Sakal Dev vs State of Haryana

R.L. Anand, J. (Oral)

By this judgment I dispose of Crl. Appeal No. 155SB of 1996 (Sakal Dev & another v. State of Haryana) and Crl. Appeal No. 418SB of 1996 (Raj Kumar v. State of Haryana), as both these appeals, in the opinion of this Court, can be disposed of by one judgment. Both the appeals have arisen from the judgment dated 15.2.1996 and order dated 16.2.1996 passed by Addl. Sessions Judge, Gurgaon, who convicted appellants Sakal Dev and Parveen under Section 120B I.P.C. and appellant Raj Kumar under Sections 120B, 366 and 376 I.P.C. and sentenced them as under :

Sakal Dev and Parveen : To undergo RI for a period of 2 years and to pay a fine of Rs. 200/ each; in default of payment of fine to undergo SI for two months, under Section 120B I.P.C.

Raj Kumar : i) To undergo RI for a period of 8 years and to pay a fine of Rs. 1,000/; in default of payment of fine, to undergo SI for 6 months, under Section 376 IPC.

ii) To undergo RI for a period of 5 years and to pay a fine of Rs. 500/; in default of payment of fine, to undergo SI for 3 months, under Section 366 IPC.

iii) To undergo RI for a period of 2 years and to pay a fine of Rs. 200/; in default of payment of fine, to undergo SI for 2 months, under Section 120B IPC.

It was held by the trial Court that all the sentences awarded to appellant Raj Kumar shall run concurrently.

The case of the prosecution in brief is that complainant Raghbar Singh is a resident of Gandhi Nagar, Gurgaon. He ha got five children and one of them is daughter Sonu aged about 12/13 years. She had been studying in 8th standard in S.D. Girls High School. Examination was conducted in the school in September, 1993. She went to the school on 22.9.1993 to appear in the examination on a bicycle and did not return home. The complainant searched for her at different places but without result. Ultimately he reported the matter to the police on 23.9.1993 and placed suspicion in the kidnapping of his daughter on appellant Raj Kumar, a permanent resident of Bihar, who was occupying a portion of the house of the complainant on rent. After registration of FIR, investigation was taken up.

Sonu prosecutrix was recovered on 11.11.1993 from the company of appellant Raj Kumar in the area of Police Station, Beas, in Punjab State. In her statement under Section 164 Cr.P.C. made before the Magistrate, she disclosed that she had gone to school on 22.9.1993 at about 7.00 p.m. All the three appellants accompanied by one Jai Bhagwan came there. Appellant Parveen alias Pintoo told her that her father met with an accident and she had been called to Delhi and that appellant Raj Kumar shall accompany her. Appellant Raj Kumar was known to her and she went with him to Delhi. On the way, Raj Kumar served her tea and after taking tea she became unconscious. When she regained consciousness, she found herself in a room and there people were talking in Punjab. She was not allowed to stay alone nor she was allowed to talk to anyone. Raj Kumar used to subject her to forcible sexual intercourse under threat of death. One day, the landlady came there and Sonu porsecutrix narrated the occurrence before her. The landlady informed the police. Consequently police came there and took her to Beas Police Station. Information was sent to Gurgaon.

All the three appellants were arrested. Medical examination of the prosecutrix and that of the appellant Raj Kumar was got done. Necessary documents were collected by the police during investigation. Ossification test of Sonu was conducted so as to determine her age. After completion of the investigation of the case, challan was presented in the Court of Area Magistrate, who supplied the copies of documents to the appellants and vide commitment order dated 25.4.1999 the appellants were committed to the Court of Session.

Vide order dated 1.7.1994 charges were framed against the appellants under Sections 366, 376 and 120B IPC. The charges were read over and explained to the appellants to which they pleaded not guilty and claimed a trial.

In order to prove the charges, prosecution examined as many as ten witnesses and the relevant portions of the statements of the witnesses can be described in the following manner :

Smt. Neeta Rattan PW1 is a teacher in S.D. Girls Senior Secondary School, Jacumpura, Gurgaon. She deposed that according to the admission register of the school the date of birth of Sonu prosecutrix is 14.12.1980. She proved the age from the admission form and the school leaving certificate of 5th class. She produced the copy of the admission form Ex.PA and copy of school leaving certificate Ex.PB. She further stated that school leaving certificate Ex.PB was prepared by her and its photo copy is Ex.PC. In her cross examination, the witness stated that as per attendance register brought by her Sonu prosecutrix had last attended the school on 21.9.1993 and thereafter she did not attend the school. She is not in a position to say on what basis the date of birth of Sonu was entered in the school record when she joined the first class.

PW2 Dr. B.B. Aggarwal conducted ossification test of Sonu prosecutrix in order to determine her age and as per the opinion of this witness the age of the prosecutrix on 12.11.1993 was 14 to 15 years. Exs. PD/1 to Ex.PD/4 are the skiagrams. In his cross examination this witness stated that there can be a variation of two years on either side in the determination of age on radiological basis.

PW3 Dr. Suresh Bakshi examined Raj Kumar appellant in order to determine whether he was fit to perform sexual intercourse and this doctor found him fit for performing sexual intercourse.

