State Of Uttarakhand & Others vs Amit Bhatt @ Chhote & Others

Sudhanshu Dhulia, J

All these three appeals arise out of the common judgment given by learned Sessions Judge, Pauri Garhwal in Sessions Trial No.39 of 2010 whereby the appellants in Criminal Appeal Nos.80 of 2013 and 86 of 2013 were charged under Sections 376(2)(g), 395, and 511 IPC and have finally been convicted under Sections 395 and 354 IPC and have been sentenced for three years' R.I. under Section 395 IPC and one year's simple imprisonment under Section 354 IPC, apart from the fine which has also been awarded to them.

The Government, in turn, has preferred an appeal against acquittal as well as enhancement of sentence under Section 377/378 CrPC, although in the memo of appeal only Section 377 has been stated, but from the prayer in the appeal, it is clear that it is being preferred under Section 373/378 of CrPC.

The prosecutrix in this case lodged an FIR at P.S. Kotdwar on 8.4.2010 at about 3:05 PM which says that yesterday i.e. on 7.4.2010 at about 4 PM, the complainant who is a young woman had gone on her scooty for a ride with her friend Nirmal Bisht towards Kanvashram in Kotdwar. While they were returning from "Kanvashram", and had reached "Sati Chowk Road", they were stopped by a group of five persons who snatched the mobile phone of the prosecutrix and the mobile phone of her friend and took away Rs.800/-which was in the pocket of Nirmal Bisht. Thereafter, she was assaulted and beaten up by these five persons. When she raised an alarm, she and her friend were dragged towards the nearby jungle where the accused tried to undress and molest her. She continued to raise alarm and as a result a few persons from the nearby village came to their rescue. On the intervention of villagers, the key of her Scooty, the money and the mobile phones were returned to them. Meanwhile, the five assailants threatened that in case the matter is reported to the police, the two shall be killed. It is next stated in the FIR that the prosecutrix requested the persons who had saved her, to accompany her to the police station to lodge the FIR but they declined as they did not want to be involved in such matters. The police lodged the FIR and registered the case as case crime no.645 of 2010 under Sections 376, 511, 323, 504, 506 and 395 IPC. The charge-sheet was submitted against the accused under Sections 376, 511, 323, 504, 506 and 395 IPC. Meanwhile, the accused, who were five in number, were arrested from their residence the very next day of the lodging the FIR.

Considering the nature of offence, the case was committed to the Court of Sessions as Sessions Trial No.39 of 2010.

On 9.7.2010, learned Sessions Judge, Pauri Garhwal framed the charges against the accused Amit Bhatt @ Chhote, Hemant Rawat, Ashutosh Kumar, Vinod Rawat and Pradeep under Sections 395, 376(2)(g)/511 IPC.

The prosecution in order to prove its case has examined as many as five witnesses.

PW1 is the prosecutrix herself and for the sake of anonymity, we will refer to her as 'Ms. A'. In her examination-in-chief which was recorded on 7.8.2010, she states that on 7.4.2010, she had gone for a ride to "Kanvashram" with her friend Nirmal Bisht. While they reached "Sati Chowk", they were stopped by a group of five people. She recognized those five persons as the accused who were present in the Court. Out of these five persons, one was carrying a "danda", ordered her to stop her Scooty. When she stopped her vehicle, the keys of the vehicle were snatched by them, as were their mobile phones. They also took away Rs. 800/- from the pocket of Nirmal Bisht. When the two raised an alarm, they were beaten up by these persons who continued to behave in an indecent and obscene manner, and also molested her. They caught her and dragged her to the nearby jungle, where they tried to undress her. When she raised an alarm, she was beaten up by these five persons. Meanwhile, the people residing nearby, reached the spot and the two were rescued. The keys of her scooty, mobile phones and money were returned to them but they were also threatened by the accused that in case they meet again, they will be killed. She recognizes the assailants as she had seen them on an earlier occasions roaming in the streets of Kotdwar town. One of the assailants was known as 'Chhotu'. After the incident, she returned to her house and the FIR was lodged by her on the next day at P.S. Kotdwar. She was shown the FIR which was lodged by her, which she recognized as the FIR lodged by her on 8.4.2010. She states that the FIR was lodged at her dictation. She did not know the scriber who wrote the FIR but after the FIR was reduced to writing, she read its contents and gave her signatures on it. As she was extremely terrified after the incident, she did not report the incident the same day. She also says that after lodging the FIR, the police got her medically examined.

