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2004 DIGILAW 866 (ALL)

Dharam Pal v. State of U. P.

2004-04-21

MUKTESHWAR PRASAD

body2004
MUKTESHWAR PRASAD, J. ( 1 ) ACCUSED Dharam Pal son of Daya Ram has filed this appeal against the judgment and order-dated 5-3-1990 passed by Sri Udai Chandra, the then Additional Sessions Judge, Moradabad whereby he convicted the accused under Sections 363/376 of Penal Code and sentenced him to suffer imprisonment for five years under each count. Both the sentences were ordered to run concurrently. ( 2 ) IN brief, the facts of the case, as revealed from the record, are as under:pw 2 Dal Chandra son of Nathoo Singh was employed in U. P. State Electricity Board in the year 1986 and was posted at Amroha, Moradabad. Accused Dharam Pal was employed in the Central Bank of India situated in Mohalla Kot, Amroha and lived as a tenant in the house of PW 4 Rajvir Singh. Km. R. daughter of Dal Chandra aged about 16 years was a student of Class VIII in the year 1986. The elder sister of Km. R. Smt. Asha was also present in her house on 10/1/1987. ( 3 ) ON 10-1-1987 at about 9. 30 a. m. Dal Chandra went to attend his duty and his wife left her house to collect fodder from the forest for her cattle. Smt. Asha went to her neighbour Bhagwan Din at about 3 p. m. and was sitting there. At about 5. 00 p. m. Dal Chandra returned home from his duty but he did not find his daughter Km. R. at his house. The informants wife also arrived there and disclosed to her husband that she left for jungle leaving Km. R. at the house. Dal Chandra searched his daughter in Amroha Town and Railway Station also, but she could not be traced out. PW 3 Harbansh Lal and Jaipal Singh, a Tonga driver told the informant that they had seen Km. R. going on a rickshaw along with Dharam Pal at about 3. 45 p. m. and both were going towards Railway Station. The informant reached Railway Station but she could not be found. ( 4 ) NEXT day (11-1-1987), Dal Chandra got a report prepared by PW 4 Rajvir Singh and reached Police Station Kotwali and lodged First Information Report at 1. 00 p. m. An entry was made in the G. D. ( 5 ) S. I. Rameshwar Dayal Sharma took up investigation of the case. ( 4 ) NEXT day (11-1-1987), Dal Chandra got a report prepared by PW 4 Rajvir Singh and reached Police Station Kotwali and lodged First Information Report at 1. 00 p. m. An entry was made in the G. D. ( 5 ) S. I. Rameshwar Dayal Sharma took up investigation of the case. The Investigating Officer interrogated Dal Chandra, his wife Smt. Premwali, Smt. Asha Rani, Harbansh on 11-1-1987 itself and after inspection prepared a site plan. ( 6 ) ON 12-1-1987, the Investigating Officer accompanied by S. I. B. K. Sharma, two constables, Dal Chandra, Rajvir Singh and Om Prakash reached Bareilly Junction Station at about 8. 00 a. m. and recovered Km. R. from Second Class Waiting room. Km. R was sitting there on a bench and accused Dharam Pal and his brother-in-law Noni Ram were also sitting there on the same bench. The police succeeded in apprehending all the three from the platform and a Fard Recovery was prepared. The Investigating Officer and others returned to Amroha on the same day and Km. R. was given in the supurdigi of her father. ( 7 ) ON the same day, the girl was sent to Women Hospital, Amroha for medical examination where PW 6 Dr. Vijay Bali examined her at 1. 20 p. m. ( 8 ) DR. Bali found no external injury. Pubic hairs and breast were developed. No injury was found on her private part, abdomen and thighs. On internal examination, hymen was not present and there was no fresh bleeding or oozing. Vagina was admitting two fingures easily. She referred the girl to Radiologist for X-ray of wrist and elbow joints for determining her age. ( 9 ) ON X-ray Km. R. was found to be a girl of about 16-1/2 years of age. ( 10 ) AFTER completing investigation, the Investigating Officer submitted charge-sheet against Dharampal and Noni Ram. ( 11 ) ACCUSED Dharam Pal was charged under Sections 363 and 376 of Penal Code. Co-accused Noni Ram was charged under Section 368 I. P. C. Both the accused pleaded not guilty to the charge framed against them and claimed to be tried. ( 12 ) AT the trial, the prosecution examined, PW 1 Km. ( 11 ) ACCUSED Dharam Pal was charged under Sections 363 and 376 of Penal Code. Co-accused Noni Ram was charged under Section 368 I. P. C. Both the accused pleaded not guilty to the charge framed against them and claimed to be tried. ( 12 ) AT the trial, the prosecution examined, PW 1 Km. R. , PW 2 Dal Chandra, father of the girl, PW 3 Harbansh Lal, who had allegedly seen the accused taking away the girl, PW 4 Rajvir Singh, who prepared written report Ex. Ka 1 and a witness of Fard