Punjab-Haryana High Court
Sunil Son Of Sh. Lakhmi Chand vs State Of Haryana on 17 February, 2003
Author: R.L. Anand
Bench: R.L. Anand, Virender Singh
JUDGMENT R.L. Anand, J.
1. Shri Sunil son of Shri Lakhmi Chand, has filed the present criminal appeal and it has been directed against the judgment dated 19.1.2002 and order dated 22.1.2002, passed by the Court of Additional Sessions Judge, Bhiwani who convicted the appellant under Sections 363, 366 and 376 of the Indian Penal Code and sentenced him to life imprisonment and to pay a fine of Rs. 1000/- under Section 376 IPC. In default of payment of fine he was directed to undergo R.I. for two months. The appellant was sentenced to undergo R.I. for a period of 4 years and to pay a fine of Rs. 1000/- under Section 363 IPC. In default of payment of fine he was directed to undergo R.I. for two months. He was further sentenced to undergo six years and to pay a fine of Rs. 1000/- under Section 366 IPC. In default of payment of fine he was ordered to undergo further R.I. two months. The learned trial Court also gave the direction that all the sentences imposed upon the appellant shall run concurrently.
2. The appellant Shri Sunil, was charge-sheeted under Sections 363/366/376 IPC on the allegations that on 23.4.1997, in the area of Siwani, he kidnapped Ms Shanti alias Sunder, a minor female under the age of 18 years, from the lawful guardianship of her father Shri Hira Ram and thereby committed an offence punishable under Section 363 IPC. The second charge against the appellant was that he allegedly induced Ms Shanti alias Sunder, the minor girl, with such intention that she may be forced to illicit intercourse and thereby committed an offence punishable under Section 366 IPC. The third charge against the accused-appellant was that he allegedly committed rape upon Shanti alias Sunder, a minor girl without her will or consent and thereby committed an offence punishable under Section 376 IPC.
3. The F.I.R. in this case was lodged by Shri Hira Ram, deceased, father of the prosecutrix who made statement before S.I./SHO, Police-Station, Siwani when the Investigating Officer along with police-party, was patrolling an was checking the crimes near the B.D.O. Block, Siwani. The complainant Shri Hira Ram met the Investigating Officer and made a statement to the effect that he was a resident of Ward No. 12, siwani town and does the work of taking contract of dead cattle at Siwani. He had 7 daughters and 3 sons. Out of them, Maya is the eldest daughter and then Jamna and thereafter, Munni, then Chhoti Bai, then Om Parkash and thereafter Ram Bhateri, Jagdish is younger to Bhateri. Krishna is younger to Jagdish. After the birth of Krishna. Ram Chander was born and the youngest child in the family is Sunder prosecutrix. He further stated that his six elder daughters and to elder sons are married. Ram Chander younger son was aged about 16/17 years and Ms Sunder younger daughter was about 14/14-1/2 years and she was unmarried. He further stated that all the married daughters usually visit his house. His sons and other members of the family are residing in one house jointly. During the days of occurrence, due to the harvesting season he and his wife Darka, his sons Om Parkash and Jagdish Chander and grand-daughter had gone to village Talwandi Rana Police-Station, Sadar, Hisar from 21.4.1997 for harvesting crops. His younger daughter Sunder, the wife of his elder son Om Parkash, namely Parwati and wife of Jagdish namely Krishna were left in the house to look after the same. Yesterday i.e. on 23.4.1997 at about 3/4 P.M. he along with family members, was working in the filed at village Talwandi Rana when Bijinder Singh son of Asa ram, resident of Siwani, who is friend of his son Jagdish and treats him like brother, had informed that his daughter Sunder had been missing since morning. On receipt of this information, he along with other members of the family reached the house at Siwani. On inquiring Parwati wife of Om Parkash and Krishna wife of Jagdish told him that as usual both of them and Sunder prosecutrix slept in the courtyard of the house after taking the meals. At about 5/6 A.M. Sunder was cleaning the courtyard outside the house. Thereafter, she did not come back inside the house for a sufficient long time. They searched here and there but no clue could be found. Thereafter, they sent a message through Bijender. It has also been stated by the deceased Shri Hira Ram that on reaching Siwani he and his sons made a search of his daughter Sunder in the relations but on enquiry he had come to know that his daughter Sunder had been enticed away by Sunil son of Shri Lakhmi Chander resident of Ward No. 12, Siwani, whose house was situated towards the Western side of the house of the complainant because Sunil was