Punjab-Haryana High Court
Cra-S-307-Sb Of 2003 vs State Of Haryana on 28 July, 2011
Author: Jora Singh
Bench: Jora Singh
CRA-S-307-SB of 2003 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
1. CRA-S-307-SB of 2003
Charan Singh and another
........ Appellants
Versus
State of Haryana
........ Respondent
2. CRA-S-537-SB of 2003
Satpal
........ Appellant
Versus
State of Haryana
........ Respondent
3. CRA-S-673-SB of 2003
Harish Pal @ Billu
........ Appellant
Versus
State of Haryana
........ Respondent
Date of decision: 28.7.2011
CORAM: HON'BLE MR.JUSTICE JORA SINGH
PRESENT: Mr. Sudhir Sharma, Advocate,
for the appellants (in CRA-S-307-SB of 2003).
Mr. KDS Mann, Advocate,
for the appellant (in CRA-S-537-SB of 2003).
Mr. H.S. Baath, Advocate,
for the appellant (in CRA-S-673-SB of 2003).
Mr. Dhruv Dayal, Deputy Advocate General, Haryana.
****
CRA-S-307-SB of 2003 -2-
JORA SINGH, J.
This single judgment of mine shall dispose of three appeals bearing No. CRA-S-307-SB of 2003, CRA-S-537-SB of 2003 and CRA-S-673-SB of 2003, preferred by Charan Singh, Jaibir, Satpal and Harishpal @ Billu, respectively, to challenge the judgment of conviction dated 1.2.2003 and order of sentence dated 7.2.2003, rendered by the learned Additional Sessions Judge, Jind, in Sessions Case No. 19 of 7.6.2000, arising out of FIR No. 234 of 26.6.1996, registered under Sections 363/366/376/120-B of the Indian Penal Code at Police Station City, Jind.
By the said judgment, appellants namely Charan Singh, Jaibir and Satpal, were convicted under Sections 366 and 376 read with Section 109 IPC whereas appellant Harish Pal @ Billu, was convicted under Section 376 IPC and were sentenced as under:
1. Harish Pal under Section 376 IPC To undergo rigorous imprisonment for a period of seven years and to pay a fine of ` 5000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one year.
2. Charan Singh, Jaibir and Satpal under Sections 366 and 376 read with Section 109 IPC To undergo rigorous imprisonment for a period of five years each and to pay a fine of ` 2000/- each under Section 366 IPC and further sentenced to undergo rigorous imprisonment for a period of seven years each and to pay a fine of ` 2000/- each and in default of payment of fine to further undergo rigorous CRA-S-307-SB of 2003 -3- imprisonment for a period of one year each under Section 376 read with Section 109 IPC.
All the sentences were ordered to run concurrently.
Prosecution story, in brief, is that Smt. Bhagwanti Devi- complainant (PW-6) is the mother of the prosecutrix and on 26.6.1996 made statement before the police that she has 8 issues. Prosecutrix aged about 15 years is the eldest daughter and has already appeared in 8th class. Her husband was undergoing training for three months and returned on 6.6.1996. On 27.5.1996, after leaving her children in the house, she had gone to Ludhiana. On 2.6.1996, she came back from Ludhiana then her second daughter Shyama aged about 12 years told her that the prosecutrix had left the house on 1.6.1996 and failed to return. She made an enquiry about her daughter then came to know from Reeta,a friend of the prosecutrix that the prosecutrix used to visit the studio of Satpal. Complainant suspected that the prosecutrix was abducted by Satpal, Jaibir and Charan Singh with an intention to commit rape. Statement of Smt. Bhagwanti Devi, Ex. P-4 was recorded on 26.6.1996. After making endorsement, statement was sent to the police station on the basis of which formal FIR was recorded.
After the prosecutrix came back then her statement Ex. DA dated 9.8.1996, was recorded by the police. After the completion of investigation, cancellation report was submitted by the police.
