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2002 DIGILAW 710 (PNJ)

Jaipal Singh v. State Of Haryana

2002-07-24

ASHUTOSH MOHUNTA, HARJIT SINGH BEDI

body2002
Judgment Ashutosh Mohunta, J. 1. This appeal has been filed against the judgment dated March 31, 1996, whereby the appellant has been convicted under Sections 366 and 376, Indian Penal Code, and the order of sentence dated February 1, 1996. Under Section 366, I.P.C., he has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 5,000/-. In default of payment of fine, he has been ordered to undergo further rigorous imprisonment for two years. Under Section 376, I.P.C., the applicant has been sentenced to undergo rigorous imprisonment for 12 years and to pay a fine of Rs. 10,000/-. In default of payment of fine, the appellant has been ordered to undergo further rigorous imprisonment for three years. Both the substantive sentences of imprisonment have been ordered to run concurrently. 2. Prosecutrix Sita Devi, who was stated to be 16/17 years of age in the complaint dated June 5, 1994 lodged by her father Jit Bahadur (P.W.4), was found missing since May 30, 1994 as she had not returned to her house from the nearby jungle where she had gone to ease herself at 6 P.M. According to the complainant, he and his wife Smt. Savitra Devi continued searching her but she could not be traced anywhere. The complainant suspected Jaipal Singh accused, who used to work as a labourer in a colony and used to visit their house, having abducted the prosecutrix. On this statement made by Jit Bahadur (P.W.4) first information report at Police Station Chandimandir was registered at 9.15 P.M. on June 5, 1994 under Sections 363 and 366, Indian Penal Code. The Police started searching her but to no avail. Ultimately, on August 22, 1994, Sita Devi prosecutrix was found sitting on a bench along with Jaipal Singh accused at Bus Stand Chandigarh by A.S.I. Dayal Ram on the identification made by her father Jit Bahadur. Both of them were apprehended by the A.S.I. Memo. (Ex.PH) with respect thereto was prepared. The prosecutrix was allowed to go with her father. The prosecutrix as well as the accused were got medically examined on August 23, 1994. 3. Dr. Supriya Gupta, Medical Officer, Community Health Centre, Kalka (P.W.1), before whom the prosecutrix got her age noted as 17-1/2 years, medico-legally examined her and found that the prosecutrix was mentally sound. No mark of any injury was found on her person. The prosecutrix as well as the accused were got medically examined on August 23, 1994. 3. Dr. Supriya Gupta, Medical Officer, Community Health Centre, Kalka (P.W.1), before whom the prosecutrix got her age noted as 17-1/2 years, medico-legally examined her and found that the prosecutrix was mentally sound. No mark of any injury was found on her person. Breasts were well developed. Nipple and areola were found normal. Normal publiac hair were found present. No evidence of injury was found on external genital. There was no evidence of any injury on hymen. White discharge was seen in the vagina. Two fingers passed easily therein. No bruise or laceration was found on the vagina. In the opinion of the doctor, Sita Devi prosecutrix was pregnant by 15 weeks. 4. On the same date, Dr. S.K. Gupta, Medical Officer, Civil Hospital, Kalka (P.W.5), who medico-legally examined Jaipal accused, found him fit to do the sexual intercourse. 5. The accused was charged for the offence punishable under Sections 366 and 376, Indian Penal Code, and was tried for the same by the Additional Sessions Judge, Ambala. 6. In order to prove its case, the prosecution besides the medical evidence of Dr. Supriya Gupta (P.W.1) and Dr. S.K. Gupta (P.W.5), examined Manohar Lal Draftsman (P.W.2), Inspector Singh (P.W.3), Jeet Bahadur (P.W.4), Sita Devi (P.W.6) and A.S.I. Dayal Ram (P.W.7). Inspector Singh (P.W.3) is the Headmaster of Government Primary School, Nasirpur, District Ambala. He produced the certificate (Ex. PC) pertaining to Sita Devi prosecutrix. Jeet Bahadur (P.W.4) is the father of the prosecutrix and A.S.I. Dayal Ram (P.W.7) is the Investigating Officer of the case. 7. When examined under Section 313, Code of Criminal Procedure, the accused pleaded innocence. The statement of the prosecutrix (Ex.DA) under Section 161, Cr.P.C., made by her before the Police on the day of her recovery, was produced in support of the defence. 8. Despite opportunity, counsel for the appellant did not appear. Mr. Vijay Dahiya, Assistant Advocate General, Haryana, appeared on behalf of the prosecution and justified the conviction and sentence imposed upon the appellant. With his assistance we have also very carefully gone through the evidence on record. 