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2009 DIGILAW 2193 (PNJ)

Dharmender v. State Of Haryana

2009-12-17

GURDEV SINGH

body2009
Judgment Gurdev Singh, J. 1. Appellants-accused Dharmender, Heera Devi and Anita were tried by Sh. R.L. Sankhla, Additional Sessions Judge, Faridabad. Dharmender- accused was convicted for offences under Sections 363, 366 and 376 of the Indian Penal Code and Heera Devi and Anita-accused were convicted for offence under Section 368 IPC and were sentenced as under :- "Dharmender (i) To undergo rigorous imprisonment for five years and to pay of fine of Rs. 1000/- for offence under Section 363 IPC. In default thereof, to undergo further rigorous imprisonment for three months. (ii) To undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1000/- for offence under Section 366 IPC. In default thereof, to undergo further rigorous imprisonment for three months (iii) To undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1000/- for offence under Section 376 IPC. In default thereof, to undergo further rigorous imprisonment for three months. Heera Devi and Anita To undergo rigorous imprisonment for three years each and to pay a fine of Rs. 500/- each for offence under Section 368 IPC. In default thereof, to undergo further rigorous imprisonment for one month each." 2. The present appeal has been filed against that conviction and sentence. 3. The facts, in brief, are that the prosecutrix, PW-6, (name is not being disclosed in view of the mandate of the Honble Supreme Court in State of Punjab v. Ram Dev Singh 2004(1) R.C.R,(Criminal) 345: 2004(2) Apex Criminal who was less than 18 years old had been residing with her father Radhey Shyam, PW-5. On 4.3.1997, at about 12.00 noon, she was going to the market when Dharmender - accused, who had been previously residing in their house as. a tenant, met her and fleeced her on the ground of witnessing a movie. He took her to the house of his sister. At that place he committed forcible sexual intercourse with her against her consent. Thereafter, on the pretext of moving about and for purchasing the clothes, he took her to Ballabhgarh in a three wheeler and from that place he removed her to Ali- garh in a bus. At that place, they were given shelter in the house of his sister-in-law, Anita-accused and his mother Heera Devi-accused. At that place during night, on the instigation of those two accused, he again committed rape on her. At that place, they were given shelter in the house of his sister-in-law, Anita-accused and his mother Heera Devi-accused. At that place during night, on the instigation of those two accused, he again committed rape on her. On 6.3.1997, Anita took both of them to Khurja for getting a house on rent for them but they could not succeed in getting such a house. They came back and thereafter, the accused took her to Delhi in a bus and then to Jammu in a train. There also, during the night, he had been committing the sexual intercourse with her in the Dharamshala. When he started feeling short of money, he brought her back to Delhi and then to Aligarh, where she was kept in a Guest House. During this period, the accused had not been allowing her to talk to any body and threatened her. Even in that Guest House, she was subjected to rape by him. She was being taken to the Court at Faridabad to perform the love marriage when they were intercepted by the police. In the meanwhile, on 12.3.1997, Radhey Shyam gave written application, Ex. PE, to Prithavi Singh ASI-PW-7, about the kidnapping of his daughter by the accused and made a request therein that she be got recovered from the accused. The ASI recorded the police proceedings, Ex. PI on that and sent the same to the police station, on the basis of which FIR Ex. PJ was recorded against the accused under Sections 363, 366, 368, 376 IPC. After the prosecutrix was recovered from the custody of the accused, the ASI prepared the rough site plan Ex. PK of the place from where she was so recovered. On 5.4.1995, he prepared the rough site plan Ex. PM, of the place from where the prosecutrix had been kidnapped. On 2.4.1997, the prosecutrix and the accused were sent to the hospital, along with applications Ex. PA and PC, for their medical examination. The prosecutrix was examined by Dr. Meenu Kapoor, PW-1, who took the vaginal swabs, which in a sealed jars, were sent to the Chemical Examiner. The doctor opined that the possibility of sexual intercourse could not be ruled out. The accused was medically examined by Dr. A.K. Gupta, PW-2, who found him fit and capable of performing sexual intercourse. The prosecutrix was examined by Dr. Meenu Kapoor, PW-1, who took the vaginal swabs, which in a sealed jars, were sent to the Chemical Examiner. The doctor opined