Vijay Kumar vs State of Haryana

R.L. Anand, J. (Oral)

This is criminal appeal and has been directed against the order dated 19.8.1987 passed by the court of Additional Sessions Judge, Ambala who convicted the appellant Shri Vijay Kumar under Sections 363 and 376 I.P.C. and sentenced him to undergo three years Rigorous Imprisonment for an offence under Section 366 I.P.C. He was also sentenced to undergo Rigorous Imprisonment for a period of five years for an offence under Section 376 I.P.C. Both the sentences were ordered to run concurrently.

The brief facts of the case are that Sarabjit Kaur (prosecutrix) was studying in B.A. Part I, S.D. College, Hoshiarpur during the day of the occurrence. On 8.1.1987 she started from Hoshiarpur for going to Delhi. On the same day at about 9.00 P.M. she boarded from Chandigarh a Haryana Roadways bus for going to Delhi. In the bus she met Vijay Kumar accused who was sitting with her on the same seat. The appellant informed her that he was a resident of Gurdaspur and his two elder brothers are living at Yamuna Nagar alongwith their wives and children. He further told the prosecutrix that he was also going to Yamuna Nagar and she should accompany him as he would get her some employment at Yamuna Nagar. The accused made her get down at Ambala Cantt bus stand by alluring her to get the employment and took her to Yamuna Nagar by train where they reached at about 1.00 A.M. or 1.20 A.M. From there Vijay Kumar hired a rickshaw and took her to his brother''s house which is situated at the back of the bus stand. The house of brother of Vijay Kumar consisted of two rooms and he asked Sarbjit Kaur to enter one vacant room. When she enquired about his sisterinlaw and his brother''s children, the accused told her that his sisterinlaw had gone to Hoshiarpur to attend his wife during her delivery. He further told her that he was working in Hawkins Pressure Cooker factory Hoshiarpur. After some time Vijay Kumar also came in the same room for sleeping. When she objected, he closed the room from inside and threatened her to keep quite otherwise she would be killed. Thereafter the appellant committed forcible sexual intercourse upon the prosecutrix against her will and consent. On 9.1.1987 in the morning she asked the appellant that she should be allowed to go but she was threatened by the accused, therefore, she kept quiet out of fear. The appellant further told the prosecutrix that his brother was well known in the city and if she does something no body will come to know. The appellant forcibly locked her in the room and again committed forcible sexual intercourse upon her on the night of 9.1.1987. On 10.1.1987 the appellant was trying to take the prosecutrix to some other place when she met the A.S.I. Subhash Chander and two police constables at the bus stand and made statement Ex. PE before him. Subhash Chander ASI sent ruqa Ex. PE/1 on the basis of which formal F.I.R. Ex. PE/2 was recorded. Sarbjit Kaur handed over the bus tickets Ex.PF, Ex. PF/1, Ex. PF/2 and Ex.PF/3 to S.I. Om Parkash who took the same into possession vide memo Ex. PL. The appellant was arrested from the bus stand. The prosecutrix then took the Investigating Officer to the house of the brother of the accused and pointed out the place of occurrence. The rough site plan Ex. PM was prepared. The prosecutrix was medically examined by Dr. Shashi Bala at 9.45 P.M. The Doctor issued her Medical Legal Report Ex.PA. The accused was examined on 11.1.1987 on the police application and copy of the M.L.R. of the accused is Ex. PC. The prosecutrix also made a supplementary statement. She was radiologically examined on 26.1.1987 by Doctor S.C. Goel. She was produced before the Magistrate on 23.1.1987. On completion of the investigation the appellant was challaned in the court of Area Magistrate under Sections 366/376 I.P.C. who supplied him copies of the documents as required under law and vide commitment order dated 13.4.1987 the accused was committed to the court of Sessions. Vide order dated 4.5.1987 the appellant was chargesheeted under Sections 366 and 376 I.P.C. The charges were read over and explained to the appellant to which he pleaded not guilty and claimed trial.

In order to prove the charges, the prosecution examined in all seven witnesses. Doctor Shashi Bala appeared as PW. 1. She medically examined the prosecutrix and according to this Doctor at the time of examination prosecutrix was between 17 to 18 years. The Doctor found the following injuries on her person :

2" to 3" linear marks on lower parts of both breasts.

1/3 cm abrasion mark in the posterior part of hymen. Clot of blood was present.

Also it has been stated by the Doctor that the vagina of the prosecutrix admitted two fingers. There was no mark of injury over face, thigh, arms, forearms and abdomen. In the crossexamination this Doctor has stated "Since two fingers were easily admitted in the vagina, therefore, possibility of prosecutrix habitual to sexual intercourse cannot be ruled out." This Doctor further stated that clothes of the prosecutrix were not torn at the time of her examination. The possibility of injury No. 1 on the person of the prosecutrix being self suffered or self inflicted cannot be ruled out. Also this Doctor deposed that in vagina no blood was found and injury No. 2 could be caused due to normal act of intercourse. PW. 2 Dr. Bimal Kumar Prinja (PW. 2) medically examined Vijay Kumar appellant and declared him fit to perform sexual intercourse. Further it has been stated by the Doctor that there was no mark of injury on the penis, glans penis, inner aspects of thighs, front chest and abdomen of the accused. There was no mark of injuries on the face, lips and neck. PW. 3 is Shri Jagdish Lamba Draftsman who prepared scaled site plan of the place of the occurrence. Sarabjit Kaur appeared as PW. 4. I will discuss her statement in the later portion of this judgment. Balwan Singh Constable appeared as PW. 5. His statement is formal in nature. He accompanied the prosecutrix and the accused and after medical examination of the prosecutrix the Lady Doctor handed over sealed parcels including the sealed parcel of the underwear of the prosecutrix to S.I. Om Parkash, Investigating Officer of this case.

