State of Himachal Pradesh vs Joginder Kumar and Others

Rajiv Sharma, J.—State has preferred this appeal against the judgment dated 6.7.2001 passed by the learned Additional Sessions Judge (I), Kangra at Dharamshala in Sessions case No. 47/99 (RBT No. 1/2001) whereby Respondent No. 1, who was charged with and tried for offence punishable u/s 376 of the Indian Penal Code and Respondents No. 2 and 3, who were charged with and tried for offences punishable, under Sections 363 and 366 of the Indian Penal Code, have been acquitted.

Prosecution case, in a nutshell, is that prosecutrix (now deceased), daughter of P.W.-1 Arjun Singh was resident of village Matoh. According to the prosecution, her date of birth was 15.2.1985. She left her house to go to the house of her maternal uncle in village Narhoon. She was supposed to return after one month. Father of the prosecutrix, Arjun Singh came to know that his father-in-law was unwell. He went to see his father-in-law at village Narhoon. He came to know that his daughter was not there. He was apprised by his mother-in-law that she has not come. He returned to his village Matoh. Thereafter, search was made to locate his daughter. He was told that one Veena Devi wife of Parmodh Singh had told the villagers that she saw his daughter with Respondent Seema Devi on 25.7.1999 around 6.30/7.00 P.M. in the field. Respondents Seema Devi and Pritam Singh are also from the village of the prosecutrix. The matter was reported to the police, which led to registration of F.I.R. Ex.P.W.-1/A on 9.8.1999. The matter was investigated. The prosecutrix was recovered from the forest, adjacent to village Lulhani. She was found with Respondent Joginder Kumar. They were brought back to Lulhani. Thereafter, prosecutrix and Respondent Joginder Kumar were medically examined. The Investigating Officer also prepared the site plan.

Precise case of the prosecution was that the prosecutrix was kidnapped and abducted from lawful custody of her father by Respondents Pritam Singh and Seema Devi with intent to get her married to Joginder Kumar. Respondent Joginder Kumar committed sexual intercourse without her consent. The challan was put up after completing all the codal formalities.

Prosecution examined as many as nine witnesses. Accused were examined u/s 313 of the CPC and they pleaded not guilty of the charge framed against them. The trial court acquitted the Respondents on 6.7.2001. Hence, the present appeal by the State.

Mr. R.K. Sharma, learned Senior Additional Advocate General has strenuously argued that the prosecution has proved the charges against the Respondents. According to him, the learned trial court has misread and misconstrued the oral as well as documentary evidence. He has also argued that the prosecution has proved that prosecutrix was minor and she has been kidnapped and abducted by Respondents No. 2 and 3.

Mr. K.D. Sood and Mr. Arvind Sharma have supported the judgment dated 6.7.2001 of the trial court.

We have heard the learned Senior Additional Advocate General and also counsel for the Respondents and perused the record carefully.

It will be apt to note at the out set that the prosecutrix has died during the trial. Her statement could not be recorded. Prosecution case is based on direct and circumstantial evidence.

P.W.-1 Arjun Singh is the father of prosecutrix. According to him, he was married in the year 1981. He has four children. Prosecutrix Seema Devi was the eldest of all. His statement was recorded on 2.7.2001 and according to him; prosecutrix was 14 years of age when she was abducted. His younger daughter Banita Devi was 12 years old, third child, son, was 10 years old and youngest child Deepika was 8 years old. According to him, his daughter had gone to the house of her Mamma (maternal uncle) in village Narhoon. She was supposed to come back after one month. It was in the month of August, his father-in-law suffered an attack of paralysis. He was informed on 4th August and on 5th August, he went to Narhoon. He did not find his daughter in the house. He made inquiries from his mother-in-law about his daughter. His mother-in-law told that she has not come. He returned to his village. He narrated the entire incident to his brother Bidhi Chand. She was searched but was not found. Veena Devi wife of Parmodh had told the villagers that his daughter and Respondent Seema Devi were seen by her on 25.7.1999 at about 6.30/7.00 P.M. in the field. Seema Devi is the wife of Pritam Singh, who is resident of his village. He went to the police station on 9.8.1999 and got registered the F.I.R. Ex.P.W.- 1/A. According to him, birth of his daughter was recorded in the Panchayat register and his daughter was educated upto 5th standard. She was admitted in Government School, Matoh. The police alongwith two Respondents, Pradhan and two-three other persons went to Police Station, Baijnath. They stayed over night at Baijnath. Next day, two police officials joined them and Respondents took them to village Lulhani. His daughter was not found in the house of in-laws of Respondent Pritam Singh. The police interrogated the family members, who told that the girl is in the forest. Mother-in-law of Respondent Pritam Singh took them to the forest and from a ''Tapri'', 3-4 kilometers away from the village, inside the forest, the girl was found in the company of Respondent Joginder Singh. He was present at the time of M.L.C. His daughter had committed suicide in his house after one year of the incident. His daughter had told him that she was abducted by Pritam Singh, Seema Devi and Subhkaran from the maize fields. She had told him that Respondent Pritam Singh had made her to smell something and thereafter she became unconscious and she regained her consciousness in the house. She asked Respondent Pritam Singh where she has been brought. Pritam Singh told that she is in the house of her Mamma. She also told that Subhkaran had taken her to village Lulhani. According to his daughter, Respondents Seema Devi and Pritam Singh returned to their village next day. At Lulhani, Seema Devi made her to wear ''Chura'' and applied Sindhoor and was made to marry Respondent Joginder Singh. His daughter was not the consenting party. She was made to sleep with Respondent Joginder Singh, who committed rape on her.

