State v. Balbir and S.T. no

Ms. Shiwali Joshi, amicus curiae for he appellant t Mrs. Mamta Bisht, AGA for the State Dated: March 27, 2012 Hon(cid:146)ble Servesh Kumar Gupta, J. This judgment will adjudicate the above titled three criminal appeals. It is pertinent to mention that Appeals No.170/08 and 36/09, arise out of the common judgment and order dated

10.3.2008, rendered by Sessions Judge, Uttarakashi in S.T. No.13/06, convicting both the appellants Balbeer and Jagmohan, for the offences of Section 363, 366-A, 372 and 376(2)(g). For all these offences, they have been sentenced for a different tenure of imprisonment. All the terms of prison 2 have been directed to run concurrently. It would not be necessary to reproduce the different terms of imprisonment, awarded to both the convicts, in this judgment. Third appeal no.298/2003, preferred by convict Arvind Singh, arises out of the judgment and order dated 23.9.2003, rendered by Sessions Judge, Uttarkashi in S.T. No.13/2002, convicting the accused Arvind Singh for the same offences. The sentences passed by the Sessions Judge (manned by a different Judge) is also the same as that of other two accused, named above. All the sentences, in this trial also, were directed to run concurrently. These aforementioned trials arose out of the same crime no.2 of 2002, pertaining to Patwari Outpost Darsaun, Tehsil Barkot, District Uttarkashi but the chargesheet against the accused Arvind Singh was submitted in the court separately because he was arrested soon after the incident, whereas the chargesheet against the accused Jagmohan and Balbeer was submitted in the court distinctly because they absconded after the incident. Since the accused Arvind Singh was arrested, hence his trial proceeded earlier whereas, the trial against other two accused could not be proceeded because they were absconding. Accused Balbeer surrendered on 24.3.2006 whereas accused Jagmohan surrendered on 25.8.2006, so their S.T. No.13/2006, State Vs. Balbir and S.T. no.16/2006, State Vs. Jagmohan, were clubbed together by learned Sessions Judge for proceeding ahead. In brief, the prosecution story is that accused Arvind was married in village Kafnaul, Tehsil Barkot, wherefrom the prosecutrix and her family also hails. Accused Arvind, along with his two associates Jagmohan and Balbeer, came to the said village on 4.7.2002 and stayed there at her in-laws house. At about 10 PM of that day, Arvind along with his two friends, named above, came to the informant Pyare Lal (brother of 3 prosecutrix) and offered espousal of his sister Ram Pyari for Balbeer. The informant replied in negative, saying that his sister has not come up to the age and she is still a minor. The informant offered them a dinner but they declined to accept, saying that their food has been prepared somewhere else. After this, accused Jagmohan and Balbeer came out of the house and called the prosecutrix Rampyari outside the house. They enquired her whether she was ready to marry. Accused Arvind made the informant confused in the conversation and in the meantime, the prosecutrix was enticed away. A massive hunt was made by informant in the surrounding vicinity up to Purola (a nearby town) but her whereabouts could not be traced, so he lodged the report on 10.7.2002. After investigation, chargesheets were submitted, as afore-stated, and the different trials also proceeded in the court of Sessions Judge, Uttarakashi, manned by two different Judges at different times. Both the learned Judges recorded the findings of conviction and sentence of the accused/appellants, as stated above. Feeling disgruntled, these appellants are before this Court. I have heard learned counsel for all the appellants as well as learned AGA for the State and perused the entire material available on record. Having gone through the evidence, on record, Km. Rampyari has been produced as PW1 in ST No.13/02 whereas, in S.T. No.13/06, she has been examined as PW5. This is the most crucial evidence, adduced by prosecution, against the accused/convicts. Km. Rampyari, in the earlier case, has disclosed her age as 16 years on 20.6.2003, whereas in S.T. No.13/2006, she has disclosed her age as 19 years on

