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2002 DIGILAW 1342 (PNJ)

Amarjit v. State Of Haryana

2002-12-03

K.S.GAREWAL, R.L.ANAND

body2002
Judgment R.L.Anand, J. 1. Amarjit son of Hargender and Suraj Bhan son of Duli Chand have filed the present criminal appeal and it has been directed against the judgment dated 17.2.2000 and order dated 28.2.2000 passed by Additional Sessions Judge, Sonepat, who convicted both the appellants under Sections 366 and 376 of the Indian Penal Code and sentenced as under :- (1) Amarjit : i) To undergo RI for 12 years and to pay a fine of Rs. 10,000/- under Section 376(2)(g) of Indian Penal Code and in default of payment of fine to undergo further RI for two years. ii) To undergo RI for 5 years and to pay a fine of Rs. 5,000/- under Section 366 Indian Penal Code and in default of payment of fine to undergo further RI for one year (2) Suraj Bhan : i) To undergo RI for 10 years and a fine of Rs. 10,000/- under Section 376(2)(g) of Indian Penal Code and in default of payment of fine to undergo further RI for two years. ii) To undergo RI for 5 years and to pay a fine of Rs. 5,000/- under Section 366 Indian Penal Code and in default of payment of fine to undergo further RI for one year The learned trial Court also ordered that all the sentences of both the accused shall run concurrently and out of the fine, if recovered, a sum of Rs. 25,000/- should be given to Ms. Asha Rani prosecutrix. 2 Both the appellants were charge-sheeted firstly, that on 13.5.1998 at about 10.00 a.m. in the area of City Sonepat they kidnapped Asha daughter of Om Parkash with intent that she may be forced or seduced to illicit intercourse and thereby they allegedly committed an offence punishable under Section 366 Indian Penal Code; secondly, that from 13.5.1998 to 30.5.1998 in the area of Village Aalupur, District Bhiwadi (Rajasthan) in furtherance of their common intention which was to have illicit intercourse with Asha, appellant Amarjit committed rape upon her for 17 days and thereby both the appellants allegedly committed an offence punishable under Section 376(2)(g) Indian Penal Code. 3. F.I.R. in this case was registered with the police on a complaint Ex. 3. F.I.R. in this case was registered with the police on a complaint Ex. P6 dated 14.5.1998 made by Ran Niwas son of Hari Singh, Jogi by caste, resident of Indra Colony, near High School, Bahalgarh, Police Station Rai (Sonepat) and it was addressed to the Superintendent of Police, Sonepat. The complainant stated that on 13.5.1998 at about 10.00 a.m. his Bhanji (sisters daughter) Asha Rani daughter of Om Parkash resident of Indra Colony accompanied him on his scooter to Geeta Vidya Mandir Girls College, Murthal Road, Sonepat to obtain an admission form for 12th standard and after leaving her at the said college he proceeded to the vegetable market, Sonepat for some shopping. When he returned to the college after shopping, he did not find Asha Rani. He made enquiries and searched her here and there but could not get any clue. Thereafter he told the story to his family members as well as Smt. Bala, mother of the girl. All his family members searched for the girl but all in vain. At night they came to know that Asha Rani has been enticed away under a threat by Suraj Bhan son of Duli, caste Kumhar, resident of Deepalpur, Police Station Rai, District Sonepat and he might have accompanied by his companions whose names he did not know. With these allegations he made a prayer to the Superintendent of Police to take appropriate action and Asha Rani may be get recovered. A photograph of the girl was also attached with the complaint. On the basis of this application Ex. P6 the Superintendent of Police ordered for the registration of a case and formal FIR No. 302 dated 14.5.1998 under Sections 363 and 366 Indian Penal Code was registered by SI Ram Parkash of Police Station City Sonepat. It is the case of the prosecution that both the appellants firstly kidnapped the prosecutrix and thereafter on 13.5.1998 she was taken to Rajasthan and was confined for 17 days from 13.5.1998 to 30.5.1998 in a room where Amarjit had been performing sexual intercourse with the prosecutrix against her will and consent and on 31.5.1998 the Investigating Officer received an information about the presence of the appellants. He visited village Aalupur (Rajasthan). He came to know that Amarjit had brought a girl to the village but had taken her away to some other place. He visited village Aalupur (Rajasthan). He came to know that Amarjit had brought a girl to the village but had taken her away to some other place. On 1.6.1998, when PW11 SI Chand Karan was present in Bhawan Chowk, Sonepat in connection with the investigation of this case, he associated Ram Niwas and Om Parkash. At about 1.00 p.m. Om Parkash spotted Asha and Amarjit coming from the side of railway station, Sonepat. Accused was apprehended and the prosecutrix was recovered from his possession. Recovery memo Ex. P7 was prepared. Thereafter the Investigating Officer went to Ram Lila ground and on the pointing out of Asha he prepared rough site plan Ex. P19. He arranged the medical examination of Amarjit and Asha Rani and he further took into possession sealed packets which were handed over by the doctor vide recovery memos Exs. P8 and P9. 