Research › Search › Judgment

Jharkhand High Court · body

2019 DIGILAW 94 (JHR)

Bharat Bhushan Upadhyaya v. State of Jharkhand

2019-01-10

RAJESH SHANKAR

body2019
JUDGMENT : 1. Both the criminal appeals have been preferred against the judgment of conviction and the order of sentence dated 18.11.2003 & 21.11.2003 respectively passed by the learned Additional Judicial Commissioner, Fast Track Court-VIII, Ranchi in Sessions Trial No. 477 of 1998/Trial No. 93 of 2003. 2. In Criminal Appeal No. 77 of 2004, the appellant (Bharat Bhushan Upadhyaya) has been convicted for the offences under Sections 363, 366A & 376 of the IPC. He has been sentenced to undergo rigorous imprisonment (R.I) for four years and to pay fine of Rs.2000/- for the offence under Section 363 of the IPC and in case of default in payment of fine, to undergo further R.I for 6 months. He has been further sentenced to undergo R.I for five years for the offence under Section 366A of the IPC and to pay fine of Rs.2000/- and in case of default in payment of fine, to undergo further R.I for six months. He has further been sentenced to undergo R.I for seven years and to pay fine of Rs.2000/- for the offence under Section 376 of the IPC and in case of default in payment of fine, to undergo further R.I for six months. All the sentences were directed to run concurrently. 3. In Criminal Appeal No. 1710 of 2003, the appellants (Mina Devi and Siyaram Sharan Upadhyay) have been convicted for the offence under Section 368 of the IPC and sentenced to undergo R.I for five years and to pay fine of Rs.2000/- and in case of default in payment of fine, to undergo further R.I for six months. 4. The prosecution story in brief, as stated in the fardbeyan of the informant (Makhan Tiwari) on 20.12.1995, is that on 04.12.1995 at about 10.30 A.M, accused Mina Devi, wife of accused Siyaram Sharan Upadhyay, sent her daughter to call the informant’s daughter (victim) to her house. After sometime, the informant’s daughter came back from the house of accused Siyaram Sharan Upadhyay and proceeded to her school for depositing fee. When the informant’s daughter did not return from the school, the informant started searching her but he could not trace her out. After sometime, the informant’s daughter came back from the house of accused Siyaram Sharan Upadhyay and proceeded to her school for depositing fee. When the informant’s daughter did not return from the school, the informant started searching her but he could not trace her out. It has further been alleged in the fardbeyan that about 4-5 months back, Mina Devi had sent a proposal to the informant for marrying her son with his daughter which was refused by the informant and then accused Siyaram Sharan Upadhyay and his wife had threatened the informant that they would get their son married with his daughter forcibly, if they did not agree to the same. It has also been alleged that the informant came to know about 3-4 days ago that his daughter was kidnapped by accused Bharat Bhushan Upadhyay @ Bablu with an intention to marry her. The informant’s daughter is presently at Delhi where the eldest son of accused Siyaram Sharan Upadhyay, namely, Chandra Sharan Upadhyay is residing. The informant received a post card written by the accused Bharat Bhushan Upadhyay which is self-explanatory. 5. On the basis of the fardbeyan of the informant, Kanke P.S. Case No. 86 of 1995 was lodged under Sections 363/366A of the IPC against the accused persons. During the course of investigation, the police recovered the victim girl from the house of the accused persons at Arsunday, Boreya and also seized some incriminating articles suggesting the stay of accused Bharat Bhusan Upadhyay with the victim girl at different places. The police submitted the charge sheet against accused Bharat Bhusan Upadhyay on 30.03.1996 under Sections 363/366/376 of the IPC. A supplementary charge sheet was submitted by the police on 23.12.1997 against accused Mina Devi and Siyaram Sharan Upadhyay under Sections 363/366A/376 of the IPC. Thereafter, the case was committed to the Court of Session for trial. Charges were framed on 06.05.1999 against accused Bharat Bhusan Upadhyay under Sections 363/366A/368/376 of the IPC and against accused Mina Devi and Siyaram Sharan Upadhyay under Sections 363/366A/368/376 read with Section 109 of the IPC. 6. In order to substantiate the charges framed against the appellants, the prosecution has examined altogether seven witnesses. P.W-1 (Makhan Tiwari) is the father of the victim girl and the informant of the case. P.W-2 is the victim girl. P.W-3 (Sonu Tiwari) is the brother of the victim girl. 6. In order to substantiate the charges framed against the appellants, the prosecution has examined altogether seven witnesses. P.W-1 (Makhan Tiwari) is the father of the victim girl and the informant of the case. P.W-2 is the victim girl. P.W-3 (Sonu Tiwari) is the brother of the victim girl. P.W-4 (Praduman Kumar Tiwari) is the brother of the victim girl. P.W-5 (Pawan Kumar) is an independent witness. P.W-6 (Nageshwar Ram) is a formal witness. P.W-7 (T.N Pathak) is the Investigating Officer. 