Punjab-Haryana High Court
Balwinder Kaur And Another vs The State Of Punjab on 5 September, 2013
Author: Anita Chaudhry
Bench: Anita Chaudhry
Criminal Appeal No.2514-SB of 2010 (O&M)
with
Criminal Appeal No.3582-SB of 2012 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.2514-SB of 2010 (O&M)
Date of Decision: September 05, 2013.
Balwinder Kaur and another
..Appellant(s)
Versus
The State of Punjab
...Respondent(s)
Crl. Appeal No.3582-SB of 2012 (O&M)
Date of Decision:September 05, 2013.
Kulwant Singh @ Kanta
...Appellant(s)
Versus
State of Punjab
...Respondent(s)
CORAM: HON'BLE MS. JUSTICE ANITA CHAUDHRY
1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No
2. To be referred to the Reporters or not? Yes/No
3. Whether the judgment should be reported in the digest? No
Present: Mr. S.P.S.Sidhu, Advocate
for the appellants in CRA No.2514-SB of 2010.
Mr. Dinesh Nagar, Advocate
for the appellant in CRA No.3582-SB of 2012.
Mr. B.S. Bhalla, Addl. Advocate General, Punjab.
*****
Sunil
2013.09.12 11:13
I attest to the accuracy and
integrity of this document
Criminal Appeal No.2514-SB of 2010 (O&M)
with
Criminal Appeal No.3582-SB of 2012 (O&M) -2-
ANITA CHAUDHRY, J.
1. These are two appeals, one preferred by Balwinder Kaur and Harpreet @ Kalu assailing the judgment passed by the Addl. Sessions Judge, Shaheed Bhagat Singh Nagar dated 17.09.2010 and another appeal preferred by Kulwant Singh @ Kanta against the judgment dated 26.10.2012 which was also passed by Addl Sessions Judge, Shaheed Bhagat Singh Nagar both in FIR No.5 dated 07.01.2008 registered at Police Station Nawanshahr under Section 363, 366, 376/120-B IPC. The appellants were convicted and awarded the following punishment:-
Accused Name Offence u/S R.I. Fine In default of payment of fine Balwinder Kaur 363 IPC 03 years Rs.500/- 03 months " 366 IPC 03 years Rs.500/- 03 months Kulwant Singh 363 IPC 03 years Rs.500/- 03 months " 366 IPC 03 years Rs.500/- 03 months Harpreet Singh 363 IPC 03 years Rs.500/- 03 months " 366 IPC 03 years Rs.500/- 03 months " 376 IPC 07 years Rs.1000/- 06 months
2. All the above substantive sentences were ordered to run concurrently. Initially, Kulwant Singh @ Kanta could not be arrested and he was declared proclaimed offender.
Subsequently, he was arrested and thus his case was tried separately. The trial against Balwinder Kaur and Harpreet Singh had concluded prior in point of time. Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -3-
3. The occurrence which gave rise to the FIR is said to have occurred on 06.01.2008 at 2:00 P.M. when the prosecutrix aged about 13 years left the house to wash clothes at a nearby tubewell. Her father Mehar Baksh was working as a labourer with a contractor Karnail Singh in a house. The prosecutrix left the house and went to the fields from where Harpreet (Kalu) kidnapped the victim in a Tata Sumo vehicle. Mehar Baksh lodged a report alleging that Balwinder Kaur, mother of accused Harpreet @ Kalu and Charan Dass, grand father of Kalu knew where the girl had been taken. A formal FIR Ex.PB came into existence. Balwinder Kaur was arrested. She suffered a disclosure statement Ex.PT and pointed out the place of occurrence. On the same day, Mehar Baksh himself produced his daughter before the police, the statement of the prosecutrix was taken down and she levelled allegations of rape. Disclosing the incident, she had stated that Harpreet Singh came on a motorcycle. His mother Balwinder Kaur and Kulwant Singh were on a scooter and Harpreet enticed her and took her to his house at village Bhag on his motorcycle and Kulwant Singh came on a scooter and she was kept in a room and Harpreet @ Kalu committed rape upon her. Later Harpreet took her to Peer Nigaha where she was kept for a night and raped by Harpreet. On the next day, Harpreet took her to Kulwant's house where they stayed for a day. The girl was taken to Jalandhar next day where Kulwant had arranged a room and Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -4- both of them stayed for about one and a half month. Harpreet also took the girl to the house of his relatives where they stayed for short periods. Harpreet Singh then took her to Batala to the house of his relatives and her father met her at Batala and she was brought back. She had deposed that Harpreet used to threaten her. After her recovery, the prosecutrix was produced before the Illaqa Magistrate for recording her statement under Section 164 Cr.P.C. The girl did not want to accompany her parents and she was sent to the Nari Niketan. Later on she was ready to accompany her parents. Subsequently, challan against Harpreet Singh and his mother was filed. Supplementary challan against accused Kulwant was separately filed.
