Punjab-Haryana High Court
Anil Kumar @ Sunil Son Of Ram Parshad vs The State Of Haryana on 26 March, 2009
Criminal Appeal No. 233-SB of 1995 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 233-SB of 1995
Date of Decision: 26.03.2009
Anil Kumar @ Sunil son of Ram Parshad, resident of village
Jagadholi, P.S. Chapper, Distt. Yamunanagar.
... Appellant
Versus
The State of Haryana.
...Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. A.S. Kalra, Advocate,
with Mr. Vikas Gupta, Advocate,
for the appellant.
Mr. P.S. Sullar, Deputy Advocate General , Haryana,
for the respondent.
SHAM SUNDER, J.
This appeal is directed against the judgment of conviction and the order of sentence, dated 04.04.95, rendered by the Court of Additional Sessions Judge, Jagadhri, vide which, it convicted the accused (now appellant), and sentenced him, as under:- Criminal Appeal No. 233-SB of 1995 2
Name of the Offence for which Sentence awarded accused convicted (now appellant) 1 2 3 Anil Kumar @ Sunil Under Section 363 of To undergo rigorous the Indian Penal Code. imprisonment for a period of three years and to pay a fine of Rs. 200/-, in default thereof, to undergo further rigorous imprisonment for a period of three months.
Under Section 366 of To undergo rigorous the Indian Penal Code. imprisonment for a period of five years and to pay a fine of Rs.
250/-, in default thereof, to further under rigorous imprisonment for a period of three months.
Under Section 376 of To undergo rigorous the Indian Penal Code. imprisonment for a period of five years and to pay a fine of Rs. 250/-, in default thereof, to further undergo rigorous imprisonment for a period of three months.
All the substantive sentences were ordered to run concurrently.
2. The facts, in brief, are that Krishan Ram son of Kura Ram, made a statement dated 23.07.93, which formed the basis of first information report, containing the allegations, that the prosecutrix (name not being mentioned, on account of the pronouncement of the Criminal Appeal No. 233-SB of 1995 3 Apex Court),his minor daughter aged about 13/14 years had been found missing since 20.07.93, when he had gone out of station, in connection with his work, and his wife had gone to the field for plantation of paddy saplings. Search of the prosecutrix was conducted, at various places, but no clue was found. The complainant expressed his suspicion, against Anil Kumar, accused, a shop-keeper in the village, as he was also found missing. During the course of investigation, on 25.07.93, the prosecutrix was recovered when she was found in the company of Anil Kumar, at Railway Station Kalanor, District Yamunanagar. The accused was arrested. She was got medico- legally examined. The accused was also got medico-legally examined. The statements of the witnesses were recorded. After the completion of investigation, the accused was challaned.
3. On his appearance, in the Court of the Committing Magistrate, the accused was supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, Charge under Sections 363, 366 and 376 of the Indian Penal Code, was framed against the accused, which was read-over and explained to him, to which he pleaded not guilty, and claimed judicial trial.
4. The prosecution, in support of its case, examined Dr. S.C. Kalra (PW1), who medico-legally examined Anil Kumar, accused, and opined that there was nothing to suggest that he was incapable of performing sexual intercourse.
5. Dr. Raksha Kalra (PW2), medico-legally examined the Criminal Appeal No. 233-SB of 1995 4 prosecutrix on 25.07.93, and found that her hymen was torn. Her vagina admitted two fingers easily.
6. Inder Singh (PW3), proved the School Leaving Certificate PD of the prosecutrix. He stated that as per the school record, the date of birth of the prosecutrix was 08.01.81.
7. Krishan (PW4), is the father of the prosecutrix. He proved his report PE, made to the Police, that his daughter had been missing from their house since 20.07.93, when he and his wife were not present there. He also deposed with regard to the recovery of his daughter on 25.07.93, when she was in the company of the accused. It was further stated by him that he handed over PD School Leaving Certificate of the prosecutrix to the Police, which was taken into possession, vide memo PH.
8. Tara Chand (PW5), deposed that there was no entry with regard to the birth of the prosecutrix, in the record, maintained in the office of the Registrar, death and birth, Ambala, in the year 1980-81.
9. Rishi Kumar (PW6), delivered the special report of this case on 23.07.93, to the Illaqa Magistrate.
10. The prosecutrix appeared as (PW7), and deposed with regard to her kidnapping, as also commission of rape with her by the accused.
