Lakhi Ram vs State of Haryana

M.L. Singhal, J.

This criminal revision is directed against the order of acquittal passed by Additional Sessions Judge, Bhiwani in case FIR No. 51 dated 16.2.1994 of PS Sadar Charkhi Dadri (Sessions case No. 29 of 10.6.94 and 3.8.94/Sessions Trial No. 85 of 10.6.94) on 19.8.96 acquitting Hari Raj and Mahabir accusedrespondents.

The prosecution case in brief is that Urmila daughter of Lakhi Ram aged 15 years was studying in 10+1 in GSSS, Atela Khurd, Bhiwani. On 1415.2.95 Urmila went to sleep in her house at about 12. Earlier she had been studying. At about 5 A.M., Lakhi Ram got up and found that Urmila was not on her cot. His younger daughter Usha had also slept with Urmila. Usha was found on that cot. He asked his wife Tarawati and daughter Usha about the whereabouts of Urmila. They could not furnish any clue about her. Lakhi Ram searched Urmila here and there but could not find any clue. He suspected Hari Raj @ Pappu accused of having abducted her. Hari Raj was a driver on the fourwheeler of Sombir and was a resident of district Rampur (U.P.). On 16.2.94, Lakhi Ram lodged FIR No. 51 at PS Sadar Charkhi Dadri under Section 363/366 Indian Penal Code. On 21.2.94, ASI Hari Charan was present at Dubaldhan Bus Stand where he came across Hari Raj along with Urmila. He took Hari Raj in custody. He took hold of Urmila also. Dr. Anita Gulia, Medical Officer, General Hospital, Charkhi Dadri medically examined Urmila. In her opinion, she had been subjected to sexual intercourse as her vagina was admitting two fingers at the time of her medical examination. On 21.2.94, Dr. S.C. Gupta, Medical Officer, General Hospital, Charkhi Dadri medically examined Hari Raj accused. In his opinion, he was capable of sexual intercourse. After investigation, Hari Raj and Mahabir were challaned. Mahabir was challaned because Urmila insinuated him also and stated that he was privy to her abduction by Hari Raj accused. She imputed rape to both of them. After investigation, Hari Raj and Mahabir were challaned under Sections 363/366/376 Indian Penal Code (in short "IPC").

Accused were committed to the court of Session by Shri Baljit Singh, Judicial Magistrate First Class, Charkhi Dadri vide order dated 27.5.94. They were charged under Sections 363/366/376 IPC. Accused pleaded not guilty to the charge and claimed trial. On the conclusion of the trial, Additional Sessions Judge, Bhiwani acquitted both the accused vide order dated 19.8.96.

Not satisfied with the order of acquittal passed by Additional Sessions Judge, Bhiwani, Lakhi Ram, who is father of Urmilaprosecutrix, has invoked the revisional jurisdiction of this Court and has prayed that the order of acquittal be set aside and the accused be punished.

