Punjab-Haryana High Court
Shyam Singh Alias Kala vs State Of Haryana on 14 March, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Criminal Appeal No. 1241-SB of 2002 1
In the High Court of Punjab and Haryana, at Chandigarh.
Criminal Appeal No. 1241-SB of 2002
Date of Decision: 14.3.2011
Shyam Singh alias Kala
...Appellant
Versus
State of Haryana
...Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. Ashit Malik, Advocate
for the appellant.
Mr. Anoop Sharma, Assistant Advocate
General, Haryana, for the respondent.
Kanwaljit Singh Ahluwalia, J. (Oral)
The present appeal has been filed by Shyam Singh alias Kala, who has been convicted by the Court of Sessions Judge, Karnal, vide its judgment dated 2.8.2002, for the offence under Sections 376, 363 and 366 IPC and vide a separate order dated 3.8.2002, sentenced him as under:-
Sr. No. Section Sentence awarded
1. 376 IPC To undergo rigorous
imprisonment for a period of
seven years and to pay a fine
of ` 5,000, in default whereof
to further undergo rigorous
imprisonment for a period of
one year.
2. 363 IPC To undergo rigorous
imprisonment for a period of
four years.
Criminal Appeal No. 1241-SB of 2002 2
Sr. No. Section Sentence awarded
3. 366 IPC To undergo rigorous
imprisonment for a period of
five years.
The present appeal is directed against the conviction and sentence pronounced by the trial Court. The appellant was prosecuted in case FIR No. 249 dated 28.7.2001, registered at Police Station Sadar Karnal, under Sections 363, 366 and 376 IPC. It has come in the FIR, lodged by father of the Prosecutrix (name is withheld to protect her identity) that she as aged 17½ years and the accused had also proved Matriculation Certificate of the Prosecutrix Ex.DA, wherein her date of birth is recorded as 5.1.1984 and on the day, she left her house with the appellant i.e. on 26.7.2001, she was aged 17 years 6 months & 21 days. It was also a case of the Prosecutrix that she had accompanied the accused on promise of marriage and she stayed with him at Manimajra, Chandigarh, for about five days with a family, which was known to him.
Having noticed the broad features of this case, it will be necessary to notice facts of the case. PW.5 Raj Pal got recorded his statement Ex.PH to PW.10 Satpal, Sub Inspector/Incharge, Police Post Jundla, stating that he was a resident of village Hemda and was employed in the State Electricity Board. He has three sons and three daughters. His daughter (Prosecutrix) was younger than two sons and one daughter. She has passed 10th class and was aged about 17½ years. It was further stated that Shyam Singh alias Kala son of Jaila Ram, caste Balmiki, resident of Chaura, Police Station Gharaunda, was employed by Ranjit Singh son of Ratti Ram, caste Balmiki, from the last two years and was residing in the village of the complainant. The house Criminal Appeal No. 1241-SB of 2002 3 of Ranjit Singh was opposite to the house of complainant, due to which Shyam Singh alias Kala used to visit his house. On 26.7.2001 at about 2.00 P.M., the Prosecutrix had left her house without disclosing anything to her parents. On inquiry, it was found that the Prosecutrix had been enticed away by accused Shyam Singh son of Jaila Ram, caste Balmiki, resident of Chaura, on the pretext of performing marriage with her. The complainant and his family members searched for the girl here and there but they could not trace her out. Therefore, they had gone to lodge the report. Shyam Singh was aged about 26/27 years. A perusal of the complaint Ex.PH, on the basis of which formal FIR Ex.PH/1 was registered, reveals that the Prosecutrix was 17½ years of age as on 26.7.2001. To be precise, as per matriculation certificate Ex.DA, she was aged 17 years, 6 months & 21 days. The Prosecutrix had left her house on 26.7.2001. Thereafter, the Prosecutrix was recovered by the police from the custody of accused on 1.8.2001. She, after getting her medicolegal examination conducted, was handed over to her parents.
