Punjab-Haryana High Court
Bheem Singh vs State Of Punjab on 1 February, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. 1108-SB of 2009
Date of decision: 1st February, 2010
Bheem Singh
... Appellant
Versus
State of Punjab
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Arvind Kashyap, Advocate for the appellant.
Mr. Mehardeep Singh, Deputy Advocate General, Punjab
for the State.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Bheem Singh son of Lal Singh resident of village Kotla Bajwara, Police Station Fatehgarh Sahib, has filed present appeal. He has assailed the judgment dated 4th March, 2009 rendered by Additional Sessions Judge, Fatehgarh Sahib, who found him guilty of offence under Section 363, 366 and 376 IPC. The trial Court sentenced the appellant under Section 363 to undergo rigorous imprisonment for three years and to pay fine of Rs.1000/-, in default of payment of fine to further undergo rigorous imprisonment for one month. The appellant was further sentenced under Section 366 IPC to undergo rigorous imprisonment for three years and to pay fine of Rs.1000/-, in default of payment of fine to further undergo rigorous imprisonment for one month. He was also sentenced under Section 376 IPC to undergo rigorous imprisonment for seven years and to pay fine of Rs.5000/-, in default of payment of fine to further Criminal Appeal No.1108-SB of 2009 2 undergo rigorous imprisonment for three months. All the sentences were ordered to run concurrent.
The appellant was named as accused in case FIR No.72 dated 27.04.2008 registered at Police Station Fatehgarh Sahib under Sections 363, 366-A and 376 IPC. The FIR in the present case, was lodged on the statement made by Balwant Singh complainant. ASI Kartar Singh, along with companion officials, was present near Gurdwara Jyoti Sarup, when Balwant Singh appeared and made statement Ex.PE. It was stated in the statement by the complainant that he is an agriculturist, has got two daughters and one son. The eldest daughter was aged 24 years, was a patient of Arthritis and was bed ridden. His son Amarjit Singh was aged 19 years and the youngest daughter, the prosecutrix was aged 16 years and 4 months. She had passed matriculation from High School Kotla Bajwara. Along with the family members, the prosecutrix had slept in the courtyard. In the morning when everybody had arisen for the day, they found that prosecutrix was missing from her cot. They searched for her in the neighbourhood. On enquiry, they learnt that when she was student of High School, Kotla Bajwara, she used to meet Bheem Singh son of Lal Singh aged about 21 years. They reached at the house of Bheem Singh and found that he was also missing from his house. The complainant made a grievance that his daughter was a minor, she was not in a position to comprehend good or bad for herself and Bheem Singh had enticed her away from the lawful guardianship of her parents. On the basis of the statement made by Balwant Singh, formal FIR Ex.PH/1 was registered at Police Station Fatehgarh Sahib.
The above said FIR was investigated and report under Section 173 Cr.P.C. was submitted.
Name of the prosecutrix is being withheld so that her identity is not revealed.
Criminal Appeal No.1108-SB of 2009 3
Dr. Divjot Kaur, Medical Officer then posted at Civil Hospital, Fatehgarh Sahib appeared as PW-1 and stated that on 24th April, 2008, she had examined the prosecutrix. As per father of prosecutrix, who was accompanying her, she was aged 16 years and 3 months. The observations of the doctor can be noticed as under:
"She was conscious, well oriented to time, place and person and cooperative. B.P. was 180/80 MM and pulse rate was 76 per minute. She was having a scar mark on front of lateral side of right knee joint. On examination secondary sex characters, breast, were well developed. Pubic auxiliary hair were well developed. There was no fresh external injury mark on her face, breast, thighs, back and front of abdomen, chest, legs and arms, neck. On local examination there was no external injury mark on lavimajora.
Injury No.1: There was one superficial lacerated wound on .125 x .125 cm of mucosa in-posterior vaginal wall mucosa in centre near forchette. Slight blood was oozing on examination. Vagina intrioitus easily admits one finger. Injury was advised by Gynaecologist opinion. No.2. Swab No.1 taken from bulbal area and swab No.2 taken from all the vaginal fornexes.
Swab No.1 and 2 and her clothes containing one underwear sent to Chemical Examination for Seminal blood stained examination. Her cloth brought by police.
Injury No.1 was kept for Gynae opinion and No.2 was kept after Chemical Examiner report."
The doctor further opined that possibility of sexual intercourse cannot be ruled out.
PW-2 HC Satpal Singh tendered his affidavit Ex.PC. He had carried the articles to Chemical Examiner. His evidence was of formal nature.
Criminal Appeal No.1108-SB of 2009 4
Dr.Rakesh Kumar PW-3 had examined the accused appellant and opined that there was nothing on record to suggest that the appellant was not capable of performing sexual intercourse.
