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2011 DIGILAW 1669 (PNJ)

Aspak v. State of Punjab

2011-09-01

L.N.MITTAL

body2011
JUDGMENT L.N. Mittal, J. (Oral) - Accused Aspak stands convicted and sentenced by learned Additional Sessions Judge (Adhoc), Fast Track Court, Rupnagar vide judgment and order dated 28.8.2004, under sections 363, 366 and 376 IPC to undergo rigorous imprisonment for two years and to pay fine of Rs 300/- and in default thereof, to further undergo rigorous imprisonment for 15 days under section 363 IPC, to undergo rigorous imprisonment for three years and to pay fine of Rs 500/- and in default thereof, to further undergo rigorous imprisonment for one month under section 366 IPC and to undergo rigorous imprisonment for seven years and to pay fine of Rs 1000/- and in default thereof, to further undergo rigorous imprisonment for three months under section 376 IPC but all the substantive sentences have been ordered to run concurrently. Feeling aggrieved against his conviction and sentence, convict Aspak has filed the instant criminal appeal. 2. Prosecution case is that the complainant Abdul Raseed and accused were residing in the same village. Complainant's daughter was working in his vegetable field about three months prior to the lodging of the FIR. The complainant found his daughter missing from there. She was also not found in the complainant's hut. Despite search, she could not be traced. On 5.6.2002 (date of lodging of FIR), complainant's daughter came back to his house and told that on the day of occurrence (about three months ago) while she was working in the vegetable field, the accused came there and falsely told that the complainant's son Zahir had suffered injury. Believing the accused, the complainant's daughter was taken by the accused. She was also threatened by the accused on the way. The accused kept the complainant's daughter (prosecutrix-name not being mentioned) in a rented room at Malerkotla and committed rape on her daily there under threat. On 5.6.2002, in the morning the accused was called by some one and while going away, he forget to lock room from outside. Getting opportunity, the complainant's daughter escaped from there and came back to her house. Age of the prosecutrix was about 12 years. The complainant reported the matter to the police by making statement. Thereupon the FIR was registered and investigated. Prosecutrix was medico legally examined. Her statement was recorded. Accused was arrested. Other investigation proceedings were conducted. Getting opportunity, the complainant's daughter escaped from there and came back to her house. Age of the prosecutrix was about 12 years. The complainant reported the matter to the police by making statement. Thereupon the FIR was registered and investigated. Prosecutrix was medico legally examined. Her statement was recorded. Accused was arrested. Other investigation proceedings were conducted. On completion of investigation, prosecution presented report under section 173 of the Code of Criminal Procedure (in short, Cr.P.C.) for prosecution of the accused under sections 363, 366, 376, 342, 506 IPC. 3. Charge under sections 363, 366, 376, 342 IPC was framed against the accused who pleaded not guilty and claimed trial. To bring home charge against the accused, the prosecution examined 12 witnesses. 4. Dr. Dharam Singh PW1 stated that being Gynaecologist, he medico legally examined the prosecutrix aged 12 years in the presence of Mrs. Pritam Kaur, Staff Nurse. The prosecutrix gave history of kidnapping and sexual assault many times during the last three months. Hymen was ruptured. As per Chemical Examiner's report, semen was found in vaginal swabs. Accordingly, the witness opined that penetration had taken place. 5. Dr. Sarju Gupta, PW2 stated about ossification test of the prosecutrix and gave report that radiological age of the prosecutrix was 14 to 15 years. He stated in cross-examination that the said age is not variable by two years on either side as per normal variation because he already considered the said variation while giving report. 6. Mohammad Shafi PW3 stated that the accused was tenant in a room of his house and the accused stayed there with a girl whom he claimed to be his wife. The accused did not disclose name of that girl to this witness. The accused stayed there with the girl for3/4 months. The prosecutrix as PW4 broadly stated according to the prosecution version. The complainant Abdul Rashid as PW5 also supported prosecution version. HC Shamsher Singh, PW6 being formal witness tendered his affidavit in evidence. ASI Charan Singh, PW7 stated about investigation of the case conducted by him. Constable Sukhdev Singh, PW8 was also associated in the investigation and stated about the same. SI Tarlochan Singh, PW9 also stated about part investigation conducted by him. Retired ASI Sulakhan Singh, PW10 also partly investigated the case and stated about the same. Constable Gurpreet Singh, PW11 being formal witness tendered his affidavit in evidence. Constable Sukhdev Singh, PW8 was also associated in the investigation and stated about the same. SI Tarlochan Singh, PW9 also stated about part investigation conducted by him. Retired ASI Sulakhan Singh, PW10 also partly investigated the case and stated about the same. Constable Gurpreet Singh, PW11 being formal witness tendered his affidavit in evidence. Krishan Singh, PW12 brought record of criminal complaint and proved documents therefrom. 