Mammu Ram vs State of Haryana

K. K. Srivastava, J.

This is an appeal filed against the judgment dated 19.3.1987, passed by Sh. K.C. Gupta, the then Additional Sessions Judge, Karnal, convicting the appellant/Mammu Ram for the offences punishable under Sections 363/366/376 of the Indian Penal Code and sentencing him to undergo rigorous imprisonment for two years under Section 363 IPC, three years'' rigorous imprisonment and a fine of Rs. 100/ under Section 366 IPC and seven years'' rigorous imprisonment and a fine of Rs. 200/ under Section 376 IPC. In default of payment of fine of Rs. 100/ awarded under Section 366 IPC, the appellant was directed to suffer further RI for six months and in default of payment of fine of Rs. 200/ imposed under Section 376 IPC, he was directed to suffer further RI for one year.

The case of the prosecution, stated briefly, is as under :

Baru Ram (PW11) was married with Smt. Bala Devi (PW9) and had three daughters and a son, born out of the wedlock. The eldest daughter born to Baru Ram is the prosecutrix, Ms. Kamlesh (PW8). Baru Ram was employed in the Veterinary Hospital, Indri, and his wife Smt. Bala Devi was employed as a Sweeprers in the Municipal Committee, Indri. Baru Ram and his wife Smt. Bala Devi both used to go to their respective jobs at about 7.00 a.m., leaving behind their children in the house. Smt. Kailasho Devi (PW7) resided in the house situated in front of the house of Baru Ram. Appellant Mammu Ram son of Durjan, Mistri of village Putail, had taken a room on rent of Rs. 50/ per month from Smt. Kailasho Devi. Appellant Mammu Ram had a minor daughter aged about 1 years. Smt. Krishna, wife of Mammu Ram lived in the rented room with her husband and their minor daughter. The appellant alongwith his wife Smt. Krishna used to visit the house of Baru Ram for bringing milk and water and sometimes they also viewed the television there. The occurrence took place on 21.7.1986 at about 10.00 a.m. when the prosecutrix, Kamlesh, was about to leave the house to attend her school in Matak Majri, which is a Government Primary School. The prosecutrix was studying in class fifth at the time of occurrence.

According to the prosecution case, Smt. Krishna, wife of appellant Mammu Ram allured the prosecutrix Kamlesh to accompany to the bus stand of Indri for helping them in taking their luggage to the bus stand. At the bus stand, the appellant Mammu Ram threatened the prosecutrix Ms. Kamlesh and forced her to accompany him to Delhi by the bus. At Delhi, the prosecutrix taken to Bhagole Puri, where the appellant stayed with the prosecutrix for about one month and during this period the prosecutrix, Kamlesh, was repeatedly raped. The accused/appellant thereafter shifted Kamlesh from Delhi to Panipat and there she was confined in a kotha, situated in the field and raped her there also.

Baru Ram and Smt. Bala Devi on 21.7.1986 returned to their house after finishing their jobs around 12.30 p.m. and found their daughter Kamlesh not having returned from her school during the recess period. They went to the Government Primary School and found Kamlesh not present there. They searched for their daughter Kamlesh with their relations and at the known places, where the possibility of her being present was felt by them. But Kamlesh was not found at any place.

On 25.7.198, at about 5.50 p.m. Smt. Bala Devi (PW9) lodged FIR (Exhibit PD) at police station Indri about her daughter Kamlesh missing. ASI Ram Dhan (PW10) was investigating the case and he learnt from some informer on 4.10.1986 regarding the whereabouts of accused/appellant Mammu Ram. The ASI summoned the complainant, Smt. Bala Devi from Indri to the CIA Staff, Panipat. Instead of the complainant Smt. Bala Devi, her husband Baru Ram accompanied by one Satpal reached the CIA Staff, Panipat and contacted ASI Ram Dhan, who held Nakabandi at Asandh Road, near the railway crossing. At about 4.00 p.m. accused Mammu Ram accompanied by the prosecutrix, Kamlesh, was seen arriving at the railway crossing from the side of model town and they were identified by Baru Ram and were apprehended. The prosecutrix, Kamlesh, was holding a bag in her hand, which contained the trousers and shirt of the accused Mammu Ram. The ASI prepared the rough site plan of the place of recovery of the prosecutrix with correct marginal notes, which is on record and is Exhibit PL. The prosecutrix and the accused were both taken for medical examination to the hospital. Dr. R.S. Dahiya (PW2) examined the accused Mammu Ram and found him medically fit to perform the sexual intercourse. Dr. Rozy Aneja (PW1) examined the prosecutrix Kamlesh the same day at about 6.00 p.m. and she gave an opinion about the prosecutrix Kamlesh might have been raped. The shirt and trousers were handed over by Dr. R.S. Dahiya (PW2) belonging to the accused, which were taken into police possession vide seizure memo Exhibit PN, duly attested by Sat Pal and Baru Ram. The lady doctor Rozy Aneja handed over three sealed parcels, which were taken into possession vide seizure memo Exhibit PN/1. After the medical examination the prosecutrix Kamlesh was handed over in the custody of her father Baru Ram. The accused was sent to the police custody.

