Punjab-Haryana High Court
P__________ (Name Of The Alleged Victim ... vs State Of Haryana on 24 July, 2013
Author: S.S.Saron
Bench: S.S.Saron
CRA NO.D-462-DB OF 2013 -1 -
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA NO.D-462-DB OF 2013
Date of decision: 24.07.2013
P__________ (Name of the alleged victim has been kept secret)
.................Appellant
versus
1. State of Haryana
2. Rakesh son of Ram Kishan, aged 28 years, resident of
Village Kherki, P.S. Manesar, District Rewari.
.............Respondents
CORAM:HON'BLE MR. JUSTICE S.S.SARON HON'BLE MR. JUSTICE S.P.BANGARH Present:-Mr. Mukesh Verma, Advocate for the appellant.
S.P. BANGARH, J First information report in this case was registered on the basis of written complaint Ex.PO of Mahabir son of Siri Ram (father of the appellant) against respondent No.2 (Rakesh). In the complaint Ex.PO, it was alleged by the complainant that he owned a TATA 407 bearing registration No. HR-47A-9161, whereon, Rakesh (respondent No.2) was employed as driver. He (respondent No.2) was having family relations with his family. On 16.03.2010, he (complainant) had gone to Gurgaon with his vehicle and in his absence, during day time, Rakesh (respondent No.2) visited his house and fields located Sunder Sham 2013.08.01 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -2 - in the area of Village Konsiwas. In the night, Sunita (wife of the complainant) went to sleep around 8.00/9.00 p.m. with their three children namely daughter (appellant) aged 17 years, younger son Kamal aged 14 years and youngest daughter aged 11 years. In the morning, when Sunita (wife of the complainant) woke up, she found her daughter (appellant) missing from the house . When she enquired about the driver-Rakesh (respondent No.2), he too was missing. Sunita then informed this incident to the complainant on telephone. Complainant searched his daughter (appellant) with his relatives and at difference places, but she could not be found. Then, he learnt that Rakesh-driver (respondent No.2) after enticing and threatening his daughter (appellant) had taken her away.
Complaint Ex.PO was presented to Prithvi Raj ASI by the complainant at Konsiwas Chowk Bye pass, Rewari on 18.03.2010, where, latter was present alongwith other police officials. He made his endorsement Ex.PU, thereon, and sent the same through Constable Sandeep to Police Station, where formal FIR was recorded. Thereafter, Prithvi Raj ASI alongwith complainant went to the spot and prepared the rough site plan Ex.PV of the place from where the appellant was kidnapped. He also recorded the statement of Sunita mother of the appellant. On 19.03.2010, Prithvi Raj ASI searched for respondent No.2 (Rakesh) in his village Kherki, but he could not be apprehended. On 21.03.2010, complainant visited the police station and, thereafter, Prithvi Raj ASI received a secret information that a boy and a girl were wandering in suspicious Sunder Sham circumstances near the Brass Market, Rewari. 2013.08.01 11:30 Pursuant to this I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -3 - information, he (Prithvi Raj ASI) alongwith complainant, Constable Rakesh and lady Constable Suman reached Brass Market and searched for those boy and girl. On the pointing out of complainant, he apprehended those boy and girl near the water hut constructed on the Bawal Road. He (Prithvi Raj ASI) interrogated the respondent No.2 (Rakesh) and made recovery memo Ex.PS regarding the recovery of the appellant, that was signed by him and attested by the complainant and Constable Rakesh. Both, the appellant and respondent No.2 (Rakesh) were sent to the General Hospital, Rewari for their medico-legal examination alongwith Constable Rakesh and lady Constable Suman Devi. He (Prithvi Raj ASI) also accompanied them. On arrival in the hospital, he submitted applications Ex.PB and Ex.PL respectively to the Medical Officer for getting conducted medico-legal examination of the appellant and respondent No.2 (Rakesh).
After the medico-legal examination of the respondent No.2 (Rakesh), Constable Rakesh had handed over to him a sealed parcel containing underwear of the respondent No.2 (Rakesh) and a sealed envelope, sample seal MKN and copy of the MLR, that were seized by him (Prithvi Raj ASI) vide memo Ex.PR, which was duly signed by him and attested by Constable Rakesh Kumar.
