Jawahar Lal vs State of Punjab

J. S. Sekhon, J.

Jawahar Lal appellant was convicted by the learned Sessions Junge, Hoshiarpur for offences punishable under sections 363/366/376 of the Indian Penal Code and awarded sentence as under:

(i) Under Section 376 IPC, RI for seven years and to pay find of Rs. 1000 in defut of patyment of fine to undergo R.I. for six months;

(ii) Under Section 366 IPC, To undergo rigorous imprisonment for three years and to pay fine of Rs. 500/ or in default of payment of fine to undergo R.I. for six months.

(iii) Under Section 376 IPC, To undergo rigorous imprisonment for four years and to pay fine of Rs. 500/ or in default of payment of fine to undergo R.I. for six months.

All the substantive sentences of imprisonment were ordered to run, concurrently. Feeling aggrieved against the above referred order of conviction and sentence,. the appellants come up in appeal.

The brief resume of facts relevant for the disposal of this appeal is that Ms. Ramna Kumari about 15 years old alongwith her grand father Ram Kishan and mother Mst. Sushila used to reside jointly in village Koi. During the days of this occurrence, she was preparing for Matriculation examination. On 21st March, 1984 she got up early in the morning and went out for easing herself. She accosted Jawahar Lal accused in the street just outside her house. The accused gagged her mouth and took her forcibly to his nearby General Merchant shop. He committed sexual intercourse with her against her will. The accused cleaned his private parts with his underwear and concealed it in the shop. The accused took the prosecutrix to a deserted hut located in the fields and detained her there for two nights. During this interval, he indulged in sexual orgy with her against her will. On 24th March, 1984, he took the prosecutrix towards Hoshiarpur on the pretext that he would effect Court marriage with her. In the meanwhile, Ram Kishan grandfather of the prosecutrix on his failure to locate the prosecutrix and on finding the accused missing from his shop and house, lodged report Ex. PA on 23rd March, 1984 at about 12.30 PM with Assistant Sub Inspector Tarlochan Singh on Bus Stand, Bhunga. On the basis of this statement Ex. PA, formal first information report Ex. PA/2 was registered against the accused for offences under section 363/366 of the Indian Penal Code. The Investigator then took in possession the school certificate Ex. PC of the prosecutrix depicting her date of birth as 911969. He went to village Koi in search of the accused and the prosecutrix but failed to locate them. On 24th March, 1984, the accused and the prosecutrix were found present at Bus Stand, Dhoot Kalan. The accused was arrested in the presence of Ram Kishan and Vijay Singh witnesses.

The prosecutrix was got examined from Lady Dr. Jasbir Kanwar PW11 on 24th March, 1984. She did not find any external injury on her person. She, however, found the hymen to be torn and that the vagina admitted two fingers easily. The Lady Doctor also took some vaginal swabs. She also advised the Xray examination of the prosecutrix for determining her age.

Assistant Sub Inspector Tarlochan Singh got recovered underwear Ex. P I of the accused lying concealed in his shop in pursuance of his disclosure statement. He put it in a sealed parcel as it was bearing some stains.

During investigation of the case, Ram Kishan PW I also produced birth certificate Ex. PD of the prosecutrix. After completion of investigation the accused was arraigned for trial on such like allegations.

The trial Court framed a charge for offence punishable under sections 363/366/376 of the Indian Penal Code against the accused. He, however, pleaded not guilty to the charge and claimed to be tried.

Before the trial Court in order to prove its abovereferred case, the prosecution examined as many as twelve witnesses besides tendering formal evidence of some police officials on affidavits. The reports Ex. PR and Ex. PS of the Chemical Examiner were also tendered. Ms. Ramna Kumari prosecutix supported the abovereferred version of the prosecution.

