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2010 DIGILAW 2051 (PNJ)

Sukh Ram v. State Of Haryana

2010-07-16

JITENDRA CHAUHAN

body2010
Judgment Jitendra Chauhan, J. 1. The present appeal is directed against the judgment and order dated 15/16.2.2000 passed by the Additional Sessions Judge, Sirsa whereby the accused-appellant has been convicted for the offences punishable under Sections 363, 366-A and 376 of the Indian Penal Code and sentenced as under :- (i) To undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/-; for offence under Section 363 of IPC; (ii) To undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.1,000/- for the offence under Section 366-A of IPC; and (iii) To further undergo rigorous imprisonment for a period of five years for the offence under Section 376 of IPC. All the sentences were ordered to run concurrently. In default of payment of fine, the accused would further undergo simple imprisonment for a period of two months. 2 Brief facts of the case as projected by the prosecution are given in para 1 of the impugned judgment which are as under :- "On 5.10.1998 complainant Mam Chand lodged a complaint Ex.PC in Police Station City, Sirsa alleging that he is the resident of Ther Mohalla, Sirsa. His daughter namely Suman aged 16 years is missing since 1.10.98(night). He has been searching his daughter here and there at his own but in vain. He is having the information that accused Sukh Ram son of Thandu Ram has taken away his daughter by way of inducement. On this information, a formal FIR Ex.PC/1 was lodged and the investigations were carried out. ASI Gurdev Singh inspected the place of occurrence and prepared the rough site plan Ex.PR with correct marginal notes and also recorded the statements of the witnesses. On 9.12.98 ASI Chander Pal alongwith HC Subhash Chander, LC Ram Murti, Mam Chand and Diwan Singh was present on a crossing near General Hospital, Sirsa. In the meantime accused alongwith the prosecutrix was seen coming from the side of J.J.Colony, Sirsa. Complainant-Mam Chand identified his daughter as well as accused Sukh Ram. Both of them were apprehended. The prosecutrix Suman was recovered from the custody of Sukh Ram vide recovery memo Ex. PN and the statement of the prosecutrix was also recorded under Section 161 Cr.P.C. ASI Chander Pal, the Investigating Officer prepared the rough site plan Ex. PO. Complainant-Mam Chand identified his daughter as well as accused Sukh Ram. Both of them were apprehended. The prosecutrix Suman was recovered from the custody of Sukh Ram vide recovery memo Ex. PN and the statement of the prosecutrix was also recorded under Section 161 Cr.P.C. ASI Chander Pal, the Investigating Officer prepared the rough site plan Ex. PO. No lady Medical Officer was available at General Hospital, Sirsa on that day, so the prosecutrix Suman was got medically examined on the next day and ossification test was conducted. After examination Suman was produced before the Judl. Magistrate-I Class, Sirsa who also recorded the statement under Section 164 Cr.P.C. She was handed over to her parents vide memo Ex.PD. The accused after arrest was also got medically examined. During the investigations it was also revealed that accused Thandu Ram had helped accused Sukh Ram in taking away the prosecutrix. After completion of all the formalities and after obtaining the FSL report Ex.PF both the accused were challaned by Sube Singh, Inspector, then Station House Office of Police Station City, Sirsa vide his report under Section 173 of the Criminal Procedure Code, 1973. 3. The learned Additional Sessions Judge, Rewari charge sheeted the accused/appellant Sukh Ram for committing the offences under Sections 363/366-A/376 of the Indian Penal Code, whereas the accused Thandu Ram was charge sheeted under Section 212 of IPC vide order dated 5.6.1999 to which the accused/appellants pleaded not guilty and claimed trial. 4. To prove its case, the prosecution has examined as many as thirteen witnesses. 5. PW 1-Dr.Joginder Singh, Medical Officer, General Hospital, Rewari medico- legally examined the accused/appellant Sukh Ram on 9.12.1998. He opined that there was nothing abnormal to suggest that the the accused/appellant was incapable of doing sexual intercourse. Crl. Appeal No.323-SB of 2000 4 6. PW-2-Suman daughter of Mam Chand (prosecutrix) stated that the accused was her neighbourer. Accused/appellant started inducing her on the pretext that he is highly educated and having Diploma. She further stated that the accused made allurements to her and assured that he would give ornaments and good quality of clothes in case she marry him, but she refused to it. She further stated that the accused took her near to the Civil Hospital, Sirsa and committed rape upon her forcibly. The accused also took her to Ellenabad by a canter and thereafter took her to Rewari forcibly. She further stated that the accused took her near to the Civil Hospital, Sirsa and committed rape upon her forcibly. The accused also took her to Ellenabad by a canter and thereafter took her to Rewari forcibly. From Rewari the accused took her to Vaishno Devi. Therafter, the accused took her to village Rathi Khera in Rajasthan, where she requested him to drop her with her parents but the accused threatened her with dire consequences. During this period, the accused committed rape upon her forcibly. She further stated that on her insisting, the accused dropped her at the Bandranwali Pulley, Sirsa from where her father and police persons rescued her from the clutches of the accused/appellant. 