Punjab-Haryana High Court
Cra No.1465-Sb Of 2 vs State Of Punjab on 22 August, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRA Nos.1465-SB of 2001 & 607-SB of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1. CRA No.1465-SB of 2001
Kundan Lal
...Appellant
Versus
State of Punjab
...Respondent
2. CRA No.607 of 2002
Prem Bahadur ...Appellant
Versus
State of Punjab
...Respondents
Date of Decision:-22.8.2013
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Ms. Aditi Girdhar, Advocate (amicus curiae)
for the appellants.
Mr.Jaspreet Singh Sekhon, A.A.G. Punjab for the State.
Mehinder Singh Sullar, J. (Oral)
As identical questions of law & facts are involved, therefore, I propose to decide the above indicated criminal appeals, arising out of the same impugned decision of conviction & order of sentence, by virtue of this common judgment, in order to avoid the repetition.
2. The matrix of the facts & evidence, unfolded during the course of trial, culminating in the commencement, relevant for deciding the instant appeals and emanating from the record, as claimed by the prosecution, is that the prosecutrix (name intentionally withheld), daughter of complainant Avtar Singh (PW1) (for brevity "the Arvind Kumar Sharma 2013.10.24 09:26 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.1465-SB of 2001 & 607-SB of 2002 2 complainant") was 2nd class pass and was engaged in household affairs. Appellant Prem Bahadur was residing in his house as a tenant, whereas appellant Kundan Lal was residing in a separate house as a tenant. On 3.12.1998, all the family members were away and the prosecutrix was (alone) present in her house. At about 1 p.m., when the complainant came, he found her (prosecutrix) missing from his house. Appellants were also missing. They searched for her in the neighbourhood, but in vain. They found ` 20,000/- and golden chain missing from the steel box. The complainant suspected that his daughter was enticed away by the appellants. He reported the matter to the police and made his statement (Ex.PA), which formed the basis of formal FIR (Ex.PA/2). On reaching her house, the prosecutrix narrated her tale of woe and made statement to the police that she was kidnapped and raped by the appellants in the manner described by her while appearing in Court as PW3, which will be reproduced in the subsequent part of this judgment.
3. Leveling a variety of allegations and narrating the sequence of events, in all, according to the prosecution that the appellants have kidnapped, enticed away and raped the minor daughter of the complainant. In the background of these allegations and in the wake of statements (Ex.PA) of the complainant (PW1) and prosecutrix (PW3), the present criminal case was registered against the appellants, vide FIR No.13 Dated 6.2.1999 (Ex.PA/2), on accusation of having committed the offences punishable u/ss 363, 366 and 376 IPC by the police of Police Station Kotwali, District Ludhiana, in the manner depicted here-in-above.
4. After completion of the investigation, the final police report Arvind Kumar Sharma 2013.10.24 09:26 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.1465-SB of 2001 & 607-SB of 2002 3 (challan) was submitted by the police against the appellants to face the trial for the pointed offences.
5. Having completed all the codal formalities, the appellants were charge-sheeted for the indicated offences. As they did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution by the trial Judge.
6. The prosecution, in order to substantiate the charges framed against the appellants, examined PW1 complainant Avtar Singh, who has corroborated the prosecution version contained in his initial statement (Ex.PA), which formed the basis of FIR (Ex.PA/2). The prosecutrix, while appearing as PW3 in Court, has deposed in the following terms:-
"I used to reside in my house in Kundan Puri with my parents. On 3.12.98 we had kept accused Kundan Lal present in court as our tenant. On 3.12.98 I was alone in the house. It was about 12 noon. My parents had gone to the Bazar. My brothers and sisters were also away. Accused Kundan came to me. He told me that my mother had met with an accident and that I should accompany him. I then went with him on his aforesaid representation. Then after passing through three or four turnings, he took me in a narrow street, a car was standing there. It had tainted glasses. Accused Prem Bahadur present in the court was sitting in the car. I knew Prem Bahadur earlier because he used to visit accused Kundan in our house. Accused Kundan pushed me and accused Prem brandished a knife. They forcibly put me in the car under threat and took me to Meerut. At Meerut they confined me in a room. During the night accused Kundan used to rape me after taking liquor. Once accused Kundan was away and in his absence accused Prem Bahadur also raped me. I was kept in that room by the accused for about 5 months. Then on one day accused Kundan was sleeping I took out a sum of Rs.200/- or 300/- from his pocket and went to Bus Stand Meerut and from there, I came to Ludhiana in a bus. Then I came to my house at Ludhiana. I was medico legally examined. My statement was recorded by the police as well as in the presence of the Magistrate."
