Punjab-Haryana High Court
State Of Haryana vs Karan Singh & Anr on 31 January, 2011
Author: Hemant Gupta
Bench: Hemant Gupta
Criminal Appeal No. 625-DBA of 2001 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 625-DBA of 2001
DATE OF DECISION: 31.1.2011
***
State of Haryana
..APPELLANT
VS.
Karan Singh & Anr.
..RESPONDENTS
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA.
HON'BLE MR. JUSTICE ARVIND KUMAR,
Present:- Mr. P.S. Poonia, Addl. A.G. Haryana.
Mr. Jasbir Singh Mor, Advocate
for the respondents.
ARVIND KUMAR, J.
State of Haryana has questioned the legality of judgment dated 12.3.2001 rendered by the learned Additional Sessions Judge, Jagadhari by dint of which the respondents have been acquitted of the charges under Sections 120-B, 363, 366-A and 376 IPC after extending the benefit of doubt.
Necessary facts leading to the filing of the instant appeal are that on 11.10.1999 Tejpal complainant apprised the police party headed by ASI Himmat Singh about missing of his daughter(hereinafter referred to as the prosecutrix) since the evening of 10.10.1999. He suspected the hand of his servant Karan Singh and his brother Karam Chand. According to him his daughter had been taken away, by alluring her, with a bad intention.
Case FIR No.124 dated 11.10.1999 was registered against Karan Singh and Karam Chand and investigated upon. On 12.10.1999 the prosecutrix was recovered while in the company of the accused from bus stand Orangabad. Prosecutrix as well as accused Karan Singh were medicolegally examined. On 13.10.1999 her statement under Section 164 Cr.P.C. was recorded by the learned Magistrate wherein she levelled Criminal Appeal No. 625-DBA of 2001 2 allegations of rape against Karan Singh. Thereafter, on completion of usual formalities of investigations, final report under Section 173 Cr.P.C. was prepared and forwarded for the trial of both the accused.
Charge under Sections 120-B, 363, 366-A and 376 IPC was framed against the accused, to which they pleaded not guilty and claimed trial.
To substantiate the charge against the accused, the prosecution examined PW1. Dr. Neenu Kalra, who medicolegally examined the prosecutrix; PW2 UGC Ravinder Kumar and PW3 HC Tarsem were formal witnesses and tendered their affidavits; PW4 SI Dhanna Ram had recorded the formal FIR; PW5 HC Zile Singh and sealed parcels were handed over to him by the doctor; PW6 Jai Parkash, Patwari prepared the scaled site plan while the prosecutrix herself appeared as PW7; her father Tej Pal stepped into witness box as PW8; PW9 Dr. Ramesh Singhal had medically examined accused Karan Singh; PW10 Rani Adarsh, Head Mistress issued the certificate (Ex.PL) in respect of prosecutrix showing her date of birth as 18.8.1984; PW11 Const. Mahi Pal took the ruqa to the police station for getting the FIR registered; PW12 Parveen is the sister of the prosecutrix; PW13 ASI Himmat Singh was the investigating officer of the case while PW14 Ajay Tewatia, JMIC, Narnaul had recorded the statement of the prosecutrix.
The accused when examined under Section 313 Cr.P.C.
pleaded false implication in the case. However, in defence no evidence was led by the accused.
After analyzing the evidence adduced by the prosecution, learned trial court vide the impugned judgment concluded that the prosecutrix was above 18 years of age; she herself voluntarily left the house of her parents to accompany the accused and that she was a consenting party to the sexual acts. Consequently, the accused, as said above, were acquitted after extending the benefit of doubt. Hence, this appeal.
We have heard learned counsel for the parties and have also gone through the record carefully.
