Punjab-Haryana High Court
Om Pal vs State Of Haryana on 29 September, 2010
Author: T.P.S.Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 437-SB of 1996
Date of Decision : September 29, 2010
Om Pal
....Appellant
Versus
State of Haryana
.....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present: Mr. Amarjit Singh Virk, Advocate
Ms.Hem Lata Balhara, Assistant Advocate
General,Haryana
T.P.S.MANN, J.
The appellant is aggrieved of the judgment and order passed by Sessions Judge, Kurukshetra on 7.3.1996 whereby he was convicted for the offences under Sections 363, 366 and 376 IPC and sentenced as below:-
a) Rigorous imprisonment for three years and fine of Rs.250/- for the offence under Section 363 IPC and in default of payment of fine to undergo further rigorous imprisonment for one month;
Cr. Appeal No. 437-SB of 1996 -2-
b) Rigorous imprisonment for five years and fine of Rs.350/- for the offence under Section 366 IPC and in default of payment of fine to undergo further rigorous imprisonment for one and half months; and
c) Rigorous imprisonment for seven years and fine of Rs.500/- for the offence under Section 376 IPC and in default of payment of fine to undergo further rigorous imprisonment for two months.
All the substantive sentences were ordered to run concurrently.
The appellant was alleged to have kidnapped the prosecutrix, aged about 15 years, on 10.4.1995 in the area of village Umri from the lawful guardianship of her father Piare Lal with an intent to seduce her to illicit intercourse and also to commit rape upon her. The case, as set up by Piare Lal in the FIR, was that he was resident of Umri and doing the work of labourer. He had four sons and two daughters and his eldest son Dharam Pal was aged about 22 years followed by Baljit, Maya Devi, the prosecutrix, aged about 15 years, Surender and Raj Pal. Close to his Dera, appellant Om Pal was residing in Sector No.3 and used to sell vegetables by plying a Rehri. Cr. Appeal No. 437-SB of 1996 -3- The appellant had been visiting their Dera, for the purpose of selling vegetables. On 10.4.1995 by inducing the prosecutrix aged about 15 years, the appellant took her away from his residence and since that day had not come to his Dera. The complainant had full suspicion that Om Pal had abducted the prosecutrix and despite his searching for his daughter he could not trace her out. On the statement of Piare Lal, FIR No. 144 dated 25.4.1995 was registered at Police Station Sadar, Thanesar, for offences under Sections 363 and 366 IPC. During investigation, the police arrested the appellant and recovered the prosecutrix. Statements of witnesses were recorded. Offence under Section 376 IPC was added to the FIR.
Upon conclusion of investigation, presentation of challan and commitment of the case, the appellant was charged for the aforesaid offences, to which he pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW1 Dr.Sushma Saini, who conducted medico legal examination of the prosecutrix, PW2 Dr. T.P.Nagar, who medico legally examined accused Om Pal, PW3 Dr. P.K.Gupta, who radiologically examined the prosecutrix , PW4 Mukesh Kumar, Draftsman, PW5 Piare Lal, author of FIR and father of the prosecutrix , PW6 HC Kamal Kumar, PW7 Constable Deepak Kumar, PW8 ASI Ramesh Chand, PW9 ASI Subhash Chander, PW10 the prosecutrix and PW11 ASI Simru Ram. Cr. Appeal No. 437-SB of 1996 -4-
The case of the accused in his statement under Section 313 of the Code of Criminal Procedure was that he had performed marriage with the prosecutrix in a temple in the area of village Umri and they were living as husband and wife and father of the prosecutrix namely, Piare Lal wanted to marry her else where and it was at his instance that a false case was registered against him. In defence, the accused examined Adil Hussain as DW1.
The trial Court held that the prosecutrix was below 16 years of age at the time of commission of offence. The evidence of the prosecutrix was clinching that she never consented to have intercourse with the accused and she was taken to different places under threat by the accused. Accordingly, the accused was convicted and sentenced, as mentioned above.
I had heard learned counsel for the parties and perused the evidence with their able assistance.
While lodging FIR Ex. PJ, complainant Piare Lal had stated that the prosecutrix was about 15 years of age. When the prosecutrix was medico-legally examined on 2.8.1995, PW1 Dr. Sushma Saini recorded her age as 15 years. The prosecutrix was, thereafter, radiologically examined on 8.8.1995 by PW3 Dr. P.K.Gupta and in his opinion her age was 15 to 17½ years. While appearing as PW5, complainant Piare Lal deposed that the prosecutrix was aged Cr. Appeal No. 437-SB of 1996 -5- about 14 years. When the prosecutrix stepped into the witness box as PW10, she stated her age as 15 years. However, no attempt was made by the prosecution to obtain the birth certificate of the prosecutrix from the civil authorities.
The trial Court believed the statements of the prosecutrix and her father as well as that of PW1 Dr. Sushma Saini when they stated that the prosecutrix was 14/15 years of age at the time of the occurrence. The opinion given by PW3 Dr. P.K.Gupta regarding determining the radiological age of the prosecutrix as 15 to 17½ years was believed to conclude that the age of the prosecutrix was 15 years as the said witness was never cross-examined by the accused. PW3 Dr. P.K.Gupta had given the range of the age of the prosecutrix on the date of the occurrence. Once an opinion had been expressed that she could be of 17½ years also, the prosecution cannot, thereafter, claim that the age of the prosecutrix was only 15 years and not 17½ years. Under these circumstances, this Court would extend the benefit to the appellant to hold that the prosecutrix could be 17½ years of age on the date of the occurrence. In any case the prosecution has not been able to establish that the prosecutrix was less than 16 years of age.
