JUDGMENT Jitendra Chauhan J. (Oral) - The appeal i.e. CRA-S No.1096-SB of 2013, titled as "Gurtinder Singh @ Soni v. State of Punjab" and the revision petition i.e. CRR No.2317 of 2013, titled as "Harpreet Kaur v. State of Punjab and another", are being disposed of by the common judgment. Appellant, namely, Gurtinder Singh @ Soni, has filed this appeal against the judgment of conviction and order of sentence dated 19.02.2013, passed by the learned Additional Sessions Judge (Ad hoc) Fast Track Court, Hoshiarpur, vide which the appellant was convicted and sentenced under Sections 363, 376, 506 and 509 of Indian Penal Code and Section 67-A of Information Technology Act. The prosecutrix, too, has filed Criminal Revision No.2317 of 2013 for enhancement of the sentence. Both the cases are being disposed of by this judgment. 2. The brief facts of the case in hand, recorded by the learned trial Court are that, on 28.04.2010 an application No.1023-SSP dated 28.04.2010, was moved by prosecutrix daughter of Tarsem Singh resident of Muardpur Guru, Police Station Bullowal, District Hoshiarpur in the office of SSP, Hoshiarpur, wherein it was stated that the accused used to come to her house and he was in then need of money. At about one and half and two years back the accused had borrowed Rs.10,000/- from the mother of prosecutrix but despite repeated requests he did not return the amount to the mother of the prosecutrix. When the mother of the prosecutrix put pressure on him he mis-behaved with her mother. The prosecutrix was minor in the year 2009 and she was 17 years old and a student of 10+1. She had gone to Baghpur for studying where the accused met him and on the pretext of returning the amount after taking the same from the brother of the accused, he took her to a house which was located in an isolated area. The house was lying vacant and in that house accused committed rape with the prosecutrix and after committing rape, he threatened prosecutrix that if she dared to disclose it to anybody he would kill her brother and her widow mother. Due to these threats the prosecutrix did not disclose anything to her mother and other members of the family and by taking the benefit of this fact accused used to commit rape with her after giving threats to her. Due to these threats the prosecutrix did not disclose anything to her mother and other members of the family and by taking the benefit of this fact accused used to commit rape with her after giving threats to her. During that period accused also made a blue CD of the prosecutrix and the prosecutrix was not aware of it. When the prosecutrix realized that the accused is crossing all limits, she narrated whole incident to her mother. Thereafter, the prosecutrix refused to accompany the accused, on which the accused threatened her that he has made her blue CD and if she would not fulfill his demand he would lower the reputation of prosecutrix and her family by distributing the CD in the village and the accused also threw a copy of the CD in the house of the prosecutrix. When this fact came to the knowledge of the prosecutrix, she made an application in the office of SSP, Hoshiarpur on18.11.2009, which was marked to SHO Police Station Hariana but despite several visits by the prosecutrix and her mother to Police Station Hariana, no action was taken by the police on the above said application. Prosecutrix stated that the accused is still at large and he is threatening to kill the prosecutrix and her brother or to throw acid on the face of the prosecutrix, if she tries to take the help of the police. Due to these threats the family of the prosecutrix is under great pressure and the accused can cause physical damage to the family of the accused at any time. If any injury is caused by the accused to the body or reputation of the prosecutrix or her family, the administration will be responsible for it. She stated that now the prosecutrix has become major and the accused is lowering her reputation in the society and also threatening to kill her or to throw acid on her face. Hence, the request for registration of case was made. Request for giving justice and providing protection to the family of the prosecutrix was made at the end of the complaint. It was enquired by DSP Mohinder Singh, Special Branch, Hoshiarpur and he made recommendations for registration of FIR an on the directions of SSP, Hosiarpur, the present FIR was registered in Police Station Bullowal. Request for giving justice and providing protection to the family of the prosecutrix was made at the end of the complaint. It was enquired by DSP Mohinder Singh, Special Branch, Hoshiarpur and he made recommendations for registration of FIR an on the directions of SSP, Hosiarpur, the present FIR was registered in Police Station Bullowal. Initially, the matter was investigated by ASI Narinder Singh and the prosecutrix was got medically examined in Govt. Hospital, Hoshiarpur and her statement under Section 164 Cr.P.C., was got recorded in the Court of Mrs. Neetika Verma, Judicial Magistrate Ist Class, Hoshiarpur. On 14.06.2011, prosecutrix identified the house where the accused