Bhira Singh and Another vs State of Haryana

A.N. Jindal, J.—Assailed in this appeal is the judgment of conviction dated 20/23.1.2001 passed by the learned Additional Sessions Judge,

Fatehabad, vide which the accused-Appellants Bhira Singh and Amrik Singh (hereinafter referred to as ''the accused'') were convicted under

Sections 366, 376(g), 506 read with Section 34 IPC and were sentenced as under:

To undergo rigorous imprisonment for

U/s 366

three years and to pay fine of Rs.

IPC

1,000/- each.

To undergo rigorous imprisonment for

U/s 376(g)

ten years and to pay fine of Rs. 5,000/-

IPC

each.

U/s 506 To undergo rigorous imprisonment for

IPC six months each.

However, all the substantive sentences were ordered to run concurrently.

The story as unfolded by the prosecution, which culminated into trial is that the prosecutrix (name not disclosed) aged about 15 years is a

resident of village Sidhani. On 28.12.1998, at about 7.00 PM, she had gone to ease out herself in the fields, where she was induced by the

accused Bhira Singh, Amrik Singh and another accused Sanju (since facing trial before the Juvenile Court) and took her to Bareta on the pretext of

seeing a movie, then first they took her to brick-klin, where they raped her simultaneously. Thereafter, they took her to village Budlada on foot,

and then to Ferozepur by bus, where she was kept for months and was raped by the accused persons.

On the statement of Ram Phal-complainant (hereinafter referred to as ''the complainant''), FIR No. 177 dated 30.12.1998, under Sections 363,

366, 34 IPC (Ex.PO) was registered at Police Station, Jakhal. The quest for search continued, ultimately on 27.2.1999, SI Jai Pal Singh (PW12)

recovered the prosecutrix from the house of Mangal Singh at Ferozepur. He also arrested the accused on the same day from Ferozepur.

Thereafter, the prosecutrix was medico-legally examined. Regarding age, she was examined by Dr. Arun Gupta, Radiologist (PW11) on 4.3.1999,

who observed the prosecutrix to be between 15 to 17 years of age. Investigating Officer recorded statements of the witnesses; prepared rough site

plan of the place of occurrence; collected reports from the Forensic Science Laboratory, Madhuban and ultimately filed report u/s 173 Code of

Criminal Procedure against the accused.

On the basis of the allegations as contained in the report u/s 173 Code of Criminal Procedure the accused were charged under Sections 366,

376(g), 506 read with Section 34 IPC, which they denied and opted to contest the case.

During trial, the prosecution examined HC Ram Pal (PW1), C. Krishan Kumar (PW2), Dr. Poonam Grover (PW3), Dr. H.L. Gupta (PW4),

C. Ram Phal (PW5), Ram Phal complainant (PW6), Prosecutrix (PW7), SI Baljit Singh (PW8), Balkar Singh Patwari (PW9), ASI Anup Singh

(PW10), Dr. Arun Gupta (PW11), SI Jaipal Singh (PW12) and tendered into evidence affidavit of HC Rampal Ex.PA, affidavit of C. Krishan

Kumar Ex.PB, application for medical examination of the prosecutrix Ex.PC, medico-legal report of the prosecutrix Ex.PD, medico-legal report of

accused Bhira Singh Ex.PE, medico-legal report of accused Amrik Singh Ex.PF and after tendering various other documents, the prosecution

closed its evidence.

The accused when were generally questioned in their statements u/s 313 Cr.P.C., they controverted the allegations and pleaded their false

implication in the case.

Despite opportunity, no evidence was led in defence.

Ultimately, the trial ended in conviction, hence this appeal.

I have heard Dr. Surya Parkash, learned Counsel for the Appellants, Mr. K.S. Godara, learned Deputy Advocate General, Haryana and

perused the records of this case with their able assistance.

The common element for holding the accused guilty for the offence under Sections 366, 376(g) IPC is the age of the prosecutrix, which is

required to be determined at the very first instance. In order to settle this controversy, the prosecution examined Ram Phal (PW6), father of the

prosecutrix and the prosecutrix (PW7). Besides these two pieces of evidence, Dr. Arun Gupta (PW11), who radiologically examined the

prosecutrix to give her age, is with me. Ram Phal (PW6) has stated that he had two daughters and a son. The son was the eldest of all. He was 18

years of age and there is difference of three years between the prosecutrix and his son Prem Singh. Dr. Poonam Grover (PW3), who medically

examined the prosecutrix also testified that she disclosed her age as 15 years when she appeared before her for medical examination. The

prosecutrix (PW7) also stated that she was about 15 years of age at the time of rape. So far as the medical evidence is concerned, Dr. Arun

Gupta (PW11), who radiologically examined the prosecutrix, disclosed vide his report Ex.PT that she was in between 15 to 17 years of age. No

doubt, the oral evidence regarding determination of the age cannot have precedence over the medical evidence. Similarly, ossification test also

cannot be said to be sure test for fixing the age of the person, yet in the absence of any definite evidence or rebuttal to the same from any source,

the evidence whatsoever before the Court will have to be evaluated and conclusion is to be arrived at on the basis of the same.

