Punjab-Haryana High Court
Sanjiv Kumar And Another vs State Of Punjab on 19 August, 2013
Author: K. C. Puri
Bench: K. C. Puri
CRA NO. S-1413-SB OF 2001 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA NO. S-1413-SB OF 2001 (O&M)
DECIDED ON : 19.08.2013
Sanjiv Kumar and another
...Appellants
versus
State of Punjab
...Respondent
CORAM : HON'BLE MR. JUSTICE K. C. PURI
Present : Mr. Gaurav Chopra, Advocate and
Mr. Anurag Chopra, Advocate,
for the appellants.
Mr. S. S. Chandumajra, Senior DAG, Punjab.
K. C. PURI, J. (ORAL)
This is an appeal directed by accused/appellants Sanjiv Kumar and Subhash Chander against the judgment dated 26.11.2001 passed by Shri M.M.Singh Bedi, Sessions Judge, Ferozepur, vide which both the appellants have been convicted under Sections 363/366/366-A/120-B of the Indian Penal Code (in short "the IPC") and sentenced them to undergo rigorous imprisonment as under :-
Name of accused Offence sentence
Sanjiv Kumar and 366 IPC RI for four years each fine
Subhash Chander of `200/- each. In
default one month each.
Bhatia Shalini
2013.09.10 17:13
I attest to the accuracy and
integrity of this document
High Court Chandigarh
CRA NO. S-1413-SB OF 2001 (O&M) -2-
Sanjiv Kumar and 363 IPC RI for one year each fine
Subhash Chander of `200/- each. In
default RI for one month
each.
Sanjiv Kumar 366-A IPC RI for four years. Fine of
`200/-. In default one
month.
Subhash Chander 366-A read RI for four years fine of
with Section `200/-. In default one
120-B IPC. Month.
However, all the sentences were ordered to run concurrently.
Briefly stated, the case of prosecution is that on 03.07.1998, Joginder Singh @ Jagtar Singh (complainant) made statement to police on 03.07.1998 to the effect that he was a truck driver by profession and was employed with Kewal Chhabra. The house of Uma Shanker Shah was situated in his neighbourhood and they had good relations as neighbourer. The daughter of the complainant i.e prosecutrix (name not disclosed on account of judgment of Hon'ble Apex Court), also used to visit the house of Uma Shanker Shah. Subhash Chander son of Ram Sarup (present appellant) also used to visit the house of Uma Shanker Shah frequently. On 20.06.1998, Boota Singh son of Jarnail Singh, his maternal uncle's son, had come to his house. Malti Devi wife of Uma Shanker Shah called his daughter Bhatia Shalini 2013.09.10 17:13 I attest to the accuracy and integrity of this document High Court Chandigarh CRA NO. S-1413-SB OF 2001 (O&M) -3- (prosecutrix) to her house at 11:00 A.M in the presence of Boota Singh. On the day of poling vote, he enquired about his daughter (prosecutrix) from Malti Devi but she did not give any proper reply. From 20.06.1998 Sanjiv Kumar @ Sanju and his friend Subhash Chander (present appellants) were found absent from their houses. The complainant had a suspicion that Sanjiv Kumar @ Sanju and Subhash Chander (present appellants), Uma Shanker Shah and Malti Devi (accused since acquitted by the trial Court) had abducted his daughter (prosecutrix). On the basis of his statement, formal FIR was recorded. On 11.07.1998, SI Balwant Singh was prsent on the bridge of canal minor Malookpura near Ganga Nagar Bye-Pass, three persons i.e Sanjiv Kumar @ Sanju and Subhash Chander (present appellants) and prosecutrix were present. The present appellants were interrogated and arrested. Prosecutrix was medicolegally examined at Civil Hosptial, Abohar. Both the appellants/accused Sanjiv Kumar @ Sanju and Subhash Chander were also medicolegally examined from the Incharge, Civil Hospital, Abohar. After completion of investigation, challan was presented in Court.
Copies of challan, as envisaged under Section 207 Cr.P.C, were supplied to the accused free of costs. Thereafter the case was committed to the Court of Sessions, as the offences involved in the case were exclusively triable by the Court of Session.
Bhatia Shalini2013.09.10 17:13 I attest to the accuracy and integrity of this document High Court Chandigarh CRA NO. S-1413-SB OF 2001 (O&M) -4-
Charge under Sections 363/328/366-A/376/120-B IPC was framed against all the accused to which all the accused pleaded not guilty and claimed trial.
