Crl. Appeal No.829-SB of 1996 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.829-SB of 1996 Date of Decision :01.05.2009 1.Suraj Bhan, 2.Subhash sons of Jethu Ram, residents of Harsola, District Kaithal. .... Appellants. Versus The State of Haryana .... Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Nameet Sharma, Advocate ( Amicus-curiae ) for the appellants. Mr. P.S. Sullar, DAG, Haryana, for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction dated 22.11.1996, and the order of sentence dated 23.11.1996, rendered by the Court of Additional Sessions Judge, Kaithal, vide Crl. Appeal No.829-SB of 1996 --2-- which it convicted the accused (now appellants), and sentenced them as under:- Names of the accused (now appellants) The offence for which conviction was recorded. Sentence awarded Suraj Bhan and Subhash U/S.366 IPC Rigorous imprisonment for five years each. Fine of Rs.2000/-each. In default of payment of fine, to undergo rigorous imprisonment for one year each. However, the accused were acquitted for the offence, punishable under Section 376 of the Indian Penal Code. 2. The facts,in brief, are that, on 17.12.1992 at about 1.15 PM, Jogi Ram, father of the prosecutrix, (the name is not being mentioned in view of the pronouncement of the Apex Court), made a statement Ex.PG before Krishan Dayal, Sub Inspector, near village Sotha, to the effect, that he was a labourer and a resident of village Harsola. Jethu Ram son of Mai Ram, used to reside in the same village since long, who shifted about two years ago to village Habri. His two sons namely Suraj Bhan and Subhash, still reside in village Crl. Appeal No.829-SB of 1996 --3-- Harnola and were labourers. Subhash and Suraj Bhan were the neighbourers of Jogi Ram, complainant, and were on visiting terms with them. On 17.12.1992 at night, Jethu Ram slept in his house alongwith his children. When he woke up in the morning, he found his daughter ( the prosecutrix ), aged 16 years, missing. He searched her in the neighbourhood, and in the village, but could not find her. He also found that Subhash and Suraj Bhan were missing from their house. Jetu Ram kept on searching all of them but to no avail. He suspected that Subhash and Suraj Bhan had kidnapped his daughter. On the basis of the statement, made by Jetu Ram, formal FIR was registered. On the same day, at about 7.00 PM, both the accused alongwith the prosecutrix, were apprehended, in the area of village Polar, where they were going by the side of drain. The statement of the prosecutrix Ex.PA was recorded. The accused were arrested. The prosecutrix was got medicolegally examined. Scaled site plan, with correct marginal notes was got prepared. After the completion of investigation, the accused were challaned. Crl. Appeal No.829-SB of 1996 --4-- 3. On their appearance, in the Committing Court, the accused were supplied the copies of all the documents, relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Sections 363, 366 and 376(II(g) of the Indian Penal Code, was framed against the accused, to which they pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case,examined Dr. S.K. Singal, Radiologist,(PW-1), Dr. G.K. Mathur, Medical Officer,Government Hospital, Kaithal, (PW-2), Dr. Mrs. Ranjna Jain, Medical Officer, Civil Hospital, Kaithal, (PW-3), the prosecutrix, (PW-4), Jogi Ram, father of the prosecutrix,(PW-5), Krishan Dayal, Sub Inspector, (PW-6), Darshan Kumar, Sub Inspector, (PW-7), and Kamal Kant, Judicial Magistrate Ist Class, Karnal, (PW-8). The Public Prosecutor for the State tendered into evidence, affidavits of Baldev Raj, Head Constable, and Subhash Chand, Constable, Ex.PE and Ex.PF respectively. Thereafter, he closed the prosecution evidence. Crl. Appeal No.829-SB of 1996 --5-- 5. The statements of the accused, under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Accused Suraj Bhan, stated in his statement, under Section 313 of the Code of Criminal Procedure that he alongwith his brother had worked for digging the tubewell with Jogi Ram, complainant, who was the cashier at that time. It was further stated by him that when they demanded their share, he ( Jogi Ram ) refused to give the full amount to them. It was further stated by him that hot words were exchanged between them. It was further stated that due to this reason, he alongwith his brother, were falsely implicated in the instant case. 6. Subhash, accused, also took up the same plea, as was taken up by Suraj Bhan, accused, in his statement, under Section 313 of the Code of Criminal Procedure. They, however, did not lead any evidence, in defence. 7. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Crl. Appeal No.829-SB of 1996 --6-- Court, convicted and sentenced the accused, as stated hereinbefore. 8. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the appellants. 