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2010 DIGILAW 1603 (PNJ)

Dalip Singh v. State Of Haryana

2010-05-07

T.P.S.MANN

body2010
Judgment 1. This appeal is directed against the judgment and order dated 1/2-9-1998 passed by Additional Sessions Judge, Bhiwani whereby the appellant was convicted for offences under Sections 363, 366 and 376, IPC and sentenced as under : (a) rigorous imprisonment for two years and fine of Rs. 200/-.under Section 363, IPC and in default of payment of fine, to undergo further rigorous imprisonment for one month; (b) rigorous imprisonment for three years and fine of Rs. 300/- under Section 366, IPC and in default of payment of fine, to undergo further rigorous imprisonment for two months; and (c) rigorous imprisonment for seven years and fine of Rs. 1,000/- under Section 376, IPC and in default of payment of fine, to undergo further rigorous imprisonment for three months. 2. All the sentences were ordered to run concurrently. 3. According to the prosecution, complainant Pyare Lal moved application before ASI Bhim Singh on 26-11-1997. It was alleged therein that his wifes sister, hereinafter referred to as the prosecutrix, aged 14 years, used to reside with him to look after his children. On 2-11-1997, he and his wife went to their field whereas the prosecutrix remained in the house. When he and his wife returned in the evening, the prosecutrix was not found present in the house. According to the complainant, the appellant, who was his distant nephew and also used to reside in his house, was found absent from the house. The complainant searched for the prosecutrix and the appellant in his relations but in vain. The complainant suspected that his nephew had kidnapped his sister-in-law by giving some false assurance. 4. On the basis of application submitted by the complainant, FIR No. 215 dated 26-11-1997 was registered at Police Station, Bahal against the appellant for offences under Sections 363 and 366, IPC. During in vestigation, the police recorded the statements of witnesses and prepared rough site plan. The appellant was arrested and the prosecutrix was got recovered from his possession. They were subjected to medico-legal examination. Offence under Section 376, IPC was also added to the FIR. 5. Upon completion of investigation and presentation of challan followed by commitment of the case, the appellant was charged for offences under Sections 363, 366 and 376, IPC, to which he pleaded not guilty and claimed trial. 6. The prosecution examined P.W. 1 C. Ranbir Singh, P.W. 2 Dr. Offence under Section 376, IPC was also added to the FIR. 5. Upon completion of investigation and presentation of challan followed by commitment of the case, the appellant was charged for offences under Sections 363, 366 and 376, IPC, to which he pleaded not guilty and claimed trial. 6. The prosecution examined P.W. 1 C. Ranbir Singh, P.W. 2 Dr. N. C. Gaba, P.W. 3 HC Jagir Singh, P.W. 4 C. Kashmir Singh, P.W. 5, Dr. O. P. Hooda, P.W. 6, Dr. Sandhya Gupta, P.W. 7 Patwari Rawat Ram, P.W. 8 the prosecutrix, P.W. 9 complainant Pyare Lal, P.W. 10 Shri O. P. Verma, Additional Chief Judicial Magistrate and P.W. 11, ASI Bhim Singh, Investigating Officer, in support of its case. 7. When examined under Section 313, Cr.P. C., the appellant claimed that he was innocent and stated that marriage of the prosecutrix was arranged with him with the consent of her father but her sister and brother-in-law had objection and they wanted to marry her with some other person. Due to that, case was registered against him, at the instance of sister and brother-in-law of the prosecutrix. However, in his defence, the appellant also produced DW1 Birma Devi, his mothers sister (mausi), according to whom there was some settlement that the appellant and the prosecutrix would be married. The prosecutrix and her father were willing but sister and brother-in-law of the prosecutrix did not agree with the proposal and due to that, the prosecutrix ran away from her sisters house to her father Raghbir, who brought her at village Jhanjhot, where marriage of the prospecutrix was solemnised with the appellant in a temple at Chirawa. 8. The trial Court held that the prosecutrix was below 16 years of age and not major at the time of the occurrence. She was kidnapped by the appellant from the lawful custody of her sister in a deceitful manner with an intention to commit rape upon her and after that, he kept her at his house in village Jhanjhot from 2-11-1997 to 27-11-1997 where he raped her. The appellant was, accordingly, convicted and sentenced, as mentioned above. 9. I have heard learned counsel for the parties and with their able assistance gone through the records of the case. 10. The appellant was, accordingly, convicted and sentenced, as mentioned above. 