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Himachal Pradesh High Court · body

2004 DIGILAW 86 (HP)

Nek Ram v. State Of Himachal Pradesh

2004-05-03

M.R.VERMA

body2004
JUDGMENT : M. R. Verma, J. – 1. Since both these appeals arise out of the same judgment dated 8.8.2003, passed by the learned Sessions Judge, Kinnaur at Rampur, therefore, are being disposed of by this common judgment. 2. The accused/appellant Nek Ram (hereafter referred to as the accused') who has preferred Criminal Appeal No. 597 of 2003, has been convicted under Section 363, 366 and 376 of the Indian Penal Code and has been sentenced to imprisonment for seven years and fine of Rs. 10,000/- and in default of payment of fine, to undergo further imprisonment for one year on each count and accused appellant Amin Chand (hereafter referred to as `the accused) who has preferred Criminal Appeal No. 598 of 2003, has been convicted under Sections 212 and 368 of the Indian Penal Code and has been sentenced to imprisonment for three years and fine of Rs. 5,000/- and in default of payment of fine, to imprisonment for six months under Section 212 of the Indian Penal Code, and to imprisonment for seven years and fine of Rs. 10,000/- and in default of payment of fine to further imprisonment for one year under Section 368 of the Indian Penal Code. 3. The case of prosecution, in brief, is that the prosecutrix (PW-1) is the daughter of Ram Krishan (PW-2) a resident of village Darkali. Prior to the [occurrence, on 29.7.2000 the prosecutrix, was studying in 6m standard in High School. Darkali and was in the care and custody of PW-2. On 29.7.2000 when PW-2 returned from the orchard, the prosecutrix was found missing from the house. It was [found that she had gone to wash the clothes at the tap but did not return. During efforts to find out the prosecutrix, PW-2 was informed by one Dhani Ram of village Darkali that the accused had kidnapped the prosecutrix but their whereabouts were not known. The matter was reported to the police and FIR Ext. PW-2/A came into being at Police Station Rampur and the investigation followed. The prosecutrix was traced and recovered on 9.8.2000 from the house of accused Amin Chand vide memo. Ext. PW-2/B and was sent for medical examination. She was medically examined by Dr. Ganga Rawat (PW-9) who on such examination issued the MLC Ext. PW-2/A came into being at Police Station Rampur and the investigation followed. The prosecutrix was traced and recovered on 9.8.2000 from the house of accused Amin Chand vide memo. Ext. PW-2/B and was sent for medical examination. She was medically examined by Dr. Ganga Rawat (PW-9) who on such examination issued the MLC Ext. PW-9/A observing that no marks of violence were found on the person of the prosecutrix and opined that she was habitual of sexual intercourse. At the time of her medical examination, Salwar, shirt and underwear of the prosecutrix were taken in possession, sealed and handed over to the police by PW-9 After arrest, accused Nek Chand was also got medically examined from PW-9 who issued MLC Ext. PW-9/B about such examination opining that there was nothing to suggest that the accused was incapable of performing sexual intercourse. His shirt was also taken in possession, preserved and handed over to the police by PW-9. The prosecutrix is her statement made allegations of repeated acts of rape on her by the accused, therefore, offence under Section 376 of the Indian Penal Code was also added to the crime committed by the accused. During the investigation it was also found that accused Amin Chand harboured/concealed accused Nek Ram in his house in village Khanash knowing that he had committed the offences of kidnapping and rape. It was also found that accused Amin Chand had concealed or kept confinement the prosecutrix (PW-1). The investigating officer obtained the School Leaving Certificate of the prosecutrix Ext. PW-3/A and the age certificate from the Panchayat Ext. PW-5/A, both of which show the date of birth of the prosecutrix as 8.5.1986. The wearing apparels of the prosecutrix and accused Nek Ram, which were handed over to the police by PW-9, were sent for chemical analysis and as per the report Ext. PW-7/A, nothing incriminating was found on such wearing apparels except that human semen was found on the underwear Ext. P-3 of the prosecutrix. On being satisfied of the commission of the crime by the accused persons, the officer Incharge of the concerned Police Station submitted a charge-sheet against them resulting in trial of accused Nek Ram on a charge under Sections 363, 366 and 376 of the Indian Penal Code and that of accused Amin Chand under Sections 212 of 368 of the Indian Penal Code. 4. 4. To prove the charges against the accused persons, the prosecution examined as many as 9 witnesses. Statements of the accused persons were recorded under Section 313 of the Criminal Procedure Code wherein they denied the case of the prosecution and claimed that they are innocent and have been falsely implicated in the case. In defence report regarding skeleton age of the prosecutrix Ext. DA was tendered. On appreciation of the evidence on record, the learned trial Judge convicted and sentenced the accused persons as aforesaid. Being aggrieved, each of the accused person has preferred these appeals. 5. I have heard the learned counsel for the accused persons and the learned Deputy Advocate General for the respondent - State and have also gone through the record. 