Similarly, after the medico-legal examination of the appellant, lady Constable Suman Devi, handed over to Prithvi Raj ASI, a sealed parcel containing underwear of the appellant, a copy of MLR, swabs, an envelope and sample seal, that were seized vide Sunder Sham memo Ex.PJ, which was signed by Prithvi Raj ASI and attested by 2013.08.01 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -4 - the witnesses. Thereafter, Prithvi Raj ASI took the appellant and respondent No.2 (Rakesh) to village Konsiwas, where the appellant had demarcated and pointed out the Nohara, where she was raped. Prithvi Raj ASI prepared the rough site plan Ex.PW in this regard, that was signed by him. He also recorded the statement of the appellant under Section 161 Cr.P.C and then he handed over the appellant to her parents, vide memo Ex.PI, that was signed by him and attested by the witnesses. Thereafter, Prithvi Raj ASI returned to the police station and deposited the case property with MHC of Police Station Model Town, Rewari with the seals intact, thereon, on the same day and put the respondent No.2 (Rakesh) in the lock up.
On 22.03.2010, the respondent No.2 (Rakesh) was produced in the Court and the statement of the appellant was got recorded from the Magistrate, after moving application Ex.PX. On 05.04.2010, Prithvi Raj ASI recorded the statements of police officials. On 06.04.2010, he got prepared the scaled site plan of the place of occurrence from HC Dharam Pal, Draftsman.
After completion of investigation, Station House Officer of Police Station Model Town, Rewari, instituted police report under Section 173 Code of Criminal Procedure (Cr.P.C-for short) against the respondent No.2 (Rakesh), before the learned Illaqa Magistrate to the effect that it appeared that he has committed offences punishable under Sections 363, 366-A, and 376 of the Indian Penal Code (IPC - for short).
On presentation of police report, copies of documents, as Sunder Sham required under Section 207 Cr.P.C. were furnished to respondent 2013.08.01 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -5 - No.2 (Rakesh) by the learned Illaqa Magistrate, who later committed the case to the Court of Session, that was entrusted to learned trial Court, where charges under Sections 363, 366-A, and 376 IPC were framed against respondent No.2 (Rakesh), whereto, latter pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.
At the trial, the prosecution examined, as many as, 15 witnesses who testified as under: -
PW-1 Dr. Lal Singh tendered in evidence his affidavit Ex.PA to the effect that he conducted the medico-legal examination of respondent No.2 (Rakesh) on the application Ex.PB moved by the police. He also proved the medico-legal report Ex.PC.
PW-2 Niranjan Lal produced the original record pertaining to Secondary Examination certificate of the appellant and proved the copy, thereof, Ex.PD. He testified that the date of birth of the appellant in the certificate is written as 04.01.1993 and copy of the form Ex.PE filled by the appellant for taking the examination was also proved by him.
PW-3 EHC Dharam Pal testified that he prepared the scaled site plan Ex.PF of the place of occurrence, on the direction of Prithvi Raj ASI on 06.04.2010.
PW-4 Lal Chand ASI tendered in evidence his affidavit Ex.PG. He testified that on 21.03.2010, Prithvi Raj ASI deposited the case property with him, that was sent to the Forensic Science Laboratory, Madhuban for chemical analysis through Constable Sunder Sham Vikas Kumar. He also testified that the sealed parcel containing the 2013.08.01 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -6 - case property was kept in intact condition and no one tampered, therewith.
PW-5 Constable Vikas Kumar tendered in evidence his affidavit Ex.PH to the effect that on 01.04.2010, he was handed over sealed parcel by MHC Police Station Model Town and as per his direction, he deposited the same with the Forensic Science Laboratory, Madhuban and on his return, he had given the receipt to MHC.
PW-6 Bharat Bhushan testified that he prepared the final report under Section 173 Cr.P.C against the respondent No.2 (Rakesh).
PW-7 Lady Constable Suman Devi also testified that in her presence on 21.03.2010, Prithvi Raj ASI had recovered the appellant from Brass Market near Bawal Chowk, Rewari and she proved the recovery memo in that regard Ex.PI. She also testified that she had taken the appellant to General Hospital, Rewari for her medico-legal examination. She also testified that, a sealed envelope containing swab etc., another sealed parcel containing underwear of the appellant and the sample seal were handed over to her by the doctor and she handed over these to Prithvi Singh ASI and the latter, seized those vide memo Ex.PJ, that was signed by her.
