Shahbeg vs State of Punjab

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

Appellant Shahbega has been convicted and sentenced to three years rigorous imprisonment and a fine of Rs. 250/, in default of payment of fine to further undergo rigorous imprisonment for three months, under section 452 of the Indian Penal Code and to six years rigorous imprisonment and a fine of Rs. 500/, in default of payment of fine to further undergo rigorous imprisonment for six months, under section 376 of the Indian Penal Code, by the learned trial Judge vide his order dated 21.4.1981.

Balwinder Kaur, P.W. prosecutrix, aged about 15 years was living in his father''s house in village Chuslawar. On 16101980 while her father had gone out to the fields, at about 12 noon, the appellant entered the house of prosecutrix gaged for mouth, took her into the room, threw her on the cot and after untying the string of her Salwar, committed rape on her without her consert and against he will. Suddenly, Gulzari Lal, father of the prosecutrix, came to the house and while trying to capture the appellant, he was thrown on the ground by the appellant who thus made his escape good. Gulzari Lal lodged the report with the police about the occurrence at Police Station Patti on the same day at 2.30 P.M. A.S.I. Rishi Dev, P.W. 7, visited the spot, took into possession the salwar of Balwinder Kaur, prosecutrix and got her medically examined from Dr. Asha Gupta, P.W. 1, who found the following injuries on her person :

Bluish contusion 5 cm X 3 cm on the outer the aspect of right upper arm in the middle.

Bluish contusion 6 cm X 3 cm on the lower part of the back on the right side 11 cm away from the iliac crest.

The appellant was arrested by the Police and he was got medically examined from Dr. A.K. Talwar, P.W. 2, who was found him fit to perform sexual intercourse.

When examined under section 313 of the Code of Criminal Procedure, the appellant took up the plea of denial simpliciter and did not produce any defence.

The prosecution in order to connect the appellant with the offence, examined Dr. Asha Gupta, P.W. 1, who examined the prosecutrix and opined that apart from minor injuries on her person, her hymen had on old tear. P.W. 2, is Dr. A.K. Talwar, whose evidence has already been discussed in the earlier part of the judgment. Dr. Satish Kumar Dhall, P.W. 3 examined the prosecutrix in respect of her age. He performed ossification test and come to the conclusion that her age was about 141/2 years. P.W. 4 Narinder Pal is the Statistical Assistant of the office of Civil Surgeon, Amritsar, who proved the birth entry of the prosecutrix where she was shown as Jogindro daughter of Gulzari. According to this entry, her date of birth is 18.11.1965. P.W. 5 Balwinder Kaur, prosecutrix narrated P.W. 6 the occurrence was reproduced in the earlier part of the judgment. Gulzari, the father of the prosecutrix who supported the version put forth by the prosecutrix and proved her statement made before, A.S.I. Irish Dev, P.W. 7, who was the investigating officer. He also arrested the accusedappellant. Swabs sent to the Chemical Examiner by Dr. Asha Gupta, P.W. 1 were found to be semen stained, vide his report Exhibit PH.

The first point, for consideration, in this case would be the age of the prosecutrix. According to the evidence of the doctor who performed the ossification test, the age of the prosecutrix was about 15 years. Mr. A. C. Jain, learned counsel for the appellant has very strenuously argued that the birth entry Exhibit PD does not relate to the prosecutrx since the came given in the birth entry was Jogindero 131 But I find from the statement of the father of the prosecutrix that her name was entered at the time of making the birth entry as Joginder and later on her name was charged to Balwinder Kaur. No question or suggestion was put to him that he had some other daughter living or dead to him this entry relates So I am not inclined to accept this argument raised by the learned counsel and hold that this entry relates to the prosecutrix. According to it the age of prosecutrix at the time of the commission of the offence by the appellant was 15 years.

Mr. Jain, learned counsel for the appellant has further argued that although the appellant has not taken up the plea or consent, but if from the circumstances appearing in the prosecution, it can be inferred that it was a consent case then the Court can come to such a finding. Mr. Bhanot learned counsel for the State has no quarrel with this proposition of law. To show that it was a, consent case, the learned counsel for the appellant has argued that according the evidence of lady Dr. Asha Gupta, P.W. 1, the hymen of the prosecutrix had an old tear which shows that she was already used to sexual intercourse. Secondly be has pointed out that if it was not a consent case there a young boy of 1617 years would not have dared to go to the house of the prosecutrix at day time when the house is located in a thickly populated area. The third argument raised by the learned counsel for the appellant is that the appellant did not bolt door from inside. That is also suggestive of the fact that it was a consent case. Another important factor which has been brought to my notice is that the injuries which were found on the person of the prosecutrix were 2/3 days old, according to the opinion of the doctor who examined her, while according to the prosecution she was examined by the doctor on the very day of the occurrence. So his argument is that these injuries are not connected anywhere with this occurrence and had the appellant from used force against the prosecutrix then there must have been some marks of violence on the prosecutrix. I am inclined to agree with this submission made by the learned counsel. It appears that this prosecutrix and the appellant being young people, were having an affair and while they were enjoying the father of the prosecutrix stepped in ultimately the appellant was involved in a false case.

Even though it is held that it possibly was a consent case. then even in view of the age of the prosecutrix the ingredients or section 376 of the Indian Penal Code would stand proved. Therefore, the conviction of the appellant has to be maintained under both the counts. But in my view, in this situation, the sentence awarded to him under both the counts is too excessive. Consequently, I reduce the sentence of the appellant from three years to one year under section 452 of the Indian Penal Code and from six years to three years under section 376 of the Indian Penal Code. However, the fine imposed by the trial Judge under both the counts is maintained. Both the sentences, of course would run concurrently.

With the above said modification, this appeal fails and is hereby dismissed.