Amar Nath vs The State of Haryana

Gopal Singh, J.—This is an appeal by Amar Nath. He has been convicted u/s 366 of the Indian Penal Code and sentenced to rigorous imprisonment for two years and to pay a fine of Rs. 200 or in default of paynent of fine to further undergo rigorous imprisoment for three months Connected with the appeal in criminal revision No. 999 of 1990. That revision has been registered as a result of notice issued by Gujral J on November 4 1969 to the Appellant to show cause as to why is sentence should not be enhanced.

The facts of the prosecution case are as under:-

Tilak Raj Kumari is the prosecutrix. Her father is Sadhu Ram. The name of her mother is Smt. Bimla Devi. They reside at Jagadhri. On the date when the prosecution disappeared from the house of her parents, she was 12 or 13 years of age.

On June 30, 1968 at 8 a.m , she left the house of her parents. She got into a train at Jagadhari and reached Ambala Cantt Railway Station at 1 p.m. At the platform, she enquired from several military men as to whether she could be employed in the army. They told her that she was very young in age and could not be taken in the army. Being asked about the address of her father she declined to disclose the address.

The Appellant, who is Editor of newspaper called, ''Haryana Views'' issued both from Jagadhri and Delhi, was present at the platform at the time enquiries were being made by the girl. Finding that the girl was seeking employment and was not giving address of her parents, he represented to her that he had no daughter of his own and that he would take her to his own house and keep her there as his daughter. The girl agreed to the proposal

The Appellant made her to accompany him from Ambala Cantt. to Yamunauagar by train on that very day, it Yamunanagar she was made to stay by the Appellant In the house of a lady teacher Miss Saroj by name residing in the neighbourhood of the Appellant. She stayed there for 5 or 6 days. Thereafter, she was taken by the Appellant to Delhi. She stayed there in the house of the Appellant in Gandhi Nagar. Smt. Ram Rakhi wife of the Appellant also lived in that house.

6 After a stay of few days in Gandhi Nagar, the girl was taken by Smt. Ram Rakhi to Gaziabad She was made to stay there in a room of a hotel and offered for promiscuous sexual intercourse for Rs. 20 per customer. After stay of couple of days at Gaziabad, she returned to Gandhi Nagar and stayed in the house of the Appellant, Kranti Kumar son of the Appellant and the Appellant ravished her. She was also made available to other customers for sexual intercourse.

On September 20, 1968, Smt. Chameli Devi, who is a shopkeeper in Gandhi Nagar and also a social worker of Mohalla Sudhar Committee came to know that that young girl and other girls were being offered for sexual intercourse and prostitution was going on She contacted Ram Chander, Assistant Sub-Inspector of Police Station at Gandhi Nagar and informed him about the immoral traffic in girls going on. A raid was organised by Ram Chander and the girl was recovered from the house of the Appellant. The recovery of the girl was effected in the presence of Kartar Singh landlord of the Appellant, is whose house a room had been taken on rent by the Appellant for the purpose of keeping the girl for sexual intercourse. As the girl did not disclose the address of her parents, she was sent to the Nari Naketan at Delhi.

On September 23, 1968, news was published in the daily, ''Tej'' that a young girl of Ambala, Tilak Raj Kumari by name had been recovered at Delhi and that she had been given shelter in Nari Naketan at Delhi. Lehna Singh, Assistant Sub-Inspector of Police Station Jagadhri read this news. Report Exhibit P. D. had been lodged on July 12, 1968 by Sadhu Ram father of the girl against Neena maternal uncle. In brotherhood of the girl saying that she had disappeared with him. Taking Sadhu Ram with him, Lehna Singh reached Delhi. He made an application to the Court concerned for restoration of the girl from Nari Naketan. The girl accompaning her father and Lehna Singh, returned to Jagadhri.

In pursuance of the report made only July 12, 1968, investigation for the offence of abduction of the girl was taken in hand.

The Appellant was tried for offence u/s 366, Indian Penal Code The case of the proscution was supported by the testimony of Smt. Urmal Datta P.W. I, Dr. Mrs. S, Bhalla P.W. 2, Sadhu Ram P.W. 3, Jaswant Singh, Sub-Inspector P.W., 4, Jaipal Singh P.W. 5, Bimla Devi P.W. 6, Kartar Singh P.W. 7, Tilak Raj Kumari P.W. 8, Hari Krishan, Sub-Inspector P. W. 9, Samunder Singh, Assistant, Sub-Inspector P.W. 10, Ram Kishan Constable P. W. 11, Chameli Devi P.W. 12, Ram Chander, Assistant Sub-Inspector P.W. 13 and Lehna Singh, Assistant Sub-Inspector P.W. 14.

