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2006 DIGILAW 134 (PNJ)

Ram Kumar v. State Of Punjab

2006-01-17

M.M.AGGARWAL

body2006
Judgment M.M.Aggarwal, J. 1. This judgment shall dispose of two appeals, one filed by Ram Kumar and other filed by Joginder Pal and Navinder Singh against judgment/order dated 9.10.2002 and 12.10.2002 passed by Additional Sessions Judge, Barnala. Vide that judgment, accused-appellant Ram Kumar was convicted for the offence under Sections 376/366-A/363 IPC whereas accused-appellants Joginder Pal and Navinder Singh had been convicted for the offence under Sections 366-A/363 IPC. For the offence under Section 376 IPC, accused- appellant Ram Kumar was sentenced to undergo RI for ten years and to pay a fine of Rs. 1,000/-, in default of payment of fine, he was to undergo RI for one month, for the offence under Section 366-A IPC, he was sentenced to undergo RI for seven years and to pay a fine of Rs. 1,000/-, in default of payment of fine, he was to undergo RI for one month and for the offence under Section 363 IPC, he was sentenced to undergo RI for four years and to pay a fine of Rs. 5,000/-, in default of payment of fine, he was to undergo RI for one month. On the other hand, accused-appellants Joginder Pal and Navinder Singh were sentenced to undergo RI for seven years and to pay a fine of Rs. 1,000/-, in default of payment of fine, they were to undergo RI for one month each for the offence under Section 366-A IPC and to undergo RI for four years and to pay a fine of Rs. 500/-, in default of payment of fine, they were to undergo RI for one month for the offence under Section 363 IPC. 2. Prosecution case against the accused-appellants is that on the night of 17/18.1.2001, Shilpa, a girl aged about 13 and half years was kidnapped by the accused-appellants with intention to force her to have illicit relations with Ram Kumar. Then Ram Kumar had committed rape on her. Case against the accused was registered at the instance of Om Parkash, uncle of Shilpa minor girl for the offence under Sections 363/366-A/376/120-B IPC. Then Shilpa was recovered on 20.1.2001. She was sent for medical examination. Accused-appellants were arrested and then they had been sent for trial. Then Ram Kumar had committed rape on her. Case against the accused was registered at the instance of Om Parkash, uncle of Shilpa minor girl for the offence under Sections 363/366-A/376/120-B IPC. Then Shilpa was recovered on 20.1.2001. She was sent for medical examination. Accused-appellants were arrested and then they had been sent for trial. After trial, case for the offence under Sections 376/366-A/363 IPC was found to be proved as against accused-appellant Ram Kumar whereas case for the offence under Sections 366- A/363 IPC was found to be proved as against other accused. They were accordingly convicted and sentenced as aforesaid. 3. Counsel for accused-appellants Joginder Pal and Navinder Singh had argued that these appellants had played no role. From the statement of Shilpa prosecutrix herself, it was pointed out that Shilpa had love affairs with Ram Kumar and had gone of her own to the room of the accused. It was argued that these two accused namely Joginder Pal and Navinder Singh did not accompany Shilpa anywhere; that as per her statement only Ram Kumar had committed rape on her and took her to Bathinda. 4. Counsel for the accused-appellant Ram Kumar had argued that during medical examination, no external injury was found on the person of Shilpa. Her vagine admitted two fingers, which means she was habitual to sexual intercourse. 5. As per statement of Shilpa PW-2, she was student of 6th Class. Joginder Pal, Navinder Singh and Ram Kumar were residing in front of their house at Barnala in a rented accommodation. They were working in a printing press. About 15-20 days before the occurrence, accused-appellant Ram Kumar had called her. He told her that he loved her and she should also love him and at that time other accused-appellants were present. They were saying that they would get her marriage contracted with Ram Kumar. They had said that she should come in the night of 17/18.1.2001. Then on that night, she had gone to the room of Ram Kumar, where Ram Kumar, Joginder Pal and Navinder Singh were present. Then Ram Kumar sent Joginder Pal and Navinder Singh to arrange money. Thereafter Ram Kumar had committed sexual intercourse with her. After that Joginder Pal and Navinder Singh returned and all