7. Defence has also examined two witnesses in support of its case. D.W-1 (Bramchari Manya Mitra) is the Head Master of the school where the appellant Siyaram Sharan Upadhyay was posted. D.W-2 Anandani Kumari is the sister of accused Bharat Bhushan Upadhyaya. 8. Learned Trial Court, relying on the documents and evidences available on record, held the appellants guilty for the alleged offences convicting and sentencing them as indicated herein above. 9. P.W-1 is the father of the victim girl, who is also the informant of the case. In course of his examination, he supported the version of the fardbeyan. He deposed that at the time of the alleged occurrence, the age of the victim girl was fourteen years. He further deposed that on 04.12.1995 at about 9.30 AM, the daughter of accused Siyaram Sharan Upadhyaya had called the victim girl to her house and then she went to the house of the accused persons. After returning from the house of the accused persons, the victim girl left her house for depositing the school fee and for getting some clothes stitched. When the victim girl did not return home, he started searching her, but he could not trace out her. Thereafter, he reported the matter to the police on 06.12.1995. After about 7-8 days, he received a post card written by accused Bharat Bhushan Upadhyaya informing him that he has brought the victim girl and he would forcibly marry her. Thereafter, the informant lodged a written report on 20.12.1995. When the informant came to know that accused Bharat Bhushan Upadhyaya and the victim girl are in the house of accused Siyaram Sharan Upadhyay, he informed the police. The police recovered the victim girl from the house of the accused persons and also arrested accused Bharat Bhushan Upadhyaya. Thereafter, the informant lodged a written report on 20.12.1995. When the informant came to know that accused Bharat Bhushan Upadhyaya and the victim girl are in the house of accused Siyaram Sharan Upadhyay, he informed the police. The police recovered the victim girl from the house of the accused persons and also arrested accused Bharat Bhushan Upadhyaya. He further deposed that about 4-5 months back, accused Siyaram Sharan Upahyaya had proposed for the marriage of the accused Bharat Bhushan Upadhyaya with the victim girl which was refused by him and then he had threatened him that he would forcibly get their marriage solemnized. During his cross-examination, the P.W-1 deposed that his house is situated about 40-45 yard distance from the house of the accused persons and there was a friendly relationship between them. They are of the same caste. 10. P.W.2 is the victim girl who deposed that on 04.12.1995, when she went to the house of the accused persons, they threatened to get her married to accused Bharat Bhushan Upadhyaya, otherwise her father and brother would be killed. She further deposed that about 100 yard before the school, the accused persons along with one Vijay Laxmi forcibly dragged her in a tempo (i.e. an auto rickshaw). She also deposed that the accused Bharat Bhushan Upadhyaya committed rape on her at Tata (i.e., Jamshedpur), Bhubneshwar and Rourkela and he also took her to Delhi where she was kept in the house of one Chandra Shekhar Upadhyay, who is the elder brother of accused Bharat Bhushan Upadhyaya and there also he committed rape on her. Thereafter, she was brought back to Boreya where she was not allowed to talk to her father and the accused persons locked her in a room. On 1st January, the police came to the house of the accused persons and released her from there. The victim girl further deposed that she had given her statement under Section 164 of the Cr.P.C before the Judicial Magistrate and she was also examined by the doctor. 11. P.W-5 deposed that the informant had told him that the victim girl had left her house with the accused Bharat Bhushan Upadhyaya. He further deposed that he had subsequently come to know that the victim was in the house of the elder brother of the accused Bharat Bhushan Upadhyaya at Delhi. 12. 11. P.W-5 deposed that the informant had told him that the victim girl had left her house with the accused Bharat Bhushan Upadhyaya. He further deposed that he had subsequently come to know that the victim was in the house of the elder brother of the accused Bharat Bhushan Upadhyaya at Delhi. 