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2004 DIGILAW 956 (PNJ)

Saroj v. State Of Haryana

2004-08-25

S.S.SARON

body2004
Judgment S.S.Saron, J. 1. This appeal has been filed by appellant Saroj against the judgment dated 2.8.1995 and order dated 12.8.1995 passed by the learned Additional Sessions Judge, Faridabad whereby the appellant has been found guilty for the offences punishable under Sections 363, 366 and 343 of the Indian Penal Code (`IPC for short) and has been sentenced to rigorous imprisonment for a period of three years and to pay a fine of Rs. 1,000/- for the offence punishable under Section 366 IPC. In default of payment of fine the appellant has been ordered to undergo rigorous imprisonment for further period of six months. Besides, she has been sentenced to rigorous imprisonment for two years and a fine of Rs. 500/- for the offence punishable under Section 363 IPC. In default of payment of fine to undergo rigorous imprisonment of four months. Besides, appellant has further been sentenced to rigorous imprisonment for a period of six months for the offence punishable under Section 343 IPC. All the sentences were, however, ordered to run concurrently. 2. The complainant Pushpa wife of Moti Lal (PW-10) submitted an application (Ex. PC) to the SHO, Police Station NIT, Faridabad which is to the effect that she was living with her children at Gandhi Colony, Faridabad. She has four daughters and two sons. The two elder daughters were married and the prosecutrix (name withheld) (hereinafter referred to as `PW-7) and one daughter are unmarried. The complainant and her son do labour work and leave the house in the morning and come back in the evening. The prosecutrix (PW-7), Anita and Raju - the other children used to say at home. It is further stated that at their house a lady named Saroj (appellant) used to often come. She lived nearby in a rented house. She claimed that she belongs to Village Nandbai, District Bharatpur. The said Saroj called the daughter of the complainant, i.e., prosecutrix (PW-7) on 20.1.1993 at about 2.00 p.m. in the absence of the complainant. When the daughter of the complainant did not return home, the complainant enquired about Saroj and it came to her notice that she had left for Village Fatheypur Chandela after vacating the house. They had been searching their daughter till date i.e. 25.1.1993. They had full suspicion that their daughter PW-7 had been taken by Saroj under allurement. When the daughter of the complainant did not return home, the complainant enquired about Saroj and it came to her notice that she had left for Village Fatheypur Chandela after vacating the house. They had been searching their daughter till date i.e. 25.1.1993. They had full suspicion that their daughter PW-7 had been taken by Saroj under allurement. She had every suspicion that her daughter (PW-7) has been enticed by Saroj (appellant) and that she be helped. On the basis of the said application Ex. PC, case FIR No. 74 dated 25.1.1993 (Ex. PC/2) was registered for the offences under Sections 363 and 366 IPC. The prosecutrix (PW-7) was recovered on 28.1.1993 while the complainant Pushpa (PW-10) was standing near the bus stand of Saranpur along with two policemen. At that time her husband was with her and they saw Tejbir and Saroj (appellant) along with the prosecutrix (PW-7) near the bus stand. The prosecutrix (PW-7) came running towards them. Thereafter her medico-legal examination was got conducted. The statement of the prosecutrix (PW-7) was also got recorded in terms of Section 164 of the Code of Criminal Procedure (`Cr.P.C. for short). She was handed over to the custody of her parents by the Police. The Police carried out investigation in the case and after completing the investigation challan in terms of Section 173 Cr.P.C. was filed against the appellant and Tejbir in the Court of Chief Judicial Magistrate, Faridabad, who committed the case to the Court of Session for trial as the offence attributed to the co-accused was under Section 376 IPC, which was exclusively triable by the said Court. The learned Additional Sessions Judge, Faridabad, to whom the case was assigned, charged the appellant and Tejbir. The appellant was charged vide charge-sheet dated 29.7.1993 that she had kidnapped the prosecutrix (PW-7), a minor girl from the lawful guardianship of Smt. Pushpa (PW-10) and thereby committed an offence under Section 363 IPC. Besides, the kidnapping of the minor girl (PW-7) was with an intention that she may be compelled or forced or knowing that she would be compelled to marry against her will with the accused Tejbir and she would be forced to illicit intercourse with the said person. Tejbir and the appellant thereby committed an offence punishable under Section 366 IPC. Besides, the kidnapping of the minor girl (PW-7) was with an intention that she may be compelled or forced or knowing that she would be compelled to marry against her will with the accused Tejbir and she would be forced to illicit intercourse with the said person. Tejbir and the appellant thereby committed an offence punishable under Section 366 IPC. Lastly, that the appellant and her co-accused Tejbir wrongfully confined the appellant for more than three days in a rented house and thereby committed an offence under Section 343 IPC. Appellant pleaded not guilty to the charge and claimed trial. Co-accused Tejbir was charged for having committed rape on the prosecutrix under Section 376 IPC and under Section 343 IPC for wrongfully confining the prosecutrix (PW-7). 