N.N.MATHUR, J. - (1.) The instant habeas corpus petition though filed way back in September, 2000 and the corpus namely Mst. Bagtu was produced in Court on 16-11-2000 and the custody was given to the petitioners, but the petition has been kept pending to ensure that the culprits are brought to the book and complete justice is done to the victim. The proceedings in the instant case has raised certain important issues of criminal justice system with reference to the offence against women. Much is said about gender justice in the United Charter. In the Indian Constitution, there are provisions of equality jurisprudence. The crime against women has been specified under various provisions in Indian Penal Code i.e. Sections 376, 366, 354, 304B, 306, 498A and 509, I.P.C. The domestic violence has also been covered under the Indian Penal Code by recent amendments. There are special laws like Commission of Sati Prevention Act, 1987, Dowry Prohibition Act, 1961, Immoral Trafficking Prevention Act, 1956 and Medical Termination of Pregnancy Act, 1971 dealing with crimes against women. There are various statutory and non-statutory bodies to take care of women's right, may be right to health, right to privacy, right to Job and protection against sexual harassment. Still there are challenges, which are required to be responded by the Society particularly the State and Judiciary, which we have come across in the instant case i.e. patronage culture, caste taboos, non-sensitivity on the part of magistracy.
(2.) The factual backdrop in which the aforesaid issues have arisen is as follows The victim Mst. Bagtu, while she was still one month old was engaged with an infant, named Sohanlal the son of the 4th respondent Jagrnal. She studied up to 8th Standard. Sohanlal turned out to be mentally unsound. Thus, Mst. Bagtu refused to marry with him. This gave rise to dispute between the two families. Matter was taken to the "Jati Panchayat", wherein the caste taboo prevailed, issuing command against Mst. Bagtu, which was not accepted by her and the parents. Against the command of Jati Panchayat Mst. Bagtu was married to Manoharlal of Makasar on 11-3-2000. When the Panchas of the Caste and the family members of Sohanlal came to know of this fact, the panchayat was reconvened. The family members of Mst. Bagtu were threatened to pay compensation in huge sum or to face dire consequences for disobeying the command of the Caste Panchayat. Her father disagreed to the unreasonable demand. As the members of the victim family were threatened, they approached to the police and as such proceedings under Sections 107 and 116, Cr.P.C. were registered against some of the leaders of the Caste Panchayat and family members of Sohanlal. Large number of people of the community assembled outside the residence of the victim's father. He was charged for disobeying the resolution of the Caste Panchayat. Some anti-social elements, who had become comparatively affluent, by unlawful means, took advantage of the situation, started threatening the victims family to part with huge sum or face consequences. Thus, on 5-8-2000 the 4th respondent Jagmal with other persons of village Dechu reached at the matrimonial house of the victim and abducted her after causing injuries to her husband and other inmates. A First Information Report of the incident was lodged at police station, Bajju, Bikaner for offence under Sections 307, 366,323,452, 147, 148 and 149, I.P.C. When the police failed to trace out Mst. Bagtu the first petitioner Birju Ram the father of Mst. Bagtu and second petitioner her husband Manoharlal approached to this Court by way of filing the instant petition. The police failed to produce Mst. Bagtu for considerable time. The petitioners made a grievance of political and police protection to abductors. The complaint of continuous threat to withdraw the instant petition was also made. Strangely, while police failed to produce Mst. Bagtu before this Court, it was reported that her statement under Section 164, Cr.P.C. was recorded by Additional Chief Judicial Magistrate, Abu Road on 20-10-2000 obliging the captors. Thus, the Home Secretary and the Director General of Police of State of Rajasthan were summoned in Court and impressed upon to ensure, production of the corpus. It appears that captors got the message that they will not be able to enjoy further protection as such, decided to produce her in Court under a protective plan ensuring that she does not divulge truth and they get her custody back from Court. As per the plan on 16-11-2000 a lawyer engaged by them for Mst. Bagtu made a mention in Court that she was prepared to appear in Court provided she is given police protection, which was immediately arranged. Thus, in no time she appeared in the Court under police escort. It was reported that she was brought in a filmy style in an Ambassador Car accompanied by accused Pratapa Ram and dropped at Pai Road. The victim appeared cheerful and well dressed. She identified herself as wife of one of the main accused namely Pratapa Ram. She also expressed her desire to stay with him. This Court in order to ensure that she was not under the influence of the persons from whose custody she had come, gave some time for reflection. Her parents were given an opportunity to meet her. Seeing her old father she broke down in the Chamber. It was felt that she needs time and proper atmosphere to come out of terror and build confidence, so as to make honest statement before the Court. Thus, she was kept comfortably in Police Guest House, under the supervision of the Superintendent of Police, Jodhpur. Nobody was allowed to meet her. On the next