Punjab-Haryana High Court
Harjit Singh @ Bobby vs State Of Punjab on 4 September, 2013
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
CRA-S-557-SB-2000 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-557-SB-2000 (O&M)
Date of Decision: September 4, 2013
Harjit Singh @ Bobby
...Appellant
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr. R.K. Dadwal, Advocate,
for the appellant.
Mr. Sandeep Chhabra, DAG, Punjab,
for the respondent.
NARESH KUMAR SANGHI, J.
1. Challenge in this appeal is to the judgment of conviction and the order of sentence, dated 1.6.2000, passed by the learned Additional Sessions Judge, Hoshiarpur, whereby the appellant was held guilty for the offences punishable under Sections 363, 366 and 376, IPC, and ordered to undergo the following sentences:
Under Section Sentence (R.I.) Fine (in `) In Default (R.I.) 363, IPC 3 years 500/- 3 months 366, IPC 7 years 500/- 3 months 376, IPC 7 years 1000/- 6 months
2. All the substantive sentences were ordered to run concurrently.
Kapoor Prashant 2013.09.23 16:55 I attest to the accuracy of this order CRA-S-557-SB-2000 (O&M) 2
3. The brief facts of the case are that the complainant, Harbans Kaur (PW-7), mother of the prosecutrix (name concealed), made a statement to the police that the prosecutrix, aged about 15/16 years, studying in 10+1 Class in Sant Hari Singh Senior Secondary School, Chabbewal, was her youngest daughter. On 19.10.1998, at about 8:30 a.m., the prosecutrix went to board a bus to go and meet her sister, Manjinder Kaur, at village Jian. On the next day, the complainant sent a message to the prosecutrix that both sisters should come back to their parental house at Handowal. On receipt of the said message, Manjinder Kaur, the elder sister of the prosecutrix, came back all alone to the house of the complainant and disclosed that the prosecutrix had not visited her (Manjinder Kaur) house. In spite of the search, the prosecutrix could not be traced. The complainant further stated that her daughter might have been kidnapped by the appellant, Harjit Singh, because he was also absent from his house since 19.10.1998.
4. On 28.12.1998, the Punjab Police visited Raipur (Madhya Pradesh) and apprehended the prosecutrix and the appellant. They were taken to the local police station at Bhilai and thereafter brought to Hoshiarpur. On 30.12.1998, after taking permission from the learned Judicial Magistrate at Hoshiarpur, the prosecutrix and the appellant were got medico legally examined from Dr. Aruna Kumari (PW2) and Dr. Inder Kapoor Prashant 2013.09.23 16:55 I attest to the accuracy of this order CRA-S-557-SB-2000 (O&M) 3 Mohan Sood (PW1), respectively. On 30.1.1999, the statement of the prosecutrix was also recorded in terms of Section 164, Cr.P.C., by the learned Additional Chief Judicial Magistrate, Hoshiarpur. After completion of the formalities of the investigation, the charge-sheet (report under Section 173, Cr.P.C.) was prepared and presented before the learned Area Judicial Magistrate. In terms of Section 207, Cr.P.C., the copies of the documents relied upon by the prosecution were supplied to the appellant free of cost and the offences punishable under Sections 366 and 376, IPC, being triable by the Court of Session, the case was committed to the latter Court. The same was entrusted to the learned Additional Sessions Judge, Hoshiarpur.
5. Finding a prima facie case, the charges for the offences punishable under Sections 363, 366 and 376, IPC, were framed against the appellant to which he pleaded not guilty and claimed trial.
6. In order to prove its case, the prosecution examined the following witnesses:-
PW1, Dr. Inder Mohan Sood, Senior Medical Officer, Civil Hospital, Hoshiarpur, deposed that on 31.12.1998, he medically examined the appellant, aged about 22 years, at the request of the police and opined that there was nothing to suggest that the appellant, Harjit Singh, was not capable of performing Kapoor Prashant 2013.09.23 16:55 I attest to the accuracy of this order CRA-S-557-SB-2000 (O&M) 4 any kind of sexual act.
