Pappu vs State of Punjab

K.P.S. Sandhu, J. (Oral)

Papu appellant has by way of this appeal, challenged his conviction and sentence of three years R.I. and fine Rs. 1000/ in default R.I. for six months under section 376 I.P.C. by the learned Additional Session Judge, Amritsar vide his order dated 9.3.1984. Coaccused of the appellant namely Bhalla could not be tried along as he absconded and was declared proclaimed offender.

Shinder Kaur prosecutrix PW 5 was married to one Sammi of Tarn Taran, about one and a quarter years before the present occurrence. However, at the time of the occurrence she had gone to her parents at Amritsar. On 4.7.1983 at about 3.30 P.M. she went to answer the call of nature in the public latrines in B block near the railway quarters. The appellant and his coaccused were earlier known to the prosecutrix. The appellant and his coaccused at the point of knife committed rape upon the prosecutrix. The matter could not be reported on the day of the occurrence since there was a talk of a compromise between the parents of the prosecutrix and the parents of the appellant. However, the first information report, on the basis of the statement of the prosecutrix was recorded at the Police Station, DDivision, Amritsar on 571983 at 2.55 P.M. The FIR is Exhibit PF/2. The prosecutrix was medically examined by Dr. Pushpa Goyal PW1 on 6.7.1983 at 3.30 P.M. Following is the report of her medical examination:

"xx xx xx

secondary sex characters.

xx xx xx On P/V examination there was no matting of public hair no blood or semen stain was there xx xx xx Hymen was torn. Crauncle myritiformis were present. Vagina admitted two fingers easily. xx xx xx Uterus retroverted. xx xx No. bleeding per vagina. No tear in vagine xx xx. "

In the opinion of the doctor the prosecutrix was habitual to sexual intercourse. The appellant was arrested and was also medically examined by Dr Manjit Singh Bal PW2 on 1871983 at 11.15 A.M. who found him fit to perform sexual intercourse. After the due investigation, the appellant was sent up for trial.

When examined, under section 313 Cr.P.C. the appellant denied the prosecution allegations and stated that the case was false and that he has been implicated due to party faction. He did not adduce any evidence in defence.

The prosecution, apart from Dr. Pushpa Goyal PW 1 and Dr. Manjit Singh Bal PW2, examined Shri Iqbal Singh, Junior Statistical No. sologist PW3. He proved the birth entry Exhibit PG. PW4 Shri Rishi Ram Draftsman prepared the site plan Exhibit PE. Shinder Kaur prosecutrix PW 5 gave the eyewitness account of the occurrence. Motia PW6 reached the spot immediately after the occurrence and saw the appellant and his coaccused running from the place of occurrence. PW 7 Bimla, mother of prosecutrix was informed of the occurrence by the prosecutrix herself. She further stated that the age of prosecutrix was about 14 years at the time of the occurrence PW8 Charan Singh H.C. recorded the statement of the prosecutrix which is Exhibit PF. He also got the prosecutrix medically examined and took into possession the clothes of the prosecutrix which are Exhibits P1 to P3. He also took into possession the birth certificate Exhibit PG produced by Garib Dass father of the porsecutrix. PW9 Amrik Singh SI recorded the FIR Exhibit PF/2. He partly investigated the case. S.I. Gurdial Singh PW10 also partly investigated the case and recorded the statements of some of the witnesses. After tendering in evidence the report of Chemical Examiner, Ex. P.B. the prosecution closed its evidence.

Mr. Ram Singh, learned counsel for the appellant has contended at the outset that although the appellant has not pleaded consent in his statement, under section 313 Cr.P.C., but the circumstances appearing in the prosecution evidence suggest that in all probability it is the case of consent. The prosecutrix was admitted that there is a flush latrine in her house, but strangely enough she goes to answer the call of nature in the public latrines which are half a mile away from her house. The appellant was admittedly known to her earlier. Although she has stated in her examinationinchief that she received bruses and scratches on her face and chest while struggling but according to Dr. Pushpa Goyal PW1 who medically examined the prosecutrix, no such injury was found on her person. The delay of 24 hours in lodging the FIR is suggestive of the fact that the story has been cooked up by the prosecution witnesses. she was subjected to sexual intercourse by the appellant and his cooccused while she was in standing position. This also appears to be slightly improbable. Keeping in view these facts it appears more probable that it is a case of consent. However, it sands proved beyond doubt that the birth certificate Exhibit G.G. relates to the prosecutrix. She and her mother both admitted in crossexamination that the prosecutrix has two other sisters one is elder to her by one and half years while second one was only five months old at the time of occurrence. Certainly this document Exhibit PG relates to prosecutrix. According to this certificate the age of the prosecutrix at the time of the occurrence is certainly less than 16 years. So, the appellant cannot in this situation be absolved from his criminal liability. However, keeping in view the fact that he is aged 18 years only and the prosecutrix is a married girl, I think ends of justice will be amply met if the sentence of the appellant is reduced to one already undergone. However, the sentence of fine and sentence in lieu thereof would remain undisturbed. Fine, if recorded, would be paid to the prosecutrix. But for this modification, the appeal fails and is hereby dismissed.