Rajasthan High Court - Jaipur
Mahesh Alias Sanjay vs State Of Rajasthan on 6 July, 1999
Equivalent citations: 1999CRILJ4625
ORDER M.A.A. Khan, J.
1. Briefly stated the prosecution case is that during the year 1988 PW 7 Suman alias Pinky, aged about 12 or 13 years at that time, was living in village Hamirpur under Police Station Mundawa, Distt. Jhunjhunu (Raj.) with her grandmother PW 2 Smt. Harkari (80) and mother PW 3 Smt. Janki Devi (58). Her father RW 1 Bhagwan Singh (60) used to reside at Pilani where he was employed as a Teacher. Her brother, Mahender, is stated to be living at Calicut in connection with his employment there.
2. Suman was studying in VIIIth class in Palika Ucha Prarthamic Vidhayalay at Nuwa and used to go to her school along with other girls of her village. Mahesh appellant, then aged about 20 or 22 years is resident of the same village Hamirpur. Earlier he was living in Assam wherefrom he had returned to his village. He is stated to be loafer type fellow doing nothing in the village and simply chasing the school going girls. He is stated to have developed intimacy with Suman with whom he exchanged some love letters also.
3. It is in the above backdrop that the prosecution case further is that during1 the intervening night of 1 /2 -12-1988 the appellant enticed Suman from her house along with the ornaments and, cash belonging to her family. He first took her to Jhunjhunu and then to Lucknow where he stayed in Room No. 110 of Avadh Guest House where PW 8 Mansoor was working as a Manager. One Ram Murti Misra used to work as a waiter in the said guest house. The appellant stayed in the said guest house for the night of 2/3-12-1988 and, allegedly repeatedly subjected Suman to sexual act.
4. The appellant had developed friendship with Ram Murti Misra aforesaid who helped him to dispose of some of the gold ornaments and also managed their stay first in Chaudhary Hotel and then at his own house. Ram Murti then took the appellant and Suman to his in-law's house at Malda (West Bengal) where after staying with the family of his in-laws for some time a separate house was purchased with the money obtained from selling some more ornaments of Suman.
5. The appellant, Suman and Ram Murti stayed at Malda for about 1-1/2 years where, it is alleged, Suman was forced to have sexual intercourse with not only Ram Murti but also with several other friends of the appellant, from whom the appellant used to charge money and meet, household expenses. Suman gave birth to a son, ¦ Raju, there at Malda (West Bengal) in the year 1991. All the ornaments of Suman were sold by, the appellant at Malda with the help of Ram Murti's younger brother. Ram Murti then returned to Lucknow. The appellant after disposing his house at Malda, also came back to Lucknow after some time and started living there in a, rented house. He began to work as an auto-rickshaw driver and Suman began to teach some children.
6. It is alleged that there at Lucknow the appellant took Suman to a person on the pretext of getting a job for her in a school and after leaving her with him retired. When Suman tried to return to her house, that fellow did not allow her to leave him and he told her that he had purchased her from the appellant for Rs. 20,000/-. He confined her in a room and committed rape on her. She was wrongfully confined by him for about 15 days. He then sold. her to one Ram Bhajan aged about 40 years and also an infirm fellow by one hand. Ram Bhajan had three brothers, one Ram Sharan being the youngest. Both the brothers fought for her and Ram Sharan allegedly succeeded in taking Suman to his house in village Teliwada in Haryana State. He too subjected her to sexual intercourse.
7. One day, when all the members of the family were out on their field, Suman along with her, son, Raju and after stealing Rs. 600/- from that house left the place for village Misrik in Sitapur Distt. where Ram Bhajan used to reside earlier and from there she reached Sitapur. From Sitapur she reached Delhi and from Delhi she went to her elder sister's house in village Desusar in Jhunjhunu Dist. on 30-5-1996.
