Patna High Court
Puran Singh And Ors. vs State Of Bihar on 5 January, 2000
Equivalent citations: 2000(2)BLJR1191
Author: D.P.S. Choudhary
Bench: D.P.S. Choudhary
JUDGMENT D.P.S. Choudhary, J.
1. Both the appeals have been preferred against the judgment and order dated 25.1.1994 passed by the 4th Additional Sessions Judge, Rohtas at Sasaram in Sessions Trail No. 745/35 of 1992/93. Appellants Puran Singh and Lakhbir Kaur (of Cr. Appeal No. 39 of 1994) were convicted under Section 368 of the Indian Penal Code (hereinafter referred to as the I.P.C. and both have been sentenced to undergo R.I. for five years and to pay a fine of Rs. 500/- and in default of payment of fine a further period of Sentence of R.I. for six months. Appellant Kamlesh Punyark (of Cr. Appeal No. 41/94) has been convicted under Sections 366 and 366-A of the I.P.C. and sentenced to undergo R.I. for eight years and to pay a fine of Rs. 3,000/- under each count. In default of payment of fine, further sentence of period of two years. The sentences are to run concurrently.
2. The prosecution case is brief is that the victim girl Rabindra Kaur alias Baby (P.W. 8) in her fardbeyan (Ext. 1) recorded on 4.10.1989 at 22.30 hours in the house of the informant alleged that she is aged about 15 years and student of Matriculation. About seven months ago on 8.2.1989 at about 1 O'clock in the noon, she had gone to the house of her brother Sardar Mahendra Singh (P.W. 4) to watch over the ceremonies of the marriage of daughter of Kailash Agrawal, a neighbour of her brother. She watched the ceremony from the roof of her brother's house and while she-was returning after few minutes, she saw appellant Kamlesh Punyark standing by the side of her house. Appellant Kamlesh Punyark was a tenant in the house of co-accused Sardar Narendra Singh alias. Billa for 3-4 months. Appellant Kamlesh Punyark called her and asked to look over the paintings made by him but she refused. Appellant Kamlesh Punyark insisted to look at his paintings and she was taken by his words and entered his premises. She was given some paintings to look at. In the meantime, a person who has covered his face appeared and caught hold of her by braids and dragged her away in the courtyard of the house. She tried to rescue herself and in scuffle the clothes from the mouth of the said person came out and she identified him as accused Sardar Narendra Singh alias Billa, who was originally resident of Ludhiyana but he was living in the said house for some time. As such, she knew him from before. It is further alleged that appellant Kamlesh Punyark gagged her neck by pressing. She tried to raise alarm but could not do so because her neck was pressed by the appellant. She was taken inside a room and Kamlesh Punyark locked the room from outside. Co-accused Sardar Narendra Singh stayed inside the room with her. He blind-folded her and gave threat to kill if she raised alarm. She was given a tablet and forced to swallow it with the help of a glass of water. Co-accused Sardar Narendra Singh told her that he is from C.B.I, and was in search of extremists. While speaking, Narendra Singh tried to conceal his identity and tried to change his voice but she identified him both by voice and face. Accused Sardar Narendra Singh also pretended and told her that a letter has been recovered from the pocket of Sardar Narendra Singh in her name. In this way for about 6-7 hours, she was confined in the room and accused Sardar Narendra Singh tried to persuade her to accompany with him. It is further alleged that the next morning, appellant Kamlesh Punyark appeared and administered an injection in her right elbow and thereafter, she became unconscious. She regained consciousness and found herself at a different place. She was carried in a room by accused Sardar Narendra Singh. She was told that she has been brought at Karamchat. She remained confined for about 10-12- days and thereafter accused Narendra Singh's mother Shano Devi, sister Jasi and daughter of Jasi arrived at that place and they all threatened her and stated that she is daughter of an enemy, that is why, she has been kidnapped and also threatened that her brother would also be kidnapped. It is further alleged by the informant that accused Sardar Narendra Singh had forcibly smeared vermilian on her scalp and stated that he had married with her. The informant rubbed away vermilian, there upon Sardar Narendra Singh put pressure upon her and persuaded to marry with him. It is further alleged that in absence of Sardar Narendra Singh, her family members named above, constantly kept watch on her for about two months. She was confined