Naurata Ram vs U.T. Chandigarh

Virender Singh, J.—Narate Ram son of Nand Lal stands convicted by the learned Additional Sessions Judge, Chandigarh vide judgment dated July 8, 1989 and has been sentenced as under:-

U/S 363 IPC To undergo rigorous imprisonment for two years and to pay a ftne of Rs. 250/- In default of payment of fine to further undergo RI for two months .`

U/S 366 IPC To undergo RI tor five years and to pay a fine of Rs. 250/-In default of payment of fine to further undergo RI for two months.

U/S 376...TPC To undergo RI tor seven years and to pay a tine of Rs. 1000/-. in default of payment of fine to further undergo RI for six months.

However, all the substantive sentences were ordered to run concurrently. Aggrieved by the impugned judgment of sentence and conviction, the appellant has preferred the present appeal.

Chander Shekhar (PW-7), father of Urmila, the prosecutrix (PW-8) is the complainant/First Information Report lodger.

Briefly, the case of the prosecution is that Chander Shekhar, a Rickshaw Puller was a tenant in the house of Nand Lal, father of the appellant and was staying in that house with his children. Urmila, the prosecutrix was the eldest child of Chander Shekhar. She is stated to be of 13 years.

On 27-12-1987, at about 3-45 AM, Urmila allegedly went out of the house to ease herself. She did not return for about 1/2 an hour. Chander Shekhar and his wife/Saroj went out to search for her. During the search, when they reached near the fodder room of their landlord, they heard the depressed cries of Urmila. Consequently, they went inside the fodder room and saw Urmila lying naked on the ground and the appellant lying on her with his hand on her mouth. After seeing Chander Shekhar and Saroj, the appellant ran away. Urmila then told her parents that she had come out of the room to urinate and as she was going back, the appellant came from behind, gagged her mouth and took her in the fodder room, threatening that in case she raised a noise, she would be killed and that thereafter the appellant allegedly removed her clothes, then his own clothes and committed rape upon her against her wishes and when she tried to make a noise, he allegedly placed his hand on her mouth. Thereafter Chander Shekhar alongwith his wife and the prosecutrix went to police post Sector 36, Chandigarh and he made his statement Exhibit PE, on the basis of which the formal First Information Report (Exhibit PE/2) was recorded. The prosecutrix was got medico legally examined. A swab was taken from her vagina. Her underwear was also taken into possession. These were sealed and all the other legal formalities were completed.

The appellant was charged for the offence punishable under Sections 363, 366 and 376 of the Indian Penal Code.

On a consideration of the entire evidence, he was convicted and sentenced by the learned trial Court, as indicated above. Aggrieved by the impugned judgment of conviction and sentence, he has preferred the present appeal.

I have heard Mr. T.S. Sangha, learned counsel for the appellant, Mr. R.K. Handa, Standing Counsel for the Union Territory, Chandigarh. With their assistance, I have gone through the entire record as also the other relevant documents. The case of the prosecution mainly hinges on the evidence of Urmila, the prosecutrix, Chander Shekhar and two doctors namely Dr. (Mrs.) Harbir Bajwa and Dr. S.P. Bhardwaj and the same would be the subject matter of discussion in this appeal.

Mr. Sangha at the very out-set has vehemently argued that at the time of commission of the alleged offence, the age of Urmila/prosecutrix was between 17 to 19 years and that the finding of the learned trial Court that she was less than 16 years is uncalled for. According to Mr. Sangha, no documentary evidence viz. birth/school certificate has been produced by the prosecution to prove her age and when Dr. S.P. Bhardwaj (PW-2) had radiologically examined the prosecutrix, he found her to be 17 years with a margin of 2-1/2 years on either side. Developing his arguments on this count, Mr. Sangha has submitted that the trial Court has taken the margin of 2-1/2 years on a lesser side in favour of the prosecution, whereas it should have been taken on a higher side, in favour of the appellant. In this context, Mr. Sangha has also referred to the statement of Dr. (Mrs.) Harbir Bajwa (PW-1), who had medico legally examined the prosecutrix and found that her breasts and the public hair were well developed. Mr. Sangha thus contends that in all probabilities, the age of the prosecutrix was in between 17 to 19 years.

The next contention of Mr. Sangha is that once the age of Urmila is taken to be 17 years and above, then from the evidence led by the prosecution, it can be safely said that she was a consenting party to whole of the affair. For that Mr. Sangha has taken me through the statement of the prosecutrix (PW-8), where she has deposed that when she went out of the house in order to urinate, the appellant came from behind, took her to the fodder room and made her fall on the ground and removed his clothes as also her clothes. She has further admitted that she remained in the fedder room with the appellant for about 1/2 an hour and when her parents arrived there, she was lying nude and the appellant had already committed rape upon her. Mr. Sangha submits that the evidence of the prosecutrix is an indicative of the fact that she had offered her consent to the appellant and that when she was caught red handed, she was left with no option except to coin up the present story of forcible inter-course. Mr. Sangha has also taken me through the evidence of Chander Shekhar (PW-7), who states that he and his wife were sleeping when her daughter Sharmila, younger to Urmila, got up for attending the call of nature. He asked Sharmila to awaken Urmila and then Sharmila told him that Urmila was not there. As per the statement of Chander Shekhar, his daughter was found in the fodder room alongwith the appellant and both were naked at that time. Mr. Sangha then contends that it is not possible to believe that the appellant knew that Urmila would come out of her house at 3-45 A.M. on 27-12-1987 (during winter season) and would be taken to the fodder room for committing rape. Rather, Mr. Sangha submits, from the evidence adduced, it can be safely inferred that Urmila, who was of the age of 17 years and above, had consented to join the company of the appellant.