Notice was issued to Smt. Bhagwanti Devi-complainant. She appeared before the Chief Judicial Magistrate, Jind, then her statement dated 7.9.1998 was recorded. As per order dated 7.9.1998, Ex. P-9, direction was given to the police to re-investigate the matter.
Statement of the prosecutrix Ex. P-8 dated 10.3.2000, CRA-S-307-SB of 2003 -4- under Section 164 Cr.P.C. was recorded. Appellants were arrested. After the completion of investigation, challan was presented in Court.
Appellants were charge-sheeted under Sections 366/376 read with Section 109 of the Indian Penal Code, to which they pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
PW-1 ASI Ravinder Kumar, stated that Harishpal @ Billu was arrested on 18.5.2000 and was interrogated. Appellant disclosed the place where the prosecutrix was raped. Application was moved for medical examination of the appellant.
PW-2 Dharamvir Singh, Inspector (Retd.), stated that on 26.6.1996, statement of Smt. Bhagwanti Devi, Ex. P-4 was recorded by SI Darshan Singh, on the basis of which formal FIR Ex. P-5 was recorded. He had recorded the statement of Bhagwanti Devi under Section 161 Cr.P.C. She had also produced one letter before him. School Leaving Certificate Ex. P-6 was also taken into police possession.
PW-3 Dr. V.K. Satija, stated that he had medico-legally examined Harishpal @ Billu. He was found fit to perform sexual intercourse.
PW-4 Harbans Lal, Teacher, brought the summoned record and proved school leaving certificate of the prosecutrix i.e. Ex. P-6. As per Ex. P-6 date of birth of the prosecutrix is 14.9.1981.
PW-5 is the prosecutrix and stated that firstly her statement was recorded by the Magistrate. Charan Singh-appellant gave a letter and as per this letter Satpal-appellant was to accompany her to Delhi. CRA-S-307-SB of 2003 -5- Satpal was to perform marriage with her at Delhi. On the next day i.e. on 1.6.1996, her family members were busy in a religious function. She slipped out of her house. Charan Singh and Jaibir met her near Jhanj Gate, Jind. A piece of Burfi was offered to her by saying that it was birthday of Satpal. She had consumed the burfi then Charan Singh and Jaibir told her that Satpal would be available at Bus Stand, Jind. She was brought to Bus Stand, Jind, but Satpal was not available there. Then Jaibir and Charan Singh told her that Satpal would be available at Delhi. From Bus Stand, Jind, she had boarded a bus alone but at Delhi after alighting from the bus Satpal was not available there. One person namely Rakam met her at Bus Stand, Delhi and he took her to the house of Harishpal @ Billu, situated in Govind Puri, Delhi where Harishpal @ Billu had raped her. She had requested Harishpal @ Billu to leave her at Jind but he always put off the matter. Harishpal @ Billu had sexual intercourse with her against her wish at Delhi. After that he had supplied a bridal dress to her to wear and was sent to Jind in the company of a boy. Harishpal @ Billu was overheard by saying that he wanted to sell her for a sum of ` 80,000/- to a Military person. She was also directed by Harishpal @ Billu to depose that she accompanied Charan Singh and Satpal on her own accord. Harishpal @ Billu threatened her to eliminate her parents and kidnap her younger sister and brother if she did not depose in favour of Charan Singh and Jaibir. She deposed under the pressure of the appellant. Her statement Ex. P- 8 was recorded by the Magistrate at Jind.
PW-6 Smt. Bhagwanti Devi, is the mother of the prosecutrix and stated that prosecutrix is 15 years old. She was a student of 8th CRA-S-307-SB of 2003 -6- class. Prosecutrix had left the house on 1.6.1996, when other family members were busy in performing Pooja of 'Satya Narain'. She came to know from Reeta and Geeta that the prosecutrix used to visit the studio of Satpal. Prosecutrix was abducted by Satpal, Charan Singh and Jaibir. Her statement Ex. P-4 was recorded by the police. Prosecutrix came back on 9.8.1996 then her statement was recorded on 10.8.1996. Appellant-Harishipal @ Billu had threatened the prosecutrix to kidnap her younger brother if not deposed in their favour.
