Karamjit Singh And Others vs State Of Punjab on 2 March, 2009

[Cites 8, Cited by 4]

Punjab-Haryana High Court

Karamjit Singh And Others vs State Of Punjab on 2 March, 2009

Shri Sukhdev Singh, the then Additional Sessions Judge, Moga, vide his impugned judgment dated 13.9.2004 convicted the accused for various offences and vide separate order of even date, sentenced accused Karamjit Singh to undergo rigorous imprisonment for ten years and to pay a fine of Criminal Appeal No.1901-SB of 2004.

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Rs.10,000/- and in default of payment of fine, to undergo further rigorous imprisonment for one year under Section 376 IPC. He was further sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months under Section 363 IPC. He was still further sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/- and in default of payment of fine to undergo further rigorous imprisonment for one month under Section 342 IPC.

Accused Sukhmander Singh and Jangir Kaur were sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months each under Section 376 read with Section 120-B IPC.

Under Section 342 IPC, they were sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/- and in default of payment of fine, to undergo further rigorous imprisonment for one month each under Section 342 IPC.

They were also sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.2,000/- and in default of payment of fine, to undergo further rigorous Criminal Appeal No.1901-SB of 2004.

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imprisonment for four months under Section 506 IPC.

Accused Beant Singh was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/- and in default of payment of fine,to undergo further rigorous imprisonment for six months under Section 376 read with Section 120-B IPC.

Under Section 363 IPC, he was sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo rigorous imprisonment for six months under Section 363 IPC.

He was also sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of one month, under Section 342 IPC.

All the substantive sentences of imprisonment have been ordered to run concurrently.

The prosecution case, in brief, is epitomized as under:-

On 24.10.1998, Raj Krishan Singh and Kulbir Singh came to ASI Balwinder Singh. They told that their sister who is prosecutrix (her name is not being disclosed in view of law laid down in State of Punjab Versus Gurmeet Singh, 1996(1) RCR Criminal Appeal No.1901-SB of 2004. -4-

533) was missing since the night of 21/22.10.1998. They made search for her but could not find her clue.

On 24.10.1998, they came to know that the prosecutrix was confined in house of Karamjit Singh Fauji. On such information, ASI Balwinder Singh along with police party and informants went to the house of Karamjit Singh Fauji and they found a room of his house locked from outside. They took key from Sukhmander Singh and opened the lock. From that room, victim was recovered. ASI Balwinder Singh recorded her statement in which she stated that she was aged 14 years. She left her studies while in 8th class and then she was doing house-hold work. On the intervening night of 21/22.10.1998 at about 12/12.30 mid night, she was to go to outer bath room to urinate. Near door of her house besides wall, Karamjit Singh son of Amar Singh who was serving in the army and Beant Singh son of Gurdev Singh, residents of village Malke were standing. Karamjit Singh gagged her mouth with a piece of cloth. Beant Singh lifted her by legs. They both lifted her to the house of Karamjit Singh. She was confined in a room. Karamjit Singh remained in that room along with her. Beant Singh bolted the door from outside and left away. Karamjit Singh had broken the string of her Salwar and put off her Salwar. He also Criminal Appeal No.1901-SB of 2004.

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forcibly put off her shirt. He lifted her legs. He put his penis into her vagina. Then Karamjit Singh again gagged her mouth with piece of cloth. Karamjit Singh committed rape on her three or four times after intervals. She tried her best to rescue herself from him but she could not become free from his captivity because door was closed. When rape was being committed with her by Karamjit Singh, he had spread his shirt of uniform on bed sheet of double bed. The said shirt was stained with blood and semen. He got the door opened from outside. He left the room. He took away such shirt of uniform with him. He locked the room again from outside and handed over the key to his brother Sukhmander Singh by calling his name. Then he left away. During day, Jangir Kaur, mother of Karamjit Singh got unlocked the door and gave threats to her. She had also given her slaps and threatened that in case she divulged the name of her son to anyone, she would be done to death. Jangir Kaur asked the prosecutrix to go to her house. At that time, Sukhmander Singh was also present. He caught hold of his mother from arm and made her to go out. He locked the room from outside. They all in furtherance of their common intention got her raped from Karamjit Singh and kept her confined. It was police force which got the prosecutrix released from captivity of accused Criminal Appeal No.1901-SB of 2004.

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persons.

On the basis of said statement of the prosecutrix, a criminal case was registered.

After investigation,challan was presented against the accused in the Court.

The accused were charge-sheeted accordingly to which they pleaded not guilty and claimed trial.

In order to substantiate its allegations, the prosecution examined PW-1 prosecutrix, PW-2 Raj Krishan, brother of prosecutrix, PW-3 Kulbir Singh, another brother of the prosecutrix, PW-4 Shinder Singh, Principal, Government Senior Secondary School, Malke, who proved school leaving certificate, PW-5 ASI Gursewak Singh, PW-6 HC Bhajan Singh, PW-7 Dr. Kulwinder Kaur and PW-8 SI Balwinder Singh.

