Punjab-Haryana High Court
Crl. Appeal No.760-Sb Of 2002 vs State Of Haryana on 19 January, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Crl. Appeals No.760 & 861-SB of 2002 -: 1 :-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
1. Crl. Appeal No.760-SB of 2002
.
Joginder and another
...Appellant(s)
v.
State of Haryana
...Respondent(s)
2. Crl. Appeal No.861-SB of 2002
Lillu alias Ram Niwas
...Appellant(s)
v.
State of Haryana
...Respondent(s)
Date of decision: January 19, 2011
CORAM:
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Shri K.S. Dhaliwal, Advocate, for the appellant
(in Crl. Appeal No.760-SB of 2002)
Shri Bhoop Singh, Advocate, for the appellant
(in Crl. Appeal No.861-SB of 2002)
Shri Sandeep Mann, Sr. Dy. Advocate General, Haryana,
for the respondent.
Kanwaljit Singh Ahluwalia, J. (Oral):
By this common order, both the appeals, viz Crl. Appeal No.760-SB of 2002, preferred by Joginder s/o Ram Kumar and Narinder s/o Hawa Singh, and Crl. Appeal No.861-SB of 2002, preferred by Lillu @ Crl. Appeals No.760 & 861-SB of 2002 -: 2 :- Ram Niwas s/o Raj Kishan shall be decided together.
These appellants were tried in case FIR No.281 dated 27.11.1999, registered at Police Station City Narwana, under Sections 363, 366, 376 and 120-B IPC by the Court of Additional Sessions Judge, Jind. Vide the impugned judgment dated 16.4.2002, Additional Sessions Judge, Jind held appellant Lillu guilty of offence under Sections 363 and 376 IPC, however, the appellants Joginder and Narinder were guilty of offence under Section 120-B IPC. Vide a separate order dated 18.4.2002, the appellants were sentenced as under:-
Appellant Lillu @ Ram Niwas U/S 376 IPC RI for 7 years and to pay a fine of Rs,2000/-
in default of payment of fine to undergo further RI for two years.
U/S 363 IPC RI for 3 years and to pay a fine of Rs,2000/- in default of payment of fine to undergo further RI for two years. Appellants Joginder & Narinder U/S 120-B IPC RI for 3 years and to pay a fine of Rs,2000/- each, in default of payment of fine to undergo further RI for two years.
The substantive sentences have been ordered to run concurrently.
Criminal proceedings in the present case were set into motion on a written statement Ex.PA/2 made by Khajanchi Lal PW1. It was stated in the application that the complainant Khajanchi Lal had four daughters and two sons. His eldest daughter was married and younger to her is the prosecutrix (the name of the prosecutrix has been withheld so as to protect her identity); she had left her studies. On 26.11.1999 at about 7.30 in the morning, the prosecutrix had gone to bazar for purchase of bread; till 8.30 Crl. Appeals No.760 & 861-SB of 2002 -: 3 :- a.m., she did not return; complainant along with his brother Sham Lal searched for her in the neighbourhood but was not able to trace her. It was stated that Bobby d/o Midha (Ganga Bishan) caste Jat used to visit their house; Lillu, brother of said Bobby, was seen roaming near his house in suspicious circumstances for the last 2/3 days prior to the occurrence; enquiry was made from Bobby regarding the prosecutrix but Bobby did not give any satisfactory reply; his daughter also used to visit the house of Bobby many times; Lillu, brother of Bobby, was also missing from the house; therefore, a suspicion was expressed that Lillu, resident of Narwana, in collusion with his sister Bobby has enticed away the prosecutrix, daughter of the complainant.
From a perusal of the above, it is evident that the prosecutrix had left her house on 26.11.1999 at about 7.30 a.m. and complaint was made to the police on the next day, i.e., 27.11.1999. The above stated FIR was investigated, report under Section 173 Cr.P.C. was submitted against the accused.
