Gurdeep Singh @ Gurdeep vs State of Haryana

Harjit Singh Bedi, J. (Oral)

This appeal arises out of the following facts:

Madan Lal complainant, the father of the prosecutrix (PW7) Chander Kanta, was residing with his family in H.No. 1 B/134, NIT, Faridabad. A part of this house had also been leased out to Nachhatar Singh, the father of the accused Gurdip Singh about 31/2 years prior to the incident. The complainant, however, wanted Nachhatar Singh to vacate the house because he suspected the intentions of Gurdip Singh accused towards his daughter. He also filed an ejectment application against Nachhatar Singh and the same was pending. On the night of the occurrence i.e. 11th May, 1986, the complainant came to his house at about 10 PM and found that all the other members of his family including Chander Kanta wee sleeping in the courtyard of their house but he found after he got up in the morning that Chander Kanta was not sleeping in the bed. The complainant searched for her in the rented portion of the house that was in the possession of Nachhatar Singh, but without success. Frustrated in his efforts to trace her out, he ultimately ledged a report to the Police at Police Station Kotwali, Faridabad, and on his statement Ram Mehar ASI recorded the First Information Report Ex. P1 for offences punishable under section 363/366 IPC in which he expressed his suspicions that Gurdip Singh had kidnapped his daughter. Chander Kanta however returned to her house the same evening and was taken for her medical examination the next day. Her statement was also recorded by the ASI and under section 164 Cr.P.C. by the Ilaqa Magistrate in which she stated that she had been enticed by the accused to go upstairs to the room that he was occupying and was thereafter raped by him. The accused was accordingly arrested on 14th May, 1986 and his medical examination conducted and after the completion of the investigation, the accused Gurdip Singh along with one Babu Lal nonappellant, were charged for offences punishable under sections 363/366/376 of the Indian Penal Code.

The prosecution in support of its case examined amongst others, Dr. Kusum Chaudhary (PW1), Dr. A.K. Saxena (PW2) who had carried out the radiological test on Chander Kanta and opined that she was between 151/2 and 171/2 years of age; Dr. Ram Chander (PW3) who deposed that the accused was capable of indulging in sexual intercourse; Veera Wali (PW5) Headmistress, Govt. Girls High School, Faridabad who deposed on the basis of the admission register that Chander Kanta''s date of birth was recorded as 20.7.1970; Dr. S.K. Chhabra PW6 who had carried out the dental examination of Chander Kanta in order to determine her age and had found her to be between 13 and 17 years of age, Chander Kanta PW7 the prosecutrix; Kailash Wanti PW8 her mother.; PW9 Madan Lal, the complainant and ASI Ram Mehar PW10 the investigating officer.

When examined under section 313 Cr.P.C., the accused stated that he had been falsely implicated by Madan Lal on account of the rent dispute pending between the parties and that Chander Kanta was in any case more than 18 years of age and of loose character.

The trial court came to the conclusion on a consideration of the evidence that the story propounded by the prosecution to show the circumstances that Chander Kanta had in fact been lured into the room of Gurdip Singh accused did not inspire confidence and, as a matter of fact, the prosecutrix was a consenting party and had indulged in sexual intercourse with him willingly, but as the prosecutrix was on the date of the incident less than 16 years of the age, the offence against Gurdip Singh accused stood proved. The accused was accordingly sentenced to undergo 3 years'' RI and to the payment of fine of Rs. 500 under section 376 IPC or in default of payment thereof to further undergo 3 months'' RI. Hence this appeal.

Mr. G.S. Grewal, the learned Senior Advocate, appearing in support of the appeal has urged that from the prosecution evidence it was clear that the age of Chander Kanta on the date of the incident was almost 17 years and as such once a finding had been recorded that she had willingly indulged in sexual intercourse with the accused, the question of commission of rape should not arise. In this connection, he has relied firmly on the evidence of Dr. A.K. Saxena who after a detailed examination opined that she was between 151/2 and 171/2 years of age. He also pointed out that the evidence of Dr. S.K. Chhabra, Dental Surgeon, also pointed in the same direction. He further urged that once the doctor has given a finding that she could be between 151/2 and 171/2 years of age, the benefit had to go to the accused and the age taken to be about 17 years.

As against this, the learned State Counsel Mrs. Dimple Purba, has urged that from the school record it was clear that the prosecutrix on the date of the incident was about 15 years and 8 months of age, that is less than 16 years as she had been born on 20th July, 1970.

After hearing the learned counsel for the parties and going through the judgment impugned, I am of the opinion that the appeal is liable to succeed. The finding of fact recorded by the trial court on an appreciation of the evidence that Chander Kanta was consenting party is, to my mind correct but the further finding recorded that she was less than 16 years of age appears to be wrong. From the evidence of the two doctors mentioned above, it is clear that she would be about 17 years of age on the date of the incident and Mr. Grewal seems to be right when he argues that the benefit of the age factor has to be given to the accused. It is true that the date of birth mentioned in the school register (i.e. 20.7.1970) does show Chander Kanta to be less than 16 years but in the light of the expert''s evidence i.e. the doctor''s statements, the certificate can be ignored the more so as the entries in school register are often got made by the parents showing the child to be younger in age.

For the reasons recorded above, this appeal succeeds, the order of the trial court is set aside and the accused appellant is acquitted of the charges made against him.