PW-7 Dr. Neelima Shangla, the then Chief Judicial Magistrate, Jind, stated that statement of the complainant Ex. P-10 was recorded then as per order Ex. P-9 dated 7.9.1998, direction was given to the police to re-investigate the case.
PW-8 Inspector Sishpal Singh (retd.), stated that after completion of investigation, report under Section 173 Cr.P.C. was submitted by him.
After close of the prosecution evidence, statements of the appellants under Section 313 Cr.P.C. were recorded. They denied all the allegations of the prosecution and pleaded to be innocent.
Opportunity was given to lead defence evidence but no defence evidence was led.
After hearing learned Public Prosecutor for the State, learned defence counsel and from the perusal of the evidence available on the file, appellants were convicted and sentenced as stated aforesaid.
I have heard learned counsel for the appellants, learned State counsel and carefully gone through the evidence available on the file.
CRA-S-307-SB of 2003 -7-
Learned defence counsel for the appellants argued that prosecutrix is the daughter of Bhagwanti Devi-complainant, who appeared as PW-6. Ex. P-4 is the statement of Bhagwanti Devi dated 26.6.1996 and as per this statement, the prosecutrix was found missing from her house on 1.6.1996 but report was lodged with the police on 26.6.1996. No explanation why delay in lodging the FIR. According to the FIR Ex. P-4, complainant has 6 children. Prosecutrix is the eldest daughter aged about 15 years. Husband of the complainant was undergoing three months training and after training, he came back on 6.6.1996. On 27.5.1996, complainant had gone to Ludhiana and came back on 2.6.1996, then from her second daughter namely Shyama aged about 12 years and Reeta, a friend of the prosecutrix, came to know that prosecutrix had left the house on 1.6.1996 and she used to visit the studio of Satpal and Charan Singh-appellants. When prosecutrix came back to her house on 9.8.1996, then her statement Ex. DA was recorded. On 10.8.1996, statement of the prosecutrix Ex. DB under Section 164 Cr.P.C. was recorded. As per Ex. DA and Ex. DB, prosecutrix is 19 years old. Prosecutrix had an affair with Satpal- appellant. Charan Singh and Jaibir had dropped the prosecutrix at Bus Stand, Jind. Ticket was purchased and was handed over to the prosecutrix. Prosecutrix on her own accord had gone to Delhi where she had married with Harishpal @ Billu. After two months stay at Delhi, the prosecutrix came back. Letter was also written from Delhi. Letter was produced before the police but the same is not on the file. In view of the statement of the prosecutrix Ex. DA, cancellation report was submitted by the police but later on as per order Ex. P-9 dated 7.9.1998, after recording the statement of the complainant Ex. P-10, CRA-S-307-SB of 2003 -8- prosecution was directed to re-investigate the controversy. Again statement of the prosecutrix Ex. P-8 was recorded on 10.3.2000. Again she stated that she is 19 years old then story was changed. Prosecutrix as PW-5 admitted that when her statements were recorded either by the police or by the Court then her parents were present outside the Court. On 31.5.1996, Charan Singh gave one letter and as per letter she was to accompany Satpal to visit Delhi and at Delhi she was to marry with Satpal. Again stated that on 1.6.1996 her family members were busy in a religious function. When religious function was being solemnized then she had left the house. Charan Singh and Jaibir gave lift and dropped her at Bus Stand, Jind but at the bus stand Satpal was not present Charan Singh and Jaibir told her that Satpal would meet her at Delhi. By boarding bus, she had gone to Delhi where one Rakam had met her. After that she was taken to the house of Harishpal @ Billu. She had stayed with Harishpal @ Billu for about 2 months. During this period she was raped by Harishpal @ Billu.