8. Reverting to the year 1988 for completion of the narration it may be mentioned that on knowing of the missing of Suman from the house in the morning of 2nd December 1988 the two ladies in the house at village Hamirpur informed PW 1 Bhagwan Singh at Pilani of that fact. Bhagwan Singh reached the village and with the help of PW 4 Sudhir, Ward Punch, PW 9 Lichma Ram, PW 10 Bhima Ram and some others tried to know the whereabouts of Sumari and the appellant, who was also found missing from the village. After having failed in the search of his daughter at several places, PW 1 Bhagwan Singh ultimately reported the matter to the police authorities at Police Station Mundawa on 10-12-19£!8. PW 16 Ritesh Kumar, the then Station House Officer registered Crime No. 96 under Section 363, 380 IPC vide FIR No. Ex. P/l/2.
9. On 30-5-1996, PW 1 Bhagwan Singh came to known through his son-in-law, of the return of Suman, with a child, at his house at village Desusar. He took her to the concerned Superintendent of Police who forwarded them to Police Station Mundawa.
10. In the course of investigation Suman was produced before PW 11 Shri Ravi Prakash Sharma Magistrate, who recorded her statement under Section 164, Cr.P.C. She was also got medically examined by a board of doctors comprising of Lady Doctor Smt. Indra Singh (PW 5) and PW/6 Dr. J.P. Bugalia. She was found aged between 19 and;21 years and carrying a pregnancy of 26 weeks at that time. In the course of investigation by PW 12 Ram Singh SHO, PW 13 Phool Chand HC) and PW 15 Ghisa Ram ASI, necessary documents relevant to the age of Suman, were also obtained from PW 14. Smt. Sarita Saini, the Head Mistress of the Balika Uchha Madhaymik Vidhalaya Nuwan, wherein her date of birth was mentioned as 15-7-1976.
11. The appellant was arrested on 16-6-1996 vide Ex. P 20 from Aliganj at Lucknow. Ram Murti Misra aforesaid could not be traced, and, therefore, investigation" against him and others was "kept pending " as per provisions contained in Section 173(8), Cr.P..C. The present appellant only was charge-sheeted for having committed the offences under Section 376, 363, 372 and 380, IPC.
12. After committal of the case to him, the learned trial Judge framed charges under Section 366A, 376(1) and 376(2)(g) IPC against the appellant. The plea taken by the appellant in his defence was that Suman had gone with him of her own free will, married with him at Malda on her own sweet will, he had sexual intercourse with her as his wife with her consent and she had given birth to his son, Raju, on June 6, 1991. He produced no evidence in support of such plea. The learned trial Judge found the prosecution theory proved through the statements of sixteen witnesses examined at the trial of the appellant. Accordingly he held the appellant guilty of the offences under Section 366A and 376, IPC vide his judgment and order dated 7-4-1997, passed in Sessions Case No. 118/96, convicted him there under and sentenced him to five years Rigorous Imprisonment and fine of Rs. 200/- for each of the two offences. The substantive sentences of imprisonment were directed to run concurrently.
13. The main contention of Mr. Ashok Sharma, the learned counsel for the appellant, was that Suman was not kidnapped and raped by the appellant, instead she had herself gone with the appellant to Malda where she had married with him of her own free will and consent and, therefore, the appellant could not be held guilty of either of the two offences, I find no force in this argument.
14. It is well established on the record of this case that at the time of the commission of offences in the year 1988 Suman was an unmarried minor girl aged about 12 or 13 years and a student of Class VIIIth only. This fact was stated not only by her father PW 1 Bhagwan Singh and her mother PW 3 Smt. Janki Devi but also by the ward panch PW 4 Sudhir and other independent witnesses namely, PW 9 Lichma Ram and PW 10 Bhima Ram. The parents of the girl may reasonably be expected to be naturally haying direct knowledge of the birth, of Suman. Their testimony therefore, inspires confidence in me.
