Punjab-Haryana High Court
Raj Kishore @ Ramu vs State Of Haryana on 29 April, 2011
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal S-401-SB of 2000
Date of Decision : April 29, 2011
Raj Kishore @ Ramu
....Appellant
Versus
State of Haryana
.....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Rahul Vats, Advocate
Mr. Raja Sharma, Assistant Advocate General, Haryana.
T.P.S. MANN, J.
Vide judgment and order dated 8.1.2000, learned Additional Sessions Judge, Faridabad convicted the appellant under Section 363 IPC and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs.2,000/-. He was further convicted under Section 366 IPC and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.2,000/-. He was also convicted under Section 376 IPC and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.2,000/-. Substantive sentences were ordered to run concurrently.
Crl. Appeal S-401-SB of 2000 -2-
Against his conviction and sentence, the appellant filed the present appeal in which he is on bail.
The prosecution case, as set up against the appellant, was that on 15.4.1998, complainant Gian Parkash's two daughters, aged 16 years (hereinafter referred to as 'the prosecutrix') and 12 years went to school. While the younger daughter returned home, the prosecutrix did not return. He searched for her besides making a report to the police. Suspecting that the appellant, who was his tenant earlier, might have enticed/allured her, the complainant submitted application Ex.PL to the police on 18.4.1998 on the basis of which FIR Ex.PJ/2 was registered under Sections 363 and 366 IPC.
During investigation, the prosecutrix was recovered from the custody of the appellant on 19.5.1998. On the basis of her statement and her medical examination, Section 376 IPC was also added to the heading of the FIR. The appellant was arrested.
Upon completion of investigation, followed by presentation of challan and commitment of the case, the appellant was charged for the aforesaid offences. He pleaded not guilty and claimed trial.
After examining four of its witnesses, the prosecution submitted an application under Section 319 Cr.P.C. for summoning Hari Shanker as an additional accused. Subsequent to his appearance, both the accused were charged for the offences under Sections 363 and 366 Crl. Appeal S-401-SB of 2000 -3- IPC. The appellant was also charged under Section 376 IPC. They pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW1 Dr.S.K.Mittal; PW2 Smt. Kamla Devi, HC; PW3 Ashok Kumar, Draftsman; PW4 the prosecutrix; PW5 Dr. Beena Sharma, Medical Officer, B.K.Hospital, Faridabad; PW6 Roop Lal, Constable; PW7 Kayam Singh, Head Constable; PW8 ASI Ramesh Kumar; PW9 Jarnail Singh, SI; PW10 Smt. Sheela Devi wife of Gian Parkash; PW11 Gian Parkash; PW12 Smt. Sushil Wadhawan, Principal, Government Girls Senior Secondary School; PW13 Uday Parkash and PW14 Ram Saroop, ASI. Constable Jaibir was given up being unnecessary. FSL report was tendered as Ex.PK/1.
When examined under Section 313 Cr.P.C., the appellant and his co-accused denied the prosecution allegations and pleaded false implication.
In defence, both the accused examined DW1 Hanuman Parsad, Statistical Assistant, Civil Surgeon Office, Faridabad and DW2 Sh.T.R.Sharma, Principal, Shakti Vidhya Niketan High School, Faridabad.
After hearing learned counsel for the parties and going through the evidence, the trial Court came to the conclusion that the prosecutrix was just of the age of 14 years 4 months and 16 days on the Crl. Appeal S-401-SB of 2000 -4- date of occurrence and it was the appellant, who kidnapped her from the lawful guardianship of her parents without their consent with the intent that she might be compelled to marry him and also to have sexual intercourse with him. Accordingly, the appellant was convicted for the offences charged, as mentioned above. However, Hari Shanker, co- accused of the appellant, was acquitted of the offences under Sections 363 and 366 IPC.
It was the prosecution case in the FIR itself lodged at the instance of father of the prosecutrix, that the prosecutrix was aged 16 years. When she was medico-legally examined by PW5 Dr. Beena Sharma, she was noticed as 16 years old female. Her both breasts were well developed. Labia minora and majora were also well developed. Hymen was torn irregularly. Vagina admitted two fingers easily. When the prosecutrix deposed before the trial Court as PW4 about 6/7 months after the occurrence, she gave her age as 16 years. However, when she was recalled for further examination after the summoning of Hari Shanker accused, she stated that she was 15 years' old. PW10 Sheela Devi, mother of the prosecutrix, deposed before the trial Court that the prosecutrix was aged about 15/16 years. Similar was the statement of PW11 Gian Parkash. In the school record, which was proved by PW12 Sushil Wadhawan, Principal, her date of birth was found recorded as 29.11.1983. In cross-examination, PW12 Sushil Wadhawan stated that the entry regarding the date of birth of the prosecutrix was made on the Crl. Appeal S-401-SB of 2000 -5- basis of the previous school leaving certificate but the school was not in possession of the said previous record. PW13 Uday Parkash, uncle of the prosecutrix, deposed that the prosecutrix was 15/16 years' old. The defence examined DW2 T.R.Sharma, Principal, who proved entry Ex.DH from the original record regarding admission of the prosecutrix where her date of birth was mentioned as 29.11.1982.
