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2003 DIGILAW 468 (PAT)

Sanjay Kumar Bharti v. State of Bihar

2003-04-22

A.K.SINHA, B.K.JHA

body2003
JUDGMENT A.K. SINHA & B.K. JHA, JJ. The sale appellant Sanjay Kumar Bharati has been convicted under sections 366A and 376 of the Indian Penal Code and has been sentenced to undergo rigorous imprisonment for ten years under section 366A of the Indian Penal Code and rigorous imprisonment for life under section 376 of the Indian Penal Code. Both the sentences were ordered to be run concurrently. 2. The prosecution case as per the written report of the informant is that on 15.8.1995 at 3.00 p.m. the appellant, namely, Sanjay Kumar Bharti who was a tutor came at the residence of the informant and demanded sarbat from the victim girl, namely, Kiran Kumari. It is alleged that the appellant induced Kiran Kumari to go with him on false pretext. The family members were of the impression that the appellant is teaching Kiran Kumari. After 10 to 15 minutes the informant's eldest daughter, namely, Sweta went to serve tea to the appellant and found the appellant as well as Kiran Kumari missing from the room. So, she informed her mother about the missing of Kiran and a search was made but Kiran Kumari could not be traced. In course of search the informant went to Professor Dilip Kumar who happens to be the brother-in-law of the appellant and learnt that the appellant had come to his place at 3.20 p.m. and was in hurry and had disclosed to him that he is going to Patna for some urgent work. The appellant was a teacher of Arya Bhatta Public School and used to teach the informant's daughter since one and half years. The informant also went to Patna and enquired at Gyan Ganga Prakashan about the where about of the appellant but could not get any trace of him. It is alleged that the appellant eloped with the informant's daughter with some ulterior motive. A case under sections 363,366, 366A of the Indian Penal Code was instituted against the appellant and after completing the Investigation charge-sheet was submitted against the appellant and one of his associates under sections 366A and 376 of the Indian Penal Code on the basis of which cognizance was taken and the case was committed to the court of sessions. It may be stated here that co-accused Jitendra Lal @ Lalla absconded in course of trial. It may be stated here that co-accused Jitendra Lal @ Lalla absconded in course of trial. So, the trial of the appellant was separated after declaring Jitendra Kumar Lal as absconder. 3. The case of the defence as would appear from the suggestions given to the prosecution witnesses is that the appellant is innocent and has been falsely implicated in the case. In his statement under section 313 of the Cr. P.C. the appellant has admitted that he used to love Kiran Kumari and on 13th November, 1994 he married Kiran Kumari at Mahabir Asthan in presence of Sarswati Devi, mother of Kiran Kumari, by exchanging the garland and since he had advanced money to the informant, at the time of marriage of Sweta Sinha, the eldest daughter of the informant, a quarrel had taken place for that money on 15.8.95 and due to that reason he has been falsely implicated in the present case. On behalf of the defence several letters (Exts. A to A/12) said to have been written by Kiran Kumari have been exhibited to demonstrate that there was love affairs between Kiran Kumari and appellant. 4. The prosecution examined as many as 7 witnesses in the case out of whom P.W.5 Dr. Suneela Singh is a lady doctor who had examined the victim girl on 22.8.95 and her evidence goes to sh6'w that on the day of examination of the victim girl her age was between 15 to 16 and her hymen was torn and she was used to sexual intercourse. P.W.5 has proved the medical report (Ext.6) as also the X-ray plate (Ext.7). It would thus appear from the evidence of P.W.5 that on the day of her examination i.e. 22.8.95 the victim was a minor girl aged about 15 to 16 years. 5. The prosecution has also filed School leaving Certificate (Ext.3) which shows that the date of birth of the victim girl as recorded in the School Register was 20.11.1979. The Admit Card' (Ext-4) also goes to show that the age of Kiran Kumari was 20.11.1979. The mark-sheet (Ext-5) of Bihar School Secondary Examination Board goes to show that Kiran Kumari had passed her matriculation examination in third division in the year 1995. So, from the documentary evidence also it is established that on the date of the alleged occurrence Kiran Kumari was a minor girl and her age was below 16 years. The mark-sheet (Ext-5) of Bihar School Secondary Examination Board goes to show that Kiran Kumari had passed her matriculation examination in third division in the year 1995. So, from the documentary evidence also it is established that on the date of the alleged occurrence Kiran Kumari was a minor girl and her age was below 16 years. 