IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1096 OF 2004

FATEH CHAND …. Appellant

Versus

STATE OF HARYANA …. Respondent

J U D G M E N T

Dr. B.S. Chauhan, J.  

1. This  appeal  has  been  preferred  against  the  judgment  and  

order dated 21.8.2003 of the High Court of Punjab and Haryana at  

Chandigarh passed in Criminal Appeal No.341-SB of 1988 by which  

the High Court has dismissed the appeal against the judgment and  

order of Additional Sessions Judge, Faridabad dated 12.8.1988 and  

16.8.1988 convicting and sentencing the appellant to undergo R.I.  

for seven years and to pay a fine of Rs.500/-,  or else to further  

undergo R.I. for six months, under Section 376 IPC and R.I. for five

years and a fine of  Rs.500/-, or in default to further undergo R.I.  

for six months under Section 366 IPC.  However, it was directed  

that  both  the  substantive  sentences  of  imprisonment  shall  run  

concurrently.   

2. The facts and circumstances giving rise to this appeal are that  

the prosecutrix Geeta was present at her house in village Dayalpur,  

on the  morning of  5.6.1986 when Krishna,  wife  of  Fateh Chand  

(appellant herein), came there and asked her to visit Ballabgarh as  

her mother had met with an accident. The prosecutrix boarded a  

tempo from her village and came to Ballabgarh.  When she got down  

from the tempo at Ballabgarh, Fateh Chand - appellant who had  

also traveled in the same very vehicle from Dayalpur to that place,  

told Geeta that her mother was lying in the hospital at Ballabgarh  

and that he could assist her in taking her to the hospital. Appellant  

arranged for a car and made Geeta to sit in the car.  Geeta was  

given an intoxicant by the appellant in lemon water before sitting in  

the car.  Prosecutrix - Geeta was taken to the house of Shanti Devi,  

mother-in-law of  the  appellant  at  Jaipur  where  she was forcibly  

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subjected  to  sexual intercourse by the appellant.  Geeta  

was left at the house of Shanti Devi by the appellant where she was  

sexually abused and coerced to indulge in flesh trade.  Appellant  

and  his  wife  Krishna  again  visited  the  house  of  Shanti  Devi  at  

Jaipur after few weeks and advised the prosecutrix not to return to  

her house.  She was informed that a dead body of some young girl  

was recovered and it was identified as that of Geeta.  Thus, if she  

returned home, her parents would be in difficulty.  The case which  

was registered by the parents of Geeta under Section 364 IPC was  

filed as untraced in the month of October, 1987. On 13.11.1987,  

Geeta returned to her house.  She was produced before the police  

and investigation again started.  Geeta was medically examined by  

Dr. Savita Ranjan on 14.11.1987.  She was also put to radiological  

test on 17.11.1987 to determine her age.  Fateh Chand - appellant  

was  arrested  on  17.11.1987.   After  completion  of  investigation,  

challan was filed against the appellant and he was charged under  

Sections 366/376 IPC to which he pleaded not guilty and claimed  

trial.   

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3. Before  the  trial  court basically  the  question  arose  as  to  

what was the age of the prosecutrix and whether the appellant was  

guilty of the aforesaid offences.   

4. On the  issue of  the age of  the prosecutrix,  the prosecution  

examined, the prosecutrix Geeta PW.3, her mother Satya PW.4, her  

father Jagdish PW.6 and Dr. Rajesh Gupta PW2, who examined the  

prosecutrix radiologically on 17.11.1987. All of them deposed and  

given  cogent  explanation  to  the  effect  that  the  prosecutrix  was  

below 16 years of age at the time of incident.  Dr. Savita Ranjan  

PW1,  who examined the prosecutrix on 17.11.1987 opined that the  

prosecutrix was habitual to sexual intercourse.  After considering  

the evidence,  the trial court came to the conclusion that it was a  

case of having peculiar features as the prosecutrix remained under  

constant threat for a long time and she had been subjected not only  

to  sexual  harassment  by  the  appellant  but  had  been  forced  to  

indulge in flesh trade.  She had been taken away by the appellant  

fraudulently.  The trial court found the charge against the appellant  

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proved.   Thus,  he  was convicted  and  awarded  sentences  

as aforesaid.  

5. Before the High Court, in appeal,  same issues were raised and  

the High Court came to the conclusion that at the time of incident  

prosecutrix was below 16 years of age.  Appellant committed rape  

on  her.   She  had  been  coerced  to  indulge  in  flesh  trade  and,  

therefore, the conviction as well as the sentence was maintained.  

Hence this appeal.  

6. In spite of the knowledge that the matter would be heard by  

this Court in Vacation and notice for that purpose had been given  

long back, none appeared for the appellant.  Thus, the Court had  

no  option  but  to  go  through the  entire  record  and  examine  the  

evidence on record minutely with the help of the learned counsel for  

the respondent-State, Shri T.V. George.