The accused when examined under the provisions of Section 313 of the Code of Criminal Procedure by the trial Court contended that the prosecutrix used to write love letters to him. The patents of Ms. Ramna kumari on learning about these letters asked him to return the same. On his refusal. he was falsely implicated in this case with the help of the local police. When called upon to enter on defence the accused examined Dr. G.P.S. Bedi DWI in order to show that the bone age of the prosecutrix was between 17 to 18 years. Shri Arvind Sood Advocate Document Expert appeared as DW2 and deposed that the writing on letters Ex. D 1, Ex. D 2 and Ex. D tallies with the specimen writing and signatures S1 to S5 of the prosecutrix.

The trial Court, however, on the basis of the birth entry Ex. PC and the school certificate Ex. PD came to the conclusion that the prosecutrix has born on 811969 and her age was less than 16 years on the day of this occurrence. Believing the evidence of the prosecutrix coupled with the presence of semen on vaginal swabs and underwear of the accused, the trial Court convicted and sentenced the accused as referred above.

I have heard the learned counsel for the parties besides perusing the record.

Mr. Keer, learned counsel for the appellant contended that it was a clear case of consent as the love letters written by the prosecutrix to the accused as well as her conduct in not raising alarm although she remained in the company of the accused for three days clearly so indicate. It was also maintained that the age of the prosecutrix being more than 16 years cannot be ruled out: The learned Assistant Advocate General, Punjab has supported the findings of the trial Court.

From the perusal of the letters Ex. D I to Ex. D 3 written by the prosecutrix to the accused as well as from her conduct in not raising alarm although she was taken by the accused to well frequented places liks Bus Stand etc. and the non presence of any injury on her body or private parts clearly shows that the prosecutrix was a consenting party to the sexual intercourse with the accused. But this consent would not absolve the accused altogether from the charge of rape as according to clause sixthly, to Section 375 of the Indian Penal Code, in sexual intercourse. consent of a woman under 16 years of age would still fall under the mischief of rape.

There is no force in the contention of Mr. Keer that the bone age should be given preference to the entry, in the birth and death Register Ex. PD specially when according to Dr. Bedi, there can be variation from. one to three years on either side in the bone age of 17 to 19 years of the prosecutrix. On the other hand, the birth entry Ex. PD is the best evidence to ascertain the actual age of the prosecutrix especially when her name as Ms. Ramna Kumari figures therein. She was born on 811969 and thus on the day of this occurrence i.e. on 21st March, 1984, she was a little more than 15 years 2 months old.

It is not acceptable that Ram Kishan grandfather of the prosecutrix would level false allegations against Jawahar Lal accused qua rape of his unmarried granddaughter. Ms. Ramna Kumari simply on his refusal to return the love letters especially when such like allegations against an unmarried girl would mar her future chances of marriage in our social set up. Moreover, the recovery of the prosecutrix from the custody of the accused by Assistant Sub Inspector Tarlochan Singh in the presence of Ram Kishan PW I as well as the presence of semen on vaginal swabs and underwear Ex P1 of the accused further render due assurance to the testimony of Ms. Ramna Kumari prosecutrix although strictly speaking no such corroboration was required. Lastly the learned counsel for the appellant contended that the sentence already suffered by the appellant should be treated as sufficient in view of the technical nature of the offence he has committed and that too with the consent of the prosecutrix. I fail to agree with the learned counsel for the appellant as the accused appellant had only undergone about three months and ten days imprisonment including the period of his detention during investigation and trial of the case. However, under circumstances of the case, the substantive sentence awarded for offences under sections 376 and 366 of the IndianPenal Code is reduced to one year and six months on each count. The sentence of fine awarded by the trial Court is, however maintained. There is no justification in maintaining. the sentence awarded for offence under section 363 of the Indian Penal Code especially when he was already been found guilty and awarded sentence for aggravating form of the offence of kidnaping punishable under section 366 of the Indian Penal Code. The entire amount of fine, if realised, shall be released as compensation to the prosecutrix.

Consequently, for the reasons recorded above except for the reduction/modification in sentence, the appeal fails and is hereby dismissed.