Criminal Appeal No.1194-SB- of 2003 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.1194-SB- of 2003
Date of decision : 11.8.2008
Sunil alias Sonu .....Appellant
Versus
State of Haryana ...Respondent
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CORAM : HON'BLE MR. JUSTICE S. D. ANAND
Present: Mr. Neeraj Khanna, Advocate as Amicus Curiae.
Mr. S.S. Mor, Senior Deputy Advocate General,Haryana
S. D. ANAND, J.
The appellant was convicted by the learned Trial Court
for the offences under Sections 366/376/506 IPC. The learned Trial
court, however, exonerated the appellant of a charge under Section
363 IPC by recording a finding that “in this light of the above-
discussion, it has to be held that the prosecution has not been able
to bring sufficient positive evidence on the file to prove that the
prosecutrix was below 18 years of age at the time of occurrence in
question.”
2. The prosecution allegations were as under:-
3. The prosecutrix is an unmarried daughter of a working
couple. The first informant/complainant (PW-7) father of the
prosecutrix was a Railway employee and posted at Calcutta at the
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relevant point of time; while mother of the prosecutrix was in
employment in a Delhi Corporation. The couple had six children i.e.
two sons and four daughters. Two daughters and one son were
married; while others including the prosecutrix were unmarried and
used to stay at home. The first informant had come on home on
leave. On 18.11.2000 at about 5.00 P.M., he went out of the house
to see his working wife off. When he came home, he found the
prosecutrix missing from the house. He further found that the
appellant, who was residing in the same locality, was also missing
from his house. He entertained an apprehension that the appellant
had kidnapped his daughter. He further found that his daughter i.e.
prosecutrix had taken along cash amount of Rs.1250/- and indicated
gold ornaments (one necklace, two rings, one Tikka) and some silver
jewellary articles while leaving the house. The prosecutrix and the
appellant were apprehended by a police party on 18.12.2000, on the
basis of a secret information.
4. PW-1 Dr. Manju Lata had medico legally examined the
prosecutrix on 18.12.2000. She found that there were no injury
marks all over her body and her clothes were not torn from
anywhere. She further found that her hymen was ruptured and she
did not complain of pain during per-vaginal examination. No injury
was noticed on thigh, perineum, vulva, vagina and cervix. After
perusing the FSL report Ex. PC, Dr. Manju Lata opined that “sexual
intercourse with Pooja cannot be ruled out.” For determination of her
age, she recommended ossification test by an expert.
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5. PW-2 Dr. D.S.Rana had medico legally examined the
appellant on 18.12.2000. He opined that the appellant was capable
of performing sexual intercourse.
6. PW-13 Dr. Jai Kishore conducted the radiological
examination of the prosecutrix on 14.3.2001 and opined that “the
age of pooja daughter of Om Parkash appears to be 17 to 19 years
with an error of six months on either side.”
7. PW-3 HC Ram Bhagat, PW-5 Constable Jai Chand
and PW-9 Constable Rajesh Kumar tendered their affidavits Ex. PF,
Ex. PH and Ex. PK respectively into evidence.
8. PW-4 SI Chhattar Singh had recorded formal FIR Ex.
PG/1 on receipt of statement Ex.PG of Om Parkash (PW-6) bearing
endorsement of ASI Chandergupt. He also handed over the special
report to Constable Om Parkash (PW-6) for being delivered to Illaqa
Magistrate and also Superintendent of Police and D.S.P., Jhajjar.
9. PW-78 Om Parkash is the father of the prosecutrix.
10. PW-8 Pooja is the prosecutrix herself.
11. PW-10 Inspector Ram Chander had filed the report
under Section 173 Cr.P.C. in this case.
12. PW-11 is C.B. Sheoran, the then Sub Divisional Judicial
Magistrate, Bahadurgarh, had recorded the statement (Ex. PJ) under
Section 164 Cr.P.C. of the prosecutrix.
13. PW-12 ASI Chandergupt had investigated this case.
14. Appellant raised a pure and simple plea of innocence.
15. No evidence was adduced in defence.
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16. It would be apparent from a perusal of the record that the
prosecution has not been able to prove that the prosecutrix was
below 18 years of age at the time of commission of the offence.
