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Raju alias Raj Kumar v. State of Haryana

Raju alias Raj Kumar
v.
State of Haryana

(High Court Of Punjab And Haryana)

Criminal Appeal No. 515-SB of 1993 | 02-03-2010


Harbans Lal, J.

(1) This appeal is directed against the judgment dated 20.4.1998/order of sentence dated 21.4.1998 passed by the court of learned Additional Sessions Judge, Hisar whereby he convicted and sentenced the accused Raju alias Raj Kumar to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.10,000 under Section 376(1) of the Indian Penal Code and in default of payment of fine to further undergo rigorous imprisonment for one year. He has been further sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.10,000 under Section 366A of the Indian Penal Code and in default of payment of fine to further undergo rigorous imprisonment for one year

(2) The prosecution story as unfolded by the prosecutrix (name not disclosed in view of Premiya @ Prem Prakiash v. State of Rajasthan1 is that on 24.5.1996 at about 2.30 p.m. she had gone to fetch water from a hand pump. On the promise of marriage, the accused enticed her away and committed rape on her repeatedly. On the basis of her father Ruli Ram's statement, the case was registered under Sections 363/366 of IPC.

(3) The accused was charged under Section 366A/376 of the Indian Penal Code to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined Assistant Sub Inspector Raj Kumar PW1, Head Constable Tek Chand PW2, Dr. Saroj Bhukal PW3, Assistant Sub-Inspector Partap Singh PW4, Constable Pritam Singh PW5, the prosecutrix PW6, Roshni mother of the prosecutrix PW7, Dr. R.K. Chaudhary PW8, Constable Radhey Sham PW9, Sub-Inspector Mohan Lal PW10 Investigator, Ruli Ram PW11 father of the prosecutrix and closed its evidence.

(4) When examined under Section 313 of CrPC, the accused denied the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. In his defence, he examined Dr. Ashok Gupta, DW1.

(5) After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal. 1. 2008(4) RCR (Criminal) 539(S.C.).

(6) I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.

(7) Mr. Manwinder Singh Sidhu, amicus curiae, eloquently urged that as alleged, the prosecutrix was recovered on 29.5.1996. Dr. Saroj Bhukal when examined her medico Iegally, did not find any mark of external injury on any part of her body and gave the opinion that her vagina is of habitual type. The prosecution could not collect any prima facie proof of age of the prosecutrix. When she was subjected to ossification test, Dr. Arun Kumar Gupta. DW-1 opined that the prosecutrix is about 17 years of age and that there could be a margin of further 3 years either way. As such, the inference would be that at the time of the occurrence she was more than 18 years of age. The learned trial Court gravely erred in giving benefit of variation of 3 years to the prosecution in the absence of any other credible documentary evidence. The prosecutrix being more than 16 years at the time of alleged occurrence was a consenting party to the sexual intercourse.

(8) To tide over these submissions, the learned State counsel pressed into service that as is borne out from the prosecution evidence, the appellant had allured the prosecutrix on the promise of marriage and committed sexual intercourse with her though from the very inception, he did not have the intention to marry with her.

(9) I have given a deep and thoughtful consideration to the rival contentions.

(10) Primarily, it is to be determined herein as to what was her age at the time of commission of the offence. Needless to say, the prosecution has not produced and proved any birth entry of her. It is in the evidence of Dr. Saroj Bhukal PW-3 that "on 30.5.1996,I medico-legally examined (referring to the prosecutrix) aged about 16 years, r/o Mandi Adampur on the police request Ex. PC." Thus according to this Doctor, the age of the prosecutrix at the material time was 16 years. Dr. Arun Kumar Gupta DW1 has solemnly affirmed that "on 27.6.1996, radiologically examined (referring to the prosecutrix) vide M.L.R. No. SB/23/96 dated 30.5.1996 and also on the police request Ex. PA, I had done X-ray of both knees, both elbows and both wrist joints. By seeing ossification Centres, the age of (by referring to the prosecutrix) was more than seventeen and half years. My report in this behalf is Ex. DB and X-ray films are Ex. DB1 to Ex.DB/2." When the prosecution sensed that the evidence of this Doctor may go against the prosecution, he was given up by the learned Public Prosecutor for the State on 5.12.1997. It is thus that he has been examined in defence. It is in the cross-examination of this Doctor that "there can be variation of age of two years of either sides. The whole data collected is based on Book of Jurisprudence of Modi." There is no gain saying the fact that as per J.P. Modi's Medical Jurisprudence variation of age of 2 years can be taken on either side. This variation has to be, interpreted in favour of the accused. For my this view, I derive Support from Deelip Singh @ Dilip Kumar v. State of Bihar1 wherein the Apex Court has held that "defence is entitled to rely on the higher side of the age given by the Doctor." In the instant case, as testified by Dr. Arun Kumar Gupta (sic) on 27.6.1996 the prosecutrix was more than 171/2 years. There being no contrary evidence the view given by this Doctor on the basis of ossification test has to be accepted with regards to the proof of age of the prosecutrix. Thus, she being above 16 years of age she could be a consenting party.

