Balbeer Lodh vs State of U.P.

Bhanwar Singh and J.M. Paliwal, JJ.—This appeal is directed against the verdict of conviction and sentence dated 1.6.2004, passed by Shri Ajit Kumar Tiwari, Special Judge, S.C. and S.T. Act, Unnao. By virtue of this judgment, the Appellant Balbeer Lodh has been convicted under Sections 366, 376 and 506, I.P.C. as also u/s 3(ii)(v) S.C./S.T. Act. Under each count of Sections 376 and 3/2 read with Section 5 of S.C. and S.T. Act, the Appellant has been convicted and sentenced to life imprisonment. For the offence u/s 506, I.P.C, he was sentenced to two years rigorous imprisonment and for the offence u/s 366, he would have to serve seven years'' rigorous imprisonment in jail. He was, however, held not guilty u/s 366, I.P.C. for which the charge had been framed at the stage of trial. All the sentences were directed to run concurrently.

The facts giving rise to this appeal, may be narrated as below :

Kumari ''A'' (name not revealed), resident of village Hazipur, Police Station Ganga Ghat, district Unnao lodged a report at police station Aminabad with the allegations that she had been abducted on 29.12.2000 by the accused-Appellant Balbeer Lodh who hailed from a different village. Balbeer Singh was related to Ram Avtar, a resident of Udhapur, Hamlet of village Hazipur. A day before the date of occurrence, Balbeer Singh during an informal chat with the informant''s father Dharampal, introduced himself as a Munshi of Police Station Ajgain (Constable clerk) and conveyed to him that he used to pay to the village chaukidars higher salary of Rs. 365 per month. Dharam Pal was also a chaukidar of his village and he was getting only a meagre sum of Rs. 200 per month as his salary. Balbeer Singh won his sympathy and asked him to come the other day. He met Ram Avtar and Balbeer at the house of one Guddu at village Hazipur. During his conversation with the accused, he told him that he was the father of two unmarried daughters and four sons. Balbeer assured him to fetch loan for him with a view to facilitate him to perform his daughters'' marriage. Balbeer Singh asked the informant''s father also to come to Hazipur Bus Stand alongwith his daughters. It was in this background that on 29.12.2000, Dharam Pal accompanied by his daughter Km. ''A'' and one villageman Prithvi Pal Lodh who also had his daughter Chidana with him, came to the Punjab National Bank, Chota Chauraha, Unnao, as directed by the accused-Appellant Balbeer Singh. Both of them arrived at Bank at 11.00 a.m. and as per the earlier agreement, there came there Ram Avtar, Ram Avtar''s son-in-law and the accused Balbeer. All these persons had carried away Prithvi Pal alongwith them leaving behind Dharam Pal, his daughter Km. ''A'' and Prithvi Pal''s daughter Chidana sitting in the Bank. Dharam Pal and the two girls kept on waiting for three long hours. After long three hours, Balbeer alone came back to the Punjab National Bank and asked Dharam Pal to go to Kotwali Police Station and bring with him Mahendra constable. Although Dharam Pal expressed his reservation to go in search of Mahendra as he was not known to him but on being insisted by Balbeer, he left the bank premises for calling the aforesaid constable. When he arrived at police station Kotwali, he came to learn that Mahendra was not available there. So, he came back immediately to the Bank where he did not find Balbeer and his daughter. On his query, Chidana communicated to him that Km. ''A'' had been carried away by Balbeer for getting the work of loan expedited. When he was in distress, Chidana''s father Ram Avtar came there and both of them went in search of Km. ''A'' and Balbeer but they were not traceable. Dharam Pal approached the office of Superintendent of Police and enquired about Balbeer. The police personnel there, conveyed to him that no constable was there by the name of Balbeer nor posted in Ajgain or anywhere in the district. The other day Dharam Pal came to learn that Balbeer and Km. ''A'' both had been apprehended at Lucknow by the police. When he arrived at Mahila Police Station, Hazratganj, he met his daughter and by then Balbeer had been challaned. He took his daughter into his supurdigi and after signing the supurdiginama Exhibit Ka-1, carried her to his house.

