Niranjan Singh & anr. vs State of Haryana

A.S Bains, J.

Niranjan Singh and Kehar Singh appellants along with their two coaccused Karam Singh and Ajaib Singh were tried for the offence under section 366, Indian Peril Code and Kehar Singh, and Ajaib Singh coaccused were also tried for the offence under section 376, Indian Penal Code, in the Court of Shri R. P. Bajaj. Additional Sessions Judge, Ambala. The learned trial Court vide judgment dated 25th July, 1983, acquitted Kehar Singh appellant and Ajaib Singh coaccused of the charge under section 376, Indian Penal Code and also acquitted Karam Singh coaccused of the charge under section 366, Indian Penal Code. It convicted the appellants and Ajaib Singh coaccused for the offence under section 366, Indian Penal Code and vide order dated 26th July, 1993, released Ajaib Singh coaccused on probation under section 4(1) of the Probation of Offenders Act for period of two years on his entering into bail and surety bonds in the sum of Rs. 2000/ each for keeping peace and being of good behaviour. It sentenced the appellants to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500/ each or in default of payment of fine, to undergo further rigorous imprisonment for six months each. The fine of Rs. 500/ is stated to have been paid by them. Their coaccused Vinod alias Shiv Kumar could not be apprehended and so he was declared a proclaimed offender. The appellants have challenged their conviction and sentence by way of this appeal.

The prosecution case as set up at the trial was as follows :

Dile Ram (P.W.4), resident of village Lawana, made a report at Police Station Chappar on 13th August, 1982, that he had five children and Roshni Devi (P W. 7). prosecutrix is his second child aged 171/4 years. On 8th August, 1982, at about 7 p.m. she went out of the house along with her cousin Nanhi alias Krishna (P.W. 5) in order to answer the call of nature. Roshni Devi PW ran away saying that she was feeling frightened. T.V. was on and, therefore, it was felt that she might have gone to see T.V. By about 9.30 p.m. when Roshni Devi PW did not return to the house. search was made but Roshni Devi was not traceable. It was further alleged by Dile Ram PW that one Vinod Brahmin or U.P. (absconder) working at the flour mill of Jarnail Singh, used to visit his house. He was also searched for, but he could not he traced. Therefore, M 4 Dile Ram suspected Vinod for having taken away his daughter Roshni Devi with a view to marry her.

The case was registered against the appellants on the aforesaid report. First Information Report is Ex. PF.

Roshni Devi prosecutrix (PW7) was produced by her father Dile Ram (PW 4) and Chamel Singh Sarpanch (D W. 1) before S.I. Ram Lubhaya (PW 9) on 26th August, 1982. The SubInspector recorded her statement under section 161, Criminal Procedure Code and got her medially examined on 27th August, 1982. Her statement under section 164, Criminal Procedure Code, was also got recorded before Shri P.L. Ahuja, Judicial Magistrate Ist Class, Jagadhri on 17th August, 1982.

Roshni Devi prosecutrix (PW7) was medicolegally examined by Dr. Mrs. C.K. Shukla (PW. 2) on 27th August, 1982 and according to the doctor, there was no external mark of injury on the person of Roshni Devi. Her breasts were well developed. Pubic hair were not matted. There was no crest on labia majora or minora. The vagina admitted two fingers. She had refferred Roshni Devi PW to the Radiologist Civil Hospital Ambala, for confirmation about her age. P.W. 1 Dr. K.C. Marwah conducted radiological examination and opined that she was between 15 and 16 years of age.

At the trial, the appellants denied the prosecution allegations and pleaded false implication. They stated that Roshni Devi had herself eloped with Vinod alias Shiv Kumar (proclaimed offender). In their defence they examined D.W. 1 Chamel Singh, Sarpanch of the village.

The prosecution case rests on the testimony of Roshni Devi prosecutrix (PW7), Dile Ram (PM. 4) and Krishna Devi (PM. 5). According to Roshni Devi P.M. she along with Krishna Devi PW had gone to ease herself at about 9 p.m. on the day of occurrence. Niranjan Singh appellant came out of the sugarcane field and closed her mouth with a cloth and she had cried. At this Krishna ran away due to fear. Thereupon, three more persons, namely, Kehru Mehar Singh Appellant), Ajaib and Shiv Kumar alias Vinod Kumar (absconder) came there and they forcibly took her to various places, which she could not name and ultimately she was brought to village Bahri, where she was kept in the house of Karam Singh (acquitted coaccused) for a period of fifteen days. Roshni Devi P W further stated that she had told the wife and daughter of Karam Singh in his presence that she had been forcibly brought there. After fifteen days, when Chamel Singh Sarpanch of village Lawana (D.W. 1) told the accused that the matter stood reported to the police, Shiv Kumar alias Vinod Kumar, Kehru, Niranjan and Ajaib Singh accused took her to the fields of Gandhi alias Karani Singh coaccused (since acquitted). There all the accused, including the appellants, raped her turn by turn and she was handed over to Shiv Kumar alias Vinod. He brought her to Jagadhri in a bus, from where she went to the house of her uncle who was living at Jagadhri. She remained in that house for four days and thereafter went to her village Lawana. Police took her to the police station, where she was detained for the night and beaten. Next day she was taken to the Court at Jagadhri, where she made her statement. She was also medically examined.

Her statement does not inspire confidence. She had made considerable improvements over her statement before the police. She did not mention the name of any of the appellants before the police nor did she make any allegation against the appellants before the Magistrate when her statement under section 164, Criminal Procedure Code, was recorded. In her statement before the police she does not name Niranjan Singh and Kehar Singh Appellants or Ajaib Singh coaccused as her kidnappers. She seems to be a girl of easy virtue, as according to the medical evidence of Dr. (Mrs.) C.K. Shukla (PW 1), her vagina admitted two fingers. Moreover, no injury was found on any part of her body or private part. Thus, in these circumstances, no reliance can be placed on her statement.

P.W.4 Dile Ram, the father of the prosecutrix, in the first information report lodged before the police, on 13th August, 1982, did not name any of the appellants. His suspicion was only on Vinod Kumar alias Shiv Kumar (proclaimed offender).

P.W.5 Krishna Devi in her statement before the police also did not mention any of the appellants as the kidnappers of Roshni Devi (prosecutrix). It is in her statement that she did not talk about the matter to anyone, even to her uncle Dile Ram (P.W. 4) that Roshni Devi PW had been kidnapped by the appellants. The observation of the trial Court that the investigating officer S. I. Ram Lubhaya (P.W. 9) did not record the statement of the prosecutrix properly is also uncalled for. There is nothing on the record to show that the investigating officer was inimical towards the complainant party or was interested in the appellants. It is in the statement of Chamel Singh Sarpanch (D. W. 1) that a panchayat was held in respect of the occurrence and the consensus was that Roshni Devi PW had one with Vinod alias Shiv Kumar and a report be lodged with the police. It seems that Roshni Devi PW had an affair with Vinod Kumar alias Shiv Kumar (proclaimed offender) and it might be with whom she left at her own accord. It is also doubtful as to how she appeared before the police. According to S. I. Ram Lubhaya (PW9), she was brought to the police station by her father Dile Ram (P. W 4), but according to Dile Ram PW, she was already in the police station.

For the reasons recorded, I am of the view that it is not safe to maintain the conviction of the appellants. They are given the benefit of doubt and acquitted.

In the result the appeal succeeds and is allowed and the conviction and sentence as recorded by the trial. Court is set aside. They are on bail. Their bailbonds shall stand discharged. Fine, if paid, shall be refunded to them.