The Court of Additional Sessions Judge, Narwana charged Joginder and Narinder for offence under Section 120-B IPC and the charge stated that on 26.11.1999 at about 7.30 a.m. in the area of Narwana they had hatched conspiracy with Lillu alias Ram Niwas and helped him in kidnapping the prosecturix from the lawful guardianship of her father and also gave a sum of Rs.400/- to their co-accused Lillu. Lillu was charged for an offence under Section 363 IPC for kidnapping the prosectrix, a minor daughter of the complainant and lastly, Lillu appellant was charged for an offence under Section 376 IPC. The charge stated that from 26.11.1999 to 10.12.1999 at various places, i.e., Narwana, in the train on way to Delhi, Crl. Appeals No.760 & 861-SB of 2002 -: 4 :- Delhi and Hyderabad committed rape on prosecutrix and thereby committed the offence punishable under Section 376 IPC.
The appellants pleaded not guilty and claimed trial.
It will be apposite to get the brief resume of the evidence led by the prosecution.
Khajanchi Lal, complainant appeared as PW1. He stated that he was having four daughters and two sons. Eldest daughter was married, then next was the prosecutrix who had left her studies and used to reside in the house. She, on 26.11.1999 at about 7.30 a.m., had gone to the market to purchase bread. She was aged about 16 years. She had not returned to the house till 8.30 a.m., therefore, search was carried. Prior to the occurrence, accused Lillu was spotted wandering in front of the house of the complainant. An enquiry was made from Bobby, sister of accused Lillu, but she could not give any satisfactory reply. On 26.11.1999, both prosecutrix and Lillu were found missing. It is further stated that in the complaint, inadvertently, name of the father of the accused was given as Ganga Bishan instead of Raj Kishan. In cross examination, this witness stated that his daughter was recovered by the police from railway station of Narwana on 10.12.1999; her medico-legal examination was conducted; she remained in the custody of police in the night; in the morning her statement under Section 164 Cr.P.C. was recorded by JMIC, Narwana and then her custody was entrusted to him. In cross examination, the following material admission made by this witness is required to be noticed:-
"... Later on I came to know that the accused Lillu and my daughter Soni had previous relations. ..."
The prosecutrix appeared as PW2. She gave her age as 19 Crl. Appeals No.760 & 861-SB of 2002 -: 5 :- years. She was examined on 19.10.2001. This witness, in the Court, stated that on 26.11.1999 at about 7.30 a.m., she had gone to buy bread; at that time, accused Lillu and two other accused who were present in the Court, met her; Lillu put a knife on her back and said that you are very beautiful, you accompany us to Delhi, Bombay, Hyderabad and Poona where they will make her a heroin as they have links with very high-ups. They went to Railway Station, Narwana; accused Lillu asked his companions to buy two tickets for Delhi, one for the prosecutrix and the other for Lillu himself. Accused Lillu took the prosecutrix behind trees and committed a forcible rape. After the tickets were bought, Lillu and the prosecutrix travelled to Delhi. From Delhi, they boarded train for Hyderabad. At Hyderabad, they hired a room in a Dharmshala and stayed for 5-6 days. During their stay at Hyderabad, she was raped by Lillu. They returned to Delhi and remained there for two days; accused Lillu became short of money, therefore, they returned to Narwana. She was sitting under the tree near Railway Station, Narwana so that accused could arrange for some money. The accused went away with the assurance that he will return with money. She kept on sitting there. After about half an hour, her uncle Jai Parkash and maternal uncle Ram Karan along with two police officials reached there. They took her to General Hospital, Narwana where she was medico legally examined.
