Punjab-Haryana High Court
K...................(Name Of The ... vs State Of Punjab; on 24 September, 2013
Author: S.S.Saron
Bench: S.S.Saron
CRA NO.D-564-DB OF 2013 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA NO.D-564-DB OF 2013
DECIDED ON 24.09.2013.
1. K...................(name of the alleged victim kept secret),
2. Darshan Singh son of Mukhtiar Singh, resident of village
Daska, Tehsil Sunam, District Sangrur.
...............Appellants
versus
1. State of Punjab;
2. Sukchain Singh son of Kashmir Singh son of Ajit Singh,
resident of village Daska, Tehsil Sunam, District Sangrur,
3. Kuldeep Singh son of Joginder Singh, son of Darshan
Singh, resident of village Daska, Tehsil Sunam, District
Sangrur.
.............Respondents
CORAM HON'BLE MR. JUSTICE S.S.SARON
HON'BLE MR. JUSTICE S.P.BANGARH
Present:- Mr. T.S.Sangha, Sr. Advocate
with Mr. H.S.Sangha, Advocate
for the appellants.
S.P.BANGARH,J
Darshan Singh (appellant no.2) is the complainant in this case. He stated before the police that his younger Mamta 2013.10.03 15:44 I attest to the accuracy and integrity of this document Chandigarh CRA NO.D-564-DB OF 2013 2 daughter (appellant no.1) after passing her matriculation examination was doing household work. She was aged 17 years and four months. During the intervening night of 07/08.02.2011, she went to sleep as usual in one of the rooms of his house. In the morning on 08.02.2011 at 06:00 a.m, when he called his wife and the daughter for preparing tea, he was informed by his wife that prosecutrix was missing and her whereabouts were not known. Complainant came to know from reliable sources that his daughter had been allured by respondents nos. 2 and 3 and was taken in a car with a view to compel her to marry respondent no.2 against her wishes. He further stated before the police that there was a conspiracy of the families of both the respondents nos. 2 and 3 in kidnapping his daughter. Respondents nos. 2 and 3 also took 22 tolas of gold and `50,000/- in cash when her daughter was taken out of her house.
On the basis of aforementioned statement of complainant (appellant no.2), formal FIR was registered in the police station. During investigation, original birth certificate of the prosecutrix, that was produced by the complainant, was seized by the police vide recovery memo. Investigating Officer alongwith complainant raided the house of respondents nos. 2 and 3, but they were not found there. On 22.02.2013, police party was in search of both the respondents nos. 2 and 3. Sukhwinder Singh and Darshan Mamta 2013.10.03 15:44 I attest to the accuracy and integrity of this document Chandigarh CRA NO.D-564-DB OF 2013 3 Singh met the police party and they were joined in investigation. On that day, near bus stand Kanakwal Bhangua, Investigating Officer received secret information that respondents nos. 2 and 3 alongwith prosecutrix were sitting under a tree one kilometer ahead of a culvert situated in the area of village Kanakwal Bhangua. Both the respondents nos. 2 and 3, on seeing the police party, fled away from the spot. The prosecutrix was identified by the complainant and was taken in possession and was got medically examined at Civil Hospital, Sunam. One parcel of belongings of the prosecutrix, one envelop, slides and sample seal were entrusted by the attending doctor to the police, that were seized vide memo. Investigating Officer prepared the site plan of place of confinement of the prosecutrix at the instance of the latter. The custody of the prosecutrix was handed over to her father (appellant no.2) vide memo. On 24.02.2011 Sukchain Singh (respondent no.2) was arrested. On 20.05.2011 Kuldeep Singh (respondent no.3) was arrested.
After completion of investigation, Station House Officer of Police Station Dharamgarh, instituted police report in terms of Section 173 of the Code of Criminal Procedure ('Cr.P.C' for short) before the learned Illaqa Magistrate to the effect that it appears that respondents nos. 2 and 3 have committed offences punishable under Sections 363/366- Mamta 2013.10.03 15:44 I attest to the accuracy and integrity of this document Chandigarh CRA NO.D-564-DB OF 2013 4 A/376 and 120 B of the Indian Penal Code ('IPC' for short), On presentation of police report, copies of documents, as required under Section 207 Cr.P.C, were furnished to the respondents nos. 2 and 3 and the case was committed to the Court of Session, that was assigned to the learned Additional Sessions Judge, Sangrur, who on receipt of Sessions case, framed charge under Sections 363, 366A, 376(g) and 120-B IPC against respondents nos. 2 and 3, whereto, the latter pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.
At the trial, prosecution examined prosecutrix as PW1, Darshan Singh, complainant as PW2, Dr. Monica Katyal as PW3, HC Satnam Singh as PW4, Dharminder Singh, Draftsman as PW5, Charan Singh as PW6, Tehal Singh, Head Teacher as PW7, SI Sukhchain Singh as PW8 and HC Avtar Singh as PW9 and closed the evidence, later.
