Criminal Appeal No.262-SB of 1998 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Criminal Appeal No.262-SB of 1998 (O&M)
Date of Decision:18.02.2009
Jaswinder Singh
.....Appellant
Vs.
State of Punjab
.....Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. J.B.S. Gill, Advocate for the appellant.
Mr. T.S. Salana, Deputy Advocate General, Punjab.
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JUDGMENT
HARBANS LAL, J.
This appeal is directed against the judgment/ order of sentence
dated 24.1.1998 passed by the Court of learned Sessions Judge, Hoshiarpur,
whereby he convicted and sentenced the accused Jaswinder Singh alias Kali
to undergo rigorous imprisonment for three years and to pay a fine of
Rs.500/- or in default of payment of fine to further undergo rigorous
imprisonment for two months under Section 363 of IPC and further
sentenced him to undergo rigorous imprisonment for five years and to pay a
fine of Rs.500/- or in default of payment of the same, to further undergo
rigorous imprisonment for two months under Section 366 of IPC and further
sentenced him to undergo rigorous imprisonment for seven years and to pay
a fine of Rs.500/- or in default of payment thereof, to further undergo
rigorous imprisonment for two months under Section 376 of IPC with a
further direction that the substantive sentences shall run concurrently.
Criminal Appeal No.262-SB of 1998 (O&M) -2-
Shorn of all unnecessary details, the prosecution version is that
on 3.6.1996, prosecutrix X (name of the victim is not being indicated to
prevent her social victimisation in view of Premia alias Prem Parkash v.
State of Rajasthan, 2008(4) Recent Criminal Reports (Criminal) 539
(SC)), had gone to the fields to ease herself, but did not return home. Her
father Joginder Singh got registered the case, whereafter she along with the
accused was recovered on 27.6.1996 from the house of one Gurdial Singh.
She was got medico legally examined. The accused was arrested. After
completion of investigation, the charge-sheet was laid in the Court of
learned Illaqa Magistrate, who committed the same to the Court of Sessions
for trial of the accused.
On commitment, the accused was charged under Sections 363,
366 and 376 of IPC to which he did not plead guilty and claimed trial. To
bring home guilt against the accused, the prosecution examined Joginder
Singh PW1, prosecutrix X PW2, Dr. S.P. Banga PW3, Sohan Singh
Principal of Government Senior Secondary School Meghowal Doaba PW4,
Dr. Renu Kumari PW5, Ram Chand ASI PW6, Dr. Jujhar Singh, District
Heath Officer PW7, SI Jai Singh PW8, Constable Gurnek Singh PW9 and
closed its evidence by giving up Hari Ram Chowkidar as having been won
over by the accused and ASI Surinder Pal Singh, Mukhtiar Singh, Gurmail
Singh, Shindo, Pritam Singh, Rattni and SI Ajay Singh being unnecessary.
On close of the prosecution evidence, when examined under
Section 313 of Cr.P.C, the accused denied all all the incriminating
circumstances appearing in the prosecution evidence against him and
pleaded false implication as well as innocence. He has put forth that he has
been roped in this case due to party faction in the village. He did not
Criminal Appeal No.262-SB of 1998 (O&M) -3-
adduce any evidence in defence.
After hearing the learned public prosecutor for the State, the
learned defence counsel and examining the evidence on record, the learned
trial convicted and sentenced the accused as noticed at the outset. Feeling
aggrieved with his conviction/ sentence, he has preferred this appeal.
I have heard the learned counsel for the parties, besides
perusing the record with due care and circumspection. To begin with, Mr.
J.B.S. Gill, Advocate representing the appellant urged with a good deal of
force that from the statement of Joginder Singh PW father of the
prosecutrix, it appears that her age was 17 years because he has stated in
categoric terms that he was married about 25 years ago and his elder
daughter was born four years after his marriage and the prosecutrix was
born four years thereafter.
Mr. T.S. Salana, Deputy Advocate General, Punjab countered
this argument by urging that as per the documentary evidence adduced by
the prosecution, the prosecutrix was less than 16 years of age at the material
time.
On giving a thoughtful consideration to the rival contentions, I
am disposed to hold that the submission made by Mr. Gill holds no water.
