Naresh Kumar vs State of Punjab

T.H.B. Chalapathi, J.

By this common judgment, I dispose of Criminal Appeal No. 342SB of 1993 and Criminal Appeal No. 343SB of 1993.

These two appeals are directed against the judgment of the learned Additional Sessions Judge, Jalandhar in Sessions Case No. 47 of 1992 dated 14.8.1993 whereby the appellants in both these appeals were convicted for the offence under Section 376 Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of ten years and pay a fine of Rs. 1,000/ each. Jagpal, appellant in Criminal Appeal No. 343SB of 1993 is accused No. 1 while Naresh Kumar, appellant in Criminal Appeal No. 342SB of 1993 is accused No. 2 in the sessions trial.

According to the case of the prosecution, the prosecutrix, Sunita went to the fields to answer the call of nature at about 5.30 p.m. on 25.11.1991. Two boys came and caught hold of her. One of them was Jagpal who was the neighbourer of the victim girl and brotherinlaw of Karnail Singh. The other boy was not known to her. Both of them lifted her and took at some distance and committed rape on her without her wishes and consent. She tried to be free but in vain. She raised hue and cry. The blood started coming out of her private part. In the meantime, her mother Raj and her maternal aunt Kanta came there in search of the girl as it had become dark. On seeing her mother and maternal aunt, both the boys ran away from the spot. Thereafter, her mother and aunt took her to the house. Her father came late at night and they told the whole incident to him. On the next day morning, they proceeded to the police station to lodge the report. On the way, they met SI Darbari Lal who recorded the statement of victim girl Sunita. On the basis of that statement, case was registered in FIR No. 119 dated 26.11.1991 for the offence under Section 376 read with Section 34 IPC. The victim girl was sent to the hospital for medical examination. After completion of the investigation, a charge sheet was filed against the accused. In order to prove the guilt of the accused, the prosecution examined 11 witnesses. After closure of the evidence of the prosecution, the accused were examined under Section 313 Cr.P.C. Both the accused denied the commission of offence and stated that they were falsely implicated. The accused did not adduce any evidence in defence when called upon. On a consideration of the entire evidence on record, the learned Additional Sessions Judge, Jalandhar convicted both the accused for the offence under Section 376, IPC and sentenced them to undergo rigorous imprisonment for ten years and pay a fine of Rs. 1,000/ each. Aggrieved by the same, both the accused preferred the above appeals.

It is the case of the prosecution that the victim girl Sunita was raped by the accused. PW3 is Dr. Adarsh Sood who examined the victim girl Sunita on 26.11.1991. Ex.PB is the medical certificate issued by PW3. He deposed that he examined Sunita daughter of Manohar Lal aged 14 years on 26.11.1991 at 2.30 p.m. and found that on PV examination the hymen was torn. There was fresh bleeding in the torn edges of the hymen on touch. He further stated that the prosecutrix appeared to have had sexual intercourse. He further stated that he received the report of the Chemical Examiner which is marked as Ex.PC. Spermatazoa was detected on the vaginal swabs and slides were sent to the Chemical Examiner. PW3 further deposed that after going through the report, he opined that sexual intercourse was committed on the victim girl Sunita. PW1, the prosecutrix, clearly stated in her evidence that she was raped by two persons on the evening of 25.11.1991 when she went to the fields to answer the call of nature. PW2 Raj, who is mother of the victim girl also deposed that she went along with Kanta Rani towards the fields in search of her daughter. She found her daughter in blood and she was crying. The salwar of her daughter was smeared with blood. PW6 Manohar Lal who is father of the victim girl also deposed that he was informed by his wife that when his daughter went to answer the call of nature, she was raped. PW7 Darbari Lal Inspector also deposed that Sunita came along with her parents when he was present at Octroi post, on Kala Singha Road, Jalandhar and she gave her statement Ex.PA wherein PW1 stated that she was raped on the evening of 25.11.1991. Thus, from the evidence on record, it is clear that the victim girl Sunita was raped on the evening of 25.11.1991.

It is to be seen whether the accusedappellants committed rape on the prosecutrix, Sunita. PW1 Sunita deposed that when she went to answer the call of nature to Safaidawala field, two boys came there. She identified both of them in the Court. She stated that one of them is Jagpal whom she knew previously as he is brotherinlaw of Karnail Singh their neighbourer. She further deposed that both the accused committed rape on her in the field without her consent. Her salwar was stained with blood at that time. She raised alarm on which her mother Raj and maternal aunt Kanta reached there and on seeing them, both the accused ran away from that place. She further stated that she made the statement Ex.PA to the Thanedar. In the crossexamination she stated that there was sun light at the time of the incident. She further stated that she started raising alarm before the accused started committing intercourse with her and it had taken about half an hour for committing the act by both the accused with her. She further stated that on her back she received bruises which she showed to the doctor at the time of her examination. She denied that she had enjoyed herself with a friend of her and did not return to the house for whole of the day and that due to her absence from the house, her mother and father started beating her and in order to save her and her friend, she falsely implicated the accused. She further stated that the police brought Naresh Kumar accused No. 2 to her house and then she came to know his name. PW2 is the mother of the victim girl. She deposed that at about 56 p.m. her daughter had gone to the fields to answer the call of nature near their house and when she did not return for about half an hour, herself and Kanta Rani went towards the fields in order to see her daughter. When they reached near the field, they heard the cries of her daughter. On seeing them, both the accused ran away from the spot. She further stated that she knew accused Jagpal personally as he is brotherinlaw of Karnail Singh, their neighbourer. She further stated that they went near their daughter. They found her daughter in blood and she was crying, The salwar of her daughter was smeared with blood. When she reached near her daughter, she was naked. Then, they asked her to put the salwar and returned to house. Her husband returned to the house at about 10 or 10.30 p.m. As there was dark, they did not go to the police station on that night. On the next morning, they went to the police station to lodge the report. PW4 is Dr. D.S. Bindra who examined accused Jagpal and opined that there is nothing incapable of his performing intercourse. PW9 is Dr. Manjit Singh Saini who deposed that he examined accused Naresh Kumar on 3.12.1991 and opined there was nothing to suggest of his being incapable of performing intercourse. PW7 is the Investigating Officer who deposed that the victim girl gave statement Ex.PA to him on the basis of which the case was registered against the accused. In Ex.PA, the name of Jagpal accused was mentioned but the name of other accused Naresh Kumar was not mentioned but his description was given.