6. It was contended by the learned counsel for the accused persons that the evidence led by the prosecution does not prove commission of any offence by the accused persons, therefore, the impugned conviction and sentences awarded to them are bad in law. 7. On the other hand, the learned Deputy Advocate General, while supporting the reasoning of the trial Court, had contended that the charges against the accused persons were fully proved, therefore, they have rightly been convicted and sentenced by the trial court. 8. It may be pointed out at the very outset that there is no dispute that the prosecutrix is Rajput and accused Nek Ram belongs to a Scheduled Caste. PW-2, who had lodged the FIR Ext. PW-2/A, has clearly and unambiguously admitted in his cross-examination that the prosecutrix could not marry the accused because of difference of Castes and since the marriage could not be performed between them, therefore, this case had to be lodged. In view of this, the possibility of exaggeration in the prosecution case by introducing engineered facts cannot be safely ruled out and it has to be kept in view while appreciating and prosecution evidence. 9. To prove that the prosecutrix at the relevant time was below 18 years of age, the prosecution relied on the statements of PW-2 father of the prosecutrix. Hari Nand (PW-3) who was examined to prove certificate mark PW-3/A, a School Leaving Certificate of the prosecutrix, Hem Raj (PW-5), Secretary of the Panchayat who issued certificate Ext. PW-5/A. 10. 9. To prove that the prosecutrix at the relevant time was below 18 years of age, the prosecution relied on the statements of PW-2 father of the prosecutrix. Hari Nand (PW-3) who was examined to prove certificate mark PW-3/A, a School Leaving Certificate of the prosecutrix, Hem Raj (PW-5), Secretary of the Panchayat who issued certificate Ext. PW-5/A. 10. The certificate mark PW-3/A purporting to be the School Leaving Certificate of the prosecutrix, is not proved in accordance with law and has been marked and not admitted in evidence as an exhibit. PW-3 who was examined to prove mark PW-3/A, has stated that he did not issue it but it had been issued in this absence by some other person officiating as Headmaster of the concerned school He has though stated that the certificate is signed by Shakti Chand who had issued 1 it as per school record, but he has no base to state that this certificate had been issued on the basis of the school record. He has admitted that he had not seen the original record nor the prosecutrix was admitted to the school during his tenure or his presence nor he is aware as to when she was admitted in the school. He is unaware as to who admitted the prosecutrix in the school and he is not in a position to state that the prosecutrix had failed in the examination 2 or 3 times. Thus, the certificate mark PW-3/A read with statement of PW-3 is not proved in accordance with law and the contents thereof, are of no help to the prosecution. 11. PW-5 Secretary of Gram Panchayat Taklech has stated that he had issued the certificate Ext. PW-5/A which is correct as per the original record. As per certificate Ext. PW-5/A, the date of birth of the prosecutrix is certified as 3.5.1986 on the basis of the entries in the Pariwar Register. Thus, the certificate Ext. PW-5/Ain itself is not the basic document regarding date of birth of the prosecutrix but is based on the entries made in the Pariwar Register allegedly maintained by the Panchayat Admittedly, such register had not been produced in the Court. Thus, the certificate Ext. PW-5/Ain itself is not the basic document regarding date of birth of the prosecutrix but is based on the entries made in the Pariwar Register allegedly maintained by the Panchayat Admittedly, such register had not been produced in the Court. As per the provisions of the H.P. Panchayati Raj Act, the Panchayat is required to maintain a Death and Birth Register wherein the dates of birth and death of a person in the Panchayat are required to be entered. The purposes of the Pariwar Register is to contain details of the members belonging to one family, therefore, Pariwar Register is not the basic document regarding date of birth of a person within that Panchayat. In fact, the basic record of the dates of death and birth in the Panchayat is admittedly Death and Birth Register which is required to be officially maintained by virtue of the provisions of the Panchayat Raj Act. It is admitted case of PW-5 that Dharkali Panchayat maintains Death and Birth Register which is available with the Panchayat. No reason however, is forthcoming as to why PW-5 did not issue the age certificate of the prosecutrix on the basis of such Death and Birth Register. In these circumstance* even certificate Ext PW-5/A is not a reliable piece of evidence. 12. PW-2 in his statement recorded on 24.2.2003 has stated that age of the prosecutrix was 17 years. He has not given the date of birth of the prosecutrix. He is not aware as to in which year he was married. He has conceded that he cannot state the year when the prosecutrix was born. Thus, the evidence of PW-2 also does not lead to a definite conclusion about the age of the prosecutrix. 