Rajesh vs State of Haryana

T.P.S. Mann, J.—This appeal is directed against the judgment and order dated 26/27.7.2001 passed by Additional Sessions Judge, Karnal whereby the Appellant was convicted for the offences under Sections 363, 366 and 376 IPC and sentenced, as mentioned below:

i) Rigorous imprisonment for four years and to pay a fine of Rs. 1,000/- u/s 363 IPC and in default of payment of fine, to undergo further simple imprisonment for one month;

ii) Rigorous imprisonment for five years and to pay a fine of Rs. 2,000/- u/s 366 IPC and in default of payment of fine, to undergo further simple imprisonment for two months; and

iii) Rigorous imprisonment for seven years and to pay a fine of Rs. 2,000/- u/s 376 IPC and in default of payment of fine, to undergo further simple imprisonment for two months.

All the sentences were ordered to run concurrently.

According to the prosecution, complainant Randip Singh''s sister, aged 161/2 years, here-in-after referred to as ''the prosecutrix'', went alongwith her brothers and sisters to school on 16.10.1998. She accompanied them upto petrol pump situated in Sector 12, Urban Estate, Karnal but, thereafter, did not reach the school as she had remained behind. She was a student of 10th class. According to complainant Randip Singh, the Appellant, who was employed in Mehla Laboratory, Sector 13, used to visit the prosecutrix in the morning and harass her. On 16.10.1998, he was present near the laboratory in the morning and was instrumental in abducting the prosecutrix. The complainant had been searching for his sister at his own level. However, on 17.10.1998, he appeared before the police and submitted complaint Ex.PL on the basis of which, FIR 976 dated 17.10.1998 (Ex.PE) under Sections 363 and 366 IPC was registered against the Appellant at Police Station City, Karnal.

Further case of the prosecution was that on 24.10.1998 SI Ishwar Singh was present in the Police Station where Surinder Singh and Kuldip Singh produced the photostat copy of the school leaving certificate of the prosecutrix, which was taken into possession. On the same day, he received a registered letter in the Police Station which contained photostat copy of application signed by the Appellant and the prosecutrix and addressed to Superintendent of Police, Karnal wherein it was stated that they had got married. The Investigating Officer, thereafter, visited Chandigarh in connection with the investigation of the case and contacted Constable Rajeshwar, posted in Industrial Area, Chandigarh as he was related to the Appellant. Constable Rajeshwar informed the Investigating Officer that the Appellant was in village Jatheri. The Investigating Officer then accompanied Constable Rajeshwar to village Jatheri where the latter assured him that he will produce the Appellant and the prosecutrix in the Police Station. Constable Rajeshwar produced the prosecutrix in Police Station, Sector-13, Karnal on 20.11.1998. On the same day, the Appellant was also produced in the Court after being medically examined. As per the directions of the Court, the prosecutrix was handed over to her parents after being subjected to medico-legal examination. Copy of birth certificate Ex.PK of the prosecutrix was obtained and after recording the statement of one Raghbir Singh Sharma, the Investigating Officer concluded that the copy of the birth certificate Ex.PK of the prosecutrix was a bogus document and the actual date of birth certificate of Mamtesh, another sister of the prosecutrix, did not contain any alias name.

After completion of investigation, the Appellant was challaned. Following commitment of the case, the Appellant was charged for the offences under Sections 363, 366 and 376 IPC, to which he pleaded not guilty and claimed trial.

As per the testimony of PW5 Dr. Amarjit Wadhwa, who had medico-legally examined the prosecutrix, there was no injury on the person of the prosecutrix and she could walk normally. She was a moderately built girl whose menarche was three years back. Secondary sex characters were well developed. Pubic and axiliary hair were present. On local examination, there was no injury on the perineum or inner parts of thigh. Labia majora and minora were healthy. Pubic mont was fully developed. Vagina admitted two fingers easily. Hymen was found absent with old healed tags present.

No further discussion on the merits of the case may be required in the present case as learned Counsel for the Appellant has not challenged the conviction of the Appellant for the various offences, as recorded by the trial Court. However, he has submitted that as per the prosecution itself, the prosecutrix was 161/2 years of age. The prosecutrix had married the Appellant on 18.10.1998. On 21.10.1998, the prosecutrix filed an injunction suit against her parents. On 2.11.1998, she filed a petition u/s 9 of the Hindu Marriage Act as in the meantime, the Appellant had left her and gone back to his parents. The Appellant returned to the matrimonial fold and both of them appeared before the police on 20.11.1998. Learned Counsel for the Appellant has drawn the attention of the Court to letters mark B1 to B17, copy of marriage certificate mark B18 besides, photographs Exs.DA, DB, DC and DD to show that the prosecutrix was in love with the Appellant and both of them stayed in the company of each other for quite some time and in that interregnum, they got married also which showed that the prosecutrix had been a consenting party throughout, although after her recovery by the police, she did state that she had been enticed away by the Appellant by extending threats to her. It has further been submitted that the Appellant has already undergone a period of about one year and eight months and under these circumstances the remaining sentence of imprisonment of the Appellant be set aside.

Learned State counsel has opposed the stand taken on behalf of the Appellant by submitting that the prosecutrix had not willingly accompanied the Appellant. Rather, she had been threatened by the Appellant and for that reason, she had no other option but to follow him from place to place. Therefore, the Appellant does not deserve any concession in the matter of sentence. However, learned State counsel has produced the custody certificate as per which the Appellant has already undergone an actual sentence of one year seven months and thirteen days.

Admittedly, the prosecutrix was more then 161/2 of age on the day of the occurrence. According to the medical evidence, there was no injury found on her person after she was recovered from the custody of the Appellant. She had accompanied him from place to place. In that period, they also got themselves photographed while performing marriage ceremony. Even before getting married, the prosecutrix seemed to have been writing letters to the Appellant at regular intervals expressing her love for him. These factors can be considered as adequate and special reasons in reducing the sentence of imprisonment of the Appellant to less than the minimum prescribed for the offence u/s 376 IPC.

Resultantly, the conviction of the Appellant for the various offences, as recorded by the trial Court, is maintained. His substantive sentences of imprisonment are reduced to that already undergone by him. The sentences of fine alongwith their default clauses are maintained.

But for the modification in the quantum of sentences of imprisonment, as indicated above, the appeal fails and is, therefore, dismissed.