11. Ajmer Singh, Patwari (PW8), prepared the scaled map PM.
12. Mohinder Singh, Sub Inspector (PW9), the Investigating Officer, conducted the investigation of the case. It was stated by him Criminal Appeal No. 233-SB of 1995 5 that the prosecutrix was recovered on 25.07.93, when she was in the company of the accused. He also stated that the prosecutrix was got medico-legally examined from the doctor. He also stated that her statement under Section 164 of the Code of Criminal Procedure, was recorded by the Judicial Magistrate, Jagadhri. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence.
13. After hearing Counsel for the parties and, on going through the evidence, on record, the trial Court convicted and sentenced the accused, as stated above.
14. Feeling aggrieved, the instant appeal, was filed by the appellant.
15. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
16. The Counsel for the appellant, submitted that the trial Court, in para 9 of its judgement, in clear-cut terms stated, that the prosecutrix was a consenting party. He further submitted that the accused was convicted by the trial Court, only on the ground, that the prosecutrix was below 16 years of age, at the time of alleged occurrence, and,as such, her consent or no consent hardly mattered. It was further submitted by him that the trial Court, was wrong in coming to the conclusion that the prosecutrix was below 16 years of age, at the time of alleged occurrence. He further submitted that, on the other hand, it was proved from the evidence, on record, that the prosecutrix was not kidnapped from her lawful guardianship, by the accused,but Criminal Appeal No. 233-SB of 1995 6 she of her on, accompanied the accused. He further submitted that the School Leaving Certificate PD, produced by Krishan Ram, father of the prosecutrix, before the Police, was a fabricated document. He further submitted that the judgement of the trial Court, being illegal be set- aside.
17. On the other hand, the Counsel for the respondent submitted that the age of the prosecutrix was below 16 years, at the time of the occurrence. He further submitted that the trial Court, was, thus, right in coming to the conclusion, though it held that she was a consenting party, that the accused committed the offences under Sections 363, 366 and 376 of the Indian Penal Code, as the consent of minor was of no consequence, in the eyes of law. He further submitted that the prosecutrix was taken out of the lawful guardianship of her parents, with an intent to commit sexual intercourse with her, by the accused. It was further submitted that the judgement of conviction and the order of sentence, being based, on the correct appreciation of evidence, and law, on the point, need no interference, and are liable to be upheld.
18. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, the contentions advanced by the Counsel for the appellant, deserve to be accepted, for the reasons to be recorded, hereinafter. The first question, that arises for consideration, is, as to what was the age of the prosecutrix, at the time of the alleged occurrence. Tara Chand, Criminal Appeal No. 233-SB of 1995 7 PW5, an official, from the office of the Registrar, Death and Birth, Ambala, in clear-cut terms, stated that no entry with regard to the birth of the prosecutrix was recorded, in the death and birth register, for the year 1980-81. No doubt, the prosecution, relied upon exhibit PD, the School Leaving Certificate of the prosecutrix, which was issued by Inder Singh, PW3, according to which, the date of birth of the prosecutrix was 18.08.81. It is to be determined, as to whether, this certificate, is a genuine document. This document was produced by the father of the prosecutrix, before the Police, which was taken into possession. The prosecutrix when appeared as, PW7, during the course of her cross-examination, in clear-cut terms, stated that she never studied in any school. There is no reason to disbelieve the statement of the prosecutrix, in this regard. Since, she did not study, in any school, the question of existence of her birth entry, in the School record, did not at all arise. This clearly shows that, when no other documentary evidence, with regard to the date of birth of the prosecutrix, was available, exhibit PD certificate was fabricated, to show that she was below 16 years of age, at the time of the alleged occurrence. No reliance, therefore, on exhibit PD, could be placed. In these circumstances, the evidence of Krishan, PW4, father of the prosecutrix can be said to be significant. He stated, during the course of cross- examination, that except his one son, the date of birth of his other children, including the prosecutrix, was got recorded in the register of the Chowkidar. He also stated that the prosecutrix was born at Sohana. Criminal Appeal No. 233-SB of 1995 8 However, the true copy of that entry from the register of the Chowkidar, was not produced, in the Court. Even the Chowkidar was not examined, to prove, as to what was the date of birth of the prosecutrix, as per the entry in his record. It was further stated by him that Kanta, his elder daughter was aged 20 years, as on 16.05.94 (date of his deposition). He further stated that she was married. He further stated that at the time of occurrence, she was not married. It was further stated by him, that the prosecutrix was born three years after Kanta. If, this statement of Krishan, father of the prosecutrix is taken to be correct, then on 20.07.93, the date on which, the prosecutrix was found missing, the age of Kanta, was 19 years 2 months and 4 days and the age of the prosecutrix, at the time of the alleged occurrence was 16 years 2 months and 4 days. From the evidence, produced by the prosecution, it was, thus, proved that the prosecutrix was not below 16 years of age, at the time of the alleged occurrence. The trial Court, in my considered opinion, mis-read the evidence and, therefore, reached a wrong conclusion, that the age of the prosecutrix, at the time of the alleged occurrence was less than 16 years. The findings of the trial Court, that the prosecutrix was below 16 years of age, at the time of the alleged occurrence, therefore, are not based, on the correct appreciation of evidence, and the same are liable to be set-aside.
