Fateh Chand Vs. State
of Haryana [2009] INSC 1124 (29 May 2009)
Judgment
CRIMINAL APPELLATE
JURISDICTION CRIMINAL APPEAL NO. 1096 OF 2004 FATEH CHAND .... Appellant Versus
STATE OF HARYANA .... Respondent
Dr. B.S. Chauhan, J.
1.
This
appeal has been preferred against the judgment and order dated 21.8.2003 of the
High Court of Punjab and Haryana at Chandigarh passed in Criminal Appeal
No.341-SB of 1988 by which the High Court has dismissed the appeal against the
judgment and order of Additional Sessions Judge, Faridabad dated 12.8.1988 and
16.8.1988 convicting and sentencing the appellant to undergo R.I. for seven
years and to pay a fine of Rs.500/-, or else to further undergo R.I. for six
months, under Section 376 IPC and R.I. for five 2 years and a fine of
Rs.500/-, or in default to further undergo R.I. for six months under Section
366 IPC. However, it was directed that both the substantive sentences of
imprisonment shall run concurrently.
2.
The
facts and circumstances giving rise to this appeal are that the prosecutrix
Geeta was present at her house in village Dayalpur, on the morning of 5.6.1986
when Krishna, wife of Fateh Chand (appellant herein), came there and asked her
to visit Ballabgarh as her mother had met with an accident. The prosecutrix
boarded a tempo from her village and came to Ballabgarh. When she got down from
the tempo at Ballabgarh, Fateh Chand - appellant who had also traveled in the
same very vehicle from Dayalpur to that place, told Geeta that her mother was
lying in the hospital at Ballabgarh and that he could assist her in taking her
to the hospital. Appellant arranged for a car and made Geeta to sit in the car.
Geeta was given an intoxicant by the appellant in lemon water before sitting in
the car. Prosecutrix - Geeta was taken to the house of Shanti Devi,
mother-in-law of the appellant at Jaipur where she was forcibly 3 subjected to
sexual intercourse by the appellant. Geeta was left at the house of Shanti Devi
by the appellant where she was sexually abused and coerced to indulge in flesh
trade. Appellant and his wife Krishna again visited the house of Shanti Devi at
Jaipur after few weeks and advised the prosecutrix not to return to her house.
She was informed that a dead body of some young girl was recovered and it was
identified as that of Geeta. Thus, if she returned home, her parents would be
in difficulty. The case which was registered by the parents of Geeta under
Section 364 IPC was filed as untraced in the month of October, 1987. On
13.11.1987, Geeta returned to her house. She was produced before the police and
investigation again started. Geeta was medically examined by Dr. Savita Ranjan
on 14.11.1987. She was also put to radiological test on 17.11.1987 to determine
her age. Fateh Chand - appellant was arrested on 17.11.1987. After completion
of investigation, challan was filed against the appellant and he was charged
under Sections 366/376 IPC to which he pleaded not guilty and claimed trial.
3.
Before
the trial court basically the question arose as to what was the age of the
prosecutrix and whether the appellant was guilty of the aforesaid offences.
4.
On
the issue of the age of the prosecutrix, the prosecution examined the
prosecutrix Geeta PW.3, her mother Satya PW.4, her father Jagdish PW.6 and Dr.
Rajesh Gupta PW2, who examined the prosecutrix radiologically on 17.11.1987.
All of them deposed and given cogent explanation to the effect that the
prosecutrix was below 16 years of age at the time of incident. Dr. Savita
Ranjan PW1, who examined the prosecutrix on 17.11.1987 opined that the
prosecutrix was habitual to sexual intercourse. After considering the evidence,
the trial court came to the conclusion that it was a case of having peculiar
features as the prosecutrix remained under constant threat for a long time and
she had been subjected not only to sexual harassment by the appellant but had
been forced to indulge in flesh trade. She had been taken away by the appellant
fraudulently. The trial court found the charge against the appellant 5 proved.
Thus, he was convicted and awarded sentences as aforesaid.
5.
Before
the High Court, in appeal, same issues were raised and the High Court came to
the conclusion that at the time of incident prosecutrix was below 16 years of
age. Appellant committed rape on her. She had been coerced to indulge in flesh
trade and, therefore, the conviction as well as the sentence was maintained.
Hence this appeal.
6.
