Raja vs State of Haryana

A.N. Jindal, J.—This appeal is directed against the judgment dated 08.05.1998, passed by Additional Sessions Judge (I), Jind, while acquitting the accused from the charges u/s 376 of Indian Penal Code, convicted and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 500/-for the offence u/s 363 IPC and rigorous imprisonment for a period of seven years and to pay a fine of Rs. 500/- for the offence u/s 366 IPC.

The complainant Beermati, mother of the prosecutrix (name not mentioned), as well as the appellant-accused (herein referred as ''the accused'') are from the same village. The accused used to visit the house of the complainant. However, he was prevented by the complainant as he was keeping an evil eye on the prosecutrix. On 19.05.1995, at about 6:30 p.m., the prosecutrix had gone to the fields to answer the call of nature but she did not return to the house. On making inquiries, the prosecutrix could not be found, so as the accused was also missing from his house. The complainant and her husband continued searching her. After they failed in their efforts, they met Sub Inspector Banwari Lal (PW15) at Bus Stand of village Gatoli, who after recording the aforesaid statement of Beermati complainant (herein referred as ''the complainant''), sent the same to the police station Julana. On the basis of which FIR Ex.PF/2 was registered. Ultimately, the prosecutrix was recovered from the accused on 08.07.1995. Consequently, the accused was also arrested. The prosecutrix was got medico legally examined from Dr. Abha Kilshreshtha (PW9). Her salwar, kamiz and dupatta were taken into possession. Investigating Officer also recorded the statements of the witnesses and on completion of investigation, challan was presented in the Court.

Accused was charged u/s 363, 366 and 376 IPC to which he pleaded not guilty and claimed trial.

In order to substantiate the charges, the prosecution examined as many as 15 witnesses.

When examined u/s 313 Cr.P.C., the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. However, he explained that the prosecutrix had fallen in love with him and they had been meeting secretly in the village. After coming to know about their relations, the parents of prosecutrix reprimanded and gave her beatings and restrained her from meeting the accused. However, she ignored their command. On 19.05.1995 at about 03:00 p.m., the prosecutrix came to him and put a proposal that they should elope from the village and she further threatened him that if he does not agree to her proposal then she may commit suicide. At this, they eloped from the village in a matador. The prosecutrix purchased clothes and shoes at Delhi and then they went to Kashipur (UP) and performed Court marriage there. They started to reside as husband and wife in a rented room. On 06.07.1995, the uncle of the prosecutrix accompanied by Sub Inspector Banwari Lal (PW15) came to Kashipur (UP), apprehended them and also destroyed their marriage certificate. The prosecutrix was taken to police station and was pressurized to make the statement favourable to the prosecution. She also made statement before the Court under pressure.

In defence, the accused examined Sh.Dharam Pal, the then A.C.J.M. Jind (DW1), who proved the documents Ex.PR, Ex.DB, Ex.DC and Ex.DD and closed his evidence.

However, on 06.06.1996, the accused did not appear in the Court and thereafter his presence was not procured by legal means. Ultimately, he was arrested on 11.04.1998 and the proceedings were revived.

After hearing learned Counsel for the parties, the trial Court while acquitting the accused u/s 376 IPC, convicted and sentenced him under Sections 363 and 366 IPC accordingly.