7. PW-3 Mam Chand, father of the prosecutrix, reiterated the version already given in his statement before the police. 8. PW-5-Brij Mohan Sharma, Head Master, GHS Shahpur Begu, stated that he had issued the certificate Exhibit DD in which the date of birth of Suman, PW-2 was mentioned as 15.2.1982. 9. PW-6-Pushivinder Kumar, JMIC, stated that he recorded the statement, Exhibit PB, of Suman, PW 2, Exhibit PB. In cross-examination, he admitted that Suman, PW 2, had nowhere alleged in the statement, Exhibit PB, that the accused committed rape upon her forcibly. 10. PW-7-ASI Chander Pal, stated that he apprehended the accused and Suman, PW 2 when they were coming from the side of J.J.Colony, Sirsa. He recorded the statement of Suman and also added Section 376 of IPC in the FIR. 11. PW-8-Dr.(Mrs.) Meenakshi Goel stated that she medico-legally examined the prosecutrix on 10.12.1998. she opined that there was no nail injury or mark seen on the pubic area. 12. The accused-appellants were examined under Section 313 of the Code of Criminal Procedure in which they denied all other incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. However, in defence, the accused did not examine any witness. 13. After hearing the learned Public Prosecutor, the learned defence counsel and examining the evidence on record, the learned Trial Court convicted and sentenced the accused/appellant Sukh Ram as noticed at the outset. However, accused Thandu Ram, by giving benefit of doubt, stood acquitted of the charge. Feeling aggrieved with his conviction/ sentence, the accused/appellant has preferred this appeal. 14. 13. After hearing the learned Public Prosecutor, the learned defence counsel and examining the evidence on record, the learned Trial Court convicted and sentenced the accused/appellant Sukh Ram as noticed at the outset. However, accused Thandu Ram, by giving benefit of doubt, stood acquitted of the charge. Feeling aggrieved with his conviction/ sentence, the accused/appellant has preferred this appeal. 14. Learned counsel for the appellant has argued that no case under Sections 363, 366-A and 376 of the Indian Penal Code is made out against the accused/appellant as the prosecutrix Suman, PW 2, after having consented, accompanied the accused from one place to another place without raising any protest. The prosecutrix left her house on 1.10.1998 and stayed with the accused till she was recovered on 9.12.1998. Learned counsel has further argued that the prosecutrix remained with the accused/appellant for about 2 months and 8 days and they went from one place to another place frequently. The conduct of the prosecutrix Suman, PW 2, goes to establish that the prosecutrix is a consenting party in the entire episode. She had full knowledge and capacity to understand fully the import of what she had been doing. 15. It has also been argued that the present case does not attract Sections 363 and 366-A of IPC as it is a clear case of elopement. He has further contended that as per the complainant Mam Chand, PW 3, the prosecutrix has been stated to be more than 16 years of age. The date of birth of the prosecutrix has been recorded as 15.2.1982 in the school certificate, Exhibit DD. The date of occurrence in the present case is 1.10.1998, therefore, as such, the age of the prosecutrix was about 16 years 8 months at the time of occurrence. He has further argued that the prosecution has failed to produce any cogent evidence, such as certificate issued by the Municipal Committee or Village Chowkidar register or certificate issued Civil Surgeon. Therefore, the date of birth entry in the school certificate cannot be relied upon as the prosecution failed to produce on record the best evidence available with them. 16. It is further argued that when the appellant examined under Section 313 Cr.P.C., the appellant admitted that he had love affair with the prosecutrix and both of them wanted to marry each other. 16. It is further argued that when the appellant examined under Section 313 Cr.P.C., the appellant admitted that he had love affair with the prosecutrix and both of them wanted to marry each other. He has also made a reference to the love letters written by the prosecutrix Suman, PW 2, to him which are on record as Exhibits DB and DC. Learned counsel has also argued that the prosecutrix has admitted in her statement that she had love affair with the accused/appellant and the accused wanted to marry with her and she had written love letters prior to the occurrence. 17. On the basis of above, learned counsel has argued that it clearly shows that the prosecutrix and the appellant had a love affair and the prosecutrix left the her house with her own free will. It is further argued that as per the statement of the prosecutrix, she was subjected to rape during the period she stayed with the appellant, however, no mark of injury was found on the person of prosecutrix as is evident from the statement of Dr.(Mrs.) Meenakshi Goel, PW 12, who medico legally examined the prosecutrix. 18. It is further contended that the prosecutrix while recording her statement under Section 164 Cr.P.C. before JMIC Pushpinder Kumar, PW 6, has no where alleged that the accused committed rape upon her forcibly against her wishes. 19. Learned counsel has also argued that there is a delay in lodging the FIR. The alleged occurrence took place on 1.10.1998, whereas the FIR was registered on 5.10.1998. The prosecution has not explained the delay. Therefore, an adverse inference should be drawn against the prosecution. 