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2007 DIGILAW 2228 (PNJ)

Om Pal v. State Of Haryana

2007-12-20

MAHESH GROVER

body2007
Judgment Mahesh Grover, J. 1. On 18.1.1996, the appellant is stated to. have committed forcible sexual intercourse with the prosecutrix namely Sunita Devi. According to her parents and the prosecution, she was aged about 13 years and was subjected to rape at about 2.00 P.M, when she had gone to fields for brining fodder, where she was accosted by the appellant, who forcibly dragged her to the sugarcane fields and committed the afore-said act upon her. 2. It is further stated that the father of the prosecutrix namely Sant Ram @ Sant Raj, reached the spot where he found the prosecutrix lying on the ground and crying. The accused is stated to have filed away from the spot. 3. The FIR was registered on 19.1.1996 at about 1.25 P.M and the prosecutrix was medically examined on 19.1.1996 itself. The police who conducted the investigation submitted report under Section 173 Cr.P.C. against the appellant. Prima facie the trial Court found his complicity in the commission of offence under Section 376 and charged him accordingly. 4. The prosecution examined as many as ten witnesses, which included the testimony of prosecutrix PW-6, the medical evidence in the shape of statements of Dr. S.P. Singh PW-8 and Dr. Sushma Saini, PW-2. 5. The appellant in his statement under Section 313 of the Cr.P.C denied the incident altogether and tendered in evidence Ex.DX (Certificate). 6. The trial Court came to the conclusion that the prosecutrix was a minor and less then 16 years of age and also found that she had been subjected to sexual intercourse and since she was minor, her consent being immaterial, the commission of offence under Section 376 of the Indian Penal Code stood proved against the appellant, and convicted him for the same and sentenced him to undergo rigorous imprisonment of seven years and to pay a fine of Rs. 250/- and in the event of default of payment of fine to undergo further rigorous imprisonment for a period of one month. 7. Assailing the aforesaid conviction and sentence awarded vide order dated 6.6.1996, learned counsel for the appellant contended that the finding recorded regarding the age of the prosecutrix is wrong. 250/- and in the event of default of payment of fine to undergo further rigorous imprisonment for a period of one month. 7. Assailing the aforesaid conviction and sentence awarded vide order dated 6.6.1996, learned counsel for the appellant contended that the finding recorded regarding the age of the prosecutrix is wrong. He contended that on the date of the occurrence prosecutrix was more than 16 years of age, which stood conclusively established by the testimony of PW8, who was Registrar (Deaths and Births), according to which her date of birth was 29.10.1979. He further contended that this piece of evidence has been wrongly ignored by the trial Court which has merely accepted the ambiguous statement regarding age of the prosecutrix as against the documentary evidence on record. 8. It is thus contended by the learned counsel for the appellant that in view of the overwhelming evidence on record, the prosecutrix was more than 16 years of age at the time of incident and the entire sequence shall have to be viewed; keeping this factor in view, where consent may become implicit from the conduct of the victim. PW-2 Dr. Sushma Saini and PW-8 Dr. S. P. Singh, have further established that no marks of injury were found on the prosecutrix and also by reading the statement of prosecutrix it becomes clear that she was a consenting party and in this view of the situation no offence against the appellant could be said to have been proved. 9. On the other hand learned counsel for the respondent contended that the consent of the prosecutrix being a minor was immaterial. She, however, could not justify as to why the certificate was ignored and as to why no attempt was made by the prosecution to get the ossification test of the prosecutrix. 10. I have heard learned counsel for the parties and perused the record. 11. The first question to be determined in view of the aforementioned arguments advanced by the learned counsel for the appellant is regarding age of the prosecutrix. PW8, Dr. S.P. Singh, who is Additional Registrar (Deaths and Births), has categorically stated as follows : "Certificate Ex. PK was issued by me on the basis of the record maintained in our office on police request. According to the register brought by me today, the date of birth of Sunita recorded in the same is 29.10.1979. PW8, Dr. S.P. Singh, who is Additional Registrar (Deaths and Births), has categorically stated as follows : "Certificate Ex. PK was issued by me on the basis of the record maintained in our office on police request. According to the register brought by me today, the date of birth of Sunita recorded in the same is 29.10.1979. The name of the parents of Sunita have been mentioned in certificate Ex.PK." This piece of evidence obviously could not have been ignored in view of the oral testimony of parents who have given the wrong age of prosecutrix as 13 to 14 years. A perusal of impugned judgment shows that the trial Court was wrong in ignoring this piece of evidence which conclusively proved her to be more than 16 years of age. 12 The next question is whether the prosecutrix was a consenting party and that she was subjected to sexual intercourse against her consent. 13. Adverting to the testimony of the prosecutrix herself, she stated that she was taken to the sugarcane fields by the appellant forcibly and there she was undressed before the act was committed upon her. She also stated that before committing the rape, the appellant had spreaded out a sheet on the ground. 14. It is not conceivable that a girl, who is being forcibly subjected to rape would ordinarily not offer any resistance. The medical testimony does not show any injury on her person and sequence of events where the appellant is stated to have spreaded the sheet on the ground for the prosecutrix who offered no attempt to escape or offer any resistance reveals that she was probably a consenting party. It is also in evidence and in her statement that her father and uncle reached at the spot, upon which the accused is said to have escaped. Suggestive in the statement of the prosecutrix, is the fact that probably they were apprehend by the father and her uncle, which had given rise to this story as a defensive mechanism to explain her conduct. In this view of the matter, it does not appear that the appellant had committed any rape upon the prosecutrix and consequently the appeal is accepted and the appellant is acquitted of the charge against him.