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2000 DIGILAW 550 (PAT)

Bashisht Rawat @ Bachhan Rawat v. State Of Bihar

2000-04-06

S.N.PATHAK

body2000
Judgment S.N.Pathak, J. 1. This appeal is directed against the judgment and order of conviction and sentence passed by 2nd Assistant Sessions Judge, Jamui, dated 14th June, 1999 in Sessions Trial No. 461 of 1990. The sole appellant was convicted under Sections 366 and 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for four years and seven years respectively. Both the sentences were directed to run concurrently. The appellant was further convicted under Section 363 of the Indian Penal Code, but no separate sentence was awarded. 2. The case-of the prosecution, as related in the written report (Ext. 1) of Shanti Devi was that on 5.5.1988, the informant woke up and found that her 16 years old daughter, Renu Kumari was missing from the house. She and her family members searched for her daughter for the whole day. Subsequently, she came to learn that one "Tempuwala" had seen the accused-appellant, Basisht Rawat, going away in the company of Renu Kumari. Upon the aforesaid information, a case was registered and investigation followed. Subsequently, after submission of charge-sheet, cognizance and commitment, the accused-appellant faced trial along with Manoj Rawat, Sanjay Rawat and Girish Rawat. Manoj Rawat was acquitted by the lower Court and others were convicted. However, this appeal has been preferred by only Basisht Rawat. 3. The accused denied the charge and alleged false implication. 4. The prosecution examined six witnesses during the course of trial PW 6 was Uma Sinha. This witness along with other witnesses of the case, namely, Sima Devi (PW 5), Shanti Devi (PW 1) speak about missing of Renu Kumari from her house on 5.5.1998, subsequent search and information from one "Tempuwla" regarding the alleged flight of Renu Kumari with Basisht Rawat in the company of other accused-persons who were charged by the trial Court. However, their evidence in particular on the point of alleged kidnapping consists of the testimony of PW 3, Renu Kumari. The evidence of other witnesses including PW 1, mother of the victim, PW 2 father of the victim and her sisters PWs 6 and 5, are based on the information which they gathered from Renu Kumari. So I shall confine my discussion on the evidence of PWs 1 and 3 in order to find out whether there was, of course, kidnapping, as alleged by the prosecution. 5. So I shall confine my discussion on the evidence of PWs 1 and 3 in order to find out whether there was, of course, kidnapping, as alleged by the prosecution. 5. PW 3 has specifically stated that when on the alleged night (that will come to 4-5), she was sleeping in her house and woke up at 1.30 - 2 a.m. (in the might between 4th and 5th May, 1988) for urination, and when she was about to sit for urination, she was taken under grip of accused Basisht Rawat and he asked her to go with him. She resisted, but her mouth was shut by the palm of the accused. A pistol was also pointed at her and she was asked to go with him. She was carried to Jhajha in a Tempu where the accused was accompanied by Sanjay Rawat, Manoj Rawat and Girish Rawat. From Jhajha, she was carried to Deoghar. At Deoghar, she was taken to a temple where vermilion was put on her forehead and a marriage was forced. Thereafter, she was kept in a house at Deoghar where she was subjected to criminal assault. After keeping two days at Deoghar, during which she was subjected to criminal assault, she was carried to Bhagalpur. At Bhagalpur also, she was kept for 20 days during which she was subject to criminal assault against her will and against her consent. From Bhagalpur she was being carried to Jamui. When she was being carried from Jamui to some other destination, the accused-persons sighted the police. Then, the victim was taken into custody by the police and the accused-persons fled away. She was produced in Court by the police where her statement under Section 164 of the Code of Criminal Procedure was recorded. Thereafter, she was made over to her parents. 6. The evidence of PWs 1 and 2 is almost of the same effect. I have already stated above that the evidence of PWs 5 and 6, who are kith and kin of the informant is also to the same effect that Renu Kumari was found missing, there was search and subsequently she was recovered by the police. 6. The evidence of PWs 1 and 2 is almost of the same effect. I have already stated above that the evidence of PWs 5 and 6, who are kith and kin of the informant is also to the same effect that Renu Kumari was found missing, there was search and subsequently she was recovered by the police. The evidence was criticised on the ground that in the alleged night, it was improbable for the victim to sleep outside the house or to come out of her house for urination, even though in her house, fenced by boundary wall, there was a toilet room and a separate passage for urination. In this connection, the evidence of PW 3 at paragraph 5 and the evidence of PW 1 at paragraph 3 were referred to. PW 1 stated about the position of her house which consisted of two rooms. There is also a kitchen room, one verandah and one toilet. There is a courtyard on the eastern side. The courtyard was fenced. The informant herself was sleeping in the eastern room along with her two daughters. Outside her courtyard, she had built a thatched room and baithka. Renu Kumari was sleeping on a cot in this baithka. The evidence of PW 3 at paragraph 5 was referred to and it was submitted that as per statement in this paragraph, she was sleeping inside her house where there was toilet and, therefore, there was no occasion for her to go outside the house for urination. But on a closure scrutiny of the evidence of PW 3 at this paragraph, it appears mat she did not say that she was sleeping inside the house. All that she has stated in this paragraph is that her house was fenced by a courtyard which contained a latrine, drain and bath room. She came out of the house for urination alone. She further stated that outside the