Rang Lal & Others vs State of Haryana

Surinder Singh, J.

The three appellants, namely, Rang Lal, Balraj and Sumer Chand have filed this appeal against their conviction by the Additional Sessions Judge, Karnal, on various counts on which they were sentenced as follows:

(a) All the appellants under Section 376, Indian Penal Code, to 7 years Rigorous Imprisonment and a fine of Rs. 200/, in default of payment of fine to undergo two months further Rigorous Imprisonment each ;

(b) Balraj appellant was also convicted under Section 363, Indian Penal Code and sentenced to 3 years Rigorous Imprisonment and a fine of Rs. 200/, in default to undergo two months further, Rigorous Imprisonment. In addition, he was convicted under Section 366, Indian Penal Code, and was sentenced to 5 years Rigorous Imprisonment and a fine of Rs. 200/, in default to undergo two months further Rigorous Imprisonment.

All the substantive sentences in case of Balraj appellant were ordered to run concurrently.

According to the prosecution version contained in the First Information Report made by Inder Singh (PW5) father of Roshni prosecutrix (PW3) on August 16, 1984, he had six children, i.e. four sons and two daughters. Roshni was the third child and was mentioned as sixteen years of age. The family resided in the village Abadi. There was a doublestoryed residential house owned by Singh Ram which adjoined the house of the informant. The first floor of the house was in the occupation of the three appellants for the last two years. It is the case of the informant himself that his daughter Roshni prosecutrix used to go to his gawar for removing cowdung and for doing allied chores all alone and in the process all the appellants had developed `relations'' with her. This matter was in the notice of Sona Devi mother of the prosecutrix who had seen Roshni communicating while all the three appellants in the gawar. On account of this, both the parents of Roshni had been reprimanding Roshni to mend her ways, but without result. On the day previous to the day of the Report, Roshni and her parents had gone to their paddy field and in the afternoon Roshni was sent back to the village to bring meals from the house. She did not return to the field till 4 p.m. When her parents returned to their house, they found her missing. They tried to look for their daughter in the gawar and elsewhere, but she was not to be found anywhere. It is stated that one Sultan son of Chatru of the village told them that Roshni had been seen making overtures to all the three appellants from the roof of her house and was later noticed going from the gawar to her house. The narration in the first Information Report goes on to state that Roshni had taken alongwith her Rs. 900/ in cash and three wearing suits from her house.

After recording the First Information Report on the basis of the statement of Inder Singh, Assistant Sub Inspector Ram Phal (PW12) took up the investigation of the case and complete certain formalities. He tried to search for the appellants. It was on August 17, 1984 that he got some secret information that a jumper Exhibit P1 and salwar, Exhibit P2 were lying in the jawar field of Ramji Lal. After joining with him certain persons, the Assistant Sub Inspector went to the jawar field and recovered Jumper Exhibit P1 and Salwar Exhibit P2 alongwith a blade marked Topaz, which items were lying at the place. He also noticed a collection of hair at two places. A team of Experts of Forensic Laboratory also visited the spot, took photographs and collected some hair from two places for chemical examination. Some jawar plans on the site were found to have been trampled. On the next date, i.e. August 18, 1984, on receipt of a secret information, the Assistant Sub Inspector went and found all the three appellants alongwith the prosecutrix present at the place of information. The three appellants were taken into custody and were got medically examined. They were found to be capable of performing sexual intercourse. Roshni PW was also medically examined at Civil Hospital, Karnal by the Medical Officer. Later, she made a statement under Section 164, Code of Criminal Procedure, before the Ilaqa Magistrate. The appellants were then prosecuted with the result, already noticed.

In a matter of the present nature, it is necessary to determine the age of the prosecutrix because this factor would largely decide the fate of the case. If the prosecutrix is found to be a minor her consent in regard to her kidnaping or the alleged rape would afford no benefit to the appellants. On the other had, if she has attained majority, the question of consent would assume importance. In so far as the prosecution is concerned, it seems to rely upon Birth Entry Exhibit PJ in which the Date of Birth has been recorded as January 21, 1969 which makes the prosecutrix (if the Birth Certificate relates to her) to be 15 years and over 6 months on the date of the commission of the offence. However, the other material on the record falsified the Birth Entry. Discussing this aspect of the matter, the trial Court has come to the following conclusion in Para 18 of its judgment :

"On the cumulative force of the discussion & reasoning I am of the opinion that there is no trustworthy evidence brought on record to base the conclusion that the prosecutrix was under 16 years of age on the date of commission of the offence. On the contrary from an appraisal of all the circumstances I am of the opinion that the prosecutrix was between 16 to 18 years of age on the date of commission of the offence."

