Kali Charan vs State of Haryana

T.H.B. Chalapathi, J.

The appellant was convicted for the offences under Section 363/366 and 376, Indian Penal Code. He was sentenced to undergo rigorous imprisonment for three years and fine of Rs. 200/ for the offence under Section 363, I.P.C., rigorous imprisonment for five years and fine of Rs. 500/ for the offence under Section 366, IPC and seven years'' rigorous imprisonment and fine of Rs. 2000/ for the offence under Section 376, IPC by the learned Additional Sessions Judge, Faridabad in Sessions Case No. 33 of 1990 dated 14.8.1991.

According to the case of the prosecution, one Prabhu Dayal who is resident of Faridabad has six children and Bimla is eldest daughter of Prabhu Dayal. The accused used to stay in the neighbourhood of Prabhu Dayal. There is one Premwati who is also neighbourer of Prabhu Dayal. The children of Prabhu Dayal used to visit the house of Premwati to watch the Television. Thus, the accused and Bimla, daughter of Prabhu Dayal developed intimacy. On 27.6.1987 Premwati went to the house of Prabhu Dayal and asked Bimla to have a round of her house to find out the position of her child. So Bimla went to the house of Premwati where the accused was also present. Then, the accused showed a knife to Bimla and put her in fear and asked Bimla to accompany him. Thereafter Bimla was taken by the accused to a house under construction in Sector 21 of Faridabad and kept her there for a night and sexually assaulted her against her wishes. Thereafter, he took her to a place called Khair in Aligarh district of Uttar Pradesh and was kept there for a month. During this period, the accused sexually assaulted Bimla without her consent. On coming to know that the police was after them, the accused shifted Bimla to Dehradun and confined her there and sexual intercourse was committed with her. Bimla became pregnant there but it was terminated. Bimla also became pregnant for the second time and gave birth to a still born child. The accused kept Bimla at Dehradun for more than two years. During their stay at Dehradun, one Manoj Kumar and Chaman Lal used to visit the house of accused and Bimla. Bimla narrated her story to Manoj Kumar and asked him to take her to Faridabad to her parents. Thereafter, Manoj Kumar took Bimla to Faridabad and she was taken to the police station and police recorded her statement on 24.2.1990. At this stage, it may be mentioned here that after the accused took away Bimla, on 29.6.1987 her father Prabhu Dayal lodged a report to the police that Bimla was missing. On the basis of that complaint of Prabhu Dayal, a case was registered in FIR No. 239 dated 30.6.1987 but the police could not trace out her till February, 1990 when she was produced by Manoj Kumar at Faridabad. Thereafter, the accused was arrested on 8.5.1990. The police during the course of investigation also sent Bimla for medical examination. After completion of the investigation, the police filed a charge sheet against the accused for the offences under Sections 363/366 and 376, IPC. In order to prove the case of the prosecution, 13 witnesses were examined and documents were also marked. On completion of the prosecution evidence, the accused was examined under Section 313, Cr.P.C. According to the accused, Bimla fell in love with him and on 26.7.1987 Bimla voluntarily accompanied him to Haridwar and then to Dehradun. At Haridwar in the temple of Shiva he married Bimla and that Bimla lived with him at Dehradun for more than two years as his wife and Bimla came there alongwith him and he did not compel her to accompany him and that he has been falsely implicated in this case. The accused did not adduce any evidence in defence. On a consideration of the evidence on record, the learned Additional Sessions Judge, Faridabad held the accused guilty for the offences under Section 363/366 and 376, IPC and sentenced him as indicated above. Aggrieved by the said convictions and sentences recorded by the learned Additional Sessions Judge, Faridabad, the accused preferred the above appeal.

It is to be seen whether the convictions and sentences recorded by the learned Additional Sessions Judge, Faridabad can be sustained.

