Heera vs State of Haryana

Rekha Mittal, J.—The present appeal has been directed against the judgment of conviction and order of sentence dated 15.09.2009 passed by the Sessions Judge, Gurgaon whereby the appellant has been convicted and sentenced for commission of offence punishable under Sections 363, 366-A, 376 of the Indian Penal Code (in short ''IPC''), extracted hereinbelow:-

All the sentences were ordered to be run concurrently.

The facts relevant for disposal of the present appeal are that on 11.07.2008, Pehlad Singh (complainant) moved an application (Ex. PA) before SHO, Police Station Manesar that his niece (name kept secret), aged 14 years, studying in 10th standard had gone to her school in village Bhgrola on 05.07.2008 at 7 A.M. but did not return till evening. He came to know that Heera, a driver by profession and residing as tenant in village Bas Khusla had enticed her. He was searching for the girl at his own level but could not succeed. Ved Pal son of Dilaram is also involved in kidnapping of the victim. A case under Sections 363, 366-A and 120-B IPC read with Section 34 thereof was initially registered in Police Station Manesar, District Gurgaon.

On 12.07.2008, the accused was arrested from old Delhi Railway Station along with the victim. The prosecutrix got recorded her statement that the accused on the pretext of dropping her in the school took her in a car to Delhi and then to U.P. and committed rape despite resistance. On 12.07.2008, he took her to Delhi Railway Station but the police arrested him and recovered her from his custody. On the basis of statement of the prosecutrix, offence under Sections 376 and 506 IPC was added. She was got medico legally examined and so also the accused.

On completion of investigation, report u/s 173 Cr.P.C. was submitted before the Illaqa Magistrate for commencement of trial. However, Ved Pal son of Dilaram was found innocent.

After complying with the provisions of Section 207 Cr.P.C., the case was committed to the Court of Sessions as offence under Sections 376, 366 IPC being exclusively triable by the said Court.

The accused was charged for committing offence punishable under Sections 363, 366, 376 and 506 IPC to which he pleaded not guilty and claimed trial.

To substantiate the charge, the prosecution examined as many as 11 witnesses, namely Pehlad Singh (complainant) PW1, the prosecutrix PW2, Inspector Rajeev Kumar PW3, SI Ishwar Singh PW4, Dr. Sanjay Narula PW5, Dr. B.B. Aggarwal PW6, Dr. Sunita Rathi PW7, HC Inder Singh PW8, ASI Narender Singh PW9, Vijay Pal Shastri PW10 and Girish Kumar, Draftsman PW11.

On evidence of prosecution being closed, statement of the accused u/s 313 Cr.P.C. was recorded wherein he denied all the incriminating circumstances put to him and pleaded his innocence and false implication. However, he did not adduce any evidence in defence.

The learned trial Court, on appreciation of evidence adduced on record held the accused guilty of committing offence charged against him and accordingly, he was sentenced, noticed hereinabove.

Counsel for the appellant has submitted that the prosecution story is not free from embellishment, lacunae and shortcomings which are not taken note of by the learned trial Court, the benefit whereof is liable to be extended to the accused.

Counsel would submit that though the learned trial Court has held the prosecutrix to be a consenting party to alleged rape by the accused but committed a serious error in holding that the prosecutrix was less than 16 years of age at the time of alleged offence. It is strenuously argued that the prosecution has failed to lead tangible, cogent and convincing evidence to prove that the prosecutrix was less than 16 years of age. He has pointed out that the opinion given by the doctors on the basis of ossification test gives the age of the prosecutrix to be 141/2/15 years and keeping in view variation of 2 years admissible on either side, the benefit of variation towards higher side is liable to be extended to the accused. It is further argued that on giving benefit of 2 years variation, the prosecutrix was certainly more than 16 years of age in July 2008. As the prosecutrix herself was a consenting party of going with the accused and developing physical relationship, the accused is liable to be acquitted of the offence who has already suffered actual custody for a period of 5 years 2 months and 13 days as on 26.09.2013.

Counsel for the appellant made a vain attempt to point out certain minor and insignificant contradictions in the testimony of the witnesses which do not go to the root of the prosecution case.

Counsel representing State of Haryana, on the contrary, contends that the judgment passed by the learned trial Court is based upon meticulous and correct appreciation of evidence, therefore, the appeal is liable to be dismissed.