12. P.W.7-the Investigating Officer deposed that on 01.01.1996, he got information about the kidnapping of the victim girl by accused Bharat Bhushan Upadhyaya. He raided the house of the accused persons and recovered the victim girl. On raid, he found several papers showing the places where the victim girl was taken. P.W.7 proved the bus fare receipts and hotel receipts, which have been marked as the exhibits. He further deposed that he had recorded the statement of the victim girl and got her medically examined. The requisition through which the request was made for medical examination of the victim girl has been proved by him in his evidence which has been marked as Ext.-6. He also deposed that he visited the school where the victim girl was studying and obtained a certificate with regard to her age which shows that she was born on 15.12.1980. He also deposed that he got the statement of the victim girl recorded under Section 164 of the Cr.P.C and then submitted the charge sheet before the Court. During his cross-examination, P.W.7 stated that he had not prepared the seizure list of the certificate issued by Boreya Balika Vidyalaya relating to the age of the victim girl. He had not seen the admission form of the victim girl and had not verified the date of birth of the victim girl from the school register. 13. D.W-1 stated that on the alleged date of occurrence, accused Siyaram Sharan Upadhyaya was in his school at 10.30 A.M. 14. D.W-2 stated that the victim girl used to take tuition with her from accused Bharat Bhusan Upadhyaya who also used to go to the house of the victim girl to teach her. She further deposed that she used to call the victim girl as sister, but she used to insist her to call Bhabhi. 15. The learned Sr. D.W-2 stated that the victim girl used to take tuition with her from accused Bharat Bhusan Upadhyaya who also used to go to the house of the victim girl to teach her. She further deposed that she used to call the victim girl as sister, but she used to insist her to call Bhabhi. 15. The learned Sr. counsel for the appellants while assailing the impugned judgment of conviction and the order of sentence, submits that there is no material on record to constitute an offence under Section 368 of the IPC against appellants Mina Devi and Siyaram Sharan Upadhyay. It is further submitted that the learned Court below at paragraph 18 of the judgment has given a concrete finding that the victim girl was not forced to leave her house, rather she was a consenting party in moving out of her house to different places in company of appellant Bharat Bhusan Upadhyaya. The learned Court below has however failed to appreciate the fact that the doctor who examined the victim girl, assessed her age between 17 to 19 years, but the prosecution due to some oblique reason, did not examine the doctor and in such a situation, the learned Court below was required to draw an adverse inference against the prosecution in view of Section 114(g) of the Evidence Act, 1872. It is further submitted that the learned Court below should not have accepted the age of the prosecutrix below 16 years in absence of any cogent evidence produced by the prosecution. The learned Court below should have taken into consideration that the victim girl was not minor and once the Court below has given the finding that she was a consenting party, on this ground alone, the appellants should not have been convicted. It is further submitted that the learned Court below also should not have convicted and sentenced appellants Mina Devi and Siyaram Sharan Upadhyaya under Section 368 of the IPC as no witness has stated that the victim girl was wrongfully concealed or confined by them. It is further submitted that the appellants have been seriously prejudiced as the circumstance which has been taken into consideration for convicting and sentencing the appellants, has not been put to them under Section 313 of the Cr.P.C. 16. It is further submitted that the appellants have been seriously prejudiced as the circumstance which has been taken into consideration for convicting and sentencing the appellants, has not been put to them under Section 313 of the Cr.P.C. 16. Per-contra, the learned APP appearing on behalf of the State submits that the impugned judgment of conviction and the order of sentence have been passed having regard to the consistent version of the victim girl regarding the factum of kidnapping and rape. The learned Court below after considering the deposition of the victim girl and her father as also relying on the school certificate brought on record by the Investigating Officer, came to the concrete finding that at the time of the alleged occurrence, the victim girl was below 16 years of age and as such even if it is accepted that the victim girl was a consenting party for the alleged offence, such consent would be treated as an invalid consent and therefore the impugned judgment needs no interference. It is further submitted that it is settled proposition of law that the opinion of the doctor with regard to the age of the victim girl cannot prevail over the deposition of the father of the victim girl and the school certificate. Moreover, the appellants did not cross-examine the father of the victim girl and the victim girl with regard to the age of the victim girl during the trial and as such the same cannot be raised at subsequent stage. 