M.L. Singhal, J.
1. Vide order dated 12-5-2001, in case FIR No. 28 of 5-3-1999 under Section 376 of the Indian Penal Code of Police Station Sahnewal, District Ludhiana (Sessions Case No. 55 of 14-6-1999), Baba Jagga Singh was convicted under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 1000/- and in default to undego further rigorous imprisonment for 3 months.
2. Baba Jagga Singh has knocked the door of this Court through this appeal and has challenged his conviction and sentence passed upon him by the Additional Sessions Judge, Ludhiana, in the aforesaid case.
3. The prosecution case, in brief, is that Binder Kaur, aged 14 years, is the daughter of Jasbir Kaur who is wife of late Gurbachan Singh. Jasbir Kaur was putting up with her husband's younger brother Gurdarshan Singh after the death of her husband Gurbachan Singh in village Sahnewal Khurd. Jasbir Kaur was possessed of evil spirit. She was told by somebody that in village Sahnewal Kalan, Baba Jagga Singh was treating people possessed of evil spirit at his house and he would liberate her of evil spirit. On 4-3-1999 at about 8.00/9.00 p.m., she along with her daughter Binder Kaur went to the house of Baba Jagga Singh, situated in village Sahnewal Kalan. Baba Jagga Singh told them that they would have to stay at his house for the night if she wanted that she should be completely liberated of evil sprit. She and her daughter Binder Kaur stayed there. She and Binder Kaur slept in a room and in the adjoining room, Bab Jagga Singh slept. At about 4.00/5.00 a.m. Binder Kaur came out of the room for urinating. Baba Jagga Singh caught hold of her from her arms and took her into his room. Baba Jagga Singh threw her on the double-bed, undressed her and gagged her mouth with his hand and, thereafter, had sexual intercourse with her forcibly, without her consent and against her will. Binder Kaur raised raula. Her mother Jasbir Kaur saw through the open door of that room rape being committed upon her. Binder Kaur feeling ashamed due to this erosion on her modesty, got down the stairs and ran out. Jasbir Kaur reprimanded Baba Jagga Singh for this outrage committed on her daughter by him. Jasbir Kaur searched her daughter in fields. She came across 4-5 persons along with her daughter Binder Kaur who were coming from the brick-kilns towards the village. She narrated the entire incident to them. She reported the matter to the police at about 8.00 p.m. vide statement Exhibit PB near Swaran Hotel, Sahnewal, where Inspector Manjit Singh (PW. 14) met her. On the basis of the statement Exhibit PB, case FIR No. 28 dated 14-6-1999 (Ex. PB/B) was registered at Police Station, Sahnewal under Section 376 of the, Indian Penal Code. PW. 7 Dr. Jagdish Kaur Sidhu, Medical Officer, Civil Hospital, Ludhiana, medically examined Binder Kaur on 6-3-1999 at about 5.30 p.m. She took vaginal swab from the vagina of Binder Kaur. P.W. 14 Inspector Manjit Singh took into possession one Salwar and Shirt stained with blood which Binder Kaur was wearing at the time of commission of; rape on her. Salwar and Kamij which were taken into, possession vide memo Ex, PA. One embroidered piece of cloth stained with, semen was: recovered from the almirah of the Chaubara which had been kept there after committing rape. P.W. 10 Dr. Sarjiwan Kapila, Medical Officer, Primary Health Centre Sahnewal, medically examined Baba Jagga Singh and certified that he was capable of sexual intercourse. P.W. 11 Dr. Ashok Rawant, Radiologist, Civil Hospital, Ludhiana, performed ossification test with Binder Kaur. His opinion was that her age was between 13 to 15 years and, in any case, it was not more than 15 years. As per the School record, Binder Kaur was born on 8-4-1985. Semen was found on that piece of cloth and mat Salwar by the Chemical Examiner to Government, Punjab and semen was found on vaginal swab also. After completion of investigation, Baba Jagga Singh was challened under Section 376 of the Indian Penal Code.