In
spite of the knowledge that the matter would be heard by this Court in Vacation
and notice for that purpose had been given long back, none appeared for the
appellant. Thus, the Court had no option but to go through the entire record
and examine the evidence on record minutely with the help of the learned
counsel for the respondent-State, Shri T.V. George.
7.
There
could be no doubt regarding the age of the prosecutrix in view of the
depositions of the aforesaid witnesses on this issue 6 and we do not see any
cogent reason to interfere with the said findings of fact recorded by the
courts below. As per the evidence given by her mother Satya(PW 3) and father
Jagdish (PW 6), it is clear that her parents got married only 20 years prior to
the date of incident. The prosecutrix had two elder sisters. Eldest sister
Mithlesh was born one and a half years after the marriage of her parents and
Sunita was 1= years younger to Mithlesh. Prosecutrix Geeta is younger to Sunita
by about one and a half years. So on the date of incident, the age of the
prosecutrix was less than 16 years. There could be no reason to disbelieve the
said witnesses.
Being parents of the
prosicutrix, they could be the most natural and reliable witnesses on this
point. Dr. Rajesh Gupta (PW2) examined the prosecutrix radiologically and
opined that her age could be between 14 and 17= years as on 17.11.1987. Thus,
on this issue, we have no reason to interfere with the concurrent finding of
fact by the Courts below.
8.
It
was a case of taking the prosecutrix away fraudulently and subjecting her to
rape by the appellant and forcing her to indulge 7 in flesh trade by coercion.
Deposition of the prosecutrix herself unfolds the facts. Prosecutrix remained
for about one and a half years in Jaipur and reasons for which she could not
come back or inform her parents, stand well explained by the prosecutrix that
she had been given threat by the appellant that the dead body of some other
girl had been identified by her parents to be of the prosecutrix and thus if
she went back, her parents would be in difficulty. She had been living under a
constant threat and could not muster the courage to inform any person.
9.
Grounds
taken in the appeal are not worth acceptance. It has been urged that there was
inordinate delay in lodging the FIR. The delay was bound to occur as the FIR
was filed after return of the prosecutrix from Jaipur after one and a half
years remaining under the ordain of the accused/appellant. An FIR had been
lodged just after disappearance of the prosecutrix on 5.6.1986 but the said
case stood closed.
10.
The
issue of not having physical injury marks of any nature on the body of the
prosecutrix is irrelevant and not worth taking into consideration for the
simple reason that the accused had raped the prosecutrix immediately after
taking her away to Jaipur. She was examined after one and a half years from the
date of abduction and rape. She had been forced to indulge in prostitution
during this period. Therefore, the prosecutrix had become habitual to sexual
intercourse. In such a fact-situation, question of having any physical injury
marks would not arise.
11.
Undoubtedly,
the prosecutrix had been taken away from the lawful custody of her parents by
the appellant Fateh Chand to the place of his mother-in-law at Jaipur and she
had been subjected to rape by him and was coerced to indulge in prostitution.
Thus, the case certainly boarded on trafficking of women. There had been
intervening factors specially the recovery of the dead body identified to be
that of the prosicutrix had stalled the immediate search of the prosecutrix and
thus, no attempt was made to trace her out. She had been taken deceitfully. As
she had remained under the 9 constant threat and coercion, she could not share
her agony to any person who could help her. Thus, there is nothing on record to
show that prosecution could not prove the case against the appellant beyond
reasonable doubt for the offences punishable under Section 366/376 IPC.
12.
In
view of the above, we do not see any merit in this appeal and the same is,
accordingly, dismissed. Appellant is on bail. His bail bonds and surety bonds
stand cancelled. He be taken into custody forthwith to undergo the remaining
part of the sentence.
.........................................J.
(Dr. Mukundakam Sharma)
.........................................J.
(Dr. B.S. Chauhan)
New
Delhi;
May
29, 2009.
10 Digital Proforma
1. Case No. :
Criminal Appeal No. 1096 of 2004
2. Date of decision :
29.5.2009
3. Cause Title :
Fateh Chand vs.
State of Haryana
4. Coram : Hon'ble
Dr. Justice Mukundakam Sharma Hon'ble Dr. Justice B.S. Chauhan
5. Date of C.A.V. :
25.5.2009
6. Judgment delivered
: Hon'ble Dr. Justice B.S. Chauhan by
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