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2007 DIGILAW 1564 (PNJ)

Balkar Singh v. State Of Haryana

2007-08-29

MAHESH GROVER

body2007
Judgment Mahesh Grover, J. 1. Appellant-Balkar Singh has filed this appeal challenging the judgment/order of sentence dated 10.4.1996 passed by the Sessions Judge, Kurukshetra (hereinafter described as `the trial Court) whereby he has been convicted and sentenced as under :- For offence punishable under Section 366 of the IPC to undergo rigorous imprisonment for five years and to pay fine of Rs. 250/- and in default of payment of fine, to undergo further rigorous imprisonment for one month. For offence punishable under Section 376 of the IPC to undergo rigorous imprisonment for seven years and to pay fine of Rs. 350/- and in default of payment of fine, to undergo further rigorous imprisonment for one and a half month. Both the sentences were, however, ordered to run concurrently. 2. The allegations against the appellant are that he had enticed PW-11 Santosh Kumari daughter of Baldev Singh, aged about 15 years (referred to hereinafter as `the prosecutrix) on 11.11.1994 at about 9.00 P.M. when she was returning home after answering the call of nature. The matter was reported to the police by her father (complainant) on the basis of which FIR No. 225 dated 12.11.1994 was recorded at Police Station, Ladwa. The prosecutrix was recovered in the company of the appellant on 30.11.1994 from the bus stop at village Pipli near Kurukshetra. Her statement under Section 164 of the Cr.P.C. was got recorded on 2.12.1994, before the Judicial Magistrate Ist Class, Kurukshetra, which is Exhibit-DA. 3. The police, after completion of investigation, submitted a report under Section 173 of the Cr.P.C. The trial Court charge-sheeted the appellant for having committed offences punishable under Sections 366 and 376 of the IPC to which he pleaded not guilty and claimed trial. 4. The prosecution, in order to establish the charge against the appellant, produced oral as well as documentary evidence which included the medical testimony, the statements of the prosecutrix and the complainant. 5. In his statement recorded under Section 313 of the Cr.P.C., the appellant stated that he was innocent. He tendered in defence Exhibit-DD and Exhibits DE/1 to DE/5. 6. On appraisal of the evidence before it, the trial Court came to the conclusion that the appellant was, indeed, guilty of the offences alleged against him and he was accordingly convicted and sentenced, the details of which have been given hereinabove. 7. He tendered in defence Exhibit-DD and Exhibits DE/1 to DE/5. 6. On appraisal of the evidence before it, the trial Court came to the conclusion that the appellant was, indeed, guilty of the offences alleged against him and he was accordingly convicted and sentenced, the details of which have been given hereinabove. 7. While assailing the conviction and sentence awarded to the appellant, learned counsel for the appellant contended that the conduct of the prosecutrix clearly established that she was a consenting party. She had stayed in the company of the appellant for almost 20 days and in the process, she had been going with him from place to place without any protest. Her medical examination proved that she was habitual to sexual inter-course. Hence, there is over-whelming evidence to show that she was a willing partner. 8. In so far as the age of the prosecutrix is concerned, learned counsel for the appellant vehemently contended that she was more than 17 years of age as she had herself got recorded this fact at the time of her medical examination. The prosecution has miserably failed to establish by way of any evidence that her age was less than 16 years and the only evidence in the shape of school leaving certificate cannot be relied upon. In support of his contention, he relied on Jai Narain v. The State of Haryana, 1974 CLR Vol. II (S.N. 6) XV; Om Parkash v. The State of Punjab, 1983(2) Recent Criminal Reports (P&H) 545; Sanwant Singh v. The State of Haryana, 1985(2) Recent Criminal Reports (P&H) 452; Mohamad Imteaz Khan alias Sannu v. The State of Haryana, 1994(2) Recent Criminal Reports (P&H) 456; Kala Singh v. State of Punjab, 1996(3) Recent Criminal Reports (P&H) 343; Jaipal Singh v. State of Haryana, 2003(2) RCR(Criminal) (P&H) 310 and Sunil v. The State of Haryana, 2003(2) RCR(Crl.) (P&H) 313. 9. On the other hand, learned counsel appearing for the State and the complainant contended that in view of the age of the prosecutrix which had been conclusively established before the trial Court, the question of consent becomes immaterial and, therefore, the conviction and sentence is appropriate. 10. I have heard the learned counsel for the parties at some length and have perused the record. 11. The foremost question that is to be determined is of the age of the prosecutrix. 10. I have heard the learned counsel for the parties at some length and have perused the record. 