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2005 DIGILAW 331 (PNJ)

Rakesh Kumar v. State Of Haryana

2005-03-02

SATISH KUMAR MITTAL

body2005
Judgment Satish Kumar Mittal, J. 1. Appellant Rakesh Kumar has filed this appeal against the judgment dated 14.7.1993 passed by the Additional Sessions Judge, Jagadhri vide which the appellant has been convicted under Sections 376 and 366 IPC and sentenced for seven years and a fine of Rs. 500/- for each offence. Both the sentences were ordered to run concurrently. 2. The brief prosecution story is that on 6.5.1991, one Jagjit Singh, brother of the prosecutrix made a written request (Ex. PB) to the police. On the basis of the afore-said statement, FIR (Ex. PB/1) was recorded. In his statement, he had stated that his younger sister, namely Gurvinder Kaur, who was unmarried and aged 15 years, was enticed away by appellant Rakesh Kumar (hereinafter referred to `the accused) on 4.5.1991 at 2.30 p.m. on his scooter with intent to perform marriage with her. In spite of the search made by the complainant even on the addresses disclosed by the mother of the accused, both of them could not be traced. Thereafter, the aforesaid FIR was lodged. 3. On 9.5.1991, father of the accused produced the accused as well as the prosecutrix before the police. The accused was taken into custody. The prosecutrix was got medically examined. The statement of the prosecutrix was also got recorded under Section 164 Cr.P.C. by the Magistrate. After completion of the investigation, charges under Sections 363, 366, 366-A, 376 IPC were framed. 4. In support of its case, the prosecution examined 11 eye-witnesses, including PW 8-Gurvinder Kaur, PW 9-Dr. Kanta Dhankar, who medico-legally examined Gurvinder Kaur and PW 10-Jagjit Singh, brother of the prosecutrix. 5. In his statement under Section 313 Cr.P.C., the accused pleaded his false implication in this case. However, he admitted that he along with the prosecutrix were posted as teacher in a school in village Kheridaldalan. He alone went to the house of the prosecutrix on 4.5.1991. He and the prosecutrix were produced by his father before the police of Police Station Rador. In his defence, the accused had produced certified copy of the plaint in a civil suit for declaration filed by the prosecutrix titled as "Gurvinder Kaur v/s. Rakesh Kumar" (Ex. DC) in the Court of Senior Sub-Judge, Karnal; copy of the statement of Gurvinder Kaur and her counsel made in the said suit as well as the order dated 7.5.1991 passed by the Civil Court. DC) in the Court of Senior Sub-Judge, Karnal; copy of the statement of Gurvinder Kaur and her counsel made in the said suit as well as the order dated 7.5.1991 passed by the Civil Court. He has also produced on record the photographs of the alleged marriage (Exs. D-1 to D-4). 6. The trial Court, after considering the evidence led by the prosecution, convicted the accused under Sections 366 and 376 IPC and sentenced as indicated above. Hence this appeal. 7. The trial Court did not believe the version of the prosecution regarding the age of the prosecutrix i.e. she was 15 years of age at the time of occurrence. The School Leaving Certificate (Ex. PD), the statements of the prosecutrix and her brother Jagjit Singh regarding her age were not believed. The birth certificate of the prosecutrix (Ex. PA) was relied upon and it was held that the age of the prosecutrix was above 18 years at the time of occurrence. However, on the basis of the statement of the prosecutrix and other evidence, it was held that the prosecutrix was abducted by the accused with intent to compel her to marry with the accused and to establish illicit relations. It was also held that a rape was committed by the accused on the prosecutrix without her consent. 8. Counsel for the appellant submitted that the prosecutrix was the consenting party as is evident from the evidence available on the record, and the statement of the prosecutrix made before the Court that she was forcibly raped by the accused and compelled to marry with him, is not trustworthy keeping in view the evidence available on the record as well as the facts and circumstances of the case. In this regard, he referred to the medical evidence and the other evidence available on record, and behaviour of the prosecutrix during the period she remained with the accused i.e. 4.5.1991 to 8.5.1991. 9. I have heard the arguments of the counsel for the parties on the aforesaid point. 10. The only point for consideration in this case is whether the prosecutrix was abducted by the accused with intention to commit sexual intercourse with her forcibly and without her consent or with intention to marry her, or whether she voluntarily left her house with the accused and was the consenting party in the sexual intercourse. 11. 10. The only point for consideration in this case is whether the prosecutrix was abducted by the accused with intention to commit sexual intercourse with her forcibly and without her consent or with intention to marry her, or whether she voluntarily left her house with the accused and was the consenting party in the sexual intercourse. 11. The law enforcing agency was put to motion on the statement of Jagjit Singh, brother of the prosecutrix. In his statement, it was stated that the accused and his family members used to come to their house frequently and both the families were knowing each other. It has been alleged that on 4.5.1991 when the prosecutrix was alone in the house, accused enticed her away on a scooter, abducted her with intention to marry her. The accused and the prosecutrix were produced before the police by the father of the accused. The medico-legal examination of the prosecutrix was conducted by Dr. Kanta Dhankar-PW9. During the course of medical examination, she did not find any external mark of injury on the body of the prosecutrix. In her opinion, the prosecutrix was habitual of sexual intercourse. 