Criminal Appeal No. 159-SB of 1998 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 159-SB of 1998 Date of decision : 04.11.2008 Bhunda Ram .....Appellant Versus State of Haryana ...Respondent CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Vivek Goyal, Advocate as Amicus Curiae, for the appellant Mr. S.S.Mor, Senior Deputy Advocate General, Haryana. S. D. ANAND, J. The appellant was convicted by the learned Trial Judge for the offences under Sections 363, 366 and 376 IPC and was sentenced as under:- 363 IPC Rigorous imprisonment for three years and fine of Rs.200/- and in default of payment of fine to further undergo rigorous imprisonment for two months. 366 IPC Rigorous imprisonment for three years and fine of Rs.200/- and in default of payment of fine to further undergo rigorous imprisonment for two months. 376 IPC Rigorous imprisonment for seven years and fine of Rs.500/- and in default of payment of fine to further undergo rigorous imprisonment for three months. The prosecution allegations, upheld at the trial, were as under:- Gian Chand (not examined at the trial) had eight issues (two sons and six daughters), the prosecutrix being the youngest of the Criminal Appeal No. 159-SB of 1998 -2- **** siblings. Two sisters immediately elder to her were unmarried; while other had been married off. The house of one Bhana Ram was adjacent to the house under the occupation of the family of Gian Chand. The appellant Bhunda Ram was brother-in-law (wife's brother) of Bhana Ram afore- mentioned. He used to frequent the house of his sister. On the relevant date, the prosecutrix was all alone in her house. The appellant entered the house and made efforts to entice the prosecutrix by telling her that he would get good clothes prepared for her, that he would marry her and that he would keep her properly. At about 7.00 P.M., the appellant brought the prosecutrix to the Karnal Railway Station. He was, at that point of time, carrying a bag containing clothes. He was also carrying money on his person. The appellant took the prosecutrix by train to Taraori where they stayed over night at the house of one Mst. Gomati. On the following day, he was taken to another place where they stayed over night at the house of one widowed lady. Therefrom, the prosecutrix was taken to a town of Punjab. It was during the period of stay in that town that the appellant raped the prosecutrix for the first time. She was detained there for a total period of 28 days. It was routine for the appellant to rape the prosecutrix every night. It was thereafter that the appellant brought the prosecutrix to Karnal on an assurance that she would, thereafter, be taken to Habri where he would start earning their livelihood. During the night, they stayed at the Railway Station, Karnal. On the following day, they were available at a place near the railway bridge and were awaiting a Habri bound bus when they were apprehended by the police in the presence of Telu Ram (uncle of the prosecutrix) and one Swaran Singh. The usual formalities were complied with and the appellant Criminal Appeal No. 159-SB of 1998 -3- **** was challaned in due course. PW-1 Dr. N.K.Bhardwaj, Medical Officer, General Hospital, Karnal had examined the appellant on 25.7.1995, on police request Ex. PB, and had opined (vide Ex.PA) that there was nothing to suggest that he was not capable of performing sexual intercourse. PW-2 Seema Rani is the prosecutrix herself. PW-3 Roshan Lal is elder brother of the prosecutrix. PW-4 SI Sat Parkash, then posted as SHO, Police Station City, Karnal on 7.5.1995, had recorded the statement of Roshan Lal, on the basis whereof formal FIR Ex. PD had been recorded. PW-5 Dr. (Mrs.) Naresh Saini, Medical Officer, General Hosptal, Karnal had medico legally examined the prosecutrix on 25.7.1995 and observed as under:- “On general examination, I found that she was moderately built and nourished. She came walking. Her puse was 82 per minute, blood pressure 150/85 mmhg. She was unmarried. She started menstruating about 2-3 years back. Her date of list menstruation LMP period was 2.7.1995 and on local examination I found Labia Mahora and Minora healthy. There was no mark of injury on the private part. Hymen was absent. There was no fresh tear. On per vaginal examination two fingers could easily be inserted, she did not experienced any pain. Uterus nulli parous and was small in size. Her cxvics was ante verted and ante flexed. Fornics were clear. There was no bleeding per vagina. I prepared two slides from posterior fornics secretions and sent to Forensic Science Laboratory.” Criminal Appeal No. 159-SB of 1998 -4- **** PW-6 Smt, Kailash Kumari, a teacher posted at Government School, Kambohpura, proved school leaving certificate Ex. PH pertaining to the prosecutrix on the basis of admission/withdrawal register. She testified that the date of birth of the prosecutrix was 8.1.1983. PW-7 Telu Ram is an Uncle of the prosecutrix in whose presence (alongwith Sawaran Singh), the appellant and the prosecutrix were apprehended by the police party. PW-8 ASI Kartar Singh had investigated this case. The appellant denied the prosecution allegations and pleaded innocence. The appellant did not adduce any evidence in defence. Learned Amicus Curiae, appearing on behalf of the appellant, argues that the entire prosecution presentation is unworthy of reliance inasmuch as there is enough evidence on the file to prove that the prosecutrix was a consenting party to her being taken away and also to the violation of her person at the hands of the appellant. In support of the advocated view, sustenance is drawn from the fact that the prosecutrix had been to various different places in the company of the appellant but is not proved to have raised any raula at any place. This, the argument proceeds, goes a long way to prove that it was all a consensual affair. This Court need not got into the aspect noticed above in view of the fact that the prosecutrix is proved to have been under the age of 16 years from the time she was enticed, during the period she was raped and till the time she was apprehended in the company of the appellant by the police party. From the perusal of the record-based testimony of PW-6 Smt, Kailash Kumari, it is otherwise that the date of birth of the prosecutrix as per the admission/withdrawal school register, is 8.1.1983. In that view Criminal Appeal No. 159-SB of 1998 -5- **** of things, she was, by all means, aged less than 16 years through out the relevant period. Faced with the predicament afore-mentioned, learned Amicus Curiae argues that certification Ex. PH cannot be relied upon because there is nothing on the record to indicate on what exact basis the date of birth of the prosecutrix had been recorded in the school record. The plea raised is completely devoid of merit. It may be particularly noticed in the course of her record based testimony, Smt. Kailash Kumari testified that the certification aforementioned had been issued on the basis of admission/withdrawal register. Though she conceded that there is an overwriting in the record regarding the date of admission to the school, she reiterated that there was no overwriting regarding the date of birth of the prosecutrix. Even in the case of conceded over writing the position is as under:- The originally recorded date of admission had been initially noticed as 25.4.1989. The over writing enabled it to be read as 24.5.1989. How exactly does that make any difference to the validity of the other entries in the school record defies logical comprehension. The categorical testimony of the Investigating Officer and PW- 7 Telu Ram proves that the appellant was apprehended in the company of the prosecutrix on the relevant date. The appellant has not at all endeavoured to explain how exactly happened in the company of the prosecutrix at that point of time. Insofar as the prosecution presentation( that prosecutrix had been deflowered) is concerned, it is thoroughly proved by the testimony of PW-5 Dr. (Mrs.) Naresh Saini whose testimony could not be assailed by the learned Amicus Curiae on any valid count. Criminal Appeal No. 159-SB of 1998 -6- **** In the light of the fore-going discussion, the appeal is held to be devoid of merit and is ordered to be dismissed. However, in view of the fact that the trial (which started in the year 1995), lasted till the year 1997 and the present appeal filed in the year 1998 is being disposed of in the year 2008, it is ordered that sentence awarded to the appellant shall stand reduced to five years. Except with that modification, the appeal shall stand dismissed. November 04, 2008 (S.D. ANAND) Pka JUDGE