Dharam Singh and Others vs State of U.P.

Mohammad Tahir, J.—The above noted appeals have arisen out of the same judgment and are connected with each other. So they are being disposed of by this common judgment.

These criminal appeals have been filed against the judgment and order dated 6.9.2013 passed by Additional Sessions Judge, Court No. 9, Aligarh in Sessions Trial No. 841 of 2006 State v. Bunty @ Virendra and another, under Section 363, 366, 376 IPC P.S. Kwarsi District Aligarh whereby the accused appellants Bunty @ Virendra and Dharam Singh @ Dharmendra have been convicted under Section 363, 366, 376 IPC and sentenced to undergo three years rigorous imprisonment under Section 363 IPC and to pay a fine of Rs. 2,000/- each with default clause, five years'' rigorous imprisonment under Section 366 IPC and to pay a fine of Rs. 3,000/-each with default clause and ten years'' rigorous imprisonment under Section 376 IPC and to pay a fine of Rs. 10,000/- each with default clause. All the sentences of the accused appellants were directed to run concurrently.

The prosecution case, in brief, is that the first informant Pappu @ Prem Chandra lodged a written report in P.S. Kwarsi of District Aligarh on 26.1.2006 at 4.30 p.m. to the effect that he is the barber by profession and his hair-cutting shop is on the road in front of Ramesh Vihar colony. His minor daughter (hereinafter referred to as the prosecutrix) aged about 13 years was missing from the noon of 17.1.2006 and it had come to his knowledge that one Baba Bunty, who was residing in the house of his neighbour Dharam Singh, had enticed away his daughter. Baba Bunty has been living with accused Dharam Singh since his childhood. Accused Dharam Singh is his neighbour and are also on visiting terms to his house. Accused Dharam Singh and Baba Bunty in collusion with each other had got his minor daughter kidnapped and she was missing for the last two days. He had searched out his daughter in his relations but her whereabouts could not be known to him. He has further mentioned in the FIR that his neighbour Thakur Dharam Singh has full hand in getting his daughter kidnapped by Baba Bunty and he knows everything as to where Baba Bunty had gone after kidnapping his daughter. When the first informant had asked about it to Dharam Singh thereupon he had threatened to kill him. He is a labourer and poor person.

On the basis of the above report (Ext. Ka.1) a case under Section 363, 366, 376, 506 IPC was registered against accused Baba Bunty and Dharam Singh in P.S. Kwarsi District Aligarh. The check FIR of this case was prepared by constable clerk Chhavi Nath Singh (PW-3), which is Ext. Ka.6. He also made entry in the general diary in that regard, the carbon copy of which is Ext. Ka.5.

The investigation of this case was entrusted to S.I. Sri Subhash Chandra Pandey (PW-5) who recovered the said prosecutrix on 10.3.2006 from the company of accused Baba Bunty @ Virendra Singh from Chharra Bus Stand Aligarh and in that regard a recovery memo was prepared by him which is Ext. Ka.3. On 20.3.2006 the statement of the said prosecutrix was got recorded under Section 164 Cr.P.C. before the Magistrate which is Ext. Ka.4 and thereafter the prosecutrix was given in the supurdugi of her father Pappu @ Prem Chandra and in that regard a Supurdugi memo (Ext. Ka.2)) was prepared.

After recovery of the prosecutrix she was sent to M.L.G. Woman Hospital Aligarh for medico-legal examination. Dr. K. Chandra (PW-4) conducted the medico-legal examination of the prosecutrix on 10.3.2006 at 3.45 p.m. and prepared her report in this regard which is Ext. Ka.6. According to the said report, following condition of the prosecutrix was found:--

Physical Examination - There was no mark of injury on any part of body. Secondary sex characters developed. Axillary & pubic heirs shaved.

Internal Examination - That there was no mark of injury on private parts. Hymen old healed torn. Vagina admitted two fingers easily. Advised x-ray of right wrist, knee and elbow joint to determine the age. Vaginal smear was taken for detection of spermatozoa by pathological examination.

Supplementary medical report (Ext. Ka.7) of the prosecutrix was prepared. According to this report, no spermatozoa was seen in the swab of the vaginal smear of the prosecutrix and the age of the prosecutrix was found about 16 years at the time of her medical examination. The doctor opined that the prosecutrix was used to sexual intercourse. No opinion about rape could be given by the doctor."

The Investigating Officer (PW-5) after collecting the medical reports, recording the statement of the witnesses and after completing other formalities filed charge sheet against both the accused persons under Sections 363, 366, 376, 506 IPC. The charge sheet is Ext. Ka.9.