17. Heard the learned counsel for the parties and perused of the L.C.R. On going through the evidence of the prosecution witnesses as well as the defence witnesses, it transpires that there was a friendly relationship between the family of the victim girl and the appellants. Appellant Bharat Bhusan Upadhyaya used to visit the house of the victim girl. It is the own admission of P.W-1 (the father of the victim girl) that a proposal for marriage of the victim girl and Bharat Bhusan Upadhyaya came from the accused persons which was not accepted by him. The circumstance under which the victim girl had gone and stayed with appellant Bharat Bhusan Upadhyaya suggests that she had gone with her free will. The circumstance under which the victim girl had gone and stayed with appellant Bharat Bhusan Upadhyaya suggests that she had gone with her free will. So far as the physical relationship between appellant Bharat Bhusan Upadhyaya and the victim girl is concerned, during her examination, the victim girl deposed that while she was staying with appellant Bharat Bhusan Upadhyaya, he committed rape on her. However, the evidence on record reveals that the victim girl visited several places by public transport such as bus, train etc. with appellant Bharat Bhusan Upadhyaya, but she did not raise any alarm about her kidnapping and rape, which draws strong inference that she moved out from her house with appellant Bharat Bhusan Upadhyaya and stayed with him at different places with her free will. The doctor, who had examined the victim girl also did not find any sign of rape on her person. 18. In a case like the present one where a girl moved with a person with her own will and stayed with him for a couple of days at different places and physical relationship was also established between them, the age of the victim girl becomes quite relevant as the consent of the victim girl of less than 16 years of age is no consent in the case of rape and of less than 18 years of age in the case of kidnapping. 19. The Hon’ble Supreme Court in the case of Satish Kumar Jayanti Lal Dabgar Vs. State of Gujarat reported in (2015) 7 SCC 359 , has held as under: “14. The first thing which is to be borne in mind is that the prosecutrix was less than 16 years of age. On this fact, clause sixthly of Section 375 IPC would get attracted making her consent for sexual intercourse as immaterial and inconsequential. It reads as follows: “375. Rape.-A man is said to commit ‘rape’ who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions- *** Sixthly.-With or without her consent, when she is under sixteen years of age. Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.” 15. The legislature has introduced the aforesaid provision with sound rationale and there is an important objective behind such a provision. Explanation.-Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.” 15. The legislature has introduced the aforesaid provision with sound rationale and there is an important objective behind such a provision. It is considered that a minor is incapable of thinking rationally and giving any consent. For this reason, whether it is civil law or criminal law, the consent of a minor is not treated as valid consent. Here the provision is concerning a girl child who is not only minor but less than 16 years of age. A minor girl can be easily lured into giving consent for such an act without understanding the implications thereof. Such a consent, therefore, is treated as not an informed consent given after understanding the pros and cons as well as consequences of the intended action. Therefore, as a necessary corollary, duty is cast on the other person in not taking advantage of the so-called consent given by a girl who is less than 16 years of age. Even when there is a consent of a girl below 16 years, the other partner in the sexual act is treated as criminal who has committed the offence of rape. The law leaves no choice to him and he cannot plead that the act was consensual. A fortiori, the so-called consent of the prosecutrix below 16 years of age cannot be treated as mitigating circumstance.” 