Varun Panday vs State of Haryana

Daya Chaudhary, J.—The present appeal has been filed against judgment of conviction and order of sentence dated 27.08.2003 passed by Additional Sessions Judge, Fast Track Court, Kurukshetra, whereby, the accused-appellant has been convicted for offence u/s 376 IPC and sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs. 1,000/- with default clause; to undergo rigorous imprisonment for a period of three years with fine of Rs. 500/- under Sections 363/34 IPC with default clause; to undergo rigorous imprisonment for a period of three years with fine of Rs. 500/- u/s 366/34 IPC with default clause.

Briefly, the facts of the prosecution case are that on the basis of complaint made by Gurbax Singh on 31.10.2001, an FIR was registered. As per contents of the FIR, the daughter of the complainant Sandeep Kaur went to market on 27.10.2001 but did not return to his house. On inquiry, it came to the knowledge of the complainant that Varun Panday and his brother Mukesh Panday, who were frequent visitors at his home and also his neighbourers residing in Sthaneshwar temple nearby, were also missing from that day. However, efforts were made to search out the daughter of the complainant but all in vain. It was alleged in the complaint by the complainant that both Varun Panday and Mukesh Panday had abducted/kidnapped his minor daughter-Sandeep Kaur. On the basis of said statement, FIR under Sections 363 and 366 of the Indian Penal Code was registered.

During investigation, both accused were arrested on 20.11.2001 from Village Kala Gaon and the prosecutrix-Sandeep Kaur was recovered from Village Babupur. Prosecutrix and accused were got medico-legally examined from Lok Nayak Jai Parkash Hospital, Kurukshetra and statement of Sandeep Kaur u/s 161 Cr.P.C. was recorded, on the basis of which, Section 376 of the Indian Penal Code, was also added to the aforesaid FIR.

Both the accused faced trial and were ultimately convicted for the said offences and sentenced by the trial Court vide its judgment dated 27.08.2003.

The judgment of the trial Court and order of sentence is subject matter of challenge in the present appeal only by present appellant i.e. Varun Pandey.

The judgment of conviction and order of sentence dated 27.08.2003 passed by Additional Sessions Judge, Fast Track Court, Kurukshetra has been challenged by learned counsel for the appellant by raising various arguments like; the trial Court has not taken into consideration the School Leaving Certificate produced before it, whereby, the date of birth of the prosecutrix is stated to be 02.01.1985 and the affidavit sworn by prosecutrix was also not considered, wherein, it was mentioned that she was of more than 20 years of age at the time of incident. Learned counsel for the appellant also submits that it was a case of consent as the prosecutrix has written various love letters which were exhibited during trial and were proved on record. Said love letters were also admitted by the prosecutrix. The appellant as well as prosecutrix have stayed together at different places and the prosecutrix neither raised any hue and cry nor protested even when she was at crowded places. Learned counsel further submits that the love letters were proved by handwriting expert and were found to be written by the prosecutrix herself. There was no injury marks on the private parts of the prosecutrix which shows that she remained with the accused with her own free consent. Learned counsel also submits that there is a delay in lodging the FIR and the same has not been explained. As the prosecutrix eloped on 27.10.2001, however, the FIR was registered on 31.10.2001 i.e. after a delay of four days.

Learned counsel for the appellant has relied upon the judgment of Hon''ble the Apex Court in Alamelu and Another Vs. State represented by Inspector of Police, judgment of this Court in Balwan Singh Vs. The State of Haryana judgments of Delhi High Court in case Ram Singh @ Karan and others vs. State N.C.T. of Delhi 2013(6) RCR (Criminal) 835; Naresh Kumar Vs. The State (Govt. of Nct) Delhi, and the judgment of Chhattisgarh High Court in case Suresh @ Ravi vs. State of M.P. (Now State of Chhattisgarh) 2011(8) RCR (Criminal) 3069, in support of her contentions.

Learned State counsel submits that the judgment of the trial Court is well reasoned and based on proper appreciation of evidence, hence no interference is required.

Heard the arguments of learned counsel for the parties and have also perused the record of the trial Court and other documents on the file.

The complaint was made against two accused, namely, Mukesh Panday and Varun Panday and they were convicted and sentenced by the trial Court. However, the present appeal has been filed only by Varun Panday. Admittedly, the FIR, in dispute, was registered on the basis of the statement of the complainant-Gurbax Singh, who is father of the prosecutrix. It is mentioned in the complaint that the accused-appellant used to visit the house of the complainant as he was working as priest in adjoining temple. The daughter of the complainant was found missing on 27.10.2001 as she did not come back from market. Both the accused, namely, Varun Panday and his brother Mukesh Panday, who were residing in the neighbourhood were also found missing. However, on the basis of the statement of the complainant, the FIR under Sections 363, 366 and 376 IPC was registered.

