ASHOK KUMAR ALIAS DOGRA Vs. STATE OF HARYANA

JUDGEMENT

(1.) THIS Criminal Appeal has been directed against the judgment and order dated 21.9.1995 passed by the court of Sessions Judge, Kurukshetra who convicted the appellant Shri Ashok Kumar alias Dogra under Sections 366 and 376 IPC and sentenced him to undergo rigorous imprisonment for a period of three years under Section 366 of the Indian Penal Code and to pay a fine of Rs. 250/-. In default of payment of fine, the appellant was directed to undergo rigorous imprisonment for one month. The appellant was further sentenced to undergo rigorous imprisonment for seven years under Section 376 IPC and to pay a fine of Rs. 500/-. In default of payment of fine, he was directed to undergo rigorous imprisonment for two months. It was further ordered by the trial Court that all the substantive sentences shall run concurrently.

(2.) THE brief facts of the case are that Joginder Kaur mother of the prosecutrix PW.4 made a statement Ex. PD before Babu Ram Sub Inspector on 4.6.1994 at about 7.30 p.m. at the Bus Stand Saina Saidan alleging that she is married with Dalip Singh son of Mangta Singh of village Saina Saidan and that she has two sons and a daughter out of this wedlock. She further stated that her daughter Nirmala Devi (posecutrix) is aged 15 years. On 30.5.1994, her husband was away in the fields of Sat Pal Khatri in connection with doing labour work and she left her residence at about 10.00 a.m. along with the food for serving her husband in the field of Sat Pal and at that time her daughter Nirmala Devi was all alone in the house. When she returned to the house at about 2.00 p.m. after serving food to her husband in the field of Sat Pal, her daughter Nirmala Devi was not at home. She made enquiries in the neighbourhood but the whereabouts of Nirmala Devi could not be traced. Then she went to the house of Shri Ashok Kumar alias Dogra the present appellant and came to know that he too was not present in the house. It has been further averred by the complainant that Ashwani Kumar had been visiting her house daily. She narrated the incident about missing of Nirmala to her husband. Both of them made enquiries but no clue of Nirmala could be found. It has been further averred by the complainant that Ashok Kumar appellant was also absent from the house on that day and for that reason she suspected that her daughter Nirmala had been kidnapped by Ashok Kumar. Joginder Kaur and her husband then proceeded to Police Station in order to lodge report but on the way they met Babu Ram Sub Inspector and resultantly statement Ex. PD was recorded. It was read over and explained to Joginder Kaur who thumb marked the same in token of correctness. Babu Ram made endorsement Ex. PD/1 on the statement and sent the same to the Police Station for registration of the case on the basis of which formal FIR under Sections 363 and 366 IPC was registered. The girl was finally recovered on 6.6.1994 in the company of the petitioner and offence under Section 376 IPC was added after recording her statement. The appellant was arrested. His medical examination was got conducted. Medical examination of the prosecutrix Nirmala was also got conducted by the Investigating Officer. The clothes of the prosecutrix were also taken into possession and those were sent to the office of the Chemical Examiner and sent separate report. On completion of investigation and performing other formalities, the appellant was challaned in the court of Ilaqa Magistrate under sections 363/366/376 IPC. The learned Magistrate supplied copies of the documents to the accused as required under law and vide order dated 12.12.1994 committed the accused to the court of Sessions.

(3.) IN order to prove the charges the prosecution examined Shri Mukesh Kumar, Draftsman (PW1) who prepared scaled site plan Ex. P.1 at the instance of Nirmala Devi and Dalip Singh. Doctor P.K. Gupta, Medical Officer appeared as PW2 and he conducted ossification tests on the person of Nirmala daughter of Dalip Singh and gave his report Ex. P.2. Finally he determined that the prosecutrix was between 17-1/2 to 19 years. Shamsher Singh (PW.3) only partly investigated and recorded the statement of PW.1. Joginder Kaur is mother of the prosecutrix and she appeared as PW.4. Her statement was recorded in the trial Court in the year 1995 i.e. 3.4.1995 and at that time she gave her age as 40 years. From the wedlock of Joginder Kaur and Dalip Singh three children were born as is evident from the statement of Smt. Joginder Kaur. Eldest child of this couple was the prosecutrix. She is the only daughter of her parents. Joginder Kaur gave birth to male children namely Sahib Singh and Manjit Singh whose ages were stated by Joginder Kaur at the time of giving of her statement as 10 years and 5 years respectively. I will deal with the statement of Joginder Kaur in the later part of this judgment in the light of the contention which has been raised by the learned counsel Shri Raj Mohan Singh. Nirmala alias Rani prosecutrix appeared as PW.5 and she supported the allegations of the prosecution by stating that on 31.5.1994 when she was all alone in the house, appellant came and told to her he would manage clothes, ornaments and get married with her. The appellant took her from the residential house and brought her near cremation ground close to the school. It has been categorically stated by Nirmala that appellant committed rape upon her against her will and consent. From the cremation ground she was taken to Bus Stand Saina Saidan and from there she was taken to Pehowa. From Pehowa they came to Chandigarh and from Chandigarh they went to Simla where they stayed for 4/5 days. Further it was stated by the prosecutrix that the funds became short with the appellant they started return journey and when they reached at Chandigarh her uncle Balkar Singh and maternal uncle Pritam Singh met them and as a result of which they were brought to Pehowa and were taken into custody by the police. PW.6 Head Constable Jai Raj gave his statement on affidavit Ex. PF being of formal nature. Shri Babu Ram is the Investigating Officer who recorded statement Ex. PD of Smt. Joginder Kaur and got the case registered. It has been stated by the Investigating Officer that he had been making efforts for the arrest of the appellant and he could only be arrested on 6.6.1994 along with the prosecutrix. Further it has been stated that Nirmala was got medically examined. Similarly appellant was got medically examined and he was found fit for performing sexual intercourse. The clothes worn by the prosecutrix were sent to the office of the Forensic Science Laboratory, Haryana and the report Ex. PM is on the record.