PW2, Dr. Aruna Kumari, Medical Officer, Civil Hospital, Hoshiarpur, deposed that on 31.12.1998, at about 5.30 p.m., she medically examined the prosecutrix, aged 15 years, student of 10+1 and found that the patient was conscious; well oriented to time and space; her pulse was 86 per minute regular; blood pressure was 110/20 mmhg; breast was well developed; pubic and axillary hair was present; L.M.P. was 25.11.1998; as per vagina examination, hymen was not intact and easily admits two fingers; uterus was of normal size and mobile; two vaginal swabs were taken and slides were prepared and sent to the Chemical Examiner, Patiala, for examination; and advised X-ray for age determination and urine test to check pregnancy. She handed over a sealed envelope to the police, containing forwarding letter addressed to the Chemical Examiner, Punjab Government, Patiala; sample of seal used; copy of MLR bearing No. AK Special 1/98, dated 31.12.1998; copy of FIR No. 265 of 1998, dated 9.11.1998; and a sealed parcel addressed to the Chemical Examiner, Punjab Government, Patiala, containing two slides and swab, requisition form for age determination and urine for Kapoor Prashant 2013.09.23 16:55 I attest to the accuracy of this order CRA-S-557-SB-2000 (O&M) 5 pregnancy test, and copy of MLR No. AK/Spl. 1/98, dated 31.12.1998. She also proved the original MLR (Ex. PB), which bore her signature. In her further statement, on the basis of the report of Chemical Examiner (Ex. PQ) she stated that semen was found on Exhibit No. 2 and no spermatozoa was present on Exhibit No. 1. She also opined that there was evidence of sexual intercourse.
PW3, Dr. Surinder Ganger, Radiologist, Civil Hospital, Hoshiarpur, had radiologically examined the prosecutrix and opined that her age was between 16½ and 17 years. In cross-examination, he conceded that the said age was variable to three years on either side.
PW4, Virender Kumar, learned Additional Chief Judicial Magistrate, Hoshiarpur, deposed that on 30.1.1999, on police request (Ex. PE), the statement of the prosecutrix in terms of Section 164, Cr.P.C., was recorded by him.
PW5, Karam Chand, a Clerk from the office of Civil Surgeon, Hoshiarpur, deposed that as per the Birth Certificate (Ex. PG), the date of birth of the prosecutrix was 11.6.1983.
PW6, Prem Singh, a Clerk from Sant Hari Singh Kapoor Prashant 2013.09.23 16:55 I attest to the accuracy of this order CRA-S-557-SB-2000 (O&M) 6 Khalsa Senior Secondary School, Jian, Chabbewal, deposed that as per record, the prosecutrix was admitted in the school in 9th class on 5.5.1995 and her date of birth was 11.6.1983.
PW7, Harbans Kaur, complainant, deposed in consonance with the averments made in her statement to the police on 9.11.1998. In the substantive evidence also, she deposed that the age of her daughter was 15/16 years.
PW8, Charan Singh, Principal, Senior Secondary School, Jian, Chabbewal, had brought the summoned record regarding the date of birth of the prosecutrix and stated that her date of birth was 11.6.1983.
PW9, Constable Surjit Singh, had tendered his affidavit (Ex. PR). According to the averments in the affidavit, on 6.1.1999 he received the parcel from Moharrir Head Constable (MHC) Vijay Singh and handed over the same to an official of the Chemical Examiner, Punjab Government, Patiala, and the receipt was handed over to the MHC.
