CRA No.1029-SB of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No.1029-SB of 2001 Date of decision : 24.12.2010 Sagar Kumar ...Appellant Versus State of Haryana ...Respondent CORAM: HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Gorakhnath, Advocate as Amicus Curiae, for the appellant. Mr. Kshitij Sharma, AAG, Haryana. JITENDRA CHAUHAN, J. (ORAL) 1. The appellant has come in appeal against the judgment and order dated 29/31.08.2001 (hereinafter referred to as the ‘impugned judgment’) passed by the learned Additional Sessions Judge, Gurgaon, (hereinafter referred to as the ‘trial Court’) whereby the appellant has been convicted for the offence punishable under Sections 376, 363 and 366 IPC and awarded the sentence as under:- Under Section 363 IPC Rigorous imprisonment for a period of three years and to pay a fine of ` 500 or in default, rigorous imprisonment for a period of one month. Under Section 366 IPC Rigorous imprisonment for a period of five years and to pay a fine of ` 500 or in default, rigorous imprisonment for a period of one month. CRA No.1029-SB of 2001 -2- Under Section 376 IPC Rigorous imprisonment for a period of seven years and to pay a fine of ` 1000 or in default, rigorous imprisonment for a period of one month. However, all the substantive sentences were ordered to run concurrently. 2. The brief facts of the case, as emanating from the prosecution version, are that on 4.9.2000, the complainant, Pehlad Singh met ASI Om Parkash near APJ College, Haripur and moved an application before him stating that he has 8 children. His eldest daughter, Laxmi Devi, was already married and the prosecutrix, who is younger to Laxmi Devi, was unmarried. The complainant had been residing in the hut along with his family members and doing the labour work at APJ College. The prosecutrix was also doing the labour work there. It was alleged in the complaint that the accused-appellant, Sagar Kumar, who was also working there and residing in the nearby hut, seduced the prosecutrix and took her along at 4.00 a.m. on 31.8.2000. As his daughter, the prosecutrix and the appellant, Sagar Kumar, had gone missing, he suspected that the appellant had kidnapped the prosecutrix. The complainant made efforts to trace his daughter but in vain. Later on, the complainant found a letter written by the appellant which was left in the hut of one Udey Nath, Munshi, with whom the appellant had been working. 3. On the basis of aforesaid complaint, a case was registered against the appellant and investigations were conducted by ASI Om Parkash. On 13.9.2000, the appellant was arrested and the prosecutrix CRA No.1029-SB of 2001 -3- was recovered from his illegal custody. 4. After completion of the investigation and upon presentation of the challan, the case was committed to the Court of Sessions. The accused was charge-sheeted under Section 376, 366 and 363 IPC, to which he pleaded not guilty and claimed trial. 5. In order to substantiate its case against the accused, the prosecution examined as many as 12 witnesses, namely, PW1-Dr. Prem Kumar, M.O. Government Hospital, Sohna; PW2-Dr. B B Aggarwal, Radiologist, Government Hospital, Gurgaon; PW3-H.C. Rameshwar Dayal; PW4-Constable Satpal; PW5-Sarwan Kumar, Draftsman; PW6- Pehlad, the complainant; PW7-the prosecutrix; PW8-Constable Rajbir Singh; PW9-SI Virender Singh; PW10-ASI Om Parkash; PW11-Shri I D Sharma, JMIC, Gurgaon; and PW12-Dr. Renu Sharma. 6. When examined under Section 313 of the Code of Criminal Procedure, the accused denied the incriminating circumstances appearing against him in the prosecution evidence and pleaded innocence. In his defence, the accused did not examine any witness. 7. After hearing learned counsel for both the parties, learned trial Court convicted and sentenced the accused for the offence and term, as noticed at the outset of this judgment. 8. Learned counsel for the appellant states that there is an inordinate and unexplained delay of 4 days in lodging the FIR. The occurrence took place on 31.08.2000 at 4.00 a.m. whereas the FIR was registered on 4.09.2000. This delay has been utilized to design the case of the prosecution to fit in the circumstances narrated by the prosecution. The prosecutrix remained with the appellant from the night of 31.8.2000 CRA No.1029-SB of 2001 -4- to 13.09.2000. The prosecutrix traveled from one place to another place. It is not established that the prosecutrix was under any threat or the appellant was carrying any deadly weapon on account of which the prosecutrix remained under threat. Learned counsel has argued that the prosecutrix was a consenting party as both of them had a love affair and the prosecutrix left her home with her own accord. 9. The learned counsel for the appellant has further referred to the statement of Dr. B B Aggarwal, PW2, who radiologically examined the prosecutrix and stated that the age of the prosecutrix was 15 ½ to 16 years. However, the case was referred to the LMO, who had prepared the MLR. Therefore, the learned counsel submits that this opinion, not being final expression of opinion by the doctor regarding the age, deserved to be ignored. 10. The learned counsel has further submitted that in her deposition before the learned trial Court, the prosecutrix herself has admitted her age to be 19/20 years. The prosecution has not placed on record any document/certificate/birth entry on record, on the basis of which it can be precisely said that the prosecutrix was minor on the date of occurrence. 