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2007 DIGILAW 1011 (PNJ)

Dinesh v. State Of Haryana

2007-04-28

A.N.JINDAL

body2007
Judgment A.N.Jindal, J. 1. This appeal is directed against the judgment of conviction and sentence dated 18.5.1994, passed by learned Additional Sessions Judge, Faridabad, vide which, out of 8 accused, only accused-appellant Dinesh (hereinafter referred to as the accused) was convicted under section 376 IPC and was sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 500/-. In default of payment of fine to further undergo rigorous imprisonment for three months. 2. The case set up by the prosecution, in brief, is that the prosecutrix (name not disclosed) daughter of Rati Ram, aged about 14-15 years, was studying in 8th Class. On the intervening night of 6/7.6.1991, the prosecutrix slipped away from her house, about which the complainant Rati Ram suspected that the accused Dinesh with the help of accused Jhaman and Noor Ilahi had enticed her away. On 13.6.1991, the complainant made his statement before ASI Bhagat Singh, on the basis of which FIR Ex.PE was registered against the accused. Investigation was commenced. The prosecutrix was recovered from 4th floor of District Court Complex, Faridabad on 13.7.1991. She in her statement under Section 164 Cr.P.C. disclosed to the Court that she has been enticed away by the accused Dinesh with the connivance of Mahesh and Anil accused in the wee hours on 7.6.1991. She was taken to Manjhawali Ghat of river Yamuna of village Kalesara where she was raped. The accused then moved the prosecutrix to the house of Bachi Singh in village Garhi Kalka in Delhi territory. Bachi Singh advised them to marry each other but the accused Dinesh ran short of money. Subsequently, the accused brought the prosecutrix to the District Court Complex for statement. The accused was arrested on 12.7.1991 and was got medico-legally examined. The prosecutrix was also got medico-legally examined on 13.7.1991. On completion of the investigation, challan against all the 8 accused was presented in the Court. 3. It would be pertinent to mention here that initially challan against four accused namely Dinesh, Anil Kumar, Mahesh Kumar and Bachi Ram was presented in the Court. But, later on remaining four accused namely Jhaman, Noor Ilahi, Teki and Achhpal were also summoned and tried. 4. A formal charge under Sections 366/376 read with Section 120-B IPC was framed against the accused, to which they pleaded not guilty and claimed trial. 5. But, later on remaining four accused namely Jhaman, Noor Ilahi, Teki and Achhpal were also summoned and tried. 4. A formal charge under Sections 366/376 read with Section 120-B IPC was framed against the accused, to which they pleaded not guilty and claimed trial. 5. In order to bring home the charge against the accused, the prosecution examined Dr. Kusum Chaudhary (PW1), Dr. P.S. Dalal (PW2), Sohan Lal Draftsman (PW3), SI Ram Kishan (PW4), ASI Bhagat Singh (PW5), Mahender Pal Science Master (PW6), Prosecutrix (PW7), C. Adalat Rai (PW8), C. Randhir Singh (PW9), Rati Ram (PW10), SI Rattan Singh (PW11) and HC Raghbir Singh (PW12). After tendering into evidence report of Assistant Director, Serology, FSL Madhuban Ex.PX, the prosecution closed its evidence. 6. When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in this case. The accused Dinesh denied all the allegations and further explained as under :- "I am innocent. Prosecutrix (sic) is aged more than 19 years. She was having a love-affair and of her own without any threat, inducement etc. from my side left her parental house and performed marriage with me in a temple as per photographs which have already been placed on the file and admitted by the prosecutrix (sic). Of her own, she appeared in the Court of Smt. Sneh Prasher, Judicial Magistrate Ist Class, Faridabad, to make statement. It was from there on 13.7.1991 that she was taken into custody by the police. The police and her father prevented her from making statement in the Court on that date. Subsequently, she was pressurized to make a false statement against me and other accused. There is strong party faction in the village. Prosecutrix (sic) was a consenting party. During her stay together, we have been visiting a number of places and prosecutrix (sic) has been moving openly with me without fear." 7. The remaining accused denied the allegations tooth and nail and pleaded that they have no concern and have been falsely implicated in the case. 8. On scrutiny of the evidence, the trial Court while extending benefit of doubt to the accused Anil Kumar, Mahesh Kumar, Bachi Ram, Noor Ilahi, Achhpal, Tek Chand and Jhamman Lal, were acquitted of the charges, however, accused Dinesh was convicted under Section 376 IPC and was sentenced accordingly. Hence this appeal. 9. 8. On scrutiny of the evidence, the trial Court while extending benefit of doubt to the accused Anil Kumar, Mahesh Kumar, Bachi Ram, Noor Ilahi, Achhpal, Tek Chand and Jhamman Lal, were acquitted of the charges, however, accused Dinesh was convicted under Section 376 IPC and was sentenced accordingly. Hence this appeal. 