IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.781-SB of 1997 Date of decision: 15th January, 2010 Muna Mansuri … Appellant Versus State of Haryana … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Ajay Singla, Advocate for Mr. Kanwaljit Singh, Senior Advocate for the appellant. Mr. Deepak Jindal, Deputy Advocate General, Haryana for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present appeal has been filed by Muna Mansuri son of Kanchan Mansuri, aged 23 years. He was convicted by the Court of Additional Sessions Judge, Ambala for offences under Section 363, 366 and 376 IPC. The trial Court had sentenced the appellant to undergo rigorous imprisonment for three years and to pay fine of Rs.500/-, in default of payment of fine to further undergo rigorous imprisonment for three months for offence under Section 363 IPC. He was further sentenced to undergo rigorous imprisonment for four years and to pay fine of Rs.1000/-, in default of payment of fine to further undergo rigorous imprisonment for six months under Section 366 IPC. He was also sentenced under Section 376 IPC to undergo rigorous imprisonment for ten years and to pay fine of Rs.2000/-, and in default of payment of fine to further undergo rigorous imprisonment for one year. Criminal Appeal No.781-SB of 1997 In this appeal, conviction and sentence pronounced by the trial Court has been challenged. Appellant was tried along with his father Kanchan Mansuri. The trial Court had acquitted Kanchan Mansuri. As per the mandate given by Hon’ble Supreme Court, name of the prosecutrix has been withheld. The prosecutrix was the younger sister of the wife of the appellant. FIR Ex.PG/2 was registered on the basis of written complaint Ex.PG submitted by Anjali wife of the appellant. In the written complaint, it was submitted that the complainant Anjali was married with the accused appellant on 15th June, 1995 according to Hindu rites and ceremonies at Panchkula and for ten months they cohabited as husband and wife. To the surprise of the complainant wife, the accused appellant had abducted her younger sister aged 13 years. According to the complainant wife, it was learnt by them that accused had solemnized marriage with younger sister of the complainant forcibly against her wishes. The parents of the complainant had approached the police and also handed over the photographs. They had been continuously visiting the police station for about two months but no case was registered. In the FIR, it was stated that at the time, when husband of the complainant had left with her younger sister, the accused was accompanied by his father Kanchan. A request was made by the complainant that her husband and younger sister be recovered. The accused had allegedly abducted prosecutrix on 9th March, 1996 and on 22nd June, 1996 he was apprehended by police along with prosecutrix at Manimajra. The matter was investigated and report under Section 173 Cr.P.C. was submitted. On 19th September, 1996 Additional Sessions Judge, Ambala charged the appellant for offence under Section 363 IPC 2 Criminal Appeal No.781-SB of 1997 on the ground that on 9th March, 1996 in the area of Panchkula, he had enticed away the prosecutrix age 16 years from the lawful custody of her parents. Secondly, the appellant was charged under Section 366 IPC on the ground that he had accompanied the prosecutrix with intention to compel her to illicit intercourse. Thirdly, from 9th March, 1996 to 22nd June, 1996 he committed rape upon the prosecutrix and committed offence under Section 376 IPC . The accused pleaded not guilty and claimed trial. Dr.Neeru Kapur PW-1 conducted medico legal examination of the prosecutrix on 22nd June, 1996. At the time of medico legal examination, prosecutrix disclosed her age as 15 years. In the medico legal examination, this witness observed as under: “Her general condition was fair, moderately built, moderately nourished, well oriented in time, space and in person. Height was 5 feet. Pulse rate was 80 per minute, B.P. 110/80. Gait normal. Teeth – upper jaw – 7 plus, lower jaw – 7 plus 7. Age of menarche – 14 years. LMP – 1.4.1996. M/F – 4/30 regular painless moderate. Clothes – she was wearing pink salwar kameez and white vest. NO stain was present over the clothes. Clothes were sealed, labeled, signed and handed over to the police. There were no marks of injuries on face, fore-arm, wrist, breasts, chest, abdomen and thigh. Secondly, sex character – breasts auxiliary hair, pubic hair were well developed. External genetalia was fully developed. No marks of violence on external genetalia was present. No stain mark on external genetalia. Pubic hair were not meted. They were cut, sealed, labeled, signed and handed over to the police. hymen was torn and vaginal orifice admitted two fingers and was loose. On P/V - Uterus soft 10 to 12 weeks size, advised urine for pragnently test, breasts were pendulous and large. Pigmentation on araola. Vaginal swabs were taken, labeled, signed and handed over to the police. Vaginal smear slides were taken, labeled and signed, sealed and handed over to the police. she was referred to Radiologist for determination of age.” 3 Criminal Appeal No.781-SB of 1997 In cross