P.W.-2 is Smt. Veena Devi. She knew Seema, daughter of Arjun Singh. She had gone to her field on 25.7.1999 at about 5.30 P.M. She met Seema Devi and asked her where she was going. She told that she was going to the house of her Mamma. She was all alone at that time. She was declared hostile.

P.W.-3 is Smt. Sarswati. She has deposed that in the year 1999, she was Pradhan of Gram Panchayat Sihana. Arjun Singh met her on 25.7.1999 and told her that his daughter was missing. She asked to inquire from Seema Devi as the prosecutrix was seen with her, as told by the villagers. The police also reached the spot. Police asked Seema Devi. She refused to divulge anything. She took Seema Devi to one side and asked about the Respondents. She told that her husband and her Devar Karan had taken the girl to the house of their Mamma at Hamirpur. She alongwith police officials, Kailasho Devi and Bidhia Chand went to the Police Station, Baijnath. Mother-in-law of Respondent Pritam Singh took them to the jungle and they found the girl and Respondent in a Tapari. The girl was taken into possession by the police and she was handed over to her by the police.

P.W.-4 is Dr. S. Rana. He conducted the medical examination of the prosecutrix. According to his opinion she had been exposed to sexual violence. He has given the age of the prosecutrix as 14 years.

P.W.-5 is Dr. Harjinder Singh. He has examined Respondent Joginder Kumar. According to him, he was capable of performing sexual intercourse.

P.W.-6 is Baldev Chand. He was posted as Secretary, Gram Panchayat Sihana. He had brought the birth and death register maintained in Gram Panchayat, Sihana. According to him, date of birth of Seema Devi daughter of Arjun Singh has been recorded at Sr. No. 1, page 42 of the register. As per entry, the date of birth of Seema Devi was recorded as 15.2.1985. These entries had been recorded at the instance of her father Sh. Arjun Singh. He has admitted about cuttings in the register.

P.W.-9 Ramesh Chand is Investigating Officer. According to him, he visited the spot on 10.8.1999. He had gone to Baijnath alongwith Pradhan, Sarswati Devi, Kailasho Devi, Arjun Singh, father of girl and Bidhi Chand, uncle of the daughter. They stayed at Police Station, Baijnath for the night. The girl was recovered from the forest at the instance of mother-in-law of Respondent Pritam Singh. He recovered the girl. She was medically examined. The Doctor also handed over him the clothes, i.e. Kamiz and Salwar of the girl for chemical examination. He also applied for the chemical examination of Respondent Joginder Kumar.

According to the trial court, the prosecution has failed to prove that the prosecutrix was minor. The learned Additional Sessions Judge has recorded the findings that since there was cutting in the birth and death register, no reliance could be placed on Ex.P.W.-6/A. According to him, the ossification test was required to be conducted. The other circumstance, which has weighed with the learned Additional Sessions Judge, was that since the prosecutrix was admitted in the school, her school certificate ought to have been produced by the prosecution.