However, learned Trial Judge negatived the appellant’s plea (raised
in the course of cross-examination of PWs) that it was all
consensual affairs. Learned Trial Judge also declined to place
reliance upon the photographs, affidavit Ex. D1 and love letters Ex.
D2 to Ex. D8 by recording a finding that those (Ex.D1 and Ex.D2 to
Ex.D8) had been executed/written by the prosecutrix under threat
and pressure. It was observed in that context that prosecutrix had no
occasion to make an averment in affidavit Ex. D1 that her parents
were poor and not in a position to get her married by providing her
dowry. In recording that finding, sustenance was drawn from the fact
that first informant had made a categorical deposition at the trial that
his two daughters and one son were married.
17. I do not find myself in agreement with the line of
reasoning adopted by the learned Trial Judge.
18. Letters Ex. D2 to Ex. D8 are clearly indicative of extreme
love which the prosecutrix had in her mind for the appellant. These
letters were presented before the police by the appellant. The
affidavit (Ex. D1) had been attested by a Notary Public. It is in
evidence that the prosecutrix had been to the Court i.e. the seat of
Notary Public where this affidavit was attested. The mere fact that
the deponent of Ex. D1 (prosecutrix) made a factually incorrect
averment in the course of affidavit Ex.D1 would not prove that she
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had not sworn that affidavit. By and large, people of the present
generation are intelligent. They do exhibit ingenunity in coining facts
which, they feel, would justify the step they have taken in the context.
The view obtained by the learned Trial Judge in the context is not
appropriate and is negatived. There is plethora of evidence on the
file to prove that the prosecutrix had been to a number of towns in
the company of the appellant. She is proved to have visited the
Courts for the purpose of attestation of affidavit Ex. D1. She never
ever made a grievance of the fact that she was being detained by the
appellant under threat or pressure. Interestingly enough, she denied
having appeared before the Notary Public but she is in the know of
the fact that the stamp paper had been purchased by an Advocate
(at Tikamgarh) who had been engaged by the appellant “for the
purpose”. She also knows that the affidavit had been typed by a
typist “in a Kiosk on the dictation of the lawyer engaged by Sunil.” It
was, thus, a pure and simple case where the entire episode was a
consensual affair. Once the prosecutrix has not been proved to be a
minor and no appeal has been filed by the State against the acquittal
of the appellant for the offence under Section 363 IPC, there is no
way the appellant could have been convicted for the offences under
Sections 366/376/506 IPC, particularly when it has been found that
she was a consenting party to the whole affair. In that context, it may
be noticed that it is in the First Information Report itself, which had
been lodged by none else or other than the own father of the
prosecutrix, that she had taken along a number of jewellary articles
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and indicated cash amount while eloping with the appellant.
19. Insofar as the statement made by the prosecutrix under
Section 164 Cr.P.C. is concerned, it does not have the probative
value adequate enough to outweigh the substantive evidence ( in
affidavit Ex. D1 and love letters Ex. D2 to Ex. D8) to the effect that it
was all a consensual affair between two adult individuals. The law
may not be able to validate it as a recognised alliance but it cannot
punish the male partner either as the female participant was a major
girl and a willing partner in the entire episode.
20. The following facts can safely be culled out from the
material obtaining on the file:-
(1) The prosecution has not been able to prove that the
prosecutrix was below the age of 18 years.
(2) The prosecutrix had taken along cash amount and gold
and silver jewellery articles which eloping.
(3) She had addressed love letters Ex.D2 to Ex.D8 which
indicate the love/deep infatuation she had in her
heart/mind for the appellant.
(4) She travelled through and to various towers in the
company of the appellant but did not make a grievance of
any act on the part of the latter.
(5) She swore affidavit Ex.P1 before a Notary Public in the
Courts premises but did not complain of being under
threat at the hands of the appellant.
21. In the light of the foregoing discussion and facts noticed
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above, the impugned finding of conviction is found to be
unsustainable. The appeal shall stand allowed. The impugned
judgment of conviction is set aside. The appellant shall stand
acquitted of the charge.
August 11, 2008 (S. D. ANAND) Pka JUDGE