It has been rightly contended by the learned counsel for the appellants that the above conclusion of the trial Court is quite conjectural and in face of the conflicting stand by the prosecution witnesses about the age of the prosecutrix, it should have been held that she was not proved to be a minor on the date of the commission of the alleged offence. There is force in this contention of the learned counsel. As noticed by the trial Court in its discussion, the parents of Roshni gave the age of their elder son Dalel as 20 years at an earlier stage but later on they shifted the stand that his age was 23/24 years. The trial Court also observed as follows :

"As to which of the two ages be accepted as correct is left to guess but on a consideration of all the circumstances it can be safely inferred that the age of Roshni prosecutrix as disclosed by her parents is found on an abstract hypothesis."

In view of this finding, there was no basis to come to a firm finding that the prosecutrix was of the age of 16 to 18 years. The prosecution having failed to discharge the necessary burden of proving the minority of the prosecution, she had to be presumed to be major and it is in the light of this finding that the matter has to be viewed.

The next crucial consideration is the question of consent. Perhaps, there could be no better indication on this subject that the averment made by the father of the prosecutrix in the First Information Report itself, wherein he candidly admitted that his daughter was carrying on an affairs with the three appellants against the wishes of her parents, who were quite alive to the same. In so far as the evidence of the prosecutrix herself is concerned, a bare perusal thereof would reveal that her examinationinchief is more in the nature of crossexamination and during the course of her narration of events, she has left no manner of doubt that she was all through a consenting party. Some of the salient feature of her averments in the examinationinchief itself are (a) that she herself went to her house and after collecting her clothes and cash amounting to Rs. 900/ came to the gawar all alone : (b) all the three appellants proceeded ahead while she followed them at the respectable distance, her explanation being that this was done to avoid suspicion regarding their movements ; (c) Balraj appellant took her inside the jawar filed of Ramji Lal and at that place he first shaved off the air from around his male organ and then he shaved off the hair of the prosecutrix on her `vaginal range'' ; (d) she voluntarily committed sexual intercourse with Balraj; (e) on the persuasion of Balraj she also had sexual intercourse with the other two appellants, though she has made out a meaningless defence that they had threatened her ; (f) according to her, Balraj appellant had a `second bout'' of sexual intercourse with her; (g) she candidly admitted that at the time of committing sexual intercourse as above, she had put off her clothes which she had been wearing and while leaving the place, she had left the suit in the field; (h) the appellants allegedly kept her in the same field for two days and three nights during which all the three appellants committed sexual intercourse with her on all the three nights. In the wake of these admissions made in the examinationinchief itself, there is hardly any need for a discussion or assessment as to whether the prosecutrix was a consenting party to the whole episode, or not. In her crossexamination, she made further admission on the question of consent. She admitted that she had known Balraj for the last six months before the occurrence during which he had not only been cutting indecent jokes with her or had been suggesting to her to have sexual relations with him. She, however, never complained to her parents about the same. It is material to mentione here that even the trial Court came to find that the prosecutrix had gone with Balraj accused, with her own volition.

This version of the prosecutrix that she had remained with the three appellants for three days continuously in the jawar field is falsified by the testimony of Sultan (PW6) who desposed that on the day of the alleged kidnaping he had noticed the three appellants going alongwith the prosecutrix and he had informed about this fact to her father on that very evening. This witness at the end of his crossexamination stated that he had seen Roshni on the very next day, i.e. August 16, 1984 of her alleged kidnapping on which date his statement was recorded by the Police. If this was so, the prosecutrix could not have been confined in the jawar field for three days as alleged by her. Another witness Satish kumar, Senior Scientific OfficercumAssistant Chemical Examiner Madhuban (P.W.10) admitted in his crossexamination that the Investigating Officer had told him that Roshni was abducted on August 15, 1984 and was recovered on August 16, 1984. The witness recorded this fact in his Report Exhibit PL. As against that said evidence of a responsible Officer, the Investigating Officer Assistant Sub Inspector Ram Phal (PW12) would have us believe that it was on August 18, 1984 that he arranged a nakabandi after receiving secret information about the presence of the three appellants and the prosecutrix in the jawar field. Obviously the two versions noticed above cannot be reconciled.

In view of what has been discussed above, there is hardly any need to dwell upon the remaining evidence on the record. The prosecution has clearly failed to bring home the guilt against the three appellants. This appeal is consequently allowed and the conviction of the three appellants, as also their sentence on various counts are set aside. They are acquitted of the charges framed against them. The appellants are on bail. Their bail bonds stand discharged.