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Uttarakhand High Court · body

2010 DIGILAW 627 (UTT)

JAGDISH v. STATE OF U. P.

2010-08-31

DHARAM VEER

body2010
JUDGMENT This appeal, preferred by the appellant under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.), is directed against the judgment and order dated 25.7.1998 passed by the III Additional Sessions Judge, Nainital in Sessions Trial No. 31/1993, State v. Jagdish & Ors., whereby the learned III Additional Sessions Judge has convicted the appellant/accused Jagdish under Sections 366 and 376 of Indian Penal Code, 1860 (for short, IPC) and sentenced him to undergo three years’ R.I. under Section 366 IPC and seven years’ R.I. under Section 376 IPC along with fine of Rs. 2,000/-, in default to undergo simple imprisonment for one year. All the sentences have been directed to run concurrently. Co-accused Babu, Anjum, Nanhu, Smt. Somwati, Ramvilas and Subhash were acquitted of the charges levelled against them. 2. In brief, the prosecution case is that PW1 Smt. Resham Devi lodged an FIR on 3.9.1992 at 2.30 pm with the averments that on 31.8.1992 at 9 am, when her daughter Km. Radha Rastogi @ Mamta, aged about 13 years, was working in her house, then Sudha daughter of Babu Ram came to her house and had taken her daughter along with herself. At that time, complainant had gone to meet the doctor for putting plaster on the hand of her husband. When she returned in the evening, she did not find her daughter in the house. When she enquired, she came to know that her daughter and the accused appellant Jagdish and his niece Sudha were seen on the bus stand at Kiccha road. They were seen by her neighbourer Sanju. They were also seen by her mother Smt. Bhagwan Devi when they were going towards Kiccha road. It has further been averred in the FIR that Jagdish is the brother-in-law of Anjum and he was also living in his house. It is also alleged that the accused appellant had taken her daughter by enticing her with the help of Anjum and his wife Smt. Somwati, who also advised the complainant to solemnize the marriage of her daughter with the accused appellant in order to avoid infamy. When the complainant refused to do so and threatened to lodge the report in the police station, then they assured to bring back her daughter. But even after the lapse of four days of the said incident, they did not bring back her daughter. When the complainant refused to do so and threatened to lodge the report in the police station, then they assured to bring back her daughter. But even after the lapse of four days of the said incident, they did not bring back her daughter. Today (3.9.1992) co-accused Nanhu, Subhash, Ramvilash came to her house and threatened to break her legs and hands in case their marriage shall not be solemnized. It is also averred by the complainant that they are very mysterious type of people and she apprehended threat on her life from them. With these averments, FIR Ex. Ka-1 was lodged, on the basis of which chick FIR Ex.Ka-7 was prepared by Head Moharrir Devendra Kumar Sharma. He also made the necessary entry in the GD. Copy of GD is Ex.Ka-8. Investigation of this case was entrusted to SI Rakesh (PW9). The I.O. during the course of investigation inspected the place of occurrence and prepared the site plan Ex.Ka-12. The victim was recovered along with accused appellant on 5.9.1992 at about 12.30 pm from the pulia near the Jindal Industries, Khatima Road and the accused appellant was arrested when he tried to escape. Thereafter fard Ex.Ka-9 was prepared. The undergarments of the accused appellant was also taken into possession and fard Ex. Ka-11 was prepared. Necessary entry was made in the GD, copy of GD is Ex.Ka-10. The I.O. also prepared the site plan Ex.Ka-13 of the place from where the victim was recovered and the accused appellant was arrested. The victim Km. Radha Rastogi was examined on the same date i.e. on 5.9.1992 at 4 pm by PW8 Dr. Shanti Devi, who also prepared the medical report Ex.Ka-5. After the x-ray of the victim, she also prepared the supplementary report Ex.Ka-6. The statement of victim under Section 164 Cr.P.C. was also recorded before the Magistrate. Copy of her statement is Ex.Ka-3. The investigation of this case was subsequently transferred to SI Gedan Lal (PW5), who during the course of investigation recorded the statements of the witnesses and after completing the investigation, filed the chargesheet Ex.Ka-2 against the accused appellant and the co-accused (acquitted by the trial court). 3. Learned Munsif Magistrate, Khatima after giving the necessary copies of the documents to the accused appellant and the co-accused (acquitted by the trial court) as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 6.1.1993. 