PW10, the prosecutrix, deposed that her age was 15/16 years. On 19.10.1998, at about 8.00 a.m., she had to go to meet her sister, Manjinder Kaur, at village Jian, by boarding a bus. While she was sitting at the Kapoor Prashant 2013.09.23 16:55 I attest to the accuracy of this order CRA-S-557-SB-2000 (O&M) 7 Bus Stand, Handowal Kalan, the appellant met her and told her to go to Amritsar with him. He (appellant) further told her that he would inform her mother and after enticing and without her consent took her to Amritsar. From there they reached Jalandhar by boarding a bus and thereafter they boarded a train for Hoshiarpur. In the train, she came to know that the train was not proceeding towards Hoshiarpur. The appellant told her that he had to solemnize marriage with her, but she told the appellant that they were of different castes and even she did not like him. The appellant compelled her to solemnize marriage with him. She started weeping. The appellant threatened her that if she would not agree to his proposal of marriage, then he would not only kill her, but her parents as well. Due to fear, she stopped weeping. The appellant took her to Bhilai (Madhya Pradesh) and from there to Raipur by boarding a bus. The appellant talked to few persons there for half an hour and thereafter again took her to Bhilai. The appellant kept the prosecutrix there for two months and did not allow her to meet anyone. During the said period of about two months, the appellant continued to commit rape on her without her consent. The appellant also Kapoor Prashant 2013.09.23 16:55 I attest to the accuracy of this order CRA-S-557-SB-2000 (O&M) 8 snatched her earrings and the cash available with her. On 23.12.1998, the police of Police Station, Bhilai, took the appellant to a room where she was confined. The prosecutrix was then kept in a women police station at Raipur. The Punjab Police along with her father reached there and brought both of them to Hoshiarpur. She was medico legally examined by a doctor under the orders of the Court. Her statement was recorded by the police as well as by the Area Magistrate on 30.1.1999.
PW11, MHC Vijay Singh, tendered into evidence his affidavit (Ex. PM) wherein it was averred that he had handed over a parcel to Surjit Singh, Chemical Examiner, Punjab, at Patiala, and after depositing the same Surjit Singh had handed over a receipt to him.
PW12, ASI Rajinder Singh, deposed that on 9.11.1998, he along with other police officials was present at Bus Stand, Chabbewal, and in the meantime complainant, Harbans Kaur (PW7), got recorded her statement (Ex. PK). He made his endorsement (Ex. PK/1) and sent the same to the Police Station, Sadar, Hoshiarpur, on the basis of which, formal FIR (Ex. PK/2) was recorded by MHC Govinder Kumar. On 28.12.1998, he along with other Kapoor Prashant 2013.09.23 16:55 I attest to the accuracy of this order CRA-S-557-SB-2000 (O&M) 9 police officials and in the company of the father of the prosecutrix went to Raipur and informed the local police there with regard to their arrival. He apprehended the appellant and the prosecutrix on the pointing out of the father of the prosecutrix. The prosecutrix as well as the appellant were produced before the learned Chief Judicial Magistrate at Raipur and moved an application (Ex. PO) and it was ordered that the appellant be produced before the Court at Hoshiarpur up to 2.1.1999. The appellant was produced before the learned Area Judicial Magistrate on 31.12.1998. The appellant and the prosecutrix were medico legally examined after obtaining orders from the Court. The prosecutrix was handed over to her parents and the appellant was sent to jail. He (PW12) recorded the statement of the prosecutrix in terms of Section 161, Cr.P.C, on 30.12.1998.
PW13, ASI Shivraj Singh, had also partly investigated the case.
PW14, Constable Narinder Singh, had delivered special report to the learned Area Judicial Magistrate and other senior officers.
7. After completion of the prosecution evidence, the statement of the appellant in terms of Section 313, Cr.P.C., was Kapoor Prashant 2013.09.23 16:55 I attest to the accuracy of this order CRA-S-557-SB-2000 (O&M) 10 recorded wherein he denied the allegations levelled against him by the prosecution and stated as under:-
"I am innocent. xxxxxx (name of prosecutrix concealed) had a love affair with me. I have been working in Madhya Pradesh at Bhilai and Raipur for about 2½ years as a truck-driver prior to the date of occurrence. On 19/10/1998, some devotees from our village had gone to Amritsar to pay homage at Siri Darbar Sahib. xxxxxx (name of prosecutrix concealed) had also accompanied them. From Amritsar, she slipped away and went to Raipur to join me. While searching for my address, she fell into the hands of undesirable elements who took her away and kept wrongfully detained. After her recovery, I was falsely implicated in this case to teach me a lesson for having a love affair with her."