also not present in the house. When he and his son Jagdish were proceeding for the police-station then the police-party met him on the way and resultantly he gave statement Ex.PO which was read over and explained to the complainant who thumb marked the same in token of its correctness and thereafter, the Investigating Officer made endorsement Ex.PO/1 underneath the said statement and it was sent to Police-station, Siwani for the registration of the case on the basis of which formal FIR No. 115 dated 24.4.1997 under Sections 363/366 IPC was registered and Shri Krishan Kumar started the investigation of this case. He visited the place of occurrence and prepared rough site plan. He also recorded the statement of Krishna and Parwati under Section 161 Cr.P.C. Accused was arrested on 28.4.1997. On the same day, the prosecutrix was also recovered from the possession of the appellant. The medical examination of Shri Sunil was got done in Civil Hospital, Siwani and after examining, the doctor handed over three parcels to the Investigating Officer which were taken into possession vide memo Ex.PQ. Those parcels were deposited in the Malkhana. The medical examination of Ms Shanti alias Sunder was got done on 29.4.1997 for Civil Hospital, Bhiwani and the doctor also handed over three parcels to the police which were taken into possession vide memo Ex.PE. On 2.5.1997 the investigating officer moved an application Ex.PN before the learned area Magistrate for recording the statement of the prosecutrix under Section 164 Cr.P.C.
4. The Investigating Officer also took into possession the school admission certificate of the prosecutrix and as per the school record, the date of birth of the prosecutrix is 2.2.1983. The certificate is Ex.PJ.As per this certificate the prosecutrix was aged 14 years 2 months and 21 days on the date of her alleged kidnapping.
5. The Dr. V.S. Nain, Medical Officer, PW-8, on 28.4.1997 at 6.00 P.M. on the police request Ex.PE medically examined the accused Sunil aged about 21 years in order to give the opinion as to whether he was fit to perform sexual intercourse or not. The observation of the doctor were as follows:-
"Pulse was 74 per minute regular BP 120/80 MM of HG, mental state was normal. The genital organ was well developed. Both the testicles were normal. Public hair were present. Smegma was absent from the penis. There was normal development of body.
6. The doctor found the following injuries on the person of the accused:-
1. Abrasion 3/4 x 1/4 cm on the right side chest four figures about the right nipple with slight healing.
2. An abrasion size 1/4 cm x 1 mm on right wrist dorsal aspect near the snuff box.
Pus formation was present.
3. An abrasion size 3 x 1/4 cm on posterior aspect of left scapular region upper part, healing present.
7. Injuries No. 1 to 3 were simple in nature. The probable duration of the injuries was about 24 hours. The doctor took into possession blood sample, public hair and swabs of glands of penis. According to the opinion of the doctor, there was nothing abnormal which could prevent the accused for performing intercourse. Ex.PJ is the correct carbon copy of the MLR. Three samples were sent to Forensic Science Laboratory, Madhuban.
8. Dr. Amrita PW-11 on 29.4.1997 conducted the medical legal examination of Sunder alias Shanti Devi d/o Shri Hira ram, aged 14 years and found the following:-
"History was told by the prosecutrix that she was recovered by the police on 28.4.1997. She was fully conscious at that time. The pulse was 88 per minutes, B.P. was 110/80 mm. There was no mark of injury over face, chest, thigh and also external genitalia. Breast developed grade-III axillary hair developed. Scanty, pubic hair well developed. Started mensuration two years ack. Menstrual 3/4 regular normal flow Last menstrual dated was 25.3.1997. Now having period since 24.4.1997. She was wearing blue greenish Salwar stained with stains and pariot green colour underwear stained with blood. One cotton pad soaked with blood".
9. There was no injury to the external genitalia, pubic hair matted with blood. The doctor cut the hairs and those were sent to the office of the chemical Examiner. The doctor also observed mild superficial laceration present over hymen which was not bleeding freshly. Vagina was full of blood. There was no injury to the vaginal wall. The vaginal admitted to fingers easily. The doctor collected swab from the vagina for the purpose of examination by the officer of the Chemical Examiner. The uterus was ante inverted and it was normal in size. The doctor also advised x-ray for conformation of opinion regarding the age and after the medical examination, she handed over to the police the medical legal report, pack of clothes and two separate sealed vials containing pubic hairs and vaginal swabs.
