Angoor vs State of Haryana

K.S. Kumaran, J.

Angoor and 16 others have preferred this appeal. They along with three other accused faced trial in Sessions Case No. 38 of 9.5.1991 before the learned Additional Sessions Judge, Gurgaon. While charges under Sections 323, 363 and 366A were framed against all the accused, a charge under Section 376 IPC was also framed against Lal Chand, Ruj Mal and Rajak (appellants 4, 7 and 9 herein). The learned Additional Sessions Judge convicted all the accused other than accused 15, 16 and 20 before him under Sections 363 and 366A I.P.C. but acquitted them under Section 323 I.P.C. He also held Lal Chand, Ruj Mal and Rajak guilty under Section 376 I.P.C. 15th accusedAnwar and 20th accusedSharif were not found guilty of any of the offences and were acquitted. 16th accusedHeera died during the course of the trial.

The learned Additional Sessions Judge sentenced all the accused other than the acquitted accused and the deceasedaccused under Section 363 I.P.C. to undergo rigorous imprisonment for 5 years, to pay a fine of Rs. 200/ each and in default, to undergo further imprisonment for 2 months. He also sentenced them under Section 366A I.P.C. to undergo rigorous imprisonment for 7 years, to pay a fine of Rs. 300/ each and in default, to undergo further imprisonment for 3 months.

The learned Additional Sessions Judge sentenced Lal Chand, Ruj Mal and Rajak (appellants 4, 7 and 9) under Section 376 I.P.C. to undergo imprisonment for 10 years, to pay a fine of Rs. 500/ each and in default, to undergo further imprisonment for 4 months. Aggrieved by the same, these 17 accused who have been convicted and sentenced, have preferred this appeal.

The case of the prosecution as seen from the F.I.R. registered on the basis of the statement of Kallu son of Mangal, a resident of Village Raipuri, is as follows :

Complainant''s elder sisterRup Kala was married with Lal Chand (4th appellant, a resident of village Chandaka) in the year 1980, but Rup Kala died in 1981 after which the villagers of Chandaka have been pressing the complainant''s family to give Om Wati, the younger sister of the complainant, in marriage to appellantLal Chand to which complainant''s family was not agreeable.

In the previous year, the villagers of Chandaka had forcibly taken away Om Wati, but on the next day, complainant''s family brought her back through panchayat. But on the date of occurrence at 11.30 a.m., Om Wati, her mother Gulkandi and her auntSugra were washing the clothes in the canal near village Raipuri. A Tempo vehicle reached in which 1012 persons namely Lal Chand, Pussi, Jhagira, Angoor, Chhutan, Rajak. Ismial and Chaudhary came and took Om Wati forcibly. When Gulkandi and Sugra tried to rescue Om Wati, they had beaten them and had taken Om Wati in their tempo vehicle. Gulkandi and Sugra rained alarm on hearing which complainantKallu, his father, his uncleChhote Lal and other villagers reached the spot and came to know about what had happened. Om Wati had been taken forcibly by Lal Chand and others in consultation with Kallu, the Sarpanch of village, Umri, Fakkar, Rai Khan and Isab.

Prosecution to make out its case against the accused, examined Om Wati (PW1), the prosecutrix and Kallu (PW8), the complainant, Dr. Rajni Prashar (PW6) who had examined the prosecutrix on 17.9.1990 apart from examining the police officials regarding the recording of the statement and investigation. The prosecution tendered into evidence Ex.PX the Birth Certificate of Om Wati issued by Civil Surgeon, Haryana/District Health Officer.

In their statements under Section 313 Cr.P.C. the accused pleaded innocence and examined 3 witnesses. DW1Parkash is a Photographer who had taken photographs at the time of the alleged marriage between 4th accusedLal Chand and the prosecutrixOm Wati. DW2Ram Chand is the Pandit who had officiated as a Priest during that marriage. DW3Ram Singh was the D.S.P., Nuh before whom the prosecutrix allegedly gave the statement marked as Ex.DA.