PW-8 Dr. Anju Yadav tendered in evidence her affidavit Ex.PK and testified that on written request of the police Ex.PL, she conducted medico-legal examination of the appellant and gave her report Ex.PM in this regard. She also testified that the underwear Sunder Sham Ex.P1 was taken from the appellant at the time of her medical 2013.08.01 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -7 - examination, that was sent to Forensic Science Laboratory for chemical analysis in a sealed parcel. She also deposed on the basis of Forensic Science Laboratory report Ex.PN, that possibility of sexual intercourse with the appellant cannot be ruled out as her hymen was ruptured, but she might have taken bath and washed her clothes after the act.
PW-9 Bhisham Kumar ASI testified that on the receipt of ruqa Ex.PO from Prithvi Raj ASI through Constable Sandeep Kumar, he recorded the formal FIR Ex.PQ. He proved his endorsement Ex.PQ/1 on the ruqa Ex.PO.
PW-10 EHC Balwant Singh testified that the special reports of this case were entrusted to him on 18.03.2010, which he delivered to the Area Magistrate and other higher police officers.
PW-11 Constable Rakesh Kumar also testified that in his presence, respondent No.2 (Rakesh) was arrested by Prithvi Singh ASI on 21.03.2010 and he took the respondent No.2 (Rakesh) to the General Hospital, Rewari for his medico-legal examination, where a sealed parcel was given to him by the doctor after examination and that was handed over by him to Prithvi Singh ASI. He also proved his signatures on recovery memo Ex.PS, whereby, the appellant was recovered.
PW-12, appellant, deposed about the entire occurrence to the effect that she was enticed and taken away by the respondent No.2 (Rakesh) and was raped by him.
PW-13 Mahabir (complainant) testified that vide his Sunder Sham complaint Ex.PO, he reported the matter regarding the missing of his 2013.08.01 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -8 - daughter (appellant). He also testified that he received a telephone call from the police that a boy and a girl had been apprehended in Brass Market in suspicious circumstances and he reached at the spot and identified his daughter (appellant), who was recovered vide memo Ex.PJ, which bears his signatures.
PW-14 Prithvi Raj ASI, who conducted the investigation of this case deposed on the lines of investigation that has been reproduced in the earlier parts of this judgment.
PW-15 Ishwar Dutt Sharma, JMIC, Rewari testified that he recorded the statement of the appellant under Section 164 Cr.P.C. and he proved the application given by the police in that regard Ex.PX and the statement Ex.PT. He also proved certificate Ex.PT/1 at the bottom of the statement given by him. Thereafter, prosecution evidence was closed.
After the closure of prosecution evidence, respondent No.2 (Rakesh) was examined under Section 313 Cr.P.C, wherein, he denied the allegations of the prosecution, pleaded innocence and false implication in this case.
Rakesh (respondent No.2) gave his own version that the appellant had left her home with one Deepa wife of Jai Pal Yadav and one Satender son of Jai Narayan on her own free will in order to avoid her marriage with Jitender son of Nihal Singh resident of Village Sudhrana, District Rewari. He further stated that since he had a dispute with the father of the appellant on some money transaction, he was falsely implicated. Sunder Sham 2013.08.01 11:30 Respondent No.2 (Rakesh) was called upon to enter in I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -9 - defence and he examined three witnesses in his defence, who testified as under:-
DW-1 Ishwar Singh testified that respondent No.2 (Rakesh) in partnership with Mahabir (PW-13/complainant) father of the appellant, had purchased a Tata 407 vehicle and he had contributed `1,40,000/-, out of which he had borrowed `70,000/- from PW-13 (Mahabir, father of the appellant). He also testified that the marriage of the appellant with Jitender son of Nihal Singh was fixed for 27.05.2010. He further testified that the appellant had left home, as she was not happy with the said marriage and went to Pilani from where he alongwith the police brought her back on 19.03.2010.
DW-2 Amit Kumar testified that he was the car driver and the appellant had left her home on her own accord with Deepa, Satender and respondent No.2 (Rakesh). He also testified that a middle aged lady from the village had come upto the car to see her off. He further testified that the girl had taken a bag with her and there were total 4 bags with these persons and he had left them to Pilani and they all had seated peacefully and in a friendly way and there was no pressure or threat.