Urmila was a student of 10+1. She stated that on the night intervening 1415.2.94 at about 12, she came out of the room with a view to make water. At that time, she was asleep with her brother Umesh and sister Usha in that room. Hari Raj and Mahabir appeared there. Their appearance there was sudden and unexpected. Hari Raj caught hold of her. She tried to raise alarm. Mahabir gagged her mouth and did not allow her to raise alarm. They took her near "kankarwali mandhi", a place where deity of Gangli Dass was situated. In a pit near that place, she was raped by both of them. She was taken to the bus stop of village Chappar through bushes. A jeep came from the side of village Barsana. Hari Raj got the jeep stopped. She was seated in that jeep. On one side, Hari Raj accused sat and on the other side, Mahabir accused sat. She was dropped at Bus Stand Delhi. Hari Raj and Mahabir also alighted at bus stand Delhi with her. They threatened that in case she raised alarm, she would be killed and thrown in canal. She was then taken to Rampur (U.P.) in a bus. Her signatures were taken on one or two papers. In the area of Rampur, she was taken in a sugarcane field where there was `kotha''. In that kotha, she was raped by both of them. She was kept there forcibly. One of them used to go outside for bringing ration and the other used to keep guard on her. She was kept there for 34 days. On 20.2.94, they left that kotha. On 21.2.94, they came by bus. They dropped at bus stand Dubaldhan on 21.2.94. Hari Raj accused was taking her to the house of his maternal uncle. She insisted upon going to her house. There was exchange of hot words. In the meantime, her father and uncle came there along with the police and rescued her from the clutches of Hari Raj. She did not raise any alarm when she was being taken in a bus. At bus stand Delhi when she was dropped and the accused alighted with her, she did not raise any alarm. It is not believable that Hari Raj appeared outside her house at 12 night suddenly and unexpectedly. She must have appointed time with him of her meeting with him for eloping with him. She was studying in 10+1 and was thus quite mature. She was understanding her good and bad. If she were a rustic and illiterate, it could have been felt that she was lured by the accused and she was taken in by his misrepresentations. She admitted in her crossexamination that she had known Hari Raj since 23 months earlier. `Baithak'' of Sombir is in front of their house and Hari Raj used to ply his four wheeler. Hari Raj was on visiting terms with them. Application Ex.DB bears her signatures. Application Ex.DB is addressed to District Magistrate, Rampur. In application Ex.DB she had mentioned that she had asked Hari Raj to marry her and that she was willing to marry him. In application Ex.DB, she had mentioned that she had been seated by her mother in the bus who had given her Rs. 500/ and her mother had told her to go to Hari Raj, marry him and cohabit with him. She came to Hari Raj of her own accord who had agreed to marry her. It was further mentioned by her in that application that she had married Hari Raj according to Hindu rites and she was cohabiting with him at his house. Urmila stated that her signatures were got on application Ex.DB forcibly. She swore affidavit Ex.DC before the Oath Commissioner. In affidavit Ex.DC she reiterated those very facts. She stated that her signatures on affidavit Ex.DC were also obtained forcibly by Hari Raj accused. It cannot be believed that she signed affidavit Ex.DC and application Ex.DB because of coercion alleged to have been employed by the accused on her. There were people and policemen at bus stand Delhi. There were many passengers, who travelled from Delhi to Rampur by that bus. On application Ex.DB and affidavit Ex.DC, her photograph is also pasted. It is thus not a case where Urmila can be said to have been the victim of any inducement or coercion. It is a case where Urmila willingly eloped with Hari Raj accused with a view to marry him. Section 362 IPC defines "abduction" as follows :

"Whoever by force compels or by any deceitful means, induces any person to go from any place is said to abduct that person."

Section 361 IPC defines "kidnapping" from lawful guardianship as follows :

"Whoever takes or entices any minor under 16 years of age, if a male, or under 18 years of age if 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."

The words takes or entices used in Section 361 IPC are quite significant. Similarly, the word "induces" used in Section 361 IPC is quite significant. Case would fall within the mischief of Section 366 IPC only if the prosecution is able to prove that it was either taking or enticing the minor or there had been inducement. The word `induce'' means to prevail on, to bring about, to persuade; as defined in Law Lexicon by P. Ramanathan Aiyar. The word `takes'' has been defined in the said dictionary as meaning `to cause, to give, to escort or to get into possession''. When the accused takes the minor with him whether she is willing or not, the act of taking is complete. The word `entices'' involves an idea of inducement by exciting hope or desire in the other. In this case, the element of taking or enticing or inducing is missing so far as the accused are concerned. Faced with this position, learned counsel for the petitioner submitted that Urmila was less than 18 years of age on 1415.2.1994 and, therefore, it will not to be material that she left the abode of her father on her own. At the time of her first admission to the primary school, she was recorded as having been born on 24.12.76. Her father is not an ordinary person. He was in the Army. He must have been aware of the benefits of understating the age of the child in the school record. He must have known that if he understates the age of his children at the time of admission in the school, that understatement as to age would benefit the children in the matter of entering Government service and in the matter of remaining in Government service for longer. It is generally seen that when a child is admitted to the school, his/her parents understate his/her age. There is no surprise that when Urmila was admitted to the primary school, there was an understatement made by her father about her age. Entry as to age in the school record, thus, is not an authentic proof of age. Prosecution should have produced birth entry to prove the age of Urmila.

It was held in Mani Ram @ Ramesh v. State 1990(3) RCR 136 that in kidnapping case, prosecution has to prove that it was accused who either took away or enticed the prosecutrix. In Lawrence Kannandas v. State of Maharashtra, 1983 Crl. Law Journal 1819, the prosecution had proved that the prosecutrix was recovered from the house of the accused''s uncle but there was no evidence led that accused had given any temptation or promise or assurance or allurement which had the effect of an irresistible force upon the girl. It was held that the prosecution must establish by leading evidence to show that it was the accused who was instrumental to the prosecutrix leaving the parental house. In the said case the evidence showed that prosecutrix had left the house of her parents on her own and thereafter she had met the accused who had signalled her to come to the bus stop. It was held that when the prosecutrix had already taken a final decision to leave the house, the act of signalling on the part of the accused could not be said to be instrumental to leaving for home.

For the reasons given above, I am of the opinion that the respondents Hari Raj and Mahabir were justifiably acquitted by the learned Additional Sessions Judge, Bhiwani. This Revision accordingly fails and is dismissed.

Revision dismissed.