Krishan Kumar vs State of Haryana

R.L. Anand, J. (Oral)

Krishan Kumar son of Medu Lal has filed the present criminal appeal and it has been directed against the judgment dated 20.11.1998 and order dated 21.11.1998, whereby the learned trial court convicted the appellant under Sections 363, 366, 376 and 506 I.P.C. and sentenced him to undergo R.I. for a period of two years and to pay a fine of Rs. 2,000/, in default of payment of fine to further undergo R.I. for six months, under Section 363 I.P.C., to undergo R.I. for a period of three years and to pay a fine of Rs. 2,000/, in default of payment of fine to further undergo R.I. for nine months, under Section 366 I.P.C.; to undergo R.I. for a period of seven years and to pay a fine of Rs. 5,000/, in default of payment of fine to further undergo R.I. for 1 years, under Section 376 I.P.C. and to undergo R.I. for a period of three months and to pay a fine of Rs. 2,000/, in default of payment of fine to further undergo R.I. for 22 days, under Section 506 I.P.C. The trial court also held that all the substantive sentences awarded to the appellant shall run concurrently.

The brief facts of the case can be gathered and summarised as follows :

Jai Kumar PW9 was having six children. Prosecutrix Mamta PW7 was his eldest daughter and according to the complainant she was about 15 years of age as on 13.6.1996. She was a student of 10th class and was studying in Govt. Girls Senior Secondary School, Karnal. On 13.6.1996 due to summer vacations she did not go to the school. Her father was employed in Social Welfare Department, Karnal. The appellant was known to her as he used to reside in the neighbourhood and the prosecutrix used to treat him as her brother and tied Rakhi on his wrist. Sunita was a class fellow as well as a friend of the prosecutrix due to which appellant and Sunita developed intimacy with each other. On 13.6.1996 the prosecutrix left her house on a bicycle to offer prayer at the Peer. The appellant met the prosecutrix on the way and forcibly took her on a motorcylce to his house where he committed rape upon her without her consent and will. He also threatened the prosecutrix to kill her in case she disclosed this fact to anybody. After that the prosecutrix was taken by the appellant to Panipat where she was kept in a room for three months and was raped repeatedly without her consent. She was also given beatings. The mother of the appellant came after some time and she brought the prosecutrix and the appellant to Karnal and produced the prosecutrix in the Court, where her statement Ex.Dy was recorded. A case of kidnapping and rape was registered against the appellant on the basis of statement made by Jai Kumar PW9, the father of the prosecutrix, when he failed to trace out the prosecutrix. He also suspected the involvement of the appellant in the kidnapping of her daughter. The statement of Jai Kumar is Ex.PG. The appellant was arrested on 10.10.1996. Prosecutrix was also produced in the court on 11.10.1996 and her statement under Section 164 Cr.P.C. was recorded by Miss Shalini Singh, Judicial Magistrate Ist Class, Karnal. The prosecutrix was medicolegally examined by PW1 Dr. (Mrs.) Naresh Saini, who gave her report Ex.PA/1. The doctor also prepared slides after taking secretions of posterior fornices and handed over the same to the police. On the same day, appellant was also got medicolegally examined from PW8 Dr.S.S. Wadhwa, who gave his report Ex.PF. Site plan of the place of occurrence Ex.PB was prepared. On 14.10.1996 the prosecutrix was radiologically examined. Birth certificate of the prosecutrix Ex.PH was collected which was taken into possession vide recovery memo Ex.PL. Statements of the witnessed were recorded. After the receipt of the report of Forensic Science Laboratory Ex.PE and conducting other usual investigations, a challan under Sections 363, 366, 376 and 506 I.P.C. was presented in the Court of Area Magistrate, who supplied the copies of the documents to the appellant and vide commitment order dated 12.11.1996 he committed the appellant to the Court of Session in order to face the trial.

Vide order dated 19.12.1996 the appellant was chargesheeted under Sections 363, 366, 376 and 506 I.P.C. The charges were read over and explained to the appellant to which he pleaded not guilty and claimed a trial.

In order to prove the charge, the prosecution examined Dr. Naresh Saini PW1, Constable Prem Kumar PW2, HC Ram Narain PW3, Constable Joginder Singh PW4, ASI Rajbir Singh PW5, HC Balbir Kaur PW6, Mamta Devi prosecutrix PW7, Dr. S.S. Wadhwa PW8, Jai Kumar PW9, ASI Ram Karan PW10 and ASI Sube Singh PW11. The prosecution also tendered into evidence report of the office of Director, Forensic Science Laboratory Ex.PE, who found human semen on the salwar, slides and the underwear of the prosecutrix.