DW-3 Jitender Kumar testified that he was married to the appellant, on 16.01.2011 and produced his marriage card Ex.PX. He further testified that the marriage card Ex.D2 was not the card of his marriage with the appellant, as the date of marriage in that card was written as 27.05.2010. Thereafter, the defence evidence was closed. Sunder Sham 2013.08.01 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -10 - After hearing both the sides, as also, after perusing the evidence and documents on record, the learned trial Court vide impugned judgment dated 22.01.2011, acquitted the respondent No.2 (Rakesh) from commission of offences punishable under Sections 363, 366-A and 376 IPC. Aggrieved, thereagainst, the appellant, an alleged victim, who was prosecutrix, before the learned trial Court has come up in this appeal with prayer for acceptance, thereof, and for convicting and sentencing the respondent No.2 (Rakesh) for the commission of offences punishable under Sections 363, 366-A and 376 IPC.
Learned counsel for the appellant contended that since the latter was below the age of 18 years, she could be taken out from the lawful guardianship of her parents by the respondent No.2 (Rakesh) with their consent and, therefore, he is guilty of commission of offences punishable under Sections 363, 366-A and 376 IPC, as he intended to seduce her. He also contended that if the ossification test of the appellant would have been conducted during investigation, in that event, her age would have been, even less than 16 years and in that scenario, she would not have been capable of giving her consent for sexual intercourse with respondent No.2 (Rakesh).
Learned counsel for the appellant also contended that the latter was under the constant threat of respondent No.2 (Rakesh), therefore, she did not raise hue and cry, while in his company and, therefore, mere non-raising of hue and cry by the appellant for her emancipation, shall not make her a consenting party to the sexual Sunder Sham intercourse, that had been admittedly, performed by the respondent 2013.08.01 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -11 - No.2 (Rakesh) upon her, as can be seen from the evidence of PW-8 (Dr. Anju Yadav), who testified that there was fresh rupture of hymen. So, the learned counsel for the appellant contended that the latter was abducted by respondent No.2 (Rakesh) and was exploited sexually without her consent, therefore, the respondent No.2 (Rakesh) is liable to be convicted and sentenced for commission of offences punishable under Sections 363, 366-A and 376 IPC.
Learned counsel for the appellant also contended that the impugned judgment dated 22.01.2011 may be set aside and the respondent No.2 (Rakesh) may be convicted and sentenced for commission of offences (supra).
We have given our thoughtful consideration to the contentions raised by the learned counsel for the appellant, as also perused the evidence and documents placed on the record of the learned trial Court with his assistance. So far as the age of the appellant is concerned, the prosecution has placed reliance upon her secondary examination certificate Ex.PD, that has been proved by PW-2 (Niranjan Lal), wherein, her date of birth is written as 04.01.1993. This document has been relied upon by the appellant herself and now this document alone can be used for describing her age. As per this certificate, on the date of alleged occurrence, appellant was 17 years and 2 1/2 months old.
Learned counsel for the appellant contended that if the latter would have been subjected to ossification test, in that event, her age would have been less than 16 years. This contention does Sunder Sham not hold good, as it was for the investigating agency to see, as to 2013.08.01 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -12 - whether ossification test of the appellant for determination of her age was to be got conducted or not. When once they have not chosen to do so, for determination of her age, only her secondary examination certificate Ex. PD can be taken into consideration. As already observed that on the day of alleged occurrence, appellant was 17 years and 2 1/2 months old, as per her secondary examination certificate Ex.PD. Therefore, she was capable of giving her consent for consensual sex with respondent No.2 (Rakesh). From the facts and circumstances of the case, it is candid that she was a consenting party.
She (appellant) herself appeared as PW-12 and her father Mahabir appeared as PW-13. As per their version, respondent No.2 (Rakesh) was working as driver, therefore, he was not stranger. According to PW-13 (Mahabir), respondent No.2 (Rakesh) was driver with him. According to PW-12 (appellant), respondent No.2 (Rakesh) used to do electric motor binding in her house. Even, PW-13 (Mahabir) father of the appellant, admitted that the respondent No.2 (Rakesh) had been living in his house for the last about 4-5 years and as per his deposition, respondent No.2 (Rakesh) earlier, used to do electrical repair work in his house, but after purchasing the vehicle, he became driver, thereon. PW-13 (Mahabir) also testified that sometime respondent No.2 (Rakesh) used to stay in the shop and sometime, he used to go home. So, as per this testimony of PW-13 (Mahabir), respondent No.2 (Rakesh) was living with PW-13 (Mahabir) for the last 4-5 years prior to the occurrence. Sunder Sham 2013.08.01 11:30 Pronto after the recovery of the appellant, her statement I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -13 - Ex.D1 was recorded by the police under Section 161 Cr.P.C. Later, she was produced before the Magistrate, on 22.03.2010 and her statement Ex.PT, under Section 164 Cr.P.C. was also recorded by the Sh. Ishwar Dutt Sharma, JMIC, who appeared as PW-15. In her statement under Section 161 Cr.P.C, Ex.D1, she (appellant) stated that on 16.03.2010, she alongwith her mother, sister and brother was sleeping in her house when in the night at about 11.00 p.m. Rakesh (respondent No.2) came to her, enticed and threatened her and first he took her to their 'nohra' adjacent to their house, where he forcibly raped her by gagging her mouth and then enticed her and took her to Pilani, where also in the hotel, he used to rape her daily.