I have heard the counsel for both the sides and perused the records.

As pointed out already, according to the prosecution, while Om Wati along with her motherGulkandi and her auntSugra was washing the clothes in the canal near village Raipuri, on 18.5.1990 at about 11.30 a.m. the 4thappellantLal Chand and others came there in a tempo, kidnapped Om Wati forcibly, and in this process also assaulted Gulkandi and Sugra, who tried to rescue Om Wati. PW8Kallu on whose complaint the F.I.R. in question was registered was not present at that time. He admitted in his evidence that he did not see the accused kidnapping his sisterOm Wati and that he was told by the villagers that 2025 persons kidnapped his sister. PW8Kallu also admitted that after Om Wati was released by virtue of the order of the Hon''ble Supreme Court, she told him about the number and names of the persons who were responsible for kidnapping her. He also admitted that in his application which he had written inside the police station, he had stated that about 910 persons kidnapped his sister. But we find in the F.I.R. which was registered on the same date of occurrence the names of the fourthappellantLal Chand and certain other accused. The question is as to how he happened to mention the names of these accused in the F.I.R. lodged on the same day. Because the accused belong to a different village known as Chandaka, whereas PW8 and his family members belong to village known as Raipuri. Of course, they could have known the fourth appellantLal Chand because, Lal Chand had married Roop Kala, the other sister of PW8 Kallu, but PW8Kallu could not have given the name of other accused since according to him he was not present at the time of the alleged occurrence. He did not say in his evidence that his mother or his aunt told the names of the other accused. As pointed out already, only his sister Om Wati informed the names and number of accused after her release by virtue of the order of the Supreme Court, which took place several days after the occurrence. Therefore, this is one of the suspicious circumstances, which compels the Court to examine the case of the prosecution with a lot of caution.

According to the prosecution, Gulkandi (the mother of the prosecutrixOm Wati and PW8Kallu) was injured in this occurrence. A specific charge was framed under Section 323 I.P.C. on the ground that the accused had caused simple injuries to Gulkandi. But the said Gulkandi who was present at the time of the alleged occurrence and had also received injuries at the hands of the accused had been kept away from the witness box and no valid explanation has been given for her nonexamination. The learned Sessions Judge has also acquitted the accused of the charge under Section 323 I.P.C. against which there is also no appeal. The other eyewitness namely Sugra, the aunt of the prosecutrix was also not examined for which also there is no valid explanation.

Therefore, we are left with the evidence of prosecutrixOm Wati alone, apart from other circumstances to find out whether the case of the prosecution is true.

Om Wati (PW1) stated in her evidence that she was taken by the accused to the Pahar of the village Tigaon and there she was raped by 4th appellantLal Chand, the 7thappellantRujmal and the 9thappellantRazak. According to her, the accused kept her at that pahar for one week and during the course of the said week, these three appellants, repeatedly had sexual intercourse with her. But in crossexamination, she stated that in the said pahar she was kept in the open and not in a hut or a house. According to her, there was no cot or bedding etc. She stated that there was bleeding from her private parts and had some abrasions on her body, but, she also stated that she did not scratch their faces with her nails. This aspect of the evidence of PW1Om Wati is unbelievable. It is imporabable that these appellants No. 4, 7 and 9 would have kept her in an open place and raped her. It is evident that she had not offered any resistance though she claims that she was raped by them. Because the doctor (PW6) who examined her did not see any mark or injury on her body especially in around the genitalia. Of course the examination was nearly four months after the day of the alleged kidnapping and it would be too much to expect any fresh injury at that time, but, there would certainly have been marks of injury that should have been caused to her had she offered resistance when she was being raped by three persons against her will and consent. Further, it is not as if she was raped in this pahar alone for a week. According to her from the pahar she was then taken to the house of one Heera, where she was kept for about 20/25 days and where Lal Chand, the fourth appellant had forcibly subjected her to sexual intercourse repeatedly. According to PW1Om Wati, then she was taken to a house in village Saraswas, where again she was kept for a week and then taken to the house of Lal Chand. According to PW1, the 4th appellant had intercourse with her daily when she was in the house of Lal Chand for 3 months. Therefore, we find that she was, according to PW1, taken from place to place and subjected to sexual assault. So, even if there could have been no fresh injury on the date when she was examined by the doctor, there would have been certainly marks of injury on her body or in or around her private parts, whereas no such injury was found on her by the doctor.

