction for the core crimes but modified the sentencing to make it legally compliant and proportionate to the offense.

Correction of IT Act Sentence

The Court agreed with the appellants that the Trial Court’s sentence of 5 years RI under Section 66/67 of the IT Act was illegal because the maximum sentence prescribed for a first conviction under that section is 3 years. The sentence was consequently reduced.

Application of Alternate Punishment (POCSO Act)

Applying Section 42 of the POCSO Act, the Court sentenced the appellants under the POCSO Act i.e. Sections 11, 12 instead of Section 354D of IPC (Stalking). Section 42 mandates punishment under the law that provides the greater degree of punishment when an act is punishable under both the POCSO Act and IPC.

Final Modified Sentences

The appellants i.e. Dara Singh, Pankaj, Ramu alias Ram Kumar and Sanjay are sentenced

u/s 11, 12 of POCSO Act instead of section 354D IPC – 1.5 year RI and fine of Rs. 5000/- and in default of payment of fine one month SI each;
1. 1 year RI with fine of Rs. 1,000/- u/s 506 IPC each and in default of payment 10 days SI;
1. 1 month RI and fine of Rs. 500/- u/s 341 IPC in default 2 days SI and
1. 1.5 year RI and fine of Rs. 50000/- each and in default payment of fine one year SI under section 66, 67 of IT Act
1. all the sentences shall run concurrently but for the reasons aforesaid, the conviction and sentence of the above appellants under section 323, 147, 504, 363 IPC are set aside and the appellants are acquitted of above charges.

Thus finally 4 accused boys were sentenced for one and half year of RI due to concurrent sentence. Final fine to be paid was sum of Rs. 56,500 (Fifty Six Thousand Five Hundred) by each sentenced accused. This sum shall be deposited in the respective court within three months from the date of judgment and half of the amount shall be given to victim as compensation.

The amount of fine is again not enough to recover the cost of running police investigation, trial proceedings and AHC proceedings. Fines shall be increased to recover at least the infrastructural expenses of the police and judiciary.

Conclusion:

Six boys forced a minor girl to come with them in a lonely place. They abused her, beat her, molested her, recorded all this obscene acts, circulated the video, threaten that girl that if she tell this anybody she and her family members will be killed. All such acts are not for fun of a person, they are crime in eyes of law. Hence any kind of such act may amount to punishment and even a FIR due to such acts may ruin whole life as in police record that person is mentioned as accused of some kind of crime. Imprisonment is one kind of punishment which has certain end, but bad police record is life time punishment, as it restricts the opportunities of mobility and job. No one want to employ any person with bad police records. Hence it is necessary that one should have minimum general knowledge of various criminal laws.