STATE OF HARYANA Vs. JIWAN & ORS

JUDGEMENT

(1.) This State appeal by way of leave to appeal arises out of a judgment dated 30.7.1997 passed by learned Sessions Judge, Jind, in Sessions Case No. 58 of 4.4.1996 (Sessions Trial No. 54 to 3.12.1996) recording acquittal of the accused-respondents.

(2.) The brief facts of the case as per statement of the prosecutrix PW. 4 are that on 25.5.1996 she had gone to her "Nohra" (cattle shed) for lifting and collecting dung. She requested her co-villager Jiwan to help her in lifting her "tasia" full of dung. The accused then asked her to accompany him to Shimla and also to Vaishno Devi for Darshan. The accused also lured by offering to get her, good shoes and clothes from Shimla. The prosecutrix agreed to accompany him. After three days, on 28.5.1996, she again went to "Nohra" for serving water to the animals and at about 1/1.30 pm, the accused came there and told her that it was noon time and now she could elope with him as it being a summer season, the people around would be asleep. The accused took her to grain- market Dhamtansahib through fields, while taking all precautions so that they could go unnoticed. Thereafter, she was taken inside a dilapidated room with broken roof in the grain market and there she was subjected to intercourse against her wishes. The prosecutrix and the accused stayed in that room the whole night. However, the prosecutrix did not resist the sexual intercourse. Thereafter, accused took her to Tohana in a jeep and from there to Hisar in a bus. At Hisar, she stayed in the house of Anita alias Sunita, a cousin of the accused, in Subhash Nagar colony. The accused introduced her to Anita alias Sunita and also told her that the prosecutrix had been brought for some "Jhara" to a sorcerer at Rajgarh. They stayed for 2/3 days, however, Anita alias Sunita became suspicious after one day and she lodged them separately in two different rooms. Thereafter, one Ram Niwas, a co-villager of the accused came to her place to enquire about the presence of the accused and the prosecutrix. Anita alias Sunita concealed that information and denied it. Thereafter, on 2.6.1996 the accused-respondent took the prosecutrix from the house of Sunita to bus-stand Hisar and they reached Narwana. He left the bus stand Narwana while telling the prosecutrix to sit there. After the accused had left her, his father co-accused Dharam Singh reached there. He took the prosecutrix to his house in village Hamirgarh where the mother of the accused, Kamla, was also present. This is also a statement of the prosecutrix that accused Dharam Singh met accused Jiwan at Narwana and advised him to run away and not to visit his house. He took the prosecutrix to his house. Dharam Singh and Kamla parents of the accused kept the prosecutrix hiding in a Chobara of their house for the whole night and also asked her not to raise hue and cry. They assured her that they would accept her their daughter-in-law (wife of accused Jiwan). However, they did not agree to her request for sending her to her parents. She kept on sitting throughout out of fear. On 3.6.1996, Balwant Singh (PW. 5), father of the prosecutrix, came with police to the house of the accused Dharam Singh and Kamla and traced out the prosecutrix. The prosecutrix narrated the entire incident to the police and her statement Ex. DA was recorded. She was taken to Police Post Dhamtanshaib where she was medically examined at Civil Hospital, Narwna on 4.6.1996. The present case is based on a statement made by Balwant Singh (PW. 5), father of the prosecutrix to ASI. Ajit Singh (PW. 11), and pursuant thereto, the prosecutrix was recovered from the house of the accused persons. It appears from the statement of Dr. (Mrs.) Bhagwati Gupta, Medical Officer, Civil Hospital, (PW1), that the prosecutrix was medico-legally examined on 4.6.1996. The relevant portion of the doctor's report on reproduction reads :