In cross examination, the prosecutrix was confronted with her statement recorded under Section 161 Cr.P.C. Ex.DA wherein it was not recorded that Lillu had threatened her with a knife. She stated that the accused Lillu met her in the street and there are residential houses in the street. When she raised a raula, the accused had threatened her to kill. During their stay at Delhi, they had neither slept nor took meals. She Crl. Appeals No.760 & 861-SB of 2002 -: 6 :- admitted that number of persons had boarded train from Narwana. She did not tell the factum of rape or kidnapping to any person at the Railway Station . She admitted that there was a Police Post at Railway Station. This witness further stated that some police officials were present in the train, she did not disclose the factum of rape and kidnapping to them as Lillu had threatened. Lillu had kept knife at her back in train. However, she admitted that in photograph Ex.DB, she had been photographed with the accused. However, she denied that she voluntarily posed in the photograph. She admitted that in her matriculation certificate Ex.PD, her date of birth has been recorded as 30.8.1981. However, she stated that in the matriculation certificate, the date was wrongly recorded. Letters marked Ex.D1 to D.65 were put to the witness; she stated that these letters have not been written by her. She denied that in the letter she had written that in case Lillu will not take her away from Narwana, she will commit suicide. She admitted that in her statement made to the police and Magistrate stated that Lillu had raped her in the train but in the Court denied this fact.
The prosecutrix was examined by PW3 Dr. Shashi Singla on 10.12.1999 who stated that on examination, no external injury was found. It was further opined that on P/V examination, vagina admitted two fingers with slight pain. Hymen was found old ruptured. In cross examination, this witness admitted that the prosecutrix was habitual to sexual intercourse.
HC Karan Singh PW4 and Constable Dharampal PW5 tendered their affidavits Ex.PG and PH respectively to prove link evidence. Dr. M.K. Goyal, Assistant Director, Forensic Science Laboratory, Karnal proved his report Ex.PJ. Jai Parkash PW7 and Ram Kumar PW8 were relations of the prosecutrix being uncles. They stated that on 10.12.1999, Crl. Appeals No.760 & 861-SB of 2002 -: 7 :- they along with the police officials reached railway station and found accused and the prosecutrix sitting there. ASI Ram Kishan proved arrest of accused Joginder and Narender. ASI Ram Phal PW10 had investigated the case. Dr. S.C. Mittal, PW11 medico legally examined Lillu alias Ram Niwas and opined that there was nothing to suggest that he was incapable of performing sexual intercourse. Kuldeep Gupta PW12 prepared scaled site plan Ex.PV.
Ms. Kanchan Nariala, JMIC PW13 proved the statement under Section 164 Cr.P.C.
Thereafter, their statements under Section 313 Cr.P.C.were recorded. All incriminating evidence was put to them; they denied the same and pleaded innocence. Lillu @ Ram Niwas gave the following version:-
"It is false case and have been foisted by the complainant party for saving their honour in the society. (sic) is elder in age and more educated and belongs to a rich family in comparison to me. She had been writing letters continuously before this alleged incident and in those letters she had been addressing me as her husband and had been treating herself as my wife. She even wrote letter that I should reach the bus stand on 25.11.99 so that I may accompany her. She pressurized me to go along with her and in case I refuse she will commit suicide. The total expenditure during the period we stayed out side Narwana was borne by her. There is no forcible rape. However, we have connections/relations even before the alleged incident. The witnesses are relations of (sic) and the police officials are interested in the success of the case and they have deposed Crl. Appeals No.760 & 861-SB of 2002 -: 8 :- falsely. I have been falsely implicated in this case."
From the entire prosecution case, noticed above, so far as appellants Joginder and Narender are concerned, the only evidence which has surfaced against them is that they were present in the street along with Lillu when Lillu had put a knife on the back of the prosecutrix. They had not accompanied the accused and the prosecutrix to Delhi, Hyderabad and Poona. The prosecutrix has further stated that Joginder and Narender had purchased two tickets from the railway station for Lillu and herself and on those two tickets, the prosecutrix and the accused Lillu travelled from Narwana to Delhi.
