Vicky @ Sonu vs Ut Of Chandigarh on 12 November, 2014

[Cites 8, Cited by 2]

Punjab-Haryana High Court

Vicky @ Sonu vs Ut Of Chandigarh on 12 November, 2014

1. The present appeal is directed against the judgement dated 09/07/2011 and order dated 12/07/2011 passed by the learned Additional Sessions Judge, Chandigarh vide which the appellant herein (Vicky @ Sonu) has been convicted and sentenced to undergo rigourous imprisonment for a period of 3 years and to pay fine of Rs.1000/- and in default of payment of fine to further undergo rigorous imprisonment for 15 days for the offence punishable under Section 363 IPC. He has further been sentenced to undergo rigorous SANDHU RUPINDER KAUR 2014.11.12 15:39 I attest to the accuracy and integrity of this document Criminal Appeal No. S-1787-SB of 2011 [ 2 ] imprisonment for a period of 5 years and to pay fine of Rs.2000/- and in default of payment of the same, to further undergo imprisonment for one month for the offence punishable under section 366 IPC. He has also been sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.5000/- and in default of payment of the same, to further undergo imprisonment for 2 months for the offence punishable under section 376 IPC.

2. Briefly the facts of the case are that on 29/11/2010, complainant met SI Chiranji Lal and got recorded his statement to the effect that he is resident of House No.1156, Pushpac Complex, Sector 49, Chandigarh and is an insurance agent of National Insurance Company. His daughter Divya Jyoti aged 15 years left his house on 24/11/2010 without any information and a DDR No. 29 dated 24/11/2010 regarding her missing from home was lodged. On 29/11/2010, he came to know that Vicky Soni aged 20 years had enticed her daughter and taken her with him on the pretext of marriage.

3. On the said statement, rukka was sent to the police station for registration of the case and accordingly formal FIR (Ex.P19) for the offence punishable under sections 363, 366 IPC was registered. In pursuance to registration of the said FIR, the appellant was arrested on 29/11/2010, prosecutrix was recovered and after her medico-legal examination, was handed over to her father (complainant). Accused was also got medico-legally examined to ascertain whether he was capable to perform sexual intercourse or not? On medico-legal SANDHU RUPINDER KAUR 2014.11.12 15:39 I attest to the accuracy and integrity of this document Criminal Appeal No. S-1787-SB of 2011 [ 3 ] examination of the prosecutrix, offence punishable under section 376 IPC was added. Thereafter, statement of the prosecutrix under section 164 Cr.P.C. was got recorded before JMIC, Chandigarh on 30/11/2010 (Ex.P10). The sealed parcels containing samples which were taken into possession by the police during the medical examination of the prosecutrix were sent to CFSL, Chandigarh. Statement of the witnesses were recorded under section 161 Cr.P.C., site plan of the place of kidnapping was prepared and on completion of investigation, the accused was sent to face trial for commission of offences punishable under sections 363, 366, 376 IPC to the Court of learned Sessions Judge, Chandigarh vide commitment order dated 24/02/2011 passed by the J.M.I.C., Chandigarh.

4. The Trial Court on prima facie finding the accused guilty of the offences punishable under Sections 363, 366, 376 IPC, chargesheeted him vide order dated 28/02/2011, to which he pleaded not guilty and claimed trial.

5. In support of its case, prosecution examined PW1 Dr. Shikha, PW2-Rakesh Kumar-complainant, PW-3 Ashok Kumar, PW4 C.Yashpal, PW5 JMIC Ms. Anupamish Modi, PW6 Dr Geetanjali, PW7 Divya Jyoti-prosecutrix, PW8 ASI Kulwaranjit Singh, PW9 C. Ram Avtar and PW10 MMHC Paramjit Singh and closed their evidence.

6. In defence, statement of the accused under Section 313 Cr.P.C. was recorded wherein he denied all the allegations against him and stated that he has been falsely implicated as a result of SANDHU RUPINDER KAUR 2014.11.12 15:39 I attest to the accuracy and integrity of this document Criminal Appeal No. S-1787-SB of 2011 [ 4 ] conspiracy in the case by the prosecutrix and her friend Harpreet Singh. He denied having had any friendship with the prosecutrix. He further stated that the prosecution story with regard to kidnapping of the prosecutrix and committing rape upon her on the pretext of marriage, is false. However, in support of his case, no evidence was led by him and consequently his defence evidence was closed.

