{"id":21602,"date":"2003-01-08T00:00:00","date_gmt":"2003-01-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/naurata-ram-so-nand-lal-vs-u-t-chandigarh-on-8-january-2003"},"modified":"2016-08-26T02:18:37","modified_gmt":"2016-08-25T20:48:37","slug":"naurata-ram-so-nand-lal-vs-u-t-chandigarh-on-8-january-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/naurata-ram-so-nand-lal-vs-u-t-chandigarh-on-8-january-2003","title":{"rendered":"Naurata Ram S\/O Nand Lal vs U.T. Chandigarh on 8 January, 2003"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Naurata Ram S\/O Nand Lal vs U.T. Chandigarh on 8 January, 2003<\/div>\n
Author: V Singh<\/div>\n
Bench: V Singh<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
  Virender Singh, J.   <\/p>\n
 1. Narate Ram son of Nand Lal stands convicted
\nby the learned Additional Sessions Judge, Chandigarh
\nvide judgment dated July 8, 1989 and has been sentenced
\nas under:-\n<\/p>\n
  U\/S 363 IPC<\/p>\n
  To
\n  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
\n  months .`<\/p>\n
   U\/S 366 IPC<\/p>\n
   To
\n  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
\n  months.\n<\/p>\n
 U\/S 376…TPC<\/p>\n
  To
\n  undergo RI tor seven years and to pay a tine of Rs. 1000\/-. in default of payment of fine to further undergo RI
\n  for six months.\n<\/p>\n
 2. However, all the substantive sentences were
\nordered to run concurrently. Aggrieved by the impugned
\njudgment of sentence and conviction, the appellant has
\npreferred the present appeal.\n<\/p>\n
 3. Chander Shekhar (PW-7), father of Urmila, the
\nprosecutrix (PW-8) is the complainant\/First Information
\nReport lodger.\n<\/p>\n
 4. Briefly, the case of the prosecution is that
\nChander Shekhar, a Rickshaw Puller was a tenant in the
\nhouse of Nand Lal, father of the appellant and was staying
\nin that house with his children. Urmila, the prosecutrix
\nwas the eldest child of Chander Shekhar. She is stated to
\nbe of 13 years.\n<\/p>\n
 5. On 27-12-1987, at about 3-45 AM, Urmila
\nallegedly went out of the house to ease herself. She did
\nnot return for about 1\/2 an hour. Chander Shekhar and his
\nwife\/Saroj went out to search for her. During the search,
\nwhen they reached near the fodder room of their landlord,
\nthey heard the depressed cries of Urmila. Consequently,
\nthey went inside the fodder room and saw Urmila lying
\nnaked on the ground and the appellant lying on her with
\nhis hand on her mouth. After seeing Chander Shekhar and
\nSaroj, the appellant ran away. Urmila then told her
\nparents that she had come out of the room to urinate and
\nas she was going back, the appellant came from behind,
\ngagged her mouth and took her in the fodder room,
\nthreatening that in case she raised a noise, she would be
\nkilled and that thereafter the appellant allegedly removed
\nher clothes, then his own clothes and committed rape upon
\nher against her wishes and when she tried to make a noise,
\nhe allegedly placed his hand on her mouth. Thereafter
\nChander Shekhar alongwith his wife and the prosecutrix
\nwent to police post Sector 36, Chandigarh and he made his
\nstatement Exhibit PE, on the basis of which the formal
\nFirst Information Report (Exhibit PE\/2) was recorded. The
\nprosecutrix was got medico legally examined. A swab was
\ntaken from her vagina. Her underwear was also taken into
\npossession. These were sealed and all the other legal
\nformalities were completed.\n<\/p>\n
 6. The appellant was charged for the offence
\npunishable under Sections 363, 366 and 376 of the Indian
\nPenal Code.\n<\/p>\n
 7. On a consideration of the entire evidence, he
\nwas convicted and sentenced by the learned trial Court, as
\nindicated above. Aggrieved by the impugned judgment of
\nconviction and sentence, he has preferred the present
\nappeal.\n<\/p>\n
 8. I have heard Mr. T.S. Sangha, learned counsel for
\nthe appellant, Mr. R.K. Handa, Standing Counsel for the Union
\nTerritory, Chandigarh. With their assistance, I have gone
\nthrough the entire record as also the other relevant
\ndocuments. The case of the prosecution mainly hinges on
\nthe evidence of Urmila, the prosecutrix, Chander Shekhar
\nand two doctors namely Dr. (Mrs.) Harbir Bajwa and Dr.
\nS.P. Bhardwaj and the same would be the subject matter of
\ndiscussion in this appeal.\n<\/p>\n
 9. Mr. Sangha at the very out-set has vehemently
\nargued that at the time of commission of the alleged
\noffence, the age of Urmila\/prosecutrix was between 17 to
\n19 years and that the finding of the learned trial Court
\nthat she was less than 16 years is uncalled for.
