JUDGMENT
Virender Singh, J.
1. Narate Ram son of Nand Lal stands convicted
by the learned Additional Sessions Judge, Chandigarh
vide judgment dated July 8, 1989 and has been sentenced
as under:-
U/S 363 IPC
To
undergo rigorous imprisonment for two years and to pay a ftne of Rs. 250/- In default of payment of fine to further undergo RI for two
months .`
U/S 366 IPC
To
undergo RI tor five years and to pay a fine of Rs. 250/-In default of payment of fine to further undergo RI for two
months.
U/S 376…TPC
To
undergo RI tor seven years and to pay a tine of Rs. 1000/-. in default of payment of fine to further undergo RI
for six months.
2. However, all the substantive sentences were
ordered to run concurrently. Aggrieved by the impugned
judgment of sentence and conviction, the appellant has
preferred the present appeal.
3. Chander Shekhar (PW-7), father of Urmila, the
prosecutrix (PW-8) is the complainant/First Information
Report lodger.
4. Briefly, the case of the prosecution is that
Chander Shekhar, a Rickshaw Puller was a tenant in the
house of Nand Lal, father of the appellant and was staying
in that house with his children. Urmila, the prosecutrix
was the eldest child of Chander Shekhar. She is stated to
be of 13 years.
5. On 27-12-1987, at about 3-45 AM, Urmila
allegedly went out of the house to ease herself. She did
not return for about 1/2 an hour. Chander Shekhar and his
wife/Saroj went out to search for her. During the search,
when they reached near the fodder room of their landlord,
they heard the depressed cries of Urmila. Consequently,
they went inside the fodder room and saw Urmila lying
naked on the ground and the appellant lying on her with
his hand on her mouth. After seeing Chander Shekhar and
Saroj, the appellant ran away. Urmila then told her
parents that she had come out of the room to urinate and
as she was going back, the appellant came from behind,
gagged her mouth and took her in the fodder room,
threatening that in case she raised a noise, she would be
killed and that thereafter the appellant allegedly removed
her clothes, then his own clothes and committed rape upon
her against her wishes and when she tried to make a noise,
he allegedly placed his hand on her mouth. Thereafter
Chander Shekhar alongwith his wife and the prosecutrix
went to police post Sector 36, Chandigarh and he made his
statement Exhibit PE, on the basis of which the formal
First Information Report (Exhibit PE/2) was recorded. The
prosecutrix was got medico legally examined. A swab was
taken from her vagina. Her underwear was also taken into
possession. These were sealed and all the other legal
formalities were completed.
6. The appellant was charged for the offence
punishable under Sections 363, 366 and 376 of the Indian
Penal Code.
7. On a consideration of the entire evidence, he
was convicted and sentenced by the learned trial Court, as
indicated above. Aggrieved by the impugned judgment of
conviction and sentence, he has preferred the present
appeal.
8. I have heard Mr. T.S. Sangha, learned counsel for
the appellant, Mr. R.K. Handa, Standing Counsel for the Union
Territory, Chandigarh. With their assistance, I have gone
through the entire record as also the other relevant
documents. The case of the prosecution mainly hinges on
the evidence of Urmila, the prosecutrix, Chander Shekhar
and two doctors namely Dr. (Mrs.) Harbir Bajwa and Dr.
S.P. Bhardwaj and the same would be the subject matter of
discussion in this appeal.
9. Mr. Sangha at the very out-set has vehemently
argued that at the time of commission of the alleged
offence, the age of Urmila/prosecutrix was between 17 to
19 years and that the finding of the learned trial Court
that she was less than 16 years is uncalled for.
According to Mr. Sangha, no documentary evidence viz.
birth/school certificate has been produced by the
prosecution to prove her age and when Dr. S.P. Bhardwaj
(PW-2) had radiologically examined the prosecutrix, he
found her to be 17 years with a margin of 2-1/2 years on
either side. Developing his arguments on this count, Mr.