In her statement Ex.PT under Section 164 Cr.P.C, the appellant had given different version, wherein, she deposed that in the night of 16.03.2010, she was sleeping in the room in their house alongwith her mother, brother and sister and in the night at about 11.00 p.m. Rakesh (respondent No.2) came and made her mother to smell some substance and forcibly picked her up and brought her out and put her in a vehicle and took her to Pilani. She also stated that the driver of the vehicle left them at Pilani and went away and respondent No.2 (Rakesh) took her to hotel, where she was raped. She further stated that they stayed in the hotel for four days and when, thereafter, they came to Bawal chowk by bus, police apprehended them. She also stated that while she accompanied her father, the respondent No.2 (Rakesh) was taken away by the police.
The statements got recorded by the appellant before the Sunder Sham police Ex.D1 and before the Magistrate, Ex.PT are contradictory to 2013.08.01 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -14 - each other regarding the manner in which she was kidnapped and the place where she was raped by the respondent No.2 (Rakesh) for the first time. In her deposition, as PW-12, she did not state that her mother was sleeping in the same room, wherein, she was sleeping. It is not her deposition that respondent No.2 (Rakesh) had made her mother to smell some substance and picked her forcibly and brought her out and put her in a vehicle. In her examination-in-chief, she also did not depose that respondent No.2 (Rakesh) had taken her to 'nohra' near the house, where she was raped. She testified that respondent No.2 (Rakesh), who was the driver on the vehicle of her father (PW-13) enticed her and raped her and took her to Pinali.
During cross-examination, appellant came out with another story with regard to her abduction. She testified that there are two rooms in their house. She and her brother were sleeping in the verandah of the house. The main gate of the house was bolted from inside, but the rest of the house was open and the respondent No.2 (Rakesh) had come down from the roof top through staircase. She further testified that the respondent No.2 (Rakesh) woke up her and gave a threat of killing her, whereon, without raising any resistance, she accompanied him and he (respondent No.2) took her inside the nohra where he raped her. She did not mention a word about her mother, but stated that her 11 years old sister was sleeping on a separate cot.
On three occasions, the appellant gave different versions about the incident that had taken place on the night of 16.03.2010. It Sunder Sham is highly improbable that respondent No.2 (Rakesh) would have 2013.08.01 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -15 - forcibly taken away the appellant from her house, when she was sleeping inside her house with her mother and other family members and the outer gate was bolted from inside. If the respondent No.2 (Rakesh) had abducted her and the appellant would not have been a consenting party, in that event, she would have raised hue and cry, that would have woken up her mother, brother and sister, as also, the neighbourers.
We fail to understand as to why the appellant at the time of her alleged abduction did not raise hue and cry in her own house, especially when respondent No.2 (Rakesh) was not carrying any weapon. Her story to the effect that respondent No.2 (Rakesh) had made her mother to smell some intoxicant is not revealed in the complaint Ex.PO made by Mahabir (PW-13) father of the appellant. Even, PW-13 (Mahabir) did not depose on these lines in the Court. Appellant herself while appearing, as PW-12 also did not state so. Though, it was stated by her in the statement under Section 164 Cr.P.C., Ex.PT.
When the respondent No.2 (Rakesh) was not armed any weapon, then why the appellant did not raise hue and cry, when she was taken toward 'nohra' for alleged commission of rape by the respondent No.2 (Rakesh). Even, that place is surrounded by the residential houses from both the sides and if, the appellant would not have been consenting party in this sexual act, obviously she would attracted the people around by raising hue and cry. Her silence on this matter of alleged rape, whereon, she should have acted with Sunder Sham utmost alacrity, is indeed intriguing and causes considerable doubt in 2013.08.01 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -16 - her testimony to the effect that she was abducted and subjected to sexual intercourse by respondent No.2 (Rakesh), firstly in nohra and then abducted her for seduction at Pilani.
