Punjab-Haryana High Court
Sukhbir Kabul Singh vs State Of Haryana on 23 March, 2005
Equivalent citations: 2005CRILJ2457
Author: Mehtab S. Gill
Bench: Mehtab S. Gill
JUDGMENT S. Gill, J.
1. This is an appeal against the judgment dated 19-11-1998 of the Additional Sessions Judge, Rewari whereby he convicted appellant Sukhbir under Section 366, I.P.C. and sentenced him to undergo R.I. for 10 years and to pay a fine of Rs. 25000/- and in default of payment of fine, to further undergo R.I. for one year. Appellant was also convicted under Section 376, I.P.C. and sentenced to undergo R.I. for 7 years and to pay a fine of Rs. 15000/- and in default of payment of fine, to further undergo R.I. for one year. However, the substantive sentences were ordered to run concurrently.
2. The prosecution story is unfolded by P.W.-9 Kishan Lal, father of the prosecutrix on whose statement the F.I.R. was registered. On his statement Ex. PD recorded before P.W.-5 SI Daya Nand, he stated that he has three sons and three daughters. Two of his daughters are married. His youngest daughter Sukhpati aged 15 years is unmarried. His house is situated on the road outside the village. Bablu Thakur resident of Village Nanu Karan used to sell onions in their village. On 19-6-1997, complainant's daughter Sukhpati had gone to the field to collect fodder. She did not return till 2 p.m. On enquiry, he came to know that appellant Sukhbir had taken Sukhpati with him. Sukhbir is also known as Bablu Thakur. Complainant suspected that Bablu Thakur had taken his daughter to adduce her to marry him. On the basis of this statement, formal F.I.R. Ex. PD/1 was registered in Police Station Dharuhera on 19-6-1997 at 10.30 p.m.
3. The prosecution to prove its case, examined P. W.-1 Dr. M. K. Garg, P.W.-2 Dr. Chander Sheikher, P.W.-3 ASI Ram Phal, P. W.-4 Babu Lal, P.W.-5 Daya Nand SI/SHO, Police Station Khol, P.W.-6 Constable Om Bir Singh, P.W.-7 Sukhpati, the prosecutrix, P.W.-8 Tara Chand, P.W.-9 Kishan Lal complainant, P.W.-10 SI Raghbir Parshad, P.W.-11 Dr. (Mrs.) N.K. Arora. P.W.-12 H.C. Hoshiar Singh and P.W.-13 Constable Preet Singh.
4. Learned counsel for the appellant has stated that the conduct of the prosecutrix was not that of a girl who was abducted and then raped. As per statement of the prosecutrix, appellant used to sell onions in the village and used to come to their house. On 19-6-1997, appellant asked the prosecutrix to meet him in the fields, stating that he had some work. Prosecutrix met the appellant at 1.00/1.30 p.m. in the fields. He had a Maruti van which was driven by some other person. The prosecutrix was taken by the appellant in the van to village Behror, then to village Kotputli by bus. From there to Nijampur and then to Narnaul and Dadri. From Dadri they went to Bhiwani by train. At Bhiwani, they stayed in the house of the sister of the appellant. From there she was taken to Loharu. Rape was committed on her at Bhiwani in the house of the sister of the appellant. From Loharu she was taken to Bikaner and then they went to Ahmedabad and Jaipur. From Jaipur they went to Alwar. Then they went to Nangal Mundi. During this period when she was being taken from place to place, especially when she was in the house of the sister of the appellant, where she was raped for the first time, no protest was made by her, nor did she complain to anyone in the house. Further, in her testimony, she has stated that she was taken to Nangal Mundi in the house of Bikram Singh, Advocate where again rape was committed on her. She was then taken to Rewari for the purpose of marriage. A pistol was given to the appellant by Bikram Singh, Advocate which was shown to her.
5. The version put forward by the prosecutrix does not carry conviction. Sister of the appellant and Bikram Singh, Advocate would not have allowed the appellant to commit rape on the prosecutrix in their house. No recovery of the pistol has been made from Bikram Singh, Advocate. The School Leaving certificate of the prosecutrix Ex. PC which shows her date of birth to be 5-4-1980, meaning thereby that her age on the date of occurrence was 17 years 2 months and 14 days.
6. Learned counsel for the appellant relied upon a judgment of the Hon'ble Supreme Court in Jinish Lal Sah v. State of Bihar (2003) 1 Rec Cri R (Criminal) 247 : (2003 Cri LJ 4914). This was a case where the prosecutrix was above 18 years of age and remained with the accused for 10 days and travelled by train and tempo without protest and made no effort to seek help from others, it was held by the Hon'ble Apex Court that prosecutrix was a consenting party. Prosecution had failed to establish threat coercion or inducement. Accused was not held guilty under Sections 366A, 366 or 376, I.P.C.
7. Learned counsel for the appellant also relied upon a judgment of the Delhi High Court in Mahabir v. State (1994) 3 Rec Cri R 46, wherein it was that the prosecutrix who remained with the accused for 15 days and moved to various places, it was held that the prosecutrix was a willing party. Accused was acquitted.
8. Learned counsel for the State has stated that, the prosecutrix was allured by the appellant to get married. She was never a consenting party. She did not give her consent for sexual intercourse. Her age at the time of occurrence was less than 16 years, as per the statement made by the prosecutrix and her father Kishan Lal (P.W.-9). Consent, if any, did not have any meaning, as she was a minor.
