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2003 DIGILAW 1473 (PNJ)

Sunil Kumar v. State of Haryana

2003-10-22

AMAR DUTT

body2003
JUDGMENT Amar Dutt, J. - Sunil Kumar has filed this appeal to challenge the conviction and sentence recorded against him by the Sessions Judge, Jind. 2. The case of the prosecution, as brought out in the testimony of its witnesses, is that Kumari Mukesh alias Babbal PW5 was born on 20.7.1975. She was got admitted in 10+1 class in the Government Girls Senior Secondary School, Julana, District Jind, which was at a distance of 15 Kms from village Lakhan-majra. She passed her Matriculation Examination held in March, 1992 and the date of birth as reflected in the certificate issued by the Board of School Education, Bhiwani is 20.7.1975. On 12.8.1992, Ram Kishan had boarded his daughter in a bus at about 6.30 A.M. from Bus stand of his village Lakhan-majra to enable her to attend her school situated in Julana. On the way, the bus got out of order and so she could not reach the school in time. She was marked absent and was informed about that by some of her class mates. She then stayed in her school for some time and then came to Bus Stand, Julana to catch a bus in order to return to her house in village Lakhan-majra. There, she found Sunil Kumar appellant also present and he had told her that she had been called by her maternal uncle and father at Haridwar where they had gone earlier and he also showed some currency notes to her, telling her that her father had given those notes to him for taking her to Haridwar. Kumari Mukesh believed him and accompanied him to Haridwar via Jind and Panipat by bus, reaching Haridwar at about 7/8 P.M. on that day. On reaching Haridwar, Kumari Mukesh enquired from the appellant as to where her father and maternal uncle are, upon which, he told her that he had told a lie and had made mis-representation to her just to seduce her to accompany him to Haridwar. He, thereafter, brought her in a hotel at Haridwar, named Avtar Lodge, where he took a room on rent and there he kept her during the night and committed rape with her twice against her wishes. When she raised an alarm and cried, the appellant told her that if she continued raising alarm, the police would apprehend both of them from there. When she raised an alarm and cried, the appellant told her that if she continued raising alarm, the police would apprehend both of them from there. On 13.8.1992, he took her in a Dharamshala at Haridwar and stayed there in a room where during the night he again committed rape with her twice. On 14.8.1992, he brought her to a place near Chandigarh, telling her that he is taking her to the son of his maternal uncle and, in fact, the son of his maternal uncle met them there. On that night, he kept her in a Dharamshala near Chandigarh but did not commit rape with her. On 15.8.1992, he again brought her in the same Dharamshala at Haridwar where he had kept her earlier but did not commit rape with her on that night. On 16.8.1992, he brought her to Delhi by train and during the night of 16.8.1992, he kept her at Delhi Railway Station Platform. On 17.8.1992, he brought her to Rohtak from where she boarded a bus for her village Lakhan-majra and reached her house in the evening. When she did not return to her house on 12.8.1992 from her school at Julana, her father and other family members got worried and started searching for her at various places on that day and also on the next day. On having come to know from one Kumari Sunita, resident of village Lakhan-majra, who was living with her maternal uncle at Julana that she had seen Kumari Mukesh talking with one boy at about 11 A.M. on 12.8.1992 at Bus Stand, Lakhan-majra, Ram Kishan, father of the prosecutrix, had become suspicious as he came to know that the appellant was also absent from his house situated in village Lakhan-majra from the same day and had also taken away some money from his house. He had thought of lodging of an FIR against the appellant and proceeded towards Police Station, on 15.8.1992 but S.I. Rajinder Kumar had met him at about 7.00 P.M. at Bus-stand, Julana where the complainant made statement Ex. PJ on the basis whereof, the FIR Ex. PJ/2 was lodged. On 17.8.1992, having come to know that Kumari Mukesh had returned to her house in village Lakhan-majra, she was taken from there and was produced before Dr. (Mrs.) Manjula, Medical Officer, Civil Hospital, Jind PW2 on 18.8.1992 at 1.30 P.M. for her medico- legal examination. PJ on the basis whereof, the FIR Ex. PJ/2 was lodged. On 17.8.1992, having come to know that Kumari Mukesh had returned to her house in village