9. I have heard learned counsel for the parties and with their able assistance gone through the records of the case. 10. Taking up the issue of the age of the prosecutrix, it has to be seen that the prosecution relied upon the FIR lodged by complainant Pyare Lal, the statement made by the prosecutrix while appearing as PW8 as well as the testimony of PW6 Dr. Sandhaya Gupta wherein they alleged that the prosecutrix was 14 years at the time of occurrence. At the same time, it has to be noticed that the prosecutrix was radiologically examined by PW 2 Dr. N. S. Gaba on 15-12-1997 and as per his report Ex. PA, the radiological age of the prosecutrix was between 151/2 years to 17 years. The trial Court, however, came to the conclusion that the prosecutrix was below the age of 16 years at the time of occurrence as she was having irregular menstrual period. Besides, there was possibility of variation of three years on either side of the radiological age. The circumstances taken by the learned trial Court to hold that the prosecutrix was below the age of 16 years cannot be accepted. The prosecution had not brought on record the birth certificate of the prosecutrix. Benefit has to be extended to the appellant regarding the age of the prosecutrix as determined by the Radiologist to hold that the prosecutrix could be even 17 years of age on the date of the occurrence. Under these circumstances, this Court is of the view that the prosecution has failed to establish that the prosecutrix was below 16 years of age on the date of the occurrence. 11. A perusal of the statement of PW6 Dr. Sandhaya Gupta reveals that the secondary sexual characteristics of the prosecutrix were well developed. Pubic hair growth was full and breasts fully developed. No mark of injury was noticed on the breasts, thighs, arms and back. Hymen was found ruptured. The vagina was shown admitting two fingers easily. In cross-examination, the doctor stated that as there was no mark of injury on the vagina or on any part of the body of the prosecutrix, it was a case of habitual intercourse. 12. According to the prosecution, the prosecutrix remained with the appellant for a period of about 25 days. The vagina was shown admitting two fingers easily. In cross-examination, the doctor stated that as there was no mark of injury on the vagina or on any part of the body of the prosecutrix, it was a case of habitual intercourse. 12. According to the prosecution, the prosecutrix remained with the appellant for a period of about 25 days. It was the case of the prosecutrix that on 2-11-1997 at about 1.00 p.m., she was taken by the appellant from the house of the complainant to village Jhanjhot (Rajasthan). In cross-examination, she deposed about the photographs Exhs. D1 to D7 by stating that these were her photographs and, that too, taken in a temple. In three of these photographs, the appellant and the prosecutrix were shown exchanging garlands, in the fourth photograph, the appellant was seen putting vermilion in the hair parting of the prosecutrix while in another, someone is pictured while offering blessing to the appellant and the prosecutrix, who had bowed before him. The explanation given by the prosecutrix of accompanying the appellant from one place to other was that she had been threatened with dire consequences if she disclosed to anyone about her kidnapping or being subjected to sexual intercourse, cannot be accepted. In view of the above, the conviction of the appellant for the offence under Section 376 cannot be sustained. 13. As regards the conviction of the appellant for the offences under Sections 363 and 366, IPC, the testimony of PW2 Dr. N.C. Gaba may again be adverted to. As per his report Exh. PA, the radiological age of the prosecutrix was between 151/2 to 17 years. In cross-examination, the said doctor admitted that from the tests so conducted, the exact age could not be determined and there was variation of about three years on either side. The upper age of the prosecutrix specified by PW 2 Dr. N. C. Gaba in his report Exh. PA was 17 years and as there was possibility of variation of about three years on either side, possibility cannot be ruled out that the prosecutrix could be about 20 years of age on the date of the occurrence. The upper age of the prosecutrix specified by PW 2 Dr. N. C. Gaba in his report Exh. PA was 17 years and as there was possibility of variation of about three years on either side, possibility cannot be ruled out that the prosecutrix could be about 20 years of age on the date of the occurrence. Even otherwise, according to the prosecutrix, when she appeared as PW8 before the trial Court, the appellant had met her on 2-11-1997 at about 1.00 p.m. and asked her to accompany him to his village and he would buy her goods of her liking. She, accordingly, accompanied him to his village Jhanjhot in Rajasthan. Reaching his house, the mother, grandmother and maternal uncle of the appellant met the prosecutrix. On the night, the prosecutrix and the appellant remained in one room and shared the cot. During the night, the appellant had sexual intercouse with her against her wishes. In cross-examination, she stated that when she appeared before the Magistrate, she did not tell that the appellant had sexual intercourse with her against her wishes. Apparently, the prosecutrix had willfully accompanied the appellant from village Bahal to his village Jhanjhot in Rajasthan. Therefore, it would not be safe to maintain the conviction of the appellant for the offences under Sections 363 and 366, IPC as well. 14. Resultantly, the appeal is accepted, impugned order of conviction and sentence is set aside and the appellant is acquitted of the charges against him. He is on bail. His bail bonds shall stand discharged. The amount of fine, if already deposited by the appellant, be refunded to him.