Criminal Appeal No. 1030-SB of 2009 1 In the High Court of Punjab and Haryana, at Chandigarh Criminal Appeal No. 1030-SB of 2009 Date of Decision: 9.12.2011 Anil Kumar ... Appellant Versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Rahul Vats, Advocate for the appellant. Mr. Anupam Sharma, Assistant Advocate General, Haryana, for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) The appellant herein was tried in case arising out of FIR No. 215 dated 17.7.2007, registered at Police Station Mohindergarh, under Sections 363, 366-A and 376 IPC. The Court of Sessions Judge, Narnaul, vide its impugned judgment dated 18.2.2009, held the appellant guilty of offence under Sections 363, 366 and 376 IPC and vide a separate order dated 19.2.2009, he was sentenced as under:- S. No. Offence Under Section Sentence awarded 1 363 IPC To undergo rigorous imprisonment for a period of four years and to pay a fine of ` 2,000, in default whereof to further undergo rigorous imprisonment for a period of two months. Criminal Appeal No. 1030-SB of 2009 2 S. No. Offence Under Section Sentence awarded 2 366 IPC To undergo rigorous imprisonment for a period of seven years and to pay a fine of ` 4,000, in default whereof to further undergo rigorous imprisonment for a period of four months. 3 376 IPC To undergo rigorous imprisonment for a period of ten years and to pay a fine of ` 10,000, in default whereof to further undergo rigorous imprisonment for a period of six months All the substantive sentences were ordered to run concurrently. Aggrieved against the same, the present appeal has been filed Criminal proceedings, in the present case, were set into motion on the written application Ex.PE submitted by Balbir Singh PW.5, father of the prosecutrix PW.6 (name withheld to protect her identity). In his application, Balbir Singh stated that he is working as a Class-IV employee in Akashwani Civil Works, 11th floor, Information Bhawan, Lodhi Road, New Delhi. He further stated that from the wedlock of his marriage with Sheela Devi, three daughters and one son were born. The youngest daughter (prosecutrix) was aged about 11 years. After death of his wife in the year 1999, he started living with another woman from whom a son was born. On 11.7.2007, through telephone, he got an information that his daughter (prosecutrix) was missing from the house. After taking meals, on 12.7.2007, he came back to his home and learnt that on 9.7.2007, the prosecutrix had left the house. On 17.7.2007, he got an information from Mahandipur Balaji Dharamshala that her Criminal Appeal No. 1030-SB of 2009 3 daughter was found there. The complainant along with his brother, brother's wife and mother reached Mahandipur Balaji Dharamshala, where they found their daughter in a perplexed condition. On being asked by him and wife of his brother, the prosecutrix told that her step mother Raj Kumari told her to go to nursery to call brother Parveen Kumar. When she was going towards nursery and reached near the culvert, a man came in a vehicle, who used to come in their house earlier and his name is Anil Kumar, resident of village Majra Kalan. He used to do the work of selling chappals at Satnali. He often used to visit her step mother Raj Kumari. He caught hold of her and enticed her away towards Satnali and thereafter he brought her by train to Mahandipur Balaji and kept her in a room of Dharamshala. Thereafter, Anil Kumar, after removing her clothes, had committed sexual intercourse with her. In the morning, he left her in the Dharamshala by saying that he was going to Bazaar for purchasing clothes but he never came back. The prosecutrix remained unconscious and in the morning, the officials of Dharamshala came, to whom, she narrated the entire incident. They informed her parents. The above said FIR was investigated and report under Section 173 Cr.P.C. was submitted. The Court of Sessions Judge, Narnaul, on 20.11.2007, had charged the appellant for the offence under Section 376 IPC. In the charge, it was stated that on the night intervening 9/10.7.2007, the accused had committed rape upon the prosecutrix and thereby committed an offence punishable under Section 376 IPC. The charge further stated that on 9.7.2007, in the area of village Jhagroli, the accused had kidnapped the prosecutrix from the lawful guardianship of Criminal Appeal No. 1030-SB of 2009 4 her parents without their consent and thereby committed an offence punishable under Section 363 IPC. Since the appellant had kidnapped the prosecutrix and seduced her to illicit intercourse, he was also charged for the offence under Section 366 IPC. The accused pleaded not guilty and claimed trial. A crucial question, which this Court has to answer, is the age of prosecutrix. Ramesh Kumar, Head Master, Government Middle School, Jhagroli, District Mohindergarh, appeared as PW.2 and brought the admission register for the year 2007. As per the record, the prosecutrix was admitted in school on 25.4.2007 and her date of birth as recorded therein was 8.7.1995. Thus, on the day when the prosecutrix had left her house, she had completed 12 years of age. There is no evidence brought on the record by the accused to the contrary. Hence, School Leaving Certificate Ex.PB is sufficient to comply with the statutory conditions as specified in Section 35 of the Indian Evidence Act, 1872. Thus, this Court has no hesitation to hold that the prosecution has conclusively proved that on the date, when the prosecutrix had left her house, she was aged about 12 years and 1 day. Having determined the age of prosecutrix, this Court will notice medical evidence. PW.8 Dr. Kanwar Singh had medicolegally examined accused Anil Kumar and opined that there was nothing to suggest that he was incapable of performing sexual intercourse. PW.12 Dr. (Ms.) Renu Verma had medicolegally examined the prosecutrix. The clinical observations made by this witness can be Criminal Appeal No. 1030-SB of 2009 5 noticed as under:- “Labia majora was normal, labia minora was normal. Pain and tenderness was present during examination. Hymen ruptured, swollen, margin was congested. Tear were present at 4 and 8'O Clock position. Vagina admit one finger tightly. Vaginismus present. Slight bleeding was present which was dark red colour. Sample was taken.” In cross-examination, this witness has stated that since