Uttarakhand High Court
Bhajan Lal vs State Of Uttarakhand on 18 April, 2013
Author: U.C. Dhyani
Bench: U.C. Dhyani
Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
Criminal Jail Appeal No. 22 of 2009
Bhajan Lal .......... Appellant
versus
State of Uttarakhand .......... Respondent
Mr. Ajay Singh Bisht, Amicus Curiae, present for the Appellant.
Mr. M. A. Khan, learned AGA, present for the State of Uttarakhand/
Respondent.
JUDGMENT
Hon'ble U.C. Dhyani, J.
. A complaint (Ext. Ka-1) was written by Kiswi Lal s/o Gainu to the Station Officer of PS Dharalu, Uttarkashi alleging that his 13 years' old daughter Kamla (victim) was kidnapped by Bhajan Lal on 29.08.2007 in the night. A frantic search for the kidnapped girl was made, but to no avail.
2. The first information report was registered as case crime no. 575 of 2007, in PS Dharalu on 11.09.2007 at 16:35 a.m. under Sections 363, 366 IPC. After the investigation, a charge sheet against the accused Bhajan Lal in respect of offences punishable under Sections 363, 366 and 376 IPC was 2 submitted before the Magistrate concerned. The case was committed to the Court of Sessions. When the trial began and prosecution opened it's case, as many as 13 witnesses, namely, PW 1 Kiswi Lal (father of the victim), PW 2 Kamla (victim), PW 3 Dr. Mayank Upadhyaya, PW 4 Dr. V.S.Bisht, PW 5 Dr. A.K.Chaudhary, PW 6 Madiya, PW 7 Yamuna Prasad, PW 8 Brijpal Singh, PW 9 Smt. Seema, PW 10 Constable Tej Pal Singh, PW 11 Constable Nandan Prasad, PW 12 Lady Constable Lalita Khandelwal and PW 13 SI Pradeep Bisht (I.O. of the case) were examined on behalf of the prosecution. Incriminating evidence was put to the accused under Section 313 Cr.P.C., in reply which, he said that the prosecution witnesses were telling a lie and he was falsely implicated in the case.
3. After considering the evidence on record, learned court below convicted accused Bhajan Lal as regards offences punishable under Sections 363, 366-A and 376 IPC. He was sentenced to undergo rigorous imprisonment for a period of three years and a fine of Rs. 3,000/- in respect of offence punishable under Section 363 IPC; three years' rigorous imprisonment and a fine of Rs. 3,000/- in relation to offence punishable under Section 366-A IPC and seven years' rigorous imprisonment along with a fine of Rs. 5,000/- in respect of offence punishable under Section 376 IPC. All the sentences were directed to run concurrently. Aggrieved against the said order, present criminal appeal was preferred.
4. Prosecution led the evidence through PW 2 Kamla (victim). She said, in her examination-in-chief, that the accused Bhajan Lal was related to her as her maternal uncle. She deposed before the court below on 10.04.2008. She said that last year, at 3 around 10:00 -11:00 p.m., when she went out to relieve herself, Bhajan Lal met her and took her to his home. The next day, he took PW 2 (victim) to a jungle. Bhajan Lal kept her in jungle for 13 days. She was sexually assaulted during those 13 days against her wishes. She was apprehended by police after 13 days. The accused was also arrested. Her father PW 1 Kiswi Lal was also present with the police party. A recovery memo was prepared, which was got signed by PW 2. She was medically examined at District Hospital, Uttarkashi. She also said that her statement under Section 164 Cr.P.C. was taken before the C.J.M., Uttarkashi. She corroborated her statement under Section 164 Cr.P.C. (Ext. Ka-2).
5. In the cross-examination, she said that she was taken to the jungle by the accused on the day she was kidnapped. Thereafter she was taken by the accused at his house, where she was confined for a day. She was kept by the accused in jungle in a cowshed. He (accused) had also taken utensils etc. to prepare food in the jungle. Accused did not come to the market during this period of 13 days. She also said that she did not raise alarm during the period of her kidnapping by the accused (as she was in jungle0. In her statement, she said that she was 15 years old (on the day she deposed). The police apprehended them at 4:00 p.m. She passed class VII. She left the school thereafter. She denied the suggestion of defence that she was 19 years old. Nothing appeared in the cross-examination of PW 2 to indicate that she was telling a lie.
