Criminal Appeal No.41-SB of 1998 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.41-SB of 1998
Date of decision : 2.12.2008
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Vinod Kumar .....Appellant
Versus
The State of Haryana ...Respondent
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CORAM : HON'BLE MR. JUSTICE S. D. ANAND
Present: Ms. Divya Sharma, Advocate as Amicus Curiae
for the appellant
Mr. S.S.Mor, Senior Deputy Advocate General, Haryana
S. D. ANAND, J.
The appellant was convicted by the learned Trial Judge for the
commission of offences under Section 363, 366, 376 IPC on the
allegations which may be indicated as under:-
The prosecutrix a daughter of PW-11 Jindu Ram was in the
employment of PW-6 Sunder lal as a maid servant. It was the practice of
the employer that he would daily drop her at her house after the house
hold chores were over. On the day the prosecutrix would stay over at the
house of the employer, the latter would furnish information to her
parents.
On 13.1.1996, PW-6 Sunder Lal was on way (along with the
prosecutrix) to the latter’s house when she informed him near a Chaupal
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(which fell enroute) that she would thereafter proceed on her own to her
house. PW-6 Sunder Lal returned from there. It was there that the
appellant met the prosecutrix and enticed her to a deserted room in the
Rice Sheller on the promise of providing her groundnuts and sweets which
were being distributed in the grain market. On reaching the deserted
room aforementioned, the appellant spread paddy straw on the ground and
raped her. Her efforts to raise a raula were thwarted by the appellant who
gagged her mouth. After the rape had been committed, she came out of
the room and passed urine. However, she came back to the room and
went to sleep. Appellant also slept by her side. On the morning of
14.1.1996, the appellant again ravished her. As the clothes of the
prosecutrix got smeared with blood, the appellant brought his sister’s
clothes which she wore and went home after having been dropped near
the Vaterinary hospital by the appellant. At the time she reached home,
her parents were away to earn their livelihood. On their return home in the
evening, she narrated the entire incident to them. The prosecutrix and her
father were on way to the police station when the police met them enroute.
The offence was notified to the police vide Ex. PM which the prosecutrix
made to the police.
PW-1 Dr. G.S.Arora had radiologically examined the
prosecutrix on 19.3.1996 and opined, vide report Ex. PA. that the age of
the prosecutrix was about 14-14-1/2 years.
PW-2 Dr. J.K.Gulati had medico-legally examined the
appellant on 16.1.1996 and opined that there was nothing to suggest that
he was not capable of performing sexual intercouse.
PW-5 Dr. Amarjit Wadhwa had medico-legally examined the
prosecutrix on 14.1.1996 and observed as under:-
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“Local Examination:- Valva, pubic mount, perineum, butock
and legs were smeared with blood, pubic hairs were metted.
There were afresh tear in the hymen at 6’o clock position
which was bleeding on touch.
P.V.Examination :- She experienced lot of pain and there was
a tear in the vaginal wall on right side. Clots of blood was
removed from vagina. P/S not done for vagina was not lax to
admits speculum uterus nulliparous, small in size and cervix is
very smell to touch, two slides prepared from posterior formix
and case was referred to radiologist for determination of age.”
PW-1 Jai Gopal testified that he had spotted the appellant
and the prosecutrix moving together on 13.1.1996 at about 9.15 P.M.
when the witness was proceeding towards his house after the closing
hours of the shop. He testified that the appellant and the prosecutrix were
proceeding towards Mehmudpura chowk.
PW-4 Ramesh Kumar also made a similar statement, though
he claimed to have seen the appellant and prosecutrix on 14.1.1996 at
about 9.00 A.M. At that time, both of them were coming from the sheller
side.
PW-6 Sunder Lal is the employer of the prosecutrix.
PW-7 C. Chhatar Singh, PW-8 HC Roshan Lal and PW-9 C.
Rajbir Singh tendered their formal affidavits Ex. PK, Ex. PL and Ex. PM.
respectively into evidence.
PW-10 is the prosecutrix.
PW-11 Jindu Ram is the father of the prosecutrix.
PW-12 Constable Prem Kumar had prepared scaled site plan
Ex. PS of the spot on 20.2.1996 on the pointing of the prosecutrix.
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PW-13 Smt. Bimlesh Tanwar, then posted as Judicial
Magistrate Ist Class, had recorded statement (Ex. PT) of the prosecutrix
under Section 164 Cr.P.C.
PW-14 SI Dilbag Singh had investigated this case.
Ex. PH is the Chemical examiner report.
The appellant raised a pure and simple plea of innocence.
DW-1 Dhamma Ram, DW-2 Inder Raj, DW-3 Bharat Singh
and DW-4 Smt. Pasho ( mother of the prosecutrix) were examined in
defence evidence.
The prosecutrix was examined once again on 28.8.1987 on a
plea preferred on her behalf. In the course of the cross-examination
directed at her on behalf of the appellant, she testified that she was aged
20 years, that she slept along with her mother on 13.1.1996 and that she
did not accompany the appellant to the sheller. She conceded having
given affidavit Ex. DA to the appellant. The contents of the Ex. DA
contain an averment by the deponent/prosecutrix that her age is 20 years,
that she gave her earlier statement under the pressure of her father and
she wants to make her truthful statement about the impugned occurrence.
It was thereafter that she was cross-examined afresh on behalf of the
appellant and she proved her age on oath.
Learned counsel for the appellant argues that the entire
prosecution presentation suffers from the vice of improbabilities and
contradictions which go to the root of the prosecution plea and those
variation and the discrepancies in the inter-se statements of the
prosecution witnesses are adequate enough to invalidate the prosecution
plea.
