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2010 Supreme(P&H) 2823
2011(1) Law Herald (P&H) 131
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Arvind Kumar
Crl. Appeal No. 1063-SB of 2002
Rajiv
v.
State of Haryana
{Decided on 05/10/2010}
For the Appellant:Mr. Ashit Malik, Advocate.
For the Respondent: Mr. Rajeev Malhotra, Addl. A.G. Haryana.
IMPORTANT POINT
Rape--Kidnapping--Conviction--Sentence--Award of lesser sentence than minimum prescribed--Though the prosecutrix was less than sixteen years of age, therefore, she could not have given a valid consent yet the prosecutrix had accompanied the appellant from place to place without there being any whisper or murmur on her part, which itself is an adequate and special reason for awarding lesser sentence to the appellant than the minimum prescribed.
Headnote:(A) Indian Penal Code, 1860, Ss.376, 366, 363 & 506--Rape--Kidnapping--Conviction--Sentence--Award of lesser sentence than minimum prescribed--S. 376 provides for imposing minimum sentence of seven years upon an accused found guilty of offence proviso to Section 376(1) gives discretion to the Court to award lesser sentence by recording adequate and special reasons in its judgment--Though the prosecutrix was less than sixteen years of age, therefore, she could not have given a valid consent yet the prosecutrix had accompanied the appellant from place to place without there being any whisper or murmur on her part, which itself is an adequate and special reason for awarding lesser sentence to the appellant than the minimum prescribed--Substantive sentence of imprisonment reduced to the period of three years. (Paras 15, 18 & 19)
(B) Indian Penal Code, 1860, Ss.376, 366, 363 & 506--Rape--Kidnapping--Conviction--Evidence produced on record with regard to the age of the prosecutrix proves her age to be between 14-15 years at the relevant time--Hence, as per law she could not have given any valid consent--Also, that appellant and his co-accused threatened the prosecutrix to with life and forced them to accompany in a jeep and then took them to different places and the intention of the appellant was committing of sexual intercourse with her--Thus, the conviction of the appellant under Sections 363, 366, 506 and 376 IPC warrants no interference. (Para 13)
CASE CITED:
1. State of H.P. v. Mango Ram, 2000(7) SCC 224. (Para 16)
Mr. Arvind Kumar, J.: - The appellant has been held guilty under Sections 376, 366, 363 and 506 IPC by dint of judgment dated 30.4.2002 and vide order dated 8.5.2002 he has been sentenced to undergo rigorous imprisonment for seven years with fine of Rs.500/-; three years with fine of Rs.300/- ; two years along with fine of Rs.200/- and one year respectively. In default of payment of fine further rigorous imprisonment for three months; three months and again two months respectively was awarded on the aforesaid counts. All the sentences were ordered to run concurrently, while his co-accused Jitender @ Johni, who since was found juvenile, was sent to the Juvenile Justice Board for awarding of sentence.
2. The brief fact of the case are that on 7.10.2000 Suresh Kumar and Subhash Chand went to the police station and apprised the police about missing of their daughters respectively as Pooja and Pinki, aged about 14-15 years, who had gone to attend the tuition classes yesterday, but did not return. They also suspected the hand of Rajiv @ Monu and Jitender @ Johni in it and doubted that they have taken away the girls on the false promise of getting marriage.
3. On the basis of statement Ex.PA present case was registered and investigated upon, during course of which it revealed that the girls were noticed with the aforesaid Rajiv and Jitender near Vaishno Devi shrine and were taken back by one Sheshan and Jai Kumar to Karnal along with boys, from where the police arrested both of them and girls, after medical examination, were handed over to their respective parents. Statements of both the girls under Section 164 Cr.P.C. were got recorded and on the basis thereof offence under Section 376 IPC was also added against the appellant. On completion of usual formalities of investigation, final report under Section 173 Cr.P.C. was prepared and forwarded to the Court for trial of the accused.
4. On finding a prima facie case for the commission of offence under Sections 363, 366, 376 and 506 IPC accused Rajiv was charge sheeted while co-accused Jitender was charge sheeted under Sections 363, 366 and 506 IPC, to which they pleaded not guilty and claimed trial.
5. During trial the prosecution examined Sheshan as PW1, complainant Subhash Chand and Suresh Chand as PW2 and PW3 respectively, both the prosecutrix as PW4 and PW5 respectively, Dr. Deepak Parkash as PW6, Const. Maman Ram as PW7, PW8 HC Dharambir, PW9 Dr. Jyoti Shukla and ASI Ajit Singh, the investigating officer as PW10 besides the documentary evidence.
6. On closure of prosecution evidence, the incriminating evidence produced by the prosecution was put to the accused, which were denied by them and they pleaded false implication. According to them both the girls, accompanied them in the Mandli, without the permission of her parents to Vaishno Devi, where the girls tried to separate from the Mandali, upon which they were snubbed by Jai Kumar and Sheshan and they warned the girls not to follow both the boys and on reaching back Jai Kumar and Sheshan made complaint about their behaviour and attitude towards the girl and annoyed with the same the parents of the girls implicated them falsely in this case. They also pleaded that neither they kidnapped the girls nor any sexual act was done by them with the girls.
7. In defence the accused examined Surinder Kumar as DW1.
8. On conclusion of trial, the appellant was held guilty under Sections 363, 366, 376 and 506 IPC and sentenced in the manner indicated above. The learned trial Court, on the basis of evidence on record, came to the conclusion that the prosecutrix were less than 16 years of age and hence could not have given any valid consent.
9. Dis-satisfied with the same, present appeal has been preferred by the appellant Rajiv @ Monu.
10. I have heard learned counsel for the parties and with their assistance have gone through the records of the case.
11. It has been strenuously argued by learned counsel for the appellant that the ev