This apart, there are certain other improbabilities which also go against the prosecution. As pointed out already, she was kept in the pahar in an open place. There is no explanation as to why she did not escape from such an open place. PW1 went to the extent of stating that she did not eat and ease herself during this period of one week, which again is wholly importable. PW1Om Wati has gone to the extent of stating that she did not even ease herself because the question will arise as to why she did not make an attempt to escape either at the time of easing herself or under the pretext of going for easing herself. Even if she had been kept under vigilance by the accused during the other times she would have been free atleast at the time of easing herself and she could have escaped at that time. That was why she had stated that she did not even ease herself for a week.

Further, from the pahar she was taken to the house of Heera, where she was kept for 2025 days. She did not say how she was taken to the house of Heera. She must have been taken only along a road and not through deserted place. The question is, that even if she was unable to escape, why she did not raise hue and cry while she was being taken to the house of Heera. She could have raised hue and cry even during 2025 days when she was at the house of Heera. Except stating that while she was kept in the pahar accused used to threaten her that she would be shot dead if she runs away, and that accused Kallu had a gun with him, she had not given any acceptable reason which prevented her from even raising hue and cry while she was being taken from one place to another and while she was kept in the house of Heera or in the house of an unknown person at village Saraswas, there she was also allegedly kept for a week.

Further, according to PW1Om Wati, four months after the kidnapping, Kallu, the Sarpanch of their village, and Moti of another village went to Chandaka, the village of 4th appellantLal Chand, and brought her under the pretext of getting her medically examined. This is also a factor which goes to show that the case of the prosecution cannot be true. Because, PW8Kallu stated in his evidence that even before this occurrence, the 4th appellantLal Chand and others had forcibly taken away his sisterOm Wati and that a panchayat was convened by which Om Wati was brought back to their village. Therefore, according to him, even previously, the 4th appellantLal Chand had taken Om Wati to his house. That being so, he would have certainly taken steps to find out the whereabouts of Lal Chand and brought Om Wati back immediately, but that was not done. It may be that PW1 stated in her evidence that she was first kept in the pahar of Village Tigaon, then taken to the house of Heera, thereafter to the house of a person at village Saraswas and finally to the house of Lal Chand. In my view this has been invented only to explain as to why the family members of the prosecutrix did not immediately go to the house of Lal Chand and rescue her without having waited for four months to bring her back. Naturally, if she was not in the house of Lal Chand and had been kept at different places other than his house, it would not have been possible for them to rescue her immediately. But obviously it is false is clear from certain aspects. The defence examined Parkash Singh (DW1), who stated that on 1.6.1990, he had gone to village Chandaka, on the request of appellantLal Chand and Kallu and took the photographs Exhibits D1 to D8 regarding the marriage of Lal Chand and Om Wati. He stated that `Kanyadan'' was done by her brotherKallu as shown in the photographs. Except suggesting that he was deposing falsely and that the marriage had taken place under force, no answer was elicited from him to indicate that what he stated is false. I will refer to the aspect of the marriage later but, at this stage, I will only point out that this aspect of evidence of DW1 coupled with the evidence of PW8Kallu, would show that the evidence of PW1 that she was kept in the pahar for a week, then at the house of Heera for 20/25 days, then for a period of one week in the house of a person at Saraswas, and thereafter brought to the house of Lal Chand is not true. Because the alleged kidnapping was on 18.5.1990, while the evidence of DW1 shows that the marriage was performed on 1.6.1990 itself at Village Chandaka, the village of the 4th appellant, and that he had taken the photographs during the marriage. The evidence of even PW8 shows that he was present at the time of this marriage. Therefore, on 1.6.1990 itself, it was known that Om Wati was with Lal Chand in village Chandaka and had even married him. If that be so, and if really the marriage was performed by use of force, nothing prevented PW8 and others from taking the police to the house of Lal Chand and bringing Om Wati Back. But, that was not done. She was brought only in September, 1990. The delay had to be explained, and therefore, it is that PW1 stated that she was taken from place to place and kept away from the house of the 4th appellantLal Chand, which is obviously false. This is also a circumstance which goes to show that the case as put forward by the prosecution cannot be true.

