Gordhan vs State of Haryana

Surinder Singh, J.

This appeal has been filed by Gordhan son of Kishan Lal against his conviction by the Additional Sessions Judge (II) Narnaul for various offences as follows :

a) under section 363, Indian Penal Code, to three years Rigorous Imprisonment and a fine of Rs. 200/, in default of payment of fine to under go further Rigorous Imprisonment for six months;

b) under section 366, Indian Penal Code, to five years Rigorous Imprisonment and a fine of Rs. 200/, in default of payment of fine to undergo further Rigorous Imprisonment for six months; and

c) under section 376, Indian Penal Code, to imprisonment for life and a fine of Rs. 200/, in default of payment of fine to undergo further Rigorous Imprisonment for six months.

The substantive sentences of imprisonment were ordered to run concurrently.

Girdhari Lal (PW2) father of the prosecutrix Savita (PW1) lodged a report at Police Station Nangal Chaudhry are 2 p.m. on October 27, 1982 in which he stated that he had five daughters and three sons out of whom Savita aged 15 years was studying in 8th class and was residing in his house. Dr. Gordhan Rawat (appellant) was running a shop of medicines in their village and the informant and his family used to take medicines from him. At the time of lodging the report the appellant was running a shop in village Nangal Chaudhry and used to come to the village of informant for the supply of medicines. On the night between 26th and 27th October, 1982, the appelant was seen talking with Savita standing in the door of their house. On enquiry by Girdhari Lal the appellant informed him that he had come to supply medicines. Thereafter the appellant went away while Savita went into the house. Savita had gone to sleep along with her mother Lachhmi after taking the meals. At about 2 a.m. Lachhmi told Girdhari Lal that Savita was not lying on her charpoy. The father searched for Savita in the house and found that the door of Baithak was open. When he could not locate her, his apprehension arose that the appellant had kidnapped Savita. Girdhari Lal consequently lodged a report with the police about the disappearance of his daughter specifically indicating a suspicion against the appellant.

Niranjan Lal (PW1) stated that on October 28, 1982, he had accompanied the police to a park at Rewari at about 9.30 a.m. where they saw Savita alongwith the appellant sitting at the Place. The appellant was arrested and Savita also taken into custody. The underwear of the appellant along with some other articles after his personal search we4re taken into possession. It is stated that the appellant in consequences of his disclosure statement also got recovered his punctured motorcycle.

The primary evidence produced by the prosecution with a view to bring home the charge against the appellant consists of the testimony of Savita (PW1), the prosecutrix and her father Girdhari Lal (PW2). According to the prosecutrix she had known the appellant when the latter was running a clinic in their village. She used to get medicines from him and he also visited their house. She further stated that on October 26, 1982 at 8 or 9 p.m. the appellant came to their house on a motorcycle and told her that she should accompany him and that he will take her to good cities and show her films. After that the appellant had gone away telling her that he would come back at about 11 or 12 midnight and that she should come out of the house. At agreed time, she came down form the upper storey of the house and went from the outer door. The appellant had also come thereon a motorcycle. The prosecutrix would have us believe that she refused to sit on the motorcycle but the appellant forced her to do so. Thereafter he brought her to Nangal Chaudhary to his shop. The appellant kept her inside the shop and closed the shutter and started kissing her. He wanted to have sexual intercourse but she declined to oblige him. The allegation further is that the appellant removed her underwear and pants and also the underwear and salwar of the prosecutrix. Thereafter he forcibly had sexual intercourse with her. The appellant threatened her that he would kill her if she raised a noise. Thereafter the appellant took her on motorcycle towards Village Nizampur. They reached a place called Baleshwar temple in Rajasthan. The appellant had tea and bath at that place,. After leaving the temple, his motorcycle was punctured and was kept in a dhani. Both of them then boarded a bus at 6 p.m. for Nimkathana and thereafter took a train for Rewari at 7 p.m. They remained at Railway Station Rewari throughout the night. On the next day they were sitting and talking in a park the Police party came and apprehended them. The testimony of Girdhari Lal PW has been noticed in substance in the First Information Report lodged by him there is no need to recapitulate the same.

The primary question which arises for consideration in all such cases is the age of the prosecutrix at the time of the commission of the alleged offence. So far as Girdhari Lal father of the prosecutrix is concerned, he has given out the age of his daughter as 15 years. Reliance is also placed upon a copy of the Certificate Exhibit PA submitted by the father to the school at the time of the admission of the prosecutrix, in which the date of birth of the prosecutrix is mentioned as April 5, 1967. As per this document, the age of the prosecutrix works out to 15 years and 7 months. The prosecution, however, failed to arrange for the medical examination of the prosecutrix for the determination of her age. This job was, therefore, done by the defence by producing Dr. M.S. S. Sangwan, Medical Officer, Civil Hospital Narnaul (D.W. 1) who stated that he took Xrays Exhibits DW1/1, DW1/4 and on the basis there of he submitted his report DW1/A to the effect that the prosecutrix was about 17 years of age. The medical witness further submitted that there could be a margin of two years on either side of above estimate. In his crossexamination, the medical witness gave reasons for the opinion arrived at by him as above. According to this evidence, the possibility of the prosecutrix being over 18 years of age cannot be ruled out. In so far as the Certificate Exhibit PA is concerned, it is common knowledge that parents very often mention a lessor 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. A cumulative reading of the evidence referred to above leads to the conclusion that the prosecutrix was definitely above 16 years of age at the time of the incident. Further the prosecution has not ruled out the possibility of her being over 18 years.

In the wake of the finding regarding the age of the prosecutrix the question which then falls for consideration is, as to whether she was abducted and subjected to forcible sexual intercourse or was it a case of consent. It may be material to note here that in his examination under section 313, Code of Criminal. Procedure, the appellant has frankly stated that the prosecutrix was in love with him and she used to writ letters to him. He further stated that she had come on her own accord and that he had not committed rape upon her. With a view to substantiate this defence, the appellant produced no less than nine letters Exhibits DA to DI written by the prosecutrix to him. A perusal of these letters shows that they are a compilation of highly emotional sentiments of love in which the prosecutrix had expressed her innermost thoughts not only in prose but also in poetry of a high literary depth. The letters are replete with gestures of love and at places the prosecutrix went to the extent of saying that if her separation from the appellant continued, she would take the extreme step of suicide. During the course of her crossexamination, the prosecutrix admitted that she had known the appellant for 21/2 years and that she had written two or three letters to the appellant at his instance. She was confronted with letters Exhibits DA to DI and she admitted that they were written by her though she stated that it was done at the instance of the appellant. The admission of the prosecutrix in this behalf goes a long way to show that she was not only a consenting party but by expressing her passionate feelings in these lengthy letters, she was herself instrument in giving shape to their liaison. The allegation that she had been taken away by the appellant by allurement and moved with him from place to place cannot be accepted, nor can it be believed that she had been subjected to forcible sexual intercourse at the hands of the appellant. The medical witness Dr. (Mrs.) Usha Chhakkar (P.W. 5) who examined the prosecutrix stated that the vagina of the prosecutrix admitted two fingers easily and that she was used to sexual intercourse. Her hymen was ruptured and was old healed. This opinion further fortifies the defence assertion about the prosecutrix being a consenting party to the whole episode.

In view of the circumstances noticed above, the prosecution has failed to bring home the guilty against the appellant. The appeal is allowed and the appellant is acquitted of the charges framed against him. If he is in custody, he shall be released forthwith. The fine, if recovered from him shall be refunded.