Punjab-Haryana High Court
Dinesh vs State Of Haryana on 28 January, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Criminal Appeal No. 389-SB of 2005 1
In the High Court of Punjab and Haryana, at Chandigarh.
Criminal Appeal No. 389-SB of 2005
Date of Decision: 28.1.2010
Dinesh
...Appellant
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. Bhupinder Singh Walia, Advocate
for the appellant.
Mr. Deepak Jindal, Deputy Advocate
General, Haryana, for the respondent.
Kanwaljit Singh Ahluwalia, J. (Oral)
The present appeal has been instituted by Dinesh son of Ved Pal, aged 20 years. He was held guilty of offence under Sections 363, 366 and 376 IPC. The Court of Additional Sessions Judge, Hisar, sentenced him as under:-
S.No. Section Rigorous Fine Simple
Imprisonment Imprisonment
In default
1 363 Five Years Rs.2000/- One Month
2 366 Five Years Rs.2000/- One Month
3 376 Ten Years Rs.6000/- Three Months
All the sentences were ordered to run concurrent. In the present appeal, judgment of conviction and order of Criminal Appeal No. 389-SB of 2005 2 sentence has been assailed.
The appellant was named as accused in case FIR No. 559 dated 8.11.2002 registered at police Station Civil Lines, Hisar, under Sections 363, 366 and 376 IPC.
Ashok Kumar, on 8.11.2002, presented a written application Ex.PD at Police Station Civil Lines, Hisar. The subject of the application stated that that the same has been submitted for search of prosecutrix (as per orders of Hon'ble the Apex Court, name of prosecutrix is withheld). Prosecutrix was daughter of Ram Chander. Ashok Kumar stated that his father Ram Chander was suffering from paralysis. He was working as Peon in the office of Deputy Commissioner, Hisar. His sister (prosecutrix), who was born on 10.12.1985, had failed in matriculation examination. It has been further submitted that his sister (prosecutrix) was missing from the house since 7.11.2002. It was further stated that she left the house at 3.00 P.M. They were searching for the prosecutrix but she was not traceable. The prosecutrix used to go to Sewing Center for learning stitching work. From search it was learnt that Dinesh son of Ved Pal was also missing from his house since 7.11.2002. A suspicion was expressed that her sister (prosecutrix) has been enticed away due to the inducement given by Dinesh. This application was submitted on 8.11.2002. Application was exhibited as Ex.PD, on basis of which, formal FIR was registered.
The prosecutrix was recovered on 10.11.2002 at village Achera Kalan. At that time Dinesh was also present. Statement of prosecutrix, under Section 164 Cr.P.C., was also recorded by the Court of Mr. J.S. Sidhu, Judicial Magistrate Ist Class, Hisar. The investigation Criminal Appeal No. 389-SB of 2005 3 was concluded and report under Section 173 Cr.P.C. was submitted.
The appellant was charged on 11.4.2003 by the Court of Additional Sessions Judge, Hisar. The first charge stated that on 7.11.2002, in the area of Patel Nagar, Hisar, the accused had kidnapped the prosecutrix, a minor girl, from the lawful guardianship of her parents, and thereby he committed an offence punishable under Section 363 IPC. Secondly, the charge stated that the prosecutrix was kidnapped with an intention to commit illicit intercourse, thus, offence under Section 366 IPC was made out. Lastly, the charge stated that on 7.11.2002, in the area of village Achera Kalan, the appellant had committed rape upon prosecutrix, thus, offence under Section 376 IPC was made out. The appellant pleaded not guilty and claimed trial.
Prosecution examined Rajiv Deshwal, Inspector, as PW.1. He stated that he had prepared a report under Section 173 Cr.P.C.
PW.2 Raju, Draftsman, had prepared a scaled site plan Ex.PA.
Prosecutrix appeared as PW.3. She stated that she has got two brothers. Both brothers namely Baljit and Ashok are elder to her. She failed in matriculation examination and her date of birth recorded in matriculation certificate Ex.PB was 10.12.1985. Thus, on the date of occurrence, prosecutrix was about one month less than 17 years. The prosecutrix has stated that on 7.11.2002 she went to meet her friend Parveen who live in her neighbourhood. The accused had met her in the market at 3.00 P.M. Accused told that she is being called by her mother and sister, who were standing at bus stand. She accompanied the accused in three wheeler, but she did not find them at bus stand. The Criminal Appeal No. 389-SB of 2005 4 accused had threatened her to kill her and asked her to accompany him in the bus. She was taken by the accused to village Achera Kalan. Thereafter, she was taken by the accused to his house. The house was locked. The accused had opened the lock. He kept her there for three/four days and committed rape for several times. Nobody was present in the house at that time. She was medicolegally examined and her statement under Section 164 Cr.P.C. Ex.PC was recorded. This witness further stated in the cross-examination that accused had paid the fare to the driver of the three wheeler. The three wheeler dropped them outside the main gate of the bus stand. They remained present inside the bus stand for about one hour searching for her mother and sister. After one hour, accused had threatened her. Several passengers were present at the bus stand. There was also a Police Post at bus stand. She had not lodged any complaint to any Policeman or public man on account of the threats. She further stated that there were several passengers in the bus which was going to village Achera Kalan. The tickets were purchased in bus from the Conductor before the bus had left the bus stand. She had occupied the seat herself and followed the accused for boarding the bus. She made no complaint to the Conductor or Driver or any passenger of the bus. She further stated that for going to village Achera Kalan, they had changed the bus at Bus Stand, Jind. At Bus Stand, Jind, she told nobody that she was forcibly taken away by the accused.
