Mohinder vs State of Haryana

M. Jeyapaul, J.—The Appellant herein was convicted for an offence under Sections 376/366/363 of the Indian Penal Code and was sentenced to undergo 8 years, 3 years, and 2 years rigorous imprisonment respectively. He was also imposed with fine with usual default in sentence.

The brief case of the prosecution as unfolded by the witnesses examined on its side is as follows:

(a) The prosecutrix, who was aged 16 years at the time of occurrence, was examined as PW7. Her father Ram Singh (PW8) is the first informant in this case. The accused Mohinder Singh, who was a neighbour used to visit often the house of the prosecutrix. The prosecutrix used to call the accused as Uncle. The accused informed the prosecutrix that his sister and her husband had a proposal to go over to Haridwar for having sacred bath. On 14.07.1998, the accused asked the prosecutrix to accompany him for having sacred bath at Haridwar. When the prosecutrix informed the accused that she had to consult her parents, the accused assured her that he would talk to the parents of the prosecutrix.

(b) In the intervening night of 13/14.7.1998, when she was sleeping in the court yard, the accused came over there and asked her to accompany him to Haridwar. He also informed the prosecutrix that his sister as well as brother-in-law were waiting in a car on the road. Believing the words of the accused, the prosecutrix came out of the house and proceeded to the road. Having found that the sister and sister''s husband of the accused were not there, she enquired about their whereabouts. The accused gave some fist blows to the prosecutrix and threatened her with dire consequences.

(c) The accused took the prosecutrix through kachha passage in the pitch dark. Thereafter, he took her to village Sultanpur, where under a Keeker tree he forcibly raped her. The accused wielded a threat not to disclose anything to anyone. The prosecutrix was under constant threat.

(d) The accused as well as the prosecutrix boarded a jeep which brought them to Gurgaon. The accused took her to Karnal. In Karnal, he kept her in a house where also he forcibly raped her. The accused kept her in confinement for about 19 days. The accused raped her every day. As the accused ran short of money, he brought her by train to village Markpur. PW8, the father of the prosecutrix, came alongwith his brother, his brother in-law and police party and retrieved the prosecutrix from a Dharmshala in Markpur.

(e) PW8 gave the complaint Ex.PC to the Assistant Sub Inspector of Police (PW9), who registered a formal First Information Report. Thereafter, the accused was arrested.

(f) PW11 Dr. Sadhna Yadav, Medical Officer attached to ESI Dispensary, Gurgaon, examined the prosecutrix medico legally. She found that there was no external injury on the person of prosecutrix. There was no external injury over the thigh or pubic area. Two vaginal swabs were taken and sealed. It is her opinion that the prosecutrix might have been subjected to rape.

(g) PW12 Dr. Raj Kumar, Medical Officer, attached to ESI Dispensary, Jagadhri, examined the accused and expressed his opinion that the accused was capable of performing normal sexual intercourse. The Chemical Examiner having tested the same has returned a finding that there was no semen detected on the available swab examination. PW9 having completed the investigation laid the final report as against the accused.

On the side of the accused/Appellant, five witnesses were examined. Out of whom DW4 Pawan Kumar is found to be a material witness who has spoken to the fact that he being a landlord of a house in the village Garonda let out the same to the accused and the prosecutrix believing that they were husband and wife.

The trial Court having relied upon the evidence of PW7 in the background of the medical evidence available on record returned a finding that the prosecution established beyond reasonable doubt that the accused committed the offences punishable under Sections 376, 366 and 363 IPC.

The learned Counsel appearing for the accused/Appellant would vehemently submit that the trial Court has lost sight of the facts and circumstances in this case which would go to show that there was only consensual intercourse. It is her submission that the act of the prosecutrix accompanying the accused in the mid of night leaving her parents would go to show that she left on her own volition and indulged in sexual activity with accused. She would further submit that if at all there was any act of rape committed by the accused on the prosecutrix, she would have definitely complained of the violence committed upon her by the accused to any of the persons she came across during 28/29 days. Therefore, she would submit that there is a doubt in the story of the prosecution that the accused had intercourse with the prosecutrix against her will.

The learned Senior Deputy Advocate General appearing for the State would submit that the evidence of the prosecutrix that she was raped by the accused against her will is clinching. It is his further submission that there is sufficient material on record to establish that the prosecutrix was kidnapped and was engaged in intercourse by the accused. Therefore, it is his submission that the trial Court has rightly returned a verdict of conviction for the offence punishable under Sections 363, 366 and 376 IPC.

The prosecutrix would depose before the trial Court that she informed the accused that she would consult her parents and then accompany him to Haridwar for having sacred bath. The accused had reached the house of the prosecutrix in the mid of night. The evidence of the prosecutrix would go to show that she meekly accompanied the accused when he informed the prosecutrix that his sister and brother-in-law were waiting in a car on the road. She had left her parents and accompanied the accused without verifying with the accused whether he infact got the consent of her parents. The very fact that the prosecutrix had left the parental house even without informing the parents in the mid of night alongwith the accused would go to show that she had left the parental house on her own volition.

The prosecutrix would come out with a story that she was given fist blows by the accused and that she was also threatened with dire consequences. The subsequent conduct of the prosecutrix would go to show that such a story of the prosecutrix is a cock and bull story. If at all, she was kidnapped under a threat, she would have divulged the factum of kidnapping to any of the persons whom she came across during the period of about 29 days.

The prosecutrix was taken to Sultanpur, Gurgaon, Karnal, and other places. It is totally unbelievable to say that she had not come across any human being during the said period. This Court is not in a position to believe the story of the prosecution that she had no occasion to inform any person whom she come across during the said period . The very fact that she had not chosen to divulge the violence committed upon her for a pretty long time would go to show that there had been a consensual sex with the accused.

As per the evidence of Dr. Sadhna Yadav (PW11), it is found that there was no external injury found either in the private parts or in the other parts of the prosecutrix.

The Headmistress of the School where PW7 studied was examined as PW1. She has spoken to the fact that the prosecutrix as per the records maintained by the School was born on 10.09.1981. The occurrence had taken place on 14.07.1998. The evidence of PW1 would establish that the prosecutrix had crossed 16 years of age at the time of occurrence. A consensual sex with a girl aged 16 years would not amount to rape. The trial Court, it appears, has not properly appreciated the evidence on record before arriving at a decision that the accused had intercourse with the prosecutrix against her will.

Coming to the charge u/s 363 IPC, it is found that the prosecutrix who was aged below 18 years, was taken away from the lawful custody of PW8 and was kept by the accused in his custody for 29 days. It is only the police party accompanied by PW8, his brother, and his brother-in-law who retrieved the prosecutrix from the custody of the accused. Therefore, the offence punishable u/s 363 IPC was clearly made out by the prosecution.

It is found from the materials on record that there was no compulsion emanated from the accused to marry the prosecutrix or force was used to have illicit intercourse with the prosecutrix. Therefore, the offence punishable u/s 366 IPC was not made out. The evidence on record would establish that there was only a consensual sex.

In view of the above facts and circumstances, confirming the conviction recorded and sentence imposed by the trial Court for an offence punishable under Sections 363 IPC, the conviction recorded by the trial Court for an offence punishable under Sections 363 and 366 IPC and the sentence imposed thereunder are set aside. It is brought to the notice of the Court that the accused has already undergone two years, three months and twenty five days in connection with this case. Therefore, the bail bond, if any, executed by the Appellant/accused shall stand annulled. Accordingly, the appeal is partly allowed.