Daya Ram @ Dev Puri vs State of Haryana

R.L. Anand, J. (Oral)

This is a criminal appeal filed by Daya Ram alias Dev Puri aged 42 years at the time of his conviction and has been directed against the judgment and order dated 4.9.1996 passed by the Court of Sessions Judge, Kurukshetra, who convicted the appellant under Sections 366 and 376 I.P.C. and sentenced him to undergo R.I. for a period of 5 years and to pay a fine of Rs. 250/; in default of payment of fine to further undergo R.I. for one month, under Section 366 I.P.C. The appellant was further directed to undergo R. I. for 7 years and to pay a fine of Rs. 500/; in default of payment of fine, to further undergo R.I. for two months, under Section 376 I.P.C. Both the sentences were ordered to run concurrently.

The brief facts of the case are that appellant Daya Ram alias Dev Puri was sent up for trial by the police of Police Station Thanesar to face his trial under Sections 366 and 376 I.P.C. in case F.I.R. No. 19 dated 21.1.1996 registered in the said police station. Lilu Ram PW3 is the father of Ajmero Devi. Said Lilu Ram levelled allegations against the appellant that he was a resident of village Sanheri Khalsa and is a carpenter by profession. He has one daughter and two sons. The eldest is the daughter aged about 15 years by the name of Ajmero Devi. He further stated before the police in his statement Ex. PF that there is a temple of Lord Shiva in his village and in the temple a priest (Pujari) by the name of Dev Puri is residing. He further stated that his wife as well as daughter Ajmero Devi had been visiting that temple in order to pay obeisance. On 20.1.1996 at about 5.30 P.M. his daughter Ajmero Devi had gone to that temple in order to pay obeisance but she did not return home. He searched for his daughter but he could not trace her. He further got recorded in the statement that Dev Puri was also not present in the temple. It is further alleged by the complainant that Dev Puri Baba appellant is a resident of Mathura and he must have enticed his daughter Ajmero by alluring her with a purpose to commit rape upon her. The above statement of Lilu Ram was recorded by the police on 21.1.1996 at 12.15 a.m. when the police party was present in village Sanheri Khalsa in connection with patrolling. The statement Ex.PF. was read over and explained to Lilu Ram, who thumb marked the same in token of correctness. Thereafter SI Karnail Chand, the Investigating Officer, who recorded the statement Ex.PF, made endorsement Ex.PF/1 underneath the said statement and it was sent to Police Station Sadar Thanesar through Constable Balwinder Singh for getting the case registered under Sections 363/366 I.P.C. and on the basis of this, formal F.I.R. Ex. PF/2 was recorded in Police Station Sadar Thanesar at 1.20 a.m. on 21.1.1996.

Ajmero Devi was found present in the custody of the appellant. She was taken into custody while the appellant was arrested. The prosecutrix was also medicolegally examined by the doctor like that of the appellant. I will discuss the medical aspect of this case in the later part of this judgment. The police also took into possession school record Ex.PH and Ex.PH/1 which shows that the date of birth of Ajmero Devi is 8.1.1981. The swabs and clothes of the prosecutrix which were handed over to the police by the doctor were sent to the office of Director, F.S.L., who vide report Ex.PC found human semen on the Salwar of the prosecutrix but no human semen could be found on the other clothes of the prosecutrix as well as on the Dhoti worn by the appellant.

On the completion of the investigation of the case, after recording the statement of the relevant witnesses, the appellant was challaned in the Court of Illaqa Magistrate, who supplied the copies of the documents to the appellant and vide commitment order dated 27.3.1996 committed the appellant to the Court of Session.

Vide order dated 18.4.1996, the learned Sessions Judge, Kurukshetra framed charges under Sections 366 and 376 I.P.C. against the appellant. The charges were read over and explained to the appellant to which he pleaded not guilty and claimed a trial.

