Jai Narain vs State of Haryana

Gopal Singh, J.—These are two appeals. Criminal Appeal No. 951 of 1968 is by Raja Ram and Criminal Appeal No. 1135 of 1968 is by Jai Narain. The appellants have been convicted by the IInd Additional Sessions Judge, Karnal by his judgment dated September 30, 1968. Raja Ram appellant has been convicted u/s 366, Indian Penal Code and sentenced to rigorous imprisonment for 11/2 year and to pay fine of Rs. 50.00 or in default of payment of fine to undergo further rigorous imprisonment for two months. Jai Narain has been convicted u/s 376. Indian Penal Code and sentenced to rigorous imprisonment for six years and to pay fine of Rs. 500.00 or in default of payment of fine to further suffer rigorous imprisonment for six months. The two appeals having arisen out of the same judgment are being disposed of together.

Santosh Rani prosecutrix is the daughter of Narain Dass resident of village Jor Majra in the district of Karnal. Jai Narain appellant, who is resident of village Muradgarh close to village Jor Majra visited the house of Narain Dass to treat his ailing sons Subhash Chander and Jagjit Singh. After the two boys were recovered from their ailments, the appellant continued visiting the house of Narain Dass. Narain Dass came to have implicit faith in him and treated him as his Guru. The appellant persuaded the prosecutrix that she should accompany him as she was not being satisfactorily looked after by her poor parents Once Narain Dass saw the appellant talking to the prosecutrix. He asked the appellant not to be free with the girl and not to visit the house. He reprimanded his daughter by telling her that she should not be free with him. Jai Narain started sending messages through Raja Ram appellant. The house of Raja Ram appellant is at a distance of 5 or 6 karams from the house of Narain Dass. Raja Ram appellant as desired by Jai Nirain appellant persuaded the prosecutrix to go with him to Jai Narain.

On April 4 1968, Raja Ram appellant contacted the prosecutrix for the purpose of accompanying him to Jai Narain Raja Ram sent his daughter Sona to the prosecutrix. The prosecutrix came to the house of Raja Ram appellant where he told her that she should come to his house at midnight On the night between April 4 and 5, 1968. the prosecutrix got up. She went to the house of Raja Ram. Raja Ram, appellant, took her to Bhishamwala well. At the time they arrived at the well. Jai Narain was not present there. Raja Ram left her there at the well and himself proceeded to fetch Jai Narain. Raja Ram brought Jai Narain there and handed over the prosecutrix to him.

On April 5, 1968, Abinash Kumar, son of Narain Dass informed his father at 9.00 a. m. at Karnal that the prosecutrix was missing Both of them reached the village at 10.00 a. m. From his village Narain Dass proceeded to the village of Jai Narain appellant but the appellant was not available there. He lodged report Exhibit P.W. 1/3 on the basis of which formal first information report was registered at Police Station Indri on April 5, 1968 at 4.00 p.m. In pursuance of the report, Tirlok Singh Head Constable went to village Muradgarh. There he searched the Dera of Jai Narain appellant. He recovered letter Exhibit P. W. 1/4 dated December 4, 1967 addressed by Narain Dass to Jai Narain appellant dissuading him from making any visits to his house. He took that letter in possession.

According to the prosecution case, Jai Narain appellant took the prosecutrix from Bishamwala well to Garhi Jatan. She accompanied him to the fields. She was raped there under threat by show of knife. Jai Narain appellant contacted Mam Raj Sarpanch of village Garhi Jatan.

That Sarpanch arranged for stay of both of them in the school of the village They left the village with the night fall and they reached on foot Kurukshetra the following day. After having dip in the tank, they reached Pehowa at 5.00 p.m. by bus. Certain garments and cosmetics were purchased by the appellant for the girl at Pehowa. From there jai Narain took the prosecutrix to Keorak where his aunt was residing. Both stayed in the chobara of the house of his aunt at night. The prosecutrix was again raped on that night. When the girl objected to it the appellant told her that if she cried or wept, she would be killed. The following day to the appellant committed rape upon the girl From Keorak, they proceeded to Salwan. There they stayed with the married sisters of the appellant. The appellant had sexual intercourse with the girl against her wishes every night during their three days'' stay there. From there, they reached village Shambli.

