Punjab-Haryana High Court
Inderjit Son Of Harbans Singh vs The State Of Haryana on 12 May, 2009
Criminal Appeal No. 48-SB of 1997 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 48-SB of 1997
Date of Decision : 12.05.2009
1. Inderjit son of Harbans Singh, aged 20 years;
2. Mohinder Singh son of Raj Karan, aged 23 years;
both residents of village Siwan Distt. Kaithal.
...Appellants
Versus
The State of Haryana
....Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Bipin Ghai, Senior Advocate,
with Mr. Sandeep Gahlawat, Advocate,
for the appellants.
Mr. P.S. Sullar, Deputy Advocate General, Haryana,
for the respondent - State.
Mr. Azad Singh, Advocate,
for the complainant.
****
SHAM SUNDER, J.
This appeal is directed against the judgement of conviction dated 03.01.97, and the order of sentence dated 04.01.97, rendered by the Court of Additional Sessions Judge, Kaithal, vide which, it convicted the accused, for the offences, punishable under Sections 366 and 376(2)(g) of the Indian Penal Code, and sentenced them, to Criminal Appeal No. 48-SB of 1997 2 undergo rigorous imprisonment, for a period of 7 years each, and to pay a fine of Rs. 2000/- each, and in default thereof, to further undergo rigorous imprisonment for a period of one year each, for the offence, punishable under Section 366 of the Indian Penal Code, and further sentenced them to undergo rigorous imprisonment, for a period of 10 years each, and to pay a fine of Rs. 2000/- each, and in default thereof, to further undergo rigorous imprisonment, for a period of one year each, under Section 376(2)(g) of the Indian Penal Code. Both the substantive sentences, were however, ordered to run concurrently.
2. The facts, in brief, are that on 19.09.95, Sahab Singh son of Amar Nath, complainant, father of the prosecutrix namely P and M (names not being mentioned, in view of the pronouncement of the Apex Court), lodged a report with the Police, to the effect, that he was employed as a driver in the office of Food and Supply, Kaithal, and was having a residential house in Nanak Puri Colony, Kaithal. He had one son aged 12 years and five daughters including P, aged 17 years and M, aged 15 years. He further stated that both the above named daughters, were students of 10+1 class in Government Girls Senior Secondary School, Kaithal. On 18.09.95, at about 7.30 AM, they had gone to the school. They returned from the school at 9.30 AM and informed that the examination would take place, in the afternoon. Again both of them went to the school at 11.45 AM, on one cycle. Thereafter, they did not return. He further stated that he searched his daughters, in the town, relations and other known places, but could not Criminal Appeal No. 48-SB of 1997 3 trace them. He stated that someone had kidnapped his daughters, but he could not suspect anyone, behind such kidnapping.
3. During the course of investigation, the wife of Sahab Singh, informed the Police, that she suspected the hands of Mohinder Singh and Inderjit, accused, behind the kidnapping of her daughters. The Police kept on searching both the accused, in Kaithal town, and their relations. On 21.09.95, Assistant Sub Inspector Surinder Pal, with other police officials, Sahab Singh, and Ravinder Kumar, apprehended both the accused alongwith P and M, and a driver in van No. DBL-12 near bye-pass Chowk Ambala Road, Kaithal. Sahab Singh and Ravinder Kumar identified the prosecutrix P and M. The recovery- cum- identification memo PN was prepared. Upon search, an attachie was recovered from the Van, containing clothes and a knife. Sketch PN/1 of the knife was prepared. Assistant Sub Inspector Surinder Pal, recorded the statement of the witnesses and the prosecutrix under Section 161 of the Code of Criminal Procedure. The prosecutrix and the accused persons were got medically examined. Assistant Sub Inspector Surinder Pal, also prepared the site plan PCC, with correct marginal notes of the place, wherefrom, the prosecutrix were recovered by the Police. Thereafter, they handed over the prosecutrix to their father Sahab Singh, vide memo PQ.
4. On 12.10.1995, statements PE and PF, respectively, of the prosecutrix were recorded under Section 164 of the Code of Criminal Procedure, by the learned Judicial Magistrate on the application PD, Criminal Appeal No. 48-SB of 1997 4 made by the Police for the purpose.
