Om Parkash @ Mitha @ Prem vs State of Haryana

H.S. Bedi, J. (Oral)

This appeal arises out of the following facts : On 21st May, 1986, PW2 Ikrammudin son of Shadruddin was sleeping on the roof of his house while his children were sleeping the Courtyard. When he got up in the morning, he found that his daughter Saira Banu had disappeared. A search was, accordingly, made by him, but as she was not traceable, a report Ex. PB was lodged with the police Station, Dadri, in which he mentioned that Om Parkash accused had abducted his daughter. After recording of the report, S.I. Sajjan Singh visited the house of Ikrammudin and prepared the site plan and searched for the accused. The investigation was, thereafter, handed over to ASI Bal Mukand PW8 who arrested the accused Om Parkash and his co accused Pale Ram on 28th May, 1986 and Saira Banu was recovered from them. The statement of Saira Babu was, thereafter, recorded by ASI Bal Mukand and she stated that on 21st May, 1986, at 10. P.M. accused Om Parkash had come to her house as she lay asleep and after awaking her, he had taken her out of the house on the pretext that his sister wanted to talk to her. Om Parkash accused, thereafter, took her towards the road leading to Mazra where a car bearing No. DLT6211 was standing. Both the accused, thereafter, took her to Sultanpuri and Delhi and while Pale Ram accused returned from there, Om Parkash kept her in a rented room taken from one Dharam Pal Jat. He introduced Saira Banu as his wife and kept her there for four/five days and committed sexual intercourse with her against her will. She was, thereafter, taken to Naurangabad, but while they were sitting in the Gulab Park, Dadri, they were apprehended by the police. On the basis of her statement, the case was converted into one under Section 376 of the Indian Penal Code and Saira Banu was got medicolegally examined on the same day from Dr. Vandana Pathak PW4, who found no mark of injury of her person. On the same day the accused Om Parkash was also got medicolegally examined by the police and it was found that he was capable of performing sexual intercourse. Pale Ram accused was arrested on 27th July, 1986 and after completion of the necessary investigations, the accused were brought to trial. The accused Om Parkash was charged under Section 376/366 of the IPC, whereas coaccused Pale Ram was charged under Section 366 of the IPC.

In support of its case, the prosecution relied upon the evidence of PW1 Saira Banu the prosecutrix, PW2 Ikrammudin the father of the prosecutrix, PW3 Narinder Singh, PW4 Dr. Vandna Pathak, PW5 Dr. T.K. Pasricha and Investigating Officers SubInspectors Sajjan Singh and ASI Bal Mukand PW7 and PW8 respective.

When examined under Section 313 of the Code of Criminal Procedure, the accused denied the prosecution allegations levelled against them. Om Parkash accused stated that he was part owner of a car alongwith Ikrammudin (father of the prosecutrix) which was being used as a taxi and that he had been falsely roped in by Ikrammudin so that he could take the car away from him. The trial Court on a consideration of the evidence came to the conclusion that the outcome of the case would hinge on the fact as to whether the prosecutrix Saira Banu was less than 16 years of age on the relevant date or not and if she was of the age of majority, the question of consent would assume importance. The trial Court, accordingly, examined the question of age and relied upon the birth entry Ex. PM, which indicated that Saira Banu had been born on 24th September, 1970 which made her age as 15 years and 8 months on the date of incident. The trial Court further found that the report of the Radiologist Dr. Prem Kumar showed her age as being between 16/17 years on the date she was examined. The Court found that this report had lost its significance in the light of the birth entry Ex. PM as the same had been duly connected with the prosecutrix, Saira Banu. Having held as above, the trial Court observed that even if it was assumed that Saira Banu had voluntarily eloped with the accused that would not help the defence as being less than 16 years of age, the consent given by her would be meaningless and would not absolve the accused from the offence under Section 376 of the Indian Penal Code. The Court further found that the involvement of Pale Ram accused was somewhat difficult to accept as it appeared that he had been roped in as being a friend of Om Parkash coaccused and having held as above, acquitted him of the charge levelled against him but convicted Om Parkash under Sections 366/376 of the Indian Penal Code. Hence, this appeal at his instance.

As already noted by the trial Court, the outcome of this case would hinge on the question of the age of prosecutrix Saira Banu on the date on which the alleged offence took place. Although, it is true that Ex. PM the birth entry indicated that she had been born on 24th September, 1970 which could make her less than 16 years of age on the date in question, yet this entry has no relevance for the reason that it pertained to one Sahara, whereas the name of the prosecutrix is Saira Banu. It is further significant that the police itself made a request to the Incharge Xray Department of General Hospital, Bhiwani that Saira Banu be examined for the purpose of ascertaining her age. The application mark A in this connection is on the record. This examination was, accordingly, conducted on 29th May, 1986 and Dr. Prem Kumar opined that radiological age of Saira Banu was between 16 to 17 years on the date in question. It is significant that the application Mark A and the report of Dr. Prem Chand was withheld by the prosecution as they apparently went against it. It has also been submitted that the documents which were in favour of the accused could not be ignored at this stage as they were on record. A reading of the report does show that Saira Banu was on the given date about 16 to 17 years of age and as this report can be err by a couple of years on both sides, the age more favourable to the accused has, however, to be accepted by the Court. Even assuming for a moment that the entry Ex. PM the birth certificate pertained to the birth of Saira Banu, yet it can be ignored in the light of the report of Dr. Prem Chand which is on the record of the case. It has, therefore, to be held that the prosecutrix Saira Banu was more than 16 years of age on the relevant date.

The conduct of Saira Banu has to be viewed in the background of the above finding. It is the admitted case that Om Parkash accused with Ikrammudin father of the prosecutrix Saira Banu were the coowners of a taxi and it has come in the statement of Saira Banu herself that Om Parkash was a frequent visitor to their house and was often a guest in residence. The facts further show that when the accused Om Parkash woke Saira Banu at about 10 P.M., she happily went alongwith him and, thereafter, to Delhi and stayed there for a number of days. Even the trial Court had found that it appeared to be a case of consent and that her elopement was a deliberate act on her part, but as a finding that she was less than 16 years of age had been given the learned trial Court was compelled to hold that the offence was technically proved. The conduct of Saira Banu clearly points out that she was consenting party to the entire incident and had gone with Om Parkash accused willingly. The involvement of Om Parkash accused in the offence under Section 376 of the IPC cannot, therefore, be spelt out against him.

The question now arises as to the involvement of Om Parkash in the offence of kidnaping under Section 366 of the IPC. Although, it is true that in the report reproduced by Dr. Prem Chand, the age of the prosecutrix has been mentioned as between 16 to 17 years, but it is commonly understood that an ossification test can err by a margin of three years on either side. As Dr. Prem Chand has not been produced, it has not been possible for the defence to elicit this information from him, but the broad principle cannot be ignored. As the prosecutrix has been opined to be between 16 and 17 years of age and there can be a margin of two or three years on either side, which would make her age between 19 to 20. In that view of the matter, the offence under Section 366 of the IPC has also not been proved against the accused.

For the reasons recorded above, this appeal succeeds and the appellant Om Parkash is acquitted of the charges levelled against him.