Punjab-Haryana High Court
Paramjit Singh vs State Of Punjab on 10 January, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.1035-SB of 2001
Date of decision: 10th January, 2011
Paramjit Singh
... Appellant
Versus
State of Punjab
... Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Mr. Malkeet Singh Balianwali, Advocate for the appellant.
Mr. B.S. Sra, Additional AG Punjab
for the State.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Present appeal has been filed by Paramjit Singh. He was tried in case FIR No.402 dated 30.11.1998 registered at Police Station Sadar Patiala under Sections 363, 366 and 376 IPC. The Court of Additional Sessions Judge, Patiala vide its judgment dated 8th August, 2001, found him guilty of an offence punishable under Sections 366 and 376 IPC and vide a separate order of even date, sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.2,000/-, in default of payment of fine to further undergo rigorous imprisonment for six months under Section 366 IPC. A similar sentence was also awarded to the appellant under Section 376 IPC. Both the sentences were ordered to run concurrently. In the present appeal, challenge is to the conviction and sentence recorded by the trial Court.
Harbhajan Singh PW-4, father of the prosecutrix, submitted a written application Ex.PE to the In-charge of Police Post, Urban Estate, Criminal Appeal No.1035-SB of 2001 2 Patiala, wherein he stated that on 29th November, 1998 at about 10.30 a.m., both of his daughters, the prosecutrix (name withheld to protect her identity) aged 16 ½ years and the younger one aged 14 years, had gone from their house to house No.2142, Urban Estate, Patiala of Balbir Singh, JE to attend a function of their friend Taman. The youngest daughter came back to her house and told that the prosecutrix had accompanied her to take a walk on the road and at that time, one car of red colour arrived there, which was being driven by a clean-shaven man, named Happy. He made the prosecutrix sit in the car and took her away. It was stated that at about 2.00 p.m., the accused made a telephonic call to the complainant Harbhajan Singh PW-4 and disclosed that the prosecutrix was with him. The prosecutrix told her father on telephone that she had been forcibly brought. At that time, the telephone was disconnected. It was stated that the accused, who was residing in Kothi No.3089 of Urban Estate, Phase-II, Patiala, had enticed away the daughter of Harbhajan Singh complainant. The complainant kept on searching for the accused and his daughter, but since they could not be traced out, a written complaint was submitted to the police on the next day, i.e. 30th November, 1998.
The above said FIR was investigated and a report under Section 173 Cr.P.C. was submitted.
The Court of Additional Sessions Judge, Patiala framed charges against the appellant on 30.03.1999. The charge stated that on 29th November, 1998 at about 1.00 p.m., the appellant kidnapped the prosecutrix to marry her against her wishes and thus committed an offence punishable under Section 366 IPC. It was further stated that he committed rape upon the prosecutrix and thus, he committed an offence punishable under Section 376 IPC.
Criminal Appeal No.1035-SB of 2001 3
It is case of the prosecution that on 1st December, 1998, the accused and the prosecutrix were found coming on a Rickshaw towards the Urban Estate, Patiala and they were apprehended near Punjabi University, Patiala by the police in the company of father of the prosecutrix. Thereafter, custody of the prosecutrix was entrusted to her father.
The prosecutrix was medico-legally examined by Dr.Satinder Kaur PW-2. The medico-legal examination of the prosecutrix and the observations made by the doctor are required to be noticed, which read as under:
"The breast were well developed, pubic and auxiliary hair were present. There was no mark of any injury seen on any part of the body. The clothes worn by her were not torn or soiled with mud. Those clothes were not having any stain of the foreign material. On local examination I found the following:
Pubic hair were not matted. No fresh or blotted blood was present in vicinity. There was no brushing and laceration of external gentalia. Labia majora minora were developed.
On vagina examination I found the following: Vagina admitted two fingers. Size of uterous could not be made out easily."
In cross-examination, Dr. Satinder Kaur stated as under:
"I tried to find the abrasion bruises on the vaginal parts of the patient and also on the other parts and the same were also missing. It is correct that when a virgin girl or woman resists the act of rape then some marks of abrasions, bruises and scratches can occur on external genitals, abdomen, chest, neck and face."
What is required to be noticed is that vagina of the prosecutrix admitted two fingers.
Criminal Appeal No.1035-SB of 2001 4
On 2nd December, 1998, Dr.Varinder Singh PW-3 medico legally examined the accused and stated that there was nothing to suggest that the accused was incapable of performing sexual intercourse.
Dr.Narinder Kaur Radiologist, PW-7 had conducted ossification test upon the prosecutrix and had opined that the age of the prosecutrix was between 15 ½ to 19 years. In her cross-examination, she stated that possibility that the prosecutrix was aged 20 years, cannot be ruled out.
