As per case facts, the complainant's minor daughter, aged about fifteen, went missing. The appellant, a tenant in their house, allegedly enticed and took her away. She was recovered after ...
CRA-S-820-SB-2004
IN THE HIGH COURT OF PUNJAB AND HARYANA
Whether only operative part of the judgment is Pronounced:
Whether full judgment is pronounced: YES
SAHIB ALAM
STATE OF HARYANA
CORAM: HON’BLE MS. JUSTICE RUPINDERJIT CHAHAL
Present: Mr. Surinder Singh Siao, Advocate for the appellant.
Mr. Gagandeep Singh Chhina, Sr. DAG Haryana.
RUPINDERJIT CHAHAL, J. (ORAL)
1. The present appeal is directed against the judgment of conviction
dated 11.07.2003 and the order of sentence dated 11.07.2003 passed by the learned
Additional Sessions Judge (Adhoc), Fast Track Court No. II, Faridabad, arising out
of FIR No. 785 dated 28.12.2001 registered under Sections 363, 366 and 376 of the
Indian Penal Code, 1860, at Police Station City Ballabgarh, District Faridabad,
whereby the appellant
under Sections 363, 366 and 376 of the Indian Penal Code, 1860.
By the order of sentence, the appellant was sentenced to undergo
imprisonment for a period of three years and to pay a fine of
of payment of fine, to further undergo imprisonment for two months, under Section
363 IPC; to undergo imprisonment for a period of five years and to pay a fine of
₹750/-, and, in default of payment of fine, to further undergo imprisonmen
1
2004
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA
Reserved on: 18.05.2026
Pronounced on:
Uploaded on:
Whether only operative part of the judgment is Pronounced:
Whether full judgment is pronounced: YES
V/s
STATE OF HARYANA
HON’BLE MS. JUSTICE RUPINDERJIT CHAHAL
Mr. Surinder Singh Siao, Advocate for the appellant.
Mr. Gagandeep Singh Chhina, Sr. DAG Haryana.
*****
RUPINDERJIT CHAHAL, J. (ORAL)
The present appeal is directed against the judgment of conviction
dated 11.07.2003 and the order of sentence dated 11.07.2003 passed by the learned
Sessions Judge (Adhoc), Fast Track Court No. II, Faridabad, arising out
of FIR No. 785 dated 28.12.2001 registered under Sections 363, 366 and 376 of the
Indian Penal Code, 1860, at Police Station City Ballabgarh, District Faridabad,
whereby the appellant Sahib Alam has been convicted for the offences punishable
under Sections 363, 366 and 376 of the Indian Penal Code, 1860.
By the order of sentence, the appellant was sentenced to undergo
imprisonment for a period of three years and to pay a fine of
of payment of fine, to further undergo imprisonment for two months, under Section
363 IPC; to undergo imprisonment for a period of five years and to pay a fine of
, and, in default of payment of fine, to further undergo imprisonmen
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-S-820-SB-2004
Reserved on: 18.05.2026
Pronounced on: 21.07.2026
Uploaded on: 21.07.2026
Whether only operative part of the judgment is Pronounced: NO
....Appellant
....Respondent
HON’BLE MS. JUSTICE RUPINDERJIT CHAHAL
Mr. Surinder Singh Siao, Advocate for the appellant.
Mr. Gagandeep Singh Chhina, Sr. DAG Haryana.
The present appeal is directed against the judgment of conviction
dated 11.07.2003 and the order of sentence dated 11.07.2003 passed by the learned
Sessions Judge (Adhoc), Fast Track Court No. II, Faridabad, arising out
of FIR No. 785 dated 28.12.2001 registered under Sections 363, 366 and 376 of the
Indian Penal Code, 1860, at Police Station City Ballabgarh, District Faridabad,
Sahib Alam has been convicted for the offences punishable
under Sections 363, 366 and 376 of the Indian Penal Code, 1860.
By the order of sentence, the appellant was sentenced to undergo
imprisonment for a period of three years and to pay a fine of ₹500/-, and, in default
of payment of fine, to further undergo imprisonment for two months, under Section
363 IPC; to undergo imprisonment for a period of five years and to pay a fine of
, and, in default of payment of fine, to further undergo imprisonment for
The present appeal is directed against the judgment of conviction
dated 11.07.2003 and the order of sentence dated 11.07.2003 passed by the learned
Sessions Judge (Adhoc), Fast Track Court No. II, Faridabad, arising out
of FIR No. 785 dated 28.12.2001 registered under Sections 363, 366 and 376 of the
Indian Penal Code, 1860, at Police Station City Ballabgarh, District Faridabad,
Sahib Alam has been convicted for the offences punishable
By the order of sentence, the appellant was sentenced to undergo
, and, in default
of payment of fine, to further undergo imprisonment for two months, under Section
363 IPC; to undergo imprisonment for a period of five years and to pay a fine of
t for
CRA-S-820-SB-2004
three months, under Section 366 IPC; and to undergo imprisonment for a period of
seven years and to pay a fine of
further undergo imprisonment for four months, under Section 376 IPC. All the
substantive sentences were ordered to run concurrently, and the benefit of set off
under Section 428 Cr.P.C. was extended to the appellant for the period of custody
undergone during investigation and trial.
2. The prosecution case, in brief, is that the FIR in que
registered on the statement of the complainant Idris (PW
prosecutrix, alleging that his minor daughter, aged about fifteen years, had gone
missing from the house.
was residing as a tenant in a portion of the house owned by the father of the
prosecutrix and was thus known to and familiar with the family, took advantage of
the said familiarity and, on 22.12.2001, enticed and took away the prosecutrix from
the lawful custody of her parents.
Despite searches made by the complainant and his relatives, the
prosecutrix could not be traced, whereupon the complainant approached the police
and the present case came to be registered on 28.12.2001. During the course of
investigation, the prosecutrix was recovered on 01.02.2002 from the Bus Stand of
old Faridabad, where the appellant had left her, and her statement was recorded.
She alleged that, after taking her away from the lawful custody of her parents, the
appellant had kep
against her will during the period she remained in his company.
The prosecutrix was got medically examined; the appellant was
arrested on 16.03.2002 and was also got medically examined
perform sexual intercourse. The vaginal swabs of the prosecutrix were sent to the
2
2004
three months, under Section 366 IPC; and to undergo imprisonment for a period of
seven years and to pay a fine of ₹1,000/-, and, in default of payment of fine, to
further undergo imprisonment for four months, under Section 376 IPC. All the
e sentences were ordered to run concurrently, and the benefit of set off
under Section 428 Cr.P.C. was extended to the appellant for the period of custody
undergone during investigation and trial.
The prosecution case, in brief, is that the FIR in que
registered on the statement of the complainant Idris (PW
prosecutrix, alleging that his minor daughter, aged about fifteen years, had gone
missing from the house. As per the prosecution, the appellant Sahib Alam, who
was residing as a tenant in a portion of the house owned by the father of the
prosecutrix and was thus known to and familiar with the family, took advantage of
the said familiarity and, on 22.12.2001, enticed and took away the prosecutrix from
ustody of her parents.
Despite searches made by the complainant and his relatives, the
prosecutrix could not be traced, whereupon the complainant approached the police
and the present case came to be registered on 28.12.2001. During the course of
gation, the prosecutrix was recovered on 01.02.2002 from the Bus Stand of
old Faridabad, where the appellant had left her, and her statement was recorded.
She alleged that, after taking her away from the lawful custody of her parents, the
appellant had kept her at various places and had subjected her to sexual intercourse
against her will during the period she remained in his company.
The prosecutrix was got medically examined; the appellant was
arrested on 16.03.2002 and was also got medically examined
perform sexual intercourse. The vaginal swabs of the prosecutrix were sent to the
three months, under Section 366 IPC; and to undergo imprisonment for a period of
, and, in default of payment of fine, to
further undergo imprisonment for four months, under Section 376 IPC. All the
e sentences were ordered to run concurrently, and the benefit of set off
under Section 428 Cr.P.C. was extended to the appellant for the period of custody
The prosecution case, in brief, is that the FIR in question came to be
registered on the statement of the complainant Idris (PW-1), the father of the
prosecutrix, alleging that his minor daughter, aged about fifteen years, had gone
As per the prosecution, the appellant Sahib Alam, who
was residing as a tenant in a portion of the house owned by the father of the
prosecutrix and was thus known to and familiar with the family, took advantage of
the said familiarity and, on 22.12.2001, enticed and took away the prosecutrix from
Despite searches made by the complainant and his relatives, the
prosecutrix could not be traced, whereupon the complainant approached the police
and the present case came to be registered on 28.12.2001. During the course of
gation, the prosecutrix was recovered on 01.02.2002 from the Bus Stand of
old Faridabad, where the appellant had left her, and her statement was recorded.
She alleged that, after taking her away from the lawful custody of her parents, the
t her at various places and had subjected her to sexual intercourse
against her will during the period she remained in his company.
The prosecutrix was got medically examined; the appellant was
arrested on 16.03.2002 and was also got medically examined and found fit to
perform sexual intercourse. The vaginal swabs of the prosecutrix were sent to the
three months, under Section 366 IPC; and to undergo imprisonment for a period of
, and, in default of payment of fine, to
further undergo imprisonment for four months, under Section 376 IPC. All the
e sentences were ordered to run concurrently, and the benefit of set off
under Section 428 Cr.P.C. was extended to the appellant for the period of custody
stion came to be
1), the father of the
prosecutrix, alleging that his minor daughter, aged about fifteen years, had gone
As per the prosecution, the appellant Sahib Alam, who
was residing as a tenant in a portion of the house owned by the father of the
prosecutrix and was thus known to and familiar with the family, took advantage of
the said familiarity and, on 22.12.2001, enticed and took away the prosecutrix from
Despite searches made by the complainant and his relatives, the
prosecutrix could not be traced, whereupon the complainant approached the police
and the present case came to be registered on 28.12.2001. During the course of
gation, the prosecutrix was recovered on 01.02.2002 from the Bus Stand of
old Faridabad, where the appellant had left her, and her statement was recorded.
She alleged that, after taking her away from the lawful custody of her parents, the
t her at various places and had subjected her to sexual intercourse
The prosecutrix was got medically examined; the appellant was
and found fit to
perform sexual intercourse. The vaginal swabs of the prosecutrix were sent to the
CRA-S-820-SB-2004
Forensic Science Laboratory, and, as per the report Ex.PH, human semen was
detected thereon. Upon completion of the investigation, the challan was presented
against the appellant.
3. In order to substantiate its case, the prosecution examined eleven
witnesses. PW1, Idris, the complainant and father of the prosecutrix, and PW2, the
prosecutrix, deposed regarding the occurrence. PW3, Dr. Chander Bhan, medicall
examined the accused and opined that he was capable of performing sexual
intercourse. PW7, Dr. Rashmi Gupta medically examined the prosecutrix and
proved her Medico
conducted the radiological examin
age. PW11, Darshana Devi, the then Principal of the concerned school, proved the
School Leaving Certificate (Ex. PN) relating to the age of the prosecutrix. PW4
HC Rajinder Singh, PW5 HC Ram Singh, PW6
Ram Bhagat and PW9 SI Jai Prakash are the official witnesses who deposed
regarding the deposit and transmission of the case property, preparation of the site
plan, recovery of the prosecutrix, investigation conducted in the presen
the arrest of the accused. The prosecution also tendered in evidence the
documentary record comprising the Medico
the accused, the radiological report (Ex. PM), the School Leaving Certificate (Ex.
PN), and the report of the Forensic Science Laboratory (Ex. PH).
4. Finding a prima facie case, the learned trial Court framed charges
against the accused for the offences punishable under Sections 363, 366 and 376 of
the Indian Penal Code, to which he pleaded not
closure of the prosecution evidence, the statement of the accused under Section
313 of the Code of Criminal Procedure was recorded, wherein all the incriminating
3
2004
Forensic Science Laboratory, and, as per the report Ex.PH, human semen was
detected thereon. Upon completion of the investigation, the challan was presented
against the appellant.