9. I have heard the Counsel for the parties, and have gone through the evidence and record, of the case, carefully. 10. The Counsel for the appellants, at the very outset, submitted that the trial Court was wrong in coming to the conclusion, that the accused committed the offence, punishable under Section 366 of the Indian Penal Code. He further submitted that no reliable evidence was produced by the prosecution, to prove that the prosecutrix was below 18 years of age, though the trial Court held that she was above 16 years of age. He further submitted that, as per the statement of Dr. S.K. Singal, Radiologist, Civil Hospital, Kaithal, (PW-1),the approximate age of the prosecutrix was 14-½ to 17 years. He further submitted that no doubt Jogi Ram, complainant, (PW-5), the father of the prosecutrix, as on 09.03.1994, disclosed the Crl. Appeal No.829-SB of 1996 --7-- age of the prosecutrix, as 15/16 years, yet the same could not be believed. He further submitted that the trial Court was, thus, wrong in holding that the prosecutrix was below 18 years of age, at the time of the alleged occurrence. He further submitted that the trial Court was, thus, wrong, in recording conviction and awarding sentence to the accused, for the offence, punishable under Section 366 of the Indian Penal Code. 11. On the other hand, the Counsel for the respondent, submitted that, no doubt, no documentary evidence was produced by the prosecution, to prove as to what was the age of the prosecutrix. He further submitted that, in these circumstances, the evidence of the father of the prosecutrix, who appeared as, PW-5, could be said to be reliable. He further submitted that according to him, the age of the prosecutrix was 15/16 years. Even in Ex.PG, the statement made by Jogi Ram, complainant, on the basis whereof, the FIR was registered, he described the age of the prosecutrix as 16 years. He further submitted that when the statement of the prosecutrix Ex.PM/2 under Section 164 of the Code of Criminal Procedure was recorded Crl. Appeal No.829-SB of 1996 --8-- by the Judicial Magistrate Ist Class, on 18.12.1992, she disclosed her age as 15 years. He further submitted that from the evidence of all these witnesses, it was proved that the prosecutrix was below 18 years of age and the trial Court was right, in holding so. He further submitted that the ossification test regarding the determination of the age of the prosecutrix could not be said to be conclusive and therefore, no reliance could be placed thereon. 11-A. Since the ossification test could not be said to be conclusive to determine the age, the Court was required to place reliance, on the other evidence, produced by the prosecution. Jogi Ram, complainant, (PW-5), father of the prosecutrix, gave a vivid detail, with regard to the age of his children. He stated while appearing as PW-5, on 09.03.1994, that he had five daughters and two sons. The eldest daughter was aged about 26 years and married . She had two children. The eldest child of his daughter was aged about 6 years. It was further stated by him that his second child i.e. son, was aged about 23 years as on 09.03.1994. He was unmarried. He further stated that then his Crl. Appeal No.829-SB of 1996 --9-- third daughter i.e. Inderjit, was aged about 19/20/21 years. He further stated that his 4th daughter namely Bimla, was aged about 18 years as on 09.03.1994. He further stated that thereafter, his 5th child, (the prosecutrix), was born. He further stated that she was aged about 15-½ years. He further stated that none of the children born from his loins, died. During the course of cross-examination, it was stated by him that the birth of children from his loins, was not got recorded with the Chowkidar. There was no possible reason for Jogi Ram to depose falsely regarding the ages of his children. In the face of the direct ocular evidence of Jogi Ram, no reliance on the ossification test, which is not conclusive, for determining the age, could be placed. The evidence of Jogi Ram,(PW-5), father of the prosecutrix, that as on the date of occurrence, the prosecutrix was below 18 years of age, was rightly believed by the trial Court. The submission of the Counsel for the appellants, being without merit, is rejected. 