PW4 ASI Mahabir Prasad simply deposed that on 23.9.1993 ruqa Ex.PH was received in the police station, on the basis of which he recorded formal FIR Ex.PH/1.

Prosecutrix Sonu appeared as PW5 and her material statement can be described in the following manner :

"On 22.9.1993 when I was a student of 8th class in the S.D. Girls Senior Secondary School, Gurgaon, I had gone to the school. Raj Kumar accused present in the Court today was a tenant in a part of our house in which we are residing. On a number of occasions he had asked me to accompany him to some place. I always refused to go with him. On 22.9.1993 I was called from my class room in the school through Pintoo alias Parveen accused present in the court today. When I came out of the school all the three accused present in the court today, namely Sakaldev, Raj Kumar and Parveen and one Jai Bhagwan were found present near the gate. Pintoo had told me that I was called by Raj Kumar and that my father had met with an accident. Pintoo also told me that my father was in the hospital in Delhi and Raj Kumar will take me to the hospital. I went to Delhi in a bus with Raj Kumar. We alighted from the bus at Delhi bus stand and there I was served with tea by Raj Kumar. I became unconscious after taking tea. When I regained consciousness I found myself in a room. I told Raj Kumar that it was not a hospital and I started weeping. Raj Kumar said that he would kill me in case I tried to raise cries. I was kept by Raj Kumar in that room for one month. Raj Kumar used to commit rape on me daily in that room forcibly. One day the landlady of that room came into my room and I narrated the occurrence to her. She informed the police...."

The prosecutrix further stated as follows :

"About one week before 22.9.1993 Raj Kumar had also committed rape on me in my house. I had not told anybody about that incident."

In her crossexamination the prosecutrix admitted that she did not tell about the occurrence which took place prior to 22.9.1993 to any neighbour and her parents. The witness further stated as under in her crossexamination :

".......Raj Kumar used to commit sexual intercourse with me about two times during the day and two times during the night. I never resisted when he used to have sexual intercourse with me....."

Raghbar Singh, father of the prosecutrix, appeared as PW6 and he stated that on 22.9.1993 his daughter Sonu was studying in the 8th class in the S.D. Girls School and Raj Kumar and Sakal Dev appellants were tenants in his house. Further it has been stated by Raghbar Singh that his daughter went to school on a cycle at about 8.00 a.m. on 22.9.1993 but she did not return in the evening. As a result of that he made enquiries and came to know that Raj Kumar appellant had taken away his daughter. He informed the police vide his statement Ex.PH. Finally, it has come in the statement of this witness that his daughter was recovered on 11.11.1993 from the area of Police Station Beas, Punjab. In crossexamination, it has come in his statement that even prior to 22.9.1993 Raj Kumar had once misbehaved with his daughter Sonu and his daughter had never told him that Raj Kumar had committed rape on her in his room prior to the occurrence of 22.9.1993. This witness further stated that he had never seen Raj Kumar misbehaving with his daughter.

ASI Vishnu Dutt appeared as PW7. He had investigated this case. ASI Suresh Kumar PW8 also partly investigated this case. Dr. Vandana Narula PW9 medico legally examined the prosecutrix on 11.11.1993 and stated that the breasts of the prosecutrix were in developing stage and as per the history told to her by the prosecutrix, the prosecutrix started menstruating about two years back. Before this doctor the prosecutrix gave her age as 15 years. The doctor also stated that on local examination, no mark of injury was seen around the genitalia and the vagina admitted two fingers easily. There was a congestion around the hymen. PW10 Jai Kumar saw the prosecutrix in the company of all the three appellants and he further deposed that these persons were going in bicycles. On one bicycle Sakal Dev and Parveen were sitting, while on the other bicycle Raj Kumar was sitting and Sonu was sitting on the carrier.

The statements of the appellants were recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to them. Appellants denied those circumstances and stated that they have been falsely implicated in this case. In defence, they did not lead any evidence.

The learned trial Court convicted and sentenced the appellants in the manner stated above and aggrieved by their conviction and sentence, the present two appeals.

I have heard Mr. Gorakh Nath, Advocate on behalf of Raj Kumar appellant, Mr. Jai Vir Yadav, Advocate on behalf of Sakal Dev and Parveen appellants, Mr. Surinder Singh, Advocate on behalf of the State of Haryana and with their assistance I have gone through the records of the case.

