Pooran Ram vs State of U.P.

Hon''ble Servesh Kumar Gupta, J.—The Judgment and order dated 22.11.1999 delivered by Additional Sessions Judge, Haldwani, Nainital in Sessions Trial No. 476 of 1997 titled as State Vs. Pooran Ram has been assailed wherein the appellant was found guilty by the learned Additional Sessions Judge for the offence u/s 376 IPC and sentenced to undergo 10 years rigorous imprisonment along with fine of Rs. 2,000/- and in default of payment of fine, he was further directed to undergo three months additional simple imprisonment.

In brief, the facts are that appellant Pooran Ram and prosecutrix Km. Meena resided in the same vicinity at a distance of hundred paces. Father of prosecutrix Km. Meena, was a labour. She has two brothers indulged in same work. A complaint case was instituted by Mohan Ram, father of prosecutrix, against accused Pooran Ram and Khimuli Devi wherein it was averred that his wife had already expired 15 years ago. He has two sons aged about 19 years and 17 years, besides a daughter Km. Meena (prosecutrix) aged about 15-year. On account of his work, he remained outside from his house for the whole day along with his two sons and Km. Meena was left at residence. Accused Pooran Ram, in absence of male members of family, courted his daughter. Once on 09.06.1995, he noticed visit of accused in his house. On being asked, Km. Meena disclosed everything that Pooran Ram is courting her for the last one year and he has established illicit sexual relation with a promise to marry her resultantly, she has been conceived for the last five months. When this fact came to the notice of complainant Mohan Ram, he asked accused Pooran Ram to marry with Km. Meena but it was completely denied by accused Pooran Ram and his mother and they also threatened to kill him and his daughter, if the insistence for the same is rendered any longer. The complainant Mohan Ram went to Police Station for lodging the FIR but the police did not pay any heed to his complaint so he sent the same to Senior Superintendent of Police, Nainital by registered post and instituted the instant complaint in the court on dated 14.07.1995. After recording the statement of complainant and his witnesses u/s 200 and 202 Cr.P.C. respectively, learned Magistrate took cognizance of the matter and committed the case to the court of Sessions, being exclusively triable by the same.

It is also pertinent to mention that before launching this complaint Km. Meena was produced by her father in Government Female Hospital, Haldwani where she was medically examined and it was revealed that she was carrying eight and a half month''s pregnancy on 27.07.1995. In the medical examination, it was reported that her breast were well developed, auxilliary and public hairs were also developed, there was no external mark of injury, two fingers can easily be admitted in her vagina and there was no abnormal discharge.

Levelling of charge was agitated by the accused in front of Sessions Judge but the learned Sessions Judge found it appropriate and sufficient to level charge for the offence u/s 376 IPC against accused Pooran Ram while his mother Khimuli Devi was discharged from offence u/s 376, 506 IPC, so accused Pooran Ram was put to trial.

In order to prove its case, prosecution has examined PW1 Mohan Ram (complainant), PW2 Km. Meena (prosecutrix), PW3 Surendra, real brother of victim and PW 4 Dr. Nisha Pandey. After recording the statement u/s 313 Cr.P.C. accused was directed to produce his defence, if any. So he has examined DW1 Kailash Chandra, Steno in the office of Circle Officer, Police, Haldwani. DW2 Udai Veer Singh Tomar, Circle Officer and CW1 Heera Devi, Gram Pradhan of the village.

In the statement recorded u/s 313 Cr.P.C. accused has stated that a false report was forwarded by the complainant to Senior Superintendent of Police, Nainital which after investigation proved to be farce. Since Mohan Ram was intended to espouse his daughter Km. Meena with him and on being denied, he has been implicated falsely.

Learned counsel for the appellant has read the report of Udai Veer Singh Tomar, Circle Officer (Deputy Superintendent of Police), Haldwani before this Court which is Exhibit Kha 1 and this report has been forwarded by the concerned officer to Senior Superintendent of Police. On the basis of complaint sent by Mohan Ram to Senior Superintendent of Police, Circle Officer has inquired into the matter. During investigation, he had interrogated with Mohan Ram (complainant), accused Pooran Ram and other respected persons of the same village namely Chet Ram Sagar, Shirish Chandra, Jagdish Chandra, Kheema Nand and Amba Ram. All these dignified persons of the society have disclosed that complainant Mohan Ram is a crooked person. His wife was expired 14-15 years ago and with regard to allegations made by Mohan Ram about illicit relation of Pooran Ram with Km. Meena, it was their unanimous opinion that Km. Meena remains indulged in the activities of sensual gratifications, having her illicit intimacy with a number of boys and the complainant and his family members were blackmailing Pooran Ram deliberately. Complainant Mohan Ram was persuaded by the persons of his community but all went in vain. It was also divulged in the investigation so conducted by the Circle Officer that Mohan Ram himself had illicit physical relation with his elder daughter, who later on was sold to a person of Sikh community. All the persons, aforenamed also disclosed that on account of this knavish nature, Mohan Ram has been ousted from the community. It was further manifested that Mohan Ram himself remained indulged in submitting her daughter for sensual enjoyment of outside persons and thus, casting an aspersion to the entire community. With the report, inter alia, as above police did not deem it necessary to take further action on the report of Mohan Ram, so it was consigned to the office of Senior Superintendent of Police, Nainital which has been proved in defence.

