Anil vs State of Haryana

Paramjit Singh Patwalia, J.—The genesis of factual matrix lies in alleged run away marriage between appellant and prosecutrix (name withheld) which ended up in registration of an FIR under Sections 363, 366 and 376 of the Indian Penal Code (in short ''IPC''), at Police Station Civil Lines, Hisar. The appellant was tried by learned Additional Sessions Judge, Hisar for the aforesaid offences and ultimately trial ended in conviction and sentence of the appellant vide judgment of conviction dated 13.02.2003 and order of sentence dated 15.02.2003, respectively, for committing the offences of compelling for marriage and rape. Rape is universally considered as moral and physical reprehensible crime in the society. It is an assault on the body, mind, privacy and entire fabric of the prosecutrix. Rape is a crime of violence and violation of privacy. It is often said that a woman who is raped, undergoes two crisis i.e. the rape and the subsequent trial in Court. Vulnerable and feeble victim of rape is humiliated and her dignity is shredded by the society. Because of the societal stigma attached to the crime, many a times such crime would go unreported by the victim in order to escape the repercussions. Instant case is also one of such cases wherein appellant has been convicted and sentenced as under:

All the sentences have been ordered to run concurrently.

The factual matrix on which the prosecution version is found is to the effect that on 04.05.2002, when Sub Inspector Ramesh Kumar along with police officials was present at Dabra Chowk, Hisar, complainant-Sher Singh, father of prosecutrix, met him and moved application Ex.PE to the effect that his daughter, aged about 13 years, used to work in a Kothi of Sector-13, Hisar. On 28.04.2002, at about 7.00 A.M, his daughter went to that Kothi for work, but did not return. He has a suspicion that Anil son of Satbir, who is brother-in-law of prosecutrix in relation and doing the work of white-washing and used to visit their house, has taken his daughter on the pretext of marriage. On this application, endorsement Ex.PE/1 was made and FIR Ex.PE/2 was recorded by Sub Inspector Hukam Chand under Sections 363 and 366 ''IPC''. On 06.05.2002, Kashmira and Satbir produced Anil and prosecutrix before the investigating officer. Anil was arrested and prosecutrix was sent for medico-legal examination, vide application Ex.PM. The prosecutrix opposed ossification test by saying that she was aged 18 years, however, she was found to be between 15 � to 17 years of age after the X-ray/examination report and then she was medico- legally examined by the doctor. The doctor after examination handed over clothes, bottle of swabs to the police officials. The appellant- accused-Anil was also got medico-legally examined, vide report Ex.PG. The underwear of accused-Anil was also taken into possession and handed over to the police officials. Statements of witnesses were recorded. Site plan was prepared. After completion of investigation, challan was presented under Sections 363, 366 and 376 of ''IPC'' in the Court of Chief Judicial Magistrate, who vide order dated 02.07.2002, committed the case to the Court of Session. Thereafter, the case was entrusted to learned Additional Sessions Judge, who framed charges under Sections 366 and 376 of ''IPC'', to which the accused-appellant did not plead guilty and claimed trial.

To prove its case, prosecution examined PW 1 Dr. R.P.Singal, PW 2 Dr. Suman Menon, PW 3 Kavita, PW 4 Sher Singh-complainant, PW 5 Salochna, PW 6 Dr. Bhoop Singh, PW 7 MHC Shiv Kumar, PW 8 Constable Surinder Singh, PW 9 Subhash Chander, draftsman and PW 10 Ramesh Kumar Thakral, investigating officer. In documentary evidence, the prosecution relied upon Ex.PA report of Dr. R.P.Singal, Ex.PA/1 to Ex.PA/3 X-ray films, Ex.PB application moved by the police for obtaining age certificate, Ex.PC carbon copy of police request, Ex.PD MLR, Ex.PE application moved by Sher Singh-complainant, Ex.PE/1 Endst. on Ex.PE, Ex.PE/2 F.I.R, Ex.PF memo of recovery of girl, Ex.PG MLR of accused, Ex.PH police request for MLR of accused, Ex.PI affidavit of MHC Shiv Kumar, Ex.PJ affidavit of Constable Suresh Kumar, Ex.PK scaled site plan, Ex.PL notice of arrest, Ex.PM application for medical, Ex.PN recovery memo of clothes, Ex.PO recovery memo of underwear, Ex.PP rough site plan, Ex.PQ FSL report.