10. The opinion regarding the intercourse was deferred till the receipt of the report of the Chemical examiner and after the receipt of the report of the Forensic Science Laboratory Ex.PL and Serological report Ex.PL/1, the doctor gave the opinion that sexual intercourse was performed with the prosecutrix. Vide report Ex.PL, the following observations were made:-
"Laboratory examinations were carried out to detect the presence of semen/blood on the exhibits. Blood thus detected was subjected to serological tests to determine its species of origin. Based upon these examination the results obtained have been analysed as given below.
1. Blood was detected in exhibit-1c (sample blood), exhibit -2a(Salwar), exhibit-2c (underwear), and exhibit-4 (Swab). Traces of blood too small for serological tests were detected on exhibit-3 (public hairs).
However, blood could not be detected on exhibit-1a (underwear), exhibit-1b (swab & Hairs) and exhibit-2b (lady's shirt).
2. Human semen was detected on exhibit-1a (underwear) and exhibit-2a (salwar). However, seme could not be detected on exhibit-1b (swab & hairs), exhibit-2b (layd's shirt), exhibit-2c underwear), exhibit-3 (Pubic hairs) and exhibit-4 (swab)
11. Vide report Ex.PL/1 human blood was found on the Salwar and on the underwear of the prosecutrix.
12. On the completion of the investigation of the case, the accused was challenged in the Court of area Magistrate under Sections 363/366/376 of the Indian Penal Code. The learned Magistrate supplied the copies of the documents as relied upon by the prosecution and vide commitment order dated 19.7.1997, committed the accused to the Court of session in order to face the trial. Vide order dated 26.9.97, the learned Additional sessions Judge, Hisar framed the charge against the appellant under Sections 363, 366 and 376 of the Indian Penal Code and the charges were read over and explained to the accused to which he denied and claimed trial.
13. In order to prove the charges, the prosecution examined Head Constable Om Parakash who gave his statement on affidavit Ex.PA. PW-2 constable Mohinder Singh also gave his statement on affidavit Ex.PB. Shri Vir Shakti is the Draftsman who on 31.5.1997, visited the place of occurrence and prepared scaled site plan Ex.PC. PW-4 is ASI Ajay Singh who on 24.4.1997, received the statement along with endorsement of Krishan Kumar SI/SHO and recorded FIR Ex.PD. PW-5 is Shanti alias Sunder, the prosecutrix d/o Hira ram who gave her age as 15 years on the date of her examination in the trial Court on 24.8.1998 and she deposed that no the date of incident she was brooming outside her house. The appellant came there and told her that her Bhabis namely Parwati and Krishna were subjecting to her too much labour and that they are also maltreating her. He insisted that he would take her to her mother and father to save from all this maltreatment. She further deposed that her parents were not present in the house as they had gone out in the field to harvest the wheat crop in different villages. On the day of incident she along with her two Bhabhis was present in the house. She accompanied the appellant as she was influenced by his talks. Thereafter, the appellant took her to Tosham Road near a Gaushala in a room and committed bad act with her. Giving the details of the bad act, she stated that the appellant broke open the string of her Salwar and he forcibly committed bad act on her. By breaking the string she was insulted by bad act. By the bad act, she meant an act which a man does with a woman. After the bad work or the act, the appellant threatened that if she discloses to anybody, she would be insulted. Shanti, the prosecutrix further stated in the Court that the appellant told that he would leave her with her parents. thereafter, they boarded a bus bound for Hisar and after reaching Hisar, the appellant took her to U.P. and she was kept in some place for four days. The appellant had been committing the bad act upon her and on the 5th day her brother and father traced them as a result of which she was rescued from the appellant. From U.P. her brother and father brought back to her to Siwani when police met them at the bus stand and her statement was recorded. She also deposed that she was medically examined and that she got elementary education in a Girls School. In the cross-examination, she stated that she was aged about 15 years. Of course, she also stated that she does not know the age of her eldest sister Maya nor that of Jamna nor that of Muni, she also stated that she accompanied the accused without taking the permission of family. It has also come in the statement of this girl that she knew the accused as he was her neighbour. It has also come in the statement of the prosecutrix that she did not cry for any help when the appellant was committing intercourse with her. She was forced to board in the bus by the appellant. This was the concise cross-examination which was conducted against the prosecutrix and at no point of time any suggestion was given to the prosecutrix that she was not known by the name of Shanti or that she was more than 16/18 years as on 23.4.1997. PW-6 is the lady constable Suman Bala who deposed that on 29.4.1997 Krishan Kumar S.I./SHO deputed her for getting the medical examination of the prosecutrix. She was medically examined by the doctor and after the medical examination the doctor handed over sealed parcel of cloths two bottles and those were handed over by her to the SHO who took into possession vide recovery Memo Ex.PE.
