CRLA/1756/2001 of MANOJ BHATT Vs STATE

HIGH COURT OF UTTARAKHAND AT NAINITAL

Criminal Appeal No.1756 of 2001

Manoj Bhatt

........Appellant

Versus

State of Uttarakhand

.….Respondent

Mr. S.P.S. Panwar, Senior Advocate with Mr. H.C. Pathak, Advocate for the appellant. Mr. P.S. Soan, Additional Government Advocate with Ms. Sangeeta Miyan, Brief Holder for the State of Uttarakhand.

Dated: 02.08.2013

Hon’ble V.K. Bist, J.

This appeal, preferred under Section 374 of the Code of Criminal Procedure, 1973 (for short Cr.P.C.), is directed against the judgment and order dated 23.07.2001 passed by Sessions Judge, Haridwar in Sessions Trial No.07 of 1997, whereby accused/appellant Manoj Bhatt has been convicted under Section 376 read with and 511 I.P.C. and sentenced to five years rigorous imprisonment.

2. Prosecution story in brief is that on 16.08.1996 F.I.R. was lodged by one Shri Shiv Kumar Chaturvedi that his two daughters namely, Km. Preeti aged 9 years, student of class 4 and younger daughter Km. Laxmi Chaturvedi aged 6 years, student of class 2 were studying in Shishu Mandir Ganga Nilpam, Haridwar. In the noon, after school hours both his daughters were coming to home. On the way, near Niranjani Akhada in front of Ghoda Hospital one young boy was standing. He by keeping on the mouth of Preeti, dragged

her inside nearby house, whose door was already broken. This incident was told to Shiv Kumar Chaturvedi by his younger daughter Laxmi weepingly, who was in panic. At this, he ran towards that place. On hearing the voice of Preeti, Sriram Sharma and Pradeep Kumar his neighbour, who were going towards that house, reached there. All saw that the boy lying the victim down and was holding her in his arms and putting her clothes up, for the purpose of committing rape on her, opened the zip of his trouser. When that boy saw them, he tried to run away leaving the girl there. They stopped the boy, caught him and beat him.

3. The case was investigated by the Investigating Officer, who filed charge-sheet against the appellant under section 376/511 of I.P.C. Learned Magistrate, on receipt of the charge sheet, after giving necessary copy to the accused, as required under section 207 of Cr.P.C. committed the case to the court of sessions for trial. Learned Sessions Judge, Haridwar framed charge of offence punishable under Sections 376/511 I.P.C. to which accused Manoj Bhatt pleaded not guilty and claimed to be tried. On this prosecution got examined P.W. 1 Shiv Kumar Chaturvedi (complainant), P.W.2 Km. Preeti Chaturvedi, (victim), P.W. 3 Praveen Kumar, (independent eye witness), P.W.4 Dr. R.K. Pandey, who conducted the medical of the accused, P.W.5 Anand Prakash, Head Constable, P.W.6 Sri Ram, witness of the F.I.R. and P.W. 7 Gajendra Singh, Investigating Officer. In defence D.W.1 Suresh Kumar was examined. Oral and documentary evidence was put to the accused under Section 313 Cr.P.C., in reply to which he alleged that the evidence

adduced against him is false. After hearing the parties, the trial court found accused Manoj Bhatt guilty of offence punishable under Section 376 read with section 511 I.P.C. and convicted him accordingly. Aggrieved by the judgment and order dated 23.07.2001, passed by the Sessions Judge, Haridwar in Sessions Trial No.07 of 1997, this appeal is preferred by the convict.

4. Accused was caught and was badly beaten up and was punished at the spot. P.W.4 Dr. R.K. Pandey, medically examined the Manoj Bhatt (appellant/accused) on 16.08.1996 at 06:45 p.m. In medical report (Ext. Ka-2), he gave following observations:

“1. Red contusion 3 cm x 3 cm on right side face just below eye. just below eye.

2. Multiple contusions in 15 cm x 6 cm area on front & both lateral sides of necks. front & both lateral sides of necks.

3. Multiple contusions in 13 cm x 6 cm area on back of left upper arm upper 1/3 part & arieng in size from 5cm x 1.2 cm to 9.5 cm x 1.2 cm. back of left upper arm upper 1/3 part & arieng in size from 5cm x 1.2 cm to 9.5 cm x 1.2 cm.