7. The accused in his examination under section 313 Cr.P.C. denied the incriminating circumstances appearing against him in prosecution evidence. He alleged that the prosecutrix was engaged with him with mutual consent of parents of both of them but later on the complainant wanted to marry the prosecutrix some where else by receiving money to which the prosecutrix did not agree. The prosecutrix alone came to the accused at Malerkotla on her own will. The accused asked prosecutrix to go back to her parents. The accused accompanied her to her village and handed over her to her parents. No evidence was led by accused in his evidence. 8. Learned Additional Sessions Judge (Adhoc) vide impugned judgment dated 28.8.2004 convicted the accused under sections 366, 363, 376 IPC but held the prosecution case under section 342 IPC not proved. After hearing parties on sentence, learned trial Judge vide order of even date imposed sentence on the convict as already noticed hereinbefore. Feeling aggrieved, the convict has preferred the instant criminal appeal. I have heard learned counsel for the parties and perused the case file with their assistance. 9. All the prosecution witnesses have supported the prosecution case. Testimony of the prosecutrix is corroborated by her father. Their statements are further corroborated by landlord Mohammad Shafi PW3 in whose room the accused stayed as tenant along with prosecutrix for 3/4 months. Sexual intercourse with the prosecutrix is also proved from the medical evidence. Even semen was found on the vaginal swabs of the prosecutrix. Age of the prosecutrix was less than 16 years. According to prosecutrix and her father her age was 12 years. Even according to medical evidence her age was 14 to 15 years without variation on either side. It is, thus, amply proved that the age of the prosecutrix was much less than 16 years. Age of the prosecutrix was less than 16 years. According to prosecutrix and her father her age was 12 years. Even according to medical evidence her age was 14 to 15 years without variation on either side. It is, thus, amply proved that the age of the prosecutrix was much less than 16 years. However, accused took away prosecutrix from the custody of her parents and kept her at Malerkotla for about three months and committed sexual intercourse with her there many times. The prosecutrix has stated that it was done without her consent by putting her under threat. Even otherwise being less than 16 years, the consent of the prosecutrix would have been immaterial. The prosecution case is, thus, fully proved beyond reasonable doubt. 10. Learned counsel for the appellant contended that school record to prove age of the prosecutrix has not been produced nor her birth entry has been produced. However, there is sufficient evidence on record to prove age of the prosecutrix being less than 16 years. Statements of prosecutrix and her father in this regard are corroborated by the testimony of Dr. Sarju Gupta PW2. 11. There is no reason why the prosecutrix and her father would implicate the accused in a false case and why they would falsely depose against him. On the contrary, the prosecutrix and her father would have think ten times before lodging a false case of this nature against the accused because honour and entire future life the prosecutrix was at stake. Statements of the prosecutrix and her father could not be impeached in their cross-examination. On the other hand, their statements are corroborated by other evidence led by the prosecution. 12. For the reasons aforesaid, I conclude that the prosecution has successfully proved guilt of the accused beyond reasonable doubt and accordingly, impugned judgment of conviction is affirmed. 13. As regards quantum of sentence, perusal of the custody certificate filed today in Court by learned State counsel reveals that the accused was released from jail on 22.6.2006 on completion of sentence on undergoing actual sentence of 4 years 14 days but by giving benefit of remissions. Even otherwise, under section 376(1) IPC, imprisonment for seven years is the minimum sentence. There is no adequate or special reason to impose less than the aforesaid minimum sentence of imprisonment. Even otherwise, under section 376(1) IPC, imprisonment for seven years is the minimum sentence. There is no adequate or special reason to impose less than the aforesaid minimum sentence of imprisonment. On the contrary, keeping in view the age of the prosecutrix, there is no ground for reducing the minimum sentence of imprisonment awarded for the said offence. Moreover, the question of quantum of sentence is of academic importance only because the accused had already been released from jail on completion of sentence. 14. For the reasons aforesaid, I find no merit in the instant criminal appeal which is accordingly dismissed. Appeal dismissed.