7. Sequelly, PW5 Dr.J.K.Sidhu has medico legally examined Arvind Kumar Sharma 2013.10.24 09:26 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.1465-SB of 2001 & 607-SB of 2002 4 the prosecutrix on 25.5.1999, by way of his report (Ex.PC) and opined that her secondary sexual characters and external genitalia were normal. Hymen was torn and heeled. Her vagina admitted two fingers. PW4 Dr.Gurmit Singh, on police request (Ex.PB), conducted the medico legal examination of appellant Kundan Lal and opined, by virtue of his report (Ex.PB/1) that there was nothing to suggest that he was incapable of performing sexual intercourse. Dr.G.S.Randhawa, on police request (Ex.PD), has medico legally examined appellant Prem Bahadur, vide his report (Ex.PD/1) that his secondary sex character was fully developed. The Pubic, auxiliary hair and smegma were present. He maintained that possibility of having sex by him cannot be ruled out. PW11 Gurcharan Singh, Clerk in the office of Municipal Corporation, has produced the birth certificate (Ex.PG) indicating that the prosecutrix was born on 12.3.1981.
8. Likewise, PW2 HC Rachhpal Singh has stated that he kept the case property in his safe custody from the time of its receipt till the chemical examination. PW6 ASI Balwinder Singh recorded the statement of prosecutrix u/s 161 Cr.PC on 25.5.1999 and got her medically examined on the same day by sending HC Shamsher Singh to Civil Hospital, Ludhiana. PW7 ASI Abdul Rashid also recorded the statements of prosecutrix and her parents. He also produced the prosecutrix before the Magistrate for recording her statement u/s 164 Cr.PC. Thereafter, he arrested appellant Kundan Lal. PW8 HC Shamsher Singh took the prosecutrix for medical examination to Civil Hospital on 25.5.1999. He handed over sealed parcel and envelope entrusted to him by the doctor to Arvind Kumar Sharma 2013.10.24 09:26 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.1465-SB of 2001 & 607-SB of 2002 5 MHC Rachhpal Singh. On 31.5.1999, he took the case property from the said MHC and deposited the same with Chemical Examiner, Patiala on the same day. On return, he handed over its receipt issued by the chemical examiner to MHC. He vouch-safe the safe custody of the case property.
9. The last to mention is the testimony of PW10 SI Dilpreet Singh, who has deposed that on 6.2.1999, he recorded the statement (Ex.PA) of complainant. It was read over and explained to him. He signed the same in token of its correctness. He made his endorsement (Ex.PA/1) and sent the same to police station for registration of the case, on the basis of which formal FIR (Ex.PA/2) was recorded by ASI Manjit Singh, whose signatures he identified. Thereafter, he visited, inspected and prepared the rough site plan (Ex.PE) of the spot with its correct marginal notes. He also recorded the statement of mother of prosecutrix and collected her (prosecutrix) birth certificate (Ex.PG). He has also testified his entire investigation. This is the entire oral as well as documentary evidence brought on record by the prosecution.