Statement of the accused was recorded u/s 313 Cr.P.C. The accused denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. However, no evidence in defence was led by the accused- appellant.

The trial Court after conclusion of trial convicted and sentenced the appellant as aforesaid. Hence, this appeal.

It is expedient to have a bird''s eye view of the relevant prosecution witnesses hereunder:

(i) Dr. R.P.Singal, Radiologist, Civil Hospital, Hisar was produced by the prosecution as PW 1. He had conducted X-ray examination of prosecutrix (PW 3) in order to determine her age. According to his testimony, multiple X-rays of various parts of her body were taken and on the basis of reports thereof, he had opined that age of prosecutrix was between 15� years to 17 years. He had proved his report Ex.PA, X-ray films Ex.PA/1 to Ex.PA/3 and copy of police request Ex.PB.

(ii) Dr. Suman Menon, Civil Hospital, Hisar, was examined by the prosecution as PW 2. She had medico-legally examined the prosecutrix and found that on separating labia, hymen was found torn and healed; vagina admitted two fingers easily; uterus was anteverted and small in size; menstrual blood was present. She had proved the police request Ex.PC and MLR Ex.PD.

(iii) The prosecution then examined prosecutrix as PW 3. She affirmed the factual position expressed by her father-Sher Singh (PW 4) in his complaint dated 04.05.2002 (Ex.PE). In sum and substance, she asserted that the accused was living in the first floor of her house and he is married to her aunt''s (Bua) daughter. He used to visit her house and on 28.04.2002, in noon, he had come to her room and committed rape upon her against her wishes. Thereafter, he had asked her to come to Sector-15 at about 1.30 P.M. on the next day. She went there on the next date and he took her to Lajwana village where they remained for four days and he committed rape upon her. Thereafter, the accused took her to Kaithal where he again committed rape upon her against her wishes.

(iv) Sher Singh, father of prosecutrix, was produced by the prosecution as PW 4. He stated that the accused was residing in the first floor of the nearby house. On 28.04.2002, the accused had taken away his daughter. On 29.04.2002, he had approached the police station for reporting the matter to the police and disclosed that Anil had taken away his daughter. He also proved the application Ex.PE. He stated that age of her daughter was about 15 years.

(v) Salochana, mother of prosecutrix, was produced by the prosecution as PW 5. According to her deposition, the accused was residing in their neighbourhood. On 28.04.2002, the accused took away her minor daughter.

(vi) The prosecution then examined Dr. Bhoop Singh Khatri, Medical Officer, General Hospital, Hisar as PW 6. According to his deposition, the accused-appellant was capable of sexual intercourse.

I have heard the learned counsel for the parties and perused the record.

This appeal concerns three points for determination which are as under:

(i) Whether delay in lodging the FIR to police in the present case of kidnapping and rape is fatal to the case of prosecution?

(ii) Was the prosecutrix less than 16 years of age at the time of incident?

(iii) If so, whether appellant had the requisite mens rea, when he engaged in alleged consensual sexual intercourse with prosecutrix, a girl under the age of years?

Learned counsel for the appellant-accused vehemently contended that there is a considerable delay of seven-eight days in lodging the FIR. As per the prosecution version, the prosecutrix left the home on 28.04.2002 at about 7.00 A.M. However, the prosecutrix deposed that the appellant came on 28.04.2002 at about 12.00 noon and committed rape upon her and she was asked to come in Sector-15 at 1.30 P.M on the next day from where she was taken to Lajwana on 29.04.2002. There is no evidence on record where the prosecutrix remained from 28.04.2002 to 29.04.2002.

Learned counsel for the appellant further contended that trial Court has gravely erred in holding the age of prosecutrix as less than 16 years and ignored the vital evidence from which it is clear that she was more than 18 years of age at the time of alleged occurrence. Learned counsel further contended that the prosecutrix had refused to get herself medico-legally examined and claimed to be 18 years of age. The medico-legal and radiological examination do not determine the exact age and even PW 1 Dr. R.P.Singal admitted in his cross-examination that prosecutrix can be 18 years old, although in his report, he mentioned her age as 15�-17 years. The trial Court wrongly relied upon the statements of father and mother of the prosecutrix.

