Judgment:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.
Appeal No.S-287-SB of 2003 Date of Decision: October 05, 2013 Jasminder Singh ...Appellant VERSUS State of Punjab ...Respondent CORAM: HON'BLE Mr.JUSTICE INDERJIT SINGH Present: Mr.T.S.Sangha, Senior Advocate with Mr.Narinder Singh, Advocate for the appellant.
Mr.Jasdev Singh Brar, Asstt.
Advocate General, Punjab for the respondent-State.
Mr.N.S.Thind, Advocate for the complainant.
**** INDERJIT SINGH, J.
The present appeal has been filed by the appellant against the judgment of conviction dated 07.01.2003 and order of sentence dated 08.01.2003, passed by the learned Addl.
Sessions Judge, Bathinda, whereby, he was held guilty and convicted and sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of ` 2000/- under Section 366 IPC and in default of payment of fine, to further undergo rigorous imprisonment for a period of twenty days and further convicted and sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of ` 5000/- Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.S-287-SB of 2003 -2- under Section 376 IPC and in default of payment of fine, to further undergo rigorous imprisonment for a period of two months.
Both the sentences were ordered to run concurrently.
The brief facts of the prosecution case are that a DDR was got registered with the police on 07.10.1999 by stating that prosecutrix has been missing from the house and search has been made but could not find her.
On 21.10.1999, Jagdish Kumar complainant got recorded his statement to ASI Malkiat Singh, in which he stated that he was married to Lila Devi in the year 1979 and prosecutrix was born out of that wedlock.
Lila Devi died about 11 years back and then he contracted second marriage with Usha Rani.
Prosecutrix is aged about 16 years and is doing house hold work after passing matric examination and she is missing for the last 15-16 days.
Now they have come to know that she has been induced by accused Jasminder Singh and he had taken her to some other place from Talwandi Sabo.
On the basis of this statement, ruqa was sent to the police station, whereupon, FIR was recorded under Section 366-A IPC.
On 30.10.1999, when ASI Malkiat Singh along with other police officials and Jagdish Kumar complainant was present at main chowk, Talwandi Sabo, he received secret information and apprehended prosecutrix and she was joined in the investigation.
Her statement was recorded, in which she stated that Jasminder Singh had committed rape with her.
As such, offence under Section 376 IPC was added.
Accused was arrested.
Rough site plan was prepared.
Prosecutrix and accused were medico-legally examined.
As per the character Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.S-287-SB of 2003 -3- certificate of school, the date of birth of the prosecutrix was shown as 20.10.1983.
After necessary investigation, challan was presented against the accused-appellant.
On presentation of challan against accused-appellant, copies of challan and other documents were supplied to him under Section 207 Cr.P.C.Finding prima facie case, the accused-appellant was charge-sheeted under Sections 366 and 376 IPC, to which he pleaded not guilty and claimed trial.
In support of its case, prosecution examined PW-1 Dr.Rupinder Kaur Romana, Medical Officer, who medico-legally examined prosecutrix on 30.10.1999 and found hymen absent.
In her opinion, there was nothing to suggest that intercouRs.has not taken place.
As per the report of Chemical Examiner, semen was found on Ex.No.1 to No.III-A and it is opined that intercouRs.had taken place.
PW-2 Dr.Harinder Pal Singh, medico-legally examined accused Jasminder Singh and opined that he find nothing to suggest that the said person was incapable of performing sexual intercourse.
PW-3 prosecutrix deposed that her date of birth is 20.09.1983 and has passed matriculation in March, 1999.
She further deposed that when she used to go to school, accused used to follow her.
He used to allure her by stating that he has got two shops, two houses and a plot and his father has sufficient money and he stated that he loves her and he wanted to marry her.
As a result of his inducement, she was convinced.
On the intervening night of 5/6.10.1999, accused induced her and abducted her to Kanpur in U.P.He kept her in a hotel and Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.S-287-SB of 2003 -4- also took her to cinema.
He committed sexual intercouRs.forcibly against her will upon her.
When accused fell short of money, he brought her to Talwandi Sabo and when they came down from bus at bus stand and were going towards Raman Mandi bye-pass, police party met them and checked them and there and then she made statement to the police.
On that day accused was taking her to the in- laws of his brother at Raman Mandi.
PW-4 Raghbir Singh, Head Master brought the record, in which the date of birth of the prosecutrix is given as 20.10.1983.
PW-5 Jagdish Kumar, complainant mainly deposed as per prosecution version.
PW-6 Head Constable Gurinder Singh and PW-7 Constable Jagtar Singh, are the formal witnesses, who tendered into evidence their affidavits Ex.PL and Ex.PM respectively.