Lakhan-majra, she was taken from there and was produced before Dr. (Mrs.) Manjula, Medical Officer, Civil Hospital, Jind PW2 on 18.8.1992 at 1.30 P.M. for her medico- legal examination. The lady doctor had medico-legally examined Kumari Mukesh and found that there was no external mark of injury over the valva, perineum, thighs and her hips and she was having slight bleeding due to meses and that her hymen was found ruptured and was old healed type and that her vagina admitted two fingers easily but no mark of injury was seen over the vaginal mucosa. Two swabs were taken, one from both the lateral fornices and one from the posterior fornices. The lady doctor handed over those swabs and the under wear of Kumari Mukesh to the police for sending the same to the Chemical Examiner for report. The Chemical Examiner vide his report Ex. PE opined that human semen was detected on the swabs, Salwar and Kachha of Kumari Mukesh prosecutrix. On seeing the report Ex.PE, Dr. (Mrs.) Manjula opined that the presence of human semen on the swabs, salwar and kachha of Kumari Mukesh goes to suggest that she was subjected to sexual intercourse. S.I. Rajinder Kumar had recorded the statement of Kumari Mukesh under Section 161 Criminal Procedure Code and her statement was also got recorded from the Additional Chief Judicial Magistrate, Jind on 19.8.1992. S.I. Rajinder Kumar had arrested the appellant on 19.8.1992, got him medically examined and on completion of the investigation, the challan was put in Court against him under Sections 363, 366 and 376 Indian Penal Code, whereupon the Illaqa Magistrate finding that the case is exclusively triable by the Court of Session committed the same for trial to the Court of Session. On going through the papers sent up with the challan, the trial Court had found that a prima facie case under Sections 363, 366-A and 376 Indian Penal Code was made out against the appellant and when he pleaded not guilty to the charges, the prosecution was called upon to lead its evidence. 3. The prosecution examined PW1 Dr. Balram, Medical Officer, Civil Hospital, Julana; PW2 Dr. 3. The prosecution examined PW1 Dr. Balram, Medical Officer, Civil Hospital, Julana; PW2 Dr. (Mrs.) Manjula, Medical Officer, Civil Hospital, Jind; PW3 Dharam Pal, Lecturer, Government Girls Senior Secondary School, Julana; PW4 Balwan Singh, uncle of the prosecutrix; PW5 Kumari Mukesh alias Babbal, prosecutrix; PW6 Ram Kishan, father of the prosecutrix and PW7 S.I. Rajinder Kumar, Investigating Officer. 4. When examined under Section 313 Criminal Procedure Code the appellant denied the prosecution case and termed it as false and frivolous. However, he took up the plea that Kumari Mukesh had taken him to Haridwar on 12.8.1992 to enjoy the sexual life and she herself took a room on rent in Avtar Lodge at Haridwar in her own name after paying a sum of Rs. 132/- there and there she had invited him to do sexual intercourse with her and to satisfy her lust of sexuality; and that accordingly, as per her wishes, he did sexual intercourse with her in Avtar Lodge, Haridwar as well as in a Dharamshala at Haridwar; and thereafter, she again requested him to accompany her to various other places and she had herself spent the money for that purpose; and that she was elder to him by more than two years and that he was 17 years of age at that time whereas Kumari Mukesh was about 19 years of age and that he never made any mis-representation to her nor kidnapped her nor committed rape with her, but in fact, she was not only a consenting party for all this, but it was at her instance that he committed sexual intercourse with her and took her to various places as desired by her. 5. After hearing the arguments, the trial Court came to the conclusion that the age of the prosecutrix was 17 years and one month, her date of birth being 20.7.1975. 5. After hearing the arguments, the trial Court came to the conclusion that the age of the prosecutrix was 17 years and one month, her date of birth being 20.7.1975. So at the time of the occurrence, she was a minor so far as Section 361 Indian Penal Code is concerned and, therefore, came to the conclusion that he would be liable to be convicted under Sections 363 and 366 Indian Penal Code The Court further come to the conclusion that after taking into consideration the facts and the circumstances of the case that Kumari Mukesh had accompanied the appellant of her own volition and had consented to the sexual intercourse and, therefore, could not be held guilty under Section 376 Indian Penal Code While sentencing the appellant, after taking into consideration all the circumstances, the trial Court was of the view that a sentence of three years R.I. and a fine of Rs. 500/- under Section 366 Indian Penal Code and in default of payment of fine, to undergo further R.I. for 6 months would meet the ends of justice. Hence, this appeal. I have heard the counsel for the parties. 