The prosecution in order to prove the guilt of accused, examined prosecutrix as PW-1, Joginder Singh -father of the prosecutrix (complainant) as PW-2, Dr. Poonam Miglani as PW-3, Boota Singh (cousin brother of Joginder Singh) as PW-4, Dr.R.S.Attwal as PW-5, ASI Beant Singh as PW-6, SI Balwant Singh as PW-7 and closed the evidence.
All the accused were examined under Section 313 Cr.P.C and all the incriminating evidence was put to them, to which all the accused pleaded innocence and false implication. It was further pleaded that prosecutrix used to write letters to Sanjiv Kumar @ Sanju (present appellant). Uma Shanker Shah was not agreeing to the marriage of prosecutrix with Sanjiv Kumar @ Sanju (present appellant).
The accused were called upon to lead defence evidence. They examined Rajiv Kumar Kapoor as DW-1 and closed the evidence after tendering into evidence letters Exhibit D-1 to D-14.
The learned trial Court, after appraisal of the evidence, acquitted accused Uma Shanker Shah and Malti Devi of all the charges levelled against them and convicted accused Sanjiv Kumar and Subhash Chander under Sections 366/366-A/363/ 120-B IPC and sentenced them to undergo imprisonment, as Bhatia Shalini 2013.09.10 17:13 I attest to the accuracy and integrity of this document High Court Chandigarh CRA NO. S-1413-SB OF 2001 (O&M) -5- narrated above.
Feeling dissatisfied with the above said judgment of conviction and order of sentence dated 26.11.2001 passed by learned Sessions Judge, Ferozepur, both the accused/appellant Sanjiv Kumar @ Sanju and Subhash Chander have preferred the present appeal.
Learned counsel for the appellants has submitted that as per the prosecution story, Malti Devi has inducted prosecutrix to come to her house. It is further the case of prosecution that Malti Devi administered some intoxicant in the tea of prosecutrix. However, the said story of prosecution does not find favour from the trial Court. The trial Court observed that the story of prosecution is doubtful and that there is no evidence on file that any intoxicant was administered to the prosecutrix. It is further submitted that since Malti Devi and Uma Shanker Shah have been acquitted under Sections 363/366/366-A/120-B IPC and as such, charge under those provisions of law against the present appellants cannot be maintained.
It is further submitted that case of the prosecution is that after kidnapping the prosecutrix, both the appellants had forcible sexual intercourse with the prosecutrix, but that allegation also does not find favour from the trial Court and the appellants have been acquitted under Section 376 IPC.
The appellants have been convicted under Sections 363/366/366-A read with Section 120-B IPC. It is further Bhatia Shalini 2013.09.10 17:13 I attest to the accuracy and integrity of this document High Court Chandigarh CRA NO. S-1413-SB OF 2001 (O&M) -6- contended that the prosecution has to prove the ingredients of offence of kidnapping a minor girl from the lawful guardianship. It is further submitted that the allegations of enticement were against Malti Devi but she has been acquitted by the trial Court.
The first and foremost requirement of law is to prove that prosecutrix was below 18 years of age. However except the bald statement made by the prosecutrix that her age was 16/17 years at the time of occurrence, there is no other evidence on file to show that she was below the age of 18 years at that time. Even Joginder Singh @ Jagtar Singh-father of the prosecutrix (complainant) has not uttered even a single word about the age of prosecutrix. He was the best witness to depose about the age of prosecutrix. The trial Court has accepted the plea that prosecutrix voluntarily accompanied Sanjiv Kumar @ Sanju to various places. The prosecutrix has stated that she was taken to Bus Stand Abohar in a rickshaw and she was unconscious at that time. It is not possible to take a young girl in an unconscious state in a rickshaw or in a bus. The prosecutrix has further stated that thereafter she was taken to Delhi and then to Ferozabad. In the cross-examination, prosecutrix has stated that she stayed at Hanumangarh for one day and from Hanumangarh she was taken to Abohar. She has further stated that she was fully conscious at that time. She has admitted the fact that at Abohar Bus Stand, a number of buses were standing but she did not raise any noise. She has further stated that she travelled to Hanumangarh in a Bhatia Shalini 2013.09.10 17:13 I attest to the accuracy and integrity of this document High Court Chandigarh CRA NO. S-1413-SB OF 2001 (O&M) -7- bus. She has further stated that from Hanumangarh to Delhi they traveled by train. She has further stated that in the waiting hall at Delhi Railway Station also, there were 200/300 passengers present. She has further admitted that police officials were also present there in the waiting room. So, in these circumstances, during long journey from Hanumangarh to Abohar and then Abohar to Delhi, she had ample opportunity to raise objection, more so, when police officials were present there. The stand taken by the prosecutrix is wrong on the face of it as number of love letters have been written by her. The prosecutrix has stated that those letters have been got written under threat and pressure. It cannot be believed that so many letters can be written under threat.