PW-8 ASI Malkiat Singh, is the Investigating Officer.
He mainly deposed regarding investigation conducted by him in the present case.
At the close of prosecution evidence, the accused- appellant was examined under Section 313 Cr.P.C.and he denied the correctness of the evidence and pleaded himself as innocent.
Accused-appellant Jasminder Singh further pleaded that he did not abduct or kidnap the prosecutrix.
He further pleaded that prosecutrix compelled him to take her away from her house as her step mother was harassing and maltreating her.
She had written 100s of letters to him requesting him to rescue her from her mother and to take her out of the house.
On the intervening night of 5/6.10.1999 at midnight, she herself came out and asked him to take her and on her request, he Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.S-287-SB of 2003 -5- took her to Delhi in a Taxi and from there they went to Kanpur.
He further stated that she was more than 18 years of age at the time of occurrence.
He also stated that their marriage was got registered with the Registrar Kanpur on 20.10.1999 and thereafter, he married with her on 20.10.1999 according to Hindu Rites.
In defence, accused-appellant examined, DW-1 Dr.R.N.Dwivedi, who mainly identified the signatures of Dr.I.J.Punani, who gave the certificate regarding ossification test of the prosecutrix.
DW-2 Dharmendra Singh, Advocate mainly proved application given in writing to City Magistrate, Kanpur for medical examination and also deposed regarding affidavits.
DW-3 Ram Bali Arya also deposed regarding affidavits.
DW-4 Pritam Singh, Assistant, Punjab School Education Board, Mohali brought the Gazette record regarding Sandeep Kumar son of Jagdish Kumar/Usha Devi, who appeared in matriculation examination and according to Gazette his date of birth is 17.03.1983.
DW-5 Iqbal Singh deposed regarding the fact that prosecutrix was major and also regarding her marriage with the accused.
DW-6 Satwant Singh, also deposed regarding marriage of prosecutrix with the accused.
On the basis of the evidence produced by the prosecution, accused-appellant was convicted and sentenced by the learned Addl.
Sessions Judge, Bathinda, as stated above.
At the time of arguments, learned counsel for the appellant argued that the occurrence took place on 06.10.1999 and as per prosecution version, the date of birth of the prosecutrix is 20.10.1983, Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.S-287-SB of 2003 -6- which means that prosecutrix was 14 days less than the age of 16 years at the time of occurrence.
He further argued that perusal of the record shows that the prosecutrix was the consenting party and she has performed marriage with the accused.
The DWs have duly proved this fact.
He next argued that prosecutrix also remained with the accused-appellant for long time and she has not reported regarding her abduction or rape to anybody.
Otherwise also, in the cross-examination, she has stated that she left the house without telling anybody and without wearing shoes to avoid noise, so that nobody could know that she is going.
Learned counsel for the appellant further contended that there was no abduction or kidnapping nor any rape has been committed.
He next contended that prosecution has failed to prove that prosecutrix was less than 16 years of age because PW-5 Jagdish Kumar, father of the prosecutrix himself has stated that date of birth of his son Sandeep Kumar is 17.03.1983 in the cross-examination, which fact has been duly supported by DW-4 Pritam Singh, who has brought the Gazette record, in which date of birth of Sandeep Kumar son of Jagdish Kumar/Usha Devi, is shown as 17.03.1983.
So, he argued that as such Sandeep Kumar was younger to prosecutrix, therefore, it means that prosecutrix was more than 16 years of age at the time of occurrence and her date of birth cannot be held as 20.10.1983.
Learned counsel for the appellant, therefore argued that no offence is made out against the accused-appellant and there being merit in the appeal, it should be allowed and appellant should be acquitted.
Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.S-287-SB of 2003 -7- On the other hand, learned Asstt.
Advocate General, Punjab for the respondent-State and learned counsel for the complainant have argued that prosecution has duly proved its case by leading cogent evidence.
Prosecutrix herself has deposed regarding committing of rape.
They further argued that the matriculation certificate shows date of birth of prosecutrix as 20.10.1983, which means that she was less than 16 years of age at the time of occurrence.
So, the prosecutrix was unable to give the consent.
Therefore, the accused-appellant has been rightly convicted under Sections 366 and 376 IPC and there being no merit, the appeal should be dismissed.
I have gone through the record minutely and carefully and have heard learned counsel for the appellant and learned Asstt.
Advocate General, Punjab for the respondent-State as well as learned counsel for the complainant.