3. Learned Munsif Magistrate, Khatima after giving the necessary copies of the documents to the accused appellant and the co-accused (acquitted by the trial court) as prescribed under Section 207 Cr.P.C., committed the case to the Court of Sessions on 6.1.1993. Learned Sessions Judge, Nainital transferred the case to IV Additional Sessions Judge, Nainital for its disposal according to law. 4. On 26.5.1993, learned IV Additional Sessions Judge, Nainital framed the charges against the accused appellant and the co-accused (acquitted by the trial court). The charges were read over and explained to the accused appellant and the co-accused, who pleaded not guilty and claimed to be tried. 5. To prove its case, the prosecution has examined PW1 Smt. Resham Devi, the complainant and the mother of victim; PW2 Sanjay; PW3 Km. Radha Rastogi, the victim; PW4 Smt. Urvashi Sharma; PW5 SI Gedan Lal; PW6 Alok Saxena, the then Munsif Magistrate, Khatia; PW7 Manohar J.V. Lal; PW8 Dr. Shanti Devi, who medically examined the victim and PW9 S.I. Rakesh, the I.O. of the case. 6. Thereafter, the statement of the accused appellant and the co-accused (acquitted by the trial court) were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated in this case. However, they did not file any documentary or oral evidence in defence. 7. After hearing learned counsel for the parties and after appreciating the evidence on record, the learned III Additional Sessions Judge, Nainital vide his judgment and order dated 25.7.1998 convicted and sentenced to the accused appellant as discussed above. Against the aforesaid judgment and order dated 25.7.1998, the accused appellant has preferred the present appeal. 8. I have heard learned Counsel for the parties and have carefully perused the entire material available on the record. 9. Before any further discussion, it would be pertinent to reproduce the medical report Ex.Ka-5 of Victim Km. Radha Rastogi who was medically examined by PW8 Dr. Shanti Devi on 5.9.21992 at 4 pm and the same is reproduced as under : “MI – Black mole on left forearm, 8.5 cm below elbow joint. Height 178 cm. Weight 30 kg. Teeth – 14/14, space for lower mole forming. Breast – small nodular not well developed. Hairs – Axillary – scanty in no. Pubic hairs – grown up. Shanti Devi on 5.9.21992 at 4 pm and the same is reproduced as under : “MI – Black mole on left forearm, 8.5 cm below elbow joint. Height 178 cm. Weight 30 kg. Teeth – 14/14, space for lower mole forming. Breast – small nodular not well developed. Hairs – Axillary – scanty in no. Pubic hairs – grown up. No marks of external injury on any part of body. Examination of private part – external genitalia normally developed. There is discharge from vagina. Hymen torn at many places but not fresh. Vagina admits two fingers very tightly and girl feels very much pain during insertion. Due to tenderness girl do not allow to insert two fingers very deep. There is no mark of injury on private part. No bleeding at present. Vaginal smear taken on two glass slides and sent for pathological report to visualize the spermatozoa. For age – x-ray wrist and elbow joint to determine the age. Opinion – According to medical examination of the girl, rape or sexual intercourse is done but definite opinion can be given after pathological report of spermatozoa. Opinion of age can be given after x-ray report.” 10. After the x-ray of the victim Km. Radha Rastogi, a supplementary report Ex.Ka-6 was also prepared by PW8 Dr. Shanti Devi and the same is reproduced as under : “X-ray report of the girl show (1) X-ray of elbow joint shows fusion of both epicondyle lat. And medial of lower and of humerous. (2) X-ray of wrist joint shows fusion started of epiphysis of lower end of radius ulna but there is not complete fusion seen. According to x-ray report of Suptt. U.P.H.C. Kiccha, the age of the girl is about 18 years.” 11. To prove the abovementioned medical report Ex.Ka-5 and supplementary report Ex.Ka-6, prosecution has examined PW8 Dr. Shanti Devi, who has proved the contents of same. 12. To further prove its case, the prosecution has examined PW1 Smt. Resham Devi, who in her examination-in-chief has reiterated the averments made in the FIR. She is not eyewitness of the incident and has admitted in her cross-examination that she had not seen the accused appellant on the date of incident. She has further admitted in her cross-examination that when the co-accused persons (acquitted by the trial court) came to her house and asked to solemnize the marriage of her daughter Km. She is not eyewitness of the incident and has admitted in her cross-examination that she had not seen the accused appellant on the date of incident. She has further admitted in her cross-examination that when the co-accused persons (acquitted by the trial court) came to her house and asked to solemnize the marriage of her daughter Km. Radha Rastogi with the accused appellant and quarrelled with her, only then she came to know that they had taken away her daughter. 