SURINDER SINGH, J. - (1.) THE three appellants, namely, Rang Lal, Balraj and Sumer Chand have filed this appeal against their conviction by the Additional Sessions Judge, Karnal, on various counts on which they were sentenced as follows: (a) All the appellants under Section 376, Indian Penal Code, to 7 years Rigorous Imprisonment and a fine of Rs. 200/-, in default of payment of fine to undergo two months further Rigorous Imprisonment each ; (b) Balraj appellant was also convicted under Section 363, Indian Penal Code and sentenced to 3 years Rigorous Imprisonment and a fine of Rs. 200/-, in default to undergo two months further, Rigorous Imprisonment. In addition, he was convicted under Section 366, Indian Penal Code, and was sentenced to 5 years Rigorous Imprisonment and a fine of Rs. 200/-, in default to undergo two months further Rigorous Imprisonment. All the substantive sentences in case of Balraj appellant were ordered to run concurrently.
(2.) ACCORDING to the prosecution version contained in the First Information Report made by Inder Singh (PW5) father of Roshni prosecutrix (PW3) on August 16, 1984, he had six children, i.e. four sons and two daughters. Roshni was the third child and was mentioned as sixteen years of age. The family resided in the village Abadi. There was a double-storyed residential house owned by Singh Ram which adjoined the house of the informant. The first floor of the house was in the occupation of the three appellants for the last two years. It is the case of the informant himself that his daughter Roshni prosecutrix used to go to his gawar for removing cow-dung and for doing allied chores all alone and in the process all the appellants had developed 'relations' with her. This matter was in the notice of Sona Devi mother of the prosecutrix who had seen Roshni communicating while all the three appellants in the gawar. On account of this, both the parents of Roshni had been reprimanding Roshni to mend her ways, but without result. On the day previous to the day of the Report, Roshni and her parents had gone to their paddy field and in the afternoon Roshni was sent back to the village to bring meals from the house. She did not return to the field till 4 p.m. When her parents returned to their house, they found her missing. They tried to look for their daughter in the gawar and elsewhere, but she was not to be found anywhere. It is stated that one Sultan son of Chatru of the village told them that Roshni had been seen making overtures to all the three appellants from the roof of her house and was later noticed going from the gawar to her house. The narration in the first Information Report goes on to state that Roshni had taken along-with her Rs. 900/- in cash and three wearing suits from her house. After recording the First Information Report on the basis of the statement of Inder Singh, Assistant Sub Inspector Ram Phal (PW12) took up the investigation of the case and complete certain formalities. He tried to search for the appellants. It was on August 17, 1984 that he got some secret information that a jumper Exhibit P1 and salwar, Exhibit P2 were lying in the jawar field of Ramji Lal. After joining with him certain persons, the Assistant Sub Inspector went to the jawar field and recovered Jumper Exhibit P1 and Salwar Exhibit P2 along-with a blade marked Topaz, which items were lying at the place. He also noticed a collection of hair at two places. A team of Experts of Forensic Laboratory also visited the spot, took photographs and collected some hair from two places for chemical examination. Some jawar plans on the site were found to have been trampled. On the next date, i.e. August 18, 1984, on receipt of a secret information, the Assistant Sub Inspector went and found all the three appellants along-with the prosecutrix present at the place of information. The three appellants were taken into custody and were got medically examined. They were found to be capable of performing sexual intercourse. Roshni PW was also medically examined at Civil Hospital, Karnal by the Medical Officer. Later, she made a statement under Section 164, Code of Criminal Procedure, before the Ilaqa Magistrate. The appellants were then prosecuted with the result, already noticed.
(3.) IN a matter of the present nature, it is necessary to determine the age of the prosecutrix because this factor would largely decide the fate of the case. If the prosecutrix is found to be a minor her consent in regard to her kidnaping or the alleged rape would afford no benefit to the appellants. On the other had, if she has attained majority, the question of consent would assume importance. In so far as the prosecution is concerned, it seems to rely upon Birth Entry Exhibit PJ in which the Date of Birth has been recorded as January 21, 1969 which makes the prosecutrix (if the Birth Certificate relates to her) to be 15 years and over 6 months on the date of the commission of the offence. However, the other material on the record falsified the Birth Entry. Discussing this aspect of the matter, the trial Court has come to the following conclusion in Para 18 of its judgment : "On the cumulative force of the discussion and reasoning I am of the opinion that there is no trustworthy evidence brought on record to base the conclusion that the prosecutrix was under 16 years of age on the date of commission of the offence. On the contrary from an appraisal of all the circumstances I am of the opinion that the prosecutrix was between 16 to 18 years of age on the date of commission of the offence." ;