that the possibility of sexual intercourse could not be ruled out. The accused was medically examined by Dr. A.K. Gupta, PW-2, who found him fit and capable of performing sexual intercourse. In the course of investigation, the attested copy of the middle standard examination of the prosecutrix, Ex. PH, was collected in which her date of birth was recorded as 15.6.1980. The vaginal swabs were sent to the Forensic Science Laboratory, but no semen was detected. The underwear, which the accused was wearing at the time of his medical examination was also sent in a sealed parcel to the laboratory and semem was detected thereon. After the investigation was completed, the challan was put in before the Court for trial. 4. Learned Sessions Judge, on the basis of the documents sent alongwith the police report, found sufficient ground for presuming that Dharmender committed offences punishable under Sections 363, 366 and 376 IPC whereas the other accused committed offence punishable under Section 368 IPC. They were charged accordingly to which they pleaded not guilty and claimed trial. 5. To prove the guilt of the accused, prosecution examined Dr. Meenu Kapoor, PW-1, Dr. A.K. Gupta, PW-2, Satbir Singh Constable, PW-3, Naresh Kumar HC, PW-4, Radhey Shyam, PW-5, prosecutrix, PW-6, Prithavi Singh ASI, PW-7, and Ashok Kumar, PW-8. 6. After the close of the evidence by the prosecution, the accused were examined and their statements were recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to. explain the same. They denied all those circumstances and pleaded their innocence and false implication. They were called upon to enter on their defence. 7. After going through the evidence so produced on the record and after hearing Public Prosecutor and learned defence counsel for the accused, learned Sessions Judge convicted and sentenced the accused, as aforesaid. 8. Notice of the appeal was given to the State. 9. I have learned counsel for the appellants and learned State counsel and have carefully gone through the records of the case. 10. Learned counsel appearing the accused assailed their conviction and sentence, so recorded by the learned Sessions Judge. 8. Notice of the appeal was given to the State. 9. I have learned counsel for the appellants and learned State counsel and have carefully gone through the records of the case. 10. Learned counsel appearing the accused assailed their conviction and sentence, so recorded by the learned Sessions Judge. He submitted that the prosecutrix was more than 17 years old and had a love affair with Dharmender- accused. She herself eloped with him and moved from one place to the other and stayed with him for about a month. It is very much clear from the evidence that she was a consenting party. She never raised any alarm nor made any complaint to any one when being removed from one place to the other. That itself shows that she had been moving with the accused with her own free will and not under any compulsion. During her medical examination, no injury was found on her person nor on her private parts. That itself excludes the possibility of any forcible sexual intercourse. From these facts, an inference can be drawn that she was a consenting party. In those circumstances, the accused could not have been convicted and sentenced. In support of his submissions he has placed reliance on Tukaramand another v. the State of Maharashtra 1979 AIR (SC) 185; Rakesh v. State of Haryana, 2006(4) R.C.R. (Criminal) 505; Narinder v. State of Haryana 2003(3) RCR (Criminal) 721 and.Smt Anita v. State ofHaryana 2001(2) RCR (Criminal) 750. 11. On the other hand, it has been contended by Assistant Advocate General, Haryana, that the prosecutrix had come out with a categorical statement that the accused not only kidnapped her but had been removing her to different places and committing sexual intercourse with her. The other two accused instigated Dharmender-accused to commit the offence of rape. The prosecutrix has made trust worthy statement. No doubt, she never raised any such alarm while being removed from one place to the other, but from that fact or on account of absence of injury on her person, it cannot be concluded that she was a consenting party. She has come out with the statement that the accused had been threatening her and on account of those threats, she had not raised any alarm while being removed from one place to the other. She has come out with the statement that the accused had been threatening her and on account of those threats, she had not raised any alarm while being removed from one place to the other. There is nothing on the record for concluding that there was any such love affair of the prosecutrix with Dharmender-accused or that she was a consenting party Even if it is to be held that she was a consenting party, even then, the accused are liable to be convicted for the offence of kidnapping from lawful guardian as the prosecutrix was less than 18 years old and there was no such consent by her lawful guardian. 