Rukmani and Others vs State of Haryana

Kanwaljit Singh Ahluwalia, J.—Paras Nath P.W. 7 lodged case FIR No. 483/2000 at Police Station Sadar Gurgaon under Sections 363, 366, 368, 376 read with Section 120-B IPC. He stated that he was employed in Parveen Industries. On 28.5.2010, he along with his family was residing in the house of Naveen Kumar Yadav at Shakti Park, Gurgaon. On the day of occurrence, i.e., 28.5.2000 at about 10.00 a.m., he along with his wife had gone to their relations in Vikas Nagar, Gurgaon. His daughter (name withheld to protect her identity and referred to as prosecutrix), aged 14 years and two sons Sanjay and Ajay, aged 8 years and 2-1/2 years respectively, were in the house. When the complainant returned back home at about 7 p.m., his son Sanjay told him that a boy named Bhopal Singh, who was residing as a tenant in the house of Rajbir Yadav, was giving bad signals to the prosecutrix from the roof of his house. At about 4 p.m., the prosecutrix left the house by saying that she was going to bring vegetables but thereafter she did not return. Since the attempts made to trace the girl did not yield results, he lodged a missing report with the police post on 31.5.2000. It is stated by the complainant that he suspected that his daughter was enticed away by Bhopal Singh son of Balam Singh, Mohinder s/o Moti Singh and Dinesh s/o Phool Singh Ahir and Rukmani wife of Moti Singh and his daughter was recovered from the house of Narain s/o Moti Singh.

Paras Nath appeared as P.W. 7 and stated that he came to know about the whereabouts of his daughter after two months as she was living with Narain and mother of Narain. The above stated FIR was investigated and report u/s 173 Code of Criminal Procedure was submitted.

The court of Additional Sessions Judge, Gurgaon formulated charge under Sections 363, 366 and 368 read with Section 120-B IPC against the present Appellants. The charge stated that the accused entered into criminal conspiracy with Narain for kidnapping the prosecutrix, minor daughter of Paras Nath from his lawful guardianship. To the similar effect was the charge u/s 366 as it was stated that the kidnapping was to subject the prosecutrix to sexual intercourse. A further charge u/s 368/120-B IPC was also formulated.

The trial court held that no offence of rape is made out as prosecutrix was more than 16 years of age. However, it came to conclusion that she was less than 18 years of age, the Appellants were guilty of hatching criminal conspiracy with Narain with whom the prosecutrix had eloped and convicted the Appellants for offences under Sections 363, 366 and 368 read with Section 120-B IPC vide judgment dated 18.1.2003, and vide order dated 22.1.2003, each of the accused was sentenced to undergo RI for 2 years and to pay a fine of Rs. 500/- each u/s 363 read with Section 120-B IPC, in default to undergo further RI for one month; the Appellants were sentenced to undergo RI for 3 years and to pay a fine of Rs. 500/- each for offence u/s 366 IPC read with Section 120-B IPC, and in default of payment of fine to undergo further RI for one month; the Appellants were further sentenced to undergo RI of 2 years and to pay a fine of Rs. 500/- each for offence u/s 368 read with Section 120-B IPC. The substantive sentences were ordered to run concurrently.

This Court has to examine as to whether the present Appellants could be convicted of offences under Sections 363, 366 and 368 IPC with the aid of Section 120-B IPC.

The prosecutrix herself appeared as P.W. 8 and stated that her parents had gone out to see her sister and she was at home with her brothers. Somebody threw piece of stone at the gate of their house. When she opened the door, she saw Bhopal standing on the roof of the adjoining house. He called her behind the house at which she showed him her chappal. Thereafter, she closed the door. After some time, when she went out of her house and was going in the street to see her aunt, then in the street a car came from behind and some body pulled her inside the car. Then she was taken to old Delhi. In the car, Mahinder, one Tallwala and Bhopal were sitting. She was taken to railway station Delhi. She was kept in bathroom. Some time thereafter, Bhopal, Tallwala and Mahinder came back. They kept her at Delhi. There she was assured that she would take to the house of her maternal aunt. In the morning, the accused brought her to Gurgaon in a bus. Tallwala and Mahinder took her around in Mandi and Bazar throughout the day and kept on assuring that they would leave her to the house of her maternal aunt. They also threatened the prosecutrix and caught hold of her neck. In the evening, Mahinder took her to his sister''s house at Gurgaon. In the house two sisters of Mahinder were there. In the morning, Mahinder took her to his mother''s house. She was forced to stay in the house of Mahender''s sister and say that her parents have died. Thereafter, Mahinder took the prosecutrix to his mother''s house named as Rukmani. There also, Mahender compelled her to repeat the same words. Mother of Mahender, namely, Rukmani left the house and Narain remained at the house. Narain forcibly put sindoor (vermilion) in token of the marriage. She was left alone with Narain. Narain had committed rape on the prosecutrix.

In cross examination, the prosecutrix admitted that there was Mandi around the house of Mahender. She had not disclosed anything to any body while the accused persons were taking her in the bazar for the whole day. Her uncle met her on that day but she did not disclose him anything. Lot of persons including ladies were around, where she was confined but she did not tell anything to any body.

P.W. 1 Dr. B.B. Aggarwal Radiologist had conducted X-ray examination of the prosecutrix. The radiological age of the prosecutrix was determined between 14-1/2 to 15-1/2 years. However, for final report, the case was referred to Dental Surgeon and LMO. P.W. 6 Dr. Ayesha Bano stated that she had examined the prosecutrix on 6.8.2000. There was no mark of injury on her body. In her opinion, prosecutrix was habitual to sexual act and she had referred the prosecutrix for ossification test and dental surgeon''s opinion. P.W. 9 Dr. R.K. Marwaha had determined the age of the prosecutrix between 14 years to 16 years.

So far as the Appellants are concerned, there is no allegation of rape against them. As per the story divulged by the prosecutrix, rape was committed by Narain. Narain had also performed marriage by applying vermilion. In the present case, Appellant No. 1 Rukmani is mother of Narain and Mahender Appellant is brother of Narain. It was held by Hon''ble Supreme Court in Alamelu and Anr. v. State represented by Inspector of Police 2011 (1) RCR 498 that the medical age determined by ossification test can vary by two years on either side. In Alamelu''s case, it was held under:

... This margin of error in age has been judicially recognized by this Court in the case of Jaya Mala v. Home Secretary, Government of Jammu and Kashmir and Ors. (1982) SCC 538. In the aforesaid judgment, it is observed as follows:

... However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side.

The prosecutrix traveled various places; she remained more than two months along with Narain. It can safely be inferred that she had herself eloped with Narain and the present Appellants who were relations and friends of Narain, have been unnecessarily dragged into and named as accused. Case of the prosecution that the present Appellants have played active and overt role to facilitate her elopement, looks improbable. Two months'' period is a very long period during which prosecutrix carried sexual activity with Narain. She had been going to bazar or market. It has come in her evidence that in bazar she met her uncle but she had not made any grievance. She did not disclose the fact that she had been kidnapped by any person. She had not made any protest, therefore, in these circumstances, this Court is hesitant to uphold the conviction of the Appellants and the same is set aside.

Hence, the present appeal is accepted and conviction and sentence of the Appellants is set aside. They are acquitted of the charge.