Punjab-Haryana High Court
Budh Pal vs State Of Haryana on 9 December, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 960-SB of 2003
Date of decision: 9th December, 2011
Budh Pal
... Appellant
Versus
State of Haryana
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mrs. Amita Arora, Advocate
Amicus Curiae for the appellant.
Mr. Anupam Sharma, Assistant Advocate General, Haryana
for the State.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Budh Pal, a resident of village Badho, Police Station Jaithra, District Aita (UP) has preferred the present appeal through jail. Haryana Legal Services Authority, in pursuance of the order dated 3rd November, 2011 passed by this Court, has appointed Mrs. Amita Arora, Advocate as Amicus Curiae. After hearing learned Amicus Curiae and counsel for the State, I proceed to decide this appeal.
The appellant herein was nominated as an accused in a case arising out of FIR No.355 dated 24.06.2000 registered at Police Station Sadar Gurgaon under Sections 363, 366, 376, 342 and 506 IPC. The Court of Additional Sessions Judge (Fast Track Court), Gurgaon vide impugned judgment dated 10th April, 2003 held the appellant guilty of offences punishable under Sections 363, 366, 376, 342 and 506 IPC. Vide an order dated 11th April, 2003, the appellant was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.300/-, in default of payment of fine to further undergo rigorous imprisonment for two months under Section 363 IPC. He was further Criminal Appeal No.960-SB of 2003 2 sentenced under Section 366 IPC to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment for three months. Under Section 342 IPC the appellant was sentenced to undergo rigorous imprisonment for a period of three months, whereas he was ordered to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.700/- and in default thereof to further undergo rigorous imprisonment for six months under Section 376 IPC. The appellant was also sentenced under Section 506 IPC to undergo rigorous imprisonment for a period of six months. All the substantive sentences were ordered to run concurrently.
Criminal proceedings were set into motion on a written application Ex.PA submitted by Balbir Singh PW-2 to the In-charge, Police Post Rajindra Park Colony, Gurgaon. The application, when translated into English, reads as under:
"My daughter (name withheld to protect her identity), resident of C-42, Rajindra Park Colony is missing from 11th June, 2000, 8.15 p.m. I have been searching for my daughter among my relatives but I have got no clue. Now I have learnt that Budh Pal son of Hari Nath, resident of village Behgo, Post Office Dharoli, Police Station Jaithra, District Aita (UP), who was a tenant in my house, is also missing. A few days ago, wrong acts of Budh Pal came to our notice and we got our house vacated. He started residing as a tenant in our neighbourhood. The above said person is employed in Rubber Factory. From the day, the girl is missing; the above said person is also missing. I have a suspicion that he has eloped with my daughter having enticed her. Legal action be taken against him and my daughter be got recovered."Criminal Appeal No.960-SB of 2003 3
On the basis of written complaint Ex.PA, formal FIR Ex.PD was registered.
The above said FIR was investigated, accused was arrested and a report under Section 173 Cr.P.C. was submitted. The same was committed to the Court of Sessions and was entrusted for trial to the Court of Additional Sessions Judge, Gurgaon. The appellant was charged for offences punishable under Sections 363, 366, 376, 342 and 506 IPC. Gist of the charge is that from 11th June, 2000 to 6th April, 2001, the appellant had committed rape upon the prosecutrix without her consent and has also wrongfully confined her. The appellant pleaded not guilty and claimed trial.
The prosecutrix herself appeared as PW-1 and stated that on 11th June, 2000 when she went to answer the call of nature, the accused met her in the way and made her smell some handkerchief and thereafter, she lost her senses. When she regained her consciousness, she found herself in Aligarh. Later-on she was brought to the house of some relative of the accused in village Nanda, District Aligarh. Thereafter, the accused took her to some Advocate in the town of Aligarh and she was made to sign some blank papers. After staying for some days at the house of relative of the accused, he brought the prosecutrix to village Bagon, District Etah (UP). She was not permitted to move out of the house and she was threatened that in case she narrated anything to anybody, she would be killed. After about ten months, a police party from Haryana accompanied by the police of District Etah (UP) reached at the house of accused and took the prosecutrix in custody. It is stated that the accused, seeing the police party, ran away from his house. The prosecutrix stated that she was about 16 ½ years old when the accused Criminal Appeal No.960-SB of 2003 4 had taken her to Aligarh and her date of birth is 1st January, 1984. In cross-examination, she stated that she had an acquaintance with the accused, as he was a tenant at the house of her father. She admitted that she had told to the police that the accused was well known to her and they used to frequently converse with each other. She stated that the accused was asked to vacate the house 3-4 days prior to the occurrence and she was also talking to him even after he was forced by her parents to shift to another house. She further stated that she had not told to the Advocate that the accused had forcibly enticed her away from her house. However, the prosecutrix admitted that she is a matriculate and when she was recovered by the police, she was having four months' pregnancy. She further admitted that she had not received any visible injury on her person.
