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Cites 5 docs
Section 164 in The Code Of Criminal Procedure, 1973
Section 366 in The Indian Penal Code
Section 363 in The Indian Penal Code
Section 376 in The Indian Penal Code
Section 313 in The Code Of Criminal Procedure, 1973

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Punjab-Haryana High Court
State Of Punjab vs Rama Ram Alias Ramu Son Of Ram Kewal on 4 February, 2009
Criminal Appeal No. 362-DBA of 2001                         1


 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                CHANDIGARH


                     Criminal Appeal No. 362-DBA of 2001

                      Dated of Decision: 04.02.2009



State of Punjab


                                                      ... Appellant

                             Versus



Rama Ram alias Ramu son of Ram Kewal, aged 20 years,
resident of Village Hulrala Kalan, P.S. Nagar Untari, Distt.
Ranjhwan (Bihar).

                                                 ...Respondent


CORAM: HON'BLE MR. JUSTICE K.S. GAREWAL

          HON'BLE MR. JUSTICE SHAM SUNDER



Present: Ms. Gurveen Singh, Additional Advocate General,
         Punjab, for the appellant.

          Mr. Jitender Dhanda, Advocate,
          for the respondent.

                             ****

SHAM SUNDER, J.

This appeal is directed against the judgment, dated 04.10.2000, rendered by the Court of Additional Sessions Judge, Criminal Appeal No. 362-DBA of 2001 2 Patiala, vide which, it acquitted the accused (now respondent).

2. The facts, in brief are that, on 05.02.1999, the prosecutrix, aged about 15/16 years, daughter of Dilan Kumari, complainant, left home, at about 9.00 AM, for her school, but did not come back. The complainant tried her level best to locate her. When she could not find any clue, with regard to the whereabouts of the prosecutrix, she made a statement PB, on 14.02.1999, expressing her suspicion against the accused. She also stated that Rama Ram alias Ramu, accused, used to tease her daughter, on her way to school and had refused to desist from his nefarious designs, despite warnings, given to him. She further stated that the room of the accused at Derabassi, was also found locked, since the day her daughter was found missing. On the basis of the statement exhibit PB, made by Dilan Kumari, formal First Information Report, exhibit PB/2, was registered, under Sections 363 and 366 of the Indian Penal Code.

3. During the course of investigation, on 15.02.1999, the accused and the prosecutrix were found, at Railway Station, Ambala, where they were apprehended. The statement of the prosecutrix, exhibit PA, was recorded. She stated that Rama Ram alias Ramu, accused, who was residing near her house used to tease her and her mother had also warned him. She further stated that, on 03.02.1999, when her mother was away, Rama Ram alias Ramu, accused, came to her room and forcibly caught hold of her and took her to his room, under threat of life and subjected her to rape. It was further stated by her that on Criminal Appeal No. 362-DBA of 2001 3 05.02.1999, when she was going to school, she was intercepted, on the way, by the accused and was asked to accompany him, to Chandigarh, for the purpose of marriage. He took her to Chandigarh and then to Delhi, Uttar Pradesh and Bihar, where, she was subjected to rape, by him, and ultimately, they were apprehended at Railway Station, Ambala. On the basis of the statement of the prosecutrix, offence under Section 376 of the Indian Penal Code, was added.

4. On 15.02.1999, the medico-legal examination of the prosecutrix was conducted. Dr. Anita Mohindru, Medical Officer, Civil Hospital, Dera Bassi, found that the hymen of the prosecutrix was ruptured and the vagina admitted one finger easily. She, however, did not find any external mark of injury on her person. The accused was also got medico-legally examined and was found fit to conduct sexual intercourse. Thereafter, the prosecutrix was produced before Ms. Navjot Sohal, Illaqa Magistrate, Rajpura, for recording her statement, under Section 164 of the Code of Criminal Procedure. Her statement, exhibit PA/2, was recorded, by the Illaqa Magistrate, wherein, she stated that she was having love affair with the accused and she had a soft corner for him. She further stated that she accompanied the accused to Chandigarh and then to Renukot (Uttar Pradesh), from where, they were apprehended. She, in clear-cut terms, in her statement under Section 164 of the Code of Criminal Procedure, stated that, at no stage, she was subjected to rape by the accused. After the completion of investigation, the accused was challaned.

