[CASE NUMBER] (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] (O&M) DECIDED ON : 29.10.2014 [ENTITY] Appellant versus [ENTITY] Respondent and CRA NO. S-501-SB OF 2004 (O&M) [ENTITY] Appellant versus [ENTITY] Respondent CORAM : HON'BLE MR. JUSTICE [ENTITY] Present : Mr. [ENTITY], Senior Advocate with Mr. [ENTITY], Advocate, for the appellant in [CASE NUMBER]. Ms. [ENTITY], Advocate, for the appellant in [CASE NUMBER]. Mr. [ENTITY], AAG, Punjab. [ENTITY], J.
Vide this common judgment, I intend to dispose of two criminal appeals bearing [CASE NUMBER] titled as, "[ENTITY] vs [ENTITY]" and [CASE NUMBER] titled as, "[ENTITY] vs [ENTITY]", as both of them have arisen out of the common judgment.
The law was set in motion on the basis of written complaint dated 21.08.2001 made by [ENTITY], wherein she has stated that she was resident of LIG Flats, Phase-I, Dugri, Ludhiana. On 19.08.2001, she had gone to Moga and her two daughters and one son were in the house at Ludhiana. Out of her two daughters, one daughter (hereinafter mentioned as 'victim no.1') was aged about 17 years and another daughter (hereinafter mentioned as 'victim no.2') was aged 16 years. On 20.08.2001, both the victims had gone to attend their computer classes at Futec Computer Centre near Atma Park but did not return home till 21.08.2001. The complainant had been searching for them in the house of her relatives. About 3-4 months prior to the occurrence, some boys had been teasing her daughters and she asked those boys not to do so. Out of those boys, one was Happy r/o LIG Flats, Phase-II, Dhandra Road, Dugri and she had strong suspicion that said Happy with the help of his friends had kidnapped/abducted her daughters.
On 22.08.2001, both the victims came back and made statements to the police to the effect that on 20.08.2001, both of them were going to attend the computer classes and were waiting for rickshaw outside the shop near their house. Accused [ENTITY] and [ENTITY] came there in a maruti car. Accused [ENTITY] was driving the said car and he offered lift to them to drop them at Computer Centre. They initially showed reluctance but later on agreed for the lift. Accused [ENTITY] was known to them. The family members of [ENTITY] were regular customers at the beauty parlour run by the complainant/mother of both the victims. The accused instead of taking both the victims to the computer centre took the car towards Dreamland Amusement Park, Sahnewal and they offered friendship to them, who in turn sought time to think over it. Both the accused and the victims again boarded in the car and the accused instead of dropping them in their house drove the car towards village Kaunke Kalan near Jagraon where [ENTITY] had agricultural land. Both the victims were taken to a room situated in the fields and by that time darkness had started clamping down. Both the victims asked the accused to take them to their house but the accused threatened them to throw in the well after being killed. A cot was placed inside the room and the other outside the room. The accused further threatened both the victims not to raise alarm otherwise their brother would be kidnapped by their friends. Accused [ENTITY] forcibly took victim no.1 inside the room and committed rape upon her against her wishes and consent, whereas accused [ENTITY] committed rape upon victim no.2 on the cot lying outside the room, against her wishes and consent. Both the victims were kept in the room on that night and in the next morning, both the accused took them to Dreamland Amusement Park, Sahnewal where accused [ENTITY] left both the victims and [ENTITY] there and went to check the stock of situation at the house of the victims. Both the victims were again asked to keep quite during their stay at the Dreamland Amusement Park. [ENTITY] did not return there till evening. On persuasion, the victims were taken to a public call office where victim no.1 rang up her mother to tell her that they are alive but when her mother asked about their details, [ENTITY] interrupted their call by pushing the cradle of the telephone. In the meantime, two other friends of [ENTITY] came there on a motorcycle and a scooter. Those friends also informed the accused that he was being searched by the police. They left the motorcycle there and returned back on the scooter. Accused [ENTITY] on the pretext of taking the victims to their house, took them to village Jhamat where they were kept in a cattle shed and during that night, accused [ENTITY] again committed rape upon victim no.1. In the next morning, the accused took the victims on a motorcycle and on their way, his friends informed him that he was asked to reach at the house of his aunt. When accused [ENTITY] along with both the victims reached the house of his aunt, his mother also came there and advised him to flee as the police was after him. The mother of [ENTITY] took both the victims to her house and she locked them in her house and threatened them not to name the accused otherwise they would face dire consequences. She returned after two hours and repeated her threats and further advised both the victims to go to their house. Both the victims hired a rickshaw and reached their house and narrated the enitre incident to their mother.
