Punjab-Haryana High Court
Jiwan Kumar vs State Of Haryana on 9 June, 2009
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 798-SB of 2009
Date of decision: 9th June, 2009
Jiwan Kumar
... Appellant
Versus
State of Haryana
... Respondent
CORAM: HOB'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Pawan Hooda, Advocate for the appellant.
Mr. S.S. Kharb, Assistant Advocate General, Haryana
for the State.
KANWALJIT SINGH AHLUWALIA, J.
Present appeal has been filed by Jiwan Kumar son of Toran Rishi Dev, aged 22 years, resident of Badhari, District Medhapura (Bihar). Present appeal has been filed through jail, by the counsel through legal aid. On March 26, 2009, this Court had passed the following order:
"Criminal Appeal No. 798-SB of 2009 Counsel for the applicant-appellant has submitted that applicant is a migrant labour of Bihar and this appeal has been assigned to him through legal aid and even if bail is granted, sureties may not be available.
Therefore, prayer for suspension of sentence is declined. Trial Court record be requisitioned and appeal be listed for final hearing and disposal on 30th April, 2009."
The appellant has been nominated as accused in case FIR No. 151 dated 21.06.2007 registered at Police Station Indri under sections Criminal Appeal No. 798-SB of 2009 2 363, 366-A, 376, 506 IPC. FIR was lodged on the basis of statement, Ex.P3 made by Rishi Pal to ASI Japal Giri.
Rishi Pal, in his statement, stated that he is working as a Mason. He has got three children. The eldest daughter is aged 16 years, thereafter, younger to her is a daughter aged 14 years and the youngest son is aged 12 years. The eldest daughter (prosecutrix) had appeared for 10th Class examination from the Haryana Open School, Bhiwani. She had failed in the examination. Co-villager Dharmender son of Dharampal had employed a Bihari servant, who was named Jiwan Kumar son of Rishi Dev. He is resident of Badhari, District Medhapura (Bihar). On 19th June, 2007, he returned to his house at 11.30 p.m. after irrigating his fields. His family members, including his daughters, were sleeping on the roof of the house. At 2.00 a.m., he woke up from his sleep and asked his wife that prosecutrix, from the roof of the house, be called to sleep in the room. At 5.30 in the morning, when his wife got up, it was found that their daughter (prosecutrix) was missing. The family carried search for the prosecutrix in the village but she was not found. It was later learnt from Dharmender son of Dharampal that his servant Jiwan Kumar was also missing. Servant Jiwan had also taken bicycle of his employer Dharmender. In the FIR, it was stated that they have suspicion that daughter (prosecutrix) has been enticed away by Jiwan.
On the basis of statement, FIR Ex.P4 was recorded. The matter was investigated. Report under section 173 Cr.P.C. was submitted. Vide Ex.P11, the Investigating Officer had taken certificate issued by the Board of School Education, Haryana, in which date of birth of the prosecutrix was recorded as 7th September, 1991. The appellant Jiwan Kumar was arrested on 12th July, 2007. On 7th September, 2007, the appellant was charged that on the intervening night of 19th and 20th June, Criminal Appeal No. 798-SB of 2009 3 2007, in the village Khukhni, he kidnapped Reena from her house. Reena being minor was enticed out of the lawful guardianship of her parents and without their consent, thereby he committed offence punishable under section 363 IPC. He was further charged that prosecutrix was kidnapped with criminal intimidation with the intent that she may be compelled to illicit intercourse, thereby offence under section 366 IPC was also committed. He was further charged under section 376 IPC for committing rape upon the prosecutrix upto 9th July, 2007 in Bihar. Furthermore and lastly, he was charged under section 506 IPC for having threatened the prosecutrix to cause death of her brother. The appellant pleaded not guilty and claimed trial.