4. Vide order dated 3-6-1999, Baba Jagga Singh was committed to the Court of Session by Judicial Magistrate 1st Class, Ludhiana for trial.
5. Accused Jagga Singh was charged under Section 376 of the Indian Penal Code by the Additional Sessions Judge, Ludhiana. he pleaded not guilty to the charge and claimed trial. At the conclusion of the trial, Baba Jagga Singh was convicted and sentenced as noted above by the Additional Sessions Judge, Ludhiana,
7. I have heard the learned counsel for the appellant and learned Deputy Advocate General for the State of Punjab and have gone through the record.
9. Binder Kaur, prosecutrix (P.W. 5) supported the prosecution case. Her mother Jasbir Kaur (P.W. 3) has corroborated her. According to the ossification test, her age was between 13 to 15. She was not more than 15 years in any case. According to the school record, she was born on 8-4-1985, Salwar, which she was wearing at the time of sexual intercourse, was found to be stained with semen by the Chemical Examiner. Similarly, the piece of cloth recovered from the almirah of the house of the accused was found stained with semen. Semen was found on the vaginal swab also. Baba Jagga Singh was found capable of sexual intercourse by the doctor who examined him.
8. Learned counsel for the appellant submitted that no rape was committed on Binder Kaur. If rape had been committed on Binder Kaur, her mother would not have sworn an affidavit Ex. DA giving clean chit to the accused and naming the accused at the instance of one Swaran Singh alias Channu who had strained relations with Baba Jagga Singh. It was submitted that she swore this affidavit before Executive Magistrate, Ludhiana. She was confronted with this affidavit. She stated that she was kept in dark when the son-in-law of the accused obtained her thumb-impressions on the affidavit about the facts given in the affidavit. She stated that this affidavit was not read over and explained to her,
9. It was submitted that commission of rape by the accused could not be possible when his wife resides in the ground-floor of that house. Daughter and son-in-law of the accused are also residing on the ground floor in the house of the accused. It was submitted that rape was not possible by the accused when that day the wife of the accused was there in the house along with her daughter and son-in-law. Suffice it to say, this argument is based on conjectures and surmises. How can the Court ignore the-positive testimony of Binder Kaur, which is supported by her mother Jasbir Kaur, and the medical evidence?
10. It was submitted that there is delay in the lodging of the first information report. Rape was allegedly committed on 5-3-1999 at about 4-00/5-00 a.m. while the matter was reported to the police at about 8-00 p.m. Suffice it to say, both Jasbir Kaur and Binder Kaur have given reason for delayed report to the police, Binder Kaur stated that after the commission of rape on her, she ran away and went towards the fields so that accused again could not commit rape on her. She hide herself in the brick-kiln. Binder Kaur was an unmarried girl aged 1.5 years. She was feeling ashamed and disgraced because of the commission of rape upon her. She ran away. She came to the hands of her mother in the evening and then the matter was reported to the police.
11. Why should Binder Kaur prosecutrix be disbelieved when there is a presumption enshrined in Section 114A of the Evidence Act that if a woman says that she was raped, it has to be taken that she was raped. It is for the accused to show that no sexual intercourse was committed upon her without her consent.
12. For the reasons given above, I am of the opinion that the accused was justifiably convicted of the charge of rape by the Additional Sessions Judge, Ludhiana. Faced with the position that there is no escape for the accused but to remain convicted, learned counsel for the appellant prayed for leniency. In this case, I do not see any reason to show leniency towards the accused. The accused played with the modesty of a girl aged 15-16 years and ravished her who had completely confided in him that he will cure her mother of evil spirit and she nursing this belief stayed with him for the night along with her mother. Accused committed breach of faith which they had reposed in him. He was 55-56 years old. Binder Kaur was 14-15 years old. She was, thus, of the age of her grand-children. He should have felt ashamed of himself when he committed breach of faith reposed In him by them and committed rape on a tender girl when she and her mother were completely in trust with him.
13. The appeal fails and is dismissed, both as regards conviction and sentence.