MOHINDER KUMAR Vs. STATE

JUDGEMENT

(1.) The appellant has been convicted of offences under sections 366 and 376, Indian Penal Code, by an Additional Sessions Judge videhis judgment dated 26/12/1983. He has been sentenced to rigorousimprisonment for seven years on the first count and rigorous imprisonmentfor ten years and a fine of Rs. 2.0CO.00 on the second count ; in default ofpayment of fine, he has been awarded further rigorous imprisonment for oneyear. However, the substantive sentences on both the counts have been madeto run concurrently. Feeling he has come up in appeal against his convictionand sentence.

(2.) The appellant is resident of house No. 5/5230, Regharpura, KarolBagh, New Delhi. He also owns house No. F-240, Street No. 12, LaxmiNagar, which is a trans-yamuna colony. Balrishan Gupta (PW 8), father ofthe prosecutrix, was living in a portion of the said house at the relevant timeas tenant of the appellant. He plies a scooter rickshaw. On 16/10/1981 at about 10.00 p.m. he lodged a report at Police Station Shakarpur to theeffect that on return to his home after day's work he learnt that the appellanthad seduced his daughter Rekha aged about 15 years at about 2.00 p,m. on thesaid date and that his daughter be got recovered from him. The investigationof the case was entrusted to SI Sewa Ram Sharma (PW 10) who was promptenough to proceed to the house of the appellant in Street No. 5, Regharpura,Karol Bagh, New Delhi, alongwith the father of the prosecutrix and constableDarshan Kumar. On reaching the house of the appellant, he found that theappellant and Prabba, daughter of the complainant, were lying on one bed innaked condition. He recovered the girl and took her with himself vide memoEx. Public Witness 8/A. He also arrested the appellant and took them both to PoliceStation Shakarpur where the custody of the girl was restored to her rather,She was produced before a Metropolitan Magistrate on the afternoon of 1 7/10/1981 and her statement under section 164, Code of Criminal Procedure(for short 'the Code') was recorded by Shri Rajesh Kumar, MetropolitanMagistrate, it being Ex. Public Witness 1/B. On the next following day, viz. 1 8/10/1981, she was got medically examined. Dr. S. Chaudhary, MedicalOfficer Police Hospital, Delhi, examined her and recorded her report Ex.PW 4/A. She then referred the prosecutrix to the radiologist for ossificationtest to determine her age. Dr. M.C. Bhatia, Radiologist took X-rays forassessment of her bony age and made his export Ex. Public Witness 5/A. According tohim, her age was about 14 years. The Investigation Officer also obtained acertificate of her age from the Principal, Govt. Girls Senior Secondary School,Laxmi Nagar, where she was studying in the 7th class at the relevant time andon completion of investigation the appellant was challaned.

(3.) The prosecution case as unfolded by the prosecutrix Prabha is that on 16/10/1981 at about 2 or 3 p.m. when she was present at her housethe appellant came there and asked her to accompany him but she refused todo so. The appellant then took her forcibly in a taxi to a restaurant inConnaught Place and offered her food which she refused to take. From therehe took her to his own house at Karol Bagh in a scooter rickshaw and heasked her the where abouts of her elder sister Meena. However, she expressedher ignorance about the same. Thereupon, the appellant gave her beating,stripped her and also undressed himself. He then committed rape on her.However, the police arrested the appellant after mid-night and she was restoredto her father. She gave her age to be 12 years on the date of the occurrence.During her cross-examination she admitted that her elder sister Meena, agedabout 22 years, had lived with the appellant for about two years and she had afemale child from him. However, she was not aware where she was living inthose days.