IMPORTANT POINT
Rape and consensual sex distinguished. Intention of accused to deceive from the very beginning essential for charge of deceit/rape.

JUDGMENT

Dr. B.S. Chauhan, J.

1. This appeal has been preferred against the impugned judgment and order dated 28.1.2010, passed by the Punjab & Haryana High Court at Chandigarh in CRA No. 960-SB of 1998 by way of which, the High Court has affirmed the judgment and order of the Additional Sessions Judge, Karnal dated 13.11.1998 passed in Sessions Case No. 7 of 1995, by way of which the appellant stood convicted for the offences punishable under Sections 365 and 376 of the Indian Penal Code, 1860 (hereinafter referred to as the `IPC’) and sentenced to undergo rigorous imprisonment for a period of three years, alongwith a fine of Rs.2,000/- under Section 365 IPC; and rigorous imprisonment for a period of seven years, alongwith a fine of Rs.5,000/- under Section 376 IPC. Both the sentences were ordered to run concurrently.

2. Facts and circumstances giving rise to this appeal are that:

A. The appellant and Geeta, prosecutrix, 19 years of age, student of 10+2 in Government Girls Senior Secondary School, Karnal, had known each other for some time. Appellant had been meeting her in front of her school in an attempt to develop intimate relations with her. On 10.5.1995, the appellant induced her to go with him to Kurukshetra, to get married and she agreed. En route Kurukshetra from Karnal, the appellant took her to Karna lake (Karnal), and had sexual intercourse with her against her wishes, behind bushes. Thereafter, the appellant took her to Kurukshetra, stayed with his relatives for 3-4 days and committed rape upon her.

B. The prosecutrix was thrown out after 4 days by the appellant. She then went to one of the hostels in Kurukshetra University, and stayed there for a few days. The warden of the hostel became suspicious and thus, questioned the prosecutrix. The prosecutrix thus narrated the incident to the warden, who informed her father. Meanwhile, the prosecutrix left the hostel and went to a temple, where she once again met the appellant. Here, the appellant convinced her to accompany him to Ambala to get married. When they reached the bus stand, they found her father present there alongwith the police. The appellant was apprehended.

C. Baldev Raj Soni, father of the prosecutrix, had lodged a complaint on 16.5.1995 under Sections 365 and 366 IPC, which was later converted to one under Sections 365 and 376 IPC.

D. The prosecutrix was medically examined on 17.5.1995. Her statement was recorded by the Magistrate under Section 164 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the `Cr.P.C.’) on 20.5.1995. After completing the investigation, a chargesheet was filed against the appellant, and in view of the material on record, charges under Sections 365 and 376 IPC were framed against him by the Sessions Court, vide order dated 3.5.1996.

E. The prosecution examined 13 witnesses in support of its case and in view thereof, the Sessions Court convicted the appellant under Sections 365/376 IPC, vide judgment and order dated 13.11.1998 and awarded him the sentence for the said charges as has been referred to hereinabove.

F. Aggrieved, the appellant preferred Criminal Appeal No. 960-SB of 1998 (D & M) in the High Court of Punjab and Haryana at Chandigarh, which stood dismissed by the impugned judgment and order dated 18.11.1998. Hence, this appeal.

3. None present for the appellant. In view thereof, the Court has examined the material on record and gone through both the impugned judgments with the help of Shri Kamal Mohan Gupta, learned counsel appearing on behalf of the State.

4. The statement of the prosecutrix (PW.7) was recorded under Section 164 Cr.P.C. on 20.5.1995, wherein she has clearly stated that she had gone alongwith the appellant to get married and for such purpose, she had also obtained a certificate from her school as proof of her age. On the said date i.e. 10.5.1995, as the appellant had been unable to reach the pre-decided place, the prosecutrix had telephoned him on the number provided by him. Sh