LAEHAN Vs. STATE

JUDGEMENT

(1.) This appeal has been filed by Lakhan, Smt, Shanti and Smt. Nirmala. They were convicted under Section 366 Indian Penal Code Lakhan was sentenced to undergo R. I. for five years and Smt. Shanti and Smt. Nirmala were sentenced to three years R. I. but instead of sending them to Jail, they were released on probation. Lakhan was further convicted under Section 376 Indian Penal Code and sentenced to undergo R. I. for three years. Smt. Indra Devi aged about J 3 or 14 years at the time of occurrence was an orphan and was living with her imbecile brother Chhote Lal in village within the police circle of It was in District Basti. Her uncle Aish Ram, who originally resided in village Once, was at the time of occurrence living in village Sandal jot at a distance of about a mile from village Oonch Dih. One Gomti, who died during the pendency of the trial, resided in village Oonch Dih. Kamia and Bhagirathi who were also accused in this case, were his sons. Smt. Shanti Devi appellant is the wife of Kamia. Ramanand is a nephew of Gomti. His daughter Smt. Nirmala Devi was married to Harihar, who was also an accused before the Court below. Harihar resided in village Bangai within the police circle of Itwa. Lakhan appellant is the brother of Harihar, who was married to Smt. Nirmala Devi appellant. The prosecution case now is that Smt. Indra Devi was married at the age of five, but her second marriage had not taken place. As already stated above she was residing with her brother Chhote Lal in village Oonch Dih. Smt. Shanti Devi wife of Kamia used to visit Km. Indra Devi very frequently. A week before the date of occurrence (25-9-1972) Smt. Nirmala Devi had also come to her house and remained with Smt. Indra Devi for a pretty long time and had also a talk with her. On 25-9-1972 when Chhote Lal had gone in connection with his business to Shahpur. Smt. Shanti Devi came to her house and persuaded her to go with her on the pretext of going for Darshan of Kateshwar Nath temple. From Kateshwar Nath temple she was taken by Smt. Nirmala Devi appellant towards village Bangai. To the east of Kateshwar Nath temple Bhagirathi. Kamla, Gomtai and Harihar met her. They all kidnapped her with the intention of getting her forcibly married to Lakhan. They were seen by Kam Das Gupta, Chhabi Lal, Ram Achhaibar, Jagdish and Sita Ram. When Chhote Lal returned in the evening and found his sister missing he made enquiries and came to know that Smt. Shanti Devi appellant taken her to Kateshwar Nath temple. He then reported the matter to his uncle Aish Ram in viliage Sandaljot. On 26-9-1972 he went for Gomti, Bhagirath and Kamla in the village but they were not traceable in the village. On 27-9-1972 Aish Ram went to village Bangai alongwith Sita Ram, Chhabi Lal and Ram Das. At the house of Harihar he met Harihar and Gomti. They were told that it was a matter of honour and dishonour of the family and they should not take her in this manner. They should, therefore, restore Smt. Indra Devi to him and the matter, if went to the police, they would all be dishonoured. They admitted that they had committed the mistake but the girl was sent to some distant relations and they promised to restore the girl in the next two or three days. He again went to Harihar in village Bangai where Bhagirathi, Lakhan and Harihar also met him. He told them that it would not be in their interest if the girl was not restored to him. He therefore, insisted on the restoration of the girl to him. They again begged to be excused and wanted further one week's time. He, however, from the way he talked with assurance and promised to restore the girl, felt that they would restore the girl to him but when the girl was not finally restored to him he lodged the report on 10th October, 1972. The Station Officer took the written report from him and said that he will take the necessary action but he did not give any copy of the repot. Thereafter, he made an application to the Superintendent of Police, Basti on 27th December, 1972. That application was sent for registering the case against the appellants. It was registered at the police station on 30-12-1972 at 3. 15 p. m. The Investigation of the case was taken up by Laxmi Ram Chaturvedi, S. I. Jogendra Singh, S. I. Nautanvan on a warrant received from Basti Court recovered Smt. Indra Devi from the house of Banarsi in Nautanvan town in Gorakhpur District on 3rd January, 19/3 at 8 35 p. m. Smt. Indra Devi after recovery was sent to Gorakhpur. Smt. Indra Devi was sent for medical examination to Female Hospital, Basti where she was examined by Dr. Pushpa Srivastawa on 9-1-1973 at 11. 30 A. M. According to date found by Dr. Bhatnagar, Smt. Indra Devi, was about 39 Kg. in weight and 4. 11 "in height. Her teeth were 14x14. There was thick growth of axillary and pubic hair. Breasts were developed. There was no mark of any injury on her private and there was no discharge. Her hymen was torn centrally and admitted two fingers without any difficulty. There was no pain during the examination. Old healed tears of torn margins of hymen were present. On X-ray of wrist joint epiphysis of lower end of radius and ulna were not found fused. Elbow joint X-ray revealed that medical epicondyle of hummers had not fused. Lateral epicedial was found partially fused. Line of fusion of epiphysis of lateral epicondyle was seen. Upper end of radius was not found fused. In her opinion, she was about 14 years of age and there was no evidence of rape present on her person. It was also reported by her that she was accustomed to sexual intercourse. The Investigating Officer recorded the statements of the witnesses and after completing the investigation submitted the charge-sheet against the appellants. Smt. Shanti Devi appellant denied that she used to be use of Smt. Indra Devt and used to persuade her to marry Lakhan. She also denied