From the record, firstly as regarding the fact whether prosecutrix was less than 16 years of age at the time of occurrence, I find that a reasonable doubt exists regarding the same.
Ex.PC matriculation certificate of the prosecutrix shows her date of birth as 20.10.1983.
She has been shown as daughter of Jagdish Kumar and her mother’s name has been written as Usha Devi, who is her step mother as per evidence.
As per prosecution version, Sandeep Kumar was younger brother of the prosecutrix.
He has appeared in the matriculation examination.
DW-4 Pritam Singh has brought the Gazette record showing roll number of Sandeep Kumar.
He has also Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.S-287-SB of 2003 -8- been shown as son of Jagdish Kumar/Usha Devi.
His date of birth is written as 17.03.1983 in the Gazette.
This official record cannot be doubted.
Otherwise also, PW-5 Jagdish Kumar, complainant has also given date of birth of Sandeep Kumar as 17.03.1983.
If Sandeep Kumar was born on 17.03.1983, then prosecutrix, whose date of birth has been shown as 20.10.1983, would be his younger sister, which is not the case, which means that a reasonable doubt exists regarding the date of birth.
One of the dates of birth is incorrect.
If the date of birth of Sandeep Kumar is correct, then age of prosecutrix was more than 16 yeaRs.being elder to Sandeep Kumar.
If the date of birth of prosecutrix is correct, then definitely the date of birth of Sandeep Kumar is incorrect in the record.
Therefore, a reasonable doubt exists in the prosecution version, whether the prosecutrix was of more than 16 years of age at the time occurrence or 14 days less than 16 yeaRs.The accused-appellant is to create only some doubt in the prosecution version and the prosecution is to prove its case beyond reasonable doubt.
So, in view of the evidence, I find that a reasonable doubt exists regarding fact whether prosecutrix was less than 16 years or not.
The accused-appellant has also proved documents on record showing that an application was filed before the City Magistrate, Kanpur for assessing the age of the prosecutrix and the report regarding the same has been produced on the record, in which she was stated to be of 18 years but the doctor who conducted the ossification test has not been produced in the Court.
In view of the above, I find that the prosecution has failed to prove that the Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.S-287-SB of 2003 -9- prosecutrix was less than 16 years of age on the date of occurrence, beyond doubt.
Secondly, from the evidence on record, I find that it is a consent case.
Prosecutrix in her statement has stated that accused- appellant allured her by stating that he has got two shops, two houses etc.and wanted to marry her and she was convinced with his talks.
She also stated that on the intervening night of 5/6.10.1999, she had gone out in the midnight at 12 O’clock when all family members were asleep, without informing anybody and she had concealed herself and she had gone without wearing shoes, so that no family member would get awake from the noise of shoes.
This cross-examination itself shows that prosecutrix was a consenting party.
Otherwise also, she stated that they have stayed in the hotel at Kanpur for 20-22 days.
She did not narrated the incident of rape to anybody present in the hotel during those 20-22 days.
Otherwise also, the prosecutrix travelled with the accused.
They went to CMO at Kanpur.
They also attended the Court and they have contracted marriage etc.So, it looks unnatural that she would not inform anybody regarding rape committed upon her without her consent etc.Therefore, from the evidence on record, it is a consent case.
As prosecution has failed to prove that prosecutrix was less than 16 years of age beyond any reasonable doubt and it being consent case, no offence under Section 376 is made out and giving benefit of doubt, accused-appellant is acquitted of the charges under Section 376 IPC and the conviction under Section 376 is set aside.
Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh Crl.
Appeal No.S-287-SB of 2003 -10- As regarding offence under Section 366 IPC, though the prosecution has failed to prove the age of the prosecutrix less than 16 years at the time of occurrence but at the same time, there is nothing on the record to show that she was major or had attained the age of 18 yeaRs.She has been kidnapped and taken away from the custody of the guardian without the consent of the guardian for the purpose of marriage.
Therefore, the accused-appellant committed offence under Section 366 IPC, which has been duly proved by the prosecution.
Keeping in view the fact that prosecutrix herself had gone with the accused-appellant and as regarding rape, it was a consent case, I reduce the sentence of the accused-appellant to undergo rigorous imprisonment for three years under Section 366 IPC without any change in fine and default sentence.
Resultantly, the present appeal stands partly allowed with the above-said modification.
As appellant Jasminder Singh is on bail, his bail bonds stand annulled and he is directed to surrender himself before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against him in accordance with law.
October 05, 2013 (INDERJIT SINGH) Vgulati JUDGE Gulati Vineet 2013.10.11 16:24 I attest to the accuracy and integrity of this document Chandigarh