The learned counsel for the accusedappellant argued that the accused were falsely implicated in the case and that the name of Naresh Kumar was not mentioned in the FIR and that no identification parade was done and that no reliance can be placed on the evidence. If really PW1, the prosecutrix, wanted to implicate accused Naresh Kumar falsely in the case, she would have also given the name of Naresh Kumar in the FIR under her statement Ex.PA. She gave the name of Jagpal as he was known to her and gave the description of the other accused. Accused No. 2 Naresh Kumar in his statement under Section 313 Cr.P.C. stated that he and Kanta are on inimical terms with each other and she quarrelled with him and at her instance, he was falsely implicated. He further stated that he was taken away by the police on 26.11.1991. If that is so, nothing prevented Kanta from asking PW1 to mention the name of Naresh Kumar also along with accused No. 1 Jagpal. A reading of the evidence of PW1 clearly shows that she is a truthful witness and can be relied upon. Her evidence is further clearly corroborated by the evidence of her mother PW2 and also by the doctor PW3 who examined her. I do not find any reason to disbelieve her evidence. On a consideration of the material on record, I am of the opinion that the learned Additional Sessions Judge, Jalandhar came to a right conclusion that both the accused committed rape on PW1 on the evening of 25.11.1991.

It cannot be said on the basis of the evidence that the rape was committed with the consent of PW1. The evidence of PW1 clearly shows that she raised alarm and she resisted the accused from committing rape. Further, the victim is a girl under the age of 16 years. To prove that the victim girl is under the age of 16 years, the prosecution placed reliance on the evidence of PW10 and Marks A, B and Ex.PJ on the record. PW9 SI Shamsher Singh who was working as Additional S.H.O. deposed that on 6.12.1991, he visited Government Girls School Bhargva Camp, Jalandhar and obtained photostat copies of the admission form (Mark A), school leaving certificate of the prosecutrix (Mark B) and also obtained separately in writing the date of birth of the prosecutrix which is Mark C. As per record, her date of birth was 6.3.1977. PW10 deposed that she is working as teacher in Government Girls High School Bhargva Camp, Jalandhar and that Sunita, daughter of Manohar Lal was reading in 9th class in the year 1991 and she was her student. She issued date of birth certificate Ex.PJ on the basis of the admission register. PW1 also stated that she was studying in 9th class in Government Girls High School Bhargva Camp, Jalandhar Cantt. She stated in the crossexamination that her father had gone to the school to get her admitted. She also stated that her younger sister was studying in the school of village. She has given her age as 15 years at the time of her giving evidence on 14.1.1993. PW2 stated that she was married about 17 years ago prior to her leading evidence and first child was born to her after three years of her marriage and PW1, the prosecutrix, is her first child. PW6 who is father of the victim girl deposed that his first wife Satya Devi died in the year 1970. Then he married to Raj Kumari in the year 1975 and she gave birth to the first child namely Sunita on 6.3.1977. PW1 also stated that her brother, elder to her is from the other wife of her father who had died. Thus, from the evidence on record, it is clear that the prosecutrix Sunita was only aged about 14 years, six months, at the time of occurrence. The date of birth as entered in the school register is admissible in evidence. It has been held in Mohd. Ikram Hussain v. State of Uttar Pradesh and others, AIR 1964 Supreme Court 1625 that entries in the school register amounted to evidence under the Indian Evidence Act and the entries in the school registers were made ante litem motam. In the instant case, there is no evidence to show that the entries in the school registers are not correct. It is in the evidence of PW6 that he married PW2 in the year 1975 and that PW1 was born to them on 6.3.1977. This evidence of PW6 finds support from the entry in the school record. PW2 also stated that PW1 was her first child and she was born three years after her marriage. This evidence is fully corroborated by the entries in the school register as to the date of birth of P.W.1. I am, therefore, of the opinion that P.W.1 was under the age of 16 years at the time of occurrence.

In view of my foregoing discussion, I hold that the learned Additional Sessions Judge, Jalandhar rightly convicted the accused for the offence under Section 376, IPC and I do not find any grounds warranting interference in the same. Conviction of the accused under Section 376 IPC is, therefore, confirmed.

The accused are between the age of 18 to 22 years at the time of the occurrence. In view of their tender age, I do not think it desirable to keep them in judicial custody for longer period. I accordingly reduce the sentence of imprisonment from ten years to five years. The sentence of fine is confirmed. Subject to the modification in sentence of imprisonment, the appeals are dismissed.

Appeals dismissed.