examination, it was stated that the prosecutrix was habitual of sexual intercourse as vagina admitted two fingers. Dr.R.S. Bugalia, Radiologist appeared as PW-2. He conducted ossification test (radiological examination) of the prosecutrix and found that prosecutrix was between 16-17 years of age. In cross examination, he stated that the age of the prosecutrix was not more than 17 years. Prosecutrix appeared as PW-3. She stated that on 8th March, 1996, Kanchan father of the accused appellant came to her in the industrial area. At that time, prosecutrix was present in the factory No.291 in the industrial area, Panchkula. Appellant Muna Mansuri asked the prosecutrix to prepare the tea. Thereafter, she had gone to collect clothes lying outside. When she came back, the accused had mixed something in the tea. After taking tea, she became unconscious. After 2 – 3 days she found herself present at village Baghan in Bihar. She was kept there for 2 ½ months. Kanchan Ram and so many other persons were also residing in the neighbourhood. Accused present in the Court, Muna Mansuri appellant had sexual intercourse with her by force and under duress. Her brother-in- law Gopal Bhagat (sister’s husband) and Mani Kumar cousin came to know about her at village Baghan in Bihar. The accused told them that prosecutrix was not present there. Thereafter, she was taken to Betian, native place of the appellant and from there accused learnt that police case has been registered at Panchkula and then she was taken to Nepal. Prosecutrix further stated that accused Muna Mansuri about one year before was married with her elder sister Anjali. She further stated that whenever her sister was not keeping well she used to visit the house of the accused at Panchkula. The factory in which she prepared the tea was her house and not sister’s house. From Nepal prosecutrix and appellant came 4 Criminal Appeal No.781-SB of 1997 to Panchkula to earn livelihood. They stepped down from the bus at Manimajra and were staying there in search of job. They had not got any work and were planning to go back in the same bus, when the police arrived at the scene along with her father and took them into custody. In cross examination, prosecutrix stated that she had never gone to school. They were six sisters and no brother. Youngest sister is six years old. Elder to her is 7 ½ years old. Fourth sister was 12 ½ years old. Anjali wife of the appellant was 5 years elder to her. She stated that when she left the house she was wearing only half tola gold, earrings and 15 tolas of pajeb made of silver. She was confronted with her statement recorded under Section 164 Cr.P.C. where she stated that she had gone to the house of the accused and there tea was prepared. In cross examination, she admitted that she is a Hindu and accused appellant Muna Mansuri is Mohammadan. She further stated that at the time of her marriage with the appellant, no ceremony was performed, but only her thumb impressions were obtained by an Advocate. She stated that she told the entire incident to the Advocate but he did not listen to the same. She denied that she had told her age as 21 years. This witness was re-called for cross examination on 29th April, 1997. She admitted that photographs Ex.D1 and D2 pertain to her and accused Muna Mansuri. She stated that these photographs were taken in a routine on the threat given by Muna Mansuri accused. She was forced to put on Sari and Sindhur. Same was her reply to the photographs Ex.D3 to D6. Complainant Anjali appeared as PW-5. She stated that she was married with the appellant accused on 15th June, 1995. After the marriage, she fell ill and she was looked after by her mother and the prosecutrix. The prosecutrix stayed in their house. During the stay of the prosecutrix, she suspected illicit relations between the accused Muna Mansuri and her sister prosecutrix. In cross examination, she stated that 5 Criminal Appeal No.781-SB of 1997 when she learnt that her sister was having illicit relations with her husband, she had immediately sent her back to her parents house and brought this fact also to the notice of her parents. She further stated that she had informed the parents that accused Muna Mansuri and her sister used to meet each other when she started working in the factory. She further stated that on the day when prosecutrix left with the accused, some persons had seen her husband (appellant) and the prosecutrix going in a Rickshaw at Sector 5 bus stand. Father of the prosecutrix Rajinder Bhagat appeared as PW-6. He handed over Janam Patri Ex.P4, letters Ex.P5 and P6. SI Om Parkash PW-7 stated that on the basis of written complaint Ex.PG he made his endorsement Ex.PG/1 and the formal FIR Ex.PG/2 was registered. ASI Attar Singh appeared as PW-8. He proved various aspects of the investigation. Thereafter, statement of the accused under Section 313 Cr.P.C. was recorded, in which the accused appellant gave following version: “I am innocent. I have been falsely implicated in this case. As a matter of fact, I was married with Reeta by her parents and she was 21 years old at that time. Anjali had illicit relations with some other person and she was compelling me for marriage as she became pregnant. I refused her. Reeta compelled me to leave that place. My driving licence and my clothes etc. are still lying at the house of Reeta. Reeta and myself were residing as husband and wife and I left Panchkula alongwith Reeta on 9.2.96. I went to Bihar and later on, I also went to Nepal alongwith Reeta. The police later on arrested me from the house of Reeta. I had no relations with Kanchan as I am muslim and Kanchan is Hindu. The police implicated me in this case in connivance with Anjali and her parents.” 