Punjab-Haryana High Court
Mukesh And Another vs State Of Haryana on 31 July, 2013
Author: Inderjit Singh
Bench: Inderjit Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No.S-143-SB of 2001
Date of Decision: July 31, 2013
Mukesh and another
...Appellants
VERSUS
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH
Present: Mr.Mani Ram Verma, Advocate and
Mr.Nipun Verma, Advocate
for the appellants.
Mr.Subhash Godara, Addl. Advocate General, Haryana
for the respondent-State.
****
INDERJIT SINGH, J.
The present appeal has been filed by the appellants against the judgment of conviction dated 20.11.2000 and order of sentence dated 24.11.2000, passed by the learned Addl. Sessions Judge, Hisar, whereby, they were held guilty and convicted and sentenced to undergo rigorous imprisonment for a period of two years each and to pay a fine of ` 1,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of two months under Section 363 IPC and to undergo rigorous imprisonment for a period of three years each and to pay a fine of ` 2,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of four months under Section 366 IPC. They were further convicted and sentenced to undergo rigorous imprisonment for a period of seven years each and to pay a fine of Gulati Vineet 2013.08.29 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-143-SB of 2001 -2- `5,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for a period of ten months under Section 376 IPC. However, all the sentences were ordered to run concurrently.
The brief facts of the prosecution case are that on 25.10.1999, Manphool got recorded his statement to ASI Sada Ram, in which he stated that his younger daughter (prosecutrix) aged about 13 years (to conceal her name she is named as "S"). The other prosecutrix (to conceal her name she is named as "K"), sister-in-law of his elder daughter was married and she used to visit his house frequently. On 19.10.1999 at about 8.30 P.M., his younger daughter prosecutrix "S" and prosecutrix "K" had gone to watch Ram Lila at Subhash Dramatic Club, Hansi but they did not return. He and his son-in-law searched for "S" and "K" in the relations but could not trace them. On 26.10.1999, "S" was recovered from the custody of Rajinder and "K" was recovered from the custody of Mukesh. The statements of both the prosecutrixes were recorded. They were got medico legally examined. Their statements were also recorded under Section 164 Cr.P.C. They were also examined for determining their age. In her statement, prosecutrix "S" stated that the accused-appellants used to come to their house for taking milk. On 19.10.1999, she and prosecutrix "K" were going to watch Ram Lila at Subhash Nagar, Hansi, where the accused-appellants came in their way. They also accompanied them and told them that they would take them to good Ram Lila show. They took them in a jeep near Campa Cola Factory, Hisar road where Bablu took her in a separate room and Mukesh took Gulati Vineet 2013.08.29 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-143-SB of 2001 -3- "K" in another room and committed rape. Then on the same night, they were taken to Hisar railway station in a jeep, from where they took them to village Sangarwas where they were kept for 5/6 days. During that time, Bablu raped "S" and "K" was raped by Mukesh. Thereafter, accused-appellants planned to take them to Punjab and on 25.10.1999 brought them to railway station, Hansi but in the morning, they all were apprehended by the police. After necessary investigation, challan was presented against the accused-appellants.
On presentation of challan against accused-appellants, copies of challan and other documents were supplied to them under Section 207 Cr.P.C. Finding prima facie case, the accused-appellants were charge-sheeted under Section 363, 366, 376 IPC, to which they pleaded not guilty and claimed trial.