In his statement u/s 342 of the Criminal Procedure Code, the Appellant admitted that the girl met him at Ambala Cantt. Railway Station, that he took her from there to Yamunanagar and from Yamunanagar to Delhi and kept her with him till September 26, 1968, that while he was moving about with the girl in the bazar in Gandhi Nagar, he was taken on suspicion to the Police Station, Gandhi Nagar and a case was registered against him. He denied the other allegations, which the girl made against the Appellant He denied that the girl ever disclosed the address of her parents to him and the allegation that she had been subjected to sexual intercourse, by him, his son or by others. He added that it is on account of the ill-will and dis-pleasure of the police, which he came to incur because of certain articles written by him in his newspaper criticising adversely the conduct of the police.

Shri Baldev Kapoor, who appeared on behalf of the Appellant has contended that the conviction of the Appellant is unwarranted because of the essential ingredients of Section 366 read in conjunction with Section 361 of the Indian Penal Code having not been satisfied, that there is want of corroboration of the testimony of the prosecutrix and that she prior to her being kidnapped was accustomed to sexual intercourse.

The following three ingredients of Section 66 (sic) read in conjunction with Section 361 of the Indian Penal Code which, as the counsel for the Appellant argued, had not been satisfied:-

(i) A woman of less than 18 years enticed.

(ii) She must have been taken or enticed out of the keeping of her lawful guardian and

(iii) She must have been forced or seduced to illicit intercourse or the offender knew it to be likely that she would be forced or seduced to illicit intercourse

Under the first ingredient, the prosecution has to establish that the age of the girl is less than 18 years. Miss Urmal Dutta P. W. is the headmistress of Hindu Girls High School, Jagadhri. The girl was studying in 8th class in that school. She proved copy of her addmission form Exhibit P. A. That form is signed by Sadhu Ram P. W. father of the girl. Sadhu Ram addmitted that the original form had been signed by him The date of birth of the girl given in that form is August 8, 1956. Jai Pal Singh P.W. Clerk in the office of the Municipal Committee, Jagadhri placed on the record copy of entry pertaining to the girl marked Exhibit P.E. as reproduced from birth register mantained by the municipal committee. According to that entry, copy of which is placed on the record as Exhibit P. E., the girl was born on September 8, 1955. Sadhu Ram father of the girl and Smt Bimla Devi mother of the girl have proved that the date of birth of the girl given in exhibit P. E. as September 8, 1955 pertains to their daughter Tilak Raj Kumiri. There is no doubt that the age shown in the school admission form is more by one month but the date of birth of the girl as proved on the record and accepted by the trial Court, is September 8, 1985. There is no reason to doubt the correctness of the documentary evidence in the form of entry proved from the birth register pertaining to the girl especially when it is supported by the oral testimony of the parents of the girl. This evidence establishes that the girl on June 10, 1968 was 12 years. 9 months and 22 days old and far below the age of majority of 18 years.

The girl has herself stated that on June 30, 1968, her school was closed on account of summer vacation and that she left the house of her parents and reached the Railway Station, Ambala Cantt. There she began making enquiries from soldiers and army officers as to whether she could join the army. They told her that she was too young to be employed in the Army. As she had left the house of her parents without informing them, she felt hesitant to disclose the name of her lather and his address The Appellant was present at the Railway Station. He was listening to the querries which she was making from the members of the military personnal and also the replies she was receiving. He also noticed that she was not disclosing the name and address of her father. Judging from the conduct of the girl and finding that she was a helpless girl of tender age, he posed before her that he had no daughter and that he would take her in his house as his daughter and look after her. The girl, innocent and of tender age as she was, fell an easy prey to the temptation thrown to her by the Appellant. She agreed to the proposal of the Appellant. She accompanied him by train to Yamunanagar. She was left there in charge of Miss Saroj, a lady teacher residing in the neighbourhood of the place where the Appellant resides. The counsel for the Appellant argued that it was open to her to leave Miss Saroj and to proceed to the house of her father situate at a distance of 11/2 mile from the house of Miss Saroj. The girl has stated that her movements were being watched by Miss Saroj and also by the children with whom she played She has, in course of cross-examination, stated that as she had no money with her, she could not proceed in a tonga or by any other conveyance to the house of her father. After having been brought to Ambala City for a day or so, the Appellant took her to Chandni Chowk, Delhi. She was made to stay with one Krishna Devi. Krishna Devi was told in her presence by the Appellant that she had been adopted as bis daughter and that she would stay there for some time. There too her movements were restricted. On July 10, 1988. she was brought to Gandhi Nagar. She stayed there till July 14, 1968. She was under the watch and surveillance of Smt. Ram Rakhi wife of the Appellant. She was removed on July 15, 1968 to Shahdra. There she was made to stay with Smt. Prem wife of Kranti Kumar son of the Appellant. The Appellant told Prem in the presence of the girl that she has to keep the girl with her as she is to be subjected to illicit sexual intercourse and prostitution. Smt. Prem, however, being of a different kind and better behaved lady took exception to the suggestion and resented the proposal of the girl being used for prostitution. As a result of that resentment expressed and refusal to toe the line of wisnes of her father-in-law and her husband, Smt Prem was turned out of the house. On July 18, 1968, she was taken by Ram Rakhi to Gaziabad. A room in a hotel was hired and her person was sold for promiscuous intercourse with a customer for Rs. 20. After a stay of day or two, she was brought back from Gaziabad to Gandhi Nagar. From July 20, 1968 up to September 20, 1968, she continued staying in the house of the Appellant in Gandhi Nagar and was frequently subjected to sexual intercourse by customers tor the money offered by them and also by the Appellant and his son Kranti Kumar. The girl has clearly stated that she was anxious to leave the Appellant and his house but she was seldom allowed to leave the house of the Appellant and if she ever went out, she was accompaied either by the Appellant or by his son or by his wife Shrimati Ram Rakhi. She was constantly threatened that she would be had seen brought to Gandhi Nagar and she purposee for which she killed if she disclosed anything about the circumstances, under which she was being made to stay there. Like a dumb and helpless creature, she could not find any way out of the difficulty of her being confined to the house of the Appellant and the blasphemous behaviour of the Appellant and his son in continuing to subject her to sexual intercourse themselves and also of earning money by selling her person for commission of illicit intercourse by others with her.

