Punjab-Haryana High Court
Prahlad And Another vs State Of Haryana on 20 September, 2011
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl. Appeal No. 914-SB of 2003
Date of decision: September 20, 2011
Prahlad and another
.. Appellants
Vs.
State of Haryana
.. Respondent
Coram: Hon'ble Mr. Justice A.N. Jindal
Present: Mr. Jagjit Gill, Advocate for the appellants.
Mr. Amit Rana, DAG, Haryana for the respondent.
A.N. Jindal, J
The case relates to the sordid story of an young girl, who fell
prey at the hands of her own uncle and his maternal uncle i.e. accused who
having exploited the helplessness of the prosecutrix, used her for satisfying
their sexual lust. Consequently, they were put to dock and vide judgment
dated 10.3.2003 passed by the learned Additional Sessions Judge, Sirsa,
they were convicted and sentenced to undergo rigorous imprisonment for
three years and to pay fine of `1000/- each under Section 363 IPC and
rigorous imprisonment for ten years and to pay fine of `5000/- each under
Section 376 (2) (g) IPC.
The prosecutrix (name not disclosed) is the resident of Rupana
Darbankala so as the accused Parhlad who is the first cousin of her father
and the accused Bhajan Lal is the resident of village Ganja Rupana and he
is the maternal uncle of accused Parhlad.
On 8.4.2002, at about 8.00 a.m. The prosecutrix along with
Parhlad had gone to harvest the wheat crop, but did not return till evening
so also Parhlad. The complainant Bhajan Lal (herein referred as, 'the
complainant'), father of the prosecutrix searched them for seven days but
could not find any clue, as such he lodged the report with the police on
15.4.2002, regarding missing of the prosecutrix, on the basis of which FIR
under Sections 363/366-A/376/34 IPC was registered at Police Station
Nathusari Chopta. During investigation, on 21.5.2002, on receipt of the
information, ASI Dilbag Singh reached village Rupana and met the
Crl. Appeal No. 914-SB of 2003 -2-
***
prosecutrix who disclosed before him that Parhlad had approached her on 8.4.2002 with a proposal that she should accompany him for harvesting the wheat crop. Accordingly, she along with Parhlad reached the house of Bhajan Lal accused at village Ganja Rupana. On that day, her parents were not in the house. After Bhajan Lal (accused) had left the house in search of work, Parhlad took undue advantage of the situation and raped her and also threatened her to keep quiet. He also served her with some sleeping tablets. On return, when Bhajan Lal came to know about the incident, he threatened Parhlad to make the things public if she does not oblige him. Then he also raped her. Thereafter, both of them took her to Sirsa. On the next day Bhajan Lal accused returned to his village, whereas Parhlad moved with her from village to village and continued sexually exploiting her. Ultimately, he took her to village Barikan in the State of Punjab and started putting up with his mother's sister. When he ran short of money, they returned to Sirsa from where she was made to board bus to the village. Consequently, the case was further investigated and on completion of the investigation, both the accused were challaned.
On commitment, both of them were charged for the offences under Sections 363/366-A/376 (2) (g) of the IPC, to which they pleaded not guilty and claimed trial.
In order to substantiate the charges, the prosecution examined Manohar Lal (PW1), Dr. Raj Kumar (PW2), ASI Dilbag Singh (PW3), C. Subhash Chander (PW4), Radhey Shayam (PW5), HC Vijander Singh, (PW6), Prosecutrix (PW7), Dr. Santosh Bishnoi (PW8), Bhajan Lal (PW9) and C. Umed Singh (PW10).
When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication. They further explained that they never had sex with the prosecutrix against her wishes and without her consent.
The trial resulted into conviction.
Arguments heard. Record perused.
