Mahesh Kumar vs State of Punjab

A.S. Nehra, J.

This is appeal is directed against the judgment and order dated 11.11.1986 passed by Sessions Judge, Amritsar, by which Mahesh Kumar, appellant has been convicted under Sections 366 and 376 IPC and sentenced to undergo R.I. for a period of five years and to pay a fine of Rs. 1,000/ and in default of payment of fine to undergo further R.I. for one year on each count. However, both the substantive sentences were ordered to run concurrently.

Briefly stated, the prosecution case is that Prosecutrix Sunita Devi was living in a quarter in Civil Hospital, Tarn Taran, where her father Jodha Ram was employed. Accused Mahesh Kumar was also living with his mother in another nearby quarter in the same hospital. Both these families had relations and they were on visiting terms with each other. In the year 1985, prosecutrix Sunita Devi was studying in 10th Class in Government Girls Higher Secondary School, Tarn Taran and the said school used to start at 7 A.M. On 31.5.1985, she left the house for going to the school. The accused met her on the turning of the street, where the school was situated and told her that she should accompany him to Amritsar on the allurement that he will arrange good food for her, will show her film and also take her to different places. After initial hesitation to accompany the accused but on his repeated assurance to return by the time the school closes, the prosecutrix agreed to go with him. The accused brought her to Amritsar in a bus, served her meals and took her to various places. In the afternoon, the prosecutrix asked the accused to take her back home but the accused threatened her with dire consequences, in case she raised any hue and cry. She then felt scared and acted as directed by the accused. They stayed at the platform of the bus stand for the night and on the next day, the accused again took her around the city and in the evening brought her to Jandiala, when he took her to a room on the tubewell at JandialaTarn Tara Bypass, kept her inside the kotha during the night and forcibly raped her twice against her will. On the next day, the accused again took her to various places in Amritsar and in the night, brought her back to the same tubewell, where he again raped her twice. On the following day, the accused took her to Beas and in the evening returned to the same Kotha and again committed sexual intercourse with her. On the next day, the police raided that kotha and apprehended both accused and prosecutrix Sunita therefrom. The accused was arrested. The police recorded statement of the prosecutrix and got her medically examined. She was also xrayed and produced before the Ilaqa Magistrate, where she made her statement, Ex. PJ. She gave her date of birth as 1.8.1969, which was the date as given in the school record.

PW3 Dr. Santosh Joshi stated that Sunita Devi was admitted to their school and as per the school record, her date of birth was 1.8.1969, which was recorded on the basis of the Gazette issued by the Punjab School Education Board.

PW7 Dr. Jatinderpal Singh stated that on 7.6.1985, he carried out the xray examination of Sunita Devi for determination of her age and on the basis of the skiagrams, he opined her age to be between 13 to 16 years. Ex.PC is xray report while Ex. PC/14 are the skiagrams.

PW1 Pritpal Kaur stated that on 5.6.1985 she had medically examined Sunita Devi, daughter of Jodha Ram and observed that there was no mark of injury on her external genitalia, the hymen was torn, the tags were normal and there was no fresh bleeding. The vagina admitted two fingers easily, the cervix and uterus were normal. The vaginal swabs and pubic hair were taken for chemical examination. Xray was advised for determination of age. In the opinion of Dr. Pritpal Kaur, the prosecutrix had indulged in the first act of sexual intercourse seven/eight days prior to her examination. The report of the Chemical Examiner, Ex. PG, confirmed the presence of semen but there were no spermatozoa on the pubic hair. Ex. PA is the correct carbon copy of the medicolegal report.

Dr. Mandip Singh Sandhu, PW3, carried out medicolegal examination of Mahesh Kumar, accused and found that he was sexually well developed and there was nothing to suggest that he was incapable of performing sexual inter course. Dr. Sandhu also found the following external injuries on the person of the accused :

"1. Diffused swelling of left knee 38 cm in girth.

Diffused swelling 10 cm x 8 cm on the lateral aspect of the right ankle joint.

Mild swelling 5 cm x 4 cm on the lateral aspect of the left ankle joint.

Scrabbed abrasion 1.5 x 0.2 cm on the upper forehead of the left side.

Scrabbed abrasion 1 cm. x 0.75 cm on the dorsum of the left hand, 1 cm below the base of the index finger.

Blue contusion on both the lower lids, 2cm x 1.5 cm in size.

Ex. PE is the correct carbon copy of MLR.

PW8 Jodha Ram, father of the prosecutrix stated that he was employed as a peon in the Civil Hospital, Tarn Taran and lived in a quarter in the premises of that hospital. He further stated that accused Mahesh Kumar was living in another quarter within the premises of same hospital, where his mother was employed as Class IV employee; that prosecutrix Sunita Devi was born on 1.8.1969 and her birth was reported to the Chowkidar but he did not get it registered further; that on 31.5.1985, Sunila Devi left the house for going to the school as usual but did not come back to the house; that he searched for her at all probable places and later on learned from the school the she had not attended the class on that day. The witness further stated that on 1.6.1985, while he was going to the police station for lodging the report, he met the police party on the way and got recorded his statement, Ex. PG and that on 6.6.1985, the police had informed him about the recovery of his daughter Sunita Devi.

PW6 Rishi Ram, stated that on 23.7.1985, he had correctly prepared scaled site plan, Ex. PF, with correct marginal notes at police request and pointing out by Sunita Devi.

