Bhubender Parkash vs The State
1985 Latest Caselaw 52 Del

JUDGMENT

1. The appellant has been convicted of offences under section s 366 and 376, Indian Penal Code (for short 'IPC'), by an Additional Sessions Judge vide his judgment dated 31st July, 1982. He has been sentenced to rigorous imprisonment for three years on each count but both these sentences have been made to run concurrently. Feeling aggrieved he has come up in this appeal.

2. The prosecution case in brief is that at the relevant time viz. April, 1980, Harnam Singh, father of the prosecutrix Miss Mohina, was living on the ground floor of house No. 113, Street No. 7, Krishan Nagar (Safdarjang Enclave), as a tenant of Bhagwan Dass, father of the appellant. The landlord himself was residing in a portion of the first floor. One more tenant by the name of Gopal (co-accused of the appellant) was also occupying one room on the first floor of the house as a tenant. The prosecutrix-Mohina was then studying in 7th class in Govt. Senior Secondary School (Girls), Netaji Nagar and was about 12 years old. On the morning of 21st April, 1980, Mohina went to her school along with her elder sister who too was studying in the same school as usual. She had to appear in the annual examination for the 7th class. At about 10 a.m. she came out after finishing her paper. She found both the appellant and Gopal standing outside the gate of the school. They accosted her and told her that her father had met with an accident and she should a company them to see him. All of them then walked up to Shastri Market and from there an auto-rickshaw was hired by the accused and they took her to Inter-State Bus Terminal at Kashmere Gate. From there they took her to Ghaziabad in a bus. On that very night they boarded a train bound for Howrah. They threatened her not to talk to anybody on the way. On reaching Howrah they took her to the house of Gopal's sister at Kharda. The sister of Gopal enquired who she (i.e. prosecutrix) was. However, the accused told her that she was sister-in-law of the appellant and that they had brought her for site-seeing. The accused did not allow her to talk with Gopal's sister. On that very evening Gopal took her to the house of his brother. The appellant too accompanied them. Gopal's brother and his wife too enquired who she (i.e. prosecutrix) was and they replied that she was the appellant's brother's wife's sister. However, when both the accused were away she told bhabhi of Gopal that they had brought her there on the false pretext of her daddy meeting with an accident. When the brother of Gopal returned home he gave money to the accused telling them to leave the prosecutrix at the place from where they had brought her. Thereupon the accused persons left the house of Gopal's brother but instead of bringing her back to Delhi she was taken to a room behind Jesus and Mary School at Barrack Pore. They hired that room and kept her there for nearly four months. Both of them ravished the prosecutrix and they used to shut her in the house and close the door from outside whenever they went out. One day the appellant and Gopal fell out with each other and the appellant left that place. Thereafter, only Gopal kept the prosecutrix in the said room and used to rape her.

3. Harnam Singh, father of the prosecutrix, searched for her on 21st April, 1980 at various places including the house of their relatives. But unable to find her, he went to the Police Station at about 7 p.m. to lodge a report that she was missing. However, he was advised by the police to continue the search. Eventually at about 12 Noon on 22nd April, 1980 he lodged report at Police Station Vinay Nagar to the effect that his daughter Mohina aged about 12 years had been kidnapped by someone when she had gone to the school for examination on 21st April, 1980. However, Mohina could not be traced even thereafter for a long time.

4. On 17th August, 1980 the appellant was spotted at Delhi by the police. He was arrested and pursuant to the disclosure made by him, a police party headed by SI Amar Singh and comprising Head Constable Ganga Ram, two constables and Harnam Singh proceeded to Howrah along with the appellant. They reached Howrah on 21st August, 1980. From there they went to P.S. Barrack Pore on 22nd August, 1980 and joined ASI Jeevan Kumar Bose (P.W. 7) of that Police Station with them. The appellant then led the police party to quarter bearing No. 57, Riverside Road, Barrack Pore, which was behind Jesus and Mary Convent School. He pointed towards a room, the door of which was ajar. The police party went inside the room and found the prosecutrix and Gopal, co-accused of the appellant present in that room. Recovery memo Ex. PG/1 was prepared accordingly. It was, inter alia, attested by ASI Jeewan Kumar Bose and one Davinder Singh, resident of adjacent quarter. The police party arrested both the accused and produced them along with the prosecutrix before the Magistrate at Barrack Pore on the next following day. After obtaining permission of the said Magistrate they brought the accused persons and the prosecutrix to Delhi. The prosecutrix was got medically examined on 29th August, 1980. The appellant and his co-accused too were got medically examined and on completion of investigation a challan was put in under section s 366 and 376, IPC against both the accused.