Learned counsel for the appellant-accused further vehemently contended that prosecutrix during her cross-examination had admitted that appellant-accused had taken her to village Lajwana where his aunt (Bua) resides. They had remained there for four days. Thereafter, she was taken to Kaithal to the house of another aunt (Bua) of the appellant and they had stayed there for 5-6 days. Learned counsel further contended that both the houses of relatives of appellant are located in densely populated area and surrounded with many houses. Learned counsel further contended that prosecutrix had travelled by bus, but she had not told anyone in the way. There were ample opportunities for the prosecutrix to raise alarm and report the matter to the persons in the bus and family members where the appellant had taken her. She never protested as she was having a soft corner for him, therefore, the sexual intercourse between the prosecutrix and appellant was purely consensual. The trial Court has erred in ignoring the medical evidence of PW 2 Dr. Suman Menon, who medico-legally examined the prosecutrix. PW 2 stated that there was no injury on the person of prosecutrix; hymen was torn and healed, the prosecutrix was not raped afresh and vagina admitted two fingers easily. PW 2 Dr. Suman Menon also stated that the prosecutrix was habitual to have intercourse. Learned counsel further contended that the prosecutrix had stayed at various places and travelled by bus with the appellant, therefore, the prosecutrix was a consenting party to the act of the accused. There is nothing on file to indicate that she was incapable of understanding the nature and implication of the act of the accused for which she consented to. The inference can be drawn that the sexual intercourse was with the consent of prosecutrix. There are material contradictions in oral as well as documentary evidence. The entire prosecution story is surrounded with suspicion.

Per contra, learned State counsel vehemently opposed the contentions of learned counsel for the appellant and contended that delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution story. On this sole ground, prosecution''s case cannot be thrown away. Delay has the effect of putting the court on guards to search whether sufficient explanation for delay has been given. Learned State counsel further contended that in rape cases, a party consults their near and dear ones and the close relations before approaching the police. As future of the prosecutrix is involved which may mar the chances of her marriage.

Learned State counsel further contended that age of prosecutrix as per his father is only 13 years and even in the medical- examination, her age has been shown to be 15�-17 years. Merely saying in cross-examination by the doctor that age of prosecutrix can be 18 years, does not mean that she was 18 years old, it is only a probability, rather X-ray examination coupled with the statements of father and mother of prosecutrix (PW 4 and PW 5) reveals that her age was less than 16 years. No question in cross-examination was put to the father and mother of the prosecutrix regarding her age, when both specifically stated on oath in Court that age of the prosecutrix was about 15 years at the relevant time. Learned State counsel further contended that oral evidence of father and mother of the prosecutrix is to be preferred over the ossification test, rather radiological examination corroborates with the statements of the father and mother of the prosecutrix (PW 4 and PW 5) with regard to her age. PW 1 Dr. R.P.Singal has mentioned the age of prosecutrix as 15�-17 years, it can be ''plus'' or ''minus'' two years on either side, therefore, it can be taken as either 13� or 17� years. When father and mother of the prosecutrix have deposed on oath before the court that age of prosecutrix was 15 years and same is in consonance with the medical evidence which also states her age between 15�-17 years. The trial Court has rightly come to the conclusion that age of the prosecutrix was less than 16 years and she was minor at the time of occurrence.

Learned State counsel further contended that once it has been found that she was minor, then consent of prosecutrix is immaterial.

I have considered the rival contentions of learned counsel for the parties.

Point No.(i):

Admittedly, there is delay of seven-eight days in reporting the matter to the police. The prosecutrix was missing since 28.04.2002 as is evident from application Ex.PE. However, PW 4 complainant-Sher Singh deposed on oath that he had reported the matter to the police on 29.04.2002, not on 04.05.2002, but the investigating officer (PW 10) has not explained that application was given on 29.04.2002. Moreover, PW 4 has not been cross-examined on the aspect that application was moved on 04.05.2002, not on 29.04.2002. The accused along with the prosecutrix was apprehended and both were produced before the police on 06.05.2002. It is the anxiety of every family initially to trace out the girl in the vicinity and with the relatives. The prosecutrix belongs to conservative society, parents of the prosecutrix must have been very much reluctant in reporting the matter to the police. Before approaching the police, they must have made due deliberations with their close relatives. Such incident involves honour of the unmarried girl and prestige of the family. It may mar the chances of marriage of a young girl. It is not the case of defence that prosecutrix was not taken away and subjected to sexual intercourse by the accused. On the contrary, plea of defence runs on the lines that prosecutrix accompanied the accused on free will and whatever happened was consensual.