6. P.W.1 Akhilesh Kumar Sinha is the informant of the case who has proved the written report (Ext.2) which he submitted to the Officer In-charge of Town Police Station Sasaram. He is admittedly not an eye witness to the alleged occurrence and has given the hearsay account about' the elopement of his daughter and stated about the commission of rape with his daughter by the appellant. He has stated that he had enquired from Professor Dilip Kumar who disclosed to him that on the alleged date of occurrence the appellant had come to him at 3.20 p.m. and was in hurry and had disclosed to him that he has to go to Patna for urgent work. The informant collected Patna's address of the appellant from Professor Dilip Kumar and went to Patna in search of his daughter but could not find her. He has further stated that on 21.8.95 at 3.30 p.m. his daughter Kiran Kumari returned back and on getting this information he came to his house and leant from his daughter that the appellant took her to Mugalsarai on a false pretext and by giving treats to her that if she will not go with him her father will be killed and due to fear the victim girt went with him to Mugalsarai where the appellant committed rape with her. Thereafter, the appellant took the victim girl to Buxur and reached her to the maternal grand father's house of Kiran Kumari and had also threatened her not to disclose about the elopment with him. The informant also learnt from Kiran Kumari that on 18.8.95 the appellant came to the Sasural of the informant and took away Kiran Kumari and brought her to Patna Where she was kept in a hotel and the appellant again committed rape with her. The informant also learnt from Kiran Kumari that on 18.8.95 the appellant came to the Sasural of the informant and took away Kiran Kumari and brought her to Patna Where she was kept in a hotel and the appellant again committed rape with her. Thereafter, the appellant took her to Kankarbagh at a relative's place on 19.8.95 and on 20.8.95 at about 11.00 p.m. the appellant boarded the victim girl on a bus which reached her to Sasaram on the following day at 6.00 a.m. Where she was picked up by co-accused Lalla who kept her in Sangam Lodge and wanted to commit rape with her but any how Kiran Kumari escaped and returned back home. P.W.1 also stated that the age of his daughter was fifteen and half years on the alleged date of occurrence. . 7. P.W.2 Sarswati Devi and P.W.4 Sweta Sinha are the mother and sister respectively of the victim girl and they have also supported the story which was revealed by Kiran Kumari when she returned back home and both of them stated that on the alleged date of occurrence the appellant had come to their house and eloped klith Kiran Kumari which was fevealed to them when PW.4 went serve tea to the appellant. They have stated that they made search of Kiran Kumari but could not get any trace of her 8. The most important witness in this case is P,W.3 Kiran Kumari who has categorically stated that on 15.8.95 the appellant came to her house and demanded Sarbat and when she' served Sarbat, he proposed to go with him to School on the pretext that he has managed to place her in first division in the matriculation examination. So she went along with him but instead of taking her school, the appellant took her to bus stand and when she made enquiry, the appellant disclosed that she has to go to Patna to get the job done and when she refused to board on the bus the appellant gave her threat to kill her father. P.W.3 further stated that the appellant took her to Mugalsarai where he stayed at a Lodge and forcibly committed trape with her. P.W.3 further stated that the appellant took her to Mugalsarai where he stayed at a Lodge and forcibly committed trape with her. From Mugalsarai he brought her to Buxar by rail and from Buxar he brought her to Bhojpur by bus where she got down from bus and from there she went to her maternal grand-father's place and stayed there. On 18.8.95 the appellant came at the house of maternal grand father of Kiran Kumari and brought her to Patna by bus where she was kept in a hotel and the appellant again committed rape with her. She has further stated that on 19.8.95 the appellant kept her in the house of his relative in Kankarbagh and on 20.8.95 she went to see a Cinema after taking meal in a hotel the accused boarded her in a bus bound for Sasaram and told her to wait in the first class waiting room at Sasaram Railway Station. She has further stated that on 21.8.95 when she got down from bus at Sasaram a man, namely, Lalla met her and took her to first class waiting room of the Railway Station by stating that he had received such instruction from the appellant. She has further stated that accused Lalla brought her to his aunt's house at Choukhandi and from there he brought her in a Lodge in the same Mahalia and kept her confined there. At 2.30 p.m. Lalla again came there and misbehaved with her but she managed to flee away and came to her house. This witness has proved the letters (Exts. A to A/12) written by her to the appellant and also admitted that she had a photograph with the appellant. She has stated that the appellants had forced her to write letters. She has stated that she wrote 37 letters to the appellant besides those 13 letters. She further stated that for the first time she had intercourse with the appellant at Mugalsarai and appellant had intercourse with her for the second time in a Lodge at Patna. She admitted that Mira is the sister of the appellant with whom she stayed in the night but did not disclose anything about the occurrence to her. She further stated that for the first time she had intercourse with the appellant at Mugalsarai and appellant had intercourse with her for the second time in a Lodge at Patna. She admitted that Mira is the sister of the appellant with whom she stayed in the night but did not disclose anything about the occurrence to her. P.W. 3 was cross-examined at length but nothing could be elicited by the defence which may show that (he statement made by her regarding her kidnapping and commission of rape with her is not true. Thus, it is well established from the evidence of P.W.3 that on the alleged date of occurrence the appellant eloped with her by giving false assurance and threat of life to her father and took her to Mugalsarai where he committed rape with her and he