She above fact have been proved by the convincing statement of the prosecutrix herself. She has given a consistent and detailed account of what transpired with her right from the time she slipped out of her parent''s house till the time she was recovered. The immoral traffic in that girl and other girls, which the Appellant and his son had been securing and keeping in their house, became well known to the residents of locality, in which that house is situate. In that locality, there was being run a shop of betel seller by Shrimati Chameli Devi P.W. She is a social worker. She is vice-President of the Mohalla Sudhar Committee. The matter was also braught to her notice. She contacted Ram Chander, Assistant Sub-Inspector of Police Station, Gandhi Nagar. He organised a raid to recover the girl in the presence of Kartar Singh P.W., who is the land lord of the house, in which the Appellant resided. The girl was recovered on September 20, 1968, As the girl was trightened of the Appellant and his son, she felt hesitant and declined to disclose the name of her father and his address. She was sent to Nari Naketan at Delhi. But for the item of news in daily ''Tej'' dated September 23, 1938, in which it was Stated that girl, Tilk Raj Kumari of Ambala had been recovered at Delhi and that she had b"en sent to Nari Naketan, the recovery of the girl would not have bean known to the police authorities and the parents of the girl at Jagadhri. Lehna Singh, Assistant Sub-Inspector of Police at Jagadhri read that news and sent for Sadhu Ram, who had lodged report Exhibit P.D. on July 12, 1968, stating that his daughter had been missing from his house since June 30,1968 and that he suspected that she might have disappeared with Neena her maternal uncle in brother-hood. Accompanied by Sadhu Ram, Lehna Singh reached there. After making application to the Court concerned, she was taken out of the Nari Naketan and restored to her father. Upon seeing her father, she readily expressed that she would go with him to his house.

The evidence of the prosecutrix and other witnesses referred to above has satisfactorily established that the girl had been enticed away by the Appellant from the railway station at Ambala Cantt on June 30, 1968 and recovered from the house of the Appellant in the presence of Kartar Singh, Ram Chander, Assistant Sub-Inspector and Shamati Chameli Devi P. Ws. These witnesses have no motive or grudge against the Appellant for falsely implicating him. It is stated by these witnesses that when they recovered the girl, she looked perturbed and terrified.

The Appellant has himself admitted that he took the girl from Ambala Cantt by representing that he wanted to adopt her as his daughter and that the girl was recovered from his custody on September 20, 1968 but contended that she had not been used for illicit sexual intercourse.

It was next argued that the second essential ingredient of the girl having been taken or enticed out of the keeping of her parents had not been proved. The age of the girl on June 30, 1968, when she was enticed by the Appellant to accompany him on the representation that she would be adopted as his daughter, was between 12 and 13 years. Sue is girl of a tender age. It appears that she suffered from hallucination of joining the array without realising that she was too young to be taken in the army. Even when the girl left her house under that hallucination she still continued to be in the guardianship of her parents, the moment she was told by the army men at the platform that she being too young to join the army, she must have been disillusioned. Under the impulsive and over-ambitious urge of joining the army without realising that she being a child of 12 or so could not join the army, she left the house. Under the circumstances, it could not be contended that simply because she had left the house of her parents under misconceived notion of her being able to join the army, she in any way ceased to be under the lawful guardianship of her parents. The Appellant exploited her innocence and helplessness and allured her with the suggestion of her being taken as his own daughter. If the Appellant seduced her from the railway plotform, he did so out of the keeping of the lawful guardianship of her parents. If a minor girl of tender age, like the prosecutrix, leaves voluntarily the house of her parents and strays out of the house, lawful guardianship of her parents still continues and if such a girl is enticed, she is enticed out of the custody of lawful guardian. The girl has thus been enticed by the Appellant out of the keeping of her lawful guardians, namely, her parents.