7. Learned counsel for the appellant argued that no allegations of rape have been levelled by the prosecutrix against the appellant in the statement recorded under section 164 Cr.P.C. before the J.M.I.C., Chandigarh and thus the allegations of rape levelled subsequently by her is a material improvement in her statement got recorded while appearing as PW7 and cannot be relied upon so as to convict the appellant in the present case. He further argued that as per her own statement, she ran away with the accused because her family members used to torture her and instructed her not to talk with the accused which thus makes it clear that the accused played no role in the occurrence or commission of the crime as the prosecutrix left her house out of her own sweet will. He further argued that the allegations of rape are not substantiated on record as neither the name of the hotel where they stayed at Chintpurni nor the name of the transport company of the bus through which they travelled to Chintpurni has been disclosed by the prosecutrix and hence the story of the prosecution that the appellant accompanied the prosecutrix to Chintpurni and committed rape upon her is palpably false and concocted. He further argued that it was Harpreet SANDHU RUPINDER KAUR 2014.11.12 15:39 I attest to the accuracy and integrity of this document Criminal Appeal No. S-1787-SB of 2011 [ 5 ] Singh who had committed rape upon the prosecutrix as he was called by the prosecutrix to Chintpurni and after their return from Chintpurni to Chandigarh on 27/11/2010, Harpreet Singh had booked Hotel Mittasho, Zirakpur in his name and the said fact is substantiated on record by the evidence of PW3 Ashok Kumar- Manager of the hotel and thus the presence of the accused is not proved on record. He further argued that as per cross examination of PW6 Dr. Geetanjali, vagina of the prosecutrix admitted two fingers easily and the possibility of the prosecutrix being habitual to sexual intercourse cannot be ruled out. Even there were no marks of any injury on any part of the body of the prosecutrix and thus by no stretch of imagination it can be concluded that rape has been committed upon her. Strengthening the said argument, learned counsel further argued that CFSL report (Ex.P23) also supports the fact that no rape was committed upon the prosecutrix as no spermatozoa was found present on the vaginal swabs sent for forensic examination but was only found on the underwear of the prosecutrix which may be for many reasons and does not in any manner prove that rape has been committed upon her. Even as per PW1 Dr. Shikha, non-presence of the blood and tightness of foreskin of the glans of the appellant is indicative of the fact that accused did not have sexual intercourse within 24 hours from examination and thus it can conclusively be said that no rape as alleged by the prosecution has been committed upon the prosecutrix by the appellant. He further argued that as per the statement of the SANDHU RUPINDER KAUR 2014.11.12 15:39 I attest to the accuracy and integrity of this document Criminal Appeal No. S-1787-SB of 2011 [ 6 ] prosecutrix recorded under section 164 Cr.P.C., she along with the appellant herself went to the police station, sector 34, Chandigarh. However, in her examination in Chief, she stated that on 29/11/2010 she alongwith Happy and the accused while going to police station, were apprehended in the market of sector 34, Chandigarh by the police which thus shows that the prosecution has cooked up a false story by showing that she was apprehended with the accused by the police in sector 34 market whereas the fact is that the prosecutrix herself went to the police station and thus the appellant had no role played in the entire occurrence and has been falsely implicated in the present case as he came to the police station to help Harpreet Singh on his asking but the police let off Harpreet Singh and has implicated the appellant in the present case. He lastly argued that the prosecutrix out of her own sweet will accompanied the accused and thus in view of the same, no offence punishable under section 363 IPC is made out.

10. Per contra, it was argued by the learned State Counsel that the prosecution has been able to prove its case beyond reasonable doubt as the prosecutrix while appearing in the witness box as PW7 herself stated that on 24/11/2010 she met the accused at bus stand, Ambala from where they went to Chintpurni and stayed in a hotel for 2-3 days. In the hotel, the accused committed rape upon her despite her resistance to the same on the assurance and promise that he will marry her. He further argued that the ocular version has been fully corroborated by the medical evidence on record as well as CFSL SANDHU RUPINDER KAUR 2014.11.12 15:39 I attest to the accuracy and integrity of this document Criminal Appeal No. S-1787-SB of 2011 [ 7 ] report, confirming the factum of rape having been committed upon the prosecutrix by the appellant and thus the offences punishable under sections 363, 366 and 376 IPC are fully established beyond doubt against the appellant for which he has rightly been convicted and sentenced vide the impugned judgement by the Trial Court and the same does not call for any interference.

11. I heard the learned counsel for the parties and perused the record of the case with their assistance.

12. The facts of the case are culled out hereinabove which do not need repetition. It is undisputed on record that the prosecutrix was below the age of 16 years on the date of occurrence, her date of birth being 15/11/1995 as per her certificate of birth dated 16/01/1996 issued by Chandigarh Administration, Department of Health (Ex.P2).

