CRIMINAL APPEAL None on 24 July 1998

1. Whether the Reporters of Local Newspapers may be allowed to see the judgment ?allowed to see the judgment ?

2. To be referred to the Reporters or not ?

3. Whether the judgment should be reported in the Digest ?

CORAM :

HON'BLE MR. JUSTICE MOHINDER PAL.

Present:Mr. Amit Aggarwal, Advocate,

for Mr. Raghujeet Madan, Advocate,

for the appellant.

Ms. Sushma Chopra, Additional Advocate General, Haryana.

-.-

MOHINDER PAL, J.

Rajbir Singh (appellant) was tried by the AdditionalSessions Judge, Hisar, for the offences under Sections 363, 366-Aand 376 of the Indian Penal Code (for short `the Code') whereas

his co-accused Ramesh Kumar (non-appellant) was tried forthe offences under Sections 363, 366-A and 506 of the Code. Theappellant and Ramesh Kumar (non-appellant) were convicted andsentenced under Section 363 of the Code vide judgment ofconviction and the sentence order dated 24.7.1998 passed by theAdditional Sessions Judge, Hisar. The appellant was sentenced toundergo rigorous imprisonment for three years and to pay fine ofRs.200/-, in default whereof to undergo further simple imprisonmentfor three months whereas Ramesh Kumar (non-appellant) wasawarded the rigorous imprisonment for one and a half years andto pay fine of Rs.200/-, in default whereof to undergo simpleimprisonment for three months for the said offence. In this appeal,appellant Rajbir Singh has impugned the said judgment ofconviction and the sentence order.

The facts of the prosecution case are that theprosecutrix (name withheld) had been kidnapped from her houseby Ramesh Kumar (co-accused of the appellant) on 30.9.1996when she was alone and her parents were not at home. Theprosecutrix was reluctant to accompany Ramesh Kumar, but heshowed her a knife and extended threats to her. The prosecutrixthan accompanied Ramesh Kumar, who took her to Bus Stand ofFatehabad where appellant Rajbir Singh met them. Both theaccused then threatened the prosecutrix and made her to sit ina bus bound for Narwana. After reaching Narwana, accusedRamesh Kumar alighted from the bus. Thereafter, appellant RajbirSingh took the prosecutrix to Gohana to his sister, namely, [REDACTED].

Sheela's house. Appellant Rajbir Singh forcibly committed rapeupon the prosecutrix at night during her stay in the house ofSmt.Sheela at Gohana. On the next day, they went to the Courtpremises for marriage, but the police rounded them on2.10.1996.

After presentation of challan in the Court, the accusedwere put on trial for the offences as stated above.

During trial, the prosecution examined as many asthirteen witnesses.

In their statements recorded under Section 313 of theCode of Criminal Procedure, accused-appellant Rajbir Singh andRamesh Kumar (non-appellant) denied the prosecution allegationsand pleaded false implication on account of some altercationwhich took place between them and the father of the prosecutrixpertaining to some payment. However, no evidence was led by theaccused in their defence.

I have heard the learned counsel for the parties andhave gone through the records of the case.

The prosecutrix, as per school certificate (ExhibitP.E), was born on 25.3.1983 and she had hardly attainedthe age of thirteen and a half years on the date of commissionof the crime, it being 30.9.1996. No doubt, the age mentionedin the School Certificate is not the conclusive proof of age of theprosecutrix, but even after giving the benefit of error ofjudgment in forming opinion about the age of the prosecutrix,the age of the prosecutrix cannot be said to be more than fifteen

years. As noticed above, Ramesh Kumar (non-appellant), hadapproached the prosecutrix when she was alone in her house.She was escorted to Narwana by both the accused. Thepresence of the prosecutrix in the custody of appellant Rajbir Singhat Gohana cannot be denied because their presence wasnoticed in the Court premises and the local police at Gohanahad sent a wireless message to Fatehabad police. The prosecutrixin her statement as P.W.9 has given the detailed account of theprosecution case including the manner in which she was enticedaway from her house and the manner in which she was made to stayat Gohana in the house of the sister of appellant Rajbir Singh.Manjeet Kaur (P.W.10) is the mother of the prosecutrix andBalbir Singh (P.W.11) is the elder brother of the father of theprosecutrix, who were examined with regard to the age of theprosecutrix. N.C. Wadhwa (P.W.3) had brought the originalregister of admission and withdrawal of students in the GirlsSenior Secondary School, Fatehabad and had produced the certificate(Exhibit P.E) showing the Date of Birth of the prosecutrix as25.3.1983. Sub Inspector Partap Singh (P.W.4), who isInvestigating Officer of the case, had recorded the statement ofthe prosecutrix (Exhibit P.G) when she had been recovered fromthe custody of appellant Rajbir Singh on 3.10.1996. Mr. A.K.Tyagi (P.W.13), who, at the relevant time, was posted as SubDivisional Judicial Magistrate, Fatehabad, had recorded thestatement of the prosecutrix under Section 164 of the Code ofCriminal Procedure on 5.10.1996. As would be discussed

later on, the prosecutrix was not subjected to rape by appellantRajbir Singh. Under the circumstances, the evidence furnishedby the prosecutrix and the Investigating Officer leaves no roomfor doubt that the prosecutrix had been kidnapped by theaccused from the lawful custody of her parents. The appellantRajbir Singh has, thus, rightly been convicted and sentencedunder Section 363 of the Code.

The offence under Section 376 of the Code did notstand proved against the appellant in this case. In herstatement (Exhibit P.G) recorded by the police immediatelyafter her recovery from the custody of appellant Rajbir Singh on3.10.1996, she did not state about the commission of rape onher by the appellant. She made improvement while makingher statement before the Magistrate under Section 164 of theCode of Criminal Procedure wherein she stated that she had beenraped by the appellant in his sister's house at Gohana. She hadmade statement under Section 164 of the Code of CriminalProcedure before the Magistrate on 5.10.1996 i.e after two days ofher recovery from the appellant and by that time she must beunder the influence of her parents. The possibility of theprosecutrix being tutored by her parents while deposing before theMagistrate, is clearly evident. Dr. (Ms.) Ramesh Chakravarti(P.W.1), who had medico-legally examined the prosecutrix, didnot observe any external marks of injuries on any part of thebody of the prosecutrix including thighs and perineum. Besides,no semen was detected by the Forensic Science Laboratory on

the articles sent to it for examination.

For the aforesaid reasons, the prosecution has been ableto prove its case against the appellant under Section 363 of theCode beyond all reasonable doubts. I do not see any groundwarranting interference in the impugned judgment of conviction andthe sentence order rendered by the learned trial Judge. The sameare hereby confirmed. Resultantly, this appeal is dismissed.

January 27, 2010.ak

( MOHINDER PAL ) JUDGE