13. In the MLC of the prosecutrix it has been mentioned that the age estimation had not been demanded, therefore, X-Ray was not done. No reason is forthcoming to explain as to why opinion about the skeleton age of the prosecutrix was not obtained. Therefore, one of the legitimate inference can be that had such opinion been obtained, it would not have helped the prosecutrix. No reason is forthcoming to explain as to why opinion about the skeleton age of the prosecutrix was not obtained. Therefore, one of the legitimate inference can be that had such opinion been obtained, it would not have helped the prosecutrix. It is evident from the Zimni order dated 9.6.2003 that an application was filed in the trial Court by the accused and after consideration thereof, it was allowed by the trial Court or 12.6.2003 whereby the ossification test of the prosecutrix was ordered to be conducted and there is no dispute that and such ossification test was conducted and the report and opinion about which is Ext DA tendered in evidence by the accused. This test was conducted on 8.7.2003, and report is dated 8.7.2003. As per this report, the skeleton age of the prosecutrix is opined to be 15 to 19 years. This opinion, which can be said to be favourable to the accused, also creates grave doubts about the prosecution evidence regarding the age of the prosecutrix and leads to the conclusion that it cannot be said that at the material time, the prosecutrix was below 18 years of age. 14. The prosecutrix in her examination-in-chief has stated that on 29.7.2000 when she was cleaning clothes at the water tap, accused Nek Ram came there and took her to the orchard where he removed her Salwar and committed sexual intercourse with her. She raised loud voice but the accused gagged her mouth with his hands. It may be pointed out that the prosecutrix in her evidence has nowhere stated that the accused used force to compel or used receipt full means to induce her to go with him. On the contrary from various admissions made by the prosecutrix in her evidence it is clear that she accompanied accused Nek Ram of her own free will. It is her version that in the night intervening 29th/30th of July, 2000 she was kept in the orchard. On the next day she was taken to Taklech from where she was taken to Khaneri in a Taxi, then she was removed to Sarahan in a Bus and was kept in the Rest House. She was then taken to village Khanas where she was kept in the house of co-accused Amin Chand and she remained there for about 8 days before her recovery. She was then taken to village Khanas where she was kept in the house of co-accused Amin Chand and she remained there for about 8 days before her recovery. It is her admitted version that the water tap from where accused Nek Ram allegedly took her, is used by the general public for taking water. While travelling in the Taxi she was sleeping and did not complain against the accused about her removal or the rape having been committed on her by the accused, to the driver or one more person who was admittedly travelling in the said Taxi. It is not her case (hat the driver and the other person travelling in the Taxi had any acquaintance with the accused or were rendering any help to him and there was no use of complaining to them It is also admitted by her that from Khaneri to Sarahan they reached within 2 of 3 hours by a Bus and many passengers were travelling in the Bus. However, she did not disclose anything to any passenger of the Bus. At Sarahan, accused Nek Ram and the prosecutrix stayed in the Rest House. It is admitted case of the prosecutrix that she did not narrate the incident to anyone in the Rest House at Sarahan. It is also not her case that she ever complained about the Crime against her to co-accused Amin Chand, in whose house accused Nek Ram and the prosecutrix stayed for about 8 days. It is also her admitted case that while in the house of co-accused Amin Chand she used to go outside the house and never tried to run away but used to return to the house of accused Amin Chand and admittedly she did not try to run away during the night from the orchard. 15. Thus, by the aforesaid admissions of the prosecutrix, it can be safely concluded that she was a consenting party to accompany accused Nek Ram from the water tap to different places where they stayed till her recovery. The prosecutrix's conduct of not making any attempt to run away from the company of accused Nek Ram at any stage and not complaining to anyone despite various opportunities that accused Nek Ram had been raping her, further reveals that she was a consenting party even to the sexual intercourse with accused Nek Ram. The prosecutrix's conduct of not making any attempt to run away from the company of accused Nek Ram at any stage and not complaining to anyone despite various opportunities that accused Nek Ram had been raping her, further reveals that she was a consenting party even to the sexual intercourse with accused Nek Ram. This conclusion is further strengthened by the medical opinion given by PW-9 that at the time of her medical examination, no external marks of violence were found on the person of the prosecutrix nor anything indicative of use of force was found on her clothes. Even on her private parts no injury or even swelling was found and on the contrary she was found habitual of sexual intercourse. 16. To constitute an offence under Section 363 of the Indian Penal Code, one of the essential ingredients is that the female removed from the custody of the lawful guardian without the consent of such guardian must be below 18 years 20 age. As already held hereinabove, the prosecutrix is not proved to be below 18 of age at the time of her alleged kidnapping from the custody of PW-2. Thus, the head of charge under Section 363 of the Indian Penal Code framed against accused Nek Ram is not proved beyond reasonable doubts. 17. To constitute an offence under Section 366 of the Indian Penal Code, it is essential to prove that the woman was kidnapped or abducted. This is not a case of kidnapping as concluded here-in-above. To constitute abduction one of the essential ingredient to be proved is that the accused used force to compel or deceitful meal to induce the woman to go with him. The material evidence, i.e. statement of the prosecutrix, as already discussed hereinabove, does not in any way disclose that accused Nek Ram used force or deceitful means to take the prosecutrix with him Therefore, even the head of charge under Section 366 of the Indian Penal Code against accused Nek Ram is not proved. 