13. PW2 Sanjay whose statement was recorded on 6.12.1993 has stated that about 15 months ago, on the date of incident at about 11 am when he was coming back from his shop, he had seen Mamta (PW3 Km. Radha Rastogi, the victim), Sudha and her mother (Smt. Makha) on Kiccha road chowk and when he enquired from Mamta as to where she was going then she told him that she was going to hospital. Next day he told about it to the mother of Mamta. In his cross-examination, he has admitted that Govt. hospital is not situated on Kiccha road. He has also admitted that the accused appellant was not with them. He further pleaded ignorance as to where Mamta thereafter went. 14. PW3 Km. Radha Rastogi @ Mamta is the victim of the case, who has stated in her statement that on 31.8.1992, she was at her house along with her mother and younger brother. Her younger brother was vomiting at that time. Her father was not in the house. Co-accused Sudha came to call her but she refused. She again came along with her mother. Her mother was standing at some distance. Sudha came near her. The time was about 8.30 to 9 a.m. Thereafter she went along with them in their house where she was given barfi (sweets) and tea. Therafter Sudha and her mother took her to Sitarganj bus stand on the pretext of her treatment by doctor. In the way, she met Sanju (PW1), Urvashi (PW4) and Bhagwan Devi, who also talked to the mother of Sudha. Thereafter she was boarded in a bus by Sudha and her mother and after making her to sit on the bus, they came out from the bus and told her to go with Jagdish and further said that they shall come along with the money. Thereafter she was boarded in a bus by Sudha and her mother and after making her to sit on the bus, they came out from the bus and told her to go with Jagdish and further said that they shall come along with the money. Jagdish is the maternal uncle of Sudha, who was also living in Sitarganj during those days. Thereafter Jagdish brought him to Nariawala village situated further to Bareilly in the house of Kallu and Ramwait, who are the mausa (husband of mother’s real sister) and mausi (mother’s real sister) of the accused appellant. There she was kept in a room and they use to lock the door from outside. She was not allowed to go anywhere. Co-accused Baburam (father of Sudha), Anjum, Nanhe, Ramvilas and Subhas used to visit that place and they used to entice her. On the fifth day, Jagdish brought her to Sitarganj in a bus, where they were waiting for another bus and then at about 12.30 pm, police caught her and the accused appellant. At that time, her father was also accompanying the policemen. She has further stated that accused appellant forcibly committed bad work with her in the house of Kallu and when she resisted, then he slapped her and threatened to kill her as well as her father. They wanted to forcibly solemnize her marriage with the accused appellant. In her cross-examination, she has stated that sometimes she used to visit the house of Sudha before the said incident and she was not acquainted with any of the accused except Sudha and her mother. She was not aware that Jagdish was brother-in-law of Anjum. She did not ask her mother as to whether she should go to the house of Sudha or not. She has further stated that it takes about 10-20 minutes to reach the bus stand from the house of Sudha on feet and the area between these places are populated and at that time people were going here and there. She also came across to some people of her mohalla in the way. She was accompanied in the way by Sudha and her mother (Smt. Makhan). Accused appellant Jagdish was not with her. 10-15 passengers were sitting in the bus in which she had boarded. She also came across to some people of her mohalla in the way. She was accompanied in the way by Sudha and her mother (Smt. Makhan). Accused appellant Jagdish was not with her. 10-15 passengers were sitting in the bus in which she had boarded. She did not complain to driver, conductor or any other passenger because she was under the impression that she was going take medicines. She was recovered by the police in Sitarganj and at that time accused appellant was also with her. She had complained to mausa and mausi of the accused appellant in Bareilly. She had gone to Bareilly from Sitarganj by us. She had changed the bus in the way and in that bus, other passengers were also sitting. When accused appellant committed bad work with her, then the bleeding started from her private part. 15. PW4 Smt. Urvashi Sharma whose statement was recorded