I will deal next with case of the defence that Om Wati was married with 4th appellantLal Chand. I have already referred to the evidence of DW1 Parkash Singh, the photographer. The accusedapplicant also examined Ram Chand as DW2, who stated that he officiated as a priest at the time of pheras ceremony of Lal Chand and Om Wati. According to him, the ceremony had taken place at village Chandaka out of free will of Om Wati and Lal Chand, that Kanyadan was done by Kallu PW8 and that the photographs Ex.D1 to Ex.D8 were taken in his presence. Except the suggestion that he was deposing falsely, there is nothing to discredit his evidence.

PW8 the complainant himself admitted in his evidence that in these photographs Exhibit D1 to D8, himself, his sister and accusedLal Chand and others are shown, and that they relate to the marriage of his sister though he stated that these photographs were taken by force. I have already pointed out the evidence of DW1 and DW2 in this regard which goes to show that the marriage of Om Wati and Lal Chand was performed on 1.6.1990, and that these photographs Exhibits D1 to PW8 were taken at that time. Therefore, the mere denial of PW8 that his sisterOm Wati was married to Lal Chand in village Chandaka would not suffice to give a finding against the marriage. If there was no marriage, the question is as to how and why PW8 happened to be there at that time. His explanation was that he had gone to village Chandaka in search of his sister. Though he stated that there was no marriage, he also stated that the villagers caught hold of him, sprinkled kerosene oil and him and threatened that he should sit with his sisterOm Wati failing which he would be burnt alive. A look at the photographs shows that this aspect of the evidence of P W8 has to be rejected. If really the marriage was performed under threat or coercion, then nothing prevented him from giving a complaint regarding this marriage after coming back to his village, but he had not given any such complaint, though he claims that he had verbally told all this to the police. It is unbelievable in such circumstances PW8Kallu would have kept quiet without giving a written complaint to the police. In these circumstances, I am of the view that Om Wati and fourth appellantLal Chand had voluntarily married, and they had done so at least in the presence of PW8 Kallu.

Another important factor is that PW1Om Wati admitted in her evidence that Tej Pal, the son of her maternal uncle, had sent a money order for Rs. 50/ to her in the village of the accused. If really she had been kidnapped, Tej Pal son of her maternal uncle would not have sent any such money order. The strange explanation given by PW1Om Wati was that this money order was sent by Tej Pal to verify whether she was alive or dead. From what I have pointed out above, it is clear that Om Wati had married the 4th appellantLal Chand at village Chandaka with consent and that the attempt made by PW1 and PW8 at the time of their evidence to make it appear that the marriage was performed under coercion is not true.

If we take into consideration all these aspects, then it will be clear that Om Wati was not taken forcibly and was not kidnapped on the date of the occurrence as alleged by the prosecution. It is clear that she had not only willingly married 4th appellantLal Chand on 1.6.1990, but had also lived with him till she was brought back and produced before the Hon''ble Supreme Court.

I will next consider whether the case of the prosecution that Om Wati was raped by 4th appellantLal Chand, 7th appellantRujmal and 9th appellant Rajak, is true ?

