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2010 Supreme(P&H) 2045
PUNJAB & HARYANA HIGH COURT
Jitendra Chauhan, J.
Sukh Ram
Versus
State Of Haryana
Criminal Appeal No. 323 of 2000,
Decided On : JULY 16, 2010
Subject
Criminal Law - Rape
Act Referred
Headnote
Prosecutrix accompanied accused in night of 1.10.1998--At that time, age of prosecutrix was about 16 years and 8 months--Prosecutrix had accompanied appellant from one place to another--Fact of love affair admitted by prosecutrix in her statement before Court--Prosecutrix as well as appellant have travelled at public places through various modes of transportation--There is nothing on record on basis on which it can be inferred that prosecutrix ever raised any protest or alarm--Appellant is not stated to be carrying any weapon--Therefore, it cannot be said that life of prosecutrix was under threat--Prosecutrix had admitted having written letters to appellant--Contents of letter clearly go to establish that prosecutrix had a love affair with appellant--Prosecutrix and appellant proposed to marry each other--No injury marks were found on person of prosecutrix during her medico legal examination--She stayed with appellant for about 2 months and 8 days--While they were staying at village appellant had been working as farm labourer and prosecutrix had also been performing her role as house wife to make and maintain livelihood--Held that no offence of rape under Section 376 of IPC is made out. (Para 24, 25, 26 & 27)
(B) Indian Penal Code, 1860, Ss.363 and 366-A--Kidnapping--Acquittal--Prosecutrix left her house to accompany appellant without any protest--There is no allegation that accused/appellant forcibly took away prosecutrix--Nothing on record that accused induced prosecution or he prompted her for formation of intention by her to leave house of her guardian--It is a case of elopement of prosecutrix with accused and not a case of taking away prosecutrix from lawful guardian of her father--Prosecutrix was about 16 years and 8 months of age at time of alleged occurrence--Prosecutrix had knowledge and capacity of having full import of what she was doing--It cannot be said that prosecutrix was taken away by accused/appellant from lawful guardianship of her father--Therefore, offence under Section 363 and 366-A of IPC is not proved.
(Para 28 & 29)
Jitendra Chauhan, J.
1. The present appeal is directed against the judgment and order dated 15/16.2.2000 passed by the Additional Sessions Judge, Sirsa whereby the accused-appellant has been convicted for the offences punishable under Sections 363, 366-A and 376 of the Indian Penal Code and sentenced as under :-
(i) To undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/-; for offence under Section 363 of IPC;
(ii) To undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.1,000/- for the offence under Section 366-A of IPC; and
(iii) To further undergo rigorous imprisonment for a period of five years for the offence under Section 376 of IPC.
All the sentences were ordered to run concurrently. In default of payment of fine, the accused would further undergo simple imprisonment for a period of two months.
2 Brief facts of the case as projected by the prosecution are given in para 1 of the impugned judgment which are as under :-
"On 5.10.1998 complainant Mam Chand lodged a complaint Ex.PC in Police Station City, Sirsa alleging that he is the resident of Ther Mohalla, Sirsa. His daughter namely Suman aged 16 years is missing since 1.10.98(night). He has been searching his daughter here and there at his own but in vain. He is having the information that accused Sukh Ram son of Thandu Ram has taken away his daughter by way of inducement. On this information, a formal FIR Ex.PC/1 was lodged and the investigations were carried out. ASI Gurdev Singh inspected the place of occurrence and prepared the rough site plan Ex.PR with correct marginal notes and also recorded the statements of the witnesses. On 9.12.98 ASI Chander Pal alongwith HC Subhash Chander, LC Ram Murti, Mam Chand and Diwan Singh was present on a crossing near General Hospital, Sirsa. In the meantime accused alongwith the prosecutrix was seen coming from the side of J.J.Colony, Sirsa. Complainant-Mam Chand identified his daughter as well as accused Sukh Ram. Both of them were apprehended. The prosecutrix Suman was recovered from the custody of Sukh Ram vide recovery memo Ex. PN and the statement of the prosecutrix was also recorded under Section 161 Cr.P.C. ASI Chander Pal, the Investigating Officer prepared the rough site plan Ex. PO. No lady Medical Officer was available at General Hospital, Sirsa on that day, so the prosecutrix Suman was got medically examined on the next day and ossification test was conducted. After examination Suman was produced before the Judl. Magistrate-I Class, Sirsa who also recorded the statement under Section 164 Cr.P.C. She was handed over to her parents vide memo Ex.PD. The accused after arrest was also got medically examined. During the investigations it was also revealed that accused Thandu Ram had helped accused Sukh Ram in taking away the prosecutrix. After completion of all the formalities and after obtaining the FSL report Ex.PF both the accused were challaned by Sube Singh, Inspector, then Station House Office of Police Station City, Sirsa vide his report under Section 173 of the Criminal Procedure Code, 1973.
3. The learned Additional Sessions Judge, Rewari charge sheeted the accused/appellant Sukh Ram for committing the offences under Sections 363/366-A/376 of the Indian Penal Code, whereas the accused Thandu Ram was charge sheeted under Section 212 of IPC vide order dated 5.6.1999 to which the accused/appellants pleaded not guilty and claimed trial.
4. To prove its case, the prosecution has examined as many as thirteen witnesses.
5. PW 1-Dr.Joginder Singh, Medical Officer, General Hospital, Rewari medico- legally examined the accused/appellant Sukh Ram on 9.12.1998. He opined that there was nothing abnormal to suggest that the the accused/appellant was incapable of doing sexual intercourse. Crl. Appeal No.323-SB of 2000 4
6. PW-2-Suman daughter of Mam Chand (prosecutrix) stated that the accused was her neighbourer. Accused/appellant started inducing her on the pret