13. Kidnapping from lawful guardianship is defined under section 361 IPC which reads as under:-

"Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."

A bare reading of the aforesaid section abundantly makes it clear that to constitute an offence of kidnapping, enticing away a minor out of the keeping of a lawful guardian is sufficient. In the SANDHU RUPINDER KAUR 2014.11.12 15:39 I attest to the accuracy and integrity of this document Criminal Appeal No. S-1787-SB of 2011 [ 8 ] present case, it has come on record that the prosecutrix ran away with the accused because her family members used to torture her and instructed her not to talk with the accused which thus abundantly makes it clear that she ran away with the accused without the permission of her father (PW2)-a lawful guardian. It is also admitted by the prosecutrix that the appellant was her boyfriend since December 2009 and that she alongwith the appellant went to Chintpurni, where the appellant committed rape upon her despite her resistance to the same on the assurance and promise that he will marry her. It is thus evident, that the prosecutrix accompanied the accused only for the reason that she was assured by the appellant that he will marry her and under the garb of marriage, committed rape upon her. In view of the unambiguous provision as envisaged under the aforesaid section viz. kidnapping, it is inconsequential as to whether a minor gives consent to run away with another person or not? The underlining words in the aforesaid section are "...out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian ...". On reading of the facts emanating from the record in conjunction with the bare provision of section 361 IPC, it is apparent on record that the prosecutrix was kidnapped and taken out of the keeping of the lawful guardian without his consent and taken away to Chintpurni where the appellant committed rape upon her without her consent and against a freewill on the pretext of marriage and thus the appellant is guilty for commission of the offences punishable under SANDHU RUPINDER KAUR 2014.11.12 15:39 I attest to the accuracy and integrity of this document Criminal Appeal No. S-1787-SB of 2011 [ 9 ] section 363 and 366 IPC.

14. Rape is defined under section 375 IPC which reads thus:-

A man is said to commit "rape" if he-

(a) penetrate his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes to do so with him or any other person; or

(c) menu plates any part of the body of a women so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person;

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions-

First- Against her will.

Secondly- Without her consent.

Thirdly- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly- With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he SANDHU RUPINDER KAUR 2014.11.12 15:39 I attest to the accuracy and integrity of this document Criminal Appeal No. S-1787-SB of 2011 [ 10 ] is another man to whom she is or believes herself to be lawfully married.

Fifthly- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the Administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly- With or without her consent, when she is under eighteen years of age.

Seventhly- When she is unable to communicate consent.

The present case is covered under clauses fifth & sixth inasmuch as it is the prosecutrix version while appearing as PW7, that on 24/11/2010, she ran away with the accused because her family members used to torture her and instructed her not to talk with the accused. She went to Ambala from Chandigarh where she called her boyfriend Vicky Soni (appellant) from where they went to Chintpurni and stayed in a hotel for 2-3 days. There the appellant committed rape upon her. She resisted the act of the accused but the accused instead of listening to her, promised that he will marry her.

15. To acertain the fact as to whether the rape was committed upon the prosecutrix or not, she was medico-legally examined by PW6 Dr. Geetanjali whereupon on examination, she opined that no external mark of injury was present, hymen not intact, no bleeding per vagina, no discharge per vagina, P/V admits 2 fingers easily, SANDHU RUPINDER KAUR 2014.11.12 15:39 I attest to the accuracy and integrity of this document Criminal Appeal No. S-1787-SB of 2011 [ 11 ] uterus ante-verted normal size B/lateral FX clear. She had also conducted urinary pregnancy test which was negative on that day as the patient was given I-pill. In her cross examination, she stated that near the portion at point A, the hymen was ruptured and in her opinion as per vagina examination, the probability of the prosecutrix being habitual to sexual intercourse cannot be ruled out.

16. Further upon the forensic examination of the samples, semen was detected on the underwear of the prosecutrix as well as on the underwear of the appellant as per CFSL report dated 13/05/2011 (Ex.P23) which thus fortifies the fact that both the prosecutrix as well as the appellant performed sexual intercourse with each other. The non-presence of semen on the vagina swab does not in any manner make the prosecution case shaky inasmuch as it has come on record in the statement of the prosecutrix that rape was committed forcibly upon her by the appellant in Chintpurni where they stayed in a hotel for 2-3 days commencing from 25/11/2010 and thereafter returned to Chandigarh on 27/11/2010. Admittedly, the prosecutrix was medico-legally examined on 29/11/2010 and thus the possibility of the semen/traces of it having been washed away and cleaned during these 3 days by the prosecutrix from her private parts under the backdrop of the present case cannot be ruled out as it has come on record into the testimony of PW6 (Dr. Geetanjali) that the prosecutrix informed her of taking bath and changing her clother during these 3 days of extensive travel and stay with the accused. SANDHU RUPINDER KAUR 2014.11.12 15:39 I attest to the accuracy and integrity of this document

