SUNIL Vs. THE STATE OF HARYANA

JUDGEMENT

(1.) SHRI Sunil son of Shri Lakhmi Chand, has filed the present criminal appeal and it has been directed against the judgment dated 19.1.2002 and order dated 22.1.2002, passed by the Court of Additional Session Judge, Bhiwani who convicted the appellant under Sections 363, 366 and 376 of the Indian Penal Code and sentenced him to life imprisonment and to pay a fine of Rs. 1000/- under Section 376 IPC. In default of payment of fine he was directed to undergo R.I. for two months. The appellant was sentenced to undergo R.I. for a period of 4 years and to pay a fine of Rs. 1000/- under Section 363 IPC. In default of payment of fine he was directed to undergo R.I. for two months. He was further sentenced to undergo six years and to pay a fine of Rs. 1000/- under Section 366 IPC. In default of payment of fine he was ordered to undergo further R.I. two months. The learned trial Court also gave the direction that all the sentences imposed upon the appellant shall run concurrently.

(2.) THE appellant Shri Sunil, was charge-sheeted under Sections 363/366/376 IPC on the allegations that on 23.4.1997, in the area of Siwani, he kidnapped Ms. Shanti alias Sunder, a minor female under the age of 18 years from the lawful guardianship of her father Shri Hira Ram and thereby committed an offence punishable under Section 363 IPC. The second charge against the appellant was that he allegedly induced Ms. Shanti alias Sunder, the minor girl, with such intention that she may be forced to illicit intercourse and thereby committed an offence punishable under Section 366 IPC. The third charge against the accused-appellant was that he allegedly committed rape upon Shanti alias Sunder, a minor girl, without her will or consent and thereby committed an offence punishable under Section 376 IPC. The F.I.R. in this case was lodged by Shri Hira Ram, deceased, father of the prosecutrix who made statement before S.I./SHO, Police-Station, Siwani when the Investigating Officer along with policy-party, was patrolling and was checking the crimes near the B.D.O. Block, Siwani. The complaint Shri Hira Ram met the Investigating Officer and made a statement to the effect that he was a resident of Ward No. 12, Siwani town and does the work of taking contract of dead cattle at Siwani. He had 7 daughters and 3 sons. Out of them, Maya is the eldest daughter and then Jamna and thereafter, Munni, then Chhotti Bai, then Om Parkash and thereafter Ram Bhateri. Jagdish is younger to Bhateri. Krishna is younger to Jagdish. After the birth of Krishna, Ram Chander was born and the youngest child in the family is Sunder prosecutrix. He further stated that his six elder daughters and two elder sons are married. Ram Chander younger son was aged about 16/17 years and Ms Sunder younger daughter was about 14/14-1/2 years and she was unmarried. He further stated that all the married daughters usually visit his house. His sons and other members of the family are residing in one house jointly. During the days of occurrence, due to the harvesting season he and his wife Darka, his sons Om Parkash and Jagdish Chander and grand-daughter had gone to village Talwandi Rana Police-Station, Sadar, Hisar from 21.4.1997 for harvesting crops. His younger daughter Sunder, the wife of his elder son Om Parkash, namely Parwati and wife of Jagdish namely Krishna were left in the house to look after the same. Yesterday i.e. on 23.4.1997 at about 3/4 P.M. he along with family members, was working in the field at village Talwandi Rana when Bijinder Singh son of Asa Ram, resident of Siwani, who is friend of his son Jagdish and treats him like brother, had informed that his daughter Sunder had been missing since morning. On receipt of this information, he along with other members of the family reached the house at Siwani. On inquiring Parwati wife of Om Parkash and Krishna wife of Jagdish told him that as usual both of them and Sunder prosecutrix slept in the courtyard of the house after taking the meals. At about 5/6 A.M. Sunder was cleaning the courtyard outside the house. Thereafter, she did not come back inside the house for a sufficient long time. They searched here and there but no clue could be found. Thereafter, they sent a message through Bijender. It has also been stated by the deceased Shri Hira Ram that on reaching Siwani he and his sons made a search of his daughter Sunder in the relations but on enquiry he had come to know that his daughter Sunder had been enticed away by Sunil son of Shri Lakhmi Chander resident of Ward No. 12. Siwani, whose house was situated towards the Western side of the house of the complainant because Sunil was also not present in the house. When he and his son Jagdish were proceeding for the police-station then the police-party met him on the way and resultantly he gave statement Ex. PO which was read over and explained to the complainant who thumb marked the same in token of its correctness and thereafter, the Investigating Officer made endorsement Ex. PD/1 underneath the said statement and it was sent to Police- Station, Siwani for the registration of the case on the basis of which formal FIR No. 115 dated 24.4.1997 under Sections 363/366 IPC was registered and Shri Krishan Kumar started the investigation of this case. He visited the place of occurrence and prepared rough site plan. He also recorded the statements of Krishna and Parwati under Section 161 Cr.P.C. Accused was arrested on 28.4.1997. On the same day, the prosecutrix was also recovered from the possession of the appellant. The medical examination of Shri Sunil was got done in Civil Hospital. Siwani and after examining, the doctor handed over three parcels to the Investigating Officer which were taken into possession vide memo Ex. PQ. Those parcels were deposited in the Malkhana. The medical examination of Ms Shanti alias Sunder was got done on 29.4.1997 from Civil Hospital, Bhiwani and the doctor also handed over three parcels to the police which were taken into possession vide memo Ex. PE. On 2.5.1997 the investigating officer moved an application Ex. PN before the learned area Magistrate for recording the statement of the prosecutrix under Section 164 Cr.P.C. 4. The Investigating Officer also took into possession the school admission certificate of the prosecutrix and as per the school record, the date of birth of the prosecutrix is 2.2.1983. The certificate is Ex. PJ. As per this certificate the prosecutrix was aged 14 years 2 months and 21 days on the date of her alleged kidnaping.

(3.) The Dr. V.S. Nain, Medical Officer, PW-8, on 28.4.1997 at 6.00 P.M. on the police request Ex. PE medically examined the accused Sunil aged about 21 years in order to give the opinion as to whether he was fit to perform sexual intercourse or not. The observations of the doctor were as follows :-