The prime question to be determined in this case is the age of the prosecutrix. First of all, Shri Manohar Lal Head Master of G.P.S. Rupana Khurd while appearing in the witness box has stated that according Crl. Appeal No. 914-SB of 2003 -3- *** to the school record, her date of birth was 8.9.1988. He has further disclosed that she had abandoned her studies in the year 2002 when she was a student of 2nd class. Father of the prosecutrix, namely, Bhajan Lal (PW9) had stated that he had got admitted her daughter in the school when she was about eight years old. Secondly, the prosecutrix while appearing before the doctor represented herself to be 13- ½ years old. She, while appearing in the witness box as PW-7, has also given her age as 14 years old. That apart, to the contrary the accused has not led any evidence to rebut the aforesaid factual position. Thus, the aforesaid evidence with regard to the age given in the school record as well as the ocular version given by the father of the prosecutrix cannot be ignored. As such, there is no reason to record dissenting view than what was given by the trial court that the prosecutrix was below 16 years of age at the time of occurrence. The Apex Court approved the evidence of school leaving certificate which was supported by the other evidence, in case Murugan @ Settu vs. State of Tamil Nadu 2011 (3) RCR (Criminal) 35 wherein it was observed as under :-
"13. In the instant case, in the birth certificate issued by the Municipality, the birth was shown to be as on 30.3.1984; registration was made on 5.4.1984; registration number has also been shown; and names of the parents and their address have correctly been mentioned. Thus, there is no reason to doubt the veracity of the said certificate. More so, the school certificate has been issued by the Head Master on the basis of the entry made in the school register which corroborates the contents of the certificate of birth issued by the Municipality. Both these entries in the school register as well, as in the Municipality came much before the criminal prosecution started and those entries stand fully supported and corroborated by the evidence of Parmala (PW.15), the mother of the prosecutrix. She had been cross examined at length but nothing could be elicited to doubt her testimony. The defence put a suggestion to her that she was talking about the age of her younger daughter and not of Shankari (PW.4), which she Crl. Appeal No. 914-SB of 2003 -4- *** flatly denied. Her deposition remained un-shaken and is fully reliable."
In the instant case also, though, I have no evidence of birth certificate as entered or registered in the Registrar of Birth & Deaths, yet, there is documentary evidence in the shape of school leaving certificate which has been proved by the Headmaster of the said school. No meaningful cross examination had been conducted upon him to dispute the genuineness of the certificate or if the said certificate does not relate to the prosecutrix. The evidence of Bhajan Lal also supports the said certificate stating that the prosecutrix after studying 2nd class had left the school, which also is consistent with the testimony of Headmaster Manohar Lal (PW1). Thus, his testimony coupled with the testimony of Bhajan Lal and the opinion of the doctor, I see no reason to discard the evidence led by the prosecution regarding her age to be that of below 16 years.
The other argument raised by the learned counsel for the appellants is that the prosecutrix was a consenting party, is of no consequence when it is settled that she was below 16 years of age and was not in a position to give consent.
In any way, Section 375 IPC is attracted when such sexual intercourse is against her will and without her consent. The expression "against her will" would ordinarily mean that the sexual intercourse was done by the accused with the prosecutrix despite her resistance or opposition. At the same time, the words "without her consent" would comprehend an act of reason accompanied by deliberation. The concept of word "consent" in the context of Section 375 IPC came up for discussion many a times before the Apex Court and in the recent case State of U.P. vs. Chhoteylal 2011 (1) RCR (Criminal) 443 wherein while discussing money aspects of the expression "consent" conveyed the message that the meaning of word "consent" in context of Section 375 and 376 IPC is as under :-
"(i) There is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under the Crl. Appeal No. 914-SB of 2003 -5- *** misconception of fact.
(ii) Submission of the body under the fear of terror cannot be construed as a consented sexual act - Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance assent. (Uday v. State of Karnataka, 2003 (2) RCR (Crl.) 99 : 2004 (1) Apex Criminal Judgments 13 :
State of H.P. vs. Mango Ram (2003) 4 SCC 46 : 2000 (3) RCR (Crl.) 752 relied)."
In the instant case also the consent on the part of the prosecutrix, as stated by her in the given circumstances of the case, cannot be said to be voluntary. The prosecutrix as well as the accused hailed from the labour strata and were closely related to each other. The parents of the prosecutrix were already not in the house when the accused get undue benefit and had occasion to contact her. He took her away in connection with harvesting the wheat crop as it was harvesting season. The prosecutrix being the niece of the accused could not think or doubt about the intention or evil design of the accused Prahlad, therefore, she proceeded with him in good faith, but she never knew that she would be trapped after she would be taken to a different village. She has also specifically stated that despite her resistance the accused committed rape upon her. When once she had lost her modesty, then, she being helpless and fallen in the hands of a dominating male having no means to return to the house remained under compulsive circumstances with the accused. Thus, she cannot be said to be a consenting party.