committed rape with her. She produced her brith certificate before Harinder pal Singh Parmar, DSP (R). On 30.06.2011, accused Gurtinder Singh alias Sonu was arrested. During interrogation, accused made a disclosure statement that on 15.04.2009, he alongwith Simaranjit Singh alias Munga son of his paternal uncle Kulwant Singh resident of Bassi Kasso took prosecutrix Harpreet Kaur to a lonely house and a video was made by Simaranjit Singh through his mobile and the CDs were also got prepared by him but he removed SIM card and memory card from the phone. On the basis of this disclosure statement Simranjit Singh alias Munga was also added as an accused in the present case. Mobile phone has already been recovered. After completion of the investigation, the challan under Section 173 Cr.P.C., was presented wherein it was mentioned that accused Simranjit Singh alias Munga had not yet been arrested. Statements of witnesses were recorded. 3. After completion of investigation, the challan against the accused-appellant was presented before the Committing Court. Since, the offence was triable by the Court of Sessions, therefore, the case was committed by the Committing Court to the Court of learned Sessions Judge for trial vide order dated 21.10.2011. 4. Thereafter, charge under Sections 363, 366-A, 376, 292, 506 and 509 of Indian Penal Code was framed against the accused-appellant to which he pleaded not guilty and claimed trial. 5. To prove its case, the prosecution examined Arjun Khanna-Draftsman as PW1, ASI Jaswinder Singh as PW-2, Dr. Des Raj as PW3, the prosecutrix as PW4, HC Harjit Singha s PW-2 (repeatedly numbered), Dr. 5. To prove its case, the prosecution examined Arjun Khanna-Draftsman as PW1, ASI Jaswinder Singh as PW-2, Dr. Des Raj as PW3, the prosecutrix as PW4, HC Harjit Singha s PW-2 (repeatedly numbered), Dr. Rajinder Raj as PW5, Sub Inspector Jarnail Singh as PW6, ASI Govinder Kumar as PW7, ASI Surinder Singh as PW8, Harinderpal Singh, DSP (R) as PW9, Jaswinder Singh as PW-10, ASI Daljit Singh as PW-11, Dr. Hardeep Singh as PW-12, Ranjit Kumar as PW-13, HC Gurdeep Singh as PW-14, HC Tarsem Singh as PW-15, HC Harjit Singh as PW-16 and ASI Narinder Singh as PW-17 the remaining evidence of the prosecution was closed. 6. After the conclusion of evidence of prosecution, the statement of appellant-accused was recorded under Section 313 Cr.P.C. and the entire incriminating evidence which the prosecution produced against him was put to him to tender explanation for the same. The appellant-accused pleaded his innocence and he also stated that he has been falsely implicated in the present case. However, in defence the accused examined Kulwinder Singh as DW-1 only and closed his defence evidence. 7. The learned trial Court, after hearing learned counsel for the parties and after appreciating the evidence on record, convicted and sentenced the appellant-accused as under:- Under Section 363 of IPC Rigorous imprisonment for a period of five years and fine of Rs. 1000/- and in default of payment of fine to further undergo imprisonment for a period of two months. Under Section 376 of IPC Rigorous imprisonment for a period of seven years and fine of Rs. 5000/- and in default of payment of fine to further undergo imprisonment for a period of three months. Under Section 506 of IPC Rigorous imprisonment for a period of one year. Under Section 509 of IPC Rigorous imprisonment for a period of one year. Under Section 67-A of Information Technology Act. Rigorous imprisonment for a period of two years and fine of Rs. 10,000/- and in default of payment of fine to further undergo imprisonment for a period of five months. 8. Aggrieved against the judgment of conviction and order of sentence dated 19.02.2013, the accused/appellant has preferred the present appeal, which was admitted on 09.04.2013. 9. It is contended on behalf of learned counsel for the appellant that the impugned judgment is based on conjectures and surmises and is against the law. 8. Aggrieved against the judgment of conviction and order of sentence dated 19.02.2013, the accused/appellant has preferred the present appeal, which was admitted on 09.04.2013. 9. It is contended on behalf of learned counsel for the appellant that the impugned judgment is based on conjectures and surmises and is against the law. The evidence led by the prosecution is contradictory on material aspects of the case. The learned counsel for the appellant submits that the prosecution with an intention to prove the prosecutrix to be below 16 years of age, examined PW-10-Jaswinder Kumar, Clerk from the office of Civil Surgeon, Hoshiarpur, who brought the register pertaining to Births and Deaths maintained in the office of Civil Surgeon. As per record, the date of birth of the prosecutrix was 20.04.1992. The learned trial Court failed to notice that the alleged date of occurrence was 15.04.2009, i.e. on this very relevant date, she was 17 years of age and was capable of forming an opinion and giving her free consent. The accused has been wrongly charged and convicted under Section 376 of Indian Penal Code, since there was no penetration in the instant