Punjab-Haryana High Court
Satender Alias Kalu vs State Of Haryana on 29 October, 2014
CRA-S-873-SB of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-873-SB of 2011
DATE OF DECISION: OCTOBER 29, 2014
SATENDER @ KALU ...APPELLANT
VERSUS
STATE OF HARAYNA ...RESPONDENT
CORAM: HON'BLE MR. JUSTICE M. JEYAPAUL.
1. Whether the judgement should be reported in the digest? Yes/No
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PRESENT: MR. S.N.YADAV, ADVOCATE FOR THE APPELLANT.
MR. DHRUV DAYAL, DAG, HARYANA.
M. JEYAPAUL, J.(ORAL)
1. Accused Satender @ Kalu was convicted and sentenced under Section 363, 366, 376 and 506 IPC. He has challenged the conviction and sentence passed by the trial Court.
2. PW1 is the prosecutrix who was 16 years and 2 months old and PW2 Jaivinder is her paternal uncle. PW1 had stayed in the family of PW2 as her father had passed away. PW1 has come out with a case that on 16.3.2010 at about 9.00 p.m., when the family members were asleep, the accused caught hold of her mouth and put her in a car driven by PW6 Amit. The accused took her to Laxmi Hotel at Mahendergarh and kept her in a room. The next day morning he committed rape upon her. Thereafter, the accused took her to Pilani where he accommodated her in Kamal Lodge. From 17.3.2010 to 21.3.2010, the accused committed rape upon her several times at Kamal Lodge. On 21.3.2010, the accused took her from Pilani to Delhi by bus. When she alighted alongwith the accused at Rajiv Chowk, SUMIT GULATI 2014.11.11 11:58 I attest to the accuracy and authenticity of this document CRA-S-873-SB of 2011 -2- the police apprehended the accused and herself.
3. PW3 Raj Kumar the owner of Laxmi hotel, Mahendergarh has deposed that 5 persons consisting of 2 ladies and 3 gents including the accused and the prosecutrix stayed in his hotel. They informed him that they were husband and wife. PW4 Vikas Sharma having produced the booking register maintained by the hotel at Pilani spoke to the fact that the accused and the prosecutrix voluntarily informed him that they were husband and wife. The accused and the prosecutrix came alongwith two other persons, namely, Rajesh and Pinki. All the four were roaming inside and outside the hotel. PW6 Amit has stated before the Court that on 16.3.2010, accused Satender called him over phone and engaged his taxi to take his niece to Pilani for her admission. He picked up the accused and the prosecutrix from the bus stand. At Rewari, another boy and a girl also took lift in his car. All of them stayed in the hotel. The prosecutrix was not mishandled by the accused. No threat in his presence was given to her. Nor had the prosecutrix disclosed to him that any threat was given to her by the accused. PW8 Dr.Madhu Jindal had medico-legally examined the prosecutrix on 21.3.2010. Based on the jottings in the medico-legal report recorded by her, she has deposed that the prosecutrix informed her that the accused had sexual intercourse twice with her consent.
4. The investigating official having thoroughly investigated the matter filed a final report as against the accused.
5. The accused in his statement under Section 313 Cr.P.C. has contended that he was innocent and a false case was foisted on him.
6. The trial Court relying upon the evidence adduced by the SUMIT GULATI 2014.11.11 11:58 I attest to the accuracy and authenticity of this document CRA-S-873-SB of 2011 -3- prosecution recorded conviction as stated supra.
7. The prosecution examined PW5 Harish Yadav, Drawing & Disbursing Officer, Government Sr.Secondary School, Panchgaon wherein the prosecutrix last studied. The records produced by him would go to establish that the prosecutrix was born on 15.1.1994. The occurrence had taken place on 16.3.2010. Therefore, as rightly pointed out by learned counsel appearing for the appellant, the prosecutrix was 16 years and 2 months at the time when the occurrence took place.
8. Learned counsel appearing for the appellant drawing the attention of this Court to the evidence of PW2, PW3, PW4, PW6 and PW8 would contend that closer scrutiny of the evidence of these witnesses would go to show that no offence was committed by the accused-appellant. At best, it could have been a case of consensual sex the accused had with the prosecutrix. Therefore, it is his submission that the accused-appellant is entitled to acquittal.
9. Per contra, learned counsel appearing for the State would submit that the evidence of the prosecutrix supported by the other material witnesses examined on the side of the prosecution would unerringly establish that the accused having kidnapped the prosecutrix who was 16 years and 2 months committed rape upon her in the hotels. It is his further submission that the FSL report would also indicate that semen was detected on the vaginal swabs collected from the underwear of the prosecutrix as well as the accused. It is his submission that the trial Court has rightly relied upon the unassailable evidence adduced by the prosecutrix to convict the accused under Section 363, 366, 376 and 506 IPC. It has been SUMIT GULATI 2014.11.11 11:58 I attest to the accuracy and authenticity of this document CRA-S-873-SB of 2011 -4- established that the prosecutrix was 16 years and 2 months old at the time when the occurrence took place. The prosecution has to establish that the prosecutrix was taken away by the accused out of the lawful custody of PW2 to bring home the charge under Section 366 IPC. The prosecution has to further establish that the prosecutrix was kidnapped with an intention to compel her or force her to have intercourse with the accused. As the prosecutrix was 16 years and 2 months old, the prosecution has to establish that the accused had intercourse with the prosecutrix against her consent and will to prove the charge under Section 376 IPC. The prosecution also has to establish that there was criminal intimidation to bring home the guilt to the accused under Section 506 IPC.
