Punjab-Haryana High Court
Jagan Nath And Anr. vs State Of Haryana on 29 March, 1983
JUDGMENT K.P.S. Sandhu, J.
1. Jagan Nath and Baij Nath appellants stand convicted and sentenced by the learned Addl. Sessions Judge, Ambala, as under:
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Name of the Convicted Sentence
awarded
appellant under Section
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Jagan Nath (i) 376 IPC R.I. for four years.
(ii) 363 read
with
368 I.P.C. R.I. for one year.
Bail Nath (i) 376 I.P.C. R.I. for four years
(ii) 363 I.P.C. R.I. for one year.
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The sentence awarded to both the appellants were ordered to run concurrently. Their co-accused, namely Kulbhusen, who was also concicted under Section 363, I.P.C. in the same trial was given the benefit of probation under Section 360, Cr. P.C. However, he did not choose to prefer any appeal against his conviction.
2. Rajni daughter of Ram Parkash, prosecutrix was studying in Sanatan Dharam School, Ambala City, In 1979, when she was aged about 13 years, she was alleged to have been kidnapped and taken to Chandigarh by her neighbour Devinder Kumar, who also raped her there. Ram Parkash, father of the pro-secutrix brought that incident to the notice of the police but no action was taken on that report.
3. Baij Nath appellant was a tenant in a portion of the house owned and occupied by the father of the prosecutrix. Smt. Rajni prosecutrix had been visiting Baij Nath very often in his room and had been indulging in sexual intercourse with him. This process continued for quite a few months. Smt. Rajni prosecutrix even continued visiting Baij Nath appellant after he shifted to another house and had been indulging in sexual intercourse with him. Resultantly, she became pregnant. They tried for the abortion of the conceived child but in vain. Baij Nath is alleged to have suggested to the prosecutrix that he could persuade his brother Jagan Nath appellant, living in Delhi, to marry her, or that in the alternative she could accompany him to his native village Urdia. District Azamgarh in Uttar Pradesh. On 5th March, 1980 Baij Nath appellant informed the prosecutrix that his brother Jagan Nath appellant was prepared to marry her. At that time Kulbhushan, the third co-accused of the appellants, was also present and joined in the deliberations.
4. On 6th March, 1980 at about 8.30 A. M. while the prosecutrix was going to take her examination for the 7th standard, she was taken to Bus Stand, Ambala Cantt. by Kulbhushan co-accused of the appellants and then taken to Delhi by Baij Nath appellant where she was kept in the house of Jagan Nath appellant. It is further alleged that at Delhi both the appellants committed rape upon her and after about a week's time Baij Nath appellant again came back to Ambala. Jagan Nath appellant continued having sexual intercourse with her against her will and without her consent. She was then taken by Jagan Nath appellant to his native village Urdia in Azamgarh District (U.P.) where she was kept for two-three weeks and again subjected to sexual intercourse by Jagan Nath appellant. Jagan Nath appellant then left the prosecutrix with Shrimati Gianmati, wife of Baij Nath, at village Urdia. Rajni prosecutrix gave birth to a female child on 10th May, 1980. Howevever the child expired on 11th May, 1980. Baij Nath appellant then brought her back to Delhi from Urdia. It was on or about 12 June, 1980 that Baij Nath appellant again committed sexual intercourse with her in Delhi during the night at the house of his brother Jagan Nath. Baij Nath appellant then took her to Bus Stand at Delhi and made her to board a bus for Ambala City along with a few belongings like an attache case, garments and wrist watch etc. She returned to her father's house in Ambala on 13th June, 1980 and narrated the entire occurrence to him, who took her to the C. I. A. Staff Police, Ambala City, where a report was already lodged by Ram Parkash, father of the prosecutrix, on 10th March, 1980.
5. The underwear of the prosecutrix and other articles like attache case and wrist watch etc., which were given to her by Baij Nath appellant, were taken into possession. She was medico-legally examined by Dr. (Mrs.) Raj Kalra on 13th June, 1980. The Lady Doctor opined that the prosecutrix was used to sexual intercourse and had delivered a child also. Her two vaginal swabs along with her underwear were sent to the Assistant Chemical Examiner who reported that the underwear (Exhibit P3) as well as the vaginal swabs had the stains of human semen. Her statement was also recorded by the Magistrate on 14th June, 1980.
