- (1.) THE present appeal has been directed against the judgment of conviction and order of sentence dated 08.08.2001 and 11.08.2001 respectively whereby the appellant has been convicted and sentenced for commission of offence punishable under Sections 363, 366, 376 of the Indian Penal Code (hereinafter referred to as 'IPC') by the Additional Sessions Judge, Jagadhri, detailed hereinbelow: - JUDGEMENT_494_LAWS(P&H)2_2014.htm
(2.) THE facts of the case as extracted from the judgment of learned trial Court are that Ram Singh son of Kalu Ram, on 24.12.1998, made a statement that he has two sons and two daughters, his elder daughter is married and younger (prosecutrix, name keep secret) (hereinafter referred to as 'the girl') is a student of 9th class in Government School, near Sabzi Mandi. On 23.12.1998, he had gone to Panchkula in connection with his personal work. At about 8 PM, when he came back, his wife told him that 'the girl' has not returned home from the school. On the next morning, he went to school, inquired about his daughter but came to know that his daughter had not come to the school on 23.12.1998. Later, one Parkash son of Bishna Ram, caste Harijan told him that he had seen 'the girl' with Bittu @ Swaran son of Sham Lal, resident of Tirath Nagar on motor -cycle on 23.12.1998 at about 8.34 AM. He got suspicious about involvement of Bittu as he had been visiting his house on many occasions.
(3.) ON the basis of the statement of the complainant, formal FIR was registered in the police station. 'The girl' came back to her house and narrated her tale of woe to her mother. The statement of 'the girl' was recorded under Section 164 of the Code of Criminal Procedure (in short 'the Code') by Sh.Ajay Tewatia, the Judicial Magistrate Ist Class, Jagadhri. She deposed that she was taken by the accused on her way to school on 23.12.1998 at about 8.30 AM on the pretext that her brother (the girl's) Gurmeet is calling her. The accused brought her towards stadium, gagged her mouth and committed rape. He again directed her to sit on the motorcycle by extending threat and took her towards Saharanpur road side fields, kept her there in the fields for the whole day, committed rape during night time and the next morning and in the evening left her near Mata Ka Mandir (temple). On the basis of the statement of 'the girl', offence under Sections 366, 376 IPC were added. The accused was arrested on 26.12.1998. The accused and the prosecutrix were got medico legally examined from Civil Hospital, Yamunanagar. On completion of investigation, challan was presented in the Court of Chief Judicial Magistrate, Jagadhri. After due compliance with the provisions of Section 207 of the Code, the case was committed to the Court of Additional Sessions Judge I, Jagadhri. 4. The accused was charged for committing offence punishable under Sections 363, 366 -A, 376 IPC, to which he pleaded not guilty and claimed trial. To prove its case, the prosecution examined as many as 15 witnesses namely Dr.Neenu Kalra PW1, Dr.B.S.Deswal PW2, Constable Parveen Kumar PW3, Ram Singh (father of the prosecutrix) PW4, Sundri Devi (mother of the prosecutrix) PW5, Constable Ram Kumar PW6, Sukhdev Sharma PW7, Shiv Charan Singh PW8, SI Inder Singh PW9, Bhag Singh PW10, Mohinder Singh PW11, Inspector Arun Singh Nehra PW12, Ajay Tewatia, the then learned Judicial Magistrate Ist Class, Jagadhri PW13, 'the girl' (prosecutrix) PW14 and SI Shankar Lal PW15. 5. The statement of accused was recorded in terms of Section 313 of the Code wherein he denied the incriminating circumstances put to him with the plea that the prosecution story is false and fabricated one. He has raised the plea that the certificate Ex.PH is false and date of birth of 'the girl' is 27.11.1981. 'The girl' had gone with one Vijay Kumar and he informed the parents of 'the girl' but her parents got the case registered against him as his father had some dispute regarding money with father of the prosecutrix. In defence, he examined Kishori Lal DW1 and Sham Lal, his father DW2. The learned trial Court, after having heard counsel for the parties and bestowing its consideration to the rival submissions made by counsel, arrived at the conclusion that the prosecution has successfully established the offence charged against the accused and as a sequel thereto, the accused has been convicted and sentenced for the offences as detailed hereinbefore. 6. Feeling aggrieved by the verdict of the learned trial Court, the present appeal has been filed by convict Swaran Kumar @ Bittu. Counsel for the appellant has submitted that prosecution case is not free from lacunae, embellishments, additions and improvements of which the benefit is liable to be extended to the appellant. To bring home his contentions, he has assailed the prosecution case on several counts. The first submission made by counsel for the appellant is that a false case has been registered against the accused due to differences between the complainant and father of the accused in regard to some money dispute as both of them were engaged as Masons and the complainant owed an amount of Rs. 7000/ - payable to Sham Lal DW2, the father of the accused. Another submission made by counsel is that even if version of 'the girl' is accepted, she is a consenting party, left alongwith the accused and indulged in sexual relationship. To substantiate his contention in this regard, it is argued that no injury was found on the person of 'the girl' or the accused which rules out possibility of forcible sexual intercourse or any resistance being offered by 'the girl'. Further dilating, it is contended that as per the statement of 'the girl', she was carrying her school bag when she was made to sit on the motor -cycle by the accused and she left the school bag at a shop, later taken back by her from the said shop. It is argued with vehemence that had 'the girl' been not a consenting party, she had the best opportunity to disclose her tale of woe to the shopkeeper that she was either forcibly taken by the accused or subject to sexual intercourse. According to counsel, 'the girl' travelled quite some distance on the motor -cycle driven by the accused but she never raised any alarm to seek any help for getting herself free particularly in the circumstances that she has admitted that the accused was driving the motor -cycle using his both hands and she was sitting on the pillion freely by herself. 