On the closure of prosecution evidence, statement of the appellant was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to him. Appellant denied those circumstances and stated as follows :

"I have been falsely implicated. I did not commit rape upon Mamta. I also did not kidnap her, rather she met me near railway station, Panipat and she stayed with me for about three months with her free consent and we lived together as husband and wife. I have been falsely implicated in this case."

In defence, the appellant examined DW1 Mr. V.P. Gupta, Chief Judicial Magistrate, Panchkula, who recorded the statement of Mamta Ex.DY. Dr. Sham Wadhwa, Radiologist, who radiologically examined Mamta on 14.10.1996 was also recalled for crossexamination in defence, who gave the approximate age of the prosecutrix between 16 and 17 years by further stating that there is a possibility of variation of two years on either side. He proved Ex.DZ/1, the ossification test report of the prosecutrix besides the xray films.

The learned trial court held vide para Nos. 19, 20 and 21 of the judgment that prosecutrix was less than 16 years of age on the date of the alleged commission of crime and, therefore, consent on her part is immaterial. For that reason the appellant was convicted and sentenced for the offence highlighted above and aggrieved by his conviction and sentence, the present appeal.

I have heard Mr. Narottam Kaushal, Advocate, on behalf of the appellant, Mr. J.S. Ahlawat, Advocate, on behalf of the State and with their assistance I have gone through the records of this case.

Before I proceed further, I would like to incorporate in verbatim the discussion and the case law which has been relied upon by the trial court in holding that the prosecutrix was less than 16 years of age on the date of commission of the crime, as under :

"19. But the learned defence counsel has tried to dislodge the case of prosecution mainly on two counts. The first limb of arguments is that the prosecutrix was more than 16 years of age at the time of occurrence and secondly, she was a consenting party. First of all, in order to show that the prosecutrix was more than 16 years of age the learned defence counsel referred to the statement of prosecutrix given before Shri V.P. Gupta, then Judicial Magistrate Ist Class, Karnal on 10.10.1996 as Ex.DY wherein she stated her age as 19/20 years. The prosecutrix has not denied making this statement in the court. Then, it is an admitted case of the prosecution that on 14.10.1996, the prosecutrix was radiologically examined by PW8 Dr. S.S. Wadhwa, who gave his report Ex.DZ/1. A perusal of this report shows that he found the prosecutrix to be aged between 16 and 17 years. There is possibility of variation of two years on either side. Thus it also shows that the prosecutrix was more than 16 years at the time of occurrence. For this, a reference has been made to the ratio of law laid down in cases of Om Parkash @ Mitha @ Prem v. State of Haryana, 1997(1) Recent Criminal Reports 741 and Molu Ram v. State of Haryana, 1986(2) Recent Criminal Reports 142 wherein it was held that report of radiologist can err by 2/3 years on both sides. Age more favourable to the accused has to be accepted by court. Thirdly, though in the school certificate Ex.PH, the date of birth of prosecutrix has been given as 7.9.1980 but the same is unable to show that she was less than 16 years of age at the time of occurrence. It is well settled that entry in the school record has very little evidentiary value. For this, reliance has been placed upon the ratio of law laid down in cases of Kala Singh v. State of Punjab, 1996(3) Recent Criminal Reports 343, Om Parkash @ Mitha @ Prem v. State of Haryana (supra) and Molu Ram v. State of Haryana (supra). Thus, all these factors taken together show that the prosecutrix was more than 16 years of age at the time of occurrence. So, it is not proved that she was minor and was unable to understand the act of the accused. So, he did not commit any offence as argued by the learned Public Prosecutor.

