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Himachal Pradesh High Court · body

2001 DIGILAW 13 (HP)

KAMAL KUMAR v. STATE OF H. P.

2001-01-11

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J.:- This jail appeal has been preferred by the appellant/accused (here-after referred to as the accused) against the judgment dated 5.5.1999 passed by the learned Sessions Judge, Chamba whereby the accused has been convicted under Sections 363 and 366 of the Indian Penal Code and has been sentenced to imprisonment for a period of three years and to pay fine in the sum of Rs. 1000/- under Section 363 of the Indian Penal Code, and to imprisonment for a period of three yeas and fine of Rs.1000/- under Section 366 of the Indian Penal Code and in default of payment of fine, he has been directed to undergo further imprisonment for a period of six months on each count. 2. Case of the prosecution, in brief, is that Vidya Devi (PW-4), prose-cutrix in the case, belongs to village Kalote where she used to reside with her mother Pano Devi (PW-3). Her father Prithi Chand (PW- 5) used to remain away from {he village because of his being in service. The accused, who belongs to Jammu area, was working as a domestic servant in the house of one Bias Dev in the year 1995. The accused had developed intimacy with the prosecutrix and had been persuading her to marry him. On the night intervening 22nd/23rd of June, 1995, when the prosecutrix was sleeping in a room of her house, the accused from the front window asked her to come out of the house which she declined. The accused, however, threatened her thereby forcing the prosecutrix to come out of the room and thereafter she was taken away by the accused with him to Jammu area. The accused has been removing the prosecutrix from one place to another and had been committing rape on her on ever night. On 23.6.1995 when PW-3 did not find the prosecutrix at home, the matter was reported by her to the Police vide her statement under Section 151 of the code of Criminal Procedure Ext. PF on the basis of which First Information Report Ext. PL was recorded at Police Station, J Chairi. The prosecutrix was recovered from a place known as Jhanghotra and was handed over to her father (PW-5) vide memo. Ext. PD. The prosecutrix thereafter was got medically examined and the MLC about such medical examination is Ext. PA. PF on the basis of which First Information Report Ext. PL was recorded at Police Station, J Chairi. The prosecutrix was recovered from a place known as Jhanghotra and was handed over to her father (PW-5) vide memo. Ext. PD. The prosecutrix thereafter was got medically examined and the MLC about such medical examination is Ext. PA. As per the opinion given therein, no mark of injury was found on the person of the prosecutrix. The opinion of Dental Surgeon was also obtained about the age of the prosecutrix and as per such opinion her age at the relevant time was about 13 to 16 years. Her ossification test was also conducted for determination of her age and the opinion in this regard is Ext. PC/1 whereby her age at the relevant time has been opined to be between 18 to 20 years. The "Salvar" of the prosecutrix was taken in possession at the time of her medical examination. On arrest of the accused, he was also got medically examined and MLC in this regard is Ext. PG whereby it has been opined that there was nothing to suggest that the accused could not perform sexual intercourse. On production by the accused, his underwear was also taken in possession by the police vide memo. Ext. PE. The aforesaid wearing apparels of the accused and the prosecutrix along with the slides containing vaginal smear and vial containing vaginal swab which were taken at the time of the medical examination of the prosecutrix, were sent for chemical analysis to the H.P. State Forensic Science Laboratory. As per the opinion given by the Deputy Director of the aforesaid Laboratory, human semen was found on the underwear and vaginal smear and human semen and human blood was found on the "Salvar". Blood was detected in the shirt and the vaginal swab. During the course of investigation, the certificates Exts. Ph.PJ and PK about the date of birth of the prosecutrix were also obtained by the investigating agency. Ob completion of the investigation, a charge-sheet under Sections 363,366 and 376 of the Indian Penal Code was submitted by the Officer In charge, Police Station Khairi against the accused as a consequence whereof a charge under Sections 363,366 and 376 of the Indian Penal Code was framed against the accused by the learned Sessions Judge, Chamba. 3. Ob completion of the investigation, a charge-sheet under Sections 363,366 and 376 of the Indian Penal Code was submitted by the Officer In charge, Police Station Khairi against the accused as a consequence whereof a charge under Sections 363,366 and 376 of the Indian Penal Code was framed against the accused by the learned Sessions Judge, Chamba. 3. To prove the charge against the accused, prosecution examined 14 witnesses. 4. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure wherein he has denied the prosecution case. He has examined DW-1 Chamaru Ram to prove that the prosecutrix is a divorced woman and at the time of the trial was 25 years of age. 5. The learned trial Judge acquitted the accused of the charge under Section 376 of the Indian Penal Code but convicted and sentenced him under Sections 363 and 366 of the Indian Penal Code. Hence the present appeal in which the accused was provided with a legal aid counsel on his request. 