Delhi High Court
Satish Kumar vs State on 18 August, 1987
JUDGMENT
1. The prosecution case at best is unfolded in the statement of Kumari Kanchan, the prosecutrix in this case. According to her, in the year 1983, she was a student of sixth class in Nehru Kutia School. During that period, she was also learning stitching at a stitching centre, Malkaganj. According to her, in those days, accused Satish Kumar was living in her neighborhood. He used to follow her as and when she went to school or to attend the stitching centre. Quite often the accused tried to talk to her. On 28-5-1983, while she was going to the stitching centre, the accused approached her and invited her to roam about with him. At that time, the accused told her that he had already taken the permission from her parents. She refused. However, the accused made her to sit in a three-wheeler scooter and they went to various places. When the night started setting in, the accused asked her to accompany him to Agra. She hesitated but then agreed to accompany him. They boarded a night train bound for Agra. On reaching there, the accused took her to a house of his relation. There she and the accused slept on the ground floor while the other members of the family slept on the first floor. During the night, the accused raped her against her will. At that time, the accused offered to marry her. On the next morning, both of them came back to Delhi by train. They boarded a bus for Malkaganj. When they reached Koria Bridge, the police apprehended them.
2. Before that, PW-4 Ram Singh, father of the Prosecutrix had already lodged the report of the missing of his daughter which put the law into motion. The investigation was handed over to PW-14, S.I. Amin Singh. Immediately after the arrest of the accused, he and the prosecutrix were sent for medical examination. The prosecutrix was also referred to Hindu Rao Hospital for her examination and determination of her bony age. The Investigating Officer took her clothes into possession, got her statement recorded under section 164 Cr.P.C. and on the receipt of the report from the office of the C.F.S.L. completed the challan and filed the same in the court.
3. On the basis of the report under section 173 Cr.P.C., the learned Addl. Sessions Judge framed the charge under sections 366/376 IPC. The accused pleaded not guilty and claimed trial.
4. The prosecution in support of their case, examined as many as 15 witnesses out of whom, the statements of the prosecutrix, her parents, two witnesses from Agra and the medical evidence are relevant.
5. The accused in his statement under section 313 Cr.P.C. denied his involvement. According to him, the father of the prosecutrix wanted him to marry his daughter and on his inability, he was falsely implicated in this case. His further stand is that in the month of April, 1983, he had gone to Agra with his sister Kanta and stayed in the house of Daya Ram, his uncle. To support this, he produced Smt. Kanta and Shri Tek Chand in defense.
6. Learned lower court on perusal of the oral as well as documentary evidence lead by the parties on record, believed the prosecution version and convicted the accused on both the counts. He was sentenced to undergo R.I. for a period of 10 years with a fine of Rs. 5000/- for offence under section 376 I.P.C. In case of default of payment of fine, he was further directed to undergo R.I. for one year. He was also sentenced to undergo R.I. for 6 years for the offence under section 306 IPC with a fine of Rs. 5000/- and in case of default to further undergo R.I. for one year. Both the sentences were, however, directed to run concurrently. But in case of the realisation of fine of Rs. 10,000/-, Rs. 9000/- was to be paid to the prosecutrix. It is against this conviction he has preferred to file the present appeal.
7. The contention of the learned counsel for the appellant is that the prosecutrix was the consenting party to her accompanying the appellant to various places at Delhi and her stay at Agra. It was not a case of her being taken away from her lawful guardianship by the accused. In this case, according to the learned counsel, the prosecutrix has also been proved to be a major at the time of the alleged occurrence. Furthermore, there is no worthwhile evidence to suggest that the accused committed rape on her against her wishes.
8. None of these arguments are to the liking of the learned counsel for the State who mainly relies upon the statement of the prosecutrix and the evidence of the doctors who conclusively established that the prosecutrix was minor at the relevant time and was subjected to a forcible rape against her wishes.
9. I have heard the learned counsel for the parties at length and with their help gone through the record carefully.
10. There appears to be some substance in the contentions of the learned counsel for the appellant. To start with, it can safely be said that Kumari Kanchan was a consenting party to accompany the accused with a view to satisfy her lust. The elements of the offence of kidnapping as defined in S. 361 IPC are as follows :-
(1) the person kidnapped must be minor or a person of unsound mind;
(2) the age of the kidnapped person must be under 16 years in the case of a male or under 18 years in the case of a female;
(3) the minor or person of unsound mind must have been in the keeping of a lawful guardian;
(4) the kidnapping must be from the keeping of the lawful guarding of the minor or in the case of a person of unsound mind from the keeping of the lawful guardian of such person;
(5) the offender must have taken away or enticed a minor or a person of unsound mind from the keeping of the lawful guardian;
(6) such "taking" or "enticing" must be without the consent of the lawful guardian.