4. Charge under Sections 363 and 366 IPC was framed against Balwinder Kaur, Kulwant Singh and Harpreet Singh @ Kalu. Charge under Section 376 IPC was also framed against Harpreet Singh @ Kalu. All of them did not plead guilty and claimed trial.
5. At the trial, the prosecution examined PW9 Dr.Anuradha (marked as PW1 in Crl. Appeal No.3582-SB of 2012), who had medico legally examined prosecutrix Meena @ Bibi and she had noted the following:-
"On general examination she was well built, well nourished, auxiliary hair and pubic hair were present. Breasts was fully developed. Her age of menarche was 2 to 3 years back. About LMP she was not sure and it was Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -5- approximately 1½ months back. There were scratch marks over her right forearm. No other marks of any fresh injury over her body was present.
On local examination no signs of injury were seen. Per speculum examination hymen absent per vagina examination. Vagina admitted two finger easily, uterus retroverted slightly bulky, fornix clear non tender. Three specimens were taken, specimen taken from posterior fornix, specimen cervix and pubic hair. Advised urine pregnancy test and radiologist opinion For age confirmation material sent to chemical examiner Kharar."
6. Mohammad Shafi also examined as PW1 (PW7 in Crl. Appeal No.2514-SB of 2010) deposed that he was going to his maternal uncle's house on a motorcycle at 02:00 P.M. on 06.01.2008 and when he was near the tubewell, he saw a white Tata Sumo parked in which Balwinder Kaur and Kulwant Singh, son-in-law of Balwinder Kaur were sitting in the vehicle along with the prosecutrix and she appeared to be terrified and before his eyes he saw the driver speeding up the vehicle. He stated that he went to Mehar Baksh's house and apprised him of the incident and they all came back to the tubewell and saw that the clothes which the victim had brought for washing and her chappals (slipper) were lying there. The witness stated that he did not know the accused either by name or by face prior to the occurrence. He further stated that he was not called by the police to identify the accused nor he had seen the house of the accused prior to the occurrence and he had Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -6- identified them for the first time in the Court and his statement was recorded by the police 5 - 7 days after registration of the case. He disclosed that he came to know the name of the accused from the contractor who was working near the place of occurrence. However, he could not reveal the name of the contractor. He admitted that the prosecutrix was the daughter of his maternal uncle and four sisters were elder to the prosecutrix. The witness corrected himself and stated that one son was also elder to the victim. He could not give the name of the children who were elder to the prosecutrix. He stated that he was illiterate. He could not say whether the prosecutrix had filed the complaint in the Batala Court against her father.
7. Mehar Baksh PW2 deposed that he had three daughters and four sons and the prosecutrix was 13 years old at the time of the occurrence. He stated that her daughter had gone to wash clothes at the tubewell which is at distance of 5 - 6 fields from his house. He stated that he was not present in the house at that time and when he had returned home in the evening, he found that his daughter Meena @ Bibi was missing and he and his sons went to the tubewell but she was not there and the clothes and soap were lying at the tubewell and he gave application Ex.PA to the police and suspected Kulwant Kaur of having abducted his daughter. He further stated that he and his son had gone Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -7- to Batala and spotted his daughter at the bus stand and she was crying and they brought her back. He stated that the accused were arrested either on 06.01.2008 or 07.01.2008 but he was not called to the police station for identification. He stated that he had never met Kulwant Singh prior to the occurrence. He stated that the accused was identified by his daughter also for the first time in the Court. He further stated that he had never seen Harpreet Singh also prior to the occurrence.