15. The testimony of the parents of Suman on the point of her age is further corroborated by the medical evidence in the case, tendered by two expert witnesses namely PW 5 Dr. (Mrs.) Indra Singh and PW 6 Dr. M.P: Buglia. These two expert witnesses based their opinion regarding the age of Suman on the development of her body and bones. Suman was examined by them on 2-6-1996 i.e. after about 8 years of the occurrence and on that day she was opined to be aged between 19 and 21 years. The basis of such opinion was the X ray examination of various bones of Suman, relevant to the determination of her age at that time. Thus the medical evidence on record fully supports the direct and oral evidence on the age of Suman as being about 12-13 years at the time of her taking away by the appellant from the guardianship of her parents on 1-2-12-1988. This fact is further corroborated by the entry of her date of birth as 15-7-1976 in the Scholars Register which entry was proved by PW 11 Smt. Sarita Saini, Head Mistress. The learned trial Judge has, therefore, rightly held that Suman was a minor girl, much below 16 years at the time of commission of offences under Sections 366A and 376(1) IPC against her on and after 1-2-12-1988.
16. Once the age of Suman is found to be at about 12 or 13 years i.e. much below the age of sixteen at the time of her having been taken away by the appellant, her consent in going with him becomes quite immaterial. At the age of 12 or 13 years Suman cannot be said to have acquired the age of discretion so as to understand as to what was good or bad for her. Consent, given by a minor for doing an act or an act being done to her, which act constitutes an offence is no consent in criminal cases. At the age of 12 or 13 Suman was quite an immature girl and quite incapable of making any decision with regard to herself. Therefore, the argument that since Suman had herself gone with the appellant on her own has no merits and is hereby rejected.
17. It was next urged by the learned counsel that Suman had contracted marriage with the appellant and subsequently in the year 1991, a son was also born to the couple and these facts would again establish that Suman had acted as a free girl and that she had willingly consented to her marriage with the appellant. Again, the argument is misconceived.
18. Taking the above argument of Mr. Sharma on its face value, it may be noted that Suman had given birth to a male child in Malda (West Bengal) in June 1991 i.e. at about two and half year of her kidnapping by the appellant. At that time she was aged about 15 years at the most. She must have been subjected to sexual intercourse at the age of 14 or so. Looking to the fact that she was kidnapped at an age of 12 or 13 years and then taken away to a far away place to Lucknow and Malda where she had no relatives, it cannot be said that she had either condoned the guilt of her kidnapper or that she had become a free girl so as to give free consent in her marriage. She had all along been under the influence of the appellant. Under such circumstances, even if it be assumed for arguments sake that she had attained the age of discretion (which she had certainly not done) it cannot be held that she had consented to the commission of sexual act with her by the appellant or to get herself married with him. The argument advanced has no force and is accordingly rejected.
19. It is available in the testimony of Suman that she was forced by the appellant to have sexual intercourse with other persons also against her will and without her consent. She has again stated that the appellant had handed her over to a Dalai in Lucknow after having received some amount from him and that the said Dalai had further sold her to a 'Sardar' who took her to Haryana wherefrom she had ran away in the absence of the members of the family of such 'Sardar' fellow. There are no good reasons to disbelieve her statement on those points. On such facts the learned trial Judge has rightly held the appellant guilty of the offence under Section 366A IPC apart from under Section 376 IPC.
20. In the end Mr. Sharma urged for leniency in the sentence of the appellant. The learned trial Judge has himself applied the proviso to Section 375, IPC in this case to the advantage of the appellant, may be unjustifiable. No mitigating facts justifying further reduction in the already lenient sentence awarded to the appellant were brought on the record of the case. Misplaced sympathy to an offender who is proved to have committed sexual offence against a minor girl may not only encourage acts but also would cause injustice to the victim of a ghastly offence besides causing irreparable loss to the very system of dispensation of criminal justice to the people. The prayer is turned down.