11. Section 366 applies to cases where at the time of the abduction the woman had no intention of marriage or illicit intercourse but the intention of the abductor must be to compel her to afterwards marry any person against her will or force her to illicit intercourse. The essential ingredient of an offence u/s. 366 IPC is that at the time of the committing of the offence, the accused intended or knew that it was likely that the abducted or kidnapped woman might or would be compelled to marry a person against her will or that she might or would be forced or seduced to illicit intercourse.
12. Within this legal limitation the evidence can be looked into to support the contention that the prosecutrix was herself responsible for taking the accused to Agra on the pretext of getting married there. It is an admitted case of the prosecution that before leaving for Agra, both of them roamed about a various places in Delhi in a three wheeler scooter from 2 p.m. to 9 p.m. Late at night, they boarded the train for Agra. She was made to stay in a house where number of ladies were present. On the next day, both of them travelled back to Delhi and were found roaming about hand-in-hand with each other. During this period, she had an ample opportunity to complain about her forcible removal from her lawful guardian by the accused. She made no attempt in this direction. The case of the prosecution is that Kumari Kanchan was threatened with a knife by the accused during all this period. But unfortunately, this fact is belied as no knife was recovered from the person of the accused when he was arrested in Delhi near Koria bridge. Even Kanchan did not state so in her statement under section 161 Cr.P.C. that the accused had at any time threatened her with a knife. This aspect can also be looked into from another angle. Immediately after her recovery, she was sent for medical examination at the Hindu Rao hospital. PW 5 Dr. Mrs. Kamini Kapoor examined her. Before that she had prepared the history, wherein Kanchan is alleged to have stated, "The girl states that she went with the boy known to her willingly on pretext of getting married in Agra on 28-5-1983. There they stayed with boy's uncle. The boy had sexual relations with her on Sunday night. She came back to Delhi on Monday and caught by police."
13. This was the first available opportunity for the prosecutrix to have unfolded the true version and the result is obvious. Certainly, it is not a case of taking away or enticing away the minor out of the keeping of the lawful guardian. Under similar circumstances, the Supreme Court in a Judgment reported as S. Vardarajan v. State of Madras, had the occasion to interpret the provisions of S. 361 IPC. During the course of the judgment, it was observed as under :-
"Even where the minor girl is kept by her father at the house of his relative, she still continues to be in the lawful guardianship of the former.
But when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) from the house of the relative of the father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the Sub-Registrar's Office where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have "taken" her out of the keeping of her lawful guardianship that is, the father.
The fact of her accompanying the accused all along is quite consistent with her own desire to be the wife of the accused in which the desire of accompanying him wherever he went is of course implicit. Under these circumstances no inference can be drawn that the accused is guilty of taking away the girl out of the keeping of her father. She has willingly accompanied him and the law does not cast upon him the duty of taking her back to her father's house or even of telling her not to accompany him".
This judgment fairly and squarely applies to the facts of the present case.
14. In spite of the above said finding, the appellant has still to cross another hurdle. It is for him to prove that Kumari Kanchan was of age at the time of the alleged incident. On this aspect, one has to scrutinise the evidence of the parents of the prosecutrix, the school leaving certificate and the medical evidence. The learned lower court has mainly relied upon the contents of the school leaving certificate Ex. PW-4/A wherein the date of birth of Kanchan is mentioned as 5-3-1968. If this date is taken into account, then on the day of the occurrence, Kanchan was just more than 15 years of age and a minor. This finding, to my mind, is not borne out from the record or at least a doubt is created about the exact date of birth of Kanchan. PW-2 Smt. Susheela is the mother of the prosecutrix. According to her in the year 1983, she was about 12 years of age. PW-4 Shri Ram Singh is the father. He gave age of his daughter as 13 1/2 or 14 years at the time of the occurrence. Both the father and the mother have not been able to give the exact date of birth of Kanchan. Admittedly, they have four children. Kanchan is the eldest child. According to Ram Singh, he was about 22/23 years old when he married Susheela. Kanchan was born after 1/1, 1/2 years of their marriage. At the time of the evidence, Smt. Susheela was aged 35 years while Ram Singh gave his age as 38 years. If their statements are taken on their face value, then Kanchan must be about 14 1/2 or 15 years of age.
15. In the opinion of PW-12, Dr. J. R. Dass, Senior Radiologist, the prosecutrix at the time of her examination was between 14 to 16 years of age. It is not disputed that there can be a variation in the age on account of climatic, diabetic or hereditary factors extending up to 1/2 years. Under the circumstances, her age could also be 17/18 years. This is an age of discretion.