PW4 Sohan Singh, Principal, Government Senior Secondary School,
Meghowal, Doaba has solemnly affirmed that as per entry No.1928 in the
admission register of Middle Department of the Senior Secondary School,
Meghowal, Doaba, prosecutrix X daughter of Joginder Singh Ad-dharmi
resident of village Meghowal, Doaba was admitted in the school and her
date of birth as per school record is 6.2.1982 and that Ex.PE was given by
him to the police on 3.6.1996. He withstood the test of cross-examination
Criminal Appeal No.262-SB of 1998 (O&M) -4-
in a successful manner. Obviously, he has deposed from the record being
maintained by the aforesaid school in the regular course of business. The
accused- appellant has not adduced even a scintilla of evidence operating as
rebuttal to this documentary evidence. It is apt to be borne in mind that the
occurrence took place on 3.6.1996. As per the above-mentioned
documentary evidence, the prosecutrix X was born on 6.2.1982. On
calculation, it works out that her age was 14 years 3 months and 27 days on
the day of occurrence. To add further to it, PW5 Dr. Renu Kumari, Medical
Officer, Civil Hospital, Hoshiarpur has also solemnly affirmed that “On
27.6.1996 at 2:20 P.M I medically examined prosecutrix X daughter of
Joginder Singh, aged 14 years, female, caste Ad-dharmi, resident of
Meghowal, Police Station Mahilpur.” Axiomatically, the prosecution has
been able to establish that the age of the prosecutrix was below 16 years at
the material time. The aforesaid school document being a legal document
and having evidentiary value, has to be given due weightage as has been
held by the Apex Court in the case of State of Chhattisgarh v. Lekh Ram,
2006 2 Recent Criminal Reports (Criminal) 475, in which it has been
held as under:-
“A register maintained in a school is admissible in evidence to
prove date of birth of the person concerned in terms of Section
35 of the Evidence Act. Such dates of birth are recorded in the
school register by the authorities in discharge of their public
duty……….”
This view has been further reiterated in re: Sannaila Subba
Rao and others v. State of Andhra Pradesh, 2008(3) Recent Criminal
Reports (Criminal) 973. Therefore, the onus on the prosecution to prove
Criminal Appeal No.262-SB of 1998 (O&M) -5-
the age of the prosecutrix has been effectively discharged. Sequelly, this
contention being bereft of any merit is jettisoned.
Mr. Gill further attacked the prosecution fortress by urging with
full force that the conduct of the prosecutrix is also untrustworthy, because
she visited from place to place and travelled by buses full of passengers, but
despite that she did not raise any hue and cry. Such conduct of her leaves
no scope for doubt that she was a consenting party. This contention is
indigestible. The prosecutrix X being less than 15 years of age, her alleged
consent was immaterial. It is significant to note that during cross-
examination and the statement recorded under Section 313 of Cr.P.C, plea
of consent was not taken or pleaded by the accused – applicant. In view of
State of Karnataka v. Bantara Sudhakara @ Sudha and another, 2008
(3) Recent Criminal Reports (Criminal) 923 (S.C.), unless the plea of
consent is put to the witnesses and taken by the accused in his examination
under Section 313 ibid, no note thereof can be taken by the Court. In fact, in
the statutory statement, the plea was complete denial and false implication.
Thus, to say the least of it, by no stretch of speculation, this can be held to
be a case of consensual sexual intercourse.
Last of all, Mr. Gill submitted that by now, the appellant has
undergone one year, nine months and 29 days of the total sentence and by
taking into consideration the fact that the prosecutrix X had intimacy with
the appellant, the sentence may be reduced to the already undergone. This
submission is unacceptable. This was a rape on the prosecutrix, who was
below 15 years of age. In such a case, plea of leniency is wholly misplaced.
Undue sympathy to impose inadequate sentence would do more harm to the
justice system to undermine the public confidence in the efficacy. No
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formula of a fool proof is possible that would provide a reasonable criterion
in determining a just and appropriate punishment. In the absence of any
fool proof formula, the discretionary judgment in the facts of each case, is
the only way in which such judgment may be equitably distinguished. When
a woman is ravished, what is inflicted is not merely physical injury, but the
deep sense of some deathless shame. Physical scar may heal up, but the
mental scar will always remain. The crimes of violence upon women need
to be severely dealt with. To show mercy in the case of such a heinous crime
would be travesty of justice as ruled by the Apex Court in re: State of
Karnataka v. Raju, 2007(4) Recent Criminal Reports (Criminal) 278.
In view of the gravity of the offence, it would be going too far
to reduce the sentence as already undergone. The offence of rape is not
only against the victim, rather against the society as well. No other material
point has been urged or agitated by either counsel.
As a sequel of the above discussion, this appeal fails and is
dismissed.
The Registry is directed to transmit a certified copy of this
judgment to the learned Chief Judicial Magistrate, Hoshiarpur for taking
necessary steps to send the appellant to the prison to serve the remaining
part of his sentence.
February 18, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes