Rampal vs State of Haryana

Kanwaljit Singh Ahluwalia, J.—Present appeal has been preferred by Rampal son of Puran Chand. He was named as accused in case FIR No. 154 dated 15.08.1996 registered at Police Station Indri under Sections 363, 366, 376 IPC.

The Additional Sessions Judge, Karnal found the appellant guilty of offence under Sections 363, 366, 376 IPC vide judgment dated 30th July, 1998 and vide a separate order dated 31st July, 1998 sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo rigorous imprisonment for six months u/s 363 IPC. The appellant was further sentenced u/s 366 IPC to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo rigorous imprisonment for six months. The Court also sentenced the appellant u/s 376 IPC to undergo rigorous imprisonment for a period of seven years and to pay a Criminal Appeal No. 751-SB of 1998 fine of Rs. 1000/-, in default of payment of fine to further undergo rigorous imprisonment for one year. All the sentences were ordered to run concurrently.

This is another case, where a young girl had eloped with her neighbour. Therefore, this Court has to determine following two questions:

(a) What is the age of the prosecutrix ?

(b) Whether the prosecutrix had consented to the sexual intercourse or not ?

For determination of these two questions, it will be necessary to advert to the facts of the case, as in every criminal case, facts emerge from the FIR, therefore, same can be noticed. Name of the prosecutrix has been withheld to protect her identity.

On 14th August, 1996, Mangat Ram father of the prosecutrix, along with Randhir Singh Ex-Sarpanch, Rishi Pal member panchayat, Rajinder Pal member panchayat and Maya Ram, appeared at Police Station Indri and got recorded the FIR Ex.PJ. Mangat Ram stated that his daughter aged 14/15 years was present in her house. His elder married daughter Ishro Devi had come from Gurgaon a day before. On 13th August, 1996 at about 6.00/7.00 p.m. the prosecutrix was grinding flour for cooking the meals. At that time, she had a quarrel with her elder sister Ishro Devi. They exchanged slaps and fist blows. Wife of complainant''s son, Sona Devi (bhabi of the prosecutrix) separated them. When the family assembled to have the meals, it was found that the prosecutrix was missing. It was thought that the prosecutrix in anger, might have gone somewhere. At about 9.30 p.m., when the family started searching for the prosecutrix, they learnt that the appellant and the prosecutrix are missing from the village. The following line of the FIR is important to notice:

Meri larki naraz hokar ghar se apni marzi se gai hai (My daughter, due to annoyance, has left the house according to her own free will)...Weh larka bhi meri larki ke sath milkar chala gaya hai (that boy has also left along with my daughter).

Prosecutrix was produced before the police on 15th August, 1996. Therefore, in the present case prosecutrix left her house on 13th August, 1996, FIR was registered on 14th August, 1996 and prosecutrix was recovered on 15th August, 1996.

The prosecutrix was medico legally examined on 15th August, 1996 by Dr. (Mrs.) Subhita Ajmani PW-1. She noticed the age of the prosecutrix as 14 years. However, the prosecutrix was referred to the Radiologist and Dental Surgeon for determination of the age. The observations of the doctor in the medico legal examination are reproduced below:

Perinium was intact, urethra was intact, pubic hair were well developed thick coarse. Hymen showed old healed tears. Vagina admitted two fingers easily. Uterus was of normal size and forenix were cleared. Two vaginal swabs were prepared and were sent to Chemical Examiner for the detection of spermatozoa.

This witness further opined that the prosecutrix was habitual to sexual intercourse.

Dr. Virender Bharti PW-2 stated that on 18th August, 1996, he medico legally examined the appellant and gave opinion that there was nothing on record to suggest that the appellant was not capable of performing sexual intercourse.

Dr. Om Parkash Arora PW-3 from the District Health Office, Karnal produced the birth certificate Ex.PC. A perusal of the birth certificate Ex.PC reveals that the date of birth of the prosecutrix recorded therein is 25th May, 1981 and it pertains to one Mohindro Devi. What is 3 Criminal Appeal No. 751-SB of 1998 required to be noticed, is that the date of registration noticed is 6th June, 1981.

HC Dilbagh Singh PW-4 and Constable Ajaib Singh PW-5 tendered their affidavits Ex.PD and PE respectively, to prove link evidence.

Dhian Singh Patwari PW-6 proved Akshajra Ex.PF.

HC Brish Bhan PW-7 proved entry Ex.PG from the Roznamcha.

Prosecutrix herself appeared as PW-9. She stated that accused had knowledge of her altercation with her sister. She further submitted that he told her that she should accompany him and he will buy new clothes for her and will also keep her properly. The accused had committed rape upon the prosecutrix in the sugarcane fields. The prosecutrix intended to raise alarm but her mouth was closed by the accused with his hand. From the sugarcane fields, the prosecutrix was taken to Ladwa on foot by kacha path and from Ladwa, both of them boarded a truck to Yamuna Nagar. From there, they proceeded to the house of sister of the accused. After going to the house of sister of the accused, they went from Yamuna Nagar to village Kath Majra. Sister of the accused told both, the prosecutrix and the accused, to leave her house. At that time, Kishan and Maya Ram, brothers of the prosecutrix reached there. They brought the prosecutrix back and she was medico legally examined. In cross examination, the prosecutrix was confronted with her previous statement Ex.DA, where it was not stated that the accused had closed her mouth with his hand when she tried to raise alarm. In the Court, she had further stated that she was also known by the name of Mohindro. She was again confronted with her earlier statement Ex.DA, where it was not so recorded.