5. Before the Judicial Magistrate, P made a statement that on 18.09.1995 at about 7:30 A.M., both the sisters had left for the school on cycle. They returned at 9:30 A.M. and again went to the school at 11:30 A.M. Their cycle went out of order, on the way, and, thus, they kept the cycle at the residence of their friend. She further stated that both the accused met them in Arya Samaj street, in a white Maruti Van, which was fitted with black glasses. They offered to leave them (prosecutrix) at their residence. Upon this, both of them, boarded the Van. On the way, both the accused offered to take them for sight- seeing. On their refusal, Mohinder Singh, accused, took out a knife and threatened them not to raise a noise. They kept mum out of fear. The accused took them to Ambala, Shimla, and Kufri. She further stated that on the night of 18.09.1995, they stayed in a hotel at Shimla. They took two rooms on rent. One room was occupied by her and Mohinder Singh and another room was occupied by M and Inderjit. She further stated before the Judicial Magistrate that after sometime, Mohinder Singh came to the room, and told that he could even divorce his wife and leave his three months daughter for her. Thereafter, he threatened her and forcibly committed sexual inter-course with her. After mid-night, Mohinder Singh left the room and Inderjit came there and committed sexual inter-course with her on the point of knife. She further narrated that, on the next night, i.e. on 19.09.1995, again both the accused persons committed sexual intercourse with her turn by turn. Criminal Appeal No. 48-SB of 1997 5 On the morning of 20.09.1995, they all left for Kaithal in the same Van. When they reached near Kaithal drain at Pehowa Road, both the accused took them to an abandoned kotha (room) of nearby field. Inderjit co-accused took her younger sister M inside the room while Mohinder Singh and she kept sitting outside the room. Mohinder Singh then again committed sexual inter-course with her, outside the room. After sometime, Inderjit came out of the room and Mohinder Singh went inside the room. Inderjit also committed sexual intercourse with her. M told her that she was also subjected to sexual intercourse by both the accused, turn by turn, in the abandoned kotha (room). Then, they again started in the Van, towards Pehowa, but after covering some distance, both the accused told them that they had run out of money and thus they all started back for Kaithal. At Kaithal drain, they were apprehended by the Police party, which was accompanied by their father and one Ravinder Kumar. The Police stopped the Van, and recovered them. Then they were got medically examined. M also got recorded her statement Ex.PF, in the same manner. After the completion of investigation, the accused were challaned.
6. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Sections 366 and 376 of the Indian Penal Code, was framed against the accused, which was read over and explained to them, to which, they pleaded not guilty and Criminal Appeal No. 48-SB of 1997 6 claimed judicial trial.
7. The prosecution, in support of its case examined Sub Inspector Hukam Chand (PW1), who prepared the report, under Section 173 of the Code of Criminal Procedure, Nirmal Kumari, Principal, Government Girls Senior Secondary School, Kaithal (PW2), who stated that according to the admission record, the date of birth of M, prosecutrix, was 18.09.80. She produced PB, photocopy of the Matriculation Examination Certificate of M, showing the aforesaid date of birth, R.L. Shankla, Chief Judicial Magistrate, Kaithal (PW3), who recorded the statement of M, under Section 164 of the Code of Criminal Procedure, Dr. S.K. Jain Medical Officer (PW4), who on 21.09.95, medico-legally examined Inderjit and Mohinder Singh, accused, Lady Dr. D.G.Sood, Medical Officer (PW5), who on 21.09.95, medico-legally examined M, and P, prosecutrix, M, prosecutrix (PW6), the broad features of whose testimony already stand noticed, while narrating the facts of the case, in the above paras, P, another prosecutrix (PW7), the sister of M, the broad features of whose statement also stand noticed, while narrating the facts of the case, in the above paras, Bihari Lal Patwari (PW8), who prepared the scaled site plan PO, Sahab Singh (PW9) who lodged the report, that his daughters P, and M, had been missing since 19.09.95, and who were, ultimately, recovered on 21.09.95 from the custody of the accused, Rajbir Singh, Constable (PW10), who tendered his affidavit exhibit PY, and Surinder Pal, Assistant Sub Inspector (PW11), the Investigating Criminal Appeal No. 48-SB of 1997 7 Officer. The Public Prosecutor for the State tendered into evidence PX, the affidavit of Balwan Singh, Head Constable. He also tendered into evidence PZ report of the Forensic Science Laboratory, and, thereafter, closed the prosecution evidence.