PW-6 Bhagwanit Devi-complainant stated that on 1.6.1996, they were performing Pooja of 'Satya Narain'. The prosecutrix had left the house then matter was reported to the police. In case, on 1.6.1996, there was a religious function at the house of the complainant and prosecutrix had left the house then on that very day or on the next day report should have been lodged with the police but no explanation why report was not lodged immediately and why report was lodged on 26.6.1996. Complainant admitted that on 2.6.1996, she had gone to Ludhiana. On 1.6.1996, prosecutrix was missing from her house then there was no idea to visit Ludhiana on 2.6.1996. No complaint to any authority that statements of the complainant Ex. P-4 and that of the CRA-S-307-SB of 2003 -9- prosecutrix Ex. DA and DB, were wrongly recorded. According to the prosecution story, prosecutrix came back to her house on 9.8.1996 and after that her statement Ex. DA was recorded on 9.8.1996. Ex. DB is the statement of the prosecutrix dated 10.8.1996 recorded under Section 164 Cr.P.C. When no complaint to any authority that statement recorded by the police or Court were wrongly recorded then no reason to ignore the first statement Ex. DA dated 9.8.1996. As per Ex. P-4, complainant had gone to Ludhiana on 27.5.1996 and came back on 2.6.1996. After that she come to know that the prosecutrix had left the house on 1.6.1996. If the complainant suspected that prosecutrix was kidnapped by the appellants then after arrival from Ludhiana on 2.6.1996, complainant should have reported the matter to the police. Father of the prosecutrix came back on 6.6.1996 but no report to any authority. After the order of reinvestigation, entire story was changed but one thing is clear that the prosecutrix stayed at Delhi for about 2 months. After return from Delhi on 9.8.1996, prosecutrix was not produced before the doctor for medico-legal examination. No explanation why the prosecutrix was not produced before the doctor for medico-legal examination. Two times statement of the prosecutrix under Section 164 Cr.P.C. was recorded. First statement is Ex. DA dated 9.8.1996 and the second is Ex. DB dated 10.8.1996. In both the statements Ex. DA and DB, she stated that she is 19 years old but while appearing as PW-5, then she did not state a word that she had joined any school. Regarding age of the prosecutrix there is only one document i.e. Ex. P-6, School Leaving Certificate. According to Ex. P-6, date of birth of the prosecutrix is 14.9.1981, so, at the time of alleged occurrence she was less than 16 years of age but in the CRA-S-307-SB of 2003 -10- certificate there is no complete address. Birth certificate issued by the Chowkidar or Municipal Committee is not on the file. No document, on the basis of which date of birth was written by the school authority. Mother of the prosecutrix did not state a word that she got admitted the prosecutrix in the school and at the time of admission her date of birth was given as 14.9.1981. No application to arrange ossification test. Complainant has 8 issues but no certificate of any other son or daughter is on the file to show that prosecutrix was less than 16 years at the time of alleged occurrence or prosecutrix was the youngest daughter of the complainant. Certificate Ex. P-6 is without any evidentiary value in the absence of birth certificate as held in 2008 (4) RCR (Criminal) 358, "State of H.P. vs. Suresh Kumar @ Chhotu.
Letter was written from Delhi by the prosecutrix that she has solemnized marriage with one of the appellants, namely, Harishpal @ Billu but that letter was not produced by the police for the best reasons known to the police. Statement of the prosecutrix Ex. P-8 dated 10.3.2000, was recorded by the prosecution without any request of the prosecution. Suo motto Court had no power to record the statement of the prosecutrix under Section 164 Cr.P.C. in view of law laid down in 1999 (3) RCR (Criminal) 613, "Jogendra Nahak vs. State of Orissa".