Before this Court could analyze, dissect and appreciate the evidence of the prosecution, it will be necessary to determine the age of the prosecutrix. Khajanchi Lal PW1 in his written complaint Ex.PA had given the age of the prosecutrix as 16 years. The prosecutrix while appearing in the Court also gave her age on the day when she left with the accused Lillu as 16 years. However, no birth certificate has been produced from the Registrar of Births and Deaths. No ossification test of the prosecutrix was carried. The prosecution has relied upon a matriculation certificate of the prosecutrix Ex.PG where her date of birth is recorded as 30.8.1981. The occurrence took place on 26.11.1999, therefore, on that day she was 18 years, 2 months and about 28 days old. She was above 18 years of age.
Having held the age of the prosecutrix to be more than 18 years, on the day she left her home, this Court has to ponder over and find as to whether the prosecutrix had accompanied accused Lillu of her own accord or she was forcibly made to accompany him on a threat extended by Lillu. The statement of the prosecutrix that in the street, when the Crl. Appeals No.760 & 861-SB of 2002 -: 9 :- prosecutrix had gone to purchase the bread, Lillu had put a knife on her back and said that she was very beautiful, she should accompany him and he will make her a heroin, is to be taken with a pinch of salt. It has come in the evidence of the prosecutrix that when they boarded the train from Narwana to Delhi, a Police Post was located at the Railway Station, Narwana. She did not disclose the police the factum that she had been kidnapped or that she had been raped. She further admitted that the police officails were present in the train and she did not disclose any fact to them. Her statement that she was under threat of Lillu, cannot be believed. The prosecutrix was roaming around with the accused on public places and in the public transport. From Delhi, they had gone to Hyderabad where they stayed in a Dharamshala for 5-6 days and there also, no complaint was made. The prosecutrix has stated that they returned to Delhi becuase accused Lillu was short of money. They further came to Narwana as accused Lillu had given assurance to her that he shall arrange for money. According to the prosecutrix, she was sitting alone beneath a tree at the Railway Station, Narwana when accused Lillu had gone to arrange for the money. Before Lillu could return, she was apprehended by the Police and her uncles.
It is a clear case of elopement as a result of love affair. The prosecutrix has admitted photograph Ex.DB where she has been photographed with the accused Lillu. However, she has denied letters which are 65 in number and have been marked D1 to D65. The statement made by her father Khajanchi Lal PW1, in cross examination that the prosecutrix and the accused were having previous relations, assumes importance. Thus, considering the entire conspectus of the case, this Court is of the view that the prosecutrix, according to her own will, had Crl. Appeals No.760 & 861-SB of 2002 -: 10 :- accompanied Lillu and was a consenting party to the sexual intercourse. She had to come back when the money taken by the Lillu was spent. Furthermore, on the touchstone of the probabilities, the allegation that she was put to threat, being an exaggeration, is to be discounted.
The defence has also proved Ex.D2, school transfer certificate of Lillu. In this Certificate, the date of birth of Lillu has been recorded as 7th March, 1982. Accused Lillu was aged less than 18 years on the day of occurrence. Since this Court has held that the prosecutrix accompanied the accused of her own accord and had sexual intercourse with him of her free will, no offence under Sections 366 and 376 IPC is made out against Lillu. Furthermore, in view of the law laid down in Hari Ram v. State of Rajasthan & Anr., 2009(2) RCR (Crl.) 878, offenders below 18 years of age are to be treated as juveniles. As this Court has held that no offence was made out against the appellant Lillu, no enquiry regarding his age is required to be conducted. Role assigned to other two accused also spell out no offence. Furthermore, the appellant Lillu has been acquitted of the charges under Section 366 and 376 IPC, thus, the conviction of the appellants Joginder and Narender, with the aid of Section 120-B IPC, cannot be sustained and they are also liable to be acquitted.
Resultantly, both the appeals are accepted; conviction and sentence awarded to the appellants are set aside and they are acquitted of the charge framed against them.
[Kanwaljit Singh Ahluwalia] January 19, 2011. Judge kadyan