According to P.W.-1 Arjun Singh, father of the prosecutrix, age of the prosecutrix was 14 years. There is no suggestion put to him during the cross-examination about the age of the prosecutrix. P.W.-6 Baldev Chand had brought the birth and death register. He has issued Ex.P.W.-6/A. According to Ex.P.W.-6/A, the date of birth of the prosecutrix was recorded as 15.2.1985. The original birth and death register was also produced and the copy of the same was retained. We have seen the birth and death register. The date of birth of the prosecutrix has been recorded as 15.2.1985. There are no cuttings as far as the date of birth of the prosecutrix is concerned. She has been recorded the daughter of Arjun Singh. According to Ex.P.W.-1/C, the age of the prosecutrix has been recorded as 14 years though the Doctor in his statement, while appearing as witness in the Court, has given the age of prosecutrix as 15 years. P.W.-4 Dr. S. Rana has noted the physical characteristics of the prosecutrix. According to his general examination, breast had not fully developed. Axilliary hairs and pubic hairs were not fully developed and only scanty hairs were present. According to his genital examination of the prosecutrix hymen was ruptured and admitted one finger easily. According to his final opinion, the girl was exposed to sexual violence. In his cross-examination, he has deposed that there was no swelling in labia minora and labia majora.

The trial court has not taken into consideration secondary sex characters as noted by P.W.-4 Dr. S. Rana. According to Modi''s Medical Jurisprudence and Toxicology, Twenty Second Edition (Student Edition), the development of breast in girls commence from 13-14 years. According to Modi''s Medical Jurisprudence, development of pubic hairs commences with the appearance of soft and pale coloured downy hair on the pubes at the age of about 13 years, and a few sparse dark hairs appear at about 14 years. P.W.-4 in his medical examination has noted that the breast had not fully developed and the pubic and Axilliary hairs were not fully grown. According to Modi''s Medical Jurisprudence a thick growth of dark hairs is well marked on the pubes, scortum and in the axillate at about 16 or 17.

What emerges from the statement of father of the prosecutrix P.W.-1 Arjun Singh, P.W.-4 Dr. S. Rana and P.W.-6 Baldev Singh is that the age of the prosecutrix was 14 years. The secondary sex characters also establish that the prosecutrix was minor. The trial court was swayed only by certain cuttings in the birth and death register, which were explained by P.W.-6 Baldev Singh. The trial court has given undue importance that the school certificate was not produced by the prosecution and no ossification test was conducted. In view of the overwhelming evidence led by the prosecution, it was not necessary to conduct ossification test of the prosecutrix. It was also not necessary in view of the preliminary evidence led by the prosecution to produce the school certificate to prove the age of the prosecutrix.

The prosecutrix was 14 years of age. She was taken by Respondents No. 2 and 3 to a distant place. She was recovered from the Jungle in the company of Respondent No. 1. The prosecutrix has died during the course of trial. However, she has narrated the entire incident to her father the manner in which she was taken to the forest and the manner in which sexual intercourse was committed by Respondent Joginder Kumar. The medical opinion also corroborates the commission of sexual intercourse by the Respondent. Human blood was found on the vaginal swab of the prosecutrix and on her Salwar human blood and human semen were found as per the chemical examination report Ex.P.W.-4/B. The opinion of the doctor, i.e. P.W.-4 Dr. S. Rana was based on the physical examination of the prosecutrix and also on the basis of the chemical report.

We are of the considered opinion that the prosecution has proved its case to the hilt that the prosecutrix was raped by Respondent No. 1 Joginder Kumar. The findings recorded to the contrary by the trial court are liable to be set aside.

Now, the Court will advert whether the prosecutrix was kidnapped and abducted by Respondents No. 2 and 3. The statements of P.W.-2 and P.W.-3 do not inspire confidence the manner they have deposed about the kidnapping and abduction of the prosecutrix. They themselves have not seen the girl being taken by Respondents No. 2 and 3. The trial court has come to the right conclusion that the prosecution has failed to prove the charge against Respondents No. 2 and 3 for offences punishable, under Sections 363 and 366 of the Indian Penal Code. The findings recorded by the trial court are not required to be interfered with.

For the foregoing reasons, appeal is partly accepted. The judgment of the trial court, acquitting Respondent No. 1 Joginder Kumar, is set aside. However, acquittal of Respondents No. 2 and 3 is upheld. Respondent No. 1 Joginder Kumar is held guilty of offence, u/s 376 of the Indian Penal Code and is convicted accordingly. He be produced on 27.4.2011 for being heard on the question of quantum of sentence. Non-bailable warrants of arrest be also issued. Bail bonds, qua Respondents No. 2 and 3, stand discharged.