12. The next question, that arises for consideration, is to whether, the accused, committed the offence, punishable under Section Crl. Appeal No.829-SB of 1996 --10-- 366 of the Indian Penal Code or not. The provisions of Section 366 of the Indian Penal Code are extracted as under: “Whoever kidnaps or adducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit inter course, or knowing it to be likely that she will be forced or seduced to illicit inter course, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another Crl. Appeal No.829-SB of 1996 --11-- person shall also be punishable as aforesaid”. A plain reading of the definition of Section 366 of the Indian Penal Code reveals that where a girl under 18 years of age, is taken away from the lawful guardianship of her father by the accused with the object of seduction, he is guilty of the offence, punishable under Section 366 of the Indian Penal Code. It was not that the prosecutrix of her own accompanied the accused. The prosecutrix, when appeared as PW-4, stated that on the night intervening 16/17.12.1992 when she got up for urinating and came outside her house, both the accused had hidden themselves behind a wall. It was further stated by the prosecutrix that both the accused gagged her mouth with a piece of cloth and kidnapped her. Both the accused, thus, took away the prosecutrix, who was below 18 years of age from the keeping of her lawful guardianship, with an intention to commit illicit intercourse. Under these circumstances, the accused, committed the offence, punishable under Section 366 of the Indian Penal Code. The trial Court was right, in coming to the conclusion, that the accused committed the Crl. Appeal No.829-SB of 1996 --12-- offence, punishable under Section 366 of the Indian Penal Code. On re-appraisal and re-appreciation of the evidence, produced by the prosecution, this Court, also comes to the same conclusion. The findings of the trial Court in this regard, being correct, are affirmed. 11-B. The Counsel for the appellants placed reliance on State of Karnataka v. Sureshbabu Puk Rai Porral,1994(1)RCR 271(SC),Om Parkash @ Mitha @ Prem v.State of Haryana,1997(1)RCR 741(P&H), and Paramjit Singh v.State of H.P.1987(1)RCR 247(HP) to contend that since the age of the prosecutrix could not be proved to be below 18 years, no offence, punishable under Section 366 of the Indian Penal Code was committed. In State of Karnataka's case (supra),there was doubt with regard to the age of the prosecutrix. It was,under these circumstances, held that it could not be said that the prosecutrix was taken away from her lawful guardianship.In Om Parkash @ Mitha @ Prem's case (supra)according to the doctor, who radiologically examined the prosecutrix, her age was 16/17 years. According to the doctor, the age could vary 2/3 years on both sides and, as such, the age more Crl. Appeal No.829-SB of 1996 --13-- favourable to the accused was accepted by ignoring the birth certificate. In Paramjit Singh's case (supra) according to the medical evidence, the prosecutrix was 16 years of age and habitual to intercourse. In these circumstances, it was held that no offence of rape was made out. There is, no dispute, with the proposition of law, laid down, in the aforesaid cases. However, in the instant case, from the cogent, and convincing evidence of Jogi Ram, complainant, (PW-5), father of the prosecutrix, giving the complete sequence of the birth of his children and their ages, it was proved that the prosecutrix was below 18 years of age at the time of occurrence. In the face of cogent and convincing evidence of Jogi Ram, father of the prosecutrix, no reliance could be placed on the Ossification test regarding the determination of the age of the prosecutrix as the same could not be said to be conclusive. If there is ocular evidence as also the medical evidence, contradictory to each other, with regard to the determination of the age of the prosecutrix, then the primacy is required to be given to the ocular evidence, especially when the same is found to Crl. Appeal No.829-SB of 1996 --14-- be reliable. The facts of the aforesaid cases, being distinguishable, no help could be drawn by the Counsel for the appellants, therefrom. The submission of the Counsel for the appellants, being without merit, is rejected. 13. No other point, was urged, by the Counsel for the parties. 14. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference, and are liable to be upheld. 15. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction dated 22.11.1996, and the order of sentence dated 23.11.1996, are upheld. If the appellants are on bail, their bail bonds, shall stand cancelled. 16. The Chief Judicial Magistrate, shall take necessary steps, to comply with the judgment, with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Cr.P.C. and compliance report be sent within Crl. Appeal No.829-SB of 1996 --15-- two months. 17. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, within the time-frame, and the compliance report is sent immediately, thereafter, to this Court. 18. The Registry shall keep track of the matter, and put up the action taken report, if received, within the time frame. Even if, the same is not received, within the time frame, the matter shall be put up, within 10 days, after the expiry of the stipulated time, for further action. May 01, 2009 (SHAM SUNDER) dinesh JUDGE