Balwant Singh PW-4 complainant reiterated what was stated in the FIR. He further stated that on 28th April, 2008, his daughter was recovered in the company of Bheem Singh accused appellant. In cross examination, this witness stated that he was not in knowledge of the love affair of the prosecutrix.
ASI Kartar Singh PW-5 proved various facets of the investigation.
What is material for this Court is the testimony of the prosecutrix who appeared as PW-6. She stated in the examination in chief that on the night of Karva Chauth, accused called her in a vacant room and committed rape with her forcibly. Then on 26th April, 2008, she was taken from the house on the pretext of performing marriage. She was taken to Morinda, then to Ropar and then to Naina Devi. Accused had committed nothing bad with her. On 27th April, 2008 they came back to Bassi, where a nakka was held by the police and her father was also accompanying Kartar Singh policeman, where her statement was recorded by the police. It will be necessary to reproduce the entire cross examination of the prosecutrix, which reads as under:
"I cannot think about my good or bad. My school is at a distance of about one kilometer from my house. Two other girls were also accompanying me to the school. It is correct that my house is surrounded by a wall and fixed with a gate. The height of the wall is about 7 to 8 feet and there are residential houses near to my house. It is correct that in routine nobody opens the gate at night. It is correct that I was in love with the accused for the last four years during the school days. He used to talk with me on phone also and also we were exchanging letters with each other. I have seen photocopies of the letters which are in my Criminal Appeal No.1108-SB of 2009 5 hand which are Ex.D1 and Ex.D2. It is correct that accused Bheem Singh is also know as Surinder. It is correct that we were ready to perform marriage with each other but my family member were against this marriage. I have also visited the house of accused. We have left the house after consultation with each other. It is correct that we went uptil Morinda on foot on the night of 26/27.4.2008. Then we went to V.Bhora by Bus from Morinda. Then after taking amount from the friend of Bhim Singh, we went to Nangal, Una. We were arrested by the police in Una but we were let off by the police on making request by us. Then with the assistance of relatives of accused, we directly went to police station. We used to talk with each other on phone for about 30 minutes. I might have written about ten letters to the accused during my love affair. We remained in park at Una. It is correct that accused has never asked me that he will not perform marriage with me. Now I am not on visiting terms with the accused. It is correct that accused has committed sexual intercourse with me on the night of Karvachoth or on some other occasions with my consent. The room where accused committed sexual intercourse with me belongs to our neighbour, but I cannot tell his name. The said room is at a distance of 20 feet from my house. We used to meet with each other once in a week in the said room. I met the accused in front of gate of my house on the night of 26/27 April, 2008 as per programme already fixed by us. I have stated the fact with regard to our visit to Naina Devi on the asking of police. It is also the made up story of police with regard to our apprehension near Bus Stand, Talania. We came from Una on a car to the Police Station Fatehgarh Sahib. It is correct that our photographs and letters have been destroyed by our family members and police."
Sadhu Singh Draftsman PW-7 proved scaled site plan Ex.PW7/A of the place of occurrence. HC Kulwinder Singh PW-8 had accompanied the Investigating Officer at the time of arrest of the accused Criminal Appeal No.1108-SB of 2009 6 on 25th April, 2008. At that time, the accused was found sitting with the prosecutrix in an auto rickshaw.
Harbhajan Singh, Clerk in the Govt. Senior Secondary School, Village Kotla Bajwara appeared as PW-9. From the school admission and withdrawal register, he proved the date of birth of the prosecutrix. In the school record, date of birth of the prosecutrix recorded was 8th January, 1992.
In the FIR itself, complainant had stated the age of the prosecutrix to be 16 years and 4 months. When prosecutrix was medico legally examined, her age disclosed was 16 years and 3 months.
In the present case, prosecutrix left her house on 26th April, 2008 and the accused was apprehended in the company of prosecutrix on 28th April, 2008. Admittedly, at that time, prosecutrix was more than 16 years of age but less than 18 years of age. In the examination in chief, prosecutrix had stated that on the night of Karva Chauth, accuse had called her in a vacant room and committed sexual intercourse forcibly. In cross examination, which has been reproduced above, she had stated that she was in love with the accused appellant for last four years since school days. She had admitted the photocopies of letter written in her hand as Ex.D1 and D2. She further stated that both were ready to perform marriage with each other but her family members were against this. She further stated that she visited the house of the accused and had left the house after consultation with each other. She further stated that from their village, they went on foot upto Morinda. They were also arrested by the police at Una but on the request made by them, police at Una had left them. Then with the assistance of relatives of the accused, they directly went to the police station. They used to talk to each other on phone for 30 minutes. She further stated that she may have written about ten letters to the accused during subsistence of their love affair. She further stated that Criminal Appeal No.1108-SB of 2009 7 accused had committed sexual intercourse with her on the night of Karvachauth or on some other occasion with her consent. She further stated that the room where sexual intercourse was committed, belong to their neighbour. She further stated that they used to meet each other once in a week in the said room.