6. The short point, which has been urged on behalf of the appellant, is that the age of the prosecutrix has not been proved beyond reasonable doubt inasmuch as that although the father of the prosecutrix is relying upon the age given in the Matriculation certificate Ex. PE, the correctness of the entry made therein as also the entry in the photostat copy of the character certificate issued by the Government Girls High School, Lakhan-majra, Rohtak has not been proved by bringing on record the register maintained by the Government Girls High School, Lakhan-majra as also examining on oath the person, who had informed the school about the date of birth. A perusal of the statement of Ram Kishan shows that he does not claim to be the person responsible for giving the age of the prosecutrix and his failure to bring on record the birth entry that was got recorded by him with the Chowkidar of the village as also the entry made in the office of the Civil Surgeon renders unreliable the evidence that has been produced by the prosecution, which has not even cared to examine the mother of the prosecutrix. In these circumstances, it was submitted that the case against the appellant for having committed a offence under Sections 363 and 366 Indian Penal Code cannot be deemed to have been proved. 7. This submission was sought to be contested on behalf of the State asserting that the trial Court had rightly relied upon the school leaving certificate as also the Matriculation certificate and, therefore, the conviction has to be upheld. 8. I have carefully considered the arguments advanced by the learned counsel for the parties and have perused the record. 9. In this case, apart from the prosecutrix herself, her father appeared as PW6 and deposed regarding her date of birth. Although two documents, namely, character certificate issued by the headmaster of the Government Girls High School, Lakhan-majra and Matriculation certificate have been brought on the record, the witness has candidly admitted his failure to obtain the birth entry certificate from the office of Civil Surgeon as also from the record of the Chowkidar of the village. The investigation of this case was started on 15.8.1992 and Ram Kishan was examined on 20.4.1993. It is inconceivable that these two documents would remain unavailable if a sincere attempt had been made as it was the duty of the Investigating Officer to ensure that all relevant material for proving the age of the prosecutrix was collected during the investigation and placed before the Court. It is unfortunate that S.I. Rajinder Kumar, the Investigating Officer, who has appeared as PW7, took no steps for collecting the aforesaid documents. It is further unfortunate that the Investigating Officer did not deem it proper to even find out from the school as to who at the time of admission had given the date of birth. Not only this, he has not even cared to collect the aforesaid record. He has in cross-examination stated as under :- "I did not obtain the birth entry of the prosecutrix from the office of Civil Surgeon, Rohtak. I did not try to obtain the birth entry of the prosecutrix from the office of Civil Surgeon, Rohtak as the father of the prosecutrix had undertaken to produce the same before me but he did not produce it." 10. Such an attitude of the Investigating Office reflects the indifference of approach to the duties, which he is required to perform. Such an attitude of the Investigating Office reflects the indifference of approach to the duties, which he is required to perform. There is, on the record, no evidence to support the oral testimony of Mukesh Kumari and her father. No attempt has been made to prove the basis, on which the aforesaid entries have been made. In this view of the matter, one cannot ignore the circumstance that the trial Court has already acquitted the appellant of the charge under Section 376 Indian Penal Code after holding that the prosecutrix was a consenting party to the sexual exploits that were carried out by them on 12.8.1992 and 13.8.1992. In view of this, I feel that even the charges under Sections 363 and 366 Indian Penal Code too have to fail for want of proof of age of the prosecutrix. For the reasons recorded above, the appeal is accepted, the judgment of the trial Court is set aside and the appellant acquitted of the charges framed against him. Appeal allowed.