Brijesh Kumar vs State of Haryana

R.L. Anand, J.(Oral)

By this judgment I dispose of two Criminal Appeals Nos. 409SB of 1996 titled Brijesh Kumar v State of Haryana and 336SB of 1996 titled Saroj v. State of Haryana as both these appeals have arisen from the judgment dated 24th April, 1996 passed by the Court of Additional Sessions Judge, Jagadhri, who convicted appellant Smt. Saroj under Section 363 read with Section 34 of the Indian Penal Code, and under Section 366A of the Indian Penal Code. Smt. Saroj was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 200/ under Section 363 read with Section 34, Indian Penal Code. In default of payment of fine she was directed to undergo further rigorous imprisonment for a period of three months. Under Section 366A of the Indian Penal Code, she was sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 300/ and in default of payment of fine she was ordered to undergo further rigorous imprisonment for a period of three months. Both the substantive sentences of imprisonment were ordered to run concurrently. Brijesh appellant was directed to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 200/ and in default of payment of fine to undergo further rigorous imprisonment for a period of three months, under Section 363 read with Section 34 of the Indian Penal Code. Under Section 366 of the Indian Penal Code he was directed to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 300/ and in default of payment of fine he was ordered to undergo further rigorous imprisonment for a period of three months. He was sentenced to undergo rigorous imprisonment for a period of nine years and to pay a fine or Rs. 500/ and in default of payment of fine he was directed to undergo further rigorous imprisonment for a period of six months, under Section 376 of the Indian Penal Code. Under Section 506 of the Indian Penal Code this appellant was sentenced to undergo rigorous imprisonment for a period of two years.

Brief facts of the case are that Shri Chhotu Ram complainant gave the statement on 26th June, 1994 before the Investigating Officer that he was resident of village Bhagwangarh and was a labourer. His eldest brother Mam Chand was married with Smt. Karjo, daughter of Surta Ram, and from that wedlock one son namely Baldev and one daughter namely Meena were born. About 13 years ago Mam Chand, brother of the complainant, died, the complainant was unmarried at that time. After about three years of the death of Mam Chand, Chhotu Ram complainant performed Karewa marriage with Smt. Karjo and four children were born out of this wedlock. In this way, the complainant alleged himself to be father of Baldev and Smt. Meena also. According to the complainant, Meena went to school and studied upto 5th standard and due to poverty she could not be educated further. On 24th June, 1994 Smt. Meena had gone to the fields of Risala Jat, for planting paddy and she came back at about 3 P.M. and after taking her meals and also after taking her bath, she went away saying that she was going to enquire about her stepfather (complainant), who was ill but she did not come to the complainant. She was searched here and there but to no effect. Later on the complainant Chhotu Ram expressed his suspicion on Brijesh, who was employed in village Bhagwangarh, Tehsil Jagadhri, by Sheo Ram. On this report present case was registered and investigated. During the course of investigation it transpired that Smt. Saroj, coaccused, had brought Smt. Meena prosecutrix to Jhota Chowk, Jagadhri, from village Bhagwangarh in a tonga, and she had handed over the custody of the prosecutrix to Brijesh accusedappellant, who was waiting there. On 28th June, 1994, the prosecutrix was recovered from the company of accused Brijesh near Bus Stand, Saharanpur. The accused was arrested. Both the accused and the prosecutrix were medicolegally examined and on completion of the investigation, challan was presented in the Court.

Both the appellants were committed to the Court of Session in order to face the trial and on 16th January, 1995 various charges under Sections 363, 366A, 376, 506 read with Section 34 of the Indian Penal Code, were framed against the appellants. The charges were read over and explained to the appellants, to which they pleaded not guilty and claimed trial.

The prosecution in the trial Court examined 14 witnesses.

On the closure of the prosecution case, the accused were examined under section 313 of the Code of Criminal Procedure, and all the incriminating circumstances appearing in the prosecution case were put to them. The accused denied all those circumstances and stated that the case was a false one. In defence they examined D.W. 1 Ahmad Ali, who deposed that he was Sarpanch of village Sekhopur in Uttar Pradesh for the last 8/9 years. He further deposed that Brijesh and the members of his family were persons of good character. The accused also examined Gurdevi, D.W.2, whose statement was to the effect that she along with other ladies, including Smt. Saroj accused and Smt. Meena prosecutrix, had gone to the fields of Risala Ram for planting paddy crops and after planting the paddy crops they all went to their houses. She did not know whether Smt. Saroj had gone to her house or not. It was also stated by her that Smt. Saroj was having three daughters and one son.