The trial Court after examining the statement of the prosecutrix, held that on the day of Karvachauth, when sexual intercourse was committed, prosecutrix was less than 16 years of age. The findings of the trial Court read as under:
"17. I do not scribe to the arguments advanced by the learned counsel for the accused. A lot of stress was given by the learned counsel for the accused that neither offence under Section 376 nor 363 or 366 of Indian Penal Code is made out but this argument of the learned counsel for the accused is totally misconceived. The learned counsel for the accused has tried to cover his case under Section 375 (Sixth) of Indian penal Code on the ground that prosecutrix was more than 16 years of age and so she was a consenting party as per her admission but again for the sake of argument, I would observe that it is wrong appreciation of evidence. In fact the accused is caught in his own dragnet. PW-6 is the statement of prosecutrix and apart from deposing other aspects of this case, she has also deposed that on the night of Karvachauth the accused called her in a vacant room and committed rape with her forcibly. On the intervening night of 26.4.2008/27.4.2008 the accused took her from her house on the pretext of performing marriage with her. This was the statement in examination in chief of PW-6 prosecutrix but when she was subjected to cross examination although she admitted that she was in love with the accused for the last four years and also admitted that they were ready to perform marriage with each other but her family members were against this marriage and they have left the house after consultation with each other just to bring this case as of a consenting party qua prosecutrix yet real problem started when she admitted the suggestion of counsel for the accused that it is correct that Criminal Appeal No.1108-SB of 2009 8 has committed sexual intercourse with her on the night of Karvachauth or on some other occasions with her consent. When this prosecutrix was talking of sexual intercourse performed with her on the night of Karvachauth by the accused that means this act was committed by the accused somewhere in October or November of 2007 i.e. before Diwali. This suggestion is coming from the mouth of none else but from the counsel for the accused and if it is so then as per the statement of the prosecutrix in her examination in chief that the accused called her on the night of Karvachauth in a vacant room and committed rape with her forcibly stands not only corroborated but also proved.
18. Now question arises whether on that alleged night of Karvachauth prosecutrix was more than 16 years of age or she was less than 16 years of age. Ex.PD is the Middle School pass certificate issued by Punjab School Education Board coupled with the certificate Ex.PW9/A issued by the Principal of Senior Secondary School, Kotla Bajwara in which the date of birth of this prosecutrix has been recorded as 8.1.1992. No such document has been produced on record by the accused to contradict this date of birth of the prosecutrix and this date of birth 8.1.1992 stands further proved from the statement of the prosecutrix who appeared as PW-6 and deposed that her date of birth is 8.1.1992 meaning thereby that on the night of Karvachauth which is definitely of October or November, 2007 she was less than 16 years of ageand this admission of prosecutrix that the accused committed intercourse with her on the night of Karvachauth or some other occasions with her consent does not in any cover the case of the accused under Section 375 (Sixth) of Indian Penal Code."
Counsel for the appellant has submitted that if the reasoning given by the trial Court is accepted, for a period of five months prosecutrix had not disclosed the alleged act of rape to anybody. She kept on visiting the accused. She accompanied the accused from her village in the night to Morinda. It is submitted that accused and the prosecutrix walked for about 15 kilometers from their village to Bus Stand, Morinda. Therefore, counsel Criminal Appeal No.1108-SB of 2009 9 for the appellant has submitted that a stray line in the testimony of the prosecutrix that the sexual intercourse was committed on the night of Karvachauth cannot be construed against the accused to say that when first time sexual intercourse was committed, prosecutrix was less than 16 years of age. Reliance has been placed upon 'State of Himachal Pradesh v. Mango Ram' 2000 (3) RCR Criminal 752, to say that even if this Court accepts the reasoning of the trial Court and holds the present case to be of rape, still prosecutrix was aged above 16 years and the appellant was aged about 21 years. They were deeply in love with each other. Prosecutrix was a teenager and the appellant was in his youth. Both of them were immature to understand consequences of the elopement. It is further submitted that appellant is behind the bars since 28th April, 2008. Thought technically offence of rape stands committed, but this Court cannot ignore the statement made by the prosecutrix in cross examination.
Taking the conduct of the prosecutrix, statement made by her in the cross examination, age and antecedents of the accused, this Court is of the view that there are adequate and special reasons to impose sentence of imprisonment for a term less than seven years. This view also gets support from the judgment of Hon'ble Apex Court rendered in Mango Ram's case (supra). Accordingly, sentence awarded upon the appellant under Section 376 IPC is reduced from seven years rigorous imprisonment to three years rigorous imprisonment. Sentence awarded by the trial Court under Section 363 and 366 IPC is maintained, however, all the sentences shall run concurrent.
With the modifications in the sentence noticed above, present appeal is disposed of.
[KANWALJIT SINGH AHLUWALIA] JUDGE February 1, 2010 rps