Learned State counsel argued that prosecutrix was a student of 8th class. Ex. P-6 is the school leaving certificate. As per certificate prosecutrix was less than 16 years of age. Consent of the prosecutrix is immaterial. From the very beginning, Investigating Officer tried to help the appellants. Due to the negligence of the Investigating CRA-S-307-SB of 2003 -11- Officer, complainant party should not be made to suffer. Suggestion was given to the prosecutrix that she had written number of love letters. Satpal had also written number of love letters. Letter was written that prosecutrix has married with Harishpal @ Billu but prosecutrix was less than 16 years of age and cannot marry Harishpal @ Billu-appellant. When case was not properly investigated then benefit should not be given to the appellants when there was no reason for the complainant party to name the appellants falsely.
According to the prosecution story, the prosecutrix was 15 years old. On 1.6.1996, she was abducted by the appellants. One of the appellant namely Harishpal @ Billu had raped the prosecutrix against her wish whereas defence version is that case is false. Undisputedly, prosecution is to prove its case beyond any shadow of doubt. Prosecution cannot take any benefit from the weaknesses of the defence. Accused are expected to remain silent. They are not bound to lead defence. When there are two versions then version favourable to the accused is to be accepted.
As per Ex. P-4, Bhagwanti Devi-complainant (PW-6), on 27.5.1996, had gone to Ludhiana. All her children remained at home. She came back from Ludhiana on 2.6.1996 then prosecutrix was found missing from her house. Her second daughter Shyama told her that prosecutrix had left the house on 1.6.1996. Friend of the prosecutrix namely Reeta told the complainant that prosecutrix used to visit the studio of Satpal and Charan Singh. Complainant suspected that prosecutrix was kidnapped by the appellants. Statement of the complainant Ex. P-4 was recorded on 26.6.1996 by SI Darshan Singh. On the basis of statement Ex. P-4 FIR was recorded.
CRA-S-307-SB of 2003 -12-
Prosecutrix came back from Delhi on 9.8.1996 then her statement Ex. DA was recorded by the police but in Ex. DA there is not a word that she was raped by any of the appellants. Prosecutrix was produced before the learned Chief Judicial Magistrate, Jind and her statement under Section 164 Cr.P.C. Ex. DB dated 10.8.1996, was recorded. Then prosecutrix stated that she had an affair with Satpal- appellant. She was dropped at Bus Stand, Jind, by Charan Singh and Jaibir. Ticket was purchased by them. After that she had boarded the bus and had gone to Delhi where Harishpal @ Billu-appellant had met her. Elder brother of Harishpal @ Billu requested her to marry with Harishpal @ Billu. After that she had married with Harishpal @ Billu. She had stayed at Delhi for about 2 months then came back to her house.
After the statements of the prosecutrix Ex. DA and DB and that of the complainant Ex. P-4, cancellation report was submitted in the Court, then notice to the complainant was issued Bhagwanti Devi- complainant appeared in Court and her statement Ex. P-10 dated 7.9.1998, was recorded. When complainant was not agreeing with the cancellation report then order dated 7.9.1998, Ex. P-9, was passed directing the prosecution to re-investigate the case. On 10.3.2000, statement of the prosecutrix under Section 164 Cr.P.C. was recorded but there was no request by the police to record the statement of the prosecutrix under Section 164 Cr.P.C. Prosecutrix stated that her first statement was recorded but she made that statement under the pressure of Harishpal @ Billu-appellant.
In Jogendera Nahak's case (supra) Hon'ble Supreme CRA-S-307-SB of 2003 -13- Court has observed whether a witness can approach a Magistrate on his own motion for getting his statement recorded under Section 164 Cr.P.C. then answer was that Magistrate is not empowered under Section 164 Cr.P.C. to record the statement of a person who is not sponsored by Investigating Agency. However, such a person can be cited by accused as defence witness during trial or Court can be requested to summon him under Section 311 Cr.P.C. No such person can straightway go to Magistrate and request him to record his statement which he proposes to make.
