The importance of the prosecutrix's testimony and the presumption of lack of consent in cases of sexual assault.

JUDGMENT

R.L. Anand, J. - Shri Sunil son of Shri Lakhmi Chand, has filed the present criminal appeal and it has been directed against the judgment dated 19.1.2002 and order dated 22.1.2002, passed by the Court of Additional Session Judge, Bhiwani who convicted the appellant under Sections 363, 366 and 376 of the Indian Penal Code and sentenced him to life imprisonment and to pay a fine of Rs. 1000/- under Section 376 Indian Penal Code. In default of payment of fine he was directed to undergo R.I. for two months. The appellant was sentenced to undergo R.I. for a period of 4 years and to pay a fine of Rs. 1000/- under Section 363 Indian Penal Code. In default of payment of fine he was directed to undergo R.I. for two months. He was further sentenced to undergo six years and to pay a fine of Rs. 1000/- under Section 366 Indian Penal Code. In default of payment of fine he was ordered to undergo further R.I. two months. The learned trial Court also gave the direction that all the sentences imposed upon the appellant shall run concurrently.

2. The appellant Shri Sunil, was charge-sheeted under Sections 363/366/376 Indian Penal Code on the allegations that on 23.4.1997, in the area of Siwani, he kidnapped Ms. Shanti alias Sunder, a minor female under the age of 18 years from the lawful guardianship of her father Shri Hira Ram and thereby committed an offence punishable under Section 363 Indian Penal Code. The second charge against the appellant was that he allegedly induced Ms. Shanti alias Sunder, the minor girl, with such intention that she may be forced to illicit intercourse and thereby committed an offence punishable under Section 366 Indian Penal Code. The third charge against the accused-appellant was that he allegedly committed rape upon Shanti alias Sunder, a minor girl, without her will or consent and thereby committed an offence punishable under Section 376 Indian Penal Code.

3. The F.I.R. in this case was lodged by Shri Hira Ram, deceased, father of the prosecutrix who made statement before S.I./SHO, Police-Station, Siwani when the Investigating Officer along with policy-party, was patrolling and was checking the crimes near the B.D.O. Block, Siwani. The complaint Shri Hira Ram met the Investigating Officer and made a statement to the effect that he was a resident of Ward No. 12, Siwani town and does the work of taking contract of dead cattle at Siwani. He had 7 daughters and 3 sons. Out of them, Maya is the eldest daughter and then Jamna and thereafter, Munni, then Chhotti Bai, then Om Parkash and thereafter Ram Bhateri. Jagdish is younger to Bhateri. Krishna is younger to Jagdish. After the birth of Krishna, Ram Chander was born and the youngest child in the family is Sunder prosecutrix. He further stated that his six elder daughters and two elder sons are married. Ram Chander younger son was aged about 16/17 years and Ms Sunder younger daughter was about 14/14-1/2 years and she was unmarried. He further stated that all the married daughters usually visit his house. His sons and other members of the family are residing in one house jointly. During the days of occurrence, due to the harvesting season he and his wife Darka, his sons Om Parkash and Jagdish Chander and grand-daughter had gone to village Talwandi Rana Police-Station, Sadar, Hisar from 21.4.1997 for harvesting crops. His younger daughter Sunder, the wife of his elder son Om Parkash, namely Parwati and wife of Jagdish namely Krishna were left in the house to look after the same. Yesterday i.e. on 23.4.1997 at about 3/4 P.M. he along with family members, was working in the field at village Talwandi Rana when Bijinder Singh son of Asa Ram, resident of Siwani, who is friend of his son Jagdish and treats him like brother, had informed that his daughter Sunder had been missing since morning. On receipt of this information, he along with other members of the family reached the house at Siwani. On inquiring Parwati wife of Om Parkash and Krishna wife of Jagdish told h