6. Jagan Nath appellant and Kulbhushan co-accused were arrested in the case on 20th June, 1980, whereas Baij Nath appellant was arrested on 25th June, 1980. On medical examination, both the appellants were found fit to perform the sexual intercourse. Bansi Lal, owner of the factory where Baij Nath appellant was working also produced a letter which was written by Smt. Rajni to Baij Nath appellant, which, however, could not be delivered to him as he was on leave in those days and was left by the postal authorities at the factory of Bansi Lal. It will not be out of place to mention here that the father of the prosecutrix made an application under Section 319, Cr. P.C. for summoning one Devinder Kumar, for kidnapping and raping the prosecutrix, but the same was declined by. the trial Court.
7. When examined under Section 313, Cr. P.C., to enable the appellants to explain the circumstances appearing against them in the prosecution evidence, Baij Nath appellant stated that the parents of the prosecutrix' had sent her of their own for abortion in order to save the honour of the family, since she had been pregnant, and that he had been falsely implicated in the case. Jagan Nath appellant took up the plea of denial simpliciter. However, the appellants did not lead any evidence in defence.
8. The prosecution in order to bring home the charge against the appellants examined P.W. 1 Rajni prosecutrix who narrated the whole occurrence, P. W. 2, Shri J. P. Sharma, Medical Officer of Health, Municipal Committee, Ambala City, who proved that he had issued the birth certificate (Exhibit PB) and according to the certificate the date of birth of the prosecutrix was 25th December, 1966, P. W. 3 Dr. R. K. Patnaik who examined Jagan Nath appellant and found him fit to perform sexual intercourse, P. W. 4 Dr. S. K. Gambhir who medically examined Baij Nath appellant and found him fit to perform the sexual intercourse, P. W. 5 Dr. (Mrs.) Raj Kalra who medically examined the prosecutrix, P. W. 6 Ram Parkash, father of the prosecutrix, who lodged the report with the police and took the prosecutrix to the Police Station after her return to his house, P. W. 7 Atma Ram Chowkidar who informed the parents of the prosecutrix about her missing from the school and not taking the examination, P. W. 8 Nathu Ram who is a witness about the age of the prosecutrix, P. W. 9 H. C. Norata Ram who is a formal witness, P. W. 10 Bansi Lal owner of the factory where Baij Nath appellant was working, who produced the letter (Exhibit P6) before the Police, P. W. 11 who partly investigated the cage, P. W. 12 Shri Baru Ram Gupta, Additional District & Sessions Judge, who recorded the statement of the prosecutrix under Section 164. Cr. P.C. while he was posted as C.J. M, Ambala, P.W. 13 Didar Singh who prepared the site plans of various places, P. W. 14 Baldev Raj, District Inspector of Police, who recorded the first information report, and P. W. 15 Sub-Inspector Raghbir Singh, who mainly investigated the case and submitted the report under Section 173, Cr. P.C.
9. Mr. G. S. Chawla, learned Counsel for the appellants, in the first instance argued that even though the appellants have pleaded denial, but if according to the facts and circumstances of the case, a case of consent is made out, then the plea of the appellants would not stand in the way. Mr. Aman Dahiya, learned Counsel appearing for the State, does not have any quarrel with this proposition of law. The second contention raised by Mr. G. S. Chawla, learned Counsel for the appellants, is that both the appellants i.e. Jagan Nath and Baij Nath, could not be tried under Section 376, I.P.C. for the alleged act of rape committed by them in Delhi and it was the Court in Delhi alone which was competent to try the case. Of course the trial Court has relied upon a judgment reported as Rampratap v. State , wherein it was held that, the act of rape and kidnapping although committed at two different places and within the jurisdiction of two different Courts, is part of the same transation, within the meaning of Section 235, Cr. P. C 1898, which is equivalent to Section 220 of the Cr. P.C. 1973. Therefore, the trial Judge held that both the appellants could also be tried at Ambala for the rape alleged to have been committed by them at Delhi. With respect I differ with this proposition of law laid down in Ram-pratap's case (supra). The provisions of Section 220, Cr. P.C. 1973, would not be applicable in the present case because they would be applicable to offences which are committed in series of acts so connected together as to form the same transaction. The offence of rape is an independent act and a separate offence with different ingredients altogether.