(11) The next question arises whether or 2. 2004 (4) Recent Criminal Reports (Criminal) 972. not the prosecutrix was a consenting party. It is in her cross-examination that "we have common entrance gate. Our courtyard is also common. xx xx xx Earlier to the occurrence also the accused used to allure me. Before I accompanied Raju I never talked to him. He never talked to my parents. xx xx xx Raju was having a knife at that time. I did not tell the police that accused Raju had a knife with him whet he came. He asked me that I should follow otherwise he would cause knife injury to me. I did not tell this fact to the police. I did not make any noise when the accused threatened me with knife. I followed the accused due to allurement. Thereafter, the accused took me to Adampur Bus stand. Several persons were present there. I cannot tell whether the knife was with the accused at Adampur Bus stand or not. No police person was present at the Bus stand. I did not ask any person at the Bus stand that I was allured by the accused. We boarded a jeep from the Bus stand. I myself boarded the jeep. Being 1 am an illiterate lady I cannot tell the name of the village where the accused had taken me where the maternal grandfather and grand mother and maternal uncle were present there. The maternal aunt of the accused was also present there, xx xx xx Thereafter, the accused took me to the house of his Bhua (father's sister of the accused). We went there by bus and we stayed there for two nights. The Bhua, her husband and her three daughters were there where we used to sleep in a room where the accused also committed sexual intercourse with me without my consent. He used to perform sexual intercourse 4/5 times in one night. xx xx xx Thereafter, the accused took me to village Sishwal where sister of the accused named Suman, her husband and her mother-in law were present. There were two rooms and we slept in one room. Except these two rooms, I did not see any room nor I can tell what sort of construction existed there." It is deducible from this evidence that the appellant took the prosecutrix to certain places. For reaching these places they boarded vehicles. She has nowhere stated that she had disclosed about the alleged allurement to the abovementioned relatives of the appellant. On scanning the evidence of her mother Roshni PW-7 and her father Ruli Ram PW-11, it transpires that they have nowhere stated that they were told by the prosecutrix at any point of time that the appellant had been alluring her on the promise of marriage with her. It is in the cross-examination of Dr. Saroj. Bhukal PW3 that "There was no external mark of injury on any part of the body. xx xx xx No semen or blood stains on the clothes xx xx xx pubic hair well developed not matted with semen or blood stains. No marks of violence on blood stains. No. Marks of violence on genitalia. Vulva showed no redness, swelling or abrasion. Vaginal orifice admitted two fingers easily. Hymen was ruptured with irregular margins. No swelling, no redness. Vagina was habitual type. No injury to labia, majora perineum. No discharge per vagina. Pubic hairs cut." It is in the cross-examination of this Doctor that (referring to the prosecutrix) was habitual to sexual intercourse. It is correct that there was no mark of violence on the part of her body when I examined her." The prosecutrix herself has also stated in categoric terms that "the accused raped me for five times there though I resisted. I did not raise any alarm. The accused put off my shirt and salwarwhen he committed rape on me. I was not wearing any underwear." This evidence leaves no scope for doubt that this is a case of, consensual sexual intercourse. The above extracted medical evidence speaks volumes of the fact that she was habitual to sexual intercourse. So much so, she had cut her pubic hairs. A girl below the age of 16 years can be hardly expected to be conscious about these things. There being no evidence in proof of the fact that the appellant had made her to run away from her house in the lure of marriage, it is very difficult to accept her such version. In Deelip Singh @ Dilip Kumar (supra) the Supreme Court has held that the burden is on the prosecution to prove that there was absence of consent. Of course, the position is different if the case is covered by Section 14-A of the Evidence Act. Consent or absence of it could be gathered from the attendant circumstances. The previous or contemporaneous acts or the subsequent conduct can be legitimate guides. If the rape was committed by the accused much against her will, she would not have volunteered to submit to his wish subsequent to the alleged first incident of rape. Mere act of submission. does not involve consent. Submission of the body under the fear or terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 I.P.C. requires voluntary participation not only after the exercise of intelligence based on knowledge of the significance and moral quality of the act, but having fully exercised the choice between resistance and assent. A promise to marry without anything more will not give rise to misconception of fact' within the meaning of Section 90 of the Indian Penal Code. To bring an offence within the ambit of Section 375 clause secondly, it has to be established that accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax. The Court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the Court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given."