The prosecution examined PW-1 Dr. Harbans Singh, PW-2 EHC Shankar Lal, PW-3 HC Mukesh Kumar, PW-4 Jorawar Singh, PW-5 Inspector Surinder Singh, PW-6 MHC Ram Kumar, PW-7 Constable Madan Lal, PW-8 HC Gian Chand, PW-9 Gurbax Singh, PW-10 Sandeep Kaur, PW-11 SI Subhash Chander, PW-12 SI Raj Kumar, PW-13 SI Mam Chand and PW-14 Dr. Madhu Sharma.

In the statement recorded u/s 313 Cr.P.C., the accused pleaded false implication and denied prosecution allegations. The accused-appellant has also stated that the prosecutrix-Sandeep Kaur is his legally wedded wife and she left her house with her own free will. Hence, no offence is made out as she has written number of love letters and has also sworn an affidavit, wherein, she has stated that their marriage was solemnized and they were also having photographs of said occasion.

In defence, the statement of Ram Dhan-DW 1 was recorded, wherein, it was stated by him that the writing on the letters was compared to that of the handwriting of the prosecutrix and all the letters were found to be written by same person. The photographs (exhibits D4 and D5) were produced and proved on record along with their negatives. The statements of DW-2 Sukh Ram as well as DW-3 Bhola Nath Dubey, Notary Public were also recorded.

The judgment of the trial Court has been challenged on the ground that the prosecutrix was more than 16 years and 10 months of age at the time of alleged occurrence and there was no other document to prove her date of birth except her School Leaving Certificate. Learned counsel for the appellant submits that there was no injury mark on the person of the prosecutrix and hence, it was a case of consent as no hue and cry was ever raised by her. She has been roaming with the accused-appellant from one place to another with her own consent.

On the other hand, learned State counsel submits that the love letters were written by the prosecutrix under threat and it cannot be said that it was a case of consent. Simply by saying that there was no injury on the person of the prosecutrix, it cannot be said that she was a consenting party as the consent of minor has no evidentiary value as admittedly, the prosecutrix was less than 18 years of age and hence, the present petition deserves to be dismissed.

The main issue for consideration before this Court is regarding the age of the prosecutrix at the time of alleged occurrence and also as to whether she was minor or major for the purpose of commission of offence under Sections 363/366 and 376 IPC. As per statement of Gurbax Singh-PW 9, the prosecutrix had studied up to 8th standard in Government High School, Nonowal, Jinder and she was born on 02.01.1985. He had also produced Certificate (exhibit ''PL''), which was issued by Punjab School Education Board, Middle Standard Examination, March 1998 to the police and the same was taken into possession vide Memo (exhibit ''PN''). The statement of complainant-Gurbax Singh has further been supported by the statement of the prosecutrix.

Dr. Madhu Sharma, PW-14 had stated in her statement that she medico legally examined the prosecutrix and has giving the following opinion:-

The condition of clothes were intact, patient had taken bath, changed the clothes after the said act. She was conscious, pulse 82 per minute, B.P. 120/80 mmhg. temperature was normal.

She was healthy young woman in conscious state. External examination: There was an abrasion of 0.5 x 0.25 cm. on palmer aspect of distal phalanx of left middle finger. Thin scab was found. Injury was simple in nature.

Breast were well developed. Areolae were of pink colour, nipples were developed.

Manstrual history:- age of menarchae was four years back. LMP was 2.11.01. Manstrual cycle was 4/30 days. Internal examination:- All secondary sex characters were well developed. Public hair were present but not matted. There was no fresh injury over the vulva and vaginal walls and inner parts of thighs.

P/v labia were healthy, hymen was torn, the tags of hymen were present over 4 O'' clock and 6 O'' clock position. Two fingers were easily passing through vagina, two slides were made from vaginal smear from posterior fornix. Two swaps were made from secretion from the vaginal smear and packed in two vials. Blue printed salvar was taken and sealed. A pulinda of clothes was prepared and two slides of vaginals smear, two vial containing swaps of cotton, packed and sealed properly and with Salvar, handed over to police.

Dr. Madhu Sharma, PW-14 has further stated in cross-examination as under:-

Possibility could not be ruled out that Sandeep Kaur is habitually enjoying sex. She was all alone when I medico-legally examined her. One my lady Class-IV with me for my help. She told her age herself. It is correct that I was doubtful about the age of Sandeep Kaur, so I have advised for ossification test. Police has not shown any report regarding ossification test and they have not taken any opinion of her age from me. There could be possibility of injury on any part of a body when a person tried to forcibly intercourse of a woman. There is no injury on the person of Sandeep Kaur at the time of her examination.