The aforesaid FIR was investigated. The report under Section 173 Cr.P.C. was submitted and thereafter on 29.10.2001, the appellant was charged for the offence under Sections 376, 363 and 366 IPC on the ground that on 26.7.2001 at about 2.00 P.M., in the area of village Hemda, the appellant had committed rape with the Prosecutrix, who was less than 18 years of age and thus, committed an offence under Section 376 IPC. The appellant pleaded not guilty and claimed trial.
PW.1 Dr. Balwan Singh had medicolegally examined the appellant and opined that there was no evidence to suggest that he was not capable to perform sexual intercourse.
Criminal Appeal No. 1241-SB of 2002 4
The Prosecutrix was also examined by PW.2 Dr. Shalu Gupta. The Medicolegal Report and the Clinical Report of the doctor are as under:-
"She was moderately built. Moderately nourished girl, came walking for examination. She was fully conscious. Her gait was normal. There was no mark of injury on any part of the body especially breast, thigh and perineum.
On examination of external genitalia, labia majora and minora were well developed. No mark of injury on the external genitalia.
On PV examination, vagina admitted two fingers easily. Hymen did not bleed on touch. There was no evidence of injury on the vagina.
Two slides were prepared by taking smears from the vagina for the presence of any seminal stains. Uterus was anti-verted, anti-flexed and small in size. She was referred to Radiologist, G.H. Karnal for x- rays to confirm the age..."
Two vaginal smeared slides and clothes of the Prosecutrix were sent to the Forensic Science Laboratory, Madhuban, Karnal, which submitted report Ex.PE to the effect that human semen was detected on the slide, however, no semen was detected on salwar. PW.3 Prem Kumar, Draftsman, had prepared a scaled site plan Ex.PF of the place of occurrence. He had also prepared scaled site plan of Manimajra as Ex.PG. Manimajra is a city adjoining Chandigarh, where the Prosecutrix Criminal Appeal No. 1241-SB of 2002 5 along with the accused was residing, after she had left her home at Karnal with him. PW.4 Bhim Singh, Assistant Sub Inspector, proved receipt of ruqa Ex.PH, which contained statement of complainant PW.5 Raj Pal and formal registration of the FIR as Ex.PH/1. Raj Pal, complainant, appeared as PW.5 and stated that he has six children i.e. three sons and three daughters. The Prosecutrix was aged about 15½ years and she had eloped with the appellant on 26.7.2001. It was suspected that she was kidnapped by the accused. On 1.8.2001, the Prosecutrix was recovered by the police from the accused and her custody was handed over to the complainant/father after her medicolegal examination was carried out. In cross-examination, this witness stated as under:-
"...I had handed over the school certificate of Mst. Rimple to the police when I made my statement Ex.PH and as per school certificate the age of Mst. Rimple was 17½ years at that time..."
The Prosecutrix stated that the accused was known to her as he was employed as an agricultural labourer in the house of Ranjit Singh and his house is situated in front of their house. On 26.7.2001, she had gone to the fields. The fields of Ranjit Singh was situated nearby. The accused met her in the fields and told that he wanted to contract marriage with her and therefore, she should accompany him. As such, she had accompanied the accused to Manimajra as she believed that the accused would perform marriage with her. She was kept in the house near Chandigarh at Manimajra. The house was of one Kumhar. There she remained with him for about five/six days. There was only one Criminal Appeal No. 1241-SB of 2002 6 room where the accused was living with the family members of said Kumhar. The following lines of her examination-in-chief are required to be noticed:-
"...The wife and children of Som Pal were also used to reside in that room. Infact, there was one child who was a son of Som Pal. Som Pal, his wife and their son used to sleep outside the room in the open in the night, whereas I and the accused used to sleep inside the room..."
The Prosecutrix has further stated that she told the accused to first perform marriage with her but he insisted for sexual intercourse and committed the same without her consent and her will. In cross- examination, she admitted that Ex.DA is the correct photocopy of the matriculation certificate wherein her date of birth is recorded as 5.1.1984. She has further stated that once, before her elopement, the accused had come to her house and had committed sexual intercourse with her. It will be apposite here to reproduce this part of her cross- examination:-
"...Once earlier also the accused had come to our house in the night and had forcibly committed sexual intercourse with me at our house..."