It is further contended that in the following authorities, the accused were acquitted where the prosecutrix has voluntarily accompanied the accused and stayed there for a number of days:-
"S. Varadarajan vs. State of Madras" 1965 AIR (SC) 942;
"Raj Kishore @ Ramu vs. State of Haryana" 2011 (3) RCR (Criminal) 731;
"Ramu vs. State of Haryana" 2002 (1) RCR
(Criminal) 108.
It is further contended that the learned trial Court has committed grave error in convicting both the appellants under Sections 363/366/366-A/120-B IPC.Bhatia Shalini 2013.09.10 17:13 I attest to the accuracy and integrity of this document High Court Chandigarh CRA NO. S-1413-SB OF 2001 (O&M) -8-
Learned State counsel has supported the judgment passed by the trial Court and has contended that the prosecutrix has given her age as 16/17 years and that fact has not been specifically challenged in her cross-examination. The accused/ appellants have been acquitted under Section 376 IPC on account of proving the love letters and visiting of different places by the prosecutrix. However, the fact remains that she was below 18 years of age and as such, the accused/appellants have been rightly convicted.
I have given my thoughtful consideration to the rival contentions made by both the sides and have gone through the records of the case.
Since this is first appeal and as such, the evidence on file has to be reappraised.
The star witness of the prosecution is the victim herself. While appearing as her own witness as PW-1, she has given her age as 18 years. She has stated that Malti Devi came to her house on 20.06.1998 at about 11:30 and requested her to accompany her for some domestic work. She was provided tea at the house of Malti Devi, which was prepared by the daughter-in- law of Malti Devi and after drinking tea, she became unconscious. Sanjiv Kumar @ Sanju and Subhash Chander took her to Bus Stand Abohar in a rickshaw and from there she was taken to Delhi and then to Ferozabad. Sanjiv Kumar @ Sanju and Subhash Chander kept her in a room where both the appellants committed Bhatia Shalini 2013.09.10 17:13 I attest to the accuracy and integrity of this document High Court Chandigarh CRA NO. S-1413-SB OF 2001 (O&M) -9- rape upon her. She was 16/17 years old at the time of said occurrence.
Learned trial Court has not believed the statement of prosecutrix to the effect that Malti Devi had taken away the prosecutrix to her house and administered some intoxicant substance, and acquitted Malti Devi and Uma Shanker Shah in respect of all the charges levelled against them. The trial Court observed that no medical evidence regarding the administration of intoxicant substance has been produced by the prosecution and as such, the prosecution story in this regard is doubtful. The trial Court has further disbelieved the prosecution version in respect of having forcible sexual intercourse by Sanjiv Kumar @ Sanju and Subhash Chander as both these accused/appellants have been acquitted by the trial Court under Section 376 IPC.
The first and foremost requirement of law is to prove the age of prosecutrix below 18 years on the date of occurrence. Now the question arises whether the prosecution has been able to prove by leading cogent evidence in this regard. The answer to that question is in negative. The only evidence produced by the prosecution is the statement of the prosecutrix in which she has stated that her age at the time of occurrence was 16/17 years. Joginder Singh @ Jagtar Singh-father of the prosecutrix (complainant) was the best witness to depose about the age of prosecutrix but he has not uttered even a single word regarding the age of prosecutrix. The other evidence produced by the Bhatia Shalini 2013.09.10 17:13 I attest to the accuracy and integrity of this document High Court Chandigarh CRA NO. S-1413-SB OF 2001 (O&M) -10- prosecution is statement of Dr. Promila Miglani (PW-3) who has deposed that on 11.07.1998, she medicolegally examined prosecutrix aged 17 years. She has not stated that any radiological test was conducted before giving the age of prosecutrix. She has further deposed that the prosecutrix was habitual to sexual intercourse as her hymen was absent. The vagina admitted two fingers and there were no marks of external or internal genital injuries.