Criminal Appeal No. 362-DBA of 2001 4

5. On his appearance, in the Court of the Committing Magistrate, the accused was supplied the copies of documents, relied upon by the prosecution. After the case was received, by commitment, charge under Sections 363, 366 and 376 of the Indian Penal Code, was framed against the accused, to which he pleaded not guilty, and claimed judicial trial.

6. The prosecution, in support of its case, examined Ms. Navjot Sohal, Judicial Magistrate 1st Class, Rajpura (PW1), who recorded the statement, under Section 164 of the Code of Criminal Procedure, of the prosecutrix, Dr. Anita Mohindru (PW2), who medico-legally examined the prosecutrix, Dr. R.K. Sood (PW3), who medico-legally examined the accused, Hans Raj, C-II (PW3 wrongly numbered), Lady Constable Sarbjit Kaur (PW4), Dilan Kumari, complainant (PW5), Krishna Sharma, Principal, S.S. Jain Girls Senior Secondary School, Dera Bassi (PW6), Balkar Singh (PW7), Rakesh Kumar, Head Constable (PW8), Kehar Singh, C-II (PW9), Jai Krishan, Assistant Sub Inspector (PW10) and the prosecutrix (PW11). Thereafter, the Additional Public Prosecutor, for the State, closed the prosecution evidence.

7. The statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He took up a specific defence, to the effect, that the prosecutrix was in love with him, and wanted to contract Criminal Appeal No. 362-DBA of 2001 5 marriage, which was not liked, by her mother. It was further stated by him that a false case was got registered against him, at the instance of the mother of the prosecutrix, on the basis of her forged date of birth certificate, so that they could not perform marriage. It was further stated by him that before the Judicial Magistrate 1st Class, Rajpura, the prosecutrix, in her statement, under Section 164 of the Code of Criminal Procedure, in clear-cut terms, stated that she accompanied him voluntarily. However, no evidence, in defence was led by the accused.

8. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, acquitted the accused (now respondent).

9. Feeling aggrieved, the instant appeal, was filed by the State of Punjab.

10. We have heard the Counsel for the parties, and have gone through the record of the case, carefully.

11. The Counsel for the appellant, submitted that the trial Court, was wrong, in coming to the conclusion, that the date of birth of the prosecutrix was not 18.11.1983, on the basis of the certificate, issued by the Principal of S.S. Jain Girls Senior Secondary School, Dera Bassi. She further submitted that the trial Court, was wrong, in coming to the conclusion that the age of the prosecutrix, at the relevant time, was 19/20 years. She further submitted that the trial Court, was also wrong, in coming to the conclusion that the prosecutrix was a Criminal Appeal No. 362-DBA of 2001 6 consenting party, and, as such, no offence was committed by the accused. She further submitted that the judgement of the trial Court, being perverse, is liable to be set-aside.

12. On the other hand, the Counsel for the respondent submitted that the trial Court, was right, in coming to the conclusion that, at the relevant time, the age of the prosecutrix was about 19/20 years. He further submitted that, no reliance, on certificate PC, issued by the Principal of S.S. Jain Girls Senior Secondary School, Dera Bassi, could be placed, as the original admission register, on the basis of which, such certificate was prepared, was not produced by her. He further submitted that the trial Court, was right, in coming to the conclusion, that the prosecutrix remained with the accused, for a number of days, and did not raise any alarm, and, as such, she was a consenting party. He further submitted that the judgement of the trial Court, being based, on the correct appreciation of evidence, warrants no interference.