10. After the close of the prosecution evidence, the statements of the appellants were recorded. The entire incriminating material/evidence was put to enable them to explain any circumstance appearing against them therein, as contemplated under section 313 Cr.PC. However, appellant Kundan Lal has denied the prosecution evidence in its entirety and pleaded false implication in the following manner:-
"I am innocent. I became a tenant of Avtar Singh on 18.3.98. I remained his tenant till Dec.1998. The prosecutrix had earlier also eloped with some body from her house. Therefore, her father had stopped her going outside the house. There were other tenants in his house. The prosecutrix asked another tenant namely Kiran to approach me and to tell me that she wanted to marry Arvind Kumar Sharma 2013.10.24 09:26 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.1465-SB of 2001 & 607-SB of 2002 6 with me. I talked to the mother of Jaswinder Kaur. However, her mother kept silent. In the meantime, PW Avtar Singh started searching for a groom for the prosecutrix. Upon this, the prosecutrix started crying and protesting and threatening that she would commit suicide. This happened in August, 1998. I then sought 4 months' time from the prosecutrix so that in the meantime, I could talk to her parents. She, however, did not acceded to my request and threatened that I should take her away, otherwise she would consume poison and kill herself. I was working as a Waiter in the Madhock Restaurant at Aarti Chowk, Ludhiana. The residential rooms of the hotel staff were in Jawahar Nagar Camp. The prosecutrix came to the staff room in the Jawahar Nagar Camp in search of me on 3.12.98. I was not there. Then she came to my hotel along with my friends. She threatened that I should accompany her, otherwise she would commit suicide. Then per-force I had to accompany with her. We first of all went to Ferozepur and spent one night in a Hotel namely Sainik Awas Greh. Then in the morning we went to the court at Ferozepur. We talked to lawyer for court marriage. He told us that court marriage would be got done but the marriage certificate would be delivered after one month. Therefore, finding no shelter we went to Meerut. We spent one night there in Hotel Abu Tower. Then on the next day, we took a room on rent in Mohan Puri, Gali No.9 Meerut in the house of Kaila Devi. We stayed there for one month. Then we went to Kotwali and stayed for about four months. On 20.5.99 we went to Rurkee to attend the marriage of the Sali of my friend. On 22.5.99 we came to Ludhiana and stayed in the Hotel Sunder Palace by mentioning our names wrongly. On 23.5.99 both of us appeared in PP Kailash Chowk. We got married in the Durga Mata Mandir at Meerut on 12.1.99 and produced the photographs etc. before the police. Thereafter, while the prosecutrix was sent to her house and I was falsely implicated in this case."
11. Sequelly, appellant Prem Bahadur has adopted the same line of defence, denied the prosecution story and pleaded false implication. They did not prefer to lead any defence evidence despite opportunity.
12. Taking into consideration the entire evidence on record, appellant Kundan Lal (main accused) was acquitted of the charge for having committed an offence punishable u/s 376 IPC. However, he was convicted and sentenced to undergo rigorous imprisonment (for short Arvind Kumar Sharma 2013.10.24 09:26 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.1465-SB of 2001 & 607-SB of 2002 7 "RI") for a period of four years, to pay a fine of ` 1000/- and in default thereof, to further undergo RI for a period of three months for the commission of an offence punishable u/s 363 IPC; to undergo RI for a period of five years, to pay a fine of ` 1500/- and in default thereof to further undergo RI for a period of six months u/s 366 IPC.
13. At the same time, appellant Prem Bahadur was convicted and sentenced to undergo RI for a period of seven years, to pay a fine of ` 2000/- and in default thereof, to further undergo RI for a period of six months, on accusation of having committed an offence punishable u/s 376 IPC. He was further convicted & sentenced to undergo RI for a period of four years, to pay a fine of ` 1000/- and in default thereof, to further undergo RI for a period of three months u/s 363 IPC; to undergo RI for a period of five years, to pay a fine of ` 1500/- and in default thereof to further undergo RI for a period of six months u/s 366 IPC. However, all the sentences were ordered to run concurrently, by means of impugned judgment of conviction & order of sentence dated 3.12.2001, by the trial Court of Addl. Sessions Judge.
14. Aggrieved thereby, the appellants have preferred the instant appeals. That is how I am seized of the matter.
15. At the very outset, it may be mentioned here that these appeals were filed on 20.12.2001 and 10.4.2002 and ultimately listed for hearing. But nemo had appeared on behalf of appellants to argue these old appeals. Although there was no legal requirement to wait for the counsel for appellants to argue the appeals, in view of ratio of law laid down by Hon'ble Apex Court in case K.S.Panduranga v. State of Arvind Kumar Sharma 2013.10.24 09:26 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.1465-SB of 2001 & 607-SB of 2002 8 Karnataka 2013(2) RCR(Criminal) 219, but, still, keeping in view the nature of heinous offences, Ms.Aditi Girdhar, Advocate was appointed as Amicus Curiae to argue the appeals and to assist the Court in this regard. She has put appreciable, considerable efforts/labour and vehemently argued the appeals.
16. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the present appeals in this context for the reasons mentioned here-in-below.
17. As indicated here-in-above, the trial Judge has acquitted appellant Kundan Lal (main accused) u/s 376 IPC. The main grounds, which appear to have been weighed with the trial Court to acquit him are that the prosecutrix was a consenting party to the episode, her elopement with the appellant with ` 20,000/- in cash and a gold necklace, weighing 15 grams shows her consent, her remaining silent at Meerut for more than five months is indicative of her being a consenting party and the fact that household goods of appellant Kundan Lal were also lying in the car, in which, the prosecutrix went with the accused to Meerut, was enough to tell that he was residing in her house as a tenant and she was more than 16 years of age. So, she was a consenting party.
18. Here, to me, the trial Judge has slipped into a deep legal error in this respect. The case of the prosecution from the very beginning was that appellant Kundan Lal is the main accused, who mis-informed the prosecutrix and took her on the pretext that her mother had met with a Arvind Kumar Sharma 2013.10.24 09:26 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.1465-SB of 2001 & 607-SB of 2002 9 serious accident. Thereafter, he forcibly dragged her into a tainted glasses car already standing in the street, in which, appellant Prem Bahadur was also sitting. They did not stop the car on the way and straightway went to Meerut, where the prosecutrix was confined in a room and appellant Kundan Lal repeatedly committed rape on her. It was her natural conduct to take ` 20,000/-, which would be required for the treatment of her mother in case of accident, as falsely projected by the appellants. This circumstance cannot possibly be taken against the prosecution. In that eventuality, it remains an unfolded mystery as to how and in what manner, such consent of prosecutrix could be presumed to be voluntary under the present set of circumstances. On the contrary, her illegal confinement in a single room for five months at Meerut, was clearly indicative of the fact that she was compelled by and forced to have sexual intercourse with appellant Kundan Lal (main accused).
19. At the same time, appellant Prem Bahadur, who was stated to have once committed rape on the prosecutrix at Meerut, was convicted by the trial Judge on the ground that she did not give her consent to him to commit rape. To my mind, the trial Court did not record any legal/cogent grounds in this relevant connection. Moreover, the same very grounds were more applicable to extend the benefit of doubt to appellant Prem Bahadur u/s 376 IPC as well. As the State has not filed any cross appeal to challenge the acquittal of appellant Kundan Lal (main accused) u/s 376 IPC, therefore, in the absence of cross State appeal, the finding of the trial Court to acquit him cannot possibly be set aside at this stage by this Court. But, in any case, I have no option but to extend the benefit of Arvind Kumar Sharma 2013.10.24 09:26 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.1465-SB of 2001 & 607-SB of 2002 10 doubt on the same pointed grounds, to appellant Prem Bahadur, for the commission of an offence punishable u/s 376 IPC. Consequently, after extending the benefit of doubt, he deserves to be and is hereby acquitted of the charge u/s 376 IPC as well.
20. Be that as it may, now adverting to the conviction of both the appellants u/s 363 and 366 IPC, for kidnapping the prosecutrix, Section 361 IPC posits that "Whoever takes or entices any minor female under 18 years of age out of the keeping of the lawful guardian of such minor, without the consent of such guardian, is said to kidnap her." Section 366 IPC further envisages that "Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, is liable to be punished therein."