The prosecution has not proved the documentary evidence regarding the age of prosecutrix. The birth certificate of prosecutrix has not been produced on file. The investigating agency could have established the age of prosecutrix by conducting ossification test in respect of age of prosecutrix. Admittedly that test has also not been conducted. So, on the basis of bald statement made by the prosecutrix that her age was 16/17 years at the time of occurrence, cannot be taken as gospel truth in the absence of any other supporting evidence. Joginder Singh @ Jagtar Singh (complainant) was the best witness to corroborate the version of prosecution but he has not uttered any word about the age of prosecutrix.
Learned State counsel has submitted that no specific suggestion regarding the age of prosecutrix has been made and on that account, the age given by the prosecutrix would be deemed to have been admitted.
The said submission is without any substance as it is Bhatia Shalini 2013.09.10 17:13 I attest to the accuracy and integrity of this document High Court Chandigarh CRA NO. S-1413-SB OF 2001 (O&M) -11- settled law that the point pleaded by the prosecution has to be proved by it by leading cogent evidence. The bald statement of prosecutrix is not sufficient to prove her age to be below 18 years.
Learned trial Court in para no.9 of the judgment has observed that plea of the accused/appellants that prosecutrix used to write letters to Sanjiv Kumar @ Sanju (present appellant) stands established from the letters Exhibit D-1 to D-14. The story of prosecution that sexual intercourse was done with the prosecutrix against her wishes is also doubtful. It cannot be believed that prosecutrix could be compelled to accompany Sanjiv Kumar @ Sanju to Abohar, then to Delhi and Hanumangarh in train or bus. A number of persons were present at the Delhi Railway Station including the police officials. The prosecutrix could have raised a little finger regarding her alleged kidnapping at that time. She could have raised objection during long journey from Delhi to Hanumangarh in train. She could have raised objection to the fellow passengers in the bus as well as in the train. She has written love letters to Sanjiv Kumar @ Sanju which clearly shows that she had love affair with him. So, the prosecutrix had voluntarily accompanied him to various places. The presence of semen in her vaginal swap shows that she had voluntarily sexual intercourse with Sanjiv Kumar @ Sanju. Sanjiv Kumar @ Sanju has been rightly acquitted by the trial Court under Section 376 IPC, along with Subhash Chander. It so Bhatia Shalini 2013.09.10 17:13 I attest to the accuracy and integrity of this document High Court Chandigarh CRA NO. S-1413-SB OF 2001 (O&M) -12- seems that the parents of Sanjiv Kumar @ Sanju and Subhash Chander (present appellants) have been entangled just to teach them a lesson.
In authority S. Varadaranjan's case (supra), the three Judges Bench of Hon'ble Apex Court has acquitted the accused where minor has voluntarily accompanied the accused. It was observed in that Ruling that part played by the accused could be recorded as facilitating the fulfillment of the intentions of girl. That part falls short of an inducement to the minor to slip out of the keeping of her lawful guardian and is not tantamount to "taking away from lawful guardian". The accused was acquitted in that case. So, following the said authority this Court in Ramu's case (supra) and Raj Kishore @ Ramu's (case) supra, acquitted the accused of the offences under Sections 363/366 IPC where the prosecutrix was minor but has accompanied the accused voluntarily.
So following the above said authorities, I have no hesitation in holding that the evidence produced by the prosecution had fallen short in proving the offence under Sections 363/366/366-A IPC against appellants Sanjiv Kumar @ Sanju and Subhash Chander. Consequently, the appeal stands accepted and the conviction recorded by the trial Court vide judgment of conviction and order of sentence dated 26.11.2001 passed by trial Court stands set-aside and both the appellants stand acquitted of all the charges levelled against them, by giving them Bhatia Shalini 2013.09.10 17:13 I attest to the accuracy and integrity of this document High Court Chandigarh CRA NO. S-1413-SB OF 2001 (O&M) -13- the benefit of doubt. The fine, if any deposited by them, be reimbursed to the appellants, after the expiry of period of appeal, as per Rules.
AUGUST 19, 2013 (K. C. PURI)
shalini JUDGE
Bhatia Shalini
2013.09.10 17:13
I attest to the accuracy and
integrity of this document
High Court Chandigarh