20. Lastly, it has also been argued that the incident occurred about 12 years ago. The accused/appellant is now a married person having three minor school going children and the prosecutrix has also contracted marriage and settled happily in her matrimonial home. 21. Learned counsel for the State has argued that the case as projected by the prosecution against the appellant is fully proved. He has supported the impugned judgment passed by the learned Trial Court on all counts. He has further argued that the prosecutrix was less than 18 years of age. She was taken away from the lawful custody of her parents. Therefore, offence under Sections 363 and 366-A IPC is clearly made out. 22. He has supported the impugned judgment passed by the learned Trial Court on all counts. He has further argued that the prosecutrix was less than 18 years of age. She was taken away from the lawful custody of her parents. Therefore, offence under Sections 363 and 366-A IPC is clearly made out. 22. I have heard the learned counsel for the parties and perused the record. 23. Admittedly, in the present case, the prosecutrix, Suman, PW 2, is more than 16 years of age. This fact is duly established on the basis of the statement of the complainant, Mam Chand, PW-3 and from the school leaving certificate, Exhibit DD. Though, the prosecution has failed to prove on record the best evidence as regards the date of birth of the prosecutrix. 24. The prosecutrix Suman, PW 2, accompanied the accused in the night of 1.10.1998. At that time, the age of the prosecutrix was about 16 years and 8 months. The prosecutrix had accompanied the appellant from one place varying from a remote village of Rajasthan to the holy shrine of Vaishno Devi. Fact of the lover affair is admitted by the prosecutrix in her statement before the Court. The prosecutrix as well as the appellant have travelled at public places through various modes of transportation. There is nothing on record on the basis of which it can be inferred that the prosecutrix ever raised any protest or alarm. The appellant is not stated to be carrying any weapon. Therefore, it cannot be said that the life of the prosecutrix was under threat. 25. During the trial, love letters written by the prosecutrix Suman, PW 2, were placed on record as Exhibits DB and DC. The prosecutrix had admitted having written the said letters to the appellant. The contents of the letter clearly go to establish that the prosecutrix had a love affair with the appellant. It has also come on record that the prosecutrix and the appellant proposed to marry each other. 26. Another circumstance that goes in the favour of the appellant is that no injury marks were found on the person of the prosecutrix during her medico legal examination by Dr.(Mrs.) Meenakshi Goel, PW 12. She stayed with the appellant for about 2 months and 8 days. 26. Another circumstance that goes in the favour of the appellant is that no injury marks were found on the person of the prosecutrix during her medico legal examination by Dr.(Mrs.) Meenakshi Goel, PW 12. She stayed with the appellant for about 2 months and 8 days. It has also come on record that while they were staying at village Rathi Khera in Rajasthan, the appellant had been working as farm labourer and the prosecutrix had also been performing her role as house wife to make and maintain livelihood. 27. As the age of the prosecutrix is proved to be more than 16 years, Section 375 of IPC , clause "Sixthly" state that offence of rape is committed if the prosecutrix is less than 16 years of age. Therefore, it is held that no offence of rape under Section 376 of IPC is made out against the appellant. 28. As regards the contention whether the accused/appellant can be said to have committed offence under Section 363 and 366-A of IPC, it is clearly established from the facts on record that the prosecutrix left her house to accompany the appellant without any protest. There is no allegation that the accused/appellant forcibly took away the prosecutrix. There is distinction between taking and allowing a minor to accompany a person in a case 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. In such circumstances, the accused cannot be said to have taken her away from the custody of her lawful guardian. In the present case, there is nothing on record that the accused induced the prosecution or he prompted her for formation of the intention by her to leave the house of her guardian. 29. From the analysis of the evidence on record and the circumstances of the present case, I am of the considered view that the present case is a case of elopement of the prosecutrix with the accused and not a case of taking away the prosecutrix from the lawful guardian of her father. The prosecutrix was about 16 years and 8 months of age at the time of alleged occurrence. The prosecutrix had the knowledge and capacity of having full import of what she was doing. The prosecutrix was about 16 years and 8 months of age at the time of alleged occurrence. The prosecutrix had the knowledge and capacity of having full import of what she was doing. In this fact situation, it cannot be said that the prosecutrix was taken away by the accused/appellant from the lawful guardianship of her father. Therefore, offence under Section 363 and 366-A of IPC is not proved in the instant case. 30. In view of above discussions, the present appeal is allowed. The judgment and order dated 15/16.2.2000 passed by the learned Trial Court is set aside.