14. PW-7 is Smt. Krishna the Bhabhi of the prosecutrix who deposed that on the day of occurrence she was present along with her Jethani Parvati and Nand Sunder alias Shanti, aged 14/14/-1/2 years in the house. She also stated that other members of the family had gone out for harvesting wheat. On 23.4.1997 in the morning her Nanad Shanti was brooming in front of the house at about 6.00 A.M. but thereafter she did not return to the house for about 2/3 hours. A search was made and when she could not be traced, Bijender son of Asa Ram was deputed to inform the father about the missing of the child. On the arrival of the parents, again effort was made to locate the prosecutrix and during the course of search, it came to the notice of the family that the appellant who used to reside in the neighbourhood had taken away the prosecutrix. PW-8 is Dr. V.S. Nain, who on 28.4.1997 medically examined the accused. The observations of the doctor have already been reproduced by us in the earlier portion of this judgment. PW-9 is Mrs. Kamlesh Devi, Teacher Govt. Girls School, Siwani who deposed that as per the school record, the date of birth of Shanti Devi d/o Hira Ram is 2.2.1983. To this effect entry at Serial No. 2288 dated 26.4.89 exists in the record and she was in a position to identify the signatures of Shri Amar Nath, Incharge of the School Ex.P.I. She also proved the admission form Ex.PJ in which the date of Birth of the prosecutrix has been recorded as 2.2.1983. PW-10 is Shri Hans Raj who deposed that on 23.4.1987 he was selling Chhajj at Tirloki Gate, Hisar at about 3/4 P.M. At that time he had seen Sunder d/o Hira Ram and Sunil together and they were talking with each other. The statement of Shri Hans Raj remained unchallenged on this aspect. Unfortunately for the prosecution. Shri Hira Ram could not be examined by the prosecution as he died during the pendency of the trial. Dr. Amrita Bhardwaj PW-11 who medically examined the prosecutrix on 29.4.1997 and the material observations of the doctor have already been reproduced by us in the earlier portion of this judgment. PW-12 is Shri R.K. Sondhi. Chief Judicial Magistrate, Kurukshetra, who deposed that on 2.5.1997 the police made application Ex.PM and recorded the statement of the prosecutrix who deposed that she does not want to make any statement under Section 164 Cr.P.C. This statement was read over and explained to her and she thumb-marked the same in token of its correctness. PW-13 is Krishan Kumar the Investigating Officer of this case. Finally the prosecution tendered in evidence the reports of the Director of the Forensic Science Laboratory and closed the case.
15. Statement of the accused was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused-appellant. He took the following plea before the learned trial Court:-
"I am innocent. I have been falsely implicated in this case as complainant party wanted to grab the plot which is in the back side of house of prosecutrix and they have already grabbed the same. No such occurrence had taken place as alleged by the prosecution"
16. When called upon to enter into his defence, the accused examined Smt. Dandia, the mother of the prosecutrix who deposed that Sunder was her daughter. Her age was 23 years on the day of her examination i.e. 17.1.2002. She further deposed that at the time of the occurrence she was 18 years of age. She further stated that she knew the accused and he had never kidnapped his daughter Sunder in the year 1997. The witness was cross-examined by the Public Prosecutor and in the cross-examination, she stated that she could not say when her marriage had taken place. She gave birth to three sons and five daughters. Her daughter used to go to school at Siwani. She admitted that her date of birth was got recorded in the school record as 2.2.1983 but the same was shown wrongly to show her to be of younger age. She denied the suggestion that on 23.4.1997 the appellant kidnapped her daughter and at that time the prosecutrix was minor and that the appellant had committed a rape upon her. She admits further that on 21.4.1997 she and her husband Hira Ram had gone to village Talwandi in District Hisar and her daughter and her two daughters-in-law were present in the house.