On the closure of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to him. The accused denied those circumstances and his stand before the Trial Court was as follows :

"It is a false case. The witnesses are under the influence of police and have deposed falsely. I never kidnapped or enticed Sarbjit Kaur prosecutrix. As a matter of fact she came to our shop near bus stand, Yamuna Nagar on 10.1.1987 and disclosed that she belongs to Hoshiarpur and she was somewhat conversant and familiar to me. She was persuaded by me to return to her parents. When she was brought to the bus stand for sending her to Hoshiarpur she was intercepted by the police and I was also called and both of us were detained in the police station since noon of 10.1.1987. She was detained and kept by the police and never allowed to return to her parents and a false case was planted upon me."

In defence, the accused examined Doctor S.C. Goel, Radiologist who declared the age of the prosecutrix more than 19 years, as per report Ex. DC and on the basis of the skiagrams Ex. DC/1 to Ex. DC/3.

Learned trial Court gave the findings in favour of the prosecution by holding that prosecutrix was kidnapped by the appellant from the lawful guardianship of his father and she was subjected to rape against her will and consent and therefore, the appellant was convicted and sentenced in the matter as stated above. Aggrieved by his conviction and sentence, the present appeal.

I have heard Shri M.S. Rakkar, Senior Advocate assisted by Shri Jagdeep Singh Virk Advocate on behalf of the appellant and Shri Shailender Singh, DAG, Haryana on behalf of the State and with their assistance have gone through the record of this case.

After going through the record I am of the considered opinion that the prosecutrix in this case was neither kidnapped or abducted rather she was a consenting party to the rape and in these circumstances the appellant is entitled to acquittal. The story of the prosecution put forward in the trial Court looks to be highly improbable.

So far as age aspect of the prosecutrix is concerned, it is the case of the prosecution itself that prosecutrix was more than 19 years of age when she left the house of her father on 8.1.1987. Before the Doctor Sarabjit Kaur gave her age as 17/18 years. She was studying in B.A. Part I while appearing in the witness box. She gave her age as 18 years. The Radiologist who did ossification test of the prosecutrix gave the findings that prosecutrix was above 19 years. In this view of the matter there is no difficulty on the part of this court to hold that the prosecutrix was more than 16 years at the time of the alleged incident. The point which survives for determination is whether Sarabjit Kaur accompanied the appellant of her own accord and whether she was kidnapped or forcibly raped. Story of the prosecution is that Sarabjit Kaur left Hoshiarpur on 8.1.1987 in order to go to Delhi. She reached at Chandigarh at about 8.00 P.M. She waited at Chandigarh Bus stand for one hour. Thereafter she started from Chandigarh at 9.00 P.M. She occupied the seat meant for two passengers and the appellant occupied the same seat which was earlier occupied by the prosecutrix. In this manner acquitance arose between the prosecutrix and the appellant. The distance from Chandigarh to Ambala can be covered within a span of 11/2 hours. Would it be believable that a young matured girl of the age of 18 years would became ready partner to accompany the appellant young boy of 28 years until and unless there is no old acquitance between the appellant and the prosecutrix ? The prosecutrix was to go to Delhi. She had no business to alight at Ambala or Yamuna Nagar. The story of the prosecution is that the appellant gave allurement to the prosecutrix that he would arrange a job for her through his brothers and on that representation the prosecutrix became ready to accompany the appellant during that night. This part of the prosecution story looks to be high improbable. No sane girl would accompany a stranger even if he may give allurement that he would arrange a job for her. Rather it has been admitted by the prosecutrix in her crossexamination that the appellant told her that he used to work at Hoshiarpur in Hawkin Pressure Cooker factory. Here the truth lies. What it looks to be more probable is that the appellant must have told the prosecutrix that he would join her at Chandigarh itself in order to go to Delhi or somewhere else. It was not a chance union of two persons but it was a preplanned arrangement between the appellant and the prosecutrix. The appellant and the prosecutrix voluntarily alighted at Ambala from the bus. They boarded a train in order to go to Yamuna Nagar and they went to the house of the brother of the appellant. The prosecutrix surrendered herself voluntarily for sexual purposes before the appellant. They spent about two nights and two days. If the prosecutrix was wrongly confined at the house of the brother of the appellant at Yamuna Nagar for two nights and two days, she should be the first person to raise hue and cry. After all it had become known to the prosecutrix that the appellant was not interested to arrange a job for her and his intention was otherwise. In these circumstances the normal conduct of human being would be to raise hue and cry or to resist the alleged act of rape. The Doctor has not found any injury on the person of the prosecutrix from which it can be suggested even remotely that she was not a consenting party to the sexual intercourse. She was more than 16 years and if she had left the house of her parents on account of bad behaviour of her brother, it cannot be said that the appellant had kidnapped or enticed the prosecutrix. She left the house of her own accord. She joined the company of the appellant at Chandigarh. They went to Ambala and from there they went to Yamuna Nagar. From the condition of the vagina of the prosecutrix a reasonable inference can be drawn that she was used to sexual intercourse. She surrendered herself voluntarily and therefore ingredients of Sections 376 I.P.C. are not attracted in this case. There is no corroborative evidence to the testimony of the prosecutrix that she was victim of rape. Her testimony had not stood the test of credence and in these circumstances I am inclined to extend benefit of doubt to the appellant.

Resultantly, this appeal is hereby accepted and the judgment and order of the learned trial Court are hereby set aside and the appellant stands acquitted of the charges framed against him.