The court of Magistrate concerned committed this case to the court of Sessions where this case was registered as ST No. 841 of 2006 and thereafter this case was transferred to the trial court for disposal.

The trial court framed charges under Section 363, 366, 376 IPC against both the accused appellants Bunty @ Virendra and Dharam Singh @ Dharmenra. The accused pleaded not guilty to the charges and claimed to be tried.

The prosecution in order to prove its case against the accused persons examined seven witnesses in all in the trial court. Out of those witnesses PW-1 is the first informant Pappu @ Prem Chandra. PW-2 is the the prosecutrix. Both these witnesses are the witnesses of fact. PW-3 is constable clerk Chhavi Nath Singh who proved the check FIR (Ext. Ka.6) and carbon copy of G.D. (Ext. Ka.5). PW-4 is Dr. Kalpana Chandra who had proved medico-legal examination report (Ext. Ka.6) and supplementary medical report (Ext. Ka.7). She had also proved the letter sent to Pathologist which is Ext. Ka.8. PW-5 is S.I. Subhash Chandra Pandey who is the Investigating Officer of this case. He proved the memo regarding recovery of the prosecutrix and the arrest of accused Bunty. The recovery memo is Ext. Ka.3. He also proved the charge sheet (Ext. Ka.9).

The summary of the statement of the witnesses of fact which they had given in their examination-in-chief is as hereunder:--

"(i) PW-1 Pappu @ Prem Chandra is the first informant of this case. He had stated in his examination-in-chief that the incident took place on 17.1.2006 at 2.30 p.m. his daughter (prosecutrix) aged about 13 years was at his (first informant) house. At that time he was on his shop. His wife had gone to Kothi for doing the work. The prosecutrix and three younger children were on the house. His younger daughter reached his shop to inform him that accused appellant Bunty @ Virendra and Dharma @ Dharmendra took her sister (prosecutrix) with them by saying that his father is calling her. Both the accused appellants are the neighbours. They used to come to his house. When he asked the accused appellants they replied that they had not taken his daughter. When they were again pressurised to tell, they started threatening him and they said to him to do whatever he wants to do and they also threatened to kill him. The accused appellants had also opened fire on him in the night and when the accused appellants had not returned her daughter then he lodged the FIR of the incident in the police station on 26.1.2006. He has proved the FIR (Ext. Ka.1). He has further stated that he was informed through some person to the effect that his daughter was at Chharra Bus Stand whereupon he informed the police accordingly and the police had recovered his daughter from that place. The police got his daughter medically examined. The police produced the prosecutrix before the Magistrate (Jaj Sahab). Thereafter the prosecutrix was given in his supurdugi on 20.3.2006. He has also proved Supurduginama which is Ext. Ka.2.

(ii) PW-2 is the prosecutrix. She in her examination-in-chief had stated that the incident had taken place on 17.1.2006 at 2 o''clock in the noon. She was alone at her house at that time. Her mother and father were not at the house at that time. They had gone outside the house for their respective work. At that time accused appellants Bunty @ Virendra, Dharendra and one Yogendra, who are her neighbours, had come to her house. She knows them well. They told her that her father met with an accident and asked her to accompany them. On believing them she proceeded to accompany them. She had further stated that Bunty and Dharmendra had taken her at Ghaziabad by bus. They kept her in a hut. Bunty @ Virendra and Dharmendra had committed wrong act with her. On her protest they used to beat her and used to threaten to kill her by putting Tamancha on her. So she kept silence due to fear. She further specifying the meaning of that wrong act had stated that accused appellant Bunty and Dharmendra individually used to thrust their male organ in her private part against her will. After two days aforesaid Yogendra had reached there for giving money to the aforesaid accused persons and thereafter he returned back from there. Due to paucity of funds accused Bunty @ Virendra had brought her to Chharra Bus Stand in Aligarh. At that place Yogendra, Laxmi, Santosh and Bobby met them. They informed the police of the police station by phone. The police had caught her and Bunty @ Virendra was arrested and thereafter they were brought to police station. She was taken to the police station and some paper was written whereupon her thumb impression was taken. Thus she proved the memo as regards her recovery and arrest of the accused Bunty @ Virendra which is Ext. Ka.3. She had further stated that the police had got her medically examined and produced her before the Magistrate where her statement was recorded. She has proved her statement under Section 164 Cr.P.C. which is Ext. Ka.4.