5. The prosecutrix has unfolded the prosecution narration at length as P.W. 4. She has corroborated the prosecution version in all respects stating how she was taken to Howrah by the accused on the false pretext that her father had met with an accident. Significantly her testimony regarding her being taken to the houses of Gopal's sister and Gopal's brother at Calcutta was allowed to go unchallenged. She, inter alia, deposed that after she was taken to the room behind Jesus and Mary School both the accused used to subject her to rape whenever they got an opportunity. In her own words, "when Gopal used to be away, Sunder used to commit rape on her and when Sunder used to be away Gopal used to ravish her and whenever they left the house, they used to shut her in and close the door from outside. One day Sunder and Gopal fell out with each other and Sunder left but even thereafter Gopal subjected her to rape a number of times." She has also deposed to the circumstances under which she was rescued by the police party on 22nd August, 1980.

6. The learned counsel for the appellant has canvassed vigorously that he has been falsely implicated in this case because of the strained relations between the father of the prosecutrix and the father of the appellant as the former had not paid rent to the latter for eleven months and he vacated the portion in his tenancy only on 4th January, 1981 after complaint Ex. DW1/A dated 27th December, 1980 to that effect had been lodged by the father of the appellant at the Police Station. Moreover, the contention raised by the appellant's counsel is that the circumstances of the case eloquently vouch that the prosecutrix accompanied the accused persons of her own accord. She did not raise an alarm at any stage right from the time she was allegedly taken away from the school until her recovery after the lapse of nearly four months on 22nd August, 1980. She never complained to anyone on the way or even at Barrack Pore about her having been fraudulently taken and raped by the accused persons. He has also drawn my attention in this context to the testimony of Dr. Kaushalya Kumari (P.W. 1) who had examined her on 29th August, 1980. According to her, on local examination of the prosecutrix she found :-

"hymen absent, vagina patulous, uterus extroverted normal in size. Furnaces free. No bleeding per-baginum."

7. Her impression was that the patient had intercourse many a time. Thus the argument advanced is that she had been having sexual intercourse with Gopal quite frequently and must be a willing party to the same. As for the appellant, it is urged that apart from the bald statement of the prosecutrix there is no iota of evidence on the record to warrant the conclusion that he too would have subjected her to rape.

8. On a consideration of the entire evidence on record, I am unable to persuade myself to draw the conclusion from the foregoing circumstances that the prosecutrix was a consenting party to the sexual intercourse with the appellant. The learned Additional Sessions Judge has elaborately discussed the entire evidence on the record having a bearing on this aspect of the matter and I need not dilate upon it again. She has rightly concluded that prosecutrix was duped by the accused persons and taken to Howrah, being a hapless victim of their manoeuvring. She was just a school going girl of tender years and as such she could not possibly exercise her discretion to accompany the accused persons of her own free will. It may further be borne in mind that in the instant case the prosecutrix was kept by the accused persons for a long period of about four months and she was repeatedly subjected to rape before she was rescued by the police party. Hence, there could be hardly any possibility of fresh injury to her private parts being detected after the lapse of such a long time. So, nothing turns on this circumstance. Submission is not necessarily consent.

9. That apart, as shall be presently seen, the question of consent is wholly irrelevant in this case because she was certainly below 16 years of age at the relevant time. Clause fifthly of Section 375, IPC which defines 'rape' clearly provides that no question of consent arises in a case where the victim of rape is under 16 years of age. Reference in this context may be made to Harpal Singh v. State of Himachal Pradesh, , in which emphasis was laid on the circumstances that no injury was detected on the private part of the girl and that she was found to have been used to sexual intercourse. Repelling the contention that it was a case of sexual intercourse by consent, their Lordships observed that (Para 2 of Cri LJ) :

"This argument will be of no avail to the appellants if once it is proved that the girl was below 16 years of age, because in that case the question of consent becomes wholly irrelevant."

10. As for the alleged motive for false implication by the appellant, suffice it to say that only the current rent was due from the father of the prosecutrix when she was seduced by the accused persons on 21st April, 1980. So, the strained relationship between the father of the prosecutrix and father of the appellant could not possibly be a motivation on the part of the prosecutrix to falsely rope in the appellant. Indeed, a girl of tender years like the prosecutrix can hardly be expected to foist a false charge on an innocent person merely because her father had not paid rent to his landlord for a few months. As said by the Supreme Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 SCC (Cri) 728 : (1983 Cri LJ 1096 at p. 1100) :

"If the evidence of the victim does not suffer from any basic infirmity, and the 'probabilities factor' does not render it unworthy of credence, as a general rule, corroboration cannot be insisted upon, except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. This rule is subject to the qualification that corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation; or when the 'probabilities factor' is found to be out of tune."