In order to substantiate its case, the prosecution examined eleven
witnesses. PW1, Idris, the complainant and father of the prosecutrix, and PW2, the
prosecutrix, deposed regarding the occurrence. PW3, Dr. Chander Bhan, medicall
examined the accused and opined that he was capable of performing sexual
intercourse. PW7, Dr. Rashmi Gupta medically examined the prosecutrix and
proved her Medico-Legal Report (MLR). PW10, Dr. S.P. Jayant, Radiologist,
conducted the radiological examination of the prosecutrix for determination of her
age. PW11, Darshana Devi, the then Principal of the concerned school, proved the
School Leaving Certificate (Ex. PN) relating to the age of the prosecutrix. PW4
HC Rajinder Singh, PW5 HC Ram Singh, PW6 Draf
Ram Bhagat and PW9 SI Jai Prakash are the official witnesses who deposed
regarding the deposit and transmission of the case property, preparation of the site
plan, recovery of the prosecutrix, investigation conducted in the presen
the arrest of the accused. The prosecution also tendered in evidence the
documentary record comprising the Medico-Legal Reports of the prosecutrix and
the accused, the radiological report (Ex. PM), the School Leaving Certificate (Ex.
e report of the Forensic Science Laboratory (Ex. PH).
Finding a prima facie case, the learned trial Court framed charges
against the accused for the offences punishable under Sections 363, 366 and 376 of
the Indian Penal Code, to which he pleaded not guilty and claimed trial. Upon the
closure of the prosecution evidence, the statement of the accused under Section
313 of the Code of Criminal Procedure was recorded, wherein all the incriminating
Forensic Science Laboratory, and, as per the report Ex.PH, human semen was
detected thereon. Upon completion of the investigation, the challan was presented
In order to substantiate its case, the prosecution examined eleven
witnesses. PW1, Idris, the complainant and father of the prosecutrix, and PW2, the
prosecutrix, deposed regarding the occurrence. PW3, Dr. Chander Bhan, medicall
examined the accused and opined that he was capable of performing sexual
intercourse. PW7, Dr. Rashmi Gupta medically examined the prosecutrix and
Legal Report (MLR). PW10, Dr. S.P. Jayant, Radiologist,
ation of the prosecutrix for determination of her
age. PW11, Darshana Devi, the then Principal of the concerned school, proved the
School Leaving Certificate (Ex. PN) relating to the age of the prosecutrix. PW4
Draftsman Ashok Kumar, PW8 SI
Ram Bhagat and PW9 SI Jai Prakash are the official witnesses who deposed
regarding the deposit and transmission of the case property, preparation of the site
plan, recovery of the prosecutrix, investigation conducted in the present case and
the arrest of the accused. The prosecution also tendered in evidence the
Legal Reports of the prosecutrix and
the accused, the radiological report (Ex. PM), the School Leaving Certificate (Ex.
e report of the Forensic Science Laboratory (Ex. PH).
Finding a prima facie case, the learned trial Court framed charges
against the accused for the offences punishable under Sections 363, 366 and 376 of
guilty and claimed trial. Upon the
closure of the prosecution evidence, the statement of the accused under Section
313 of the Code of Criminal Procedure was recorded, wherein all the incriminating
Forensic Science Laboratory, and, as per the report Ex.PH, human semen was
detected thereon. Upon completion of the investigation, the challan was presented
In order to substantiate its case, the prosecution examined eleven
witnesses. PW1, Idris, the complainant and father of the prosecutrix, and PW2, the
prosecutrix, deposed regarding the occurrence. PW3, Dr. Chander Bhan, medically
examined the accused and opined that he was capable of performing sexual
intercourse. PW7, Dr. Rashmi Gupta medically examined the prosecutrix and
Legal Report (MLR). PW10, Dr. S.P. Jayant, Radiologist,
ation of the prosecutrix for determination of her
age. PW11, Darshana Devi, the then Principal of the concerned school, proved the
School Leaving Certificate (Ex. PN) relating to the age of the prosecutrix. PW4
Ashok Kumar, PW8 SI
Ram Bhagat and PW9 SI Jai Prakash are the official witnesses who deposed
regarding the deposit and transmission of the case property, preparation of the site
t case and
the arrest of the accused. The prosecution also tendered in evidence the
Legal Reports of the prosecutrix and
the accused, the radiological report (Ex. PM), the School Leaving Certificate (Ex.
Finding a prima facie case, the learned trial Court framed charges
against the accused for the offences punishable under Sections 363, 366 and 376 of
guilty and claimed trial. Upon the
closure of the prosecution evidence, the statement of the accused under Section
313 of the Code of Criminal Procedure was recorded, wherein all the incriminating
CRA-S-820-SB-2004
circumstances appearing against him in the prosecution evid
The accused denied the prosecution allegations in
implication. He set up the defence that he was residing as a tenant in the house of
the father of the prosecutrix, who wanted to evict him from the tenanted premises
and, on that account, had falsely implicated him in the present case.
In support of his defence, the appellant examined five witnesses,
namely DW-1 Manoj Kumar, DW
Food and Supplies Officer, Ballabgarh), DW
Numberdar and DW
ration card application Ex.D1.
The learned trial Court, upon an appreciation of the entire oral as well
as documentary evidence on record, held the prosecution to have proved its case
beyond reasonable doubt and, accor
as noticed above. Aggrieved thereby, the present appeal has been preferred.
5. Learned counsel for the appellant has vehemently assailed the
impugned judgment primarily on the ground that the learned trial Co
appreciate the evidence in its correct perspective. It is contended that the
prosecution failed to establish that the prosecutrix was a minor on the date of the
alleged occurrence. Elaborating the submission, it is argued that though reliance
has been placed upon the School Leaving Certificate (Ex.PN), the prosecution
neither produced the birth certificate of the prosecutrix nor examined the person
who had furnished the date of birth at the time of her admission to the school, and
that, in the absence of such foundational evidence, the School Leaving Certificate
could not have been safely relied upon for determining the age of the prosecutrix.
4
2004
circumstances appearing against him in the prosecution evid
The accused denied the prosecution allegations in
implication. He set up the defence that he was residing as a tenant in the house of
the father of the prosecutrix, who wanted to evict him from the tenanted premises
and, on that account, had falsely implicated him in the present case.
In support of his defence, the appellant examined five witnesses,
1 Manoj Kumar, DW-2 Harchand (Clerk in the office of the Assistant
Food and Supplies Officer, Ballabgarh), DW-3 Abdul Rasid, DW
Numberdar and DW-5 Iyyazudin, Ex-Sarpanch, and tendered in evidence the
ration card application Ex.D1.
The learned trial Court, upon an appreciation of the entire oral as well
as documentary evidence on record, held the prosecution to have proved its case
beyond reasonable doubt and, accordingly, convicted and sentenced the appellant
as noticed above. Aggrieved thereby, the present appeal has been preferred.
Learned counsel for the appellant has vehemently assailed the
impugned judgment primarily on the ground that the learned trial Co
appreciate the evidence in its correct perspective. It is contended that the
prosecution failed to establish that the prosecutrix was a minor on the date of the
alleged occurrence. Elaborating the submission, it is argued that though reliance
has been placed upon the School Leaving Certificate (Ex.PN), the prosecution
neither produced the birth certificate of the prosecutrix nor examined the person
who had furnished the date of birth at the time of her admission to the school, and
absence of such foundational evidence, the School Leaving Certificate
could not have been safely relied upon for determining the age of the prosecutrix.
circumstances appearing against him in the prosecution evidence were put to him.
The accused denied the prosecution allegations in toto and pleaded false
implication. He set up the defence that he was residing as a tenant in the house of
the father of the prosecutrix, who wanted to evict him from the tenanted premises
and, on that account, had falsely implicated him in the present case.
In support of his defence, the appellant examined five witnesses,
2 Harchand (Clerk in the office of the Assistant
3 Abdul Rasid, DW-4 Yusuf Khan
anch, and tendered in evidence the
The learned trial Court, upon an appreciation of the entire oral as well
as documentary evidence on record, held the prosecution to have proved its case
dingly, convicted and sentenced the appellant
as noticed above. Aggrieved thereby, the present appeal has been preferred.
Learned counsel for the appellant has vehemently assailed the
impugned judgment primarily on the ground that the learned trial Court failed to
appreciate the evidence in its correct perspective. It is contended that the
prosecution failed to establish that the prosecutrix was a minor on the date of the
alleged occurrence. Elaborating the submission, it is argued that though reliance
has been placed upon the School Leaving Certificate (Ex.PN), the prosecution
neither produced the birth certificate of the prosecutrix nor examined the person
who had furnished the date of birth at the time of her admission to the school, and
absence of such foundational evidence, the School Leaving Certificate
could not have been safely relied upon for determining the age of the prosecutrix.
ence were put to him.
and pleaded false
implication. He set up the defence that he was residing as a tenant in the house of
the father of the prosecutrix, who wanted to evict him from the tenanted premises
In support of his defence, the appellant examined five witnesses,
2 Harchand (Clerk in the office of the Assistant
4 Yusuf Khan
anch, and tendered in evidence the
The learned trial Court, upon an appreciation of the entire oral as well
as documentary evidence on record, held the prosecution to have proved its case
dingly, convicted and sentenced the appellant
Learned counsel for the appellant has vehemently assailed the
urt failed to
appreciate the evidence in its correct perspective. It is contended that the
prosecution failed to establish that the prosecutrix was a minor on the date of the
alleged occurrence. Elaborating the submission, it is argued that though reliance
has been placed upon the School Leaving Certificate (Ex.PN), the prosecution
neither produced the birth certificate of the prosecutrix nor examined the person
who had furnished the date of birth at the time of her admission to the school, and
absence of such foundational evidence, the School Leaving Certificate
CRA-S-820-SB-2004
5.1 It is further submitted that the radiological examination conducted by
PW-10 assessed the age of
witness himself admitted, during cross
ossification test could vary by about two years on either side, and that the benefit
of such variation ought to have
5.2 The next limb of the argument is that the evidence on record
unmistakably indicates that the prosecutrix had voluntarily accompanied the
appellant, inasmuch as she remained in his company for about forty
travelled through public places and public transport and came into contact with
numerous persons, yet did not raise any alarm or make any attempt to escape,
which conduct, according to the learned counsel, is wholly inconsistent with the
allegation that she ha
against her will.
5.3 It has further been argued that the statement of the prosecutrix cannot
be relied upon as the medical evidence does not lend support to the prosecution
version, as no exte
any injury noticed on her private parts during the medical examination, which,
according to the learned counsel, probabilises the plea that the physical
relationship, if any, was consensual.
5.4 It has additionally been contended that the relatives who had allegedly
participated in the search for the prosecutrix were not examined during the trial,
and that such omission to examine material witnesses casts a serious doubt on the
veracity of the prosecution case. On the strength of the aforesaid submissions,
learned counsel prays that the impugned judgment of conviction and the order of
sentence be set aside and the appellant be acquitted of the charges.
5
2004
It is further submitted that the radiological examination conducted by
10 assessed the age of the prosecutrix to be around sixteen years, and that the
witness himself admitted, during cross-examination, that the age determined by the
ossification test could vary by about two years on either side, and that the benefit
of such variation ought to have been extended to the appellant.
The next limb of the argument is that the evidence on record
unmistakably indicates that the prosecutrix had voluntarily accompanied the
appellant, inasmuch as she remained in his company for about forty
elled through public places and public transport and came into contact with
numerous persons, yet did not raise any alarm or make any attempt to escape,
which conduct, according to the learned counsel, is wholly inconsistent with the
allegation that she had been forcibly taken away or subjected to sexual intercourse
It has further been argued that the statement of the prosecutrix cannot
be relied upon as the medical evidence does not lend support to the prosecution
version, as no external injury was found on the person of the prosecutrix, nor was
any injury noticed on her private parts during the medical examination, which,
according to the learned counsel, probabilises the plea that the physical
relationship, if any, was consensual.
It has additionally been contended that the relatives who had allegedly
participated in the search for the prosecutrix were not examined during the trial,
and that such omission to examine material witnesses casts a serious doubt on the
e prosecution case. On the strength of the aforesaid submissions,
learned counsel prays that the impugned judgment of conviction and the order of
sentence be set aside and the appellant be acquitted of the charges.