After closure of prosecution evidence, the respondents nos. 2 and 3 were examined in terms of Section 313 Cr.P.C, wherein, they denied the allegations of prosecution, pleaded innocence and false implication in this case. However, Sukchain Singh (respondent no.2) gave his own version as under:-
" Myself and prosecutrix were in love with each other and we wanted to marry. Father of prosecutrix namely Darshan Singh was not willing with this proposal. Darshan Singh threatened his daughter of Mamta 2013.10.03 15:44 I attest to the accuracy and integrity of this document Chandigarh CRA NO.D-564-DB OF 2013 5 dire consequences, if she arranges marriage with me. She had written one application which was addressed to the SSP, Sangrur on 08.02.2011 in which she sought protection from the SSP, Sangrur against her father Darshan Singh. It was also signed by me. The application is available in the judicial file Ex.D7. Myself and prosecutrix left our village on 07.02.2011 and remained in the house of relative at various places in order to conceal ourselves from Darshan Singh, father of the prosecutrix. On 15.02.2011 was contacted Sh. Dhanvinder Singh, Advocate, Kharar, District Mohali and signed the power of attorney in the office of Dhanvinder Singh, Advocate in his favour in order to get protection from Shri Darshan Singh and from the police of Police Station Dharamgarh. The complaint was drafted on 15.02.2011 by the advocate which was signed by me and prosecutrix on the same day in his office. The complaint was filed before the Punjab State Human Rights Commission at Chandigarh and on 21.02.2011, order was passed by the commission. After getting the copy of the said order from the Advocate (photocopies of the relevant documents are available in the judicial file as Ex.D1 to Ex.D6), myself and prosecutrix went to the Police Station at Dharamgarh to get protection from Darshan Singh, but we both were put under wrongful confinement by SI Sukhchain Singh. At the instance of Darshan Singh, prosecutrix was forced to depose against me. A false case was got registered against me in FIR No. 21 dated 10.02.2011 under Sections 363, 366-A, 120-B IPC Police Station Dharamgarh and one other false case in FIR No.30 dated 24.02.2011 under Section 21/61/85 of NDPS Act at Police Station Mamta 2013.10.03 15:44 I attest to the accuracy and integrity of this document Chandigarh CRA NO.D-564-DB OF 2013 6 Dharamgarh. In the reinvestigation, the FIR No.30 dated 24.02.2011 was found false and another FIR against SI Sukhchain Singh was registered in Police Station Dharamgarh in which he was arrested and trial is pending against SI Sukhchain Singh. At the time we left our village, prosecutrix assured me that she is above 18 years of age and able to arrange marriage. Upon her assurance, I accompanied her to Chandigarh. Neither I kidnapped her nor committed rape upon her. She accompanied me with her free will to marry me. I am involved falsely by SI Sukhchain Singh in connivance with Darshan Singh."
Respondents nos.2 and 3 were called upon to enter in defence and they examined HC Prem Singh as DW1, Hardeep Singh as DW2, D.S.Bigha, Advocate as DW3 and SC Nirbhai Singh as DW4 and closed the evidence, later.
After hearing both the sides, learned trial Court vide impugned judgment acquitted respondents nos. 2 and 3 of the charge framed against them by it. Aggrieved, thereagainst, the appellants nos. 1 and 2, victim and father of the victim respectively, have come up in this appeal with prayer for acceptance, thereof, and for convicting and sentencing the respondents nos. 2 and 3, who were accused before the learned trial Court for commission of offences punishable under Sections 120-B, 363, 366-A and 376(g) IPC.
Learned counsel for the appellants contended that though he does not seriously contest the acquittal of Mamta 2013.10.03 15:44 I attest to the accuracy and integrity of this document Chandigarh CRA NO.D-564-DB OF 2013 7 respondents nos.2 and 3 for the commission of offence punishable under Section 376 IPC, but he seriously contests the acquittal of respondents nos. 2 and 3 for commission of offences punishable under Sections 363, 366A read with Section 120-B IPC as at the time of alleged incident, the prosecutrix was below the age of 18 years. He also contends that respondents nos. 2 and 3 are guilty of commission of offences punishable under Sections 363 IPC, 366-A IPC read with Section 120-B IPC as they are allegedly guilty of kidnapping the prosecutrix, as also, they induced her, who was minor at the time of incident to go from her house for forcing her to illicit intercourse.