11. The foremost question that is to be determined is of the age of the prosecutrix. The prosecution, in order to establish her age, had examined PW-7 Mehar Chand, who was Headmaster of Government Primary School, Antheri where the prosecutrix had studied up to 5th class. This witness stated that according to the record of the school, the age of the prosecutrix was recorded as 8.4.1980. He proved the relevant certificate as Exhibit-PH. This evidence coupled with the testimony of the complainant, who appeared as PW-12 and stated affirmatively that the age of the prosecutrix was 15 years, leaves no room for doubt as to her age. The appellant could not bring out in the cross- examination of the complainant any other material which could off-set the evidence indicating the date of birth of the prosecutrix. 12. Indeed, there is no doubt that the date of birth according to the entries in the record of the school is not conclusive piece of evidence, but on the similar footings is the ossification test. In this view of the matter, it becomes imperative upon the person, who seeks to off-set the evidence of age as brought about by the prosecution to effectively cross-examine the witnesses so as to extract other related material which could cast a doubt on the version as put forward by the prosecution qua the age. Having failed to do so, in the instant case, the Court is left with no other option but to accept whatever evidence is on record and to hold that the prosecutrix was, indeed, a minor. 13. However, a scrutiny of the testimony of the prosecutrix shows that she did not protest when she was allegedly enticed and taken to various places. It seems that she was rather enjoying herself as is borne out from the following extract of her statement:- "In the day time, we remained in the sugarcane field and enjoyed sugarcane sticks by chewing them, and except that we did not take anything else. In the night also, we did not take any food. We did not go to any shop or house in village Babain. I do not remember if we had taken tea at Babain and then sat in the truck. In the night also, we did not take any food. We did not go to any shop or house in village Babain. I do not remember if we had taken tea at Babain and then sat in the truck. Also do not remember if I so stated before the Magistrate or not. (Confronted with Ex. DA, portion A to A where it is so recorded). We had gone for site scene at Chandigarh. We stayed at Chandigarh for about 15 days. In the day we used to go for site scene and in the night we stayed in the hut." 14. The statement of the prosecutrix, when read as a whole, does not appear to be that of a girl of gullible mind. The medical testimony also reveals that she was habitual to sexual inter-course. 15. Keeping the statement of the prosecutrix in view, there is little hesitation to hold that she was a willing partner having dalliance with the appellant, but, at the same time, the appellant cannot cross the insurmountable hurdle in the shape of the statute which makes the consent irrelevant if the prosecutrix is a minor. Hence, this Court does not find any infirmity in the conviction recorded by the trial Court. 16. At this stage, the learned counsel for the appellant contended that the prosecutrix has since married and the appellant too is married man and is having two minor daughters, aged three years and one year. The occurrence is of the year 1994 and thirteen years have elapsed since that time. Learned counsel also contended that the appellant has already undergone imprisonment of one year, two months and seven days by now and it would be extremely harsh if he is sent, at this stage, to custody to undergo the remaining part of the sentence which deserves to be reduced suitably. In support of his contention, he relied upon Narender Singh v. State of Haryana, 2003(4) RCR(Criminal) P&H) 346. 17. I have anxiously considered this aspect of the matter. There is no doubt that the appellant has faced the agony of the prosecution for the last fourteen years. He had given his age as 20 years at the time of recording of his statement under Section 313 of the Cr.P.C. and by now, he is well advanced in age and is also married, with minor children. There is no doubt that the appellant has faced the agony of the prosecution for the last fourteen years. He had given his age as 20 years at the time of recording of his statement under Section 313 of the Cr.P.C. and by now, he is well advanced in age and is also married, with minor children. The prosecutrix too is said to have married in the year 1994 itself. On the basis of all these factors coupled with the fact that there is some semblance of the prosecutrix herself being a consensual party, even though the statutory impediment is there which makes her consent immaterial, I am of the opinion that the sentence awarded to appellant deserves to be modified. The appeal is accordingly disposed of in the following terms :- (1) The conviction shall remain intact. (2) The sentence as awarded by the trial Court will stand reduced to that of already undergone, provided the appellant deposits with the trial Court, within three months from today, a sum of Rs. 30,000/- to be paid to the complainant for onward disbursement to the prosecutrix as compensation. (3) In case, the appellant fails to deposit the aforesaid amount within the stipulated period, the sentence imposed by the trial Court shall get revived and in that eventuality, his bail bonds will be cancelled. (4) On deposit of the amount as directed above, the same will be paid to the complainant after due enquiry and verification and the trial Court shall not insist on the presence of the prosecutrix.