She was then put to cross-examination by the counsel for the defence. On being cross-examined as to why she did not report the incident to her parents immediately, she says that when she returned to her house, her parents were not present in the house, although other members of the family such as aunt were there. She did not disclose the incident to her aunt, nor was it disclosed to them by her friend Nirmal Bisht. Her friend stayed in the house barely for 5 minutes that day and then left. The next day, Nirmal Bisht came to her house. She named few other persons who are their friends and then she says that she met them at the police station at the time of lodging the FIR. She states clearly that after the accused were arrested, she was not called to the police station for the identification of the accused. She also expresses her inability as to the exact date when she had seen the accused roaming in the market of Kotdwar, but she had seen them on a couple of occasions in the market. She accepts that her clothes were not torn in the incident, nor did she sustain any internal injury. She does admit that she received an injury on her hand, which was inflicted by the "danda" carried by one of the accused. On being suggested by the defence, she denies that the couple (i.e. she and Nirmal Bisht) had indulged in any obscene act in a public place or were doing anything which could be called obscene or objectionable.

At this juncture, we must also revert to the medical report of the injured/prosecutrix. She was medically examined on 8.4.2010 at 3:40 PM by PW3 Dr. Subhash Kumar, Medical Officer, Govt. Combined Hospital, Kotdwar, who has recorded three injuries on her body, which are as follows: -

"1.Peri-orbital swelling with tenderness present around the left eye with ecchymosis (black eye).

2.Contusion of size 5.0 cm x 3.0 cm over posterior aspect of right forearm. Reddish in colour.

Contusion of size 2.5 cm x 2.0 cm over nasal bridge. Reddish in colour."

When Dr. Subhash Kumar, who had medically examined the prosecutrix, was put to witness and examined as PW3 on 14.7.2011, he also verifies the medical report as well as the fact that these injuries could have been caused a day before i.e. on 7.4.2010 at about 4 PM.

Though, in his cross-examination, this particular witness says that he was told by the injured that she has sustained these injuries when she fell from her scooty, but at the same time, one injury that she had received on her right arm is an injury by the "danda", which was given to her by one of the assailants and which is further verified in the testimony of PW2. The statement of this witness as to her injury is duly corroborated by her medical report.

PW 2 Nirmal Bisht, who is the friend of the prosecutrix (PW 1), is also a victim here. He says that on 07.04.2010 when he along with PW 1 reached Sati Chowk, five persons stopped them. They were impersonating as forest personnels and later started misbehaving with the two. His friend (Ms. 'A') tried to start her scooty, but then one of the accused gave her a blow on her hand, by the "danda", he was carrying, and as a result Ms. 'A' received injuries on her right arm. Thereafter, they snatched the key of scooty and started misbehaving with the two. Their mobiles and Rs. 800/-were also stanched by these persons. Then they were dragged to jungle. He was also beaten up by them. The villagers of neighbourhood reached the spot and saved them and the money, mobiles and the key of the scooty were returned to them. On being questioned by the defence as to why they did not immediately report the matter to the police, he says that he was not sure whether the matter should be reported to the police initially and also because he was traumatized and was emotionally very upset.

PW 4 was witness to the incident, who was a passer by gave a statement to the police, but has turned hostile and was declared as such by the prosecution.