PW.7 Hukam Chand, Head Constable, PW.8 Shamsher Singh, Constable and PW.9 Babu Ram, Constable, have tendered into evidence their affidavits Ex. PK, Ex.PL and Ex.PM, respectively, to prove link evidence. Satpal Singh, Sub Inspector, has appeared as PW.10 and proved various facets of investigation. Thereafter, the prosecution has Criminal Appeal No. 1241-SB of 2002 7 closed its evidence.
The statement of appellant, under Section 313 Cr.P.C., was recorded. All the incriminating circumstances were put to the appellant. He denied the same and pleaded innocence. However, no witness was examined in defence.
As per the complaint Ex.PH, admission made by PW.5 Raj Pal, father, PW.6 (the Prosecutrix) and the matriculation certificate Ex.DA, it is evident that on the day when the Prosecutrix had left with the accused, she was 17 years, 6 months and 21 days old. Before she left, according to the Prosecutrix, the accused had performed sexual intercourse with her against her wishes in her house. But the Prosecutrix had not disclosed this fact to anybody in the village or to her parents. It is sufficient to infer that she was the consenting party. Even if the accused was performing sexual intercourse in her house, still she accepted the promise of marriage and accompanied him from her village to Manimajra. To facilitate their travel to Manimajra, it can be assumed that they travelled in a public transport. The Prosecutrix has not only travelled in the public transport but also visited public places like Bus Stand or Railway Station. She had made no complaint or protest to anybody. It has also come in the evidence that for about five/six days, she stayed with the accused in the house of Som Pal, which consisted only one room. She used to reside with the accused in the room, whereas Som Pal and his wife along with their son used to sleep outside. She had made no complaint in the vicinity to the neighbours or anybody in the Manimajra. A judicial note can be taken of the fact that Manimajra, being a satellite village of Chandigarh, is a densely Criminal Appeal No. 1241-SB of 2002 8 populated area. Another feature which this Court cannot ignore is that in the Medicolegal Report of the Prosecutrix, no injury was found on her person. Vagina admitted two fingers easily, which is also sufficient to say that she was engaged in sexual activities. Thus, the consent of Prosecutrix is a writ large. She was more than 16 years of age. Hence, no offence under Section 376 IPC has been committed by the appellant and therefore, his conviction and sentence is set aside on this count.
In the present case, the Prosecutrix had herself accompanied the accused on the pretext of marriage. The appellant had taken away the Prosecutrix, who was minor being less than 18 years of age, from the lawful custody of her parents and enticed her to perform marriage and to commit sexual intercourse. Therefore, the offence under Section 366 IPC is made out against the appellant. As per the charge framed on 29.10.2001, the appellant was aged about 20 years. The Prosecutrix was aged about 17½ years. It seems that to perform marriage, both the accused and the Prosecutrix had left the house without the consent of lawful guardians of the Prosecutrix. Swayed by the youth, the accused and the Prosecutrix, in their teens could not comprehend the consequences of their act. They lacked necessary maturity. This Court also cannot shut its eyes of the fact that a period of about ten years is going to elapse and by now the Prosecutrix is well settled in her life and the accused has also moved ahead in his career. Thus, in view of these mitigating circumstances, learned counsel for the appellant has prayed for reduction of sentence of the appellant. Learned counsel for the respondent-State has submitted that the appellant has actually undergone 1 year, 7 months and 26 days as undertrial and after his Criminal Appeal No. 1241-SB of 2002 9 conviction.
Considering all the mitigating circumstances, as enumerated above, this Court is of the view that ends of justice will be fully met in case sentence of four years rigorous imprisonment, awarded upon the appellant, is reduced to the period already undergone i.e. 1 year, 7 months and 26 days. However, sentence of fine and default clause shall remain intact.
With the modifications in the sentence, awarded upon the appellant, the present appeal is disposed of.
(Kanwaljit Singh Ahluwalia) Judge March 14, 2011 "DK"