The learned defence counsel has tried to prove the age of prosecutrix as more than 16 years at the time of occurrence and referred to her statement Ex.DY made before DW1 Shri V.P. Gupta and report of ossification test Ex.DZ/1, but the same are unable to show the age of the prosecutrix as more than 16 years at the time of occurrence. First of all, it is an admitted case of accused that in the year 1996, the prosecutrix was a student of 10th Class. It is highly improbable that a girl of 18 years would have been a student of 10th class and particularly when parents start sending a child aged between 4 to 5 years to a school. The version of prosecutrix is consistent that she was aged about 14/15 years and a student of 10th class at the time of occurrence. The accused was not able to shatter her this testimony in any way despite lengthy crossexamination. Though, she made a statement Ex.DY in the Court on 10.10.1996 showing her age as 1920 years but she explained this fact in her crossexamination wherein she specifically to that she was compelled to state her age as 1920 years before the Magistrate as she was under threat of the accused. For the sake of arguments, she may be telling lie but PW1 Dr. (Mrs.) Naresh Saini, medicolegally examined her and observed her age as 14/15 years. Similar is the version of her father PW9 Jai Kumar. Then in the middle standard examination certificate Ex.PH, the date of birth of prosecutrix has been given as 7.9.1980 which shows that she was less than 16 years of age at the time of occurrence. Though, the learned defence counsel placed reliance upon the ratio of law laid down in the cases of Kala Singh v. State of Punjab, Om Parkash @ Mitha @ Prem v. State of Haryana and Molu Ram v. State of Haryana (supra), to show that entry about the date of birth in school record carries no weight, but a contrary view has been taken in cases of Naresh Kumar v. State of Punjab, 1995(2) Recent Criminal Reports 450 and Satpal @ Vijay Kumar v. State of Punjab, 1997(2) Recent Criminal Reports 119 wherein it was held that when there is no evidence on the file to show that entries in the school record are not correct, the date of birth as entered in the school register is admissible in evidence. Moreover, the statement Ex.DY recorded by the prosecutrix in the court under Section 164 Cr.P.C. cannot be considered as a piece of evidence. That statement can only be used for contradicting the witnesses. This view was taken in case of Om Parkash v. State of Haryana, (sic). The contention of learned defence counsel is that the report of radiologist Ex.DZ/1 shows the age of prosecutrix between 16 to 17 years and relied upon the ratio of laid down in cases of Om Parkash @ Mitha @ Prem v. State of Haryana (supra) and Molu Ram v. State of Haryana (supra). But a contrary view was taken in case of Baldev Singh v. State of Punjab, 1989(2) Recent Criminal Reports 457 wherein it was held that benefit of variation in age cannot be given to accused where prosecutrix is well nourished with healthy heritage. It was also held that variation of age in respect of persons who are well nourished with healthy heritage grow faster and their bones fuse earlier. Thus, the contention of learned defence counsel that the benefit of variation in age of the prosecutrix be given to the accused, is untenable.

Thus, due to my discussion above, it is proved that prosecutrix was not more than 16 years of age at the time of occurrence. So, she being a minor was kidnapped by the accused for sexual intercourse."

The learned counsel for the appellant made an endeavour to convince to this Court that prosecutrix was a matured girl and she was more than 16 years of age as on 13.6.1996 and she left the house of her parents of her own accord and she went with the appellant with her own free will and consent and also lived at Panipat as husband and wife and in these circumstances no offence under Section 376 I.P.C. much less under Sections 363, 366 and 506 I.P.C. are made out. In support of his contention the learned counsel for the appellant has relied upon ossification test report Ex.DZ/1, photograph of the prosecutrix along with the appellant besides her statement which was recorded by the Magistrate in which the prosecutrix had given her age as 19/20 years. With that background Mr. Kaushal submitted that once it is established on the record with reasonable certainty or that if benefit of variation of two years is given to the accused on the basis of ossification report, there is no difficulty in holding that prosecutrix was more than 16 years of age as on 13.6.1996. She had submitted herself with consent before the appellant and in these circumstances the ingredients of Section 376 I.P.C. are not made out. She had a soft corner for the appellant as she had written several letters to the appellant indicating that the prosecutrix had the tendency to leave the house of her parents and in these circumstances the appellant could not commit the offence under Sections 363 or 366 I.P.C. Mr. Kaushal also submitted that once it is established on the record that the prosecutrix submitted herself with her consent and wish for sexual purposes before the appellant, the offence under Section 506 I.P.C. could not be established as there was no threat or intimidation.

I have considered the submissions raised by the learned counsel for the appellant in depth with the help of the record but found those contentions wanting. When the prosecutrix is standing on the margin years near 16 or few months above 16, in such like cases the benefit of ossification test cannot be granted to the accused. Even the report regarding ossification test shows that there can be margin of 1 to 2 years on either side, then why not this benefit goes to the accused. This court is cognizant of the judgments delivered by the various High Courts as well as by the Hon''ble Supreme Court where it has been said that in a case of conflicting evidence, the benefit of age should be given to the accused. But in all those cases the evidence was ossification test. Here are certain circumstances which have also been highlighted by the trial court which will clinchingly show that Mamta prosecutrix was a girl of less than 16 years on the date of her alleged kidnapping and rape. The prosecution in this case has been able to prove on record the school leaving certificate of middle examination of the prosecutrix in which her age has been recorded as 7.9.1980. Meaning thereby she was less than 16 years by two months odd as on 13.6.1996. When the prosecutrix first time appeared before the doctor, she gave her age as 1415 years. Even the doctor in the M.L.R. had categorically stated that on appearance the prosecutrix appears to be 1415 years of age. A very significant factor has come in statement of PW1 Dr. Naresh Saini when she stated as follows :

"Age of menareche was one to two years back."