again committed rape with her at Patna. The evidence of doctor who examined P.W.3 further corroborates her statement as regards the commission of rape with her. 9. P.Ws. 6 and7 are investigating officers of this case and their evidence also supports the prosecution version. P.W.6 Rama Kant Upadhayaya investigated the case from 31.8.95 till the submission of the charge-sheet and prior to him P.w.7 Sarju Sharma had done the investigation of the case P.W.7 has stated that on 22.8.95 he had sent Kiran Kumari for her medical examination and got her statement recorded under section 164 of the Cr. P.C. on 24.8.95. In his cross-examination P.w.7 has stated that on 21.8.95 the informant had informed him about the arrival of the victim girl. So, he sent her to doctor for her medical examination. P. W. 6 has stated that he recorded the statement of victim girl as also of the informant and his wife on 2.9.95. 10. The learned counsel appearing for the appellant fairly submitted that he has nothing to argue so far the conviction of the appellant under the aforesaid counts is concerned. In our view there does not appear any force in the defence plea that the victim girl was having love affairs with the appellant and she had written several letters to him acknowledging this fact, that she had gone suo motu with the appellant and no force was used at the time of intercourse with her. In our view there does not appear any force in the defence plea that the victim girl was having love affairs with the appellant and she had written several letters to him acknowledging this fact, that she had gone suo motu with the appellant and no force was used at the time of intercourse with her. It is well established from the evidence on record that on the alleged date of occurrence the victim girl was minor and her age was between 15 to 16 years. Hence, the consent given by the victim girl who was minor at the time of alleged occurrence cannot exonerate the appellant of his criminal liability. The evidence of victim girl (P.W.3) clearly goes to show that the appellant had eloped with her on the alleged date of occurrence in the manner stated by her with intent that she may be seduced to illicit intercourse and it is also well established that the appellant committed rape with her against her will. We are therefore, of the view that the prosecution has proved the charges under section 366A and 376 of the Indian Penal Code against the appellant beyond all reasonable doubts and the learned counsel appearing for the appellant rightly conceded to such findings. 11. The learned counsel for the appellant confined his submission on the point of sentence and contended that the appellant was young man of 25 years on the alleged date of occurrence and he was already married from before and due to his young age he fell in love with the victim girl who was consenting party and the appellant had no criminal antecedent. As such, the case of the appellant does not fall under any of the provisions enumerated under section 376 (2a) to (2g) of the I.P.C. so as to warrant the extreme punishment of life imprisonment which has been awarded to the appellant. It was pointed out that the appellant is in jail since 5.9.95. As such, the ends of justice would be met if the sentence awarded to the appellant is reduced to the period already undergone by him, in custody. 12. The learned counsel has relied upon a decision in the case of Phul Singh vs. State of Haryana reported in (1979) 4 see 413. As such, the ends of justice would be met if the sentence awarded to the appellant is reduced to the period already undergone by him, in custody. 12. The learned counsel has relied upon a decision in the case of Phul Singh vs. State of Haryana reported in (1979) 4 see 413. It was also a rape case in which the appellant was charged for committing rape with his cousin wife and was sentenced to undergo rigorous imprisonment for a period of four years which was reduced to two years by the Apex Court and the following observations were made: "He is a youth barely 22 with no criminal antecedents save this offence. He has a young wife and a farm to look after. Given correctional courses through meditational therapy and other measures, his erotic aberration may wither away. A man like the appellant has a reasonable prospect of shaping into a balanced person, given propitious social environs, curative and congenial work and techniques of internal stress release or of reformatory self-expression. In this background, we regard a four year term of rigorous imprisonment more hardening than habilitative, even though we deplore the sex violence the young appellant has inflicted on his cousin's wife snatching a tricky opportunity of lifers and others for long may be counterproductive, and in this perspective, we blend deterrence with correction and reduce the sentence to rigorous imprisonment for two years. 13. Having regard to the facts and circumstances of the case and considering the submission of the learned counsel for the appellant and the law laid down by the Supreme Court (supra), we are also of the view that the sentence awarded to the appellant are quite excessive. The appellant has remained in custody for more than a period of seven and a half years. We are therefore of the view that ends of justice will be met if the sentence awarded to the appellant are reduced to the period undergone by him in custody. 14. In the result, we do not find any merit in this appeal which stands dismissed with modification in the sentences as aforesaid. The appellant is accordingly, directed to be released forthwith from custody if not required in any other case.