8. The appellant did not lead defence evidence. The learned Trial Court after hearing learned counsel for the parties held the appellant guilty for the offences punishable under Sections 363, 366 and 376, IPC, and awarded the sentences, as mentioned in the initial part of this judgment.
9. Learned counsel for the appellant submitted that the prosecutrix has appeared as PW-10 while her mother as PW-7, but both of them have failed to narrate the date of birth of the prosecutrix. The prosecutrix as well as her mother deposed that the prosecutrix was 15/16 years of age. In view of the said fact, learned counsel for the appellant submitted that where two Kapoor Prashant 2013.09.23 16:55 I attest to the accuracy of this order CRA-S-557-SB-2000 (O&M) 11 things are being narrated by the witnesses in their deposition, in that eventuality, the fact which is favourable to the accused has to be accepted. He also submitted that both the said witnesses have stated that the prosecutrix was 15/16 years of age, therefore, the age of the prosecutrix be construed as 16 years at the time of the alleged occurrence. He further submitted that to prove the date of birth, the prosecution has examined PW5, Karam Chand, a Clerk from the office of the Civil Surgeon, Hoshiarpur, and in his deposition it has emerged that the entry in the Birth Register was entered on the basis of the Register of the Police Station, which was sent to the office of the Chief Medical Officer. However, the said register has not been produced in the Court. Even the Chowkidar, on the basis of whose register, the register is maintained by the police, has also been withheld. It was further submitted by the learned counsel for the appellant that the deposition of PW6, Prem Singh, a Clerk from Sant Hari Singh Khalsa Senior Secondary School, Jian, Chabbewal, would not substantiate the fact that the date of birth of the prosecution was 11.6.1983, because the entry in the school register was based on the disclosure of Mahender Singh, father of the prosecutrix, but he has not been examined by the prosecution. The said witness had specifically admitted that there was no birth entry of the prosecutrix in their record on the basis of the certificate issued by the Civil Surgeon, Hoshiarpur. Kapoor Prashant 2013.09.23 16:55 I attest to the accuracy of this order CRA-S-557-SB-2000 (O&M) 12
10. Learned counsel for the appellant further argued that the alleged occurrence had taken place on 19.10.1998 and thereafter the matter was reported to the police on 9.11.1998, i.e. after a delay of 20 days and there was no explanation for such a huge delay.
11. Learned counsel for the appellant also argued that the prosecutrix and the appellant were allegedly apprehended by the police in the last week of December, 1998 and during the said period of more than two months, the prosecutrix allegedly travelled with the appellant from Bus Stand, Handowal Kalan to Amritsar; from Amritsar to Jalandhar; from Jalandhar to Bhilai; from Bhilai to Raipur; and then from Raipur to Bhilai through different modes of transport viz. bus and train, but the prosecutrix did not lodge her protest with any person. Even in her cross-examination, it has come that at certain places the police personnel were available. Therefore, the prosecutrix was a consenting party.
12. Learned counsel for the appellant further submitted that the depositions of the prosecution witnesses are contradictory to each other. He further submitted that the prosecutrix was apprehended by the Punjab Police on 28.12.1998 at Raipur and after being brought to Hoshiarpur was produced before the learned Area Judicial Magistrate on 30.12.1998, but during the said period her statement was not recorded because Kapoor Prashant 2013.09.23 16:55 I attest to the accuracy of this order CRA-S-557-SB-2000 (O&M) 13 she did not want to make statement against the appellant. He also submitted that on 30.1.1999, the prosecutrix was once again produced before the Magistrate for getting her statement recorded in terms of Section 164, Cr.P.C. During the period of one month, the prosecutrix was pressurized by her family members to make statement against the appellant. He further submitted that if the prosecutrix had any complaint against the appellant, then her statement should have been recorded by the Magistrate on 30.12.1998, when she was produced for the first time before the said Court.
13. Learned counsel for the appellant also submitted that the medical evidence belies the fact that the prosecutrix was subjected to sexual intercourse without her consent. He also submitted that the prosecutrix was habitual to sexual intercourse and no injury was found on her person. He has also referred to the statement of PW3, Dr. Surinder Ganger, a Radiologist, who deposed that the age of the prosecutrix was 16½ years to 17 years and three years on either side can be added or deducted. Therefore, the prosecutrix was more than 19 years of age.