Though an effort was made by the learned counsel appearing on behalf of the appellants to submit at the first instance that prosecutrix in this case was more than 16 years of age and being a consenting party to the alleged acts of rape, no offence is made out. I am not in a position to agree with the contention raised by the learned counsel for the appellants. The date of birth of the prosecutrix has been proved by the statement of PW1 Smt. Neeta Rattan. Accordingly to the admission registerer date of birth is 14.12.1980. The alleged act of kidnapping took place on 22.9.1993. In other words, the prosecutrix at the time of alleged kidnaping was less than 13 years. Sonu prosecutrix when appeared in the witnessbox gave her age as 14 years. Even the radiologist gave her age as 14 to 15 years. The learned counsel for the appellants submitted that the school admission record is not a conclusive piece of evidence and it cannot be relied upon. I do not dispute with the proposition of law which has been laid down by the learned counsel for the appellants that the school record is not a conclusive piece of evidence. But definitely it is an admissible piece of evidence coupled with other circumstances. In this view of the matter, a reasonable inference can always be drawn that the prosecutrix was about 13/14 years at the time of occurrence. Even the opinion evidence of the radiologist determines the age of the prosecutrix as 14 to 15 years. There is not a glaring circumstance which establishes that prosecutrix was not less than 16 years. When Dr. Vandana Narula PW9 medicolegally examined the prosecutrix, at that time the prosecutrix innocently stated before the doctor that she started menstruating about two years back. The young girls invariably start mestruation either at the age of 12 or 13 years. The direct evidence of the prosecutrix coupled with the medical evidence and the statement of the father of the prosecutrix clinches that the prosecutrix was less than 16 years and in these circumstances consent or no consent is immaterial in view of Section 375 I.P.C.

The second point for determination would be who are the persons against whom the offence has been proved. The story of the prosecution is that on 22.9.1993 the prosecutrix went to the school in order to take her examination on bicycle but did not return to her house. It is the father case of the prosecution that the prosecutrix was called out from the school by Parveen alias Pintoo at the instance of Raj Kumar on the plea that the father of the prosecutrix had met with an accident and was lying in Delhi. Outside the gate of the school Sakal Dev was found present. No representation or inducement was made by Sakal Dev to the prosecutrix to accompany Raj Kumar. The statement of Jai Kumar PW10 cannot be given much reliance. He appears to be a chance witness and it cannot be ruled out that if this witness had been introduced just to show the implication of Sakal Dev. Since there was no inducement or representation on behalf of Sakal Dev to the prosecutrix to accompany Raj Kumar, therefore, his case is distinguishable from his co accused Raj Kumar and Parveen Kumar. So he cannot be held to be a part of the conspiracy and by extending the benefit of doubt to appellant Sakal Dev I accept his appeal, set aside the judgment and order qua him and acquit him of the charge framed against him.

So far as appellants Raj Kumar and Parveen Kumar are concerned, it stands proved that both of them had a criminal conspiracy. The object of the same was that Raj Kumar will kidnap the prosecutrix from her lawful guardianship and she will be kidnapped for illegal purposes i.e. to compel the prosecutrix to surrender herself for sexual intercourse and it stands proved from the statement of the prosecutrix that right from 22.9.1993 upto 11.11.1993 she was subjected to sexual intercourse by Raj Kumar appellant against her will and wish. She was found in the company of Raj Kumar appellant on 11.11.1993. She was kidnapped and taken to Beas and was confined in a room and the evidence of the prosecutrix is that she was subjected to sexual intercourse daily in that room against her will. The medical evidence also corroborated that the hymen of the prosecutrix had been torn and her vagina admitted two fingers. Resultantly, I maintain the conviction of Raj Kumar under Sections 366, 376 and 120B I.P.C. I further maintain the conviction of Parveen Kumar alias Pintoo under Section 120B I.P.C.

Faced with the above difficulties, Mr. Gorakh Nath, the learned counsel appearing on behalf of Raj Kumar appellant submitted that adequate and special reasons have been made out in the present case to give less sentence to Raj Kumar than the one prescribed under Section 376 I.P.C. Supplementing his submission, the learned counsel submitted that it is the proved case of the prosecution itself that this girl had earlier soft corner for Raj Kumar and she had given herself to Raj Kumar even for 20 days and during that time she never objected or raised any alarm. Further it is stated by the learned counsel that this girl remained in the company of Raj Kumar, who was a young boy. The prosecutrix was a sensible girl. She knew that she was going to submit herself and she is likely to lose her virginity. Also it is proved on the record that when the prosecutrix earlier remained in the company of Raj Kumar, she did not raise any alarm etc. and all these factors and circumstances make a strong case for Raj Kumar for awarding lesser sentence than the prescribed one. I find merit in the submissions made by the learned counsel. It appears that Sonu was having a soft corner for appellant Raj Kumar and perhaps she was in affair. No doubt, she was less than 16 years but definitely she was a matured girl and she could resist any act on the part of Raj Kumar when he was taking her from Gurgaon to Delhi. It is not believable that the prosecutrix would not raise hue and cry in the house of the landlady. Nevertheless, she was a yielding party to the sexual intercourse, but the appellant Raj Kumar cannot take the benefit of that aspect because of the minority of the prosecutrix i.e. she was less than 16 years of age. I feel that the ends of justice will suffice if the substantive sentence of appellant Raj Kumar under Section 376 IPC stands reduced to six years and I order accordingly.

The net result is that the appeal of Sakal Dev appellant is hereby accepted and he stands acquitted of the charge framed against him. The appeal of Raj Kumar appellant is partly allowed. His substantive sentence under Section 376 IPC stands reduced to six years which shall run concurrently with the other sentences awarded under Sections 366 and 120B IPC, which are hereby maintained. The appeal of Parveen Kumar appellant is hereby dismissed in toto.