\nAccording to Mr. Sangha, no documentary evidence viz.
\nbirth\/school certificate has been produced by the
\nprosecution to prove her age and when Dr. S.P. Bhardwaj
\n(PW-2) had radiologically examined the prosecutrix, he
\nfound her to be 17 years with a margin of 2-1\/2 years on
\neither side. Developing his arguments on this count, Mr.
\nSangha has submitted that the trial Court has taken the
\nmargin of 2-1\/2 years on a lesser side in favour of the
\nprosecution, whereas it should have been taken on a higher
\nside, in favour of the appellant. In this context, Mr.
\nSangha has also referred to the statement of Dr. (Mrs.)
\nHarbir Bajwa (PW-1), who had medico legally examined the
\nprosecutrix and found that her breasts and the public hair
\nwere well developed. Mr. Sangha thus contends that in all
\nprobabilities, the age of the prosecutrix was in between
\n17 to 19 years.\n<\/p>\n
 10. The next contention of Mr. Sangha is that once
\nthe age of Urmila is taken to be 17 years and above, then
\nfrom the evidence led by the prosecution, it can be safely
\nsaid that she was a consenting party to whole of the
\naffair. For that Mr. Sangha has taken me through the
\nstatement of the prosecutrix (PW-8), where she has deposed
\nthat when she went out of the house in order to urinate,
\nthe appellant came from behind, took her to the fodder
\nroom and made her fall on the ground and removed his
\nclothes as also her clothes. She has further admitted
\nthat she remained in the fedder room with the appellant
\nfor about 1\/2 an hour and when her parents arrived there,
\nshe was lying nude and the appellant had already committed
\nrape upon her. Mr. Sangha submits that the evidence of the
\nprosecutrix is an indicative of the fact that she had
\noffered her consent to the appellant and that when she was
\ncaught red handed, she was left with no option except to
\ncoin up the present story of forcible inter-course. Mr.
\nSangha has also taken me through the evidence of Chander
\nShekhar (PW-7), who states that he and his wife were
\nsleeping when her daughter Sharmila, younger to Urmila,
\ngot up for attending the call of nature. He asked
\nSharmila to awaken Urmila and then Sharmila told him that
\nUrmila was not there. As per the statement of Chander
\nShekhar, his daughter was found in the fodder room
\nalongwith the appellant and both were naked at that time.
\nMr. Sangha then contends that it is not possible to believe
\nthat the appellant knew that Urmila would come out of her
\nhouse at 3-45 A.M. on 27-12-1987 (during winter season) and
\nwould be taken to the fodder room for committing rape.
\nRather, Mr. Sangha submits, from the evidence adduced, it
\ncan be safely inferred that Urmila, who was of the age of
\n17 years and above, had consented to join the company of
\nthe appellant.\n<\/p>\n
 11. On the other hand, Mr. Handa appearing for the
\nrespondent while refuting the arguments advanced by Mr.
\nSangha has strenuously argued that the case of the
\nprosecution is proved to the hilt. According to him, age
\nof the prosecutrix was below 16 years at the time of
\nalleged occurrence. In the same breath, Mr. Handa has
\nsubmitted that even if for the sake of arguments her age
\nis taken to be 16 years and above, the evidence adduced by
\nthe prosecution shows that she was not at all a consenting
\nparty and was forcibly raped by the appellant. Mr. Handa
\nhas referred to the stand taken by the appellant in his
\nstatement recorded under Section 313 of the Code of
\nCriminal Procedure, in which he has stated that it was a
\nfalse case foisted upon him on account of the fact that
\nthe payment of rent was not made by Chander Shekhar,
\nfather of the prosecutrix for the last one year despite
\npersistent demands and contends that the complainant side
\nwould not bring forward Urmila on account of rent dispute
\nin the shape of the present allegations.\n<\/p>\n
 12. After scanning the evidence on the file and
\nhearing both the sides, I find force in the submissions
\nmade by Mr. Sangha.\n<\/p>\n
 13. Before discussing the age of the prosecutrix,
\nit may be mentioned that it is an admitted fact that no
\ndocumentary evidence, viz. birth\/school certificate in
\nsupport of the age of the prosecutrix has been produced by
\nthe prosecution. At the time of her medico legal
\nexamination the prosecutrix had given her age to Dr. (Mrs.)