8. The prosecutrix was examined as PW3. She stated that they were four brothers and seven sisters and on 06.01.2008, she had gone to the tubewell to wash clothes and at about 2:00 - 3:00 P.M. Harpreet @ Kala came with his mother Balwinder Kaur and Kulwant Singh who was Kala's sister's husband were in a vehicle and Balwinder Kaur sat by her side and caught hold of her and she was taken to Peer Nigaha and kept in a room by Harpreet Singh who committed sexual intercourse with her without her wishes. She stated that the accused had served tea and after consuming the same she became unconscious and regained consciousness on the next day. She stated that she was taken to village Shekupur Bhag and then to Phagwara and Jalandhar and she was repeatedly raped and kept in a room for one and a half month and accused used to stay with her. She stated that she was taken to Batala and kept in the Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -8- house of sister of Balwinder Kaur. She stated that there were 4 - 5 rooms and she was subjected to rape by Harpreet Singh. She stated that she had narrated the occurrence to Harpreet's aunt but she did not help her. She could not give her date of birth. She stated that she had made a statement before the police but that statement was made under pressure and the Magistrate was not present at that time. She stated that she has not made any complaint regarding this. She could not give registration number of the vehicle in which she was taken. She could not give the age of her elder brothers and sisters. She stated that she had not made a statement to the police that they were four brothers and five sisters. She stated that in her statement given to the police she had stated that they had seven sisters and four brothers. She stated that she had told the police that Harpreet Singh and one other boy Kaila had committed rape upon her. The attention of the witness was drawn to the Ex.PE where it was not mentioned. She stated that she had also disclosed in her statement that she was raped continuously for three days. The witness was confronted with her earlier statement where it was not so recorded. She vehemently stated that she did not appear before the Court of SDJM, Batala nor had filed any complaint against her father in any Court. She denied that she had filed any complaint against her father and had appeared in the Court on 10.01.2008 in connection with that Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -9- complaint where her statement was recorded by the SDJM, Batala and she had got recorded her age as 20 years. She admitted that the accused Harpreet had taken her to the Court and that she had made a statement in the Court. She further stated that she had given her age as 20 years at the instance of accused Harpreet. She admitted that Ex.DB and Ex.DC were her photographs along with Harpreet Singh. She stated that she was forcibly taken away in Sumo vehicle. She also stated that she had seen many people on the road. She further admitted that she was taken to Jalandhar on a motorcycle.
9. Dr. Ashok Bhagat PW12 had conducted the ossification test to find out the age of the victim. He proved his report Ex.PW9/A. According to him, the bone age of the girl was between 15 to 16 years. He admitted that for determination of age, ossification test was not the surest test and there can be variation of one to two years on either side.
10. Besides this, the report of the Chemical Examiner Ex.PW9/B was tendered and the Investigating Officers were also examined.
11. In the statement recorded under Section 313 Cr.P.C., the accused pleaded false implication. It was also stated that the prosecution was over 18 years of age.
12. In defence, the accused had examined Jaswinder Singh, Record Keeper who brought the original file of the Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -10- complaint case under Section 323/506 IPC filed by the prosecutrix against her father before SDJM, Batala and proved copy of the order Ex.DA and the statement of the prosecutrix Ex.DB.
13. I have heard the submissions made on behalf of both the sides and have gone through the record with the assistance of the respective counsels.
14 It was submitted on behalf of the appellant that the case was false and the mother with her son-in-law would not connive with her son Harpreet Singh in kidnapping a girl so that the son could rape her. It was urged that it was a case of consent and the girl was major and she had travelled to different places and she had made a false statement in the Court. It was urged that in the statement given to the Magistrate, she had gone with Harpreet on a motorcycle whereas the co-accused accompanied them on a scooter but the complainant had spoken about a Tata Sumo which was used to abduct the girl. It was urged that Mohammad Shafi did not know any of the accused nor had seen them earlier, therefore, for him to disclose about the incident, appears totally doubtful on the face of it. It was also urged that the prosecutrix had filed a complaint against her father where she had disclosed that she was being pressurized to marry an elder man and she had married Harpreet and she was living with him as his wife and was happy with him. It was Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -11- urged that the girl had remained with Harpreet for one and a half month. It was urged that if the prosecutrix did not know Harpreet, there was no reason for her to accompany him even to purchase some articles and that also shows the falsity of the charges and there are material contradictions in the statement made by the prosecutrix and her father. It was contended that there is a discrepancy in the statement of the prosecutrix and her family even with respect to the family members of the complainant and all of them have tried to hide the number of children born as it would have proved that the prosecutrix was major. It was also urged that the complainant had 11 children and the prosecution has held back their ages and it was for the prosecution to prove that the victim was a minor and the oral statement could not be accepted. Even no date, month or year of birth was stated by any of the witness. It was further urged that the ossification test was recommended by the doctors because they were not convinced about the age that was given and according to the ossification report the age is 15 - 16 years and the bone age test is not a conclusive test and it is settled that in a criminal trial if there are two opinions possible, the opinion favorable to the accused is given precedence and if two years are added then the age would be either 17 or 18 years. It was contended that the girl had left her home of her own. It was further contended that the Investigating Officer did not try to Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -12- obtain the birth certificates and there was no injury on her body and mere presence of spermatozoa by itself is not sufficient since it was a case of consent.
Per contra, the submission on behalf of the counsel representing the State was that when the victim was taken away. It was Mohammad Shafi who had seen the accused taking her in the Tata Sumo and the statement of the victim should be accepted and the Court should not seek any corroboration. It was urged that the girl was a minor and the question of consent would not arise and there is no evidence that accused Harpreet had performed marriage with the prosecutrix. It is settled that in a case where the prosecutrix alleges rape, her statement has to be accepted without looking for corroboration. Ordinarily no corroboration is required in rape cases except in case of high improbability of the prosecution case.
