Sanwant Singh vs State of Haryana

K.P.S. Sandhu, J. (Oral)

Sanwant Singh appellant has challenged his conviction and sentence of rigorous imprisonment for one year and a fine of Rs. 100, in default further rigorous imprisonment for one month, under Section 363 of the Indian Penal Code, rigorous imprisonment for 3 years and a fine of Rs. 200, in default further rigorous imprisonment for two months, under Section 366 of the Indian Penal Code and rigorous imprisonment for five years and a fine of Rs. 300, in default further rigorous imprisonment for three months, under Section 376 of Indian Penal Code recorded by the Additional Sessions Judge, Narnaul, vide his order dated 26th April, 1984. All the substantive sentences of imprisonment have been ordered to run concurrently.

On 5th November, 1983, early in the morning Kamlesh prosecutrix PW1 felt some pain in her abdomen. Her mother was milking the buffalo. She informed her mother and went to the field of her uncle Tulla Ram for easing herself. The appellant at the point of knife took Kamlesh from the field towards the canal in the area of village Nangli Godha. The appellant committed rape on Kamlesh prosecutrix there. The appellant then took the prosecutrix to village Bawal on foot. From Bawal the appellant took the prosecutrix in a bus to Gurgaon and then to Najafgrh. She was kept at Nafjafgarh for one day. While on their way to Jaipur the catch a bus Sheo Nath uncle of the prosecutrix and her brotherinlaw Mahabir PWs along with the police met them. The prosecutrix was then recovered from the appellant. She was medically examined by Lady Dr. Bimla on 7th November, 1983, at 7.15 p.m. Following is the report of her medical examination :

"About 17 years old girl moderately built and nourished. Public hairs well developed. Breast developed. No mark of injury on external genitalia which are well developed. No mark of injury on face, arms legal or anywhere on the body. No mark of scratches.

In internal examination hymen is ruptured. Admits two fingers easily. No signs of inflammation and redness, swellings or pain. No blood clots. No vaginal secretions were found.... In my opinion, there is nothing to suggest that sexual intercourse has not been committed......."

One kachcha of the prosecutrix, Exhibit P6, and her vaginal swabs were handed over by the lady doctor to the police. The same were sent for chemical examination. The appellant was also medically examined by Dr. Basant Kumar PW2 on the same day at 7 p.m. and was found fit to performs sexual intercourse. Earlier first information report Exhibit PF/2 was registered under Sections 363 and 366 of the Indian Penal Code at Police Station Sooar, Rewari, on 5th November, 1983, at 8.30 a.m. on the basis of the statement of Chander Singh PW father of the prosecutrix. The appellant after due investigation was sent up for trial.

When examined under Section 313 of the Code of Criminal Procedure, the appellant took up the plea of consent and came out with the following version :

"I have taken Kamlesh but Kamlesh had consented. Kamlesh had gone with me at her own accord. My sister Suvidya is married at Bharawas, Tubewell of my sister is situate near village Nangli Godha. I was living with my sister for the last two years. I had purchased a tractor. I used to cultivate the lands of the village of Nangli Godha and Bharawas against charges. I used to look after the land of Kamlesh and her family. I used to cultivate their land but never charged my wages. Kamlesh used to help me in harvesting the crops of my sister. Kamlesh''s elder sister who was married used to come along with Kamlesh to the land of my sister. Kamlesh''s father was serving at outside station. Kamlesh''s brothers were also away as they were in service. I used to look after the family of Kamlesh and help them in buying household articles from market. I used to stay at the house of Kamlesh off and on even during night time. For the last two yeas I and Kamlesh and developed intimacy and were in love with each other. All the members of the family of Kamlesh know about our love affair. We both were living like husband and wife and none objected to it. The father of Kamlesh came to the village after, leaving the job. He did not like my marriage with Kamlesh. When Kamlesh came to know that her father was not agreeing then she told me that she had loved me and that she would marry me and none else. One day Kamlesh asked me to take her away, else she may not be married with any other. Kamlesh threatened that if I did not take her away then she will finish herself. I assured that after securing a job at Delhi I would take her. Kamlesh said that she would be ready to go with me and that she would be waiting for me near her field in the morning hours of 5.11.1983. I went to Delhi and secured a job of driving a bus of tourist. Previously also I used to drive that bus. On 5.11.1983 at 4 a.m. I reached the fixed place where Kamlesh met me. From there we both went to Bawal on foot. At Bawal bus stop we waited for the bus for about I hour and then boarded a bus for Gurgaon. From Gurgaon we took another bus and reached Najafgarh. I took Kamlesh to my quarter and left her there and joined my duties at Koriapul (Bridge) Delhi. On 6.11.1983 I went to do my duty work. On 7.11.1983 when I reached Koria Pul Bridge for my duty work then I found a Thanedar, Mahabir, Sheonath and 34 others sitting there in that very bus which I used to drive. I was overpowered by them. They asked for Kamlesh and I divulged that Kamlesh had come at her own accord and that she was present at my quarter at Nazafgarh. Then I was made to sit in the car and I was taken to my quarter to Nazafgarh. Kamlesh was taken into custody from my quarter. Then I was brought to Police Station Sadar, Rewari, where I was arrested. Kamlesh was saying to the Thanedar that she had gone with me at her own accord. Sheonath asked the Thanedar not to record her statement and said that her statement may be recorded after 45 months and that in the meanwhile Kamlesh would be persuaded to make statement against me. Kamlesh did not want to go with her parents but she was compelled and forced to go with her parents."

