Dinesh Bhatt vs State Of Uttarakhand

Lok Pal Singh, J

This criminal appeal is received from jail through the Jailor, District Jail, Chamoli and is directed against the judgment and order dated 15.05.2014, passed by learned Sessions Judge, Rudraprayag, in Sessions trial no. 05 of 2013, whereby accused/appellant Dinesh Bhatt was convicted under Sections 376, 363, 366A, 368 of IPC and Sections 5/6 & 7/8 of the Protection of Children from Sexual Offences Act, 2012 (for brevity POCSO Act) and was sentenced to undergo rigorous imprisonment for a period of ten years along with fine of Rs.5,000/- under Section 376 of IPC read with Section 5/6 of the POCSO Act. He was also sentenced to rigorous imprisonment for three years along with a fine of Rs.3,000/- under Sections 7/8 of POCSO Act. Accused / Appellant was also sentenced to rigorous imprisonment for a period of five years each along with a fine of Rs.3,000/- under Sections 363, 366A, 368 of IPC. All the sentences were directed to run concurrently.

2) Heard learned counsel for the parties and perused the entire evidence on record.

3) Prosecution story, in brief, is that Manoj Bhatt, complainant of the case, submitted a complaint (Ext. A-1) to the Revenue Sub-Inspector, Jakholi, Tehsil Jakholi, District Rudraprayag, on 05.07.2013, stating therein that his niece Km. 'X' (name withheld), aged 17 years, used to reside with him in Village Laladi (Baman Gaon) since last 16 years, after the death of her parents. She is being brought up by the complainant. At present, she is studying in Class XII. On 04.07,2013, at 10:00 A.M., niece of the complainant, told his wife (maternal aunt of victim) that she is going to Mayali Bazaar to purchase some articles. When the victim did not return till evening, complainant made a frantic search for her. Co-villagers Sanjay and Saurabh Bhandari told the complainant that they had seen her niece with Rajendra Singh s/o Raghubir Singh, r/o village Rahar talking to each other on 03.07.2013, in the evening, at Jakholi Bazaar Park. On hearing this, when complainant returned home he found Rs. 81,000/- along with one pair of gold rings missing from the almirah. It is stated in the complaint that he (complainant) had every apprehension that Rajendra Singh enticed away her niece, who also took the aforesaid money with her from the house at the instance of Rajendra Singh.

4) On the basis of said complaint, chik FIR (Ext. A-6) was lodged against Rajendra Singh in respect of offences punishable under Sections 363 and 366 of IPC. The Investigating Officer prepared site plan (Ext. A-8); application (Ext. A-9) written to S.D.M., Jakholi seeking permission to search the accused and the victim. On 06.07.2013, the Investigating Officer along with the complainant went to Haridwar and enquired from Rajendra Singh about the whereabouts of the victim. On 08.07.2013, Rajendra Singh contacted the victim over his mobile and the victim told him that she is with a person named Bhole. Victim also told that accused Dinesh Bhatt enticed her away and she is coming to Haridwar. On 09.07.2013, at 06:30 A.M., the victim alighted from bus at Haridwar bus station. She was identified by the complainant. Bhole also descended from the bus after the victim. The Investigating Officer enquired from the victim and Bhole. Thereafter, co-accused Bhole was arrested and arrest memo (Ext. A-10) was prepared. On 09.07.2013, on the information of an informer, accused Dinesh Bhatt was arrested from Haridwar bus station on the pointing of Sunil Bhatt (PW5) and the complainant Manoj Bhatt (PW1). Arrest memo (Ext. A-12) was prepared in this regard. Victim was handed over to the complainant and supurdiginama (Ext. A-14) was prepared in this effect. On 09.07.2013, the complaint made by the complainant was converted in respect of offences punishable under Sections 363, 366A, 376, 368, 506 of IPC and under Section ¾ of POCSO Act and a case was registered against the accused Dinesh Bhatt and co-accused Bhole. Statement of the victim was recorded under Section 164 Cr.P.C. and she was also got medically examined. Statements of the witnesses were also recorded under Section 161 of Cr.P.C. The date of birth certificate of the victim (Ext. A-18) and transfer certificate of the school attended by the victim (Ext. A-19) were obtained. After completion of investigation, charge sheet (Ext K-17) was filed against the accused-appellant for his trial in respect of selfsame offences.