Recovery, PW 5 S. I. R. D. Sharma Investigating Officer of the case, PW 6 Dr. Vijay Bali, lady doctor who examined Km. R. on 12-1- 1987. ( 13 ) ACCUSED Dharam Pal in his statement given under Section 313 Cr. P. C. totally denied his complicity in the alleged offence and pleaded his false implication in the case on account of enmity. According to him, the girl was a woman of easy virtue and used to send letters to him. No evidence was led by the accused. ( 14 ) AFTER scanning the entire oral as well as documentary evidence on record led by the prosecution and considering the arguments also advanced by the parties, learned Judge acquitted co-accused Noni Ram. He, however, found Dharam Pal guilty of offences punishable under Sections 363/376 I. P. C. and convicted and sentenced him as noted above. Hence, this appeal. ( 15 ) I have heard learned counsel for the appellant, learned A. G. A. at length and have gone through the record carefully. Learned counsel appearing for the appellant has assailed the judgment mainly on the grounds that the girl was major on the impugned date and she was having love affair with the appellant. They were well known to each other for the last 3-4 years and the girl wanted to marry with him. According to him, she was a consenting party and was accustomed to sexual intercourse. It was contended that the prosecution could not establish the necessary ingredients of Section 375 IPC and offence, if any, committed by the appellant does not constitute rape. ( 16 ) RELIANCE was placed on a decision of Supreme Court in State of Karnataka v. Sureshbabu Puk Raj Porral. It was contended that the prosecution could not establish the necessary ingredients of Section 375 IPC and offence, if any, committed by the appellant does not constitute rape. ( 16 ) RELIANCE was placed on a decision of Supreme Court in State of Karnataka v. Sureshbabu Puk Raj Porral. ( 17 ) IT was contended that there was delay in lodging the FIR also and in fact, the FIR was lodged at the Police Station after recovery of the girl. It was also urged that the girl is not a reliable witness and as such, the appellant is entitled to be acquitted. ( 18 ) ON the other hand, learned AGA has supported the judgment and urged that the girl was below 18 years of age on the fateful day and accused took her to several places including the house of his brother-in-law where he committed rape on her and he was rightly found guilty by the court below. ( 19 ) RELIANCE was also placed by the learned counsel for the appellant on a decision of this Honble Court in Anil Kumarv. State of UP2. ( 20 ) I have gone through the decisions relied upon by the learned counsel for the appellant and have considered the contention of the learned counsel for the parties. What I feel is that the learned Judge erred in appraisal of the evidence on record and consequently, he could not arrive at correct conclusion. ( 21 ) I find several infirmities in the prosecution case and evidence led by it. First of all, I find that the girl being below 18 years of age was allegedly kidnapped by the accused for the purpose of committing rape/marrying and as such the offence committed by the accused comes with the ambit of Section 366 IPC. ( 22 ) I however find that the learned Judge framed charge under Section 363 IPC. It is noteworthy that the charge under Section 376 IPC was also framed. In my opinion, the learned Judge committed illegality in framing of the charge under Section 363 IPC. Moreover, he did not notice that offence was committed in the year, 1987. He however, mentioned the date of committing rape as 11/12th January, 1986. It means the accused was prejudiced in defending himself on account of error in the charge. In my opinion, the learned Judge committed illegality in framing of the charge under Section 363 IPC. Moreover, he did not notice that offence was committed in the year, 1987. He however, mentioned the date of committing rape as 11/12th January, 1986. It means the accused was prejudiced in defending himself on account of error in the charge. It is noteworthy that the charge could be altered/amended by the trial Judge any time before pronouncement of the judgment but he did not care to amend the charge. ( 23 ) AS mentioned above P. W. 2 Dal Chandra, who is father of the girl is not an eyewitness and accused kidnapped the girl from her house in absence of her parents and family members. There is sufficient evidence on record that the appellant resided as a tenant in the house of P. W. 2 Rajbir Singh and he was a regular visitor to the house of the informant. Both the appellant and Km. R. were well known to each other. ( 24 ) AFTER having considered the entire evidence of the girl, I find that she is