He did not adduce any evidence in defence.

Apart from Dr. Basant Kumar PW2 and Dr. Bimal P..W. 15, the prosecution examined Kamlesh prosecutrix as PW1 and her uncle Sheo Nath PW3 as a witness to the recovery of the prosecutrix and the arrest of the appellant on 7th November, 1983. PW4 Tulla Ram and PW5 Mahabir Singh were tendered for crossexamination. Assistant Sub Inspector Dharam Parkesh PW6 recorded formal first information report Exhibit PF/2. PW7 Ram Avtar draftsman prepared siteplan Exhibit PG. PW8 Kartar Singh Constable is a witness to the taking into possession of Kachcha from the person of the appellant. PW9 Satya Roop Patwari prepared siteplan Exhibit PN. PW10 Vijay Singh Social Studies Master Government High School, Nangli Godha, brought the admission and withdrawl register from 11.1.1976 to 14.5.1983. According to entry No. 2868 dated 2nd April, 1979, Kamlesh Yadav daughter of Chander Singh was admitted in the sixth class on 2nd April, 1979. She studied in the school up to 16th July, 1981. The date of birth of Kamlesh in the entry has been given as 17th January, 1968. PW11 Khan Chand, Assistant Teacher, Government High School, on the basis of the admission form of Kamlesh, also gave her date of birth as 17th January, 1968. PW12 Chander Singh is the father of the prosecutrix. He made report Exhibit PF on the basis of which first information reported Exhibit PF/2 was registered. PW13 Siri Bhagwan Assistant SubInspector investigated the case, arrested the appellant and recovered the prosecutrix. PW14 Piare Lal Sub Inspector submitted a report under section 173 of the Code of Criminal Procedure.

According to the prosecution evidence, the prosecutrix left her house of her own and she had been going around with the appellant in different towns in the bus but she never raised her little finger. The only conclusion which can be reasonably drawn from this conduct of the prosecutrix is that she was a consenting party, as stated by the appellant in his statement under Section 313 of the Code of Criminal Procedure. The medical evidence also shows that she was used to sexual intercourse. She had an old and healed tear of the hymen. In all probability, she was carrying on with the appellant much earlier to the date of occurrence.

The only question which survives for determination is the age of the prosecutrix. No birth entry regarding the date of birth of the prosecutrix has been placed on record by the prosecution. No ossification test was even performed to determine her age. She of her own gave her age as 17 years. The only piece of evidence in this respect is the school certificate. Time and again it has been held that the date of birth mentioned in the schoolleaving certificate or admission form is not a conclusive piece of evidence regarding age. In this respect the prosecution has utterly failed to prove that the prosecutrix was eighteen years of age at the time of the occurrence, much less that she was sixteen yeas of age at that time. The plea of the appellant appears to be more probable and nearer the truth. In this view of the matter, it would not be safe to record the conviction of the appellant on this evidence. Consequently, I give the benefit of doubt to the appellant and acquit him of all the charges. The fine, if recovered would be refunded to the appellant.

Consequently Criminal Revision No. 1005 of 1984 for the enhancement of the sentence fails and is hereby dismissed.