Chanderma vs State of Haryana

K.P.S. Sandhu, J.

Chanderma appellant has come up in appeal against his conviction recorded by the learned Sessions Judge, Ambala vide his order dated 131983. The learned trial Judge sentenced him to R. I. for four years and to pay a fine of Rs. 100/ in default R.I. for three months under section 376 I.P.C. and to R.I. for four years under section 363 I.P.C. Both the sentences were ordered to run concurrently.

Rehana, prosecutrix PW 5 about 14. years of age was a student of eighth class in Government Girls High School, Jagadhri. She was residing with her parents in Durga Garden Colony, Jagadhri. The appellant was also residing nearby. It is alleged that when Rehana prosecutrix used to go to school the appellant used to make gestures towards her. On 11th September, 1982 when Rehana prosecutrix, in the early hours of the morning had gone out for answering the call of nature, the appellant appeared there, gagged her month and threatened her with dire consequences in case she raised an alarm. She was taken to Delhi where the brother of the appellant was residing and there he subjected her to rape. She was kept there for 7/8 days She was brought in a bus from Delhi to Pinjore. Both the prosecutrix and the appellant were apprehended on 23.9.1982 by the police, in the presence of Romesh. PW and Mohd. Sipten PW her father.

The prosecutrix was medically examined by lady Dr. C.K. Shukla, S.M.O. Civil Hospital, Jagadhri on 23.9.1982 at 5.00 PM. The following is the result of her examination :

"No mark of injury was present on the genitals or buttocks. No blood was present on the pubes. Hymen was represented by tags of granular tissue. Vagina admitted one finger easily but two fingers with difficulty. Cervix was forward. Uterus was retroverted and normal in size. I had taken two swabs from vagina which were sent to Director of F.S.L. Madhuban, Karanal for chemical examination. She was referred to Radiologist, C H: Ambala City through police for radiological estimation of age".

After due investigation the appellant was sent up for trial.

Mr. R. S. Sihota, Advocate appearing amicus curiae for the appellant stated that from the facts of the case it appears that there was an affair between the prosecutrix and the appellant and only a technical offence is made out. I agree with the submission of the learned counsel that the evidence suggests that she went with the appellant of her own and had been going around with the appellant of her own free will and since she was appearing slightly less than 16 years of age technical offence under sections 376 and 363 is made out. It has been brought to my notice that the appellant by now has undergone a substantive period of one year and five months R.I. I think ends of justice will be amply met if his sentence of imprisonment is reduced to the one already undergone. It is ordered accordingly. However, fine imposed by the trial Court under section 376 I.P.C., is remitted. With this modification, appeal fails and is hereby dismissed.