6 Criminal Appeal No.781-SB of 1997 DW-1 Kamta Parshad appeared to prove alibi of acquitted accused Kanchan. I have heard Mr.Ajay Singla, appearing for the appellant and Mr.Deepak Jindal, DAG Haryana, for the State. Counsel for the appellant has submitted that it is a case where the accused had eloped with younger sister of his wife. Counsel has submitted that there is no other evidence on the record that prosecutrix and the accused had fallen in love and had left Panchkula to Bihar and then to Nepal and had performed marriage. Counsel has further submitted that from photographs Ex.D1 to D3, it is apparent that prosecutrix and the appellant were living as husband and wife, and they had come back to Panchkula to earn livelihood when they were arrested and the false case was instituted. Mr. Deepak Jindal, DAG Haryana has stated that the complainant had given age of the prosecutrix as 13 years. Prosecutrix at the time of medico legal examination also stated her age as 15 years. Therefore, even though story of love affair is admitted, the acts of omission and commission on the part of appellant accused shall constitute offence of rape, abduction and kidnapping. Counsel has further submitted that father of the prosecutrix had tendered horoscope of the prosecutrix, in which year of birth of the prosecutrix recorded is 1982 and she was 14 years old. I have given my thoughtful consideration to the rival submission made by counsel for the parties. PW-2 Dr.R.S. Bugalia had conducted radiological examination (ossification test) of the prosecutrix. According to this witness, radiological age of the prosecutrix was 16-17 years. In cross examination, he stated that prosecutrix was not more than 17 years of age. In the present case, no school leaving certificate or birth certificate has been produced on record. The author of the Janam Patri has not been produced. Therefore, this Court has no other option except to 7 Criminal Appeal No.781-SB of 1997 rely upon the ossification test and hold that prosecutrix was more than 16 years of age but less than 18 years of age. According to the complainant Anjali PW-5, immediately when her sister (prosecutrix) left the house she was seen by certain persons in company of the accused in a Rickshaw at bus stand, Sector 5, Panchkula. Prosecutrix had traveled with the accused appellant to Bihar, she stayed there for 2 ½ months and then she accompanied the accused to Nepal. There were many opportunities for her to tell many persons, who came in her contact that she was abducted and forcibly raped. Prosecutrix had not told anybody regarding this fact. It has also come in the evidence of the prosecutrix that while she was staying at Baghan, there Kanchan Ram and many other persons were residing. There also, she has not told about the occurrence to anybody. Photographs Ex.D1 to D3 show that prosecutrix was wearing Sari and Sindhur. Explanation given by the prosecutrix that this was done due to the threat, is not only improbable but is also difficult to believe, especially when her sister complainant has told that during subsistence of her marriage with the accused, she had suspected that her younger sister was having illicit relations with the accused and this fact was also disclosed by her to the parents. Thus, it can be safely inferred that prosecutrix on her own accord and free will had accompanied the accused to Bihar and Nepal. Prosecutrix had also admitted that she had signed documents regarding marriage. In sum and substance, it is a case where younger sister had eloped with the husband of her elder sister and was consenting party to the sexual intercourse. Once on the basis of ossification test, this Court has determined the age of the prosecutrix to be more than 16 years and less than 18 years, no offence of rape is proved against the appellant accused and he is acquitted of the charge under Section 376 IPC. However, since the prosecutrix was less than 18 years of age, offences under Section 363 8 Criminal Appeal No.781-SB of 1997 and 366 IPC are proved. In the present case, occurrence had taken place in the year 1996. More than 13 years are going to elapse. Taking into consideration that appellant has suffered agony and pain of protracted trial, sentence awarded upon him by the trial Court under Section 363 IPC is reduced from three years rigorous imprisonment to two years rigorous imprisonment and sentence awarded to the appellant under Section 366 IPC is reduced from four years rigorous imprisonment to three years rigorous imprisonment. With the modifications in the sentence noticed above, present appeal is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE January 15, 2010 rps 9