12. The first question to be determined for the decision of this appeal is: "what was the age of the prosecutrix at the time of occurrence". 13. When she herself entered the witness box as PW-6, she stated her age to be 15/16 years at the time of occurrence. It was asked from her during cross examination as to what was her age on that date. She stated herself to be 17 years old at that time. That statement was recorded on 16.9.1998 and thus, according to her, on the date of occurrence, she was 16 years old. On that aspect, her father Radhey Shyam, PW-5, has deposed that he was 15/16 years old on 4.3.1997. 14. The best evidence regarding her age is middle standard examination certificate proved on the record as Ex. PH. It was held by Honble the Supreme Court in Sannaila Subba Rao v. State of Andhra Pradesh 2008(3) RCR(Crl) 937(SC) that the school certificate issued by the Head Master with regard to the age of the prosecutrix is a legal document having evidentiary value and has to be given weightage. Such dates of births are recorded in the school registers by the authorities in discharge of their public duty. That entry is not conclusive but has evidentiary value. It is matter of common knowledge that in the Examination Certificates issued by the Boards/Universities, that date of birth is incorporated, which is being supplied by the school/college authorities at the time of submission of the admission forms of the students. Such like certificates have got the evidentiary value so far as the date of birth recorded therein is concerned. As per above said certificate, Ex. PH, the date of birth of the prosecutrix is 15.6.1980. Such like certificates have got the evidentiary value so far as the date of birth recorded therein is concerned. As per above said certificate, Ex. PH, the date of birth of the prosecutrix is 15.6.1980. Thus, at the time of occurrence she was between 16/17 years old. 15. The second question to be decided is, "whether the prosecutrix was a consenting party." She had come with the deposition that the accused was their tenant and was well known to her. On 4.3.1997, at about 12.00 noon, he met him on the way while she was going to the market and enticed her on plea of showing the movie. He took her to the house of his sister and kept her in that room and at night committed rape against her wish. Next day he took her to Ballabhgarg and then to Aligarh. His mother Heera Devi and his sister-in-law- Anita met them at that place and she was kept in their house during the night and on the saying of those two ladies, the accused committed rape on her. On 6.3.1997, Anita-accused, took them to Khurja for taking a house on rent but no such house was available. Anita came back to Aligarh whereas Dharmender- accused took her to Jammu through bus and train. The accused committed rape on her at Jammu also. Then she was brought to Aligarh and kept in a guest house and at the place also, the accused committed rape on her and also threatened her. Then the accused brought her to Faridabad Court for performing the love marriage. Thereafter, they were coming from Delhi, when at the border they were seen by her father and police. Then accused escaped from that place leaving her with her father and the police. About the recovery of the prosecutrix from the custody of the accused, her statement has been supported by her father Radhey Shyam, PW-5 and Prithavi Singh ASI, PW-7. According to that investigating officer, it was on 2.4.1997 that the prosecutrix was recovered from the custody of the accused, regarding which memo Ex. PF was prepared. 16. In Rakeshs case (supra) the prosecutrix was abducted by the accused from Gurgaon and was taken to Bulandshahr by bus where they stayed for 14-15 days and the accused had committed rape on her daily. PF was prepared. 16. In Rakeshs case (supra) the prosecutrix was abducted by the accused from Gurgaon and was taken to Bulandshahr by bus where they stayed for 14-15 days and the accused had committed rape on her daily. It was found that she never raised any alarm either in the bus or at Bulandshahr. According to her, she had travelled with the accused in the bus and three wheeler and she never disclosed to any passenger that she was being kidnapped by the accused forcibly. According to her, she did not raise any alarm as she was under threat from the accused that she would be eliminated. It was held that silence on the part of the prosecutrix on every occasion can be termed as a consenting party. 