20. In the case in hand, so far as the age of the victim girl is concerned, the mother of the victim girl has not been examined. The father of the victim girl has deposed that at the time of the alleged occurrence, the age of the victim girl was 14 years. The victim girl at the time of her deposition i.e. on 05.09.2000 has stated her age as 20 years and thus as per her statement, she was about 15 years of age at the time of the alleged occurrence i.e. on 04.12.1995. In the statement recorded under Section 164 of the Cr.P.C, the age of the victim girl has been recorded as 15 years. The prosecution has brought on record a certificate issued by the Principal of Kanya High School, Boreya, Ranchi wherein the date of birth of the victim girl has been recorded as 15.12.1980. However, the said certificate has not been proved/exhibited by calling upon the executant of the said certificate. The prosecution has brought on record a certificate issued by the Principal of Kanya High School, Boreya, Ranchi wherein the date of birth of the victim girl has been recorded as 15.12.1980. However, the said certificate has not been proved/exhibited by calling upon the executant of the said certificate. The Investigating Officer, who procured the said certificate from the school, during his cross examination, has also deposed that he had not verified the school register to authenticate the said certificate. 21. The Hon’ble Supreme Court in the case of Vishnu @ Undrya Vs. State of Maharashtra reported in (2006) 1 SCC 283 , has held as under: “22. ------ Normally, the age recorded in the school certificate is considered to be the correct determination of age, provided the parents furnish the correct age of the ward at the time of admission and it is authenticated. In the present case, as already noted, the parents had admitted to have given an incorrect date of birth of their daughter, presumably with a view to make up the age to secure admission in the school. Apart from this, as noticed earlier, the school certificate collected by PW 15 SI Bagal was not an authenticated document. Nobody was produced to prove the date of birth recorded in the school certificate. ---” 22. I have also perused the judgment rendered by the learned Single Judge of Patna High Court, Ranchi Bench in Criminal Appeal No. 40 of 1986(R) [Champa Oraon Vs. The State of Bihar] with Criminal Appeal No. 41 of 1986(R) [Jai Prakash Nayak Vs. The State of Bihar], which has been relied upon by the learned Sr. counsel for the appellants in support of his argument. Paragraph 7 of the said judgment reads as under: “7. In cases involving sexual offences, the age and character of the prosecutrix are of paramount importance. In the instant case, as regard the age of BimlaKumari P.W no satisfactory evidence is available to show that she was a minor or less than 16 years of age on the date of the occurrence. Neither her birth certificate nor any entries of school record has been produced for showing her age. She was also not got subjected to X-ray examination for determination of her age.” 23. Further, in the case of Lalta Prasad Vs. Neither her birth certificate nor any entries of school record has been produced for showing her age. She was also not got subjected to X-ray examination for determination of her age.” 23. Further, in the case of Lalta Prasad Vs. State of Madhya Pradesh reported in AIR 1979 SC 1276 , a Three-Judge-Bench of the Hon’ble Supreme Court has held that the date of birth mentioned in the school certificate issued by a private school cannot be an evidence of the statement of the deceased father given at the time of admission when the application form was neither produced nor proved. 24. Moreover, the doctor who had examined the victim girl after her recovery, has assessed her age as 17-19 years, but he was not examined by the prosecution. Under such circumstance, the non-examination of doctor has caused serious prejudice to the case of the appellants. The learned trial court had also not constituted a Medical Board to ascertain the age of the victim girl in the circumstance when the age of the victim girl was not proved by a consistent version of the prosecution witnesses supported by the documentary evidence. Since the prosecution has failed to prove that at the time of the alleged occurrence the victim girl was minor, the appellants should be given the benefit of doubt. Thus, in my considered opinion, the prosecution has failed to bring home the charges framed against the appellants as the finding recorded by the learned Trial Court that the age of the victim girl was below 16 years is without any cogent evidence. 25. In the result, both the appeals are allowed. The impugned judgment of conviction and the order of sentence dated 18.11.2003 & 21.11.2003 respectively passed by the learned Additional Judicial Commissioner, Fast Track Court-VIII, Ranchi in Sessions Trial No. 477 of 1998 | Trial No. 93 of 2003 is hereby quashed and set aside. Since the appellants are on bail, they are discharged from the liability of their bail bonds.