12. Thereafter, the statement of the prosecutrix was recorded under Section 164 Cr.P.C. by the Judicial Magistrate on 11.5.1991. In that statement, she has stated that on 4.5.1991, the accused and she left the house and went to Ladwa and thereafter to Karnal. There, they spent all their money and then they came to Rador. Father of the accused tortured them and got them arrested to the police. Thereafter, they came to Jagadhri and their statements were recorded. She further states that when she was taken to Ladwa by the accused, he committed rape on her. When she reached Karnal, the accused performed marriage with her under threat. The statements of the prosecutrix given before the Magistrate under Section 164 Cr.P.C. and recorded by the police under Section 161 Cr.P.C. are contradictory. In the Court, when the prosecutrix appeared as PW-8, she gave a different version. She had stated that she and the accused were teaching in a private school in village Kheridabdalan. Accused and his family members usually visited her house. Her family members had full faith upon the accused and his family members. After some time, she left the teaching work and started living at her house. She had stated that she and the accused were teaching in a private school in village Kheridabdalan. Accused and his family members usually visited her house. Her family members had full faith upon the accused and his family members. After some time, she left the teaching work and started living at her house. On 4.5.1991, accused came to her house and told her that he was employed in some office at Karnal and had also threatened to kill her if she did not enter into marriage with him. At that time, she was alone in her house and she accompanied the accused under fear. Firstly, she was taken to Ladwa from where she was taken to Karnal. At Karnal, they stayed in a rented room and accused bent upon committing rape on her for about 3/4 days while staying at Karnal. She was taken to Rador where father of the accused met them. Then, they were produced before the police of Police Station Rador and taken into custody. Thereafter, she was medico-legally examined and her statement under Section 164 Cr.P.C. was recorded by the Judicial Magistrate. 13. Whether the afore-said version given by the prosecutrix is trustworthy, is the question which in my opinion is to be answered in negative for various reasons. Firstly, I have examined the conduct of the accused and the prosecutrix prior to the date of alleged occurrence. As per statement of the brother of the prosecutrix, both the families were known to each other and the accused family frequently used to visit to the house of the prosecutrix. In her cross-examination, the prosecutrix has admitted that she and the accused were posted as teachers in a private school and she used to meet the accused frequently during her posting in the school. It was also admitted that the accused used to visit her house even after she left the job. In her statement (Ex. DA), she has stated that the proposal of marriage given by the accused was not accepted by the prosecutrix because her elder sister was unmarried. These facts reflect one thing that there was some love affair between the prosecutrix and the accused. Regarding the date of occurrence, she stated before the Court that the accused enticed her away on the pretext that he was to marry her. These facts reflect one thing that there was some love affair between the prosecutrix and the accused. Regarding the date of occurrence, she stated before the Court that the accused enticed her away on the pretext that he was to marry her. This version of the prosecutrix is not trustworthy because in her statement before the Magistrate recorded under Section 164 Cr.P.C., she has not stated so. Secondly, after the date of occurrence, she was taken away from her village to Rador, then Ladwa, then Karnal on a scooter. The prosecutrix has admitted this fact in her cross-examination. She has also admitted that they stayed in a rented house at Karnal and the accused used to bring meal from the market while she remained staying in the room. She has also admitted that in absence of the accused, the landlord and his family members used to remain in the house. It has also come on the record that during the stay at Karnal, the prosecutrix filed a civil suit before the Court of Senior Sub Judge, Karnal for declaration to the effect that she is the legally wedded wife of the defendant. She also made a statement before the Court and the admitted written statement was filed, but the Court did not decree the suit while observing that since the parents of the prosecutrix were not there and she has also not brought the birth certificate, therefore, the case was adjourned. The prosecutrix has admitted the four photographs were taken under threat of the accused. I have perused these photographs also. 14. From the aforesaid facts, it appears that the version of the prosecutrix that she was under threat of the accused and rape was committed upon her under the said threat does not inspire any confidence. If there would have been any threat, the prosecutrix got ample opportunity to run away from the company of the accused or to raise voice against her illegal abduction or could have told to the landlord that she was forcibly kept by the accused and being raped. The aforesaid conduct of the prosecutrix during the period from 4.5.1991 to 8.5.1991 clearly indicates that she was the consenting party and she along with the accused had run away from the house with intention to marry each other as they were having love affairs. The aforesaid conduct of the prosecutrix during the period from 4.5.1991 to 8.5.1991 clearly indicates that she was the consenting party and she along with the accused had run away from the house with intention to marry each other as they were having love affairs. Except the statement of the prosecutrix, there is no other corroboratory evidence led by the prosecution to establish the alleged threat under which she was abducted and raped. The prosecution has not established the guilt beyond reasonable doubt. The stand taken by the prosecution and the family of the prosecutrix that she was 15 years of age at the time of the alleged occurrence was found to be false by the trial Court and it was held that the prosecutrix was more than 18 years of age. This fact also creates doubt about the version given by the prosecution regarding abduction of the prosecutrix and the rape committed by the accused under threat without consent with intention to marry her. In my opinion, the conviction of the accused solely on the basis of the statement of the prosecutrix, which is not trustworthy, is not safe. 15. For the foregoing reasons, the appeal is allowed, the judgment of conviction and sentenced dated 14.7.1993 is set aside and the appellant is acquitted of the charge.