Dewan Singh vs The State
1998 Latest Caselaw 509 Del

ORDER

Dalveer Bhandari, J.

1. This appeal is directed against the judgment of the learned Additional Sessions Judge by which the appellant has been convicted under Sections 376, 366 and 363 IPC.

2. Brief facts of the case are recapitulated as under:

Pradeep Kumar filed a complaint to the SHO, Police Station, Civil Lines, Delhi on 16.11.19975 in which he mentioned that on 15.11.1975 his sister Arunima Saxena aged 15/16 years had gone to Balak Ram Hospital to bring medicine but did not return. On 15th November, 1975 his elder brother Mukesh Kumar had lodged a report with the Police Station that his sister is not traceable. It is mentioned that on search they came to know that one Dewan Singh who was known to the family and had been working in Khyber Pass near the Petrol Pump was also missing from his house during the same period. It is further mentioned that Dewan Singh had been roaming about near his house for a few days. The complainant had an apprehension that his sister Arunima had been kidnapped by Dewan Singh. After the investigation, a case was registered against Dewan Singh. He was arrested near the Khyber Pass. On the basis of the statement made by Dewan Singh Arunima was traced out in the village Pillanji in the presence of Badley and Chhotay. S.I. Sham Lal recorded Arunima's statement in which she stated that Dewan Singh met her outside Balak Ram Hospital at about 10:00 a.m. and informed her that her brother Rakesh had met with an accident and on that pretext took her to village Pillanji and had threatened her. She further stated that at Pillanji the accused had forcibly committed sexual intercourse with her. She was traced from the village Pillanji by the police on 16.11.1975. Apart from the medical examination the prosecutrix was also examined by a Radiologist. According to the Radiologist, she was above 15 years and below 16 years of age at the time of commission of the offence. The prosecution examined 18 witnesses to strengthen its case.

3. The appellant in his statement under Section 313 Cr.P.C.denied having sexual intercourse with the prosecutrix in a room at village Pillanji. The appellant stated that he has been falsely implicated in this case. The prosecutrix's parents insisted that the appellant should marry her but he refused to marry her because she had a bad reputation in the locality.

4. Mr. Arvind Chadha, the learned counsel for the appellant seriously made an attempt to demonstrate that the appellant's conviction under section 376 I.P.C. is not sustainable because the prosecutrix was a consenting party. He had taken me through the entire evidence to establish that the consent of the prosecutrix in this case is writ large. Admittedly the prosecutrix had known the accused for quite some time because he used to visit her house.

5. The prosecutrix PW-5, Arunima in her statement had stated that she had gone to Balak Ram Hospital to take medicine at 10:00 a.m. on 15.11.1975. On the way, the appellant met her and informed that her brother Rakesh met with an accident and that she was called by him. The appellant took the prosecutrix to village Pillanji on a scooter. They roamed about on the scooter and reached village Pillanji at about 1:00 p.m. There the appellant informed her that his friend resides in that village who knows about her brother Rakesh and he would come there by 5:00 p.m. He kept her in village Pillanji uptil 5:00 p.m. but the appellant's friend did not come by 5:00 p.m. and thereafter he had taken her to a room in village Pillanji and threatened her in that room that he would tell her parents that he had kidnapped her. The accused had sexual intercourse with her during that night. In the morning, the accused had gone to his sister's house which was there in the same village. Immediately, after sometime appellant's sister came to that very room in the morning. The prosecutrix remained with the sister of the accused for quite sometime. The prosecutrix did not either mention the fact of forcible intercourse with her by the accused or had shown her anxiety to return her home.

6. The learned counsel for the appellant submitted that even assuming she had any explanation for not showing her anxiety to go home up to 5:00 p.m. but when the friend of the accused did not turn up even by 5:00 p.m. and thereafter she was taken to a room in village Pillanji. Even after 5:00 p.m. she did not even ask the accused that she wanted to go to her house to see her brother who had allegedly met with an accident. Furthermore the Prosecutrix was kept in the room for the whole night and next day when the accused's sister came she did not mention even a word to her about the incident. At no place or at no point of time the prosecutrix had shown her anxiety to go to her house particularly when her brother had met with an accident on that very day. The entire conduct and behaviour of the prosecutrix during the relevant period clearly reveal that she had known the accused for a long time and she was a consenting party. According to the learned counsel on the basis of evidence on record no offence under Section 376 I.P.C. is made out against the accused/appellant.

7. The learned counsel for the appellant placed reliance on Mahla Ram Vs. The Crown AIR 1924 Lahore 699; to demonstrate that in the entire incident there has been no resistance by the prosecutrix and the evidence of resistance would have important bearing in a case under section 376 I.P.C. The relevant portion of the judgment is reproduced as under:

"In a case under Section 376 IPC the first and foremost circumstance that can be looked for in case of this kind is that the evidence of resistance which one would naturally expect from the woman unwilling to yield to a sexual intercourse forced upon her.