on 26.5.1994 has stated that about one year and ten months ago, at about 9.30 am, she had seen the victim Radha along with Sudha and her mother at Sitarganj chowk. She also talked to the mother of Sudha, who told her that she was taking Km. Radha Rastogi to hospital for her treatment. Km. Radha Rastogi, Sudha and her mother were known to her. She had told about it to the mother of victim on 1.9.1992. In her cross-examination, she has stated that the victim did not complain anything to her. 16. PW5 S.I. Gedan Lal has stated that on 4.11.1992, she was posted in PS Sitarganj. On that day, investigation of this case was entrusted to him by the Inspector-in-charge and before that, investigation of this case was being done by S.I. Rakesh (PW9). During the course of investigation, he recorded the statements of the witnesses and after completing the investigation, he filed the chargesheet Ex.Ka-2 against the accused appellant and the co-accused (acquitted by the trial court). 17. PW6 Alok Saxena has stated that on 8.9.1992 she was posted as Munsif Magistrate, Khatima. On that day he had recorded the statement of the victim Km. Radha Rastogi under Section 164 CrPC and has proved the same as Ex.Ka-3. 18. PW9 SI Rakesh has stated that on 3.9.1992, he was posted in PS Sitarganj. The investigation of this case was entrusted to him. On that day he had recorded the statement of the victim Km. Radha Rastogi under Section 164 CrPC and has proved the same as Ex.Ka-3. 18. PW9 SI Rakesh has stated that on 3.9.1992, he was posted in PS Sitarganj. The investigation of this case was entrusted to him. This witness has proved the chick FIR Ex.Ka-7 and copy of GD Ex.Ka-8 and stated that the same were prepared by Head Moharrir Devendra Kumar Sharma, who was posted with him and he is well-acquainted with his handwriting. This witness has further stated that on 5.9.1992 at 12.30 pm he has recovered the victim Km. Radha Rastogi from the road near the Jindal Industries and the accused appellant was also arrested and thereafter he prepared the fard Ex.Ka-9. The undergarment of the accused appellant was also taken into possession and fard Ex.Ka-11 was prepared. Entry in regard to fard Ex.Ka-9 and Ka-11 was also made in the GD by Head Moharrir Devendra Kumar Sharma. Copy of GD is Ex.Ka-10. The victim was produced before the court of Munsif Magistrate, Khatima on 8.9.1992. During the course of investigation he recorded the statements of the witness. He also inspected the place of occurrence and the place of recovery and prepared the site plans Ex.Ka-12 and Ka-13 respectively. Thereafter investigation was transferred to SI Gedan Lal (PW5). 19. Thereafter, the statements of the accused appellant and the co-accused (acquitted by the trial court) were recorded under Section 313 of Cr.P.C. The oral and documentary evidence were put to them in question form, who denied the allegations made against them and stated that they have been falsely implicated in this case. However, they did not file any documentary or oral evidence in defence. 20. Learned counsel for the accused appellant argued that the Km. Radha Rastogi (PW3) was major on the date of incident and she had gone with the appellant out of her own free will and consent and the prosecution has not proved the case against the accused appellant beyond reasonable doubt and the appellant is entitled to get the benefit of doubt. I find substance in the argument of learned Counsel for the accused appellant for the following reasons : (i) That as per the supplementary medical report Ex.Ka-6 prepared by PW8 Dr. Shanti Lal, the age of victim Km. I find substance in the argument of learned Counsel for the accused appellant for the following reasons : (i) That as per the supplementary medical report Ex.Ka-6 prepared by PW8 Dr. Shanti Lal, the age of victim Km. Radha Rastogi determined on the basis of her x-ray report, was about 18 years at the time of incident. It is settled law that two years margin either on the upper side or lower side can be given. If two years margin on upper side is applied in this case, then her age is worked out as about 20 years’ and thus, she was major at the time of incident. (ii) That as per the statement of victim Km. Radha Rastogi (PW3), on 31.8.1992 she went to the house of the co-accused Sudha and her mother Smt. Makhan (acquitted by the trial court) when they came to call her and after having tea and sweets at their house, she went along with them to Sitarganj bus stand on feet which is situated at about 20 minutes walking distance form their house. She has stated that she was being taken by them to the hospital for her treatment. At the bus stand, she boarded on a bus for Bareilly and thereafter Sudha and her mother returned back. Firstly, it has nowhere come in