Ashok Kumar alias Dogra vs State of Haryana

R.L. Anand, J. (Oral)

This Criminal Appeal has been directed against the judgment and order dated 21.9.1995 passed by the court of Sessions Judge, Kurukshetra who convicted the appellant Shri Ashok Kumar alias Dogra under Sections 366 and 376 IPC and sentenced him to undergo rigorous imprisonment for a period of three years under Section 366 of the Indian Penal Code and to pay a fine of Rs. 250/. In default of payment of fine, the appellant was directed to undergo rigorous imprisonment for one month. The appellant was further sentenced to undergo rigorous imprisonment for seven years under Section 376 IPC and to pay a fine of Rs. 500/. In default of payment of fine, he was directed to undergo rigorous imprisonment for two months. It was further ordered by the trial Court that all the substantive sentences shall run concurrently.

The brief facts of the case are that Joginder Kaur mother of the prosecutrix PW.4 made a statement Ex. PD before Babu Ram Sub Inspector on 4.6.1994 at about 7.30 p.m. at the Bus Stand Saina Saidan alleging that she is married with Dalip Singh son of Mangta Singh of village Saina Saidan and that she has two sons and a daughter out of this wedlock. She further stated that her daughter Nirmala Devi (posecutrix) is aged 15 years. On 30.5.1994, her husband was away in the fields of Sat Pal Khatri in connection with doing labour work and she left her residence at about 10.00 a.m. along with the food for serving her husband in the field of Sat Pal and at that time her daughter Nirmala Devi was all alone in the house. When she returned to the house at about 2.00 p.m. after serving food to her husband in the field of Sat Pal, her daughter Nirmala Devi was not at home. She made enquiries in the neighbourhood but the whereabouts of Nirmala Devi could not be traced. Then she went to the house of Shri Ashok Kumar alias Dogra the present appellant and came to know that he too was not present in the house. It has been further averred by the complainant that Ashwani Kumar had been visiting her house daily. She narrated the incident about missing of Nirmala to her husband. Both of them made enquiries but no clue of Nirmala could be found. It has been further averred by the complainant that Ashok Kumar appellant was also absent from the house on that day and for that reason she suspected that her daughter Nirmala had been kidnapped by Ashok Kumar. Joginder Kaur and her husband then proceeded to Police Station in order to lodge report but on the way they met Babu Ram Sub Inspector and resultantly statement Ex. PD was recorded. It was read over and explained to Joginder Kaur who thumb marked the same in token of correctness. Babu Ram made endorsement Ex. PD/1 on the statement and sent the same to the Police Station for registration of the case on the basis of which formal FIR under Sections 363 and 366 IPC was registered. The girl was finally recovered on 6.6.1994 in the company of the petitioner and offence under Section 376 IPC was added after recording her statement. The appellant was arrested. His medical examination was got conducted. Medical examination of the prosecutrix Nirmala was also got conducted by the Investigating Officer. The clothes of the prosecutrix were also taken into possession and those were sent to the office of the Chemical Examiner and sent separate report. On completion of investigation and performing other formalities, the appellant was challaned in the court of Ilaqa Magistrate under sections 363/366/376 IPC. The learned Magistrate supplied copies of the documents to the accused as required under law and vide order dated 12.12.1994 committed the accused to the court of Sessions.

Vide order dated 7.2.1995 charges were framed against the accused under sections 366 and 376 of the Indian Penal Code. Those were read over and explained to the accused to which he pleaded not guilty and claimed trial.