On 29.12.2000, the Chik F.I.R. Exhibit Ka-5 of this occurrence was recorded at Aminabad Police Station on the oral communication of Dharam Pal''s daughter. Shri Dina Nath, the Circle Officer, City, district Unnao was entrusted the task of investigation of this case. At the initial stage, the investigation was supervised by Shri K. P. Singh, the Circle Officer of Kaiserbagh, Lucknow but since the case belonged to the Unnao District, it was transferred to the said District and Shri Dina Nath was nominated to investigate it. During investigation, he obtained the custody of Balbeer under warrant ''B'' and got him transferred to district jail, Unnao. He then interrogated Dharam Pal and his daughter both, prepared the site plan from where the girl had been kidnapped, interrogated other witnesses including Dr. Sadhna who had medically examined the girl and then submitted charge-sheet exhibit Ka-9.

In support of the prosecution case, five witnesses were examined. P.W. 1 Dharam Pal is the girl''s father. He testified that he had been deceived by the accused-Appellant Balbeer. With evil design, Balbeer asked him to bring his daughter to the Punjab National Bank with a view to fetch loan for her marriage and by asking him to go to beckon Mahendra constable at Police Station Kotwali, deceitfully abducted the girl. A day after he went to police station Aminabad where his daughter and Balbeer both, were brought after their being apprehended by the police. He then went to Mahila Police Station to take his daughter into his lawful custody and then brought her back to his house at Hazipur, Unnao.

P.W.2 is the victim of occurrence. She testified that she came to Unnao alongwith her father where Balbeer met her in a Bank and by sending her father to Kotwali Police Station, he by misleading her took away to Lucknow where she had been criminally assaulted by him. When she resisted Balbeer''s intention to have sexual connection with her, he threatened her with dire consequences and forced her to surrender whereafter he had committed rape on her. He kept her in a house, location of which could not be disclosed by her but she testified that when she was being taken to Aminabad market for shopping, she mustered courage and raised an alarm whereupon Balbeer was arrested by the police and both of them were taken to Aminabad police station, where her report Exhibit Ka-2 was drawn. She was then sent for her medical examination. Her trouser was taken into police custody. Her father came to take her four days after and in this duration, she was kept at Mahila Police Station, Hazratganj.

Thereafter, he took her in his custody by making an endorsement on the custody memo and then carried her to his house.

P.W. 3 Dr. Sadhana, Medical Officer (V. A. B. Chikitsalaya, Lucknow) medically examined the informant and prepared medical report Exhibit Ka-4. However, she could not find any sign of violence on her body nor she could give any opinion about the allegation of rape.

P.W. 4 S.I. Ratti Pal Yadav was posted as Head Moharir on 29.12.2000 at Aminabad Police Station. As testified by him, he had prepared chik F.I.R. Exhibit Ka-2 on dictation of the prosecutrix. On the basis of the said F.I.R., he registered a case against the accused-Appellant and entered its details at report No. 45 of G.D. While in the witness box before the trial court, he proved G.D. report Exhibit Ka-6 and the memo Exhibit Ka-7 pertaining to the trousers of the prosecutrix having been taken into custody. He then proved that the custody memo of the girl Exhibit Ka-1 was also prepared by him on 3.1.2001 at the time of the girl being handed over to her father.

P.W. 5 Shri Dina Nath Dubey, the Circle Officer stated that he had investigated this case after the investigation was transferred to him from the first Investigating Officer Shri K. P. Singh, the Circle Officer, Kaiserbagh, Lucknow. He obtained Warrant ''B'' of the accused-Appellant Balbeer on 6.2.2001 and got him transferred to District Jail, Unnao. He then collected relevant documents like injury report and X-ray report of the prosecutrix as also the case diary. At the instance of the prosecutrix, he prepared the site-plan Exhibit Ka-8, recorded the statement of the prosecutrix and Dr. Sadhana. On having completed all the formalities of the investigation, he submitted charge-sheet Exhibit Ka-9 against the accused.

The accused pleaded not guilty and denied all the allegations regarding his having criminally assaulted the prosecutrix. He claimed himself to be innocent and pleaded further that he had been falsely implicated in this case on account of enmity. He however, declined to lead any evidence in his defence. With this background, we now proceed to discuss the merits of the case.

