Balwan Singh vs The State of Haryana

H.S. Bhalla, J.—Appellant-accused Balwan has challenged the judgment of conviction dated 10.5.1999 and order of sentence dated 12.5.1999 passed by the learned Additional Sessions Judge. Bhiwani by virtue of which he was convicted under Sections 363 and 376 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 400/- in default of payment of fine to further undergo rigourous imprisonment for two years and to pay a fine of Rs. 100/-, in default of payment of fine to further undergo rigorous imprisonment for one month, for commission of offence u/s 363 of the Indian Penal Code.

Succinctly, the facts necessary for the disposal of this appeal are that on 2.4.1998 complainant Hawa Singh lodged a report with the police that he is having two daughter, elder is aged 14/15 years and younger is named Anita. His elder daughter is missing since 1.4.1988 and he searched for her daughter but to no avail and ultimetely he has come to know that Balwan Singh (accused) has kidnapped his daughter (prosecutrix). On the basis of this report, a case was registered under Sections 363/366 of the Indian Penal Code.

On 30.5.1998, S.I. Dharam Pal alongwith other police personnal was present at Bus Stand, Bhiwani when he received a secret information that a boy and a girl were sitting at City Railway Station, Bhiwani. The police went there and apprehended them. On interrogation, the accused disclosed his name as Balwan while the girl disclosed her name (which is not being indicated and she can be discribed as the victim or the prosecutrix). She was produced before the Magistrate who recorded her statement u/s 164 Cr.P.C. when she was coming to her house, the accused on the point of a knife, took her forcibly to a room and committed rape upon her. After comiting rape, he took her to another room and kept her there for 3/4 days and during this period he used to commit rape upon her. She also disclosed that the accused took her to Hardiwar and then to Kanshipur and kept her there for about 20-25 days where the also committed rape upon under threat. On the basis of this statement, offence u/s 376-IPC was added. The prosecutrix and the accused were got medico-legally examined. After receipt of the report and completion of investigation, challan was presented against the accused.

Charge sheet was framed against the appellant to which he did not plead guilty and claimed trial. In order to prove its case, the prosecution examined 9 witnesses. The accused was examined u/s 313 Cr.P.C. wherein he denied the allegations levelled against him and pleaded his false inplication. He took the stand that the present case has been foisted upon him as Hawa Singh (complainant) and his wife and two other relations are being prosecuted in a case u/s 325/34 and the said case was got registered by him as in said case, the accused persons had caused injuries to him. He also tendered into evidence Ex. D-1 in his defence.

The learned trial Court after going through the records, convicted and sentenced accused, as noticed above.

I have heard the learned counsel for the appellant, learned Assistant Advocate General, Haryana for the State and have gone through the records.

Learned counsel for the appellant vehemently argued that the age of the prosecutrix was more than 17 years at the time of commission of offence and in fact, she was having love affairs with the appellant and she had not been kidnapped or allured by the appellant and rather she had been moving with the appellant from one place to another with her own free will and not under any compulsion. He further argued that from the medical evidence, it is crystal clear that there was no injury on her person including on her private parts which fact itself shows the possibility or any forcible sexual intercourse and the facts and circumstances do spell out that she was a consenting party. But the learned trial court has ignored all the facts and circumstances and fell into error in convicting and sentencing the accused appellant and as such the impugned judgment of conviction is liable to be set aside.

On the other hand, it has been contented by the Assistant Advocate General, Haryana that the trial court has rightly appreciated the evidence available on the record and from the statement of the prosecutrix, it stands proved on record that she was kidnapped under threat to kill and the appellant had been committing rape upon against her will and consent. Though the prosecutix has not sustained any injury but from this fact alone, it cannot be said that she was a consenting party and even otherwise also, the consent of the minor has no evidentiary value and the prosecution has been able to prove on record that the prosecutrix was minor being less than 18 years of age and she had been kinapped from the lawful guardian and as such the present appeal deserves dismissal being without merit.

The moot question which requires consideration is as to what the age of the prosecutrix at the time of occurrence. Whether she was minor or major at that time ?

Hawa Singh complainant has disclosed the age of the prosecutrix as 14/15 years. Similarly when the prosecutrix stepped into the witness box as P.W.6, she disclosed her age as 14/15 years. She further deposed that when she was residing in Village Paharipur with her maternal uncle, she was got admitted in a school and she studied there for one or two days only and the school certificate was issued by the Government Primary School, Achhej (Paharipur in which her date of birth has been mentioned as 21.12.1981. This certificate was placed on record by none other than the prosecution. The prosecutrix has also owned this certificate. On the basis of this certificate, the prosecution has tried to prove that the prosecutrix was minor at the time of occurrence being less than 18 years of age. Moreover, it has been held by the Hon''ble Supreme Court in Sannaila Subba Rao v. Srare of Andhra Pradesh 2008 (4) R.C.R. (Cri) 1 : 2008 (5) R.A.J. 29 : 2008 (30) RCR (Crl.) 937 (SC) that "the school certificate issuded by the Head Master with regard to the age of the prosecutrix is a legal document having evidentiary value and has to be given weightage. Such dated of births are recorded in the school registers by the authorities in discharge of their public duty. The entry is not conclusive but has evidentiary value. Such like certificates have got the evidentiary value so far as the date of birth recorded therein is concerned. As per above said certificate, the date of birth of the prosecutrix is 21.12.1981. The alleged occurrence took place on 24.4.1998 and so on, and as such at the time of occurrence, the age of the prosecutrix was between 17-18 years. As per Section 375 IPC " a man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercouse with a woman under circumstances falling under any of the six following descriptions:-

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sixthly with or without her consent, when she is under sixteen years of age.

