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2008 Supreme(P&H) 1291
PUNJAB AND HARYANA HIGH COURT
Vinod K. Sharma, J.
Kulwant Singh - Appellant
Versus
State of Haryana - Respondent
Crl. Appeal No. 112-SB of 1997.
Decided On : 31 July, 2008
For the Appellant :Ms. Baljit Mann, Advocate.
For the Respondent: Mr. K.S. Pannu, AAG, Punjab.
The importance of corroborative evidence and circumstantial evidence in maintaining a conviction under section 376 of the Indian Penal Code.
Headnote:
Indian Penal Code - Conviction and Sentence - Sections 366/376 - The court discussed the age of the prosecutrix, the evidence of consent, and the importance of circumstantial evidence in maintaining a conviction under section 376 of the Indian Penal Code.
Fact of the Case:
The appellant was convicted and sentenced for an offence under sections 366/376 of the Indian Penal Code based on the prosecution's case of abduction and rape of a minor girl.
Finding of the Court:
The court found that the age of the prosecutrix was more than 18 years based on the birth certificate produced as evidence. It also concluded that the evidence on record indicated that the prosecutrix was a consenting party and her statement regarding rape was not supported by other evidence or circumstantial evidence.
Issues: The issues revolved around the age of the prosecutrix and the evidence of consent in the alleged offence under sections 366/376 of the Indian Penal Code.
Ratio Decidendi: The court held that the birth certificate showing the prosecutrix's age to be more than 18 years prevailed over other evidence. It also emphasized the importance of circumstantial evidence in maintaining a conviction under section 376 of the Indian Penal Code.
Final Decision: The appeal was allowed, the conviction and sentence were set aside, and the appellant was acquitted of the charge.
Vinod K. Sharma, J. - This appeal is directed against the conviction and sentence awarded to the appellant by the learned Sessions Judge, Kurukshetra for an offence under sections 366/376 of the Indian Penal Code registered vide FIR No. 12 dated 9.4.1996 at Police Station, Babain.
2. The prosecution story is that FIR Ex.PC/2 was registered on an application Ex.PC moved by Ajmer Singh to the Inspector Sher Singh wherein it was stated that he is resident of village Mahuwa Kheri. His daughter Sheela Devi aged about 14-15 years has been enticed away by Kulwant Singh son of Jasmer Singh resident of Indira Awas Colony, Mahuwa Kheri at about 5 PM on 8.4.1996 i.e. a day earlier to lodging of the FIR. In the application allegations were also made against Jasmer Singh, father of accused Kulwant Singh to the effect that they were also hand in glow in kidnapping the minor daughter of the complainant. Allegations were also made against Rulia Ram grand-father, Sohan Lal brother and Yodha Bai and Kela Devi, mother of Kulwant Singh. After investigation was completed, the appellant was sent up for trial under sections 363/366/376 Indian Penal Code.
3. The appellant was thereafter charged for an offence under sections 366/376 Indian Penal Code to which he pleaded not guilty and claimed trial.
4. In support of its case, the prosecution examined PW 1 Dr. Bawa Singh, PW 2 Ajmer Singh, PW 3 Sheela Devi, PW 4 Kamla Devi, PW 5 Surinder Kumar, PW 6 Mukesh Kumar, PW 7 Dr.(Mrs.) Geeta Suri, PW 8 Sub Inspector Sher Singh, PW 9 ASI Piara Singh.
5. Naresh Kumar, Mohinder Singh and Hakam Singh were given up as having been won over by the accused and Pala Ram, constable Pala Ram, Rai Singh, Sohan Lal, Kishori Lal, ASI Jai Singh, ASI Nripjeet Singh and Shri Jagdeep Jain, JMIC, Kurukshetra were given up as unnecessary. Affidavits of constable Sat Pal, HC Des Raj, lady constable Rani, along with affidavit of HC Shiv Charan were also placed on record and prosecution evidence was closed.
6. Accused in his statement under section 313 Criminal Procedure Code took a stand that Sheela Devi prosecutrix was never forced by him to accompany him and as a matter of fact they had love affair with each other and she of her own accord with her free consent accompanied him from her house with a mutual agreement between him and the prosecutrix. It was also the stand of the accused that the prosecutrix even resisted an attempt of PW 5 Surinder Kumar to leave her at her residence at village Mahuwa Kheri. Stand was also taken that prosecutrix was taken from her residence to Ludhiana with the permission of her father and mother. Accused also claimed that he had committed sexual intercourse with the prosecutrix of her own accord when she consented to have sexual intercourse with him. The stand was also taken that the prosecutrix was not willing to leave Ludhiana and she accompanied constable Pala Ram and Hakam Singh etc. only when she was told that her parents had agreed to marry her with him.
In his defence, accused appellant also examined DW 1 Gobind Ram, DW 2 Gopal Krishan and DW 3 Mohinder Singh and also tendered in evidence report of hand writing expert Ex.DD, a photo copy of letter mark Ex.D.1 and closed his defence evidence.
7. Learned Sessions Judge, Kurukshetra came to the conclusion that age of the prosecutrix was less than 16 years. Evidence led by the prosecutrix was also believed and consequently the appellant stands convicted under section 366/376 Indian Penal Code. The appellant has been sentenced to Undergo RI for a period of 5 years besides a fine of Rs. 250/- and in default to undergo RI for a period of one month for an offence under section 366 Indian Penal Code and to undergo RI for a period of 7 years besides the fine of Rs. 500/and in default to undergo R.I. for a period of 2 months for an offence under section 376 Indian Penal Code.
8. Ms. Kiran Bala Jain, learned counsel appearing on behalf of the appellant has challenged the findings recorded by the