that she had taken Smt. Indra Devi to Kateshwar Nath temple from where she was taken along with Smt. Nirmala and other accused to Bangai. She also denied other facts of the prosecution case. She claims that she has been falsely implicated owing to enmity. Smt. Nirmala denied that she was the sister of Kamla. She also denied of having persuaded Smt. Indra Devi to marry Lakhan appellant. She also denied other allegations. She claims that she has been falsely implicated owing to enmity. Lakhan also denied allegations of either kidnapping Smt. Indra Devi or having raped her. He also claims that he was falsely implicated owing to enmity. The prosecution examined Smt. Indra Devi P. W. 4. P. W. 1 Aish Ram, first informant and P. W. 2 Ram Akshaibar. Besides these witnesses the prosecution examined Dr. Pushpa Srivastava P. W. 3, Laxmi Ram Chaturvedi P. W. 5. Investigating Officer and P. W. 6 Jogendra Singh, S. I. , who recovered Smt. Indra Devi from the house of Banarsi from village Nautanvan. The learned Sessions Judge believed the prosecution case. He found the prosecution case proved beyond all reasonable doubt against three appellants but did not find it proved against Harihar, Kamla and Bhagirathi. He accordingly convicted and sentenced the appellants as stated above but acquitted the rest of them. The findings of the learned Sessions Judge have been assailed by the learned counsel for the appellants. He contends that no offence or kidnapping under Section 3b6 Indian Penal Code or rape under Section 376 Indian Penal Code has been made out. The first question that arises for determination in all cases of kidnapping is the age of the girl. If the age of the girl is above 18 and the gin is the consenting party it will not be an offence under Section 366 Indian Penal Code. Further if the girl is the consenting party to her sexual intercourse it would not be an offence if the girl is above 16. I thereafore. have to determine age of Smt. Indra Devi on the date of the occurrence. Aish Ram is her uncle and is a proper person to give evidence of age of Smt. Indra Devi. According to him her age at the time of occurrence was 12. His cross-examination shows that this witness could not give the year of the birth of his sons and did not remember the month in which each child was born. He also did not remember the year in which his second marriage took place. He could have approximate idea of the age of sons, nieces and nephews but from a rustic villager like him it could not be expected that he would remember the years of their birth. Smt. Indra P, W. 4 gave her age as 18 on 4-6-1977 the date on which she made her statement before the Court. The occurrence in this case took place in September, 1972. This also gives her age at the time of occurrence as 12. It is no doubt true that in her cross-examination she made some confusing statements in which she stated that her father died 20 or 25 years back but she corrected herself and stated that her father had died 15 years back. She further asserted that Smt. Shanti appellant had told her that she was 12 or 13. The learned counsel for the appellants has drawn my attention to the fact that she stated that her breasts have not developed at the time of occurrence and she had no growth of hair on her private parts at the time of occurrence. However, in the medical report proved by Dr. Pushpa Srivastava P. W. 3 it is mentioned that at the time of her examination on y-l-1973. There was thick growth of axillaries and pubic hair and breasts were also developed. I do not think that this factor by itself can have any final say in the matter. The medical report proved by Dr. Pushpa Snvastava shows the result of X-ray. It disclosed that there was no of radius and ulna bones of wrist joint and there was no fusion of medical epicondyle of humerus. Lateral epicondyle was partially fused. The line of fusion of epiphysis of lateral epicondyle was clearly visible in the X-ray report. From these facts she concluded that the girl was aged only about 14. In her cross-examination she was definitely of the opinion that the epicondyle gets partially fused at 14 or 15. In any case, according to Dr. Pushpa Srivastava, Smt. Indra was below 16. I have, therefore, no hesitation in coming to the conclusion from the evidence on record that Smt. Indra at the time of occurrence was a minor girl, who had not attained the age of 16. She was only 14 or 15 years of age at the time of occurrence. The next contention on behalf of the appellants is that there was considerable delay in lodging of the report. The occurrence took place on 25-9-1972 but the report was not lodged till 13th December, 1972. Aish Ram P. W. 1, who had lodged this report has stated that after he came to know about the missing of Smt. Indra from her house he went to village Oonch Dih and made enquiries about Smt. Indra. After coming to know about the facts from other witnesses he went to village Bangai where the appellants met him. He was at that time accompained by Ram Akshaibar P. W. 2 and Sita Ram and others. He again went to them after four days. On both the occasions they promised to restore the girl but did not restore her under one pretext or the other. In the mean time he kept on making enquiries about the whereabouts of the girl. He had given a written report at the police station but when nothing was done on that report he sent an application by registered post to the Superintendent of Police. Thereafter, the girl was recovered. His statement reveals that the witness was making persistent efforts about recovering the girl. He was trying to secure the girl by approaching the appellants but his attempts proved abortive. It is obvious that in such matters the honour of the family was involved and some the girl was herself married at a very early age he wanted to achieve his object without giving much publicity to the fact as such