there by accused Sardar Narendra Singh and thereafter, she was transported on a while car to Haidargarh. In the car his family members also accompanied her. Whenever she tried to raise alarm in the car, she was gagged by accused Sardar Narendra Singh. At Haidargarh, she was taken to the house of appellant Sardar Puran Singh with whom she was acquainted from before. Haidargarh is a small town in the district of Barabanki (Uttar Pradesh). She was confined in a room in the house of Sardar Puran Singh, who covered the windows of the room by plastic sheet so that he should be detected from outside. It is further alleged that Sardar Puran Singh used to threaten her to marry with Sardar Narendra Singh, otherwise she would be killed, but the informant resisted and refused to marry with him. It is further alleged that accused Narendra Singh forcibly committed rape on her on several occasions and whenever, she made protest, she was threatened at the point of pistol. After about five months' stay at Haidargarh, she was taken to a lawyer's house at Jagrawan in the district of Ludhiana by train. She was under constant watch by accused Sardar Narendra Singh. There also accused Sardar Narendra Singh committed rape, on her forcibly. It is further alleged that appellant Kamlesh Punyark appeared at Jagrawan and started giving threat to her to marry with Sardar Narendra Singh. It is further alleged in her fardbeyan that on 27.9.1989 at about 1 O'clock in the noon her brother Sardar Mahendra Singh (P.W. 7) along with his two friends arrived there. She started weeping after seeing her brother and narrated the entire occurrence. After some time, accused Sardar Narendra Singh and Kamlesh Punyark came there and started to Report before her brother and requested to be excused for the offence they committed. Thereafter, she was brought back her house at Dehri by her brother and his friends. On 4.10.1989 the police arrived and recorded her fardbeyan, on the basis of which the case was registered against six accused-persons, who were charge-sheeted, except accused Lakhbir Kaur, who was made accused subsequently. After completing investigation the charge-sheet was submitted against three accused-persons who were facing trial and accused Sardar Narendra Singh, Shano Devi, Jassi Kaur and Papli were shown as absconder.
3. The case of the defence is that they have been falsely implicated because of enmity. Their further defence is that the informant was a consenting party and she willingly left her house with accused Sardar Narendra Singh and married of her own will. The case was registered after eight months of the occurrence when the family members of the girl put pressure on her when she returned back to her parents house, the prosecution case is an exaggeration of the actual fact.
4. On behalf of the prosecution, 12 witnesses have, been examined, out of which P.W. 8 is the informant and eye-witness of the entire occurrence as narrated in the fardbeyan. Bantoo after Jogendra Singh (P.W. 2), Baljit Singh alias Pappu (P.W. 3), Mahendra Singh (P.W. 4) and Sahendra Singh (P.W. 7) are brothers of the victim girl. P.W. 5 (Amarjit Kaur) is her mother. All these witnesses are hearsay on the point of kidnapping and their statement is based on the statement of the victim girl as (P.W. 8) narrated before them. P.W. 7 (Sahendra Singh) is a witness in whose presence his sister (P.W. 8) was recovered from Jagrawan in Ludhiyana. P.W. 1 (Birbal Singh) and P.W. 9 (Radheshyam Tiwary) are formal witnesses who have proved the fardbeyan (Ext. 1) and date of birth of the victim girl through Admission Register of the school. P.W. 11 is the lady Doctor who examined the victim girl after her recovery. P.W. 10 and P.W. 12 are the two I.Os. of the case.
5. The main contention of the appellants is that the victim girl (P.W. 8) was major on the date of alleged occurrence and she was a consenting party. She left her house of her own will and married with accused Sardar Narendra Singh. In support of this contention the learned lawyer submitted that in her evidence P.W. 11 (lady Doctor) estimated her age to be of 16 years on the date of her examination. She was examined on 5.10.1989. This estimate of age is a rough estimate and it can be extended of two years because while deposing in the Court, no X-ray plate was present before the lady Doctor. The general descriptions of the girl given by the Doctor is that she was well developed and all her external and internal signs indicated that she was a major girl. In the cross-examination of her mother and brothers, it was suggested that she was student of degree class and not of Matriculation.
