Satish Kumar vs U.T.Administration, Chandigarh

Harmohinder Kaur Sandhu, J.

In this appeal Satish Kumar has assailed the judgment dated 14.5.1986 recorded by Shri M.K. Bansal, the learned Additional Session Judge, Chandigarh, whereby he convicted the appellant for offences under Sections 376, 366 and 363 of Indian Penal Code and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 500/ for the offence under Section 376 Indian Penal Code to undergo rigorous imprisonment for three years for the offence under Section 366 Indian Penal Code and for two years for the offence under Section 363 IPC.

The facts of the case giving rise to this appeal are that Krishan Lal PW 9 lived in House No. 22, Sector 14, Chandigarh alongwith his wife and children including his eldest daughter Seema PW 5. On 3.7.1985 at about 8.00 p.m. Seema went to the common latrine, where Satish Kumar accusedappellant met her and asked her to accompany him Seema refused but she was compelled to sit on his cycle on the point of knife. She was taken to village Dhanas where she was kept in House No. 910 belonging to Girdhari PW 7. The accused raped her during the night. On the next date he took her on his cycle and both roamed about. They spent night in a temple at village Kahnpur and from there Seema was taken to Bhadi. She was kept in the house belonging to the uncle of the accused where she was again subjected to rape twice. She was then brought to the house of Girdhari in village Dhanas.

On 4.7.1985 when Seema did not return to the house, her mother Asha lodged report Ex. PG at the police station on the basis of which case was registered. A search was made for the prosecutrix by ASI Darshan Kumar who on getting information from Dev Raj went to House No. 910 at village Dhanas and recovered the prosecutrix from the custody of the accused. The accused was got medically examined from Dr. Brij Bhushan PW 3, who found the accused fit to perform the act of sexual intercourse.

Seema was got medically examined from Dr. Mrs. G.K. Dhillon, who issued certificate Ex PB according to which the tear of hymen was old and healed and vagina admitted two fingers easily. The doctor referred the prosecutrix for Xray examination to determine her age.

Ossification test was conducted by Dr. B.N. Aggarwal who was examined as DW 7. The doctor submitted his report Ex. DW 7/A according to which the age of the prosecutrix was between 161/2 to 17 years. During investigation birth certificate and school living certificate of Seema were also taken into possession.

In support of the prosecution version 11 witnesses were examined. The prosecutrix appeared as PW 5 and made her deposition in support of the prosecution version, but her crossexamination revealed that she was not forced by the accused to accompany him. She did not raise any alarm. She roamed about while sitting on the cycle in front of the appellant. She was taken to a photographer and her photograph was taken. She wandered with the appellant in Chandigarh, Dhanas and Khanpur etc. but she never made any attempt to seek the help of any one for getting herself rescued from the clutches of the appellant. The trial Court found that the prosecutrix went with the appellant of her own free will and she was a consenting party to all the acts.

During trial the contention of the appellant was that Seema was known to him for the last one year and had been writing letters to him which were mark A to mark D. On 3.7.1985, she met him and told that she was to be sent to Jalandhar and as she could not live without him, he should take her to some place. She promised to meet him at 8.30 p.m. He was taking his meals when she came to his house and took him out. She asked him to take her away. At her insistence he took her on his cycle towards PGI and then they went to Dhanas. Girdhari PW slept outside and he and Seema slept in the room and Seema came to his bed of her own and forced him to do the sexual act. Next day they came back to Chandigarh and went to a Studio for a photograph. During the night they stayed in a temple and then they went to village Bhadi. They stayed for one night in that village when his brother came there and brought them to Chandigarh. They were produced before the police and they were not recovered from Dhanas as alleged by the prosecution.

The contention of the appellant was supported by DW 1 Madan Lal who produced bill Ex P1 for the photograph of the appellant and the prosecutrix taken by him. Brother of the appellant appeared as DW 3 and he stated that he brought the appellant and Seema and produced them before the police.

It was urged on behalf of the appellant that since the trial Court had given finding that the prosecutrix had gone with the appellant of her own accord and the medical evidence showed that the prosecutrix was habitual to sexual intercourse, the only crucial question for determination remained the age of the prosecutrix on the date of commission of the crime which took place in July, 1985, because the appellant was convicted simply on the ground that on the day the crime was committed Seema was less than 16 years of age.

The prove the age of the prosecutrix the prosecution had placed reliance on the birth entry Ex. P 4 according to which the date of birth of the girl was 7th March, 1970 and also school leaving certificate wherein date of birth of Seema was recorded as 6th June, 1971. The prosecutrix was also Xrayed for her age, but that evidence was withheld by the prosecution. The appellant however, examined the doctor in his defence who proved his report Ex DW 7/A according to which the age of the prosecutrix was between 61/2 to 17 years at the time the offence was committed. The trial Court did not rely on the school leaving certificate as also on the report Ex. DW 7/A but depending on the birth certificate Ex. P.4 held that Seema was born on 7th March, 1970.

The prosecution also examined Asha, mother of the prosecutrix as PW 8 and Krishan Lal father of the prosecutrix as PW 9 to prove the age of Seema. Asha deposed that Seema was her oldest child but she did not say when she was born, in her examinationinchief. In her cross examination she stated that the girl was born in Jalandhar in the year 1970 but she was unable to tell the month. She stated that she had five daughters and one son but she did not give the age of any of her child except that her son was 31/2 years old. Krishan Lal stated that Seema was born in Jalandhar on 7.3.1970 in the house of his cousin Lachhman Dass and Lachhman Dass got the birth of his daughter recorded. The delivery was attended by a mid wife. He stated that he wrongly got recorded the date of birth in school as July, 1971. In his cross examination he was unable to tell the name of the mid wife. He also could not give the number of the house where his cousin resided.

Om Prakash Mital, Health Officer, Municipal Corporation, Jalandhar appeared as PW 2 and stated from record that on 7th March, 1970, birth of a female child was recorded. She was the daughter of Krishan Lal son of Lahori Ram. The entry was made at the instance of Basanta Rani, a midwife. Name of the mother was not mentioned. He was unable to say whether this entry related to the prosecutrix or not.

There is no doubt that in cases under Sections 366 and 376, Indian Penal Code age of prosecutrix is always of importance, particularly so where according to medical evidence she is found to have been used to sexual intercourse and there was old rupture of hymen. In the instant case, as per Ex. P.4 the date of birth of the girl was 7th March, 1970. This entry is not duly connected with the prosecutrix. Mother of the prosecutrix was not sure about the date of birth and rightly so because she is a lady who even did not remember whether her daughter returned to the house after two or three days when she left with the appellant. No reliance can be placed on the statement of father of the prosecutrix. He was not the person who got the birth recorded in the office of Municipal Corporation. According to him birth entry was made at the instance of his cousin as the girl was born in his house but he was not produced. This version is belied by the entry itself as the entry was not recorded at the instance of Lachhman Dass but at the instance of a mid wife Basanta Rani. The name of the child was not mentioned nor name of the mother was given. Father of the prosecutrix too was not sure about the date of her birth and gave a different date when he got her admitted in a school. In these circumstances much reliance could not be placed on the birth certificate Ex. P4. The school leaving certificate was not relied upon by the trial Court but there was no reason to discard the report of the doctor who had conducted Xray to determine the age of Seema and found her to be more than 16 years old. The evidence regarding age was no doubt discrepant and even if it is to be considered as doubtful the benefit of doubt is to go to the appellant and on the basis of this discrepant and unreliable evidence, his conviction cannot be maintained.

For the reasons recorded above, I accept this appeal, set aside the conviction and sentence of the appellant and acquit him. Fine if deposited, be refunded to him.