PW11 ASI Puran Chand stated that on 1.6.1985, Jodha Ram, father of the prosecutrix, met him in the chowk and made statement, Ex. PG, which he correctly recorded and after making his endorsement, Ex. PG/1 thereon, sent the same to the police station for the registration of a case; on the basis of which FIR, Ex. PG/2, was registered by S.I. Balwant Singh. The witness further stated that thereafter he visited the house of Jodha Ram recorded the statement of his wife Gita Devi, examined the school record, obtained certificate, Ex. PD, from the Principal and searched for the accused but he was not available. He further stated that on 5.6.1985, on receipt of secret information, he carried out a raid at the tubewell of Surinder Singh son of Gurdev Singh of Muradpur, arrested the accused and recovered Sunita Devi from the kotha of that tubewell. He also got Sunita Devi and the accused medically examined, and also got the statement, Ex. PJ of Sunita Devi recorded before the Magistrate.

When examined under Section 313 of Code of Criminal Procedure, the accused denied the allegations of the prosecution against him and pleaded his innocence and false implication. He, however, admitted that he was living in a quarter with his mother in the Civil Hospital, Tarn Taran and that prosecutrix Sunita Devi was living with her father in another quarter in the same hospital. In his defence, he examined Shashi Kumar (DW1) Clerk in Civil Hospital, Tarn Taran, who stated that there was a letter dated 18.5.1981 from S.M.O. Tarn Taran to Jodha Ram about his transfer to Mundapind. He further stated that the said transfer was made under the orders of the Civil Surgeon, Amritsar and that in his communication to the Civil Surgeon, S.M.O. Tarn Taran had confirmed that the duties of Jodha Ram and been taken over by Sudesh Kumari.

It is the statement of prosecutrix Sunita Devi that on 31.5.1985, she had started from her house for going to the school and on the way, the accused met her and compelled her to accompany him. She had initially refused and then on the assurance that she should not be scared of accused Mahesh Kumar, to whom she had previously known, she accompanied him. The accused had given out promise of showing her film, arranging good food and sight seeing of various places. Thereafter, the prosecutrix did not return. Jodha Ram lodged a report with the police on 1.6.1985 vide his statement, Ex. PJ. Jodha Ram had confirmed that on an enquiry from the school, he had learnt that Sunita Devi had not attended the school on that day. The statement of Sunita Devi about her failure to go to the school on 31.5.1985 and the statement of her father, Jodha Ram, that he had confirmed from the school that she had not attended the school on that day, remain unrebutted. As was natural, Jodha Ram had made enquiries from other probable places where Sunita Devi was expected to have gone. Having failed to trace her, he moved the police on the next day and suspected accused Mahesh Kumar to be responsible for the elopement of his daughter. It was on the basis of this information that the police had searched the accused and ultimately traced him from the kotha in the area of village Muradpura.

I have heard Mr. P.S. Mann, Senior Advocate, for the appellant and Mr. P.S. Tiwana, Deputy Advocate General, Punjab and have gone through the record with their assistance.

Learned counsel for the appellant contended that the appellant had been falsely implicated by the prosecutrix due to their enmity with his mother. The mere fact that after the transfer of Jodha Ram, as proved by DW1 Shashi Kumar, the duties of Jodha Ram were entrusted to Sudesh Kumari, the duties of Jodha Ram were entrusted to Sudesh Kumari, mother of the accused, could not have led to any enmity. The transfer of a Government employee is a normal feature and once an employee is transferred, his duties are to be performed by another employee. It is neither claimed nor there is evidence to show that the transfer of Jodha Ram was in fact got effected by Sudesh Kumari. As such, there is no merit in the contention of the learned counsel for the appellant that the accused had been implicated on the basis of some enmity between the mother of the accused and father of Sunita Devi.

Mr. P.S. Tiwana, Deputy Advocate General, Punjab, contended that prosecutrix Sunita Devi, was a minor; that she was kidnapped from the lawful guardianship of her father and subjected to rape and that she being less than 16 years, was not competent to give consent to sexual act. To prove the age of prosecutrix Sunita Devi, the learned State counsel relied upon the school record, wherein on the basis of the Gazette issued by the Punjab Education Board, the date of birth of Sunita Devi has been recorded as 1.8.1969. It can be reasonably presumed that Punjab School Education Board had carried out the necessary verification about the date of birth of prosecutrix and this date should be treated as authentic. Jodha Ram is an illiterate person and he was not able to give convincing evidence about the age of prosecutrix. No doubt he had mentioned her date of birth as 1.8.1969 but in his cross examination, he stated that he was married at the age of 17/18 years; that he was 41 years of age and that Sunita Devi was his first child, who was born two years after his marriage. If this statement is to be kept in view, the age of prosecutrix will come around 21 years. However, the other evidence on the record shows that this statement of Jodha Ram is not correct. Dr. Pritpal Kaur (PW1) had recorded the age of Sunita Devi as 14 years and she had clarified that she had given this age on the basis of the statement of Sunita Devi and as well as from her general appearance. Dr. Jatinderpal Singh (PW7), on the basis of the xray examination, fixed her age between 13 to 16 years. Considering all this evidence, I accept the date of birth given in the school record as 1.8.1969 to be correct and hold that Sunita Devi was less than 16 years on the date of her abduction.

Prosecutrix Sunita Devi, who was a girl of tender years had been prevailed upon by accused Mahesh Kumar, her neighbour, to accompany him on the pretext of showing her film and taking her around and arranging good food for her. Once duped by these promises, Sunita Devi had no choice but to dance to the tunes of the accused and even if she wanted to get out of his clutches, she was prevailed upon to move with him under threat to her life. There is no evidence to show that Sunita Devi was previously indulging in such like affairs, which may make her testimony either doubtful or unworthy of credence. I have carefully gone through her statement and find the same to be creditworthy and worth reliance.

In view of the above discussion, there is no merit in the appeal and the same is hereby dismissed.