It is further submitted that the radiological examination conducted by
the prosecutrix to be around sixteen years, and that the
examination, that the age determined by the
ossification test could vary by about two years on either side, and that the benefit
been extended to the appellant.
The next limb of the argument is that the evidence on record
unmistakably indicates that the prosecutrix had voluntarily accompanied the
appellant, inasmuch as she remained in his company for about forty-two days,
elled through public places and public transport and came into contact with
numerous persons, yet did not raise any alarm or make any attempt to escape,
which conduct, according to the learned counsel, is wholly inconsistent with the
d been forcibly taken away or subjected to sexual intercourse
It has further been argued that the statement of the prosecutrix cannot
be relied upon as the medical evidence does not lend support to the prosecution
rnal injury was found on the person of the prosecutrix, nor was
any injury noticed on her private parts during the medical examination, which,
according to the learned counsel, probabilises the plea that the physical
It has additionally been contended that the relatives who had allegedly
participated in the search for the prosecutrix were not examined during the trial,
and that such omission to examine material witnesses casts a serious doubt on the
e prosecution case. On the strength of the aforesaid submissions,
learned counsel prays that the impugned judgment of conviction and the order of
sentence be set aside and the appellant be acquitted of the charges.
It is further submitted that the radiological examination conducted by
the prosecutrix to be around sixteen years, and that the
examination, that the age determined by the
ossification test could vary by about two years on either side, and that the benefit
The next limb of the argument is that the evidence on record
unmistakably indicates that the prosecutrix had voluntarily accompanied the
two days,
elled through public places and public transport and came into contact with
numerous persons, yet did not raise any alarm or make any attempt to escape,
which conduct, according to the learned counsel, is wholly inconsistent with the
d been forcibly taken away or subjected to sexual intercourse
It has further been argued that the statement of the prosecutrix cannot
be relied upon as the medical evidence does not lend support to the prosecution
rnal injury was found on the person of the prosecutrix, nor was
any injury noticed on her private parts during the medical examination, which,
according to the learned counsel, probabilises the plea that the physical
It has additionally been contended that the relatives who had allegedly
participated in the search for the prosecutrix were not examined during the trial,
and that such omission to examine material witnesses casts a serious doubt on the
e prosecution case. On the strength of the aforesaid submissions,
learned counsel prays that the impugned judgment of conviction and the order of
CRA-S-820-SB-2004
6. Per contra, learned State counsel ha
judgment in its entirety and submitted that the learned trial Court has meticulously
appreciated the oral as well as documentary evidence and returned findings which
are fully borne out from the record and do not suffer from any il
or misreading of evidence warranting interference by this Court.
the prosecution has led cogent evidence to establish that the prosecutrix was below
sixteen years of age on the date of the occurrence. Apart from the t
PW-1 and the prosecutrix herself, reliance has rightly been placed upon the School
Leaving Certificate (Ex. PN), which was duly proved by PW
the relevant record. Learned State counsel submits that the said document had
come into existence much prior to the occurrence and there is no material
whatsoever to suggest that the entry regarding the date of birth had been
manipulated or fabricated.
prosecutrix is natural, consistent
examination, no material contradiction or improvement has been elicited so as to
discredit her version. Her testimony also receives assurance from the medical and
scientific evidence brought on record by the
contends that the absence of external injuries is not decisive in the facts of the
present case, particularly when the prosecutrix had remained in the company of the
appellant for a considerable period before her medical
argued that the non
affect the substratum of the prosecution case when the material witnesses have
been examined and their evidence inspires confidence. With regard to
taken by the appellant, learned State counsel submits that the plea of false
implication on account of an alleged tenancy dispute is a bald assertion,
unsupported by any evidence whatsoever. The appellant neither examined any
6
2004
Per contra, learned State counsel ha
judgment in its entirety and submitted that the learned trial Court has meticulously
appreciated the oral as well as documentary evidence and returned findings which
are fully borne out from the record and do not suffer from any il
or misreading of evidence warranting interference by this Court.
the prosecution has led cogent evidence to establish that the prosecutrix was below
sixteen years of age on the date of the occurrence. Apart from the t
1 and the prosecutrix herself, reliance has rightly been placed upon the School
Leaving Certificate (Ex. PN), which was duly proved by PW
the relevant record. Learned State counsel submits that the said document had
into existence much prior to the occurrence and there is no material
whatsoever to suggest that the entry regarding the date of birth had been
fabricated. It is further submitted that the testimony of the
prosecutrix is natural, consistent and inspires confidence. Despite extensive cross
examination, no material contradiction or improvement has been elicited so as to
discredit her version. Her testimony also receives assurance from the medical and
scientific evidence brought on record by the prosecution. Learned State counsel
contends that the absence of external injuries is not decisive in the facts of the
present case, particularly when the prosecutrix had remained in the company of the
appellant for a considerable period before her medical
argued that the non-examination of certain formal or peripheral witnesses does not
affect the substratum of the prosecution case when the material witnesses have
been examined and their evidence inspires confidence. With regard to
taken by the appellant, learned State counsel submits that the plea of false
implication on account of an alleged tenancy dispute is a bald assertion,
unsupported by any evidence whatsoever. The appellant neither examined any
Per contra, learned State counsel has supported the impugned
judgment in its entirety and submitted that the learned trial Court has meticulously
appreciated the oral as well as documentary evidence and returned findings which
are fully borne out from the record and do not suffer from any illegality, perversity
or misreading of evidence warranting interference by this Court. It is argued that
the prosecution has led cogent evidence to establish that the prosecutrix was below
sixteen years of age on the date of the occurrence. Apart from the testimony of
1 and the prosecutrix herself, reliance has rightly been placed upon the School
Leaving Certificate (Ex. PN), which was duly proved by PW-11, the custodian of
the relevant record. Learned State counsel submits that the said document had
into existence much prior to the occurrence and there is no material
whatsoever to suggest that the entry regarding the date of birth had been
It is further submitted that the testimony of the
and inspires confidence. Despite extensive cross
examination, no material contradiction or improvement has been elicited so as to
discredit her version. Her testimony also receives assurance from the medical and
prosecution. Learned State counsel
contends that the absence of external injuries is not decisive in the facts of the
present case, particularly when the prosecutrix had remained in the company of the
appellant for a considerable period before her medical examination. It is also
examination of certain formal or peripheral witnesses does not
affect the substratum of the prosecution case when the material witnesses have
been examined and their evidence inspires confidence. With regard to the defence
taken by the appellant, learned State counsel submits that the plea of false
implication on account of an alleged tenancy dispute is a bald assertion,
unsupported by any evidence whatsoever. The appellant neither examined any
s supported the impugned
judgment in its entirety and submitted that the learned trial Court has meticulously
appreciated the oral as well as documentary evidence and returned findings which
legality, perversity
It is argued that
the prosecution has led cogent evidence to establish that the prosecutrix was below
estimony of
1 and the prosecutrix herself, reliance has rightly been placed upon the School
11, the custodian of
the relevant record. Learned State counsel submits that the said document had
into existence much prior to the occurrence and there is no material
whatsoever to suggest that the entry regarding the date of birth had been
It is further submitted that the testimony of the
and inspires confidence. Despite extensive cross-
examination, no material contradiction or improvement has been elicited so as to
discredit her version. Her testimony also receives assurance from the medical and
prosecution. Learned State counsel
contends that the absence of external injuries is not decisive in the facts of the
present case, particularly when the prosecutrix had remained in the company of the
examination. It is also
examination of certain formal or peripheral witnesses does not
affect the substratum of the prosecution case when the material witnesses have
the defence
taken by the appellant, learned State counsel submits that the plea of false
implication on account of an alleged tenancy dispute is a bald assertion,
unsupported by any evidence whatsoever. The appellant neither examined any
CRA-S-820-SB-2004
witness nor produc
On the contrary, the suggestions put to the prosecutrix during her cross
examination indicate that the defence itself attempted to project a case of
consensual relationship, thereby rendering
inherently inconsistent. It is, therefore, contended that the learned trial Court has
rightly rejected the defence version and recorded the conviction.
7. I have heard learned counsel for the parties and have carefully gone
through the entire record.
7.1 Before adverting to the rival submissions, it would be apposite to
notice the statutory provisions that fall for consideration. Sections 361 and 366
IPC, and Section 375 IPC as it stood at the relevant time, read as under:
“Section 361. Kidnapping from lawful guardianship.
Whoever takes or entices any minor under sixteen years of age if a male, or
under eighteen years of age if a female, or any person of un
of the keeping of the lawful guardian of such minor or person of unsound
mind, without the consent of such guardian, is said to kidnap such minor or
person from lawful guardianship.
Explanation.
lawfully entrusted with the care or custody of such minor or other person.”
“Section 366. Kidnapping, abducting or inducing woman to compel her
marriage, etc.
Whoever kidnaps or abducts any woman with intent that she may be
compelled, or knowing it to be likely that she will be compelled, to marry
any person against her will, or in order that she may be forced or seduced
to illicit intercourse, or knowing it to
seduced to illicit intercourse, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be
liable to fine; and whoever, by means of criminal intimidation as def
this Code or of abuse of authority or any other method of compulsion,
induces any woman to go from any place with intent that she may be, or
7
2004
witness nor produced any document to substantiate the existence of such a dispute.
On the contrary, the suggestions put to the prosecutrix during her cross
examination indicate that the defence itself attempted to project a case of
consensual relationship, thereby rendering the plea of complete false implication
inherently inconsistent. It is, therefore, contended that the learned trial Court has
rightly rejected the defence version and recorded the conviction.
have heard learned counsel for the parties and have carefully gone
through the entire record.
Before adverting to the rival submissions, it would be apposite to
notice the statutory provisions that fall for consideration. Sections 361 and 366
nd Section 375 IPC as it stood at the relevant time, read as under:
“Section 361. Kidnapping from lawful guardianship.
Whoever takes or entices any minor under sixteen years of age if a male, or
under eighteen years of age if a female, or any person of un
of the keeping of the lawful guardian of such minor or person of unsound
mind, without the consent of such guardian, is said to kidnap such minor or
person from lawful guardianship.
Explanation.-The words ‘lawful guardian’ in this section i
lawfully entrusted with the care or custody of such minor or other person.”
“Section 366. Kidnapping, abducting or inducing woman to compel her
marriage, etc.-
Whoever kidnaps or abducts any woman with intent that she may be
compelled, or knowing it to be likely that she will be compelled, to marry
any person against her will, or in order that she may be forced or seduced
to illicit intercourse, or knowing it to be likely that she will be forced or
seduced to illicit intercourse, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be
liable to fine; and whoever, by means of criminal intimidation as def
this Code or of abuse of authority or any other method of compulsion,
induces any woman to go from any place with intent that she may be, or
ed any document to substantiate the existence of such a dispute.
On the contrary, the suggestions put to the prosecutrix during her cross
examination indicate that the defence itself attempted to project a case of
the plea of complete false implication
inherently inconsistent. It is, therefore, contended that the learned trial Court has
rightly rejected the defence version and recorded the conviction.
have heard learned counsel for the parties and have carefully gone
Before adverting to the rival submissions, it would be apposite to
notice the statutory provisions that fall for consideration. Sections 361 and 366
nd Section 375 IPC as it stood at the relevant time, read as under:
“Section 361. Kidnapping from lawful guardianship.-
Whoever takes or entices any minor under sixteen years of age if a male, or
under eighteen years of age if a female, or any person of unsound mind, out
of the keeping of the lawful guardian of such minor or person of unsound
mind, without the consent of such guardian, is said to kidnap such minor or
The words ‘lawful guardian’ in this section include any person
lawfully entrusted with the care or custody of such minor or other person.”
“Section 366. Kidnapping, abducting or inducing woman to compel her
Whoever kidnaps or abducts any woman with intent that she may be
compelled, or knowing it to be likely that she will be compelled, to marry
any person against her will, or in order that she may be forced or seduced
be likely that she will be forced or
seduced to illicit intercourse, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be
liable to fine; and whoever, by means of criminal intimidation as defined in
this Code or of abuse of authority or any other method of compulsion,
induces any woman to go from any place with intent that she may be, or
ed any document to substantiate the existence of such a dispute.
