Anil Kumar vs State of Haryana

R.L. Anand, J. (Oral)

This is a criminal appeal and has been directed against the judgment and order dated 7/8.7.1997 passed by the Court of Additional Sessions Judge, Kurukshetra, who convinced the appellant Anil Kumar under Sections 363, 366, 376 and 506 IPC and sentenced him to undergo RI for 3 years under Section 363 IPC, to undergo RI for 5 years under Section 366 IPC, to undergo RI for 7 years u/s 376 IPC and to pay a fine of Rs. 5,000/; in default of payment of fine to further undergo RI for a period of 2 years under Section 376 IPC and to undergo RI for 2 years under Section 506 IPC. The trial Court further held that all the sentences shall run concurrently and out of the fine, if realised from the appellant, Rs. 4,000/ shall be paid to the father of the prosecutrix by way of compensation.

The brief facts of the prosecution as derived form the statement of Gaytri Devi PW10 and other prosecution witnesses can be described as follows :

Prosecutrix Gayatri Devi was a young girl of 16/17 years and had been residing with her parents at Chanarthal Colony, Kurukshetra. On 7.5.1996, the marriage of the daughter of one Mohinder Pal, a neighbourer of PW8 Raj Bahadur, father of the prosecutrix was fixed and PW Raj Bahadur along with his entire family members had gone to the house of Mohinder Pal to attend the said marriage. Gayatri Devi also went there along with her parents. The marriage party arrived at 10.30 a.m. and Raj Bahadur and his family members, including the prosecutrix took tea in the house of Mohinder Pal. However, at lunch time the prosecutrix was not available in the house of Mohinder Pal, though other family members of PW Raj Bahadur were present there. Since the prosecutrix was not available, PW Raj Bahadur and his entire family members searched for her till 9.5.1996. According to the prosecution Anil Kumar had been residing as a tenant in the neighbourhood of PW Raj Bahadur in the house of one Kalu Ram and he was also missing from the said house since 7.5.1996. Since the accused was not available in the tenanted premises, PW Raj Bahadur suspected him and he ultimately lodged a report Ex.PJ with the police on 9.5.1996 and resultantly the present case was registered at his instance under Sections 363 and 366 IPC in Police Station City Thanesar.

The Investigation of this case was taken up by SI Ranbir Singh, incharge of Police Post IIIrd Gate, Kurukshetra. On 10.5.1996 SI Ranbir Singh was present in the market of the University when he received a secret information that the appellant along with the prosecutrix is in the kothi of Shri K.K. Vasishth, situated in Karan Colony, Kurukshetra. Accordingly SI Ranbir Singh joined PW Raj Bahadur and Mani Ram and proceeded for Karan Colony, Kurkeshetra. When they reached in front of the Kothi of Shri K.K. Vasishth, the prosecutrix was found standing near the gate of the said kothi and she was secured. However, the appellant was not present there at that time. SI Ranbir Singh prepared a rough site plan of the place of recovery and he also recorded the statements of the prosecutrix and other witnesses. The prosecutrix in her statement has alleged that on 7.5.1996 at about 1.00 p.m. or 1.30 p.m. she was returning to her house after taking keys of her house from her mother and when she was passing in front of the house of Kalu Ram, the appellant was standing there as he was a tenant in the said house. The appellant caught hold of her arm and told her that he would provide her good clothes, ornaments and would take her to many beautiful places for visit. The appellant also expressed that he loved her and wanted to marry with her. The prosecutrix refused to accompany the appellant but the appellant took out a knife from his pocket and threatened her to kill. The prosecutrix became frightened and she accompanied the appellant. Later on the appellant took the prosecutrix in a vacant house situated in Karan Colony, Kurukshetra and he used to commit rape upon her in the said house. It is also alleged by the prosecutrix that she was confined in the said house for three days and during these days the appellant used to commit sexual intercourse with her without her consent and will daily. On 10.5.1996 the appellant has gone to bring some eatables and while going from the said house he forgot to bolt the door from outside though usually he used to bolt the door from outside earlier. Thus taking the benefit of this situation the prosecutrix came out of the room on 10.5.1996 and she started for her house when she was recovered by the police in the company of har father.

SI Ranbir Singh then took the prosecutrix to L.N.J.P. Hospital, Kurukshetra on the same day i.e. 10.5.1996 for medico legal examination. The Investigating Officer moved an application Ex.PK/1 before the doctor, who medically examined the prosecutrix on 10.5.1996 at 7.30 p.m. The doctor found that there was no mark of injury on labia minora and labia minora, which were healthy and developed and the hymen had healed tears. She also found that the vagina admitted two fingers. The lady doctor took two swabs and also an underwear Ex.P1, and Salwar Ex.P2 of the prosecutrix and these were separately sealed for chemical analysis. However, the Medical Officer opined that the prosecutrix was subjected to sexual intercourse. She issued M.L.R. Ex.PK of the prosecutrix.