(3.) Accused Jiwan was arrested on 2.7.1996 on his surrender in the Court of Judicial Magistrate 1 st Class, Narwana. He was subjected to medical examination the same day and as per statement of Dr. K.C. Jain, Medical Officer, there was nothing to suggest that the accused was incapable of doing sexual intercourse. After necessary investigations, a challan was laid and the accused was tried upon for charges under Sections 366 and 376 IPC whereas his parents namely, father Dharam Singh, mother Kamla and cousin Anita alias Sunita faced trial under Section 368 IPC. During the course of trial, the prosecution produced as many as 12 witnesses. The material witnesses among them seem to be Dr.(Mrs.) Bhagwati Gupta (PW.1), the Medical Officer, who medically examined the prosecutrix on 4.6.1996, Dr. K.C. Jain (PW.2), who had medially examined the accused. Similarly, Hari Dutt (PW.3), Headmaster Govt. High School, Hamirgarh, has produced the certificate Ex.PF pertaining to the date of birth of the prosecutrix. Prosecutrix herself was examined as PW.4. Her father Balwant Singh, the complainant, has appeared as PW.5. He is the author of statement Ex. P5 made to the police which led to registration of the F.I.R. ASI Hoshiar Singh (PW.6) had prepared and submitted a report under section 173 Cr.P.C. Constable Suresh Kumar ((PW.7) is a formal witness who had delivered special report to the Ilaqa Magistrate on 29.5.1996 at 6.30 p.m. Constable Balwant Singh (PW.8) had prepared a scaled site plan (Ex. PM). HC Sukhvir Singh (PW.9), Constable Raghbir Singh (PW.10) and HC Johri Lal (PW.1 2) being formal official witnesses, have tendered their evidence on affidavits (Exs.PN, PO and PV) respectively. ASI Ajit Singh (PW.11) is the Investigating Officer of the case. The F.S.L report (Ex. PX) was tendered by Public Prosecutor during the course of hearing. The accused denied the charges and claimed trial. However, they did not lead any evidence in defence. The main question which needs to be considered is the age of the prosecutrix as the learned trial Judge has primarily recorded acquittal only on the ground that the prosecutrix was a consenting party. The main evidence about the age is a certificate (Ex PF), which contains her date of birth as 25.8.1981 issued by one Ravi Dutt, Head-Master, Govt. High School, Hamirgarh. The certificate was issued only as per entry made in the Admission and Withdrawal register of the school. This certificate is not based on any documentary evidence like a certificate issued by Registrar, Births and Deaths, entries in the Police Station or Panchayat records. The prosecutrix was admitted in the School by her father who had filled up the admission form. It has not come in evidence that the father of the prosecutrix was in possession of any documentary evidence, in support of the certificate issued by the Headmaster (PW.3) as initially the prosecutrix was admitted in the school on the basis of informations furnished by him. He had filled up the form and also given the birth details. Moreover, at the time of recovery of the prosecutrix, she had given her age as 16 years. It has also come on record that the prosecutrix was though taken to Civil Hospital, Jind, for ossification test as per the statement of the Investigating Officer (PW.11). but no test report was placed on record. Moreover, from the evidence of Dr. (Mrs.) Bhagwati Gupta (PW.1) who medically examined the prosecutrix, it appears that there was an old rupture of hymen. The doctor could not find any external injury on the vaginal part or the part of body of the prosecutrix. In her evidence, the prosecutrix (PW.4) has admitted that during sexual intercourse, she had not said any thing to the accused. Thus, there was no resistance on her part. That apart, she had accompanied the accused voluntarily, however, later on in her statement, she has stated that she was lured by the accused to accompany him. She stayed at different places with the accused but did not raise any hue and cry. Moreover, she was well aware of the intention of the accused when on 25.5.1996 she had expressed her desire to accompany him to different places. Even on the date of elopement, she had requested the accused to take her along. In this background, when the age of the prosecutrix is not proved to be below 16 years from the evidence on record, ocular and documentary, and further that there is a margin of error of 2/3 years on either side even in the case of ossification test, we do not find any infirmity in the impugned judgment and agree that the prosecutrix was not a minor on the date of elopement. Rather, she was a consenting party, and the trial Court has rightly recorded the order of acquittal. Hon'ble the Apex Court while discussing the law on appeal against acquittal has held in the judgments (i) (Harijana Thirupala and others v. Public Prosecutor, High Court of A.P. Hyderabad, 2002 3 RCR(Cri) 861) : (ii) (Shingara Singh v. State of Haryana and another, 2004 2 RCR(Cri) 940), and (iii) (State of UP v. Gambhir Singh and others, 2005 AIR(SC) 2439), that even if another view was possible, that itself was no ground to interfere with the order of acquittal unless it was shown that the appreciation of evidence by the trial Court was either perverse, or untenable and that in ordering acquittal, the trial Court either ignored material evidence or that the view taken by it was patently untenable. The Hon'ble Court has reiterated this view time and again that if two views are reasonably possible on the basis of evidence, the view of acquittal taken by the trial Court would be a possible reasonable view. In such cases, the High Court need not interfere.