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2002 DIGILAW 532 (PNJ)

Shiv Singh v. State Of Haryana

2002-05-14

M.L.SINGHAL

body2002
Judgment M.L.Singhal, J. 1. The prosecution case, in brief, is that on 23.1.1996. Virender Singh, who is father of Sudha prosecutorix aged 15-16 years, was informed by one Dharmender that she (Sudha) had been kidnapped by Shiv Singh and Onkar Singh on the pretext of securing job for her. Virender Singh mounted massive search for his daughter Sudha. His efforts, however, directed at searching Sudha did not bear any fruit. Eventually, on 24.2.1996, he reported the matter vide statement Ex. PW12/A at P.S. NIT Faridabad. On the basis of the statement under Sections 363/366/376/120-B Indian Penal Code, at P.S. NIT, Faridabad. During investigation, Shiv Singh and Onkar Singh accused were tracked down and Sudha was recovered from the possession of accused Onkar Singh on 12.5.1996. She was got medico-legally and radiologically examined. Her statement under Section 164 Cr.P.C. was also got recorded. After investigation, Shiv Singh and Onkar Singh were challaned under Sections 363/366/376/120-B Indian Penal Code, by the police of P.S. NIT Faridabad. 2. The case was committed to the Court of Sessions by Chief Judicial Magistrate, Faridabad vide order dated 4.6.1996. 3. Both the accused were charged under Sections 363/366/376/120-B Indian Penal Code, by Additional Sessions Judge, Faridabad vide order dated 13.6.1996. Onkar Singh was charged substantively under Section 376 Indian Penal Code also. Accused Shiv Singh and Onkar Singh pleaded not guilty to the charge and claimed trial. 4. At the conclusion of the trial, vide order dated 3.8.1999, Additional Sessions Judge, Faridabad found the charge under Sections 363/366/120-B Indian Penal Code proved against both the accused. He found the charge under Section 376 Indian Penal Code proved against Onkar Singh alone. He convicted both of them thereunder. Vide order dated 5.8.1999, he sentenced both the accused under Section 363, Indian Penal Code, to undergo rigorous imprisonment for three years, and to pay fine of Rs. 200/-. He sentenced them to undergo rigorous imprisonment for five years and to pay fine of Rs. 500/- under Section 366 Indian Penal Code. He sentenced Onkar Singh under Section 376 Indian Penal Code to undergo rigorous imprisonment for seven years and to pay fine of Rs. 500/-. He did not pass any separate sentence under Section 120-B Indian Penal Code against Shiv Singh and Onkar Singh accused. 5. 500/- under Section 366 Indian Penal Code. He sentenced Onkar Singh under Section 376 Indian Penal Code to undergo rigorous imprisonment for seven years and to pay fine of Rs. 500/-. He did not pass any separate sentence under Section 120-B Indian Penal Code against Shiv Singh and Onkar Singh accused. 5. Not satisfied with the conviction and sentence recorded against them by Additional Sessions Judge, Faridabad vide order dated 3/5.8.1999, Shiv Singh and Onkar Singh have come up in appeal to this Court. 6. In this appeal, the primary question that arises is what was the age of Sudha prosecutrix. Accused Onkar Singh pleaded that Sudha joined his company on her own as the atmosphere at her house was not congenial. Dr. V.K. Aggarwal, Radiologist. B.K. Hospital, Faridabad, PW1, who radiologically examined her for ascertaining her age, stated that on 17.5.1996, he performed ossification test on Sudha. According to him, her age was between 17 to 19 years. Dr. Mrs. Anita Suneja, PW2, Dental Surgeon was of the opinion that her age was between 12 to 16 years. PW3 Ranbir Singh stated that on 23.1.1996 while he was sitting in his shop at 7 A.M. situated in Sanjay Gandhi Memorial Nagar NIT Faridabad, he noticed Sudha accompanying Onkar Singh. M.K. Kaw, Clerk, Public School, Sector 15, Faridabad, PW6, stated that Sudha was admitted in the school on 4.5.1989 and her date of birth was 15.5.1981 as per school record. It is a privately run school. He stated that he is not aware what was the basis on which this date of her birth was recorded. Dr. Renu Gambhir, Medical Officer, PW9, stated that she medically examined Sudha aged 15 years. Her secondary sex character were well developed. There was no external mark of injury on her body and private parts. Hymen was absent which was old tear. Vagina easily admitted two fingers. She took two vaginal swabs and sent them for chemical examination for detection of human semen alongwith the under-garments. Her opinion was that Sudha was used to sexual intercourse. Dr. A.K. Gupta, Medical Officer PW5, stated that he medically examined Onkar Singh. From the data collected by him, he was of the opinion that there was nothing to suggest that he was not capable of sexual intercourse. PW10 Smt. Bhagwan Devi stated that Sudha is her daughter. She was 15 years old when she was kidnapped. Dr. A.K. Gupta, Medical Officer PW5, stated that he medically examined Onkar Singh. From the data collected by him, he was of the opinion that there was nothing to suggest that he was not capable of sexual intercourse. PW10 Smt. Bhagwan Devi stated that Sudha is her daughter. She was 15 years old when she was kidnapped. One Randhir Singh Cloth merchant told her that Onkar Singh accused relative of Shiv Singh accused, was seen by him enticing Sudha while passing in front of his shop. Thereafter, massive hunt was carried out for recovering Sudha, which remained fruitless. Thereafter, they visited the house of Shiv Singh who told that Sudha had gone with accused Onkar Singh for employment. Shiv Singh was instrumental in the kidnapping of Sudha. 