On the contrary, the suggestions put to the prosecutrix during her cross-
examination indicate that the defence itself attempted to project a case of
the plea of complete false implication
inherently inconsistent. It is, therefore, contended that the learned trial Court has
have heard learned counsel for the parties and have carefully gone
Before adverting to the rival submissions, it would be apposite to
notice the statutory provisions that fall for consideration. Sections 361 and 366
CRA-S-820-SB-2004
knowing that it is likely that she will be, forced or seduced to illicit
intercourse with another person s
“Section 375. Rape.
A man is said to commit “rape” who, except in the case hereinafter
excepted, has sexual intercourse with a woman under circumstances falling
under any of the six following descriptions:
Firstly.-Against her will.
Secondly.-Without her consent.
Thirdly.-With her consent, when her consent has been obtained by putting
her or any person in whom she is interested in fear of death or of hurt.
Fourthly.-With her consent, when the man knows that he is not
and that her consent is given because she believes that he is another man to
whom she is or believes herself to be lawfully married.
Fifthly.-With her consent, when, at the time of giving such consent, by
reason of unsoundness of mind or into
personally or through another of any stupefying or unwholesome substance,
she is unable to understand the nature and consequences of that to which
she gives consent.
Sixthly.-With or without her consent, when she is un
Explanation.
necessary to the offence of rape.”
7.2 A conjoint reading of the aforesaid provisions makes it manifest that,
for the offence of kidnapping from lawful g
female is under eighteen
sixth description of Section 375 IPC as it then stood, the material age is that the
girl is under sixteen
her consent”. The consent of a minor is, therefore, of no legal consequence, either
qua the offence of kidnapping or qua the offence of rape.
8. The first and foremost question that arises for consideration is whether
the prosecution has been able to establish that the prosecutrix was below sixteen
years of age on the date of the occurrence. The answer to this question assumes
8
2004
knowing that it is likely that she will be, forced or seduced to illicit
intercourse with another person shall also be punishable as aforesaid.”
“Section 375. Rape.-
A man is said to commit “rape” who, except in the case hereinafter
excepted, has sexual intercourse with a woman under circumstances falling
under any of the six following descriptions:-
Against her will.
Without her consent.
With her consent, when her consent has been obtained by putting
her or any person in whom she is interested in fear of death or of hurt.
With her consent, when the man knows that he is not
and that her consent is given because she believes that he is another man to
whom she is or believes herself to be lawfully married.
With her consent, when, at the time of giving such consent, by
reason of unsoundness of mind or intoxication or the administration by him
personally or through another of any stupefying or unwholesome substance,
she is unable to understand the nature and consequences of that to which
she gives consent.
With or without her consent, when she is un
Explanation.-Penetration is sufficient to constitute the sexual intercourse
necessary to the offence of rape.”
A conjoint reading of the aforesaid provisions makes it manifest that,
for the offence of kidnapping from lawful guardianship, the statutory age of a
eighteen years, whereas, for the offence of rape falling within the
sixth description of Section 375 IPC as it then stood, the material age is that the
under sixteen years, in which event the act
her consent”. The consent of a minor is, therefore, of no legal consequence, either
qua the offence of kidnapping or qua the offence of rape.
The first and foremost question that arises for consideration is whether
the prosecution has been able to establish that the prosecutrix was below sixteen
years of age on the date of the occurrence. The answer to this question assumes
knowing that it is likely that she will be, forced or seduced to illicit
hall also be punishable as aforesaid.”
A man is said to commit “rape” who, except in the case hereinafter
excepted, has sexual intercourse with a woman under circumstances falling
With her consent, when her consent has been obtained by putting
her or any person in whom she is interested in fear of death or of hurt.
With her consent, when the man knows that he is not her husband,
and that her consent is given because she believes that he is another man to
whom she is or believes herself to be lawfully married.
With her consent, when, at the time of giving such consent, by
xication or the administration by him
personally or through another of any stupefying or unwholesome substance,
she is unable to understand the nature and consequences of that to which
With or without her consent, when she is under sixteen years of age.
Penetration is sufficient to constitute the sexual intercourse
A conjoint reading of the aforesaid provisions makes it manifest that,
uardianship, the statutory age of a
years, whereas, for the offence of rape falling within the
sixth description of Section 375 IPC as it then stood, the material age is that the
years, in which event the act constitutes rape “with or without
her consent”. The consent of a minor is, therefore, of no legal consequence, either
qua the offence of kidnapping or qua the offence of rape.
The first and foremost question that arises for consideration is whether
the prosecution has been able to establish that the prosecutrix was below sixteen
years of age on the date of the occurrence. The answer to this question assumes
A conjoint reading of the aforesaid provisions makes it manifest that,
uardianship, the statutory age of a
years, whereas, for the offence of rape falling within the
sixth description of Section 375 IPC as it then stood, the material age is that the
constitutes rape “with or without
her consent”. The consent of a minor is, therefore, of no legal consequence, either
The first and foremost question that arises for consideration is whether
the prosecution has been able to establish that the prosecutrix was below sixteen
years of age on the date of the occurrence. The answer to this question assumes
CRA-S-820-SB-2004
considerable signific
is that the prosecutrix had voluntarily accompanied him and that the physical
relationship, if any, was consensual, a plea whose very acceptability depends upon
the age of the prosecutrix.
8.1 The prosecution has sought to establish the age of the prosecutrix
through both oral and documentary evidence. PW
deposed that at the relevant time his daughter was aged about fifteen to fifteen and
a half years. The pros
disclosed her age to be about fifteen years. Though such oral statements may not
by themselves constitute conclusive proof of age, they nevertheless furnish
relevant evidence which cannot be ignored and
conjunction with the remaining material proved on record.
8.2 PW-7 Dr. Rashmi Gupta, who medico
prosecutrix, recorded her age as about fifteen years in the medico
Though during cross
to whether the age of the prosecutrix was given by the prosecutrix, by police or by
her guardian. The age mentioned in the medico
treated as determinative, and has
8.3 The prosecution is also relying upon the radiological evidence and has
examined PW-10 Dr. S.P. Jayant, Radiologist who deposed that on the basis of the
radiological examination conducted by him, the age of the prosec
assessed to be about sixteen years. During his cross
conceded that the age determined by ossification test is only an estimate and that a
variation of about two years on either side is medically possible. The radio
opinion, therefore, cannot be construed as furnishing the exact age of the
9
2004
considerable significance, because the principal defence projected by the appellant
is that the prosecutrix had voluntarily accompanied him and that the physical
relationship, if any, was consensual, a plea whose very acceptability depends upon
the age of the prosecutrix.
The prosecution has sought to establish the age of the prosecutrix
through both oral and documentary evidence. PW
deposed that at the relevant time his daughter was aged about fifteen to fifteen and
a half years. The prosecutrix, while entering the witness box as PW
disclosed her age to be about fifteen years. Though such oral statements may not
by themselves constitute conclusive proof of age, they nevertheless furnish
relevant evidence which cannot be ignored and
conjunction with the remaining material proved on record.
7 Dr. Rashmi Gupta, who medico
prosecutrix, recorded her age as about fifteen years in the medico
Though during cross-examination she candidly stated that she cannot recollect as
to whether the age of the prosecutrix was given by the prosecutrix, by police or by
her guardian. The age mentioned in the medico-
treated as determinative, and has only a limited evidentiary value.
The prosecution is also relying upon the radiological evidence and has
10 Dr. S.P. Jayant, Radiologist who deposed that on the basis of the
radiological examination conducted by him, the age of the prosec
assessed to be about sixteen years. During his cross
conceded that the age determined by ossification test is only an estimate and that a
variation of about two years on either side is medically possible. The radio
opinion, therefore, cannot be construed as furnishing the exact age of the
ance, because the principal defence projected by the appellant
is that the prosecutrix had voluntarily accompanied him and that the physical
relationship, if any, was consensual, a plea whose very acceptability depends upon
The prosecution has sought to establish the age of the prosecutrix
through both oral and documentary evidence. PW-1, the father of the prosecutrix,
deposed that at the relevant time his daughter was aged about fifteen to fifteen and
ecutrix, while entering the witness box as PW-2, also
disclosed her age to be about fifteen years. Though such oral statements may not
by themselves constitute conclusive proof of age, they nevertheless furnish
relevant evidence which cannot be ignored and are required to be evaluated in
conjunction with the remaining material proved on record.
7 Dr. Rashmi Gupta, who medico-legally examined the
prosecutrix, recorded her age as about fifteen years in the medico-legal report.
mination she candidly stated that she cannot recollect as
to whether the age of the prosecutrix was given by the prosecutrix, by police or by
-legal report cannot, therefore, be
only a limited evidentiary value.
The prosecution is also relying upon the radiological evidence and has
10 Dr. S.P. Jayant, Radiologist who deposed that on the basis of the
radiological examination conducted by him, the age of the prosecutrix was
assessed to be about sixteen years. During his cross-examination, the witness fairly
conceded that the age determined by ossification test is only an estimate and that a
variation of about two years on either side is medically possible. The radiological
opinion, therefore, cannot be construed as furnishing the exact age of the
ance, because the principal defence projected by the appellant
is that the prosecutrix had voluntarily accompanied him and that the physical
relationship, if any, was consensual, a plea whose very acceptability depends upon
The prosecution has sought to establish the age of the prosecutrix
1, the father of the prosecutrix,
deposed that at the relevant time his daughter was aged about fifteen to fifteen and
2, also
disclosed her age to be about fifteen years. Though such oral statements may not
by themselves constitute conclusive proof of age, they nevertheless furnish
are required to be evaluated in
legally examined the
legal report.
mination she candidly stated that she cannot recollect as
to whether the age of the prosecutrix was given by the prosecutrix, by police or by
legal report cannot, therefore, be
The prosecution is also relying upon the radiological evidence and has
10 Dr. S.P. Jayant, Radiologist who deposed that on the basis of the
utrix was
examination, the witness fairly
conceded that the age determined by ossification test is only an estimate and that a
logical
opinion, therefore, cannot be construed as furnishing the exact age of the
CRA-S-820-SB-2004
prosecutrix. It is only one of the relevant pieces of evidence which is required to be
appreciated along with the other evidence available on record.
8.4 The prosecution i
of the prosecutrix to prove that on the alleged day of occurrence the prosecutrix
was below sixteen years of age. To prove the school leaving certificate Ex.PN, the
prosecution has examined PW
school concerned, who proved the School Leaving Certificate (Ex.PN). As per the
said certificate, the date of birth of the prosecutrix is recorded as 07.10.1986.
Reckoned on that basis, the prosecutrix was aged about
months on the date of the occurrence, i.e, 22.12.2001, and was thus below sixteen
years of age. This witness was cross
could be elicited in her cross
leaving certificate proved by her.
8.5 The submission of the learned counsel for the appellant that the
School Leaving Certificate could not have been relied upon because the
prosecution failed to examine the person who had originally got reco
of birth, though attractive at first blush, does not merit acceptance in the facts of
the present case. It is no doubt true that the prosecution has neither produced the
birth certificate of the prosecutrix nor examined the person at whose in
date of birth came to be recorded in the school record. However, that by itself does
not render the school record inadmissible or wholly unreliable. The School
Leaving Certificate has been proved by the then Principal of the school concerned
who had issued the same; more importantly, the document had admittedly come
into existence much prior to the registration of the present case.
10
2004
prosecutrix. It is only one of the relevant pieces of evidence which is required to be
appreciated along with the other evidence available on record.
The prosecution is strongly relying upon the school leaving certificate
of the prosecutrix to prove that on the alleged day of occurrence the prosecutrix
was below sixteen years of age. To prove the school leaving certificate Ex.PN, the
prosecution has examined PW-11 Smt. Darshna Devi, the then Principal of the
school concerned, who proved the School Leaving Certificate (Ex.PN). As per the
said certificate, the date of birth of the prosecutrix is recorded as 07.10.1986.
Reckoned on that basis, the prosecutrix was aged about
months on the date of the occurrence, i.e, 22.12.2001, and was thus below sixteen
years of age. This witness was cross-examined at length but nothing substantial
could be elicited in her cross-examination to doubt the authenticity of
leaving certificate proved by her.
