Balbir Singh vs State of Haryana ,

A.L. Bahri, J.

Criminal Appeal No. 407SB of 1985 has been filed by Balbir Singh accused, who was convicted by Additional Sessions Judge, Rohtak on August 22, 1985 under section 366, Indian Penal Code, and sentenced to rigorous imprisonment for four years and to pay a fine of Rs. 1,000/. In default of payment of fine, he was further ordered to undergo rigorous imprisonment for two months. Out of the fine realised, Rs. 800/ was ordered to be paid to Smt. Parkash, the prosecutrix.

Criminal Revision No. 1219 of 1985 has been filed by Ram Chander for enhancement of the sentence. The same is also being disposed of vide this judgment.

Balbir Singh aged about 22 years was charged under sections 363, 366 and 3 76, Indian Penal Code. He was acquitted of the charge framed under section 376, Indian Penal Code. However, he was convicted under section 366, Indian Penal Code, as stated above.

On January 3, 1985, Balbir Singh accused asked Smt. Parkash to meet him in the fields at about 11 P.M in their gher failing which he will tarnish her reputation. Smt. Parkash accordingly went to meet him at the appointed place. Both of them spent night in the kotha of one Attar. She was subjected to rape there. In the morning, they went to Bus Stand of Village Dujana and boarded the bus for Jhajjar from where they went to Sonepat by bus. They spent two days at the house of his relations at Sonepat where again she was subjected to rape. From Sonepat, they went to Jind where they stayed for three days. Again she was subjected to rape there. From Jind, they went to Delhi for proceeding further to Simla. At the Bus Stand, Delhi, they were apprehended by the police who was accompanied by father of Smt. Parkash.

In the morning of the day of occurrence, finding that Smt. Parkash was missing, her father Ram Chander went out in search of her. Some clues were received by him from certain persons that Balbir Singh accused had taken away Smt. Parkash. He lodged the report at police Station Jhajjar on 5/611985. The case was registered under sections 363 and 366, Indian Penal Code, at that time. After recovery of Smt. Parkash at Delhi, she was taken to the Court of Judicial Magistrate, Jhajjar Her statement was recorded. Offence under section 367, Indian Penal Code, was thus introduced, in the case.

The prosecution produced in all twelve witnesses. Some documentary evidence was also produced. Balbir Singh in his statement recorded under section 313, Criminal Procedure Code, denied the prosecution allegations and stated that it was a false case, and that Parkash was apprehended from Jind on information given by Bharto, and thereafter he was taken into custody on January 6, 1985 from the house of his sister at Village Samaria. He further stated that prior to the occurrence, Parkash had come to him 3/4 times during the night and requested him to take her away. Since he refused to do so, she became annoyed. She had written several letters to him (Mark `A'', `B'' and C). The other letters were taken away by the S H.O. from him after beating him. Additional Sessions Judge in his judgment, referred to above, came to the conclusion that offence under section 376, Indian Penal Code was not made out because Parkash was more then 16 years of age, and sexual act was committed by Balbir Singh accused at different places with her consent. He further held that since Smt. Parkash was below 18 years of age, offence under section 366, Indian Penal Code, was made out and he recorded conviction and passed the order of sentence.

The accused as well as the prosecutrix visited several places and stayed at the houses of two persons who were living with their family members, as has come in the evidence. P.W.6 Smt. Parkash admitted in her examinationinchief, that Balbir accused used to visit her house being neighbour and they used to talk to each other. He used to ask her to get married to him and to visit places to enjoy life. He wrote several letters. She described them as obscene and after reading the same, these were destroyed. During crossexamination, she was shown letters, Mark `A'' `B'' and `C'', but she denied having written the same. These are ordinary love letters alleged to have been written by her to the accused. P.W.7 Dr. Mrs. Veena Bansal, who examined Smt. Parkash, opined that Smt. Parkash was habitual to intercourse as two fingers could be easily inserted in her vagina, From these facts, it is apparent that intimate relations were going on between Balbir and Smt. Parkash much before the present occurrence.