Learned trial Judge, however, relied upon the story of the prosecution and convicted and sentenced the appellants in the manner stated above. Aggrieved by their conviction and sentence, present two appeals have been filed by the appellants.

Learned trial Court framed the following points for determination :

Age of the prosecutrix.

Whether Meena Kumari was kidnapped or abducted from the lawful guardianship of Chhotu Ram complainant in furtherance of common intention of both the accused ?

Intention of the accused in kidnapping or abduction.

Whether accused Brijesh was fit to perform sexual intercourse ?

Whether Brijesh accused committed rape ?

Whether Brijesh accused threatened the prosecutrix ?

Recovery of the prosecutrix.

Defence evidence led by the accused.

The learned trial Judge came to the conclusion that the prosecutrix was less than 16 years of age at the relevant time and she was kidnapped by Smt. Saroj, who handed over the custody of the prosecutrix to her coaccused Brijesh, who took the prosecutrix from Jagadhri and finally the prosecutrix along with Brijesh was recovered on 28th June, 1994. The trial Court came to the conclusion that both the accused had committed the offence of kidnapping the prosecutrix and Brijesh accused was guilty of performing sexual intercourse with the prosecutrix and thus committing rape upon her. While accepting the story of the prosecution, the trial Court rejected the defence version, stating it to be false.

I have heard Shri R.S. Mamli, Advocate, appearing on behalf of Smt. Saroj appellant; Shri D.R. Punia, advocate, appearing on behalf of Brijesh appellant; and Shri J.S. Ahlawat, Assistant Advocate General, who appeared on behalf of the State of Haryana, and with their assistance have gone through the record of the case.

First of all I will determine as to the question of age. An effort was made on behalf of the appellants to establish that the prosecutrix Smt. Meena was more than 18 years of age at the time of the alleged kidnapping or abduction on 24th June, 1994. In these circumstances, no offence under Section 363 of the Indian Penal Code is made out. It is also submitted by the learned counsel appearing on behalf of the appellants that Smt. Meena was definitely more than 16 years of age, as per the story of the prosecution and she was consenting party to the rape and in these circumstances, the trial Court was not justified in recording the conviction under Section 376 of the Indian Penal Code against Brijesh appellant. Also it was argued by the learned counsel Shri R.S. Mamli that Smt. Saroj had no business to kidnap or abduct Smt. Meena in a tonga nor to pass over the custody of the prosecutrix to Shri Brijesh appellant. The girl was quite mature and it looks to be more probable that she left the house of her own accord and joined the company of Brijesh, who may have taken or enticed the girl from the lawful custody of Chhotu Ram complainant and in these circumstances Saroj appellant is entitled to acquittal in all the offences regarding which the charge was framed against her.

On the contrary it was submitted on behalf of the State that the trial Court had rightly recorded the conviction against both the appellants for the various offences referred to above.

After considering the rival contentions of the parties, I am of the considered opinion that the trial Court was not justified in recording the conviction against Shri Brijesh under Section 376, Indian Penal Code, as the prosecutrix was more than 16 years of age on the date of the alleged kidnapping, i.e., 24th June, 1994, and that Smt. Meena was the consenting party to the alleged acts of intercourse. It is established on the record that Smt. Meena was the girl, who was earlier carrying out with Brijesh. In these circumstances any alleged acts of rape committed by Brijesh after 24th June, 1994 with her would not come within the definition of `rape''. To support this conclusion, I will refer to the school leaving certificate (Ex. PH) of Miss Meena. According to this certificate the date of birth of Miss Meena is 6th March, 1978; meaning thereby she was 16 years 3 months and 18 days as on 24th June, 1994. Miss Meena appeared in the witness box as P.W. 10 and in the crossexamination she has stated as follows :

"I recognised Brijesh when I alighted from the tonga. I met Brijesh accused several times before that day. Brijesh accused committed intercourse with me prior to that day, in the village Bara of Bhagwangarh. Brijesh accused used to commit intercourse with me for a long period of one hour and we were never seen by any person of the village during that time."