17. The learned trial Court framed the following points for determination for the purpose of decision:-
(1) Whether the prosecutrix was minor on the date of the alleged occurrence?
(2) Whether the prosecutrix was kidnapped from the lawful guardianship of her father?
(3) Whether the prosecutrix was kidnapped with an intention to do the illicit intercourse with her?
(4) Whether the accused committed rape upon the prosecutrix?
18. All the above four points for the reasons given in the impugned judgment, were decided in favour of the prosecution and against the appellant who was convicted and sentenced in the manner as stated above and aggrieved by his conviction and sentence, the present appeal.
19. We have heard Shri S.S. Behal, learned counsel appearing on behalf of the appellant and Sanjay Vashisth, learned DAG, Haryana, appearing on behalf of the State and with their assistance have gone through the record of the case.
20. The learned counsel appearing on behalf of the appellant has assailed the story of the prosecution by urging that prosecution has not been able to prove on the record that the prosecutrix was less than 16 or 18 years of age on the date of the alleged kidnapping i.e. 23.4.1997. Shri Behl, submitted that in this case the prosecution has relied upon the school leaving certificate and also form of the prosecutrix but that record is of Ms. Shanti whereas the name of the prosecutrix is Sunder. The counsel further stated that parents are the best witnesses who could depose about the age of the prosecutrix. Shri Hira Ram father of the prosecutrix has not come in the witness box because he has expired during the pendency of the trial. The mother appeared as DW-1 but she has not supported the case of the prosecution. It was also submitted by Shri Behal that the layd doctor directed the Investigating Officer for the ossification test of the prosecutrix but the Investigating Officer did not take the trouble for the ossification test of the prosecutrix for the purpose of confirmation of her age and, therefore, the story of the prosecution should be doubted. It was also submitted by Shri Behal that it has been observed in various judgments that the law Courts should not relied upon the school certificate for the purpose of determination of the age of the prosecutrix because there is always a tendency on the part of the parents of the children to give wrong age for the purpose of seeking admission. Shri Behal also submitted that it is a case of the prosecution that Shri Hira Ram had 7 daughters and therefore, school leaving certificate might be of the other daughter of Shri Hira Ram. Since there is no satisfactory proof that the prosecutrix was born on 2.2.1983, therefore, it cannot be held that the prosecutrix was less than 16 years of age as on 23.4.1997.
21. On the contrary, the learned State counsel appearing on behalf of the State has endorsed the judgment by stating that the prosecutrix was minor being less than 16 years of her age on the date of the occurrence and, therefore, the consent or no consent is immaterial in this case. She was kidnapped from the lawful guardianship of her parents. The prosecutrix was found in the company of the accused at Hisar. As per the medical evidence intercourse has been committed upon her and, therefore, the conviction of the appellant has been rightly passed on all the three Sections.
22. We have considered the rival contentions of the parties and we are of the opinion that there is no merit in this appeal.
23. Before we deal with the oral as well as documentary evidence on record and also deal with the submissions raised by the learned counsel for the appellant, we would like to make reference as to the position of law dealing with such like cases and the first judgment which can be quoted in this regard is, State of Punjab v. Gurmit Singh and Ors. 1996(1) Recent C.R.533, and it has been observed that the evidence of a girl or a woman who complains of a rape or sexual molestation be not viewed with doubt. disbelief or suspicion because the evidence of such victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent even more reliable. Just as a witness who has sustained some injuries in the occurrence which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, in a similar fashion the evidence of the victim of sexual assault is entitled to great weight. It was also observed by the Hon'ble Supreme Court in this cited judgment that even if the Investigating Officer did not conduct the investigation properly or he was negligent, is no ground to discredit the testimony of the prosecutrix who had no control over the investigating agency and the negligence of the Investigating Officer could not affect the credibility of the statement of prosecutrix. Finally the Supreme Court has held that rape is not merely a physical assault. It is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim but the rapist degrades the very soul of helpless female and directions was also given by the Supreme Court to the lower Courts that the lower Courts should deal with such like cases with utmost sensitivity. The Hon'ble Supreme Court in Gurmit's case (supra) has laid down very vital guidelines in para No. 7 of the judgment as to how the testimony of a prosecutrix is to be appreciated and it was observed that a girl in a tradition bound on permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had taken place. The Court also observed that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour as in involved in the in the commission of rape on her. To protect the honour of a woman, the Legislature in its wisdom also introduced provisions of Section 114 of the Indian evidence Act which runs as follows:-
"In a prosecution for rape under Clause (a) or Clause (b) or Clause (c) or Clause (d) or Clause (e) or Clause (g) of Sub-section (2) of Section 376 of the Indian Penal Code. 1860 (45 of 1860) where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.