15. The question that has to be determined first is whether the prosecutrix is a minor and if it is found that she was under 16 years of age then it is settled that even if there is absence of injuries on the private parts of the victim that will not falsify the case of rape nor would be construed as evidence of consent.
16. In the offence of rape, the sexual intercourse should be against the will of the woman or without her consent. When the victim of rape states on oath that she Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -13- was forcibly subjected to sexual intercourse or the act was done without her consent, it has to be believed and accepted like any other testimony unless there is material available to draw any inference as to her consent or else the testimony of the prosecutrix is such as would be inherently improbable.
17. In the Indian context, a woman who is a victim of sexual aggression, would not make false allegations nor falsely implicate somebody but where there is material which creates doubt then the matter has to be examined with caution.
18. The prosecutrix as well as her father had stated that the victim was of 14 - 15 years of age. When the victim appeared in the witness box in 2009, she gave her age as 14 years. The Medical Officer while examining her had suggested a ossification test to find out her age. Dr. Ashok Bhagat had carried out the ossification test and had given the bone age between 15 to 16 years. The incident is of January, 2008 and the ossification test was carried out in February, 2008.
19. The police failed to collect any definite proof of age of the prosecutrix. The complainant and the uncle of the prosecutrix were unable to give the names of the children and their ages. Two of the daughters born to Bano wife of Mehar Baksh were from the first marriage and five daughters had been born to Mehar Baksh from second marriage. Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -14- According to Mehar Baksh, the prosecutrix was his 7th child. He had given his age as 56 years. According to him, his children were born after a gap of one or two years and he and his present wife were married for alst 35 years. It has come in evidence that 4 - 5 children of the complainant had been going to school. He had stated that he had given their age in the school by approximation but neither the police collected that material nor the complainant could produce or give the date of birth of his children. Even the ration card of complainant was not produced by the prosecution shows that the prosecution.
20. The medical officer on the basis of the examination of the x-ray gave his opinion regarding the bone age of the prosecutrix between 15 - 16 years. There can be variance of two years on either side. It is settled that in a criminal trial if there are two opinions possible, the opinion favorable to the accused is to be given precedence. It can definitely be held that the age of the prosecutrix was above 16 years at the relevant time.
21. Now, coming to the testimony of the witnesses, the statement given by Mohammad Shafi - PW7 cannot be given credence as he did not know any of the accused earlier. He did not even know their names if he had seen that the prosecutrix appeared to be terrified while sitting in the vehicle he would not have come home and would have made an attempt to speak to her. He had stated that the girl had been Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -15- taken in any Tata Sumo. The police had carried out the investigation. They could not recover any Tata Sumo. The registration number of the vehicle was not noted by any person. Even the name of the owner of the vehicle did not appear in the investigation. It appears that the girl was not taken in a Tata Sumo and the witnesses have intentionally introduced the story of a Tata Sumo as it would be difficult for anyone to accept that the girl had been abducted on a motorcycle. When the prosecutrix was produced before the Magistrate, she had disclosed that she was taken on a motorcycle and Harpreet's mother Balwinder Kaur and her son-in-law were on a separate scooter. The story appears to be improbable. No mother would support her son in such kind of incident. The prosecutrix had deposed that she did not know any of the accused. In that case, she would not have accompanied unknown persons on a motorcycle. It appears that she was under pressure from her family, therefore, the whole story was changed and the story of a Tata Sumo was introduced. No young girl who has attained her puberty would accompany a unknown boy to make purchase.
22. Not only this, a complaint under Section 323/506 IPC was filed by the prosecutrix in the District Courts at Batala arraying her father as an accused. The prosecutrix had made a statement before the Magistrate that her father was trying to marry her off to a old drunkard and wanted to sell her and she had married Harpreet and was living with him and was Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -16- happy. She had also stated that her father had caught her at bus stand Batala last week and beaten up. When the prosecutrix was confronted with her statement, she stated that the statement was made under threat and the Magistrate was not present in the Court. No complaint was given by the prosecutrix to the senior officers and it is an after thought. The prosecutrix wanted to wriggle out of her statement probably at the behest of her parents as it was a inter-religion marriage.
23. The prosecutrix had lived with Harpreet for one and a half month. She had visited his family and had stayed at different places. She had also used public transport. She had being going on the motorcycle. All this goes to show that the accusations are false and the prosecution had been moving freely and it was a case of consent. It seems that the prosecution concocted the story to buy peace due to inter- religion marriage.
24. From the above discussion, it is found that the judgment of the trial Court suffers from legal flaws and has to be set aside. Both the appeals are accepted and judgments of conviction and sentence are set aside. The accused if in custody be released forthwith. Lower Court records be sent back.