Harbhajan Singh, father of the prosecutrix, appeared as PW-4 and reiterated as to what was stated in the FIR. The prosecutrix herself appeared as PW-6. She stated that on 29th November, 1998, she along with her sister, had gone to the house of her friend Taman in Urban Estate, Phase-II, Patiala to attend a Path ceremony. She stated that she along with her sister was taking stroll on the road, when the accused came in a motor car. He opened the window of the car and pulled the prosecutrix inside. She further stated that the accused forcibly took her to his house situated in Urban Estate, Patiala and there he committed rape upon her. The accused told the prosecutrix that he wanted to marry her forcibly and with this intention, he had taken the prosecutrix to his house situated at Faridkot. At Faridkot, the accused was also telling the prosecutrix to marry her. From Faridkot, he brought back the prosecutrix to Patiala and from bus stand, he took her in a rickshaw. When they were on the bye-pass of Patiala city, father of the prosecutrix, along with her maternal uncle accompanied by the police were present there and the accused was apprehended.
Having noticed the broad features of the case, it will be necessary to give resume of other prosecution witnesses.
Savinder Singh PW-1 stated that the accused had taken two rooms and a lawn on rent at the rate of Rs.2,000/- per month. Criminal Appeal No.1035-SB of 2001 5
HC Gurmej Singh PW-5 had accompanied the prosecutrix on 1st December, 1998 to the doctor for her medico legal examination. Constable Faqir Chand PW-8 and HC Sahib Singh PW-10 tendered their affidavits Ex.PJ and Ex.PK/1 respectively, to prove link evidence.
ASI Bakshish Singh PW-12 was the Investigating Officer. He was confronted with his case diary, wherein it was recorded that accused and the prosecutrix had traveled from Faridkot to Patiala in a train. A specific suggestion was put to this witness that the accused had supplied him some telephone slips, greeting cards and letters. This suggestion was denied by the Investigating Officer. SI William Jeji PW-13 had partly investigated the case and deposed regarding the same.
Indresh Khanna, Draftsman PW-9 proved the scaled site plan Ex.PK.
Manmeet Kaur, sister of the prosecutrix, appeared as PW-11 and stated that the accused was all alone in his car, when he had taken away her sister along.
Thereafter, statement of the accused was recorded under Section 313 Cr.P.C. and all incriminating evidence was put to him. He denied the same and gave the following version:
"(Prosecutrix) became close to me in May, 1998 and wanted to marry me with her own sweet will. She used to visit my room No.3089, Urban Estate, Phase-II, Patiala all alone in the presence of Surjit Singh, Manvir Singh, Sukhbir Singh, Balwinder Singh, Rinku and Mahashya. She used to tell me that her parents are not ready to marry her with me as I was clean-shaven and smoker. On 29.11.1998 she of her own consent came to my room and compelled me to take her to Faridkot as she had left her parental house. From Faridkot she rang up to her parents from BSF PCO STD Booth, Sector HQ BSF Faridkot, and certificate issued by PCO holder/Incharge is Ex.D3. Telephone calls were made in my presence and also in the presence of my parents including Criminal Appeal No.1035-SB of 2001 6 my brother and sister. I was arrested from Faridkot and a false case was registered at Patiala in connivance with Attinderpal Singh, Ex-MP, Patiala and Jagjit Singh, SP Nasik who is relative of the complainant party. Attinderpal Singh was interfering with the proceedings. As such application Ex.D4 was filed in the Court of Addl. Chief Judicial Magistrate, Patiala by my father Bikkar Singh who has since died. The car was produced by my father before the Investigating Officer after the order passed by the Court. (Prosecutrix) became vindictive towards me when she came to know that I belong to Scheduled caste community and due to this fact she has deposed falsely against me."
In defence, Sukhdeep Singh appeared as DW-1 and stated that he was also residing in House No.3089 of Urban Estate, Phase-II, Patiala and the prosecutrix used to visit the accused. Brij Kumar Singh DW-2 was in-charge of Public Call Office (PCO). He proved the PCO call record. The accused intended to say that from Faridkot, a telephone call was made to parental house of the prosecutrix. Accused himself appeared as DW-3 and reiterated as to what was stated by him in his statement recorded under Section 313 Cr.P.C.
The accused, while appearing as a defence witness, had admitted that the prosecutrix had accompanied him to Faridkot. He had pleaded the case of a love affair and had further stated that once father of the prosecutrix came to know that the accused belonged to Scheduled Caste community, he became hostile to the proposal of marriage. The accused further gave the route, on which he along with the prosecutrix had traveled from Patiala to Faridkot.
According to counsel for the appellant, the distance between Patiala to Faridkot is about 200 kilometers. The accused further sated in his statement that there was exchange of greeting cards and letters Criminal Appeal No.1035-SB of 2001 7 between him and the prosecutrix, and the same were handed over to the Investigating Officer.