On 22.08.2001, medical examination of both the victims was got conducted from Civil Hospital, Ludhiana. Statements of witnesses were recorded. Investigation was carried out and after completion of same, challan under [SECTION] [ACT] was presented in court.
Copies of challan, as envisaged under [SECTION] [ACT] were supplied to both the accused, free of costs.
Since the offences under [SECTION] [ACT] were exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions.
On finding a prima facie case made out against both the accused under [SECTION] [ACT], charge was framed to which both the accused pleaded not guilty and claimed trial.
In order to prove its case, the prosecution examined Dr. [ENTITY] as PW-1, Victim No.1 as PW-2, Complainant as PW-3, Victim No.2 as PW-4, Dr. [ENTITY] as PW-5, [ENTITY] as PW-6, [ENTITY] as PW-7, [ENTITY] as PW-8, SI [ENTITY] (Investigating Officer) as PW-9 and thereafter closed the evidence.
Both the accused were examined under [SECTION] [ACT], wherein all the incriminating evidence was put to them to which they pleaded innocence and false implication.
The accused were called upon to lead defence evidence and they examined [ENTITY] as DW-1, [ENTITY] as DW-2, [ENTITY] as DW-3, [ENTITY] as DW-4, [ENTITY] as DW-5 and closed the evidence.
The learned trial court, after appraisal of the evidence on record, found both the accused guilty for an offence punishable under [SECTION] [ACT] and sentenced them as under :-
Name of Offence Imprisonment and Fine In default convict Under [SECTION] [ACT] RI for 07 years and fine of Rs.1000/- In default, further RI Singh @ for 03 months Happy 366 [ACT] RI for 07 years and fine of Rs.1000/- In default, further RI for 03 months 506 [ACT] RI for 02 years Sukhwinder 376 [ACT] RI for 07 years and fine of Rs.1000/- In default, further RI Singh @ for 03 months [ENTITY] 366 [ACT] RI for 07 years and fine of Rs.1000/- In default, further RI for 03 months 506 [ACT] RI for 02 years However, all the sentences were ordered to run concurrently. The period of detention already suffered by both the convicts during investigation and trial was set off against their substantive sentence.
Feeling dissatisfied with the above said judgment of conviction and order of sentence dated 20.01.2004 passed by Shri [ENTITY], Additional Sessions Judge (A) Fast Track Court, Ludhiana, [ENTITY] has preferred [CASE NUMBER] whereas [ENTITY] has preferred [CASE NUMBER]. Since both these appeals have arisen out of the common judgment of conviction/order of sentence, they have been disposed of vide this common judgment.
Learned counsel representing accused/appellant [ENTITY] has submitted that as per the case of prosecution, appellant committed rape upon victim no.1 who was more than 17- years of age at the time of occurrence. He has further submitted that as per the story of prosecution itself, both the victims accompanied both the accused to Dreamland Amusement Park, Sahnewal in a car. It is further contended that as per the medical report, there was no injury on the person of victim no.1 including private part. Her date of birth is 10.04.1983 whereas the occurrence is stated to have taken place on 20.08.2001 and 21.08.2001. Victim No.1 has stated that they were taken to village Kaunke Kalan where accused [ENTITY] was having agricultural land. Both the victims have further stated that accused [ENTITY] committed rape upon victim no.1 whereas [ENTITY] committed rape upon victim no.2. Both the victims further deposed that on the next day, both the victims as well as the accused went to Dreamland Amusement Park, Sahnewal. Thereafter they were taken to village Jhamat by accused [ENTITY] where again rape was committed upon victim no.1 by accused [ENTITY]. It is further contended by learned counsel for appellant [ENTITY] that since the victim No.1 who has levelled charges of rape against present appellant is more than 17 years of age, so the appellant cannot be convicted in respect of offence under [SECTION] [ACT].