I have heard counsel for the parties and perused the records.

From the facts on record, it becomes an admitted position of the case that the prosecutrix and the accused were known to each other prior to the occurrence. The prosecutrix and the accused stayed together for a period of about 6 to 7 days and during this time, they had visited different places where people from the public were also available but the prosecutrix did not raise any alarm nor expressed her grievance in regard to her alleged kidnapping or sexual assault. The learned trial Court, in view of the facts elicited during cross-examination of the prosecutrix, has rightly concluded that the prosecutrix was a consenting party to sexual relationship.

The core issue for adjudication is, whether the prosecution is successful in proving that the victim was less than 16 years of age in July, 2008.

To answer this issue, the Court has to advert to the testimonies of Pehlad Singh (complainant), paternal uncle of the prosecutrix, the prosecutrix herself, Dr. B.B. Aggarwal, SMO General Hospital, Gurgaon PW6, Vijay Pal Shastri, Sanskrit Teacher of Saraswati High Court, Bhangrola PW10.

Pehlad Singh in the opening lines of his examination has deposed that the prosecutrix aged 15 years, student of 10th class is his niece. The prosecutrix in her deposition has described herself to be 15 years old. Dr. B.B. Aggarwal proved his report Ex. PJ/1 wherein it was opined on the basis of medical examination, X-ray examination etc. that the prosecutrix was 141/2/15 years old on 14.07.2008. Vijay Pal Shashtri PW10, deposed on the basis of record, that in the Students Admission & Withdrawal register of Saraswati High School, Bhangrola against entry at Sr. No. 475 pertaining to the prosecutrix, her age is mentioned as 12.08.1994.

There is no denial that ossification test is not foolproof method of determining the age of examinee and invariably the opinion regarding age admits variation of 2 years on either side. Equally settled is that benefit of variation on higher side is liable to be extended to the accused. The evidence in view of the testimony of PW10 also cannot form the basis to hold that the prosecutrix was born on 12.08.1994 as the entry in admission or withdrawal register was neither made by the witness nor the witness has deposed as to at whose instance the entry was made in the school records. This apart, Saraswati High School from Bhangrola was not the first institution joined by the prosecutrix as she has deposed that she was got admitted in S.M.L. Ganga Public School village Baskulsa in first class. The prosecutrix is the eldest amongst her siblings i.e. 4 brothers and sisters. She was, indisputably, a student of 10th class in Saraswati High School at the relevant time. Pehlad Singh, her paternal uncle has stated her age to be 15 years but has not described date, month and year of her birth. To the misfortune of the accused, during cross-examination of Pehlad Singh, it was revealed that prosecutrix''s father Sattan was married in 1993. A relevant extract from cross-examination of Pehlad Singh in this regard reads as follows:-

The prosecutrix''s father Sattan was my real brother He has four children. The prosecutrix is eldest. He was married in 1993.

There is no challenge to this fact brought during cross-examination of Pehlad Singh that the prosecutrix''s father was married in 1993. The prosecutrix being the eldest child of the family could have born, at the earliest, after 9 months of marriage of Sattan. In these circumstances, it can be safely concluded that the prosecutrix was either born in the year 1993 or 1994 which is in consonance with her date of birth recorded in Saraswati Public School as well as opinion given by the doctors on the basis of ossification test. As the prosecutrix was less than 16 years of age at the time of occurrence, the appellant cannot escape his liability for committing the offence of kidnapping and rape. In this view of the matter, I find myself unable to accept the contention of the appellant that the learned trial Court has committed any error in holding that the prosecutrix was less than 16 years of age or to reverse those findings in favour of the accused.

The offence was committed in July 2008. The appellant has already suffered actual custody for a period over 5 years. He was a young boy of about 22 years at the time of occurrence. There is no other criminal case registered against him. The prosecutrix and the accused had acquaintance with each other prior to the occurrence.

In the light of cumulative effect of facts and circumstances discussed hereinabove, the substantive sentence awarded to the appellant for offence punishable u/s 376 IPC is reduced to rigorous imprisonment for a period of 7 years.

As a result, the appeal is partly allowed in the aforesaid terms. The appellant, if on bail, be taken into custody to suffer the remaining sentence.