4. PW1 Dr. Arun Garg on 1.6.1998 at 6.30 p.m. medico-legally examined Amarjit and vide report Ex. P1 gave opinion that this accused was capable of performing sexual intercourse. PW7 Dr. (Mrs.) Purnima Ahuja on 1.6.1998 at 4.00 p.m. medico-legally examined Asha Rani prosecutrix. She observed that the last date of mensuration (menstruation ?) of the prosecutrix was 31.5.1998. There was no mark of injury on any part of labia or prenieum. Hymen was found torn and it presented healed tags. There was no injury to the birth canal. The vagina admitted two fingers and large sins speculam. Mensuration (Menstruation ?) was positive. No abnormality was detected. The doctor opined that there was no mark of any injury on any part of the body. The patient was referred to Dental Surgeon and Radiologist for the determination of her age. After the medico-legal examination of the prosecutrix the doctor handed over to the police a copy of M.L.R., a sealed parcel containing six seals having underwear and salwar of the prosecutrix. Ex. P11 is the correct carbon copy of the M.L.R. of Asha Rani and she was medico-legally examined on police request Ex. P12. 5. On completion of the investigation of the case both the appellants were challaned under Sections 366 and 376 I.P.C. in the court of Area Magistrate who supplied the copies of documents to them as required under the law and vide commitment order dated 8.9.1998 the learned Chief Judicial Magistrate, Sonepat committed the appellants to the Court of Sessions. 6. 5. On completion of the investigation of the case both the appellants were challaned under Sections 366 and 376 I.P.C. in the court of Area Magistrate who supplied the copies of documents to them as required under the law and vide commitment order dated 8.9.1998 the learned Chief Judicial Magistrate, Sonepat committed the appellants to the Court of Sessions. 6. Vide orders dated 9.10.1998 the accused were chargesheeted under Sections 366 and 376 IPC. The charges were read over and explained to the accused to which they pleaded not guilty and claimed trial. 7. In order to prove the charges the prosecution examined PW1 Dr. Arun Garg, who medically examined Amarjit appellant and declared him fit to perform sexual intercourse. PW2 is Mr. S.K. Kaushik, Chief Judicial Magistrate, Sonepat, who recorded the statement of the prosecutrix under Section 164 Cr.P.C. PW3 is Inspector Nar Singh, who prepared the final report under Section 173 Cr.P.C. Ram Niwas PW4 is the complainant of this case. Asha Rani prosecutrix appeared as PW5. Draftsman Inderpal appeared as PW6 and this witness prepared rough site plan of the place of kindapping Ex. P10 on 17.8.1998 in the presence of Asha Rani. PW7 Dr. (Mrs.) Purnima Ahuja medico-legally examined the prosecutrix. PW8 is SI Ram Parkash who on receipt of application Ex. P6 formally recorded the FIR Ex. P16 on 14.5.1998. PW9 is SI Luxmi Devi who partly investigated this case. During the course of investigation she visited Geeta Vidya Mandir College, Sonepat and joined the Principal of the College who produced certificate Ex. P17 regarding the proof of date of birth of the prosecutrix. PW10 is Smt. Roshni, Assistant, Middle Wing, Haryana Education Board, Bhiwani who with the help of the gazette made a statement that Asha Rani daughter of Om Parkash appeared in the Middle Examination of the Board and as per the gazette brought by her the date of birth of Asha Rani is 10.1.1982. PW11 SI Chand Karan is the Investigating officer of this case. PW12 Dr. (Ms.) Shakuntla Gakhar is the Principal of GVM Girls College, Sonepat who issued letter Ex. P17 indicating the date of birth of the prosecutrix. Finally, the prosecution closed the case. 8. The statements of the accused were recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to them. PW12 Dr. (Ms.) Shakuntla Gakhar is the Principal of GVM Girls College, Sonepat who issued letter Ex. P17 indicating the date of birth of the prosecutrix. Finally, the prosecution closed the case. 8. The statements