In order to prove the charges the prosecution examined Shri Mukesh Kumar, Draftsman (PW1) who prepared scaled site plan Ex. P.1 at the instance of Nirmala Devi and Dalip Singh. Doctor P.K. Gupta, Medical Officer appeared as PW2 and he conducted ossification tests on the person of Nirmala daughter of Dalip Singh and gave his report Ex. P.2. Finally he determined that the prosecutrix was between 171/2 to 19 years. Shamsher Singh (PW.3) only partly investigated and recorded the statement of PW.1. Joginder Kaur is mother of the prosecutrix and she appeared as PW.4. Her statement was recorded in the trial Court in the year 1995 i.e. 3.4.1995 and at that time she gave her age as 40 years. From the wedlock of Joginder Kaur and Dalip Singh three children were born as is evident from the statement of Smt. Joginder Kaur. Eldest child of this couple was the prosecutrix. She is the only daughter of her parents. Joginder Kaur gave birth to male children namely Sahib Singh and Manjit Singh whose ages were stated by Joginder Kaur at the time of giving of her statement as 10 years and 5 years respectively. I will deal with the statement of Joginder Kaur in the later part of this judgment in the light of the contention which has been raised by the learned counsel Shri Raj Mohan Singh. Nirmala alias Rani prosecutrix appeared as PW.5 and she supported the allegations of the prosecution by stating that on 31.5.1994 when she was all alone in the house, appellant came and told to her he would manage clothes, ornaments and get married with her. The appellant took her from the residential house and brought her near cremation ground close to the school. It has been categorically stated by Nirmala that appellant committed rape upon her against her will and consent. From the cremation ground she was taken to Bus Stand Saina Saidan and from there she was taken to Pehowa. From Pehowa they came to Chandigarh and from Chandigarh they went to Simla where they stayed for 4/5 days. Further it was stated by the prosecutrix that the funds became short with the appellant they started return journey and when they reached at Chandigarh her uncle Balkar Singh and maternal uncle Pritam Singh met them and as a result of which they were brought to Pehowa and were taken into custody by the police. PW.6 Head Constable Jai Raj gave his statement on affidavit Ex. PF being of formal nature. Shri Babu Ram is the Investigating Officer who recorded statement Ex. PD of Smt. Joginder Kaur and got the case registered. It has been stated by the Investigating Officer that he had been making efforts for the arrest of the appellant and he could only be arrested on 6.6.1994 along with the prosecutrix. Further it has been stated that Nirmala was got medically examined. Similarly appellant was got medically examined and he was found fit for performing sexual intercourse. The clothes worn by the prosecutrix were sent to the office of the Forensic Science Laboratory, Haryana and the report Ex. PM is on the record.

On closure of the prosecution evidence statement of the accused under section 313 Cr.P.C. was recorded and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. He denied those circumstances and stated that he was innocent.

Learned trial Court convicted and sentenced the appellant under sections 366 and 376 the Indian Penal Code as stated above and aggrieved by his conviction and sentence, the present appeal which I am disposing of with the assistance rendered by Shri Raj Mohan Singh, learned counsel appearing on behalf of the appellant and Shri Sailender Singh, learned DAG appearing on behalf of the respondent, after going through the record.

Making an endeavour for acquittal Shri Raj Mohan Singh submitted that it is not proved on record that prosecutrix was less than 16 years of age as on 31.5.1994. Inspite of his contention learned counsel submitted that the prosecution has not placed on the record the best evidence which could be available in the given circumstances. The counsel further submitted that the prosecution has not produced birth entry of Nirmala. Also there is no evidence that Nirmala ever went to school. No admission form has been placed on the record in order to corroborate the allegations of the prosecution that she was aged about 15 years at the time of alleged commission of rape. The counsel further submitted that Nirmala perhaps was a consenting party and she left the house of her own accord and in these circumstances conviction under section 366 IPC cannot be sustained.

On the contrary, Shri Sailender Singh, learned Deputy Advocate General submitted that there is categorical oral statement of Nirmala and her mother Smt. Joginder Kaur that establishes exclusively that Nirmala was young girl of less than 16 years as on 31.5.1994 and in this view of the matter consent of the prosecutrix remains immaterial. Shri Sailender Singh also drew my attention to the medical examination of Nirmala and stated that Nirmala gave her age as 15 years at the time when she was medically examined on 6.6.1994 and the first statement of Nirmala should be accepted. Also it was contended that there is statement of Smt. Joginder Kaur who is the best witness who can depose about the age of her daughter. Smt. Joginder Kaur stated that her daughter was aged about 15 years as on 31.5.1994.

After considering rival contentions of the parties I have come to the conclusion that Nirmala was definitely more than 16 years of age as on 31.5.1994 and that she was a consenting party to the alleged rape but she was less 18 years so as to hold the appellant guilty for an offence under section 366 IPC.