We fail to understand as to why the appellant no.1 at the time of her alleged abduction did not raise hue and cry in her own house, especially when respondents nos. 2 and 3 were not carrying any weapon. So, when the alleged victim (appellant no.1) did not raise any alarm, she must be held to be a consenting party in this episode. She wanted to flirt with the respondents nos. 2 and 3 followed by consensual sex. It is not her case that the respondents nos. 2 and 3 had a weapon with them. It is also not her case that some force was used against her, while she was travelling with respondents nos. 2 and 3. When no force was being used by the respondents nos. 2 and 3, that indicates that she was going with them with her own free will, obviously for having Mamta 2013.10.03 15:44 I attest to the accuracy and integrity of this document Chandigarh CRA NO.D-564-DB OF 2013 8 consensual sex with them. If the appellant no.1 would have been below the age of 16 years of age, in that event, it could be held that her consent was immaterial. Now, when she was above the age of 16 years, she was free to have consensual sex. Respondents nos. 2 and 3 could be held guilty for abduction and seduction of appellant no.1, if they had performed sexual intercourse with appellant no.1 against her wish. The facts and circumstances of the case indicate that she was a consenting party and she left her house at her own will and since she performed consensual sex with respondents nos. 2 and 3, it cannot be held that it were respondents nos. 2 and 3 who had taken her away from the lawful custody of her parents.
Respondents nos. 2 and 3 could be held guilty for commission of offence punishable under Sections 363 IPC and 366-A IPC, if they had abducted the appellant no.1 for seduction. In this case, no force was exercised upon appellant no.1 and it was she who had consensual sex with respondents nos. 2 and 3. So, she went with them at her own and consent could not be accorded to her by her parents for this purpose.
Reliance can be placed upon Sagar Kumar v. State of Haryana;; 2011 (1) RCR (Criminal) 620; passed by this Court, Haryana wherein, the prosecutrix was 18 years of age at the time of occurrence and she was consenting party and it was held that Mamta 2013.10.03 15:44 I attest to the accuracy and integrity of this document Chandigarh CRA NO.D-564-DB OF 2013 9 offences under Sections 363, 366 and 376 IPC are not made out against the appellant.
Reliance can also be placed upon State of Punjab v. Suresh; 2007 (4) CCR 310; passed by this Court, wherein, the age of prosecutrix was more than 16 years at the time of alleged occurrence. There was nothing on the record to show that she was ever threatened with death, injury or dire consequences in case of her refusal. It was held that during journey, ample opportunities might have come, where it may have been possible for prosecutrix to raise hue and cry, if she was being detained forcibly. She never tried to narrate her plight to companion passengers or contact police officials, who might be available at bus stand or railway station during journey. It was held that the prosecution has failed to prove guilt of accused and no case was made out to interfere in findings, recorded by the trial Court.
Reliance can be placed upon Bhagwant Singh v. State of Punjab; 2004 (1) RCR (Criminal) 719; passed by this Court, wherein, the prosecutrix was 17 years of age. There was allegation of kidnapping against the accused. There was no evidence that prosecutrix was forced to have intercourse with another person. Offence under Section 366-A IPC was not made out. It was held that there was allegation of kidnapping, but there was no evidence that the kidnapping was on threat of murder. Accused had no deadly weapon with him. Mamta 2013.10.03 15:44 I attest to the accuracy and integrity of this document Chandigarh CRA NO.D-564-DB OF 2013 10 Evidence showed that she had love affair with accused. It was held that the prosecutrix was consenting party.
Madras,, AIR 1965 SC 942;
In S. Varadarajan v. State of Madras it was held by the Hon'ble Supreme Court of India that taking or enticing a minor out of the keeping of a lawful guardian is an essential ingredient of the offence of kidnapping. However,when the girl (who though a minor had attained the age of discretion and is on the verge of attaining majority and is a senior college student) and from the house of the relative of the father where she is kept, herself telephones the accused to meet her at a certain place, and goes there to meet him and finding him waiting with his car gets into that car of her own accord, and the accused takes her to various places and ultimately to the Sub-Registrar's Office, where they get an agreement to marry registered, and there is no suggestion that this was done by force or blandishment or anything like that on the part of the accused, but it is clear from the evidence that the insistence of marriage came from her side, the accused by complying with her wishes can by no stretch of imagination be said to have "taken" her out of the keeping of her lawful guardianship, that is the father in the said case.
The Himachal Pradesh High Court in Kamal Singh v. H.P.,, 1985 (1) Crimes 151 considered the case The State of H.P. where there was some intimacy between prosecutrix and the Mamta 2013.10.03 15:44 I attest to the accuracy and integrity of this document Chandigarh CRA NO.D-564-DB OF 2013 11 appellant in the said case and the prosecutrix was willing and active agent in her enticement and she accompanied the accused of her own accord, while her parents were asleep, it was held that even though the prosecutrix was below 18 years would not be material. The accused, therein, was acquitted.