The submission of the learned counsel for the appellant that the
School Leaving Certificate could not have been relied upon because the
prosecution failed to examine the person who had originally got reco
of birth, though attractive at first blush, does not merit acceptance in the facts of
the present case. It is no doubt true that the prosecution has neither produced the
birth certificate of the prosecutrix nor examined the person at whose in
date of birth came to be recorded in the school record. However, that by itself does
not render the school record inadmissible or wholly unreliable. The School
Leaving Certificate has been proved by the then Principal of the school concerned
had issued the same; more importantly, the document had admittedly come
into existence much prior to the registration of the present case.
prosecutrix. It is only one of the relevant pieces of evidence which is required to be
appreciated along with the other evidence available on record.
s strongly relying upon the school leaving certificate
of the prosecutrix to prove that on the alleged day of occurrence the prosecutrix
was below sixteen years of age. To prove the school leaving certificate Ex.PN, the
Darshna Devi, the then Principal of the
school concerned, who proved the School Leaving Certificate (Ex.PN). As per the
said certificate, the date of birth of the prosecutrix is recorded as 07.10.1986.
Reckoned on that basis, the prosecutrix was aged about fifteen years and two
months on the date of the occurrence, i.e, 22.12.2001, and was thus below sixteen
examined at length but nothing substantial
examination to doubt the authenticity of the school
The submission of the learned counsel for the appellant that the
School Leaving Certificate could not have been relied upon because the
prosecution failed to examine the person who had originally got recorded the date
of birth, though attractive at first blush, does not merit acceptance in the facts of
the present case. It is no doubt true that the prosecution has neither produced the
birth certificate of the prosecutrix nor examined the person at whose instance the
date of birth came to be recorded in the school record. However, that by itself does
not render the school record inadmissible or wholly unreliable. The School
Leaving Certificate has been proved by the then Principal of the school concerned
had issued the same; more importantly, the document had admittedly come
into existence much prior to the registration of the present case.
prosecutrix. It is only one of the relevant pieces of evidence which is required to be
appreciated along with the other evidence available on record.
s strongly relying upon the school leaving certificate
of the prosecutrix to prove that on the alleged day of occurrence the prosecutrix
was below sixteen years of age. To prove the school leaving certificate Ex.PN, the
Darshna Devi, the then Principal of the
school concerned, who proved the School Leaving Certificate (Ex.PN). As per the
said certificate, the date of birth of the prosecutrix is recorded as 07.10.1986.
fifteen years and two
months on the date of the occurrence, i.e, 22.12.2001, and was thus below sixteen
examined at length but nothing substantial
the school
The submission of the learned counsel for the appellant that the
School Leaving Certificate could not have been relied upon because the
rded the date
of birth, though attractive at first blush, does not merit acceptance in the facts of
the present case. It is no doubt true that the prosecution has neither produced the
stance the
date of birth came to be recorded in the school record. However, that by itself does
not render the school record inadmissible or wholly unreliable. The School
Leaving Certificate has been proved by the then Principal of the school concerned
had issued the same; more importantly, the document had admittedly come
CRA-S-820-SB-2004
8.6 The submission advanced on behalf of the appellant that the School
Leaving Certificate ought to be discarded me
examine the person who had originally furnished the date of birth cannot be
accepted. The evidentiary value of a school record has repeatedly been considered
by the Hon’ble Supreme Court. In
Janardhan Wankhede, (2008) 8 SCC 38
school leaving certificate and the school register stand duly proved by the
competent Headmaster or custodian of the record, and there is no material
suggesting fabrica
evidence on conjectures or surmises. The Court disapproved the approach of
discarding an unimpeached school record on the speculative assumption that
parents generally understate the age of the
observing that in the absence of any evidence to the contrary such an inference is
legally impermissible. It was further emphasized that, where the school record had
come into existence much prior to the occurrence and
examination, it constituted reliable evidence for determination of age.
8.7 The same principle has been reiterated in
Haryana, (2015) 8 SCC 688
ossification test, the Supreme Court held that radiological examination merely
furnishes an approximate opinion and cannot be regarded as infallible proof of age.
Expert evidence is essentially advisory in character and is intended to assist the
Court; it cannot overrid
earlier decisions in
Maharashtra, the Court reiterated that ossification tests are subject to recognised
margins of error and must always be apprec
11
2004
The submission advanced on behalf of the appellant that the School
Leaving Certificate ought to be discarded merely because the prosecution did not
examine the person who had originally furnished the date of birth cannot be
accepted. The evidentiary value of a school record has repeatedly been considered
by the Hon’ble Supreme Court. In State of Maharashtra v. Gaja
Janardhan Wankhede, (2008) 8 SCC 38, the Supreme Court held that where the
school leaving certificate and the school register stand duly proved by the
competent Headmaster or custodian of the record, and there is no material
suggesting fabrication or manipulation, the Court cannot reject such documentary
evidence on conjectures or surmises. The Court disapproved the approach of
discarding an unimpeached school record on the speculative assumption that
parents generally understate the age of their children at the time of admission,
observing that in the absence of any evidence to the contrary such an inference is
legally impermissible. It was further emphasized that, where the school record had
come into existence much prior to the occurrence and
examination, it constituted reliable evidence for determination of age.
The same principle has been reiterated in
Haryana, (2015) 8 SCC 688. While considering an argument founded upon the
est, the Supreme Court held that radiological examination merely
furnishes an approximate opinion and cannot be regarded as infallible proof of age.
Expert evidence is essentially advisory in character and is intended to assist the
Court; it cannot override trustworthy documentary evidence. Referring to the
earlier decisions in Ramdeo Chauhan v. State of Assam
, the Court reiterated that ossification tests are subject to recognised
margins of error and must always be appreciated together with the entirety of the
The submission advanced on behalf of the appellant that the School
rely because the prosecution did not
examine the person who had originally furnished the date of birth cannot be
accepted. The evidentiary value of a school record has repeatedly been considered
State of Maharashtra v. Gajanan @ Hemant
, the Supreme Court held that where the
school leaving certificate and the school register stand duly proved by the
competent Headmaster or custodian of the record, and there is no material
tion or manipulation, the Court cannot reject such documentary
evidence on conjectures or surmises. The Court disapproved the approach of
discarding an unimpeached school record on the speculative assumption that
ir children at the time of admission,
observing that in the absence of any evidence to the contrary such an inference is
legally impermissible. It was further emphasized that, where the school record had
come into existence much prior to the occurrence and remained unshaken in cross
examination, it constituted reliable evidence for determination of age.
The same principle has been reiterated in Parhlad v. State of
. While considering an argument founded upon the
est, the Supreme Court held that radiological examination merely
furnishes an approximate opinion and cannot be regarded as infallible proof of age.
Expert evidence is essentially advisory in character and is intended to assist the
e trustworthy documentary evidence. Referring to the
Ramdeo Chauhan v. State of Assam and Vishnu v. State of
, the Court reiterated that ossification tests are subject to recognised
iated together with the entirety of the
The submission advanced on behalf of the appellant that the School
rely because the prosecution did not
examine the person who had originally furnished the date of birth cannot be
accepted. The evidentiary value of a school record has repeatedly been considered
nan @ Hemant
, the Supreme Court held that where the
school leaving certificate and the school register stand duly proved by the
competent Headmaster or custodian of the record, and there is no material
tion or manipulation, the Court cannot reject such documentary
evidence on conjectures or surmises. The Court disapproved the approach of
discarding an unimpeached school record on the speculative assumption that
ir children at the time of admission,
observing that in the absence of any evidence to the contrary such an inference is
legally impermissible. It was further emphasized that, where the school record had
remained unshaken in cross-
Parhlad v. State of
. While considering an argument founded upon the
est, the Supreme Court held that radiological examination merely
furnishes an approximate opinion and cannot be regarded as infallible proof of age.
Expert evidence is essentially advisory in character and is intended to assist the
e trustworthy documentary evidence. Referring to the
Vishnu v. State of
, the Court reiterated that ossification tests are subject to recognised
iated together with the entirety of the
CRA-S-820-SB-2004
evidence on record. Consequently, where the school record is duly proved and
inspires confidence, primacy must ordinarily be accorded to such documentary
evidence rather than to an approximate medical opinion.
8.8 Tested on aforesaid principles the evidence regarding the age of the
prosecutrix, when appreciated cumulatively, presents a consistent picture. PW
has stated that his daughter
herself disclosed her
to be approximately sixteen years, while acknowledging the accepted margin of
variation (about two years on either side)
records a date of birth
completed sixteen years of age on the date of the occurrence. None of these pieces
of evidence materially contradicts the other. Rather, each lends assurance to the
other. The learned trial Court, upon a comprehensi
evidence, recorded a finding that the prosecutrix was below sixteen years of age on
the date of the occurrence. Having independently re
Court finds no reason to take a different view. The find
trial Court on this aspect is fully supported by the material available on record and
calls for no interference. This Court, hence, has no hesitation in holding that the
prosecutrix was minor on the day of occurrence that being
founded upon consent consequently loses all legal significance.
9. Having held that the prosecutrix was a minor on the date of the
occurrence, the principal contention advanced on behalf of the appellant that she
had voluntarily accompanied him and had consented to the physical relationship
must now be examined, though, in view of the finding on the age of the
prosecutrix, it stands substantially answered against the appellant.
12
2004
evidence on record. Consequently, where the school record is duly proved and
inspires confidence, primacy must ordinarily be accorded to such documentary
evidence rather than to an approximate medical opinion.
Tested on aforesaid principles the evidence regarding the age of the
prosecutrix, when appreciated cumulatively, presents a consistent picture. PW
his daughter was about fifteen and a half years old; the prosecutrix
herself disclosed her age to be around fifteen years; the radiologist assessed her age
to be approximately sixteen years, while acknowledging the accepted margin of
(about two years on either side) and the School Leaving Certificate
records a date of birth as 07.10.1986 which also indicates that she had not
completed sixteen years of age on the date of the occurrence. None of these pieces
of evidence materially contradicts the other. Rather, each lends assurance to the
other. The learned trial Court, upon a comprehensi
evidence, recorded a finding that the prosecutrix was below sixteen years of age on
the date of the occurrence. Having independently re
Court finds no reason to take a different view. The find
trial Court on this aspect is fully supported by the material available on record and
calls for no interference. This Court, hence, has no hesitation in holding that the
prosecutrix was minor on the day of occurrence that being
founded upon consent consequently loses all legal significance.
Having held that the prosecutrix was a minor on the date of the
occurrence, the principal contention advanced on behalf of the appellant that she
accompanied him and had consented to the physical relationship
must now be examined, though, in view of the finding on the age of the
prosecutrix, it stands substantially answered against the appellant.
evidence on record. Consequently, where the school record is duly proved and
inspires confidence, primacy must ordinarily be accorded to such documentary
evidence rather than to an approximate medical opinion.
Tested on aforesaid principles the evidence regarding the age of the
prosecutrix, when appreciated cumulatively, presents a consistent picture. PW-
was about fifteen and a half years old; the prosecutrix
age to be around fifteen years; the radiologist assessed her age
to be approximately sixteen years, while acknowledging the accepted margin of
and the School Leaving Certificate
which also indicates that she had not
completed sixteen years of age on the date of the occurrence. None of these pieces
of evidence materially contradicts the other. Rather, each lends assurance to the
other. The learned trial Court, upon a comprehensive appreciation of the aforesaid
evidence, recorded a finding that the prosecutrix was below sixteen years of age on
the date of the occurrence. Having independently re-appreciated the evidence, this
Court finds no reason to take a different view. The finding recorded by the learned
trial Court on this aspect is fully supported by the material available on record and
calls for no interference. This Court, hence, has no hesitation in holding that the
prosecutrix was minor on the day of occurrence that being so the principal defence
founded upon consent consequently loses all legal significance.