(12) Adverting to the case in hand, on viewing the afore extracted evidence of the prosecutrix in the background of the above observations of the Supreme Court, there can be no escape from the finding that the prosecutrix had not given the content under fear of injury or misconception of fact. She had submitted her body to the appellant frequently without any fear or terror. She has not stated that when the appellant removed her garments from her body she had offered resistance. The entire gamut of her evidence tends to show that all through she had been ready to submit her body for sexual intercourse to the appellant. She went on to say that when the appellant committed rape on her 4/5 times in the house of his relatives, she had resisted, but she did not raise any alarm. If she was not a consenting party, in all human probabilities, she would have raised alarm. In the attendant circumstances, it can be reasonably and legitimately gathered that she had consented to sexual acts without any demur. In the absence of the evidence to the effect that the appellant had promised to marry with the prosecutrix at any stage it cannot be said with absolute certitude that due to misconception of fact she had given the consent to the appellant for sexual intercourse with her. The onus heavily lay upon the prosecution to prove that there was absence of consent as ruled in Deelip Singh @ Dilip Kumar (supra). In the present one, the prosecution has utterly failed to prove this fact. The appellant would have been guilty of offence of rape, if it had been demonstrated by the prosecution that he had promised to enter into marriage with the prosecutrix and from the very beginning he had intention to betray her. The record is quite barren to show that the appellant had trickod the prosecutrix into sexual intercourse on the false promise of marriage with. her. She had stated in no uncertain terms that the appellant had asked her to follow him. otherwise he would cause injury with knife to her but she did not make any noise. If she had been reluctant to go with the appellant in all eventualities, she would have raised hue and cry She being above 16 years of age could not be so gullible and credulous to follow the appellant without raising any objection. Furthermore, she has testified that she did not tell the police that the appellant had asked her to follow her otherwise he would cause injury to her with knife. Admittedly, the knife has also not been recovered from appellant, To me, it appears that this story has been coined later on.

(13) It is also in her cross-examination that

"the accused committed sexual intercourse with me at the house of his maternal grandfather without my consent. I told this fact to the police." When she was confronted with her statement Ex. DA it was not found so recorded therein. She has further deposed that "I did not tell them this fact of the accused having committed rape upon me. I resisted but in vain." On being confronted with the said statement, it was not found so recorded therein. It further surfaces in her cross-examination that referring, to the appellant used to perform sexual intercourse 4/5 times in one night. I told this fact to the police." When she was confronted with her statement Ex. DA it was not found so recorded therein. It is also in her cross-examination that "thereafter the accused took me to another village, where 4/5 persons were there, but I did not know them. However, they did not rape me. The accused remained there for one night with me where the accused also raped me. I told this fact to the police." When she was confronted with Ex. DA it was found missing. Palpably, she has improved upon her statement in material particulars. As emerges out of the prosecution evidence, the appellant and the prosecutrix are putting up in neighbourhood. The prosecutrix and her mother Roshni (sic) are in unison on the point that they have common courtyard with the appellant's family. So, there could be every possibility of intimacy between the duo. The prosecutrix would have shown her willingness to go with the appellant. To conclude finally, on the given evidence, the charged offence is not established. To put it differently, the prosecution has not been able to bring home guilt against the appellant beyond a shadow of reasonable doubt.

(14) As a sequel of the above discussion, this appeal succeeds and is accepted, setting aside the impugned judgment/order of sentence. The appellant is hereby acquitted of the charged offence by giving benefit of reasonable doubt. Since the appeal has been decided., all pending Criminal Miscellaneous, if any, also stand disposed of. Appeal allowed.

Advocates List

For the Appellant Manwinder Singh Sidhu, Advocate, amicus curiae. For the Respondent Raja Sharma, Assistant Advocate General, Haryana.

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

HON'BLE MR. JUSTICE HARBANS LAL

Eq Citation

LQ 2010 HC 5169