7. Sudha was recovered from the possession of Onkar Singh after about three months when she was first allegedly kidnapped. Sudha PW11 stated that she was called by Onkar Singh from her house on the pretext that he required her signatures on certain documents, so that job could be arranged for her. Shiv Singh advised her to go with Onkar Singh as they are related to each other. Since accused Shiv Singh was an acquaintance of her father and was on visiting terms of her house, she was taken in. Sudha PW11 stated that Onkar Singh accused took her in a room, asked her to append signatures on certain documents and then forcibly committed sexual intercourse with her. She stated thereafter, he kept her in constant terror that in case she divulged this fact to anybody, she and her brother would be shot dead. After two/three days, Onkar Singh again met her and took her on the pretext that she would get a job for her but ultimately took her to Okhla by an auto-rickshaw. Thereafter, he took her to some village situated in District Aligarh (U.P.) and committed sexual intercourse with her and obtained her signatures on certain papers. She was kept by Onkar Singh with him for three months. 8. It was submitted by learned counsel for the appellants that Sudha prosecutrix did not raise any raula. If she had not willingly accompanied Onkar Singh, she would have raised raula and attracted the attention of police or other passengers if she were travelling by bus or by train with him (Onkar Singh). 8. It was submitted by learned counsel for the appellants that Sudha prosecutrix did not raise any raula. If she had not willingly accompanied Onkar Singh, she would have raised raula and attracted the attention of police or other passengers if she were travelling by bus or by train with him (Onkar Singh). DW4 Ranbir Singh, Registration Clerk, stated that on 5.2.1996, Hindu Marriage agreement took place between accused Onkar Singh and the prosecutrix Sudha which was registered in Hassanpur District Muradabad (U.P.). It was submitted by learned counsel for the appellants that age of the prosecutrix was 17 to 19 years as per the statement of the Doctor who performed ossification test on her. She became pregnant from the loins of Onkar Singh. It was submitted that if she was not a consenting party to the act of elopement with Onkar Singh, who was her friend, she would not have allowed her to ravish her and impregnate her. It was submitted that she willingly married him which shows that she was a consenting party. It was submitted by the learned counsel for the appellants that the radiological age of the prosecutrix was 17 to 19 years. There is margin of error of two to three years on either side. She could thus be safely assumed not more than 19 years old. It was submitted that if from the evidence on record, two views are possible; the one favoring the accused should be adopted by the Court. It was submitted that in this case there is no evidence respecting the age of Sudha as the prosecution has not produced any date of birth, which might have been recorded with the Municipal Committee or with the Chaukidar of the village. It was submitted that the age recorded in the school record cannot be taken to be authentic particularly when the same is not supported by any date of birth from the municipal record or from the Chaukidars record. It was submitted that it is not a case of kidnapping/abduction of the prosecutrix by Onkar Singh but it is a case of her elopement with Onkar Singh, with whom she was deeply in love allowing him to ravish her continuously for three months and impregnate her. 9. It was submitted that it is not a case of kidnapping/abduction of the prosecutrix by Onkar Singh but it is a case of her elopement with Onkar Singh, with whom she was deeply in love allowing him to ravish her continuously for three months and impregnate her. 9. In this case, onus lies on the prosecution to prove by positive evidence that Sudha prosecutrix was less than 16 to 18 years of age at the time when she was allegedly kidnapped/abducted by the accused. Fact that Sudha stayed with Onkar Singh for three months and allowed him to have sexual intercourse with him without any demur shows that she was a consenting party to be in his amorous company. 10. Kidnapping from lawful guardianship is defined in Section 361 Indian Penal Code as follows : 11. 361. Kidnapping from lawful guardianship :- Whoever takes or entices any minor under sixteen years of age if a male or under eighteen years of the 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. 12 Abduction has been defined in Section 362 Indian Penal Code, as follows : 362. Abduction :- Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person. 13 It was submitted by learned counsel for the appellants that in this case no element of enticing Sudha from the custody of her lawful guardianship is involved nor the use of any deceitful means inducing her to leave the place of her father and accompany Onkar Singh and remain with him for over three months is involved. 14. For the reasons given above, I am of the opinion, that it was a case of consent on the part of Sudha, who willingly left the house of her father and accompanied Onkar Singh and remained in his amorous company for about three months and enjoyed sex with him, got pregnant, from him. So, this appeal is allowed. Conviction and sentence passed upon the appellant by the learned Additional Sessions judge, Faridabad are set aside and the appellants are acquitted of the charge framed against them. Appeal allowed.