of the accused were recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to them. Accused denied those circumstances and stated that they have been falsely implicated in this case. The defence taken up by Amarjit is that he was a tenant in the house of Ram Niwas complainant and when he did not vacate the house he was forcibly dispossessed with the help of police and he has been falsely implicated in this case. Accused Suraj Bhan took the defence that when he demanded the stitching charges from Ram Niwas he was threatened by him and for that alleged reason he has been involved in this case. 9. When called upon to enter into their defence, accused examined Nootan Devi, who is the wife of Amarjit accused, who deposed about the alleged false involvement of her husband and stated that her husband was arrested on 31.5.1998 from his rented house. 10. The learned trial Court believed the story of the prosecution in its entirety. Both the appellants were convicted for the offence under Sections 366 and 376 Indian Penal Code as stated above and aggrieved by their conviction and sentence, the present appeal. 11. We have heard Mr. Sumeet Goel, Advocate on behalf of the appellants, Mr. D.P. Singh, Additional Advocate General, Haryana for the respondent and with their assistance have gone through the records of this case. 12. The first point for determination is what was the age of the prosecutrix on 13.5.1998 when she was allegedly kidnapped by Suraj Bhan and Amarjit. Apart from the oral evidence there is documentary evidence from which we are convinced that the prosecutrix was more than 16 years of age but definitely she was less than 18 years of age. As per the case of the prosecution itself she was born on 10.1.1982. According to he case of the prosecution she was kindapped on 13.5.1998. Meaning thereby she was 16 years and four moths. The prosecutrix was produced before the learned Chief Judicial Magistrate, Sonepat and she gave her age 16-1/2 years. In the complaint Ex. As per the case of the prosecution itself she was born on 10.1.1982. According to he case of the prosecution she was kindapped on 13.5.1998. Meaning thereby she was 16 years and four moths. The prosecutrix was produced before the learned Chief Judicial Magistrate, Sonepat and she gave her age 16-1/2 years. In the complaint Ex. P6 even Ram Niwas states that the prosecutrix had already cleared her matriculation and on 13.5.1998 she had gone with him in order to taken admission form of 12th class. When the prosecutrix was medico-legally examined by the doctor it was advised to the Investigating officer to get the examination of the prosecutrix from the radiologist but no action had been taken. When the prosecutrix was examined by the lady doctor on 1.6.1998 she also gave her age 16-1/2 years. The certificate Ex. P17 issued by the Principal, Geeta Vidya Mandir Girls College, Sonepat and the certificate Ex. P18 of the Board of School Education, Haryana give the date of birth of Asha Rani as 10.1.1982. Thus from the oral and documentary evidence it stands proved on the record that prosecutrix was more than 16 years of age but she was definitely less than 18 years of age on 13.5.1998. Though an effort was made by the learned counsel appearing on behalf of the appellants that the prosecutrix was much more than 18 years as on 13.5.1998 but we are not convinced with this submission, the learned counsel submitted that no importance should be given to the date of birth of the prosecutrix as 10.1.1982 as the birth entry of the prosecurix has not been proved. The opinion of the radiologist has also not been obtained. The people are in the habit of giving incorrect date of birth at the time of admission of their children, especially when the complainant party is illiterate. We are not convinced with this submission of the learned counsel for the appellants in view of the documentary and oral evidence. It is proved on the record that the prosecutrix as on 13.1.1998 had passed her matriculation examination and she was going to get admission in 10+2 class. There is a direct statement of the prosecutrix who gave her age even before the trial Court as 16-1/2. Her statement is also corroborated by the documentary evidence. It is proved on the record that the prosecutrix as on 13.1.1998 had passed her matriculation examination and she was going to get admission in 10+2 class. There is a direct statement of the prosecutrix who gave her age even before the trial Court as 16-1/2. Her statement is also corroborated by the documentary evidence. In this view of the matter, we repeal the argument of the learned counsel for the appellants when he argued that there is no satisfactory proof with regard to the age of the prosecutrix. 