17. In the present case also, the prosecutrix was being taken by the accused to different places in the bus and train and they stayed at those places. She never made any complaint to anyone nor raised any alarm in the bus or in the train that she was being kidnapped. In her cross examination, she has stated that it was on account of the fear of threats given by the accused that she had not raised any such alarm. According to her, there was big crowd at the bus stand, Balabhgarh, but the accused had threatened her not to talk to anybody. She has also stated that during her stay at Jammu, he used to leave her alone in the room. In that case, she could have run away from that place or at least could have come out and collect the people by raising an alarm. She never did so. 18. It was held by Honble the Supreme Court in Tukarams case (supra) that "the fear shown by the prosecutrix must be that of a death or hurt and in the absence of such a finding, the alleged fear does not vitiate the consent." In the present case, it is not the case of the prosecutrix that the fear was of death or hurt. It is also be noted that she herself deposed during her cross- examination that the accused had brought her clothes from the house on the date of occurrence itself. She has not been able to explain how the accused managed to bring the clothes from her house itself. It is also be noted that she herself deposed during her cross- examination that the accused had brought her clothes from the house on the date of occurrence itself. She has not been able to explain how the accused managed to bring the clothes from her house itself. It is also pertinent to note that when the prosecutrix was recovered from the custody of the accused, there was no such factor of fear. Had there been no consent on her part, the accused would not have taken her to the courts at Faridabad, for performing the love marriage. After careful perusal of the statement of the prosecutrix, I have come to the conclusion that she was a consenting party. 19. Once a finding is recorded that the prosecutrix was above 16 years of age and was a consenting party, it cannot be concluded that any such offence was committed by Dharmender accused under Section 376 IPC and he is to be acquitted of that offence. 20. The only question which remains to be determined is "whether Dharmender- accused can be said to have committed offence under Section 363/366 IPC". In Narenders case (supra), like the present case, the prosecutrix had came out of the school for purchasing kulfi and was told by the accused that the kulfi, she was purchasing was not good and they would get her a good kulfi and show her movie. On that pretext, she was taken away by them, and subjected to forcible intercourse against her wish. By relying upon the judgment of the Honble Supreme Court in S. Varadarajan v. State of madras AIR 1965 SC 942, this Court came to the conclusion that those facts do not make offence under Section 363 IPC against the accused. In Smt. Anitas case (Supra), the accused was residing as a tenant in one of the rooms of Sikander, father of the prosecutrix. She was allured by the accused on the pretext of getting clothes and ornaments to her and on that allurement she accompanied him. It was held by this Court that it was a case of elopement and not of kidnapping. 21. In S. Varadarajans case (Supra) Honble. the Supreme Court has held as under :- "There is a distinction between "taking" and allowing a minor to accompany a person. It was held by this Court that it was a case of elopement and not of kidnapping. 21. In S. Varadarajans case (Supra) Honble. the Supreme Court has held as under :- "There is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purposes of Section 361. Where the minor leaves her fathers protection knowing or having capacity to know the full import of what she is doing, voluntarily joins the accused person, the accused can not be said to have taken her away from the keeping of her lawful guardian. Some more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian." 22. In case the statement of the prosecutrix in this case is to scrutinized in the light of above said proposition of law, it becomes very much clear that it was a case of eloping of the prosecutrix with the accused and not a case of "taking away". The prosecutrix was more than 17 years old and was a student. She had the knowledge and capacity of having full import of what she was doing. In these circumstances, it cannot held that the accused had taken away the prosecutrix from the keeping of the lawful guardianship. 23. In view of what has been said above, this appeal is accepted. The conviction and sentence of the accused is set aside. The fine, if deposited, be refunded to them.