Ram Karan vs State of Haryana

Ajay Tewari, J.—This appeal has been filed against the conviction of the appellant for the commission of offence under Sections 363, 366 read with Section 34 of the IPC and Section 376 read with Section 120B of the IPC. The sentence awarded was as follows:-

All the sentences were ordered to run concurrently.

As per the FIR the grand daughter of the complainant stated to be 13/14 years of age was enticed away by the appellant and another accomplice (who was later on treated as a juvenile and whose appeal is not before this Court). They were recovered after about a month and the appellant and his accomplice were tried for the offence under the aforesaid Sections.

The only argument raised by learned counsel for the appellant is that the alleged victim was not proved to be a minor. Developing further he stated that if it was taken that the victim was not a minor then the conviction cannot stand because in her first statement u/s 164 Cr.P.C. which she made before the Magistrate, she had categorically deposed that she had gone along with the appellant voluntarily and that he had never raped her. To corroborate the argument that the victim was not a minor he has argued that the birth certificate placed on record Ex. PC (which showed the year of birth of the victim as 1986) cannot be said to be relating to the victim because in that the name of the child is given as Mam Kaur which is not the name of the victim. The Statistical Assistant (PW4) who brought the record, admitted in his cross-examination that there was overwriting both in the name of the village where the birth had taken place and the name of the father. He had further admitted that the earlier writing was rubbed off and then the name of the father was written. Further, the overwriting in the name of the village and the name of the father were in different inks. Learned counsel has further argued that the mother of the prosecutrix in her testimony accepted that she was an illiterate person and did not know the dates of birth of any of her five children. In the circumstances, as per him, the trial Court erred in believing her testimony that the birth certificate Ex. PC related to the victim.

Learned AAG has argued that the trial Court accepted the testimony of the mother of the victim and this action of the trial Court cannot be held to be perverse.

In my considered opinion the arguments of learned counsel for the appellant carry more weight. Once PW4 accepted that there were material changes in the original record to the extent pointed out above, the explanation of the mother that the victim was also known as Mam Kaur would not suffice to obliterate the suspicious circumstances. These circumstances do raise a doubt in the mind of this Court as to whether the document pertains to the victim or to some body else and consequently the same has to be taken out of consideration. Once this document is removed from consideration we are left only with the oral testimony. In this regard we have the statement of the victim u/s 164 Cr.P.C. where she stated that her age was 17-18 years and the same was wrongly postdated in her school certificate. Apart from this is the testimony of the illiterate mother who does not remember the dates of birth of any of her children. The third is the subsequent testimony of the victim in Court where she states that her age is 14-15 years. In view of these different dates it cannot be said that the prosecutrix was less than 16 years beyond any reasonable doubt. Once the minority of the victim is in doubt the facts take over and as per the facts the victim stayed with the appellant for almost one month. There is no explanation forthcoming for her lack of any protest during this one month.

In her testimony she stated the various places she went with the appellant but does not give any reason why she did not attract attention even when they were travelling in public. In these circumstances benefit of doubt has to be given to the appellant.

Consequently the appeal is allowed. The judgment of conviction and order of sentence is set aside. The appellant is acquitted of the charges levelled against him.