In support of its case, prosecution examined PW-1 Dr.R.P.Singal, Radiologist, who mainly deposed that on 05.11.1999, he examined "S" and X-rays of wrist and elbow were taken and age of "S" was found between 14 years and 17 years. He also proved his report Ex.PA. Similarly, the doctor found the age of "K" between 16 years and 19 years. PW-2 Rishi Pal, Patwari, mainly deposed regarding preparing of scaled site plan. PW-3 MHC Satbir Singh and PW-4 Constable Suresh Kumar, are the formal witnesses, who tendered into evidence, their affidavits Ex.PD and Ex.PE respectively. PW-5 Ms.Ritu Tagore, SDJM, Hansi mainly deposed regarding recording of the statements of the prosecutrixes "S" and "K" under Section 164 Cr.P.C. PW-6 Dr.Suman Mann deposed regarding Gulati Vineet 2013.08.29 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-143-SB of 2001 -4- medico legally examination of "S" and "K" and found that hymen was torn and healed and no injury was found on their person. PW-7 Dr.O.P.Charaya mainly deposed regarding medico legally examination of both the accused-appellants and found them fit for committing sexual intercourse. PW-8 Manphool, is the complainant, who deposed as per prosecution version. PW-9 Sita Ram deposed that on 19.10.1999, he was going from Hisar to Hansi. When he was present at the bus-stand, there he saw both the accused-appellants with both the prosecutrix outside the gate of the bus-stand. PW-10 prosecutrix "S" mainly deposed as per prosecution version. PW-11 prosecutrix "K" also deposed as per prosecution version. PW-12 Inspector Shri Bhagwan mainly deposed regarding preparing of report under Section 173 Cr.P.C. PW-13 ASI Sada Ram, Investigating Officer deposed regarding investigation conducted by him in the present case.
At the close of prosecution evidence, the accused- appellants were examined under Section 313 Cr.P.C. and they denied the correctness of the evidence and pleaded themselves as innocent. Accused-appellant Rajinder further pleaded that there was dispute between him and Manphool. Manphool had taken money from him and when he asked Manphool to return the money, a dispute took place between them. Therefore, to take revenge, a false case has been registered against him and Mukesh.
Similar is the plea taken by the accused-appellant Mukesh. No witness was examined in defence.
On the basis of the evidence produced by the prosecution, Gulati Vineet 2013.08.29 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-143-SB of 2001 -5- accused-appellants were convicted and sentenced as stated above by the learned Addl. Sessions Judge, Hisar.
At the time of arguments, learned counsel for the appellants argued that there is no evidence on record to show that any of the prosecutrix was minor at the time of occurrence of offence. As per ossification test, the age of prosecutrix "S" was stated to be between 14 years and 17 years and regarding prosecutrix "K", the age was stated to be between 16 years and 19 years. While determining the age, there can be difference of +/- two years. If that ossification test is applied and the maximum age given in the test is taken, then both the prosecutrixes were major at the time of occurrence. He further argued that doctor has not found any injury on their person. Therefore, it is a consent case at the most. Learned counsel for the appellants next argued that from the facts of the case, even no case of kidnapping is made out. Both the prosecutrix had gone with the accused with their own will and there is no cogent evidence on record to show that any force was applied or they were under any threat. The facts in their statements in the Court that they were threatened by the accused-appellants etc. were not found in the statements recorded under Section 164 Cr.P.C. He next contended that prosecution has not led any documentary evidence that any of the prosecutrix was minor. Both the prosecutrixes had travelled in the train, bus and resided in the village but they never raised any alarm, which shows that they were consenting parties. Learned counsel for the appellants further pointed out material discrepancy in the case of Gulati Vineet 2013.08.29 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-143-SB of 2001 -6- prosecution. The FIR was registered on 25.10.1999 at about 8.30 P.M., whereas both the prosecutrixes in cross-examination has deposed that they were apprehended from the railway station in the morning on 25.10.1999. Learned counsel for the appellants, therefore, argued that there being merit in the appeal, it should be accepted and accused-appellants should be acquitted.
On the other hand, learned Addl. Advocate General, Haryana argued that case of prosecution has been duly proved. Prosecutrix "S" has given her age as 13 years and she was a minor and has been taken away without the consent of the guardian and rape has been committed. He further argued that prosecutrixes have deposed against the accused-appellants consistently regarding committing rape. Their statements have been duly supported by medical evidence. Learned State counsel, therefore, argued that there being no merit, the appeal should be dismissed.
I have gone through the evidence on record minutely and carefully and have heard learned counsel for the appellants and learned Addl. Advocate General, Haryana for the respondent-State.