case. This fact finds support from the statement of the prosecutrix herself, who in her cross-examination submitted that "It is correct that in the said CD, there is no scene of intercourse, volunteered I stopped him from doing anything wrong." When the basic ingredient of rape i.e. penetration is missing from the chain of events then convicting accused and sending him behind bars for an offence which never happened, has resulted in mis-carriage of justice. There is no documentary evidence available on the file to prove that the accused actually took loan from the mother of the prosecutrix. It is rather the prosecutrix who has tried to extort money from the accused by roping him in a made-up case. The learned counsel for the appellant further contends that the learned trial Court lost sight of the fact that the alleged incident took place on 15.04.2009 but the MLR (Ex.PW-5/B) was got conducted on 05.06.2010. Further, PW- 5-Dr. Rajinder Raj in his cross-examination admitted on 26.10.2012 that "There was no external mark of injury on the private parts of Harprit Kaur. Further, PW- 5-Dr. Rajinder Raj in his cross-examination admitted on 26.10.2012 that "There was no external mark of injury on the private parts of Harprit Kaur. There can be or there cannot be struggle marks, if there is a forcible intercourse." No independent witness was examined in the present case and the entire case is based on the testimony of the official witnesses, who are interested in the success of the case. Learned counsel for the appellant further contends that the original source of generation of CD was never produced before the learned trial Court and the duplicate copy of the CD is not admissible and according to the Investigating Agency the video was recorded through the mobile phone not by any camcorder or any videography device. Lastly, learned counsel for the appellant places reliance on judgment titled as "Bachcha v. State of U.P." 2008 CriLJ 483 (D.B. of Allahabad High Court) and "Amar Kumar v. State of Haryana" 2004(1) RCR Crl 925 (SC). 10. On the other hand, learned State Counsel has supported the judgment passed by learned trial Court and submits that as per the date of birth certificate of the prosecutrix, the victim, on the alleged date of occurrence, was less than 18 years of age. The difference in the age of the appellant/accused and the prosecutrix was 16 years, which is almost double the age of the victim. The appellant sold the mobile phone to Sony Telecom and admitted the fact that he had destroyed the SIM and Memory Card of the mobile phone. 11. I have heard the learned counsel for the parties and have gone through the record with their able assistance. 12. In the instant case, in order to determine the age of the prosecutrix, the prosecutrix herself stepped into the witness box as PW-4 and deposed that her date of birth is 20.04.1992 and the accused took her with him on 15.04.2009, on the pretext of returning the amount of Rs.10,000/- which was borrowed by him from her mother, after collecting money from his brother. Further prosecution has examined Jaswinder Kumar, Clerk from the office of Civil Surgeon, Hoshiarpur as PW-10, who produced the record pertaining to the birth and death maintained in the office of Civil Surgeon and produced the record pertaining to the date of birth of prosecutrix and deposed that as per record, the date of birth of prosecutrix is 20.04.1992. He also deposed that birth certificate Ex.PW-9/A, is correct as per the record and the same has been issued by their office. The allegation against the accused is that he kidnapped the prosecutrix from the lawful guardianship of her mother on 15.04.2009, and she was taken by him in a Kothi and there he committed sexual intercourse with her forcibly without her consent and he also got prepared the movie. Accused Gurtinder Singh made disclosure statement in presence of DSP (R), Hoshiarpur, regarding mobile phone through which he made the film of prosecutrix and the said mobile phone was in repairable condition was handed-over to Ranjit Singh by the accused, who was running Sony Telecom Repair Shop. Accused has also admitted that he has damaged the SIM and memory card of the mobile phone. The prosecution has been able to prove the charges against the accused as the prosecutrix has supported her version while stepping into the witness box and has categorically deposed that the accused took her with him by misrepresentation and committed rape on her and prepared a movie with the help of mobile phone. During trial, on 14.09.2012, the trial Court played the CD in the presence of the prosecutrix; the State Counsel and the defence counsel and had observed that the accused was performing obscene acts with the prosecutrix. The accused was aware of shooting and preparation of the said CD. The statement of the prosecutrix in the given context is truthful, trustworthy and reliable which is duly corroborated by the CD and the conviction can be passed on the sole testimony of the prosecutrix. 