The first and foremost argument pressed into service was that there was delay in getting the F.I.R. lodged and the delay gave an opportunity to the prosecutrix and her father to concoct a fake story so as to rope in the Appellant in the fake case of rape. It was also supplemented that the victim''s father did not report the matter to the police for two days, perhaps because he proposed to give his daughter in marriage to the accused-Appellant for a consideration of Rs. 40,000. A suggestion to this effect was also made to the prosecutrix and her father both but they had rejected it to be as a farce. P.W. 1 Dharam Pal explained that when he found his daughter and Balbeer missing from the bank premises, he went to the residence of Superintendent of Police where he met the police personnel on duty who helped him in getting to know that no constable clerk by the name of Balbeer was posted at police station Ajgain. The police persons contacted Ajgain police on telephone and came to learn that no one by the name of Balbeer was there at the said police station. Dharam Pal then went to Kotwali Police Station where he got the same information. He then went back to his home perhaps to learn more about the accused and his daughter too and in such circumstances, it was quite natural for him to wait for some information and hope for his daughter to return, under the contemplation that if she happened to get back her honour and the prestige of the family might be protected. The other day he came to learn that his daughter and Balbeer had been apprehended by the police and whereas the accused had been sent to jail, her daughter was lodged in Mahila Police Station, Hazratganj.

The G.D. report Exhibit Ka-6 fully corroborates the lodgment of the F.I.R. by the girl. The police constable on duty in Aminabad area arrested the accused soon after an alarm was raised by the prosecutrix. The girl who was examined as P.W. 2 testified that as soon as she got an opportunity to raise her cry against the atrocious acts of the accused and gathered courage, she informed the police. No doubt, she could have raised her voice at the time when she was being taken in a bus from Unnao to Lucknow but she failed to do so because of two reasons-the first being that she could not muster courage to do so and secondly she was not aware of the evil designs of the accused. She explained in her testimony that the accused allured her of tying knot with her and also he did not hesitate in using force under threat to make her surrender for sexual connection. It was quite natural for a girl of 13-14 years of age to have become perplexed in such circumstances. She had no experience of life and her mental state might not have immediately risen to the occasion to give a rebuff to the accused. With her illiterate mind, poor physique, poverty and her dreams for comfortable settlement in life might not have allowed her to raise her cry but that does not mean that she was a consenting party. There was no question of her having surrendered to the beastly, evil thoughts of the accused. Admittedly, he was 48 years of age at the time of the occurrence that is four times older to the prosecutrix. He was also father of four grown up children. He had the vast experience of life at his disposal which he used for a wicked cause. The girl''s innocence was a no match to his notoriety. Her testimony alone is enough to prove genuineness of the F.I.R. which by no stretch of reasoning can be termed to be as suffering from inordinate delay. Further her sworn testimony has been very well supported by the G.D. report exhibit Ka-6 duly proved by P.W. 4 Rati Pal Yadav.

A perusal of this G.D. report Exhibit Ka-6 reveals that the Constable Ram Raj Shukla and Constable Santosh Kumar Pandey had on the alarm being raised by the Prosecutrix, taken the accused-Appellant into their custody and the two constables brought both of them to the Police Station Aminabad, Lucknow. The information conveyed to these two constables was taken down in the shape of F.I.R. and its entry was made in the aforesaid G.D. The girl was sent for medical examination and the accused was put up in lock-up. The G.D. report has been proved by its scribe and the gist of the information is duly recorded. The fact regarding arrest of the accused-Appellant by the patrolling police party, is clearly recited in the report.

Therefore, we are of the view that the F.I.R. lodged by the prosecutrix set the law into motion at the right time with accurate information. Also we hold further that the lapse on the part of her father not being prompt in lodging the report in the given circumstances as disclosed above, does not have any'' adverse bearing. The defence suggestion that her father wanted to sell the girl for a sum of Rs. 40,000 has no legs to stand upon as in that case, Dharam Pal and the girl would not have come to the Bank to take the loan as in the wake of that possibility the accused might have gone to the house of the girl to handover the money. The duo of the father and daughter have rejected such a suggestion to be as absolutely baseless. We, therefore, find the F.I.R. to be worth credible in all respects.