13. The first question, that arises for consideration, is, as to what was the age of the prosecutrix, at the relevant time. The statement of Dilan Kumari, mother of the prosecutrix, who appeared as PW5, is very significant to determine this question. During the course of cross- examination, she stated her age, as 42 years as on 04.02.2000 (date of her deposition). It was further stated by her that she was married while she was running in 17th year. She further stated that her elder son was born eleven months after her marriage. She further stated that her Criminal Appeal No. 362-DBA of 2001 7 daughter, the prosecutrix, was born three years, after the birth of her son aforesaid. It means that the marriage of Dilan Kumari, mother of the prosecutrix was solemnized about 25 years before 04.02.2000. Since the elder son was born to her eleven months, after her marriage, it means that he was born 24 years earlier to that date i.e. 04.02.2000. Since, as per her own statement, the prosecutrix was born three years after the birth of her elder son, it means that she was born about 20/21 years, earlier to 04.02.2000. The alleged occurrence took place, on 05.02.1999. If the statement of Dilan Kumari, mother of the prosecutrix is admitted to be correct, on this aspect of the matter, and there is no reason to disbelieve the same, then as on 05.02.1999, the age of the prosecutrix was 19/20 years. The birth certificate of the prosecutrix, was not produced. No doubt, according to PC, certificate issued by the Principal, S.S. Jain Girls Senior Secondary School, Dera Bassi, the date of birth of prosecutrix is shown as 18.11.1983. However, the authenticity of this document, cannot be vouch-safed, as Krishna Sharma, Principal, PW6, did not state, as to who got admitted the prosecutrix, in 8th class of S.S. Jain Girls Senior Secondary School, Dera Bassi. She also did not state, as to on the basis of which document or data, she recorded the date of birth of the prosecutrix, in the admission register of the school, as 18.11.1983. During the course of cross-examination, she admitted that she had not brought the admission register, showing entry regarding the date of birth of the prosecutrix, on the basis whereof, she allegedly issued PC, certificate. She further Criminal Appeal No. 362-DBA of 2001 8 stated that she did not know, as to, in which school, the prosecutrix studied upto 7th class. In the absence of production of any data/material, on the basis whereof, the date of birth of the prosecutrix was recorded, in the admission register, no reliance, can be placed on exhibit PC. Exhibit PC, document can be said to be of doubtful authenticity. It is a matter of general experience, that entries in the school register regarding the date of birth of their wards, are often got recorded by their parents, showing them to be younger in age, so as to ensure that, in future, whenever the necessity arose, they could derive benefit from such lesser age, having been recorded, in the said register. Since there is contradiction between PC, certificate, and the ocular evidence of Dilan Kumari, regarding the date of birth of the prosecutrix, the view, which is favourable to the accused, is required to be taken. In other words, the statement of Dilan Kumari, complainant, that, at the relevant time, the age of the prosecutrix was 19/20 years, is required to be taken into consideration in comparison to the certificate PC. The trial Court, in our opinion, was, thus, right in holding that the age of the prosecutrix on 05.02.1999, the date of alleged occurrence, was not below 16 years, but on the other hand, was 19/20 years and she was, thus, major. The finding of the trial Court, in this regard, being correct, is affirmed.

