Ram Saran and Another vs State of Haryana

Anita Chaudhry, J.—The present appeal is directed against the judgment of conviction dated 13.06.2008 and order of sentence dated 14.06.2008 passed by the Sessions Judge, Ambala vide which the appellants-accused - Ram Saran and Sham Lal have been convicted in FIR No. 228 dated 24.07.2007 registered at Police Station City Baldev Nagar, Ambala City for the commission of the offence under Sections 363 /34, 366 /34 and 376(2)(g) IPC. They were sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 2,000/- each u/s 363 /34 IPC and in default of payment of fine to further undergo imprisonment for a period of two months. They were also sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 2,500/- each for the offence punishable u/s 366 /34 IPC and in default of payment of fine to further undergo imprisonment for a period of two months. They were also sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 5,000/- each u/s 376(2)(g) IPC and in default of payment of fine to further undergo imprisonment for a period of three months. All the sentences were directed to run concurrently. The facts relevant for disposal of the appeal may be set out in detail. Ashok Kumar - complainant was a Pujari in Shiv Mandir, Baldev Nagar, Ambala City. His eldest daughter was 17 years of age and the younger one who is the prosecutrix was 15 years of age and was studying in 10+1 in P.K.R. Jain Senior Secondary School. She left for school on 23.07.2007 at 7.30 am. She did not return home. An inquiry was made from the school and the parents were told that she had not attended the school. The parents came to know that Ram Saran was also missing from his house. On further inquiry, the complainant came to know that the accused used to ring up his daughter from his mobile phone. The complainant named Ram Saran for having lured his daughter for the purpose of marriage. Acting on this complaint, the FIR was registered under Sections 363 and 366 IPC. The girl was recovered from the possession of the accused on 01.08.2007 when they were coming out from the Railway Station, Ambala Cantt. As usual, her medical was got done. She was handed over to the parents. She made allegations of rape against both the accused. The police prepared its final report under Sections 363 /34, 366 /34 and 376(2)(g) IPC. The accused pleaded not guilty to the charge framed against them and claimed trial.

The prosecution examined the complainant - PW-8, prosecutrix - PW-9 besides the Medical Officers, who had examined the prosecutrix as well as the accused and the investigating officer.

The accused abjured the trial and denied the allegations. They examined Prabhakar Singh - DW1 in their defence, who brought the detail call chart of the mobile which was in the name of Ram Saran and also the details of the phone on which the calls were made and proved the copy Ex.DA and DB.

I have heard learned counsel for the parties and with their assistance perused the case file.

Learned counsel for the appellant contended that false allegations have been levelled as the girl was having an affair and she had left the house on her own and it was a case of consent. It was urged that a writ petition has been filed for quashing the FIR but unfortunately the same was not brought on record. It was urged that they have produced the call details and record would reveal the number of calls exchanged. It was further contended that the prosecutrix had stated that she was raped by both the accused but she had been travelling with them using public transport and had gone to several places and had there been any threat she would have sought help from the public and thus, false allegations have been made. It was urged that Ram Saran was of young age when the allegations were levelled and he has been in custody for over 5 years and the prosecutrix is now happily married and prayed for leniency. It was also urged that appellant No. 2 - Sham Lal''s wife is expecting a child next month and prayed for leniency. Reliance was placed o Prem Chand and Another Vs. State of Haryana, and Raju Vs. State of Karnataka,

Learned counsel representing the State had urged that the girl was only 15 years and 3 months old and the birth certificate is on record and there can be no consent when the prosecutrix is a minor and no suggestion have been given to her that she was a consenting party and there can be no presumption u/s 114 of the Evidence Act. It was urged that the girl was a minor and of tender age and law gives protection to the minors and if the girl had been lured on the pretext of marriage and the marriage was not performed that goes to show their intention.

It is first to be examined whether the prosecutrix is a minor. The prosecution had examined Ashok Kumar, complainant, who is the father of the prosecutrix. He had stated that his daughter was 151/2 years old. He had also given her date of birth in the complaint, which was 03.04.1992. Vikas Kumar - PW-7 had brought the Birth Register and proved the entry Ex.PJ where the date of birth was the same as given by the complainant. The Trial Court had rightly believed the entry in the Birth Register. The Register is maintained by a public servant while discharging his duty. No suggestion was given to any witness that the girl was more than 16 years of age. The defence also did not press for an ossification test and accepted the date of birth of the prosecutrix. The prosecutrix was a minor at the time of incident. On the date of incident, she had gone to school but later on it was found that she had not reached the school. The accused was arrested along with the prosecutrix. Ram Saran had taken the girl on the pretext that her brother was sick and took her to his house where Sham Lal joined him. The prosecutrix was served with tea mixed with some intoxicant. The prosecutrix had clearly named both the accused of raping her. The prosecutrix was subjected to lengthy cross-examination but she firmly maintained her statement.

Dr. Neelam - the Medical Officer - PW-2 had examined the prosecutrix and had found the hymen ruptured and the vagina admitted two fingers. She had made a statement after going through the FSL report that the possibility of sexual intercourse could not be ruled out.

For recording conviction u/s 376 IPC the testimony of the minor, even if un-corroborative, is sufficient because it is neither desirable nor proper to look upon her evidence with suspicion, treating her as if she is an accomplice to crime. A minor girl if seduced and forced to sexual intercourse would amount to rape irrespective of her consent. The theory of consent by such a young girl, who is less than 16 years, is inherently improbable why should she consent. There could be consent if she was in love. There is nothing on record to show that she was to get married to one of them.

Section 375 IPC defines rape : A man is said to commit ''rape'' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:--

Firstly to fifthly - x x x x x x

Sixthly - with or without her consent, when she is under 16 years of age.

The evidence which is referred above is sufficient and reliable to record a finding that the appellants had enticed the prosecutrix, who was a minor. She was taken and served with tea, which was laced with intoxicant and she was subjected to sexual intercourse. The deposition of the minor in the Court is clear and unequivocal. Her statement does not suffer from any contradiction. The appellants cannot take any help from the call records as the plea of consent is not available to them. There is no infirmity whatsoever in the judgment recorded by the trial court.

The Hon''ble Supreme Court in case reported as State of Karnataka vs. Puttaraj, 2003 RCR (Crl.) 113 was considering the case of reduction of sentence in a rape case and had observed that undue sympathy in imposing inadequate sentence would do more harm to the justice system and would undermine the public confidence in the efficacy of law. It was held that it was the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed.

As regards the sentence, such kind of offences are on the rise. It has to be dealt with a firm hand. Considering the minor girl''s ignominy and gravity of offence, it does not permit any sympathy or compassion so as to reduce the sentence. For the foregoing reasons and discussion of the evidence, it is held that the approach of the trial Court was proper in reaching its incontrovertible conclusion. The appeal deserves to be dismissed, which I direct.