Mr. Malkeet Singh Balianwali, Advocate, appearing on behalf of the appellant, has stated that there was a love affair between the accused and the prosecutrix. After the prosecutrix had eloped with the accused, at some point of time, parents of the prosecutrix were agreeable to the marriage, but once they learnt that the accused-appellant is a Scheduled Caste, they refused to accept the marriage. Learned counsel has stated that in the present case, no statement of the prosecutrix was recorded under Section 164 Cr.P.C. She was examined in the Court in the months of May, July and October, 1999 and there was a sufficient time for her parents to prevail upon her to depose against the appellant.
Mr. B.S. Sra, Additional AG Punjab, appearing on behalf of the State, has submitted that in the present case, the accused had not projected before any authority that the prosecutrix had herself accompanied him. Counsel for the State has further submitted that even otherwise, the prosecutrix was less than 18 years of age.
In the complaint Ex.PE, father of the prosecutrix had given her age as 16 ½ years. The prosecution has also relied upon All India Secondary School Examination Certificate issued by the Central Board of School Education Ex.PP, wherein age of the prosecutrix recorded is 5th May, 1982. Dr. Narinder Kaur Radiologist PW-7 had conducted ossification test upon the prosecutrix and determined her age to be between 15 ½ and 19 years. Thus, it is conclusively proved that the prosecutrix was aged more than 16 years but less than 18 years on the day of occurrence. This finding is returned by this Court also taking into consideration the certificate Ex.D1 relied upon by the defence, wherein date of birth of the prosecutrix recorded is 6th January, 1981. Criminal Appeal No.1035-SB of 2001 8
Once this Court has held that the prosecutrix was above the age of 16 years but less than 18 years, it will be worthwhile to note the following portion of the cross-examination of the prosecutrix:
"I was sitting on the front seat of the car. From bus stand to Urban Estate the distance is about 4 kms. It is correct that policemen stand at Saifabadi Chowk as well as at the crossing known as Battianwala Chowk. It is correct that after crossing the said chowk, on one side there is bus stand and on the opposite side there is Railway Station. We went through Patiala. The accused had taken me through some other road, from the Urban Estate but from Urban Estate came through main Patiala-Rajpura road. The car was Maruti car. I have boarded the Maruti car many times. I was not tied with anything in the car. We went from Bus Stand to Mall Road, Sheranwala Gate and then to Phohara Chowk and then to Sangrur road. It is correct that at the crossing of Sheranwala Gate there are police persons present. I did not care if any police post is there near Phohara Chowk. It is correct that Phohara Chowk and Rajindra Hospital area is a crowded area which comes on Patiala-Sangrur road. We went through Bhawanigarh but I do not know the names of other cities falling on the way. We traveled for 4/5 hours from Patiala for reaching Faridkot and we did not stop anywhere on the way. It is correct that Police Station Sadar Patiala falls on the Patiala-Rajpura road."
This Court has to take into consideration the explanation given by the prosecutrix that she did not raise any alarm because she was scared, with a pinch of salt. She had also not raised any hue and cry, when she accompanied the accused to his residence at Faridkot. At night, she stayed at Faridkot. It has been recorded in the case diary by the Investigating Officer that from Faridkot, both of them had traveled back to Patiala in a train and from the railway station, they were coming in an auto-rickshaw, when they were apprehended.
Criminal Appeal No.1035-SB of 2001 9
In the present case, the accused had mustered courage to appear in the witness box and state that he was having a love affair with the prosecutrix and both of them intended to marry each other. It is stated that the marriage proposal could not get sanction of parents of the prosecutrix, as the accused belonged to Scheduled Caste community. This Court has to consider the conduct of the prosecutrix as she traveled through many places, which were thickly populated. The prosecutrix had an opportunity at public places and in the public transport also, to inform the co-travelers regarding conduct of the accused. But she had not done so. Furthermore, she had made no protest. In the context of this conduct of the prosecutrix, this Court cannot ignore the medical evidence. No external mark of injury was found on the prosecutrix. There was neither any scratch nor abrasion or bruise on her person. She had offered no resistance. Thus, all these circumstances are sufficient to infer that the prosecutrix was a consenting party to the sexual intercourse. Hence, no offence of rape is made out and the appellant is hereby acquitted of the charge under Section 376 IPC.
Having held so, this Court has to examine as to whether any offence punishable under Section 366 IPC has been committed by the appellant or not?
Admittedly, the prosecutrix was less than 18 years of age. She was taken away from the lawful custody of her parents on the pretext of solemnizing marriage. Thus, the appellant is guilty of an offence punishable under Section 366 IPC. Occurrence, in the present case, had taken place in the year 1998. A period of more than 12 years has elapsed. The accused was also in his youth. This Court has also held that the prosecutrix had accompanied the accused, as there was a love affair between the prosecutrix and the accused. Thus, this Court is of the opinion that ends of justice will be fully met in case sentence awarded to Criminal Appeal No.1035-SB of 2001 10 the appellant under Section 366 IPC is reduced from ten years to three years rigorous imprisonment. However, sentence of fine and default clause is maintained.
With the observations made above, present appeal is disposed of.
[KANWALJIT SINGH AHLUWALIA] JUDGE January 10, 2011 rps