9. I have heard Mr. R.S. Sihota, learned counsel for the appellant, Ms. Shalini Attri, learned Assistant Advocate General, Haryana and perused the records of this case with their able assistance. 10. At the very outset, learned counsel for the appellant has urged that the parties have already married. The offence so alleged against the accused was the result of consent of the prosecutrix as during her stay for 37 days with the accused, she never raised hue and cry. He has taken me through the photographs Ex.D1 to Ex.D5, which makes a revelation that the prosecutrix out of love, affection and emotions, left the house; stayed and married with the accused, therefore, the case being of consent, the accused cannot be convicted under Section 376 IPC. At the same time he has not denied that the prosecutrix was less than 16 years of age and she was enticed away from the custody of her lawful guardianship, therefore, the offence if any committed by the accused falls within the purview of Section 366 IPC. While pleading for leniency, he has urged that the case relates to the year 1991 and much water has flowed since then. Parties are living peacefully at their house and have children, therefore, sending the accused to prison at this juncture will damage their matrimonial ties. As such, it would be appropriate to take a lenient view in this matter. In this regard he has referred to the judgment delivered by the Apex Court in case State of Chhattisgarh v. Lekhram, 2006(2) RCR(Crl.) 475 : 2006(1) Apex Criminal 696 (SC). 11. Having given my thoughtful consideration to the aforesaid contentions, I feel myself persuaded to the same to some extent. The prosecutrix stayed with the accused at different places for 37 days. She without any fear appears to have got herself photographed with the accused. The photographs Ex.D1 to Ex.D5 reveal that the accused was entering into marriage ties with the prosecutrix. During her stay with the accused, she never raised hue and cry. The prosecutrix stayed with the accused at different places for 37 days. She without any fear appears to have got herself photographed with the accused. The photographs Ex.D1 to Ex.D5 reveal that the accused was entering into marriage ties with the prosecutrix. During her stay with the accused, she never raised hue and cry. The record also reveals that the prosecutrix had come to the Court to make a statement before the Magistrate to make revelation about her marriage but she was recovered. However, keeping in view the minority of the prosecutrix, it could not be ruled out that the accused committed an offence under Section 366 IPC. 12. Now coming to the quantum of sentence, it may be observed that though the prosecutrix was below 18 years of age, yet she was matured and has now married. The accused has already undergone four months imprisonment. He has suffered much agony of the trial as he has been facing the ordeal of trial since 1991 to 1995 and appeal before this Court also remains pending for more than 12 years. Under the similar circumstances of the case, the Apex Court in Lekhrams case (supra) observed as under:- "16. The prosecutrix was a mature girl. She was married. She spent a few months in her in-laws place. The respondent was working in her house. They, thus, knew each other for a long time. The prosecution evidently could not prove its case that she was enticed away from the custody of her guardian by the respondent on a false plea that he would marry her. She denied the said suggestion as presumably she was aware that she being married, the question of her marrying the respondent again may not arise. She lived for some time with the respondent in a rented house. Both the courts proceeded on the basis that she was a consenting party. The occurrence took place in the year 1986. The respondent preferred an appeal before the High Court in the year 1987. The same remained pending for about 10 years. The special leave petition was filed by the State 230 days after the prescribed period of limitation for preferring such appeal. The delay in filing the special leave petition, however, was condoned. He is said to have remained in custody for about one and a half year. The same remained pending for about 10 years. The special leave petition was filed by the State 230 days after the prescribed period of limitation for preferring such appeal. The delay in filing the special leave petition, however, was condoned. He is said to have remained in custody for about one and a half year. In the peculiar facts and circumstances of this case and having regard to the fact that both the courts have arrived at the conclusion that she was a consenting party, in our opinion, it may not be proper to send the appellant back to prison." 13. The present case is also based on similar footings. The photographs Ex.D1 to Ex.D5 are the proof of marriage between accused and prosecutrix, more so of the prosecutrix being consenting party. The accused has no criminal past. The sword of sentence hanged over his head since 1991. Therefore, for the aforementioned reasons, I am of the view that ends of justice would be met if the respondent is directed to be sentenced to the period already undergone by him. Consequently, the appeal is dismissed with the aforesaid modification.