(ANITA CHAUDHRY) JUDGE September 05, 2013 sunil Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.2514-SB of 2010 (O&M) Date of Decision: September 05, 2013.
Balwinder Kaur and another ..Appellant(s) Versus The State of Punjab ...Respondent(s) Crl. Appeal No.3582-SB of 2012 (O&M) Date of Decision:September 05, 2013.
Kulwant Singh @ Kanta ...Appellant(s) Versus State of Punjab ...Respondent(s) CORAM: HON'BLE MS. JUSTICE ANITA CHAUDHRY
1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No
2. To be referred to the Reporters or not? Yes/No
3. Whether the judgment should be reported in the digest? No Present: Mr. S.P.S.Sidhu, Advocate for the appellants in CRA No.2514-SB of 2010. Mr. Dinesh Nagar, Advocate for the appellant in CRA No.3582-SB of 2012. Mr. B.S. Bhalla, Addl. Advocate General, Punjab.
***** Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -2- ANITA CHAUDHRY, J.
1. These are two appeals, one preferred by Balwinder Kaur and Harpreet @ Kalu assailing the judgment passed by the Addl. Sessions Judge, Shaheed Bhagat Singh Nagar dated 17.09.2010 and another appeal preferred by Kulwant Singh @ Kanta against the judgment dated 26.10.2012 which was also passed by Addl Sessions Judge, Shaheed Bhagat Singh Nagar both in FIR No.5 dated 07.01.2008 registered at Police Station Nawanshahr under Section 363, 366, 376/120-B IPC. The appellants were convicted and awarded the following punishment:-
Accused Name Offence u/S R.I. Fine In default of payment of fine Balwinder Kaur 363 IPC 03 years Rs.500/- 03 months " 366 IPC 03 years Rs.500/- 03 months Kulwant Singh 363 IPC 03 years Rs.500/- 03 months " 366 IPC 03 years Rs.500/- 03 months Harpreet Singh 363 IPC 03 years Rs.500/- 03 months " 366 IPC 03 years Rs.500/- 03 months " 376 IPC 07 years Rs.1000/- 06 months
2. All the above substantive sentences were ordered to run concurrently. Initially, Kulwant Singh @ Kanta could not be arrested and he was declared proclaimed offender.
Subsequently, he was arrested and thus his case was tried separately. The trial against Balwinder Kaur and Harpreet Singh had concluded prior in point of time. Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -3-
3. The occurrence which gave rise to the FIR is said to have occurred on 06.01.2008 at 2:00 P.M. when the prosecutrix aged about 13 years left the house to wash clothes at a nearby tubewell. Her father Mehar Baksh was working as a labourer with a contractor Karnail Singh in a house. The prosecutrix left the house and went to the fields from where Harpreet (Kalu) kidnapped the victim in a Tata Sumo vehicle. Mehar Baksh lodged a report alleging that Balwinder Kaur, mother of accused Harpreet @ Kalu and Charan Dass, grand father of Kalu knew where the girl had been taken. A formal FIR Ex.PB came into existence. Balwinder Kaur was arrested. She suffered a disclosure statement Ex.PT and pointed out the place of occurrence. On the same day, Mehar Baksh himself produced his daughter before the police, the statement of the prosecutrix was taken down and she levelled allegations of rape. Disclosing the incident, she had stated that Harpreet Singh came on a motorcycle. His mother Balwinder Kaur and Kulwant Singh were on a scooter and Harpreet enticed her and took her to his house at village Bhag on his motorcycle and Kulwant Singh came on a scooter and she was kept in a room and Harpreet @ Kalu committed rape upon her. Later Harpreet took her to Peer Nigaha where she was kept for a night and raped by Harpreet. On the next day, Harpreet took her to Kulwant's house where they stayed for a day. The girl was taken to Jalandhar next day where Kulwant had arranged a room and Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -4- both of them stayed for about one and a half month. Harpreet also took the girl to the house of his relatives where they stayed for short periods. Harpreet Singh then took her to Batala to the house of his relatives and her father met her at Batala and she was brought back. She had deposed that Harpreet used to threaten her. After her recovery, the prosecutrix was produced before the Illaqa Magistrate for recording her statement under Section 164 Cr.P.C. The girl did not want to accompany her parents and she was sent to the Nari Niketan. Later on she was ready to accompany her parents. Subsequently, challan against Harpreet Singh and his mother was filed. Supplementary challan against accused Kulwant was separately filed.
4. Charge under Sections 363 and 366 IPC was framed against Balwinder Kaur, Kulwant Singh and Harpreet Singh @ Kalu. Charge under Section 376 IPC was also framed against Harpreet Singh @ Kalu. All of them did not plead guilty and claimed trial.