8. Dr. (Mrs.) Suresh Singh who had conducted the medical examination of the prosecutrix mentioned that she noticed old torn hymen. She has also mentioned that there is no sign of external injury anywhere.

9. It was submitted by the learned counsel that in this case there was no resistance whatsoever on the part of the prosecutrix, otherwise it would have ordinarily reflected in the medical examination. According to the learned counsel for the appellant apart from the testimony of the prosecutrix the medical examination of the prosecutrix cumulatively demonstrate that the prosecutrix was a consenting party in the entire episode and consequently the conviction of the appellant under Section 376 IPC cannot be sustained.

10. The learned counsel for the appellant also placed reliance on Mantu and others Vs. State of Orissa Crl. L. J. 1981 NOC 37 (Orissa). In this case, there were allegations of forcible rape successively by 5 persons. According to the doctor's report, there was no sign of forcible intercourse or visible injuries on person of victim of girl. As per statement of the doctor the prosecutrix was habituated to sexual intercourse, cohabitation and there were discrepancies in the evidence of the prosecution witnesses. Therefore, conviction of the appellant could not be sustained and needs to be set aside.

11. The learned counsel placed reliance on Sarwan Singh Rattan Singh Vs. State of Punjab; 1957 SC 637 and had invited my attention to particularly para 12 where the Court has given emphasis that conviction can be based only when there is reliable and unimpeachable evidence which is clearly missing in this case.

"It is no doubt a matter of regret that a foul cold blooded and cruel murder like the present should go unpunished. It may be as Mr. Gopal Singh strenuously urged before us that there is an element of truth in the prosecution story against both the appellants. Mr. Gopal Singh contended that, considered as a whole, the prosecution story may be true but between may be true and must be true there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence."

12. On consideration of entire evidence on record it can be safely concluded that the prosecution has failed to produce legally reliable and unimpeachable evidence to demonstrate that the prosecutrix was not a consenting party and consequently the conviction of the appellant under section 376 I.P.C. is accordingly set-aside.

13. In view of this finding the prosecutrix's age at the time of the incident acquires great significance. According to the learned counsel for the appellant the prosecutrix was above 16 years of age at the time of the incident and the appellant did not have sexual intercourse with the prosecutrix without her consent.

14. The question of age of the prosecutrix is always extremely important in the cases under section 376 I.P.C. According to the mother of the prosecutrix, Sushila PW-8, her age at the time of the incident was around 16 years at the time of incident. According to the Radiologist, she was above the age of 15 and less than 16 years. As per PW-12, Smt. Pushpa Sharma, Acting Headmistress of M.C. Primary School, Lancer Road, Delhi stated that according to her date of birth recorded in the School is 14.8.1962. The prosecutrix Arunima herself gave her age as 15 years. In view of the inconsistant and conflicting statements, about the age of the prosecutrix the report of the Radiologist acquires greater importance and significance. According to the Radiologist she was above 15 years and less than 16 years of age. In case the girl is above 16 years then the entire complexion of the case changes. In this case, neither the prosecutrix nor her mother had given the exact age. There is no entry of her birth in any government offices.

15. In Ram Murti Vs. State of Haryana; the Court held that :

"The question of age of the prosecutrix in cases under Sections 366 and 376, I.P.C. is always of importance. It was particularly so in this case because according to the medical evidence the prosecutrix was found to have been used to sexual intercourse and the rupture of the hymen was old. The High Court having acquitted the appellant for an offence under Section 376 IPC, because the prosecutrix appeared to be a consenting party not only to the impugned acts of sexual intercourse in question but even on earlier occasions, it was, in our opinion, a fit case in which that court should have examined the question of her age more closely. On the evidence on the record we are far from satisfied that there is any trustworthy evidence on the record on which the conclusion that Satnam Kaur, prosecutrix, was under 18 years of age in March, 1965 can safely be founded."

16. In Raunki Saroop Vs. State; it has been held that the medical opinion based on X-ray report should be preferred to oral evidence. In this case, PW-2, Dr. J.R. Dass, Radiologist stated that after examining Elbo joints, Wrist joints, Shoulder Joints and Knee Joint he has opined that Arunima was over 15 years but less than 16 years. The learned counsel for the petitioner submitted that the margin or error in the Radiologist's examination is two years on either side. He also submitted that according to settled principle of criminal jurisprudence, the accused must get benefit of doubt in any circumstances. Therefore, when the benefit as prayed is extended to the prosecutrix then she becomes 17 to 18 years of age at the time of the incident.

17. Mr. Arvind Chadha, the learned counsel for the petitioner placed reliance on Jaya Mala Vs. Home Secretary, Govt. of J & K. AIR 1982 SC 1296 to support his argument. In this case their lordships of the Supreme Court have opined that there can be two years' margin either way in radiological examination. The relevant portion of the judgment is reproduced :

"...it is notorious and one can take juridical notice that the margin of error in age ascertained by radiological examination is two years on either side..."

