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2004 DIGILAW 530 (PNJ)

Jabar Singh v. State of Haryana

2004-05-05

JASBIR SINGH

body2004
JUDGMENT Jasbir Singh, J. - Appellant has filed this appeal against judgment dated 3.2.1992, vide which he was convicted for commission of offences under Sections 366, 376 Indian Penal Code and also against orders dated 4.2.1992, vide which he was sentenced to undergo RI for a period of 7 years and to pay a fine of Rs. 1,000/- for commission of an offence under Section 376 Indian Penal Code and to undergo RI for a period of 5 years and to pay a fine of Rs. 500/- for commission of an offence under Section 366 Indian Penal Code. In case of default of payment of fine, he was to further undergo imprisonment for specified periods. 2. Initially appellant alongwith Sneh Lata and Shama were put to face trial for commission of offences under Section 363, 366 and 376 Indian Penal Code. Trial Court on appraisal of evidence, acquitted both the persons as mentioned above. However, appellant was convicted and sentenced, as found mentioned in earlier part of this judgment. 3. It was case of the prosecution that the prosecutrix Suresho (PW6) used to work at a brick kiln of Mr. Pal alongwith her mother, father, sisters and brothers. Appellant alongwith her sister Sneh Lata and brother-in-law Shama also been working there. Huts of both the families were situated opposite to each other. Suresho and Sneh Lata were friends and taking benefit of the same all the three allured Suresho on the pretext that she should celebrate marriage with the appellant. She was further assured that Jabar Singh would be employed in city and in this manner, she will not have to work at the brick kiln any more. 4. She was enticed away by showing her golden dreams and other allurements. Appellant took her to fields situated behind their huts and committed sexual intercourse with her and thereafter on the intervening night of 6/7 May, 1991 all the three took the prosecutrix to bus stand Nahri and then to Delhi via Narela and ultimately reached their village in District Saharanpur, where the prosecutrix was kept by the appellant in the fields during day time and at night she was kept in a temporary hut of Shama and continued to commit rape on her. On 7.5.1991 at 8.00 A.M. when mother of the prosecutrix came back after doing her work, she found her missing. She informed her husband. On 7.5.1991 at 8.00 A.M. when mother of the prosecutrix came back after doing her work, she found her missing. She informed her husband. Both searched for her for about 25/26 days when Kanwar Sain, father of the prosecutrix reported the matter to police at village Nahri. On the basis of statement Ex. PA made by Kanwar Sain, formal FIR Ex.PA/1 was recorded on 31.5.1991. 5. During investigation, the prosecutrix was recovered from temporary hut of Shama in village Adhiana. The prosecutrix was medico legally examined. The doctor had opined that possibility of commission of rape against her cannot be ruled out. On completion of investigation, final report was put up in the trial court. Appellant alongwith Sneh Lata and Shama were charge sheeted to which they pleaded not guilty and claimed trial. Prosecution then led evidence to prove their guilt. On completion of prosecution evidence, statements of the appellant and his co-accused were recorded under Section 313 Criminal Procedure Code, wherein they denied all the allegations appearing against them in prosecution evidence and claimed that they had been falsely implicated in this case. They also led evidence in defence. 6. Counsel for the parties heard. 7. Mr. S.S. Dinarpur, Advocate, appearing for appellant/accused has vehemently contended that as per findings of the trial court, age of prosecutrix was 17 years. She remained with appellant/accused for about a month, never made any attempt to raise hue and cry, which clearly shows that she was a consenting party, as such, conviction of the appellant/accused for commission of offence under Section 376 Indian Penal Code was not justified. He has further stated that as per prosecution version, prosecutrix was kidnapped on the intervening night of 6/7th May, 1991, however, FIR was recorded only on 1.6.1991. Prosecution had failed to explain delay, during which concoction/padding cannot be ruled out. 8. He further stated that during ossification test, age of the prosecutrix was determined between 14-1/2 to 17 years. However, Dr. S.S. Wadhwa (PW3), during his cross-examination had categorically stated that possibility of plus or minus of two years or either side, cannot be ruled out. By referring to above mentioned statement, counsel pleaded that benefit of the same be given to the appellant and accordingly, age of the prosecutrix be held more than 18 years. However, Dr. S.S. Wadhwa (PW3), during his cross-examination had categorically stated that possibility of plus or minus of two years or either side, cannot be ruled out. By referring to above mentioned statement, counsel pleaded that benefit of the same be given to the appellant and accordingly, age of the prosecutrix be held more than 18 years. He prayed that appeal be accepted, the judgment under challenge be set aside and appellant/accused be acquitted of the