Sangha has submitted that the trial Court has taken the
margin of 2-1/2 years on a lesser side in favour of the
prosecution, whereas it should have been taken on a higher
side, in favour of the appellant. In this context, Mr.
Sangha has also referred to the statement of Dr. (Mrs.)
Harbir Bajwa (PW-1), who had medico legally examined the
prosecutrix and found that her breasts and the public hair
were well developed. Mr. Sangha thus contends that in all
probabilities, the age of the prosecutrix was in between
17 to 19 years.
10. The next contention of Mr. Sangha is that once
the age of Urmila is taken to be 17 years and above, then
from the evidence led by the prosecution, it can be safely
said that she was a consenting party to whole of the
affair. For that Mr. Sangha has taken me through the
statement of the prosecutrix (PW-8), where she has deposed
that when she went out of the house in order to urinate,
the appellant came from behind, took her to the fodder
room and made her fall on the ground and removed his
clothes as also her clothes. She has further admitted
that she remained in the fedder room with the appellant
for about 1/2 an hour and when her parents arrived there,
she was lying nude and the appellant had already committed
rape upon her. Mr. Sangha submits that the evidence of the
prosecutrix is an indicative of the fact that she had
offered her consent to the appellant and that when she was
caught red handed, she was left with no option except to
coin up the present story of forcible inter-course. Mr.
Sangha has also taken me through the evidence of Chander
Shekhar (PW-7), who states that he and his wife were
sleeping when her daughter Sharmila, younger to Urmila,
got up for attending the call of nature. He asked
Sharmila to awaken Urmila and then Sharmila told him that
Urmila was not there. As per the statement of Chander
Shekhar, his daughter was found in the fodder room
alongwith the appellant and both were naked at that time.
Mr. Sangha then contends that it is not possible to believe
that the appellant knew that Urmila would come out of her
house at 3-45 A.M. on 27-12-1987 (during winter season) and
would be taken to the fodder room for committing rape.
Rather, Mr. Sangha submits, from the evidence adduced, it
can be safely inferred that Urmila, who was of the age of
17 years and above, had consented to join the company of
the appellant.
11. On the other hand, Mr. Handa appearing for the
respondent while refuting the arguments advanced by Mr.
Sangha has strenuously argued that the case of the
prosecution is proved to the hilt. According to him, age
of the prosecutrix was below 16 years at the time of
alleged occurrence. In the same breath, Mr. Handa has
submitted that even if for the sake of arguments her age
is taken to be 16 years and above, the evidence adduced by
the prosecution shows that she was not at all a consenting
party and was forcibly raped by the appellant. Mr. Handa
has referred to the stand taken by the appellant in his
statement recorded under Section 313 of the Code of
Criminal Procedure, in which he has stated that it was a
false case foisted upon him on account of the fact that
the payment of rent was not made by Chander Shekhar,
father of the prosecutrix for the last one year despite
persistent demands and contends that the complainant side
would not bring forward Urmila on account of rent dispute
in the shape of the present allegations.
12. After scanning the evidence on the file and
hearing both the sides, I find force in the submissions
made by Mr. Sangha.
13. Before discussing the age of the prosecutrix,
it may be mentioned that it is an admitted fact that no
documentary evidence, viz. birth/school certificate in
support of the age of the prosecutrix has been produced by
the prosecution. At the time of her medico legal
examination the prosecutrix had given her age to Dr. (Mrs.)
