Parvati vs State of Haryana

Jitendra Chauhan, J.—This judgment shall dispose of both the abovementioned appeals. CRA No. 596 SB of 2001, has been filed by

Parvati and CRA No. 606 SB of 2001 has been filed by Naresh Kumar @ Nesha against the judgment and order dated 12/16.4.2001, whereby

Parvati was convicted and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 500/-; in default of payment of fine,

to further undergo for one month u/s 363 of the Indian Penal Code; further sentenced to undergo RI for ten years and to pay a fine of Rs. 1000/-

and in default of payment of fine, to further undergo RI for two months u/s 366 of IPC; further sentenced to undergo RI for six months u/s 342

read with Section 34 of IPC, all the sentences were order to run concurrently. Naresh Kumar accused was convicted and sentenced to undergo

RI for ten years and to pay a fine of Rs. 2000/- and in default of payment of fine, to further undergo RI for two months u/s 376 of IPC and further

sentenced to undergo RI for six months u/s 342 read with Section 34 of IPC. All the sentences were order to run concurrently. The facts

necessary for adjudication of the matter as narrated in para nos.2 and 3 of the impugned judgement are as under:-

On 8.11.1999, Parvati accused approached the prosecutrix while she was sleeping with her sister in a room of her house. She woke her up and

took her to the Chaubara (top floor) of the house of Naresh accused, who was already present there. She was lodged into a room there and

Parvati accused told her that she had a good opportunity of eloping with Naresh accused. She then bolted the room from outside and moved away

with Naresh accused saying that he would return soon after chalking out a programme. After some time, Naresh accused entered the room and

bolted it from inside. He asked the prosecutrix that she would have to now stay there hiding herself as the villagers had already got up. He then

committed rape upon her. He gagged her mouth and threatened to kill her as she tried to make a noise. Thereafter, he left the room with the

direction that she should keep herself concealed beneath the bed from his mother or sister in case either of them happened to visit the first floor.

She was told that she would be done to death if his instructions were not strictly followed. The prosecutrix then lied on the floor and went into

sleep.

In the evening, Naresh accused entered the room to tell her that it would not be possible for them to leave the village since her parents were

searching her. He then again forcibly committed sexual intercourse with her and moved away after bolting the door from outside. She kept on

hearing the conversation which was being made by the women folk of the village during the night and enquired from Naresh accused when the

latter had re-entered the room, as to what was being loudly discussed outside. She was told that a village Panchayat was going on with regard to

her missing. She was kept confined in the room throughout the night and Naresh accused committed yet another forcible act of sexual intercourse

with her. In the wee hours of the next morning i.e. on 9.11.1999, Bhago who was Mausi of Naresh accused, took her out of the room and left her

near the heap of Parali in the village. She was noticed sitting and weeping thereby one Somi who then took her to her house. Her father was

bringing her to police station for reporting the matter but Surjit Kumar, Sub Inspector (S.I.) met them at bus stand of village Khuda, where he

alongwith other policemen was patrolling. The prosecutrix narrated the whole incident to him. Her statement was recorded and on its basis, First

Information Report (FIR) was drawn up thereby registering a case under Sections 363, 366, 376 read with Section 34 of the Indian Penal Code

(IPC).

After completion of the investigation, the challan was presented in the Court. The accused Parvati was charged under Sections 363, 366, 342

/34 of IPC and accused Naresh Kumar was charged under Sections 376, 342 /34 of IPC, to which, they did not plead guilty and claimed trial.

In order to substantiate the charges, the prosecution has examined PW1 HC Ved Parkash, PW2 Constable Sukhdev Singh, PW3 Constable

Dayal Chand, PW4 Constable Jai Bhagwan, PW5 Constable Ram Saran, PW6 SI Gurbachan Singh, PW7 Dr. Shashi Tripathi, PW8 father of the

prosecutrix, PW9 prosecutrix (Name of the prosecutrix withheld in view of Supreme Court guidelines in 2004 Criminal law Journal page 1),

PW10 Dr. Satish Kumar, PW11 Surjit Kumar, Investigating Officer, PW12 Smt. Harminder Kaur, Head Teacher and by tendering some

documents, closed its evidence.

When examined u/s 313 of the Code of Criminal Procedure, the accused-appellants denied all the incriminating circumstances appearing in the

prosecution evidence against them and pleaded false implication. In defence, they examined Dr. S.S. Punia, Radiologist as DW1 and closed the

evidence.

After analysing the entire evidence and hearing the learned counsel for the parties, the learned Trial Court convicted and sentenced the accused-

appellants as noticed at the outset.

Feeling dissatisfied with the same, accused-Parvati preferred CRA No. 596 SB of 2001, which was admitted on 21.5.2001, and thereafter, on

12.7.2002, her sentence was suspended; accused Naresh Kumar @ Nesha preferred CRA No. 606 SB of 2001, which was admitted on

23.5.2001, and thereafter, on 13.1.2003, his sentence was suspended.

Learned counsel for the appellants submits that the learned trial Court committed a grave error while convicting the appellants. He submits that

there is no conclusive proof regarding age of the prosecutrix. He refers to Ex.D1, the Ossification Test of the prosecutrix and submits that as per

the same, her age had been opined between 14 = to 16 years and therefore, possibility of age variation on either side of two years cannot be ruled

out. He further submits that it was a case of consent and the same is proved from the statement of PW7 Dr.Shashi Tripathi, who had medico

legally examined. As per her statement, the prosecutrix was habitual to the act of intercourse. He further submits that as the prosecutrix was a

consenting party, therefore, the appellant could not be held guilty of either kidnapping or committing rape upon her.

