4 09 4 1 1 CriminalAppeal No 1 SB of 2001 1 IN THE HIGH COURT OI7 PUNJAB AND HARYANA AT CHANDIGARH CriminalAppeal No 1 SB of 2001 R m Dateof decision Il 112010 0 NafeSingll tn C3 In I e 0 Appellant I vcrsus Z 2 r The State of I4aryana 1 51 19 P 08 et CORAM HONBLE MRJUSTICE KCPUIU Vmm Z 3 Clm Present1 Mr RahulVats Advocatefor the 1 Mr AiayGulati DeputyAdvocateGeneralHlyana KC PUJU J 67 This is all appeal directedby m Nafe Siilghagainsttlle dated 1212 2000 and order dated 1512000 passedby Sllri KCSharma learned Additional SessionsJudge Hisar vide whicll has beenconvictedunder Sections 363 366 and376 of the Indian PenalCode 6in short the lPC9and senteilcedhim to undergo rigorous as under Pooja 2014.03.12 14:56 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 410 CriininalAppeal No 1 SB of 2001 2 For COlllllllttlng the offence To undergorigorouslnprisonment under Section363IPC for a periodof two yeatasand fine of Rs10001e In default of flne he shall further for a periodof two tnonths m L For the offenceTo undergorigorous underSection 366 of for a periodof threeyeorsandflne 0 IPC of Rs0001 In delllt C of fine he shall further fot a periodof four I lllOnth 0 For the offenceTo undergorigorousimprisolllllC under Section376 of for a penodof seven yearsandflne IPC of Rs30001eln default Z of flne he shall further undcrgo for a periodof ten lllOIlths fr 1 n 08 All the substantivcseontencesof were orderedto J run Z The facts of the case are that on9 1999 ll alongwith her motllerRoshaniDevi gotrecorded hei stlatetllellt with ASI Nar Singh00WelOthat shehad passed 7 class A case agalllSt the accused who is her maternaluilcle was afler llhedeathofhis wife and 111that case he was arrestecl The accusedhad tllree ininor children After his release in that case he had taken her to lls house by making requestto herparentsfor lookiilgafterhls tllree miIlor childrcnand to do the household work She continued her studiesat the house of the accusedand after appearing in the cxainiilatioil slle rctullled to llel Ioalellial n house On 61 999 at about l OOpn tlle accused catneto her house ond askedher to accompanyhim as tllere was soille work at his house BelieIliilg Pooja 2014.03.12 14:56 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 411 CriminalAppeal No 1 SB of 2001 3 the she himto his housesituatedat Shiv Colony The gave a tablet to her and in goodfaith she consumedtllat tabletdue to which she startedfeelingintoxicated Thereaftertheaccused closedthe door of the rooin the stringof her salwarforciblyand m rape upon her Due to intoxicati she could not raoiseher 0 voice but when on accountofpainshescreamedtheaccusedput hishand C When shegainedconsciousnessshelodgedprotestto the on her 0 about the rape cominittedbyIliin upon her andon that theaccused her not to disclose aboutthatfactto andhe wouldshow her TajMahal of Agra goodclothesfor her and leave her ather house aller her recovery from pain The accusedalso threatened her to kill if she about that fact to any person Thereaftertlle 08 accused her froln Vidhut Nagarto Bus Stand Hisar in a threew 7 wheelerand fromthere 1100 her to Ludhianawhere she was keptconOned Z inaroom for one monthand that periodalso the accusedusedto 0m rapeupon her Whenever the accusedusedto go outsideheusedto lockthat rooin 6eomoutside Beinga child she was feeling 2e 6 she could not raiseher voice about tlle acts of the accused On 9 37 1999 the accusedbroughther frotn Ludhiaila to Hisar and Iefher at 90 1 Stationsaying that he was goingto Bhiwani Thensheretumed the to herhouse and narratedthe taleof her woes to her motherRoshaniDevi On thebasis of aforesaidstatement FIR was got and the 1 r investigatiollwas commencedThe accusedand the were got examined The accusedwas arrested After the completion andother forinalitiesofthe case the accusedwas cllallaned Va e Pooja 2014.03.12 14:56 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 412 er 1 AppealNo SB of 2001 4 toface trial Onappearanceof the accused copiesof documentswere to him thereforethe case was to the Court of Sessioonby Shti Sanjiv 1 leamed JudicialMagistrate Jst Class Hisarfor trial 0 Finding a primafacie case the accusedunder Sections Ca 366 and376ofthe IPC charge was alnedagainst him bytheleamed C5 Hisar to which theaccused not guilty AdditionalSessions andclaimedtrial n supportof its case the examinedDr Arun HC Jai SinghPWr21CollstableSameSinghPW KumarGupta e I 3 SI Mohinder SinghPWI9 HC DavenderSinghPW5I Dr Himani 08 GuptaPW6I Dr Lalit Kumar 179Sl Prem Singh Raju 7 6PW9IDalbir SinghPW109RetiredAS Nar SinghOPWll9 Z as PW2 andSmt Om SheelaRati07W1I Clm The accused was