3. The prosecution in order to prove its case examined as many as 13 witnesses and also tendered documents in evidence including the report Ex. PP of the Forensic Science Laboratory, Haryana, Madhuban (Karnal). The statement of the appellant under Section 313 Cr.P.C. was recorded in which she pleaded that she was innocent. No defence was led by the appellant. After considering the evidence and material on record, the learned Additional Sessions Judge vide his impugned order convicted and sentenced the appellant in the manner as detailed above which order, as already noticed, is assailed in this appeal. 4. Shri Tribhuvan Dahiya, Advocate, learned counsel appearing for the appellant contends that the prosecutrix has taken divergent and contradictory stands in her statement under Section 164 Cr.P.C. and while appearing in the witness box as PW-7. It is contended that the landlord of the house, i.e. Pawan Kumar (PW-13) where the prosecutrix stays has stated that he had no suspicion that the prosecutrix was kidnapped. Therefore, kidnapping and force was not there and, as such the prosecutrix was a consenting party, inasmuch as, she stayed with the accused from 20.1.1993 to 28.1.1993. She was wearing Saree and Sindoor and, therefore, her consent cannot be ruled out. As such the offence under Section 363 IPC cannot be said to be made out. It is also contended that, in any case, insofar as the appellant is concerned she is entitled to the benefit of release on probation as her husband Rohtas Singh (PW-1) appeared in Court and it was shown that he was a handicapped person and could not walk except with the help of a stick. It is also contended that, in any case, insofar as the appellant is concerned she is entitled to the benefit of release on probation as her husband Rohtas Singh (PW-1) appeared in Court and it was shown that he was a handicapped person and could not walk except with the help of a stick. He was Havildar in the Army. Besides, the appellant has got five children. Even otherwise the trial of the case has taken substantial time and no useful purpose would be served by incarcerating her to jail. 5. In response, Shri Sudhir Nehra, Assistant Advocate General, Haryana, learned counsel appearing for the State submits that the prosecution has proved its case in all respects and there is no illegality or irregularity in the case of the prosecution which could warrant the taking of any different view from that taken by the learned trial Court. It is contended that the prosecutrix was not a contenting party and that she was a minor. Therefore, consent, even if any, is inconsequential. 6-7 I have given my thoughtful consideration to the contentions of the learned counsel for the parties. It may appropriately be noticed that during the trial Tejbir, the main accused in the case, was declared as a proclaimed offender. The prosecutrix (PW-7) after she was recovered, made a statement in terms of Section 164 Cr.P.C Ex. DA which was recorded by the learned Judicial Magistrate Ist Class, Faridabad on 30.1.1993. In her said statement she stated that on 20.1.1993 she was sitting at her home and one lady by the name of Saroj (appellant) came there with a child. The prosecutrix went to the appellant and she said that they have to go to the market and she took her along by making her sit in the rickshaw. Again said that she was taken to Saran and the prosecutrix was made to sit at home and she used to call her Didi and the prosecutrix asked the appellant that she had, in fact, called her to go to the market and where has she got her. The prosecutrix said that she had to go home and then the appellant stated that she would take her home. The prosecutrix said that she had to go home and then the appellant stated that she would take her home. After that, the appellant made her to take tea and her head went spinning and she did not know where she was lying and whatever the appellant kept asking her to do, the prosecutrix kept doing. 