14. In support of above submissions, learned counsel for the appellant has placed reliance on the judgments rendered in the cases of Rajesh v. State of Haryana, 2005 (2) RCR (Criminal) 931 (P&H); Badal Bhandari v. State of Bihar (now Jharkhand), 2006 (3) RCR (Criminal) 22 (Jharkhand); Rajesh v. State of Haryana, Kapoor Prashant 2013.09.23 16:55 I attest to the accuracy of this order CRA-S-557-SB-2000 (O&M) 14 2006 (3) RCR (Criminal) 777 (P&H); Dinesh v. State of Haryana, 2007 (3) RCR (Criminal) 241 (P&H); Arvinder Kaur and another v. State of Punjab, 2007 (3) RCR (Criminal) 818 (P&H); Idrish v. State of Haryana, 2007 (3) RCR (Criminal) 824 (P&H); Aba @ Dinkar Girdhar Koli v. State of Maharashtra, 2008 (3) RCR (Criminal) 97 (Bombay); Som Nath v. State of Punjab, 2008 (3) RCR (Criminal) 510 (P&H); Amrik Singh v. State of Punjab, 2009 (2) RCR (Criminal) 211 (P&H); State of Haryana v. Shashi Kant alias Bam Bam alias Lambu, 2010 (1) RCR (Criminal) 338 (D.B.)[P&H); Dinesh v. State of Haryana, 2010 (2) RCR (Criminal) 366 (P&H); and Parvati v. State of Haryana, 2013 (3) RCR (Criminal) 315 (P&H).
15. Learned counsel for the State submitted that from the evidence of the prosecution, it has been well established that the date of birth of the prosecutrix was 11.6.1983. The occurrence had taken place on 19.10.1998, therefore, she was less than 16 years of age at the time of occurrence. He has referred to the statements of PW5, PW6 and PW8 who had deposed that the date of birth of the prosecutrix was 11.6.1983. He further submitted that the prosecutrix as well as her mother have also deposed that the age of the prosecutrix was 15/16 years at the time of occurrence, therefore, the prosecutrix was minor at the time of occurrence.
16. He also submitted that from the material available on record, it has been well proved by the prosecution that the Kapoor Prashant 2013.09.23 16:55 I attest to the accuracy of this order CRA-S-557-SB-2000 (O&M) 15 prosecutrix was abducted with an intention to repeatedly commit rape and, therefore, the mischiefs of Sections 363, 366 and 376, IPC, are clearly attracted and the learned Trial Court has rightly convicted and sentenced the appellant. He also submitted that the fact that the prosecutrix was habitual to sexual intercourse would not be sufficient to extend the benefit to the appellant and since the prosecutrix was minor, the appellant cannot derive any benefit on the ground of consent. In support of the above submissions, learned counsel for the State has placed reliance on a judgment of Hon'ble the Supreme Court delivered in the case of Satpal Singh v. State of Haryana, 2010 (3) RCR (Criminal) 777, and a judgment of this Court in the case of Suresh Kumar v. State of Haryana, 2004 (4) RCR (Criminal) 204.
17. I have heard learned counsel for the parties and with their able assistance gone through the material available on record.
18. The undisputed facts of the case are that the prosecutrix and the appellant belonged to the same area. Both of them went to Amritsar from Hoshiarpur in a bus and remained in the Sri Darbar Sahib for two hours and thereafter they boarded a bus and came to Jalandhar and from there to Hoshiarpur. From Hoshiarpur they boarded a train and went to Bhilai (Madhya Pradesh) and from there to Raipur and again to Bhilai and remained at Bhilai up to 28.12.1998 when the Punjab Police Kapoor Prashant 2013.09.23 16:55 I attest to the accuracy of this order CRA-S-557-SB-2000 (O&M) 16 apprehended them. Thereafter the prosecutrix and the appellant were brought to Hoshiarpur on 30.12.1998 where they were produced before the learned Judicial Magistrate on 30.12.1998 and after obtaining permission, their medico legal examination was conducted. It is also undisputed that PW7, Harbans Kaur, mother of the prosecutrix, and PW10, prosecutrix, in their depositions before the learned Trial Court disclosed the age of the prosecutrix as 15/16 years. It is also a fact that PW3, Dr. Surinder Ganger, a Radiologist, who radiologically examined the prosecutrix, opined that the age of the prosecutrix was between 16½ to 17 years. It is also an admitted position that as per the opinion of PW2, Dr. Aruna Kumari, the prosecutrix was used to sexual intercourse for a long period.
