Shyam Kumar Bajpai vs State Of U.P.
2022 Latest Caselaw 11625 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

		Judgement Reserved on 03.8.2022
 
                   Judgment Delivered on 30.08.2022
 

 
Court No. - 66
 

 

 
Case :- JAIL APPEAL No. - 3988 of 2017
 

 
Appellant :- Shyam Kumar Bajpai
 
Respondent :- State of U.P.
 
Counsel for Appellant :- From Jail,A/C.Hitesh Pachauri
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Samit Gopal,J.

1. Heard Ms. Anita Singh, learned Amicus Curiae for the appellant, Sri B.B. Upadhyay, learned Additional Government Advocate for the State of U.P. and perused the material on records.

2. Name of the prosecutrix is not being disclosed and mentioned in the present judgment in the light of directions of the Apex Court in various judgements and Section 228 of the Indian Penal Code. She is, thus, referred to as 'X' in the judgement.

3. The present Jail Appeal has been preferred by the accused-appellant Shyam Kumar Bajpai against the judgement and order dated 16.01.2017 passed by Additional Sessions Judge/Fast Track Court No.1, Gautam Buddha Nagar in Sessions Trial No.395 of 2013, State Vs. Shyam Kumar Bajpai whereby the accused-appellant has been convicted and sentenced under Section 363 IPC for 5 years rigorous imprisonment with fine of Rs.5,000/- and in default of payment of fine one year simple imprisonment, under Section 366 IPC for 6 years rigorous imprisonment with fine of Rs.5,000/- and in default of payment of fine one year simple imprisonment, under Section 376 IPC for 7 years rigorous imprisonment with fine of Rs.5,000/- and in default of payment of fine one year simple imprisonment. The sentences have been ordered to run concurrently. The appellant has been extended benefit of set off under Section 428 Cr.P.C.

4. An application dated 4.8.2011 was given by Smt. Neetu at Police Station Bangarmau, District Unnao which was transcribed by Wasi Ahmad stating therein that she is wife of Bhagwan Shankar Dixit and resident of village Roshnabad, Police Station Bangarmau, District Unnao. She along with her husband and children lives in Sector 63, Bahlolpur, Police Station Sector 58, Gautam Buddha Nagar in the house of Gram Pradhan, Bahlolpur on rent and works in a factory C/128-C-63 in Sports Line. Shyam Kumar Bajpai, resident of village Naushara, Police Station Bangarmau, District Unnao who is her brother by relation from her maternal side also lives with her. On 6.5.2011 when she and her husband had gone to the factory to work and her daughter aged about 12 years was present in the house then Shyam Kumar allured her on the pretext of taking her outside and enticed her away. They searched for her but could not know about her whereabouts. On 28.7.2011 her sister Nanki informed her on telephone that her daughter has been brought by Shyam Kumar at the house of his brother-in-law Saroj. On the said information, she along with her husband, her sister's daughter went to the house of Saroj where she found her daughter present. She stated that action be taken. The said application is Exb. Ka-1 to the records.

5. On the basis of the said application dated 04.08.2011, a FIR was lodged as Case Crime No. NIL of 2011 under Sections 363, 366 IPC at Police Station Bangarmau, District Unnao concerning Police Station Sector-58 Gautam Buddha Nagar against the accused-appellant Shyam Kumar Bajpai. The chik FIR is Exb. Ka-6 to the records.

6. A recovery memo dated 24.11.2012 was prepared at Police Station Sector-58 NOIDA, District Gautam Buddha Nagar by which on the basis of an order of C.J.M. Gautam Buddha Nagar, the victim ''X' was handed over in the custody of her father Bhagwan Shankar and mother Smt. Neetu. The same is Exb. Ka-2 to the records.

7. The FIR was transferred to Police Station Sector 58, District Gautam Buddha Nagar which was registered therein as Case Crime No.1164 of 2011, under Sections 363, 366 IPC.

8. The victim was taken for medical examination on 23.11.2012 and the doctor did not find any injury on her external part of body. In so far as the internal examination was concerned, the doctor did not find any injury on her private parts. Hymen was old torn and healed, vagina admits two fingers easily. Vaginal smear was taken and was preserved for analysis. The victim was referred to C.M.O for determination of age. The said medical examination report is Exb. Ka-4 to the records.