On 11.5.1996 the prosecutrix was produced in the Court of learned Chief Judicial Magistrate, Kurukshetra by the Investigating Officer, who submitted application Ex.PH for recording her statement under Section 164 Cr.P.C. The prosecutrix was also got radiologically examined for the determination of her age and vide his report Ex.PA the Radiologist found the age of the prosecutrix between 16 to 18 years. The appellant was also arrested on 11.5.1996 when he was produced by his father. He was got medically examined vide application Ex.PB and Dr. D.S. Saini PW2 found the appellant capable of committing sexual intercourse. The clothes of the appellant were also taken into possession for analysis.

After completing the other formalities of the case, the appellant was challaned under Section 363, 366, 376 and 506 I.P.C. in the Court of Illaqa Magistrate, who vide order dated 14.8.1996 committed the appellant to the Court of Session to face the trial. Vide order dated 3.9.1996 the appellant was chargesheeted of the above offences. The charges were read over and explained to the appellant, to which he pleaded not guilty and claimed trial.

In order to prove the charges, the prosecution examined as many as 11 witnesses including that of the prosecutrix and the doctors.

Statement of the appellant was recorded under Section 313 Cr.P.C. and the defence of the appellant was as follows :

"I am innocent and have been falsely implicated in the case. In fact the prosecutrix was in love with me and used to send me love letters through one Kamlesh, her neighbourer and used to threaten me if I will not marry her she would commit suicide. On the alleged date, I had gone to my parents home in Himachal Pradesh and the prosecutrix reached there of her own and pressed upon me to get marry with her. However, my father asked her that if her parents will agree then your marriage will be performed. On this pretext she was brought to her parents home by my father and when talk of marriage could not mature this case was registered against me. Now due to fear of her parents and anguish of not getting married with me, Prosecutrix and the other witnesses have deposed falsely against me."

In defence the appellant examined Shri K.K. Vasishth as DW1 and closed the case.

The learned trial Court framed the following points for determination for the disposal of the case :

(1) Delay in lodging the report with the police.

(2) Absence of semen stains on the clothes and vaginal swabs and also injuries on the private part of the prosecutrix and also absence of injuries on the penis of the accused.

(3) Uncorroborated testimony of the prosecutrix.

(4) Plausibility of the defence version.

(5) Discrepancies in the statements of the prosecution witnesses and the credibility of the prosecution evidence in that light. Further, age of the prosecutrix and the offences established, if any.

The trial Court in its finding came to the conclusion that the prosecutrix was in between 17 to 18 years and she was not a consenting party. She was kidnapped and sexually harassed by the appellant in Karan Colony, Kurukshetra in the house of Shri K.K. Vasishth. It was also observed by the trial Court that there was a threat on the part of the appellant to the prosecutrix and that the appellant committed rape upon her. The trial Court convicted and sentenced the appellant in the manner stated above. Aggrieved by his conviction and sentence the present appeal, which I am disposing of with the assistance rendered by Shri Pritam Saini, leaned Deputy Advocate General, who appeared on behalf of the State. I have also gone through the records of this case.

The first point for determination would be what was the age of the prosecutrix on the date of occurrence because this is relevant for me to determine the offence under Section 376 I.P.C. There are three types of evidence which have been led by the prosecution on the record : First, the medical examination of the prosecutrix. Gayatri Devi was examined by the lady doctor on 10.5.1996 and she gave her age as 17 years as is evident from the M.L.R. Ex.PK. This lady was radiologically examined by Dr. P.K. Gupta PW1, who after conducting the xray examination of the relevant parts of the body of the prosecutrix came to the conclusion that the radiological age of the prosecutrix was 16 to 18 years. The third evidence which is being relied upon by the prosecution is the statement of Smt. Ishwar Devi PW3. According to this witness and as per the record of the school, the date of birth of Gayatri is 29.4.1979. If all the three pieces of evidence are taken on the face value, it will be abundantly clear that the prosecutrix was more than 16 years of age as on 7.5.1996 upto the date of her recovery.

