Jai Kumar and ors. vs State of Haryana

K.P.S. Sandhu, J.—Three appellants, namely, Jai Kumar aged about 17 years, Kukoo alias Rajnish aged 22 years and Pawan Kumar aged 23 years stand convicted and sentenced as under by the Additional Sessions Judge, Ambala, vide his order dated 28th March, 1984 :

(1) All the appellants were convicted and sentenced under section 376 I.P.C. to rigorous imprisonment for four years and a fine of Rs. 500 each, in default further rigorous imprisonment for two months.

(2) Jain Kumar and Pawan Kumar appellants were convicted under section 366 of the I.P.C. to rigorous imprisonment for two years and a fine of Rs. 250 each in default future rigorous imprisonment for one months.

(3) Jai Kumar and Pawan Kumar appellants were convicted and sentenced under section 363 of the Indian Penal Code to rigorous imprisonment for one year and a fine of Rs. 250 each, in default further rigorous imprisonment for one month.

(4) All the appellants were convicted and sentenced under section 506 of the Indian Penal Code to rigours imprisonment for one month each.

(5) All the appellants were further convicted and sentenced under section 341 of the Indian Penal Code to rigorous imprisonment for ten days each.

All the substantive sentences of imprisonment were ordered to run concurrently.

On the night between 10th and 11th July, 1983, Salma Khatoon prosecutirx PW4 was sleeping in her house where her sisters, brothers and father were also sleeping on their respective cots. Her mother was also sleeping at some distance. At about midnight she went to answer the call of nature since she felt pain in her stomach. She went three or four killas away from the place where she was sleeping. While she was on her way back after attending the call of nature Jai Kumar and Pawan Kumar appellants met her and forcibly dragged her to a nearby sugarcane field at a distance of 1 or 11/2 killas from the village pond. Jai Kumar gagged the mouth of the prosecutrix and Pawan Kumar committed rape upon her. She was kept in the sugarcane field for the whole of the night and again raped. On the next morning, i.e. 11th July, 1983, at about 5 a.m. Kukoo also came there and he also committed rape upon her. She was threatened with dire consequence by all the appellants if she disclosed the incident to anybody. On 12th July, 1983, however, she escaped and came to her home and narrated the whole occurrence to her father. Her father had earlier on 11th July, 1983, lodged a report, Exhibit PQ, at Police Station, Chhachhrauli, under section 363 and 396 of the Indian Penal Code. The prosecutrix was medically examined by Dr. Mrs. C.K. Shukla on 12th July, 1983, at 8 p.m. The following is the report of her medical examination :

"Salma Khatoon was averagely built and nourished. ..... Height 5 feet. Teeth upper jaw/lower jaw 14 each permanent. There was no mark of injury anywhere on the body.

Secondary sex characteristics : Breasts were well developed. Pubic hair were black and well developed. Axllary hair black but sparse.

Genitals : No mark on injury on thighs or external genitals. Pubic hair were black, well developed and not matted. No dried stains on the external, genitals. Hymen was represented by tags of shrunken granular tissue. The vagina admitted two fingers easily. Cervix was forward and uterus was retroverted and normal in size.

Salma Khatoon PW was radiologically examined by Dr. K.C. Maruwah PW 3 on 14th July, 1983, to determine her age. He came to the conclusion that she was between 14 and 16 years of age. The salwar, Exhibit P1 of the prosecutrix and her vaginal swabs were sent for chemical Examination. According to the report of the Chemical Examiner, Exhibit PW, human semen was detected on the salwar and vaginal swabs. All the appellants were arrested on 13th July, 1983. They were medically examined by Dr. S.S. Mehta PW 5 on 14th July, 1983, and he found all of them fit to perform sexual intercourse. After due investigation the appellants were sent up for trial.

When examined under section 313 of the Code of Criminal Procedure, the appellants pleaded false implication. In defence they examined Peer Diya DW 1. He stated that the sugarcane crop was only mudha and not a regular sugarcane crop. Zorawar Singh DW2 stated that Salma Khatoon was born in the year 196364.

The prosecution, apart from Dr. Mrs. C.K. Shukla PW2, Dr. K.C. Maruwah PW3 and Dr. S.S. Mehta PW5 examined Shri A.K. Raghava, JMIC, Jagadhri. He recorded the statement of Salma Khatoon on 26th July, 1983, under section 164 of the Code of Criminal Procedure. PW 4 is Salma Khatoon herself. PW 6 Mahboob Hassan Headmaster, Madrasa Rahimia Faiz eKarimi, Masjid Pathana, Khizrabad East, brought the school record and produced copy of the same Exhibit PN. According to this document, the date of birth of Salma Khatoon was 17th July, 1968. PW 7 Gurdial Singh Patwari stated that only mudha crop was standing in the field in question. PW. 8 Ajijudin father of Salma Khatoon lodged the first information report and stated that the age of her daughter was about 15 years at the time of the occurrence. Assistant SubInspector Hari Krishna investigated the case and proved a report under section 173 of the Code of Criminal Procedure made by SubInspector Amar Nath.

According to the report of the radiologist, the age of the prosecutrix is between 14 and 16 years. He further stated that the radiological examination was not a sure test of age. No birth entry regarding the birth of Salma Khatoon has been produced by the prosecution. There is no evidence on record to show who got the entry made in the school register the copy of which Exhibit PN. Otherwise also, it has been held time and again that a school leaving certificate is not a conclusive proof of the age of a person. PW 8 Ajijudin father of the prosecutrix has stated that he has seven children and that Salma Khatoon is the youngest one. He stated that he got married in 1949, the first child was born after a year and thereafter every child was born at an interval of two years. According to this statement of Ajijudin, the age of the prosecutirix comes to 19 years approximately. So, in view of the vidence, it cannot be said with certainty that the age of the prosecutrix was less than sixteen years at the time of the alleged occurrence. According to the medical evidence, the hymen of the prosecutrix had an old tear, she was habituated to sexual intercourse and no injury whatsoever was found on her person. Neither any injury was found on the persons of the appellants. The medical evidence thus shows that the prosecutrix was a girl of easy virtue. According to her own statement, although a number of her family members were sleeping in the house she never cared to take anybody along with her when she went out at the dead night for easing herself. It is further strange that she travelled about four killas for the purpose although, according to her father, their house was situated at an isolated place. It looks very probable that she was carrying on with all or some of the appellants and that she went away of her own. The absence of any injury on the prosecutrix and the appellants and the fact that even the glass bangles of the prosecutiex remained intact go to show that no force was used against her and that she did not put up any resistance.

According to the statement of the prosecutrix, she escaped from sugarcane field at 4 p.m. on 12th July, 1983, but strangely enough, Hari Krishan Assistant SubInspector who investigated the case stated on oath that he had prepared the site plan at about 2 p.m. and recorded the statement of the prosecutrix at 1.45 p.m. on 12th July, 1983. This fact also falsifies the version given by the prosecutrix. It appears that she had gone of her own for enjoying sex with the appellants and ultimately a false case has been cooked up against the appellants. In this view of the matter, the appellants are entitled to the benefit of doubt. Consequently I allow their appeal and set aside their conviction and sentence. The fine, if recovered, would be refunded to the appellants.