Finding that the girl and the appellant were not being traced and some clue had been given to him that they could be towards the side of Police Station Nissang, Ram Shah. Station House Officer of Police Station Indri proceeded there on April 12, 1968. On April 13, 1968, the appellant informed the prosecutrix that they were being chased by the police. They left the village early in the morning. While Ram Shah, Station House Officer was present in Dera Ganga Singh along with Narain Dass father of the prosecutrix and three other persons, the appellant and the prosecutrix were seen coming and were taken in custody. At that time, the prosecutrix was holding jhola Exhibit P. 16 in her hand containing one suit, shawl and two chunis. It was taken in possession. Memo pertaining to its recovery is Exhibit P.W. 1/8. The suit which the prosecutrix was wearing at the time she was recovered was also taken in possession. Memo pertaining to its recovery is Exhibit P.W. 1/9. The appellant was carrying another jhola Exhibit P. 1, which contained various cosmetics apart from certain garments Exhibits P. 2 to P 14. Memo pertaining to recovery of this jhola is Exhibit P. W. 1/6. Dhoti of the appellant Exhibit P. 15 was also removed from his person and taken into possession. Memo pertaining to its recovery is Exhibit P. W 1/7.

Dr. Kaushalya examined the prosecutrix on April 13 1968. She found healed tear on the right margin of her hymen. No sign of injury on any part of the body of the girl was noticed. According to her, the girl was accustomed to sexual intercourse. Two vaginal swabs were prepared and sent to the Chemical Examiner for examination.

On April 15, 1968, Dr. L.R. Sardhana Radiologist X-rayed the prosecutrix. He gave the opinion that epiphysis of lower end of humerus and lateral and medial epicondvle had fused with its diaphysis, that epiphysis of lower end of radius and ulna had not fused with its diaphysis, that epiphysis of upper end tibia and fibula were partially fused with its diaphysis, that epiphysis of the upper end of humerus was partially fused with its diaphysis and epiphysis of illiac crest had not fused with its corresponding diaphysis. According to his X-ray examination, he gave the age of the girl between 151/2 and 17 years.

On the same day, Dr. V.K. Gupta examined Jai Narain appellant and gave the opinion that the appellant was capable of indulging in sexual intercourse.

In his report Exhibit P.W. 11/3, the Chemical Examiner found the pretence of semen on the Salwars of the prosecutrix and dhoti of the appellant. By a separate report Exhibit P.W. 11/4, the Chemical Examiner found semen in the swabs taken by Dr. Kushalya after examination of the prosecutrix. He also detected the presence of spermatozoa.

In course of investigation, Narain Dass produced before Ram Singh. Station House Officer, copy of entry Exhibit P.W. 1/2 showing the date of birth of the prosecutrix from the admission register. He also obtained copy of the entry of date of birth of the prosecutrix from the municipal records of Dera Bassi. It is marked as Exhibit P.W. 1/l.

The statement of the prosecutrix was recorded on April 17, 1968 by Shri C.L. Kalra, Judicial Magistrate 1st Class, Karnal u/s 164, Criminal Procedure Code. Raja Ram appellant was also arrested on April 17, 1968.

The appellants were brought to trial Jai Narain appellant was charged for offence under Sections 366 and 376, Indian Penal Code whereas Raja Ram was charged u/s 376 read with section 109, Indian Penal Code. The case of the prosecution was supported by the oral evidence of Narain Dass father of the prosecutrix P.W. 1, Santosh Rani Prosecutrix P.W. 2, Abinash Kumar P.W. 3, Smt. Tara Wanti P.W. 5 and Arjan Singh P.W. 9, who attested the various recovery memos The prosecution also relied upon the recoveries made in the case and the medical evidence.