7. Another plea taken up by counsel is that even if the prosecution story is accepted in its entirety, no offence under Section 366 IPC is made out much less proved against the appellant. Counsel has submitted that 'the girl' has admitted in her cross -examination that she was born on 27.11.1981, therefore, she was more than 17 years old at the time of the occurrence. As 'the girl' voluntarily accompanied the accused, one of the ingredients of the offence under Section 366 IPC goes missing which entitles the appellant to be acquitted of the offence punishable under Section 366 IPC. 8. Counsel for the appellant has also pointed out certain inconsistencies in the testimony of the witnesses in regard to time when 'the girl' reached her house on 24.12.1998. According to counsel, 'the girl' has stated that she reached her home few minutes after 5 PM, her mother deposed that she came back at about 8.30 PM but her father stated that she returned at 6 PM. Another submission made by counsel is that the First Information Report was lodged by the father of 'the girl' on 24.12.1998 at 9.15 PM raising suspicion about involvement of the accused but no explanation has been tendered that if 'the girl' had returned before lodging the FIR, why she was not produced before the Investigating Officer for recording her statement on 24.12.1998. 9. Counsel for the State has supported the judgment passed by the learned trial Court with the submissions that no fault can be found with the reasons, weighed in the mind of the trial Court to accept the testimony of 'the girl' which is duly corroborated by medical evidence in view of the testimony of Dr.Neenu Kalra PW1, who medico legally examined the prosecutrix on 25.12.1998. It is further argued that in view of the document proved on record by the accused himself, 'the girl' was less than 16 years of age on the day of occurrence and therefore, the consent of 'the girl' for allowing sexual intercourse loses itself relevance and significance. 10. I have heard counsel for the parties and gone through the records with the assistance rendered by learned counsels. Before adverting to the merits of the controversy in view of the submissions made by counsel for the parties and facts on record, it is appropriate to mention that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the consequences flowing therefrom. If she is found to be false, she would be looked upon by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find suitable groom and she may be treated as an out caste. When the facts and circumstances of the present case with regard to false implication of the accused are examined in the light of aforesaid observation, I find it difficult to accept that the accused has been falsely indicted in the crime due to some dispute between the father of the victim and the father of the accused in regard to payment of Rs.7000/ - only. In this view of the matter, the appellant cannot derive any strength to his contention from the testimony of his father Sham Lal DW2, who is otherwise highly interested to save the accused from the consequences of crime committed by him. 11. This bring the Court to consider another contention of the appellant that 'the girl' herself was a consenting party to the sexual intercourse. To adjudicate this issue, the age of 'the girl' assumes greater significance for the reason that the consent would be relevant in the context of the age of 'the girl' being more than 16 years. In the case at hand, besides oral version given by 'the girl' and her parents that she was less than 16 years of age at the time of occurrence, the prosecution examined Sukhdev Sharma, Headmaster Adarsh Vidya Mandir, Shashtri Colony, Yamunanagar as PW7. As per the testimony of this witness, 'the girl' was admitted to school on 05.04.1995 and her date of birth is 31.10.1985 as per school records. He has further deposed that certificate Ex.PH was handed over to the parents of the girl. The statement of the witness is silent as to at whose instance, the girl was admitted in the school and her date of birth was recorded. It is not stated by him that the entry in the school admission register in regard to date of birth of the girl was made in his hand. The date of birth recorded in the school as 31.10.1985 is falsified and belied in view of the statement of 'the girl' herself that she was born on 27.11.1981. Under these circumstances, the prosecution cannot rely upon the statement of Sukhdev Sharma to prove beyond doubt that 'the girl' was born on 31.10.1985. The parents of 'the girl' have not been able to prove with authenticity that 'the girl' was born on 31.10.1985. However, during cross -examination of Mrs. Sundri PW5, the mother of 'the girl' Smt. Sundri stated that Shankuntla and 'the girl' is the same daughter. A relevant extract from her statement reads as follows: - "My all four children were born at village Bakarpur and 'the girl' was also born at village Bakarpur, one daughter Shankutla was also born on 27.11.1983. Shankuntla and 'the girl' is the same daughter. Earlier 'the girl' was called as Shankuntla." 