14. Now the next question, that arises for consideration, is, as to whether, the accused (now respondent), kidnapped the prosecutrix, from the lawful guardianship of her parents, with an intent to subject Criminal Appeal No. 362-DBA of 2001 9 her to sexual intercourse and actually committed sexual intercourse, without her consent and against her will. Since it has been held above, that the age of the prosecutrix, at the time of the alleged occurrence, was 19/20 years, she was major. She could distinguish between her good and bad. The statement of the prosecutrix, under Section 164 of the Code of Criminal Procedure, was recorded, by Ms. Navjot Sohal, Judicial Magistrate 1st Class, Rajpura, on 16.02.1999, which is exhibit PA/2. In that statement, she in clear-cut terms stated, that she was having love affair with the accused and accompanied him of her own accord. She also stated that she told the accused that he should take her to some distant place, otherwise her mother would kill her. She further stated, in that statement, that she was not subjected to sexual intercourse, by the accused. No doubt, when she appeared, in the Court, as PW11, it was stated by her, in her examination-in-chief, that the accused, took her, on the pretext that somebody wanted to meet her, at Chandigarh, and on account of that reason, she accompanied him, to Chandigarh. She also stated in her examination-in-chief, that she was subjected to forcible sexual intercourse many times, by the accused. However, when she was confronted with her previous statement, exhibit PA/2, she admitted having made the same. During the course of cross-examination, she admitted it as correct, that she had got recorded, in her statement, under Section 164 of the Code of Criminal Procedure, before the Magistrate, that at no stage, the accused had committed any forcible rape or sexual intercourse with her. She, however, in the same Criminal Appeal No. 362-DBA of 2001 10 breath, stated that it was wrongly recorded therein. Ms. Navjot Sohal, Judicial Magistrate 1st Class, Rajpura, appeared as PW1, and stated that she recorded the statement of the prosecutrix, under Section 164 of the Code of Criminal Procedure, correctly and without any pressure. From the careful scrutiny of the evidence of the prosecutrix, vis-a-vis her previous statement, exhibit PA/2, under Section 164 of the Code of Criminal Procedure, only one and one inescapable conclusion, that can be arrived at, is to the effect, that she was not kidnapped by the accused from her lawful guardianship, with an intent to commit rape with her, but she accompanied him of her own accord, and voluntarily, as she was having love affair with him. Since she accompanied the accused voluntarily, the offences, punishable under Sections 363 and 366 of the Indian Penal Code, were not constituted. The trial Court, was, thus, right, in coming to such a conclusion. The finding of the trial Court, in this regard, being correct, is affirmed.

15. The next question, that arises for consideration is, as to whether, the prosecutrix was a consenting party, to the act of sexual intercourse, or not. It may be stated here, that from the evidence, on record, as would be discussed, hereinafter, it was proved beyond doubt, that she was a consenting party. No doubt, in her examination-in-chief, while appearing, as PW11, she stated that she was subjected to sexual intercourse, by the accused forcibly. The statement made by her, under Section 164 of the Code of Criminal Procedure, completely exonerated the accused. She, in clear-cut terms, in that statement, stated that she Criminal Appeal No. 362-DBA of 2001 11 was not subjected to forcible sexual intercourse. Men may lie, but the circumstances and the documents do not. It was on 05.02.1999, that the prosecutrix voluntarily accompanied the accused. She remained with the accused, from 05.02.1999 to 15.02.1999, when ultimately, both of them were apprehended, by the Police, at Railway Station, Ambala. During the course of her cross-examination, it was stated by her, that she remained with the accused throughout, while travelling, till both of them were apprehended. She further stated that she did not raise any alarm when the accused was taking her to different places. Had the accused, forcibly taken away the prosecutrix or subjected her to forcible sexual intercourse, while travelling, in buses and trains, she could raise alarm, so as to attract the attention of the people. There is nothing, on the record, that the accused ever held her any threat that she would be killed, in case, she raised alarm. From 05.02.1999 to 15.02.1999, she had many occasions, to complain, against the accused, to the respectables of the places, where she accompanied him, or to the Police, that she was forcibly taken away, by the accused, and subjected to forcible sexual intercourse. She, however, did not make any complaint, to any respectable or the Police. No injury, on the person of the prosecutrix was found by the doctor, who medico-legally examined her. Had she been forcibly subjected to sexual intercourse, she would have put up a stiffest resistance, to such an act of the accused. In that event, marks of violence, would have certainly been found, on her body. Since, no injury, was found, on any part of the body of the Criminal Appeal No. 362-DBA of 2001 12 prosecutrix, it could be said that she was not subjected to forcible sexual intercourse, by the accused, but was a consenting party. Taylor in "Principles and Practice of Medical Jurisprudence Volume II" while dealing with the cases of rape, on a grown up and an experienced girl, observed as follows:-

"Unless under the influence of drink or drugs or asleep or ill, a fully grown girl or adult woman should be able to resist a sex assault. We should expect to find evidence of a struggle to avoid sexual contact or penetration, and may well feel uncertainly about the real nature of an alleged assault in its absence.
A false accusation of rape may sometimes be exposed by marks of violence being wholly inadequate or absent.
Bruises upon the arms or the neck may be considered to constitute some evidence of a struggle; and impressions of finger nails are also significant. Bruises or scratches about the inner side of the thighs and knees may be inflicted during attempts to abduct the legs forcibly, and care must also be taken to examine the back, for the victim may have been pinned against the wall or floor. It is important to record these in detail, and to say, if possible, how fresh they are. The aging of bruises, is, as was indicated in Volume I, a matter of some uncertainly in the absence of microscopy.
Strong corroborative evidence of a struggle might be obtained from an examination of the accused, for similar marks of bruises or scratches about the arms or face, and possibly evidence about his penis, though this is less likely."