The important question for determination in this case is as to whether the prosecution has proved that Smt. Parkash was below 18 years of age. It is on proof of this fact that the commission of offence under section 366, Indian Penal Code, depends. The prosecution relies upon the oral evidence as well as expert evidence in this respect. Oral evidence consists of the statement of father of the prosecutrix namely P.W. Ram Chander. He gave the date of birth of Parkash as November 28. 1967 which he had noted down in a diary. He had also noted down ages of his other children. No importance can be attached to this diary which was only sought to be produced when his statement was being recorded. The same was not produced during investigation of the case. Such like documents could be prepared by this witness any. time. This witness further admitted that he had reported the birth of Parkash and other children to the chowkidar but he hastened to state that he did not recollect if birth of Parkash was so recorded. His evidence per se is not considered sufficient to hold that Parkash was below 18 years of age on the date of the occurrence. Smt. Parkash P.W. also gave her own age as 17 years which is not sufficient to give the correct age. P.W.7 Dr. Veena Bansal medically examined Smt. Parkash on January 11, 1983. She recorded the age of Parkash as 17 years in the medicoleagal report, Exhibit P.G, but further stated that for verification of the age, Xrays were advised. P.W.2 Dr. Ashok Kumar Goel conducted ossification test and after giving details of his observations on Xray, he gave the opinion that Smt. Parkash was between 16 and 171/2 years of age. During cross examination, he stated that it was not possible to say exactly how many days or months had passed since the fusion of epiphysis. According to him, age of Parkash could be 19 years at the time of examination. He again stated that he had wrongly replied in this regard and the age could not go beyond 171/2years. The possibility of gap of two years on this side or that side of the opinion, expressed on ossification test cannot be ruled out. The evidence of Dr. Ashok Kumar Goel, though retracted, that Parkash could be 19 years of age at the time of the examination does, not appear to be improvable. P.W. 3 Smt. Krishna Devi Sehgal. Headmistress, Govt. Girls Middle School. Dujana produced a certificate, Exhibit P.C., regarding the date of birth of Smt. Parkash, daughter of Ram Chander, as November 28, 1967 During corssexamination she stated that at the time of admission, no birth certificate was obtained as Parkash was admitted in the 6th standard. She further admitted during crossexamination that Parkash studied up to 5th standard in that very school and, therefore, at the time of admission to the 6th class, birth certificate was not obtained. If the evidence of this witness had been based on the birth entry produced at the time of admission, implicit reliance could be placed on the certificate, Exhibit P.C. However, it is normal that parents give lesser age of their children while getting them admitted in the school. The date of birth given in the School leaving certificate thus is not conclusive of the age. In this context, reference may also be made to the decision of this Court in Gordhan v. The State of Haryana, 1983(2) Chandigarh Law Reporter 528, decided by M.R. Sharma and Surinder Singh, JJ. While referring to the evidentiary value to be attached to school leaving certificate on the question of age. in para 5 of the judgment, it was observed as under; "In so far as the Certificate Exhibit PA is concerned, it is common knowledge that parents very often mention a lesser age of the child at the time of admission in a school. In the absence of any Birth Entry or other reliable evidence of age, no reliance can be placed upon the Certificate Exhibit PA which is the creation of the father of the prosecutrix herself."

In the facts and cirmustances of the present case, the prosecution has failed beyond reasonable doubt to prove that Smt. Parkash was below 18 years of age at the time of the occurrence. That being the position, the finding of the Additional Sessions Judge, as has been observed above, that Smt. Parkash had been a consenting party all along, the prosecution has failed to establish the offence under section 366, Indian Penal Code.

Counsel appearing on, behalf of the State as well as on behalf of the complainant argued that Smt. Parkash was forced to leave her house as a threat was levelled to tarnish her character by the accused and thus the case would be covered by section 366 of the Indian Penal Code. The contention is that it was under this threat that Smt. Parkash was subjected to submit for sexual intercourse by the accused and this threat continued at all the different places where she was subjected to rape. This contention cannot be accepted in the facts and circumstances of the case. As already noticed above, Smt. Parkash admitted that love affair was going on before the present occurrence and the accused had written several letters to her. As and when they met the accused revived his proposal for marriage If their relations were going on, there was no question of the accused on the day of occurrence levelling any threat to tarnish her character on her failure to meet him at the appointed place. Such a threat was alleged to have been given sometime in the evening where as the meeting time was fixed at 11 P.M. There was thus a gap of about 415 hours and she during this period remained in. her own house in the company of her parents; brothers and sisters. Her alone leaving the house at about 11. P.M. to meet her paramour cannot be described an act done under the threat. She appeared to have left her parents house of her own to elope with the appellant. She having not been proved to be below 18 years, the prosecution has failed to establish the offence under section 366, Indian Penal, Code.

For the reasons recorded above, this appeal is allowed. The order of conviction and sentence is set aside and the appellant Balbir Singh is acquitted, The appellant is on bail. He is discharged from the bail bonds.

The revision petition (Cr. R. No.1219 of 1985) for enhancement of the sentence fails and is dismissed.