Punjab-Haryana High Court
Sanjay Kumar vs State Of Punjab on 29 August, 2013
Author: K.C. Puri
Bench: K.C. Puri
Crl. A. No. S-1321 SB of 2003 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl. A. No. S-1321 SB of 2003 (O&M)
Date of decision : 29.8.2013
...
Sanjay Kumar
................Appellant.
vs.
State of Punjab
.................Respondent
Coram: Hon'ble Mr. Justice K.C. Puri
Present: Sh. T.S. Sangha, Senior Advocate with
Sh. H.S. Sangha, Advocate for the appellant.
Sh. S.S. Chandumajra, Senior Deputy Advocate General,
Punjab.
...
K.C. Puri, J.
Challenge in this appeal is the judgment and order dated 11.7.2003 passed by Sh. Sunil Kumar Arora, Additional Sessions Judge (Adhoc), Fast Track Court, Ludhiana, vide which the accused appellant has been convicted under Section 363 IPC but has been acquitted under Section 376 IPC.
The case of the prosecution as enumerated from the record is that complainant Balbir Singh alongwith his wife, two sons and daughter - prosecutrix (name not disclosed on account of directions Chugh Banita 2013.09.10 11:37 I attest to the accuracy and integrity of this document Crl. A. No. S-1321 SB of 2003 -2- of Hon'ble the Supreme Court) at the time of occurrence was residing in Mohalla Preet Nagar, Ludhiana. The prosecutrix was born on 21.6.1981. Accused Sanjay was also residing in the same Mohalla in a rented room. He was doing the job of Mason in a house situated in front of the house of the complainant. Earlier the accused used to tease the victim for which he was warned by the complainant but to no effect. On 8.8.1998 complainant, his wife and prosecutrix had gone to the house of his brother-in-law Darshan Lal situated in Field Ganj Area, Ludhiana, as his wife has to join her brother for Raksha Bandhan ceremony. The prosecutrix went to market to take ice cream. While she was coming back, accused met her on the way and by putting her under the fear of death, kidnapped her from the lawful guardianship of her father with an intention or knowledge that she will be forced to marry accused or seduced her to illicit intercourse. She was taken to a place in Himachal Pradesh, from where she was taken to Andhra Pradesh to the house of maternal uncle of accused, who in turn did not allow them to enter their house. The victim was taken to slum where they stayed for 15-20 days. She was then taken to some un-known place and then to Faridabad. Accused Sanjay Kumar during this period, at different stations forcibly committed rape upon her against her will and consent and after about two months, they were apprehended by the police.
Challan was presented against the accused. Charge under Sections 363, 376 IPC was framed against the accused, to which he Chugh Banita 2013.09.10 11:37 I attest to the accuracy and integrity of this document Crl. A. No. S-1321 SB of 2003 -3- pleaded not guilty and claimed trial.
The prosecution, in order to bring home guilt of the accused examined PW-1 prosecutrix, PW-2 Balbir Singh, father of the prosecutrix, PW-3 ASI Surat Singh, PW-4 HC Karam Singh, PW-5 Constable Kulwant Singh, PW-6 Dr. Ashok Raswant and closed the prosecution evidence.
The accused was examined under section 313 Cr.P.C. and all the incriminating evidence was put to him, to which he denied and pleaded false implication. He has further stated that he had to take money from Raj Kumar maternal uncle of the prosecutrix, who did not pay the amount rather threatened him to implicate him in a false case. He further pleaded that prosecutrix was in love with him and he never kidnapped her or committed rape upon her. The accused in his defence did not produce any witness.
Learned trial Court after appraisal of the evidence, found the accused guilty under Section 363 IPC and sentenced him to undergo rigorous imprisonment for 3 years and to pay fine of `500/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one month.
Feeling dissatisfied with the abovesaid judgment and order dated 11.7.2003 passed by the Additional Sessions Judge (Adhoc), Fast Track Court, Ludhiana, the accused appellant has preferred the present appeal.
Learned counsel for the appellant has not challenged the Chugh Banita 2013.09.10 11:37 I attest to the accuracy and integrity of this document Crl. A. No. S-1321 SB of 2003 -4- conviction recorded by the trial Court. However, he has submitted that basis of age proof of the prosecutrix is the matriculation certificate and according to that certificate she was about 17 years. The learned trial Court after appraisal of the evidence reached to the conclusion that prosecutrix was a consenting party and she has traveled with him to different places including Andhra Pradesh. It is further submitted that appellant has already undergone incarceration for a period of 5 months and 21 days. He is not a previous convict. So, prayer has been made for taking a lenient view. Learned counsel for the appellant has relied upon the authorities reported as Surender Singh vs. State of Haryana 2011 (2) RCR (Criminal) 597, Ram Asra vs. State of Haryana 2003 (4) RCR (Criminal) 641 and Mohar Pal vs. State of Haryana 2003 (4) RCR (Criminal) 469 and on the strength of the same it is submitted that in the abovesaid authorities sentence was reduced to the period already undergone in respect of offence under Sections 363 IPC where the prosecutrix had accompanied the accused by her free will and was above 17 years.
Learned State counsel has submitted that conviction be maintained but has submitted that it is the prerogative of the Court to award the quantum of sentence.
I have considered the submissions made by counsel for both the sides and have also gone through the record of the case.
Learned trial Court has given a definite finding that prosecutrix was above 17 years and has voluntarily accompanied the Chugh Banita 2013.09.10 11:37 I attest to the accuracy and integrity of this document Crl. A. No. S-1321 SB of 2003 -5- accused at different places including Andhra Pradesh. So, by giving that finding, the accused has been acquitted under Section 376 IPC. However, the accused has been convicted for offence under Section 363 IPC. The age of the prosecutrix has not been disputed during the course of the arguments. So, the prosecutrix has been taken away from the lawful guardianship of her parents and as such the ingredients of offence under Section 363 IPC are clearly made out. So, the conviction recorded by the trial Court in respect of offence under Section 363 IPC stands affirmed.
Now, reverting to the quantum of sentence, the appellant has already undergone incarceration for a period of 5 months and 21 days out of the substantive sentence of 3 years awarded by the trial Court. This Court in Surender Singh's case (Supra) reduced the sentence from 5 years to the period already undergone, which was 10 months in that case. However, the sentence of fine was enhanced to `10,000/-. In Ram Asra's case (Supra), the sentence has been reduced to the period already undergone for offence under Section 363 IPC in respect of prosecutrix aged 17 years and 10 months, where she was found to be a consenting party. In Mohar Pal's case (Supra) also the sentence was reduced to the period already undergone for offence under Section 363 IPC. So considering he abovesaid authorities, the sentence of the appellant stands reduced to the period already undergone. However, the sentence of fine stands enhanced to `10,000/-. The said amount be deposited within two Chugh Banita 2013.09.10 11:37 I attest to the accuracy and integrity of this document Crl. A. No. S-1321 SB of 2003 -6- months from today, failing which he shall undergo rigorous imprisonment for two years.
The appeal stands disposed of accordingly.
A copy of the judgment be sent to the trial Court for strict compliance.
( K.C. Puri ) 29.8.2013 Judge chugh Chugh Banita 2013.09.10 11:37 I attest to the accuracy and integrity of this document