Shakil vs The State of Haryana

Swatanter Kumar, J.—Accused Shakeel-appellant herein was found guilty and convicted under Sections 363/366/376 of the Indian Penal Code, vide judgment of conviction dated 5th November, 1990. After hearing the accused on the quantum of sentence on the same date, the learned Judge sentenced the accused to undergo rigorous imprisonment for two years under Sections 363 of the Indian Penal Code, three years rigorous imprisonment u/s 366 of the Indian Penal Code and seven years rigorous imprisonment u/s 376 of the Indian Penal Code. All sentences were ordered to run concurrently.

Challenge to the said judgment by the accused in the present appeal is mainly on the ground that the prosecutrix was a consented party. Her conduct through the entire period when she was with the accused shows that the basic ingredients of offence of rape and kidnapping are no satisfied. Both accused and the prosecutrix are stated to have gone various places and as such prosecutrix had ample opportunities to inform any person or even to police that she was being forcibly kept by the accused. In order to appreciate the contentions raised on behalf of the appellant, reference to the case of the prosecution would be necessary.

The accused was committed to the Court of Sessions to stand trial for the offences afore-noticed. The case of the prosecution has been noticed by the learned trial court precisely in the following terms:-

"Briefly stated the facts are that PW.4 Miss Geeta Devi prosecutrix aged about 14 years had gone to fetch water from the water tap on 29.1.1990 at about 4.00 P.M. The accused met her there and enticed her away by saying that he would bet her ornaments and good clothes. he took her to nearby hut, where he lived and raped her there. The accused threatened her not to tell anything to any person, otherwise she would be killed.

On the same day, the accused took her to his village Anwla near Bareli (U.P.) and kept her there in his uncle''s house and also raped her there by threatening her.

After village Anwla, he took her to bareli where he kept her at the house of his brother and also raped her there.

After Bareli he brought her back to Delhi by saying that they would do some work at Delhi and would also live there. However, at the Railway Station, Delhi, they were caught by the police.

PW.5 Malkhan Singh father of the prosecutrix lodged report Ex. PF in the Police Station on 1.2.1990, after he failed to trace her.

On 10.2.1990, PW.7 Shanker Lal, Sub Inspector along with Suraj Bhan PW reached Railway Station, Delhi in search of the accused and Miss Geeta Devi. they located the accused and Miss Geeta Devi sitting in the waiting room. They apprehended both of them and were brought them to Faridabad. He sent Geeta with lady constable PW.6, Sumitra for her medico legal examination.

PW.1 Dr. Kusum Chaudhary medico legally examined Miss Geeta at about 2.00 P.M. on 10.2.90 and opined that she was habitual to sexual intercourse and the possibility of her having sex could not be ruled out. She proved Ex. PA carbon copy of her medico legal report and also opinion Ex. PB/1 which she had given on the application of police Ex. PB. After examination, PW.1 handed over copy of medico legal report, one parcel containing Salwar Ex. PA and an envelope which were sealed with his seal to PW.6 Sumitra lady constable, who in turn handed over these articles to PW.7 Shanker Lal. He took these articles into possession vide recovery memo Ex.PK.

The accused was also got medico legally examined from PW.2 Dr. G.D. Kalra who opined that the accused was fit to perform sexual intercourse. He proved Ex.PC carbon copy of his medico legal report.

Charges were framed upon the accused. Prosecution examined in addition to the afore-noticed, witness Dr. Kusum Chaudhary, PW.1, Dr. G.D. Kalra, PW.2, Mrs. Krishna Gera, Headmistress, PW.3 and Miss Geeta Devi, PW.4 the prosecutrix herself. The report of FSL Madhuban was placed on record as Ex. PJ and Ex. P7. Affidavit of Tara Singh Head Constable was tendered in evidence as exhibit PH. In his statement u/s 313 Cr.P.C., the accused denied the allegations and pleaded his false implication in the case.

The case of the prosecution as emerges from F.I.R. exhibit PF stands fully proved by the statement of PW.4 Geeta Devi, who categorically stated that at the relevant time, she was 14 years of age and fully supported the case of the prosecution. In her cross-examination, she did not even impliedly admit that she had accompanied the accused out of her free will. She has, in fact, categorically stated that she lived with the accused for 10-15 days and it was forcible detention All the previous acquaintance with the accused were denied by her. Even as per the medical evidence, the age of the prosecutrix was stated to be 13-14 years. Upon medical examination, her hymen was found to be torn. It had also come in evidence that she was habitual to sexual intercourse. Exhibit PA was the basic evidence to establish this fact. Thus, version of the prosecution that she was subjected to forcible sexual intercourse also stands proved.

Learned counsel for the appellant has not been able to refer to any evidence on record which could remotely suggest serious doubt in the prosecution case. The mere fact that prosecutrix had been to various public places including Delhi Railway Station per se would not be sufficient to doubt the prosecution version. She was under continuous threat and in fact was sexually abused. Her conduct at that young age appears to be normal. The events happening with her are bound to leave a scar on her thinking and there is every likelihood of her being apprehensive. Under no circumstances this can be case of consent as argued by learned counsel for the accused. Once the age of the prosecutrix had been proved on record to be between 13-14 years, other factors are rendered irrelevant including her implied or direct consent. Even if for the sake of arguments it was assumed that she had concurred or had gone with the accused of her own accord, the result still would be the same and the accused can get no benefit of this premise.

For the reasons stated above, I find no merit in this appeal. The same is dismissed. The order of conviction and sentence awarded by the learned trial court is sustained.

The learned trial Court shall secure the presence of the accused and direct him to undergo the sentence awarded or any remaining part thereof.