1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 479-SB of 2002 Date of Decision: 7.7.2010 *** Surinder .. Appellant Vs. State of Haryana .. Respondent CORAM: HON'BLE MR. JUSTICE ARVIND KUMAR Present:- Mr. Maharaj Kumar, Advocate for the appellant. Mr. Rajeev Malhotra, Addl. A.G. Haryana. *** ARVIND KUMAR, J. The appellant has been held guilty under Sections 363, 366, 376 IPC by dint of judgment dated 7.11.2001 and has been sentenced to undergo rigorous imprisonment for two years with fine of Rs.200/-; three years with fine of Rs.300/- and seven years along with fine of Rs.500/- respectively. In default of payment of fine further rigorous imprisonment for one month; three months and again three months respectively was awarded on the aforesaid counts. All the sentences were ordered to run concurrently. The case of the prosecution, in brief, is that on 27.5.2000 complainant Hari Chand got recorded his statement Ex.PA to ASI Yashpal wherein he apprised the police about the missing of his daughter (hereinafter referred as prosecutrix), aged 14 years since the night intervening 22/23.5.2000. The complainant raised suspicion upon Surinder Singh (accused-appellant) who used to reside in his house along with his two brothers as his tenant. On the basis of said statement, case FIR No.184 dated 27.5.2000 was registered for offences under Sections 363 and 366 IPC and investigated upon. During investigation, the prosecutrix was got recovered from village of the accused namely Sikarpur (Bihar). Statement of the prosecutrix under Section 161 Cr.P.C. was recorded and the same was made the basis of addition of offence under Section 376 IPC against the accused. 2 The accused as well as prosecutrix were got medically examined and the custody of the latter was handed over to her father. On 21.6.2000 her statement by means of Section 164 Cr.P.C. was recorded. Rough site plan as well as scaled site plan of the place of occurrence were got prepared and on completion of usual formalities of investigation, final report under Section 173 Cr.P.C. was prepared and forwarded to the Court for trial of the accused. On finding a prima facie case for the commission of offence under Sections 363, 366, 376 IPC, the accused was charge-sheeted accordingly, to which he pleaded not guilty and claimed trial. During trial the prosecution examined the prosecutrix as PW1, her father-complainant as PW2, ASI Rattan Singh who recorded the formal FIR as PW3, Smt. Sarita Gaba (PW4) proved the school leaving certificate of prosecutrix as Ex.PB showing her date of birth as 6.3.1986, Dr. H.O. Bhatia, who medically examined the accused as PW5, PW6 Dr. Raman Deep, medicolegally examined the prosecutrix, PW7 HC Parkash Chander and PW8 const. Satbir Singh tendered their affidavits Ex.PK and Ex.PL respectively in their evidence, PW9 Const. Prem Kumar prepared the scaled site plan while PW10 ASI Yashpal was the investigating officer of the case and PW11 Const. Dharambir Singh transmitted the special reports of this case to the higher authorities. On closure of prosecution evidence, the incriminating evidence produced by the prosecution was put to the accused, which were denied by the accused and he pleaded false implication. The accused-appellant took the stand that prosecutrix is 20 years of age and he has solemnized marriage with her. In defence the accused examined Smt. Manju Kaur, Head Mistress, Khalsa Primary School, Karnal as DW1 and Om Parkash, Sub Inspector from the office of District Food and Supply, Ghauranda as DW2. On conclusion of trial, the appellant was held guilty under Sections 363, 366 and 376 IPC and sentenced in the manner indicated above. Hence, this appeal. I have heard learned counsel for the parties and with their assistance have gone through the records of the case. It has been strenuously argued by learned counsel for the 3 appellant that the evidence produced by the prosecution in respect of the age is not convincing and has to be excluded from the zone of consideration. He further contends that the prosecutrix voluntarily accompanied the accused and the sexual acts being consentual, the accused be acquitted by giving him the benefit of doubt. In this case, the whole genesis of the prosecution case revolves around the statement of prosecutrix PW1. According to her on 22.5.2000 at about 2:00 a.m. in the night, the accused entered into her room and on the point of knife committed rape upon her and then administered some intoxicating substance to her and in that state took her to his house in Bihar. The version given by the prosecutrix does not inspire any confidence so far as the allegations of rape are concerned. In her statement recorded under Section 164 Cr.P.C. before the Magistrate, prosecutrix categorically stated that on the asking of the accused, with whom she is in love, ran away from the home and solemnized marriage with the accused in the village. Further, it has come on record that from village Ghauranda the prosecutrix and accused first went to Delhi and then to Bihar and to perform this journey, they travelled by train and bus etc. Although, the prosecutrix claimed that she was in the state of intoxication during all this time, but it cannot be believed because she herself had given the narration of complete journey and it is highly improbable that if she was under the effect of intoxication, how she described the events in sequence. Even, she herself admitted that number of passengers were in the bus, but at no time she raised hue and cry. She also admitted that she regained consciousness on reaching the house of the accused in Bihar and thereafter she along with accused went to Court Complex, there also she met number of persons, but she remained mum there also for the reasons best known to her. No injury or marks were noticed on her person on medical examination. The sequence of events suggests that she was a consenting party to the sexual acts. Now, the question comes as regards the age of the prosecutrix. The question of age of prosecutrix in cases of such nature is always of importance, especially when the prosecutrix appeared to be a consenting party to the said acts of sexual intercourse. If she was below 16 years of age at the time of incident, then the said consent is immaterial, but if it is more than that, the conviction of accused under Section 376 cannot be sustained. 