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2008 DIGILAW 1397 (PNJ)

Nanak v. State Of Haryana

2008-08-19

K.C.PURI

body2008
Judgment 1. This appeal is directed against the judgment/order dated 29.4.1998 rendered by Shri Dharamvir Singh, the then Additional Sessions Judge, Faridabad whereby the accused has been convicted under Sections 366, 363 and 376 IPC and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.500/- and in default of payment of fine, to undergo further imprisonment for 15 days under Section 363 IPC; to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.500/- and in default of payment of fine, to undergo further rigorous imprisonment for 15 days under Section 366 IPC and to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo further imprisonment for a period of five months, under Section 376 IPC. The substantive sentences awarded to the accused have been ordered to run concurrently. 2. The facts of prosecution case are reduced to a smaller compass as follows:- The present case was registered on the statement of Chanderwati, mother of the prosecutrix, Exhibit PF. It was alleged that on 14.9.1994, during the night, the accused kidnapped the prosecutrix, aged 13 years. A search was made for her in the neighbourhood and other places of her relatives but she could not be traced. The accused was arrested while being in the company of the prosecutrix. On 16.9.1994, the statement of prosecutrix was recorded by the Judicial Magistrate 1st Class, Faridabad, wherein she deposed that on 14.9.1994, during the night at about 10-00 p.m, she came out of her house to urinate. The accused met her outside and told her that her elder sister was seriously ill in the hospital and she should accompany him. The prosecutrix accompanied the accused. When they reached on the road, the accused took her in a truck. After about 1/1-2 hours, they got down from the truck at Mathura. When the prosecutrix enquired from the accused as to where he was taking her, the accused took out a knife and threatened her that he would kill her if she raised any alarm. Thereafter, from Mathura, the accused took the prosecutrix in an auto-rickshaw to village Kot, where she was kept in a room in the school. During the night, the accused had sexual intercourse with her on knife point. 3. Thereafter, from Mathura, the accused took the prosecutrix in an auto-rickshaw to village Kot, where she was kept in a room in the school. During the night, the accused had sexual intercourse with her on knife point. 3. After completion of investigation, challan was presented against the accused. 4. Charge was accordingly framed against the accused to which he pleaded not guilty and claimed trial. 5. In order to prove its case, the prosecution examined PW-1 Constable Asruddin, PW-2 Constable Satbir Singh, who had tendered his affidavit Exhibit PA, PW-3 SI Ram Kishan, PW-4 Constable Anoj Kumar, PW-5 Hari Chand, Clerk in the office of Food & Supply, Ballabgarh, PW-6 Chanderwati, mother of the prosecutrix, PW-7 HC Kartar Singh who also tendered his affidavit, Exhibit PF, in the evidence, PW-8 Kishan Chand, PW-9 Dr. P.R.Nain,PW-10 Dr. Madhu Lata Paul, PW-11 Shri V.P.Gupta, Judicial Magistrate 1st Class, Karnal, PW-12 prosecutrix and PW-13 ASI Hem Chand, Investigating Officer. 6. After the close of prosecution evidence, the statement of the accused was recorded under Section 313 Cr.P.C. He denied the prosecution allegations and pleaded innocence. 7. After the conclusion of trial, the accused was convicted and sentenced as mentioned in the earlier part of the judgment. 8. Feeling dissatisfied, the accused has preferred the present appeal. 9. Learned counsel for the appellant has submitted that no injury was found on the person of the prosecutrix as stated by the doctor. The doctor has further stated that the prosecutrix might be habitual of intercourse. The entire circumstances lead to the only conclusion that the prosecutrix was a consenting party. 10. It has been further submitted that the prosecution has not produced on the file any conclusive evidence to prove that the prosecutrix was below 16 years of age. No ossification test was got conducted to determine the age of the prosecutrix. Exhibit PE, ration card, does not prove the age of prosecutrix. The birth certificate which was the best evidence has been withheld by the prosecution. So, an adverse inference be drawn against the prosecution. 11. It has been further submitted that on the file, there is one school leaving certificate. The date of birth of prosecutrix has been mentioned as 6.12.1977 in the certificate. So, at the time of alleged occurrence, she was more than 16 years of age. So, an adverse inference be drawn against the prosecution. 11. It has been further submitted that on the file, there is one school leaving certificate. The date of birth of prosecutrix has been mentioned as 6.12.1977 in the certificate. So, at the time of alleged occurrence, she was more than 16 years of age. Therefore, the learned trial Court has wrongly held the age of the prosecutrix as 13 years. In support of his contentions, the learned counsel for the appellant has relied upon authorities in cases Naravan @ Naran V/s. State of Rajasthan, 2007(2) RCR (Criminal) 586 and Rakesh V/s. State of Haryana, 2006(4) RCR (Criminal) 505. 12. The learned State counsel has supported the judgment of the trial Court and has submitted that the prosecutrix had been raped and she was only aged 13 or 14 years at the time of occurrence. The accused has been rightly convicted by the trial Court. Whatever evidence regarding age was available with the prosecution, the same had been produced. The school leaving certificate has not been proved by the accused. Otherwise also, the school leaving certificate is not the conclusive evidence regarding age. The consent of prosecutrix is also not proved from the evidence on the file. 13. I have carefully considered the submissions made by both sides. From the submissions made by both sides, the following material points arise for decision by this Court :- (a) Whether the prosecutrix was a consenting party and; (b) Whether the prosecutrix was below 16 years of age. 14. In order to properly appreciate the material points, the testimony of prosecutrix is relevant. She was examined in the Court on 3.12.1996. She has given her age as 