the evidence that the victim was ill. Then why she went along with aforesaid co-accused for the treatment. Further, it has come in the evidence that when she came to the house of Sudha, the mother of victim was present in the house. In these circumstances, had the victim been ill, she could have gone along with her own mother. Moreover, even if it is assumed that she was going along with the aforesaid co-accused for her treatment, then why she alone boarded the bus for Bareilly and the aforesaid co-accused Sudha and her mother (acquitted by the trial court) returned back from the bus stand. Thus, it creates serious doubt on the prosecution story that she was lured in any way. (iii) That it is an admitted case of the prosecution that when she came along with the aforesaid co-accused to their house and thereafter at the bus stand, appellant accused Jagdish was not accompanying her nor he was present anywhere in the way. Thus, it creates serious doubt on the prosecution story that she was lured in any way. (iii) That it is an admitted case of the prosecution that when she came along with the aforesaid co-accused to their house and thereafter at the bus stand, appellant accused Jagdish was not accompanying her nor he was present anywhere in the way. None of the witnesses has stated that they had seen the appellant accused on the date of incident. (iv) That from her house co-accused Sudha, her mother Smt. Makhan and the victim Km. Radha Rastogi first came to the bus stand which was at about 20 minutes walking distance. She came across to many people of her mohalla in the way. At the bus stand, she also met Sanjay (PW2) and Smt. Urvashi (PW4). Thereafter she boarded the bus for Bareilly. Admittedly, in the bus many passengers were sitting. The aforesaid co-accused Sudha and her mother also returned back after boarding the bus by the victim. Thereafter she came to Nariawala village, which is farther to Bareilly. In the way, she also changed the bus wherein many other passengers were already sitting. At Nariawala village, she stayed for four days at the house of Kallu and Ramwati. On the fifth day i.e. on 5.9.1992, she along with the accused appellant came to Sitarganj in a bus, where they were waiting for another bus and at that time at about 12.30 pm, they were caught by the police. The distance between Sitarganj to Bareilly is about 100 kilometers. She went to Nariawala village which is ahead of Bareilly. Thereafter she returned back to Sitarganj in a bus. In this way, she travelled more than 200 kilometres in many buses which crossed through densely populated cities and other places like bus stand, etc. and also stayed in the house of Kallu and Ramwait, the relatives of accused appellant, but she never made any hue and cry nor did she complain to anybody in the way. This conduct of Km. Radha Rastogi @ Mamta shows that she was a consenting party and she went and stayed along with the accused appellant Jagdish out of her own free will and consent. This conduct of Km. Radha Rastogi @ Mamta shows that she was a consenting party and she went and stayed along with the accused appellant Jagdish out of her own free will and consent. (v) That the incident took place at 9 am on 31.8.1992 and the complainant also came to know about it on the same day and she was aware that as to who had taken the victim Km. Radha Rastogi, even then the FIR could be lodged on 3.9.1992 at 2.30 pm though the police station was situated at a stone’s throw. This delay in lodging the FIR has not been explained by the prosecution by showing the sufficient cause. Therefore, this delay in lodging the FIR is also fatal to the case of prosecution. (vi) That all the co-accused have been acquitted on the basis of same set of evidence. 21. In view of my foregoing discussion of evidence and for the reasons recorded above, prosecution has failed to prove its case against the accused appellant beyond reasonable doubt for the offence punishable under Sections 366 & 376 IPC and the appellant is entitled to get the benefit of doubt. As such, the impugned judgment and order of the trial court is not correct and justified and the same is liable to be set aside. 22. Resultantly, appeal is allowed. Judgment and order dated 25.7.1998 passed by the III Additional Sessions Judge, Nainital in Sessions Trial No. 31/1993, State v. Jagdish & Ors. is herby set aside. Conviction of the appellant Jagdish under Section 366 and 376 IPC is hereby quashed and sentence awarded to him to undergo three years R.I. under Section 366 and seven years’ R.I. under Section 376 IPC along with fine of Rs. 2,000/- is hereby set aside. Appellant is on bail. His bail bonds are cancelled. He need not surrender unless required in any other case. 23. Let the lower court record be sent back.