8. The owner of the house came to know that there was something amiss and he did not allow her to leave the house. He said that the house be vacated and how has this girl been kept. To this Saroj said that she was her husbands younger brothers wife (Devrani). In the evening Saroj locked her in the room and Tejbir, who is the husbands younger brother of Saroj (Devar) was sent inside the room. Saroj said that Tejbir is married to her. The prosecutrix (PW-7) tried to get away from there but could not get away. The owner of the house asked them to leave the rooms. Then in the morning of 28.1.1993 they left the rooms and in the meanwhile she saw her parents. She ran towards her parents while shouting loudly and then Saroj and Tejbir left her and ran away. She came along with her parents. She further stated that Saroj and Tejbir should be punished. 9. During deposition of the prosecutrix (PW-7) in Court also it is stated by her that Saroj had called her out. However, she did not go as she was not feeling well. But on her persistence and assurance that they would be back by the evening she went. Saroj took her to the market where she purchased clothes for her son. Thereafter, she took her to Village Saranpur on the plea that she had purchased a house at Village Saranpur and she wanted to show the same to her. She took her to her house and offered tea and the prosecutrix then made a request to Saroj to accompany her to her house but Saroj procrastinated and went on saying that she would take her to her house after some time. Then Tejbir came there and Saroj told the prosecutrix that he was her brother-in- law (Devar). Saroj then asked the prosecutrix to go in one room where Tejbir also came. Saroj closed the door of that room and bolted it from outside. Then Tejbir came there and Saroj told the prosecutrix that he was her brother-in- law (Devar). Saroj then asked the prosecutrix to go in one room where Tejbir also came. Saroj closed the door of that room and bolted it from outside. It is further stated that Tejbir accused wanted to commit sexual intercourse but she resisted. Thereafter, he committed rape despite her resistance. She was kept in the house for eight days. The landlord of the house enquired as to why they assault her. Thereafter the landlord asked the accused to leave his house. This led to an altercation. In any case, on the asking of the landlord, the accused vacated his rooms. They were taking her to their Village Dhankaur when at the bus stand of Saranpur her parents and Police spotted them and she on seeing her parents went towards them and the accused Tejbir and Saroj fled away on seeing the Police and her parents. It is stated that all this had happened against her wishes. Besides, she was medically examined at B.K. Hospital, Faridabad. She was cross-examined at considerable length. 10. From the aforesaid two statements of the prosecutrix, i.e., the statement recorded under Section 164 Cr.P.C. and the deposition made in Court as PW-7 there are not such discrepancies which would, in any manner, show such inconsistencies so as to hold that the prosecutrix has taken divergent stands as has been contended by the learned counsel for the appellant. In fact, both the statements are quite consistent in their material aspects. There may be some variance. However, the same is not such so as to completely throw out the case of the prosecution. Smt. Pushpa (PW-10) the mother of the prosecutrix has also appeared and deposed in the witness box. She has stated that on 20th day of some month in the year 1993 she had gone to attend her duties and on that day her youngest daughter came to the workshop and informed that the prosecutrix was not at home. She reached her house and a small girl informed her that one lady by the name of Saroj was standing in the street. She had taken the prosecutrix along with her. Then on 28th day of that month Smt. Pushpa (PW-10) along with two Policemen were standing at the bus stand of Saran. She reached her house and a small girl informed her that one lady by the name of Saroj was standing in the street. She had taken the prosecutrix along with her. Then on 28th day of that month Smt. Pushpa (PW-10) along with two Policemen were standing at the bus stand of Saran. Her husband was also along with her and they saw Tejbir and Saroj accused along with the prosecutrix near the bus stand and the prosecutrix came running towards them. The medico-legal examination of the prosecutrix was got conducted and then she was handed over to her parents by the Police. She was cross-examined by both the accused. The material aspect of the prosecutrix being found at the bus stand of Saran when she ran towards the parents is corroborated from the statement of Smt. Pushpa (PW-10) also. 11. The contention that the landlord of the house where the prosecutrix stayed during her stay with Saroj and Tejbir had no suspicion that the prosecutrix had been kidnapped and, therefore, as also in view of the long stay of the prosecutrix, the prosecutrix was a consenting party may be considered. Pawan Kumar (PW-13) deposed during the trial