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2007 DIGILAW 1133 (PNJ)

Ajit Singh v. State Of Haryana

2007-05-15

NAWAB SINGH

body2007
Judgment Nawab Singh, J. 1. This appeal is directed against the judgment of conviction dated March 25, 1995 and the order of sentence dated March 28, 1995 passed by learned Additional Sessions Judge, Gurgaon, whereby the accused-appellant was convicted for the offence punishable under Section 363 of the Indian Penal Code (for short `IPC) and sentenced to undergo rigorous imprisonment for a period of three years. 2. On February 10, 1993 at about 8.30 p.m. Manju Bala aged 14 years prosecutrix was on her way to her house in village Joniawas. Ajit Singh accused-appellant met her and asked her that her mother was waiting for her in the Mohalla Chamaro as she was to accompany her to go to Rewari to see her maternal grand-father, who fell ill. She accompanied the accused-appellant. When she reached the Mohalla Chamaro, a young person was standing with a scooter. The accused-appellant and the said young person forcibly took her to Jamalpur Chowk on the scooter. From there, Ajit Singh, brought her in a bus to Gurgaon. Ajit Singh enticed her. Both of them remained at Railway Station, Gurgaon throughout the night. From there, they came to Bus-stand Gurgaon and from Gurgaon, the accused-appellant brought her at 12 noon to Jamalpur Chowk and from Jamalpur Chowk, she came on foot to her village Joinawas. She narrated the entire incident to her mother. A panchayat was convened, but no compromise could be effected. On February 12, 1993, she along with her mother came to Police Station Farrukh Nagar, Gurgaon and made statement (Exhibit PH), on the basis of which, formal First Information Report (Exhibit PH-2) was recorded at said Police Station under Sections 363, 366 and 342 IPC. The prosecutrix was medically examined at General Hospital, Gurgaon. Subsequently, supplementary statements of Manju Bala and her mother Vijay Laxmi were recorded. Offence under Section 376 IPC was added. On February 15, 1993, the accused-appellant was produced before the police by the residents of village Joniawas. He was arrested. On March 1, 1993, Manju Bala prosecutrix was produced before the area Magistrate and her statement (Exhibit PJ) was recorded by Judicial Magistrate 1st Class, Gurgaon (for short `JMIC). On completion of the investigation, the accused-appellant was arraigned for trial. 3. Charge, in respect of commission of offences punishable under Sections 363, 366 and 376 IPC, was framed against the accused-appellant. He pleaded not guilty and claimed trial. On completion of the investigation, the accused-appellant was arraigned for trial. 3. Charge, in respect of commission of offences punishable under Sections 363, 366 and 376 IPC, was framed against the accused-appellant. He pleaded not guilty and claimed trial. 4. The prosecution in support of its case examined nine witnesses, viz. Matadin, Assistant Sub-Inspector (for short `ASI) (PW-1), Balwan Singh Constable (PW-2), Dr. K.D. Vashisth (PW-3), Dr. Vineeta Bhatnagar (PW-4), Ram Singh SS Master (PW-5), Manju Bala prosecutrix (PW-6), Mool Chand Punia Draftsman (PW-7), Shri R.N. Bharti, JMIC, Gurgaon (PW-8) and Siri Ram SI (PW- 9). 5. In his examination under Section 313 Cr.P.C., the accused-appellant denied the allegations and pleaded that he was falsely implicated. He added that the prosecutrix was a class fellow of his sister. She was on visiting terms to his house. Both of them fell in love. Her mother had seen them together. She refused to go back to her house and forced him to take her to some where else. She also threatened that she would commit suicide if not taken away from the village. Under the impression that she may commit suicide, he along with the prosecutrix came to Gurgaon on foot. They went to Railway Station, Gurgaon, then to Delhi, from Delhi to Gurgaon and then to their village Joniawas. It was also stated by him that he never had sexual intercourse with her. 6. On evaluating the evidence, the learned trial Judge acquitted the accused- appellant under Sections 366 and 376 IPC holding that the prosecution failed to prove that the prosecutrix was raped by the accused-appellant. Rather, it was held that the prosecutrix was not at all raped by the accused-appellant. It was also held by the trial Judge that the prosecutrix accompanied the accused-appellant with her consent, so also, he could not be held guilty for the offence punishable under Section 366 IPC. The trial Judge held the accused-appellant guilty under Section 363 IPC on short ground that the prosecutrix was less than 18 years. 7. The only, which requires adjudication in this appeal, is as to whether the prosecution succeeded in proving that Manju Bala prosecutrix was kidnapped by the accused-appellant from her lawful guardianship or not. 8. The star witness, in this case, is Manju Bala prosecutrix (PW-6). 7. The only, which requires adjudication in this appeal, is as to whether the prosecution succeeded in proving that Manju Bala prosecutrix was kidnapped by the accused-appellant from her lawful guardianship or not. 8. The star witness, in this case, is Manju Bala prosecutrix (PW-6). In her first statement (Exhibit PH) made to the police, the allegations levelled by her against the accused-appellant were that while she was returning to her house at 8.30 p.m. on February 10, 1993, the accused-appellant met her and told her that her mother was waiting for her in the Mohalla Chamaro, as she was to accompany her to see her maternal grand-father at Rewari. When she reached the Mohalla Chamaro, another young person was standing with a scooter. She was forcibly taken by the accused-appellant on the scooter of that person to Jamalpur Chowk. From Jamalpur Chowk, she boarded the bus and reached Gurgaon. For whole of the night, they stayed at Railway Station, Gurgaon and next day, they came back to Jamalpur Chowk. From Jamalpur Chowk, she came to her village and narrated the incident to her mother. The entire incident was narrated by the prosecutrix to the Police on February 12, 1993, that is, after two days of the occurrence. It is the case of the prosecution that supplementary statement of the prosecutrix was recorded and thereafter offence under Section 376 IPC was added. This version of the prosecution has been belied by none-else than the prosecutrix herself. She had stated in her statement before the trial Court that she did not make any