It has also been admitted by the prosecutrix in her cross examination that she had visited different places with the accused and no hue and cry was ever raised by her.

As per opinion of the handwriting expert, love letters were written by the prosecutrix. The date of birth of the prosecutrix has been proved which was based on School Leaving Certificate and nothing contrary has come on record. The prosecutrix was 16 years and 10 months of age at the time of alleged incident. The complainant, who is father of the prosecutrix, has also admitted the same date of birth. Thus, there is no reason for not relying upon the certificate as even no ossification test was conducted.

As per Section 375 of the Indian Penal Code "a man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

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sixthly with or without her consent, when she is under sixteen years of age.

It is clear from the above that the consent of the victim is immaterial if she is below 16 years but in the instant case, the age of the prosecutrix was more than 16 years at the time of occurrence. Moreover, the prosecutrix remained with the accused-appellant for about a month and during that period, they have been roaming from one place to another and had been travelling in the bus etc.

It has been held by Hon''ble the Supreme Court in Tukaram''s case (supra) that "the fear shown by the prosecutrix must be that of a death or hurt and in the absence of such a finding, the alleged fear does not vitiate the consent." In the instant case, it is not the case of the prosecution that the prosecutrix remained under constant fear of death or hurt during the entire period. She had been visiting various places by bus etc. and at that time, there might be number of passengers/people around but she kept mum for the reasons best known to her. It is also pertinent to note that when the prosecutrix was recovered from the custody of the accused, at that time, she was sitting with the accused at the railway Station, Bhiwani and there was no such factor of fear. Had there been no consent on her part, the accused would not have taken her from one place to another including religious place. After careful perusal of the statement of the prosecutrix and other attending circumstances, it is crystal clear that she was a consenting party.

Hon''ble the Supreme Court in case S. Varadarajan Vs. State of Madras, has held as under:-

There is a distinction between "taking" and allowing a minor to accompany a person. The two expressions are not synonymous though it can not be laid down that in no conceivable circumstances can the two be regarded as meaning the same thing for the purpose of Section 361. Where the minor leaves her father''s protection knowing or having capacity to know the full import of what she is doing, voluntarily joins the accused persons, the accused can not be said to have taken her away from the keeping of her lawful guardian.

Hon''ble the Apex Court has observed in Birad Mal Singhvi Vs. Anand Purohit, as under:-

The date of birth mentioned in the scholars'' register has no evidentiary value unless the person who made the entry or who gave the date of birth is examined................. Merely because the documents Exs. 8, 9, 10, 11, and 12 were proved, it does not mean that the contents of documents were also proved. Mere proof of the documents Exs. 8, 9, 10, 11 and 12 would not tantamount to proof of all the contents or the correctness of date of birth stated in the documents. Since the truth of the fact, namely, the date of birth of Hukmi Chand and Suraj Prakash Joshi was in issue, mere proof of the documents as produced by the aforesaid two witnesses does not furnish evidence of the truth of the facts or contents of the documents. The truth or otherwise of the facts in issue, namely, the date of birth of the two candidates as mentioned in the documents could be proved by admissible evidence i.e. by the evidence of those persons who could vouchsafe for the truth of the facts in issue. No evidence of any such kind was produced by the respondent to prove the truth of the facts, namely, the date of birth of Hukmi Chand and of Suraj Prakash Joshi. In the circumstances the dates of birth as mentioned in the aforesaid documents 1988 (Supp) SCC 604 25 have no probative value and the dates of birth as mentioned therein could not be accepted.

Said observation has also been reiterated by Hon''ble the Apex Court in case Narbada Devi Gupta Vs. Birendra Kumar Jaiswal and Another, which is as under:-

The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue.

In Mahabir Vs. State, the prosecutrix had travelled with the accused for long-long hours in a compartment shared by other passengers, they went to a house on a Tonga which was hired from the Railway Station and shared by other passengers. All this while she did not make any protest or raised any alarm or made any attempt to flee. In these facts, it was concluded that she was a consenting party. In Mohamad Imteaz Khan alias Sannu V. The State of Haryana, 1994(2) Recent Criminal Reports 456, prosecutrix remained with the accused for number of days, travelled in the buses and passed through crowded places without raising any protest. In these facts, it was held that the prosecutrix was a consenting party.

In view of the facts as well as law position as explained above, the appeal deserves to be allowed. Impugned judgment of conviction and order of sentence awarded to the appellant under Sections 363, 366 and 376 IPC are set aside. The appellant is acquitted of the charge framed against him. He is on bail and as such, the bail/surety bonds stands discharged.