The third ingredient, upon which stress was laid, is that there is no evidence to show that the girl was enticed with the object of her being forced or seduced to illicit intercouse. There is no doubt that in the beginning for a fortnight or so, the Appellant did not disclose in the presence of the girl either to Miss Saroj or to Smt Krishna Devi that the girl had been enticed for seduction to illicit intercourse. When she was taken to Shahdara on July 15, 1968 to Smt. Prem wife of the son of the Appellant, the Appellant unfolded his sinster purpose for which he had designed to entice the girl. He told Smt. Prem that he wanted to leave the girl with her for her being exploited for prostitution. As Smt. Prem was a lady of a different order and believed in social and moral hygiene she took exception to the suggestion of her father-in-law and refused to keep the girl with her or to allow herself to be a party to the exploitation of the girl for illicit intercourse. The girl had to be brought back from Shahdra to Gandhi Nagar. It was there that for ll weeks or so that not only sexual intercourse was committed with her by the Appellant and his son but also the girl was used for promiscuous intercouse for hire. This was done to enable the Appellant to earn money by the sale of the person of awe-striken and tongue tied girl. The purpose, for which the girl had been forced or seduced by the Appellant was actually carried into effect by him, as is clear from the evidence of Kartar Singh and Smt. Chameli Devi P. Ws. The recovery of the girl in perplexed and terrified state of mind as deposed to by Ram Chander. Assistant Sub-Inspector and other witnesses, who were present at the time the girl was recovered, reinforces the fact that the girl was being kept for that purpose. The above facts and circumstances are persuasive for the inference that the girl had been enticed by the appelant in order that she be forced or seduced to illicit intercourse and, in any case, the Appellant enticed her knowing it to be likely that she would be forced or seduced to illicit intercourse. On the evidence led in the case, the third ingredient is also satisfied.

The evidence of the prosecutrix has the ring of truth. No contradiction worth the name has been pointed out, although she was subjected to lengthy and gruelling cross-examination. She gave a graphic picture of the agony from which she suffered at the hands of the Appellant although initially the Appellant, like a cunning and crafty person, took the girl to his house to live under its roof as his daughter. The Scrutiny of the evidence of the girl leaves no doubt about the truth of the facts deposed to by her. The circumstances under which the girl left the house of her parents have been proved by Sadhu Ram and Smt. Bimla Devi P. Ws. The circumstances, under which the girl was kept and used in Gandhi Nagar have been proved by the evidence of Kartar Singh and Smt. Chameli Devi P. Ws. The circumstantial evidence by these witnesses further corroborates the testimony of the girl, if any corroboration is at all called for.

There ii absolutely no evidence to show that the girl had, prior to her enticement by the Appellant, been subjected to sexual intercourse. Sadhu Ram lodged report on July 12, 1958 to the effect that the girl was found missing from the house and that he suspected that she had disappeared from his house in the company of Neena her maternal uncle in brotherhood. This statement of Sadhu Ram and so also of Smt Bimla Devi does not, in any way, imply that the girl had been subjected to sexual intercourse prior to her departure from her house. Simply because her parents in the beginning thought that the girl might have gone with Neena does not compel the conclusion that she had been subjected to illicit intercourse. In any case, on that score, the Appellant could not plead innocence for the abhorring conduct in which he indulged in enticing the girl with the object of forcing or seducing her to illicit intercouse.

Considering the gross type of misconduct and bestial behaviour of the Appellant in kidnapping an innocent young girl of tender age by deliberately and designedly mis-representing to her that he wanted to adopt her as his daughter and, thereafter, subjecting her to illicit intercourse, does not call for lenient sentence of rigorous imprisonment of two years. He was issued notice for enhancement of sentence. Having contested the case on merits against his conviction, the counsel was candid in the concession that if conviction is to be upheld, lenient Sentence is not called for. The Appellant has been sentenced to rigorous imprisonment for two years, The circumstances of the case fully warrant the enhancement of that sentence of imprisonment. The sentence of the Appellant is enhanced to rigorous imprisonment for four years and to a fine of Rs. 1`500. In default of payment of fine, he shall undergo further regorous imprisonment for six months. The fine, 11 recovered, will be awarded as compensation to the parents of the girl.

In the result, I disallow the appeal and maintain the conviction of the Appellant and allow the revision and enhance his sentence as indicated above.