supplementary statement to the Police. The Investigator got her statement (Exhibit PJ) recorded under Section 164 Cr.P.C. on March 1, 1993. In her statement, she had stated that on February 10, 1993 at about 8.30 p.m. while she was on way back to her house, the accused-appellant met her and gagged her mouth with a Chaddar and then took her to a dilapidated house and raped her. It has further been stated by her that after committing rape upon her, the accused-appellant brought her to the road and from there, he brought her to Gurgaon and from Gurgaon to Delhi and from Delhi to Gurgaon and then back to village Joniawas. She asked him to take her to her house but he threatened her with dire consequences. Dr. She asked him to take her to her house but he threatened her with dire consequences. Dr. Vineeta Bhatnagar (PW-4) medically examined her on February 12, 1993 and found that there was no mark of external injury on her body. Her hymen was intact. She was wearing the same clothes, which she claimed to wear on the date of occurrence. The Medical Officer has also clarified that there was nothing to suggest that Manju was subjected to rape. It was also stated by her that there was no inflammation or injury on the external genitalia of the prosecutrix. This included labia majora and labia minora. 9. The statement of Dr. Vineeta Bhatnagar (PW-4) also suggests that the theory of committing rape upon the prosecutrix by the accused-appellant was totally false. Manju Bala prosecutrix (PW-6) has stated in her statement that she received scratches on her waist. Her skin peeled off at various places. The salwar, which she was wearing, had blood stains. Blood oozed out from her vagina. There was swelling on the vagina. She also had scratched the face of the accused-appellant. Dr. K.D. Vashist (PW-3), who had medically examined the accused-appellant, stated that no injury was found on the person of the accused-appellant. So has also been stated by Dr. Vineeta Bhatnagar (PW-4) that there was no external mark of injury on the person of the prosecutrix. This again proves that the story propounded by the prosecutrix that she was raped by the accused-appellant and at that time, she had received the scratches on her waist, her skin peeled off at various places and she scratched the face of the accused-appellant, is false. It again proves that the prosecutrix was never raped by the accused-appellant. The learned trial Judge has rightly upheld that the theory of rape or abduction of the prosecutrix by the accused-appellant was concocted by the prosecutrix. The prosecutrix was not raped nor forced to marry means that the accused-appellant had honourable intention. According to the prosecution, her age was 14 years. She was student of eighth class. Sh was in a disposing state of mind. There was no force applied. No allurement was held out. She could very well differentiate what was good and what was not good for her. According to the prosecution, her age was 14 years. She was student of eighth class. Sh was in a disposing state of mind. There was no force applied. No allurement was held out. She could very well differentiate what was good and what was not good for her. If a person of her age goes with another person having all opportunity for help, but never complaining of being abducted or kidnapped while in transit, the natural inference would be that she was not kidnapped, rather she had just gone with the accused-appellant on her own without there being mens rea on the part of the accused-appellant. Accused-appellant stated in examination under Section 313 Cr.P.C. that he and the prosecutrix were in love with each other. They were spotted by the mother of the prosecutrix on February 10, 1993. On account of fear, the prosecutrix asked him to take her away from the village, otherwise she would commit suicide. Under that impression, he along with the prosecutrix came to Gurgaon on foot, remained there and then went to Delhi and from Delhi to Gurgaon and then to their village Joniawas. This plea deserves to be considered seriously. Although the accused-appellant can make statement in his own defence as a witness, but that will expose him to the hazards of cross-examination. It is for this reason that under our system of criminal jurisprudence, due weight is to be attached to what is stated by the accused- appellant in his statement recorded under Section 313 Cr.P.C. 10. In the present case, the plea taken by the accused-appellant is that he and the prosecutrix fell in love with each other. Her mother noticed them together on February 10, 1993. The prosecutrix got frightened. She forced the accused-appellant to accompany him to Gurgaon out of fear of her mother threatening that otherwise she would commit suicide. Under these circumstances, he had accompanied the prosecutrix to Gurgaon, he did not entice her away nor he committed sexual intercourse with her. The prosecutrix, in her statement, has also admitted that she was class fellow of the sister of the accused-appellant. The accused-appellant used to teach her and his own sister. She was purchasing milk from the accused-appellant for 2/3 years. She also used to visit the tubewell of the accused-appellant along with his sister Raj Bala. 11. The prosecutrix, in her statement, has also admitted that she was class fellow of the sister of the accused-appellant. The accused-appellant used to teach her and his own sister. She was purchasing milk from the accused-appellant for 2/3 years. She also used to visit the tubewell of the accused-appellant along with his sister Raj Bala. 11. In the circumstances of the case, the plea taken by the accused-appellant appears to be truthful. The inevitable conclusion is that prosecutrix had discerning capability. May be her concept of love etc. was somewhat immaturish, but she had gone of her own without being allured, enticed or threatened. Under such circumstances, the act of the accused-appellant accompanying her to Gurgaon, Delhi etc. cannot tantamount to kidnapping. Thus, the conviction of the accused-appellant by the learned trial Judge under Section 363 IPC was not well founded. 12. In the totality of the facts and circumstances of the case, this Court is of the opinion that prosecution failed to bring the guilt home beyond reasonable doubt. Accordingly, the impugned judgment of conviction and the order of sentence are set aside, the appeal is accepted and the accused- appellant is acquitted of the charge under Section 363 IPC.