11. The learned counsel has further argued that the story put forth by the prosecution is highly improbable. As per the case of the prosecution, she was made to smell some intoxicant on account of which she became unconscious and thereafter, she was taken away from the hut. Learned counsel submits that it is highly improbable that the appellant would lift the prosecutrix, move out of the locality and remove her to Delhi in such a condition. CRA No.1029-SB of 2001 -5- 12. The learned counsel further argues that there are material improvements in the statement of the prosecutrix. In her statement recorded under Section 161 Cr.P.C., she has not stated that the appellant was carrying a knife or anything was administered to her nor these facts are reflected in the FIR. He has further stated that the prosecutrix was a consenting party as during her stay with the appellant from 31.08.2000 till 13.09.2000, she met a large number of people on the way but did not disclose the fact of her kidnapping by the appellant or made any effort to escape. 13. Learned counsel has lastly referred to the statement of Dr. Renu Sharma, PW12, who deposed that she did not notice any injuries on the person of the prosecutrix. 14. On the other hand, learned counsel for the State has vehemently argued that the prosecutrix was minor and she was forcibly taken away from the lawful custody of her parents. The case of the prosecution is proved beyond reasonable doubt. He has prayed for maintaining the judgment of conviction and order of sentenced passed by the learned trial Court. 15. I have heard learned counsel for the parties and perused the record. 16. The occurrence took place on 30.08.2000 and the FIR was registered on 4.9.2000. It is of common knowledge that in cases of the instant nature, the parents make best of their efforts to trace the child as the fact of kidnapping/elopement of daughter attaches stigma not only to the victim but to the family as well. However, it is made out from the record that the complainant had been searching for his daughter from one CRA No.1029-SB of 2001 -6- place to another and ultimately, when he came to know through the letter Ex.PF, allegedly left by the appellant regarding elopement, the complainant reported the matter to the Police. Therefore, in my considered view, there is no delay in lodging the FIR. 17. Admittedly, the prosecution has not proved any document/certificate on record whereby it can be ascertained that the prosecutrix was minor on the day of occurrence. As per the statement of Dr. B B Aggarwal, PW2, the prosecutrix was about 15 ½ to 16 years with variation of upto two years on either side. From the testimony of Dr. Renu Sharma, PW12, the secondary sex characters of the prosecutrix were found well developed which suggests that the variation as pointed out by Dr. B B Aggarwal, deserved to be counted towards higher side of her age. Accordingly, the prosecutrix was more than 16 years of age. 18. In the instant case, the story put forth by the prosecution appears to be highly improbable. As per the case of the prosecution, the prosecution was made to smell some intoxicant at the very site of the hut and thereafter, she was taken to Delhi where she regained consciousness at about 2.30 p.m. i.e., after about 12 hours. It is highly improbable that in a crowded place like Gurgaon, the appellant could remove the prosecutrix without engaging anybody’s attention/suspicion either on the way or after reaching to Delhi. The prosecutrix remained with the appellant for about 13 days. She came in contact with a number of people in the vicinity of the hut where she was put up at Delhi. The appellant was not carrying any weapon with him and it cannot be said that the appellant remained present with her throughout and the appellant had no opportunity to escape. There is nothing on record that the CRA No.1029-SB of 2001 -7- prosecutrix made any attempt to free herself or raise alarm or share the fact of her kidnapping by the appellant with anybody. These facts acquire importance in the present set of circumstances when the appellant and the prosecutrix have traveled from one place to another by means of public transportation. 19. From the testimony of the prosecutrix, it is established that she has made material improvements in her statement made before the Court. There is no mention in the FIR or in the statement under Section 161 Cr.P.C. that the appellant was carrying any knife or he administered any intoxicant to her. In my opinion, these are material improvements and are fatal to the case of the prosecution. 20. Equally interesting is the fact of chronology of the children born the complainant, Pehlad Singh, the father of the prosecutrix. He has stated his age as 60 years. He married at the age of 17/18 years. The eldest child was born after 4-5 years of his marriage and the prosecutrix was born 6-7 years thereafter. Out of his total 8 children, the youngest was stated to be 1 ½ years of age at the time of occurrence. Going by this calculation, the age of the prosecutrix comes to around 26-27 years at the time of occurrence. Admittedly, there is not certificate, Birth Entry or any other document on record. In the absence of any record, even on consideration of the radiological examination report, the prosecutrix, at the time of occurrence had reached the stage of discretion coupled with the statement of the prosecutrix which is full of improvements and the version put forth by the prosecution happens to be highly improbable, I am of the considered opinion that the prosecutrix was a consenting party, accordingly, no case under Section 376 IPC is CRA No.1029-SB of 2001 -8- made out. 21. The appellant was also about 18 years of age at the time of occurrence. From the cumulative reading of the facts on record, it appears that both of them had some affair and the prosecutrix eloped with the appellant which is apparent from the material improvements she has made in her statement while deposing before the Court. 22. Resultantly, the appeal in hand is allowed and the appellant is acquitted of the charges framed against him. The impugned judgment of conviction and order of sentence passed by the learned trial Court is hereby set aside. The appellant is stated to be on bail. His bail bonds shall stand discharged. December 24, 2010 (JITENDRA CHAUHAN) atulsethi JUDGE Note : Whether to be referred to reporter ? Yes/No