PW 5 is the investigating officer, who corroborates the story of the prosecution and says that after lodging of the FIR, medical examination was done of the prosecutrix and then she was handed over to her parents, and the accused were arrested the next day. He says that at the time of lodging the FIR as well as the recording of the statement of PW 1 and PW 2, only one name was disclosed which was of "Chotu". During investigation, it came out that "Chotu" is the name by which Amit (one of the accused) was known. Amit was arrested the next day, who disclosed the name of other four persons.

Learned counsels for the appellants have argued that there has been no Test Identification Parade. This is definitely a weak aspect in the case of the prosecution, but it does not damage either the credibility or the truthfulness of the testimony of PW 1 in particular, for the reason that both PW 1 and PW 2 have identified the five accused persons in the court. The incident happened in Kotdwar, which happens to be a small town and though the accused may not have been personally known to the victim and the complainant, there is every possibility that they would have seen then earlier in the market or any other place, considering that it is a small town in a terai and bhabar area of the hills. The prosecutrix has already given a statement that she had seen these accused persons in Kotdwar town earlier.

Moreover, an extremely relevant fact which cannot be ignored is that barely a week after the incident, PW 1 and PW 2 have got married. It has come in the evidence consistently that both PW1 Ms. 'A' and PW2 Nirmal Bisht were close and intimate friends and this friendship finally culminated in their marriage on 12.4.2010. The prosecutrix (PW1) is 21 year of age and PW2 Nirmal Bisht is 22 year of age. A girl who is only a week close to her marriage, will never falsely implicate someone in an offence of this nature. The prosecutrix has not only boldly come out in court but has taken a legal course provided to her under the law. She has trusted the system. In her examination-in-chief and the cross-examination, she has stood her ground. This witness inspires our confidence. She is telling the truth. Therefore, inspite of the lacuna of the identification parade, we are convinced that the prosecution has been able to establish its case beyond a reasonable doubt as far as the offence under Section 354 IPC is concerned.

However, no offence, to our mind, as alleged, could have been made out under Section 395 IPC against the accused. The allegations regarding snatching of mobiles etc., if at all, were only momentary as it was the admission on the part of PW1 prosecutrix and PW2 Nirmal Bisht that they were shortly returned to them in any case. Thus, the conviction and sentence of the appellants/accused under Section 395 IPC is set aside.

Under Section 354 IPC, the five accused have been sentenced for one year simple imprisonment with fine of Rs.1,000/- each. It has come from the record that all the accused have remained in jail between the period from 9.4.2010 till they were ultimately granted bail by this Court on 2.7.2010. Therefore, in each case, they have remained in jail for more than three months.

Section 354 of IPC as it stood at relevant time reads as under:

"354. Assault or criminal force to woman with intent to outrage her modesty. - Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

In other words, prior to the amendment in the year 2013, there was no minimum sentence prescribed under the law under Section 354 IPC.

We are of the considered view that as far as the sentence to the accused under Section 354 IPC is concerned, the interest of justice would be met if the imprisonment of the appellants is reduced to what has already been undergone by them, which is slightly more than three months in each case. At the same time, considering the nature of offence and in view of the appeal preferred by the State Government seeking enhancement of the sentence awarded to the accused, we enhance the fine of Rs.1,000/- as imposed by the Trial Court under section 354 IPC to Rs.10,000/-against each of the accused. The non payment of fine shall result in a further imprisonment of two months in each case. The Government appeal and the Criminal Appeals of the accused are therefore partly allowed to the extent above.

The appellants are already on bail. They need not to surrender. Their bail bonds are cancelled and sureties are discharged. The amount of fine, so enhanced by this Court shall be deposited by the accused before the Court concerned within a period of three weeks from the date a certified copy of this order is received. Any amount which has already been deposited by way of fine shall be adjusted. The entire fine, so deposited, shall be given to the prosecutrix as compensation in terms of Section 357 Cr.P.C. within three weeks thereafter. The non payment of fine shall result in imprisonment of two months in each case, in case the amount of fine is not paid within three weeks from the date a certified copy of this order is received.

Let a certified copy of this judgment be sent to the court concerned along with the lower court record for onward compliance.