6. It was further argued on behalf of the appellants that the narration of the story of alleged kidnapping given by the victim girl is a cock and bull story and from her evidence, it transpired that she was all along a consenting party when she left her house of her own will and travelled from one place to another and went up to Ludhiana from Dehri-on-Sone. This was possible only when she was a consenting party, otherwise she had several occasions, both while travelling by road and by train, to raise alarm and to attract the attention of the nearby persons. It is unbelievable that for about 8 months, she was made confined forcibly. It has also come in her evidence that she has moved with accused Sardar Narendra Singh from one place to another. This conduct of the victim girl indicates her willingness while leaving the house, it has also come in the evidence that all the accused were known with the victim girl from before. In her evidence, P.W. 8 stated that she was brought back to Dehri from Ludhiana on 28.9.1989 but the F.I.R. was registered on 4.10.1989 on the basis of fardbeyan of the victim girl. There is no explanation why for five days, the parents of the girl did not inform the police about the recovery of the girl. It suggests that some negotiations were going on in between the parents of the girl and the accused-persons and when it failed, thereafter, the case was instituted in which appellants Kamlesh Punyark and others were implicated after due deliberation because of enmity. It was further submitted that Ext. 3 shows that father of the girl has lodged a Sanahaon 9.2.1989 after a day of the alleged date of occurrence before the police at Dehri. But, for seven months police took no action though the Sanaha was lodged for kidnapping of a minor girl. This laches on the part of the police makes the entire prosecution case doubtful.
7. In reply to the above contentions, the learned A.P.P. submitted that the trial Court has discussed the above points raised on behalf of the appellants in detail and after considering both oral and documentary evidences has come to the finding that the victim girl on the alleged date of occurrence was minor aged about 15 years. Therefore, the consent of the victim girl, even if accepted, is of no help to the accused-persons. The delay in lodging of the F.I.R. is also discussed by the trial Court in paragraph 12 of the judgment and in natural course, it is not expected from the family members to rush to the police just after missing of the girl, because the prestige, of the family is involved in such cases.
8. I have carefully examined the evidence as discussed above and the judgment of the trial Court. On the point of age of the victim girl, the trial Court has estimated her age on the date of deposition, i.e., on 18.3.1993 as 18 years. This shows that on the date of occurrence the victim girl was aged about 15 years. Ext. 4 is extract from the Admission Register of the school which shows her dated of birth as 10.12.1975. The lady Doctor (P.W. 11) estimated her age about 16 years on 5.10.1989 when she examined her. From the evidence of her mother (P.W. 5) and her brothers, it transpires that she was aged about 15 or 16 years on the date of occurrence. Therefore, both oral and documentary evidence coupled with the medical evidence are consistent that the victim girl was aged about 15 or 16 years at the time of occurrence.
9. There is substance in this contention of the appellants that there is lacumi in the investigation of the case on the part of the police because after lodging of the Sanaha by the father of the victim girl on the next day of the alleged occurrence, the police took no action to inquire into the matter nor made any effort to trace out the girl for long seven months. But, this laches on the part of the investigation has no hearing on the merit of the case nor the accused-appellants are entitled to have any benefit out of it.