As is clear from the above, the consent of the victim is immaterial if she is below 16 years but in the instant case, the age of the prosecutrix was more than 17 years.

In view of this, the next question which requires consideration is "whether the prosecutrix was a consenting party" to the alleged rape. In order to arrive at the said conclusion, I would like to peep through the statement of the prosecutrix who stepped into the witness box as P.W.6. While appearing as P.W.6, she has deposed that about eight months back, at about 8/8.30 p.m. She had gone to ease herself on the back side of her house and when she was coming back, the accused came there and on the point of knife, he took her to a room and after breaking the string of her salwar, he performed sexual intercouse with her against her wishes. After committing rape, he took her under threat in Durga Colony, Bhiwani in a room and kept her there for 3-4 days and during the said period, he used to commit rape upon her. Then he took her to a Village nearby Hissar and then to Haridwar (U.P.), then to Kanshipur and kept her for 20/25 days where he used to commit rape upon her and when they were coming to Bhiwani and were sitting on a bench at the Railway station, the police party came there and they rescued her from the clutches of the accused.

From the perusal of the statement of the prosecutrix, it is crystal clear that she remained with the accused appellant for about two months and during this period, they went form one place to another and had been travelling in the bus etc.

In Rakesh''s case (supra) the prosecutrix was abducted by the accused from Gurgaon and was taken to Bulandshahr by bus where they stayed 14-15 days and the accused had committed rape on her daily. It was found that she never raised any alarm either in the bus or at Bulandshahr. According to her, she had travelled with the accused in the bus and three wheeler and she never disclosed to any passenger that she was being kidnapped by the accused forcibly. According to her, she did not raise any alarm as she was under threat from the accused that she would be eliminated. It was held that silence on the part of the prosecutrix on every occasion can be termed as a consenting party.

In the present case also, the prosecutrix was being taken by the accused to different places in the bus and stayed at those places. She never made any complaint to anyone nor raised any alarm in the bus or in the van that she was being kidnapped. In her cross-examination, she has deposed that during her stay in Village, she remained alone also for a long time for about 4-5 hours and from that Village, they proceeded to Haridwar in the same van alongwith all those persons. She pleaded ignorance about the path/road via which they reached the Village in Hissar. "She further deposed that the accused also used to go outside from that house during our stay and she used to remain alone in the house on his back." If she was all alone in the house in the absence of the accused, then she had every opportunity to run away and to raise alarm and could disclose the incident to the passerby. But why she remained silent for such a long time is unexplained which creates a ring of doubt around her statment.

It was held by Hon''ble the Supreme Court in Tukaram''s case (supra) that "the fear shown by the prosecutrix must be that of a death or hurt and in the absence of such a finding, the alleged fear does not vitiate the consent." In the instant case, it is not the cases of the prosecution that the prosecutrix remained under constant fear of death or hurt during the entire period she remained with the accused appellant. She had been visiting various places by bus etc. and at that time, there must be many passengers/people but she kept mum for the reasons best known to her. It is also pertinent to note that when the prosecutrix was recovered from the custody of the accused, at that time, she sitting with the accused at the railway Station, Bhiwani and there was no such factor of fear. Had there been no consent on her part, the accused would not have taken her from one place to another including religious place. After careful perusal of the statement of the prosecutrix and other attending circumstances, it is crystal clear that she was a consenting party.

Once a finding is recorded that the prosecutrix was above 17 years of age and was a consenting party, it cannot be concluded that any such offence was committed by the accused u/s 376 IPC and he is liable to be acquitted of the charges framed against him.

The only question which remains to be determined is "whether accused- appellant can be said to have committed offence u/s 363/366 IPC". In Narender''s case (supra), like the present case, the prosecutrix had came out of the school for purchasing kulfi and was told by the accused that the kulfi, she was purchasing was not good and they would get her a good kulfi and show her movie. On that pretext, she was taken away by them, and subjected to forcible intercouse against her wish. By relying upon the judgment of the Hon''ble Supreme Court in S. Varadarajan Vs. State of Madras, , this Court came to the conclusion that those facts do not make offence u/s 363 IPC against the accused. In Smt. Anita''s case (supra), the accused was residing as a tenant in one of the rooms of Sikander, father of the prosecutrix she was allured by the accused on the pretext of getting clothes and ornaments to her and on that allurement she accompanied him. It was held by this Court it was a cases of elopement and not of kidnapping.

In S. Varadarajan''s case (supra) Hon''ble the Supreme court has held ad under:-

There is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purpose of S. 361. Where the minor leaves her father''s protection knowing or having capacity to know the full import of what she is doing, voluntarily joins the accused persons, the accused can not be said to have taken her away from the keeping of her lawful guardian.

Some more has to be shown in a case of this kind and that is some kind of inducement held out by the accused person or an active participation by him in the formation of the intention of the minor to leave the house of the guardian.

In case the statement of the prosecutrix in this case is to scrutinized in the light of above said propostition of law, it becomes very much clear that it was a case of eloping of the prosecutrix with the accused and not a case of "taking away". The prosecutrix was more than 17 years old and was a student. She had the knowledge and capacity of having full import of what she was doing. In these circumstances, it cannot held that the accused had taken away the prosecutix from the keeping of the lawful guardianship.

In view of the above discussion, the present appeal is accepted. The conviction and sentence of the accused recorded by the trial court is set aside and the accused-appellant is acquitted of the charges framed against him. The fine, if deposited, be refunded to him.