Even, PW-13 (Mahabir) father of the appellant deposed that distance between his house and nohra is about 3-4 feet. He also testified that Ratti Ram, Bhim Singh and Mange Ram etc are his brothers. There is common chowk of all the houses. There is a boundary wall of the nohra, which was about 3 feet in height. There is no gate at the nohra and there are two rooms, therein, having no door.
We fail to understand as to why the appellant went out of her house during night time after crossing the houses of aforementioned persons on the asking of respondent No.2 (Rakesh) at about 11.00 p.m. This is an indication of consensual sex having been performed by the appellant with respondent No.2 (Rakesh) at 11.00 p.m. before her alleged abduction.
It is also unbelievable that the respondent No.2 (Rakesh) would have gagged her mouth with a cloth before her alleged rape in nohra, as she did not state so, in her statement Ex.PT under Section 164 Cr.P.C. before the Magistrate (PW-15), as also, at the time of her deposition during trial. It is in her testimony that from nohra, she was brought to a vehicle standing at some distance, wherein, she was brought to Pilani. According to her, this car/vehicle was driven by a driver up to Pilani.
We fail to understand as to why she did not raise hue and Sunder Sham cry during her journey from her house to a hotel at Pilani and why 2013.08.01 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -17 - she did not tell the driver that she is being abducted. Even she did not disclose the registration number of the vehicle, wherein, she allegedly travelled from her house to a hotel at Pilani with respondent No.2 (Rakesh). For coming to the vehicle from nohra, she crossed the street on whose both sides, there were residential houses, but she did not raise hue and cry to attract the persons from vicinity for her alleged emancipation from the alleged custody of respondent No.2 (Rakesh).
It is not her case that the respondent No.2 (Rakesh) and driver of the vehicle had a weapon with them to frighten her. It is not her case that some force was used upon her, while she was traveling in car. When no force was being used by the respondent No.2 (Rakesh), and the driver of the car, that indicates that she was going in that car with her own free will, obviously for having consensual sex with respondent No.2 (Rakesh).
If the appellant would have been below 16 years of age, in that event, it could be held that her consent was immaterial, now when she was above the age of 16 years of age, she was free to have consensual sex. The respondent No.2 (Rakesh) could be held guilty, for abduction and seduction, if he had performed sexual intercourse with the appellant against her wish. The facts and circumstances of the case indicates that she was a consenting party and she left her house at her own free volition and since she performed consensual sex with respondent No.2 (Rakesh) at nohra with her own consent and she wanted to have consensual sex with Sunder Sham respondent No.2 (Rakesh), it cannot be held that it was the 2013.08.01 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -18 - respondent No.2 (Rakesh), who had taken her away from the lawful custody of her parents.
The respondent No. 2 (Rakesh) could be held guilty for commission of offence punishable under Section 366-A IPC, if he had abducted her for seduction. In this case seduction was not there and it was the appellant herself, who had consensual sex with respondent No.2 (Rakesh). It may be mentioned here that the appellant and respondent No.2 (Rakesh) both stayed in a room for four days in a hotel at Pilani. Even, there, she did not make any effort to run away or complain to the hotel staff, that she has been abducted and raped. In the hotel, she had occasion to flee or to raise hue and cry to attract the people working in the hotel for her alleged emancipation from the alleged unlawful custody of respondent No.2 (Rakesh).
The matter did not end her. As per version of the appellant, she alongwith respondent No.2 (Rakesh) came to Rewari in a bus when the money exhausted. If, the money would have been with the appellant and respondent No.2 (Rakesh), they would have stayed in the hotel or at any other place for more days for sensual pleasure. In her statement Ex.D1, appellant stated that respondent No.2 (Rakesh) had telephoned his friend for giving him money and while they were waiting for him near Bawal crossing, police stopped them and nabbed them. Even in the Bawal crossing, where appellant and respondent No.2 (Rakesh) were spotted by the police, the appellant did not raise hue and cry about her alleged abduction and rape. Sunder Sham They were waiting for the friend of respondent No.2 (Rakesh) to give 2013.08.01 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -19 - them money for their further expenditure.