Prosecution examined Dr.Deepak Gupta as PW-1. He stated that he medico-legally examined the appellant aged 22 years and found him capable of performing sexual intercourse. Dr. Samta, who was then posted as Medical Officer, Primary Health Centre, in Civil Hospital, Indri appeared as PW-13. She examined the prosecutrix on 12th July, 2007. Clinically, no abnormality was detected. Secondary sexual characters were well developed. No external mark of injury was seen anywhere on the body. Examination of vagina revealed that heeled remnants of hymen were present. Vagina admitted two fingers. Patient was sent to the Radiologist for determination of the age. In cross-examination, she admitted that the patient had not disclosed to her about sexual assault. ASI Daljit Singh appeared as PW-2. He stated that on the basis of written ruqqa Ex.P3, formal FIR Ex.P4 was recorded. PW-3 ASI Jain Sahab, PW- 4 SI Jagpal Singh, PW-5 Constable Veer Shakti Singh, PW-6 MHC Ranbir Singh and PW-7 EHC Karam Singh proved various facets of investigation, i.e. sending of special report, preparation of report under section 173 Cr.P.C., preparation of scaled site plan and affidavits, Ex.P7 and P8 to Criminal Appeal No. 798-SB of 2009 4 prove link evidence. Details of their testimony are not required to be mentioned as there is no dispute regarding the deposition made by them. Rishi Pal, father of the prosecutrix appeared as PW-8. Dharmender, employer of the appellant, appeared as PW-9. Suresh Kumar appeared as PW-10 and stated that his niece (prosecutrix) was kidnapped by the appellant.
Prosecutrix appeared as PW-11. She stated that accused appellant was known to her from last three years. She had a love affair with him. She further stated that police went to village, brought the appellant back and that accused had not made any sexual intercourse with her against her will and wish. She was declared hostile and public prosecutor examined her.
Santosh, mother of the prosecutrix appeared as PW-12. The Investigating Officer, ASI Japal Giri appeared as PW-14.
All incriminating evidence was put to the accused. The appellant denied the allegations and stated that he has been falsely implicated. He stated that he had a love affair with the prosecutrix. She had written many love letters to him. In defence, DW-1 Dr. Vinish Madan, Dental Surgeon was examined. From dental examination, he determined age of the prosecutrix to be 16-17 years. Raj Pal Arya DW-2 brought the record regarding birth of prosecutrix. He stated that in the register of births for the year 1991-92, date of birth of the prosecutrix is not recorded. DW-3 Ashok Sharma, Superintendent Education Board, Bhiwani proved application form of the prosecutrix, in which her date of birth recorded was 7th September, 1991. The witness was cross-examined by the defence counsel. Detailed marks sheet, Ex.P10 was put to the witness. In Ex.P10, date of birth of the prosecutrix recorded is 7th September, 1991. DW-4 Tilak Raj, Inspector Food Supply, Indri had brought the summoned record, Criminal Appeal No. 798-SB of 2009 5 i.e. register of application form applying for the ration card. In the ration card form Ex.D5, age of the prosecutrix was mentioned as 16 years. DW-5 Raj Pal Arya, an official from the office of Registrar of Births and Deaths proved register of births for the year 1998. In 1998, at Sr. No. 12, name of the daughter of Rishi Pal was noticed as Nosi Devi and date of birth recorded is 5th June, 1988. Name of the mother of Nosi Devi was recorded as Shanti Devi.
With the testimony of prosecutrix that she had a love affair and she performed marriage with the appellant, the entire controversy before the trial Court revolved around determination of age of the prosecutrix. The trial Court acquitted the appellant for offence under Section 366 and 376 IPC, found him guilty only for offence under Section 363 IPC and sentenced him to undergo rigorous imprisonment for three years and six months and to pay fine of Rs.1000/-, in default of payment of fine to further undergo rigorous imprisonment for one month.
Counsel for the appellant has advanced arguments and has urged that the prosecutrix was more than 18 years of age, therefore, the appellant is to be acquitted for offence under Section 363 IPC also.