Learned counsel for appellant [ENTITY] has submitted that victim no.2 was also more than 18 years of age at the time of occurrence. PW-1 Dr. [ENTITY] has categorically stated that as per the ossification test, victim no.1 was above 19 years whereas victim no.2 was between 17 to 19 years. She has further contended that there can be variation of two years on either side. So, the age of both the victims is more than 18 years. Since it is a case of consent, as such, none of the appellant can be convicted for any of the offence. She has further contended that as per statement of PW-5 Dr. [ENTITY], victim No.2 was habitual of sexual intercourse. The said doctor has further deposed that he could not give opinion as to whether victim no.1 was habitual of sexual intercourse or not, on account of non-cooperation of victim no.1 to permit him to conduct per vagina examination.
Learned counsel for the appellant [ENTITY] has contended that according to victim no.1, she has received injuries on her breast, face, back, thigh and private part at the time of struggle. Victim no.1 has further stated in her statement that blood was smeared on her clothes as well as darri. Learned counsel for the appellant [ENTITY] has contended that according to the testimony of victim no.1, accused had discharged inside her private part while committing rape upon her. However, the medical evidence contradict her assertion regarding discharge inside the private part of victim no.1 as no spermatozoa was found from the vaginal swab. There was no injury on the breast, face, back, thigh and private part of victim no.1, so the story of struggle during intercourse is not borne out from the medical record. No blood was found on the clothes as well as darri, as per the report of forensic science laboratory. So, the allegations of rape are wrong on the fact of it. In fact, it is a case of consent and the appellants are liable to be acquitted.
Lastly, learned counsel for both the appellants have submitted that as per custody certificates, accused [ENTITY] has undergone incarceration for a period of 05 years 01 month and 20 days including remission of 02 years and 28 days, whereas accused [ENTITY] has undergone incarceration for a period of 05 years 02 months and 25 days including remission of 02 years 01 month and 06 days. As per the conviction slips, both the appellants are not previous convicts and they are facing trial for the last more than 13 years. It is further contended that both the appellants are of young age. It is further argued that in case the Court is not inclined to accept the prayer for their acquittal, in that case, lenient view be taken regarding their quantum of sentence.
To support their contentions, learned counsel for both the appellants have relied upon following authorities :-
i) [PRECEDENT];
ii) [ENTITY] and another vs. [ENTITY] 2004 (1) RCR (Criminal) 324
iii) [PRECEDENT] vs. State of Haryana 1998 (4) RCR (Criminal) 207
iv) [PRECEDENT]
v) [PRECEDENT] vs. [ENTITY] 2004 (1) RCR (Criminal) 956
vi) [PRECEDENT] vs. State of Haryana 2005 (2) RCR (Criminal) 937
vii) [ENTITY] and another vs. State Rep. By Inspector of Police 2011 (1) RCR (Criminal) 498
viii) [PRECEDENT] [PRECEDENT]
ix) [PRECEDENT] (4) [PRECEDENT]
x) [PRECEDENT] (4) [CASE NUMBER]
xi) [PRECEDENT] RCR (Criminal) 610
xii) [PRECEDENT] vs. State of Rajasthan 2008 (2) RCR (Criminal) 56
xiii) [PRECEDENT] (5) RCR (Criminal) 41
xiv) [PRECEDENT] (4) [PRECEDENT] Learned State counsel has opposed the prayer and has supported the judgment passed by the trial court.
I have heard the rival submissions made by both the sides and have gone through the records of the case.
In respect of offence under [SECTION] [ACT] etc., the age of prosecutrix/victims plays a main role. Learned counsel for the appellants wanted to make out a capital from the statement of PW1 Dr. [ENTITY] who has stated that victim no.1 is about 19 years old and victim no.2 is between 17-19 years, as per the ossification test. However, the testimony has to be read as a whole. In the cross-examination, PW1 Dr. [ENTITY] has stated that there is possibility of variation of two years on either side. The density of bone depends upon the diet taken by the victims. It can vary in any case the prosecutrix/victim is getting rich diet than the prosecutrix/victim who is getting poor diet. However, in the present case, the prosecution has placed on record the clinching evidence regarding age proof of both the victims. As per birth certificate Ex.P16, coupled with School Leaving Certificate Exhibit P-14, date of birth of victim no.1 is 02.04.1983. However, according to Exhibit P-15 School Leaving Certificate and Exhibit P-17, the date of birth of victim no.2 is 11.01.1986. So, the ossification test losses its importance in view of the above said clinching evidence regarding age of victims. Otherwise, if the variation is taken on lower side, in that case, the age of both the victims corroborates the documents produced by the prosecution. In these circumstances, the learned trial court has rightly held that victim no.1 was below 18 years of age but more than 16 years and victim no.2 was less than 16 years. The consent of victim below 16 years is immaterial and the sexual intercourse with a girl below 16 years attracts the offence punishable under [SECTION] [ACT], even if sexual intercourse is made with the consent of victims. The Parliament in its own wisdom has increased the age of consent to 18 years in the recent amendments. According to testimony of both the victims, they were subjected to rape at the same place. So, the consent of victim no.1 even if taken as it is, does not absolve the accused [ENTITY] from the offence punishable under [SECTION] [ACT].