Now the second point for determination is whether the prosecutrix was a consenting party with the appellant or not. The story of the prosecution goes that the prosecutrix was returning to her house and on the way the appellant met her and showed her a knife. Prosecution further says that the appellant allured the prosecutrix to accompany him and that the prosecutrix refused to do so, upon which a threat was given by the appellant by showing a knife. This story of the prosecution looks to be probable. The safe and reasonable answer of this Court is in the negative. The prosecutrix was a matured girl of 17 years. She was passing through a habituated locality. Firstly, the appellant would be the last person who dared to catch hold the prosecutrix by her arm. Assuming for the sake of argument that the appellant did so, what should be the normal reaction of a normal girl in these circumstances. In modern time a young girl knows what is good and what is bad for her. Even a rustic lady knows what is the cost of the virginity. In these circumstances the first and normal action of every girl would be to resist any foul act on the part of a person. The prosecutrix has not done so. She has not raised any alarm in order to attract any person from the locality so as to desist the appellant. There is no injury upon the person of the prosecutrix indicating that the appellant ever tried to make use of the knife. Knife has also not been recovered from the possession of the appellant. In these circumstances, I am not inclined to accept the version of the prosecution to the extent that the appellant threatened the prosecutrix or that he gave a threat that she should accompany him. It appears and looks to be more probable that the prosecutrix was a consenting party when she joined the society of the appellant and left the house.

Now it is to be seen whether the prosecutrix was subjected to rape or not or that she was a consenting party to the intercourse. In this regard I again revert to the statement of lady doctor Mrs. Anupama Singh PW9. According to this witness, labia majora and labia minora were healthy and developed. This doctor did not notice any injury on the private parts of the prosecutrix. According to the doctor, hymen had healed tears at 3, 9, 11 O''clock position and vagina admitted two fingers. It is the story of the prosecution that prosecutrix was detained in the house of one Shri Vashisth in Karan Colony, at Kurukshetra. For full three days the prosecutrix remains in the company of the appellant and she does not raise a cry that the appellant was committing rape upon her. There was no bodily injury on her other vital parts of the body indicating that the appellant committed rape or he used violence qua the prosecutrix. Also no injury was found in the shape of scratches on the face and other parts of the body of the appellant. All these things suggest that the prosecutrix and the appellant were consenting parties and they have been cohabitating with each other. The prosecutrix was more than 16 years of age and in these circumstances the charge under Section 376 IPC against the appellant along with Section 506 IPC cannot be sustained.

The learned counsel appearing on behalf of the appellant then submitted that even the offences under Sections 363 and 366 IPC are also not made out as it is established that prosecutrix was more than 18 years of age and keeping in view the evidence of the radiologist, the benefit should go to the appellant regarding the age of the prosecutrix. I am not in a position to accept the contention of Shri Saini though he made good efforts to convince this Court for setting aside the conviction under Sections 363 and 366 IPC. It appears that the prosecutrix has gone to the school. Her date of birth as per school entry is 29.4.1979. In these circumstances, on 7.5.1996 she was less than 18 years of age. The prosecutrix when firstly appeared before the doctor she gave her age as 17 years. The radiologist even has given his opinion between 16 to 18 years. He has not stated categorically in favour of the appellant that prosecutrix was more than 18 years as contended by the learned counsel for the appellant. The medical evidence indicates that prosecutrix was subjected to sexual intercourse. She remained in the company of the appellant for three days and a reasonable inference can be drawn that when a young girl and a young person remain in seclusion for three days under one roof, they must be cohabiting with each other. The medical evidence further suggests that the prosecutrix was subjected to sexual intercourse. Her vagina admitted two fingers. There were old tears on labia majora and labia minora. Even the direct testimony of the prosecutrix is to the extent that she was subjected to intercourse by the appellant during the nights when she was allegedly confined inside the room of the house of Shri Vasishth. Even the father of the prosecutrix has given the age of his daughter between 16 to 17 years. In this view of the matter, I am inclined to maintain the conviction of the appellant under Sections 363 and 366 IPC by holding that the prosecutrix was kidnapped/abducted by the appellant for sexual purposes when she was in the lawful custody and guardianship of her parents.

The learned counsel for the appellant then submitted that the prosecutrix in fact was in affairs with the appellant and she had even been writing letters to the appellant compelling him to marry with her, failing which she would commit suicide. Reliance has been placed on a photograph and also on some of the letters. The photograph and signatures on one of the letters Ex. D5 have also been admitted by he prosecutrix suggesting that there was some soft corner on the part of the prosecutrix for the appellant. But in this case it has been held that the prosecutrix was less than 18 years and for that reason the appellant has been convicted under Sections 363 and 366 IPC.

The counsel submitted that in the matter of sentence the present appellant may be visited with leniency keeping in view the conduct of the prosecutrix. The totality of circumstances would meet the demand of justice if the substantive sentence of the appellant under Section 366 IPC is reduced from five years to four years and I order accordingly. The sentence of the appellant under Section 363 IPC, however, is maintained. Both the sentences shall run concurrently.

The net result is that this appeal is allowed in part. The conviction and sentence of the appellant under Sections 376 and 506 IPC are hereby set aside. His conviction and sentence under Sections 363 and 366 IPC are hereby maintained with modification of sentence with regard to the offence under Section 366 IPC.

Let the intimation about the decision of this appeal be sent to the jail authorities so that the appellant may be informed about the disposal of this appeal.