Learned counsel for the appellant has argued that there was no rape in the instant case, as envisaged u/s 375 IPC because it was (if any) with the consent of Km. Meena. She submitted herself willingly for the purpose and at the relevant time, she was more than 16 years of age. To prove her age more than 16 years, attention of this Court has been drawn towards the statement of Km. Meena made in her cross examination that her real brother Surendra is one year older than her and on 06.05.1999 when Surendra was produced by prosecution for examination in the court he disclosed his age as 25 years. It does mean that on 06.05.1999 Km. Meena would be 24 years of age. It further means that in the beginning of 1995 she should be 20 years of age. Besides, in the second page of cross examination witness Surendra has stated that his statement were recorded before the Magistrate three years ago and that time he disclosed his age as 19 years, it would mean that his statement before Magistrate (under Section 202 Cr.P.C.) was recorded in May 1996 and at that time he was aged about 19. If statement of Km. Meena is accepted that his elder brother is one year older than her, it would mean that in May 1996 she was 18 years of age. It would further lead to a calculating conclusion that even in the beginning of 1995 she was more than 16 years of age, so this way finding of the trial court that she was below 16 years of age is not acceptable.

Fortiori, it is pertinent to mention that no ossification test was ever conducted for determining the age of Km. Meena. Doctor in her medical examination report Exhibit Ka-3 has mentioned her age as 15 years, as told by her father. No explanation has been submitted by the prosecution or victim''s father as to why she was not subjected to ossification test for determination of age, so this presumption goes against the prosecution. Therewithal, PW1 Mohan Ram, while deposing before the Court at page no. 2, has admitted that another medical examination of Km. Meena was got done just before a day of instituting of complaint and that medical report has not been produced by him, which may further raise a suspicion that her age in that medical examination has been disclosed differently and this is the reason why this medical examination report has not been brought before the court.

All the more, Exhibit Ka 4, copy of family register has been produced and got proved in defence, which discloses the year of birth of Km. Meena as 1988. Although date and month of birth are not mentioned in this family register but even if her date of birth to be taken in the end of 1988 then also in the beginning of 1995 she would be more than 16 years of age.

Learned Brief Holder for the State has relied upon Section 114A of the Indian Evidence Act, 1872, which reads as under:

114-A. Presumption as to absence of consent in certain prosecutions for rape:- In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub- section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.

It has been contended on behalf of the prosecution that Km. Meena has categorically stated in her chief examination that she was raped forcibly by accused Pooran Ram and this presumption, as envisaged by the provision (supra) makes it mandatory upon the Court to presume that she did not consent, if she stated in her statement before the court that she did not consent.

Per contra, Sri S.K. Agarwal, learned Senior Advocate of the appellant has relied upon the judgment rendered by Hon''ble Apex Court in the case Vijayan Vs. State of Kerala reported in 2009 (3) SCC (Cri.) 585. The facts of above precedent are almost identical. In that case also the prosecutrix was of 17 years of age, having sexual intercourse with the accused a number of times on the promise that she will be married later by the accused so First Information Report was not filed. In that eventuality Hon''ble Apex Court was of the view that in such cases where sole testimony of the prosecutrix is available, it is very dangerous to convict the accused, specially when the prosecutrix could venture to wait for seven months for filing the FIR of rape. This leaves the accused totally defenceless. Had the prosecutrix lodged the complaint soon after the incident there would have been some supporting evidence like the medical report or any other injury on the body of the prosecutrix so as to show the sign of rape. If the prosecutrix willingly submitted herself to sexual intercourse and waited for seven months for filing the FIR it will be very hazardous to convict on such sole oral testimony.

The amendment, adding Section 114 A in the Indian Evidence Act, was brought by the Legislature in 1983 whereas the precedent, as relied upon by Learned Counsel for appellant, is of 2009 and it is well established notion of criminal jurisprudence that the ratio laid down by the Hon''ble Apex Court and High Courts is clarification and explanation of statutory law. Moreover, it is not a case that court shall presume the sexual intercourse without consent of the prosecutrix, if she states on oath before court as such, come what may. There is no plausible explanation with her to hide the happenings with her (if any) continuously for 7-8 months. Had there been any forcible intercourse with her, there was no reason with Km. Meena to keep this fact concealed from her brothers and father for such a long period, just on the superfluous compromise on the part of accused Pooran Ram to marry her in future. In these circumstances, it can be well be discerned inter alia that she was well consented a party and the sexual access by the accused was (if any) with all her willingness and consent and at the relevant time, she was more than 16 years of age.

In view of panoptical explanation as stated above, this appeal is allowed. Impugned judgment and order dated 22.11.1999 passed by Additional Sessions Judge, Haldwani, Nainital in Sessions Trial No. 476 of 1997 is hereby set aside. Appellant is on bail. He needs not to surrender. He is acquitted from the charge of offence u/s 376 IPC. Let the lower court record be sent back.