hymen of the victim was ruptured, she was not virgin. No spermatozoa was found on the vaginal swabs taken. However, as per the report of the Forensic Science Laboratory, human semen was detected on the underwear of the accused. Complainant Balbir Singh himself appeared as PW.5 and reiterated as to what was stated in his written application Ex.PE. The defence had cross-examined this witness at length but could not cause any dent in his testimony. The prosecutrix appeared as PW.6. She has stated that she was the student of 7th class. On 9.7.2007, she came back from school at about 2.00 P.M. Thereafter, she was sent to the nursery by her mother Raj Kumari to call her brother Parveen. On the way, the accused met her and they started talking each other. Meanwhile, a vehicle came there, which was occupied by another person besides the appellant. The accused took her to Mohindergarh Railway Station wherefrom she was taken to Satnali in a train. From Satnali, he took the prosecutrix to Rewari in another train wherefrom she was taken to Criminal Appeal No. 1030-SB of 2009 6 Bandi Kui town in a bus and told her that he would drop her to Jhagroli after visiting the fair. Then he took her to Mahandipur Bala Ji in a bus. He arranged for a room in Dharamshala, where she was confined and subjected her to sexual intercourse. She became unconscious and was not aware when the accused had left that place. When she regained consciousness, the prosecutrix tried to open the door but it was bolted from outside. She cried and got the door opened. She narrated the facts to Managers of the Dharamshala, who shunted her out. Thereafter, she went to another Dharamshala. Then an information was relayed to her parents who came there on 16.7.2007 and she came back to her house on 17.7.2007. Learned counsel for the appellant has referred to the cross- examination of the prosecutrix to submit that she herself accompanied the appellant to various places and therefore, she was the consenting party to the sexual intercourse. Once this Court has determined the age of prosecutrix as 12 years, her consent, qua for offence of rape, even for the sake of argument, becomes meaningless. This Court need not to notice the evidence of various other witnesses who had participated in the investigation. However, it will be pertinent to notice that in the statement of accused under Section 313 Cr.P.C., all the incriminating circumstances were put to him. He denied the same and pleaded innocence and false implication due to party faction. Furthermore, he took a plea of alibi. DW.1 Dharambir, Photographer, stated that wife of the accused gave birth to a child on 24.6.2007. He along with the accused remained present in the hospital and they returned back from the AIIMS Criminal Appeal No. 1030-SB of 2009 7 Hospital, Delhi, on 7.7.2007. This witness further stated that the accused is brother of his wife and the accused, his wife and the child remained in the house till 9.7.2007 and on 10.7.2007, they had performed Chhati ceremony. DW.2 Manoj Kumar, Ahlmad in the Court of Sub Divisional Judicial Magistrate, Mohindergarh, proved certified copy of the complaint as Ex.DB, which was filed by Balbir Singh, father of the prosecutrix, against the accused. In the present case, the appellant had not only enticed away a girl, who was aged about 12 years, but after committing sexual intercourse, deserted her in a Dharamshala. The plea raised by learned counsel for the appellant that this is a case of consent, has already been rejected taking into consideration the age of the prosecutrix. So far as the complaint Ex.DB is concerned, this has been filed by complainant Balbir Singh, for the offence under Sections 363, 366-A, 342, 376, 506 and 120-B IPC against the accused. A perusal whereof shows that the complainant had made a grievance therein that the prosecutrix was raped by the accused/appellant. Along with the complaint, in preliminary evidence, the complainant had also made statement Ex.DC, which was recorded by the Court of Sub Divisional Judicial Magistrate, Mohindergarh. The complainant, when appeared as PW.5, was not confronted with the complaint filed by him or with his statement Ex.DC. Therefore, Ex.DC being a previous statement of the complainant, is not a substantive piece of evidence and cannot be read. Suffice it to say, fearing that the investigation may not be fair, the complainant had filed a complaint Ex.DB in the Court. Thus, it Criminal Appeal No. 1030-SB of 2009 8 cannot be said that since the complainant had filed a complaint, he was inimical with the accused. Furthermore, to prove alibi, the accused/appellant has only examined DW.1 Dharambir, who is husband of his sister. He is a convenient witness. No other witness was examined by the appellant. Furthermore, the plea of alibi was not relayed to anybody at first instance. Taking totality of circumstances into consideration, this Court shall affirm conviction of the appellant for the offence under Sections 363, 366 and 376 IPC. At this stage, learned counsel for the appellant has submitted that the prosecutrix was one day above 12 years of age and therefore, Section 376(2)(f) IPC is not attracted. According to learned counsel, Section 376(2)(f) IPC can only be invoked in case the prosecutrix is under the age of 12 years. Thus, it is contended that the sentence of 10 years, awarded upon the appellant, is not minimum, whereas the minimum sentence which can be awarded in the present case is 7 years. Hence, it is urged that this Court should reduce the sentence of 10 years rigorous imprisonment, awarded upon the appellant, to that of 7 years. I am not even inclined to accept this prayer. The appellant not only enticed away a girl who was just 12 years old but after having performed sexual intercourse for his lust, deserted her in a Dharamshala. It cannot be ignored that she was turned out of Dharamshala where the prosecutrix was staying. She was left at the mercy of others even for relaying information to her parents. Had some good man not come to the rescue of the girl, the consequences would Criminal Appeal No. 1030-SB of 2009 9 have been different. Hence, the appellant does not deserve any mercy. Accordingly, no interference is warranted in the present appeal and the same is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge December 9, 2011 “DK”