So far as authority [PRECEDENT]'s case (supra) is concerned, the same is distinguishable as in that case age of prosecutrix as per the father of prosecutrix was 19 years.
Authority [ENTITY] and another's case (supra) is also distinguishable as in that case the age of prosecutrix was 29 years and the prosecutrix and the accused were on visiting terms.
In authority [PRECEDENT]'s case (supra), the age of prosecutrix was 16 years 05 months.
In authority [PRECEDENT]'s case (supra), the age of prosecutrix was 19 years.
In authority [PRECEDENT]'s case (supra), the age of prosecutrix was between 17-18 years.
In authority [PRECEDENT]'s case (supra), the age of prosecutrix was 17 years 02 months and 14 days and as such, all these authorities are distinguishable from the facts of case in hand.
Authority [ENTITY] and another's case (supra) is also distinguishable from the facts of present case as in that case the prosecutrix had the opportunity to run away but she did not run away and stayed with the accused for six days and did not made any complaint to anybody on so many occasions. The age of prosecutrix was also 16 years in that case. In said case the prosecutrix also made glaring contradictions.
Authority [PRECEDENT]'s case (supra), is also distinguishable as in that case prosecutrix was 18 years of age and there were allegations of attempt to rape without any medical evidence.
Authority [PRECEDENT]'s case (supra), is also distinguishable as in that case rape was allegedly committed on a married woman and there was no injury and the medical report do not suggest the commission of rape.
It is proved on the file that sexual intercourse with both the victims was committed at the same time and place and one of the victim is proved to be below 16 years of age, beyond any reasonable doubt and as such, none of the appellant can raise the plea of consent, more so, in respect of sexual intercourse with the victim below 16 years of age.
So in these circumstances, the conviction of the both the appellants recorded by the trial court under [SECTION] [ACT] does not call for any interference and the same stands upheld.
Now reverting to the quantum of sentence, accused [ENTITY] has undergone incarceration for a period of 05 years 01 month and 20 days including remission of 02 years and 28 days, whereas accused [ENTITY] has undergone incarceration for a period of 05 years 02 months and 25 days including remission of 02 years 01 month and 06 days, out of the substantive sentence of 07 years each under [SECTION] [ACT]. As per the conviction slips, both the appellants are not involved in any other case neither they are convicted in any other case. According to both the appellants they were of 20 years of age at the time of occurrence and the occurrence relates to more than 13 years back. They are on bail for the last more than 10 years and they must have settled in their lives. They have undergone substantive part of their sentences.
In [PRECEDENT]'s case (supra), this court reduced the sentence to the period already undergone which was 14 months and 07 days against the substantive sentence of 07 years in respect of offence under [SECTION] [ACT].
In [PRECEDENT]'s case (supra), the sentence was reduced keeping in view the fact that the occurrence relates to 11 years back and the accused has children. It was further observed in that case that the children will be deprived of the love and affection of their father.
In authority [PRECEDENT]'s case (supra), the sentence was reduced to the period already undergone which was 05 years as in that case the accused was 19 years old and there was no injury found on the genital part of the prosecutrix and the prosecutrix was found to be habitual of sexual intercourse.
The Hon'ble Apex Coiurt in [PRECEDENT]'s case (supra) has reduced the sentence to already undergone which was 3- years of incarceration in respect of offence under [SECTION] [ACT].
So considering whole of the circumstances discussed above, the sentence of both the appellants stand reduced to the period already undergone by them. However, their sentence of fine stands affirmed.
Both the appeals stand disposed of accordingly.
OCTOBER 29, 2014 ([ENTITY]) shalini JUDGE