13. The next point for determination in this case is whether the rape has been committed upon the prosecutrix without her consent or not. Section 375 of the Indian Penal Code defines "rape". A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the six descriptions in that section. According to first description, if such sexual intercourse has been committed against the will of the woman; secondly, without the consent of he woman; thirdly, with her consent, whether consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt; fourthly....................... fifthly............... sixthly, with or without her consent, when she is under sixteen years of age. We have already held above that the prosecutrix was more than 16 years. Now it is to be seen whether the sexual offence was committed with Asha Rani prosecutrix against her will or without her consent. The prosecutrix in her statement has stated that on 13.5.1998 she along with her maternal uncle Ram Niwas went on a scooter to collect her receipt for admission in Geeta Vidya Mandir College, Sonepat and that her uncle dropped her at Murthal Chowk, Sonepat on way to the college. Of course here is a discrepancy with Ex. P6 when the uncle stated that he left the prosecutrix in the college premises. It has further been stated by the prosecutrix that when she proceeded towards her college and reached near Ganda Nala, both the appellants came there and put a knife on her stomach and back. She tried to make hue and cry but she was threatened with dire consequences and the appellants told to her that they would kill her and throw her in Ganda Nala in case she raised alarm. She tried to make hue and cry but she was threatened with dire consequences and the appellants told to her that they would kill her and throw her in Ganda Nala in case she raised alarm. Then they took her in a shop situated near bus stand. She started perspiring as she became perplexed. Then Amarjit wiped her perspiration drops from her forehead with his handkerchief and thereafter she started feeling giddiness. It has also come in the statement of this witness that accused did not allow her to leave the room and whenever he used to go outside, he used to lock the room from outside. She was kept confined for 17 days in that room and during this period Amarjit kept on committing rape upon her. It has also come in the statement of the witness that Amarjit had spent all the money brought by him and, therefore, she was brought to Sonepat and the distance was covered by train. When Amarjit was going to bring more money from his brother at Sonepat and when they were near Geeta Bhawan Chowk, they were apprehended. It is the admitted case of the prosecution that when the medico-legal examination of Asha Rani was conducted by the lady doctor there was no injury on any part of her body or on her private part. Also the police did not take into possession any torn cloth nor it collected any other circumstantial evidence from which we may be able to draw an inference that sexual intercourse was performed upon Asha Rani against her will or without her consent. It is the case of the prosecution itself that for 17 days the prosecurtrix remained in the company of accused Amarjit and that during these 17 days against the wish and will of the prosecutrix sexual intercourse was performed with her. In such a situation we would always expect some mark of injury. On the contrary, after going through the statement of Asha Rani we have come to this conclusion that this girl was known to Amarjit and Suraj Bhan. She admits that Amarjit was a tenant in the house of her maternal uncle Ram Niwas where her maternal grandmother and grandfather also used to live. On the contrary, after going through the statement of Asha Rani we have come to this conclusion that this girl was known to Amarjit and Suraj Bhan. She admits that Amarjit was a tenant in the house of her maternal uncle Ram Niwas where her maternal grandmother and grandfather also used to live. She further admits that Suraj Bhan was doing the work of tailoring in her locality by running a shop situated at a distance of 1-1/2 killa from her house and she used to get her clothes stitched. So much so, it has also come in the evidence that on 12.5.1998 she went to the shop of Suraj Bhan in order to get her stitched clothes but she was teased. She gave a slap on the face of Suraj Bhan and the matter was also reported to the mother and maternal uncle. To this extent that relationship became strained with Suraj Bhan on 12.5.1998, we are not going to believe this aspect. Had it been