Having held that the prosecutrix was a minor on the date of the
occurrence, the principal contention advanced on behalf of the appellant that she
accompanied him and had consented to the physical relationship
must now be examined, though, in view of the finding on the age of the
prosecutrix, it stands substantially answered against the appellant.
evidence on record. Consequently, where the school record is duly proved and
inspires confidence, primacy must ordinarily be accorded to such documentary
Tested on aforesaid principles the evidence regarding the age of the
-1
was about fifteen and a half years old; the prosecutrix
age to be around fifteen years; the radiologist assessed her age
to be approximately sixteen years, while acknowledging the accepted margin of
and the School Leaving Certificate
which also indicates that she had not
completed sixteen years of age on the date of the occurrence. None of these pieces
of evidence materially contradicts the other. Rather, each lends assurance to the
ve appreciation of the aforesaid
evidence, recorded a finding that the prosecutrix was below sixteen years of age on
appreciated the evidence, this
ing recorded by the learned
trial Court on this aspect is fully supported by the material available on record and
calls for no interference. This Court, hence, has no hesitation in holding that the
so the principal defence
Having held that the prosecutrix was a minor on the date of the
occurrence, the principal contention advanced on behalf of the appellant that she
accompanied him and had consented to the physical relationship
must now be examined, though, in view of the finding on the age of the
CRA-S-820-SB-2004
9.1 Insofar as the offence of kidnapping from lawful
concerned, the consent of the minor is wholly irrelevant. In
Raja Ram, (1973) 1 SCC 544
Section 361 IPC is as much to protect minor children from being seduced for
improper purposes as to protect the rights and privileges of guardians having the
lawful charge or custody of their minor wards; that the gravamen of the offence
lies in the taking or enticing of a minor out of the keeping of the lawful guardian
without the consent of such guardian; and that, on a plain reading of the section,
the consent of the minor who is taken or enticed is wholly immaterial, it being only
the guardian’s consent that takes the case out of its purview. It was further held
that it is not nece
or inducement by the accused which creates a willingness on the part of the minor
to be taken out of the keeping of the lawful guardian is sufficient to attract the
section.
9.2 Applying t
ingredients of the offence stand fully satisfied. The prosecutrix, a minor, was
residing in the lawful keeping of her father PW
of his position as a tenant in
keeping, without the consent of her father, and with the intent that she be seduced
to illicit intercourse. The offences under Sections 363 and 366 IPC are thus clearly
made out, and the voluntary conduct
exonerate the appellant.
10. The submission that the prosecutrix had several opportunities to raise
an alarm or to escape from the company of the appellant, and that her failure to do
so probabilises the defence v
13
2004
Insofar as the offence of kidnapping from lawful
concerned, the consent of the minor is wholly irrelevant. In
Raja Ram, (1973) 1 SCC 544, the Hon’ble Supreme Court held that the object of
Section 361 IPC is as much to protect minor children from being seduced for
oper purposes as to protect the rights and privileges of guardians having the
lawful charge or custody of their minor wards; that the gravamen of the offence
lies in the taking or enticing of a minor out of the keeping of the lawful guardian
nsent of such guardian; and that, on a plain reading of the section,
the consent of the minor who is taken or enticed is wholly immaterial, it being only
the guardian’s consent that takes the case out of its purview. It was further held
that it is not necessary that the taking or enticing be by force or fraud; persuasion
or inducement by the accused which creates a willingness on the part of the minor
to be taken out of the keeping of the lawful guardian is sufficient to attract the
Applying the aforesaid principles to the facts of the present case, the
ingredients of the offence stand fully satisfied. The prosecutrix, a minor, was
residing in the lawful keeping of her father PW-1. The appellant, taking advantage
of his position as a tenant in the same house, enticed and took her away from that
keeping, without the consent of her father, and with the intent that she be seduced
to illicit intercourse. The offences under Sections 363 and 366 IPC are thus clearly
made out, and the voluntary conduct of the minor, even if assumed, does not
exonerate the appellant.
The submission that the prosecutrix had several opportunities to raise
an alarm or to escape from the company of the appellant, and that her failure to do
so probabilises the defence version, does not persuade this Court to take a view
Insofar as the offence of kidnapping from lawful guardianship is
concerned, the consent of the minor is wholly irrelevant. In State of Haryana v.
, the Hon’ble Supreme Court held that the object of
Section 361 IPC is as much to protect minor children from being seduced for
oper purposes as to protect the rights and privileges of guardians having the
lawful charge or custody of their minor wards; that the gravamen of the offence
lies in the taking or enticing of a minor out of the keeping of the lawful guardian
nsent of such guardian; and that, on a plain reading of the section,
the consent of the minor who is taken or enticed is wholly immaterial, it being only
the guardian’s consent that takes the case out of its purview. It was further held
ssary that the taking or enticing be by force or fraud; persuasion
or inducement by the accused which creates a willingness on the part of the minor
to be taken out of the keeping of the lawful guardian is sufficient to attract the
he aforesaid principles to the facts of the present case, the
ingredients of the offence stand fully satisfied. The prosecutrix, a minor, was
1. The appellant, taking advantage
the same house, enticed and took her away from that
keeping, without the consent of her father, and with the intent that she be seduced
to illicit intercourse. The offences under Sections 363 and 366 IPC are thus clearly
of the minor, even if assumed, does not
The submission that the prosecutrix had several opportunities to raise
an alarm or to escape from the company of the appellant, and that her failure to do
ersion, does not persuade this Court to take a view
guardianship is
State of Haryana v.
, the Hon’ble Supreme Court held that the object of
Section 361 IPC is as much to protect minor children from being seduced for
oper purposes as to protect the rights and privileges of guardians having the
lawful charge or custody of their minor wards; that the gravamen of the offence
lies in the taking or enticing of a minor out of the keeping of the lawful guardian
nsent of such guardian; and that, on a plain reading of the section,
the consent of the minor who is taken or enticed is wholly immaterial, it being only
the guardian’s consent that takes the case out of its purview. It was further held
ssary that the taking or enticing be by force or fraud; persuasion
or inducement by the accused which creates a willingness on the part of the minor
to be taken out of the keeping of the lawful guardian is sufficient to attract the
he aforesaid principles to the facts of the present case, the
ingredients of the offence stand fully satisfied. The prosecutrix, a minor, was
1. The appellant, taking advantage
the same house, enticed and took her away from that
keeping, without the consent of her father, and with the intent that she be seduced
to illicit intercourse. The offences under Sections 363 and 366 IPC are thus clearly
of the minor, even if assumed, does not
The submission that the prosecutrix had several opportunities to raise
an alarm or to escape from the company of the appellant, and that her failure to do
ersion, does not persuade this Court to take a view
CRA-S-820-SB-2004
different from that recorded by the learned trial Court. The conduct of a victim has
to be examined in the proper perspective and not in isolation. Merely because a
helpless minor did not raise an alarm a
assistance from persons whom she may have encountered during the period she
remained with the appellant cannot, by itself, lead to an inference that she was a
willing party to the occurrence. Human conduct is not capab
by any fixed formula, and the reaction of a victim to a particular situation may vary
depending upon the surrounding circumstances. This position finds authoritative
support in State of Punjab v. Gurmit Singh, (1996) 2 SCC 384
Hon’ble Supreme Court deprecated the approach of discrediting a prosecutrix,
aged below sixteen years, on the ground that she had not raised an alarm,
observing that such an approach overlooks human psychology and the situation in
which a helpless min
overpowers her.
11. The next circumstance emphasized on behalf of the appellant is the
absence of external injuries on the person of the prosecutrix and the absence of any
injury over her priva
the prosecutrix, did not notice any external injury, nor did the medical evidence
record any injury over the genital region. However, the medical witness has
nowhere opined that sexual intercourse had
therefore, does not negate the prosecution version; it merely indicates that no
injuries were detected at the time of examination.
11.1 It is pertinent to notice that the prosecutrix was medically examined
after she had remained away from her parental home for a considerable period. In
such circumstances, the absence of injuries cannot, by itself, be regarded as a
14
2004
different from that recorded by the learned trial Court. The conduct of a victim has
to be examined in the proper perspective and not in isolation. Merely because a
helpless minor did not raise an alarm at every available opportunity or seek
assistance from persons whom she may have encountered during the period she
remained with the appellant cannot, by itself, lead to an inference that she was a
willing party to the occurrence. Human conduct is not capab
by any fixed formula, and the reaction of a victim to a particular situation may vary
depending upon the surrounding circumstances. This position finds authoritative
State of Punjab v. Gurmit Singh, (1996) 2 SCC 384
Hon’ble Supreme Court deprecated the approach of discrediting a prosecutrix,
aged below sixteen years, on the ground that she had not raised an alarm,
observing that such an approach overlooks human psychology and the situation in
which a helpless minor finds herself in the company of a person who threatens and
The next circumstance emphasized on behalf of the appellant is the
absence of external injuries on the person of the prosecutrix and the absence of any
injury over her private parts. PW-7 Dr. Rashmi Gupta, who medically examined
the prosecutrix, did not notice any external injury, nor did the medical evidence
record any injury over the genital region. However, the medical witness has
nowhere opined that sexual intercourse had not taken place. The medical evidence,
therefore, does not negate the prosecution version; it merely indicates that no
injuries were detected at the time of examination.
It is pertinent to notice that the prosecutrix was medically examined
had remained away from her parental home for a considerable period. In
such circumstances, the absence of injuries cannot, by itself, be regarded as a
different from that recorded by the learned trial Court. The conduct of a victim has
to be examined in the proper perspective and not in isolation. Merely because a
t every available opportunity or seek
assistance from persons whom she may have encountered during the period she
remained with the appellant cannot, by itself, lead to an inference that she was a
willing party to the occurrence. Human conduct is not capable of being measured
by any fixed formula, and the reaction of a victim to a particular situation may vary
depending upon the surrounding circumstances. This position finds authoritative
State of Punjab v. Gurmit Singh, (1996) 2 SCC 384, wherein the
Hon’ble Supreme Court deprecated the approach of discrediting a prosecutrix,
aged below sixteen years, on the ground that she had not raised an alarm,
observing that such an approach overlooks human psychology and the situation in
or finds herself in the company of a person who threatens and
The next circumstance emphasized on behalf of the appellant is the
absence of external injuries on the person of the prosecutrix and the absence of any
7 Dr. Rashmi Gupta, who medically examined
the prosecutrix, did not notice any external injury, nor did the medical evidence
record any injury over the genital region. However, the medical witness has
not taken place. The medical evidence,
therefore, does not negate the prosecution version; it merely indicates that no
It is pertinent to notice that the prosecutrix was medically examined
had remained away from her parental home for a considerable period. In
such circumstances, the absence of injuries cannot, by itself, be regarded as a
different from that recorded by the learned trial Court. The conduct of a victim has
to be examined in the proper perspective and not in isolation. Merely because a
t every available opportunity or seek
assistance from persons whom she may have encountered during the period she
remained with the appellant cannot, by itself, lead to an inference that she was a
le of being measured
by any fixed formula, and the reaction of a victim to a particular situation may vary
depending upon the surrounding circumstances. This position finds authoritative
the
Hon’ble Supreme Court deprecated the approach of discrediting a prosecutrix,
aged below sixteen years, on the ground that she had not raised an alarm,
observing that such an approach overlooks human psychology and the situation in
or finds herself in the company of a person who threatens and
The next circumstance emphasized on behalf of the appellant is the
absence of external injuries on the person of the prosecutrix and the absence of any
7 Dr. Rashmi Gupta, who medically examined
the prosecutrix, did not notice any external injury, nor did the medical evidence
record any injury over the genital region. However, the medical witness has
not taken place. The medical evidence,
therefore, does not negate the prosecution version; it merely indicates that no
It is pertinent to notice that the prosecutrix was medically examined
had remained away from her parental home for a considerable period. In
such circumstances, the absence of injuries cannot, by itself, be regarded as a
CRA-S-820-SB-2004
circumstance sufficient to discard her otherwise reliable testimony. It is by now
well settled that the
rape, particularly where the prosecutrix is a minor. In
(2011) 2 SCC 550
victim of sexual assault is no
be tested with suspicion as that of an accomplice, and that the testimony of the
prosecutrix, if found to be reliable, may by itself be sufficient to sustain a
conviction without any corroboration, the
medical evidence in a case of this nature is corroborative in nature and cannot be
treated as the sole basis for determining the truthfulness of the prosecution case.