19. The next question, that arises for consideration, is, as to whether, the prosecutrix was a consenting party. The trial Court, in para 9 of its judgement, in clear-cut terms, after due appreciation of the Criminal Appeal No. 233-SB of 1995 9 evidence, held that the prosecutrix was a consenting party. For reaching this conclusion, the trial Court, recorded valid reasons. The prosecutrix, in her statement, while appearing as PW7, stated that she went to the shop of the accused, for purchasing some articles, when he struck her head against the wall and consequently she became semi-conscious. She also stated that the accused showed her knife. However, this statement of the prosecutrix, in the Court, is nothing but an improvement, over her previous statement exhibit DA, which was made by her under Section 164 of the Code of Criminal Procedure, first in point of time, when she was recovered. Had such a thing happened with her, she would have certainly made mention thereof, in her statement under Section 164 of the Code of Criminal Procedure. This being an improvement, over her previous statement certainly could not be taken notice of. Not only this, had her head been struck against the wall, as stated by her, in her statement, in the Court, then injury on the same, would have been found, when she was medico-legally examined by Dr. Raksha Kalra, PW2. Dr. Raksha Kalkra, however, did not state, even a single word, in her statement, that she found any injury, on the head or forehead of the prosecutrix. Not only this, even the knife, allegedly shown by the accused, to the prosecutrix, was not recovered by the Police. This clearly showed that neither her head was struck against the wall, resulting into rendering her semi-conscious, nor she was shown knife by the accused. She was all alone, in the house, as her parents had gone outside. It appears that she was having an alliance with the Criminal Appeal No. 233-SB of 1995 10 accused. Finding an appropriate opportunity, she left the house of her own, and went to the shop of the accused, and accompanied him to various places of her own accord. It was stated by her, that she was kept in the orchard for three days. She further stated that thereafter she was taken to Jagadhri, where she was kept for two days, at some house. She further stated that thereafter she was taken to Kalanaur, Tehsil Jagadhri, and when they were sitting at the plat-form, they were apprehended. She also stated during the course of her cross- examination, that she was taken on a cycle, from her village, to Bilaspur, via metalled road. She further stated that, in the orchard, which was situated after crossing Bilaspur, the rooms were not locked. The same were lying open. She further stated that there were 10-12 houses, adjoining that orchard. She, in clear-cut terms, stated that she did not raise alarm, on the way, because the accused had shown her knife. Her statement that the accused had shown her knife, has already been disbelieved. She further stated that the accused used to bring meals from outside, and she used to take small quantity of the same. She further stated that she did not raise any alarm, when she was brought from Jagadhri to Kalanaur. She also stated that she was never allured or induced, by the accused. In case, the accused had forcibly taken the prosecutrix, against her will, and allegedly committed sexual intercourse with her, without her consent, she had many occasions to raise alarm, so as to attract the attention of a number of persons. As per her own statement, there were 10-12 houses, in the orchard, where she Criminal Appeal No. 233-SB of 1995 11 was kept for three days. She could raise alarm and attract the attention of the persons living in those houses. She could also raise alarm, while she was taken on a cycle on the metalled road from place to place. However, she kept silent throughout. She also did not make any complaint to any Police Station. When she was being taken, on a cycle, through the metalled road, the villages and towns must have fallen on the way, but she did not raise alarm. This all goes to show that the prosecutrix was a consenting party. She eloped with the accused of her own, and had sex with him of her own accord. Ultimately, when she was found, in the company of the accused, and apprehended, under the pressure of her parents, she made a statement, against the accused, to the effect, that he forcibly took her away and committed rape with her. The trial Court, was, thus, right in coming to the conclusion, that the prosecutrix was a consenting party. Since the age of the prosecutrix was more than 16 years, at the time of the alleged occurrence, if sexual intercourse was committed with her, by the accused, with her consent, he did not commit any offence, punishable under Section 376 of the Indian Penal Code. The findings of the trial Court, that the prosecutrix was a consenting party, being correct, are affirmed.