13 or 14 years. She has stated that on the night of 14.9.1994, she along with her family members was sleeping in her house. She came out of the house at 10-00 p.m. for urinating. The accused asked her that her elder sister was seriously ill and she should accompany him to the Government hospital. The accused brought her under the railway bridge instead of Government hospital and raped her. After raping her, the accused showed her a knife and told her that he would kill her and her family members if she did not accompany him. The accused brought her under the railway bridge instead of Government hospital and raped her. After raping her, the accused showed her a knife and told her that he would kill her and her family members if she did not accompany him. Then, he brought her to Mathura on the same night and on the next day, he brought her to Kota village in Mathura district. On 16th, she was brought to Hodal Bus Stand, where she along with the accused were apprehended by the accused (sic). So, from the testimony of the prosecutrix, it is revealed that she was raped by the accused under threat. The Hon ble Apex Court in authority in case State of Tamil Nadu V/s. Ravi @ Nehru, 2006 (3) RCR (Criminal) 500 :(2006 Cri LJ 3305) held that where there was no evidence that the accused was falsely implicated because of animosity, the evidence of victim corroborated by medical evidence and other prosecution witnesses, should be accepted and conviction should be passed against the accused. The legal position, summed up by the Hon ble Apex Court in the above-said authority is given as under:- "(i) Conviction can be founded on the testimony of the prosecutrix alone unless there are Compelling reasons for seeking corroboration. (ii) Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence. (iii) The woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons lust and it is improper and undesirable to test her evidence with a certain amount of suspicion treating her as if she were an accomplice. 1996(1)RCR(Criminal) 533 (SC) :(1996 Cri LJ 1728), relied. (iv) Non-rupture of hymen or absence of injury on victims private parts does not belie the testimony of the prosecutrix. 1998(8) SCC 635, relied. (v) Evidence of a victim of sexual assault stands on par with evidence of an injured witness-Just as a witness who has sustained an injury is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offender is entitled to great weight, absence of corroboration notwithstanding. 1983(2) RCR (Criminal) 192 (SC): (1983 Cri LJ 1096), relied." 15. So, the evidence of victim of sexual assault is equated with an injured witness. 1983(2) RCR (Criminal) 192 (SC): (1983 Cri LJ 1096), relied." 15. So, the evidence of victim of sexual assault is equated with an injured witness. There was no reason for the prosecutrix to falsely implicate the accused. Even suggestion has not been put in this regard. The testimony of prosecutrix found favour with the trial Court and on reappraisal of evidence also, no ground for discarding her sworn testimony is made out. Otherwise also, the counsel for the accused, during the course of arguments, has not disputed the factum of sexual intercourse but has stated that the prosecutrix is a consenting party. From the testimony of prosecutrix, it is proved that she has been raped under threat. Otherwise also, the learned trial Court has found the prosecutrix below 16 years of age at the time of commission of offence. So, in these circumstances, the consent becomes immaterial. The prosecutrix was found in the company of the accused. That fact has not been disputed during the course of trial. The theory of consent put forward by the accused did not find favour with the trial Court and on reappraisal of evidence, no case for interference in the finding of guilty recorded by the trial Court is made out. 16. So far as submission made by the learned counsel for the accused that the age of the prosecutrix has not been conclusively proved by the prosecution is concerned, the same is without any substance. No doubt, ossification test has not been conducted in the present case but PW-10 Dr. Madhu Lata has stated the age of the prosecutrix as 14 years. The other prosecution witnesses including prosecutrix has given her age much below 16 years. So far as school leaving certificate placed on the file is concerned, the accused has not proved the same. Moreover, the school leaving certificate is never the proof of the age. Copy of ration card, Exhibit PE, has been placed on the file regarding the age of the prosecutrix. The age of the prosecutrix has been mentioned as 12 years. According to the case of the prosecution, she was a student of 5th class. That fact also corroborate the factum of age of the prosecutrix. So far as authority in case Naravan @ Naran (2007 Cri LJ 2733) (supra) is concerned, the said authority is distinguishable. In that case, the prosecutrix sat happily on the tractor. According to the case of the prosecution, she was a student of 5th class. That fact also corroborate the factum of age of the prosecutrix. So far as authority in case Naravan @ Naran (2007 Cri LJ 2733) (supra) is concerned, the said authority is distinguishable. In that case, the prosecutrix sat happily on the tractor. In the present case, the prosecutrix has stated that she was under threat. In the said case, she did not narrate the incident of rape to the inmates of the house where she slept during the night. Moreover, in that case, it was not proved that the prosecutrix was below 16 years of age. Authority in case Rakesh (supra), is also distinguishable as in that case, the prosecutrix was more than 16 years of age. She went in the bus peacefully. 17. No other point has been urged before me. 18. Keeping in view the peculiar facts and circumstances of this case, the sentence of the accused is reduced to a minimum of seven years instead of ten years. However, the sentences awarded under Sections 363 and 366 and sentences of fine awarded to the accused under Sections 363, 366 and 376 and their default clause stand confirmed. All the substantive sentences shall run concurrently. 19. The accused is stated to be on bail. His bail bonds and surety bonds stand cancelled. He be taken into custody for undergoing the remaining part of his sentence. 20. This appeal stands disposed of in the above terms.