11.2 The scientific evidence brought on record
The report of the Forensic Science Laboratory (Ex.PH) reveals the presence of
human semen on the exhibits sent for examination. Though the said report does not
by itself identify the person responsible for the sexual act, it doe
prosecution case to the extent that the prosecutrix had been subjected to sexual
intercourse. The scientific evidence, therefore, is not inconsistent with the version
of the prosecutrix; rather, it lends assurance to her testimony.
12. The testimony of the prosecutrix constitutes the foundation of the
prosecution case, and it must now be examined. The prosecutrix has consistently
deposed that the appellant had taken her away from the custody of her parents and
had established physical rel
shows that she remained steadfast on the material aspects of the prosecution case.
The law does not treat the prosecutrix in a case of sexual assault as an
accomplice, and her evidence, if it inspire
weight as is attached to the evidence of an injured witness, as held in
15
2004
circumstance sufficient to discard her otherwise reliable testimony. It is by now
well settled that the absence of external injuries does not negate the occurrence of
rape, particularly where the prosecutrix is a minor. In
(2011) 2 SCC 550, the Hon’ble Supreme Court reiterated that a woman who is a
victim of sexual assault is not an accomplice to the crime, that her evidence cannot
be tested with suspicion as that of an accomplice, and that the testimony of the
prosecutrix, if found to be reliable, may by itself be sufficient to sustain a
conviction without any corroboration, the absence of injuries notwithstanding. The
medical evidence in a case of this nature is corroborative in nature and cannot be
treated as the sole basis for determining the truthfulness of the prosecution case.
The scientific evidence brought on record
The report of the Forensic Science Laboratory (Ex.PH) reveals the presence of
human semen on the exhibits sent for examination. Though the said report does not
by itself identify the person responsible for the sexual act, it doe
prosecution case to the extent that the prosecutrix had been subjected to sexual
intercourse. The scientific evidence, therefore, is not inconsistent with the version
of the prosecutrix; rather, it lends assurance to her testimony.
he testimony of the prosecutrix constitutes the foundation of the
prosecution case, and it must now be examined. The prosecutrix has consistently
deposed that the appellant had taken her away from the custody of her parents and
had established physical relations with her. A careful reading of her deposition
shows that she remained steadfast on the material aspects of the prosecution case.
The law does not treat the prosecutrix in a case of sexual assault as an
accomplice, and her evidence, if it inspires confidence, is entitled to the same
weight as is attached to the evidence of an injured witness, as held in
circumstance sufficient to discard her otherwise reliable testimony. It is by now
absence of external injuries does not negate the occurrence of
rape, particularly where the prosecutrix is a minor. In State of U.P. v. Chhotey Lal,
, the Hon’ble Supreme Court reiterated that a woman who is a
t an accomplice to the crime, that her evidence cannot
be tested with suspicion as that of an accomplice, and that the testimony of the
prosecutrix, if found to be reliable, may by itself be sufficient to sustain a
absence of injuries notwithstanding. The
medical evidence in a case of this nature is corroborative in nature and cannot be
treated as the sole basis for determining the truthfulness of the prosecution case.
The scientific evidence brought on record further assumes relevance.
The report of the Forensic Science Laboratory (Ex.PH) reveals the presence of
human semen on the exhibits sent for examination. Though the said report does not
by itself identify the person responsible for the sexual act, it does corroborate the
prosecution case to the extent that the prosecutrix had been subjected to sexual
intercourse. The scientific evidence, therefore, is not inconsistent with the version
of the prosecutrix; rather, it lends assurance to her testimony.
he testimony of the prosecutrix constitutes the foundation of the
prosecution case, and it must now be examined. The prosecutrix has consistently
deposed that the appellant had taken her away from the custody of her parents and
ations with her. A careful reading of her deposition
shows that she remained steadfast on the material aspects of the prosecution case.
The law does not treat the prosecutrix in a case of sexual assault as an
s confidence, is entitled to the same
weight as is attached to the evidence of an injured witness, as held in State of
circumstance sufficient to discard her otherwise reliable testimony. It is by now
absence of external injuries does not negate the occurrence of
State of U.P. v. Chhotey Lal,
, the Hon’ble Supreme Court reiterated that a woman who is a
t an accomplice to the crime, that her evidence cannot
be tested with suspicion as that of an accomplice, and that the testimony of the
prosecutrix, if found to be reliable, may by itself be sufficient to sustain a
absence of injuries notwithstanding. The
medical evidence in a case of this nature is corroborative in nature and cannot be
further assumes relevance.
The report of the Forensic Science Laboratory (Ex.PH) reveals the presence of
human semen on the exhibits sent for examination. Though the said report does not
s corroborate the
prosecution case to the extent that the prosecutrix had been subjected to sexual
intercourse. The scientific evidence, therefore, is not inconsistent with the version
he testimony of the prosecutrix constitutes the foundation of the
prosecution case, and it must now be examined. The prosecutrix has consistently
deposed that the appellant had taken her away from the custody of her parents and
ations with her. A careful reading of her deposition
shows that she remained steadfast on the material aspects of the prosecution case.
The law does not treat the prosecutrix in a case of sexual assault as an
s confidence, is entitled to the same
State of
CRA-S-820-SB-2004
Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550
reaffirmed in Gurmit Singh
the prosecutrix is found to be natural, consistent and trustworthy, and it receives
due assurance from the medical, scientific and documentary evidence on record.
13. The learned counsel for the appellant has also made a passing
reference to the delay in lodging the FIR, the occurrence being of 22.12.2001 and
the FIR having been recorded on 28.12.2001. The delay, however, stands
satisfactorily explained. It has come in evidence that the complainant, along with
his relatives, first searched for
search did not meet with success that he reported the matter to the police. In
matters involving the dignity and honour of the family, particularly of an
unmarried girl, a certain reluctance and hesitation in
natural. In Gurmit Singh
delay in the lodging of a complaint in sexual offences can occur for a variety of
reasons, particularly the reluctance of the prosecutrix and he
the police in a matter concerning the reputation of the prosecutrix and the honour
of the family. The delay in the present case, therefore, does not cause any dent in
the prosecution case.
14. The contention that the relatives who ha
the prosecutrix were not examined, and that an adverse inference ought to be
drawn on that account, is equally devoid of merit. The prosecution is required to
examine only such witnesses as are necessary to unfold its case;
mandate the examination of every person who may have had some connection with
the events. In the present case, the prosecution has examined the complainant, the
prosecutrix, the medical experts, the official witness who proved the school
16
2004
Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550
Gurmit Singh (supra). Tested on this touchstone, the t
the prosecutrix is found to be natural, consistent and trustworthy, and it receives
due assurance from the medical, scientific and documentary evidence on record.
The learned counsel for the appellant has also made a passing
the delay in lodging the FIR, the occurrence being of 22.12.2001 and
the FIR having been recorded on 28.12.2001. The delay, however, stands
satisfactorily explained. It has come in evidence that the complainant, along with
his relatives, first searched for his missing daughter, and it was only when the
search did not meet with success that he reported the matter to the police. In
matters involving the dignity and honour of the family, particularly of an
unmarried girl, a certain reluctance and hesitation in
Gurmit Singh (supra), the Hon’ble Supreme Court has observed that a
delay in the lodging of a complaint in sexual offences can occur for a variety of
reasons, particularly the reluctance of the prosecutrix and he
the police in a matter concerning the reputation of the prosecutrix and the honour
of the family. The delay in the present case, therefore, does not cause any dent in
the prosecution case.
The contention that the relatives who ha
the prosecutrix were not examined, and that an adverse inference ought to be
drawn on that account, is equally devoid of merit. The prosecution is required to
examine only such witnesses as are necessary to unfold its case;
mandate the examination of every person who may have had some connection with
the events. In the present case, the prosecution has examined the complainant, the
prosecutrix, the medical experts, the official witness who proved the school
Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550, and
. Tested on this touchstone, the testimony of
the prosecutrix is found to be natural, consistent and trustworthy, and it receives
due assurance from the medical, scientific and documentary evidence on record.
The learned counsel for the appellant has also made a passing
the delay in lodging the FIR, the occurrence being of 22.12.2001 and
the FIR having been recorded on 28.12.2001. The delay, however, stands
satisfactorily explained. It has come in evidence that the complainant, along with
his missing daughter, and it was only when the
search did not meet with success that he reported the matter to the police. In
matters involving the dignity and honour of the family, particularly of an
unmarried girl, a certain reluctance and hesitation in approaching the police is only
, the Hon’ble Supreme Court has observed that a
delay in the lodging of a complaint in sexual offences can occur for a variety of
reasons, particularly the reluctance of the prosecutrix and her family to approach
the police in a matter concerning the reputation of the prosecutrix and the honour
of the family. The delay in the present case, therefore, does not cause any dent in
The contention that the relatives who had participated in the search for
the prosecutrix were not examined, and that an adverse inference ought to be
drawn on that account, is equally devoid of merit. The prosecution is required to
examine only such witnesses as are necessary to unfold its case; the law does not
mandate the examination of every person who may have had some connection with
the events. In the present case, the prosecution has examined the complainant, the
prosecutrix, the medical experts, the official witness who proved the school record
, and
estimony of
the prosecutrix is found to be natural, consistent and trustworthy, and it receives
The learned counsel for the appellant has also made a passing
the delay in lodging the FIR, the occurrence being of 22.12.2001 and
the FIR having been recorded on 28.12.2001. The delay, however, stands
satisfactorily explained. It has come in evidence that the complainant, along with
his missing daughter, and it was only when the
search did not meet with success that he reported the matter to the police. In
matters involving the dignity and honour of the family, particularly of an
approaching the police is only
, the Hon’ble Supreme Court has observed that a
delay in the lodging of a complaint in sexual offences can occur for a variety of
r family to approach
the police in a matter concerning the reputation of the prosecutrix and the honour
of the family. The delay in the present case, therefore, does not cause any dent in
d participated in the search for
the prosecutrix were not examined, and that an adverse inference ought to be
drawn on that account, is equally devoid of merit. The prosecution is required to
the law does not
mandate the examination of every person who may have had some connection with
the events. In the present case, the prosecution has examined the complainant, the
record
CRA-S-820-SB-2004
and the investigating agency, i.e. the material witnesses whose testimony forms the
substratum of the prosecution case. The relatives who allegedly joined the search
were neither eyewitnesses to the occurrence nor witnesses to any material fact in
issue, and their non
give rise to any adverse inference.
15. The defence of false implication set up by the appellant that the father
of the prosecutrix, being desirous of evicting him from t
falsely involved him in the present case does not inspire confidence. The appellant
has not placed any material on record to substantiate the existence of the alleged
tenancy dispute; no witness has been examined, nor any document
probabilise that the complainant had any reason to falsely implicate the appellant,
and his own unmarried minor daughter, in an offence of such a serious nature
merely to secure eviction from the tenanted premises. No father would ordinarily
stoop so low as to put forth his young daughter to level false allegations of rape,
thereby tarnishing her honour and that of the family in society, merely to have his
tenant evicted. The plea, therefore, remains a bare assertion unsupported by any
evidence.
15.1 What is equally significant is that the defence sought to be projected
during the cross-examination of the prosecution witnesses does not align with the
explanation furnished by the appellant in his statement under Section 313 Cr.P.C.
While the statement under Section 313 Cr.P.C. proceeds on the footing of complete
false implication, the tenor of the cross
the prosecutrix was a consenting party. Though an accused is not precluded from
taking alternative ple
support from the material on record. In the present case, neither of the two pleas
17
2004
and the investigating agency, i.e. the material witnesses whose testimony forms the
substratum of the prosecution case. The relatives who allegedly joined the search
were neither eyewitnesses to the occurrence nor witnesses to any material fact in
ssue, and their non-examination does not affect the core of the prosecution case or
give rise to any adverse inference.
