Criminal Appeal No.2077-SB of 2005 v. State of Punjab

CORAM :HON'BLE MR. JUSTICE MOHINDER PAL. Present: Ms. Shweta Bawa, Advocate, amicus curiae, for the appellant. Mr.B.B.S. Teji, Additional Advocate General, Punjab. -.- MOHINDER PAL, J. This appeal is directed against the judgment of conviction and the sentence order dated 22.11.2005 passed by the learned Sessions Judge, Sangrur, whereby the appellant -2- Criminal Appeal No.2077-SB of 2005. was convicted under Section 376 of the Indian Penal Code (hereinafter referred to as `the Code') and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.2000/- in default whereof to undergo further rigorous imprisonment for six months. The instant F.I.R was registered against the appellant at the instance of complainant Kaka Singh, who made his statement (Exhibit P.5) before Assistant Sub Inspector Surjit Singh on 11.5.2004. The prosecutrix (name withheld) daughter of the complainant, aged less than fifteen and a half years, did not return from school on 8.5.2005. Mann Singh had told the complainant that he had seen the prosecutrix being taken on a scooter by the appellant on 8.5.2004. The complainant stated that the prosecutrix had been enticed away by the accused with a bad intention. On 14.5.2004, Assistant Sub Inspector Surjit Singh, on receipt of an information regarding the presence of the prosecutrix and the accused in the forest area of Village Sohian, joined complainant Kaka Singh and Mann Singh in the police party and raided the spot. The prosecutrix was recovered from the possession of the accused in that area. The appellant was arrested in this case. Dr.Sumandeep Kaur Grewal (P.W.1) had medico-legally examined the prosecutrix on 14.5.2004 itself immediately she was recovered from the custody of the accused. The doctor had taken two swabs of vaginal smear etc. of the prosecutrix, which were sent to the Chemical Examiner. Vide report Exhibit P.4, it was opined -3- Criminal Appeal No.2077-SB of 2005. by the Chemical Examiner that there was spermatozoa on the swabs. After examining the report of the Chemical Examiner, Dr.Sumandeep Kaur Grewal (P.W.1) opined that the possibility of sexual intercourse with the prosecutrix could not be ruled out. Dr. Makhan Singh ( P.W.8), who had medico-legally examined the accused, found the accused fit to perform sexual intercourse. After completion of investigation and due formalities, challan was presented against the appellant in Court. The accused-appellant was charged under Sections 363, 366-A and 376 of the Code. He did not plead guilty to the charge and claimed trial. In order to prove its case, the prosecution examined as many as eleven witnesses. In his statement recorded under Section 313 of the Code of Criminal Procedure, the appellant denied the prosecution allegations and stated that the prosecutrix was in love with him and used to write letters to her. She called the accused one day and told him that she was fed up with her parents and compelled the accused to marry her otherwise she would commit suicide. She again called the accused on 7.5.2004 at noon time and asked him to accompany her. According to the accused, the prosecutrix threatened to commit suicide by consuming something poisonous. He further stated that on the insistence of the prosecutrix, he accompanied her. First they went to Sangrur by bus and then they went to Delhi by bus; that they stayed at Delhi -4- Criminal Appeal No.2077-SB of 2005. for some days; and that thereafter they went to Kurukshetra. He further stated that at Kurukshetra an altercation took place between him and some boys and the police posted there captured him. The police of Sangrur came to Kurukshetra and brought him to Sangrur on 12.5.2004. He was not arrested from the forest area of Village Sohian, as claimed by the prosecution. He further stated that he did not commit rape on the prosecutrix. The accused examined Tejinder Kaur (D.W.1), Kewal Singh (D.W.2) and Ved Parkash (D.W.3) in defence. I have heard Ms. Shweta Bawa, Advocate, amicus curiae, appearing for the appellant and Mr.B.B.S. Teji, Additional Advocate General, Punjab, appearing for the State and have gone through the records of the case. The facts of the case, as noticed above, show that the prosecutrix had left her parents with her consent. The prosecutrix, while appearing in Court as P.W.3, admitted having written letters Exhibit D.1 to D.7 to the accused. The conduct of the prosecutrix in accompanying the accused to Sangrur on a scooter and not raising noise or making any complaint to anybody during the period of six days she remained with the accused leads to the only conclusion that she had not been kidnapped by the accused. As noticed above, Dr.Sumandeep Kaur Grewal (P.W.1) had medico-legally examined the prosecutrix on

14.5.2004 immediately she had been recovered from the custody of the accused. The doctor had taken two swabs of vaginal smear etc. of the prosecutrix, which were sent to the Chemical -5- Criminal Appeal No.2077-SB of 2005. Examiner. The Chemical Examiner, Vide report Exhibit P.4, opined that there was spermatozoa present on the vaginal swabs of the prosecutrix. On seeing the report of the Chemical Examiner, Dr.Sumandeep Kaur Grewal (P.W.1) opined that the possibility of sexual intercourse with the prosecutrix could not be ruled out. No doubt, the facts stated above lead to the only conclusion that the prosecutrix had left her house with the appellant with her consent, but the prosecutrix cannot be said to be a consenting party in this case as she was minor at the time of occurrence. The Birth Certificate (Exhibit P.24) which relates to the prosecutrix and her name has been written it has been proved by Dr. Vijay Kumari Kakkar (P.W.9). According to the Birth Certificate (Exhibit P.24) the Date of Birth of the prosecutrix is 5.1.1989. Registration of the birth of prosecutrix was made by her parents on 17.1.1989. Generally name of the newly born is not written on the Birth Certificates. However, as the registration of the birth of the prosecutrix was made on

17.1.1989 in this case, there was sufficient time to name the child. As such, if the name of the prosecutrix is mentioned in the record of Registrar of Births and Deaths, it cannot be said that the entry is false. The prosecutrix, during her cross-examination also gave her Date of Birth as 15.1.1989. The prosecutrix had also given her age as fifteen years when she was medico-legally examined by Dr.Sumandeep Kaur Grewal (P.W.1). Thus, the date of birth of the prosecutrix has to be taken as 5.1.1989. The occurrence took place on 8.5.2004 and when calculated, the age of -6- Criminal Appeal No.2077-SB of 2005. the prosecutrix at the time of occurrence comes to 15 years 4 months and 3 days. Under the circumstances, the prosecutrix cannot be said to be a consenting party in this case. In view of the above, the prosecution has been able to bring home the guilt of the accused beyond all reasonable doubts. Consequently, the judgment of conviction rendered by the learned trial Judge is upheld. The sentence awarded to the appellant commensurates with the offence committed by him. The impugned sentence order is also, accordingly, upheld. Resultantly, this appeal is hereby dismissed being without any merit. March 02, 2010. ( MOHINDER PAL ) JUDGE