the accused-appellants took her to Railway Station, Barnala saying that her marriage would be performed with Ram Kumar. Then Ram Kumar sent Joginder Pal and Navinder Singh to arrange money. Thereafter Ram Kumar had committed sexual intercourse with her. After that Joginder Pal and Navinder Singh returned and all the accused-appellants took her to Railway Station, Barnala saying that her marriage would be performed with Ram Kumar. Then she was taken to Bus Stand and Ram Kumar accompanied her in the bus to Bathinda. Then on 20.1.2001, Ram Kumar had brought her to Barnala. There on the crossing of Barnala, they started on foot. Then Ram Kumar made her sit on an unmetalled passage, leading to brick kiln and himself went away. Then her uncle Om Parkash and Madan Lal had come along with the police and she was recovered by the police. Om Parkash PW-3 had stated that Shilpa was aged about 14 years and was studying in 6th Class. On the night intervening of 17/18.1.2001, Shilpa was sleeping with her grand-mother. At about 4/4.30 a.m., in the morning, she was found missing. They started searching and found that accused, who were residing just opposite their house, were also missing. Thereafter matter was reported to the police and then Shilpa was found on 20.1.2001 on the main road of Barnala. 6. The date of birth of Shilpa 31.1.1987. She had given her age to be 14 years. Her uncle Om Parkash PW3 had also stated her age to be 14 years. Even if, she had gone of her own to the room of the accused, still there is evidence that 15-20 days before the occurrence, accused-appellants Joginder Pal and Navinder Singh had asked her to marry Ram Kumar. They had said that they will arrange that marriage. Then after this, Shilpa had come to their room. Then all the accused had accompanied her to the Railway Station and to the Bus Stand. Thereafter Ram Kumar alone had gone with her. Shilpa was not married with Ram Kumar. She was less than 18 years. When these two persons were at the Bus Stand and Railways Station in the company of Ram Kumar then they were party to the kidnapping and that kidnapping was for illicit sexual intercourse by Ram Kumar with Shilpa. As such these two accused-appellants Joginder Pal and Navinder Singh were rightly convicted for the offence under Sections 366-A/363 IPC by the trial Court. 7. As such these two accused-appellants Joginder Pal and Navinder Singh were rightly convicted for the offence under Sections 366-A/363 IPC by the trial Court. 7. Even if there was no mark of external injury on the private parts or otherwise on the body of Shilpa when she was medically examined that may not suggest sexual intercourse by consent but as she was less than 18 years of age, her consent was immaterial. She had clearly stated that Ram Kumar had committed sexual intercourse with her when she had gone to the room of accused-appellant Ram Kumar and others on the night of 17/18.1.2001. 8. Under these circumstances, case for the offence under Sections 363/366- A/376 IPC was duly proved as against accused-appellant Ram Kumar. He had been rightly convicted for these offences. 9. Lastly counsel for the appellants had prayed that a lenient view be taken. 10. Accused-appellants Joginder Pal and Navinder Singh had undergone imprisonment for about one year and five months after their conviction and about one month as under trial prisoners. As such they have already undergone one and half year of imprisonment. Taking into the facts and circumstances of the case when Shilpa had come of her own in the rented room of these accused- appellants, I am of the view that one and half year of imprisonment will meet the end of justice. Therefore, as far as accused-appellants Joginder Pal and Navinder Singh are concerned, sentence of their imprisonment is reduced to the period already undergone by them. However, they shall be liable to pay fine as imposed by the trial Court and undergo the sentence in default of payment of fine. 11. As per allegations, Ram Kumar had committed rape only once on the night of 17/18.1.2001. Shilpa was brought back on 20.1.2001 and was recovered. Occurrence took place about 15 years back. 12. Taking into account the aforesaid facts, sentence of imprisonment of accused-appellant Ram Kumar for the offence under Section 376 IPC is reduced to seven years. All other sentences including fine as far as accused-appellant Ram Kumar is concerned are maintained. 13. With this modification, appeals stand dismissed.