uilder Section 313 CrPsC he pleadedhisilonocenceand has been falsely in the case Tlle accusedhas tllat Roshani the motherof the is the real of Ilis inausi and uncle NlanpllulShe is a ladyof loose cllaracter h and had illicit with Om Parkash who used to run a flesh tradc with the help of Santro in Governinent ColonyMill Ge Hisar to wllich he had saidRosllani and IlerhusbandIOalbirSinghborrowedall amount ofRs15000 from him The usedto with his childrenshe studied upto middle standardand he treatedher as his own Roshani used to dragthe 111 flesh tradingby Pooja 2014.03.12 14:56 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document r 413 7 5 eslrl AppealNo 1 SB of 2001 5 her sedativepillsWhen he raised and demanded frotn Roshaniandherhusbandthen on theadviceof SantroIle was falselyin theIoresent case In defeonce evidenceWair Singh sonof Bhag Singhhasbeen examinedas DH Thelearnedtrial Courtafterhearing the Iearnedcounselfor the partles andsentencedtlle vide da1ed 12122000 andorder dated151 2000 as aforesaid dissatisfiedwith theaforesaid andorder the has thepresentappeal I haveheard learnedcounsel for the appel Iant and learned AdvocateGeneralfor the Stateof Haryanaandhave alsocarefully the case flle Learned counsel for the appel lant has submittedthat the prosecutrix was more than18 yeailsof age The has exainined DrArun 6PWellwho hasgiventlheage of the proseculrix between 14 to 161zyears This witness hasstatedthat1tllerecan bevariatoion inthe ageby 2 to 3 years on eitherside According to the ossiflcatioon tes4 thevariation is consideredshe wouldbeagedabout 18V19 Vzyearsl1le trial Court has relied upon the school certificateExPR The fonn on the basis of wihichthe age of the has been in the schoolrecord has beenproducedby Dalbir Siilfll PW 101 father of the who has statedthat the age of the prosecutrIX was 12w1314years So lt cannot be said th Irosecutrix was agedlessthan 16 years To supIoort hiscoiltentioll learned counselfor the hasrelied upon thefollowingauthorities Pooja 2014.03.12 14:56 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 414 P 6 CriminalAppealNo 1SB of 2001 6il Jaipal SinPh vse State of Harvana 2003 ReCeR 1Criminall310 ii Om ParkashCalMitha a3Premvs State ofHarvana 1 1997111 ReCRe Criminall 741 0 il Arvinder Kaur vse State of Puniab 2007 RCeRe C3 I Criminall 818 3 O Hk C5 iio RlIkeshvse Stateofl3aryana200Il RCRe minall I 505 PS2Hl i Learned Statecounselhassuppoorlthe of thetrial Ct Court I I have consideredOlesublllissions madeby looththe sidesand a5 havegonethroughtherecordsofthe case withtlleir able assistance m ln a case where fencesunderSections363 366 and376of Z the lPC are involved the age of the is a orelevantfaclor to be Il determinedbytheCoutlSe In the presentcase the trial Court afhr tlle evidenceon the flle reached to the conclusionthat age of the was lessthan 16 years at the titne of occurrence Prosecutionexamined PW6 Drl4imani Gupta who has given the age of 13 years Dalbr Siilgh6PWOl fatllerofthe prosecutix hasgiventhe age ofthe as 121314 ycars Prosecutlixherself as on 202000 hasgivenher age as 14years llle ExPR in which the dateof birth of the has been mentionedas 2011986 The occurrence relatesto Jultluly 1999 So the age of tlle Pooja 2014.03.12 14:56 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 415 1 r d Criminal AppealNo 1 SB of 2001 7 4 was less than14 years InauthorityJaipalSinPhs case ipral the age of was15 andshehasstatedherage as 1lY yearsbeforethedoctor So 4 that is In Om Pvkash C Mitha Pren C8SC SllPral the washeld to be tnore than 16 years and was a partySo that is also In Arvinder Kaurs case supral the age of tlle prosecutrlX was found to be lnore than16years Sothis is also The schoolrecord which is by the oral evidence shouldbe relied uloon the age of the So I have no hesitation in holding tha1the age of the has been conectly determinedbythe trialCOU The other limb of argunlentof the leailnedcounsel for tlle is that is a party Shehas the accusedto Ludhiana in a vehicle Slle stayedat Ludhainafor abouta monthwith the accused Sllehasalnple to raise a noise duringthe periodof her and stayat Ludhaina So it cannot be said that there is of the by the accused The left her homevoluntarily with her sweet will and not under any inducementor threat So the abducting or is not proved In supportofthis contention Ieamedcounsel for the hasrelied upon thefollowingauthorities o Narindcr vse State of Harvana 2003 ReCRCrimh Pooja 2014.03.12 14:56 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 416 1 1 CriminalAppealN 1 SB of 2001 4 8 721 Lte1 0iI Vinod VSe State of Haryana2010 ReCeRCriminaIl 6 3092 06 