Complainant Balbir Singh PW-2 and Mam Kaur PW-3, father and mother of the prosecutrix respectively, have reiterated as to what was stated in the complaint Ex.PA made to the police, a true translation whereof has already been reproduced hereinabove.
Dr. Suman Yadav PW-7 had medico-legally examined the prosecutrix on 6th April, 2001 at about 7.10 p.m. She had found no injury mark on the person of prosecutrix. She had referred the prosecutrix to General Hospital, Gurgaon for age determination. She further stated that as per physical appearance of the prosecutrix, her age was about 16 years. She opined that the prosecutrix was habitual to sexual intercourse and was carrying pregnancy of four months.
This Court need not to notice the testimonies of other official witnesses, who had participated in the investigation. Two issues arise for consideration of this Court:
Criminal Appeal No.960-SB of 2003 5
(a) What was the age of prosecutrix?
(b) Whether the prosecutrix was a consenting party to the sexual
intercourse or not?
So far as the first issue regarding age of the prosecutrix is concerned, as per prosecutrix, she was about 16 ½ years of age when she had left her house. Prosecutrix has divulged her age as 1st January, 1984. Since the prosecutrix was about 16 years of age, in case this Court holds that she was a consenting party, no offence of rape will be made out against the appellant. However, to determine as to whether the appellant has committed offence punishable under Sections 363 and 366 IPC or not, the Court has to determine whether the prosecutrix was more than 18 years of age or not.
This Court cannot ignore that Dr.Suman Yadav PW-7 had referred the prosecutrix to General Hospital, Gurgaon for ossification test. Counsel for the State has very candidly admitted that no ossification test was conducted. Therefore, a material piece of evidence, from which age of the prosecutrix could be determined, has been withheld from the Court. Furthermore, the prosecutrix has herself stated that she had passed matriculation examination. Prosecution has made no effort to place on record the matriculation certificate or any record from the school, from where the prosecutrix had obtained her education, for determination of her age. Thus, an adverse inference is to be drawn against prosecution. Furthermore, no effort has been made by prosecution to elicit information from the record maintained by Registrar, Births and Deaths office regarding age of the prosecutrix recorded therein. Oral assertion of the prosecutrix that she was 16 ½ years old, Criminal Appeal No.960-SB of 2003 6 will not absolve the prosecution to lead cogent evidence for determining age of the prosecutrix. This Court cannot ignore that the prosecutrix, according to her own saying, was about 16 ½ years of age. Thus, her age was bordering 18 years. In these circumstances, benefit of doubt is to be granted to the appellant and this Court holds that the prosecutrix was above 18 years of age.
Having determined that the prosecutrix was more than 18 years old, this Court has to determine as to whether she was a consenting party to the sexual intercourse or not.
In the very complaint Ex.PA made to the police, Balbir Singh PW-2 father of the prosecutrix had stated that his daughter has eloped with the accused. It was further stated that the accused has enticed her away. In the complaint Ex.PA, Balbir Singh had further stated that the accused was a tenant in his house and due to his wrong acts he was made to vacate the house. The prosecutrix had admitted that even when the accused had vacated the house, she was frequently conversing with him. It is too difficult to believe that when the prosecutrix met the accused, he made her smell a handkerchief and she became unconscious. This Court cannot ignore the fact that from Gurgaon, prosecutrix had traveled to Aligarh and she had accompanied the accused from Aligarh to an Advocate and had signed some blank papers. She had not disclosed to the Advocate or anybody else during her journey that she has been made to accompany the accused against her wishes. According to the prosecutrix, they stayed for about 2-3 months in the house of a relative of the accused at Aligarh. In the village, there was a lot of opportunity to relay the information that she has been made to stay in the village against her wishes. Furthermore, the Criminal Appeal No.960-SB of 2003 7 prosecutrix, from the month of June 2000 till April 2001, i.e. for about ten months remained in the company of the accused. When she was recovered by the police, she was carrying four months' pregnancy. She had stayed in the village of accused for about 7-8 months. This Court cannot become oblivious of the fact that when the prosecutrix was recovered, she was carrying four months' pregnancy. In the village, for a total span of about ten months, there was a lot of opportunity for her to disclose that she had been forcibly kept and raped by the accused at his house. Furthermore, the prosecutrix had herself admitted that there was no external injury on her body. Even the medico-legal evidence also proves that the prosecutrix had suffered no external or internal injury. Thus, taking into consideration conduct of the prosecutrix, this Court can safely hold that she had consented to the sexual intercourse committed upon her by the accused.
Taking totality of circumstances into consideration, this Court has no other option except to allow the present appeal. Hence, conviction recorded and the sentence awarded to the appellant is set aside and he is acquitted of the charges.
[KANWALJIT SINGH AHLUWALIA] JUDGE December 9, 2011 rps