so, then it was a case of revenge on the part of Suraj Bhan. He would have been the first person to commit rape upon the lady. But the allegation of the prosecution is that Amarjit was committing rape with her for 17 days by keeping her confined in a room. The learned counsel for the respondent submitted that the conviction can be based on uncorroborated statement of Asha Rani. Her statement has to be read like an injured witness. Reliance was also placed upon the famous case State of Punjab v. Gurmeet Singh, 1996(1) RCR 533. This judgment has also been relied upon by the learned trial Court. We have also gone through this judgment very carefully. There is no dispute with the proposition of law laid down by the Honble Supreme Court which has given caution to the law courts to deal such sexual offences with sensitivity. To seek corroboration to the statement of the prosecutrix is adding an insult to the injury was the other guideline given by the Honble Supreme Court. Every case will depend upon its own facts. A young girl has been allegedly abducted. She has been taken to Rajasthan from Sonepat. The prosecutrix must have seen several persons. She does not raise hue and cry. For 17 days she remains in the custody of Amarjit. Every case will depend upon its own facts. A young girl has been allegedly abducted. She has been taken to Rajasthan from Sonepat. The prosecutrix must have seen several persons. She does not raise hue and cry. For 17 days she remains in the custody of Amarjit. Had it been a case of forcible sexual intercourse, we would expect some sort of injury on any part of body of prosecutrix. No efforts have been made by the Investigating to collect any evidence suggesting violence having been exercised upon the prosecutrix. The statement of the doctor is suggestive of the fact that the prosecutrix was a consenting party to the act of sexual intercourse. Therefore, we are inclined to hold that sexual intercourse was committed upon the lady with her consent and connivance. As she was more than 16 years of age on the date of the commission of crime, therefore, we have no hesitation in holding that so far as the charge under Section 376 Indian Penal Code is concerned, it has not been proved by the prosecution. Hence the conviction and sentence of both the appellants under Section 376 Indian Penal Code is hereby set aside and from this charge both the appellants stand acquitted. 14. With regard to the charge under Section 366 IPC we are convinced that the prosecutrix was kidnapped from her lawful guardianship as defined under Section 361 of the I.P.C. It lays down that 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, it will amount to kidnapping of the minor. Section 366 lays down that whoever kidnaps or abducts any woman 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 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, shall be punished with imprisonment of either description for a term which may extend to ten years. It has been proved on the record that the prosecutrix was less than 18 years of age. It has been proved on the record that the prosecutrix was less than 18 years of age. It is further proved from the statement of the doctor coupled with the statement of the prosecutrix that with the prosecutrix sexual intercourse has been committed, the observations of the doctor quoted above leave no manner of doubt that with the prosecutrix sexual intercourse has been committed. It has come in the statement of the prosecutrix that Amarjit had committed sexual intercourse with her during 17 days when she remained in his company. We have no reason to disbelieve the statement of the prosecutrix on this aspect of the case though we have not believed Asha Rani that she was threatened by Amarjit, it is also established on the record that appellant Amarjit was arrested on 1.6.1998. The girl has also stated that she was taken by both the appellants. The girl was ultimately recovered from the company of Amarjit. Suraj Bhan appellant was also known to this girl. The guardians of Asha Rani had never given the consent, therefore, we are inclined to hold that the ingredients of Section 365 are fully attracted in this case. Thus we are inclined to maintain the conviction of both the appellants under Section 366 I.P.C. 15. The net result is that the appeal of the appellants is partly allowed. Their conviction and sentence under Section 376(2)(g) I.P.C. is hereby set aside. However, their conviction and sentence as awarded by the learned trial Court under Section 366 I.P.C. is hereby maintained. Let intimation about the decision of this appeal be sent to Chief Judicial Magistrate, Sonepat.