20. The next question, that arises for consideration, is, as to whether, the accused committed the offence, punishable under Sections 363 and 366 of the Indian Penal Code, especially when the prosecutrix was below 18 years of age, at the time of the alleged occurrence. The offence of kidnapping, from lawful guardianship, is defined in the first Criminal Appeal No. 233-SB of 1995 12 paragraph of Section 361 of the Indian Penal Code, which reads as under:-
"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."
21. It is apparent, from the provisions of Section 361 of the Indian Penal Code, that taking or enticing away a minor out of the keeping of a lawful guardian, is an essential ingredient of the offence of kidnapping. It is to be determined, as to whether, the part played by the appellant amounts to "taking" out of the keeping of the lawful guardianship of the parents of the prosecutrix. It has been stated above, that the prosecutrix, in the absence of her parents, of her own, went to the shop of the accused. She accompanied the accused of her own accord, to various places, and remained in his company for five days, without any threat, allurement or inducement. Since the prosecutrix was above the age of 16 years, she was mature enough, to decide between her good and bad. In such circumstances, if she left her house of her own accord and accompanied the accused, it could not be said that she was taken out of the keeping of the lawful guardianship of her parents by the accused. The prosecutrix while appearing as, PW7, in her own statement, also stated that the accused did not induce or allure her to accompany him. No evidence was also produced, by the prosecution, that immediately prior to the alleged occurrence, some Criminal Appeal No. 233-SB of 1995 13 active part was played by the accused, or he had at some earlier stage, solicited or persuaded the minor, to leave the house of her parents. Thus, the essential ingredients, required for constituting the offence, punishable under Section 363 of the Indian Penal Code, that the prosecutrix was taken or enticed away out of the keeping of lawful guardianship were not proved. In S. Varadarajan Vs. State of Madras, AIR, 1965 (SC), 942, a case decided by three Hon'ble Judges of the Apex Court, it was observed, as under:-
"But when the girl (who though a minor had attained the age of discretion and is one 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 Criminal Appeal No. 233-SB of 1995 14 to her father's house or even of telling her not to accompany him.
There is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it cannot 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 and having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused cannot be said to have taken her away from the keeping of 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."
The facts of S. Varadarajan's case (supra), are almost identical to the facts of the instant case. The ratio of law, laid down, in the aforesaid case, is applicable to the facts of the instant case. The ingredients, required for constituting the offence under Section 366 of the Indian Penal Code, were also not fulfilled, in the instant case. The trial Court, was, thus, wrong in coming to the conclusion, that the accused committed the offences, punishable under Sections 363 and 366 of the Indian Penal Code. It is held that the accused did not commit the offences, punishable under Sections 363 and 366 of the Indian Penal Code. The findings of the trial Court, to the contrary, being incorrect are reversed.
22. In view of the above discussion, it is held that the judgement of conviction and the order of sentence, rendered by the trial Criminal Appeal No. 233-SB of 1995 15 Court, are not based on the correct appreciation of evidence, and law on the point. The same warrant interference, and are liable to be set-aside.
23. For the reasons recorded above, the appeal is accepted. The judgement of conviction and the order of sentence, rendered by the trial Court, are set-aside. The appellant shall stand acquitted of the charge. If the appellant is on bail, he shall be discharged of his bail bonds. If he is in custody, he shall be set at liberty, if not required, in any other case.
24. The Chief Judicial Magistrate, is directed to comply with the judgement promptly, in accordance with the provisions of law, on receipt of a copy thereof.
26.03.2009 (SHAM SUNDER) Amodh JUDGE