21. Before parting with the case I would like to observe that the investigating officers appear to have taken no pains in bringing to book other culprits in this case. Ram Murti Misra, the Dalai at Lucknow, the Sardar named by Suman and other several persons who helped the appellant in detaining and/or wrongfully confining her in their houses, knowing her to be a kidnapped girl, were not properly proceeded against after the return of Suman to her parents. Even Ram Murjti Misra, who was clearly alleged by Suman in her statement under Section 164, Cr.P.C. 10 have actively participated in the commission of sexual offence against her was not apprehended and practically let off by the Investigating Officers in the garb of "pendency of investigation" against him under Section 173(8), Cr.P.C.
22. The provisions contained in Section 173(8), Cr.P.C. are to enable the police to collect more evidence in a case wherein a report under Section 173(2), Cr.P.C. has been submitted by it against some persons. Section 173(8) does not go to put any hindrance in the way of an investigating officer to get an absconding accused declared a 'proclaimed offender' and to submit a report under Section 299, Cr.P.C. against the absconding accused and then to proceed to take recourse to the provisions contained in Sections 82/83, Cr.P.C. against such proclaimed offender to enforce his appearance either before him or before the concerned Magistrate or Court. The provisions of Section 173(8), Cr.P.C. are not intended to nullify and to render redundant the provisions contained under Section 299, Cr.P.C. Proceedings under Section 299, Cr.P.C. help to collect such evidence in the absence of the accused, as may be legally used against him at his trial subsequently in case the witnesses tendering evidence against him, are dead or cannot be available without causing inordinate delay and great expenditure.
23. Section 173(8), Cr.P.C. does not at all empower the investigating officer to practically 'acquit' the absconding accused by taking recourse to that sub-section in the name of 'investigation kept pending' as has been done in the present case in the matter of Ram Murti Misra.
24. Cases have came up before this Court wherein it was noticed that the main accused, clearly named by the witnesses as such, in heinous crime like pre-planned and organised murders, rapes, gang rapes etc. were not charge-sheeted either along with other accused as per Section 173(2) or as absconders under Section 299, Cr.P.C. They were either not apprehended at all subsequently or if at all apprehended that was done after the decision in the case against the accused charge-sheeted or after- loss of evidence against him during the meanwhile. It was simply mentioned in the police report submitted in Court under Section 173, Cr.P.C. that in such cases 'investigation was kept pending against them. The accused persons in respect of whom investigation was kept pending were not unknown and untraceable was they were clearly named in FIR and the statements of witnesses recorded under Section 161, Cr.P.C. and in majority of the cases, on bail either from the trial Court or from this Court. Despite there being the same evidence against them as was there on record against those persons who were named as accused in the report under Section 173(2), Cr.P.C. investigation was shown as kept pending against them. Courts would be failing in their duties if they fail to pass appropriate orders according to law in respect of persons, though having the same incriminating evidence against them in the police report and the documents accompanying such reports, as made the basis for submitting a police report under Section 173(2), Cr.P.C. against the others. Law cannot be permitted to be used for the protection of criminals. Section 173(8), Cr.P.C. thus was found being observed not for collecting evidence against culprits but for their acquittal without trial. Such acts of erring investigating officers is not only actively and positively encourage commission of heinous crimes in the society and make such criminals dare devils for peace loving citizens but also maligns the fair name of police and is rapidly causing erosion in their faith of people in their protectors.
25. Time and again this Court has invited the attention of the high ups in the police administration to this state of affairs in the administration of criminal justice in the State. This Court again invites the attention of such authorities in the facts and circumstances of this case and expects them to look into such state of affairs and issued necessary instructions/directions to the investigating officers in that behalf. With that end in view it is directed that a copy of this order shall be forwarded to the Home Secretary/Home Commissioner and the Director General Police (Administration), Rajasthan, Jaipur for information and necessary action, if deemed proper.
26. In the result the conviction and sentence of the appellant for offence under Section 366A and 376(1), IPC are hereby confirmed, the impugned judgment and order upheld and the appeal dismissed. Copies of this order be sent to the authorities named above.