Ill Tukaram vse State of Maharashtra AIR 1979 SeCe185 m C SuDremeCourt 0 1 have careflillyconsideredthe submissions lnade bycounsel C for theappellant and havealsocarefully gonethrough tlle authorities C5 I The said submissionsare without any substance The has adlnittedthe fact that prosecutrix his niece She 1S Z was Iessthan 16 years of age and as such consent of the 1S 0 iminaterial Even in the stateinentunder Section313 CrPC it hasbeen 08 statedbythe accusedthat mother hasillicit relationwith one Om Parkashand has further stated that inother of the prosecutrixwas er mVA giving sedativeto the prosecutrixto indulgein thetradeof Z Now duringthe course of argument the said points fl hallenot beenpressed So the statement of theprosecutrix to theeffectthatshe was givensedative and accusedcommittedrapeupon hercanies weightand hasto beaccepted The prosecutrix or her fatherwould be the Iastperson to iinplicate such a closerelativein a heinousoffenceinore so when therewas no reasotl for the 1 san The standtaken bytheaccusedbeforethetrial Courtthat Rs 150001 5 was owed by mother of the prosecutrix was also not pressedduringthe 4 V of arguments The accused course wasina positionbeingthe 2 uncle of the prosecutrixand he hasmisusedhis position the R k It accused has three children and 111 spite of that he has indulged e 111 5 4e his own nlece So he 1SllOt entitled to get anyrelief ilronlthe Pooja 2014.03.12 14:56 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 417 V4eCriminalAppealN 1 SB of 2001 9 Courtregarding reductionof sentence also So far as the abovesaid authorities are concemed the said authoritiesdo not helpthe case ofthe itl any manner as the ageof the has beenproved to be lessthan16yearsin thecase in hand 1 Learnedcounselfor tlle hasfuitller submittedthat the 0 medicalevidencedoesnot prove the factum of rape There was no nla1kof C intemaland externalinjuries on the bodyoofthe So there IV8S CD no struggle on thepartof the The presenceof semendoesnot 1 provetherape but onlyprove the sexualinter course Z I have carefully consideredthe saidsubnlission but do not Snd C anyforce in the said subInission I As the was below 14 years of age SO lll tllese a5 circumstances she was unable to raise any struggleA40re0ver it 1S llOt S7 that in a case of rape there lllUst be extemal nlark of injuries Z Presenceof semen Oll the clothesproved the factuinof tl Otherwisealso duringtlle course counsel for the appellant has not denied the with the ptosecutrix bL hastaken the standthat the ls a party As observed above even the consent of the less than 16 years of age attractsthe of offence punishable under Section 376 IPC The t 17 19 has statedthat underthreat and allurenlentshehas theaccused to Ludhiana So ill these circumstancesit cannot be said that offence punishable under Sections363 and 366 IPC are s not attracted AuthorityDharmender VSe State of Haryana 2010 131 ReCeRICriminall 179 relied uponbythe learnedcounseI for theappellant Pooja 2014.03.12 14:56 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 418 1 CriminalAppealNo 1 SB of 2001 10 is not helpfulto the appellant EIS lll thatcase the prosecutrix was aged17 years AuthoritiesPartap Misra VS State of Orissa AlR 1977 paee 1307 SCJ and Tameezuddin C Tammu vs StateoVCTI of 1 C Delhi upreme Court I Paee 345 reed uponbythelearnedcounselfor 0 theappellant are not helpfulto the appellant inedicalevidenceas P C ltl those cases prosecutrixwas more than 16 years of ageand in the C5 Tameezuddin 0 Tammus case 4SllPrilltlle prosecutnx C was even a marriedwoinan Z Tlle last limb of argumentof the learned counsel for the C2 appellant is thedelayin Iodging the FIR As discussed above there is very close of 08 oo prosecutrlXwith the The fainilymembersthink 4 7 thousandtimebeforelodgingthe FIR 0Hencepunishable under Z Sections363 366 and 376 ofthe IPC asvirtually in suchtnatters theyput CL their honour at stake So theappellant cantlot deriveany benefltof the delay as well as Chinta Sinku VS State of Jharkhand Jharkhandl2008 CrIe L J Paee 2192 relied upon by the leamed counsel for theappellant In view ofthe bovediscussiontheappealis withoutany merit andthe same standsdismissed The accused who lS Oll bail be takenintocustody to the partofthe sentence 1 Il1 7 Ir I8 I5 964 Pooja 2014.03.12 14:56 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 419 1 4J CriminalAppealN 1 SB of 2001 11 A copy of this be sent to the trial Coutt for strict g 81 1 1 E JUDGE m NovemberIl 2010 0 ll 3 0 I Z D r rL oll n7 Z 0 Pooja 2014.03.12 14:56 True Copy of the Original PHHC, Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document