Criminal Appeal No.362-SB of 1996 [ 1 ] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... CRIMINAL APPEAL NO.362-SB OF 1996 Decided on : January 16, 2008 Sat Narain alias Narain ... Appellant VERSUS The State of Haryana ... Respondent CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.A.S.Kalra, Advocate for the appellant. Mr.Amit Kaushik, Assistant Advocate General, for the respondent State of Haryana A.N.JINDAL, J.- Out of the eight accused, Sat Narain alias Narain – appellant (hereinafter referred to as the appellant) was convicted under Section 366 and 376 of the Indian Penal Code (for short IPC) and was sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.1000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months, under Section 366 IPC and to undergo rigorous imprisonment for seven years and to pay fine of Rs.1000/- and in default of payment of fine, to undergo rigorous imprisonment for six months, under Section 376 IPC, whereas, the other accused, namely; Dalbir, Kitaba, Jasmer Singh, Dalip, Ram Kumar alias Kara, Ram Pal and Rammehar alias Moli were acquitted of the charges framed against them vide judgment Criminal Appeal No.362-SB of 1996 [ 2 ] dated 23/24.4.1996 by the court of Additional Sessions Judge(I), Kaithal. Factual matrix of the case is that the prosecutrix (name not being disclosed) was a married lady. On 8.9.1993 at about 9.30 p.m, she had come from her in-laws at village Kharkada, to her parental village Sajuma. Balwan, a witness informed Ratna (PW7) that Sat Narain – appellant had abducted her under threat. Consequently, on 9.9.1993, he went in search of her daughter and she was found at the house of Prabhu of village Narwalgarh Batta, who told him that she has been raped by Sat Narain. After registration of the case under Sections 341, 376 and 506 IPC, on the statement of Ratna, the Investigating Officer came into action. He got the prosecutrix medico legally examined from General Hospital, Kaithal. The accused were arrested and on completion of the investigation, the challan against all the accused was presented in the Court. The Ilaqa Magistrate committed the case to the Court of Sessions, where, all the accused were charge-sheeted under Sections 366 and 376 IPC, to which they pleaded not guilty and claimed trial. In order to substantiate the charges, the prosecution examined the prosecutrix (PW1), Dr.Sharda Dabas (PW2), Dr.A.K.Leel (PW3), Balwan (PW4), Dalbir Singh Patwari (PW5), Ram Dia (PW6), Ratna – complainant (PW7) and Gian Chand Sub-Inspector/Station House Officer (PW8). When examined under Section 313 of the Code of Criminal Procedure, the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. In Criminal Appeal No.362-SB of 1996 [ 3 ] defence, they examined Vijay Kumar Gautam Record Keeper, Sessions Court (PW1), Ashok Bhandari Record Keeper, SDM Court (PW2), Bachan Singh, Ex-Sarpanch (DW3), Jabbar Singh (DW4), Pawan Kumar, Ahlmad in the court of Additional Senior Sub-Judge (DW5), Ram Partap Patwari (DW6) and Raj Kumar (DW7). The trial ended in conviction of the appellant. Hence, this appeal. In order to determine the culpability of the accused under Section 366 IPC, the age of the prosecutrix needs to be determined. The Trial Court in this regard has mainly banked upon the School Leaving Certificate (Ex.PK), which does not favour with the accused. It transpires that it does not bear the date of birth and the certificate has been misread by the Trial Curt as the date “9.3.1978” recorded in the said certificate is not the date of birth, but the date of her first entry in the School. If it is so, then assuming she having joined the school at the age of 5/6 years, her date of birth falls in the year 1973. The occurrence in this case took place on 8.9.1993, therefore, by the said date, she must have been more than 20 years old. The prosecutrix in her statement Ex.PL disclosed her age as 18/19 years and in the court (on 1.6.1994) she disclosed her age as 17 years. PW2 lady doctor Sharda Dabas, who conducted her medico legal examination disclosed her age as 18 years by approximation. All this goes to show that she was not less than 18 years of age and the finding returned by the Trial Court qua her age is not correct. Since, she was not less than 18 years of age and there are no allegations that she was abducted from lawful guardianship and was induced to compel her for marriage, therefore, no Criminal Appeal No.362-SB of 1996 [ 4 ] charge under Section 366 IPC is proved against the appellant. Now, coming to the offence of rape, PW1, the prosecutrix has clearly depicted in her statement before the Court that she was married in village Kharkada and that she was left by her husband at Railway Station, Kaithal to reach her parental village. She reached the Railway Station Sajuma, from where PW4 Balwan of village Sajuma was taking her to the village, but the persons of Gamriwala, took her forcibly to the `Batoras' (heap of cow dung cakes). She identified Sat Narain, amongst the accused persons in the court, who raped her, but failed to identify the remaining persons, who participated in the factum of abduction or rape. Nevertheless, from the recovery of the prosecutrix from the house of Prabhu as also her testimony, corroborated by the medical evidence, it is amply established that she was raped by the appellant. Mere fact that no mark of injury on the breast, abdomen, thigh, face, valva, libia majora, libia minora or cervix was found, does not falsify the prosecution version, particularly, when the prosecutrix is a married lady. In the light of the other corroborative evidence on record, the version of the prosecutrix is bound to be believed. In such circumstances, this court has no option, but to maintain the conviction of the appellant under Section 376 IPC. So far as quantum of sentence is concerned - the occurrence took place in the year 1993; the appellant as also the prosecutrix are married; both of them must have settled in life by now; the conduct of the prosecutrix could be doubted – are some points raised by the counsel for the appellant, to take a lenient view. Since the prosecutrix is a married lady Criminal Appeal No.362-SB of 1996 [ 5 ] and was coming in late hours of night to her parental village; and also considering marital status of the accused and the fact that the Trial Court has not believed the entire version of the prosecution; the prosecutrix identified only the appellant and not other seven accused, in the court; she was more than 18 years of age at the time of the alleged offence, the ends of justice would be met, if the sentence of imprisonment awarded to the appellant is reduced to three years under Section 376 IPC. Accordingly, the present appeal is partly accepted. Conviction of the appellant under Section 366 IPC is set aside, while the sentence of rigorous imprisonment awarded under Section 376 IPC is reduced to three years without any alteration in the fine clause. ( A.N.JINDAL ) JUDGE The 16th day of January, 2008 `gian' To be Referred to Reporter - Yes/ No