21. A conjoint and meaningful reading of sections 361, 363 and 366 IPC would reveal that in order to apply these provisions, the prosecution was required to prove by producing cogent evidence on record that the appellants have actually taken or enticed away or induced the prosecutrix with intent that she may be compelled to marry. Actual taking or enticing away a minor out of the keeping of the lawful guardian are the essential ingredients of the offence of kidnaping. The word "takes" no doubt means physical taking but not necessarily means by use of force or fraud. The ultimate object of this section seems as much to protect the minor children from being seduced for improper purposes as Arvind Kumar Sharma 2013.10.24 09:26 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.1465-SB of 2001 & 607-SB of 2002 11 to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the ages specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any more out of the keeping of the lawful guardian of such minor" in section 361, carry a significant meaning. Similarly, the use of the word "keeping" in the context connotes the idea of charge, protection, maintenance and control : further the guardian's charge and control appears to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever necessity arises. On plain reading of this section, the consent of the minor who is taken or enticed is wholly immaterial : it is only the guardian's consent, which takes the case out of its purview. Nor it is necessary that the taking or enticing must be shown to have been by means of force or fraud. Persuasion by the accused person which creates willingness on the part of the minor to be taken out of the keeping of the lawful guardian would be sufficient to attract the section. However, it is true that if the minor is at the verge of attaining the majority and was fully capable of understanding the things and she had already voluntarily abandoned the guardianship of her parents, much before accompanying with the accused, perhaps it will not attract the penal provisions as contemplated u/s 361 IPC.
22. Such thus being the legal position and evidence on record, now the core controversy, which invites an immediate attention of this Arvind Kumar Sharma 2013.10.24 09:26 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.1465-SB of 2001 & 607-SB of 2002 12 Court and arises for determination in these appeals is, as to whether the prosecution has been able to prove the charges of kidnapping and inducement against the appellants or not ?
23. Having regard to the rival contentions of the learned counsel for the parties, to me, the answer must obviously be in affirmative, as the prosecution has successfully proved the charges against the appellants u/ss 363 and 366 IPC in the following manner.
24. As is evident from the evidence on record that as per birth certificate (Ex.PG) (perse admissible) issued by the Registrar, Births & Deaths under the Birth & Death Registration Act, 1969, the date of birth of prosecutrix is 12.3.1981. According to PW1, PW3 & PW5, the prosecutrix was less than 18 years of age at the relevant time of commission of the offences. That means, it stands proved on record that the prosecutrix was minor at the relevant time of occurrence. The appellants were residing as tenants in the house of the complainant, father of prosecutrix. The prosecutrix, while appearing as PW3, has categorically stated, on oath, that on 3.12.1998, she alone was present in her house as her parents, brothers and sisters had gone to Bazar. Accused Kundan Lal came and misinformed her that her mother had met with an accident and that she should accompany him. She accompanied him on his false and unfounded information. He took her in a narrow street, where the car of tainted glasses was standing. Accused Prem Bahadur was already sitting in the car, who was earlier known to her, being friend of appellant Kundan Lal. She has categorically maintained that thereafter, accused Kundan Lal forcibly pushed her and accused Prem Bahadur Arvind Kumar Sharma 2013.10.24 09:26 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.1465-SB of 2001 & 607-SB of 2002 13 brandished a knife. They forcibly put her in the car under threat of knife. They did not stop it on the way and straightway took her to Meerut. At Meerut, they illegally confined her in a room and during night, accused Kundan Lal used to rape her after taking liquor. According to PW3 that once Kundan Lal was away and in his absence, accused Prem Bahadur also raped her. Meaning thereby, it stands proved on record by acceptable evidence that the appellants had forcibly taken the prosecutrix from her lawful guardianship in a car having tainted glasses. They did not stop it on the way and straightway went to Meerut, where she was illegally confined in a room.
25. Ex facie, the cosmetic argument of learned counsel that since the prosecutrix has accompanied the appellants and remained with them for about five months at Meerut, so, no offences punishable u/ss 363 and 366 IPC are made out against them, is neither tenable nor the observations of Rajasthan High Court in cases State v. Sukvinder Singh & Anr. 2012(4) RLW 2999 : 2012(3) Crimes 398 and Ganga Bishan v. State of Raj. 2002(2) Rajasthan LR 819 are at all applicable to the facts of this case, wherein, the parents of prosecutrix were trying to sell her off to an elderly person of 50 years. She left her house with her own will with the accused and traveled throughout the State Rajasthan and parts of Punjab. She never tried to run away or to raise hue and cry. On the peculiar facts and in the special circumstances of those cases, the conviction of the appellant therein u/ss 363/366 IPC was set aside.