of the case. The evidence of this witness was objected to on the ground that his statement under Section 161 Cr.P.C. was not recorded and no copy was supplied to the accused. The objection was kept open. It is stated by Pawan Kumar that on 20.1.1993 Saroj and Tejbir, present in Court, came to him and made a request for giving them two rooms on rent. He had got six rooms in Village Saran. He gave two rooms on rent. Saroj (appellant) had told him that Tejbir was her brother-in-law (Devar) and that she was going to bring his wife. Later on, she brought some girl who resides in the quarter which was on rent with the accused. However, quarrel used to ensue between the accused and the girl. He enquired from the accused as to why she used to assault the girl and she replied that her Devrani did not attend to household duties. He asked the accused to vacate his quarter and thereafter they vacated his quarter on 28.1.1993. He further states that he could identify the girl who was residing in his quarter with the accused. She was not available in the court room at that time. He asked the accused to vacate his quarter and thereafter they vacated his quarter on 28.1.1993. He further states that he could identify the girl who was residing in his quarter with the accused. She was not available in the court room at that time. On 28.1.1993, the Police had come at his quarter and he was interrogated. Pawan Kumar (PW-13) was cross-examined. In his cross-examination nothing has come out which would favour the appellant. It is stated that the alleged Devrani was brought by the accused after three-four days of taking his rooms on rent. Besides, that girl was mostly kept by the accused persons in a closed room. He had seen the girl while wearing Saree only. The quarrel between the accused and that girl started on the very night when the girl came. He did not talk with that girl and he had asked the accused persons to leave his rooms. On the morning of 28.1.1993, the Police had come four-five hours after the accused had left. It is stated that he had given no intimation to the Police because he had no suspicion that the girl had been kidnapped. From this portion of the statement of Pawan Kumar (PW-13) the landlord of the premises where the accused and the prosecutrix stayed, the learned counsel for the appellant contends that he had no suspicion that the girl had been kidnapped and, therefore, she was a consenting party. 12. It is appropriate to note that the statement of Pawan Kumar (PW-13) in terms of Section 161 Cr.P.C. was not recorded. Besides, there is no explanation as to why his statement was not so recorded. This, however, though may not be an illegality but his statement during the course of investigation was liable to be recorded. However, the test as regards the effect of such statement is one of prejudice being caused to a party. In the case in hand it is not shown by the appellant as to whether any prejudice has been caused to her in case Pawan Kumar (PW-13) deposed in Court without his statement being recorded in terms of Section 161 Cr.P.C. and as such no copy of his statement being given to the accused. From the overall circumstances it can be said that the appellant was aware of the prosecution case that the prosecutrix had been kept in a house at Village Saran. From the overall circumstances it can be said that the appellant was aware of the prosecution case that the prosecutrix had been kept in a house at Village Saran. Therefore, the fact that the statement of Pawan Kumar (PW-13) was not recorded under Section 161 Cr.P.C. and he has been examined as a prosecution witness without supplying a copy of his statement has not by itself resulted in any prejudice to the appellant. Even otherwise if the statement of the landlord Pawan Kumar (PW-13) is not taken into account, the fact that the appellant had taken the prosecutrix (PW-7) to a house at Village Saran by the appellant along with her brother-in-law Tejbir stands established from the deposition of the prosecutrix herself. Therefore, also mere non-recording of the statement in terms of Section 161 Cr.P.C. in the facts and circumstances of the case does not affect the case of the prosecution. The question as regards the prosecutrix being a consenting party, it may appropriately be noticed that the prosecutrix (PW-7) in her deposition does not, in any manner, show that she was a consenting party. She had wanted to get away from the house where she had been detained. As already noticed, the prosecutrix (PW-7) has stated that she had requested the appellant to leave her at her home. However, she did not let her go and rather, took her away to Village Saranpur. Besides, she asked her to go to the room and sent her co-accused Tejbir who she says committed rape upon her and she was kept in the house for eight days and thereafter the landlord of the house asked them