Criminal Appeal No. 156-SB of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 156-SB of 2008 Date of decision : September 16, 2011 Jaswinder Singh ....Appellant versus State of Punjab ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. T.S.Sangha, Senior Advocate with Mr. J.S.Lalli, Advocate, for the appellant Ms. Gagan Mohini, Assistant Advocate General, Punjab L.N. Mittal, J. (Oral) This is criminal appeal by Jaswinder Singh accused assailing is conviction and sentence recorded by learned Additional Sessions Judge, Faridkot vide judgment and order dated 10.11.2007, thereby convicting the appellant under sections 363 and 376 IPC and sentencing him to undergo rigorous imprisonment for eight years and to pay fine of Rs 2000/- and in default thereof, to undergo further imprisonment for two months under section 376 IPC and to undergo rigorous imprisonment for three years and Criminal Appeal No. 156-SB of 2008 -2- to pay fine of Rs 1000/- and in default thereof, to undergo further imprisonment for one month under section 363 IPC but both the sentences have been ordered to run concurrently. Appellant's co-accused Sewak Singh stands acquitted. Prosecution case is that complainant Pritam Kaur lodged FIR by making statement to the police on 24.6.2006. She stated that her daughter aged 15 years (prosecutrix – name not being mentioned) was found missing from her house on 19.6.2006 and could not be traced despite search. The complainant learnt that Jaswinder Singh appellant had kidnapped the prosecutrix on the pretext of marrying her. She was taken in Esteem car No. DL-3CF-7179 being driven by the appellant's co-accused Sewak Singh since acquitted. The complainant also mentioned the names of appellant's father Sukhdev Singh, Ajmer Singh and Gurnam Singh being behind the occurrence. FIR was registered on the aforesaid statement on 29.6.2006. Appellant and prosecutrix were found at Bus Stand village Chand Bhan. Police apprehended both of them in the presence of the complainant. Appellant was arrested. His co-accused Sewak Singh was also arrested on the same day. Aforesaid car was also taken into possession by the police. Prosecutrix was medico legally examined on 30.6.2006. Her radiological age also got determined and was opined to be between 14½ and 15½ years. Statement of prosecutrix was also got recorded under section 164 of the Code of Criminal Procedure (in short, Cr.P.C.). Both the accused had kidnapped her in the aforesaid car by shutting her mouth. Criminal Appeal No. 156-SB of 2008 -3- Appellant Jaswinder Singh committed rape on her daily against her wishes. Thereupon offence under section 376 IPC was also added. Statements of witnesses were recorded. Other investigation formalities were also completed. On completion of investigation, police presented report under section 173 Cr.P.C. for prosecution of both the accused Jaswinder Singh and Sewak Singh under sections 363, 366 and 376 IPC whereas Sukhdev Singh, Ajmer Singh and Gurnam Singh were found innocent and were placed in column no. 2 of the challan. Charge under sections 363 and 366 read with section 34 IPC against both the accused and substantive charge under section 376 IPC against Jaswinder Singh and section 376 read with section 34 IPC against Sewak Singh accused was framed. Both the accused pleaded not guilty and claimed trial. To prove its case, the prosecution examined ten witnesses. Dr. Madhu Goyal, PW1 stated that she medico legally examined prosecutrix and found no injury on her body. There was also no injury mark on her private parts. Determination of radiological age was advised by her. Pritam Kaur, PW2 and prosecutrix as PW8 have broadly stated according to the prosecution version. Dr. Simmi Garg, PW3 stated that she determined the radiological age of the prosecutrix and found it to be between 14½ and 15½ years. Criminal Appeal No. 156-SB of 2008 -4- Suraj Parkash retired official from Education Department, PW4 brought summoned record and proved 5th class certificate of the prosecutrix issued by the Education Department and also result register of the prosecutrix, both depicting her date of birth to be 20.4.1991. Constable Kala Singh, PW5 tendered his affidavit in evidence being formal witness. Bal Krishan, Court offical, PW6 proved statement of prosecutrix recorded under section 164 Cr.P.C. alongwith other necessary documents. HC Sikandar Singh, PW7 stated that the aforesaid car and parcel of cloth were deposited with him in malkhana. SI Gurprit Singh, PW9 stated about investigation of the case conducted by him. Dr. DS Bhullar, PW10 stated that he medico legally examined accused Jaswinder Singh. In his opinion, there was nothing to suggest that the said accused was unable to perform sexual intercourse. Both the accused in their examination under section 313 Cr.P.C. denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. Accused Jaswinder Singh alleged that earlier there was talk of his marriage with the prosecutrix but later on his parents refused to marry him with the prosecutrix and for this reason he has been falsely implicated in this case. Criminal Appeal No. 156-SB of 2008 -5- Accused Sewak Singh in his defence examined Balwinder Singh DW1. He stated that he was owner of the aforesaid car which was plying as taxi. Jaswinder Singh had hired the taxi from him. Accused Sewak Singh working as driver had taken the aforesaid taxi and came back after half hour and handed over the hired amount of Rs 150/- to him. Accused Jaswinder Singh examined DW2 Gurdip Singh, Roop Singh DW3 and Sukhdev Singh (father of Jaswinder Singh) DW4. They have broadly stated according to the defence version pleaded by accused Jaswinder Singh. Learned Additional Sessions Judge vide impugned judgment and order dated 10.11.2007 convicted and sentenced accused Jaswinder Singh as already hereinbefore whereas appellant's co-accused Jaswinder Singh was acquitted. Convict Jaswinder Singh feeling dissatisfied