18. To constitute an offence of rape with a woman, other than wife of the accused, either the victim must be under 17 years of age or the sexual intercourse with her by the accused must be against her will or without her consent. 18. To constitute an offence of rape with a woman, other than wife of the accused, either the victim must be under 17 years of age or the sexual intercourse with her by the accused must be against her will or without her consent. However none of these essential ingredients to constitute an offence of rape is proved in view of the findings already recorded that the prosecutrix is pot proved to be below 18) years of age at the relevant time and that as per her own admissions in he statement, she was a consenting party to the acts of sex with her by the accused. 19. In view of the above, the charge framed against accused Nek Rams not proved. 20. The charge against accused Amin Chand is that during the period 31.7.2000 to 9.8.2000 he harboured/concealed accused Nek Ram, an offender knowing that the offence of kidnapping and rape had been committed by him art that he wrongfully concealed or kept in confinement the prosecutrix a kidnapper person with intent that she might be forced to have sexual intercourse with Nek Ram and thereby he is alleged to have committed offences punishable under Sections 212 and 368 of the Indian Penal Code. 21. To constitute an offence under Section 212 of the Indian Penal Code following ingredients have to be proved by the prosecution: (i) there must be an offender: (ii) the offender should have already committed an offence; (iii) the person accused of an offence under Section 212 of the Indian Penal Code must have harboured the offender knowing that he an offender, and (iv) the accused had the intention of screening the offender from lap punishment. A person cannot be said to have harboured an offender unless his intention was to screen him from legal punishment. In a case where there is no material to show the knowledge or belief on the part of the accused that he was harbouring an offender and the element of secrecy is absent, the accused cannot be guilty of offence under Section 212 of the Indian Penal Code. 22. In the case in hand, since none of the heads of charges against accused Nek Ram is proved, therefore, his staying in the house of accused Amin Chand along with the prosecutrix cannot be termed as the stay of an offender. 22. In the case in hand, since none of the heads of charges against accused Nek Ram is proved, therefore, his staying in the house of accused Amin Chand along with the prosecutrix cannot be termed as the stay of an offender. Therefore, it cannot be held that accused Amin Chand harboured accused Nek Ram knowing that he was an offender. More over, there is no evidence at all that accused Nek Ram was kept concealed by accused Amin Chand in his house or he took any precautions what-so-ever to ensure that he was screened from legal punishment. Therefore, the head of charge under Section 212 of the Indian Penal Code as framed against accused Amin Chand is also not established. 23. To constitute an offence punishable under Section 368 of the Indian Penal Code, the following ingredients must be established: (i) the person is question has been kidnapped or abducted; (ii) the accused knew that such person had been kidnapped or abducted; and (iii) the accused having such knowledge, wrongfully concealed or confined the person so kidnapped or abducted. 24. There is no evidence what-so-ever on the record to show that accused Amin Chand, in any manner, concealed or confined the prosecutrix in his house. As already stated here-in-above, the prosecutrix herself has not stated that she as concealed or confined by accused Amin Chand in his house. On the contrary, her clear and unambiguous evidence is that she used to go outside while staying in the house of accused Amin Chand for about 8 days and did not try to run away whenever she had gone outside the house but used to return to his house. She admits that she had no talks with accused Amin Chand, meaning thereby that she never informed him about her alleged kidnapping or having been raped by accused Nek Ram. There is not even a whisper in her statement that accused Amin Chand put any restraint what-so-ever on her with a view to conceal or confine her in his house. Thus, the head of charge under Section 368 of the Indian Penal Code as framed against accused Amin Chand is also not proved. 25. For the reason and conclusions hereinabove, the conviction and sentence of the accused persons cannot be sustained and are liable to be set aside. 26. Thus, the head of charge under Section 368 of the Indian Penal Code as framed against accused Amin Chand is also not proved. 25. For the reason and conclusions hereinabove, the conviction and sentence of the accused persons cannot be sustained and are liable to be set aside. 26. As a result, both these appeals are allowed the conviction and sentence awarded to accused persons Nek Ram and Amin Chand are set aside and they are acquitted of the respective charges framed against them. 27. The accused persons are presently in jail undergoing the sentence of imprisonment awarded to each of them, therefore, they are ordered to be set at liberty forthwith, if not required to be detained in custody under any other process of law. Fine, if recovered, be refunded to them.