to vacate the room they had occupied. There is nothing on record to show that there was any consent on the part of the prosecutrix. In fact, Tejbir who is alleged to have committed rape has since been declared a proclaimed offender. Besides, the age of the prosecutrix is also a relevant factor as regards consent. Dr. V.K. Aggarwal (PW-6) who conducted ossification test of the prosecutrix has opined her probable age as 17 years as per his report Ex. PF. In his cross-examination he states that there can be variation of two years on either side. Besides, the age of the prosecutrix is also a relevant factor as regards consent. Dr. V.K. Aggarwal (PW-6) who conducted ossification test of the prosecutrix has opined her probable age as 17 years as per his report Ex. PF. In his cross-examination he states that there can be variation of two years on either side. In the circumstances, the age of the prosecutrix, in any case is not less than 16 years, in which case the consent would be inconsequential in view of the provisions of clause `sixthly to Section 375 IPC. In any case the appellant has not been convicted or held guilty for the offence of rape. However, from the overall evidence and material on record and particularly the statement of the prosecutrix (PW-7) herself i.e. in terms of Section 164 Cr.P.C. as also in her deposition during the trial of the case as PW-7, it cannot be said that she was a consenting party and had agreed to go along with the appellant. Rather the overwhelming evidence shows that she was enticed to go along with the appellant and at the house where she was taken, she wanted to come home. Therefore, there is no consent on the part of the prosecutrix (PW-7) as has been contended by the learned counsel for the appellant. 13. In the circumstances, the offences against the appellant for which she was charged, i.e. Sections 363, 366 and 343 IPC stand proved and the order passed by the learned trial Court recording a finding of guilt and conviction is just and reasonable. 14. However, the further question that requires to be considered is as regards the sentence, which is to be imposed on the appellant in the facts and circumstances of the case. 14. However, the further question that requires to be considered is as regards the sentence, which is to be imposed on the appellant in the facts and circumstances of the case. Section 360 Cr.P.C. provides that any woman being convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the Court before which she was convicted, having regard to the age, character, antecedent of the offender, and to the circumstances in which the offence was committed, that it is expedient that the offender should be released on probation of good conduct, Court may, instead of sentencing her at once to any punishment, direct that she be released on her entering into a bond, with or without sureties to appear and receive the sentence when called upon during such period not exceeding three years as the Court may direct and in the meantime to keep peace and be of god behaviour. In the case in hand the appellant is a first offender. Rohtas (DW-1), husband of the appellant is handicapped and he can walk only with a stick. The appellant has got five children and her household is dependent on her. The sentence imposed by the learned trial Court is rigorous imprisonment for a period of three years and fine of Rs. 1,000/- for the offence punishable under Section 366 IPC. Besides, rigorous imprisonment for two years and fine of Rs. 500/- for the offence under Section 363 and rigorous imprisonment for six months for the offence punishable under Section 343 IPC. All the sentences have been ordered to run concurrently. The main offence in the case is one of rape, if any, which can be said to have been committed by Tejbir, co-accused who has since been absconding. In the circumstances, keeping in view the entire circumstances, it would be just and expedient and also in accord with the modern trend of penology of reformation that the benefit of probation is granted and extended to the appellant. 15. In the circumstances, keeping in view the entire circumstances, it would be just and expedient and also in accord with the modern trend of penology of reformation that the benefit of probation is granted and extended to the appellant. 15. Consequently, the sentence of imprisonment as imposed shall remain in abeyance and the appellant is directed to be released on probation of good conduct subject to her entering into a bond with one surety in the like amount to the satisfaction of the learned Chief Judicial Magistrate, Faridabad undertaking to appear and receive the sentence as and when called upon to do so during the period of three years and in the meantime to keep peace and be of good behaviour. 16. With the modification in the sentence, the appeal stands disposed of. Order accordingly.