After completion of investigation, challan under Section 173 Cr.P.C. was filed against the accused in the Court of Shri S.K. Dhawan, Judicial Magistrate Ist Class, Karnal, who committed the case to the Court of Sessions vide his commitment order dated 24.12.1986.

The accused appeared before the learned Additional Sessions Judge, Karnal, who framed the charge under Sections 363/366/376 of the Indian Penal Code on 7.1.1987. The charge was read over to the accused and explained to him, who pleaded not guilty to the charges and claimed to be tried.

At the trial, the prosecution examined Dr. Rozy Aneja, PW1; Dr. R.S. Dahiya, PW2; Davinder Pal Singh, SI, PW3; Prem Chand Head Master, PW4; Balak Ram, Draftsman, PW5; Kesho Ram, PW6; Kailasho Devi, PW7; the prosecutrix, Kamlesh, PW8; her mother, Smt. Bala Devi, PW9; ASI Ram Dhan, PW10 and Baru Ram, PW11. The affidavits Exhibits PE and PF of Head Constable Balak Ram and Constable Om Parkash respectively were tendered in evidence. The prosecution closed its evidence.

The statement of the accused under Section 313 CPC was recorded. The accused denied the evidence led by the prosecution against him at the trial and he stated that he was falsely implicated. He further stated that on 21.7.1986, he was present at Indri while the prosecutrix Kamlesh had gone to Delhi with his wife Smt. Krishna. On 24.7.1986, he himself went to Delhi at the instance of Baru Ram to bring Kamlesh back, but she refused to come. On 25.7.1986, he again went to Delhi, accompanied by Baru Ram, to bring Kamlesh back home but she was not found there and Baru Ram returned alone to Indri. The accused himself returned to Indri from Delhi on 28.9.1986 when he was arrested by the police and was detained in illegal confinement for about 67 days and thereafter falsely implicated in this case on 4.10.1986, upon recovery of Ms. Kamlesh from Panipat busstand. He further stated that the prosecutrix Kamlesh had illicit relations with one Bhagtu, resident of village Biana and she might have run away with Bhagtu. The accused was called upon to enter his defence but no defence evidence was led and the defence case was closed.

The learned Additional Sessions Judge after hearing the arguments of learned Public Prosecutor and learned counsel for the accused believed the prosecution evidence and held the prosecutrix Kamlesh to be a minor, aged below 16 years and found the accused Mammu Ram guilty of the offences punishable under Sections 363/366/376 IPC and sentenced him, as mentioned earlier.

Feeling aggrieved against his conviction and sentence, awarded to him by the learned Additional Sessions Judge, the accused Mammu Ram has filed this appeal. The appeal was admitted for hearing and notice was issued to the respondentState.

I have heard the learned counsel for the appellant and the learned Assistant Advocate General for the State/respondent. I have been taken through the evidence led by the prosecution on record and the findings recorded by the learned trial Judge in the judgment.

The prosecutrix has entered the witnessbox as PW8 and has stated her age around 1415 years. She stated about the prosecution case and according to her statement, she was taken to Delhi by the accused Mammu Ram and his wife and there she was kept for about 45 days in a house in Bhagole Puri. She has further stated that accused used to beat her and threatened with a knife and then he used to rape her. According to her statement, the accused abused and beat his wife Krishna also and threatened her that if she told to any one about this incident, she would be killed. The prosecutrix was similarly threatened by the accused, who took her subsequently to Panipat and kept her there for 34 days and there was kept outside the abadi in a room, situated in the fields. At Panipat also, the accused had threatened her with dire consequences in case she disclosed to any one about the incident. The prosecutrix stated that she was considerably frightened by threats from the accused. The police rescued her near the railway crossing and the accused was at that time taking her for the purpose of either selling her or killing her. She stated that at the time of occurrence, she was a student of fifth and studying in Government Primary School, Matak Majri.