4. Red contusion 13cm x4cm on right sufora scapular area. Abliquoly placed. scapular area. Abliquoly placed.

5. Red contusion 10cm x 3.3cm on right infrascapular region. infrascapular region.

6. Multiple contusion in area on 29cm x 24cm on left and middle part of back in it, upper part. on left and middle part of back in it, upper part.

7. Contusion 6.5 x 1cm on lat aspect of left upper arm 5.5 cm above elbow joint. upper arm 5.5 cm above elbow joint.

8. Red contusion 7cm x 5cm on back of left foreear 6cm below elbow joint injury kept u.o. x-ray advised. foreear 6cm below elbow joint injury kept u.o. x-ray advised.

9. Contusion 5cm x 1.5 cm on posterio medical aspect of left forearm 5cm above wrist joint. aspect of left forearm 5cm above wrist joint. 10. Abraded contusion 3.5cm x 2 cm at base of left little finger & palm medical aspect. left little finger & palm medical aspect.

11. Two contusions 8 cm x 1cm in size parallel on left iliac cresl area. on left iliac cresl area.

12. Multiple contusion in 23 cm x 22 cm area on left buttock x Red in colour overlapping left buttock x Red in colour overlapping

each ethervasing in size from 5 cm x 1 cm to 12cm x 1.2 cm. 12cm x 1.2 cm.

13. Contusion 12cm x 1.5 on right iliac crestarea. area.

14. Contusion 10cm x8 cm on left buttock.

15. Multiple contusion 16 cm in number over all over left thigh knee and legvarieng in size 4.5 x 1.5 cm to 17 cm x 1.2 cm. all over left thigh knee and legvarieng in size 4.5 x 1.5 cm to 17 cm x 1.2 cm.

16. Contused swelling in 10cm x7 cm on dorsum of left front kept u.o. x-ray advised. of left front kept u.o. x-ray advised.

17. Abrasion 3.5cm x 1.5 cm on front of right leg & an below knee joint. leg & an below knee joint.

18. Multiple contusion 11 cm x 6 cm area on front of right elbow. front of right elbow.

19. Contusion 12cm x 5cm on right side chest around right nipple.” around right nipple.”

5. P.W.1 Shiv Kumar Chaturvedi (father of the victim) stated on oath that two years ago his two daughters were studying in Saraswati Shishu Mandir. Elder daughter’s name was Preeti. At that time she was aged about 8-9 years. His second daughter was Laxmi Chaturvedi, aged about 6 years, studying in class 2. On that day at about 12:25 p.m. his younger daughter Laxmi reached home crying in panic. She told to him that Preeti was caught by someone. He stated that he, after taking his younger daughter Laxmi in his lap ran there. He reached there alongwith Sriram Sharma and Pradeep Kumar. He saw the house on dilapidated condition. Bags of his children’s were lying there and Preeti was crying and people were beating Manoj Bhatt (accused). Preeti told him that the boy by closing her mouth, pulled her into that house, put her skirt up and tried to open his pant. At that time people reached there, caught him and started beating him. He stated that thereafter all of them took the accused to Police Station.6. P.W.2 Preeti Chaturvedi (victim) stated on oath that she know the accused, who was present in the court. She stated that two years ago, it was 12:30 in the day. She was coming from school alongwith her younger sister Laxmi. She stated that when they reached near dilapidated house, accused met them and told her whether she wants money and took her inside dilapidated house and took her between his legs and opened the zip of his trouser. She told that on her scream some people came there and accused was beaten up. Her father and brother also reached there.

7. P.W. 3 Praveen Kumar (independent eye witness) stated on oath that the incident is of about two years old. At about 12:30 in the noon or 12:45 p.m. he was sitting in his house. Hearing the noise, he came out and heard the voice of “Maro-Maro”. 50-60 people were there but he did not know anybody. On coming out he knew that girl was kidnapped, who was daughter of Shiv Kumar. When he came out, he saw that accused was being beaten up.

8. P.W.4 Dr. R.K. Pandey, medically examined the accused on 16.08.1996. In his statement, he reiterated the same version, which he had written in the medical report.