Complainant Ashok Kumar appeared as PW.4 and reiterated what was stated in the written application Ex.PD.
Hawa Singh, Constable, and Gajraj Singh, Head Constable, Criminal Appeal No. 389-SB of 2005 5 appeared as PW.5 and PW.6. They proved their affidavits Ex.PE and Ex.PF, respectively, to prove link evidence.
PW.7 Om Parkash, Sub Inspector, had partly investigated the case.
PW.8 Dr. Anita Bansal, Medical Officer, had medicolegally examined the prosecutrix. She had found no internal or external injury. Hymen was old, torn, healed and there was no fresh bleeding. Vagina admitted two fingers easily. In cross-examination, this witness stated that the prosecutrix was habitual of sexual intercourse.
PW.9 Mr. J.S. Sidhu, Judicial Magistrate Ist Class, proved statement of prosecutrix Ex.PC, recorded under Section 164 Cr.P.C.
PW.10 Ghanshyam Devi, Lady Head Constable, stated that on 10.11.2002 she was a member of police party which recovered the prosecutrix from the custody of present accused.
PW.11 Dr. R.P. Singhal, Medical Officer, had examined the accused and stated that there was nothing to suggest that accused Dinesh was incapable of performing sexual intercourse.
PW.12 Daya Nand, Sub Inspector, was the Investigating Officer. He proved various aspects of the investigation.
Thereafter, the prosecution has closed its evidence. Statement of accused under Section 313 Cr.P.C. was recorded. All the incriminating circumstances were put to accused. He denied the same and pleaded false implication.
No witness was examined in defence.
The present appeal was filed through jail and Mr. Bhupinder Singh Walia, Advocate, has been appointed to defend the appellant by Criminal Appeal No. 389-SB of 2005 6 the Haryana State Legal Services Authority, Chandigarh.
Mr. Deepak Jindal, Deputy Advocate General, Haryana, has placed on record affidavit of Superintendent, Central Jail, Hisar. A perusal of the affidavit show that the appellant has already undergone seven years, one month and four days out of the actual sentence awarded by the trial Court.
Mr. Bhupinder Singh Walia, Advocate, appearing for the appellant, has submitted that no offence under Section 376 IPC is made out as the prosecutrix is more than 16 years and she was consenting party to the sexual intercourse.
From the written application Ex.PD, deposition of the prosecutrix PW.3, testimony of her brother Ashok Kumar PW.4 and from the matriculation certificate Ex.PB, it is conclusively proved that on the day of occurrence, the prosecutrix was aged 16 years, 10 months and 27 days. Thus, she was more than 16 years of age. A bare perusal of the testimony of the prosecutrix PW.3 reveals that she had herself left the house and had met the accused in the Bazaar. From there, she had accompanied the accused in an auto-rickshaw to the bus stand where tickets were purchased by the appellant. She herself boarded the bus. There was a Police Post at the bus stand. A number of other persons were also roaming at the bus stand. The prosecutrix had not made complaint to anybody. In the bus also, she had not raised any grievance. They alighted at the Bus Stand, Jind, remained there for about one hour and from there they took another bus to reach village Achera Kalan. She remained in the house of accused for three days. From the conduct of prosecutrix, thus, it can be safely concluded that she herself had Criminal Appeal No. 389-SB of 2005 7 accompanied the appellant and for the sexual intercourse, she had consented. A perusal of Section 375 IPC, clause "Sixthly", state that offence of rape is committed if the prosecutrix is less than 16 years of age.
In the present case, from the conduct of prosecutrix, her consent is apparent, therefore, no offence under Section 376 IPC is made out against the appellant. However, prosecutrix was less than 18 years of age. She was taken away from the lawful custody of her parents. Therefore, offence under Sections 363 and 366 IPC is made out.
Since the appellant has already undergone more than seven years of rigorous imprisonment, no ground is made out to reduce the sentence awarded, for offence under Sections 366 and 363 IPC.
To conclude, the present appeal is partly accepted. The appellant is acquitted of charge under Section 376 IPC and his conviction and sentence, on this score, is set aside, however, conviction and sentence awarded upon the appellant for offence under Sections 363 and 366 IPC is maintained.
(Kanwaljit Singh Ahluwalia) Judge January 28, 2010 "DK"