In addition to the above, there was the testimony of the prosecutrix as PW4 when she deposed in her cross-examination that her statement was recorded before the Magistrate on 20.5.1998 although she went on to explain that the statement was made under the pressure of the police and her parents. Statement dated 20.5.1998 is available on the record as Ex.DE. A perusal of the same would show that the prosecutrix had given her age therein as 18 years.
In view of the evidence available on the file, the trial Court was not justified in placing sole reliance upon the school leaving certificate Ex.PK and to hold that the prosecutrix was 14 years 4 months and 16 days old on the date of the occurrence, i.e. 15.4.1998. On the other hand, this Court finds that the prosecution has not been able to establish that the prosecutrix was less than 16 years of age on the date of the occurrence. Evidence is available on the record to indicate that she was more than 16 years of age.
On going through the testimony of the prosecutrix as PW4, Crl. Appeal S-401-SB of 2000 -6- it appears that she had been a consenting party to the sexual intercourse. She deposed that the appellant, who was a tenant in a room of her house, used to have funny talks with her. He had told her that he would take her to Lucknow. On 4.4.1998 though the appellant committed rape upon her in a house of Hari Shanker accused in Sector 16, Faridabad yet she had consented for the same. She did not disclose about the incident to her parents. She again met the appellant on 15.4.1998 in the market of Old Faridabad from where he took her to the village of Hari Shanker accused. She was kept there for one month. The appellant then took her to his own village on 19.5.1998. In cross-examination, she stated that the appellant had first taken her to village Ansari in District Barabanki (Uttar Pradesh) and thereafter to his own village Nimdipur. She had also deposed that she had accompanied the appellant first on a rickshaw and then in a bus and from Delhi, he had taken her to Lucknow. She admitted it as correct that there was heavy traffic on the way from school to bus stand when she was taken by the appellant for boarding bus for Delhi. She also stated that so many persons were present at bus stand, Faridabad, in the bus and also at bus stand Delhi besides various places wherever they passed through. She did not raise any noise or alarm on the way regarding her forcible enticing away by the appellant. The mode of transportation used by the prosecutrix while accompanying the appellant indicates that she had accompanied him willingly and not under any threat or pressure. Her explanation in this regard that the appellant had extended threats to her brother apparently appears to have Crl. Appeal S-401-SB of 2000 -7- been coined.
In her statement Ex.DE made before the Magistrate on 20.5.1998, she had stated that she had willingly accompanied the appellant and he was being falsely implicated. She also admitted to have written letters Exs.DF/1 to DF/5. However, she stated that these letters were got written from her by the appellant under pressure. She also stated that she visited the Court at Barabanki in Uttar Pradesh. Though she denied her marriage with the appellant having been solemnized at Arya Samaj Mandir, Barabanki yet she could not say about the certificate mark D1 issued in respect of the said marriage.
When the prosecutrix was medically examined, no mark of any injury on her breasts was found. Her vagina admitted two fingers easily.
From the above evidence, it can safely be held that the prosecutrix had been a consenting party throughout to the act of sexual intercourse. Therefore, the appellant deserves exoneration of the charge under Section 376 IPC.
From the prosecution case, it is also not established that it was the appellant, who had kidnapped the prosecutrix from the lawful guardianship of her parents with the intent that she might be compelled to marry him. On the other hand, it was the prosecutrix herself, who had willingly accompanied the appellant from one place to other. Moreover, Crl. Appeal S-401-SB of 2000 -8- keeping in view the statement Ex.DE made by the prosecutrix before the Magistrate on 20.5.1998, the possibility cannot be ruled out that she was more than 18 years of age. Accordingly, the appellant can also not be convicted for the offences under Sections 363 and 366 IPC.
Resultantly, the appeal is accepted, judgment of conviction and sentence passed by the trial Court is set aside and the appellant is acquitted of the charges against him. He is on bail. His bail bonds and surety bonds shall stand discharged.
( T.P.S. MANN )
April 29, 2011 JUDGE
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