After the closure of prosecution evidence, the statements of the accused were recorded under Section 313 Cr.P.C. They denied prosecution case as well as evidence against them and alleged that the case was false and witnesses told a lie. Accused Karamjit Singh and Jangir Kaur have also taken defence that he ( Karamjit Singh) had love affair with the prosecutrix whose brother was serving as a Constable in Punjab Police. He insisted to Criminal Appeal No.1901-SB of 2004.

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get his sister married with Karamjit Singh who had come to his house. He had refused such proposal of brother of prosecutrix by saying that he would get married when he would come on leave for two months. A dispute erupted between them. They were falsely involved in this case. They further alleged that, at that time, Raj Krishan was posted as gunman with SSP Jagraon with whose connivance he got lodged false case against them. The accused offered to lead defence evidence but they did not lead the same.

After the conclusion of trial, the accused were convicted and sentenced, as noticed in the earlier part of judgment.

Feeling aggrieved, they have preferred the instant appeal,in this Court.

The learned counsel for the appellants has submitted that the ingredients of offence under Section 376 IPC are not made out. The prosecution examined PW-7 Dr. Kulwinder Kaur. This witness has stated that there was no injury or any laceration. No report of Chemical Examiner to prove the factum of rape has been produced. Tags of hymen were there and the vagina admitted one finger. PW-7 Dr. Kulwinder Kaur has no where stated that the prosecutrix was subjected to rape. So, in these circumstances, the learned trial Court has wrongly convicted Karamjit Singh under Criminal Appeal No.1901-SB of 2004.

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Section 376 IPC and the other accused under Section 376 read with Section 120-B IPC.

I have carefully considered the said submission. The learned trial Court has elaborately dealt with this aspect of the case. As tags of hymen were there, it clearly suggests that hymen was not intact. In these circumstances, the testimony of the prosecutrix which is flawless has to be accepted. The story of false implication does not appeal to reason. No body would put the honour of an un-married girl at stake. The stand taken by the accused that the relatives of the prosecutrix wanted to marry the prosecutrix with accused Karamjit Singh and that he refused on the ground that he could marry only in long left is concerned, the same is wrong on the face it. In Indian society, no un-married girl will lodge such a serious FIR. In case Aman Kumar and another v.State of Haryana, AIR 2004 Supreme Court 1497, it has held that to constitute the offence of rape, it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration within the labia majora of the vulva of pudendum with or without emission of semen is sufficient to constitute the offence of rape. The depth of penetration is immaterial for an offence under Section 376 IPC.

Criminal Appeal No.1901-SB of 2004.

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The learned counsel for the appellants has submitted that the appellants have placed on the file love letters written by the prosecutrix. The learned trial Court has closed the defence evidence hurriedly. The appellants have got inspected the file for comparing the handwriting on the love letters with that of the prosecutrix. However, the defence evidence was closed by order. This fact has clearly prejudiced the case of the appellants.

It is further contended that the prosecution has failed to prove the age of the prosecutrix to be below 16 years. The certificate of the school is not sufficient to prove the age of the prosecutrix to be less than 16 years, more-so when the parents of the prosecutrix have not been examined. To support this contention, the learned counsel for the appellants has relied upon the following authorities:-

1.Ram Deo Chauhan @ Raj Nath Versus State of Assam, 2001(2) RCR (Criminal) 702.

2.Sushil Kumar Vs. Rakesh Kumar, 2004(1) Civil Court Cases 63(SC).

3.Birad Mal Singhvi Vs. Anand Purohit, 1988 Civil Court Cases 503 (S.C).

The learned State counsel has submitted that father of Criminal Appeal No.1901-SB of 2004.

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the prosecutrix could not be examined as he has died.

The age of the prosecutrix is material, in the present case. The learned trial Court, after appraisal of evidence, came to the conclusion that age of the prosecutrix was below 16 years. Reliance has been placed on the school certificate. In the present case, besides prosecutrix, PW-7 Kulwinder Kaur has given the age of the prosecutrix as 14 years. No cross-examination regarding the age of the prosecutrix was conducted on PW-7 Kulwinder Kaur. So, the appellants cannot derive any benefit from the authorities in cases Ram Deo Chauhan @ Raj Nath, Sushil Kumar and Birad Mal Singhvi (supra).

The finding of learned trial Court that the prosecutrix was below 16 years does not call for any interference.

Therefore, the factum of love letters loses their importance as consent given by the prosecutrix who is below 16 years of age is immaterial. Even if the love letters are taken into account, in that case also, the ingredients of offence under Section 376 IPC are made out against accused Karamjit Singh.

The learned counsel for the appellants has further submitted that according to the prosecutrix, she remained confined to one room and she has not answered the call of nature and, on Criminal Appeal No.1901-SB of 2004.

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that count, the prosecution story is doubtful. It is further contended that window of the room where the alleged rape was committed opens in the Dana Mandi where shops are situated. In these circumstances, the prosecutrix could have raised an alarm but she did not do so and, for that reason, the prosecution story is doubtful.