5. At the trial, the prosecution examined PW9 Dr.Anuradha (marked as PW1 in Crl. Appeal No.3582-SB of 2012), who had medico legally examined prosecutrix Meena @ Bibi and she had noted the following:-
"On general examination she was well built, well nourished, auxiliary hair and pubic hair were present. Breasts was fully developed. Her age of menarche was 2 to 3 years back. About LMP she was not sure and it was Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -5- approximately 1½ months back. There were scratch marks over her right forearm. No other marks of any fresh injury over her body was present.
On local examination no signs of injury were seen. Per speculum examination hymen absent per vagina examination. Vagina admitted two finger easily, uterus retroverted slightly bulky, fornix clear non tender. Three specimens were taken, specimen taken from posterior fornix, specimen cervix and pubic hair. Advised urine pregnancy test and radiologist opinion For age confirmation material sent to chemical examiner Kharar."
6. Mohammad Shafi also examined as PW1 (PW7 in Crl. Appeal No.2514-SB of 2010) deposed that he was going to his maternal uncle's house on a motorcycle at 02:00 P.M. on 06.01.2008 and when he was near the tubewell, he saw a white Tata Sumo parked in which Balwinder Kaur and Kulwant Singh, son-in-law of Balwinder Kaur were sitting in the vehicle along with the prosecutrix and she appeared to be terrified and before his eyes he saw the driver speeding up the vehicle. He stated that he went to Mehar Baksh's house and apprised him of the incident and they all came back to the tubewell and saw that the clothes which the victim had brought for washing and her chappals (slipper) were lying there. The witness stated that he did not know the accused either by name or by face prior to the occurrence. He further stated that he was not called by the police to identify the accused nor he had seen the house of the accused prior to the occurrence and he had Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -6- identified them for the first time in the Court and his statement was recorded by the police 5 - 7 days after registration of the case. He disclosed that he came to know the name of the accused from the contractor who was working near the place of occurrence. However, he could not reveal the name of the contractor. He admitted that the prosecutrix was the daughter of his maternal uncle and four sisters were elder to the prosecutrix. The witness corrected himself and stated that one son was also elder to the victim. He could not give the name of the children who were elder to the prosecutrix. He stated that he was illiterate. He could not say whether the prosecutrix had filed the complaint in the Batala Court against her father.
7. Mehar Baksh PW2 deposed that he had three daughters and four sons and the prosecutrix was 13 years old at the time of the occurrence. He stated that her daughter had gone to wash clothes at the tubewell which is at distance of 5 - 6 fields from his house. He stated that he was not present in the house at that time and when he had returned home in the evening, he found that his daughter Meena @ Bibi was missing and he and his sons went to the tubewell but she was not there and the clothes and soap were lying at the tubewell and he gave application Ex.PA to the police and suspected Kulwant Kaur of having abducted his daughter. He further stated that he and his son had gone Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -7- to Batala and spotted his daughter at the bus stand and she was crying and they brought her back. He stated that the accused were arrested either on 06.01.2008 or 07.01.2008 but he was not called to the police station for identification. He stated that he had never met Kulwant Singh prior to the occurrence. He stated that the accused was identified by his daughter also for the first time in the Court. He further stated that he had never seen Harpreet Singh also prior to the occurrence.
8. The prosecutrix was examined as PW3. She stated that they were four brothers and seven sisters and on 06.01.2008, she had gone to the tubewell to wash clothes and at about 2:00 - 3:00 P.M. Harpreet @ Kala came with his mother Balwinder Kaur and Kulwant Singh who was Kala's sister's husband were in a vehicle and Balwinder Kaur sat by her side and caught hold of her and she was taken to Peer Nigaha and kept in a room by Harpreet Singh who committed sexual intercourse with her without her wishes. She stated that the accused had served tea and after consuming the same she became unconscious and regained consciousness on the next day. She stated that she was taken to village Shekupur Bhag and then to Phagwara and Jalandhar and she was repeatedly raped and kept in a room for one and a half month and accused used to stay with her. She stated that she was taken to Batala and kept in the Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -8- house of sister of Balwinder Kaur. She stated that there were 4 - 5 rooms and she was subjected to rape by Harpreet Singh. She stated that she had narrated the occurrence to Harpreet's aunt but she did not help her. She could not give her date of birth. She stated that she had made a statement before the police but that statement was made under pressure and the Magistrate was not present at that time. She stated that she has not made any complaint regarding this. She could not give registration number of the vehicle in which she was taken. She could not give the age of her elder brothers and sisters. She stated that she had not made a statement to the police that they were four brothers and five sisters. She stated that in her statement given to the police she had stated that they had seven sisters and four brothers. She stated that she had told the police that Harpreet Singh and one other boy Kaila had committed rape upon her. The attention of the witness was drawn to the Ex.PE where it was not mentioned. She stated that she had also disclosed in her statement that she was raped continuously for three days. The witness was confronted with her earlier statement where it was not so recorded. She vehemently stated that she did not appear before the Court of SDJM, Batala nor had filed any complaint against her father in any Court. She denied that she had filed any complaint against her father and had appeared in the Court on 10.01.2008 in connection with that Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -9- complaint where her statement was recorded by the SDJM, Batala and she had got recorded her age as 20 years. She admitted that the accused Harpreet had taken her to the Court and that she had made a statement in the Court. She further stated that she had given her age as 20 years at the instance of accused Harpreet. She admitted that Ex.DB and Ex.DC were her photographs along with Harpreet Singh. She stated that she was forcibly taken away in Sumo vehicle. She also stated that she had seen many people on the road. She further admitted that she was taken to Jalandhar on a motorcycle.
