Bijender Singh vs State of Haryana

A.L. Bahri, J.

Additional Sessions Judge, Faridabad, on April 27,1986 acquitted Bejinder Singh, appellant of the charge framed under Section 376 Indian Penal Code. However, he convicted him under Sections 363, 366 Indian Penal Code. On both these counts, the appellant was ordered to undergo R.I. for one year and to pay a fine of Rs. 500/ each and in default of payment of fine to undergo R.I. for one month. Both these sentences were ordered to run concurrently hence this appeal.

The prosecutrix is Smt Santosh. On September 8,1985 at about 2.00 P.M. she had gone out to answer the call of nature. The appellant met her and enticed her away after administering some eatables. Both of them stayed at Delhi, Alwar and Sohana where as per allegations of the prosecutrix, she was subjected to rape by the appellant. At Sohana the police apprehended them on 27th Sept. 1985. The case having been registered and after completion of the investigation, the appellant was tried. Addl Sessions Judge gave a finding that the prosecutrix was a consenting party in this venture and acquitted the appellant of the offence under Section 376, Indian Penal Code holding that the prosecutrix was over 16 years of age. The conviction was recorded under Sections 363 and 366 Indian Penal Code as the prosecutrix was found to be below 18 years of age as per birth entry Ex. PD proved by PW3 Ram Karan Singh Rathi. Vide this entry a daughter was born on Feb 5, 1969. Thus on the date of offence was committed she was 16 years and about 7 months old. It is not considered appropriate to refer to the evidence to reaffirm the finding of the Additional Sessions Judge regarding consent as aforesaid.

The question for consideration in this appeal is about the age of the prosecutrix. If the evidence produced by the prosecution is accepted that the birth entry Ex. PD in fact relates to the prosecutrix Smt Santosh, the conviction recorded by the Additional Sessions Judge under Sections 363 and 366, Indian Penal Code would be unassailable.

F.I.R. in this case was recorded at the instance of Sukhdev Singh, father of the prosecutrix. He described the prosecutrix as Smt. Santosh alias Munni therein. Sukhdev while appearing as PW5 specifically stated that only alias name was given to Munni i.e. Santosh PW4. No alias name was given to other children. He further stated that he had four sons and four daughters. Two elder daughters have already been married. Santosh PW4 also gave her alias name as Munni. Since it is the prosecution case from the very beginning that the prosecutrix Santosh was also known as Munni there is no reason to disbelieve the statement of PW5 Sukhdev, father of the prosecutrix that Santosh was also known as Munni and the change in this name was effected after two years of the birth. PW4 Santosh stated that her name was changed after 34 years. However, discrepancy in this respect is not considered material. PW3 Ram Karan Singh Rathi proved Ex. PD birth entry showing birth of Munni on Feb 5, 1969 to Sukhdev and Anguri. It was not necessary to produce the other records on the basis of which entry in the birth register was recorded. The register of births and deaths is a public document prepared by the officials in the discharge of their duties. Certified copy from the entry therefrom could be admitted to the evidence. In the present case PW 3 had brought the register and proved Ex. PD, the birth entry therefrom. It is established beyond doubt by the prosecution that this birth entry Ex. PD in fact relates to Smt Santosh, the prosecutrix. She being below 18 years of age as per date of birth recorded in the birth entry registered even if she was a consenting party, the appellant committed offence under Sections 363 and 366, Indian Penal Code. No ground is available from the evidence referred to above to come to a different conclusion.

Sukhdev PW 5 admitted that Bejinder Singh accused was earlier visiting their house. This would show that intimate relationship developed between him and the prosecutrix and the appellant succeeded ultimately in enticing away the prosecutrix. In such circumstances severe sentence is not called for when there is marginal difference in the age. The ends of justice would be met if the appellant is sentenced to R.1 already undergone. So ordered. The sentence of fine would be maintained. With the modification in the matter of sentence as stated above, this appeal is dismissed