6. I have heard the learned counsel for the accused and the learned Assistant Advocate General for the respondent/State and have also gone through the records. 7. Be it stated at the very out set that the trial Court has acquitted the accused of the offence under Section 376 of the Indian Penal Code. The said acquittal is based on the ground that the prosecutrix, who was 16 years of age, was a consenting party to the act of sexual intercourse with her by the accused. The State, admittedly, has not preferred any appeal against the said acquittal, therefore, findings of the trial Court on the said acquittal have become final. 8. It was contended by the learned counsel for the accused that in view of the findings that the prosecutrix was a consenting party to the acts of sexual intercourse by the accused, the necessary inference would be that she eloped with the accused of her own accord without any use of force or inducement by the accused. 8. It was contended by the learned counsel for the accused that in view of the findings that the prosecutrix was a consenting party to the acts of sexual intercourse by the accused, the necessary inference would be that she eloped with the accused of her own accord without any use of force or inducement by the accused. It was further contended that in view of the statement of PW-3, DW-1 and the opinion about the skeleton age of the prosecutrix, she is proved to be more than 18 years of age at the relevant time, therefore, conviction of the accused under Sections, 363 and 366 of the Indian Penal Code cannot be sustained and is liable to be set aside. 9. On the other hand, it was urged for the respondent that in view of the duly proved age certificates of the prosecutrix Exts. PH,PJ and PK and the statements of the material witnesses, it is established beyond any doubt that the date of birth of the prosecutrix is 14.2.1979, therefore, at the relevant time she was below 18 years of age and this being so, her consent to leave her parents house at the instance of the accused is immaterial and the accused has rightly been convicted. 10. To prove a charge under Section 363 of the Indian Penal Code, the prosecution has to establish the following’ essentials: 1. Taking or enticing away a minor or a person of unsound mind. 2. Such minor must be under sixteen years of age, if a male, or under eighteen years of age, if a female. 3. The taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind. 4. Such taking or enticing must be without the consent of such guardian. 11. To prove a charge under Section 366 of the Indian Penal Code, the prosecution has to establish the following essentials: 1. Kidnapping or abducting any woman. 2. Such kidnapping or abducting must be (a) with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; or (b) In order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse. The second part of the section requires two things:- (1) By criminal intimidation or abuse of authority or by compulsion inducing any woman to go from any place. (2) Such going must be with intent that she may be, or with knowledge that it is likely that she will be, forced or seduced to illicit intercourse, with some person. 12. In view of the above essentials of the offences, the prosecution was required to prove firstly that the prosecutrix was below 18 years of age at the time of occurrence. To prove it the prosecution relied on the certificates Exts. PH.PJ and PK, the opinion about die dental age of the prosecutrix and the statements of PW-1 PW-3, PW-4, PW-5, PW-7 and PW-8. 13. PW-1 had medically examined the prosecutrix and obtained opinion about the dental and skeleton age of the prosecutrix. She has stated that on physical examination the age of the prosecutrix appeared to be 14 to 16 years. The experts who gave opinion about the dental and skeleton age of the prosecutrix, have not been examined either by the prosecution or by the accused. Thus, the only proved medical opinion on record is that at the time of the medical examination on 5.7.1995 the prosecutrix appeared to be of the age of 14 to 18 years. 14. PW-3 is the mother of the prosecutrix who has stated that her daughter (the prosecutrix) was 19 years of age at the time of making the statement on 12.5.1998. In view of what she has stated in the cross- examination, the age of the prosecutrix at the time of making statement by PW-3 works out to 22 years. If the statement of PW-3 is read as a whole, it can be gathered that the witness is not well oriented to time and sequence, therefore, her self-contradictory statement cannot be relied upon. 15. PW-4 the prosecutrix has stated that at the time when she was taken away by the accused she was 16 years of age. The prosecutrix had been to school and her statement about her age is not shattered in her cross-examination. But much reliance cannot be laid on her statement unless corroborated by other reliable evidence. 16. PW-5 is the father of the prosecutrix. He has stated that the prosecutrix was born on 14.2.1979. The prosecutrix had been to school and her statement about her age is not shattered in her cross-examination. But much reliance cannot be laid on her statement unless corroborated by other reliable evidence. 16. PW-5 is the father of the prosecutrix. He has stated that the prosecutrix was born on 14.2.1979. In his examination-in-chief he has given his own date of birth and that of his elder daughter and when questioned, has given the specific dates of birth of his other children in his cross-examination. There is nothing in his statement to suggest that he had given incorrect dates of birth of his children including the prosecutrix. He has further stated that he had reported the birth of each of his child including the prosecutrix to the Panchayat. 