day, when she was brought to the Court she appeared more cheerful and confident. At the outset she made a statement to the effect that till last day she was under the threat of her captors, as such did not disclose the truth. Satisfied of Court and police protection she expressed desire to make truthful narration of her tale of woe. She stated that her surrender was planned by captors, putting her under the threat that if she makes any statement against them in Court her father and brother will be shot dead. The Court re-assured protection to her and family members. The narration given by her was recorded which runs in 7 pages. The experience disclosed by her is horrifying. The background in which she was married to the second petitioner Manoharlal need not be repeated. It was inter alia stated that a day earlier to 5-8-2000, Nehru Ram, Pratappa Ram, Shankerlal, Jagmal Ram, Bhanwarlal and Rana Ram visited her husband's house and threatened to settle the dispute or face the dire consequences. On 5-8-2000 the said persons along with 30-35 persons in Jeeps armed with guns, lathis, swords etc. arrived. They thrashed her husband Manoharlal and his brother Jagdish. She was lifted from the house and carried in the jeep. It may not be necessary to give the entire narration. Suffice is to say that she was kept in the captivity for 103 days and continuously raped by the eight of her captors at different places till she appeared before this Court on 16-11-2000. According to her, during her captivity, she was confined at various places in the State of Rajasthan, Gujarat and Maharashtra. She also stated that two of her captors namely Nehru Ram and Pratapa Ram were in possession of mobile phone and they used to ring up various persons. After some time realising that she was helpless, she tried to give impression that she was friendly. Thus, they also relaxed and started talking to various persons on mobile phone in her presence during her captivity. The captors used to discuss about seeking help from certain police officials at Jaipur. However, she could not identify the name of police officers who figured during such conversation. She also stated that Jagdish, Babu Ram and Dhanraj used to regularly talk to Nehru Ram and discuss about the police follow-up. It was also disclosed that the captors used to shift her on getting information of police reaching near the captors. She also stated that she was carrying pregnancy at the time when she was abducted. This was got miscarriage by the captors in a hospital at Gandhi Nagar in the State of Gujarat. On getting a signal that every thing has been arranged for recording her statement under Section 164, Cr. P. C. on payment of Rs. 40,000-50,000/- to the lawyer her captors planned for her production in Court at Sirohi. She was taken to the Court at Sirohi and then to Abu. She was produced in the Court. The Magistrate only asked whether she was staying with Pratapa Ram willingly. As she was under the threat given by captors to the effect that if she reveals anything against them in Court her father and brother will be shot dead, she answered in positive. She signed on a prepared statement.
(3.) After recording her statement and perusing the police diary the custody Mst. Bagtu was given to her parents by order of this Court dated 17-11-2000. The part of the order may be extracted as follows :- "From the statement of Mst. Bagtu, it clearly appears that she has been tortured, insulted, humiliated and treated inhumanly, for not agreeing to marry with Sohan Ram - a mentally retarded person and then to Pratappa Ram - married person having three children. She was being gang raped by 5 persons for three months. Though abductors may be from rural back ground, but it appears that they have become rich quickly and money is no problem for them. It appears that they deal in Transport and other business. They appear to be resourceful persons. It is alleged in complaint received from post that Nehru is indulged in opium smuggling. They could manage to dodge the police and the Court for substantial period because of some hidden help from certain influential persons." While giving custody of Mst. Bagtu to the first petitioner directions were also given to the CBI to investigate the nexus between the captors and the police officials. The suo moto case was also registered against Nehru, Pratapa, Bhanwarlal, Shanker Lal and Banshi Lal and notices were given to them as to why they be not directed to any interim compensation to Mst. Bagtu and other concerned persons. The CBI report could not provide any clue as the main accused Nehru in whose possession was the mobile phone, could not be arrested for substantial period. About 20 accused person were arrested and they were put to trial before the Court of Additional Sessions Judge (Fast Track), Bikaner. The trial Court by judgment dated 10-1-2005 convicted three of the captors namely Prtapa Ram, Shankerlal and Bhanwarlal for offence under Section 376(2)(g), I.P.C. and sentenced to ten years rigorous imprisonment. They were also convicted and sentenced for offence under Sections 366, 148, 451,459/149, I.P.C. and sentenced to 3 years rigorous imprisonment along with 7 other accused person namely Mohanlal, Anna Ram, Bhima Ram, Jagmala Ram, Kishna Ram, Mohanram and Heera Ram. Out of 20 accused persons 10 have been acquitted. The trial against 12 accused persons could not be initiated as the main accused Nehru Ram was still absconding Ultimately, he was nabbed by the Rajasthan Police at Chennai on 19-2-2005. Now all the remaining accused persons are facing trial in the Court of Additional Sessions Judge (Fast Track), Bikaner.;