Even the appellant deposed that distance between the hotel and the bus stand of Pilani was about 1 km. She admitted that during day time, there were many people standing at the bus stand including police officials when they boarded the bus. Again, she did not raise hue and cry to attract the passers-by and the police officials for her alleged emancipation from the alleged unlawful custody of respondent No.2 (Rakesh). During her journey from Pilani to Bawal chowk in a bus, she did not share with any of the passenger traveling in the bus that she was abducted and raped. In the bus, there was no fear to the appellant and the respondent No.2 (Rakesh) was not carrying any weapon. If she had raised hue and cry there in the bus that she was abducted and raped, in that event, passengers in the bus would have nabbed the respondent No. 2 (Rakesh) and handed him over to the police.
Even, PW-7 (Sunita Devi) Lady Constable, who was present at Brass Market near Bawal crossing, testified that when the appellant was recovered, she was carrying a blue coloured bag, that was full of lady clothes. It reveals that the appellant had left her home after making preparation for staying out of house for number of days. If, she had not accompanied the respondent No.2 (Rakesh) at her own volition, in that event, she would not have carried her clothes in a bag, that she was carrying at the time of her recovery from the company of respondent No.2 (Rakesh).
From the facts and circumstances, it appears that the Sunder Sham marriage of the appellant was to be solemnized on 27.05.2010 with 2013.08.01 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -20 - Jitender Kumar son of Nihar Singh, resident of Village Sudhrana, as can be seen from the wedding card Ex.D2, which has been proved by DW-1 (Ishwar Singh), who happened to be a common relative of appellant and respondent No.2 (Rakesh). Even, Jitender Kumar supra was brought to the box as DW-3, who admitted that he has been married to the appellant and he placed on record another card Ex.PX. He testified that he had been married to the appellant on 16.01.2011.
Testimony of DW-1 (Ishwar Singh) must be believed and it must be held that marriage of the appellant with DW-3 (Jitender Kumar) was fixed for 27.05.2010. It appears that she was not happy with this marriage and therefore, she eloped with respondent No. 2 (Rakesh) at her own volition and benefit of doubt was therefore, required to be given to the respondent No.2 (Rakesh) by the learned trial Court.
Reliance can be placed upon Sagar Kumar v. State of Haryana; 2011 (1) RCR (Criminal) 620; passed by this Court, wherein the prosecutrix was 18 years of age at the time of occurrence and she was consenting party and it was held that offences under Sections 363, 366 and 376 are not made out against the appellant.
Reliance can also be placed upon State of Punjab v. Suresh; 2007 (4) CCR 310; passed by this Court, wherein, the age of prosecutrix was more than 16 years at the time of alleged occurrence. There was nothing on the record to show that she was Sunder Sham 2013.08.01 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -21 - ever threatened with death, injury or dire consequences in case of her refusal. It was held that during journey, ample opportunities might have come where it may have been possible for prosecutrix to raise hue and cry, if she was being detained forcibly. She never tried to narrate her plight to companion passengers or contact police officials, who might be available at bus stand or railway station during journey. It was held that the prosecution has failed to prove guilt of accused and no case was made out to interfere in findings, recorded by the trial Court.
Reliance can be placed upon Bhagwant Singh v. State of Punjab; 2004 (1) RCR (Criminal) 719; passed by this Court, wherein, the prosecutrix was 17 years of age. There was allegation of kidnapping against the accused. There was no evidence that prosecutrix was forced to have intercourse with another person. Offence under Section 366-A IPC was not made out. It was held that there was allegation of kidnapping, but there was no evidence that the kidnapping was on threat of murder. Accused had no deadly weapon with him. Evidence showed that she had love affair with accused. It was held that the prosecutrix was consenting party.
In S. Varadarajan v. State of Madras, AIR 1965 SC 942; it was held by the Hon'ble Supreme Court of India that taking or enticing a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. However,when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) and Sunder Sham from the house of the relative of the father where she is kept, herself 2013.08.01 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -22 - telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the Sub-Registrar's Office where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused, but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have "taken" her out of the keeping of her lawful guardianship, that is the father in the said case.
The Himachal Pradesh High Court in Kamal Singh v. The state of H.P., 1985 (1) Crimes 151 considered the case where there was some intimacy between prosecutrix and the appellant in the said case and the prosecutrix was willing and active agent in her enticement and she accompanied the accused of her own accord while her parents were asleep, it was held that even though the prosecutrix was below 18 years would not be material. The accused, therein, was acquitted.