Raja Ram appellant in his statement u/s 342 Criminal Procedure Code, pleaded ignorance about the occurrence and stated that he had been falsely implicated out of enmity with the father of the prosecutrix. In this statement, Jai Narain appellant admitted that he had been visiting the house of her father of the prosecutrix for treatment of her two brothers, that the girl had been throwing overtures to him. that her father reprimanded the girl from mixing with him and admitted letter Exhibit P.W. 1/4 having been addressed by her father to him dissuading him from visiting his house. The appellant also pleaded that Smt. Janko sister of the father of the prosecutrix and her grand-father contacted him in his village and a?ked from him about the reason for not visiting the house of Narain Dass father of the prosecutrix Smt. Janko also told him that the prosecutrix was sad and remorseful and was not taking food for days, that the girl was sent to Bhishamwala well by Smt. Janko at night according to the wishes of the prosecutrix and that he had taken her to various places. The appellant did not produce in defence any evidence. On behalf of the appellant, it was contended that the girl was major, that she had herself accompanied Raja Ram appellant and of her free will, chose to remain with Jai Narain appellant and consequently no offence could be held to have been committed u/s 366 or u/s 376, Indian Penal Code. The appellants were convicted and sentenced as detailed above.

Shri K.S. Keer, who appeared on behalf of Raja Ram appellant contended that even if the case of the prosecution as made out from the evidence of the prosecutrix herself and supported by the evidence of her father Narain Dass, her mother Smt. Tara Wanti, her brother Abinash Kumar P.Ws. is admitted to be correct, no offence could be said to have been committed by Raja Ram appellant u/s 3S6, Indian Penal Code.

According to the evidence of the prosecution, the prosecutix states that after first message had been received from Raja Ram to come to the house of the latter, she did not leave the house. It appears, at that time, she did not think it proper to leave the house. On receipt of message as conveyed through Smt Sona daughter of Raja Ram appellant, the prosecutrix contacted Raja Ram during day time in his house. She agreed with Raja Ram that she would accompany him to go to Bhishamwala well at midnight to meet Jai Narain appellant as other members of her family would be sleeping at that time. It is in her evidence that when she left her house at midnight, her father Narain Dass was sway to Karnal, her brother Abinash Kumar was not in the house but was sleeping in the field whereas her mother was sleeping inside the kitchen. She states that all her other brothers and sisters were also fast asleep. She was sleeping along with her younger sisters Tripta and Darshana outside in the courtyard. She herself got up at midnight and left the house and went to the house of Raja Ram appellant. From there she accompanied Raja Ram and went to the well of Bhishamwala. Leaving the prosecutrix at the well, Raja Ram brought Jai Narain appellant. Raja Ram then returned to his own village. The question, which arises is whether in the face of these facts stated by the prosecutrix, Raja Ram could be held to be guilty of offence u/s 366, Indian Penal Code. In order that an accused person may be guilty of offence u/s 366, Indian Penal Code. Prosecution has to show that the woman was kidnapped or abducted in order that she might be forced or seduced to illicit intercourse or knowing it to be likely that she would be so forced or seduced. In other words, the prosecution must show that there was either kidnapping or abduction. Section 361, Indian Penal Code, which defines ''Kidnapping'' says that when any person takes or entices any minor under the age of 18 if a female out of the keeping of lawful guardian of such minor without the consent of such guardian, commits kidnapping. The girl left the house of her father at midnight of her free will. Raja Ram appellant did not go to her house to persuade her and to bring her from there. She chose the dead of night when other members of the family were, according to her own statement, fast asleep. Soon after reaching the house of Raja Ram who she, says, was waiting for her and that suggests that she had on her visit during the day so settled with him, she agreed to accompany him to Bhishamwala well. These facts leave no doubt that she was neither enticed nor taken by Raja Ram from the lawful guardianship of her parents. She has herself chosen to accompany Raja Ram and to be with Jai Narain appellant. It could not be said that the girl went with Raja Ram either by use of force or on account of any kind of persuasion on the part of Raja Ram. Under the circumstances, it could not be held that the girl had been taken or seduced from the custody of her parents. The girl reached at that odd hour to carry into effect her own wish of being in the company of Jai Narain appellant. In view of these facts, it could not be held that Raja Ram was guilty of the act of either taking away the girl or seducing her out of the keeping of her parents. The word ''take'' implies want of wish and absence of desire of the person taken. Once the act of going on the part of the girl is voluntary and conformable to her own wishes and the conduct of the girl leaves no doubt that it is so, Raja Ram appellant could not be held to have either taken or seduced the girl. Nor it is a case of abduction because according to the term, ''abduction'' as given in section 362, a person commits the act of abduction if by force he compels or by any deceitful means he entices any person to go from any place. As discussed above, Raja Ram appellant never compelled by force the prosecutrix nor he adopted any deceitful means to entice her to go from her house to Jai Narain appellant. On the testimony of the girl, it could not be held that either there was any compulsion or any force was used or any deceitful means were adopted to entice the girl to leave her house. She hereself desired to leave the house and did it in the company of Raja Ram because she thought it would be safe for her on receipt of message from Jai Narain to go to him under the escort of Raja Ram, who is her neighbour. As such no act of abduction could be held to have been committed by Raja Ram appellant. Thus, Raja Ram appellant could not be held guilty either for kidnapping or for abduction when the girl, under circumstances narrated above as borne out from her testimony, went of her own free will. Thus no offence u/s 386, Indian Penal Code has been committed by him.