In the instant case, the act and conduct of the prosecutrix is such, from which it can safely be inferred that she was a consenting party to the sexual acts. In her statement under Section 164 Cr.P.C. she stated Criminal Appeal No. 625-DBA of 2001 3 therein that their domestic help Karan Singh forcibly took her; firstly he allured her and then threatened her to kill her brothers. He took her to the fields where his brother Karam Chand was there. Karan Singh committed rape upon her and Karam Chand pressurized her to marry Karan Singh. In the night when they came out of the sugarcane field, then the police apprehended them at the bus stand. This is one aspect of the matter. The version given by the prosecutrix does not inspire any confidence so far as the allegations of rape are concerned. When the prosecutrix stepped into the witness box as PW7 she stated that accused Karan Singh asked her to accompany him at about 3:00 p.m. for which the time 7:45 p.m. was fixed. It is admitted case of the prosecution that the parents of the prosecutrix, who had gone outside in the morning, had returned back at about 7:30 p.m. At that time, admittedly the prosecutrix and the accused were in the house. Had she been criminally intimidated, she would have apprised her parents about the said threat. Rather, she admitted in her cross examination that she did not tell anybody about her conversation with the accused Karan Singh, but due to fear, which cannot be accepted since by that time not only her parents but her uncle had also returned to the house. Further, it has come in her statement that during commission of rape by the accused Karan Singh she raise resistance, due to which she sustained injuries on leg and started bleeding from her private part. But, her statement is found totally discrepant from the testimony of PW1 Dr. Neenu Kalra, who, during medical examination, neither found any mark of injuries or struggle marks on her person nor any bleeding or tear, rather her statement is suggestive of the fact that the hymen of prosecutrix was absent and she was found habitual to sexual intercourse. Though this fact is not of much importance, but when the statement of prosecutrix is read in juxtaposition with the medical evidence on record, coupled with the circumstances referred to above, there remains no doubt that she was the consenting party to the sexual acts. It is also elicited out from her statement that on 12.10.1999 she was recovered from the bus stand while in the company of the accused. She admitted that number of people were there on the bus stand, but she opted to remain silent at that point of time. Even the testimony of PW13 ASI Himmat Singh is suggestive of the fact that on seeing the police party the accused as well as the prosecutrix tried to flee, but were over-powered. In the case of Kamaljit Criminal Appeal No. 625-DBA of 2001 4 Singh Vs. State of Punjab 2007(4) RCR (Crl.) 178, this Court, in the similar situation where the testimony of prosecutrix regarding forcibly rape and receiving of injuries during resistance was found discrepant to the medical evidence, acquitted the accused therein after extending the benefit of doubt. Thus, sequence of events suggest that the prosecutrix was a consenting party to the sexual acts by respondent Karan Singh.
Now, the question comes as regards the age of the prosecutrix. Question of age of prosecutrix in cases of such nature is always of importance. The learned trial Court concluded that the prosecutrix was more than 18 years of age. In our considered opinion a pedantic approach has been adopted by the Court below while arriving at the said conclusion. Ex.PL i.e. the certificate issued by the Head Mistress of Adarsh Sr. Secondary School, Jagadhari as well as the school leaving certificate Mark- A issued by the Govt. Middle School, Farakpur, wherein the date of birth of prosecutrix is mentioned as 18.8.1984 have been disbelieved by the Court below. As per the deposition made by PW8 Tejpal, the father of the prosecutrix regarding differences in the age of his five children wherein the prosecutrix stood at number four, the trial Court assessed her age either between 18 ½ or 19 years and 16 ½ years to 17 years. The Court below while relying upon the case of Satish Kumar Vs. State 1988 Crl.L.J. 565 took the view that in absence of conclusive proof regarding exact date of birth of the prosecutrix, benefit must go to the accused. Hence, her age was concluded as above 18 years. It is settled that no strait-jacket formula can be laid down for determination of age of child, but it depends upon the facts and circumstances of each case. The Court is required to scrutinize the whole of its evidence, oral or documentary, available on the record of the case. In the instant case, certificate Ex.PL showing the age of prosecutrix as 18.8.1984 cannot be and rightly not relied upon by the Court below. PW10 who issued the said certificate admitted that the age 18.8.1984 of the prosecutrix was entered on the basis