On the other hand, Mr. Handa appearing for the respondent while refuting the arguments advanced by Mr. Sangha has strenuously argued that the case of the prosecution is proved to the hilt. According to him, age of the prosecutrix was below 16 years at the time of alleged occurrence. In the same breath, Mr. Handa has submitted that even if for the sake of arguments her age is taken to be 16 years and above, the evidence adduced by the prosecution shows that she was not at all a consenting party and was forcibly raped by the appellant. Mr. Handa has referred to the stand taken by the appellant in his statement recorded u/s 313 of the Code of Criminal Procedure, in which he has stated that it was a false case foisted upon him on account of the fact that the payment of rent was not made by Chander Shekhar, father of the prosecutrix for the last one year despite persistent demands and contends that the complainant side would not bring forward Urmila on account of rent dispute in the shape of the present allegations.

After scanning the evidence on the file and hearing both the sides, I find force in the submissions made by Mr. Sangha.

Before discussing the age of the prosecutrix, it may be mentioned that it is an admitted fact that no documentary evidence, viz. birth/school certificate in support of the age of the prosecutrix has been produced by the prosecution. At the time of her medico legal examination the prosecutrix had given her age to Dr. (Mrs.) Harbir Bajwa as 13 years and then Dr. Bajwa had referred her to the Radiologist for the purpose of determination of her age. She was consequently examined by Dr. S.P. Bhardwaj (PW-2), who found her to be 17 years. Exhibit PB is the complete table given by Dr. Bhardwaj according to which except four bones, her other bones were shown to have been fused. One of the bones is iliac crest, which is shown to be fused and the normal age of fusion of that bone is 17 to 19 years. Since the other two main bones viz. fibula over the proximal and distal end were also found to be fused and Dr. Bhardwaj thus came to the conclusion that the age of the prosecutrix was 17 years. Keeping into consideration the fusion of all the major bones and the normal age of fusion, it can be safely said that the prosecutrix was of the age of 17 years and above. In my view, the margin of 2-1/2 years on either side is also to be extended to the higher side. In this context, my view is strengthened by the decision of the Apex Court in Jage Ram v. State of Haryana , 1987(1) RCR 346, wherein the age of the prosecutrix was 14 years with a variation of 3 years on the either side and the benefit was extended towards the accused. I thus hold that the age of Urmila/prosecutrix at the time of the alleged occurrence was 17 years and above.

I have perused the statements of Urmila, the prosecutrix and Chander Shekhar minutely and from the evidence adduced, in my view, the possibility of the consent on the part of the prosecutrix cannot be ruled out. It will not appeal to reasoning that the appellant, who had allegedly taken Urmila to the fodder room, was aware of the fact that she would come out of her house at 3-45 AM in order to urinate. At the same time a minute scanning of the statement of the prosecutrix shows that she had joined the company of the appellant of her own free will. The medico legal examination of the prosecutrix also rules out the possibility of any force being applied upon her. The relevant part from the statement of Dr.(Mrs.) Harbir Bajwa is reproduced as under:-

"Breast well developed, Axillary hair growth scanty, course hair. Public hair well developed.

Chest abdomen- no marks of violence."

Local Examination- no marks of violence.

Hymen was torn at 5(SIC) clock and 8(SIC) clock position. Old healed tears. Entroitus admits two fingers--"

This has also come in the state of the prosecutrix that when she was taken to the fodder room, the appellant had removed her clothes and his own clothes. She has also admitted that before her parents arrived at the spot, the appellant had already committed the rape upon her and that she had remained with him for about 1/2 an hour. In my view even one shriek raised by the prosecutrix would have frustrated the move of the appellant because admittedly she was staying in the house of the appellant with her parents and the members of other families were also staying there. The plea of the prosecutrix in this situation that she could not raise hue and cry as her mouth was gagged by the appellant, is not at all believable.

The statement of Chander Shekhar (PW-7) is also to the effect that when he reached the fodder room, he saw the appellant and his daughter lying naked. It has also come in his statement that the appellant was nabbed then and there. However, the prosecution case is that he was arrested on 30-12-1987. In my view, the formal arrest of the appellant would otherwise would not make dent but the fact that he was taken into custody the same day by some officials of the CRPF, as said by Chander Shekhar, would go to show that the prosecutrix and the appellant in fact were caught red handed by certain mohalla-walas and as such the prosecutrix had no option except to come up with the present story. In the complaint lodged initially by the father it was, however, alleged that the appellant had run away from the spot when witnessed by the parents of the prosecutrix. These two divergent statements go to the root of the case.

The totally of the circumstances of the present case belies the prosecution story as alleged.

the stand taken by the appellant in his statement u/s 313 Cr.P.C. would not be a factor to be considered against him if the prosecution case otherwise falls because of inherent infirmities. There can be no dispute about the proposition that the consent can be inferred by the Court from the evidence adduced even if not specifically pleaded. This view of mine is fortified by the decision of this Court in Pappu v. The State of Punjab 1985(2) RC R 126.

As a sequel to the aforesaid discussion, in my considered view, the prosecution has not been able to bring home the guilt to the appellant. Consequently, the appeal succeeds, the impugned judgment of conviction and sentence is hereby set-aside and the appellant is acquitted of the charges framed against him. The bail/surety bonds furnished by him during the pendency of the appeal, stand discharged forth-with.