In similar circumstances in Partap Misra Vs. State of Orissa AIR 1977 Criminal Appeal No. 362-DBA of 2001 13 (S.C.) 1307, the accused were acquitted of the charge of commission of offence of rape, when the marks of scratches or injuries, were not found, on their person and on the person of the prosecutrix. In the instant case, as stated above, there was no mark of scratches or external injuries on the person of the prosecutrix. There was no fresh rupture of hymn of the prosecutrix. Even there was no mark of injury on the person of the accused, who was medico-legally examined by Dr. R.K. Sood, PW3. The medical evidence of the doctors, aforesaid, completely ruled out the theory of commission of rape by the accused. On the other hand, the medical evidence and the other circumstances, referred to above, clearly proved that it was a case of consent, on the part of the prosecutrix. The trial Court, was, thus, right, in holding that the prosecutrix was a consenting party and she was not subjected to forcible sexual intercourse, by the accused. The finding of the trial Court, in this regard, being based on the correct appreciation of evidence and law, on the point, is upheld.

16. Normally, it is presumed, that no girl or a married lady would level a false allegation of rape, or other sexual offence, against the accused, by putting her honour, and character, at stake, but it cannot be applied universally. Each case has to be determined, on the factual matrix thereof. Similar principle of law, was laid down, in Pandurang Sitaram Bhagwat Vs. State of Maharashtra 2005 (1) RCR Crl. 859 (S.C.). So in the present scenario, prevailing in our society, it could not be completely ruled out, that a young girl, or a Criminal Appeal No. 362-DBA of 2001 14 woman, would, in no case, raise false allegations of rape, against the accused. In the instant case, as stated above, the prosecutrix being major, accompanied the accused, to various places, and enjoyed the act of sexual intercourse, with him, from 05.02.1999 to 15.02.1999, but when, she was apprehended alongwith the accused, she apparently under the pressure of her mother Dilan Kumari, PW5, while appearing as (PW11), stated that she was subjected to forcible intercourse, though, in her statement, under Section 164 of the Code of Criminal Procedure, which was recorded, on 16.02.1999, one day, after her recovery, before the Judicial Magistrate 1st Class, Rajpura, she in clear- cut terms, stated that she had love affair with the accused and accompanied him of her own accord and was not subjected to forcible sexual intercourse by the accused. A girl, who keeps on changing her statements, from time to time, at various stages of the judicial proceedings, cannot be said to be a reliable witness. The principle of law, laid down, in Pandurang Sitaram Bhagwat's case (supra), is, thus, fully applicable, to the facts of the present case. On the basis of the facts & circumstances prevailing, in this case, the trial Court, was right, in coming to the conclusion that the accused was falsely implicated, by the prosecutrix, at the instance of her mother.

17. No other point was urged, by the Counsel for the parties.

18. In view of the above discussion, it is held that the view, taken by the trial Court, on the basis of appreciation of evidence, produced, could be said to be a reasonably possible view. It is settled Criminal Appeal No. 362-DBA of 2001 15 principle of law, that when two views are possible, on the basis of the evidence, produced by the prosecution, one favourable to the accused and the other favourable to the prosecution, then the view favourable to the accused is required to be taken. The judgement, rendered by the trial Court, therefore, does not suffer from any illegality, infirmity or perversity. The same deserves to be upheld.

19. For the reasons, recorded above, the appeal, being without merit, must fail, and the same stands dismissed.

(K.S. GAREWAL)                                      (SHAM SUNDER)
    JUDGE                                               JUDGE



04.02.2009
Amodh