In this case the best evidence which could be furnished by the prosecution was birth entry. It has not been collected by the Investigating Officer. The school certificate if any has also been collected by the Investigating Officer. Even the Doctor who medically examined Nirmala was not sure about the age of the girl and that is why the girl was referred for the ossification test which is Ex. P.2 on the record. A reading of the ossification test would show that though the Doctor has finally stated that the prosecutrix was between 171/2 to 19 years but this court is not inclined to give too much weight to the report of the Radiologist keeping in view the fact that but for one test i.e. regarding crest of iliac as the opinion of the expert with regard to other ossification test ranged from 14 to 18 years. The test that was of lateral epicondyle establishes that the age of Nirmala was 14 to 15 years. Two more tests indicate that her age was between 141/2 to 15 years. Four more tests indicated that the age of the prosecutrix can be inferred between 16 to 171/2 years. Now it is to be seen what is the direct evidence in this regard. In the FIR the age of the prosecutrix has been stated as 15 years in the year 1994 i.e. on 6.6.1994. Nirmala appeared on 30.8.1995 and at that stage she gave her age as 15 years which is possibly not correct. Joginder Kaur has not given statement with regard to age of her daughter. She has fumbled in examinationinchief because at the first instance she stated the age of Sahib Singh as 20 years and further stated that Sahib Singh is her eldest child but later on she rectified her by stating that age of Nirmala is 15 years and that of Sahib Singh is of 10 years while that of Manjit Singh is 5 years. In the crossexamination she stated that she was aged about 15 years when she was married with Dalip Singh and Nirmala was born after one year of the marriage. Learned counsel for the appellant wanted to make capital from the crossexamination of Joginder Kaur and submitted that if testimony of Joginder Kaur is taken on its face value, age of Nirmala can be inferred more than 19 years. I am not inclined to accept this contention of Shri Raj Mohan Singh on this score. A stray line coming in the cross examination of Joginder Kaur cannot be given undue weight in favour of the appellant because Joginder Kaur has further admitted in the crossexamination that she is illiterate lady. We are dealing with the case of a rustic lady who has no exact idea of about her age. Definitely village women have very acute sense with regard to ages of their children. Nirmala when appeared for the first time before the Doctor gave her age as 15 years. Even Joginder Kaur gave Nirmala''s age as 15 years but keeping in view the fact that some allowance has to be given to the appellant in view of the report of the Radiologist and especially keeping in view the fact that the best evidence has not been produced by the prosecution, I am inclined to hold that Nirmala was more than 16 years of age as on 31.5.1994 but definitely she was less than 18 years, after taking into consideration the report of the ossification Expert. With regard to evidence of rape, I am of the considered opinion that when Nirmala gave herself to the present appellant, she was a consenting party. When Nirmala was examined by the Doctor on 6.6.1994, there was no injury on her person. It is the case of the prosecution that Nirmala was taken from her village upto Simla. Firstly she was taken to Pehowa and from Pehowa to Chandigarh and from Chandigarh to Simla. She has not raised any hue and cry in the way. In these circumstances a reasonable inference can be drawn that Nirmala perhaps had the soft corner for the appellant and for that reason she may have surrendered herself. The trial Court has not rightly appreciated this aspect of the case while convicting the appellant under section 376 IPC. So far as conviction of the appellant under section 366 IPC is concerned, there is considerable evidence on the record that the appellant enticed Nirmala when she was in the lawful custody of her parents without their consent in order to perform sexual intercourse. Irrespective of the fact that Nirmala accompanied the appellant upto Simla, it does not give licence to the appellant to entice a young girl on the pretext that he would marry her. Medical examination clearly indicates that upon Nirmala sexual intercourse had been performed. The appellant was arrested when he was found in the company of Nirmala. This is again an additional circumstance which suggests that Nirmala must have surrendered herself for sexual intercourse. Any intercourse by the appellant with Nirmala is unlawful. In these circumstances I am inclined to maintain the conviction of the appellant under section 366 IPC.

Resultantly, this appeal is partly allowed. Conviction and sentence of the appellant under Section 376 IPC is set aside and he stands convicted under section 366 IPC. His conviction and sentence under section 366 IPC imposed by the trial court is maintained. The appeal stands disposed of.