9. Dr. Ashok Bhagat PW12 had conducted the ossification test to find out the age of the victim. He proved his report Ex.PW9/A. According to him, the bone age of the girl was between 15 to 16 years. He admitted that for determination of age, ossification test was not the surest test and there can be variation of one to two years on either side.
10. Besides this, the report of the Chemical Examiner Ex.PW9/B was tendered and the Investigating Officers were also examined.
11. In the statement recorded under Section 313 Cr.P.C., the accused pleaded false implication. It was also stated that the prosecution was over 18 years of age.
12. In defence, the accused had examined Jaswinder Singh, Record Keeper who brought the original file of the Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -10- complaint case under Section 323/506 IPC filed by the prosecutrix against her father before SDJM, Batala and proved copy of the order Ex.DA and the statement of the prosecutrix Ex.DB.
13. I have heard the submissions made on behalf of both the sides and have gone through the record with the assistance of the respective counsels.
14 It was submitted on behalf of the appellant that the case was false and the mother with her son-in-law would not connive with her son Harpreet Singh in kidnapping a girl so that the son could rape her. It was urged that it was a case of consent and the girl was major and she had travelled to different places and she had made a false statement in the Court. It was urged that in the statement given to the Magistrate, she had gone with Harpreet on a motorcycle whereas the co-accused accompanied them on a scooter but the complainant had spoken about a Tata Sumo which was used to abduct the girl. It was urged that Mohammad Shafi did not know any of the accused nor had seen them earlier, therefore, for him to disclose about the incident, appears totally doubtful on the face of it. It was also urged that the prosecutrix had filed a complaint against her father where she had disclosed that she was being pressurized to marry an elder man and she had married Harpreet and she was living with him as his wife and was happy with him. It was Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -11- urged that the girl had remained with Harpreet for one and a half month. It was urged that if the prosecutrix did not know Harpreet, there was no reason for her to accompany him even to purchase some articles and that also shows the falsity of the charges and there are material contradictions in the statement made by the prosecutrix and her father. It was contended that there is a discrepancy in the statement of the prosecutrix and her family even with respect to the family members of the complainant and all of them have tried to hide the number of children born as it would have proved that the prosecutrix was major. It was also urged that the complainant had 11 children and the prosecution has held back their ages and it was for the prosecution to prove that the victim was a minor and the oral statement could not be accepted. Even no date, month or year of birth was stated by any of the witness. It was further urged that the ossification test was recommended by the doctors because they were not convinced about the age that was given and according to the ossification report the age is 15 - 16 years and the bone age test is not a conclusive test and it is settled that in a criminal trial if there are two opinions possible, the opinion favorable to the accused is given precedence and if two years are added then the age would be either 17 or 18 years. It was contended that the girl had left her home of her own. It was further contended that the Investigating Officer did not try to Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -12- obtain the birth certificates and there was no injury on her body and mere presence of spermatozoa by itself is not sufficient since it was a case of consent.
Per contra, the submission on behalf of the counsel representing the State was that when the victim was taken away. It was Mohammad Shafi who had seen the accused taking her in the Tata Sumo and the statement of the victim should be accepted and the Court should not seek any corroboration. It was urged that the girl was a minor and the question of consent would not arise and there is no evidence that accused Harpreet had performed marriage with the prosecutrix. It is settled that in a case where the prosecutrix alleges rape, her statement has to be accepted without looking for corroboration. Ordinarily no corroboration is required in rape cases except in case of high improbability of the prosecution case.
15. The question that has to be determined first is whether the prosecutrix is a minor and if it is found that she was under 16 years of age then it is settled that even if there is absence of injuries on the private parts of the victim that will not falsify the case of rape nor would be construed as evidence of consent.
