Sunil @ Kala vs State of Haryana

Anita Chaudhry, J.—The present appeal is directed against the judgment of conviction dated 06.10.2007 and order of sentence dated 09.10.2007 passed by the Addl. Sessions Judge, Jind vide which the appellant-accused - Sunil @ Kala has been convicted in FIR No. 227 dated 15.04.2006 registered at Police Station City Jind for the commission of the offence under Sections 363, 366-A and 376 IPC and Section 3 of the SC and ST Act, 1989. He was sentenced to under go rigorous imprisonment for a period of seven years and to pay a fine of Rs. 5,000/- u/s 376 IPC and in default of payment of fine to further under go RI for a period of six months. He was also sentenced to under go rigorous imprisonment for a period of three years and pay a fine of Rs. 2,000/- for the offence punishable u/s 363 IPC and in default of payment of fine, he was to under go RI for a period of two months. He was also sentenced to under go rigorous imprisonment for a period of five years and to pay a fine of Rs. 3,000/- u/s 366 IPC and in default of payment of fine to further under go rigorous imprisonment for a period of six months. The accused was also sentenced to under go RI for a period of one year and to pay a fine of Rs. 1,000/- u/s 3(x) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act and in default of payment of fine he was to under go RI for a period of one month. All the sentences were directed to run concurrently. Accused Jai Singh was acquitted. Indro w/o Belli Ram- complainant lodged a report with the police that her daughter (referred as ''X'') and daughter of Anguri (referred as ''Y'') had gone to purchase torch and had not returned and that the girls were in the age group of 13/14 years. It was also reported that they had come to know that Jai Singh s/o Satpal and Sunil @ Kala s/o Rameshwar had lured the girls and they were missing. The police registered the FIR on this complaint. During investigation, victim X - daughter of Indro was recovered from the possession of Jai Singh. She was produced before the Magistrate for recording her statement u/s 164 Cr.P.C. After conducting her medical examination, she was handed over to her parents on 19.04.2006. Victim Y - daughter of Anguri was recovered from the possession of Sunil @ Kala and after her medical examination, her statement was recorded u/s 164 Cr.P.C. She refused to go with her parents and was sent to the Nari Niketan. Later on, at the request made by the prosecutrix, victim Y was handed over to the parents. The police completed the investigation and filed challan against both the accused under Sections mentioned aforesaid. They were charged accordingly to which they pleaded not guilty and claimed trial.

The trial proceeded and the prosecution examined both the victims, Indro - complainant, the Medical Officers and the police officials and tendered some documents.

The accused in their statements recorded u/s 313 Cr.P.C. pleaded false implication. Accused Sunil @ Kala deposed that he had performed marriage with the victim with her consent at Shiv Mandir, Panchkula and they had jointly filed criminal misc. petition u/s 482 Cr.P.C. before the High Court and the girl was major. He further disclosed that she had appeared in the Court and made a statement that she apprehended threat from her parents. He further stated that they stayed together as husband and wife and now she was under pressure of her parents. He had tendered documents and age proof of the victim in defence.

Jai Singh - accused simply pleaded false implication and stated that neither the complainant nor the prosecutrix had deposed against him.

I have heard learned counsel for both the sides and with their help perused the case file.

Learned counsel for the appellant had urged that it was the case of the prosecution that two girls were enticed and kidnapped by Jai Singh and Sunil @ Kala and Jai Singh was acquitted since the prosecutrix did not depose against him whereas Sunil @ Kala was convicted for kidnapping and enticing a minor girl. It was urged that the trial court had failed to appreciate the fact that the prosecutrix and Sunil - accused had jointly filed a protection petition in the High Court and girl had furnished an affidavit that she was 20 years old and the order passed by the Court is available on record. It was urged that when they were apprehended, the girl did not accompany the parents and she was sent to the Nari Niketan. It was urged that before the Medical Officer, she had given her age as 17 years and a Medical Board was constituted to assess her age and her age was assessed as 17 years and it was a case of consent. It was urged that there was delay in lodging the FIR and the prosecutrix had admitted her marriage and she had made a statement in his favour before the Magistrate. But thereafter she was under pressure of her parents and therefore, did not support him and deposed against him. It was urged that the medical evidence also does not support the prosecution and there was no external mark of injury. It was contended that the appellant was in custody for over 41/2 years and if the Court finds no merit in the appeal then the appellant may be sentenced to imprisonment already under gone.

Learned counsel appearing for the State urged that the girl was under the influence of the appellant and therefore, she had made a statement favouring the accused but thereafter she was sent to the Nari Niketan and she chose to return to her parents'' house and made a statement against the appellant. It was urged that there could be no marriage as the girl was under 18 and the Court was lenient enough to award a sentence of 7 years and the appeal should be dismissed.

The case of the prosecution was that two girls were enticed by the accused namely Jai Singh and Sunil @ Kala. The trial as against Jai Singh ended in acquittal as victim X chose not to support the prosecution case and gave him a clean chit. She did not support the prosecution also with respect to the fact that there was another girl with her and she was taken away forcibly by Sunil @ Kala.

