Vas Dev vs State of Haryana

K.P.S. Sandhu, J.—This is a jail appeal filed by Vas Dev against his conviction under section 363 of the Indian Penal Code recorded by the Additional Sessions Judge, Sirsa, vide his order dated 12th April, 1984. The learned trial Judge sentenced the appellant to rigorous imprisonment for five years and a fine of Rs. 200, in default further rigorous imprisonment for three months vide his order dated 16th April, 1984.

Radha Rani PW 7 was residing with his uncle Hans Raj PW 4 in village Saharni since her father had died some nine years ago. Hans Raj had a threeear old son who was suffering from polio who could not be cured in spite of long medical treatment. Two months prior to the occurrence Hans Raj brought the appellant to his house for pooja path. Thus the appellant started residing in the baithak of Hans Raj and continued performing pooja path for a sufficient period. On 11th August, 1983, at about 8 p.m. the appellant gave certain articles to Radha Rani prosecutrix to be placed under a Jand tree at about 12 midnight. When Radha Rani prosecutrix went out to place the articles there she was kidnapped by the appellant at the point of pistol and he also committed rape upon her and kept her in kotha for the night. The prosecutrix was removed to a narma field by the appellant and there she was kept for three days. During this period the appellant committed rape upon her a number of times. On 15th August, 1983, the police party recovered the prosecutrix and arrested the appellant. The prosecutrix was medically examined by Lady Dr. R. Grover PW 6 in Civil Hospital Sirsa. On 15th August, 1983 at 11.30 a.m. Following is the report of her medical examination :

"She was moderately built, moderately nourished, breast was moderately developed, pubic and axillary hairs were sparsely developed and black in colour. Under surface of the salwar and underwear was not soiled. There was no mark of injury on the private parts, inner surface of the thigh and lower abdomen."

Per vaginal examination :

Two fingers could go easily inside the vagina. Hymen was raptured. Old heals tags were present."

First Information Report Exhibit PC/1 was recorded at Police Station Sadar Sirsa, on 12th August, 1983, at 11.45 p.m. on the basis of the statement of Hans Raj PW 4. The appellant was also medically examined by Dr. B.D. Grover PW 1 on 15th August, 1983 at 7 p.m. He found the appellant fit to perform sexual intercourse. The clothes, Exhibits P3 to P5, of the prosecutrix and her vaginal swabs were sent for chemical examination. According to the report of the Chemical Examiner Exhibit PJ, the swabs, salwar and kachha were stained with semen. The appellant was sent up for trial after due investigation.

The appellant in his statement under section 313 of the Code of Criminal Procedure denied the prosecutions allegations and pleaded false implication. He did not adduce any evidence in defence.

Radha Rani PW 7 has given the ocular account of the occurrence. The learned Trial Judge acquitted the appellant of the charge under section 376 of the Indian Penal Code holding that the prosecutrix was a consenting party and that she was more than sixteen years of age. However, he came to a finding that she was less than eighteen years of age. Therefore, he convicted the appellant under section 363 of the Indian Penal Code.

Mr. Sunil Gaur Advocate appearing amicus curiae for the appellant has taken me through the findings of the learned trial Judge. The birth entry, Exhibit PB, which was produced by the prosecutrix to prove the age of the prosecutrix has been disbelieved by the learned trial Judge since he came to a finding that it did not relate to the prosecutrix. The prosecutrix was never subjected to an oscification test for the determination of her age. However, the only piece of evidence relied upon by the learned trial Judge regarding the age of the prosecutrix is her Middle Standard Examination certificate Exhibit DB. The prosecutrix has shown ignorance about the date of her birth and has further stated that she could not say whether the date of her birth given in Exhibit DB is correct or not. It has been held time and again that the school leaving certificate is not a conclusive piece of evidence regarding age. In this view of the matter, I do not think that the conviction of the appellant under section 363 of the Indian Penal Code can be sustained. Consequently I give him the benefit of doubt and acquit him of the charge under section 363 of the Indian Penal Code. The fine, if recovered, would be refunded to the appellant.