8. The statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Inderjit, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that M, prosecutrix, was in love with him. He further stated that he did not commit any offence.
9. Mohinder Singh, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that P, prosecutrix, was in love with him. He also stated that he did not commit any offence. The accused, however, did not lead any evidence in defence.
10. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above.
11. Feeling aggrieved, the instant appeal, was filed by the appellants.
12. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
13. The Counsel for the appellants, submitted that the trial Court was right in holding that P, prosecutrix was above 16 years of Criminal Appeal No. 48-SB of 1997 8 age and a consenting party to the sexual intercourse, with the accused, and thus the accused did not commit any offence, punishable under Sections 366 and 376(2) (g) of the Indian Penal Code, in so far as she was concerned. He further submitted that the trial Court was wrong, in coming to the conclusion, that M, prosecutrix, was below 16 years of age, at the time of the alleged occurrence, though she was a consenting party to the sexual intercourse, yet her consent, she being minor, was of no consequence. He further submitted that, on the other hand, from the evidence produced by the prosecution, it was proved beyond doubt, that even M, prosecutrix, was above 16 years of age, at the time of alleged occurrence, and that she was a consenting party, as she was in love with Inderjit Singh, accused, and had also written a number of love letters to him before the alleged occurrence. He further submitted that the trial Court was, thus, wrong in recording conviction and awarding sentence to the accused, for having committed the offences, punishable under Sections 366 and 376(2) (g) of the Indian Penal Code, against M, prosecutrix. He further submitted that the judgement of conviction and the order of sentence, rendered by the trial Court, were liable to be set-aside.
14. On the other hand, the Counsel for the respondent submitted that from PB, copy of the Matriculation Examination Certificate, it was proved that the date of birth of M, prosecutrix, was 18.09.80. He further submitted that PB could be said to be an authentic document, to prove the date of birth of M, prosecutrix. He further Criminal Appeal No. 48-SB of 1997 9 submitted that the occurrence, in this case, having taken place on 19.09.95, M, prosecutrix, was 15 years of age and, as such, less than 16 years. He further submitted that she was minor, at the time of occurrence and, therefore, her consent or no consent was hardly of any consequence. He further submitted that the trial Court was, thus, right in recording conviction, and awarding sentence, to the accused, for having committed the offences, punishable under Sections 366 and 376 (2)(g) of the Indian Penal Code, against M, prosecutrix. He further submitted that the judgement of the trial Court, was liable to be upheld.