From the evidence on record, I find that first of all there is no cogent documentary evidence to prove the age of both the prosecutrixes. There is not even any oral cogent evidence on record to prove the age of the prosecutrixes being minor. PW-8 Manphool Singh, complainant, even in his cross-examination has stated that his age is about 65 years and he was married at the age of 20-22 years. He has been cross-examined regarding the birth of children. Even, Gulati Vineet 2013.08.29 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-143-SB of 2001 -7- then by calculating the gap between the birth of the children, the prosecutrix "S" cannot be held as minor. PW-1 Dr.R.P.Singal has given the age in the ossification test as between 14 years and 17 years. As per law, the age can be two years less or more. If this law is applied, then both the prosecutrixes will be treated as major. Otherwise also as regarding prosecutrix "K", the doctor has given the age as per ossification test, between 16 years and 19 years. Moreover, prosecutrix "K" was married for about 2½ years before the occurrence, which also shows that she is major. However, the prosecutrix "S" while appearing in the Court has given the age in the head note of the statement as 13 years but there is nothing on the record to show that she was of this age. She has not even given the approximate date of birth. She has not even stated regarding attending any school. No person has even orally deposed regarding the age of the prosecutrixes. Therefore, prosecution has failed to prove that any of the prosecutrixes were minor.
Further, I find that as per medico legal examination, no injury was found on the person of these prosecutrixes, which shows that it is a consent case. Otherwise also, as per the facts of the case, the prosecutrixes were going to see Ram Lila and the accused- appellants had met them on the way and the prosecutrixes had accompanied them on their simple asking that they will show them good Ram Lila. Therefore, in no way it can be held as case of kidnapping under Section 363 and 366 IPC. As regarding offence of rape, it is also not made out. Both these prosecutrix remained with Gulati Vineet 2013.08.29 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-143-SB of 2001 -8- the accused-appellants for about six days and they travelled in the train, in the bus and on foot. They have not been administered any intoxicants. In the FIR and in the statements under Section 164 Cr.P.C., there is nothing that any of the accused-appellants was having any weapon or they gave any threat to kill them. The statement in the Court to that fact is the material improvement. Even, it is the prosecution case that prosecutrixes with the accused- appellants were found standing outside the bus-stand and PW-9 Sita Ram had seen them. The prosecutrixes also remained in the village and they were provided food etc. but they have never raised any alarm at any stage, which fact also shows that there is consent.
Next, I find that the FIR in the present case has been registered at about 8.30 P.M. on 25.10.1999. The prosecutrix "K" in cross-examination has stated that they reached Hansi at about 4.00 A.M. It was 25.10.1999 on that day. The police reached there at about 5.00 A.M. They reached General Hospital, Hansi at 6/7.00 A.M.. The doctor was not available and they could not be medico legally examined. On the next day, they were brought to Hisar Hospital and then they were got medico legally examined. In cross- examination, it is further stated that on 25.10.1999, when the doctor was not available at hospital at Hansi, they were sent by the police to their house. This statement is also duly supported and corroborated from the fact that PW-6 Dr.Suman Mann has deposed that she medico legally examined prosecutrix "S" and "K" on 26.10.1999. Therefore, this material discrepancy in the prosecution version also Gulati Vineet 2013.08.29 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-143-SB of 2001 -9- creates doubt in the prosecution version, which shows that the FIR was registered after recovery of the prosecutrixes with the accused- appellants and this fact has not been mentioned in the FIR.
So, from the above discussion, I find that a reasonable doubt exists in the prosecution case. Prosecution has failed to prove the guilt of the accused-appellants beyond reasonable doubt. It is case of consent and prosecution has also failed to prove that any of the prosecutrixes was minor at the time of occurrence.
Therefore, the judgment of conviction and order of sentence passed by learned Addl. Sessions Judge, Hisar are set aside. The accused-appellants are acquitted of the charges framed against them. Since, the appellants are on bail, their bail bonds stand discharged.
Resultantly, the present appeal stands allowed.
(INDERJIT SINGH)
July 31, 2013 JUDGE
Vgulati
Gulati Vineet
2013.08.29 10:20
I attest to the accuracy and
integrity of this document
Chandigarh