10. PW8 Dr.Madhu Jindal had recorded the history of the patient, namely, the prosecutrix beforever she medico-legally examined the prosecutrix. The prosecutrix had confided in her that she had intercourse with the accused on her own volition. In other words, no force was used, nor there was any compulsion on the part of the accused to have intercourse with the prosecutrix. The evidence of PW8 based on the jottings found in the MLR was not at all challenged by the prosecutrix. The uncontroverted and unchallenged testimony of PW8 would go to show that the prosecutrix, who was 16 years and 2 months old at the time when the occurrence took place, had intercourse with the accused voluntarily without any force being applied by the accused.
11. PW3 Raj Kumar and PW4 Vikas Sharma, the owner and the employee of the respective hotels where the accused and the prosecutrix had stayed have come out with a version that the accused and the prosecutrix SUMIT GULATI 2014.11.11 11:58 I attest to the accuracy and authenticity of this document CRA-S-873-SB of 2011 -5- unhesitatingly informed them that they were husband and wife. The evidence of PW6 Amit who drove the taxi taking the accused and the prosecutrix has deposed that at Rewari another boy and girl also took lift in his car. PW3 and PW4 have also deposed that another couple also came alongwith the accused and the prosecutrix to their hotels and stayed in different rooms as couple. The prosecutrix had a chance to get out of the clutches of the accused. But, it appears that she had voluntarily co-operated with the accused throughout the period she was with the accused. If at all the prosecutrix was taken away forcibly without the consent of the prosecutrix aged 16 years and 2 months, she would have agitated and informed PW6 Amit at the first instance. At the time of check-in in the hotels the prosecutrix would have definitely informed the Managers of the respective hotels that she had been taken away against her will by the accused. Instead, she had voluntarily disclosed that she was the wife of the accused.
12. The evidence of PW6 Amit completely falsifies the version of the prosecution that she was gagged and taken away forcibly by the accused. PW6 has deposed that infact the accused as well as the prosecutrix boarded the taxi at the bus stand. Further, in my considered view, at about 8.00 or 9.00 p.m. during mid March the entire family members of the prosecutrix would not have gone to bed.
13. Of course, the FSL report would show that semen was detected from the underwears of the accused and the prosecutrix. As it has been shown that there had been some consensual sex, the findings found in the FSL report do not clinch the charges framed as against the accused. SUMIT GULATI 2014.11.11 11:58 I attest to the accuracy and authenticity of this document CRA-S-873-SB of 2011 -6-
14. In my considered view, the prosecution miserably failed to establish that there was some intention on the part of the accused to compel or force the prosecutrix to have intercourse with him. The evidence of PW3, PW4, PW6 and PW8 would go to show that the prosecutrix had consensual sex with the accused. It was not established by the prosecution that the prosecutrix who was aged 16 years and 2 months at the time of occurrence was forced to have sex with the accused. The provision "Sixthly" found under Section 375 IPC had been amended only w.e.f. 3.2.2013 raising the age of the prosecutrix to 18 years of age. As per the old provision "Sixthly" under Section 375 IPC, if the accused had intercourse with a girl below 16 years, whether it was with consent or without consent, it would amount to rape. But, in the instant case, the occurrence had taken place way-back on 16.3.2010, long prior to the amendment effected. Therefore, the old provision under Section 375(Sixthly) IPC alone would apply to the case in hand.
15. In the above facts and circumstances, I hold that the prosecution miserably failed to establish the charges under Section 366, 376 and 506 IPC. But it has been established that the prosecutrix aged 16 years and 2 months was in the lawful custody of her paternal uncle. She had been taken away by the accused from such lawful custody of PW2. Therefore, in my view, the prosecution has proved that the accused had committed offence under Section 363 IPC.
16. In view of the above, setting aside the judgement of conviction and sentence passed by the trial Court under Section 366, 376 and 506 IPC, the conviction recorded by the trial Court as against the accused-appellant SUMIT GULATI 2014.11.11 11:58 I attest to the accuracy and authenticity of this document CRA-S-873-SB of 2011 -7- under Section 363 IPC is confirmed. But the sentence of 7 years imposed on the accused-appellant thereunder is reduced to the period already undergone by him. The appellant is in jail. He be set at liberty forthwith, if his custody is not required in connection with any other case.
17. Accordingly, the appeal is partly allowed.
October 29, 2014 (M. JEYAPAUL)
Gulati JUDGE
SUMIT GULATI
2014.11.11 11:58
I attest to the accuracy and
authenticity of this document