19. It is settled law that if two views are available on record, then the one favourable to the accused has to be accepted. Their Lordships of Hon'ble the Supreme Court in the case of Allarakha K. Mansuri v. State of Gujarat, 2002 (1) R.C.R. (Criminal) 748, held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court. Similar views were expressed in the cases of State of Goa v. Sanjay Thakran, (2007) 3 SCC 755, and Chandrappa v. State of Karnataka, (2007) 4 SCC 415.
20. Though the prosecution has alleged that the date of birth of the prosecutrix was 11.6.1983, but the prosecutrix as well Kapoor Prashant 2013.09.23 16:55 I attest to the accuracy of this order CRA-S-557-SB-2000 (O&M) 17 as her mother have failed to depose that the date of birth of the prosecutrix was 11.6.1983. Both of them have deposed that the age of the prosecutrix was 15/16 years. The said fact is further fortified from the deposition of PW3, Dr. Surender Ganger, who was very categoric in his deposition that the prosecutrix was 16½ to 17 years of age. Undoubtedly, PWs 5, 6 and 8 did depose that the date of birth of the prosecutrix was 11.6.1983, but in the facts and circumstances of the present case, their deposition cannot be taken to be a gospel truth. PW5, Karam Chand, a Clerk from the office of Civil Surgeon, Hoshiarpur, admitted in the cross-examination that the entries in the register of his office were made on the basis of police register and the entries in the police register were based on the basis of the entries of the Chowkidar of the village. But neither the Chowkidar nor any person from the police of the concerned area was produced to prove the said fact. PW6, Prem Singh, a Clerk from Sant Hari Singh Khalsa Senior Secondary School, Jian, Chabbewal, also admitted in the cross-examination that the entry with regard to the date of birth of the prosecutrix was not supported by any birth certificate issued by the office of the Chief Medical Officer. Similar was the position with regard to the deposition of PW8, Charan Singh, Principal, Senior Secondary School, Jian, Chabbewal. This Court has no other option but to accept the deposition of the prosecutrix and her mother that the prosecutrix Kapoor Prashant 2013.09.23 16:55 I attest to the accuracy of this order CRA-S-557-SB-2000 (O&M) 18 was 16 years of age at the time of the occurrence. Thus, it is held that the age of the prosecutrix was 16 years at the time of the commission of the offences.
21. From the conceded facts if the whole case is analysed, then it appears that the prosecutrix had given her consent to have sexual intercourse with the appellant. This opinion has been formed on the basis of the following reasons:-
♦ The prosecutrix visited various places with the appellant;
♦ She lived with the appellant for more than two months;
♦ She was apprehended by the Bhilai police on 23.12.1998 and taken to the police station, but she did not disclose regarding commission of the offence of rape;
♦ The Punjab Police apprehended the prosecutrix at Bhilai on 28.12.1998, but her statement was not recorded till 30.12.1998;
♦ The prosecutrix was produced before the learned Judicial Magistrate on 31.12.1998, but her statement in terms of Section 164, Cr.P.C., was not recorded and that her statement was recorded on 30.1.1999; and ♦ During the above period, the prosecutrix did not Kapoor Prashant 2013.09.23 16:55 I attest to the accuracy of this order CRA-S-557-SB-2000 (O&M) 19 complain against the appellant with regard to the alleged excesses made by him with the prosecutrix.