(iii) The other witnesses are of formal nature. So their statement in the examination-in-chief need not be repeated. The relevant portion of the statement of all the prosecution witnesses shall be referred to hereinafter in the judgment while evaluating their evidence."

The accused appellants in their statement recorded under Section 313 Cr.P.C. denied the prosecution case and had further stated that they have been falsely implicated in this case due to enmity. In addition to that, accused Dharam Singh had stated that the first informant used to purchase the milk from his dairy. When daughter of the first informant had gone away, he asked the money of the milk from him. The first informant refused to give the money and had falsely implicated him in this case by tutoring his daughter.

From the side of accused Dharam Singh, three defence witnesses have been examined. These witnesses are DW-1 Naresh Kumar, DW-2 Babu Singh @ Babu Lal and DW-3 Jitendra @ Dinesh Yadav. These witnesses in their examination-in-chief have mainly stated that the first informant used to purchase milk from the dairy of accused appellant Dharmendra and around 3-4 thousand rupees had become due on the first informant and in that regard a Panchayat was also held and because of this animosity the first informant had falsely implicated accused appellant Dharmendra in this case by tutoring his daughter (prosecutrix) to give evidence against the accused appellant Dharmendra in her statement recorded under Section 164 Cr.P.C. before the Magistrate.

The trial court after hearing the counsel for both the sides and perusing the evidence available on record, convicted and sentenced the accused appellants Dharam Singh @ Dharmendra and Bunty @ Virendra as hereinbefore mentioned in the beginning of the judgment.

Aggrieved by the judgment and order of the trial court as regards the conviction and sentence, accused appellant Dharam Singh @ Dharmendra has filed Criminal Appeal No. 4235 of 2013 while accused appellant Bunty @ Virendra has filed Jail Appeal No. 4943 of 2013.

I have heard Sri Sunil Kumar learned counsel for the accused appellant Dharam Singh @ Dharmendra, Sri Prem Shankar, learned Amicus Curiae for accused appellant Bunty @ Virendra, learned AGA for the State and perused the evidence available on record.

First of all, I proceed to scrutinize and evaluate the prosecution evidence as regards the accused appellant Dharam Singh @ Dharmendra.

Learned counsel for the accused appellant Dharam Singh @ Dharmendra has submitted that the prosecution evidence as against this accused appellant is not of such a standard on the basis of which his conviction recorded by the trial court may be sustained because the same is shaky, self-contradictory and concocted one.

On the other hand, learned AGA has supported the impugned judgment and order of the trial court and has submitted that there is reliable evidence against the accused appellant Dharam Singh @ Dharmendra also.

I have considered the rival submissions of learned counsel for both the parties in this regard.

I find force in the contention of the learned counsel for the accused appellant Dharam Singh @ Dharmendra for the reasons mentioned as hereunder:--

"(i) On the perusal of the FIR it clearly transpires that the only allegation against the accused appellant Dharam Singh @ Dharmendra is this that he had his hand in getting the daughter of the first informant eloped with co-accused Baba Bunty @ Virendra who is living in his house from the childhood but later on the first informant, father of the said prosecutrix, in his statement recorded in the trial court had stated that accused appellant Dharam Singh @ Dharmendra and co-accused Bunty @ Virendra had taken his daughter from his house on the pretext that his father met with an accident and this very information was given by his younger daughter to him when he was at his shop. This very statement is totally contradictory to the version of the FIR.

(ii) The prosecutrix in her statement under Section 161 Cr.P.C. recorded by the Investigating Officer just after her recovery had stated that accused appellant Dharam Singh @ Dharmendra had met accused appellant Bunty @ Virendra in the way while she was going with accused Bunty and some talks had taken place between Dharam Singh and Bunty. But in her statement recorded under Section 164 Cr.P.C. before the Magistrate she did not give any such statement and moreover, what talks had taken place between the accused appellant Dharam Singh @ Dharmendra and co-accused Bunty he did not tell about the same. The prosecutrix in her statement recorded under Section 164 Cr.P.C. had directly assigned the role of taking away to the accused appellant Dharam Singh @ Dharmendra also. But this fact that accused appellant Dharam Singh @ Dharmendra had also taken away the prosecutrix from her house and accompanied them in bus to Ghaziabad is not there in the statement of the prosecutrix recorded under Section 161 Cr.P.C. as is clear from the statement of the Investigating Officer (PW-5) S.I. Subhash Chandra Pandey. Thus, from the FIR as well as from the statement of the prosecutrix under Section 161 Cr.P.C. it is clear that accused appellant Dharam Singh @ Dharmendra had not participated in taking away the prosecutrix from her house and in taking her to Ghaziabad by bus. So far as the averment of the FIR that the accused appellant Dharam Singh @ Dharmendra had some hand in getting the prosecutrix eloped with co-accused Bunty is concerned, in this regard there is no reliable evidence on record. In this regard, there may be a misunderstanding to the first informant due to the fact that co-accused Bunty used to live in the house of accused Dharam Singh @ Dharmendra from the childhood and that the testimony of the prosecutrix in that regard is totally contradictory to her statement recorded under Section 161 Cr.P.C. So the same is not reliable.