There is no dispute of the fact that the accused was residing in the neighbourhood of Prabhu Dayal father of Bimla at Faridabad and that there was intimacy between the accused and Bimla. It is an admitted case that on 27.6.1987, the accused took Bimla from Faridabad and they went to Haridwar and from there to Khair and then to Dehradun and stayed at Dehradun for more than two years. PW10 is the prosecutrix Bimla. She deposed that at about four years prior to her giving evidence, Premwati asked her to visit her house to enquire about the position of her new born child as her child was found sleeping when she went there twice. When she visited the house of Premwati for the third time, the accused was also there and he asked her to accompany him. He threatened that if she refused, he would kill her parents and her also. Then they left the house of Premwati and the accused took her to a house under construction in Sector 21 of Faridabad and he kept her there for one night and committed sexual intercourse with her against her wishes. Then he took her to Khair in district Aligarh (U.P.) and they lived the for one month and he committed sexual intercourse with her forcefully. Some one from the village of the accused came there and informed the accused that the police was after him and that he would be thrashed. Thereupon, they moved to Dehradun. The accused continued to assault her and committed sexual intercourse with her forcefully and she became pregnant. A still born child was born to her at Dehradun. She further stated that she used to work as labourer in the fields at Dehradun while the accused used to guard her. After some time the accused turned her out from the house at Dehradun. When she told Manoj who was also living in the neighbourhood and gave him her address of Faridabad, then Manoj brought her to Faridabad and dropped her at her parents'' house but she was not allowed to enter the house by her parents and she went to NIT Police Station, where the police recorded her statement. In the crossexamination, she stated that she did not raise any alarm on the first day when she was taken by the accused and when she was taken to Khair in the bus, she did not raise any alarm either during the travel in the bus or after reaching Khair. She also did not raise any alarm during her stay at Dehradun. She further stated that her first pregnancy of three months was aborted and then she gave birth to a still born child. She further stated that in the buses in which they travelled, there were other passengers also. She further stated that she married to Chaman Lal on 4.3.1990. She denied the suggestion that she solemnized the marriage with the accused at Haridwar.

Thus, it is evident from the evidence of PW 10, the prosecutrix, that she was taken to Khair in Aligarh district and was kept there for one month and from there they went to Dehradun and she lived with the accused for more than two years at Dehradun. In order to establish that the accused while taking away Bimla, PW10, threatened her and put her to fear by showing a knife, there is no other evidence except the testimony of PW10. Premwati who is said to have asked to PW10, to go to her house to see her child, was not examined in this case. No explanation was given by the prosecution for nonexamination of Premwati. It is in the evidence of PW10 that she did not raise any alarm when she was taken to Khair or Dehradun in buses. She stayed with the accused at Dehradun for more than two years. During this period of two years, she never complained to anybody that she was kidnapped by the accused and was brought to Dehradun by force and that the accused sexually assaulted her without her consent. It is also in the evidence that her first pregnancy was terminated and that for the second time she gave birth to a still born child. Therefore, it cannot be said that victim had no opportunity to narrate the incident to any other person either at Khair or at Dehradun. On a careful perusal of her evidence and the other material on the record, I am of the opinion that she accompanied the accused voluntarily and she went alongwith the accused of her own free will.

It is to be seen whether PW10 was below the age of 18 years to attract Section 363, Indian Penal Code. According to the case of the prosecution, PW10 is below the age of 16 years and, therefore, the conviction under Section 363, IPC has to be sustained. PW3 is the doctor who examined Bimla on 24.2.1990. According to her she was a young girl about 18 years of age i.e. at the time of her examination. Therefore, she was under the age of 16 years when she was taken away by the accused on 27.6.1987. PW2 is a Dental Surgeon. He examined Bimla on 27.2.1990 for verification of the age at the request of the police. According to him, the approximate age of Bimla was between 17 to 18 years. PW4 is a Medical Officer of B.K. Hospital, Faridabad, he conducted ossification test of Bimla and according to him the age of Bimla is between 161/2 to 19 years. PW7 is a Clerk in M.D. Senior Secondary School, Faridabad. He deposed that Bimla was admitted in the school on 23.4.1984 in 6th class and she left the school on 31.3.1987, after she failed in 8th class. He further deposed that according to school record, the date of birth of Bimla is 5.8.1972. Ex.PF is the Photostat copy of the school leaving certificate. According to PW8 who is father of the prosecutrix Bimla was born in village Nawalgarh (Haryana). Thus, from the evidence of PWs 2, 3 and 4, the age of Bimla in the year 1987 can be taken as below 18 years on 27.6.1987. Under Section 361, IPC, whoever takes or entices any minor under sixteen years of age, if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Therefore, the accused committed an offence punishable under Section 363, IPC. I, therefore, confirm the conviction of the accused for the offence under Section 363, IPC.