Arguments heard. Record perused. As regards the age, Birmati complainant cannot be believed to say that prosecutrix was only 15 years old at the time of occurrence. However, in the absence of any reliable evidence, the testimony of complainant needs to be more closely scrutinized with regard to age because the "maxim, falsue in uno falsue in omnibus" does not apply in India. In view of the law laid down by the Apex Court in Nasir Ali v. State of Uttar Pradesh AIR 1957 S.C. 366 wherein it was observed that this maxim has neither received general acceptance in legal jurisprudence in India nor has this maxim come to occupy the status of the rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases the testimony of a witness may be disregarded and not that it must be disregarded. In other words, it could be held that the witness could be believed on one point and he can be disbelieved on the other. As such, her testimony needs to be scrutinized throughout to find out the actual fact. The complainant in her statement though stated that prosecutrix was 14 years of age at the time of her marriage but she stated that her "gonna" ceremony was performed after 2/2 1/2 years. It means her marriage was consummated 2/2 1/2 years after it was celebrated. Therefore, from her testimony, inference could be drawn that she was not sent with her husband immediately after marriage but 2/2 1/2 years after "gonna" ceremony. As such, the Court appears to have rightly concluded that the prosecutrix was about 16/16 1/2 years of age and she was born to Birmati (PW11) when she was about 17/17 1/2 or 18 year of age. The complainant, being the illiterate and rustic could not be expected to remember the date and time of the birth of the prosecutrix. Thus, without placing reliance upon the birth certificate which cannot be connected with the prosecutrix and other medical tests, it would not be inappropriate to confirm the findings returned by the trial Court qua the age as determined by it. Notwithstanding the fact that prosecutrix was below 18 years of age yet I also do not differ with the findings of the trial Court that as she remained with the accused since 19.05.1995 to 08.07.1995 and continued committing intercourse without any objection or resistance and they also got their marriage registered, it would have to be held that she was a consenting party. The prosecutrix while appearing as PW10, has admitted that the accused Raja had committed intercourse with her in the village padana on the date of kidnapping. PW9 Dr. Mrs. Abha Kulshrestha, Medical Officer, Government Hospital, Jind has mentioned in the MLR Ex.PM that hymen was ruptured, old healed type, tags of hymen seen, vagina was loose admitting two fingers. Thus, inference could be drawn that she was habitual to intercourse. Now coming to the other question whether even though the prosecutrix was a consenting party if she was less than 18 years of age,

whether the accused could be convicted u/s 363 and 366 IPC?

It is noticed that the prosecutrix could well understand her good or bad. The intercourse took place not only after she was taken away but at village Padana also and she never disclosed about the same to her father. She went with the accused of her own accord and from the fact that they were got their marriage registered, inference could be drawn that she had the intention to become the wife of the accused. At the same time, there is no dispute about the fact that she was below 18 years of age and was taken away from the lawful guardianship of the complainant Birmati. Law is well settled that even if the minor girl is kept by her father at the house of his relative or she leaves the house of her father then the custody of the father still continues. In this regard, Section 361 is reproduced as under:

Kidnapping from lawful guardianship � whoever takes or entices any minor under sixteen years of age if a male, or under (eighteen) years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship.

Explanation: The words "lawful guardian" in this Section include any person lawfully entrusted with the care or custody of such minor or other person.

Exception� This Section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

While interpreting this provision, the Apex Court in case S. Varadarajan Vs. State of Madras, observed as under:

After pointing out that there is an essential distinction between the words "taking" and "enticing". It was no doubt observed that the mental attitude of the minor is not of relevance in the case of taking and that the word "take" means to cause to go, to escort or to get into possession. But these observations have to be understood in the context of the facts found in that case. For, it had been found that the minor girl whom the accused was charged with having kidnapped had been persuaded by the accused when she had gone out of her house for answering the call of nature, to go alongwith him and was taken by him to another village and kept in his uncle''s house until she was restored back to her father by the uncle later. Thus, here there was an element of persuasion by the accused person which brought about the willingness of the girl and this makes all the difference. In our opinion, therefore, neither of these decisions is of assistance to the State.

Here in this case, the accused also wanted to marry with the prosecutrix and with that intention he took her away. There may be many intervening circumstances that the prosecutrix agreed to marry the accused but the element of persuasion cannot be said to be missing in the instant case also. As such, the offence u/s 363 IPC stands proved. However, as regards the offence u/s 366 IPC, there is no evidence on the record in order to establish if the prosecutrix was ever forced to intercourse or she wanted to marry him against her will. The prosecutrix while in custody, does not raise objection for parting his company, therefore, no evidence to prove the offence u/s 366 IPC could be said to have been made out against the accused.

Now coming to the quantum of sentence, the accused has already undergone about three years of the substantive sentence, therefore, in the present circumstances of the case, ends of justice would be met if the sentence is reduced to that of already undergone.

In the wake of aforesaid discussion, the present appeal is partly allowed in the terms that the accused is acquitted of the charges u/s 366 IPC, however, conviction u/s 363 IPC, awarded against him, is maintained and the sentence is reduced to that of already undergone without any alteration in the sentence of fine.

Copy of this order be sent to the Chief Judicial Magistrate, Jind, for compliance.