The Hon'ble Supreme Court of India in Allarakha K. Gujarat,, 2002 (1) RCR (Criminal) 748, held Mansuri v. State of Gujarat that wherein, in a case, two views are possible, the one which favours the accused has to be adopted by the Court.
Reliance was also placed upon this judgment, by this Suresh;; 2007 (4) CCR 310; wherein, Court in State of Punjab v. Suresh the judgment of acquittal of the accused passed by the trial Court was upheld on the ground that the age of the prosecutrix was more than 16 years at the time of alleged occurrence. There was nothing on the record to show that she was ever threatened with death, injury or dire consequences in case of her refusal. It was also held that during journey ample opportunities might have come, where it may have been possible for prosecutrix to raise hue and cry, if she was being detained forcibly. It was held that she never tried to narrate her plight to companion passengers or contact police officials, who might be available at Bus Stand or Railway Station during journey. It was held that no case is made out to interfere in findings, recorded by the learned trial Court. Mamta 2013.10.03 15:44 I attest to the accuracy and integrity of this document Chandigarh CRA NO.D-564-DB OF 2013 12
In the case of State of Punjab v. Suresh (supra), Singh;;
reliance was placed upon State of Punjab v. Hansa Singh 2001 (1) RCR (Criminal) 775; wherein, while dealing with an appeal against acquittal, it was opined as under: -
"We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991 (1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal was perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a difference view, could not be a reason calling for interference."
This Court in State of Haryana v. Shashi Kant @ Bam Lambu;; 2010 (1) RCR (Criminal) 338; upheld the Bam @ Lambu acquittal of the accused, as the prosecutrix went to the house of the respondent in village Siwah and from there, she went to Bihar. On the way, she never made any grievance to any one. Both of them moved about freely, in public, by public transport before being intercepted at Delhi. It was held that the conduct of the prosecutrix voluminously speaks for itself that she accompanied the respondent on her own and had consensual intercourse with him.
Mamta 2013.10.03 15:44 I attest to the accuracy and integrity of this document Chandigarh CRA NO.D-564-DB OF 2013 13
The Hon'ble Supreme Court of India in Kuldeep K. Bihar;; 1998 (3) RCR (Criminal) 799;
Mahato v. State of Bihar acquitted the accused of offence under Section 376 IPC, on the ground that accused and prosecutrix lived nearby. Prosecutrix stated that accused met her in bazar, forced her to sit in tempo at point of dagger and took her to a village, where she was raped. There were no injuries on the body or private parts of the prosecutrix. She was not put in physical restraint in the house in village. She had opportunity to run away and could take help of neighbours. It was held that the prosecutrix was a consenting party and accused was acquitted of the offences under Sections 376 and 366 IPC.
The Hon'ble Supreme Court of India in Alamelu and Police;; 2011 AIR another v. State represented by Inspector of Police (SC) 715; acquitted the appellants, in case under Sections 376, 366 and 363 IPC, on the ground that prosecutrix stayed away with the accused for six days, but did not make any complaint on so many occasions, when she had the opportunity to do so. She had also opportunities to run away, but she did not. Prosecution failed to prove that prosecutrix was minor at the time of abduction.
Haryana,, 2005 The case of Keshar Singh v. State of Haryana (4) Criminal Court Cases 269 (P&H) is inconsequential to the appellants, as in this case, prosecutrix was below 16 years of age, but in the case in hand, the appellant no.1 (prosecutrix) Mamta 2013.10.03 15:44 I attest to the accuracy and integrity of this document Chandigarh CRA NO.D-564-DB OF 2013 14 was 17 years and 4 months old at the time of alleged occurrence and, therefore, she was free to have consensual sex with respondents Nos. 2 and 3 and when her parents dissuaded her, she eloped with them at her own volition, as her parents, who were her lawful guardians, obviously could not accord such permission to her to accompany respondents Nos.2 and 3 for having consensual sex with them.
Thus, the principle laid down in the aforementioned judgments is favourable to respondents Nos.2 and 3. It follows that the appellant no.1 herself was a consenting party and, therefore, the learned trial Court rightly acquitted the respondents Nos.2 and 3 by according them benefit of doubt, vide impugned judgment dated 26.02.2013 of all offences.
There is, thus, no illegality or impropriety in the impugned judgment dated 26.02.2013, that is, hereby, upheld and affirmed.
Resultantly, the appeal being devoid of merit ought to be and is, hereby, dismissed.
(S.S.SARON) (S.P.BANGARH)
JUDGE JUDGE
24.09.2013
mamta
1. Whether the Reporters of the Local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporters or? Yes
3. Whether the judgment should be reported in the digest? Yes Mamta 2013.10.03 15:44 I attest to the accuracy and integrity of this document Chandigarh