In order to prove the charges the prosecution examined Dr. Sushma Saini, Medical Officer, L.N.J.P. Hospital, Kurukshetra, who along with Dr. Anupma Singh medicolegally examined Ajmero Devi on 22.1.1996 at 3.30 p.m. As per the observations of these two doctors, the prosecutrix started menstruating 3/4 years prior to the date of her examination. There was whitish discharge on the vulva. The labia majora and labia minora were healthy. The hymen had old healed tears and the vagina admitted two fingers. The doctors handed over the copy of the M.L.R., sealed parcel containing Salwar and underwear of the prosecutrix, two slides and two swabs which were prepared by the doctors to the police. Ex. PA is the correct carbon copy of the M.L.R. of the prosecutrix. PW2 Dr. Ashwani Kumar medicolegally examined the appellant and found him fit to commit sexual intercourse and in this regard the M.L.R. Ex.PE was issued. The doctor also took into possession Dhoti of the appellant at the time of his medical examination. Lilu Ram father of the prosecutrix appeared as PW3, who deposed on oath that Ajmero Devi is aged about 15 years. It has further come in the statement of Lilu Ram that his wife and his daughter had been frequently visiting the temple in order to offer prayers. On 20.1.1996 his daughter went to the village temple at about 5.30 p.m. It has also come in the statement of this witness that at that time the appellant was the priest of that temple but his daughter Ajmero Devi did not return to the house. He made enquiries about his daughter inside the village and also in the temple but his daughter could not be found, as a result of which he lodged the F.I.R. It has also been stated that on the next day, i.e. 21.1.1996 at about 10.00 a.m. he noticed the presence of his daughter Ajmero Devi near Gurdwara 6th Patshahi, Kurukshetra and at that time she was in the custody of the present appellant and both of them were taken into custody by the police. Ajmero Devi prosecutrix appeared as PW4 and stated that she had been going to the village temple in order to pay obeisance. On the relevant day at about 5.30 p.m. she had gone to the said temple, the appellant gave her Parsad and after taking the Parsad she started feeling giddy. Thereafter the appellant took her inside the Gupha (cave) of the temple. Further it has been stated by the prosecutrix that appellant told her that he would perform sexual intercourse with her and when she refused to accede to the demand of the appellant, the latter threatened her that he would infuse bad spirits in her body. She tried to raise alarm but the appellant gagged her mouth and thereafter the appellant committed rape upon her forcibly. Thereafter the appellant brought her outside the temple and directed her to accompany him to Delhi and when she refused to do so, he allured her that he would arrange good clothes, gold ornaments etc. Further the appellant threatened her that in case she did not accompany him to Delhi, she would be defamed. In order to avoid shame etc. she had to accompany the appellant and that night was spent by them in the area of village Sanheri Khalsa. On the next day they were trying to go to Delhi but the police party accompanied by her father arrested her and the appellant near the petrol pump near Gurdwara 6th Patshahi, Kurukshetra. Further she stated that she was medically examined by the doctor. Narender Singh PW5 is the headmaster of Govt. Primary School, Sanheri Khalsa, who issued certificates Ex.PH and Ex.PH/1 and certified that the date of birth of Ajmero is 8.1.1981. Mukesh Kumar, Draftsman PW6 is a formal witness who prepared scaled site plan Ex.PJ. Nirmala Devi PW7 is the mother of the prosecutrix and she has also certified about the age of her daughter as 15 years. Further she deposed that the prosecutrix was got admitted in the Govt. School of the village and she correctly gave her age before the school authorities. Further she deposed that on the relevant day her daughter had gone to the village temple in order to pay obeisance but she did not return to the house and also on the relevant day the appellant was working as Pujari in the village temple. Investigating Officer Karnail Chand, SI appeared as PW8. He proved the statement Ex.PF of Lilu Ram besides the F.I.R. He also proved the arrest of the appellant and that of the prosecutrix. Further he stated that he got the prosectrix and the appellant medically examined. Finally, the prosecution tendered into evidence the report of the Chemical Examiner the material portion of which I have discussed above.

The statement of the appellant was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to him. The plea of the appellant was as follows :

"I am innocent. A false case vide F.I.R. Ex.PF/2 was registered against me at the instance of Ajmer Singh Sarpanch, who had illwill against me and wanted to eject me from the temple. As a matter of fact, Ajmero Devi prosecutrix committed a theft of the belongings of the temple from the temple premises and I went to the police station Sadar Thanesar to lodge a complaint of theft but the Thanedar in connivance with Ajmer Singh Sarpanch of the village got me involved in this false case by striking a compromise with Ajmero Devi and as per compromise the case against Ajmero was not registered and she volunteered to come forward as a victim of rape and at the instance of Ajmer Singh Ajmero Devi was projected falsely as a victim of rape, though no rape was ever committed by me or anybody on 20.1.1996 upon Ajmero Devi. I never kidnapped or abducted Ajmero Devi on 20.1.1996. Ajmero Devi was never recovered from my possession on 21.1.1996 near the 6th Patshahi Gurdwara of Kurukshetra."