7. There could be no doubt regarding the age of the prosecutrix  

in view of the depositions of the aforesaid witnesses on this issue  

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and we do not see any cogent reason  to  interfere  with  the  said  

findings of fact recorded by the courts below.  As per the evidence  

given by her mother Satya(PW 3) and father Jagdish (PW 6), it is  

clear that her parents got married only 20 years prior to the date of  

incident.  The  prosecutrix  had  two  elder  sisters.   Eldest  sister  

Mithlesh was born one and a half years after the marriage of her  

parents and Sunita was 1½ years younger to Mithlesh.   Prosecutrix  

Geeta is younger to Sunita by about one and a half years.  So on  

the date of  incident, the age of the prosecutrix was less than 16  

years.  There could be no reason to disbelieve the said witnesses.  

Being parents of the prosicutrix, they could be  the most natural  

and  reliable  witnesses  on  this  point.   Dr.  Rajesh  Gupta  (PW2)  

examined  the  prosecutrix  radiologically  and  opined  that  her  age  

could be between 14 and 17½ years as on 17.11.1987.  Thus, on  

this  issue,  we  have  no  reason  to  interfere  with  the  concurrent  

finding of fact by the Courts below.  

8. It was a case of taking the prosecutrix away fraudulently and  

subjecting her  to rape by the appellant and forcing her to indulge  

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in  flesh  trade  by  coercion. Deposition  of  the  prosecutrix  

herself unfolds the facts.  Prosecutrix remained for about one and a  

half years in Jaipur and reasons for which she could not come back  

or inform her parents, stand well explained by the prosecutrix that  

she had been given threat by the appellant that the dead body of  

some other  girl  had been identified  by  her  parents  to  be  of  the  

prosecutrix  and thus if  she went back,  her  parents would be in  

difficulty.  She had been living under a constant threat and could  

not muster the courage to inform any person.

9. Grounds taken in the appeal are not worth acceptance. It has  

been urged that there was inordinate delay in lodging the FIR.  The  

delay was bound to occur as the FIR was filed after return of the  

prosecutrix from Jaipur after one and a half years remaining under  

the  ordain of the accused/appellant.  An FIR had been lodged just  

after  disappearance  of  the  prosecutrix  on 5.6.1986 but  the  said  

case stood closed.

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10. The  issue  of  not  having physical injury marks of any nature  

on the body of the prosecutrix is irrelevant and not worth taking  

into consideration for the simple reason that the accused had raped  

the prosecutrix immediately after taking her away to Jaipur.  She  

was examined after one and a half years from the date of abduction  

and rape.  She had been forced to indulge in prostitution during  

this  period.  Therefore,  the  prosecutrix  had  become  habitual  to  

sexual intercourse.  In such a fact-situation, question of having any  

physical injury marks would not arise.

11. Undoubtedly, the prosecutrix had been taken away from the  

lawful custody of  her parents by the appellant Fateh Chand to the  

place of his mother-in-law at Jaipur and she had been subjected to  

rape by him and was coerced to indulge in prostitution.  Thus, the  

case certainly boarded on trafficking of women.  There had been  

intervening factors specially the recovery of the dead body identified  

to be that of the prosicutrix  had stalled the immediate search of the  

prosecutrix and thus, no attempt was made to trace her out.  She  

had  been  taken  deceitfully.  As  she  had  remained  under  the  

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constant  threat  and coercion, she  could  not  share  her  agony  to  

any person who could help her.  Thus, there is nothing on record to  

show  that  prosecution  could  not  prove  the  case  against  the  

appellant  beyond  reasonable  doubt  for  the  offences  punishable  

under Section 366/376 IPC.

12. In view of the above, we do not see any merit in this appeal  

and the same is, accordingly, dismissed.  Appellant is on bail.  His  

bail  bonds and surety bonds stand cancelled.   He be taken into  

custody forthwith to undergo the remaining part of the sentence.  

…….…………………………….J. (Dr. Mukundakam Sharma)

…….…………………………….J. (Dr. B.S. Chauhan)

New Delhi; May 29, 2009.

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Digital Proforma

1. Case No. : Criminal Appeal No. 1096 of 2004

2. Date of decision : 29.5.2009

3. Cause Title : Fateh Chand vs.

State of Haryana

4. Coram : Hon’ble Dr. Justice Mukundakam Sharma Hon’ble Dr. Justice B.S. Chauhan

5. Date of C.A.V. : 25.5.2009

6. Judgment delivered : Hon’ble Dr. Justice B.S. Chauhan by

7. Nature of Judgment : Non-Reportable whether reportable

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