house, her father and mother were sleeping under open sky. However, at this paragraph at page 3, she stated that she was sleeping in the hut which was outside her courtyard. She added further that her house consisted of two rooms. From the aforesaid total effect of the statement, it is apparent that she did not say in positive statement that she was sleeping inside the house. However, at this paragraph at page 3, she stated that she was sleeping in the hut which was outside her courtyard. She added further that her house consisted of two rooms. From the aforesaid total effect of the statement, it is apparent that she did not say in positive statement that she was sleeping inside the house. Her evidence was rather that she was sleeping in the hut outside the house and, therefore, she was out for urination. So the improbability attaching to the victims going out of the house for urination, as criticised by the appellants lawyer, does not appear to be clicking. 7. The evidence was next criticised on the ground that accused-appellant was not arrested along with the victim by the police and, therefore, he cannot be fastened with the guilt of abducting or kidnapping the informants daughter. However, in this connection, the evidence of Renu Kumari, the victim, is clear to the effect that she was kidnapped by the accused on the point of fire-arm. Of course, Tempowala was not examined to support the fact that he had seen the victim going in the company of the accused-appellant and others, but the evidence of the victim herself cannot be discarded on this omission on the part of the prosecution. She had related the alleged offence of her kidnapping and ravishment to her parents and to her other family members who were examined, as I have referred to above, and who supported the version of the victim. 8. Certain circumstances were pointed out by the appellants lawyer and it was submitted that if at all there was any case of elopement of the informants daughter, it was a case of voluntary elopement and the victim was major and, therefore, no offence was committed. In this connection, the evidence of PW 3 attracts further notice. The victim has clearly said that the accused had forced her to go with him on the point of firearm and throughout her trek to jhajha, Deoghar and Bhagalpur, she was kept under close watch by the appellant and his associates who had threatened her of dire consequences. Moreover, she has said in her evidence that the accused used to visit her house which was situated in the hospital compound and her mother was a trained nurse. Moreover, she has said in her evidence that the accused used to visit her house which was situated in the hospital compound and her mother was a trained nurse. She was not having any prior intimacy with the accused nor she used to have any talk with him. There is no suggestion to any of the PWs by the accused that he was having any kind of affair with her and so the victim went with him on her own accord except to the effect that she was sleeping outside the house just to elope with him. It was also stated by the appellants lawyer that it looked to be absurd that in the temple the victim shall be subjected to forced marriage and she will not raise any alarm. Admittedly, she had not raised any alarm even though she was being carried to Jhajha, Deoghar, Bhagalpur, etc. In this connection, it is to be noted that the appellant was associated by others also and they were keeping a close watch on her. The threat of dire consequences must be weighing with the psychology of the victim and in such a circumstance, her predicament can be well imagined. Making noise and creating a scene for tormentors can be expected from a bold and practical female victim, but certainly not from coy and diffident females. So no alarm raised by the victim in Deoghar temple or at any place during the course of trek from one place to another by the informants daughter cannot be given such significance in the circumstances of the case. 9. Now the evidence of the Doctor remains to be considered. The Doctor, PW 4, found no external injury on the victims body. He did not find any spermatozoa in the swab taken from the victims vagina. He estimated the age of the victim io be between 18 and 20 years on the date of examination, that is, 4.6.1998. The informant in her written report gave the age of the victim as 16 years. However, for the offence under Section 366 of the Indian Penal Code, when there is allegation of kidnapping or abduction, age becomes irrelevant. In the instant case, as per evidence of PW 3, she was forcibly taken away under the threat of dire consequences and, therefore, her age becomes insignificant. However, for the offence under Section 366 of the Indian Penal Code, when there is allegation of kidnapping or abduction, age becomes irrelevant. In the instant case, as per evidence of PW 3, she was forcibly taken away under the threat of dire consequences and, therefore, her age becomes insignificant. Much was made of the Doctors statement in cross-examination by the accused that he found old and healed hymen which appeared to be one or two years old. On the basis of this statement, it was suggested that the accused cannot be deemed to have had any sex with the victim during the period of her kidnapping on 5.5.1988 and her recovery. But in this connection, I am of the opinion that rupture of hymen may occur even without any kind of sexual act, and so this statement of the doctor in this connection in cross-examination also becomes irrelevant. 10. From the aforesaid total circumstances on the record, it was clear that the accused-appellant had eloped with the informants daughter under threat of dire consequences and he had forced sex with her at various places where she was taken to after her initial kidnapping. So the appellant was rightly convicted under Sections 376 and 366 of the Indian Penal Code. So far as the sentence is concerned, that is also not so heavy inviting interference by this Court. 11. In the result, this appeal is dismissed and the order of conviction and sentence is hereby confirmed.