Dharamvir vs State of Haryana

S.S. Grewal, J.

Dharamvir son of Nek Ram and Kailash son of Pritam Singh was convicted under Section 366 of the Indian Penal Code, and were sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 250/ each, vide, order dated 2791988 passed by the Sessions Judge, Faridabad. In default of payment of fine they were ordered to undergo rigorous imprisonment for three months. Dharamvir accused was also convicted under Section 376 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 500/. In default of payment of fine he was ordered to undergo further rigorous imprisonment for six months. Both the substantive sentences awarded to Dharamvir accused were ordered to run concurrently. Dharamvir accused file Criminal Appeal No. 454SB of 1988 through jail and later on Mr. P.C. Chaudhary Advocate, appeared on his behalf, whereas Kailash accused filed Crl. Appeal No. 432SB of 1988, against the order of their conviction and sentence passed by the trial Court. Since common questions of law and fact are involved, both these appeals shall be disposed of by one order.

In brief facts of the prosecution case, are that on 1481987, on the basis of complaint made by Ombir Singh uncle of Pushpa alias Munni (Prosecutrix) formal first information report was registered that Pushpa alias Munni aged about 13/14 years is the daughter of his cousin Ranbir Singh. She alongwith her two brothers and sister was residing with Ranbir Singh. Dharamvir accused was working as a servant with Balbir singh younger brother of Ranbir Singh aforesaid for the last about ten months. Kailash accused used to visit Dharamvir accused quite often Dharamvir accused induced Pushpa to marry him. A day prior to 1281987, Kailash accused came to see Dharamvir and at about 3 or 4 a.m. Siri Ram saw both the accused alongwith Munni alias Pushpa going towards Faridabad. Before lodging the complaint the first informant and other relations of Pushpa searched for her but to no effect and lodged the complaint with the police. ASI Deep Chand arrested Kailash accused on 1581987 and recovered Pushpa from house No. 581, Sector 19. Faridabad, where she was found with Dharamvir accused. Pushpa PW and Dharamvir accused were got medically examined. After completion of the investigation, the accused were challenged, tried, convicted and sentenced as indicated earlier.

The learned counsel for the parties were heard.

The learned counsel for the appellants assailed the prosecution story firstly on the ground that the prosecution has failed to prove that the prosecutrix was minor, or, was 14 years of age at the time she is said to have been Kindapped or raped. Dr. Savita Ranjan, PW 1 admitted in the crossexamination that the possibility that the prosecutrix could be of 14 years of age cannot be ruled out. She did state that the prosecutrix could be more than 14 years of age, but was not in position to give her exact date. In order to determine her age, she had referred the case to the Radiologist and Dentist. Admittedly, no ossification test was conducted to determine the radiological age of the prosecutrix. The prosecutrix gave her age as 14 years to the doctor when she was medically examined. The opinion of the doctor that the prosecutrix appears to be 16 or 17 years of age without any cogent basis cannot be relied upon. Nor from failure on the part of the investigation to get conducted ossification test which would be helpful only in determining the approximate age of the prosecutrix and is not considered to be a surer test for such determination no adverse inference can be drawn against the prosecution. The fact remains that the prosecution has produced the best evidence of Ranbir Singh PW 10 who had given the age of his daughter. Pushpa alias Munni as 14 years. No infirmity worth the name has been pointed out in the testimony of this witness concerning the age of the prosecutrix. Testimony of Ranbir singh father of the prosecutrix finds ample corroboration from the testimony of the prosecutrix Pushpa alias Munni, who has consistently given her age as 15 years at the time when she was kidnapped. The testimony of Ranbir Singh PW is further corroborated by the testimony of Hukam Dhand PW 13 who was given the date of birth of the prosecutrix as 8th of April, 1973 on the basis of the entry in the admission register. It is true that Hukam Chand PW did not bring the admission forms with him when he appeared before the trial Court. From the nonproduction of admission form, no adverse inference can be drawn concerning the entry of date of birth of the prosecutrix in the school admission register. Testimony of Pushpa and that of Hukam Chand PW coupled with the certificate in respect of date of birth in the school admission register, lends further corroboration to the testimony of Ranbir Singh father of the prosecutrix in order to establish that the prosecutrix was 14 years of age at the time when she was kidnapped.

In view of the fact that the prosecutrix was below 16 years of age at the time she was kidnapped from the custody of her lawful guardian, the plea put forth on behalf of the appellants that the prosecutrix herself was a consenting party or that she had sexual inter course with Dharamvir prior to the day she was kidnapped or that she wanted to marry Dharamvir accused or the fact that the prosecutrix was used to sexual inter course would not constitute an valid defence either in respect of commission of offence or kidnapping or subsequently for commission of rape by Dharamvir accused after the prosecutrix was taken to Faridabad. From the testimony of the prosecutrix it has been amply proved that Dharamvir accused compelled her to submit to sexual inter course with him as he threatened her to disclose about her illicit relations with Alladin to her father. Dharamvir accused also represented to the prosecutrix that he was only son of his parents and was owner of 52 Bighas of land and that after selling his laned he would settle at Faridabad. He was thus able to entice the prosecutrix to leave her father''s house. The prosecutrix went and lived with the said accused at Faridabad in another house before she was recovered from the custody of Dharamvir accused on 26.8.1987. Her testimony in this regard is worthy of credence.

Siri Ram PW 6 had also seen Dharamvir accused with the prosecutrix at about 3 a.m. on 12.8.1987. His testimony further lends corroboration to the version given by the prosecutrix. He, however, categorically stated that he did not identify the other person who had accompanied Dharamvir at that time. Thus the allegation of the prosecutrix that Kailash accused was also accompanying Dharamvir accused when she left the house of her father in early hour of 1281987 is not supported by the version given by Siri Ram Pw. It is true that Pushpa PW stated that Kailash accused had also represented that Dharamvir accused owned land worth Rs. 5 lacs. The statement of the prosecutrix that she had sexual inter course with Dharamvir accused in the fields after the aforesaid representation by Kailash accused does not sound natural or probable. It is equally improbable that the prosecutrix would disclose this fact to Kailash accused on the night preceding 1281987. In case her testimony that Kailash also went with them and left her at the house in Sector 19, Faridabad had been correct, then normally she was expected to be rescued by the police shortly after the arrest of Kailash on 1581987 and not on 2681987 as is the prosecution story.

In view of the infirmities referred to above, I am of the considered view that the prosecution has failed to bring home charge under Section 366 of the Indian Penal Code against Kailash accused beyond reasonable doubt and giving him the benefit of doubt I hereby acquit him.

The prosecution has, however, been able to bring home charge under Sections 366 and 376 of the Indian Penal Code against Dharamvir accused beyond reasonable doubt and he has been rightly convicted by the trial Court. However, taking into consideration the over all circumstances of the case and the fact that the appeal of Dharamvir remained pounding for the last about 5 years in this Court, the sentence of imprisonment awarded to Dharamvir accused under Section 376 of the Indian Penal Code is reduced from rigorous imprisonment for seven years to rigorous imprisonment for five years. The sentence of fine imposed by the trial Court or in lieu thereof is, however, maintained. The sentence of imprisonment for three years and to pay a fine of Rs. 250/ and in default thereof under Section 366 of the Indian Penal Code is also maintained. However, the substantive sentences of imprisonment shall run concurrently.

Except with this modification in the sentence the appeal filed by Dharamvir appellant i.e. Crl. Appeal No. 454SB of 1988 is dismissed whereas Crl. Appeal No. 432SB of 1988 filed by Kailash appellant is allowed.