Their Lordships further observed :

"Rarely will a girl or a woman in India make false allegations of sexual assault due to various psycho-social factors. And when in the face of those factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated."

11. The probability factor in the instant case is reinforced in favor of the prosecution version, once it is borne in mind that the prosecutrix was recovered at the instance of the appellant who led the police party to the room where she had been kept by his co-accused Gopal. Even in the absence of proof of disclosure statement which unfortunately could not be put into evidence because of the death of the Investigating Officer SI Amar Singh, the conduct of the appellant in leading the police party to the room of his co-accused Gopal at Barrack Pore and pointing out the same would be admissible under section 8, Evidence Act as conduct of the accused. This fact is amply proved by the evidence of the prosecutrix, ASI Jeewan Kumar Bose and Head Constable Ganga Ram, who was a member of the police party. Reference in this context may be made to Himachal Pradesh Administration v. Om Parkash, , in which it was observed (at p. 616 of Cri LJ) :

"But even apart from the admissibility of the information under Section 27, the evidence of the Investigating Officer and the facts that the accused had taken them to PW 11 and pointed him out as corroborated by PW 11 himself would be admissible under section 8 of the Evidence Act as conduct of the accused."

12. In the said case Ganga Singh (PW 11) had allegedly sold the weapon of offence to the accused. The instant case stands on a much better footing for the prosecution inasmuch as pursuant to the information given by the appellant the prosecutrix was recovered from custody of his co-accused Gopal. Hence, I find no cogent reason to take a view different from that of the trial Court regarding the factum of kidnapping and rape of the prosecutrix by the appellant and his co-accused Gopal.

13. That brings me to more important question of age of the prosecutrix which, as observed earlier, has a vital bearing on the question of consent. The father of the prosecutrix who is employed as a senior store keeper, Ordnance Depot, Delhi Cantt., has deposed in categorical terms that Mohina prosecutor is his second daughter and her date of birth is 10th July, 1968. This is precisely the date of birth which he stated in the school admission forms at the time of Mohina's admission to primary school as well as senior secondary school. PW 5 Shri S. S. Kaushik is the Head Master, Non-Graded Experimental School, Netaji Nagar. He deposed that Mohina was admitted to the said school in the first standard on 25th July, 1973 and the date of birth as given in the admission form which had been filled up by her father was 10th July, 1968. During cross-examination he explained that they did not ask for the birth certificate of the child at that time. Similarly Shri Vinod Kumar Bali (P.W. 8) who is laboratory assistant in Govt. Senior Secondary School (Girls), Netaji Nagar, has deposed that Mohina was admitted to their school in the sixth class on 16th May, 1978 and the date of birth as entered in the admission form as well as in the school register was 10th July, 1968. It may be noticed that a suggestion was made to Harnam Singh that originally he had given 10th July, 1965 as the date of birth of the prosecutrix in the admission form but subsequently the year "65" was changed to year "68" at the instance of police. While refuting the suggestion the witness asserted that his marriage itself had taken place in the year 1965 and it was only in 1966 that the marriage was consummated and thereafter his first daughter who was elder to the prosecutrix by one year was born. He further explained that at the time of the birth of Mohina he was living at a place in District Ropar (Punjab) and he was not aware whether her birth was duly registered in official records or not. There is absolutely no reason to doubt the veracity of his testimony on this point especially when it finds ample corroboration from the relevant records of both the schools adverted to above. Hence, there can be no manner of doubt that the prosecutrix was just 12 years old at the time of this unfortunate occurrence. Pertinently even the testimony of the Radiologist Dr. Y. Singh (P.W. 2) lends support to the aforesaid evidence. According to him, the ski grams of the prosecutrix taken by him on 29th August, 1980 revealed that all the epiphyses around right elbow had fused, but epiphyses around the right shoulder and right wrist had not fused suggesting bony age of the prosecutrix to be above fourteen and below sixteen years. Thus he has categorically ruled out the possibility of her age being 16 years or more. Since ossification test is not a sure test for determining the age of a person and it has at lest corroborative value, there is no reason to doubt the testimony of the father of the prosecutrix, as observed above.

14. To sum up, therefore, the conclusion is irresistible that the prosecutrix was below 16 years of age when she was taken away by the appellant and his co-accused and subjected to rape in April, 1980 onwards. Hence, her consent is wholly irrelevant either for determining offence under section 366 or under section 376, IPC of which the appellant has been convicted. Under the circumstances, the conviction of the appellant for both the offences being well founded is maintained. Even the sentence awarded is not harsh or excessive. Consequently, this appeal is dismissed.

15. Appeal dismissed.