Punjab-Haryana High Court
Hanif vs State Of Haryana on 12 July, 2010
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal 668-SB of 1998
Date of Decision : July 12, 2010
Hanif
....Appellant
Versus
State of Haryana
.....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Sudhir Sharma, Advocate
Mr. Manish Deswal, Deputy Advocate General, Hry.
T.P.S. MANN, J.
The present appeal has been filed by the appellant against the judgment and order dated 1/2.6.1998 passed by Additional Sessions Judge, Gurgaon, whereby he was convicted for the offences under Sections 363, 366 and 376 IPC and sentenced as follows:-
i) Rigorous imprisonment for three years and to pay a fine of Rs.1,000/- under Section 363 IPC and in default of payment of fine, to further undergo simple imprisonment for two months;
Crl. Appeal 668-SB of 1998 -2-
ii) Rigorous imprisonment for four years and to
pay a fine of Rs.1,500/- under Section 366
IPC and in default of payment of fine, to
further undergo simple imprisonment for 2½ months; and
iii) Rigorous imprisonment for five years and to pay a fine of Rs.2,000/- under Section 376 IPC and in default of payment of fine, to further undergo simple imprisonment for three months;
All the sentences were ordered to run concurrently. According to the prosecution, on 17.2.1997, complainant Mam Chand came to Police Station Taoru and submitted a written complaint stating that the prosecutrix, who was his daughter, had already passed 10th class and used to stay at home. The appellant was his neighbour, who was a band boy and was frequently coming to his house. On 14.2.1997 during night, the prosecutrix had been kidnapped by the appellant. The complainant made efforts to trace out the prosecutrix from his relatives but failed to get any clue. Alongwith the complaint, he also submitted the matriculation certificate of the prosecutrix. On the basis of the said complaint, FIR No. 74 under Sections 363 and 366 IPC was registered at Police Station Taoru against the appellant.
Crl. Appeal 668-SB of 1998 -3- During the course of investigation, ASI Om Parkash recovered the prosecutrix on 27.2.1997 and arrested the appellant. After getting the prosecutrix medico legally examined, offence under Section 376 IPC was added to the heading of the FIR as the prosecutrix was found to be subjected to illegal, unlawful and forcible sexual intercourse.
Upon completion of investigation and presentation of challan, followed by commitment of the case, the trial Court charge-sheeted the appellant for the offences under Sections 363, 366 and 376 IPC, to which he pleaded not guilty and claimed trial.
In support of its case, the prosecution examined Constable Sarwan Kumar, Draftsman as PW1, Dr. P.K.Sharma as PW2, Rajinder Singh as PW3, Dr. Sunita Sharma as PW4, the prosecutrix as PW5, Mam Chand complainant as PW6 and ASI Om Parkash as PW7.
When examined under Section 313, the appellant denied the incriminating evidence appearing against him and pleaded himself to be innocent. The appellant stated that he had been falsely implicated in this case due to enmity with the father of the prosecutrix. He denied to have kidnapped the prosecutrix and also denied the commission of rape upon her. According to the the appellant, on 2.1.1997 at about 10/11.00 a.m., Mam Crl. Appeal 668-SB of 1998 -4- Chand, father of the prosecutrix, came to his village for money as he had purchased one battery from him. The appellant refused to make the payment to him as battery supplied by the father of the prosecutrix was found to be defective. The appellant requested him to take back the defective battery but Mam Chand refused to do so. The appellant hurled abuses upon the father of the prosecutrix on that account. There ensued a quarrel on this point between them. The father of the prosecutrix threatened the appellant to teach him a lesson on next occasion. So out of above said grudge, the father of the prosecutrix had got the instant false case planted against the appellant. In defence, the appellant examined DW1 Tayyab Hussain, DW2 Hajra wife of Alladin and DW3 Hajra wife of Piare Lal.
After hearing learned counsel for the parties and going through the evidence available on the record, the trial Court believed the prosecution version and convicted and sentenced the appellant, as mentioned above.
I have heard learned counsel for the parties and with their able assistance scanned the evidence.
As regards the age of the prosecutrix, the trial Court, after taking into consideration the evidence available on the file, held that the date of birth of the prosecutrix was 20.5.1979 and, therefore, below 18 years at the time of her abduction/kidnapping Crl. Appeal 668-SB of 1998 -5- by observing as follows :-
"Point (a) which required to be determined in this case is the age of the prosecutrix and in this connection the prosecution has placed on file photostat copy of matriculation certificate of the prosecutrix which depicted the date of her birth as 20.5.1979, but father of the prosecutrix PW6 has narrated the date of birth of prosecutrix as 25.5.1979. So, there is only variation of 5 days in the statement of PW6 and mark A matriculation certificate. I am of the view that statement of PW6 depicting different date is just slip of tongue and lapse of memory. However, certificate mark A is an authenticated document which cannot belie the actual date of birth of the prosecutrix and in this connection, the learned A.P.P. has also referred to the law contained in Satpal alias Vijay Kumar's case (supra). It is pertinent to mention over here that PW6 has not been cross examined upon date of birth narrated by him. The year and month stated by PW6 are the same except the date and in this connection, I have already discussed herein above that the same can be slip of tongue and it is settled proposition of law that when a witness is not cross-examined on material particular narrated by him in examination-in- chief, the other party accepted the same as correct. More so, there is nothing on the record contrary to prosecution evidence Crl. Appeal 668-SB of 1998 -6- available on the file which reflects the date of the prosecutrix as 20.5.1979 and accepting the said evidence it can safely be said that the prosecutrix was below 18 years at the time of her abduction/kidnapping, because as per settled proposition of law, prima facie the age of the girl as disclosed in certificate is to be taken as correct. Reference be made to the case of Krishana Swaroop Mathur 1982 Crl.L.J.24."