The Pathological report stated that no spermatozoa was seen in the vaginal smear. The same is Exb. Ka-5 to the records.

9. The C.M.O Gautam Buddha Nagar vide his report dated 21.12.2012 opined the victim ''X' to be above 16 years of age.

10. The investigation concluded and Charge-sheet No.410 of 2012 dated 21.12.2012 was submitted against the appellant under Section 363, 366, 376 IPC. The same is Exb. Ka-8 to the records.

11. Vide order dated 16.09.2013 passed by 2nd Additional Sessions Judge, Gautam Buddha Nagar, charge was framed against the appellant under Section 363, 366, 376 IPC. The accused-appellant denied the charges and claimed to be tried.

12. In the trial, Smt. Neetu the first informant and mother of the victim ''X' was examined as P.W.1, the victim ''X' was examined as P.W.2, Dr. Archana Tyagi who conducted the medical examination of the victim, was examined as P.W.3, Head Constable Sipahi Lal was examined as P.W.4, Sub Inspector K.P. Singh was examined as P.W.5 and Sub-Inspector Kartar Singh was examined as P.W.6.

13. The accused-appellant in his statement under Section 313 Cr.P.C. denied the accusation levelled against him and stated of false implication and stated that he has been implicated in the present case due to enmity. No defence evidence was led.

14. The trial court after perusing the records and hearing the learned counsels for the parties, convicted the accused-appellant as stated above.

15. P.W.1 Smt. Neetu is the first informant and mother of the victim ''X'. She reiterates the version given by her in the application for lodging of the FIR and proves the same. She states that her daughter was enticed away on 06.05.2011 after which she along with her other family members on the information received from her sister Nanki, recovered her daughter from the house of Shyam on 28.07.2011.

16. P.W.2 victim ''X' states that she along with her family were living in Gautam Buddha Nagar in a rented house of Satya Pradhan. Her mama lives in village Nausera, Police Station Bangarmau, District Unnao and Shyam Kumar Bajpai resident of the same village of her mama was also living in the same house on rent. As per the relationship through village, he was also her mama. He used to visit her house. He used to tell her to accompany to Mumbai where they would earn money and would make films and purchase vehicle and house. He allured her for many days. When her parents used to be out from the house, he used to come. On 06.05.2011 at about 4 p.m. when her parents had gone to their duty, he came there and allured her and enticed her away. He took her on a tempo to Chijarsi and then to Delhi. From Delhi he took her to Kanpur by bus. He kept her in Kanpur for about 2 months. In the meantime he established physical relationship with her many times. To ensure that she does not run away from the house, the accused had called his brother and mother there. He used to beat her and did not permit her to go out of the room. She was unable to call anyone for help. He then took her to the house of his sister in Bhatholi. They stayed there for about a month. He established physical relationship with her there also. He wanted to marry her forcibly. She was aged about 13 years at the time of incident. When she refused marriage, he tried to burn her by pouring kerosene oil. She was saved by his mother. He then threatened her with a country-made pistol and told her that if she does not marry then she and her family members would be killed. He established forcible physical relationship with her many times. In village Bhatholi, the daughter of her mausi also lives. She used to visit the house of Shyam Kumar. One day she saw her there and then informed her parents about it. On the next day her mother and father came there searching her and entered in the house. She was kept locked in a room and her hands, legs and mouth used to be tied. Her mother searched her in the house but she was not traced and then the daughter of her mausi checked the room outside where she was found. Shyam Kumar then ran away. She was then taken to the house of her mausi in the village. She was then taken for lodging of the FIR at Police Station Behta, District Unnao. She was then brought by her parents to NOIDA. Her medical examination was done and her statement under Section 164 Cr.P.C. was recorded. She proves her statement recorded under Section 164 Cr.P.C. which is Exb. Ka-3 to the records.

17. P.W.3 Dr. Archana Tyagi conducted the medical examination of the victim on 23.11.2012. The notings done by her have already been stated about it.

18. P.W.4 Head Constable Sipahi Lal was posted at Police Station Bangarmau, District Unnao who lodged the FIR as Case Crime No.NIL of 2011 on 4.8.2011 at 17:30 hours and transcribed the same in corresponding G.D.