12. Not only this, 'the girl' was also confronted with the siutation if she was also known as Shankuntla. She stated in her cross -examination that she was also known as Shankuntla and she was born at village Bakarpur. To the misfortune of the accused, the accused himself summoned an official from the office of Additional District Registrar, Births and Deaths to prove date of birth of Shankuntla daughter of Ram Singh. The witness in his chiefexamination has deposed which reads thus: - "I have brought the summoned record. As per the record, the date of birth of Shankuntla daughter of Ram Singh is 16.11.1983, resident of Bakarpur, Tehsil Jagadhri. Ex.DA is the certified copy of the date of birth , which is issued by my office." 13. When the facts brought on record during cross -examination of Smt.Sundri and 'the girl' are read in conjunction with evidence adduced by the accused himself, it is established on record that 'the girl' was born on 16.11.1983. Keeping in view her date of birth recorded in the office of Registrar, Births and Deaths, there is no dispute that 'the girl' was less than 16 years of age on the date of occurrence and she was 15 years 1 month and 7 days old at that time. As 'the girl' was less than 16 years of age on the day of occurrence, the submissions made by counsel for the appellant that 'the girl' was a consenting party has no bearing on the culpability of the accused. I would hasten to add that the contention of the accused that 'the girl' was a consenting party also becomes doubtful in view of the plea that there were differences between the father of 'the girl' and that of the accused due to some money dispute. Taken from any angle, the contention of the accused that 'the girl' was a consenting party, is untenable and merits rejection. 14. The inconsistencies in the testimony of the witnesses, pointed out by counsel for the appellant are not material and do no go to the root of the prosecution case. The complainant lodged the FIR on 24.12.1998 at about 9.15 PM. As per facts on record, 'the girl' had already returned to her house before lodging of FIR. There is no explanation tendered by the complainant that if 'the girl' had already come back and narrated the occurrence to her mother, why she was not produced before the Investigating Officer at the time when he made a statement lodging FIR under Section 363 IPC. There is also no explanation by the prosecution that if the father had already learnt that his daughter had been ravished by the accused, he did not make a statement that the accused committed sexual assault upon 'the girl'. Now the question arises whether the failure of the prosecution to explain this contradiction can form basis for reversing the judgment passed by the trial Court. Admittedly, 'the girl' is the main victim of the crime charged against the accused. Her testimony cannot be discarded for the failure of her father to state correct and detailed facts at the time of lodging of FIR. As per the settled position of law, testimony of the prosecutrix stands at par with that of an injured witness. It is really not necessary to insist for corroboration if the evidence of 'the girl' inspires confidence and appears to be credible. Equally true is that the rape leaves a permanent scar and a serious psychological impact on the victim and also her family members, therefore, no one would normally concoct a story of rape just to falsely implicate a person. In the light of this settled position, I am of the considered opinion that failure of the prosecution to unfold this mystery is not sufficient to doubt credibility of 'the girl' duly corroborated from medical evidence by PW Dr.Neeru Kalra. 15. Counsel for the appellant has made a vain attempt to argue that no offence under Section 366 IPC is made out as it is not the case of the prosecution that the accused kidnapped 'the girl' with an intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will. It is argued that later part of Section 366 IPC is to be read in the context of 'the girl' being kidnapped with an intent to compel her to perform marriage against her will. 16. Section 366 IPC provides for kidnapping, abducting or inducing woman to compel her marriage etc. A relevant extract thereof reads as follows: - "To constitute offence under Section 366 of the Indian Penal Code, the woman may be kidnapped or abducted with the intention or knowledge that she will be compelled to marry any person against her will or she may be forced or seduced to illicit intercourse." Section 366 also contemplates commission of offence if the woman is kidnapped or abducted with the intention or knowledge that she may be forced on seduced to illicit intercourse. The instance case is covered under the latter part of Section 366 IPC. 17. Counsel, in the alternative, made a prayer that the sentence awarded to the appellant may be reduced to the period already undergone invoking proviso to Section 376 IPC, under which the Court may for adequate and special reasons impose a sentence of imprisonment for a term less than 7 years. 18. The learned trial Court has awarded sentence of rigorous imprisonment for a period of 8 years for offence punishable under Section 376 IPC. The occurrence, in question, took place in December, 1998; a period of more than 15 years has elapsed, during which the appellant has undergone trauma and agony of criminal proceedings. However, there are no mitigating circumstances in favour of the appellant to impose sentence less than the minimum prescribed. 19. In view of the totality of the facts and circumstances, the sentence awarded to the appellant for offence punishable under Section 376 IPC is reduced to minimum prescribed sentence of rigorous imprisonment for a period of 7 years. However, the fine with default stipulation will remain intact. 20. The appeal stands disposed of with modification in sentence in the terms indicated hereinabove. The appellant, if on bail, be taken in custody to suffer the remaining sentence. ;