In view of the fact that the prosecutrix was born on 20.5.1979, she was more than 17½ years of age on the date of the incident though still less than 18 years of age. For the offence under Section 376 IPC, the relevant age of the prosecutrix to be taken into consideration is 16 years. As the prosecutrix was admittedly more than 17½ years of age, her statement as regards her being subjected to by the appellant forcibly sexual intercourse has to be considered with due caution. During her testimony as PW5, the prosecutrix deposed in her examination-in-chief that on 14.2.1997 when she was going to the house of her uncle the appellant came from behind and made her smell something as a result of which she became unconscious. On regaining consciousness she was told by the appellant that he had brought her to his maternal aunt's village. At that place the appellant was said to have raped her. When she tried to raise an alarm, the appellant threatened her with dire consequences by Crl. Appeal 668-SB of 1998 -7- showing her a knife. She was then taken by the appellant in a truck to Jaipur where both of them stayed in a Dharamshala. The appellant used to lock her in the room while moving out by extending a threat to her that in case she raised any alarm or tried to slip away she would be done to death. Even in the Dharamshala, the appellant had been committing forcible sexual intercourse. From Jaipur the appellant took her in a truck to Gopalgarh. There, she started feeling home sickness and when wanted to see her parents, the appellant took her to village near Taoru. He left her near a Piau (water faucet) during the night and on the next morning, she met her uncle Rajinder, who alongwith the police, was searching for her. She also stated that she did not know the appellant prior to the incident. In her cross- examination she testified that she remained with the appellant at the house of his maternal uncle for one or two nights but was not provided any meal during that period nor she had eaten anything. She admitted that while making statement before the police she had not disclosed about the threat given by the appellant at his maternal uncle's residence. She also admitted that she alongwith the appellant remained in the room at Jaipur for 3-4 days where she took meal only once which was brought by the appellant from outside. She went on to state that in that Dharmshala there were many persons. She even admitted that during her stay with the appellant, she used to meet many persons although even those Crl. Appeal 668-SB of 1998 -8- persons used to keep her under threat.
Though the prosecutrix had deposed that she had not known the appellant prior to the incident but this fact stood contradicted by the written application Ex.PF submitted by complainant Mam Chand before the police on 17.2.1997, on the basis of which FIR Ex.PF/1 was registered. In that application it was specifically stated that the appellant was a band-boy and was his neighbour. Due to that the appellant used to come to his house frequently. It was also stated therein that the prosecutrix after having passed 10th class used to stay in the house. It is, thus, apparent that in order to show that she was not known to the appellant previously that she had deposed before the trial Court to the contrary. Possibility cannot be ruled out that the prosecutrix was acquainted with the appellant and had been a consenting party to the act of sexual intercourse which the appellant had with her. This fact become obvious from the testimony of PW4 Dr. Sunita Sharma who while medico legally examining the prosecutrix found her to be well built young girl with relaxed sound mind. Axiliary hair were present on both sides whereas breasts were well developed. No external mark of injury was seen anywhere on her body expect one mark on right thigh which was 7" x 1" long with red contusion on right side of hip. On vaginal examination, hymen was found to be not intact. No Crl. Appeal 668-SB of 1998 -9- external injury was seen on the genitalia. The vagina admitted two fingers though with difficulty. Merely because there was a red contusion on the right side hip would not mean that the appellant had used force or caused an injury to the prosecutrix in order to subject her to forcible sexual intercourse as duration of the said injury was found to be within 24 hours whereas it was on 14.2.1997 that she was said to have been kidnaped by the appellant and, thereafter, subjected to rape and the medical examination was conducted on 27.2.1997. Moreover, the prosecutrix while appearing before the trial Court as PW5 did not depose that such an injury was caused to her by the appellant.
In view of the aforementioned findings, the conviction of the appellant for the offence under Section 376 IPC cannot be sustained. As regards the offences under Sections 363 and 366 IPC, they are technical in nature as the prosecutrix was less than 18 years of age on the day when she was said to have been kidnapped by the appellant. At the same time from the testimony of the prosecutrix, as referred to above, it can safely be concluded that it was the prosecutrix herself who willingly left the house of her parents and, thereafter, accompanied the appellant from one place to another without raising any alarm despite the fact that she had used the public transportation in the process of moving from one place to another and had even seen or come Crl. Appeal 668-SB of 1998 -10- across a number of persons during the interregnum. Therefore, even the conviction of the appellant for the offence under Sections 363, 366 IPC cannot be upheld.
Resultantly, the appeal is accepted, conviction and sentence of the appellant is set aside and he is acquitted of the charges against him. He is on bail. His bail bonds and sureties shall stand discharged. The amount of fine, if already paid by the appellant, be refunded to him.
( T.P.S. MANN )
July 12, 2010 JUDGE
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