16. Let us now have a look to the school leaving certificate, Ex. PW-4/A. According to Smt. Krishna Kumari, teacher in the Govt. Girls Middle School, Nehru Kutia, Malkaganj, Delhi, the said certificate was prepared on the basis of the entry in the Admission Register. She was frank enough to admit that at the time of the admission, previous school leaving certificate is produced, examined and on that basis, the date of birth of the child is recorded in the register. Unfortunately, no attempt has been made by the prosecuting agency to get hold of the previous school leaving certificate which could be said to be authentic. The evidence of this witness makes this school leaving certificate PW-4/A as inadmissible. Furthermore, it is matter of common knowledge that the ages given at the time of the admission of girls in the schools are far from being precise. More often than not, the attempt is made by the parents and guardians of their wards who get admissions in the schools, to understate their ages and to given a latter date of birth than the real one. Thus, the ages given in the school certificates are not dependable for determination of the precise date of birth of a student to whom the entry as to the date of birth in school record pertains. Where there is a conflicting evidence as to the age recorded in the school leaving certificate and as ascertained from the medical record/evidence, the benefit of uncertainty must go to the accused. On the basis of this evidence, in my opinion, the prosecution has not been able to conclusively prove the exact date of birth of the prosecutrix for which the benefit must go to the accused.
17. Now we are left only to examine if the accused has committed rape on the prosecutrix during the period she remained with him. Hers is the only statement before the court and naturally she being the victim could depose about it. However, according to the ld. counsel, the circumstance do indicate that she was not subjected to sexual intercourse by the accused. In support of this submission, the learned counsel relies upon medical examination of Kanchan and the accused, as well as the statement of the PW 11 Smt. Kumari Devi with whom the accused and prosecutrix are alleged to have stayed for a night at Agra.
18. As per the prosecution story, the accused along with the prosecutrix left Delhi on the night of 28th May, 1983 and reached Agra late at night. They went to the house of Daya Ram, stayed there for the night and on the next morning they came back to Delhi. During the night, according to the prosecutrix, the accused outraged her modesty against her will.
19. The version of PW-11 Kumari Devi is that when the accused along with the girl reached her house, the accused informed that the girl accompanying him is his sister in relation. On enquiry, similar reply was given by the girl. In cross-examination, she deposed that the girl had slept along with them in the courtyard while Satish had slept on the roof along with other tenants living in the house. Kumari Devi is the witness for the prosecution. If her statement is taken on its face value, then the accused had no opportunity to indulge in the sexual intercourse with the prosecutrix during their stay at Agra.
20. The report of Dr. Mrs. Kamini Kapoor is quite vague which does not conclusively suggest the commission of rape on Kumari Kanchan. The local examination revealed that her pubic hair were developed; there was no injury over the thigh or perinea region; hymen was torn with slight congestion at 6 O'Clock position; there was slight mating of hair with discharge; P.V. with one finger N.A.D.; slight bleeding from torn edges from hymen after P.V. examination. In cross-examination, she was frank to admit that the hymen can be torn without sexual intercourse. In the final analysis, she came out with the statement that she is not definite whether the hymen was torn by sexual intercourse or not, but most probably it was on account of sexual intercourse. On examination, she does not find any redness, injury on the posterior walls of the hymen. There was no swelling. No abrasion was seen or observed on the rest of the body. The vagina admitted one little finger.
21. The accused was examined by PW-9, Dr. J. K. Handa, his report is Ex. PW-9/A which reveals that the external genitalia was found to be normal. There was nothing to suggest that the person is incapable of doing sexual intercourse. Dr. Handa also did not find any abrasion or injury on the penis of the accused. The medical jurisprudence goes to show that where a woman had sexual intercourse for the first time, there are bound to be injuries on the penis of the person and swelling, redness or abrasion on the vaginal portion of the woman, if she is a young girl. In this case, none of these material ingredients were found to exist on the person of the accused or for that matter the prosecutrix. The cumulative effect of the medical evidence coupled with the oral testimony of Kumari Devi, at least throw a doubt on the correctness of the story of rape put forward by the prosecutrix before the court.
22. On this aspect also, the prosecution has failed to prove their case beyond any reasonable doubt.
23. As a result of the above discussion, I have no hesitation to accept the appeal, set aside the order of Shri S. N. Kapoor, Addl. Session Judge, Delhi, dated 31-3-1987. The accused is in jail. He be set at liberty at once, if not required to be detained in any other case.
24. It is ordered accordingly.
25. Appeal allowed.