NARESH KUMAR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) BY fling this appeal, appellant has laid challenge to the judgment and order dated 8.4.1991 vide which he was convicted for commission of offence under Section 376 IPC and sentenced to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 1,000/-. In default of payment of fine he was to further undergo RI for one year.

(2.) APPELLANT along with Kirna, Chhindi, Pinta and Krishana, was put to face trial for commission of offences under Sections 361, 365, 366, 366-A, 368, 376, 504, 506/34 IPC. It was story of the complainant i.e. Sant Ram, father of the prosecutrix that on 9.11.1988 at about 5.00 P.M., Krishana, Kirna and Chhindi, came to his house and asked his wife to send Indu Bala, minor daughter of the complainant to Bazar for shopping in the presence of Om Parkash and Rajesh Kumar. Complainant waited for his daughter but she failed to return. When he enquired from the accused named above, he was told that his daughter has gone to some friend's house. Search at various places/houses failed. Accordingly, an application was made to the police but to of no avail.

(3.) COMPLAINANT led evidence to support his case. Trial Court on perusing preliminary evidence summoned all the accused named in the complaint for commission of offences as found mentioned in para 1 of this judgment. Trial Magistrate, vide order dated 6.6.1990, committed Naresh Kumar, appellant, Chhindi, Pinto, Kirna and Krishana to the Court of Sessions Judge, Kapurthala to face trial. Accused were charge-sheeted to which they pleaded not guilty and claimed trial. 6. To support its case, prosecution examined as many as 4 witnesses and also brought on record documentary evidence. On completion of prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C. wherein they denied all the accusations appearing against them in prosecution evidence and they claimed false implication. Specific defence was taken by the appellant that Indu Bala, who is more than 20 years of age, had come to Jalandhar of her own. It was further stated that he was not to be blamed, complaint had wrongly been filed against him and other accused. He also produced Harjit Singh as a defence witness. 7. Trial Court, on appraisal of evidence, as led by both the parties, acquitted Krishana, kirna, Chhindi, Pinta, however, appellant was convicted and sentenced for commissioner of an offence under Section 376 IPC only. Hence, this appeal. 8. Counsel for the appellant has vehemently contended that as per evidence on record, it was a case of consent. Prosecutrix had left with the appellant of her own without any compulsion. They had went from one place to another and she raised no objection at any time. He further, by referring to document, Ex. P/3, submitted that a false story had been concocted by the complainant to rope him, all family members and relatives of the appellant in this case. By referring to earlier statements recorded of the prosecurtix and the complainant, he argued that they had made major improvements and are also discrepant with each other, as such, their statements are not worthy of any credence and require to be discarded. He further stated that the prosecutrix had gone of her own free will with the appellant, as such, no case is made out to convict the appellant even for violation of Section 363 IPC. He prayed that appeal be allowed, judgment and order under challenge be set aside and the appellant be acquitted of the charges levelled against him. 9. Mr. G.S. Gill, A.A.G., Punjab, appearing for the respondent has vehemently opposed the arguments raised by counsel for the appellant. He, by referring to documents on record, has vehemently contended that guilt of the appellant/accused was proved on record. Prosecutrix was a minor, as such, her consent was immaterial. He further stated that since the prosecutrix was under threat, she failed to make any noise when she was being kept in confinement and was being shifted from one place to another. He prayed that appeal, having no substance be dismissed. 10. After hearing arguments and on appraisal of record, this Court feels that trial Court has erred in convicting the appellant for commission of offence under Section 376 IPC. It is proved on record and also held by the trial Court that age of the prosecutrix was more than 17 years. Even then appellant was convicted by opining that since she was a minor, her consent was immaterial. It was further found, as a matter of fact, that she had gone to the appellant of her own. However, by giving following finding, he was convicted :-