9. The following three crucial questions arise for determination for deciding the case in hand : 1. Whether Smt. Sita Devi was below 16 years of age on May 30, 1994 or not ? 2. With his assistance we have also very carefully gone through the evidence on record. 9. The following three crucial questions arise for determination for deciding the case in hand : 1. Whether Smt. Sita Devi was below 16 years of age on May 30, 1994 or not ? 2. If she was above 16 years of age on May 30, 1994, whether she was a consenting party to the sexual intercourse allegedly committed by Jaipal Singh accused and she had willingly moved away from the custody of her father or not ? 3. Whether she was pregnant prior to her elopement with Jaipal Singh accused on May 30, 1994, or not ? 10. The foremost question for determination is the age of the prosecutrix. According to the school certificate (Ex.PC), which was produced by Mr. Inspector Singh (P.W.3), the date of birth of Ms. Sita Devi is April 4, 1979. According to this certificate the prosecutrix had completed 15 years of age on April 4, 1994. Thus, she was above 15 years on May 30, 1994, which is the date of her elopement with the accused. In the first ever statement made by her father Jit Bahadur (P.W.4), on the basis of which the first information report was recorded on June 5, 1994, he mentioned her age as 16/17 years. Ms. Sita Devi prosecutrix on the day of her medico-legal examination by Dr. Supriya Gupta (P.W.1), i.e., August 23, 1994, got her age recorded as 17-1/2 years. Jit Bahadur (P.W.4), who is the father of the prosecutrix, in his statement before the Court on April 3, 1995, stated himself to be of 43 years age. According to him, he had five children and Ms. Sita Devi prosecutrix is the eldest one. According to him when he was 22 years of age, he had got himself married and after 14 months of his marriage, the prosecutrix had taken birth. It means when he had made his statement before the Court 21 years had passed to his marriage. In this way, he had married in the year 1974. In case Sita Devi prosecutrix had taken birth after 14 months of the marriage of her father Jit Bahadur, then she seems to have taken birth in June 1975. This means that she was more than 18 years of age of the date of her elopement with Jaipal Singh appellant. In this way, he had married in the year 1974. In case Sita Devi prosecutrix had taken birth after 14 months of the marriage of her father Jit Bahadur, then she seems to have taken birth in June 1975. This means that she was more than 18 years of age of the date of her elopement with Jaipal Singh appellant. Though according to the school certificate (Ex.PC), she was about 15 years of age on May 30, 1994, but the other overwhelming evidence coming in the afore-mentioned statements of the prosecutrix and of her father Jit Bahadur (P.W.4), completely falsify the date of birth recorded in the school record. Moreover, in the cross-examination, Mr. Inspector Singh (P.W.3), Headmaster of the school, where the prosecutrix is alleged to have studied for about one year from October 5, 1986 to November 18, 1987, has stated that they had entered the date of birth of "Sita Rani" (prosecutrix) in the record as had been told by her father. According to this witness, no other evidence was available in the school. The clear presumption is that the date of birth of the prosecutrix in the school was not recorded on the basis of the Birth Certificate but only on the basis of the statement made by her father. Jit Bahadur (P.W.4), father of the prosecutrix, belongs to Nepal. According to him, the prosecutrix was born in Nepal and an entry regarding her birth was made in the Panchayat record there. He further stated that he had "not brought any birth entry from there." Jit Bahadur (P.W.4) is an illiterate man. This shows that at the time of admitting the prosecutrix "Sita Rani" in the School on October 5, 1986, in the Ist Class, he had lowered her age by about four years. He had not brought the birth certificate from the Panchayat where by the entry regarding birth of the prosecutrix was made. Had Jit Bahadur (P.W.4) produced the birth certificate to the school authorities at the time of the admission of the prosecutrix in the Ist Class, she would have been shown to be of the age of more than 11 years. In order to conceal her age, he mentioned her to be of about 7 years of age at the time of her admission in the school. 11. Still further, at the time of her medico-legal examination by Dr. In order to conceal her age, he mentioned her to be of about 7 years of age at the time of her admission in the school. 