In these circumstances it can be safely inferred that Miss Meena had been surrendering herself before Brijesh even before 24th June, 1994 and at that time she was more than 16 years of age. If a girl of more than 16 years of age voluntarily surrenders herself before a male for the purpose of enjoying sexual intercourse, it cannot be said that rape has been committed by the male person. Resultantly, the trial Court was not justified in recording conviction under Section 376 of the Indian Penal Code, against Shri Brijesh and he stands acquitted of this charge.

To proceed further, I also find merit in the contention of Mr. Mamli, Advocate, appearing on behalf of Smt Saroj appellant, when he pleaded that there was no taking or enticing on the part of Smt. Saroj appellant. Section 363 of the Indian Penal Code would come into play only if the prosecution establishes that Smt. Meena was taken or enticed by Smt. Saroj. If Smt Meena herself takes the services of Smt. Saroj with a prayer that she may be left at a particular place, so that she may join the company of her paramour Brijesh, then it cannot be said that there was any taking or enticing on the part of Smt. Saroj. There is not an iota of evidence on the record to suggest that Smt. Saroj has any connections with her coaccused Brijesh or that both were seen together at any relevant time. Also there is no evidence on the record to suggest that Brijesh appellant used to visit the house of his coaccused Smt. Saroj, so that any inference may be drawn that Smt. Saroj had taken or enticed prosecutrix Meena. When the probabilities are missing, benefit of doubt has to go to the appellant. On the contrary, it looks to be more probable that on 24th June, 1994 prosecutrix Meena voluntarily left the house of her parents and she asked Smt. Saroj to accompany her, so that the former may be left at the Chowk where it had already been planned that Meena would meet Brijesh. It is the case of the prosecution that Saroj and Meena went on a tonga. It has come in the statement of Smt. Meena that she paid the fare of Rs. 10/ to the tonga driver for herself and Smt. Saroj paid the fare for herself. Had Saroj wanted to take or entice Meena, she would have in all probabilities paid the fare of the prosecutix also. Also it has come in the statement of Smt. Meena that she was informed in the fields by Smt. Saroj that both of them would go to Jagadhri in order to meet Brijesh and Meena told Smt. Saroj that she also knew Brijesh, with whom she had connections. In these circumstances it is difficult to presume that Smt. Saroj had taken or enticed Meena. Rather Brijesh was the person who knew that Meena was less than 18 years and Brijesh took the prosecutrix from the lawful custody to her parents with the intention that she would be subjected to intercourse. In this view of the matter, I am inclined to give benefit of doubt to Smt. Saroj. Her appeal stands accepted and the charges levelled against her are quashed.

Effort was made by the counsel appearing on behalf of Shri Brijesh that the trial Court was not justified in recording conviction against him for the offences under Sections 363, 366 and 506, Indian Penal Code. The counsel submitted that there is contradictory evidence with regard to the age of the prosecutrix.

I do not agree with the contention of Mr. D.R. Punia, learned counsel appearing on behalf of Brijesh appellant. It is established on the record that Miss Meena was less than 18 years of age at the time of her kidnapping by Brijesh. In this regard I would like to refer to certificate Ex.PH vide which the date of birth of Meena was 6th March, 1978. Meena was medically examined by Dr Anita Sethi, Medical Officer, Civil Hospital, Jagadhri (P.W.6), who gave her age as 16 years. Smt. Karjo (P.W. 11) is the mother of Miss Meena. This prosecutrix has taken birth from the womb of Smt. Karjo and she is the best witness with regard to the age of Smt. Meena. She has given the age of Miss Meena as 15 years. Learned counsel for the appellant submitted that the statement of this witness was recorded on 15th November, 1995 and she had stated that she was married with Mam Chand about 22 years back; meaning thereby that she was married in the year 1973. According to the statement of Smt. Karjo, Meena was born after about two years of the marriage. According to the counsel, it amounts to that she was born in the year 1975 and in this manner Meena was more than 18 years of age as on 24th June, 1995 There is no merit in the contention of the learned counsel Shri D.R. Punia. In fact after her marriage with Shri Mam Chand, Smt. Karjo gave birth to a male child and after two years of the birth of the male child, she gave birth to Meena. The name of the male child is Baldev, who is elder to Meena. Smt Karjo is a rustic witness and cannot have a definite idea about the actual date of birth of the prosecutrix and in these circumstances, it is not fatal to the prosecution case if the birth certificate of the prosecutrix has not been produced. From the document in the shape of School Leaving Certificate coupled with the statements of Smt. Karjo and Miss Meena, it stands established that Miss Meena was less than 18 years of age as on 24th June, 1994. In this way the conviction of Brijesh under Sections 363, 366 and 506 of the Indian Penal Code was totally justified.