10. So far as the occurrence of kidnapping and abduction of the victim girl is concerned, there is sole evidence of P.W. 8 (victim girl). It is consistent case of the prosecution that when she went inside the house of Kamlesh Punyark on his allurement, she was forcibly confined in the room with the help of appellant Kamlesh Punyark and accused Sardar Narendra Singh and thereafter she was made unconscious and taken from Dehri-on-Sone to the other destination. Therefore, the possibility of any other eye-witness is ruled out. Her family members including P.Ws. 2 to 5 and P.W. 7 have corroborated the evidence of P.W. 8, who stated that when the girl returned back to her house, she narrated her full story of kidnapping. From a careful scrutiny of the evidence of P.W. 8, it appears that she has described the entire occurrence in detail and there is no reason to disbelieve her evidence. She stated that she made several attempts to free herself from the clutches of the accused-persons but either she was blind-folded or put under threat of a pistol. The close scrutiny of the above evidence, I do not find anymaterial contradiction of the proportion which makes the defence case plausible or any benefit which may be given to them out of such minor contradictions as pointed out on behalf of the defence. Such minor discrepancies are natural with the lapse of time. Since the evidence of the victim girl is so vivid and descriptive that it rules out any false implication of any of the accused-persons. Convictions in such cases can be founded on the sole testimony of the victim girl because it inspires her confidence and there was no scope for the victim girl to implicate any of the accused-persons falsely. In view of the nature of the offence and the circumstances the occurrence took place, it is highly improbable that a minor girl, will falsely implicate the accused-persons-after jeopardising her own prestige and the prestige of the family. It is true that there was delay in lodging the F.I.R. but in cases involving sexual offences which involve the morality and chastity of a girl, the initial delay in lodging the F.I.R. is caused because of hesitation in family members to take the recourse of law. Besides in her evidence only at one point the victim girl slated that she was brought to her house on 28.9.1989 though in the fardbeyan, it is mentioned that she was brought back on the preceding day, i.e., on 3.10.1989. P.W. 7 in paragraph 23 has stated that the delay in lodging of the F.I.R. was due to involvement of family prestige and there was hesitation to go before the police after the recovery of his sister. As such, the delay in lodging the F.I.R. is of no help to the accused-persons nor it lead to the conclusion that after due deliberation the names of appellant Kamlesh Punyark and others have been implicated.
11. The contention made on behalf of the appellant Kamlesh Punyark that on the next day of the alleged occurrence, he visited the house of the victim girl shots that he was not involved in this occurrence, otherwise he would not have visited her house and it further rules out that he had accompanied Sardar Narendra Singh, who is alleged to have taken the girl from Dehri. It has come in the evidence that Kamlesh Punyark was a tenant in the house of accused Sardar Narendra Singh and in the fardbeyan, it is mentioned that when accused Sardar Narendra Singh carried the victim girl from Dehri-on-Sone appellant Kamlesh Punyark was not accompanying her. He arrived after several months of the date of occurrence at Ludhiana where she was confined but there is consistent evidence that this accused has allured the victim girl and confined in the room and forcibly made her unconscious by giving an injection at Dehri in his room. Therefore, the allegation of kidnapping and abduction of the victim girl while, she was returning her house after witnessing the marriage ceremony of her neighbour, is proved against appellant Kamlesh Punyark beyond all reasonable doubts.
12. From the discussions made about, and after considering the evidence on record, it is proved beyond doubt that appellant Lakhbir Kaur and Puran Singh have wrongfully concealed and confined the victim girl (P.W. 8). As such, the trial Court has rightly convicted them for the offence punishable under Section 368 of the Indian Penal Code and I do not find any irregularity and illegality in the finding of the trial Court, who has held the appellant Kalesh Punyark guilty for the offence under Sections 366 and 366A of the I.P.C. and convicted all of the them accordingly, as stated above.
13. In the result, I do not find any merit in both the appeals which are accordingly dismissed and the judgment and order of the trial Court is hereby confirmed.
14. It was submitted on behalf of the appellants Puran Singh and Lakhbir Kaur that they were arrested on 9.5.1992 and since then the appellant Puran Singh is in custody. Appellant Lakhbir Kaur was released on bail by this Court vide order dated 20.12.1996. As such, all of them have served out the period of sentence. Alter perusal of the case records the learned A.P.P. also agrees to the above submissions. Therefore, it is ordered that appellant Puran Singh if not released as yet from the jail custody shall be released forthwith, if not wanted in any other case. Appellant Lakhbir Kaur has been in jail custody for 4 years and 8 months, therefore, she is not required to be sent in custody again. However, the amount of fine, which has been imposed against them and not paid up till now, shall be deposited by them in, the Court below and the trial Court shall take the steps for realisation of the fine against them.
15. The appellant Kamlesh Punyark was on bail. Accordingly, he is directed to surrender in the Court below to serve out the remaining period of sentence.
16. The learned appellants' Lawyer who appeared as amicus curiae has assisted the Court with all sincerity. The Legal Aid Committee, Patna High Court is directed to pay his fees, in accordance with law. Let a copy of this judgment be made available to him.