15. The main question, that falls for consideration, is, as to what was the age of M, prosecutrix, at the time of the alleged occurrence. The alleged occurrence took place on 19.09.95. No doubt, PB, photocopy of the Matriculation Examination Certificate of M, was produced by Smt. Nirmal Kumari, Principal, Govt. Girls Senior Secondary School, Kaithal, PW2. However, the original Matriculation Examination Certificate, was neither produced, at the time of the evidence of Nirmal Kumari, nor it could be said that PB, was the correct photocopy of the same. PB was, thus, not proved, in accordance with the provisions of law. So no reliance, on PB, could be placed. However, the date of birth of M, prosecutrix, recorded in PB, was falsified from the statement of Sahab Singh, PW9, her father. During the course of his cross-examination, it was stated by Sahab Singh, PW9, that P, prosecutrix, his elder daughter was born in the year 1977. It was further stated by him that M, prosecutrix, was about two and a Criminal Appeal No. 48-SB of 1997 10 half years younger to P, prosecutrix. P, the other prosecutrix and the elder sister of M, when appeared as PW7, stated that M, prosecutrix, was younger to her by two years. Exhibit PA is the copy of the Matriculation Examination Certificate of P. According to this certificate, the date of birth of P, is recorded as 16.11.75. The statement of Sahab Singh, PW9, to the effect that P, was born in the year 1977, is, thus, falsified by the copy of the Matriculation Examination Certificate exhibit PA. Since P, was born on 16.11.75 as per PA, copy of the Matriculation Examination Certificate, if according to P, M, prosecutrix, was two years younger to her, then she was born in the year 1977. If the statement of Sahab Singh, is taken to be correct, that M, was two and a half years younger to P, his elder daughter, then she could also be said to have born, in the year 1977, or in the beginning of 1978. If it is taken that M, was born in the year 1977, then on 19.09.95, she was certainly about 18 years of age. If she is taken to have born in the beginning of 1978, then on 19.09.95, the alleged date of occurrence, she could be said to be of 17 years of age. Not only this, the date of birth as 18.09.80, recorded in PB Matriculation Examination Certificate of M, prosecutrix, is further falsified from the factum that according Nirmal Kumari, PW2, both P and M, were studying in 10+1, on the date of the alleged occurrence. Even P, elder sister of M, admitted that both of them were studying in the same class i.e. 10+1. There is nothing, on the record, that M, passed two classes in a year twice and thus, both the sisters were studying in one class. There is also Criminal Appeal No. 48-SB of 1997 11 nothing, on record, that P, prosecutrix failed in the classes successively and, thus, both of them were in one class. Had M, been born in the year 1980, as depicted in PB, and had P been born in the year 1975, as depicted in PA, then by no stretch of imagination, it could be said that both the sisters could be in one class i.e. 10+1, at the relevant time, though there was difference of age, between the two of about, five years according to these documents. It is a matter of common knowledge that, at the time of getting their wards admitted, in the school, the parents give their age less, so as to ensure that, in future, they may be able to get benefit, out of the same, at the time of getting employment, in the government service. It was, thus, one of such like cases, in which, in the certificate PB, the age of M, was given less by her parents, for the aforesaid purpose. However, PB certificate, showing the date of birth of M, prosecutrix, was falsified from the aforesaid ocular and circumstantial evidence. It is settled principle of law, that if two views are possible, from the evidence, then the view, which is favourable to the accused, is required to be taken by the Court. If that principle is applied, then the view, which is favourable to the accused, as per the evidence of Sahab Singh, P prosecutrix, and the certificate PA, is required to be taken. That view is to the effect that at the time of the alleged occurrence, M, was of 17/18 years of age. The trial Court did not take into consideration, the aforesaid evidence. The trial Court placed reliance only on PB, copy of the Matriculation Examination Certificate, without bothering, as to whether, the original Criminal Appeal No. 48-SB of 1997 12 thereof, was produced, at the time of the evidence of Nirmal Kumari, PW2, and, as to whether, the same was an authentic document. The trial Court also failed to take into consideration the evidence of Sahab Singh, PW9, when he stated that M, is two and a half years younger to P, his elder daughter and when P, stated that, M, her sister is two years younger to her. The trial Court was required to give primacy to the evidence of Sahab Singh, and P, as also PA, copy of the Matriculation Certificate of P. Had the trial Court, taken into consideration the aforesaid pieces of evidence, it would not have fallen into an error, in holding that M, was less than 16 years of age, at the time of the alleged occurrence. On reappraisal and reappreciation of the evidence, this Court, comes to the conclusion, that the age of M, at the time of the alleged occurrence, was about 17/18 years. She was, thus, not minor, at that time. The finding of the trial Court, to the contrary, being not based, on the correct appreciation of evidence, and law, on the point, is set-aside.
16. Having come to the conclusion, that the age of M, at the time of the alleged occurrence was about 17/18 years, it is now to be seen, as to whether, she was a consenting party, to the act of sexual intercourse, with the accused or not. From the evidence of P, PW7, and M, PW6, it was proved that both of them boarded the maruti van on 18.09.95, in which, the accused were sitting. From there, they went to Shimla with the accused, and stayed in a hotel for two days. Not only this, one room was occupied by P and Mohinder Singh, accused, while Criminal Appeal No. 48-SB of 1997 13 the other room was occupied by M and Inderjit, accused. It was further proved from their evidence that they visited Kufri, and then returned to Kaithal. During this period, they took breakfast, lunches, dinners and also went for sight seeing. They had many occasions, to raise hue and cry, and alarm, in case, they had been forcibly brought by the accused, and they were committing sexual intercourse with them, without their consent and against their will. However, they did not do so, at any point of time. Had there been no consent, on the part of P, and M, prosecutrix, they would not have been taken to a number of places, by the accused. Had there been no consent of P, and M, they would not have stayed with Mohinder Singh, and Inderjit, accused, respectively, in two rooms separately. In those circumstances, they would not have allowed them (accused) to have sexual intercourse with them. They would have put up the stiffest resistance, at that time. However, no injury, on their person, was found at the time of medico-legal examination. Since M, and P, were consenting parties, to the act of sexual intercourse, they voluntarily stayed with the accused, in two rooms of the hotel, and enjoyed with them. They also went on sight seeing, with the accused, without any fear. Not only this, M, prosecutrix, when appeared as PW6, during the course of her statement stated that she used to write love letters to Inderjit, accused. She further stated that her sister P, also used to write love letters to Mohinder Singh, accused. Exhibit PW6/A to PW6/L, are the love letters, which were written by M, prosecutrix, to Inderjit, accused. She also stated that Criminal Appeal No. 48-SB of 1997 14 Inderjit, accused, used to write love letters to her. It means that M, was very well known to Inderjit, accused, much earlier to the date of the alleged occurrence. She wrote a number of love letters to Inderjit, accused. She was, thus, in love with Inderjit, accused. It was, on account of that reason, that she and her sister P, eloped with Inderjit, and Mohinder Singh, accused, of their own, and had sexual intercourse with them of their own accord, without any force. But when they were apprehended, by the Police, after a number of days, under the pressure of their parents, both P, and M, made statements, that they were kidnapped, at the point of knife, and sexual intercourse was committed with them, against their will, and without their consent. Sexual intercourse was committed by the accused with P and M, with their consent. Since Inderjit, and Mohinder Singh, accused, committed sexual intercourse with M, a girl aged about 17/18 years, and P, with their consent, they did not commit the offences, punishable under Sections 366 and 376(2)(g) of the Indian Penal Code. The trial Court, was, thus, wrong in recording conviction and awarding sentence to the accused, for the said offences.
17. No doubt, the trial Court, placed reliance on Section 114-A of the Indian Evidence Act, to come to the conclusion, that when a girl says that she was subjected to sexual intercourse, against her will, and without her consent, then it could be presumed that the act was committed with her without her consent. It may be stated here, that the said presumption under Section 114-A of the Indian Evidence Act, is Criminal Appeal No. 48-SB of 1997 15 rebuttable. In the instant case, the said presumption stood rebutted, from the factum, that both the prosecutrix, stayed with the accused, in the hotels and went on site seeing for a number of days, and also wrote a number of love letters, before the alleged occurrence. All these acts, therefore, clearly showed that they were consenting parties. The presumption operating under Section 114-A of the Indian Evidence Act, therefore, stood rebutted. The trial Court, did not take into consideration, this aspect of the matter, as a result whereof, it fell into a grave error, in recording conviction and awarding sentence.
18. In view of the above discussion, it is held that the judgement of conviction, and the order of sentence, rendered by the trial Court, are not based on the correct appreciation of evidence, and law, on the point. The same warrant interference, and are liable to be set-aside.
19. For the reasons recorded above, the appeal, is accepted. The judgement of conviction, and the order of sentence, rendered by the trial Court, are set-aside. The appellants, shall stand acquitted of the charge, framed against them. In case, the appellants, are on bail, they shall stand discharged of their bail bonds. If they are in custody, they shall be set at liberty, at once, if not required, in any other case. The Chief Judicial Magistrate, is directed to comply with the judgement promptly, in accordance with the provisions of law.
12.05.2009 (SHAM SUNDER) Amodh JUDGE