The accused was also convicted for the offence under Section 376, IPC. I have already held that Bimla went away with the accused out of her own free will. Therefore, I am of the opinion that she is a consenting party for the sexual intercourse between her and the accused. But under Section 375, IPC, a man is said to commit sexual intercourse with a woman with her consent when she is over 16 years of age, therefore, if the girl is below the age of 16 years, the consent becomes immaterial. It is, therefore, to be seen whether Bimla was under the age of 16 years on 27.6.1987 when she was taken away by the accused and when they had sexual intercourse with each other. As already pointed out, the evidence of PW2 shows that the approximate age of Bimla was between 17 to 18 years as on 27.2.1990 when Bimla was examined by PW2. Therefore, according to PW2 Bimla must be below the age of 16 years on 27.6.1987. PW3 is a lady doctor who also opined that Bimla was a girl of 18 years of age when she examined her on 24.2.1990. PW4 conducted the ossification test. According to him the age is between 161/2 and 19 years as on 27.2.1990. Thus, she must be below the age of 16 years as on 27.6.1987. PW7 produced the school leaving certificate of Bimla which shows that date of birth of Bimla as recorded in the school register is 5.8.1972. Therefore, she must be about the age of fourteen years, ten months on 27.6.1987. Viewing from the angle, I am of the opinion that Bimla was under the age of 16 years at the time when she was taken away by the accused from Faridabad. The accused himself admitted having sexual intercourse with Bimla when she was with him at Khair and Dehradun. As already pointed out when the girl was below the age of 16 years, the consent is immaterial. Therefore, I am of the opinion that the accused was rightly convicted for the offence under Section 376, IPC.

In view of my foregoing discussion, I confirm the conviction of the accused for the offences under Sections 363/366 and 376 IPC.

The accused was sentenced to undergo rigorous imprisonment for a period of three years and pay a fine of Rs. 200/ for the offence under Section 363 IPC, five years'' rigorous imprisonment and fine of Rs. 500/ for the offence under Section 366, IPC. I do not find any ground warranting interference with the sentences imposed by the learned Additional Sessions Judge, Faridabad on the accusedappellant for the offences under Sections 363 and 366, IPC. The said sentences are, therefore, confirmed. The learned Additional Sessions Judge, Faridabad further sentenced the accused to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 2,000/ for the offence under Section 376, IPC. The accused was aged about 22 years at the time of incident. The evidence on record clearly shows that the accused and Bimla were on intimate terms and from the evidence on record, I have come to the conclusion that Bimla went along with the accused voluntarily though she was under the age of 16 years. In these circumstances, I am of the opinion that the maximum sentence of seven years need not be imposed on the accusedappellant. I, therefore, set aside the sentence of seven years'' rigorous imprisonment and a fine of Rs. 2,000/ imposed on the accusedappellant for the offence under Section 376, IPC and instead sentence the accused to undergo rigorous imprisonment for a period of five years. All the sentences imposed on the accusedappellant shall run concurrently and the accused is entitled to have a set off of the period of his detention during the investigation and trial against the sentence of imprisonment under Section 428, Cr.P.C.

Subject to the modification in the sentence as aforesaid, the appeal is dismissed.