charges framed against him. 9. This prayer has vehemently been opposed by Mr. Bijender Dhankhar, AAG Haryana. Regarding delay in recording FIR, he has stated that parents of the prosecutrix belong to very poor and illiterate family. After her elopement, they tried to search her at various places and only thereafter, when they failed in their efforts, complaint was made to the police. In such like cases, always an attempt is made to save honour of the family and search the girl of their own and in that process, delay was natural. He further stated that in this case, prosecutrix was taken away by appellant/accused, by playing a fraud and under allurement of marrying her, as such, her staying with him for about a month does not show that the offence was committed with her consent. He further stated that age of the prosecutrix was below 18 years, as such, appellant/accused was rightly convicted for commission of offence under Section 376 Indian Penal Code. 10. After hearing counsel for the parties, this court feels that this appeal is liable to be dismissed. 11. So far as delay in recording FIR is concerned, it has sufficiently been explained in this case. As per prosecution version, the prosecutrix went away with appellant/accused, during intervening night of 6/7th May, 1991. Next day when her parents came back from work, she was not available. They, being poor and illiterate persons, could not muster their courage to go to the police immediately. They tried at their own level to search for her so that her elopement may not become talk of the town. Court feels that this was natural for the parents to save honour of the family. When they failed in their efforts, out of frustration, they went to the police and lodged a complaint Ex.PA on 31.5.1991 and accordingly FIR was recorded on 1.6.1991. Court feels that this was natural for the parents to save honour of the family. When they failed in their efforts, out of frustration, they went to the police and lodged a complaint Ex.PA on 31.5.1991 and accordingly FIR was recorded on 1.6.1991. under these circumstances, this Courts feels that the delay was not fatal to the case of the prosecution. 12. Next contention of counsel for the appellant that it was a case of consent, is also liable to be rejected. 13. Counsel for the appellant has placed reliance upon judgments of Honble Supreme Court in Kuldeep K. Mahato v. State of Bihar, 1998(3) RCR(Crl.) 799 (SC), Jinish Lal Sah v. State of Bihar, 2003(1) RCR(Crl.) 247 (SC), Division Bench judgment of this Court in Amarjit v. State of Haryana, 2003(1) RCR(Crl.) 168 (P&H) and Single Bench judgment of this Court in Narinder v. State of Haryana, 2003(3) RCR(Crl.) 721 (P&H), to contend that the prosecutrix had remained in the company of the appellant/accused for about a month, she never tried to free herself, despite opportunities available, as such, she was a consenting party, accordingly, conviction for commission of offence under Section 376 Indian Penal Code was not justified. 14. No benefit of the ratio of judgments, referred to above, can be given to the appellant/accused, because in all those cases, it was a specific case of the prosecution that prosecutrix was taken away and shifted from one place to another by force and under threat. Keeping in view that fact, it was observed in above-mentioned judgments, that when opportunities were available to raise hue and cry, it was not raised and as such, it was presumed that the prosecutrix was a consenting party. 15. So far as facts of this case are concerned, position is altogether different. It was categoric case of the prosecution that the prosecutrix was known to Sneh Lata, relative of the appellant/accused and by taking benefit of the same, appellant/accused developed intimacy with her. He, alongwith Sneh Lata and Shama, shown her golden dreams. It was told to her that appellant/accused will marry her, will get employment in the city and she will not have to undergo hard labour at a brick kiln. He, alongwith Sneh Lata and Shama, shown her golden dreams. It was told to her that appellant/accused will marry her, will get employment in the city and she will not have to undergo hard labour at a brick kiln. She was allured by those false promises and when she was being taken from one place to another, she always remained under an impression that appellant/accused is going to marry her, will get employment in city and she will be relieved of doing labour at brick kiln. There was no occasion for her to raise any hue and cry, when admittedly opportunities were available to her. 16. In this case, virtually a fraud was committed with her. Mere fact that no injuries were found on her person at the time of medical examination and she never tried to resist committing of sexual intercourse by appellant/accused with her, will not be helpful to appellant/accused. Trial Court had categorically come to a conclusion that age of the prosecutrix was only 17 years. Court below had given that finding by taking note of medical evidence, statements made by prosecutrix and her father. Opinion arrived at by the court below is perfectly justified and needs no interference by this Court. 17. In view of the facts mentioned above, this appeal fails and is dismissed. Appeal dismissed.