Prosecutrix as PW-5 admitted that her statement was recorded twice by the Court. At the time of her statement by the police or Court her parents were present. No complaint to any authority either by the prosecutrix or the complainant that their statements were not recorded properly either by the police or by the Court. As PW-5, the prosecutrix stated that on 31.5.1996, Charan Singh gave one letter and as per letter Satpal was to accompany her to Delhi and marry her. On 1.6.1996, there was a religious function in the house. She came out from her house then Charan Singh and Jaibir Singh, gave her lift and she was dropped at bus stand Jind but at the bus stand Satpal was not present. Charan Singh and Jaibir Singh, told her that Satpal will meet her at Delhi. After boarding the bus she had gone to Delhi where one Rakam met her then she was taken to the house of Harishpal @ Billu. She was raped by Harishpal @ Billu against her wish. For about two months she stayed with Harishpal @ Billu at Delhi and during this period Harishpal used to rape her. Complainant-Bhagwanti Devi, appeared as PW-6 then stated that on 1.6.1996, there was a religious function in her house. Prosecutrix had left the house. On 2.6.1996, she CRA-S-307-SB of 2003 -14- had gone to Ludhiana and came after some days then reported the matter to the police. Complainant did not state a word that her statement Ex. P-4 was not correctly recorded. No allegation that statements of the prosecutrix Ex. DA and DB were not correctly recorded by the police or the Court. No allegation that prosecutrix made statements under the pressure of any of the appellants. According to Ex. P-4, complainant had gone to Ludhiana on 27.5.1996 and came back on 2.6.1996. In case Ex. PA is correct one then on 2.6.1996 or after one or two days when prosecutrix was not traceable then complainant should have lodged report with the police. There was no idea to wait till 26.6.1996.
In case, statement of the complainant in Court is correct one then on 1.6.1996 or after few days matter should have been brought to the notice of the police. As per PW-6 Bhagwanti Devi, on 1.6.1996, prosecutrix was missing from her house, if, this was the situation then there was no idea to visit Ludhiana on 2.6.1996, without report. Father of the prosecutrix was undergoing three months training and came back on 6.6.1996. On 6.6.1996, complainant and her husband had the knowledge that prosecutrix is missing but no report to the police. When young girl of 15 or 16 years of age is missing from the house then mother or father of the girl are not expected to remain silent for number of days. No allegation of the complainant that she kept on searching for the prosecutrix in her relations and when the prosecutrix was not available anywhere then report was lodged on 26.6.1996. When no complaint that the statements of the prosecutrix were wrongly recorded by the police or Court then which statement either recorded by the police or by the Court under Section 164 Cr.P.C. is taken to be CRA-S-307-SB of 2003 -15- correct one.
If we presume that under pressure of the appellants, first statement was made then whether the second version is also correct one. Prosecutrix stayed at Delhi for about two months. At Delhi, prosecutrix had married with one of the appellants, namely, Harishpal @ Billu. A letter was sent from Delhi but the same is not on the file. PW-2 Dharamvir Singh, Inspector (Retd.), stated that he had recorded Ex. P-4 correctly. Letter produced before the police is not on the file. Recovery memo vide which letter was taken into police possession is also not on the file. Statements of Bhagwanti Devi and Chander Parkash are also not on the file.
Prosecutrix as PW-5 in examination-in-chief, stated that one letter was handed over to her by Charan Singh and as per letter she was to accompany Satpal and marry him at Delhi. Charan Singh and Jaibir had given lift and she was brought at Bus Stand Jind. From Bus Stand, Jind, she had boarded a bus and had gone to Delhi where one Rakam had met her. Number of love letters were written by her and Satpal. A letter was written from Delhi that she has married. Bhagwanti Devi-complainant as PW-6 admitted that a letter written by the prosecutrix was received and that letter was produced before the police. As per letter, prosecutrix had married with one person. No complaint to any authority that their statements were wrongly recorded. Prosecutrix came back from Delhi on 9.8.1996.