This finding of the doctor which has been recorded in the M.L.R. of the prosecutrix, and of course which has been recorded on the information of the prosecutrix, cannot be brushed aside easily. The prosecutrix in all her ignorance gave version to the doctor that she started menstruating 1/2 years back prior to 11.10.1996. We all know that in this part of the country our daughters/sisters came to the age of puberty at the age of 1314 years. There is no crossexamination from the side of the accused upon this witness, meaning thereby that the accused had admitted whatever has been stated by the doctor. Apart from that there is a direct statement of the prosecutrix in which she has stated that she was less than 16 years of age on the date of alleged commission of crime. Besides that, there is a statement of her father. The school leaving certificate which is an admissible piece of evidence also lends corroboration to the oral evidence and the medical evidence indicating that the prosectrix must be less than 16 years of age on the date of commission of crime. She was a student of 10th class. Invariably the parents send their children to the school at the age of 4 or 5 years. If all these calculations are taken, the only conclusion which can be easily drawn is that Mamta Devi prosecutrix was definitely less than 16 years of age on the date of commission of crime. Even the trump evidence which has been relied upon by the learned counsel for the appellant i.e. Ex.DZ/1 the ossification test report, will not come to the rescue of the appellant. Out of the 9 tests performed by the radiologist, the findings with regard to 3 tests are that the bones had fused which bones invariably fuse in between the age of 16 to 17 years. One test shows that the bone had fused which ordinarily fuse at the age of 14 years. The remaining tests again indicate that the girl either had completed 16 years or was going to complete 16 years. That is the reason the doctor has given finally the opinion that the prosecutrix was between 16 to 17 years. This examination was conducted on 14.10.1996 i.e. four months after 13.6.1996. If the benefit of these four months is also given to the prosecution, then the age of the prosecturix would come as per ossification test 16 years and two months. If the benefit of variation is taken either in favour of the prosecution, it can be said that implicit reliance upon the report Ex.DZ/1 cannot be given and this piece of evidence cannot be taken as a conclusive one. I have already stated above that there are certain factors which show that prosecutrix was less than 16 years. At the cost of repetition I may state that the date of birth of the prosecutrix has been shown as 7.9.1980. The prosecutrix started menstruating 1/2 years prior to her date of examination.

So far as case law on this point is concerned, it has already been relied upon by the learned counsel for the appellant in the trial court and has been discussed by the trial court itself and I need not repeat the same case law in this judgment. But suffice it to say that I hold that prosecutrix was less than 16 years on 13.6.1996 and in these circumstances her consent or no consent is immaterial. The appellant himself admits in his statement under Section 313 Cr.P.C. that he had been living with the prosecutrix for three months as husband and wife. A reasonable inference can always be drawn that the appellant must have shared the bed with the prosecutrix. Also it is established from the medical evidence that the prosecutrix had been subjected to sexual intercourse. Her hymen was torn. The tear in the hymen was old one and her vagina admitted two fingers easily.

Faced with this difficulty, the learned counsel for the appellant submitted that the appellant may be visited with leniency in the matter of sentence. He submitted that the prosecutrix was a matured girl and the case of the prosecution has succeeded virtually on technical grounds. The prosecutrix remained in the company of the appellant as depicted in the photograph. The prosecturix, as per the story of the prosecution, remained in the company of the appellant for four months. She had been roaming at public places with the appellant with no resistance. Even she had written several letters to the appellants showing that she had lot of love and affection for the appellant.

I have gone through the contents of the letters and I do not want to reproduce the contents of such letters in this judgment. But suffice it to say that the tone and texture of these letters clearly indicate that the prosecutrix had a deep love and affection and she was highly inclined in favour of the appellant. Possibility cannot be ruled out that the prosecutrix might have submitted herself with consent but at that time definitely she was less than 16 years of age. The photograph which has been relied upon by the appellant also indicates that the prosecutrix was standing by the side of the appellant and one more male person was standing by the side of the appellant on a different direction. There is not mark of injury on the private part of the prosecutrix or any other part of her body. All these factors make a special case justifying this court to award lesser sentence than the minimum prescribed under Section 376 I.P.C. The ends of justice will suffice if the substantive sentence of the appellant under Section 376 I.P.C. is reduced to three years and it is so ordered. The imposition of fine under Section 376 I.P.C. also stands reduced from Rs. 5,000/ to Rs. 1,000/ and in default of payment of fine the appellant shall undergo R.I. for nine months. Similarly the sentence of the appellant under Section 366 I.P.C. also stands reduced to two years. The fine imposed under Section 366 I.P.C. stands reduced to Rs. 500/ and in default of payment of fine he shall undergo R.I. for six months. The sentence under Section 363 I.P.C. is hereby maintained but the fine is reduced to Rs. 500/ and in default of payment of fine the appellant shall undergo R.I. for six months. Further the sentence under Section 506 I.P.C. is also maintained but the amount of fine stands reduced to Rs. 500/ and in default of payment of fine he shall undergo R.I. for 22 days. All the substantive sentences awarded to the appellant shall run concurrently.

With above modification in the matter of sentence, the appeal is hereby dismissed.