Banarsi @ Benarsi Dass vs The State of Haryana

S.S. Dewan, J.—Banarsi Dass on his conviction u/s 366, Indian Penal Code, and sentence of 6 months rigorous imprisonment, has come up in appeal. He is said to have on the night intervening January 15/16-1-1973 at village Isharpur, abducted Kumari Pali, aged 16/17 years, with the intent that she might be seduced to illicit intercourse. His co-accused, Puran and Shrimati Lila Devi have been acquitted.

The prosecution story briefly runs as undar:--

On the night intervening January 15/16-1-1973, Kumari Palo slept inside a Chhan near her residential house in village Isharpur. At about 3 A. M., Banarsi Dass, accused awakened her and told her that her buffalo had been let loose. She came out and found her buffalo underneath the nearby Neem tree. Banarsi Dass took her in his grips and gagged her mouth with his hands. Puran and Smt. Lila Devi helped Banarsi Dass in forcibly taking Kumari Palo outside, the village abadi. She was told that in case, she raised alarm, she would be killed. All the three accused and Kumari Palo boarded a train at about 5 A.M. for Yamunanagar. Smt. Lila Devi accused continued her journey while the aforesaid two accused and the prosecutrix got down from the train at Yamunanagar. Kumari Palo was brought in a rickshaw near a culvert on Jagadhri-Saharanpur road in the area of village Fatehpur. Banarsi Dass took her to a nearby pit and committed sexual intercourse with her against her will. Thereafter, they boarded a taxi from village Chilkana and reached Saharanpur where they passed the night in a hotel. Banarsi Dass took her to Nahan by a taxi and from there, she was taken to Chandigarh and Panchkula where they stayed for about 12 days. They stayed at Patiala for about 20 days. From Patiala, she was taken to Jammu where she was kept by the accused for about 4 months. Both of them then came to Yamunanagar by train and set out on foot towards village Bhauji. They were detected on the night intervening June 30, 1973 and July 1, 1973 by S.I. Mohan Singh of Police Station Saddar, Yamunanagar at the bridge of village Damla. The accused was arrested and Kumari Palo was recover-ed. Puran and Lila Devi, accused, were arrested by H.C. Ram Singh on February 26, 1973. On the completion of the investigation the accused were challenged and committed. The learned Sessions Judge acquitted Puran and Smt. Lila but convicted and sentenced Banarsi Dass as indicated above. Feeling aggrieved by the judgment of the learned Sessions Judge, Banarsi Dass has come up in appeal.

Kumari Palo had been medically examined by Dr. (Mrs.) Rukmani Garg (P.W. 1) on 1st July 1973 at 6.35 P.M. She found no mark of injury on any part of her body. Hymen was fully torn. Vagina admitted two fingers. Uterus was of hypertrophied size. According to her she had two months of amenorrhea.

Regarding the occurrence, we have mainly the evidence of Kumari Palo (P.W. 7). According to her, the appellant awakened her at about 3 A.M. and told her that her buffalio had been let loose. She came out of her house and found her buffalo underneath the Neem tree. The witness maintained that with the help of Puran and Shmt. Lila, the appellant forcibly took her to different places and kept her for about 6 months. She added that the appellant had been committing sexual intercourse with her. S.I. Mohan Singh recovered her from the possession of the appellant. She claimed that the appellant threatened her not to talk to anybody. The trial Court found the story as given by the prosecturix to be not true so far as the allegation of threat was concerned. It was observed that the prosecutrix could have easily raised an alarm and made complaint regarding her abduction by the appellant. From the facts that the prosecutrix did not raise hue and cry at any stage it was concluded that she was a consenting party and had willingly gone with the appellant and was also a consenting party to the sexual intercourse committed by him. The trial court acquitted the appellant for the offence u/s 376, Indian Penal Code.

Shri K.K. Aggarwal, learned counsel, who appeared on behalf of the appellant, had contended that in the face of the finding given by the trial court that the prosecutrix was a consenting party to the act of her removal by the appellant is correct, the only point which survives for consideration is whether the age of the girl had been correctly held to be less than 18 years. According to his contention, she was more than 18 years. In this connection, he refers the evidence of Dr. Rukmani. As a result of appearance and physical test concluded by her she came to the conclusion that the age of the prosecutrix is 17 years. The learned counsel says that the appearance and physical test by no means yield the result of definite age of the prosecutrix and are : not conclusive and dependable, especially when the margin is only of one year between the age found to be upto 17 and the age of majority of 18. I agree that the physical test cannot be relied upon as definite proof of the age of the girl being not under 18 or above and being less than 18.

The birth entry (Exhibit P.H.) alleged to be that of Kumari Palo, also does not help the prosecution. The birth entry was proved by Shri Rajinder Singh, Statistical Assistance, Office of the Chief Medical Officer, Ambala. He did not personally know anything about the correctness of that birth entry. The birth entry (Exhibit P. H.) shows that Kartar Singh whose daughter was borne on 3rd January 1956 was a Jat Sikh and that Kanshi Ram alias Kartar Singh, for the purpose of our case, admittedly was a Saini. So this birth entry does not pertain to Kumari Palo. In the birth entry, the father''s name is given as Kartar Singh, whereas at the trial, Kanshi Ram is stated to be the father of the prosecutrix The Chowkidar who furnished the register, containing the entry regarding the date of birth of the prosecutrix had not been produced. It is not known who was the official who made that entry. In the circumstance implicit reliance could be had in the entry being one of the prosecutrix and the prosecutrix alone. Kanshi Ram father of the prosecutrix could not give the date, the year when Kumari Palo was born. He could not even give the particulars of the births of his other children. In this state of affairs, the learned defence counsel is legitimately entitled to conclude that the prosecutrix may be of 18 or between 18 and 19 years of age.

The prosecution could also have an X-ray examination of Kumari Palo carried out for the purpose of ascertainment of the age. Such an examination would have provided important corroborative evidence if she was not more than 17 years of age. The failure of the prosecution in this behalf raises a presumption that such evidence, if produced would have gone against them. In this view of the matter, the testimony of Kumari Palo herself cannot be accepted.

From what I have said it follows that the prosecution has not succeeded in proving satisfactorily that at the relevant point of time, the ago of Kumari Palo, was below 18 years. The offence of abduction cannot, therefore, be brought home to the appellant. Consequently, the appeal is accepted, the conviction recorded against the sentence Imposed upon the appellant, are set aside and he is acquitted of the charge.