In Om Parkash vs. State of Haryana 1999 (1) Recent Criminal Reports 266 (Punjab and Haryana), it has been held that only after giving cool thought the complaint of sexual offence is generally lodged and delay in lodging the rape cases can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to police which concerns the prosecutrix and honour of the family. In the said case, there was a delay of 20 days when matter was reported to the police.

In view of the facts and circumstances discussed above, delay in lodging the FIR to police in the present case of kidnapping and rape is not fatal to the case of prosecution. Point No.(i) is answered accordingly.

Point No.(ii):

There is categorical evidence on record of PW 4 Sher Singh and PW 5 Salochna, father and mother of prosecutrix, respectively, who have stated the age of prosecutrix to be 15 years at the time of their deposition in Court and when the FIR was registered, her age was stated to be 13 years. Even ossification test indicates the age of prosecutrix between 15�-17 years. There can be difference of two years on both sides, meaning thereby it can be 13� years or 17� years. When radiological examination report is taken into consideration as 15� years, this stands corroborated with the age as stated before the Court by the father and mother of the prosecutrix (PW 4 and PW 5, respectively) Even no suggestion was put by the accused to PW 4 Sher Singh and PW 5 Salochana, father and mother of the prosecutrix, respectively that age of prosecutrix was more than 18 years at the relevant time. They have categorically deposed on oath in Court that age of prosecutrix was 15 years. Opportunity to cross-examine them was given to the accused but their cross-examination is ''Nil''. Before PW 2 Dr. Suman Menon, prosecutrix also stated her age to be 14 years at the time of her medico- legal examination.

In view of above discussion, I have come to conclusion that age of prosecutrix was less than 16 years at the time of occurrence. Point No.(ii) is answered accordingly.

Point No.(iii):

Section 375 of ''IPC'' provides that sexual intercourse by a man with a woman without her consent will constitute the offence of rape and punishment for rape is provided in Section 376 of ''IPC''. Section 90 of ''IPC'' defines consent known to be given under `fear or misconception'' which reads as under:-

"90. Consent known to be given under fear or misconception - A consent is not such consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; xxxx"

It is the case of prosecution that the appellant had committed sexual intercourse with the prosecutrix on the pretext that he would marry her. Even if the accused had obtained such type of consent, it cannot be treated as a valid consent, as the prosecutrix was below 16 years of age at the relevant time. Learned counsel for appellant cited Deelip Singh @ Dilip Kumar Vs. State of Bihar, with regard to consent part, however, the same is not applicable in the facts and circumstances of the present case, as in the present case, the prosecutrix is minor and the consent, if any, given by her has no value in the eyes of law. Rather, the Hon''ble Supreme Court in State of U.P. vs. Naushad, SLP (Crl.) No.5390 of 2008, decided on 19.12.2013 has considered the judgment of Deelip Singh (supra) and held as under:

"Thus, if consent is given by the prosecutrix under a misconception of fact, it is vitiated. In the present case, the accused had sexual intercourse with the prosecutrix by giving false assurance to the prosecutrix that he would marry her. After she got pregnant, he refused to do so. From this, it is evident that he never intended to marry her and procured her consent only for the reason of having sexual relations with her, which act of the accused falls squarely under the definition of rape as he had sexual intercourse with her consent which was consent obtained under a misconception of fact as defined u/s 90 of the IPC. Thus, the alleged consent said to have obtained by the accused was not voluntary consent and this Court is of the view that the accused indulged in sexual intercourse with the prosecutrix by misconstruing to her his true intentions. It is apparent from the evidence that the accused only wanted to indulge in sexual intercourse with her and was under no intention of actually marrying the prosecutrix. He made a false promise to her and he never aimed to marry her. In the case of Yedla Srinivasa Rao Vs. State of A.P., with reference to similar facts, this Court in para 10 held as under:-

"10. It appears that the intention of the accused as per the testimony of PW1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of Pws 1, 2 and 3 and before Panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent."