has filed the instant criminal appeal. I have heard learned counsel for the parties and perused the case file with their assistance. All the prosecution witnesses have fully supported prosecution case. Sexual intercourse committed by appellant with the prosecutrix is proved from the testimony of the prosecutrix and also from medico legal examination. FIR regarding kidnapping of the prosecutrix by the complainant was lodged on 24.6.2006 whereas the prosecutrix was recovered from the custody of the appellant on 29.6.2008. Thus, FIR was lodged five days prior to the recovery of the prosecutrix from the custody of Criminal Appeal No. 156-SB of 2008 -6- the appellant. In the FIR the appellant was named as kidnapper alongwith co-accused Sewak Singh. Recovery of the prosecutrix from the custody of the appellant after 10 days of kidnapping and after 5 days of lodging of FIR further corroborates prosecution case. In this regard, reference may be made to statements of the complainant, the prosecutrix and the Investigating Officer. Age of the prosecutrix at the time of occurrence is also proved to be 15 years according to 5th standard certificate issued by Education Department as well as according to the result register. The prosecutrix passed 5th standard examination in March, 2003 and her date of birth is recorded to 20.4.1991. Thus, her age at the time of occurrence was 15 years 2 months. Radiological age has also been determined to be between 14½ and 15½ years. Radiological age, therefore, completely matches with the age mentioned in the educational certificate. Variation in radiological age has been taken care of because already variation of one year has been opined by stating radiological age to be between 14½ years and 15½ years. Moreover the said age is corroborated by date of birth recorded in education certificate according to which the age of the prosecutrix was 15 years 2 months at the time of occurrence. Consequently, radiological age and age mentioned in the educational certificate corroborate each other. In these circumstances, non-production of admission form for admission of the prosecutrix in the school pales into insignificance. There is also oral evidence of the prosecution in the form of Criminal Appeal No. 156-SB of 2008 -7- statements of complainant and prosecutrix that age of the prosecutrix was 15 years at the time of occurrence. It is, thus, established that age of the prosecutrix was around 15 years at the time of occurrence i.e. less than 16 years. Consequently, sexual intercourse committed by the appellant with the prosecutrix would come within the definition of rape even if it is assumed for the sake of argument that the prosecutrix was consenting party. However, it may be added that the prosecutrix has specifically stated that she did not consent to the sexual intercourse committed with her by the appellant. She has stated that the appellant committed rape on her against her wishes and he used to keep her forcibly in a room. There is no reason to doubt or disbelieve the aforesaid statement of the prosecutrix. Counsel for the appellant contended that the prosecutrix remained with the appellant for ten days and it would depict that she was consenting party. However, the contention cannot be accepted. The prosecutrix has stated that she was not consenting party. Moreover, her alleged consent would not make any difference keeping in view her age being 16 years. Clause sixthly of section 375 IPC stipulates that a man is said to commit rape who has sexual intercourse with a woman with or without her consent when she is under 16 years of age. In the instant case, prosecutrix was less than 16 years of age at the time of occurrence and therefore, sexual intercourse committed by the appellant with her with or without her consent would come into definition of rape. Appellant's version that he has been falsely implicated in the Criminal Appeal No. 156-SB of 2008 -8- case because there was talk of his marriage with the prosecutrix but his parents refused to marry, cannot be accepted because the complainant and the prosecutrix would not have lodged such a false case because it would spoil whole life and reputation of the prosecutrix and also honour of the family. Moreover as already noticed hereinbefore, the prosecutrix remained missing for ten days and she was recovered from the custody of the appellant and FIR had been lodged 5 days before her recovery from the appellant. In these circumstances, false implication of the appellant is completely ruled out. For the reasons aforesaid, I am of the considered opinion that the prosecution has been successful in bring home charge against appellant Jaswinder Singh by leading cogent and credible evidence. Accordingly, impugned judgment of conviction is affirmed. Learned counsel for the appellant prayed for reduction in sentence. The prayer has been opposed by learned State counsel. I have considered the matter. In my considered opinion, ends of justice would be met if the sentence of imprisonment is reduced to minimum sentence of imprisonment for seven years as prescribed by section 376(1) IPC. Prayer of appellant's counsel for reducing the sentence to less than the minimum sentence of imprisonment of seven years cannot be accepted as there is no adequate or special reason to do so. Accordingly, sentence of imprisonment awarded to the appellant by the trial Judge is Criminal Appeal No. 156-SB of 2008 -9- reduced from rigorous imprisonment for eight years to rigorous imprisonment for seven years while maintaining the sentence of fine and sentence of imprisonment in default thereof for offence under section 376 IPC and also while maintaining the entire sentence under section 363 IPC but both the substantive sentences shall obviously run concurrently. With reduction in sentence as aforesaid, the instant criminal appeal stands disposed of accordingly. ( L.N. Mittal ) September 16, 2011 Judge 'dalbir'