SAROJ Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS appeal has been filed by appellant Saroj against the judgment dated 2.8.1995 and order dated 12.8.1995 passed by the learned Additional Sessions Judge, Faridabad whereby the appellant has been found guilty for the offences punishable under Sections 363, 366 and 343 of the Indian Penal Code ('IPC' for short) and has been sentenced to rigorous imprisonment for a period of three years and to pay a fine of Rs. 1,000/- for the offence punishable under Section 366 IPC. In default of payment of fine the appellant has been ordered to undergo rigorous imprisonment for further period of six months. Besides, she has been sentenced to rigorous imprisonment for two years and a fine of Rs. 500/- for the offence punishable under Section 363 IPC. In default of payment of fine to undergo rigorous imprisonment of four months. Besides, appellant has further been sentenced to rigorous imprisonment for a period of six months for the offence punishable under Section 343 IPC. All the sentences were, however, ordered to run concurrently.

(2.) THE complainant Pushpa wife of Moti Lal (PW-10) submitted an application (Ex. PC) to the SHO, Police Station NIT, Faridabad which is to the effect that she was living with her children at Gandhi Colony, Faridabad. She has four daughters and two sons. The two elder daughters were married and the prosecutrix (name withheld) (hereinafter referred to as 'PW-7') and one daughter are unmarried. The complainant and her son do labour work and leave the house in the morning and come back in the evening. The prosecutrix (PW-7), Anita and Raju - the other children used to say at home. It is further stated that at their house a lady named Saroj (appellant) used to often come. She lived nearby in a rented house. She claimed that she belongs to Village Nandbai, District Bharatpur. The said Saroj called the daughter of the complainant, i.e., prosecutrix (PW-7) on 20.1.1993 at about 2.00 p.m. in the absence of the complainant. When the daughter of the complainant did not return home, the complainant enquired about Saroj and it came to her notice that she had left for Village Fatheypur Chandela after vacating the house. They had been searching their daughter till date i.e. 25.1.1993. They had full suspicion that their daughter PW-7 had been taken by Saroj under allurement. She had every suspicion that her daughter (PW-7) has been enticed by Saroj (appellant) and that she be helped. On the basis of the said application Ex. PC, case FIR No. 74 dated 25.1.1993 (Ex. PC/2) was registered for the offences under Sections 363 and 366 IPC. The prosecutrix (PW-7) was recovered on 28.1.1993 while the complainant Pushpa (PW-10) was standing near the bus stand of Saranpur along with two policemen. At that time her husband was with her and they saw Tejbir and Saroj (appellant) along with the prosecutrix (PW-7) near the bus stand. The prosecutrix (PW-7) came running towards them. Thereafter her medico-legal examination was got conducted. The statement of the prosecutrix (PW-7) was also got recorded in terms of Section 164 of the Code of Criminal Procedure ('Cr.P.C.' for short). She was handed over to the custody of her parents by the Police. The Police carried out investigation in the case and after completing the investigation challan in terms of Section 173 Cr.P.C. was filed against the appellant and Tejbir in the Court of Chief Judicial Magistrate, Faridabad, who committed the case to the Court of Session for trial as the offence attributed to the co-accused was under Section 376 IPC, which was exclusively triable by the said Court. The learned Additional Sessions Judge, Faridabad, to whom the case was assigned, charged the appellant and Tejbir. The appellant was charged vide charge-sheet dated 29.7.1993 that she had kidnapped the prosecutrix (PW-7), a minor girl from the lawful guardianship of Smt. Pushpa (PW-10) and thereby committed an offence under Section 363 IPC. Besides, the kidnapping of the minor girl (PW-7) was with an intention that she may be compelled or forced or knowing that she would be compelled to marry against her will with the accused Tejbir and she would be forced to illicit intercourse with the said person. Tejbir and the appellant thereby committed an offence punishable under Section 366 IPC. Lastly, that the appellant and her co-accused Tejbir wrongfully confined the appellant for more than three days in a rented house and thereby committed an offence under Section 343 IPC. Appellant pleaded not guilty to the charge and claimed trial. Co-accused Tejbir was charged for having committed rape on the prosecutrix under Section 376 IPC and under Section 343 IPC for wrongfully confining the prosecutrix (PW-7).

(3.) SHRI Tribhuvan Dahiya, Advocate, learned counsel appearing for the appellant contends that the prosecutrix has taken divergent and contradictory stands in her statement under Section 164 Cr.P.C. and while appearing in the witness box as PW-7. It is contended that the landlord of the house, i.e. Pawan Kumar (PW-13) where the prosecutrix stays has stated that he had no suspicion that the prosecutrix was kidnapped. Therefore, kidnapping and force was not there and, as such the prosecutrix was a consenting party, inasmuch as, she stayed with the accused from 20.1.1993 to 28.1.1993. She was wearing Saree and Sindoor and, therefore, her consent cannot be ruled out. As such the offence under Section 363 IPC cannot be said to be made out. It is also contended that, in any case, insofar as the appellant is concerned she is entitled to the benefit of release on probation as her husband Rohtas Singh (PW-1) appeared in Court and it was shown that he was a handicapped person and could not walk except with the help of a stick. He was Havildar in the Army. Besides, the appellant has got five children. Even otherwise the trial of the case has taken substantial time and no useful purpose would be served by incarcerating her to jail.