DHARAMVIR Vs. STATE OF HARYANA

JUDGEMENT

(1.) DHARAMVIR son of Nek Ram and Kailash son of Pritam Singh was convicted under Section 366 of the Indian Penal Code, and were sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 250/- each, vide, order dated 27-9-1988 passed by the Sessions Judge, Faridabad. In default of payment of fine they were ordered to undergo rigorous imprisonment for three months. Dharamvir accused was also convicted under Section 376 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 500/-. In default of payment of fine he was ordered to undergo further rigorous imprisonment for six months. Both the substantive sentences awarded to Dharamvir accused were ordered to run concurrently. Dharamvir accused file Criminal Appeal No. 454-SB of 1988 through jail and later on Mr. P.C. Chaudhary Advocate, appeared on his behalf, whereas Kailash accused filed Crl. Appeal No. 432-SB of 1988, against the order of their conviction and sentence passed by the trial Court. Since common questions of law and fact are involved, both these appeals shall be disposed of by one order.

(2.) IN brief facts of the prosecution case, are that on 14-8-1987, on the basis of complaint made by Ombir Singh uncle of Pushpa alias Munni (Prosecutrix) formal first information report was registered that Pushpa alias Munni aged about 13/14 years is the daughter of his cousin Ranbir Singh. She alongwith her two brothers and sister was residing with Ranbir Singh. Dharamvir accused was working as a servant with Balbir singh younger brother of Ranbir Singh aforesaid for the last about ten months. Kailash accused used to visit Dharamvir accused quite often Dharamvir accused induced Pushpa to marry him. A day prior to 12-8-1987, Kailash accused came to see Dharamvir and at about 3 or 4 a.m. Siri Ram saw both the accused alongwith Munni alias Pushpa going towards Faridabad. Before lodging the complaint the first informant and other relations of Pushpa searched for her but to no effect and lodged the complaint with the police. ASI Deep Chand arrested Kailash accused on 15-8-1987 and recovered Pushpa from house No. 581, Sector 19. Faridabad, where she was found with Dharamvir accused. Pushpa PW and Dharamvir accused were got medically examined. After completion of the investigation, the accused were challenged, tried, convicted and sentenced as indicated earlier.

(3.) THE learned counsel for the appellants assailed the prosecution story firstly on the ground that the prosecution has failed to prove that the prosecutrix was minor, or, was 14 years of age at the time she is said to have been Kindapped or raped. Dr. Savita Ranjan, PW 1 admitted in the cross-examination that the possibility that the prosecutrix could be of 14 years of age cannot be ruled out. She did state that the prosecutrix could be more than 14 years of age, but was not in position to give her exact date. In order to determine her age, she had referred the case to the Radiologist and Dentist. Admittedly, no ossification test was conducted to determine the radiological age of the prosecutrix. The prosecutrix gave her age as 14 years to the doctor when she was medically examined. The opinion of the doctor that the prosecutrix appears to be 16 or 17 years of age without any cogent basis cannot be relied upon. Nor from failure on the part of the investigation to get conducted ossification test which would be helpful only in determining the approximate age of the prosecutrix and is not considered to be a surer test for such determination no adverse inference can be drawn against the prosecution. The fact remains that the prosecution has produced the best evidence of Ranbir Singh PW 10 who had given the age of his daughter. Pushpa alias Munni as 14 years. No infirmity worth the name has been pointed out in the testimony of this witness concerning the age of the prosecutrix. Testimony of Ranbir singh father of the prosecutrix finds ample corroboration from the testimony of the prosecutrix Pushpa alias Munni, who has consistently given her age as 15 years at the time when she was kidnapped. The testimony of Ranbir Singh PW is further corroborated by the testimony of Hukam Dhand PW 13 who was given the date of birth of the prosecutrix as 8th of April, 1973 on the basis of the entry in the admission register. It is true that Hukam Chand PW did not bring the admission forms with him when he appeared before the trial Court. From the non-production of admission form, no adverse inference can be drawn concerning the entry of date of birth of the prosecutrix in the school admission register. Testimony of Pushpa and that of Hukam Chand PW coupled with the certificate in respect of date of birth in the school admission register, lends further corroboration to the testimony of Ranbir Singh father of the prosecutrix in order to establish that the prosecutrix was 14 years of age at the time when she was kidnapped.