On the other hand, the learned State counsel refers to the school leaving certificate Ex.PS, in which the date of birth of the prosecutrix has been

mentioned as 15.10.1988 and contends that as per the said certificate, the prosecutrix was minor at that time.

I have heard the learned counsel for the parties and perused the record carefully.

From the perusal of the record, it emerges that the learned trial Court placed reliance upon the school leaving certificate Ex.PS, wherein the

date of birth of the prosecutrix has been mentioned as 15.10.1998 and therefore, he was less then 18 years of age. But no evidence has been led

by the prosecution to prove that on the basis of which document this birth entry was recorded in the school record. PW12, Harminder Kaur, who

had issued School leaving certificate Ex.PS, had testified that the date of birth was written in the certificate on the basis of information supplied by

the parents of the prosecutrix at the time of her admission into the school. The relevant papers in this regard submitted by the parents have not

been brought on record. DW1, Dr. S.S. Punia, had conducted ossification test on the prosecutrix on 2.2.2000, and submitted the report Ex.D1,

indicating that she was aged between 14 = to 16 years. He further deposed that there could be error of two years on either side in determination of

her age on the basis of ossification test.

In Avdesh Vs. State of Haryana, this Court has held that the possibility of age variation, on either side of two years, in the ossification test,

could not be ruled out. If two views are possible from the evidence, produced by the prosecution then the view which is favourable to the accused

is required to be taken.

The next limb of argument raised by the appellant is that the prosecutrix was a consenting party. PW7 Dr. Shashi Tripathi, Medical Officer,

who had conducted the medico legally examination upon the prosecutrix deposed as under:-

On 9.11.1999 at 9.30 PM, I medico legally examined prosecutrix, 14 years, female r/o Village Sapera, District Ambala on police request. Patient

gave the history of having gone with her aunt to her place around 4 AM on 8.11.1999 and returned on 9.11.1999. She gave the history of having

repeated intercourse. On examination patient conscious, general condition was satisfactory. Age of minor 12/13 years. Periods regular 3/4 days.

Breasts developed. Pubic and axillary were present. No external injury seen. LMP not known says few days back. PV examination, Vaginal

secretion present, not blood stained. Libia majora and minora well developed. Hymen ruptured, os admits two fingers, Uterus antiverted, normal

size present. Vaginal swab sent to FSL Madhuban. In my opinion she is habitual to the act.

The statement of the prosecutrix is reproduced as under:-

I know accused Naresh who is my uncle in relation. He lives in the same street which my house situates. Naresh used to tell me that he likes me as

and when he happened to meet me. He also used to say that I should marry him. My Mausi (maternal aunt) Parvati also used to tell me that

Naresh was a good boy and I should marry him. On 8.11.1999 I slept with my sister in my house. In the morning, Parvati came to me and asked

me to go out with her. I accompanied her and she took me to the house of Naresh accused. Naresh accused was present there. Parvati took me

to Chaubara of Naresh and she bolted the room from outside. After some time Naresh entered the room.

In her cross-examination she has deposed as under:-

No person met me while I was being taken by Parvati to the house of Naresh accused. I had never been to the house of Naresh prior, to that time.

I tried to make noise but my mouth was gagged by Parvati when I was being forced to enter the house of Naresh accused. She gagged my mouth

on the way in order to stop me from raising Raula. There are house on both sides of the street in between our house and the house of Naresh

accused. I raised noise and also wept in the Chaubara when Naresh accused met us there I did not call any person by name from Chaubara from

rescuing me. The house of Naresh abuts the main street. I did not raise noise to rescue myself during the day when Naresh was not there in the

Chaubara.

The age of accused Naresh Kumar was 19 years at the time of occurrence.

From the reading of the above statement of the prosecutrix, it emerges that the prosecutrix was earlier known to accused Naresh Kumar. If

she had any grouse against the accused Naresh Kumar, she would have made a complaint to her parents or would have brought in the notice of

some in whom she reposes faith. But there is nothing on record in this regard. Parvati is the real sister of the mother of the prosecutrix. In her

statement, the prosecutrix admitted that she went alongwith Parvati on her own. It is improbable and unbelievable that Parvati had taken her

forcibly from her house in the presence of other members or after extending any threat to her to go to the house of accused Naresh Kumar. The

fact as to when in the morning, she went to the house of the accused is neither mentioned in the FIR, nor in the statement of the prosecutrix. She

stated that she remained mum throughout the day and slept whole day in the Chaubara. Furthermore, as per the site plan, there was a window in

the Chaubara, which opened in the main street. When she was alone she did not raise any alarm. Moreover, PW7 Dr. Shashi Tripathi had

deposed that there was no external or internal mark of injuries on the body of the prosecutrix. She further opined that she was habitual to

intercourse. In the villages, the roof of the houses adjoins each other, and the prosecutrix made no efforts, raised no hue and cry, so that the

neighbourer could have come to her rescue in the Chaubara. When accused-Parvati made her to woke up, she did not inform her other family

members. The various circumstances on the file show that the prosecutrix was a consenting party. The site plan shows that forcible rape in the

midst of the village is impossible as stated by the prosecutrix. The relations of the family of the prosecutrix and that of both the accused were sour

over money dispute and there was possibility of false implication.

Keeping in view all the circumstances, this Court comes to the conclusion that the prosecution has failed to prove its case against the accused

beyond reasonable doubt. In view of the above discussion, both the appeals are allowed; setting aside the impugned judgment/order of conviction

and sentence. The accused-appellants Parvati and Naresh Kumar @ Nesha are hereby acquitted of the charged offence.