Judgment :-

Dr. B.S. Chauhan, J.

1. This appeal has been preferred against the judgment and order dated 21.8.2003 of the High Court of Punjab and Haryana at Chandigarh passed in Criminal Appeal No.341-SB of 1988 by which the High Court has dismissed the appeal against the judgment and order of Additional Sessions Judge, Faridabad dated 12.8.1988 and 16.8.1988 convicting and sentencing the appellant to undergo R.I. for seven years and to pay a fine of Rs.500/-, or else to further undergo R.I. for six months, under Section 376 IPC and R.I. for five years and a fine of Rs.500/-, or in default to further undergo R.I. for six months under Section 366 IPC. However, it was directed that both the substantive sentences of imprisonment shall run concurrently.

2. The facts and circumstances giving rise to this appeal are that the prosecutrix Geeta was present at her house in village Dayalpur, on the morning of 5.6.1986 when Krishna, wife of Fateh Chand (appellant herein), came there and asked her to visit Ballabgarh as her mother had met with an accident. The prosecutrix boarded a tempo from her village and came to Ballabgarh. When she got down from the tempo at Ballabgarh, Fateh Chand - appellant who had also traveled in the same very vehicle from Dayalpur to that place, told Geeta that her mother was lying in the hospital at Ballabgarh and that he could assist her in taking her to the hospital. Appellant arranged for a car and made Geeta to sit in the car. Geeta was given an intoxicant by the appellant in lemon water before sitting in the car. Prosecutrix - Geeta was taken to the house of Shanti Devi, mother-in-law of the appellant at Jaipur where she was forcibly subjected to sexual intercourse by the appellant. Geeta was left at the house of Shanti Devi by the appellant where she was sexually abused and coerced to indulge in flesh trade. Appellant and his wife Krishna again visited the house of Shanti Devi at Jaipur after few weeks and advised the prosecutrix not to return to her house. She was informed that a dead body of some young girl was recovered and it was identified as that of Geeta. Thus, if she returned home, her parents would be in difficulty. The case which was registered by the parents of Geeta under Section 364 IPC was filed as untraced in the month of October, 1987. On 13.11.1987, Geeta returned to her house. She was produced before the police and investigation again started. Geeta was medically examined by Dr. Savita Ranjan on 14.11.1987. She was also put to radiological test on 17.11.1987 to determine her age. Fateh Chand – appellant was arrested on 17.11.1987. After completion of investigation, challan was filed against the appellant and he was charged under Sections 366/376 IPC to which he pleaded not guilty and claimed trial.

3. Before the trial court basically the question arose as to what was the age of the prosecutrix and whether the appellant was guilty of the aforesaid offences.

4. On the issue of the age of the prosecutrix, the prosecution examined, the prosecutrix Geeta PW.3, her mother Satya PW.4, her father Jagdish PW.6 and Dr. Rajesh Gupta PW2, who examined the prosecutrix radiologically on 17.11.1987. All of them deposed and given cogent explanation to the effect that the prosecutrix was below 16 years of age at the time of incident. Dr. Savita Ranjan PW1, who examined the prosecutrix on 17.11.1987 opined that the prosecutrix was habitual to sexual intercourse. After considering the evidence, the trial court came to the conclusion that it was a case of having peculiar features as the prosecutrix remained under constant threat for a long time and she had been subjected not only to sexual harassment by the appellant but had been forced to indulge in flesh trade. She had been taken away by the appellant fraudulently. The trial court found the charge against the appellant proved. Thus, he was convicted and awarded sentences as aforesaid.

5. Before the High Court, in appeal, same issues were raised and the Hi