Shri N.C. Jain, appearing on behalf of Jai Narain appellant contended that there was no satisfactory evidence showing that the age of the girl was less than 16 years and she being a willing party to the sexual intercourse committed by Jai Narain with her, he could not be held guilty u/s 376, Indian Penal Code.

Narain Dass P.W. 1 father of the prosecutrix, Abinash Kumar P.W. 3 brother of the prosecutrix. Smt Tara Wanti P.W. 4 mother of the prosecutrix and the prosecutrix herself have stated that nine sons and daughters were born as a result of the wedlock of Narain Dass with Tara Wanti. They were married 20 years prior to the date of occurrence. Abinash Kumar P.W. is the eldest son. He was born in 1950. Thus, he was about 18. Santosh Rani prosecutrix and Subhash Chander were born twins. Other sons and daughters as deposed to by these witnesses are younger than Santosh Rani. All these witnesses have stated that the age of the girl was on the date of occurrence about 14 years.

According to the certified copy of the entry of birth of Santosh Rani Exhibit P.W. 1/1 prepared from the birth register maintained by the Municipal Committee of Dera Bassi, date of birth is August 5, 1954, whereas according to the relevant entry Exhibit P.W. 1/2 extracted from the school register, date of birth is April 12, 1954. There does appear to be some disparity in the two entries. In the school register, she is shown younger by 3 months 3 weeks. The occurrence took place on April 4, 1968 when she left the house of her father. On that day she was less than 14 No importance could be attached to the small disparity between the two ages given in the school register and the municipal birth register. It is the entry of the date of birth in the municipal register, which can be relied upon with confidence. It is a matter of common knowledge that parents while getting their children admitted into schools do not give the very exact dates on which birth takes place as entered in birth registers but date sround-about that date and it is also a matter of common knowledge that dates of birth given by parents at the time of admission of children in the schools are given later than the dates of birth given in the birth register. That explains the small disparity in the age of the girl in the two entries.

The evidence of the prosecutrix and her conduct of having chosen to meet Jai Narain appellant and to be in his company and having moved from place to place without complaining to anybody at any place shows that she is a willing partner to accompany the appellant to move about with him from place to place and to submit herself to sexual intercourse with him. According to the entries made both in the school register and the birth register, she is of the age of 14. Dr. L.R. Sardhana P.W. 4 has given evidence that according to the extent of fusion of ends of bones at the joints of arms and legs, the age of the girl could be between 151/2 and 17. As described by Dr. Kushalya P.W. 5, the girl is well developed. It will be safer in the face of the unimpeachable character of the evidence pertaining to the birth entry of the girl supported by the oral testimony of the parents of the girl to take that on the date of occurrence the girl was 14 years of age. In her case, the maximum age limit of 17 given by the Radiologist is not conformable to the entry of the date of her birth. There is nothing to show that that entry is wrong or could pertain to a child other than Santosh Rani. Even if the lower age limit of 151/2 years is adopted because of its being approximate to the age as proved by her birth entry, she would be less than 16.

In the result, the appeal of Raja Ram is allowed and he is acquitted and the appeal of Jai Narain is disallowed and his conviction and sentence are maintained.