24. Thus, the reading of the above provisions would show that the moment it is established that the victim was subjected to sexual intercourse and she alleges positively that she was raped, the law Courts should draw an inference and shall presume for the benefit of the prosecutrix that she was subjected to rape and she was not consenting party and this point has been dealt with by the Hon'ble Supreme Court in Prem alias Balu v. The State of Haryana 2003(1) RCR (Criminal) 237 and it was observed by the Bench after relying upon State of Punjab v. Gurmit Singh 1996(1) Recent C.R.533 that the Court shall presume that the victim did not consent when the victim makes a statement before the Court that she did not consent. It was also observed that mere absence of marks of external injury do not negate the prosecution case. In order to supplement the view of the Hon'ble Supreme Court, reliance can be placed upon State of Karnataka v. Krishnappa 2000(2) RCR (Criminal) 459 and State of Rajasthan v. N.K.-the accused 2000(2) RCR (Criminal 47) and Satpal v. State of Punjab 1997(1) RCR 93, in which it was observed that even if it is assumed for the sake of argument that prosecutrix was a lady of loose moral character, it does not give a licence to the accused to have forcible sexual intercourse with her against her consent. Once the statement of the prosecutrix is found to be reliable it is not necessary for the prosecution to lead corroborative evidence. In 2000(2) RCR (Criminal) 471 State of Rajasthan v. N.K.-the accused, it was observed that prosecutrix is not an accomplish. With regard to consent also the following observations were made by the Hon'ble Supreme Court:-
(i) every resistance need not necessarily cause injury on body of victim-Prosecution being 19/20 years of age was not expected to offer such resistance as would cause injuries to her body.
(ii) Absence of marks of external injuries on prosecutrix cannot be adopted as a formula for inferring consent of prosecutrix that she was a willing party. It will depend on facts of each case.
(iii) A judge of facts shall have to apply common sense rule while testing the reasonability of prosecution case.
(iv) Prosecutrix on account of age, or infirmity or overpowered by fear or force may have been incapable of offering any resistance-She might have sustained injuries but on account of lapse of time, injuries might have healed (1983 (2) RCR (Crl) 302 and 1995(3) R.C.R. (Crl.) 526 (SC) relied.
25. Now, we revert to the oral and documentary evidence which has been produced on the record by the prosecution and firstly we will deal with the documentary evidence.
26. First of all, we will take documentary evidence. There are two vital documents on the record which suggest the prosecutrix was born on 2.2.1983. Ex.P.1 is the certificate issued by the Headmaster of Government Girls Primary School, Siwani Mandi (Hisar) who has certified that Shanti Devi d/o Shri Hira Ram resident of village Siwani District Bhiwani, was born on 2.2.1983 as per the admission register. It was further certified that she was admitted in the school on 26.4.1989. Ex.PJ is the other certificate which again shows that Shanti Devi was born on 2.2.1983.