10.10.2007. So, this way, as regards the disclosure about the age of prosecutrix, it is in consonance and does not suffer from any incongruity. She was recovered on 17.7.2002, i.e. 4 after 13 days of the incident and was medically examined on

18.7.2002. The prosecutrix was also examined determination of age and her x-ray report is also available on record. As per the medical opinion, she was reported to be habitual of sexual intercourse and on the basis of various x- ray and radiological reports, her age was determined to be about 16 years on 20.7.2002. Learned Sessions Judge has also recorded his finding, regarding the age of prosecutrix, to be around 16 years. He has opined that as per all the reports, she was definitely below 18 years of age, while for the offence of Section 361 IPC, which deals with kidnapping from lawful guardianship, the girl should be below 18 years. It was argued that taking the conduct of the girl into consideration, her age may be deemed as nearing 18 years because in the criminal jurisprudence, medical evidence is not always absolute. So far as the principle of medical jurisprudence is concerned, it is true that determination of age, on the basis of radiological report, may not be always absolute but at the same time, there is no such rule, much less an absolute one, that two years have to be added to age determined by a doctor. In this regard, Hon(cid:146)ble Apex Court, in the case of (cid:147)State of U.P. Vs. Chhotey Lal, reported in (2011) 2 SCC 550(cid:148) has to be taken into consideration. Besides, the Hon(cid:146)ble Apex Court in case of (cid:147)Vishnu Vs. State of Maharashtra(cid:148) reported in 2006 (1) SCJ 299, has held that (cid:145)regarding the age of the prosecutrix in a case u/s 376 IPC, the evidence of the parents of the prosecutrix to prevail over medical opinion(cid:146). PW3 Smt. Dablee is the mother of prosecutrix, who has proved the age of victim, at the time of incident, as 14 years. So, now it can conclusively be held that at the time of incident, the prosecutrix was definitely much below 18 years of age. 5 Even she was not near 18. As such, the offence is squarely covered within the meaning of Section 361 IPC. It has been argued, on behalf of appellants, that the FIR was lodged quite belatedly by brother of prosecutrix because from the intervening night of 4/5.7.2002, he was well aware regarding the enticement of his sister Km. Ram Pyari by the accused. This argument is not acceptable. Cause of delay, in lodging the FIR by brother Pyare Lal, has been well explained in his statement, recorded in the court as PW2 in S.T. No.13/02 as well as in S.T. No.13/06. He has deposed that he continued to make a massive search of his sister in all the relations, as well as in the nearby towns, which consumed time. Moreover, it should not be oversighted that accused Arvind was married in that very village. In Indian tradition, there always remains a special regard for such person who remains married in the village. Needless to mention that in the hills, the size and structure of the village is very small one and on the basis of few families, the locality is designated the name of a village. So, averting the promptness, in lodging the FIR against all the accused, was not intentional on the part of Pyare Lal. This way, the delay is perfectly justified, which has been recognized by both the learned Judges sufficiently in the instant case. On reading the statement of prosecutrix, it reveals that the same is a tale of atrocious conduct on the part of all the accused. After scenting some intoxicant to her, she was enticed away in a pre-planned and well-conceived manner. Firstly, she was taken to Vikas Nagar (Distt. Dehradun) where she was kept confined for a night and all the three appellants consecutively raped her. This fact has been proved by the prosecutrix herself in the Court. The victim was then taken away to Meerut at some house where she was sold and kept in detention by the house lady at 6 Meerut for almost 12 days. The prosecutrix was asked to satisfy the sexual lust of at least 3-4 persons daily for monetary gains of that lady. After 12 days, she was fetched by accused Balbeer from Meerut and taken back to Vikas Nagar again, where the accused Jagmohan and Arvind also associated him. They all stayed in a room and that night, all the three appellants raped her again. Next day, she was sent off in a Commander Jeep, with a direction to the driver to leave the prosecutrix at Barnigard, wherefrom she was taken away by her brother Pyare Lal and his