OM PARKASH @ MITHA @ PREM Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS appeal arises out of the following facts :- On 21st May, 1986, PW-2 Ikrammudin son of Shadruddin was sleeping on the roof of his house while his children were sleeping the Courtyard. When he got up in the morning, he found that his daughter Saira Banu had disappeared. A search was, accordingly, made by him, but as she was not traceable, a report Ex. PB was lodged with the police Station, Dadri, in which he mentioned that Om Parkash accused had abducted his daughter. After recording of the report, S.I. Sajjan Singh visited the house of Ikrammudin and prepared the site plan and searched for the accused. The investigation was, thereafter, handed over to ASI Bal Mukand PW-8 who arrested the accused Om Parkash and his co- accused Pale Ram on 28th May, 1986 and Saira Banu was recovered from them. The statement of Saira Babu was, thereafter, recorded by ASI Bal Mukand and she stated that on 21st May, 1986, at 10. P.M. accused Om Parkash had come to her house as she lay asleep and after awaking her, he had taken her out of the house on the pretext that his sister wanted to talk to her. Om Parkash accused, thereafter, took her towards the road leading to Mazra where a car bearing No. DLT-6211 was standing. Both the accused, thereafter, took her to Sultanpuri and Delhi and while Pale Ram accused returned from there, Om Parkash kept her in a rented room taken from one Dharam Pal Jat. He introduced Saira Banu as his wife and kept her there for four/five days and committed sexual intercourse with her against her will. She was, thereafter, taken to Naurangabad, but while they were sitting in the Gulab Park, Dadri, they were apprehended by the police. On the basis of her statement, the case was converted into one under Section 376 of the Indian Penal Code and Saira Banu was got medico-legally examined on the same day from Dr. Vandana Pathak PW-4, who found no mark of injury of her person. On the same day the accused Om Parkash was also got medico-legally examined by the police and it was found that he was capable of performing sexual intercourse. Pale Ram accused was arrested on 27th July, 1986 and after completion of the necessary investigations, the accused were brought to trial. The accused Om Parkash was charged under Section 376/366 of the IPC, whereas co-accused Pale Ram was charged under Section 366 of the IPC.

(2.) IN support of its case, the prosecution relied upon the evidence of PW1 - Saira Banu the prosecutrix, PW-2 Ikrammudin the father of the prosecutrix, PW-3 Narinder Singh, PW-4 Dr. Vandna Pathak, PW-5 Dr. T.K. Pasricha and Investigating Officers Sub-Inspectors Sajjan Singh and ASI Bal Mukand PW-7 and PW-8 respective.

(3.) AS already noted by the trial Court, the outcome of this case would hinge on the question of the age of prosecutrix Saira Banu on the date on which the alleged offence took place. Although, it is true that Ex. PM the birth entry indicated that she had been born on 24th September, 1970 which could make her less than 16 years of age on the date in question, yet this entry has no relevance for the reason that it pertained to one Sahara, whereas the name of the prosecutrix is Saira Banu. It is further significant that the police itself made a request to the Incharge X-ray Department of General Hospital, Bhiwani that Saira Banu be examined for the purpose of ascertaining her age. The application mark A in this connection is on the record. This examination was, accordingly, conducted on 29th May, 1986 and Dr. Prem Kumar opined that radiological age of Saira Banu was between 16 to 17 years on the date in question. It is significant that the application Mark A and the report of Dr. Prem Chand was withheld by the prosecution as they apparently went against it. It has also been submitted that the documents which were in favour of the accused could not be ignored at this stage as they were on record. A reading of the report does show that Saira Banu was on the given date about 16 to 17 years of age and as this report can be err by a couple of years on both sides, the age more favourable to the accused has, however, to be accepted by the Court. Even assuming for a moment that the entry Ex. PM the birth certificate pertained to the birth of Saira Banu, yet it can be ignored in the light of the report of Dr. Prem Chand which is on the record of the case. It has, therefore, to be held that the prosecutrix Saira Banu was more than 16 years of age on the relevant date.