Criminal Appeal No. S-1787-SB of 2011 [ 12 ]

17. Further, PW1 Dr. Shikha on conducting medical examination of the appellant on 30/11/2010, opined that there was nothing to suggest that the appellant was incapable of performing sexual intercourse. Though it was sought to be argued by the learned counsel for the appellant that in cross examination, she stated that non-presence of blood and the tightness of the foreskin of his glans suggest that he did not have sexual intercourse within 24 hours from examination but in my considered opinion the said argument is completely out of context and devoid of any force inasmuch as it is not the case of the prosecution that the prosecutrix was subjected to sexual intercourse by the appellant 24 hours before medical examination rather it is their positive case unfolded from the mouth of the prosecutrix that she was subjected to rape forcibly in Chintpurni by the appellant where they stayed for 2-3 days, on the assurance and promise that he will marry her and thus under the said backdrop, the non-presence of blood and tightness of the foreskin of the glans of the appellant is of no help to him.

18. It was further strenuously argued by the learned counsel for the appellant that the prosecutrix had run away and accompanied the appellant out of her own free will and consent as she was being tortured and instructed by her family members not to talk with the accused and thus as such, no offence as alleged by the prosecution in the present case has been committed by the appellant. However, in my opinion, the said argument is a wishful one and without any basis for the reason that as per the statement of the prosecutrix SANDHU RUPINDER KAUR 2014.11.12 15:39 I attest to the accuracy and integrity of this document Criminal Appeal No. S-1787-SB of 2011 [ 13 ] recorded under section 164 Cr.P.C. (Ex.P10), though she stated that she had called the appellant to Ambala from where they went to Chandigarh for residing with his friend but on refusal of his friend to accommodate them in his house, they went to Chintpurni by bus where they stayed in a hotel and on being traced by their friend after 2-3 days, they along with the friend of the appellant, came back to Chandigarh and stayed in separate rooms in a hotel at Zirakpur; but while appearing as PW7 she did not help the appellant but stated the truth to the effect that the said statement under section 164 Cr.P.C. was given by her on asking of and on advice of Harpreet Singh (friend of the appellant) and further that she was subjected to rape by the accused despite resistance by her on the assurance and promise that the appellant would marry her. The said ocular testimony of the prosecutrix when read in conjunction with the medical evidence on record coupled with the CFSL report (Ex.P23) leaves no manner of doubt that the prosecutrix on being taken out of the lawful guardianship without the consent of the said guardian and taken to Chintpurni where she was subjected to rape by the appellant despite her resistance on the assurance and promise that he will get married to her, in my considered opinion the appellant is guilty of commission of the offence of kidnapping and rape of the prosecutrix and thus has rightly been convicted by the Court below which does not call for any interference in the present appeal.

19. In view of the said testimony, it is also apparent that the statement of the prosecutrix recorded under section 164 Cr.P.C. was SANDHU RUPINDER KAUR 2014.11.12 15:39 I attest to the accuracy and integrity of this document Criminal Appeal No. S-1787-SB of 2011 [ 14 ] not free from influence and pressure, as the same was given on the advice and asking of the friend of the appellant and thus on weighing the totality of the entire conspectus of the facts emanating from the record, I am of the considered opinion that no fault can be found in judgement of the Court below in so far as it convicts and sentences the appellant for commission of the offences as aforestated and I accordingly, confirm and uphold the judgement of conviction and sentence recorded against the appellant by the courts below.

20. Consequently, in the light of the foregoing discussion coupled with the unrebuttable medical evidence on record, I am of the considered view that no error can be found in the judgement of the Trial Court in convicting and sentencing the appellant for the offences punishable under sections 363, 366 and 376 IPC and accordingly while dismissing the present appeal, I affirm and uphold the judgement of conviction dated 09/07/2011 and order of sentence dated 12/07/2011 passed by the Additional Sessions Judge, Chandigarh.

21. The accused if on bail, be forthwith taken into custody to serve the remaining part of his sentence as awarded to him by the Trial Court.

( ASHUTOSH MOHUNTA ) ACTING CHIEF JUSTICE 12.11.2014 rupi SANDHU RUPINDER KAUR 2014.11.12 15:39 I attest to the accuracy and integrity of this document

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