5) The case was committed to the court of Sessions for trial. Charges were framed against the accused under Sections 376, 363, 366-A, 368 of IPC and Section ¾ and 7/8 of POCSO Act. The accused pleaded not guilty and claimed to be tried. On this, prosecution got examined PW1 Manoj Bhatt (complainant / maternal uncle of the victim), PW2 Rameshwari Devi (maternal aunt of the victim), PW3 (prosecutrix herself), PW4 Aastha Bhandari (Medical Officer), PW5 Sunil Bhatt (witness of arrest of the accused), PW6 Rai Singh (Investigating Officer) and PW7 Raghuvir Singh (Principal of the school last attended by the victim). DW1 constable Mahavir Singh Rawat was examined as defence witness. In reply to questions posed under Section 313 of Cr.P.C., the accused replied that he has been falsely implicated in the crime. The trial court, after hearing the prosecution and the defence, found the accused guilty of the charges framed against him and sentenced him accordingly.

6) PW3 Ms. 'X', prosecutrix, has stated on oath that her parents were no more and she used to reside with her maternal uncle Manoj Bhatt. According to her, she used to study in class XII. The witness has also stated that on 29.06.2018, accused asked her to bring one blanket in his room. When the victim reached there, accused committed rape on her. On 03.07,2013, accused told the victim to come to Agra with him and promised that he will marry her. On 04.07.2013, when the victim reached Haridwar along with the accused, accused told her to board a bus to Agra and further told that he will join her later. Victim waited for two days at Agra bus station, but the accused did not reach there. Thereafter, victim took a Delhi bound bus for Haridwar. During said journey she met Bhole (co-accused), who took her to his house in Ballabhgarh on the pretext that he will drop her at Haridwar. She stayed in the house of Bhole and during night she contacted Rajendra (who was earlier implicated under Sections 336, 366 of IPC in the present case) on mobile and told him about her whereabouts. On this, Rajendra told her to reach Haridwar anyhow. Next day morning i.e. on 09.07.2013, police arrested Bhole and recovered the victim as soon as she alighted from the bus at Haridwar bus station. According to the victim, she was medically examined at Rudraprayag on the same day and her statements were recorded before the Magistrate under Section 164 of Cr.P.C. In her cross-examination, victim has stated that she was having mobile phone with her from 04.07.2013 (the day she left her house) till 09.07.2013 (the date she was recovered by the police). The statement of the victim recorded under Section 164 Cr.P.C. were almost the same which were adduced by her before the trial court, on oath.

7) Medical evidence on record also corroborates the prosecution story narrated by the victim. PW4 Dr. Astha Bhandari, Medical Officer, who medically examined the girl on 09.07.2013 and prepared report (Ext. A -3) has stated that on medical examination she found hymen of the girl torn. PW4 also found bruises below the knees of the victim. As to the age of the girl, PW7 Raghuvir Singh, Principal of the school attended by the victim, has proved the date of birth of the victim as 02.11.1996, on the basis of the date of birth recorded on her High School certificate (Ext. A-20) which shows that the victim was aged 16 years and 8 months on 04.07.2013. Sexual assault on the minor girl is established. There is hardly any possibility that she or her maternal aunt and uncle would falsely implicate their own relative in the crime in question, leaving the real culprit.

8) In view of above discussion of evidence, I am in complete agreement with the trial court that the prosecution has been successful in proving the charge of offences punishable under Section 363, 366-A, 368, 376 of IPC read with Section 5/6 of POCSO Act and Section 7/8 of POCSO Act of I.P.C. against the accused-appellant Dinesh Bhatt.

9) Ms. Sheetal Saini, learned Amicus Curiae appearing on behalf of the appellant submitted that the appellant is aged 58 years and had been already in jail for more than five and a half years. From the perusal of papers on record, it appears that accused/appellant was in jail during the trial and also during the period of this appeal. Accused / appellant, as is clear from the arrest memo, appear to have been arrested on 09.07.2013. The age mentioned in the statement recorded by the trial court under Section 313 of Cr.P.C., also shows that at the time of trial his age was 52 years. Considering the age of the appellant, I am of the view that sentence of rigorous imprisonment for seven years would meet the ends of justice. Therefore, the submission of learned counsel for the appellant for reduction of sentence is acceptable.

10) Accordingly, the appeal deserves to be partly allowed. The impugned judgment and order dated 15.05.2014, passed by learned Sessions Judge, Rudraprayag, in Sessions Trial No. 05 of 2013, is affirmed on the point of conviction. However, on the quantum of sentence, the appeal is partly allowed and the sentence as also the fine awarded against the appellant, is set aside. In its stead, the accused / appellant Dinesh Bhatt is sentenced to rigorous imprisonment for a period of seven years under Sections 376 of IPC read with Section 5/6 of POCSO Act. Rest of the sentences awarded against the accused-appellant shall remain intact as also the fine imposed on those counts. All the sentences shall run concurrently. The period already undergone by the accused/appellant during the trial and period of appeal shall be adjusted / set off against the sentence awarded by this Court. The appeal stands disposed of, accordingly.

11) The Registry of this Court is directed to send the lower court record back to the trial court to make the accused/appellant serve out the sentence awarded against him.