11. Still further, at the time of her medico-legal examination by Dr. Supriya Gupta (P.W.1) on August 23, 1994, the prosecutrix mentioned her age as 17-1/2 years. There is a general tendency in human beings, especially in women, to decrease the age at the time when no proof of age is required to be given. Anyhow, nobody likes to mention the age on the higher side. No ossification test has been got conducted by the prosecution. 12. From the afore-mentioned evidence, it becomes clear that Sita Devi prosecutrix was more than 18 years of age at the time of occurrence. She was certainly not less than 16 years of age at that time. It is settled law that in criminal cases, the benefit of doubt is always given to the accused. Thus, it is held that Sita Devi prosecutrix was more than 18 years of age on May 30, 1994. 13. The next question is whether she was a consenting party to the sexual intercourse by accused Jaipal Singh and she had willingly eloped with him on the day of occurrence. In her examination-in-chief the prosecutrix has stated that on the day of occurrence she was threatened by the accused, who was previously known to her, to accompany him at the time when she had gone out in order to ease herself. She was taken to Jagadhri on the allurement of marriage given by him. She further stated that during the period of their stay at Jagadhri for one month and ten days the accused used to have sexual intercourse with her. In the cross-examination she stated that on the day of occurrence, the accused kept her in the jungle. Next day they reached in a village at about 10 P.M. and they stayed in the tent of one bangle seller. After that they reached Nahan in a milk van. On the same day they reached Jagadhri. At Jagadhri they stayed in Chaman Mohalla. There were a number of houses in the locality where the prosecutrix used to live with the accused. According to her, the accused was carrying a knife with her. At Jagadhri the accused used to go out and she used to prepare meals by staying at the house. At Jagadhri they stayed in Chaman Mohalla. There were a number of houses in the locality where the prosecutrix used to live with the accused. According to her, the accused was carrying a knife with her. At Jagadhri the accused used to go out and she used to prepare meals by staying at the house. It has come in her statement that the accused used to remain out from 9 A.M. to 9 P.M. as he had started working in a factory. During the whole day, she used to remain alone in the house and she had also become familiar with the neighbours. During the their stay at Jagadhri, the prosecutrix did not make a mention about her kidnapping and also about the rape by the accused to anyone in the locality or to the Police. Dr. Supriya Gupta (P.W.1), who medico-legally examined her, did not find any kind of injury on any part of the body of the prosecutrix. Thus, it shows that the prosecutrix was a willing partner to the whole affair. Thus, the accused is not guilty of the offence punishable either under Section 366 or under Section 376, Indian Penal Code. 14. The last question is whether she was already pregnant at the time when she eloped with the accused on May 30, 1994. To answer this question the evidence of Dr. Supriya Gupta (P.W.1) would be sufficient. In her statement the doctor stated that the uterus of the prosecutrix was 16 week size. In her opinion, she was pregnant by 15 weeks. In the cross-examination, the doctor stated that she had mentioned 16 weeks on the basis of presumption. The doctor had examined the prosecutrix on August 23, 1994. The prosecutrix had allegedly elapsed with the accused on May 30, 1994. It shows that on the day of her elopement with the accused, the prosecutrix was already pregnant. To prove this fact there is also the statement of the prosecutrix (Ex.DA), which she had made before the Police on August 22, 1994. In this statement she stated that on "30.5.94 at about 5.30 P.M. he met me. I told him that she was to get abortion...." Thus, it is amply proved that the prosecutrix was already pregnant on the day of her disappearance with the accused. 15. In this statement she stated that on "30.5.94 at about 5.30 P.M. he met me. I told him that she was to get abortion...." Thus, it is amply proved that the prosecutrix was already pregnant on the day of her disappearance with the accused. 15. In the light of the above discussion, it is held that the prosecution has miserably failed to prove the allegations against the appellant beyond any shadow of doubt. 16. Resultantly, the appeal is allowed. The appellant is acquitted of all the charges levelled against him. He be released forthwith. Fine, if paid, be refunded to him.