6. PW 1 Kiswi Lal was the informant and the father of the victim. She said that when he came out of his house to ease himself, he found that his daughter, aged 14 years, was not 4 present at home. He along with other co-villagers made a search for her daughter but she was not traceable. He lodged the report after 12-13 days when the daughter could not be found. PW 1 proved his complaint (Ext. Ka-1) and also said that police came to his house, prepared site plan and took him to Brahamkhal where an informer told that PW 1's daughter was kidnapped by the accused Bhajan Lal. When they reached in that direction, the accused was found along with the victim and was arrested. PW 1's daughter was recovered, a recovery memo whereof was prepared. In the cross-examination, an effort was made by learned defence counsel to ascertain the age of the victim to show that she was a major, but the same did not yield any result. It may be pointed out at this stage that the consent, if any, of the victim was immaterial, if she was below 16 years of age (for the purpose of offence under Section 375 IPC). Her consent was immaterial, if she was below 18 years of age for the purpose of offence punishable under Sections 363 and 366-A IPC. Although there was no such evidence that the victim was a consenting party but even if it be conceded for the sake of arguments that it was so, the same does not make any difference in view of the fact that the girl was below 16 years of age.
7. PW 3 Dr. Mayank Upadhyaya conducted medical examination of the victim on 12.09.2007, at 2:00 p.m. and proved report (Ext. Ka-3). She was found to be habitual of sexual intercourse (in as much as the accused-appellant had cohabitation with her for 13 days). The vaginal swab was sent for histopathologial examination. The victim was also sent to radiologist for ascertaining her age.
58. PW 4 Dr. V.S.Bisht said that no spermatozoa was found in the vaginal swab but emithilial cells were present. PW 4 proved the report (Ext. Ka-4).
9. PW 5 Dr. A.K.Chaudhary conducted x-ray of the wrist and right elbow of the victim. He proved his report (Ext. Ka-5) and opined that she was below 18 years of age. He also said that on the basis of x-ray of her right elbow, she was around 16 years of age. PW 5 also proved x-ray plate (Ext. 1). In the cross-examination, he said that since the radiologist was not present on that day, therefore, he, as In-charge radiologist, conducted x-ray.
10. PW 6 Madiya saw the victim and accused going together. PW 6 was the husband of the real sister of Bhajan Lal. There was no question of disbelieving the testimony of PW
6. He was the witness of having last seen the victim in the company of accused-appellant.
11. PW 7 Yamuna Prasad, In-charge Head Master of Primary School, brought the scholars' register of the victim (Ext. Ka-6). He said that the date of birth of Kamla in the admission register of the school was mentioned as 10.07.1995. By this analogy, she (victim) was 13 years plus when the incident took place.
12. PW 8 Birjpal was the scribe of the complaint (Ext. Ka-1). PW 9 Smt. Seema was the mother of the victim, who also supported PW 1 and said that when Bhajan Lal kidnapped her daughter, she was aged 14 years. PW 9 also said that Kamla passed class V when accused kidnapped her. PW 10 6 Constable Tejpal Singh proved site plan and recovery memo.
13. PW 11 Constable Nandan Prasad proved complaint (Ext. Ka-1), chik FIR (Ext. Ka-8) and entry in G.D. of the case (Ext. Ka-9). PW 12 Constable Lalita Khandelwal was the witness to the recovery memo (Ext. Ka-7). PW 13 SI Pradeep Bisht was the Investigating Officer, who took the statements of the witnesses, prepared site plan (Ext. Ka-11), recovered the victim, prepared recovery memo whereof, took the statements of the victim and accused-appellant, got the victim's medical examination conducted on 12.09.2007, again took the statements of victim and her mother, took the victim before CJM for her statement under Section 164 Cr.P.C., prepared site plan of the place where the victim was recovered (Ext. Ka-12), obtained the report of radiologist, also obtained the date of birth certificate (Ext. Ka-5) from the school last attended by the victim, met pathologist and affected arrest of the accused-appellant Bhajan Lal and obtained his signatures on Ext. Ka-13. Thereafter, the victim was handed over in the custody of her father, prepared supurdaginama and after being satisfied that the accused committed the crime, submitted charge-sheet (Ext. Ka-16) against the accused-appellant. Nothing was found in the cross- examination of PW 11 to indicate that he was not a truthful witness.
