SUNIL KUMAR Vs. STATE OF HARYANA

JUDGEMENT

(1.) SUNIL Kumar has filed this appeal to challenge the conviction and sentence recorded against him by the Sessions Judge, Jind.

(2.) THE case of the prosecution, as brought out in the testimony of its witnesses, is that Kumari Mukesh alias Babbal PW5 was born on 20.7.1975. She was got admitted in 10+1 class in the Government Girls Senior Secondary School, Julana, District Jind, which was at a distance of 15 Kms from village Lakhan-majra. She passed her Matriculation Examination held in March, 1992 and the date of birth as reflected in the certificate issued by the Board of School Education, Bhiwani is 20.7.1975. On 12.8.1992, Ram Kishan had boarded his daughter in a bus at about 6.30 A.M. from Bus stand of his village Lakhan-majra to enable her to attend her school situated in Julana. On the way, the bus got out of order and so she could not reach the school in time. She was marked absent and was informed about that by some of her class mates. She then stayed in her school for some time and then came to Bus Stand, Julana to catch a bus in order to return to her house in village Lakhan-majra. There, she found Sunil Kumar appellant also present and he had told her that she had been called by her maternal uncle and father at Haridwar where they had gone earlier and he also showed some currency notes to her, telling her that her father had given those notes to him for taking her to Haridwar. Kumari Mukesh believed him and accompanied him to Haridwar via Jind and Panipat by bus, reaching Haridwar at about 7/8 P.M. on that day. On reaching Haridwar, Kumari Mukesh enquired from the appellant as to where her father and maternal uncle are, upon which, he told her that he had told a lie and had made mis-representation to her just to seduce her to accompany him to Haridwar. He, thereafter, brought her in a hotel at Haridwar, named Avtar Lodge, where he took a room on rent and there he kept her during the night and committed rape with her twice against her wishes. When she raised an alarm and cried, the appellant told her that if she continued raising alarm, the police would apprehend both of them from there. On 13.8.1992, he took her in a Dharamshala at Haridwar and stayed there in a room where during the night he again committed rape with her twice. On 14.8.1992, he brought her to a place near Chandigarh, telling her that he is taking her to the son of his maternal uncle and, in fact, the son of his maternal uncle met them there. On that night, he kept her in a Dharamshala near Chandigarh but did not commit rape with her. On 15.8.1992, he again brought her in the same Dharamshala at Haridwar where he had kept her earlier but did not commit rape with her on that night. On 16.8.1992, he brought her to Delhi by train and during the night of 16.8.1992, he kept her at Delhi Railway Station Platform. On 17.8.1992, he brought her to Rohtak from where she boarded a bus for her village Lakhan-majra and reached her house in the evening. When she did not return to her house on 12.8.1992 from her school at Julana, her father and other family members got worried and started searching for her at various places on that day and also on the next day. On having come to know from one Kumari Sunita, resident of village Lakhan-majra, who was living with her maternal uncle at Julana that she had seen Kumari Mukesh talking with one boy at about 11 A.M. on 12.8.1992 at Bus Stand, Lakhan-majra, Ram Kishan, father of the prosecutrix, had become suspicious as he came to know that the appellant was also absent from his house situated in village Lakhan-majra from the same day and had also taken away some money from his house. He had thought of lodging of an FIR against the appellant and proceeded towards Police Station, on 15.8.1992 but S.I. Rajinder Kumar had met him at about 7.00 P.M. at Bus-stand, Julana where the complainant made statement Ex. PJ on the basis whereof, the FIR Ex. PJ/2 was lodged. On 17.8.1992, having come to know that Kumari Mukesh had returned to her house in village Lakhan-majra, she was taken from there and was produced before Dr. (Mrs.) Manjula, Medical Officer, Civil Hospital, Jind PW2 on 18.8.1992 at 1.30 P.M. for her medico- legal examination. The lady doctor had medico-legally examined Kumari Mukesh and found that there was no external mark of injury over the valva, perineum, thighs and her hips and she was having slight bleeding due to meses and that her hymen was found ruptured and was old healed type and that her vagina admitted two fingers easily but no mark of injury was seen over the vaginal mucosa. Two swabs were taken, one from both the lateral fornices and one from the posterior fornices. The lady doctor handed over those swabs and the under wear of Kumari Mukesh to the police for sending the same to the Chemical Examiner for report. The Chemical Examiner vide his report Ex. PE opined that human semen was detected on the swabs, Salwar and Kachha of Kumari Mukesh prosecutrix. On seeing the report Ex.PE, Dr. (Mrs.) Manjula opined that the presence of human semen on the swabs, salwar and kachha of Kumari Mukesh goes to suggest that she was subjected to sexual intercourse. S.I. Rajinder Kumar had recorded the statement of Kumari Mukesh under Section 161 Cr.P.C. and her statement was also got recorded from the Additional Chief Judicial Magistrate, Jind on 19.8.1992. S.I. Rajinder Kumar had arrested the appellant on 19.8.1992, got him medically examined and on completion of the investigation, the challan was put in Court against him under Sections 363, 366 and 376 I.P.C., whereupon the Illaqa Magistrate finding that the case is exclusively triable by the Court of Session committed the same for trial to the Court of Session. On going through the papers sent up with the challan, the trial Court had found that a prima facie case under Sections 363, 366-A and 376 I.P.C. was made out against the appellant and when he pleaded not guilty to the charges, the prosecution was called upon to lead its evidence.

(3.) WHEN examined under Section 313 Cr.P.C. the appellant denied the prosecution case and termed it as false and frivolous. However, he took up the plea that Kumari Mukesh had taken him to Haridwar on 12.8.1992 to enjoy the sexual life and she herself took a room on rent in Avtar Lodge at Haridwar in her own name after paying a sum of Rs. 132/- there and there she had invited him to do sexual intercourse with her and to satisfy her lust of sexuality; and that accordingly, as per her wishes, he did sexual intercourse with her in Avtar Lodge, Haridwar as well as in a Dharamshala at Haridwar; and thereafter, she again requested him to accompany her to various other places and she had herself spent the money for that purpose; and that she was elder to him by more than two years and that he was 17 years of age at that time whereas Kumari Mukesh was about 19 years of age and that he never made any mis-representation to her nor kidnapped her nor committed rape with her, but in fact, she was not only a consenting party for all this, but it was at her instance that he committed sexual intercourse with her and took her to various places as desired by her.