The learned trial Court relied the story of the prosecution and rejected the defence version and convicted and sentenced the appellant in the manner as stated above and aggrieved by his conviction and sentence, the present appeal which I am disposing of with the assistance rendered by Shri S.S. Rana, the learned counsel appearing on behalf of the appellant, Shri Salainder Singh, the learned Deputy Advocate General appearing on behalf of the State and with their assistance I have gone through the record of this case.

The law on the subject is becoming crystal day by day. Repeatedly it has been held by the Hon''ble Supreme Court and in this context I can only give reference of a famous case State of Punjab v. Gurmit Singh and others, 1996(1) RCR (Crl) 533 : AIR 1996 SC 1393. The Hon''ble Supreme Court held that the statement of a prosecutrix is to be read like an injured witness. To seek corroboration to the testimony of a prosecutrix would amount to adding insult to her injury. The Hon''ble Supreme Court held and gave the directions to the lower Courts that while assessing the testimony of a prosecutrix, due weight has to be given to the statement of a prosecutrix unless the Court finds that the prosecutrix is telling lies inherently. Here is a case from which it stands established that Ajmero Devi was a young girl of 15 years at the time of commission of offence. Further it is established not only from the statement of Ajmero Devi but also from the statements of her parents that the date of birth of Ajmero Devi was 8.1.1981 and she studied in a school upto 5th class and her date of birth has also been recorded as 8.1.1981 in the record of the village school. Ajmero has categorically stated that on 20.1.1996 when she went to the village temple, the appellant gave her Parsad. She started feeling giddiness. The appellant took her inside the cave and committed rape upon her. The prosecutrix was recovered on the next day in the company of the appellant. This gives an additional strength to the conclusions drawn by this Court that the appellant must have kidnapped the prosecutrix from her lawful guardianship and on the previous night he might have committed the offence of sexual intercourse. The testimony of Ajmero finds further corroboration from the medical evidence when the doctor has deposed that the hymen of the prosecutrix was torn.

Faced with this difficulty, the learned counsel for the appellant submitted that the present case appears to be a case of consent. The learned counsel submitted that in the absence of any birth certificate and in the absence of any ossification test, the Court should presume that the prosecutrix was more than 16 years of age. According to the opinion of the doctor, the vagina of the prosecutrix admitted two fingers easily and, therefore, a reasonable inference should be drawn that the prosecutrix was a consenting party and in these circumstances the appellant is entitled to acquittal.

I have considered the submissions of Shri Rana and am of the considered opinion that these submissions do not carry any weight. The direct testimony of the parents can be preferred than that of the submissions raised by the learned counsel for the appellant. The doctors'' opinion at the time of the examination of the prosecutrix was that Ajmero started menstruating about 3/4 years prior to her examination. The young girls generally menstruate at the age of 12/13 years. Ajmero has also stated that she was aged about 15 years at the time of occurrence. Her statement is further corroborated by the statements of her parents who are the best persons to depose about the birth of their children. The school certificate further strengthens and corroborates the statements on Nirmala Devi and Lilu Ram about the date of birth of the prosecutrix. There is no earthly reason which has been advanced by the learned counsel for the appellant to disbelieve the testimony of Nirmala Devi, Lilu Ram and that of Ajmero Devi. The appellant, according to the story of the prosecution, was the Pujari of the temple. It has been seen in experience that the villagers extend lot of respect to the Pujaris and they would be the last persons to implicate such persons. The appellant has not come forward with any cogent reason as to why Ajmero and her parents are implicating him. In this view of the matter, by giving lot of credence to the statements of Ajmero, Nirmala Devi and Lilu Ram, I am of the considered opinion that appellant Daya Ram alias Dev Puri committed rape upon a minor and he further kidnapped her from her lawful guardianship. Thus, I maintain the conviction of the appellant both under Sections 366 and 376 I.P.C.

The learned counsel for the appellant then submitted in the alternative that the appellant may be visited with leniency in the matter of sentence. The counsel submitted that perhaps Ajmero was a consenting party in this affair. No doubt, she is a minor as per the finding of the trial Court but the appellant should be visited with leniency in the matter of sentence. I have considered this aspect of the case, but am of the view that the appellant does not deserve any sympathy even in the matter of sentence. He has virtually betrayed the trust of the villagers. He has even spoiled the sanctity of the temple of the village. He has taken a minor inside the cave of the temple. Our holy premises are not meant for these types of crimes. The priests/Pujaris are the custodian of our deities. The sanctity of the deities is not supposed to be exploited by the Pujaris, Pandits and Priests. The action on the part of the appellant does not deserve any sympathy. Resultantly, I dismiss this appeal in toto.