19. P.W.5 K.P. Singh, the Investigating Officer was posted as Chauki Incharge Behta Mujawar, Police Station Bangarmau, District Unnao. He took up the investigation recorded the statement under Section 161 Cr.P.C. of the first informant, Nanki and then transferred the investigation to Police Station Sector 58, NOIDA.

20. P.W.6 Sub-Inspector Kartar Singh is the Investigating Officer of the matter of Police Station Sector 58 NOIDA. Before he took the investigation, the same was with HCP Harsh Bhadauria and S.I. Ravindra Rathi. The charge sheet in the matter was submitted by S.I. Udham Singh.

21. Learned Amicus Curiae argued on behalf of the appellant that the victim ''X' is a major girl. The C.M.O has opined her age as above 16 years and by giving the benefit of variation of two years, she would be major. It is argued that the present FIR has been lodged after an inordinate delay of 2 days short of 3 months. The victim ''X' is stated to be enticed away on 06.05.2011 whereas the FIR was lodged in District Unnao on 04.08.2011. There is no plausible explanation whatsoever regarding the delay in lodging of the FIR. It is argued that as per the prosecution version, the first informant received information about the whereabouts of victim through her sister Nanki. She has not been produced and examined in trial. It if further argued that the victim ''X' states that she was seen by the daughter of her mausi in the house where she was confined. The said woman has also not been produced and examined in the trial. It is argued that the victim remained for about two months and 28 days with the accused-appellant without any resistance whatsoever. She as per her version travelled to various places by various modes being bus and tempo but did not raise any alarm whatsoever regarding her being forcibly being enticed away. It is argued that the present case is a case of consent. The victim left her house with the accused-appellant out of her own sweet-will. She travelled to various places on various modes without any objections and resistance and lived with the accused-appellant for about 3 months out of her own sweet-will. It is further argued that since Nanki and the daughter of mausi of the victim ''X' has not been examined in the trial, an adverse inference may be drawn regarding the prosecution story in which they have been given important roles, as such the appellant deserves to be acquitted. The impugned judgement and order deserves to be set-aside and the appeal may be allowed.

22. Per contra learned counsel for the State while opposing the arguments of learned Amicus Curiae argued that the victim as per FIR was stated to be of about 12 years and as such was a minor girl. It is argued that the victim in her statement stated that she was extended threat by the accused which was the reason due to which she did not raise any alarm while she was being enticed away. It is argued that the victim was kept in detention and was kept in a room and was not permitted to go out. Her hands, legs and mouth were tied, as such she could not get an opportunity to raise a shout to attract people and resist the same. The victim was recovered from the house of the appellant as such the prosecution case shows implication of the appellant. The present appeal thus be dismissed.

23. After having heard learned counsels for the parties and perusing the records, it is evident that the present incident had taken place on 06.05.2011. The FIR was lodged on the basis of an application dated 04.08.2011 given by Smt. Neetu, the mother of the victim which was registered in District Unnao on the same day. The lodging of the FIR is delayed by about 2 months and 28 days. There is no explanation regarding the same. The FIR has been lodged after the victim ''X' was traced by the first informant and her family members. The location of the victim "X' as per the first informant was given to her by her sister Smt. Nanki who has not been examined in the trial. There is no version coming forward regarding withholding her and not producing her as a witness. The age of the victim as per the certificate of the C.M.O concerned has been opined to be above 16 years. If the benefit of two years as per settled principles of law is given, she would be major. She in her cross-examination states that when the first informant and her husband reached the house of the accused-appellant, she was massaging oil on the head of the mother-in-law of the sister of the accused-appellant. By the said statement, it cannot be said that she was kept confined inside the house only and was not free.

24. Looking to the facts and circumstances of the case, in view of the above discussions the appellant is entitled to benefit of doubt. The judgment of the trial court is hereby set-aside. The appellant is acquitted of the charges levelled against him.

25. The appeal stands allowed.

26. The accused if in jail, shall be released forthwith.

27. Office is directed to transmit the copy of this judgement along with the lower court records to the court below forthwith for its compliance and necessary action.

          (Samit Gopal, J.)

Dt.30.08.2022

Gaurav