KAL BAHADUR Vs. STATE

JUDGEMENT

(1.) ON charges of kidnapping and rape four persons, namely Kal Bhadur, Lal Singh, Rissal Chand and Gian Chand were charge sheeted and produced in the court of City Magistrate, Jammu. After the preliminary enquiry, the City Magistrate, Jammu, discharged Gian Chand, but charged the remaining three accused persons under Sections 366 and 376 R.P.C. and committed them to stand their trial. After recording the evidence of the prosecution and the statements of the excused persons and on consideration of the arguments advanced by the counsel for the parties, the learned Additional Sessions Judge, (Sh. K. K. Mahajan) who tried the case acquitted one of the accused namely Rissal Chand and convicted Kal Bhadur and Lal Singh under Section 376 R.P.C. and sentenced them to rigorous imprisonment for three years each. It was against this order that the present appeal has been filed from jail.

(2.) BRIEFLY stated the story of the prosecution is that on 30 -10 -1972 at about 11 -45 P.M, Mst. Kesri lodged a report in the police station Saddar Jammu, in which she alleged that her daughter, Mst. Guddi, had been kidnapped on 27 -10 -1972 by one Kal Bhadur. After the report was lodged the police, it is alleged, went to the khokha of Kal Bhsdur situated in camp Pur Kho, 9/10 miles away from the city of Jammu and allegedly recovered the girl from there in the morning of 31 -10 -1972. In the trial court a number of witnesses were examined including Mst. Kesri Mst. Guddi, Sant, Ram, two lady doctors and the Investigating Officer, Harnam Singh, ASI. The accused produced no defence but denied in their statements under Section 342 Cr. P.C that they had kidnapped the girl or committed rape on her. According to Mst. Kesri PW 1 the age of her daughter, Mst Guddl was about 15 years on the relevant date. When Guddi did not return from the place where she had gone to fetch wood, Mst. Kesri becams apprehensive that something had happened to her. She informed Sant Ram who was a relation of hers and both of them began a search foi the girl and continued the sarre for about three days. Then Sant Ram came to know that the girl had been kept in hiding by Kal Bhadur at a place called camp Pur Kho in Tehsil Jammu. She and Sant Ram PW 3 went to the Police station and lodged the report and on the following day early in the morning a police party proceeded towards camp Pur Kho and on search recovered the girl from the custody of Kal Bhadur. Mst. Guddi. PW 2 in her deposition has stated that she was in her houso when Rissal Chand accused came to her and told her that her father bad fallen seriously ill and had her to accompany him to her father. She first resisted but then followed Rissal Chand who instead of taking her to her father took her i.e. a house in Gandhinagar where Rissal Chand alongwith another accused Lal Singh ravished her and kept her there for three night. On the fourth day she was taken by a taxi to camp Pur Kho and left there in the Khokha of Kal Bhadur. She further alleged that the taxi owner Gian Chand on way to Pur Kho camp ravished her as he threatened the accused persons that he was a security officer and would inform the police in case he was not permitted to have his share. According to Mst. Guddi, Kal Bhadur also committed rape on her during the night against her will but when in the morning police came she wais recovered from the house and taken to police station. According to her Lal Singh and Rissal Chand accused ravished her a number of times in the Gandhi Nagar house on the Durrie spread over the floor while Kal Bhadur ravished her in his Khokha on his bedding. The police did not seize her clothes as she had washed them during the night. The police also did not seize the bedding on which Kal Bhadur committed rape on her nor did the police seize the Durrie on which Rissal Chand and Lal Singh had forcibly committed intercourse with her. The next prosecution witness Sant Rain has deposed that while he was rearching for the missing girl, he reached Pur Kho and was told there by somebody that the girt was with Kal Bhadur. He went to Kal Bhadur an enquired from him about the girl who admitted, that the girl was with him, but added that he would not let him take her away. So he went to Mst. Kesri, informed her and both of them went to the police station and lodged the report on 30 -10 -1972 at 11 -45 P.M. The Police however went to Pur Kho in the morning of 31 -10 -1972 and recovered the girl in his presence. According to him Exp. A, the recovery memo of Mst. Guddi was prepared on the spot and he and Mst. Kesri witnessed the seizure memo. In cross -examination he has, however, denied that Mst. Kesri was present when Mst. Guddi was recovered from the Khokha. The Investigating Officer, Harnam Singh, AST in his deposition has stated in the trial court that both Sant Ram and Kesri were with him in the taxi when they reached the Khokha belonging to Kal Bhadur. He has also testified that the report was lodged on 30 -10 -1972 at about 11 -45 in the night but that he went on spot at about 8 oclock on the following morning. When, according to him, they reached the Khokha, he found the door of the Khokha open and Guddi inside. He took her out and prepared the seizure memo which was signed both by Sant Ram and Mst. Kesri. He recorded the statement of Guddi on the spot at that very moment. He did not seize the bedding of Kal Bhadur or the clothes of Mst. Guddi because he was told that Guddi had washed her clothes during the night. Guddi told him that Gian Chand also had committed rape on her on way to Pur Kho. Guddi in her statement to him had further told him that it was Kal Bhadur who took her to Gandhi Nagar and kept her in a house belonging to one Gotam overseer. She told him that Kal Bhadur was the chowkidar of that house. According to him he found that it was Kal Bhadur and Hissal Chand who had enticed away the girl from the guardianship of her parents.

(3.) TWO lady doctors have been examined as prosecution witnesses. One was Dr. Menzie Sharma, Assistant Surgeon. She examined Mst Guddi on 31 -10 -1972 and among other things found that she had 14/14 teeth and space for wisdom tooth. She did not find any mark of violence on her private parts or anywhere else on her person. She examined her Vagina and found that it could admit five fingers at a time. According to her she also found that auxiliary and pubic hair were also developed. With regard to the age of the girl her opinion was that it was between 14 -15 years. Dr. Samtri Gupta was the radiologist and was posted at S.M.G.S. Hospital Jammu on the relevant date. She examined Mst. Guddi on 31 -10 -1972 and took skiagrams of various joints of the girl and found: