Punjab-Haryana High Court
Rajesh @ Raju vs State Of Haryana on 21 February, 2011
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Appeal S-195-SB of 2002
Date of Decision : February 21, 2011
Rajesh @ Raju
.....Appellant
Versus
State of Haryana
....Respondents
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. S.S. Narula, Advocate
Mr. Maniesh Deswal, Deputy Advocate General, Hry.
T.P.S. MANN, J.
This appeal is directed against the judgment and order dated October 23, 2001 passed by Additional Sessions Judge, Sonepat whereby the appellant was convicted under Section 366 IPC and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/-. He was also convicted under Section 376 IPC and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.2,000/- Both the sentences were ordered to run concurrently.
According to the prosecution, the appellant had kidnapped the prosecutrix, aged about 16 years and a student of 10th class, daughter of Hem Chander from his lawful custody on Crl. Appeal S-195-SB of 2002 -2- 31.10.1999 at about 9.00 A.M. when she was on her way to the fields to collect cow dung. She was kept by the appellant in his house throughout the day and night against her wishes and during her confinement, raped her. She was also induced to marry him. On the following day, the prosecutrix apprised her parents about the entire incident. However, no report was made to the police keeping in view the honour of the family. Despite the same, on 22.11.1999 at about 4.00 P.M., the appellant made some obscene gestures towards the prosecutrix while standing on the terrace of his house. Apprehending that the appellant might again try to kidnap his daughter, the complainant reported the matter to the police. On the basis of his statement, FIR No.206 dated 22.11.1999 under Sections 363, 366, 376 and 294 IPC was registered at Police Station Kharkhoda.
During investigation, the prosecutrix was got medically examined. The appellant was arrested on 24.11.1999 and also got medically examined. After completion of necessary formalities, the challan was presented in the Court. Post commitment, the trial Court charged the appellant for committing offences punishable under Sections 366 and 376 IPC, to which he pleaded not guilty and claimed trial.
In support of its case, the prosecutrix examined PW1 HC Ramesh Chander, PW2 C. Inder Pal, PW3 Dr. D.K. Bhardwaj, Crl. Appeal S-195-SB of 2002 -3- PW4, Dr.Deepak Sandhu, PW5 C. Jai Bhagwan, PW6 SI Mahabir Singh, PW7 C. Ram Phal, PW8 Dr. S.K.Gosain, PW9 the prosecutrix, PW10 Hem Chander, PW11 Ms. Poonam Suneja, Judicial Magistrate 1st Class and PW12 ASI Mool Chand. Report Ex.PK of Forensic Science Laboratory was tendered in evidence.
The plea of the appellant, when examined under Section 313 Cr.P.C, was of denial and false implication. According to him, the parents of the prosecutrix had to pay him an amount of Rs.500/- on account of grinding of wheat and stitching of clothes. When he demanded the said amount, some scuffle took place between him and the parents of the prosecutrix. Thereafter, the parents tried to involve him in the case on 31.10.1999. Despite the same, the prosecutrix told the Panchayat that she had gone to her aunt's house. Later on, the prosecutrix falsely involved him on 22.11.1999 despite the fact that no such incidence on 31.10.1999 and 22.11.1999 had taken place.
In defence, the appellant examined DW1 Narender Singh, DW2 Vijay Pal, DW3 Kapil Dev and DW4 Dr. RaKesh Girdhar. He also brought on record his disability certificate Ex.D4.
After hearing learned counsel for the parties and going through the evidence placed on the record, the trial Court believed the prosecution version and convicted and sentenced the appellant, as mentioned above.
Crl. Appeal S-195-SB of 2002 -4-
According to the prosecution, the prosecutrix was 16 year of age. It was so stated by complainant Hem Chander while submitting application Ex.PA before the police on 22.11.1999, on the basis of which FIR Ex.PA/1 was registered. When the prosecutrix was medically examined by PW3 Dr. D.K. Bhardwaj, her age was recorded as 16 years. Labia majora and minora were well developed. Pubic hair and axillary hair were present. Breasts were well developed. Hymen was torn and healed at two places. Uterus appeared to be soft and slightly enlarged. While appearing before the trial Court as PW9, the prosecutrix disclosed her age as 16 years. Similar age of the prosecutrix was described by her father PW10 Hem Chander. On the other hand, the defence examined DW1 Narender Singh, Statistical Clerk, Office of C.M.O, Sonepat and proved certificate Ex.D1 prepared on the basis of record of the year 1982 as per which the date of birth of the prosecutrix was 3.7.1982 and in that respect entry No.36 dated 3.7.1982 was made by Registrar of Births. Her parents' names were also mentioned therein.
No implicit reliance can be placed upon the testimonies of her father as well as of Dr.D.K. Bhardwaj to come to a conclusion that the prosecutrix was 16 years of age at the time of occurrence. No documentary evidence regarding any entry made with the authorities qua date of birth was produced by Crl. Appeal S-195-SB of 2002 -5- the prosecution nor any ossification test conducted for determining the age of the prosecutrix. On the other hand, the defence proved birth entry Ex.D1 as per which the prosecutrix was born on 3.7.1982 and, therefore, as on 31.10.1999, she was about 17 years and 4 months old.
The incident of rape had taken place on 31.10.1999. According to the prosecution, the prosecutrix was kept by the appellant on that day as well as during the night and it was only on the next day that she returned to her house. Despite the same, no report was lodged with the police. The plea of the prosecution that as the honour of the family was at stake and, therefore, the matter was not reported to the police, is only an after thought. It is only on 22.11.1999 that application Ex.PA was submitted by father of the prosecutrix to the police and on its basis, FIR was registered.
As per the medical evidence brought on record by PW3 Dr.D.K. Bhardwaj, apart from the hymen being torn and healed and the uterus being soft and slightly enlarged, no injury, fresh or old, on the hips, back and shoulders of the prosecutrix was present. That is an indication of the fact that act of sexual intercourse was performed with her consent. This assumes importance in view of the fact that the house of the appellant abutted the house of the prosecutrix and her parents. The Crl. Appeal S-195-SB of 2002 -6- prosecutrix was said to have been kidnapped at about 9.00 A.M. and after being kept in his house for the said day and night, the appellant committed rape upon her. Her father had been searching for her, besides reporting the matter to the Panchayat and when no action was taken by the Panchayat, the complainant approached Police Post, Sisana and returned alongwith police officials who brought her from the outskirts of the village to the Police Station. If that was a fact, the police would not have hesitated to register a criminal case against the appellant.
The prosecutrix, while appearing as PW9 came out with a strange explanation about her confinement by the appellant for about 24 hours by stating that during the period she remained with the appellant, he did not go out of the house and had even bolted the room from inside. During the said period nobody else, including the parents of the appellant, visited the house. Neither she consumed anything nor she answered the call of nature. Apparently, she had been a consenting party to the act of sexual intercourse.
In view of the above, it would not be safe to sustain the conviction of the appellant for the offence under Section 376 IPC.
Coming to the offence under Section 366 IPC, it would be apt to notice the provisions of Section 361 IPC to see whether Crl. Appeal S-195-SB of 2002 -7- the appellant actually committed the offence under Section 366 IPC or not . Section 361 IPC reads as under :-
"361. Kidnaping from lawful guardianship :
Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."
In the case in hand, the prosecutrix was about 17 years and 4 months of age. There is no evidence on record that she was enticed or taken away by the appellant from the lawful guardianship of her parents so as to induce or compel her for marriage. Instead, the evidence shows that the prosecutrix accompanied the appellant of her free will and no force was used in taking her away. Therefore, it stands established that there was no inducement or force used by the appellant and the prosecutrix went with him on her own. In S. Varadarajan v. State of Madras, AIR 1965 SC 942, it was held as under ;-
"There is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous Crl. Appeal S-195-SB of 2002 -8- though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of S.361. Where the minor leaves her father's protection knowing or having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused can not be said to have taken her away from the keeping or her lawful guardian.
Something more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian."
For the reasons mentioned above, no offence under Section 366 IPC is made out against the appellant.
Resultantly, the appeal is accepted, conviction and sentence of the appellant is set aside and he is acquitted of the charges against him. He is on bail. His bail bonds and surety bonds shall stand discharged.
( T.P.S. MANN )
February 21, 2011 JUDGE
satish