(iii) So far as the participation of the accused appellant Dharam Singh @ Dharmendra in the commission of crime in question is concerned, it is also highly doubtful because the prosecutrix (PW-2) had not given any such type of statement to the Investigating Officer just after her recovery. Had such statement been given to the Investigating Officer by the prosecutrix, that would have been recorded by the Investigating Officer. The Investigating Officer is a public servant and the presumption under Section 114(e) of the Evidence Act as regards the regularity in the performance of official duties is attracted in the case of the Investigating Officer also because there is nothing on record to show that the Investigating Officer had any affinity with accused appellant Dharam Singh @ Dharmendra.

(iv) So far as the statement of the prosecutrix under Section 164 Cr.P.C. is concerned, this statement as regards the allegation of rape against accused appellant Dharam Singh @ Dharmendra is also not believable because the prosecutrix in her cross-examination had stated that she does not know as to how many days the accused appellants stayed with her in Ghaziabad. She had further stated in her cross-examination that she remained with co-accused Bunty @ Virendra for two months in Ghaziabad. It is also not in dispute that the prosecutrix was recovered from the company of co-accused Bunty @ Virendra from Chharra Bus Stand. So these circumstances are indicating that the prosecutrix had gone with co-accused Bunty from her house; remained with him for around two months in Ghaziabad and thereafter she was recovered from the company of that co-accused Bunty. Therefore the allegation of rape as against accused appellant Dharam Singh @ Dharmendra appears to be false and concocted one. This allegation of rape as against accused Dharam Singh @ Dharmendra had come for the first time in the statement of the prosecutrix recorded under Section 164 Cr.P.C. which was recorded after about ten days of her recovery from the company of accused Bunty. There is no satisfactory explanation of this inordinate delay of ten days. The Investigating Officer (PW-5) in his cross-examination had stated that on 10.3.2006 the prosecutrix was recovered from Chharra Bus Stand from the company of accused Bunty and that on 17.3.2006 she was produced before the Magistrate concerned for getting her statement recorded under Section 164 Cr.P.C. but due to the holiday of Holi her statement could not be recorded on that day. The Investigating Officer had not given any explanation in regard to period from 10.3.2006 to 17.3.2006. According to the Investigating Officer the prosecutrix remained in the police station throughout during this period of ten days and after recording her statement under Section 164 Cr.P.C. she was given in the custody of her father on 20.3.2006 as is evident from the Supurdugi memo (Ext. Ka.2). The prosecutrix in her cross-examination had admitted that before her statement under Section 164 Cr.P.C. was recorded, her Mummy, Papa and uncle had come to police station to meet her. So in these circumstances, it can be easily inferred that she was being tutored and pressurized during this period of 10 days by her parents and relatives to give the statement of their choice. So on this count also the allegation of kidnapping and commission of rape as against the accused appellant Dharam Singh @ Dharmendra appears to be concocted one."

Hence for the foregoing reasons and discussion, I come to this conclusion that the prosecution evidence as against the accused appellant Dharam Singh @ Dharmendra is shaky, self-contradictory and concocted one. So the prosecution has not succeeded in proving its case against the accused appellant Dharam Singh @ Dharmendra beyond reasonable doubt and the trial court has erred in holding him guilty of the charges levelled against him. So he is entitled to be acquitted of all the charges.

Now I come up to the prosecution evidence as against accused appellant Bunty @ Virendra.

On behalf of accused appellant Bunty @ Virendra learned Amicus Curiae has submitted that from the prosecution evidence it transpires that the prosecutrix was a consenting party and she on her own accord had left her parental house and remained with appellant Bunty for about two months and that her age, according to medical evidence, was about 16 years at the time of occurrence in question. Therefore, the trial court has committed an error in holding the accused appellant Bunty guilty of the charges levelled against him.

On the other hand, learned AGA has supported the impugned judgment and order as regards the accused appellant Bunty @ Virendra also and has further submitted that there is consistency in the prosecution evidence as regards the accused appellant Bunty @ Virendra. So the learned trial court has rightly held him guilty and committed no error in the appreciation of the evidence.