not a truthful witness and the trial court erred in placing reliance on her testimony. According to Km. R. appellant took her from her house and she was made to sit on a Rickshaw. She boarded a bus at Amroha bus station and reached Moradabad and from there they reached Bareilly and ultimately, she was taken to Aliganj at the house of co-accused Noni Ram. According to her, appellant committed rape on her without her consent at the house of Noni Ram. In my opinion, the girl could not face the test of cross-examination and admitted in her cross-examination that Noni Ram and his children were also present in the house when the appellant committed rape on her. The girl admitted in her cross-examination that she used to go to enjoy along with Dharam Pal and members of her family never stopped her. According to her, they hired a rickshaw near her house and reached Bus Station Amroha through the market. The appellant displayed a knife and asked her to maintain silence. She further admitted that she made no complaint to the driver or conductor of the bus or any passenger. She boarded the Bus at Amroha at 3. 00 p. m. and reached Bareilly at about 4. The appellant displayed a knife and asked her to maintain silence. She further admitted that she made no complaint to the driver or conductor of the bus or any passenger. She boarded the Bus at Amroha at 3. 00 p. m. and reached Bareilly at about 4. 00 p. m. the same day. They stayed at Bareilly for about 1-1/2 hours and took their meal and ultimately they reached Aliganj at about 8. 00 p. m. However, no complainljprotest was made by the girl to anybody during her journey from Amroha to Aliganj between 3. 00 p. m. and 8. 00 p. m. It is, therefore, obvious that girl left her house on her own accord and she was not kidnapped as alleged by the prosecution. She seems to have left her house in the company of the appellant with a view to enjoy. She further gave a death blow to the entire case of the prosecution by saying that she was recovered by the police at about 12 noon. It is noteworthy that police recovered her from Bareilly Railway Station at about 8. 00 a. m. on 12-1-1987 and not in the noon, as stated by her. She further did not disclose that there was penetration of penis into her private part. ( 25 ) P. W. 2 Dal Chandra too failed to help the prosecution by admitting that the appellant used to visit his house. According to him, the girl was recovered from Bareilly Railway Station and they left Bareilly for Amroha. He stated in clear words that fard recovery was prepared at the Police Station Amroha and his signature was obtained thereon. ( 26 ) P. W. 4 Rajbir Singh who is scribe of the report Ex. Ka 1 gave a fatal blow to the prosecution case and he stated categorically that on 12-1-1987 he and others left for Bareilly at about 5. 30 a. m. and reached Bareilly at about 8. 00 a. m. via Moradabad and the girl was recovered when she was coming out of the Station. They all reached Amroha at about 1. 00 p. m. on the same day and he prepared report Ex. Ka 1 at the Police Station. This statement of Rajbir Singh clearly goes to show that FIR was lodged by Dal Chandra at the Police Station Kotwali after recovery of the girl on 12-1-1987. They all reached Amroha at about 1. 00 p. m. on the same day and he prepared report Ex. Ka 1 at the Police Station. This statement of Rajbir Singh clearly goes to show that FIR was lodged by Dal Chandra at the Police Station Kotwali after recovery of the girl on 12-1-1987. ( 27 ) P. W. 5 S. I. R. D. Sharma, Investi-gating Officer has stated that he had recovered the girl from Bareilly Railway Station on 12-1-1987 at 8. 00 a. m. and prepared Fard recovery on the spot and obtained signatures of the father of the girl and witnesses. It is noteworthy that Fard recovery does not have signature of the appellant. ( 28 ) P. W. 6 Vijay Bali stated that the girl was accustomed to sexual inter-course. ( 29 ) AFTER close scrutiny of the entire oral as well as documentary evidence on record, led by the prosecution, and considering the argument advanced on behalf of the appellant also, I hold that the learned trial Judge committed illegality in placing reliance on the testimony of girl and other witnesses examined on behalf of the prosecution. In my considered opinion, learned Judge committed error in appraisal of evidence and as such, he could not arrive at correct conclusion. Consequently, I hold that this appeal has merit and it must succeed. ( 30 ) IN the result, the appeal succeeds. The conviction and sentence recorded against the appellant under Sections 363/376 IPC are hereby set aside. He is acquitted of both the charges. He is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. Appeal allowed. . .