publicity was likely to prejudice the husband of Smt. Indra or her parents-in-law against her. However, the report had to be lodged when Aish Ram was finally frustrated. One thing also has to be remembered in this connection that Smt. Indra was an orphan girl and his uncle residing in another village, had to take action. In such circumstances I do not think that much importance can be attached to the delay that took place in lodging the report. Smt. Indra P. W. 4 states that she was living with her brother Chhote Lal in villageoonch Dih, She was married in her child-hood. Her second marriage (after) had not taken place. Smt. Shanti Devi appellant used to visit her house and tell her to enter into second marriage with another person. Smt. Nirmala, who belongs to her village, was married in village Bangai with Harihar. Lakhan appellant is the brother of Harihar. Smt. Nirmala used to visit her house and ask her to accompany her and she would get her married to Lakhan, her husband's brother. There was, thus, allurement to her for entering into second marriage. She further states that on the date of occurrence at about 10 in the day she was alone in the house. Her brother was not there. Smt. Shanti Devi appellant alone came to her house and asked her to go to offer worship at Kateshwar Nath temple. A Mela was also going to be held at Kateshwar Nath temple. At Kateshwar Nath temple, the three appellants alongwith Bhagirathi, Kamla, Gomti and Harihar met them. They took her to Bangai at the house of Harihar where she was detained for three days. Lakhan appellant took her from there to village Deohanan where she was kept for 15 days at some house. She, however, did not know the name of the owner of that house. From there she was taken to Nautanvan from where she was recovered from the house of Banarsi. She was beaten there and also raped by Lakhan. The fact that she was at the temple of Kateshwar Nath with the appellants and other for accused is supported by the testimony of Ram Akshaibar P. W. 2. He claims that Smt. Indra was seen by him at the temple of Kateshwar along with the appellants and their co-accused. He, however, did not suspect them as she often used to go with them. When Chhote Lal made enquiries from him he told him about his seeing Smt. Indra with the appellants and their co-accused. I have gone through her cross-examination. I do not think that there is any reason to disbelieve this witness. From the statement of Smt, Indra P. W. 4 I am satisfied that Smt. Shanti and Smt. Nirmala appellants had allured her to leave her brother's house for entering into second marriage with Lakhan appellant. From her statement I am also satisfied that Smt. Shanti took her to Kateshwar Nath temple from where Lakhan appellant and other co-accused took her from Kateshwar Nath temple to village Bangai. It has, however, been contended on behalf of the appellants that the offence in question would not amount to 'kidnapping within the meaning of Section 361 Indian Penal Code as Smt. Indra had voluntarily left her guardianship and the act would not amount to taking or enticing Smt. Indra out of the keeping of lawful guardian of such minor. I have considered this argument. I, however, do not agree with the contention of the learned counsel for the appellants. When Smt. Shanti appellant asked her xo go to Kateshwar Nath temple she was residing under the lawful guardianship of her brother and that guardianship did not end when she was taken away by the appellants or their other companions from Katheshwar Nath temple. She was a minor girl under 16 as such if false pretext or allurements were used and she was persuaded to go with them the Act would amount to her leaving the guardianship of her brother. The appellants have; therefore, been rightly found guilty of the offence under Section 366 Indian Penal Code. There is hardly any reason to disbelieve the statement of Snit. Indra that during the period she was detained by the appellants she was raped by Lakhan appellant. This fact finds corroboration from the medical evidence which shows that she was used to sexual intercourse. Even if it be believed that she was the consenting party it would not amount to consent in the eye of law as the age of consent is 16 and the medical evidence clearly shows that she was below 16 at the time of her examination. Lakhan appellant was, therefore, rightly found guilty of offence under Section 376 Indian Penal Code. So far as Lakhan appellant is concerned he must have been instrumental in getting Smt. Indra kidnapped for the purpose of getting her married to him. He also committed rape on her in order to force her to get married with him. He has, therefore, been rightly sentenced to five years R. I. under Section 366 Indian Penal Code and to three years R. I. under Section 376 Indian Penal Code. However, so far as Smt. Shanti and Smt. Nirmala appellants are concerned they were perhaps motivated by the thought that the interest of Smt. Indra would be better served by getting her married to Lakhan, who was likely to keep her in better comfort. In such circumstances I am of the opinion that they were rightly released on probation. The appeal is dismissed. The conviction of the appellants under Section 366 Indian Penal Code is hereby maintained. The conviction of Lakhan appellant under Section 376 Indian Penal Code is also maintained. His sentences under Sections 366 Indian Penal Code and 376 Indian Penal Code are also maintained. He shall be taken into custody to serve out the sentences of imprisonment as he is on bail. The order of release on probation of Smt. Shanti and Smt. Nirmala is also maintained. They shall furnish bonds as directed, if already not furnished, within two months from the date of receipt of the record by the Court below. On their failure to do so the order passed by the Court below sentencing them shall take effect. .