Further, in para 17 of the said judgment, this Court held that:-

"In the present case in view of the facts as mentioned above we are satisfied that the consent which had been obtained by the accused was not a voluntary one which was given by her under misconception of fact that the accused would marry her but this is not a consent in law. This is more evident from the testimony of PW1 as well as PW6 who was functioning as Panchayat where the accused admitted that he had committed sexual intercourse and promised to marry her but he absconded despite the promise made before the Panchayat. That shows that the accused had no intention to marry her right from the beginning and committed sexual intercourse totally under the misconception of fact by prosecutor that he would marry her."

Thus, this Court held that the accused in that case was guilty of the offence of rape as he had obtained the consent of the prosecutrix fraudulently, under a misconception of fact.

The High Court has gravely erred in fact and in law by reversing the conviction of the accused for the offence of rape and convicting him u/s 376 of the IPC. It is apparent from the evidence on record that the accused had obtained the consent of the prosecutrix for sexual intercourse under a misconception of fact i.e. that he would marry her and thus made her pregnant. He is thus guilty of rape as defined u/s 375 of the IPC and is liable to be punished for the offence u/s 376 of the IPC. The trial court was absolutely correct in appreciating the evidence on record and convicting and sentencing the accused for the offence of rape by holding that the accused had obtained the consent of the prosecutrix under a misconception of fact and this act of his amounts to an offence as the alleged consent is on the basis of misconception, and the accused raped the prosecutrix. He brazenly raped her for two years or more giving her the false assurance that he would marry her, and as a consequence she became pregnant. For the reasons stated supra, we have to uphold the judgment and order of the trial court in convicting and sentencing the accused for the offence of rape, by reversing the judgment and order of the High Court. We find the accused-respondent guilty of the offence of rape as defined u/s 375 of the IPC.

The answer to point no.3 is pertaining to the question of sentence awarded by the trial court to the accused. The trial court has justified in awarding of maximum sentence of life imprisonment to the accused u/s 376 of the IPC on the ground that the facts of this case are of a very grave nature. The accused being related to the prosecution used to often visit her house and took undue advantage of this relationship and kept the prosecutrix under the misconception that he would marry her and committed rape on her for more than two years thereby making her pregnant. In such circumstances, the trial court held that it would be justifiable to award the maximum sentence to the accused. We, therefore, hold that the trial court was correct in awarding the maximum sentence of life imprisonment to the accused as he has committed a breach of the trust that the prosecutrix had in him, especially due to the fact that they were related to each other. He thus invaded her person, by indulging in sexual intercourse with her, in order to appease his lust, all the time knowing that he would not marry her. He committed an act of brazen fraud leading her to believe that he would marry her.

A woman''s body is not a man''s plaything and he cannot take advantage of it in order to satisfy his lust and desires by fooling a woman into consenting to sexual intercourse simply because he wants to indulge in it. The accused in this case has committed the vile act of rape and deserves to be suitably punished for it."

In view of above, it is held that the prosecutrix, who was under the age of 16 years at the relevant time, was taken away from the lawful guardianship of her parents by the appellant-accused. The appellant with requisite mens rea had engaged in the sexual intercourse consensually with the prosecutrix, who was under the age of 16 years and such consensual sexual intercourse amounts to rape. Since the prosecutrix was below the age of 16 years and a false promise of marriage was given to her by the appellant, therefore, the appellant-accused is guilty of rape as defined in Section 375 of ''IPC'' and has been rightly convicted and sentenced u/s 376 ''IPC''. Point no.(iii) is answered accordingly.

So far as the conviction u/s 366 ''IPC'' is concerned, since the prosecutrix was minor and was taken illegally and forcibly on false promise of marriage by the appellant, conviction and sentence awarded u/s 366 ''IPC'' is legal and valid.

Conclusion:

On a conspectus of the evidence and the findings of the trial Court and reasons stated above, I am satisfied that appellant''s version has been correctly rejected by the trial Court. The conviction and sentence of the appellant are upheld. The appeal, therefore, is devoid of merits and is dismissed. The appellant-convict is stated to be on bail. His bail bonds stand cancelled and he is directed to surrender before the trial Court forthwith to undergo remaining part of sentence. In case, the appellant-accused does not surrender before the trial Court, it shall issue warrant of arrest of the appellant-convict.