9. I have heard the learned counsel for the parties and perused the record with their assistance.
10. P.W.-1 Dr. M.K. Garg in his statement has stated that he examined the prosecutrix radiologically. He gave his opinion that age of the prosecutrix was more than 19 years. X-ray films of the prosecutrix which were taken in his presence, are Exhibits P1 to P6. His opinion regarding age of the prosecutrix is Ex. PA. He has further stated that variation could be 3 years on either side i.e. she could be 16 years or 22 years.
11. P.W.-4 Babu Lal, Acting Principal, Government, Senior Secondary School, Tatarpur, has stated that the prosecutrix remained a student in his school. As per the school record, date of birth of the prosecutrix is 5-4-1980. Ex. PC is the School Leaving Certificate issued by the school. As per this certificate, date of birth of the prosecutrix is shown as 5-4-1980. Date of occurrence is 19-6-1997. Age of the prosecutrix is thus 17 years 2 months and 14 days on the date of occurrence. It has been established beyond doubt that prosecutrix was aged more than 16 years on the date of occurrence.
12. The prosecutrix appeared in the witness-box as P.W.-7. In her statement, she has stated that the she was taken to the fields at 1.00/1.30 p.m. From there she was taken to Behror and then to Kotputli and Nizampur by bus and then to Narnaul and Dadri. From Dadri they went to Bhiwani by train. Appellant and the prosecutrix stayed in the house of sister of the appellant where she was raped for the first time. From Bhiwani she went to Loharu and then to Bikaner. Rape was again committed on her. From there they went to Ahmedabad, then to Jaipur where rape was committed on her and then they came to Gurgaon. Some papers were arranged for her marriage. From there they went to Jaipur and Alwar. Rape was then committed on her. From there they went to Nangal Mandi to the house of Bikram Singh, Advocate where rape was again committed on her. Appellant then took her to Rewari for the purpose of marriage. She was threatened, showing her a pistol which belonged to Bikram Singh, Advocate, so that she gave her consent for the marriage. She was arrested by the police when she presented herself before the Court.
13. The prosecutrix went from place to place with the appellant in a Maruti van, bus and train, but she did not protest to anyone that she was being abducted. It has come in her cross-examination by the Minings stated by her that she travelled during day time. A number of people were present at the bus stand, in the buses and train, but there was no protest from her side. Bikram Singh, Advocate is no other person than the counsel for the appellant. Though she has stated that Bikram Singh had given a pistol to the appellant with which she was threatened with, no recovery of pistol has been made. Statement of the prosecutrix seems to be a fanciful story which cannot be believed. Letters Exhibits D1 to D5 and D6 to D11 show that appellant and the prosecutrix were having a love affair. Photographs Exhibits D12 to D27 also show that the prosecutrix was happily going from place to place with the appellant on her own free will.
14. Statement of the prosecutrix and her father Kishan Lal (P.W. 9) do not corroborate on material aspects. Kishan Lal has stated that one Tara Chand had told him about the abduction of his daughter by the appellant. Tara Chand who appeared as P.W.-8, resiled from his statement. He was declared hostile and cross-examined by the Public Prosecutrix. Tara Chand stood his ground and stated that he had never given any statement to the police, it is also incorrect that appellant took the prosecutrix in a vehicle. P.W.-9 Kishan Lal in his statement has admitted that appellant Sukhbir was known to the family for the last 2/3 years. It is not only that he used to come to sell onions in the village, but at times, he stayed in their house during night. No person would allow a stranger to stay in his house during night, unless and until he is confident that a person will not do anything wrong, especially when there is an unmarried daughter in the house. It is clear that appellant had become a part and parcel of the household of P.W.-9 Kishan Lal, before he (appellant) and the prosecutrix ran away. Kishan Lal has admitted that he received letters from his daughter mentioning that she had gone with the appellant of her own.
15. P.W.-10 SI Raghbir Parshad has stated that on 1-8-1997 appellant moved an application for anticipatory bail. Directions were given to the Investigating Officer to produce the prosecutrix in Court. She appeared before the Court on 4-8-1997. Her statement was recorded thereafter. It is clear that from 19-6-1997 to 4-8-1997, appellant and the prosecutrix stayed together.
16. After going through the evidence of the prosecutrix who appeared as P.W.-7, P.W.-9 Kishan Lal and P.W.-8 Tara Chand it is clear that the prosecutrix willingly and on her own went with the appellant in the Maruti van. Though she has stated that she was threatened, but there is not even an iota of evidence to this effect. She was a consenting party.
17. In Jinish Lal Sah v. State of Bihar (2003 Cri LJ 4914) (supra) it was held by the Hon'ble Supreme Court that in the absence of any material to show that there was forcible marriage or rape, the prosecution version cannot be accepted.
18. In the case in hand, prosecutrix was a consenting party. She of her own will and wish went with the appellant.
19. For the reasons recorded above, the appeal succeeds, Judgment dated 19-1-1998 of conviction and sentence of the appellant passed by the Additional Sessions Judge, Rewari is set aside. Appellant is acquitted. Appellant shall be released forthwith if he is in custody and not required in any other case.