14. . The prosecution story was proved beyond reasonable doubt on the strength of testimony of the prosecution witnesses, a brief description of whose evidence is given in the foregoing paragraphs of this Judgment. Even the testimony of DW 1 Gambhir Singh Rawat, Village Development Officer could 7 not make any inroads into the prosecution story, when he, during the course of his testimony, presented a copy of the family register indicating that her (victim's) date of birth was earlier recorded as 10.07.1992, which was later on modified as 10.07.1994 on the basis of an affidavit, duly verified by the Notary. In any case, the victim was below 16 years of age when the incident took place.
15. The only point to be considered in this case was the effect of delay in lodging the first information report. It has been held by the Hon'ble Supreme Court in plethora of rulings that in kidnapping and rape cases, when the honour of a family is at stake, there is explainable delay in lodging the fist information report. In the instant case, it has been brought on record that accused-appellant kept the kidnapped girl in jungle, in a cowshed for 13 days. The father and co villagers made a frantic search for the girl. FIR was lodged only when she could not be traced out. The other point to be considered is the age of the victim, which according to scholars register was below 14 years. Scholars' register has primacy over the family register. The way the entry in the family register was modified, which even if accepted, would make it clear that the girl was 15 years old plus i.e. below 16 years. The Court below has discussed each and every aspect of the case in great detail. This Court is unable to take a view contrary to what was taken by the Court below. During the course of arguments, learned Amicus Curiae made a submission that the ingredients of the offence punishable under Section 366- A were not made out. The said argument was contrary to the evidence brought on record. There is no reason to interfere with the impugned judgment and order.
816. Before drawing to a close, it must be stated here that the delay in lodging FIR in the instant case is explained sufficiently. It has been observed by Hon'ble Supreme Court in Harpal Singh and another vs. State of Himachal Pradesh, 1989 (1) SCC 560 that sometimes there is delay in lodging the first information report because honour of the family was involved. On some other occasion, the Hon'ble Supreme Court has observed that the Court of fact has to consider, in the light of the totality of evidence, whether the delay in lodging the first information report adversely affects the case of the prosecution. The same is a matter of appreciation of the evidence. There may be cases where there is direct evidence to explain the delay [instant case is one such case]. Even in the absence of direct explanation, there may be circumstances appearing on record, which provided a reasonable explanation for the delay. There may also be cases where on account of fear and threats, witnesses may avoid going to the police station. In Ramdas vs. State of Maharashtra, AIR 2007 SC 155, it was observed by the Hon'ble Supreme Court that it is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action, nor was any such advice available to them. Different cases have different facts and it is the totality of evidence and the impact that it had in the mind of Court that is important. No strait jacket formula can be evolved in such matters and each case must rest on it's own facts.
17. In view of the above, the appeal lacks merit and is liable to be dismissed. The same is accordingly dismissed. The judgment and order dated 20.06.2009 passed by the learned court 9 below, upholding conviction of the appellant, is hereby affirmed. The sentence awarded to the appellant by the court below is also upheld. Accused / appellant Bhajan Lal is in jail. Let a copy of this Judgment along with the lower court record be sent back to the trial court to make the convict / appellant serve out the remaining part of the sentence awarded by learned trial court and thus affirmed by this court. A copy of this judgment be also sent to the Superintendent of Jail where the convict-appellant is currently serving out the sentence.
[ (U.C. Dhyani, J.) Dt. April 18, 2013 Kaushal