10. Section 177, Cr. P.C. provides that every offence shall ordinarily be inquired into and tried by a Court within the local limits of whose jurisdiction it was committed. As the offence of rape was committed within the local limits of the jurisdiction of the Courts at Delhi, it could not be inquired into or tried by the Ambala Court. However, there is an exception contained to this general rule in Section 179, Cr. P.C. which reads as under:
When an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by I Court within whose local jurisdiction such thing has been done or such consequence has ensued.
The facts of this case are not covered by Section 179, Cr. P.C. Section 179 applies only when the act is an offence by reason of anything which has been done, and of any consequence which has ensued. But where the act or omission is a complete offence irrespective of any consequence which has ensued, this section would not come into play, and the offence is to be inquired into and tried only by the Court within whose local jurisdiction the act was committed. This section contemplates two things. The first is that the offender has done an act and the second is that a consequence has followed from such act. The offences contemplated under Section 179 are those which are not complete till a special consequence has ensued. So, the consequence must be an essential ingredient of the offence. This, however, cannot be predicated of an offence punishable under Section 376, I.P.C. The offence of kidnapping is complete as soon as the person is kidnapped with the requisite guilty intention or knowledge, and the consequence of the kidnapping or abduction does not form an essential part of the offence of kidnapping or abduction under Section 363 or 366. This being so under Section 179 the offence of rape committed at Delhi cannot be inquired into or tried by the Courts at Ambala and only the offence of kidnapping could be tried by the Courts at Ambala and the offence of rape had to be tried by the Courts at Delhi.
11. Mr. G. S. Chawla, learned Counsel for the appellants, has also in this regard placed reliance on State v. Sri Lal, 1971 Cri LJ 141 (All) wherein it has been held that consequence of kidnapping was not essential part of offence of kidnapping and the offence of rape can be inquired into and tried only by the Courts within the local limits of whose jurisdiction it has been committed. So I am of the view- that the appellants could not be tried at Ambala for the offence of rape alleged to have been committed by them at Delhi.
12. The next contention raised by the learned Counsel for the appellants is that the, prosecutrix was of easy virtue and the fact that she had been kidnap-ped and raped by one Devlnder Kumar earlier to the present occurrence speaks volumes about her character and credibility. It is in evidence that she had been going to Baij Nath appellant of her own and had been carrying on sexual intercourse with him for quite a long time. Even she became pregnant and did not complain to anyone. So much so she had been visiting Baij Nath appellant even after he left the house of her father, where Baij Nath was living as a tenant. Therefore, according to him, she was a consenting party and of her own had been going to Baij Nath. No doubt this contention of the learned Counsel has force in it. The prosecutrix appears to be a girl of easy virtue and the facts and circumstances of the case suggest that she was a consenting party to the whole affair. But there is a positive documentary evidence on the record which conclusively proves that at the time of the alleged kidnapping and rape by Baij Nath appellant she was about 14 years of age. Therefore, as far as Baij Nath is concerned, he cannot escape his criminal liability and the offence under Sections 363 and 376, I.P.C. has been made out technically against him. This factor, of course, can be taken into consideration so far as the quantum of sentence is concerned.
13. As far as Jagan Nath appellant is concerned there is no evidence that he actually took part in kidnapping the prosecutrix. All that has been brought against him is that Baij Nath and the prosecutrix stayed at his house at Delhi and Jagan Nath committed rape on her at Delhi. As far as the allegation of rape against him is concerned, as already held above, he cannot be tried for this offence under Section 376, I.P.C. at Ambala. Jagan Nath appellant, consequently, is acquitted of the charges against him and his convictions and sentences are set aside.
14. As far as Baij Nath appellant is concerned, I think the ends of justice will be amply met if the sentence under Section 376, I.P.C. is reduced to one year from four years. However, his conviction and sentence under Section 363, I.P.C. as imposed by the trial Court are maintained. Both the sentences of imprisonment in his case will run concurrently.
15. Resultantly, Jagan Nath's appeal is allowed and the appeal of Baij Nath is dismissed with the aforesaid modifications.