P.W. 1 Dharam Pal, the father of the girl has disclosed the details of the trap which was laid upon him and his daughter by the accused- Appellant. The trap was two fold--the first being that the accused had allured him to get his monthly salary increased from Rs. 200 per month to Rs. 365 per month ; and, secondly he promised to get loan for his daughter''s marriage. Dharam Pal was a poor person. The fact that the said chaukidar of the village was getting Rs. 200 per month only as his salary impliedly revealed his poverty and the large number of the members of his family added to his miseries. It was stated by him that he was the father of four sons and two daughters-all unmarried. Any poor person placed in his circumstances, would feel enchanted to someone''s offer to get his salary increased and marriage loan sanctioned. It was perhaps in this background of lure, and allurements that Dharam Pal accompanied by his daughter, as instructed by the accused-Appellant, came to Punjab National Bank, Chota Chauraha, Unnao, where Balbeer hoodwinked him. At the first instance, Balbeer left the Bank premises with Prithvi Lal, Ram Avtaar and Arjun and came back three hours after and then asked Dharam Pal to go to Kotwali to summon Mahendra Constable. Dharam Pal was hesitant to go for calling Mahendra Constable but when the accused pressurized him, he had no option except to go to Kotwali police station. In his absence, the accused enticed away the girl, took her to Lucknow on the pretext of taking her to her father at Lucknow where she was kept in a house. It was this house where she was forced to surrender for sexual connection. Dharam Pal did not immediately report the matter to the police as he was perplexed after knowing that none by the name of Balbeer was posted at Ajgain Police Station. He denied the suggestion that he wanted to marry his daughter with Balbeer for a consideration of Rs. 40,000. When he came to learn that his daughter had been recovered, he went to Lucknow and brought her daughter back on 3rd or 4th day.

Taking the entire testimony of Dharam Pal into consideration, it can reasonably be held that this witness did not suffer from any prejudice against the accused with whom he came into contact on a bait of increased salary and loan for marriage, extended to him by the accused. His evidence is convincing and worth being placed reliance thereupon. There does not seem to be any motive for him to have falsely implicated the accused on the charge of abduction and rape of his daughter at the cost of the prestige of the family and dignity of the girl. A few infirmities as that the girl was recovered the other day of the occurrence although she was recovered on the same day on which she was kidnapped and that he had no interaction with his daughter when he brought her to his village, are absolutely insignificant-having no adverse bearing upon the veracity of his evidence. We are therefore, inclined to hold that the evidence of P.W. 1 Dharam Pal proved the charge u/s 366, I.P.C.

Further, P.W. 2 who is the victim of occurrence, has affixed her seal on the charge of her abduction by the accused and also she has very convincingly established the charge u/s 376, I.P.C. Even if the doctor was not in a position on her medical examination to disclose that there were signs of rape or not, her evidence alone is enough to establish the charge beyond doubt. As she was an illiterate girl, she could not with specificity disclose her age but approximately, as stated by her, she was 14 years old at the time of occurrence. She denied that she was 18 years of age. However, the factum of age is of not much relevance as the trial court found the charge u/s 366, I.P.C. having been proved. Giving a vivid account of the trauma, she had come across while in the forced company of the accused, she testified that Balbeer Singh had allured her and her father of fetching a loan of Rs. 40,000 from the Bank and he had in the absence of her father in the Bank premises, brought her to Lucknow on the pretext of taking her to her father. She was kept in a house where she was forced to surrender for sexual intercourse not once but many times. In the afternoon on 29.12.2000 itself, she was brought to Aminabad for merry making but as soon as she saw the police personnel in the market, she jumped down from the ''riksha'' and cried for help from the police. The police took her and the accused in their custody and brought them to police station where an F.I.R, was lodged. She has proved the F.I.R. Exhibit Ka-2. The time of the arrest of the accused was stated by her to be as 2.00 p.m. As she was an illiterate girl there may be some variation on the point of time but the most relevant and important part of her testimony is that at the earliest opportunity, she mustered courage to come out of the captivity of the accused and informed the police in the busy market. Her courageous effort rules out the defence version of her being a consenting party either in consideration for money or otherwise. While coming in the bus from Unnao Bank upto the unidentified house, she did not prefer to raise an alarm because she travelled upto that house under the faith and belief that she was being carried away to that place for her union with her father but when she had lost every hope of meeting her father and had also lost her prestige on being ravished, she utilized the opportunity while going through the market to raise an alarm and inform the police. Her evidence is convincing and trustworthy.

Learned Counsel appearing on behalf of the Appellant contended with reference to the citation Dilip and Another Vs. State of M.P., that the evidence of the prosecutrix being not corroborated by the medical evidence, must have been rejected by the learned trial court. A perusal of this Apex Court''s decision would clearly establish that the conviction for an offence of rape can be based on the sole testimony of the prosecutrix corroborated by the medical evidence and other circumstances such as report of chemical examination etc., if the same is found to be natural, trustworthy and worth being relied upon. The Supreme Court referred to its another decision in State of Punjab Vs. Gurmit Singh and Others, wherein it was held that if the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. However, if for some reason, the court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lead to assurance to her testimony.

