Vijay Kumar vs Union Territory, Chandigarh

J.S. Sekhon J.

Vijay Kumar and Dori Lal, appellants were acquitted by the

learned Additional Sessions Judge, Chandigarh on Ist April, 986, of the charge under Sections 366/376 of Indian Penal Code but convicted of the charge punishable under Section 363 of Indian Penal Code and vide order dated 3rd April, 1986, the learned trial Court sentenced them both to undergo 2 years rigorous imprisonment each. Feeling aggrieved from the above said order, they have come up in appeal.

The brief resume of facts relevant for the disposal of this appeal is that Miss Suman along with her parents used to reside in Bapudham Colony, Chandigarh where Vijay Kumar, appellant, also resided. On the evening of 9th July, 1985 at about sunset time she went to the common latrines for easing, out. Vijay Kumar and Dori Lal, accused, met her and asked her to accompany them on the inducement of purchasing good clothes and ornaments. Vijay Kumar also promised to marry her. Feeling allured by this representation, she accompanied them to the hutment of Vijay Kumar where all of them stayed for the night. On the next morning, all of them went to Railway Station, Chandigarh. She was made to board the train along with Dori Lal, accused, on the representation of Vijay Kumar that he will join them later. They went to Bareilly. At Bareilly Railway Station, Dori Lal, accused, started misbehaving with prosecutrix on which she complained to A.S.I. Vijay Kumar of Railway Police and her statement was recorded. Dori Lal, accused, was also arrested. The father of the prosecutrix being out of station, her brother Mohan Rao and mother continued waiting for his arrival till 1171985 when her father lodged the report Ex. PK with the Police and on its basis the formal FIR Ex. PK/D was recorded on 1271985 at 8.45 p.m., at Police Station East, Chandigarh, for offences punishable under Sections 363 and 366 of Indian Penal Code. The police then brought the prosecutrix and Dori Lal, accused from Bareilly and got the prosecutrix medically examined by Dr. Harbir Bajwa, PW1, who observed no injury on her private parts. The vagina admitted two fingers with difficulty. On ossification tent, conducted by Dr. S.P. Gupta, PW9, the bone age of the prosecutrix was found between 161/2 years to 17 years. Vijay Kumar accused, was also got medically examined. During investigation, School admission form and affidavit of the father of the prosecutrix was produced which depicted her date of birth as 30121971. After completion of investigation the accused were arraigned for trial on such like allegations. The trial Court framed charges against the accused under Sections 363, 366 and 376 of Indian Penal Code. In order to prove its above referred charges, the prosecution examined the prosecutrix; her brother Mohan Rao, PW7; her father, Bithal Rao, PW 11; Smt. Sundra, PW8, her mother; besides leading medical evidence and examining the investigators. The assertion of both the accusedappellants before the trial Court was that of simple denial and false implication. The accused, however, led no evidence in defence despite being called upon to do so by the trial Court.

The trial Court partly believing the version of the prosecutrix and other evidence convicted the accused for the offence punishable under section 363 of the Indian Penal Code but acquitted them for charges under Section366/376 of Indian Penal Code as mentioned above.

The acquittal of the accused for the offence under Sections 366/376 IPC has become final as the application under Section 378(3) of the Code of Criminal Procedure of the Union Territory Administration for leave to appeal against that order was declined by a Division Bench of this Court on 10.7.1988.

Mr. H.S. Nirmal, learned Counsel for the appellants, has failed to turn up despite notice of actual date of hearing. Thus there is no option but to dispose of this appeal after perusing the record carefully and hearing Mr. R.S. Rai, the learned counsel for respondent.

Regarding the age of prosecutrix, it transpires that usually the parents of the child depict him younger in age at the time of admission to. school so that he/she could have more opportunities to appear in the competitive examinations after completing studies. It appears that Bithal Rao, PW 11, father of the prosecutrix has given her date of birth as 30121971 in the affidavit at the time of her admission in the school at Delhi. Mrs. Sharda, PW10. brought the record of Government Primary School, Delhi, including the admission form and affidavit of Bithal Rao, accompanying such form. In the admission register as well as in other documents, the date of birth of the prosecutrix is depicted as 30121971. Thus the testimony of the prosecutrix and her father in this regard stands corroborated from this documentry evidence. The ossification test of her own age conducted by Dr. S.P. Gupta, PW9, also shows that her age ranged between 161/2 to 17 years, so there is no infirmity in the findings of the trial Court regarding the age of prosecutrix being less than 18 years on the day of her kidnaping.

The testimony of the prosecutrix further shows that Vijay Kumar and Dori Lal, accused, induced her to accompany them on the representation that Vijay Kumar, accused, will marry her and give her good clothes and ornaments. She also stated that on the way to Bareilly, Dori Lal, accused, had also promised to marry her. Her contention that Vijay Kumar accused had subjected her to sexual intercourse about 10/15 days prior to her kidnaping and that she had not informed her parents of this fact further goes to show that she was a willing party to the entire episode, except that she did not agree to, succumb to the indecent overtures of Dori Lal, accused, at Bareilly Railway Station which resulted in her lodging the report with the Railway Police, Bareilly. Her conduct in not raising hue and cry during the night she was kept at the hutment of Vijay Kumar in the same colony where her parents resided further supports this conclusion. The matter does not rest here as she did not raise any hue and cry while going to the Railway Station, Chandigarh, or boarding the train or during the journey upto Bareilly till Dori Lal, accused, started misbehaving with her. Thus there is no escape but, to conclude that she had acted on the misrepresentation of Vijay Kumar, accused, to marry her.

The version of the prosecutrix in this regard is corroborated from the factum that she had setup a similar version regarding her kidnaping with the Railway Police at Bareilly. The factum that she had not disclosed Vijay Kumar, accused, having had sexual intercourse with her 10/15 days prior to this occurrence to her parents even though she was expected to narrate this fact with a view to connect it with her kidnaping or abduction by the accused further shows that she has no motive to falsely implicate the accused. Thus her testimony being reliable qua her kidnaping from lawful guardianship, no interference on merits of the case is called for.

However. keeping in view that both the accused are young boys of hardly 17 to 18 years of age and that they fell prey to the sexual lust due to tender age, it appears to be a fit case where the appellants should be afforded at least one opportunity to reform themselves. Keeping in view the reformative trend of modern penology the appellants are directed to be released on probation for a period of two years on furnishing requisite bonds to the satisfaction of Chief Judicial Magistrate, Chandigarh, undertaking to keep peace, be of good behaviour and to appear to receive sentence during this period, it called upon to do so. The bonds should be furnished within one month of this order.

Except for the above referred modifications in the sentence, the appeal of the appellants fails and is hereby dismissed. An intimation of the disposal of appeal be sent to the appellants as well as their counsel forthwith.