It has come in the evidence that on the day of occurrence at about 9.00 p.m. when the prosecutrix was returning home after answering the call of nature, the appellant met her and told her that her Cr. Appeal No. 437-SB of 1996 -6- brother was seriously ill at Umri chowk. The appellant asked the prosecutrix to accompany him to that place. At Umri chowk, the prosecutrix did not find her brother Dharam Pal. The appellant then took her near an oil factory and in front of the said oil factory and in the pits, he committed rape upon her. According to her, the appellant did it with her consent. However, she corrected herself to state that the appellant had taken her per force near the oil factory and committed rape upon her against her will and wish. The appellant then took her near a hotel from where they boarded the bus for Delhi. From Delhi, they went to Chhibui, native village of the appellant. The appellant took her to the house of his sister. Thereafter, she was taken by the appellant to Bareilly and from Bareilly brought back to Delhi. She was recovered by the police from a house at Delhi, which was taken on rent by the appellant. He had taken her from place to place against her consent and desire and by using force. However, while she was kept in the rented house at Delhi, she was recovered by the police, which raided there in the company of her father. In cross-examination, she admitted photograph Ex.D1 wherein she was shown posing alongwith the appellant but according to her, it was got prepared by the appellant by threatening her and putting her under duress. She had, however, not told to the police officer, who had recorded her statement that the appellant had forced her to have a photograph with him. She further stated that while she was kept in the native village of the appellant, his Cr. Appeal No. 437-SB of 1996 -7- sister used to accompany her whenever she went out to answer the call of nature. Some times mother of the appellant would accompany her for the said purpose. However, she did not tell the mother and sister of the appellant about having been raped by the appellant as he had threatened her with dire consequences. She had stayed with the appellant at Bareilly for a period of 2½ months in a rented house where the appellant got some job and he used to go in the morning and return in the evening. At Bareilly also, she did not inform any one as she was under threat from the appellant. She also stated that as and when any one enquired from her as to whether she was the wife of the appellant, she would reply in affirmative on account of the threat extended by the appellant.
From the deposition of the prosecutrix made before the trial Court, it is clearly made out that she had willingly accompanied the appellant from place to place. Though she had opportunity to escape from Bareilly where the appellant had taken some job and had been going to his place of work every day, she did not do so nor informed any one about having been kidnapped by the appellant or rape committed upon her by him. Her explanation that the appellant had threatened her with dire consequences in case she informed any one about her kidnapping and subjected to sexual intercourse, is highly improbable. She even had the occasion to accompany the sister and the mother of the appellant whenever she went out to answer the call of Cr. Appeal No. 437-SB of 1996 -8- nature while she was kept by the appellant at his native village in Uttar Pradesh. It is true that the sister and mother of the appellant would have soft corner for him in case they had learnt that the prosecutrix was being subjected to sexual intercourse, they would have atleast expressed resentment and insisted upon the appellant to restore the person of the prosecutrix to her father.
The prosecutrix, during her cross-examination, admitted that she alongwith the appellant had posed for a photograph Ex.D1. A simple look at the photograph Ex.D1 would reveal that the prosecutrix was comfortable in the company of the appellant and in any case accompanying him from one place to other out of her own sweet will. This assumes significance in view of her stand that she always claimed herself to be the wife of the appellant. Her explanation that she had been doing so on account of the threat extended by the appellant cannot be accepted. Infact, whatever she did right from the time when she was said to have been kidnapped by the appellant, subjected to rape and her ultimate recovery by the police, her explanation was that she had been threatened by the appellant. She had been moving from one place to other and even using public transport for doing so. She had ample time to alert the persons around her about having been kidnapped or subjected to sexual intercourse by the appellant but she did not do so. All this is sufficient to conclude that the prosecutrix was willingly accompanying the appellant from one place to other and was Cr. Appeal No. 437-SB of 1996 -9- also a consenting party to the sexual intercourse, which she had with the appellant.
As regards the offences under Sections 363 and 366 IPC, it may be noticed that as per the radiological examination conducted on 8.8.1995, the age of the prosecutrix could be upto 17½ years. According to the FIR as well as the statement of PW5 Piare Lal, the prosecutrix went out to answer the call of nature on 10.4.1995 at about 9.00 p.m. and did not return, thereafter. According to the prosecutrix when she was returning after answering the call of nature, the appellant met her and told him that her brother Dharam Pal was seriously ill at Umri chowk. He asked her to accompany him to that place. Instead of first going to her house and informing her father about what had been told to her by the appellant, she willingly accompanied him. Therefore, it cannot be said that she was kidnapped from the lawful guardianship of her father. She further stated that when she did not find her brother Dharam Pal at Umri chowk, the appellant took her near an oil factory and after going in the pits, he committed rape upon her. This thing was done with her consent. In the same breath, she corrected herself that the appellant had raped her against her will and wish. The first part of her statement that the appellant had sexual intercourse with her with her consent was her spontaneous reply and, therefore, cannot be easily brushed aside. Possibility cannot be ruled out that she had consented to accompany the appellant for having sex Cr. Appeal No. 437-SB of 1996 -10- with him.
In view of the above, the conviction of the appellant for the offences under Sections 363 and 366 IPC also cannot be sustained.
Resultantly, the appeal is accepted, impugned judgment of conviction and sentence is set-aside and the appellant is acquitted of the charges against him.
( T.P.S.MANN )
September 29, 2010 JUDGE
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