Harbir Bajwa as 13 years and then Dr. Bajwa had referred
her to the Radiologist for the purpose of determination of
her age. She was consequently examined by Dr. S.P. Bhardwaj
(PW-2), who found her to be 17 years. Exhibit PB is the
complete table given by Dr. Bhardwaj according to which
except four bones, her other bones were shown to have been
fused. One of the bones is iliac crest, which is shown to
be fused and the normal age of fusion of that bone is 17
to 19 years. Since the other two main bones viz. fibula
over the proximal and distal end were also found to be
fused and Dr. Bhardwaj thus came to the conclusion that the
age of the prosecutrix was 17 years. Keeping into
consideration the fusion of all the major bones and the
normal age of fusion, it can be safely said that the
prosecutrix was of the age of 17 years and above. In my
view, the margin of 2-1/2 years on either side is also to
be extended to the higher side. In this context, my view
is strengthened by the decision of the Apex Court in Jage
Ram v. State of Haryana , 1987(1) RCR 346, wherein the
age of the prosecutrix was 14 years with a variation of 3
years on the either side and the benefit was extended
towards the accused. I thus hold that the age of
Urmila/prosecutrix at the time of the alleged occurrence
was 17 years and above.
14. I have perused the statements of Urmila, the
prosecutrix and Chander Shekhar minutely and from the
evidence adduced, in my view, the possibility of the
consent on the part of the prosecutrix cannot be ruled
out. It will not appeal to reasoning that the appellant,
who had allegedly taken Urmila to the fodder room, was
aware of the fact that she would come out of her house at
3-45 AM in order to urinate. At the same time a minute
scanning of the statement of the prosecutrix shows that
she had joined the company of the appellant of her own
free will. The medico legal examination of the
prosecutrix also rules out the possibility of any force
being applied upon her. The relevant part from the
statement of Dr.(Mrs.) Harbir Bajwa is reproduced as
under:-
“Breast well developed, Axillary hair
growth scanty, course hair. Public hair well
developed.
Chest abdomen- no marks of violence.”
15. Local Examination- no marks of violence.
16. Hymen was torn at 5(SIC) clock and 8(SIC) clock
position. Old healed tears. Entroitus
admits two fingers–”
17. This has also come in the state of the
prosecutrix that when she was taken to the fodder room,
the appellant had removed her clothes and his own clothes.
She has also admitted that before her parents arrived at
the spot, the appellant had already committed the rape
upon her and that she had remained with him for about 1/2
an hour. In my view even one shriek raised by the prosecutrix would
have frustrated the move of the appellant because
admittedly she was staying in the house of the appellant
with her parents and the members of other families were
also staying there. The plea of the prosecutrix in this
situation that she could not raise hue and cry as her
mouth was gagged by the appellant, is not at all
believable.
18. The statement of Chander Shekhar (PW-7) is also
to the effect that when he reached the fodder room, he saw
the appellant and his daughter lying naked. It has also
come in his statement that the appellant was nabbed then
and there. However, the prosecution case is that he was
arrested on 30-12-1987. In my view, the formal arrest of
the appellant would otherwise would not make dent but the
fact that he was taken into custody the same day by some
officials of the CRPF, as said by Chander Shekhar, would
go to show that the prosecutrix and the appellant in fact
were caught red handed by certain mohalla-walas and as
such the prosecutrix had no option except to come up with
the present story. In the complaint lodged initially by
the father it was, however, alleged that the appellant had
run away from the spot when witnessed by the parents of
the prosecutrix. These two divergent statements go to the
root of the case.
19. The totally of the circumstances of the
present case belies the prosecution story as alleged.
20. the stand taken by the appellant in his
statement under Section 313 Cr.P.C. would not be a factor
to be considered against him if the prosecution case
otherwise falls because of inherent infirmities. There
can be no dispute about the proposition that the consent
can be inferred by the Court from the evidence adduced
even if not specifically pleaded. This view of mine is
fortified by the decision of this Court in Pappu v. The
State of Punjab , 1985(2) Recent Criminal Reports 126.
21. As a sequel to the aforesaid discussion, in my
considered view, the prosecution has not been able to
bring home the guilt to the appellant. Consequently, the
appeal succeeds, the impugned judgment of conviction and
sentence is hereby set-aside and the appellant is
acquitted of the charges framed against him. The
bail/surety bonds furnished by him during the pendency of
the appeal, stand discharged forth-with.