Mangat Ram, father of the prosecutrix, appeared as PW-8. He stated that he got recorded the date of birth of his daughter.

SI Ishwar Singh PW-10 proved recording of FIR Ex.PJ. This witness further deposed that prosecutrix was got medico legally examined.

ASI Chand Ram PW-11 proved arrest of the accused on 18th August, 1996. In cross examination, this witness admitted that ossification test of the prosecutrix was got conducted by Iswar Singh SI/SHO. He produced the prosecutrix before the Magistrate on 2nd September, 1996 for recording her statement u/s 164 Cr.P.C.

The accused was examined and his statement was recorded u/s 313 Cr.P.C. All incriminating circumstances were put to him but he denied the same and gave following version:

I was having affair with prosecutrix (name withheld), for the last about one year before this alleged occurrence. Prosecutrix had gone with me of her free will. It was she who persuaded me to accompany her. She is of the age of more than 18 years. No untoward incident, as alleged, has happened during the period she remained with me. I am innocent.

In defence, accused examined Dr. S.S. Wadhwa, Radiologist as DW-1, who stated that he carried ossification test of the prosecutrix and her age was found to be between 15 1/2 to 17 years.

Naib Singh DW-2 belonged to the village of the sister of accused. He stated that when relatives of the prosecutrix came to take her, the prosecutrix ran and had entered the fields. Ten persons entered the fields and caught hold of her and the prosecutrix was asserting that she wanted to reside with the accused.

To answer the first question regarding age of the prosecutrix, it is to be noticed that PW-1 Dr. (Mrs.) Subhita Ajmani had recommended that for determination of age, prosecutrix be examined by Radiologist and Dental Surgeon. Ossification test of the prosecutrix was conducted but the same was not tagged with the report u/s 173 Cr.P.C. An attempt was made to withhold the same from the Court. Suppression of this vital document from the Court is to be construed adversely against the prosecution, especially when defence examined DW-1 Dr. S.S. Wadhwa, Radiologist, who stated that as per ossification test, the age of the prosecutrix was determined, to be between 15 1/2 to 17 years. Furthermore, prosecution has relied upon a certificate Ex.PC. In that certificate Ex.PC, name of the child recorded is Mohindro. Name of prosecutrix is different. An attempt was made by the prosecution to say that prosecutrix, whose name was mentioned in the FIR, was also known as Mohindro. The prosecutrix was confronted with her statement Ex.DA, where the name Mohindro was not stated. She was also confronted with her statement Ex.DB recorded u/s 164 Cr.P.C., wherein the name Mohindro had also not surfaced. This conduct of the prosecution causes shadow of doubt regarding the veracity of certificate Ex.PC. Even otherwise, it has been held by the courts that where the age of the prosecutrix is on the border line of 16 years, the benefit of one or two years can be granted to the accused. Therefore, on the basis of ossification test, this Court has no hesitation to hold that on the date, when prosecutrix left her house, she was above 16 years but less than 18 years of age.

To answer the second question formulated, following facts are required to be noticed. In the FIR, it was stated that the prosecutrix had left her house according to her own free will. It was also stated that she had accompanied the accused. The prosecutrix PW-9 had stated that from the house, they went to sugarcane fields, where she was raped. But the accused had gagged her mouth with his hand. Regarding this fact, she was confronted with her previous statement Ex.DA, wherein it was not so recorded. Be that as it may, from the sugarcane fields, prosecutrix accompanied the accused to Ladwa on foot by kacha path. From Ladwa, they boarded a truck and reached Yamuna Nagar. From Yamuna Nagar, they went to village Kath Majra. In the journey undertaken by the prosecutrix, there were various opportunities for her to divulge the factum of rape. The prosecutrix opted not to whisper a word to anybody. It is in this context, that the statement of DW-2 Naib Singh assumes importance, wherein he stated that when family of the prosecutrix arrived at Kath Majra, the village of sister of the accused, the prosecutrix slipped out of the house into the fields. Ten persons caught hold of her and the prosecutrix was asserting that she wanted to reside with the accused. Therefore, it can be safely inferred that the accused and the prosecutrix were in love and the prosecutrix had eloped with the accused appellant and had consented to the sexual intercourse.

Once this Court has held the prosecutrix to be of more than 16 years of age and a consenting party to the sexual intercourse, no offence of rape is made out. Reference can be made to sixth description of Section 375 IPC. This Court has held that age of the prosecutrix was more than 16 years but less than 18 years, therefore, there is no hesitation to hold that the prosecutrix was enticed away from the lawful guardianship of her parents. Therefore, offence u/s 363 and 366 IPC is made out.

Hence, on the basis of above discussion, this Court holds that no offence u/s 376 IPC is made out and the appellant is acquitted of the charge u/s 376 IPC. The sentence awarded upon the appellant on this count is set aside. However, the sentence awarded upon the appellant u/s 363 and 366 IPC is upheld.

With the observations made above, present appeal is disposed of.