There is force in the plea on behalf of the appellant.
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The reasons therefor are as under:-
Insofar as the age of the prosecutrix is concerned, the
prosecution presentation is to the effect that she was under the age of 16
years. It is in the statement of PW-11 Jindu Ram, father of the prosecutrix,
that the prosecutrix had never been to a school,. On the day he was
examined at the trial, he had not brought along the ration card. No birth
record was produced at the trial. Jindu Ram gave his age as 70 years. He
was examined on 8.11.1996. He claimed to have been three year old at
the time of partition of the country. His marriage had taken place about 30-
35 years ago. His first wife died after about seven years of marriage. He
performed second marriage about 6/7 years of the death of his first wife.
The prosecutrix was born after one year of his second marriage. It is
apparent from a perusal of the testimony of this witness that he has no
sense of age etc. If he was three years old at the time of partition he could
not have been aged 70 years on 8.11.1996 i.e. date on which he was
examined at the trial. His testimony cannot, thus, be of any avail in
determining the controversy about the age of the prosecutrix. The
ossification report gave her age as 14-14-1/2 years. The Medical Officer,
who conducted ossification test ( PW-1 Dr. G.S.Arora), conceded in the
cross-examination that age so opined could vary by two years on either
side.
It would be pertinent to point out that the prosecution did cite
the Record Keeper of the office of Registrar, Birth and Deaths as
prosecution witness but he was given up as unnecessary on 8.11.1996.
Obviously, a witness would be cited only after the Investigating Agency had
been able to get hold of evidence favouring the prosecution
presentation. The Record Keeper of the office aforementioned would have
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produced birth entry pertaining to the prosecutrix which would have
enabled the Court to determine her age. There is nothing on record to
indicate why the prosecution, at all, opted to give up that witness as
unnecessary. The assumption, in the circumstances of the case, is that
the testimony of the witness aforementioned, if examined, would not
have been favourable to the prosecution plea.
It would be relevant to notice here that the prosecutrix had
sworn affidavit Ex. DA to the effect that her age is 20 years. Even in the
course of further cross-examination, she gave her age as 20 years. Apart
therefrom, her real mother appeared as DW-4 and gave her age as 20
years. She also testified that the prosecutrix slept in the house with her on
13.1.1996 and that she did not go out of the house on that night and that
the police had falsely registered a case against the appellant. Though she
conceded, as correct, a suggestion that she had accompanied the
prosecutrix and her husband to the police station, she categorically averred
that the registration of a false case against the appellant came to her
notice later on,
It is apparent from the above discussion that the prosecution
has not been able to prove that the prosecutrix was under the age of 16
years on the date of the impugned episode.
The prosecutrix would want the Court to believe that she used
to, at times, take meal at the house of her employer and that she also used
to sleep over at the house of her employer many a time. It is also in her
statement that “my parents were not used to be informed about my
staying at the house of my employer” Her statement to the above effect is
contrary to that of her employer who categorically testified that “whenever
prosecutrix used to stay at our house we used to inform her parents.”
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Though PW-11 Jindu Ram agreed with PW-6 Sunder lal about the practice
aforementioned, he testified that a minor daughter aged about 4-5 years of
Arjun, a neighbourer of the employer, informed them that the prosecutrix
would stay over for the night at the house of the employer. He was only
trying to explain the delay in the notification of the offence to the police. It
had otherwise appeared in his statement that on the morning on
14.1.1996, he and his wife went over to attend to their routine avocation in
the morning. After the prosecutrix did not return to her house on the night
intervening 13/14.1.1996 and her parents had not intimation about her
having slept over at the house of employer, it could not be expected that
her parents would got for their daily avocation without bothering to make
search efforts to locate her.
On point of it all having been a consensual affair, it would be
useful to refer to the statement of PW-6 Sunder Lal. It is in his testimony
that, as per practice, he would drop the prosecutrix at her house itself. He
told the Court at the trial that the prosecutrix on the relevant date,
discharged him of the responsibility on reaching near a Chaupal and told
him that she would henceforth go to her house on her own. It is there only
that the appellant is alleged to have met her. Her insistence upon
‘discharge’ the employer from the Chaupal was significant particularly
because the previous practice was to the effect that the employer would
leave her at her house only. There was nothing unnatural about it. If an
employer is availing services of a female child, it would be expected to him
to make arrangement for her safe return to her house after the daily house
hold chores are over and that is precisely what PW-6 Sunder Lal was
claimed to have been doing throughout except on the relevant date when
the prosecutrix announced to him that he might get back from the Chaupal
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and she would there after proceed to her house on her own. The
prosecutrix further told the Court that since her clothes had become torn,
the appellant brought his sister’s clothes with her. It follows therefrom that
the appellant left her alone at the place of occurrence. There is nothing on
record to indicate that the appellant bolted the door of the room from
outside. In that view of things, it is apparent that if she was so inclined,
she could have escaped from there and come over to her house. This
aspect is to be appreciated in the light of the testimony of PW-5 Dr. Amarjit
Wadhwa that there was no mark of injury on the person of the prosecutrix.
All these tell tale circumstances indicate that the prosecutrix was a
consenting party to whatever had happened in the impugned episode.
In the light of the foregoing discussion, it is apparent that
appeal deserves to succeed. The appeal shall stand allowed. The
impugned finding of conviction shall stand set aside. The appellant shall
stand acquitted of the charge.
December 02, 2008 (S. D. ANAND) Pka JUDGE