18. Mr. Chadha also placed reliance on Harendra Narain Singh Vs. State of Bihar; . In this judgment, their lordships of the Supreme Court had reiterated the well known principle of the criminal jurisprudence law that :

"...The basic rule of criminal jurisprudence is that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the court should adopt the latter view favourable to the accused..."

19. Mr. Chadha submitted that this case is purely based on circumstantial evidence because the margin of error in the age ascertained by the radiological examination is two years and that benefit must be given to the accused.

20. The learned counsel for the appellant primarily submitted that on the basis of entire ocular evidence and other evidence it is clearly established that the prosecutrix was above 16 years of age. Even if the Radiologist has given her age as more than 15 years and less than 16 years and there can be variation of two years on either side, in that event, the benefit has to be given to the accused and if the principle to construe radiological examination is applied, the age of prosecutrix must be construed to be between 17 and 18 years of age at the time of the incident. The learned counsel for the appellant submitted that even other evidence on record including the evidence of Sushila, the mother of prosecutrix it is quite evident that she was above 16 years of age at the time of incident. On the basis of entire evidence on record and on the basis of law as declared by the Supreme Court regarding giving benefit to the accused it cannot be held that the prosecutrix was a minor at the time of the incident.

21. Mr. Chadha also placed reliance on the full bench judgment of Goa, namely, Data Xiva Naique Desai and another Vs. The State; AIR 1967 Goa, Daman and Diu 4. Full Bench in this case also reiterated well known principles of the criminal jurisprudence which are reproduced as under:

"The learned Judge would be well advised to observe the following general rules when he is dealing with the serious question of the guilt or innocence of persons charged with crime: (1) The onus of proving everything essential to the establishment of the charge against the accused lies on the prosecution; (ii) The evidence must be such as to exclude to a moral certainty every reasonable doubt of the guilt of the accused; (iii) In matter of doubt it is safer to acquit than to condemn; for it is between that several guilty persons should escape than that one innocent person suffer; and (iv) The hypothesis of delinquency should be consistent with all the facts proved."

22. It has been analysed in one preceeding paragraphs that even according to the statement of prosecutrix, it is abundantly clear that it was clearly a case where the prosecutrix was a consenting party. The number of circumstances which have been explained above, cumulatively, lead to the only hypothesis and conclusion that the consent of the prosecutrix was writ large in this case. In view of this conclusion the conviction of the appellant under Section 376 IPC cannot be sustained and consequently the appellant's conviction under section 376 I.P.C. is set aside.

23. After the appellant has been acquitted under section 376 I.P.C. the question arises whether the appellant's conviction under Sections 366 and 363 I.P.C. can still survive? Careful scrutiny of the entire evidence on record clearly shows that even after giving the benefit of two years' to the accused even from the report of the Radiologist the prosecutrix was certainly below 18 years of age at the time of the incident. Under Sections 366 and 363 I.P.C. the consent of the prosecutrix becomes irrelevant in a case in which the prosecutrix was below 18 years of age at the time of the incident. In this view of the legal position, the appellant was clearly guilty under Section 366 and 363 IPC and no fault or infirmity can be found with the impugned judgment of the learned Additional Sessions Judge so far as the appellant's conviction under section 366 and 363 I.P.C. are concerned.

24. Now, the crucial question of sentence of imprisonment arises and has to be determined. The appellant admittedly had undergone more than 1-1/2 years of imprisonment out of the two years' period of imprisonment under Section 366 and one year under Section 363 IPC. The question which arises is whether the appellant should be sent behind the bars to serve out the remaining sentence of imprisonment of a few months after 24 years of the incident.

25. Their Lordships of the Supreme Court in the case of B.G.Goswami Vs. Delhi Administration, 1973 SCC (Crl) 796, observed as under:-

"Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence; it is also designed to reform the offender and reclaim him as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent and punitive aspects of punishment thus play their due part in judicial thinking while determining the question. In modern civilised societies, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentence both lose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal. In the present case, after weighing the considerations already noticed by us and the fact that to send the appellant back to jail now after seven years of the agony and harassment of these proceedings when he is also going to lose his job and has to earn a living for himself and for his family members and for those dependent on him, we feel that it would meet the ends of justice if we reduce the sentence of imprisonment to that already undergone but increase the sentence of fine from Rs.200/- to Rs.400/-. Period of imprisonment in case of default will remain the same."

This case has been followed in number of subsequent judgments by the Supreme Court and various other courts. In the instant case, the incident had taken place about 24 years ago. The appellant has undergone the rigmarole of a criminal trial and trauma of criminal proceedings for almost 24 years. He has already served more than one and half year of sentence out of a total sentence of two years. In view of my conclusions, the conviction of the appellant under section 376 I.P.C. has already been set aside. In my considered opinion in the instant case the ends of justice shall be met by upholding the conviction of the appellant, under section 366 and 363 I.P.C., however, the sentence of imprisonment is reduced to the period already undergone.

26. Before I part with this case I would like to place on record my deep sense of appreciation for very able assistance provided by Mr. Arvind Chadha, the learned counsel for the appellant. The appeal is partly allowed and disposed of.