Prosecutrix as PW-5 neither in her examination-in-chief nor in cross-examination stated a word that she was admitted in any school and had studied up to 8th class. PW-6 Bhagwanti Devi, stated that prosecutrix had studied up to 8th class but name of the school was not CRA-S-307-SB of 2003 -16- given. PW-4 Harbans Lal, Teacher, brought the summoned record and stated that Ex. P-6 is the School Leaving Certificate. As per Ex. P-6, date of birth of the prosecutrix is 14.9.1981 but admission register was not brought. Harbans Lal, failed to explain on the basis of which document date of birth of the prosecutrix was written as 14.9.1981. Prosecutrix is the youngest daughter of the complainant. Complainant had 8 children. Birth certificate of the son and daughter of the complainant who was elder to the prosecutrix could easily be produced to show that prosecutrix was less than 16 years of age. Ration Card, Voter list of any of the member of the family of the complainant is not on the file. In the certificate Ex. P-6, Mohalla or village of the prosecutrix was not written. Ex. P-6 simply shows that prosecutrix daughter of Vijay Prakash joined school on 28.4.1993 and had left the school on 31.3.1996. As per certificate prosecutrix was a student of 8th standard but when prosecutrix did not state a word regarding her admission in the school who has issued the certificate Ex. P-6 then not safe to connect the certificate with the prosecutrix to determine her age. No request by the police for ossification test to determine the age of the prosecutrix. In Ex. DA dated 9.8.1996 and Ex. DB dated 10.8.1996, prosecutrix gave her age as 18/19 years. After the order of re- investigation dated 7.9.1998 again statement of the prosecutrix was recorded under Section 164 Cr.P.C. Ex. PA is the copy of the statement dated 10.3.2000. Again prosecutrix stated that she is 19 years old. In Court, when prosecutrix appeared as PW-5 then stated that she is 19½ yeas old.
In State of HP (supra) Hon'ble Supreme Court held that no CRA-S-307-SB of 2003 -17- reliable document in the shape of birth certificate etc. to prove age of prosecutrix. Testimony of prosecutrix that she was below 16 years could not be believed. It was gathered from evidence of mother that prosecutrix was above 16 years of age. Acquittal of accused upheld.
In the present case also two time statement of the prosecutrix under Section 164 Cr.P.C. was recorded. One statement is Ex. DB dated 10.8.1996 and second is Ex. PA dated 10.3.2000 but on both the occasions she stated that she is 19 years old. If the prosecutrix was threatened by any of the appellants to make statement in their favour then while appearing before the Court for making statement under Section 164 Cr.P.C. she could easily state that she is 16 years of age. At the time of statement of the prosecutrix on both the occasions , of the prosecutrix were present, so, no question of any threat at the hands of any of the appellants.
Evidence rather shows that prosecutrix had affair with Satpal-appellant. Both used to exchange love letters. As per letter handed over to the prosecutrix by Charan Singh and Jaibir, prosecutrix on her on accord had gone to Delhi. At Delhi prosecutrix stayed with one of the appellants. Prosecutrix had married with Harishpal @ Billu at Delhi. After stay of two months prosecutrix came back to her house. Age of the prosecutrix was more than 16 years. While gong to Delhi number of persons had met the prosecutrix. In the house of Harishpal @ Billu other families were also residing. No allegation of the prosecutrix that for about 2 months she was kept confined illegally in a room and was not allowed to move out of the room. When prosecutrix had gone to Delhi on her own accord and stayed freely with one of the appellants namely Harishpal @ Billu then I am of the opinion that the CRA-S-307-SB of 2003 -18- prosecutrix was the consenting party. No question of rape.
In view of all discussed above, I am of the opinion that evidence on file was not rightly scrutinized by the trial Court. Impugned judgment suffers from infirmity and illegality and the same is set aside. Appellants are acquitted of the charge levelled against them.
For the reasons recorded above CRA-S-307-SB of 2003, CRA-S-537-SB of 2003 and CRA-S-673-SB of 2003, are accepted.
July 28, 2011 ( JORA SINGH ) rishu JUDGE