wife. Subsequently, she was taken to the law enforcing official of Police, i.e. Patwari Darsaun, who had the jurisdiction over that area and then only, her medical examination could be held and investigation could be furthered. Learned counsel for all the appellants have indicated some discrepancies in the statement of prosecutrix, to that of her brother Pyare Lal and mother Smt. Dablee regarding the evidence of fact. Taking into consideration the heinousness of the crime, these discrepancies, contradictions or incongruities are of such nature, which are liable to be ignored. In several cases, some minor discrepancies are bound to occur, particularly when a minor girl, at the age of 16 years, was subjected to such a treatment at the hands of three cruel persons, as stated above; then after passing of almost five years, when she was again produced in the court for examination, it is but natural that certain discrepancies would certainly be noticed in the statement of prosecutrix, from that of evidences, adduced by her brother Pyare Lal and mother Smt. Dablee. Needless to say that S.T. No.13/2006 was delayed only because of the conduct of accused Jagmohan and Balbeer. They absconded soon after the incident and after almost four years, they surrendered in the court and then only the trial could be commenced. Again after five years, the 7 witnesses were called in the court for examination, so after a long gap, such discrepancies or contradictions are quite natural and thus, bound to take place. It has been time and again laid down in so many judgments by Hon(cid:146)ble Apex Court that discrepancies in law may render credential of the depositions. Parrot statements are disfavoured by the courts. Mere congruity or consistency is not the sole test of truth in the deposition. In this regard, the judgment delivered by Hon(cid:146)ble Apex Court in the case of (cid:147)State of H.P. Vs. Lekh Raj and others, 1999 (3) A.Cr.R. 2754 S.C.(cid:146) may be noticed. Similarly, Hon(cid:146)ble Allahabad High Court, in the case of (cid:147)State of U.P. Vs. Naurtu Singh & others(cid:148) reported in 1999(3) A.Cr.R. 29804 (Division Bench), has held that discrepancies in the matters of details always occur in the evidence of truthful witnesses. Such variations creep in because there are always natural differences in the faculties of different individuals in the manner of observation, perception and description. Natural variances are bound to be there regarding same occurrence in the version of different eyewitnesses unless they give tutored or crammed evidence in parrot like manner. The same view was reiterated by the Apex Court in Leela Ram Vs. State of Haryana, 2000 SCC (Cri) 222 and also by Uttarakhand High Court in Gaudam Bahadur Vs. State, 2006 (1) Utt. Decisions Page 449. It is also pertinent to mention that the Hon(cid:146)ble Apex Court, in a number of cases, has held that in the cases of Rape, conviction can be based solely on the evidence of prosecutrix if the evidence seems to be trustworthy because normally, a woman would not falsely implicate anyone for the offence of rape at the cost of her modesty. In Indian Society, it 8 is very unusual that a lady, with a view to implicate a person, would go to the extent of stating that she was raped. In this regard, following precedents can be taken note of: -

1. State of U.P. Vs. Chhote Lal (2011) 2 SCC 550

2. Madan Lal Vs. State of M.P. (2) Crimes Page 210, Madhya Pradesh. So, this Court, having a panoptic view of the entire evidence, deposed before the trial court in two different trials, feels that the judgments and orders of conviction, recorded by two Sessions Judges, in the same crime, one for the accused Arvind and another for the accused Jagmohan and Balbeer, do not warrant any interference by this Court. Taking the nature and gravity of the offence into consideration, the sentence, so passed by the trial court, need not to be interfered. All the three appeals are bereft of any merit and liable to be dismissed. Appeals are, accordingly, dismissed. Appellants/accused Jagmohan and Balbeer are already languishing in jail. They shall serve out the sentence, as awarded against them. Appellant Arvind Singh was enlarged on bail at the time of presentation of his appeal. His bail is hereby cancelled. Let he be taken into custody by trial court to serve out the sentence, as imposed against him. Registry is directed to send the copy of this judgment to trial court for compliance. Lower court record be sent back. Rajeev Dang (Servesh Kumar Gupta, J.) March 27, 2012