4 Both the prosecutrix and her father while stepping into the witness box as PW1 and PW2 respectively stated the age of prosecutrix as 14 years. In the statement Ex.PA, on the basis of which the FIR was registered, the age of prosecutrix has been mentioned as 14 years. But, in her statement under Section 164 Cr.P.C. got recorded by the prosecutrix before the Magistrate, she described her age as 20 years and similar is the age mentioned by the prosecutrix in affidavit Ex.DA, wherein she claimed her marriage with the accused, but she stated that it was executed under the threat of accused. In the MLR of prosecutrix, her date has been mentioned as 14 years, but PW6 Dr. Raman Deep admitted that the same was mentioned on the asking of the person who accompanied the prosecutrix. This witness further admitted that the age of prosecutrix upto 18 years of age cannot be ruled out. Thus, so far as oral evidence with regard to the age of the prosecutrix is concerned, the same is inconsistent. The prosecution has produced on record transfer certificate (Ex.PB) to prove the age of the prosecutrix and therein her date of birth has been mentioned as 6.3.1986. But the genuineness of this document is also not free from all doubts. There is nothing on record to show that the said date was mentioned or followed by any birth certificate or record of Chowkidar and on what basis the said date was taken as an actual date of birth of the prosecutrix. In other words, there is nothing to show as to from which source this date of birth has been obtained. Only due to the fact that the date 6.3.1986 was provided to the school, the said date has appearance in the the said document. Father of the prosecutrix when appeared in the witness box told his age as 60 years and married at the age of 22, but he showed his ignorance as to when his elder son born. He admittedly, is an illiterate person and failed to tell even the age of his other children. No doubt, the entry in school register can be relied upon so as to determine the age, but it has to be corroborated with other material, which is not the position in the present case. Thus, no undue importance can be attached to this document to arrive at the conclusion that the date of birth of prosecutrix was 6.3.1986. There is another aspect of the matter. PW6 Dr. Raman Deep admittedly referred the prosecutrix for dental and radiological examination for determination of her age. Although the investigating officer i.e. ASI 5 Yashpal admitted that he got the prosecutrix radiologically examined, but surprisingly, there is no report of radiologist on record. The admission of the investigating officer clearly indicates that the prosecution with-held the best available evidence with regard to the age of the prosecution and an adverse inference has to be drawn against it that the same might not suit the prosecution version and as such concealed. Thus, once the oral version of the prosecutrix and her father as to her age is found inconsistent; the documentary evidence is not worth of any credence and the expert opinion as to the age of prosecutrix is not produced on record, this Court takes the age of prosecutrix as more than 16 years at the time of commission of offence. Since the prosecutrix has been held more than 16 years of age at the time of incident and being the consenting party to the sexual acts, the charge against the appellant under Section 376 IPC must fail. There are further charges under Sections 366 and 363 IPC against the appellant. I have gone through the evidence on record and is of the considered opinion that there is sufficient evidence on record to prove the said offences, against the appellant. Not only this, the learned defence counsel has also conceded to that effect and has confined his arguments to the extent that since the prosecutrix was a consenting party, therefore, the sentence awarded to the appellant under the aforesaid heads is on higher side. He has further contended that the appellant has remained in custody for about two years and two months in relation to this case and thus, a lenient view is prayed for. Keeping in view the peculiar facts and circumstances of the case, the conviction and sentence of the appellant awarded under Section 376 IPC is set aside while his conviction under Section 363 and 366 IPC is maintained, however, his sentence is modified to the period of sentence already undergone by him subject to the appellant's depositing a sum of Rs.25000/- as compensation to the prosecutrix within three months. (ARVIND KUMAR) JUDGE July 7,2010 Jiten 6 The object of S. 361 seems as much to protect the minor children from being seduced for improper purposes as 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 minor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . out of the keeping of the lawful guardian of such minor' in S. 361 are significant. 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. Section 361 is designed to protect the sacred right of the guardians with respect to their minor wards. 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 is it 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