27. Now, the point for determination is whether Ms Sunder and Ms Shanti Devi is the same person or not. In this regard, we have on record the statement of the prosecutrix PW-5 who gave her name Shanti alias Sunder daughter of Hira Lal. Not an iota of suggestion was given to her that she has another sister by the name of Shanti. Further the Bhabhi of the prosecutrix, Smt. Krishna, appeared as PW-7. She has also given the name of her Nand Sundri alias Shanti and categorically deposed that she is aged about 14/14-1/2 years. Again no suggestion has been put to her. The position of the law is well settled that when a factum has not been challenged in the cross-examination, the law will presume that that fact stands proved. DW-1 is the stark witness of the appellant. Smt. Dandiya when appeared in the witness box on behalf of the appellant, did not state that she had some other daughter by the name of Shanti. On the contrary, she admits that Sundri her daughter used to go to the school and her date of birth was got recorded in the school record as 25.2.1983. She wanted to help the appellant but we are not inclined to give much weightage to her statement when she deposed that her daughter was aged about 18 years at the time of the occurrence and that she was ever kidnapped in the year 1997. This statement has been made by Smt. Dandiya perhaps for the reason that she is the mother of young daughter and every parents has the anxiety to protect the honour of the daughter. In the present case also we are dealing with a young unmarried daughter of our society. Unfortunately, the father of the prosecutrix has expired during the pendency of the trial. The above referred statement of Dandiya cannot be given much importance because this lady apparently wanted to help the appellant because she deposed totally wrong facts when she stated that she gave birth to three sons and five daughters which is contrary to the statement of Mira Ram who deposed in the first information report that he was the father of seven daughters. True must come out. It is the case of the prosecution that on the date of occurrence, the parents of the prosecutrix were not in the house and they had gone in some other village for the purpose of harvesting the wheat crop. The lady DW-1 admits in the cross-examination that on 21.4.1997 she and her husband Hira Ram had gone in village Talwandi in District Hisar and her two daughters-in-law were present in the house. This part of the admission on the part of Smt. Dandiya DW-1 is fully in consonance with the story of the prosecution and in consonance with the statement of PW-7 Krishna. Apart from this, let us now examine the statement of the prosecutrix who appeared as PW-5. She sated her age as 15 years on the day of her examination. We have also gone through the cross-examination of this girl. There is not even a single suggestion by the accused to this girl that she had another sister by the name of Shanti or that the prosecutrix has never gone to the school for study purposes.
28. The things do not rest here. The prosecutrix was examined by the lady doctor on 29.4.1997 and at that time also the prosecutrix stated her name Sunder alias Shanti Devi and she also gave her age as 14 years. The doctor has mentioned in the medical legal report that axillary hair of the prosecutrix were scanty and she started menstruation about 2 years prior to the date of examination. These two lines coupled with the other oral and documentary evidence which has been discussed by us above, would show that prosecution was definitely less than 16 years of age as on 23.4.1997 when she was kidnapped from the lawful custody. We have already stated above that the statement of the prosecutrix is to be treated like an injured witness. The prosecutrix has categorically deposed that she was subjected to sexual intercourse by the accused and as per the opinion of the Dr. V.S. Nain, PW-8 this witness has certified that appellant was capable of performing sexual intercourse and there was no infirmity and the prosecutrix and the accused were taken into custody on 28.4.1997. From 23.4.1997 to 28.4.1997, the prosecutrix remained under the custody of the appellant and they spent 4 days and 5 nights together giving reasonable presumption that the appellant must have committed sexual intercourse with her. Prosecutrix has also stated on oath that accused committed sexual intercourse with her by breaking the string of the Salwar. This indicates an element of force itself. In these circumstances it is not possible for us to say that the prosecutrix was a consenting party or that she willingly offered herself before the appellant for sexual intercourse. As we have declared and held that the prosecutrix was less than 16 years of age, therefore, whether there was a consent or no consent on the part if the prosecutrix, it is immaterial. The statement of PW-10 Hans Raj is also to the effect that he saw the accused and the prosecutrix together at Hisar. There is no cross-examination to this witness. Resultantly, we agree with the finding of the learned trial Court that prosecutrix was aged 14/14-1/2 years as on 23.4.1997. The moment we rely upon the statement of the prosecutrix that she was subjected to rape by the appellant, there is no reason to disbelieve her statement as per the provision of Section 114-A of the Indian evidence Act. So far as the offences under Sections 363 and 366 IPC are concerned, it stands proved. In the first information report itself the name of the accused figures. It has been alleged by the deceased Shri Hira Ram that the appellant was responsible for kidnapping his daughter. It is the case of the prosecutrix that an inducement was given by the appellant to run away form the house to save herself from the alleged cruelty and maltreatment at the hands of her Bhabhis, the prosecutrix was less than 18 years of age. Therefore, we are of the opinion that the prosecution has also been able to prove the charges under Sections 363 and 366 of the Indian Penal Code. As per the report of the doctor the sexual intercourse was committed with the prosecutrix. The abduction in this case was with the intention on the part of the appellant to have sexual intercourse and, therefore, we are again inclined to hold that the trial Court has rightly convicted the appellant under Section 366 of the Indian Penal Code.