17. PW-8 is the Secretary of the concerned Panchayat and had issued the birth certificate Ext. PK regarding date of birth of the prosecutrix. As per Ext. PK, her date of birth is 14.2.1979 and it has been issued on the basis of Pariwar Register as maintained in the Panchayat and is stated to be correct as per the record. Thus, Ext. PK which is based on public record cannot be brushed aside. 18. PW-7 is teacher who had issued Ext. PH certifying that date of birth of the prosecutrix as per the school record is 14.2.1979. He has further proved the admission form Ext. PJ which also certifies 14.2.1979 as the date of birth of the prosecutrix. 19. Be it stated that the statement of either of the parents on oath and the entries in the school record regarding age of a person is the best and most reliable evidence about the age/date of birth of a person and has to be taken as correct unless the contrary is shown. There is nothing on the record in this case which may raise any doubt about the trustworthiness of the statement of PW-5 and in view of his statement read with certificates Exts. PH, PJ and PK, it is fully and firmly established that the prosecutrix was born on 11.2.1979 and was 16 years and four months of age at the time when she left her parental house at the instance of the accused. 20. PH, PJ and PK, it is fully and firmly established that the prosecutrix was born on 11.2.1979 and was 16 years and four months of age at the time when she left her parental house at the instance of the accused. 20. In view of the statement of PW-3 and PW-4 it is evident that on the night of occurrence the prosecutrix was sleeping in a room of her parental house. It is further evident from the statement of the prosecutrix (PW-4) that when she was so sleeping, the accused came to the window of the house and asked her to accompany him and thereby took her away from the keeping of her lawful guardian without the consent of such guardian. The prosecutrix being below 18 years of age at that time, it is immaterial whether the prosecutrix accompanied the accused willingly or otherwise. 21. PW-3 has stated that the accused had been proposing to marry her and he took the prosecutrix on the pretext that he would marry her and had been committing sexual intercourse with her. There is nothing on the record to prove anything to the contrary. 22. In view of the above discussed evidence, all the essentials to constitute the offences under Sections 363 and 366 of the Indian Penal Code are proved in this case. Therefore, the accused has rightly been convicted by the trial Court under Sections 363 and 366 of the Indian Penal Code. 23. It was further contended by the learned counsel for the accused that keeping in view the facts and circumstances of the case, the sentence awarded to the accused is too harsh and may be reduced. 24. It is evident from the perusal of the statement of the prosecutrix and Ext. DA that she has given contradictory version about the circumstances under which she accompanied the accused. At the relevant time she was not of immature age and accused had, admittedly, been meeting her off and on and asking her to marry him. She never complained against the accused to any one. Even on the night when the accused asked her to accompany him, she did not raise any protest nor complained to her mother who was present at the house. She was found habitual of sexual intercourse when medically examined and was having sexual relation with the accused. She never complained against the accused to any one. Even on the night when the accused asked her to accompany him, she did not raise any protest nor complained to her mother who was present at the house. She was found habitual of sexual intercourse when medically examined and was having sexual relation with the accused. In these circumstances, the offences committed by the accused cannot be said to be of such a grave nature wherein severe punishment may be called for. On the contrary in the facts and circumstances of the case, he deserves to be dealt with leniently in the matter of punishment. 25. The accused has already suffered imprisonment for a period of one year and 8 months. In addition to this, he had been in custody during investigation and thereafter for a period of four months. In the facts and circumstances of the case, it will meet the ends of justice if the substantive sentence of imprisonment imposed on the accused is reduced to the imprisonment already undergone. 26. As a result, while maintaining the conviction of the accused under Sections 363 and 366 of the Indian Penal Code, the terms of substantive imprisonment awarded to him are reduced to the imprisonment already undergone. In case the fine imposed on him has been deposited, he shall be set at liberty forthwith and in case the fine is not deposited as yet, he shall be released immediately after such fine is deposited. However, in default of payment of fine, he will have to serve out the imprisonment awarded to him in default of payment of fine which shall start running from the date of this judgment. The appeal is accordingly disposed of. 27. Since the accused is in the jail and was represented by a legal aid counsel, therefore, a copy of this judgment is sent to him for information through the Superintendent of the concerned jail. -