So far as the recovery of Miss Meena is concerned, it sands proved from the statement of Smt. Kusam Lata, Lady Constable (P.W.9). According to this witness Brijesh was arrested from Bus Stand Saharanpur in the presence of Shri Puran Chand. Meena was with him at that time and both of them were taken into custody and memo. (Ex.PB) was prepared in that regard. Thereafter Meena and Brijesh were brought to Police Station, Jagadhri. A young girl was recovered from the possession of Brijesh, who was capable of performing sexual intercourse, as certified by Dr. V.K. Nagpal (P.W.1), who medically examined Brijesh on 28th June, 1994. As per the opinion of the doctor (Ex.PA), this accused Brijesh was fit to perform sexual intercourse.

Further Shri D.R. Punia, learned counsel for the petitioner, submitted that Miss Meena had the intimacy with Brijesh and she left the house of her own accord and joined Brijesh at Jhota Chowk and that there is no evidence on the record that Brijesh persuaded the prosecutrix to accompany him. In these circumstances, the counsel submitted that the conviction under Section 366 of the Indian Penal Code was not justified. In support of his contention he relies upon a Single Bench Judgment of this Court, reported as Madan Lal v. State of Punjab, 1997(1) Recent Criminal Reports 85.

There is no merit in this contention. The aforesaid citation is not applicable to the facts in hand. There is not an iota of evidence that the prosecutrix was a consenting party or that she ever persuaded Brijesh to take her along. Also there is not an iota of evidence that the prosecutrix took with her any valuable article of the house in order to join the company of Brijesh of her own accord. In all probabilities, Brijesh appellant had enticed the prosecutrix to leave the house and the prosecutrix joined the company of Brijesh at Jhota Chowk Jagadhri, from where she was taken to Saharanpur. It is the evidence on the record given by the prosecutrix, which is supported by medical evidence, that appellant Brijesh was committing sexual intercourse upon her. Such intercourse has to be treated as illegal. Thus I maintain the conviction and sentence of Shri Brijesh for the offences under Sections 363, 366 and 506 of the Indian Penal Code. Learned counsel for the appellant (Brijesh) also submitted that benefit of probation may be granted to appellant Brijesh.

I do not agree with the contention raised by the learned counsel appearing on behalf of appellant Brijesh because Brijesh had indulged in an unauthorised act by enticing a young girl for unlawful purposes. He had committed crime qua weaker section of the society. Hon''ble the Supreme Court had held in Criminal Appeal No. 1143 of 1995 (State of Andhra Pradesh v. Badam Sundara Rao) as follows :

"To show mercy in the case of such a heinous crime would be traversty of justice and the plea for leniency is wholly misplaced. In recent years we have noticed that crimes against women are on the rise. These crimes are affront to the human dignity of the society. Imposition of grossly inadequate sentence and particularly against the mandate of the Legislature not only is an injustice to the victims of the crime in particular and the society as a whole in general but also at times encourages a criminal. The courts have an obligation while awarding punishment to impose appropriate punishment so as to respond to the society''s cry for justice against such criminals. Public abhorrence of the crime needs a reflection through the court''s verdict in the measure of punishment. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of the appropriate punishment."

Resultantly, the appeal of Shri Brijesh Kumar appellant is partly allowed. His conviction and sentence under Section 376, Indian Penal Code, is set aside, but his conviction and sentence under the other provisions, such as section 363 read with Section 34, Sections 366 and 506 of the Indian Penal Code, is hereby affirmed.

Intimation about the decisions of both the appeals be communicated to all concerned.