JUDGMENT
Swatanter Kumar, J.
1. Accused Shakeel-appellant herein was found
guilty and convicted under Sections 363/366/376 of the
Indian Penal Code, vide judgment of conviction dated 5th
November, 1990. After hearing the accused on the quantum
of sentence on the same date, the learned Judge sentenced
the accused to undergo rigorous imprisonment for two years
under Sections 363 of the Indian Penal Code, three
years rigorous imprisonment under Section 366 of the
Indian Penal Code and seven years rigorous imprisonment
under Section 376 of the Indian Penal Code. All sentences
were ordered to run concurrently.
2. Challenge to the said judgment by the accused
in the present appeal is mainly on the ground that the
prosecutrix was a consented party. Her conduct through
the entire period when she was with the accused shows that
the basic ingredients of offence of rape and kidnapping
are no satisfied. Both accused and the prosecutrix are
stated to have gone various places and as such prosecutrix
had ample opportunities to inform any person or even to
police that she was being forcibly kept by the accused.
In order to appreciate the contentions raised on behalf of
the appellant, reference to the case of the prosecution
would be necessary.
3. The accused was committed to the Court of
Sessions to stand trial for the offences afore-noticed.
The case of the prosecution has been noticed by the
learned trial court precisely in the following terms:-
“Briefly stated the facts are that PW.4 Miss
Geeta Devi prosecutrix aged about 14 years had
gone to fetch water from the water tap on
29.1.1990 at about 4.00 P.M. The accused met
her there and enticed her away by saying that
he would bet her ornaments and good clothes.
he took her to nearby hut, where he lived and
raped her there. The accused threatened her not
to tell anything to any person, otherwise she
would be killed.
3. On the same day, the accused took her to
his village Anwla near Bareli (U.P.) and kept
her there in his uncle’s house and also raped
her there by threatening her.
4. After village Anwla, he took her to bareli
where he kept her at the house of his brother
and also raped her there.
5. After Bareli he brought her back to Delhi
by saying that they would do some work at Delhi
and would also live there. However, at the
Railway Station, Delhi, they were caught by the
police.
6. PW.5 Malkhan Singh father of the
prosecutrix lodged report Ex. PF in the Police
Station on 1.2.1990, after he failed to trace
her.
7. On 10.2.1990, PW.7 Shanker Lal, Sub
Inspector along with Suraj Bhan PW reached
Railway Station, Delhi in search of the accused
and Miss Geeta Devi. they located the accused
and Miss Geeta Devi sitting in the waiting
room. They apprehended both of them and were
brought them to Faridabad. He sent Geeta with
lady constable PW.6, Sumitra for her medico
legal examination.
8. PW.1 Dr. Kusum Chaudhary medico legally
examined Miss Geeta at about 2.00 P.M. on
10.2.90 and opined that she was habitual to
sexual intercourse and the possibility of her
having sex could not be ruled out. She proved
Ex. PA carbon copy of her medico legal report
and also opinion Ex. PB/1 which she had given
on the application of police Ex. PB. After
examination, PW.1 handed over copy of medico
legal report, one parcel containing Salwar
Ex. PA and an envelope which were sealed with
his seal to PW.6 Sumitra lady constable, who in
turn handed over these articles to PW.7 Shanker
Lal. He took these articles into possession
vide recovery memo Ex.PK.
9. The accused was also got medico legally
examined from PW.2 Dr. G.D. Kalra who opined
that the accused was fit to perform sexual
intercourse. He proved Ex.PC carbon copy of
his medico legal report.
4. Charges were framed upon the accused.
Prosecution examined in addition to the afore-noticed,
witness Dr. Kusum Chaudhary, PW.1, Dr. G.D. Kalra, PW.2,
Mrs. Krishna Gera, Headmistress, PW.3 and Miss Geeta
Devi, PW.4 the prosecutrix herself. The report of FSL
Madhuban was placed on record as Ex. PJ and Ex. P7.
Affidavit of Tara Singh Head Constable was tendered in
evidence as exhibit PH. In his statement under Section
313 Cr.P.C., the accused denied the allegations and pleaded
his false implication in the case.
5. The case of the prosecution as emerges from
F.I.R. exhibit PF stands fully proved by the statement of
PW.4 Geeta Devi, who categorically stated that at the
relevant time, she was 14 years of age and fully supported
the case of the prosecution. In her cross-examination,
she did not even impliedly admit that she had accompanied
the accused out of her free will. She has, in fact,
categorically stated that she lived with the accused for
10-15 days and it was forcible detention All the previous
acquaintance with the accused were denied by her. Even as
per the medical evidence, the age of the prosecutrix was
stated to be 13-14 years. Upon medical examination, her
hymen was found to be torn. It had also come in evidence
that she was habitual to sexual intercourse. Exhibit PA
was the basic evidence to establish this fact. Thus,
version of the prosecution that she was subjected to
forcible sexual intercourse also stands proved.
6. Learned counsel for the appellant has not been
able to refer to any evidence on record which could
remotely suggest serious doubt in the prosecution case.
The mere fact that prosecutrix had been to various public
places including Delhi Railway Station per se would not be
sufficient to doubt the prosecution version. She was
under continuous threat and in fact was sexually abused.
Her conduct at that young age appears to be normal. The
events happening with her are bound to leave a scar on her
thinking and there is every likelihood of her being
apprehensive. Under no circumstances this can be case of
consent as argued by learned counsel for the accused.
Once the age of the prosecutrix had been proved on record
to be between 13-14 years, other factors are rendered
irrelevant including her implied or direct consent. Even
if for the sake of arguments it was assumed that she had
concurred or had gone with the accused of her own accord,
the result still would be the same and the accused can get
no benefit of this premise.
7. For the reasons stated above, I find no merit
in this appeal. The same is dismissed. The order of
conviction and sentence awarded by the learned trial court
is sustained.
8. The learned trial Court shall secure the
presence of the accused and direct him to undergo the
sentence awarded or any remaining part thereof.