16. In the offence of rape, the sexual intercourse should be against the will of the woman or without her consent. When the victim of rape states on oath that she Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -13- was forcibly subjected to sexual intercourse or the act was done without her consent, it has to be believed and accepted like any other testimony unless there is material available to draw any inference as to her consent or else the testimony of the prosecutrix is such as would be inherently improbable.
17. In the Indian context, a woman who is a victim of sexual aggression, would not make false allegations nor falsely implicate somebody but where there is material which creates doubt then the matter has to be examined with caution.
18. The prosecutrix as well as her father had stated that the victim was of 14 - 15 years of age. When the victim appeared in the witness box in 2009, she gave her age as 14 years. The Medical Officer while examining her had suggested a ossification test to find out her age. Dr. Ashok Bhagat had carried out the ossification test and had given the bone age between 15 to 16 years. The incident is of January, 2008 and the ossification test was carried out in February, 2008.
19. The police failed to collect any definite proof of age of the prosecutrix. The complainant and the uncle of the prosecutrix were unable to give the names of the children and their ages. Two of the daughters born to Bano wife of Mehar Baksh were from the first marriage and five daughters had been born to Mehar Baksh from second marriage. Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -14- According to Mehar Baksh, the prosecutrix was his 7th child. He had given his age as 56 years. According to him, his children were born after a gap of one or two years and he and his present wife were married for alst 35 years. It has come in evidence that 4 - 5 children of the complainant had been going to school. He had stated that he had given their age in the school by approximation but neither the police collected that material nor the complainant could produce or give the date of birth of his children. Even the ration card of complainant was not produced by the prosecution shows that the prosecution.
20. The medical officer on the basis of the examination of the x-ray gave his opinion regarding the bone age of the prosecutrix between 15 - 16 years. There can be variance of two years on either side. It is settled that in a criminal trial if there are two opinions possible, the opinion favorable to the accused is to be given precedence. It can definitely be held that the age of the prosecutrix was above 16 years at the relevant time.
21. Now, coming to the testimony of the witnesses, the statement given by Mohammad Shafi - PW7 cannot be given credence as he did not know any of the accused earlier. He did not even know their names if he had seen that the prosecutrix appeared to be terrified while sitting in the vehicle he would not have come home and would have made an attempt to speak to her. He had stated that the girl had been Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -15- taken in Tata Sumo. The police had carried out the investigation. They could not recover any Tata Sumo. The registration number of the vehicle was not noted by any person. Even the name of the owner of the vehicle did not appear in the investigation. It appears that the girl was not taken in a Tata Sumo and the witnesses have intentionally introduced the story of a Tata Sumo as it would be difficult for anyone to accept that the girl had been abducted on a motorcycle. When the prosecutrix was produced before the Magistrate, she had disclosed that she was taken on a motorcycle and Harpreet's mother Balwinder Kaur and her son-in-law were on a separate scooter. The story appears to be improbable. No mother would support her son in such kind of incident. The prosecutrix had deposed that she did not know any of the accused. In that case, she would not have accompanied unknown persons on a motorcycle. It appears that she was under pressure from her family, therefore, the whole story was changed and the story of a Tata Sumo was introduced. No young girl who has attained her puberty would accompany a unknown boy to make purchases.
22. Not only this, a complaint under Section 323/506 IPC was filed by the prosecutrix in the District Courts at Batala arraying her father as an accused. The prosecutrix had made a statement before the Magistrate that her father was trying to marry her off to a old drunkard and wanted to sell her and she had married Harpreet and was living with him and was Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document Criminal Appeal No.2514-SB of 2010 (O&M) with Criminal Appeal No.3582-SB of 2012 (O&M) -16- happy. She had also stated that her father had caught her at bus stand Batala last week and she was beaten up. When the prosecutrix was confronted with her statement, she stated that the statement was made under threat and the Magistrate was not present in the Court. No complaint was given by the prosecutrix to the senior officers and it is an after thought. The prosecutrix wanted to wriggle out of her statement probably at the behest of her parents as it was a inter-religion marriage.
23. The prosecutrix had lived with Harpreet for one and a half month. She had visited his family and had stayed at different places. She had also used public transport. She had being going on the motorcycle. All this goes to show that the accusations are false and the prosecution had been moving freely and it was a case of consent. It seems that the prosecution concocted the story to buy peace due to inter- religion marriage.
24. From the above discussion, it is found that the judgment of the trial Court suffers from legal flaws and has to be set aside. Both the appeals are accepted and judgments of conviction and sentence are set aside. The accused if in custody be released forthwith. Lower Court records be sent back.
(ANITA CHAUDHRY) JUDGE September 05, 2013 sunil Sunil 2013.09.12 11:13 I attest to the accuracy and integrity of this document