SUNIL KUMAR ALIAS BHOLU Vs. STATE OF HARYANA

JUDGEMENT

(1.) SOLE appellant Sunil Kumar alias Bholu has filed this appeal impugning his conviction under Sections 363, 366-A and 376 IPC mainly on the ground that the trial court wrongly came to the conclusion about the age of the victim to be less than 16-17 years, whereas the evidence would clearly show her to be more than that age. Another ground in support of the appeal is that this was case of consent, rather than any forcible abduction or sexual intercourse as held. In support of his pleas, the appellant would mainly rely upon the evidence given by the victim, which, according to him, fully supports his case. The victim is not the complainant as the appellant was prosecuted on a complaint made by her father. The case, as set up by the complainant, runs as under :-

(2.) COMPLAINANT Suresh is having two daughters and three sons. The appellant, his neighbourer, was running a jewellery shop at the relevant time. Complainant alleges that the appellant used to roam around his house to which he objected. The objection, however, did not bring any change in the attitude of the appellant. On 17.7.2006, the complainant had taken his wife to Jind for collecting some medicines. His daughter, the victim, (whose particulars have been with-held from disclosure in view of Section 228-A of IPC) alone was present at the house as the other children of the complainant had gone for their daily work etc. When the complainant and his wife returned around 11.00 A.M., the victim was not found present at home. The complainant searched for his daughter, but he could not find any clue. In view of the known conduct of the appellant, the complainant came to suspect that the appellant had enticed his daughter. He accordingly lodged complaint, Exh.P8, with the police. This set the investigation in motion. The girl was recovered from the appellant on 26.7.2006. She was subjected to medico-legal examination. The victim was produced before Mrs.Seema Singhal, Judicial Magistrate Ist Class and her statement was recorded under Section 164 Cr.P.C. Taking the medical report into consideration, offence under Section 376 IPC was also added. The appellant was arrested and on completion of investigation, challan presented leading to his prosecution and conviction for offences under Sections 363, 366-A and 376 IPC. The appellant was sentenced as under :-

(3.) IN view of the stand taken by the appellant, who obviously is seen pleading consent on the part of the victim, the outcome of the case mainly would depend upon the determination about the age of the victim. In order to succeed, the prosecution was obliged to show that the age of prosecutrix is less than 16 years and as such the consent even if pleaded or otherwise proved, would be of no consequence. The offence of rape as defined under Section 375 IPC would stand established even if it be with the consent of prosecutrix, when she is under 16 years of age. Whole stress was in regard to the evidence concerning age of the prosecutrix. The counsel appearing for the appellant had, thus, mainly concentrated in making his submissions before the court on this aspect only. For this, the counsel has mainly relied upon the version given by the victim-prosecutrix and from this he has urged that this is a clear case of consent by a girl, who was having the age of discretion which was certainly beyond 16 years.