13. In "State of Madhya Pradesh v. Babulal" 2008(1) RCR 213, it has been held that if a Court of law finds evidence of the prosecutrix truthful, trustworthy and reliable, conviction can be recorded solely on the basis of her testimony and no further corroboration is necessary. 14. 13. In "State of Madhya Pradesh v. Babulal" 2008(1) RCR 213, it has been held that if a Court of law finds evidence of the prosecutrix truthful, trustworthy and reliable, conviction can be recorded solely on the basis of her testimony and no further corroboration is necessary. 14. In "Radhakrishna Nagesh v. State of Andhra Pradesh" 2013 (1) RCR (Crl.) 659 (SC), it does not necessarily mean that there is no rape and even slight penetration was sufficient to constitute the offence of rape. 15. The learned counsel contended that even if the contents of the CD are taken to be true, only offence under Section 354 IPC is made out as from the CD, the act of sexual intercourse is missing. The learned counsel contended that the learned trial Court observed that in the CD, the accused is performing obscene acts with the prosecutrix. He further contended that committing of rape is not proved from the CD. This Court has carefully scrutinized the statements of prosecutrix under Section 164 Cr.P.C. made in the Court. From the statements of the prosecutrix, CD and observation of the trial Court coupled with medical evidence, it is proved that the accused-appellant forcibly took her to kothi and committed sexual intercourse with her. Not only this, the accused-appellant had prepared a blue film and threw CD at the residence of the prosecutrix on 18.11.2009. The accused-appellant sent the MMS messages to many persons and also uploaded it on internet. Dr. Des Raj-PW-3, proves that there is nothing suggestive that the appellant is incapable to perform sexual act. The learned counsel for the accused-appellant further argued that the prosecutrix was a consenting party and is repelled in view of the conduct of the appellant in first of all creating trust in the family of the prosecutrix by making family relation, taking loan of Rs.10,000/- as a loan from the mother of the prosecutrix. On the date of occurrence, he took the prosecutrix in a kothi with him on the assurance to return the money and committed rape with her. 16. Keeping in view the above facts, this Court is of the view that as per the birth certificate of the prosecutrix, the girl was less than 18 years of age on the date of occurrence, whereas the accused was of a mature age i.e. almost double the age of the prosecutrix. 16. Keeping in view the above facts, this Court is of the view that as per the birth certificate of the prosecutrix, the girl was less than 18 years of age on the date of occurrence, whereas the accused was of a mature age i.e. almost double the age of the prosecutrix. The appellant sold the mobile phone to Sony Telecom and admitted the fact that he has destroyed the SIM and Memory Card of the mobile phone. The case law cited by the learned counsel for the appellant is distinguishable on facts. 17. In view of the above facts and circumstances, this Court is not inclined to agree with the contentions of learned counsel for the appellant and finds no merit in the present appeal. The conviction of the appellant is maintained. The prayer for leniency is turned down in view of observations of the Supreme Court in State of "State of Madhya Pradesh v. Babulal" (supra), which are as under :- 1. Once a person is convicted for an offence of rape, he should be treated with a heavy hand. An undeserved indulgence or liberal attitude in no awarding adequate sentence in such cases would amount to allowing or even to encouraging 'potential criminal'. 2. Sexual violence apart from being a dehumanizing act is also an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity. It degrades and humiliates the victim and leaves behind a traumatic experience. It has been rightly said that whereas a murderer destroys the physical frame of a victim, a rapist degrades and defiles the soul of a helpless female. The courts are, therefore, expected to try and decide cases of sexual crime against women with utmost sensitivity." 18. In this case mensrea on the part of the accused appellant is fully established. He lured the prosecutrix on the pretext of refunding the loan taken by him from her mother and took her to a secluded place. The age of the prosecutrix was admittedly less than 18 years while the age of the appellant was 33 years. The appellant not only committed rape, but also prepared CD and sent MMS to various people, as has been stated by the prosecutrix in her statement recorded under Section 164 Cr.P.C and in Court. The age of the prosecutrix was admittedly less than 18 years while the age of the appellant was 33 years. The appellant not only committed rape, but also prepared CD and sent MMS to various people, as has been stated by the prosecutrix in her statement recorded under Section 164 Cr.P.C and in Court. Keeping in view the above-noticed circumstances, the accused-appellant deserves no leniency. 19. Accordingly, the present appeal is hereby dismissed. 20. In view of the judgment passed in the main appeal, the Criminal Revision No. 2317 of 2013, is also dismissed.