In the present judgment, testimony of witnesses has not been mentioned in details as the only question this Court has been called upon is to assess, evaluate and determine the age of the prosecutrix.
Counsel for the appellant has read following findings of the trial Court. For facility, the same are reproduced below:
"35 Now the second question, whether prosecutrix was kidnapped and there was any sexual intercourse with her? The prosecution version in this regard is more or less admitted. The prosecutrix brought out that she went with accused willingly and married him. The case of the accused is also the same. It is on record from unrebutted evidence that the prosecutrix and accused stayed with each other as Criminal Appeal No. 798-SB of 2009 6 husband and wife for around 20/21 days and she was ultimately recovered from the company of accused. PW3 Dr.Samta brought out that possibility of sexual intercourse being performed cannot be ruled out. Thus, keeping in view the evidence on record, taking away of the prosecutrix by the accused stands proved, but there is no evidence of sexual intercourse much less the forcible sexual intercourse despite marriage. The charge under Section 376 IPC must fail.
36. Now coming to the charge under Section 366 of Indian Penal Code, the marriage of accused with prosecutrix is proved, but the prosecution failed to prove that prosecutrix was kidnapped or abducted with intent that she was compelled or knowing it to be likely that she would be compelled to marry any person against her will. The prosecutrix states that she married accused willingly. There is no evidence that prosecutrix was forced or seduced to illicit intercourse. Thus the charge u/s 366 IPC also fails."
Learned trial Court relied solely upon matriculation certificate, Ex.P10 and held that the prosecutrix was born on 7th September, 1991. Thus, she was less than 18 years of age when she left with the appellant. Birth entry Ex.D7 was not believed, as it relate to Nosi Devi with a different name of mother. The argument raised by the counsel for the appellant before this Court that in the ration card prepared six years ago, age of the prosecutrix was mentioned as 16 years, therefore on date of occurrence she was more than 18 years, was rightly held not acceptable by the trial Court in view of the deposition of the witnesses, matriculation certificate Ex.P10 and dental examination of the prosecutrix, which determined her age to be between 16 - 17 years. Therefore, counsel for the appellant has failed to persuade this Court that the prosecutrix was more than 18 years of age. The finding of the trial Court that prosecutrix was less than 18 years of age, from the facts and circumstances of the case, is justifiable. Criminal Appeal No. 798-SB of 2009 7
Counsel for the appellant has also submitted that prosecutrix is confined in Nari Niketan and she is still wife of the appellant and she had written letters to the counsel that her husband be got released from the jail so that she can resume her marital relations. Counsel has submitted that the prosecutrix and the appellant, being of tender age, have performed their marriage against the wishes of their parents and the appellant, being migrant labourer of Bihar, be leniently dealt with by this Court. It has been stated that the trial Court has erred by awarding three and half years sentence to the appellant, as the same is not only excessive but the marriage of the appellant with the prosecutrix is also in doldrums.
Custody certificate has been produced on record by counsel for the State. Superintendent, District Jail Karnal has filed his affidavit, according to which, the appellant had undergone 1 year 9 months and 11 days up to 14th April, 2009.
Taking into consideration that the appellant is a young man of 22 years and he had performed marriage against the wishes of parents of the prosecutrix and that prosecutrix has supported him when she was examined in the Court and as the counsel has stated that prosecutrix, who has now become major, is still wife of the appellant and is ready and willing to resume her marital relations, I am of the view that ends of justice will be fully met in case sentence awarded upon the appellant is reduced from 3 ½ years rigorous imprisonment to 2 years rigorous imprisonment. However, sentence of fine is also waived, as appeal has been filed through legal aid.
With these modifications in the sentence, present appeal is disposed off.
Criminal Appeal No. 798-SB of 2009 8
Copy of this order be sent forthwith by the registry to the jail authorities.
(KANWALJIT SINGH AHLUWALIA) JUDGE June 9, 2009 rps