She was crossexamined at length, wherein she was confronted with her statement recorded by the police which is Exhibit DB. The contradictions were regarding the period of her stay at Delhi. The prosecutrix stated in Court that she stayed at Delhi for 34 days, whereas in her statement before the police (vide Exhibit DB) she stated that she stayed at Delhi for one month. She stated in the witness box about being threatened with a knife at the bus stand but the same was not mentioned in the said statement Exhibit DB. She stated that there were several passangers in the bus, but she did not raise hue and cry due to fear. According to her statement, she went on another bus from Karnal for going to Delhi and as the accused had left the bus, which was boarded at Indri. The accused got down at Karnal with her (the prosecutrix) and took another bus for going to Delhi. She stated that she did not raise any alarm either at the bus stand Delhi or in the house where she was made to stay at Bhagole Puri. She stated that the accused did not allow her to go out of the room at Delhi. The accused did not bring his wife Krishna to Panipat. No person visited them in the kotha at Panipat. The accused used to bring meals from outside. She stated that the accused had given her a knife blow on the portion of the chest and her face was swollen. She had shown the injuries to the doctor, which she suffered as a result of the beatings given by the accused. She denied the suggestion that she was aged around 1617 years. She denied the suggestion that she knew Bhagtu resident of village Biana and that she had illicit relations with him. She also denied the suggestion that she had gone to Delhi with Krishna, wife of the accused, to join them frequently. She also denied the suggestion that she refused to go back to Indri even when her father visited her at Delhi. She denied the suggestion of her father going to Delhi to take her back.

According to the statement of Bala Devi (PW9), Kamlesh was aged around 1516 years on the date when her statement was recorded, i.e. on 20.2.1987. At the time of occurrence, Kamlesh was aged below 16 years. Baru Ram, father of the prosecutrix stated that Kamlesh had completed 13 years and was running 14 years in age at the time of occurrence. He denied the defence suggestion that he had accompanied the accused to Delhi to take his daughter back, but she was not found there. He also denied the suggestion that the accused Mammu Ram was sent by him to bring back Kamlesh from Delhi, but she refused to come back. He denied the suggestion that Kamlesh was aged more than 16 years. He also denied the suggestion that Kamlesh was not recovered from the railway crossing.

The prosecution in this case proved the birth certificate regarding the age of the prosecutrix, which is Exhibit PK. The date of birth as recorded in the birth certificate is 21.9.1972. Name of the prosecutrix is mentioned in the certificate with name of her father as Baru Ram. The certificate was duly attested by the Additional Deputy Registrar of Birth and Death, Karnal. Exhibit PH is the copy of the admission form regarding Kamlesh and there her date of birth was mentioned as 21.9.1973. The birth certificate shows the date of birth as 21.9.1972 and one year less was mentioned in the school admission form. It is a matter of common practice that the age is reduced at the time of admission of the child in the school.

Apart from it, from the point of view of the accusedappellant, the age of the prosecutrix can be accepted as shown in the birth certificate and even according to that, she was born on 21.9.1972. If that is the date of birth taken as the date for calculating the age, then the prosecutrix was aged less than 14 years on 21.7.1986, when this occurrence took place. She would have completed 14 years of age on 21.9.1986. There can be no doubt about the genuineness of the birth certificate and the age mentioned in the admission form of the school cannot be said to materially contradict the age of the prosecutrix. Therefore, the prosecutrix was a minor, aged below 16 years at the time of the occurrence. The learned trial Judge has rightly held the prosecutrix to be a minor and aged below 16 years.

The contention of the learned counsel for the appellant that the prosecutrix was aged 16 years or more, is not based on any material evidence on record. That being so, the prosecutrix Kamlesh was below the age of consent, being below 16 years. Section 375 (sixthly) of the Indian Penal Code is relevant, as it lays down that a man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :

First : xxxx

Secondly : xxxxxx

Thirdly : xxxxxx

Fourthly : xxxxxxxxxx

Fifthly : xxxxxxx

Sixthly : With or without her consent, when she is under sixteen years of age."

Since the consent of the prosecutrix in wholly immaterial because of the prosecutrix Kamlesh being aged under 16 years, the argument of the learned counsel for the appellant that Kamlesh had left the house of her father wilfully and with her consent, is of no avail. The prosecutrix Kamlesh could not have submitted herself to sexual intercourse with the accused/appellant, as she was incapable of expressing her consent, in law, as she was a minor, aged under 16 years. The prosecutrix Kamlesh (PW8) in her statement alleges threat on the part of the accused in kidnaping/abducting her and then in raping her repeatedly. The prosecution has, thus, succeeded in establishing the charges under Sections 363/366/376 of the Indian Penal Code against the accused/appellant without any shadow of reasonable doubt. The conviction of the appellant under the aforesaid sections, as also the sentence thereunder awarded by the learned trial Judge are, therefore, maintained. The appeal fails and is hereby dismissed.