I have considered the rival submissions made by learned counsel for both the parties in respect of this accused appellant also.

In my opinion, there is consistency in the prosecution evidence as far as accused appellant Bunty @ Virendra is concerned. In the FIR there is clear allegation against this accused appellant Bunty @ Virendra that he had enticed away the prosecutrix and the said prosecutrix was also recovered from his company from Chharra Bus Stand at Aligarh. The prosecutrix had categorically stated in her statement recorded by the Investigating Officer under Section 161 Cr.P.C. that accused appellant Bunty had subjected her to sexual intercourse forcibly against her consent and that he had taken her away from her parental house on the pretext that her father had called her and asked her to accompany him immediately and on believing him she had left her parental house with him. In the statement recorded by the Magistrate under Section 164 Cr.P.C. the prosecutrix had clearly made allegation against accused appellant Bunty as regards the kidnapping as well as the commission of rape on her. In the court also the prosecutrix had stated that she remained with accused appellant Bunty for about two months in Ghaziabad. Thus, there is consistency in the prosecution evidence from the very beginning up to the last as regards accused appellant Bunty @ Virendra. So the testimony of the first informant as well as the testimony of the prosecutrix inspires confidence as against accused appellant Bunty @ Virendra and the prosecution had succeeded in proving its case against accused appellant Bunty @ Virendra beyond reasonable doubt. The trial court has rightly held him guilty of the charges levelled against him.

Now I come to the point as regards the quantum of punishment awarded to the accused appellant Bunty @ Virendra by the trial court. Accused appellant Bunty @ Virendra has been sentenced to undergo rigorous imprisonment for ten years under Section 376 IPC and a fine of Rs. 10,000//- failing which he has been directed to undergo rigorous imprisonment for one year. He has been further sentenced to undergo R.I. for three years under Section 363 IPC and R.I. for five years under Section 366 IPC with fine of Rs. 2,000/- and Rs. 3,000/- respectively with default clause. All the sentences of imprisonment awarded to the accused appellants have been directed to run concurrently by the trial court. So the maximum punishment of substantive imprisonment awarded to him is ten years. I have already held that the prosecution had not succeeded in proving its case beyond reasonable doubt as against accused appellant Dharam Singh @ Dharmendra and that as regards the third person Yogendra, there is no allegation of rape against him. So, this case does not fall in the category of the gang rape case mentioned in sub-section (2)(g) of Section 376 IPC for which the minimum punishment is ten years. The offence of rape in this case is punishable in Section 376(1) IPC in which the minimum punishment is 7 years.

Here in this case accused appellant Bunty @ Virendra has already undergone the sentence of imprisonment of about 9 years and 6-1/2 months. So regard being had to all the facts and circumstances of the matter and the provisions of law as discussed hereinabove, I am of the opinion that the sentence of imprisonment of accused appellant Bunty @ Virendra is liable to be reduced to the period of imprisonment already undergone by him which comes to about 9 years and 6-1/2 months.

In the result, Criminal Appeal No. 4235 of 2013 filed on behalf of accused appellant Dharam Singh @ Dharmendra is allowed. The impugned judgment and order as regards the conviction and sentence of accused appellant Dharam Singh @ Dharmendra is hereby set aside. He is not found guilty of the charges framed against him and he is acquitted of all the charges levelled against him. He is on bail. His bail bonds are cancelled and sureties are discharged. He need not surrender in the court.

Jail Appeal No. 4943 of 2013 filed on behalf of accused appellant Bunty @ Virendra is hereby partly allowed and the conviction of accused appellant Bunty @ Virendra under Section 363, 366, 376 IPC is maintained but the sentence of imprisonment awarded to him under Section 376 IPC is reduced to the period of imprisonment already undergone by him.

Accused appellant Bunty @ Virendra is in jail. Since he has already served out the sentence of imprisonment awarded to him, so he shall be set at liberty forthwith on payment of fine of Rs. 15,000/- (Rs. 2,000/- under Section 363 IPC, Rs. 3,000/- under Section 366 IPC and Rs. 10,000/- under Section 376 IPC) in the lower court concerned.

This order be communicated to the lower court concerned without any further delay.

Office is directed to send back the lower court record to the lower court concerned for compliance along with the copy of this order.

Amicus Curiae Sri Prem Shankar Advocate shall be entitled to receive Rs. 7,000/- ((rupees seven thousand only) in lump sum as fee from the State.