The Hon'ble Supreme Court of India in Allarakha K. Mansuri v. State of Gujarat, 2002 (1) RCR (Criminal) 748, held that wherein, in a case, two views are possible, the one which favours the accused has to be adopted by the Court.
Reliance was also placed upon this judgment, by this Court in State of Punjab v. Suresh; 2007 (4) CCR 310; wherein, the Sunder Sham 2013.08.01 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -23 - judgment of acquittal of the accused passed by the trial Court was upheld on the ground that the age of the prosecutrix was more than 16 years at the time of alleged occurrence. There was nothing on the record to show that she was ever threatened with death, injury or dire consequences in case of her refusal. It was also held that during journey ample opportunities might have come where it may have been possible for prosecutrix to raise hue and cry, if she was being detained forcibly. It was held that she never tried to narrate her plight to companion passengers or contact police officials, who might be available at Bus Stand or Railway Station during journey. It was held that no case is made out to interfere in findings, recorded by the learned trial Court.
In the case of State of Punjab v. Suresh (supra), reliance was placed upon State of Punjab v. Hansa Singh; 2001 (1) RCR (Criminal) 775; wherein, while dealing with an appeal against acquittal, it was opined as under: -
"We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991 (1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a difference view, could not be a reason calling for interference."
This Court in State of Haryana v. Shashi Kant @ Bam Bam @ Lambu; 2010 (1) RCR (Criminal) 338; upheld the acquittal Sunder Sham 2013.08.01 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -24 - of the accused, as the prosecutrix went to the house of the respondent in village Siwah and from there, she went to Bihar. On the way, she never made any grievance to any one. Both of them moved about freely, in public, by public transport before being intercepted at Delhi. It was held that the conduct of the prosecutrix voluminously speaks for itself that she accompanied the respondent on her own and had consensual intercourse with him.
The Hon'ble Supreme Court of India in Kuldeep K. Mahato v. State of Bihar; 1998 (3) RCR (Criminal) 799; acquitted the accused of offence under Section 376 IPC, on the ground that accused and prosecutrix lived nearby. Prosecutrix stated that accused met her in bazar, forced her to sit in Tempo at point of dagger and took her to a village where she was raped. There were no injuries on the body or private parts of the prosecutrix. She was not put in physical restraint in the house in village. She had opportunity to run away and could take help of neighbours. It was held that the prosecutrix was a consenting party and accused was acquitted of the offences under Sections 376 and 366 IPC.
The Hon'ble Supreme Court of India in Alamelu and another v. State representative by Inspector of Police; 2011 AIR (SC) 715; acquitted the the appellants, in case under Sections 376, 366 and 363 IPC on the ground that prosecutrix stayed away with the accused for six days but did not make any complaint on so many occasions when she had the opportunity to do so. She had also opportunities to run away but she did not. Prosecution failed to prove Sunder Sham 2013.08.01 11:30 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh CRA NO.D-462-DB OF 2013 -25 - that prosecutrix was minor at the time of abduction.
The case of Keshar Singh v. State of Haryana, 2005 (4) Criminal Court Cases 269 (P&H) is inconsequential to the appellant, as in this case prosecutrix was below 16 years of age, but in the case in hand, the appellant (prosecutrix) was 17 years and 2-1/2 months old at the time of alleged occurrence and therefore, she was free to have consensual sex with respondent No.2 (Rakesh) and when her parents dissuaded her, she eloped with respondent No.2 (Rakesh) at her own volition, as her parents, who were her lawful guardian, obviously could not accord such permission to her to accompany respondent No.2 for having consensual sex with him.
Thus the principle laid down in the aforementioned judgments is favourable to respondent No.2 (Rakesh), it follows that the appellant herself was a consenting party and, therefore, the learned trial Court rightly acquitted the respondent No.2 (Rakesh) by according him benefit of doubt, vide impugned judgment dated 22.01.2011.
There is, thus, no illegality or impropriety in the impugned judgment dated 22.01.2011, that is upheld and affirmed.
Resultantly, the appeal being devoid of merit ought to be and is, hereby, dismissed.
(S.P. BANGARH) (S.S. SARON)
JUDGE JUDGE
24.07.2013
sham
Sunder Sham
2013.08.01 11:30
I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court,
Chandigarh