Even according to the prosecution, since the sister of Om Wati, who was married to Lal Chand had died, Lal Chand wanted to marry Om Wati, but the parents of Om Wati were not willing. But, it is evident that Lal Chand and Om Wati had married. In such circumstances, it is improbable that Lal Chand would have permitted others to rape her. The circumstances pointed out above also show that it is wholly improbable that Om Wati was raped by either Lal Chand or the other two accused appellants as claimed by the prosecution. I have already pointed out there was no mark of any violence on any part of the body of Om Wati. I have also pointed out that though there was time and opportunity for Om Wati to escape from the alleged clutches of the accused, she had not done so nor had she raised any hue and cry while she was being transported from one place to the other. From what all I have pointed out, it is evident that she must have gone with Lal Chand willingly, married him and lived with him. Therefore, there can be no question of Lal Chand having committed sexual intercourse with her against her wish or raped her. It is also improbable that Lal Chand who is her husband would have allowed the other accused to rape her. Therefore, in my view the case of the prosecution that she was raped by three of accused viz. Rujmal, Rajak and Lal Chand cannot also be accepted. Even according to the prosecution, she was more than 16 years of age at the time of the alleged rape. Therefore, these accused cannot be held guilty of committing rape.

The next question is whether these accusedappellants are guilty of kidnapping Om Wati. According to the prosecution, the prosecutrix Om Wati was born on 26.6.1973 and, therefore, on the date of occurrence namely on 18.5.1990, she was only about 16 years and 11 months old and, therefore, the accused/appellants are guilty under Sections 363 and 366A of the Indian Penal Code. The prosecution has also tendered into evidence Ex.PX, the certificate issued by Civil Surgeon/District Health Officer, Gurgaon, to show her date of birth as 26.6.1973. This document Ex.PX was tendered by the Additional Public Prosecutor into evidence on 14.12.1994 after the evidence on the side of the prosecution was over. This document was not put to any of the witnesses for the prosecution and the accused had no opportunity to crossexamine any of the witnesses on this document. Of course, this was put to the accused while questioning them under Section 313 Cr.P.C. but they stated that it is incorrect. The accused also examined Ram Singh, the then Deputy Superintendent of Police, Nuh, as DW3, who stated that he had visited village Chandaka, and had recorded the statement of Om Wati which was marked as Ex.DA. In this statement Ex.DA, she had stated that her age is 19 and that she had already given an affidavit to that effect. It was not suggested to DW3 that the statement Ex.DA was taken forcibly or by exercise of fraud or misrepresentation. This apart, the contention of the defence is that Om Wati had also given an affidavit marked as Ex.DC, wherein she has stated that she was 19/20 years old and that she was got married with Lal Chand by her parents and brother. When this affidavit Ex.DC was put to her, she denied that she ever made such an affidavit, but, she attempted to explain it by stating that police had obtained her signature/thumb impression on the affidavit Ex.DC. But the conduct of PW1Om Wati as also the other members of the family especially PW8, goes to show that this explanation given by Om Wati cannot be accepted. I have already pointed out that she must have willingly gone with Lal Chand and married him. She has stated in her affidavit that she is 19/20 years old. In these circumstances, the mere production of a copy of the entry in the birth register that too after the evidence of the prosecution was over without giving an opportunity to the accused to question any witness with regard to the same, will not be of any help to the prosecution.

The learned counsel for the appellants also relied upon a decision of this Court in Gulab Singh v. The State of Haryana, 1983(2) RCR 432 , in support of their contention, wherein it is held that school certificate is not a conclusive proof of age.

The prosecutrix was not subjected to an ossification test to determine her age. In these circumstances, I am of the view that there is no satisfactory evidence to show that she was below 18 years of age at the time of the alleged occurrence. Therefore, the accused cannot be held guilty under either Section 363 or Section 366A IPC. The accused cannot be held to be guilty under Section 376 of the Indian Penal Code also. Taking into consideration all these aspects, I am of the view that the prosecution has not been able to prove the guilt of the accused/appellants beyond all reasonable doubt. Therefore, the appellants have to be acquitted giving them benefit of doubt.

Accordingly, the appeal is allowed setting aside the conviction of and the sentence passed against the accusedappellants. The accusedappellants are acquitted and are ordered to be released.

Fine, if paid, will be refunded to them.