26. Possibly, no one can dispute with regard to the aforesaid observations, but to my mind, the same would not come to the rescue of Arvind Kumar Sharma 2013.10.24 09:26 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.1465-SB of 2001 & 607-SB of 2002 14 appellants. In the instant case, they have misinformed the prosecutrix with regard to alleged accident of her mother. They took her through a narrow street, forcibly dragged her in a tainted glasses car, threatened with a knife, did not stop the car on the way, straightway took her and illegally confined her in a room at Meerut in the manner mentioned here- in-above.
27. Likewise, the celebrated submissions of learned counsel that the delay of about two months in reporting the matter to police is fatal to the case of the prosecution and solitary statement of prosecutrix is not sufficient to convict the appellants, are not only devoid of merit but misplaced as well and pale into insignificance in view of explanation put forth by the prosecution in such like kidnapping cases. PW1 has explained that on 3.12.1998, having found her daughter missing, he and his wife made a lot of search for her, but could not find her. Thereafter, suspecting the involvement of appellants, the complainant reported the matter to police on 6.2.1999.
28. Hardly, any one can lose sight of the fact that in such kidnapping and sexual offences cases, the delay in lodging the FIR can be due to variety of reasons, particularly the reluctance of the family members of the prosecutrix to go to the police and complaint about the incident, which concerns the reputation & honour of the family members in general and of the prosecutrix in particular. It is only after coming to a cool thought that the complaint of sexual offence is generally lodged. Such delay has got no direct bearing on the prosecution version, which is otherwise proved by cogent, ocular and medical evidence. Arvind Kumar Sharma 2013.10.24 09:26 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.1465-SB of 2001 & 607-SB of 2002 15
29. Similarly, there is no legal requirement to search for any corroboration to the statement of prosecutrix. Her statement about the manner, in which, she was abducted, forcibly dragged into a tainted glasses car, straightway she was taken and illegally confined in a room at Meerut, has a ring of truth in it. It is not a matter of dispute that such girl in a tradition bound non-permissive society in this Northern part of the country, would be extremely reluctant even to admit that any such incident, which is likely to reflect upon her chastity, had occurred, being conscious of the danger of being ostracized by the society. In the normal course of human conduct, such unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to openly narrate such incident. Sequelly, the minor discrepancies here & there with regard to the tenancy of appellants in the house of complainant and date of their arrest in the statements of PW1 and PW3, have got no direct bearing on the fact of actual kidnapping and ipso facto are not the grounds, muchless cogent, to straightway reject the prosecution version, as contrary urged on their behalf, which is otherwise proved by reliable and acceptable evidence.
30. In this manner, the complainant and prosecutrix have given a natural version of the incident and no fault could possibly be traced in their statements, which are cogent, consistent and trustworthy as regards the commission of actual offence of kidnapping is concerned. To me, the testimony of PW1 and PW3 is plausible, convincing, true and credible. There is no legal impediment or difficulty to act on the testimony of Arvind Kumar Sharma 2013.10.24 09:26 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.1465-SB of 2001 & 607-SB of 2002 16 victim of such sexual assault, which inspires confidence and is found to be reliable. It is now well settled principle of law that the evidence of such a victim stands almost at par with the evidence of an injured witness and to an extent is even more reliable and truthful. Even the conviction of appellants can be based on the solitary statement of prosecutrix. It cannot possibly be denied that a minor girl subjected to such kidnapping and sexual assault is not a accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion. This matter is no more res integra and is now well settled.
31. An identical question came to be decided by Hon'ble Apex Court in a celebrated judgment in case State of Maharashtra v. Chandraprakash Kewalchand Jain (1990) (1) SCC 550, which was subsequently followed in various judgments. Considering the evidentiary value of prosecutrix in sex abuse cases, it was ruled as under:-
"A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attracted to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (B) to Section 114 which requires it to look for corroboration. If for some reasons the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of Arvind Kumar Sharma 2013.10.24 09:26 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.1465-SB of 2001 & 607-SB of 2002 17 corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."