29. Faced with this difficulty, learned counsel for the appellant has relied upon 2003(1) RCR (Criminal) 247 Jinish Lal Shah v. State of Bihar. The judgment of the cited case is not applicable to the facts in hand. It was established in that case that the prosecutrix was above 18 years of age and this fact was also confirmed by the father of the prosecutrix. Here, in the present case, it is established from the documentary and oral evidence that prosecutrix was born on 2.2.1983 and she was less than 16 years of age as on 23.4.1997. According to our calculation her age was 14 years 2 months and 21 days. The consistent evidence on the record also corroborates this finding. In the cited case, it was held that the prosecutrix was above 18 years of age and that she did not raise any protest nor made any efforts to seek the help of others, in those peculiar circumstances, the Hon'ble Supreme Court was pleased to give the benefit of doubt to the accused but in the present case, it is proved on the record beyond reasonable doubt that prosecutrix was minor for the purpose of Section 375 being less than 16 years and therefore, we have come to this conclusion that appellant had committed rape upon her and which offence is punishable under Section 376 IPC. The counsel for the appellant also placed reliance on 1998 (2) RCR (Criminal) 318, Lakhi Ram v. State of Haryana in which it was held that entry in school record is not an authentic proof of age and generally when a child is admitted his parents understate the age. We have gone through this judgment and again this judgment will not come to the rescue of the appellant. It is not the law of the land that as and when the date of birth has been recorded in the school record it must be found false. Every case will depend upon its facts. The date of birth in the present case has been recorded as 2.2.1983. We have not taken this document alone into consideration. We have also taken into consideration the other factors such as the statement of the prosecutrix, the statement of the doctor, the medical observations, the statement of the Bhabhi of the prosecutrix and the other physical structures of the prosecutrix and then we have come to this conclusion that prosecutrix was less than 16 years of age on the date of the occurrence. Meeting the argument of the counsel for the appellant that in the present case no ossification test was conducted in spite of the recommendation of the doctor. We are of the opinion that it might be a negligence on the part of the Investigating Officer. He might be sure that since he has taken into possession the valuable piece of evidence in the shape of birth record which shows the date of the prosecutrix as 2.2.1983, therefore, he need not ask for the ossification test. It is equally possible that the parents of the prosecutrix may not be ready for further examination of the girl. The judgment of Single Bench reported as 1994 (2) Recent C.R. 456 Mohamad Imtez Khan alias Sannu v. The State of Haryana and 1983 (2) RCR 545 Om Prakash v. State of Punjab again cannot be taken into consideration for the benefit of the appellant. We are not taking the school certificate or the admission form of the prosecutrix as conclusive piece of evidence but if the evidence on the record clinches the issue in favour of the prosecution how the appellant can take the benefit by stating that the prosecutrix was above the age of 18 years or 16 years as the case may be. The crosse-examination in the present case which has been conducted would show that in the trial Court the age of the prosecutrix was never challenged in a satisfactory manner nor this factum was challenged that Sundri was not known by the name of Shanti.
30. Lastly, it was submitted by the counsel for the appellant that if none of his contentions prevails upon the mind of the Court, then the appellant should be shown leniency in the matter of sentence. He submitted that now the prosecutrix has married. Moreover, at one point of time, the mother of the prosecutrix was not interested to prosecute the appellant and that was the reason she has appeared as DW-1 which is very abnormal circumstance when a mother of prosecutrix is appearing for the benefit of the accused we have considered this contention and we are of the opinion that the ends of justice will suffice if the minimum sentence of 7 years as is required under the law is imposed upon the appellant under Section 376 of the Indian Penal Code. We order accordingly. The other sentences awarded upon the appellant under Sections 363 and 366 IPC are hereby maintained. All the sentences shall run concurrently.
31. With this modification in the matter of sentence under Section 376 IPC, the appeal of Shri Sunil is hereby dismissed. Let intimation about the dismissal of this appeal be sent to the jail authorities and the Chief Judicial Magistrate Concerned.