Fateh Chand vs State Of Haryana

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.

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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.

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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.

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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

7. Nature of Judgment : Non-Reportable whether reportable