The defence of false implication set up by the appellant that the father
of the prosecutrix, being desirous of evicting him from t
falsely involved him in the present case does not inspire confidence. The appellant
has not placed any material on record to substantiate the existence of the alleged
tenancy dispute; no witness has been examined, nor any document
probabilise that the complainant had any reason to falsely implicate the appellant,
and his own unmarried minor daughter, in an offence of such a serious nature
merely to secure eviction from the tenanted premises. No father would ordinarily
stoop so low as to put forth his young daughter to level false allegations of rape,
thereby tarnishing her honour and that of the family in society, merely to have his
tenant evicted. The plea, therefore, remains a bare assertion unsupported by any
What is equally significant is that the defence sought to be projected
examination of the prosecution witnesses does not align with the
explanation furnished by the appellant in his statement under Section 313 Cr.P.C.
tatement under Section 313 Cr.P.C. proceeds on the footing of complete
false implication, the tenor of the cross-examination proceeds on the premise that
the prosecutrix was a consenting party. Though an accused is not precluded from
taking alternative pleas, the Court is required to examine whether such pleas find
support from the material on record. In the present case, neither of the two pleas
and the investigating agency, i.e. the material witnesses whose testimony forms the
substratum of the prosecution case. The relatives who allegedly joined the search
were neither eyewitnesses to the occurrence nor witnesses to any material fact in
examination does not affect the core of the prosecution case or
The defence of false implication set up by the appellant that the father
of the prosecutrix, being desirous of evicting him from the tenanted premises, had
falsely involved him in the present case does not inspire confidence. The appellant
has not placed any material on record to substantiate the existence of the alleged
tenancy dispute; no witness has been examined, nor any document produced, to
probabilise that the complainant had any reason to falsely implicate the appellant,
and his own unmarried minor daughter, in an offence of such a serious nature
merely to secure eviction from the tenanted premises. No father would ordinarily
stoop so low as to put forth his young daughter to level false allegations of rape,
thereby tarnishing her honour and that of the family in society, merely to have his
tenant evicted. The plea, therefore, remains a bare assertion unsupported by any
What is equally significant is that the defence sought to be projected
examination of the prosecution witnesses does not align with the
explanation furnished by the appellant in his statement under Section 313 Cr.P.C.
tatement under Section 313 Cr.P.C. proceeds on the footing of complete
examination proceeds on the premise that
the prosecutrix was a consenting party. Though an accused is not precluded from
as, the Court is required to examine whether such pleas find
support from the material on record. In the present case, neither of the two pleas
and the investigating agency, i.e. the material witnesses whose testimony forms the
substratum of the prosecution case. The relatives who allegedly joined the search
were neither eyewitnesses to the occurrence nor witnesses to any material fact in
examination does not affect the core of the prosecution case or
The defence of false implication set up by the appellant that the father
he tenanted premises, had
falsely involved him in the present case does not inspire confidence. The appellant
has not placed any material on record to substantiate the existence of the alleged
produced, to
probabilise that the complainant had any reason to falsely implicate the appellant,
and his own unmarried minor daughter, in an offence of such a serious nature
merely to secure eviction from the tenanted premises. No father would ordinarily
stoop so low as to put forth his young daughter to level false allegations of rape,
thereby tarnishing her honour and that of the family in society, merely to have his
tenant evicted. The plea, therefore, remains a bare assertion unsupported by any
What is equally significant is that the defence sought to be projected
examination of the prosecution witnesses does not align with the
explanation furnished by the appellant in his statement under Section 313 Cr.P.C.
tatement under Section 313 Cr.P.C. proceeds on the footing of complete
examination proceeds on the premise that
the prosecutrix was a consenting party. Though an accused is not precluded from
as, the Court is required to examine whether such pleas find
support from the material on record. In the present case, neither of the two pleas
CRA-S-820-SB-2004
finds any substantive support, and the plea of consent, being that of a minor, is in
any event rendered legally
16. On an overall appraisal of the evidence, this Court finds that the
prosecution has succeeded in establishing, beyond reasonable doubt, that the
prosecutrix was below sixteen years of age on the date of the occurrence; that she
was taken away by the appellant from the lawful guardianship of her father without
his consent; and that she was thereafter subjected to sexual intercourse. The
testimony of the prosecutrix, which forms the substratum of the prosecution case,
has remained consistent o
finds due assurance from the medical evidence, the report of the Forensic Science
Laboratory and the documentary evidence relating to her age. The findings
recorded by the learned trial Court are b
appreciation of the oral as well as documentary evidence. Having independently
re-appreciated the entire evidence, as is required while dealing with an appeal
against conviction, this Court finds no perversity, misreading of
omission to consider any material circumstance which would justify interference
with the judgment under challenge.
16.1 The defence set up by the appellant has failed to probabilise his
innocence. The plea of false implication on account of a
is a mere assertion unsupported by any independent evidence, while the alternative
suggestion of a consensual relationship is rendered legally untenable in view of the
finding that the prosecutrix was below sixteen years of age. T
evidence has also not been able to prove that the prosecutrix was a major on the
day of occurrence. None of the submissions advanced on behalf of the appellant is
18
2004
finds any substantive support, and the plea of consent, being that of a minor, is in
any event rendered legally untenable.
On an overall appraisal of the evidence, this Court finds that the
prosecution has succeeded in establishing, beyond reasonable doubt, that the
prosecutrix was below sixteen years of age on the date of the occurrence; that she
ay by the appellant from the lawful guardianship of her father without
his consent; and that she was thereafter subjected to sexual intercourse. The
testimony of the prosecutrix, which forms the substratum of the prosecution case,
has remained consistent on all material particulars and inspires confidence, and it
finds due assurance from the medical evidence, the report of the Forensic Science
Laboratory and the documentary evidence relating to her age. The findings
recorded by the learned trial Court are based upon a proper and balanced
appreciation of the oral as well as documentary evidence. Having independently
appreciated the entire evidence, as is required while dealing with an appeal
against conviction, this Court finds no perversity, misreading of
omission to consider any material circumstance which would justify interference
with the judgment under challenge.
The defence set up by the appellant has failed to probabilise his
innocence. The plea of false implication on account of a
is a mere assertion unsupported by any independent evidence, while the alternative
suggestion of a consensual relationship is rendered legally untenable in view of the
finding that the prosecutrix was below sixteen years of age. T
evidence has also not been able to prove that the prosecutrix was a major on the
day of occurrence. None of the submissions advanced on behalf of the appellant is
finds any substantive support, and the plea of consent, being that of a minor, is in
On an overall appraisal of the evidence, this Court finds that the
prosecution has succeeded in establishing, beyond reasonable doubt, that the
prosecutrix was below sixteen years of age on the date of the occurrence; that she
ay by the appellant from the lawful guardianship of her father without
his consent; and that she was thereafter subjected to sexual intercourse. The
testimony of the prosecutrix, which forms the substratum of the prosecution case,
n all material particulars and inspires confidence, and it
finds due assurance from the medical evidence, the report of the Forensic Science
Laboratory and the documentary evidence relating to her age. The findings
ased upon a proper and balanced
appreciation of the oral as well as documentary evidence. Having independently
appreciated the entire evidence, as is required while dealing with an appeal
against conviction, this Court finds no perversity, misreading of evidence or
omission to consider any material circumstance which would justify interference
The defence set up by the appellant has failed to probabilise his
innocence. The plea of false implication on account of an alleged tenancy dispute
is a mere assertion unsupported by any independent evidence, while the alternative
suggestion of a consensual relationship is rendered legally untenable in view of the
finding that the prosecutrix was below sixteen years of age. The defence by leading
evidence has also not been able to prove that the prosecutrix was a major on the
day of occurrence. None of the submissions advanced on behalf of the appellant is
finds any substantive support, and the plea of consent, being that of a minor, is in
On an overall appraisal of the evidence, this Court finds that the
prosecution has succeeded in establishing, beyond reasonable doubt, that the
prosecutrix was below sixteen years of age on the date of the occurrence; that she
ay by the appellant from the lawful guardianship of her father without
his consent; and that she was thereafter subjected to sexual intercourse. The
testimony of the prosecutrix, which forms the substratum of the prosecution case,
n all material particulars and inspires confidence, and it
finds due assurance from the medical evidence, the report of the Forensic Science
Laboratory and the documentary evidence relating to her age. The findings
ased upon a proper and balanced
appreciation of the oral as well as documentary evidence. Having independently
appreciated the entire evidence, as is required while dealing with an appeal
evidence or
omission to consider any material circumstance which would justify interference
The defence set up by the appellant has failed to probabilise his
n alleged tenancy dispute
is a mere assertion unsupported by any independent evidence, while the alternative
suggestion of a consensual relationship is rendered legally untenable in view of the
he defence by leading
evidence has also not been able to prove that the prosecutrix was a major on the
day of occurrence. None of the submissions advanced on behalf of the appellant is
CRA-S-820-SB-2004
sufficient to create a reasonable doubt in the prosecution case or to d
well-reasoned findings recorded by the learned trial Court.
17. In view of the foregoing discussion, and finding no merit in the
present appeal, the same is hereby
11.07.2003 and the order of senten
Additional Sessions Judge (Adhoc), Fast Track Court No. II, Faridabad, convicting
and sentencing the appellant Sahib Alam under Sections 363, 366 and 376 IPC, are
hereby affirmed.
18. The sentence of the appellant having been suspended during the
pendency of the appeal, the appellant, if on bail, shall surrender before the learned
trial Court/Chief Judicial Magistrate concerned within a period of two weeks from
today to undergo the rema
the learned trial Court shall take appropriate steps, in accordance with law, to
secure his custody.
19. Pending miscellaneous application(s), if any, shall stand disposed of.
The trial Court recor
21.07.2026
puneet
i) Whether speaking/reasoned?
ii) Whether reportable?
19
2004
sufficient to create a reasonable doubt in the prosecution case or to d
reasoned findings recorded by the learned trial Court.
In view of the foregoing discussion, and finding no merit in the
present appeal, the same is hereby dismissed. The judgment of conviction dated
11.07.2003 and the order of sentence dated 11.07.2003 passed by the learned
Additional Sessions Judge (Adhoc), Fast Track Court No. II, Faridabad, convicting
and sentencing the appellant Sahib Alam under Sections 363, 366 and 376 IPC, are
The sentence of the appellant having been suspended during the
pendency of the appeal, the appellant, if on bail, shall surrender before the learned
trial Court/Chief Judicial Magistrate concerned within a period of two weeks from
today to undergo the remaining part of the sentence awarded to him, failing which
the learned trial Court shall take appropriate steps, in accordance with law, to
secure his custody.
Pending miscellaneous application(s), if any, shall stand disposed of.
The trial Court record be sent back forthwith along with a copy of this judgment.
(RUPINDERJIT CHAHAL)
Whether speaking/reasoned? Yes/No
Whether reportable? Yes/No
sufficient to create a reasonable doubt in the prosecution case or to dislodge the
reasoned findings recorded by the learned trial Court.
In view of the foregoing discussion, and finding no merit in the
. The judgment of conviction dated
ce dated 11.07.2003 passed by the learned
Additional Sessions Judge (Adhoc), Fast Track Court No. II, Faridabad, convicting
and sentencing the appellant Sahib Alam under Sections 363, 366 and 376 IPC, are
The sentence of the appellant having been suspended during the
pendency of the appeal, the appellant, if on bail, shall surrender before the learned
trial Court/Chief Judicial Magistrate concerned within a period of two weeks from
ining part of the sentence awarded to him, failing which
the learned trial Court shall take appropriate steps, in accordance with law, to
Pending miscellaneous application(s), if any, shall stand disposed of.
d be sent back forthwith along with a copy of this judgment.
(RUPINDERJIT CHAHAL)
JUDGE
Yes/No
Yes/No
islodge the
In view of the foregoing discussion, and finding no merit in the
. The judgment of conviction dated
ce dated 11.07.2003 passed by the learned
Additional Sessions Judge (Adhoc), Fast Track Court No. II, Faridabad, convicting
and sentencing the appellant Sahib Alam under Sections 363, 366 and 376 IPC, are
The sentence of the appellant having been suspended during the
pendency of the appeal, the appellant, if on bail, shall surrender before the learned
trial Court/Chief Judicial Magistrate concerned within a period of two weeks from
ining part of the sentence awarded to him, failing which
the learned trial Court shall take appropriate steps, in accordance with law, to
Pending miscellaneous application(s), if any, shall stand disposed of.
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