22. In Rajesh v. State of Haryana, 2005 (2) RCR (Criminal) 931, this Court held that the prosecutrix aged about 16 years remained in the company of the accused for a week and both of them moved about freely in public by public transport and stayed at three different locations before being arrested as vagabonds under Section 109, Cr.P.C. Therefore, the accused was exonerated of the charges punishable under Sections 366 and 376, IPC.
23. In Amrik Singh's case (supra), this Court acquitted the accused, inter alia, on the grounds that the accused and the prosecutrix travelled to a number of places in buses and trains, but the prosecutrix made no complaint to anybody; both stayed in a Gurudwara, but the prosecutrix did not disclose her apathy to any person; and as per the ossification test, the age of the prosecutrix was 17 years and by adding two years, she was held to be 19 years of age.
24. In the case of Shashi Kant alias Bam Bam alias Lambu (supra), a Division Bench of this Court dismissed the appeal filed by the State of Haryana while upholding the judgment of acquittal, inter alia, on the ground that the prosecutrix remained with the accused for fifteen days and travelled to distant places in public transport and she never made grievance to any person. Kapoor Prashant 2013.09.23 16:55 I attest to the accuracy of this order CRA-S-557-SB-2000 (O&M) 20
25. On the basis of above discussed facts and the ratio of the judgments (supra), this Court is of the firm opinion that the prosecutrix was 16 years of age at the time of commission of the offences and she gave her consent to have sexual intercourse with the appellant. Therefore, no case for holding the appellant guilty for the offence punishable under Section 376, IPC, is made out and, as such, he is acquitted of the said charge.
26. The prosecutrix was less than 18 years of age at the time of commission of the offences, therefore, the conviction of the appellant for the offences punishable under Sections 363 and 366, IPC, is well based because the consent of the prosecutrix being less than 18 years of age is immaterial to that extent and, as such, the judgment of conviction of the appellant for the offences punishable under Sections 363 and 366, IPC, is maintained.
27. Learned counsel for the appellant submitted that at the time of commission of the offences, the appellant was 22 years of age and now he has joined the main stream of life after solemnizing marriage and has small children to look after. He further submitted that the prosecutrix has also solemnized marriage and is residing abroad. He, thus, submitted that a lenient view be taken so far as the sentence of the appellant for the offences punishable under Sections 363 and 366, IPC, is concerned.
Kapoor Prashant 2013.09.23 16:55 I attest to the accuracy of this order CRA-S-557-SB-2000 (O&M) 21
28. Taking into consideration the age of the prosecutrix and that of the appellant at the time of commission of the offences; the fact that the occurrence had taken place in the year 1998, i.e. approximately 15 years ago; the appellant is a first offender and has not repeated the offence; and that the appellant and the prosecutrix have joined the main stream and both of them are leading normal life, the sentence of the appellant for the offence punishable under Section 366, IPC, is reduced to rigorous imprisonment for three years. However, the sentence for the offence under Section 363, IPC, as awarded by the learned Trial Court, is maintained. Both the sentences for the offences punishable under Sections 363 and 366, IPC, shall run concurrently. The order of fine imposed by the learned Trial Court for the offences punishable under Sections 363 and 366, IPC, shall remain undisturbed. If the appellant has deposited the fine for the offence punishable under Section 376, IPC, the same shall be refunded to him in accordance with law.
29. Learned counsel for the State has also produced the affidavit of the Deputy Superintendent, Central Jail, Ludhiana, showing the period of incarceration suffered by the appellant, which is taken on record. A perusal of the affidavit reveals that the appellant has suffered substantive sentence of one year, five months and twenty-one days as on 21.6.2000. He was released on bail on 21.6.2000 in compliance of the order dated 16.6.2000, Kapoor Prashant 2013.09.23 16:55 I attest to the accuracy of this order CRA-S-557-SB-2000 (O&M) 22 passed by this Court. Therefore, non-bailable warrants be issued to secure his presence to serve out the un-served portion of the substantive sentence.
30. The Registry is directed to forthwith send back the entire lower Court record along with a copy of this judgment.
(NARESH KUMAR SANGHI)
September 4, 2013 JUDGE
Pkapoor
Kapoor Prashant
2013.09.23 16:55
I attest to the accuracy
of this order