Indro - PW-2, who is the complainant simply stated that she got the FIR registered since her daughter was missing. She further stated that Jai Singh had not kidnapped her daughter. Her statement is not relevant as Jai Singh has been acquitted.

Belli Ram-husband of Indro did not depose against accused-Sunil @ Kala.

Victim Y-PW-10 is the prosecutrix, who was enticed and kidnapped by accused Sunil @ Kala. She had stated that she along with another girl of her locality had gone to the shop when they met Sunil @ Kala and Jai Singh. Accused-Sunil @ Kala took her forcibly to Punjab. She could not give the name of the places where she was kept. She stated that she was raped for 20-25 days. She stated that she tried to seek help but was gagged and threats were given to her. She disclosed that she was taken to the house of the maternal uncle of the accused and was kept at Siwani, Bhiwani for 10 days. She stated that besides her uncle and aunt, the children were also in the house. She stated that she made a statement in favour of accused - Sunil @ Kala since she was under pressure. She stated that she did not perform marriage with the accused but he had taken some photographs with her. She denied that a criminal misc. petition seeking protection was filed in the High Court. She admitted that she was sent to the Nari Niketan after she was recovered. She denied that she had given her age as 20 years before the Magistrate. She admitted that she travelled with the accused to different places in public transport. She could not give her date of birth.

Anguri, mother of victim Y - PW-11 stated that her daughter was missing and she could not be traced and she and Indro registered a case. She stated that she did not see the accused kidnapping her daughter and she did not see anyone taking her daughter away and she came to know that Sunil @ Kala had kidnapped her.

Sh. G.S. Wadhwa, JMIC - Bhiwani - PW-19 had recorded the statement Ex. PZ of prosecutrix-Y wherein she had deposed that she had married Sunil @ Kala and it was with her consent. She also stated that there was a court marriage preceded by a marriage at the mandir in Panchkula. She also expressed threat to her life from her parents and brothers. This statement was recorded on 11.05.2006.

The accused - Sunil @ Kala in his statement recorded u/s 313 Cr.P.C. took the same stand as taken by the prosecutrix in her statement recorded u/s 164 Cr.P.C. He further deposed that a protection petition had been preferred in the High Court and the prosecutrix was major. She had stayed with him as his wife for 10 days and she was now under the pressure of her parents. In defence he had produced the copy of the order Ex. D-1 and date of birth certificate Ex. D-2 and the affidavit sworn by the prosecutrix Ex. D-3.

A complaint of kidnapping was lodged when the prosecutrix was missing from the home. The prosecutrix was recovered and was taken before the Magistrate for her statement. She made a statement in favour of the accused. She did not want to accompany her parents and wanted to go to the Nari Niketan. The Magistrate ordered the victim to be sent to the Nari Niketan. Few days later the girl returned to her parents. In the Court the prosecutrix made a statement against Sunil @ Kala. She denied that she had filed any petition in the High Court seeking protection. She stated that she was illiterate and did not know how to sign. She denied that she had appeared before the High Court. She stated that she remained outside the Court. She had admitted that she had visited several places and had stayed in the house of the accused and had travelled in public transport. The question would be whether it was a case of consent. It has also to be seen as to whether the prosecutrix was a minor.

The medical board was constituted to find the age of the prosecutrix and the report is Ex. PS, according to which, the age of the prosecutrix is approximately 17 years. The test was carried on 10.05.2006. The incident took place on 10.04.2006. The prosecutrix had given her age as 16 to the medical officer. The accused had produced a document Ex. D-2 where the age of the prosecutrix is recorded as 20 years. The prosecutrix had given an affidavit Ex. D-3 where her date of birth is given as 20 years. The parents of the prosecutrix have not spoken about her age. No birth certificate was collected, therefore, we have to rely upon the report submitted by the Medical Officers, according to which, the girl was 17 years of age. She was over 16 years of age and capable of understanding the consequences of her act. The prosecutrix had accompanied the accused to various places. There is no material to show that there was any attempt of resistance. She did not seek help from the fellow passengers while travelling. There was no mark of struggle or injury on her body. Her conduct speaks of element of artificiality and her story is unnatural. The prosecutrix has changed her version. She along with the accused had filed a criminal misc. petition bearing CRM No. 22195 of 2006. It was a joint petition seeking protection as they feared threat from her parents. The prosecutrix has admitted that she had gone to the Court but stated that she remained outside whereas Sunil @ Kala went inside the Court. If that was so, she had the occasion to seek help from the Court or people standing outside the Court. The prosecutrix had stated that she was major and had solemnized marriage against the wishes of her parents. She had made a statement in this regard to the Magistrate. That was the first statement made after she was recovered. All the circumstances clearly show that it was a case of consent and she knew the consequences of her actions. She was not under any misconception. She was in a position to understand the nature and consequences of her act. She had deliberately changed her statement in the Court probably she was under the influence of her parents. Such a witness cannot be believed. The appeal is accepted. The accused be set at liberty forthwith, if in custody and if not required in any other case.