\nHarbir Bajwa as 13 years and then Dr. Bajwa had referred
\nher to the Radiologist for the purpose of determination of
\nher age. She was consequently examined by Dr. S.P. Bhardwaj
\n(PW-2), who found her to be 17 years. Exhibit PB is the
\ncomplete table given by Dr. Bhardwaj according to which
\nexcept four bones, her other bones were shown to have been
\nfused. One of the bones is iliac crest, which is shown to
\nbe fused and the normal age of fusion of that bone is 17
\nto 19 years. Since the other two main bones viz. fibula
\nover the proximal and distal end were also found to be
\nfused and Dr. Bhardwaj thus came to the conclusion that the
\nage of the prosecutrix was 17 years. Keeping into
\nconsideration the fusion of all the major bones and the
\nnormal age of fusion, it can be safely said that the
\nprosecutrix was of the age of 17 years and above. In my
\nview, the margin of 2-1\/2 years on either side is also to
\nbe extended to the higher side. In this context, my view
\nis strengthened by the decision of the Apex Court in   Jage
\nRam v. State of Haryana<\/a>  , 1987(1) RCR 346, wherein the
\nage of the prosecutrix was 14 years with a variation of 3
\nyears on the either side and the benefit was extended
\ntowards the accused. I thus hold that the age of
\nUrmila\/prosecutrix at the time of the alleged occurrence
\nwas 17 years and above.\n<\/p>\n
 14. I have perused the statements of Urmila, the
\nprosecutrix and Chander Shekhar minutely and from the
\nevidence adduced, in my view, the possibility of the
\nconsent on the part of the prosecutrix cannot be ruled
\nout. It will not appeal to reasoning that the appellant,
\nwho had allegedly taken Urmila to the fodder room, was
\naware of the fact that she would come out of her house at
\n3-45 AM in order to urinate. At the same time a minute
\nscanning of the statement of the prosecutrix shows that
\nshe had joined the company of the appellant of her own
\nfree will. The medico legal examination of the
\nprosecutrix also rules out the possibility of any force
\nbeing applied upon her. The relevant part from the
\nstatement of Dr.(Mrs.) Harbir Bajwa is reproduced as
\nunder:-\n<\/p>\n
 “Breast well developed, Axillary hair
\ngrowth scanty, course hair. Public hair well
\ndeveloped.\n<\/p>\n
 Chest abdomen- no marks of violence.”\n<\/p>\n
 15. Local Examination- no marks of violence.\n<\/p>\n
 16. Hymen was torn at 5(SIC) clock and 8(SIC) clock
\nposition. Old healed tears. Entroitus
\nadmits two fingers–”\n<\/p>\n
 17. This has also come in the state of the
\nprosecutrix that when she was taken to the fodder room,
\nthe appellant had removed her clothes and his own clothes.
\nShe has also admitted that before her parents arrived at
\nthe spot, the appellant had already committed the rape
\nupon her and that she had remained with him for about 1\/2
\nan hour. In my view even one shriek raised by the prosecutrix would
\nhave frustrated the move of the appellant because
\nadmittedly she was staying in the house of the appellant
\nwith her parents and the members of other families were
\nalso staying there. The plea of the prosecutrix in this
\nsituation that she could not raise hue and cry as her
\nmouth was gagged by the appellant, is not at all
\nbelievable.\n<\/p>\n
 18. The statement of Chander Shekhar (PW-7) is also
\nto the effect that when he reached the fodder room, he saw
\nthe appellant and his daughter lying naked. It has also
\ncome in his statement that the appellant was nabbed then
\nand there. However, the prosecution case is that he was
\narrested on 30-12-1987. In my view, the formal arrest of
\nthe appellant would otherwise would not make dent but the
\nfact that he was taken into custody the same day by some
\nofficials of the CRPF, as said by Chander Shekhar, would
\ngo to show that the prosecutrix and the appellant in fact
\nwere caught red handed by certain mohalla-walas and as
\nsuch the prosecutrix had no option except to come up with
\nthe present story. In the complaint lodged initially by
\nthe father it was, however, alleged that the appellant had
\nrun away from the spot when witnessed by the parents of
\nthe prosecutrix. These two divergent statements go to the
\nroot of the case.\n<\/p>\n
 19. The totally of the circumstances of the
\npresent case belies the prosecution story as alleged.\n<\/p>\n
 20. the stand taken by the appellant in his
\nstatement under Section 313 Cr.P.C. would not be a factor
\nto be considered against him if the prosecution case
\notherwise falls because of inherent infirmities. There
\ncan be no dispute about the proposition that the consent
\ncan be inferred by the Court from the evidence adduced
\neven if not specifically pleaded. This view of mine is
\nfortified by the decision of this Court in   Pappu v. The
\nState of Punjab<\/a>  , 1985(2) Recent Criminal Reports 126.\n<\/p>\n
 21. As a sequel to the aforesaid discussion, in my
\nconsidered view, the prosecution has not been able to
\nbring home the guilt to the appellant. Consequently, the
\nappeal succeeds, the impugned judgment of conviction and
\nsentence is hereby set-aside and the appellant is
\nacquitted of the charges framed against him. The
\nbail\/surety bonds furnished by him during the pendency of
\nthe appeal, stand discharged forth-with.<\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Naurata Ram S\/O Nand Lal vs U.T. Chandigarh on 8 January, 2003 Author: V Singh Bench: V Singh 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-21602","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nNaurata Ram S\/O Nand Lal vs U.T. 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