While evaluating the ossification report, in case Jaya Mala Vs. Home Secretary, Government of Jammu and Kashmir and Others, observed

that radiological and orthopedic test only give an approximate age of the person medially examined and margin of error of two years on either side

can be assumed. In any case, taking into consideration the fusion of the head of the radius, distal end of the radius and the distal end of ulna and

particularly the fact that the distal end of the radius were not fused, she cannot be held above 16 years of age. We are also alive of the fact that the

fusion of the bones depends upon the conditions in which the child grows up; the type of food which he/she is served; the environmental and

climatic conditions in which he/she lives are the other factors governing the fusion of bones. In case of the energetic and strong person the fusion of

the bone takes place at an early age in comparison to the persons having weaker physique and grown up in a poor family. Thus, while putting the

circumstances of the present case on the envil of the aforesaid factors and if read with the oral evidence, it can safely be observed that the

prosecutrix was below 18 years of age at the time of the incident.

Now coming to the next factor which determines that she was subjected to rape or that she was a consenting party, it would be worth while to

observe that the prime factor that the prosecutrix in the month of December, at odd hours, was not supposed to leave alone the village without any

ill intention on her part. It can well be experienced that in the rural areas of this country, girls do not go alone to ease themselves at such odd hours,

but her going alone showed her conduct. It has come in evidence that they covered 40 kms on foot to take bus from Budhlada to Ferozepur, but

she without any objection or protest, while boarding bus went to Ferozepur, she did not make any complaint to the bus passengers or bus crew on

her journey from Budhlada to Ferozepur. She did not make any complaint to Mangal Singh landlord of the house where they resided for 63 days

at Ferozepur. She even did not request him to come at her rescue.

It may also be observed that Dr. Poonam Grover (PW3) when examined the prosecutrix on 28.2.1999, at 2.10 AM, mentioned that her

general condition was fair and she was fully conscious and oriented. Her pulse was 82 p.m., blood pressure was 120/80, temperature and pupils

were normal. There were 28 teeth in oral cavity. Her axillary hair was found developed; pubic hair were shaved off; breasts and nipple were fully

developed; no mark of injury on external and internal part of genitalia; hymen was old torn and vagina admitted two fingers easily. Uterus was

normal in size and there was no discharge from the vagina. She also admitted that the prosecutrix was habitual to intercourse. It would be

worthwhile to add that as per Dr. Poonam Grover (PW3), pubic hairs were shaved off, that shows her independent act. It may further be added

that ASI Anup Singh (PW10) and SI Jaipal Singh (PW12) also disclosed that when the prosecutrix was arrested and taken for medical

examination, she was carrying her spare clothes, that shows that she was a consenting party to the rape. She stayed for 63 days with the accused

persons and did not make any effort to contact her parents through Mangal Singh or any other neighbour, therefore, no doubt is left to hold that

she was a consenting party. It was held in case Mahabir v. State, 1994 (3) RCR (Cri.) 46 (Del); Jinish Lal Sah v. State of Bihar, 2003 (1) RCR

(Cri) 247 (SC) and Sukhbir Kabul Singh Vs. State of Haryana, that where the prosecutrix lived with the accused without raising any complaint or

protest, then she could be said to be a willing party. Consequently, offence of intimidation also cannot be sustained.

Now only fact remains whether the accused could be convicted u/s 366 IPC, in this regard it may be observed that the prosecutrix had been

held to be below 18 years of age and was taken from the lawful guardianship without the consent of the guardian, with an intention to commit an

offence, therefore, offence u/s 366 IPC is certainly made out against the accused.

For the foregoing reasons, the appeal preferred by the Appellants is partly accepted and the accused are acquitted of the charges under

Sections 376(g)/506 read with Section 34 IPC. However, they are convicted u/s 366 IPC and sentence passed against them under the aforesaid

section shall remain intact.

Chief Judicial Magistrate, Fatehabad is directed to take necessary steps for procuring their custody for serving remaining part of their sentence

under the aforesaid section.