In the case of Dileep and Anr. referred to above, the prosecution story was that of a gang rape, in the occurrence of which the prosecutrix was said to have sustained injuries and also she bled from her private parts staining her body as also the clothes which she was wearing. However, this part of the story was not corroborated by the medical evidence. In the case in hand, this kind of story was not brought forth by the prosecution ; instead, it was a case of the prosecutrix being enticed away under the disguise of her bringing to Lucknow to meet her father. The following points would clearly lead to corroborate the evidence of the prosecutrix :

(1) At the earliest opportunity, after she had been forced by the accused-Appellant for sexual connection, she raised an alarm in the crowded market of Aminabad calling for police help.

(2) The accused was arrested by the police and brought to the Aminabad Police Station alongwith the girl.

(3) The girl''s father clearly establishes that the accused had allured him of better pay and also promised to fetch marriage loan and asked him and his daughter to come to the Bank from where she was deceitfully enticed away.

The Apex Court in a decision relied on by the learned A.G.A. in State of Punjab v. Ram Dev Singh 2004 SCC 307, upheld the sanctity of the modesty of a woman while dealing with the sensitive charge of sexual assault. It was held by the Hon''ble Supreme Court that the testimony of prosecutrix can be acted upon without corroboration for material parts and if at all corroboration is to be searched for, direct or circumstantial evidence can lead assurance to the girl''s testimony. An assurance, short of corroboration as understood in the context of an accomplice would do. Also it was ruled by the Apex Court that if the victim was medically examined after a long gap, absence of visible injuries on her body will have no adverse bearing.

In Aman Kumar and Another Vs. State of Haryana, the Apex Court laid down that the evidence of the prosecutrix stands at higher pedestal than an injured witness. Her evidence needs no corroboration. The Court may search for assurance short of corroboration. Similarly; in State of Maharashtra Vs. Chandraprakash Kewalchand Jain, the Hon''ble Supreme Court ruled that it is not necessary to seek corroboration of the evidence of the prosecutrix. The relevant part of this decision may be quoted as below :

To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the Western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eveteasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if the Courts deal strictly with those who violate the societal norms. The standard of proof to be expected by the Court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realize that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity.

Considering the Supreme Court''s decision and taking good deal of care and caution, we can observe that the testimony of the prosecutrix in the case in hand is absolutely natural, probable and trustworthy. The defence version that the girl being major, her consent for coming to Lucknow and have friendly relationship with the accused-Appellant cannot be ruled out, does not seem to be tenable for the simple reason that there was a vast gap between the age of the two. Whereas the accused-Appellant was more than 50 years of age, the girl was hardly 18 years and even if above 18 years, the age difference was such a big factor that the girl could not be expected to have been attracted towards him. Such a suggestion made to the girl was rejected by her. The girl was uneducated and fell into trap of the Appellant at the time when she was in the bank premises, waiting for sanction of loan from where she was enticed away by the Appellant in the absence of her father, who had designedly been dispatched to go to beckon a constable.

The Investigating Officer Shri Dina Nath completed the investigation and after obtaining warrant ''B'' of the accused-Appellant Balbeer, collected medical and X-ray reports of the prosecutrix, made their entries in the case diary, interrogated the girl, prepared the site plan at the instance of the girl and ultimately submitted the charge-sheet. He has proved the site plan and charge-sheet, both. It appears that he was not cross-examined on behalf of the accused. His evidence lends support to the prosecution story. The long and short of the above discussions is that the trial court had rightly held the accused guilty of the charges levelled against him. There was sufficient material and evidence against the accused to prove the charges. No leniency was shown as the accused had committed a heinous offence with a girl almost three times younger to his age. At the time of commission of offence, he was the father of six children including four daughters. He lost every civic sense and humanity forgetting that what message he would send across his family members. In order to win sympathy from the Court, he wrongly submitted on 14.11.2003 and 4.12.2003 by moving applications Nos. 122-Ka and 23-Ka that his wife had died although she was alive. He conceded that at the time of sentence being awarded to him, his wife was alive. In this way, he tried to deceive the Court also by playing a fraud upon it. Indeed, he does not deserve any leniency.

Therefore, in our considered opinion, this appeal has no force and deserves to be dismissed.

Accordingly, the appeal is hereby dismissed and the verdict of conviction and sentence as passed by the learned trial court, is hereby confirmed. The accused is in jail. He shall serve out the sentence awarded to him as directed by the trial court and the period prior to the date of judgment will be adjusted against the sentence awarded.