I have carefully considered the said submissions but do not find any force in the same.

Similar arguments were advanced before the trial Court which have been dealt with by it. The age of the prosecutrix was below 16 years. So, in these circumstances, it was not possible for her to raise hue and cry,more-so when there was constant vigil upon her.

The learned counsel for the appellants has further submitted that so far as accused Sukhmander Singh and Jangir Kaur are concerned they are brother and mother of Karamjit Singh, alleged main accused. It is contended that even according to the prosecutrix, rape was committed by Karamjit Singh on the first night for 3 or 4 times. Kidnapping of prosecutrix was alleged to be by Karamjit Singh and Beant Singh and there is no allegation of kidnapping against Sukhmander Singh and Jangir Kaur. It is further mentioned in the FIR that Jangir Kaur told the prosecutrix Criminal Appeal No.1901-SB of 2004.

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to go on the next day. There is no allegation of conspiracy for the offence of rape against them. Even, according to the prosecutrix, no rape was committed after the first night. Even if all the allegations of the prosecution are taken as gospel truth, in that case also, the allegations against Sukhmander Singh and Jangir Kaur are simply of illegal confinement.

Sukhmander Singh has already undergone imprisonment for 3 years 2 months and 1 day. Jangir Kaur has also undergone incarceration for a period of 8 months. So, both of them should not have been convicted under Section 376 read with Section 120-B IPC. At the most, their conviction under Sections 342 and 506 IPC can be maintained. It is contended that since they have already undergone incarceration for sufficiently long period, so their sentence be reduced.

According to the testimony of the prosecutrix, on 21/22.10.1998 at about 2.30 mid night, she woke up for urinating. Karamjit Singh and Beant Singh took her forcibly to the room of Karamjit Singh where she was raped by Karamjit Singh for 3 or 4 times. Beant Singh bolted the door from outside. The prosecutrix has further stated that Jangir Kaur came there on the next day and slapped her. Jangir Kaur told her to go otherwise they will kill her.

Criminal Appeal No.1901-SB of 2004.

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She has further disclosed that accused Sukhmander Singh brought her mother Jangir Kaur and she was again locked and on the third day, she was recovered from the house of Karamjit Singh. So, if the testimony of prosecutrix is analyzed, it is clear that she was subjected to rape on the intervening night of 21.10.1998 and she has not stated that thereafter she was subjected to rape. The allegations against Sukhmander Singh and Jangir Kaur are that of illegal confinement and threatening her not to disclose the factum of her confinement. The prosecutrix has not even stated the fact that Sukhmander Singh and Jangir Kaur were in the knowledge of rape by Karamjit Singh upon her. There was no prior conspiracy for offence under Section 376/120-B IPC so far as accused Sukhmander Singh and Jangir Kaur, accused are concerned. On the next day, Jangir Kaur even told the prosecutrix to leave the place and not to disclose the name of her son to any one. So, the prosecution, has failed to prove the ingredients of offence under Section 120-B read with Section 376 IPC against Sukhmander Singh and Jangir Kaur and consequently they stand acquitted under Section 376 read with Section 120-B IPC.

Sukhmander Singh has already undergone incarceration for more than 3 years and Jangir Kaur has also languished in the Criminal Appeal No.1901-SB of 2004.

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jail for a period of 8 months. Therefore, Sukhmander Singh has already undergone the sentence awarded under Sections 342 and 506 IPC. The sentence awarded to Jangir Kaur under Sections 342 and 506 IPC is reduced to the period already undergone by her.

So far as conviction recorded against Karamjit Singh and Beant Singh by the trial Court is concerned, the same does not call for any interference and stands confirmed.

So far as quantum of sentence is concerned, the counsel for the appellants has submitted that the prosecutrix, in her examination-in-chief itself, has stated that after three months of the occurrence, she has married. It is submitted that both Karamjit Singh and Beant Singh have undergone incarceration for more than four years. So, in view of authority in case Ram Kumar Versus State of Haryana, (2006) 4 Supreme Court Cases 347, the sentence of Beant Singh and Karamjit Singh be reduced.

I have carefully considered the said submission. The prosecutrix has, in her examination-in-chief, herself has stated that she was married in the month of January, 1999 i.e after three months of the occurrence. Appellant Karamjit Singh has undergone incarceration for a period of more than 3 years and 10 months. Appellant Beant Singh has also undergone incarceration Criminal Appeal No.1901-SB of 2004.

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for a period of about four years. In authority in case Ram Kumar (supra), the sentence was reduced to three years. So, keeping in view the above circumstances, the sentence of Karamjit Singh and Beant Singh stands reduced to the period already undergone by them.

However, the sentence of fine imposed upon Sukhmander Singh and Jangir Kaur under Sections 342 and 506 IPC and that of Karamjit Singh and Beant Singh under Sections 376, 376/120-B, 363 and 342 IPC stand maintained.

This appeal stands disposed of in the above terms. A copy of this judgment be sent to the trial Court for strict compliance.


March 2,2009.                            ( K. C. Puri )
Jaggi                                          Judge

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