32. Therefore, I cannot help observing that the prosecution has brought on record the sufficient oral as well as documentary evidence to substantiate the indicated guilt of the appellants. The ocular evidence of PW1 and PW3 is natural, which finds corroboration from the medical evidence. The investigation was duly testified by the Investigating Officer. They have fully proved the complicity of the appellants. They were cross-examined at length, but no substantial material could be elicited in their searching cross examination to dislodge their testimony and impeach their credibility. No motive could possibly be attributed to the complainant or prosecutrix as to why they would falsely implicate the appellants in this case. They gave a vivid, consistent and cogent version of the occurrence and supported the prosecution story on all vital aspects. The learned counsel for appellants did not point out any other legal infirmity or major contradictions and inherent improbabilities, muchless cogent, to dislodge the prosecution version, which is otherwise duly proved by the ocular, medical and documentary evidence as described here-in-above. The mere denial by the appellants that they were falsely implicated, outrightly deserves to be rejected in the absence of any cogent material on record in this relevant direction.
Arvind Kumar Sharma 2013.10.24 09:26 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.1465-SB of 2001 & 607-SB of 2002 18
33. Thus, it would be seen that if the entire evidence brought on record by the prosecution and totality of the facts & circumstances, as discussed here-in-above are put together, then, to my mind, the conclusion is inevitable and irresistible that it was the appellants, who had kidnapped the minor prosecutrix in the same manner projected by the prosecution and not otherwise. Hence, their guilt is duly proved. To me, the trial Judge has rightly convicted them u/ss 363 and 366 IPC. Therefore, the contrary contentions of learned counsel for appellants "stricto sensu" deserve to be and are hereby repelled under the present of circumstances, as the ratio of law laid down by Hon'ble Supreme Court in Chandraprakash Kewalchand Jain's case (supra) 'mutatis mutandis" is fully applicable to the facts of this case and is the complete answer to the problem in hand.
34. Be that as it may, however, the last submission of learned counsel that there is some scope of reduction in the matter of sentence of the appellants, has considerable force. The perusal of the record would reveal that they were sentenced to undergo RI for a period of five years for the commission of an offence punishable u/s 366 IPC. As per custody certificate, appellant Prem Bahadur has already undergone more than four years of period of his sentence. The appellants have already faced the pangs and suffered the agony of protracted trial and appeal for the last about 14¾ years. They have already been acquitted u/s 376 IPC. Thus, to my mind, it would be expedient in the interest and justice would be sub- served if the sentence of imprisonment of five years imposed on them by the trial Court, for having committed an offence punishable u/s 366 IPC, Arvind Kumar Sharma 2013.10.24 09:26 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.1465-SB of 2001 & 607-SB of 2002 19 is reduced to RI for a period of four years as well. However, the sentence of imprisonment of four years imposed on them u/s 363 IPC is maintained.
35. No other legal point, worth consideration, has either been urged or pressed by the counsel for the parties.
36. In the light of aforesaid reasons, as there is no merit, therefore, the instant appeals are dismissed. The judgment of conviction and order of sentence of fine u/ss 363/366 IPC are hereby maintained. However, the sentence of imprisonment of five years awarded to the appellants for the commission of an offence punishable u/s 366 IPC is reduced to RI for a period of four years as has been so awarded to them u/s 363 IPC by the trial Court. Thus, the impugned order of sentence is modified to the extent and in the manner depicted here-in-above.
37. As indicated here-in-above, appellant Prem Bahadur has already undergone more than four years of period of his sentence, therefore, the Chief Judicial Magistrate is directed to secure the presence of appellant Kundan Lal forthwith and commit him to jail to serve out the remaining portion of his sentence (if not already undergone).
Sd/-
22.8.2013 (Mehinder Singh Sullar)
AS Judge
Whether to be referred to reporter? Yes/No
Arvind Kumar Sharma
2013.10.24 09:26
I attest to the accuracy and
integrity of this document
Chandigarh