Back
2005 Supreme(P&H) 308
PUNJAB AND HARYANA HIGH COURT
Nirmal Yadav, J.
Sanjiv Kumar - Appellant
Versus
State of Punjab - Respondent
Criminal Appeal No. 477-SB of 1988.
Decided On : 25 February, 2005
For the Appellant :Mr. G.S. Sawhney, Advocate.
For the Respondent: Mr. H.S. Grewal, DAG, Punjab.
The main legal point established is that the age of the prosecutrix, as determined by the birth certificate and her statement, played a crucial role in establishing the guilt of the accused under Section 376 Indian Penal Code.
Headnote:
conviction - Offence under Section 366 read with Section 34 Indian Penal Code and Section 376 Indian Penal Code - Section 366, Section 34, Section 376
Fact of the Case:
The prosecutrix, a minor, was enticed away and subjected to rape by the accused. The trial court acquitted the accused under Section 366 Indian Penal Code and convicted accused-Sanjiv Kumar under Section 376 Indian Penal Code.
Finding of the Court:
The court found the prosecutrix to be below 16 years of age at the time of the alleged occurrence and held accused-Sanjiv Kumar guilty of rape. The court took a lenient view due to the prosecutrix's possible consent and awarded 3-1/2 years rigorous imprisonment to the accused.
Issues: Age determination of the prosecutrix, consent in the rape, corroboration of the prosecutrix's statement
Ratio Decidendi: The court relied on the birth certificate and the prosecutrix's statement to determine her age. The court held that no corroboration to the prosecutrix's statement was required in such a case, and her statement, though contradictory, could not be entirely disregarded.
Final Decision: The court allowed the appeal of the appellant-accused partly, maintaining the conviction but reducing the sentence to the period already undergone and enhancing the fine. The appeal filed by the State was dismissed.
Nirmal Yadav, J. - Both the abovementioned appeals are directed against the judgment of conviction dated 15.11.1988 and order of sentence of even date passed by the Additional Sessions Judge, Patiala whereby four accused namely, Sanjiv Kumar, Bharat Bhushan, Shashi Khanna and Sharda were sent up for trial for the commission of offence under Section 366 read with Section 34 Indian Penal Code and Sanjiv, accused also for the offence under Section 376 Indian Penal Code. The trial Court after taking into consideration the evidence and facts on record acquitted all the accused of the charge under Section 366 read with Section 34 Indian Penal Code and convicted accused-Sanjiv Kumar under Section 376 Indian Penal Code and sentenced him to rigorous imprisonment for 3-1/2 years and a fine of Rs. 3000/-, in default of payment of fine to further undergo rigorous imprisonment for 1-1/2 years. The State has filed the appeal against the acquittal of all the accused while Sanjiv Kumar, appellant has challenged his conviction and sentence, as mentioned above.
2. The names of the prosecutrix and her family members are not being mentioned herein in order to protect the reputation of the victim and her family.
3. The brief facts as unveiled from the record are that father of the prosecutrix was working as a Manager in the State Bank of Patiala, Khanna Branch. His family was residing at Patiala. He was commuting daily between his house and place of work. His wife was also working as Assistant in the office of District Education Officer at Patiala. The couple had three children, eldest of them was the prosecutrix, aged about 14/15 years and studying in 11th class at the relevant time; younger to her was a son aged about 11 years and youngest child was again a daughter about 7 years old. About two months prior to 14.8.1987 father of the prosecutrix had observed the accused Sanjiv roaming around the street in which house of the complainant was situated. He found him to be a vagabond type of person and checked him from roaming around his house, but he did not desist. On 14.8.1987 when the father and mother of the prosecutrix came back from the irrespective duties, it came to their notice that their eldest daughter had been enticed away by Sanjiv Kumar @ Babbu. Both of them went to the house of the accused to make an enquiry where brother of Sanjiv Kumar, his sister and her husband put them off. However, on enquiry it was found that Sanjiv Kumar was not available at his house. The complainant searched for his daughter and also to trace out any clue upto 21.8.1997 and thereafter, he lodged a report with the police. Accordingly, a case under Section 363 Indian Penal Code was registered on 25.8.1987. On 28.8.1997, the police of Patiala learnt from the police at Jalandhar that daughter of the complainant was in their custody along with Sanjiv Kumar alias Babbu, his brother Bharat Bhushan and his sisters husband Shashi Khanna. The local Police went to Jalandhar and recovered the daughter of the complainant and arrested the accused Sanjiv Kumar along with Bharat Bhushan and Shashi Khanna. After recording the statement of the victim, the police arrested Sharda accused also and after due investigation challan under Sections 367, 366, 376 and 109 Indian Penal Code was filed. The trial Court after taking into consideration the facts and evidence on record, charged all the accused under Section 366 read with Section 34 Indian Penal Code. Besides, accused Sanjiv Kumar was also charged under Section 376 Indian Penal Code.
The prosecution in order to prove its case produced Dr. Renu Aggarwal as PW-1, who examined the prosecutrix on 26.8.1987 at 2.30 P.M. She took vaginal discharge from the person of the prosecutrix in two tests tubes and one swab stick at the time of examination of the prosecutrix and made these into sealed packet No. 1. She had also prepared two slides, each having vaginal smear and made then into sealed packet No. 2. She handed over these