While pointing out about the statement of the prosecutrix, the learned counsel for the appellants has stated that the prosecutrix having no support from the other evidence could not be believed. It has been urged that according to the prosecution, they left the house on 8.4.2002 and the prosecutrix was recovered on 20.5.2002. No witness in whose connection they came and the people who had witnessed them roaming abut, none was Crl. Appeal No. 914-SB of 2003 -6- *** examined, as such, she cannot be believed.
As a matter of fact, it is the quality of the evidence and not the quantity which weighs with the mind of the court. There is no reason to discard the solitary testimony of the prosecutrix if it satisfies the conscience of the court and nothing is found to challenge her credibility and reliability. In this case, the accused were none else but the close relatives of the prosecutrix. Parhlad was her father's first cousin and Bhajan Lal was maternal uncle of Parhlad. She had no reason to implicate them falsely in this case. Thus, though no other witness was examined, yet, her testimony cannot be thrown away on this ground alone when there is specific medical evidence with regard to rape committed upon her. The evidentiary value of the testimony of the prosecutrix has been discussed by the Apex Court in Chhoteylal's case (supra), wherein it was observed as under :-
"Evidentiary value of evidence of prosecutrix - An Indian woman traditionally will not concoct an untruthful story and bring charges of rape for the purpose of blackmail, hatred, spite of revenge. Further held :-
(i) Victim loses value as a person - A forcible sexual assault brings in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional scar to a victim and it is, therefore, most unlikely of a woman, and more so by a young woman, roping in some body falsely in the crime of rape.
(ii) A young unmarried woman will not put her reputation in peril by alleging falsely about forcible sexual assault.
(iii) Courts must be alive to the conditions prevalent in the Indian society and must not be swayed by beliefs in other countries.
(iv) A forcible sexual assault bring in humiliation, feeling of disgust, tremendous embarrassment, sense of shame, trauma and lifelong emotional Crl. Appeal No. 914-SB of 2003 -7- *** scar to a victim and it is, therefore, most unlikely of a woman, and more so by a young woman, roping in somebody falsely in the crime of rape.
The Apex Court while further ignoring the factum with regard to non examination of the witnesses when the prosecutrix was illiterate and rustic young woman and also ignoring contradictions observed as under :-
"23. We shall now examine the evidence of the prosecutrix. The prosecutrix at the relevant time was less than 18 years of age. She was removed from the lawful custody of her brother in the evening on September 19, 1989. She was taken to a different village by two adult males under threat and kept in a rented room for many days where A-1 had forcible sexual intercourse with her. Whenever she asked A-1 for return to her village, she was threatened and her mouth was gagged. Although we find that there are certain contradictions and omissions in her testimony, but such omissions and contradictions are minor and on material aspects, her evidence is consistent. The prosecutrix being illiterate and rustic young woman, some contradictions and omissions are natural as her recollection, observance, memory and narration of chain of events may not be precise. Learned counsel for the respondent submitted that no alarm was raised by the prosecutrix at the bus stand or the other places where she was taken and that creates serious doubt about truthfulness of her evidence. This argument of the learned counsel overlooks the situation in which the prosecutrix was placed. She had been kidnapped by two adult males, one of them - A-1 - wielded fire-arm and threatened her and she was taken away from her village. In the circumstances it made sensible decision not to raise alarm. Any alarm at unknown place might have endangered her life. The absence of alarm by her at the public place cannot lead to an inference that she had willingly Crl. Appeal No. 914-SB of 2003 -8- *** accompanied A-1 and A-2. The circumstances made her submissive victim and that does not mean that she was inclined and willing to intercourse with A-1. She had no free act of the mind during her stay with A-1 as she was under constant fear."
It would also not be out of place to mention here that when the duration of sexual intercourse was for such a long time and the prosecutrix remained in the custody of the accused, absence of mark of injuries on her person are not sufficient to discard the prosecution version. The medical evidence further reveals that both the accused were fit for sexual intercourse. At the same time, no importance could be given to the ossification test. I have also perused the report of the ossification test, but it does not depict the true situation as the eruption of teeth, number of teeth and many other aspects were not observed by the doctor conducting the ossification test.
No other argument has been raised.
For the aforesaid reasons, I do not find any merit in the appeal and the same is dismissed.
September 20, 2011 (A.N. Jindal) deepak Judge