9. P.W.5 Anand Prakash, Head Constable stated on oath that on 16.08.1996 he was appointed as Head Constable in Kotwali Haridwar. On that day Shiv Kumar Chaturvedi lodged report on the basis of which chik report was

prepared and case was registered in G.D. No.26. Chik report was Ext. Ka.3 and G.D. No.26 was Ext. Ka.4.

10. P.W.6 Sri Ram, witness of the F.I.R. he stated that at about 12:45 in day time, after parking his vehicle at the Station, when he was coming towards his home, he saw crowd. One boy was caught by the crowd but accused is not the same person. He was declared hostile.

11. P.W.7 Gajendra Singh, Investigating Officer stated that on 16.08.1996 he was posted in Kotwali Haridwar as Investigating Officer, who during investigation recorded the statement of the prosecutrix. He stated that he prepared the chik report and inspected the site plan of the incident. He further stated that he has also recorded the statement of the eye-witnesses. In his cross-examination, this witness has stated that he had not taken the clothes of the accused in his custody as no rape was committed.

12. D.W. 1 Suresh Kumar, stated that on that day at about 12:30 p.m. to 12:45 p.m. he was going for toilet in lane. Children were coming after leaving the school, cycle rider collided with girl and the girl fell down. Her elbow and knee were injured. He stated that at this the father of the girl came and slapped the cycle rider. He stated that cycle rider said that he was not at fault but the girl was suddenly came in front of his cycle. At this the father of the girl got annoyed and after taking tyre tube of mechanic from the adjacent shop, started beating cycle rider alongwith other people. The cycle rider was injured badly. His body was

blood stained. He also stated that when the boy was fainted the people said that he had died. Thereafter the father of the girl lodged report about attempt to rape in the Police Station.

13. I have the statements of gone through eyewitnesses and of the victim Km. Preeti Chaturvedi. P.W.3 Praveen Kumar and P.W.6 Sriram turned hostile but considering the evidence of the victim, who was 9 years old at the time of incident and was 10 years at the time of giving evidence, I do not find any reason to disbelieve her statement. I find that learned Sessions Judge has not committed any illegality in reaching to the conclusion and also in awarding the punishment to the accused.

14. Learned counsel for the accused/appellant filed supplementary affidavit before this Court annexing therein the copy of the transfer certificate issued by the Principal of the College on 24.07.1996. In this transfer certificate the date of birth of the accused is shown 16.03.1980 and thus on the date of incident age of the accused was less than 18 years. The State also filed counter affidavit in which the respondent submitted that the Senior Sub Inspector, Police Station Kotwali, Haridwar went to the school at Jwalapur on 27.07.2013 and met with the Principal of Jwalapur Intermediate College. Principal of the College gave letter to him regarding date of birth of the appellant. In the said letter, it was informed that he was student of Jwalapur Intermediate College from 1994 to 1996. The transfer certificate issued by the Principal was also found correct. This Court finds that the

transfer certificate was issued to the accused on 24.07.1996 i.e. prior to the date of the incident and there is nothing on record on which basis the said certificate can be disbelieved. He also stated that transfer certificate issued by the appellant is genuine and infact on the date of incident the age was less than 18 years.

15. In the above circumstances, it is established on record that the accused/appellant Manoj Bhatt was less than 18 years on the date of incident. It appears that nobody raised plea of Juvenile before the trial court during the trial. This plea can always be raised before the appellate court. In view of the law laid down in Dharam Veer vs. State of Uttarakhand and another 2010(5), SCC 344 and Pratap Singh vs. State of Jharkhand & another, 2005(3) SCC, 551 and Section 7-A of the Juvenile Justice and Protection of Childern Act, 2000 as inserted in the year 2006, this Court is of the view that sentence awarded against the accused/appellant, who was minor on the date of incident, cannot be sustained. Accordingly, the appeal is partly allowed. As far as conviction of the appellant-Manoj Bhatt recorded by the trial court is concerned, same is affirmed. But at the same time keeping in mind that appellant was minor on the date of crime, the sentence awarded by the trial court is hereby set aside. The appellant is on bail, he need not to surrender. Let lower court record be sent back.

(V.K. Bist, J.)02.08.2013