of certificate issued by the Govt. Middle School. But the said certificate (Mark-A) was not duly proved on record. Further, no other document has been produced on record on the basis of which the date 18.8.1984 was mentioned. This witness further admitted that she do not know as to who got the prosecutrix admitted in the school, telling her age as 18.8.1984. So far as oral evidence is concerned, it Criminal Appeal No. 625-DBA of 2001 5 is a matter of record that when the prosecutrix was medically examined she gave her age as 17 years. Similar was the age given by her when her statement under Section 164 Cr.P.C. was recorded. She reiterated her age as 17 years when she stepped into the witness box. When the complainant lodged the FIR he had given the age of the prosecutrix as 16 years. They are the witnesses of fact. In the case of Vishnu @ Undrya Vs. State of Maharashtra, 2006(1) RCR (Crl.) 201, followed in the case of Amar Chand Vs. State of Rajasthan 2008(1) RCR (Crl.) 975, it has been held that for determining the age of a child, the best evidence is of father and mother. While appearing as PW8 Tejpal complainant has stated that his eldest daughter is 23 years old, younger to her is Parveen by two and a half year, then comes Shiv Kumar who is two years younger to Parveen and then there is prosecutrix who is younger to Parveen by two and a half years to four years, meaning thereby the age of prosecutrix was between 16 to 18 years. There is no reason to disbelieve the same. Hence, in absence of any concrete evidence as to the age of the prosecutrix, it would not be unsafe to conclude her age as more than 16 years but less than 18 years.
Since the prosecutrix has been held to be more than 16 years of age at the time of incident and being the consenting party to the sexual acts, the charge under Section 376 IPC must fail.
Coming to the charge under Section 366-A IPC. In order to attract Section 366A IPC, essential ingredients are (1) that the accused induced a girl; (2) that the person induced was a girl under the age of eighteen years; (3) that the accused has induced her with intent that she may be or knowing that it is likely that she will be forced or seduced to illicit intercourse; (4) such intercourse must be with a person other than the accused; (5) that the inducement caused the girl to go from any place or to do any act. In the instant case, the admitted case of the prosecution is that she was not forced to sexual intercourse with any person other than the accused. Since the essential ingredient that the intercourse must be with a person other than the accused has not been established, Section 366A has no application.
The residual question is with regard to applicability of Section 363 IPC, which provides for punishment of offence committed under Section 361 IPC. Section 361 IPC says that Whoever takes or entices any Criminal Appeal No. 625-DBA of 2001 6 minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. The object of S. 361 seems as much to protect the minor children from being seduced for improper purposes as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. Section 361 is designed to protect the sacred right of the guardians with respect to their minor wards. On plain reading of this section the consent of the minor who is taken or enticed is wholly immaterial, it is only the guardian's consent which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the Section. In the instant case, there is overwhelming evidence on record to prove that the accused enticed away the prosecutrix, a minor, without the consent of her parents. Hence, the respondent Karan Singh is liable for punishment under Section 363 IPC.
Further, there is no room to interfere with the acquittal of respondent Karam Chand. No cogent and convincing evidence has been produced by the prosecution to substantiate the charge to his extent and merely because he was present in the sugarcane field, it cannot be said that he ever conspired with the co-accused Karan Singh either in taking away the prosecutrix or involved in the sexual affairs. Even no overt act has been attributed to him.
Faced with the situation, the learned counsel have contended that the matter pertains to the year 1999 and despite the acquittal, accused Karan Singh is in corridors of the Court and thus, a lenient view is prayed for.
Keeping in view the peculiar facts and circumstances of the case, the instant appeal is partly allowed to the extent of Karan Singh, who has been held guilty under Section 363 IPC. However, his acquittal in Criminal Appeal No. 625-DBA of 2001 7 respect of Sections 366A and 376 IPC is maintained. The instant appeal to the extent of Karam Chand is dismissed. Convict Karan Singh is sentenced to undergo rigorous imprisonment for three years with a fine of Rs.1000/-. In default of payment of fine, he shall further undergo imprisonment for three months.
The appeal stands disposed of in aforesaid terms.
(HEMANT GUPTA) (ARVIND KUMAR)
JUDGE JUDGE
JANUARY 31,2011
Jiten