Punjab-Haryana High Court
Gurmit Singh @ Tony vs State Of Punjab on 16 September, 2011
Author: Jora Singh
Bench: Jora Singh
CRA-S-498-SB of 2010 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-498-SB of 2010
Date of decision: 16.09.2011
Gurmit Singh @ Tony
........ Appellant
Versus
State of Punjab
........ Respondent
CORAM: HON'BLE MR. JUSTICE JORA SINGH
PRESENT: Mr. A.S. Cheema, Advocate, for the appellant.
Mr. Jaspreet Singh, AAG, Punjab.
JORA SINGH, J.
Gurmit Singh @ Tony-appellant, preferred this appeal to impugn the judgment of conviction dated 5.6.2009 and order of sentence dated 6.6.2009, rendered by the learned Sessions Judge, Mansa, in Sessions Case No. 37 dated 30.8.2007, arising out of FIR No. 107 dated 7.6.2007, registered under Sections 363/366-A/376 of the Indian Penal Code (IPC-for short) at Police Station City, Mansa.
By the said judgment, he was convicted under Sections 363/366/376 IPC and was sentenced as under:
1. Under Section 363 IPC To undergo rigorous imprisonment for a period of three years and to pay a fine of ` 1000/- and in default of payment of fine to further undergo rigorous CRA-S-498-SB of 2010 -2- imprisonment for a period of one month.
2. Under Section 366 IPC To undergo rigorous imprisonment for a period of three years and to pay a fine of ` 1000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one month.
3. Under Section 376 IPC To undergo rigorous imprisonment for a period of seven years and to pay a fine of ` 3000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of three months.
All the sentences were ordered to run concurrently.
Prosecution story, in brief, is that on 7.6.2007, police party headed by SI Suraj Bhan, while on patrol duty was present near Baran Hattan Chowk, Mansa where complainant Bhura Singh accompanied by Nazar Singh got recorded his statement to the effect that he has three children namely Sukhdev Singh, Sarabjit Kaur and the prosecutrix. On 4.6.2007, he had gone to his ancestral village Veeruwala Gura (Haryana). His son Sukhdev Singh, had gone to the workshop for his job as usual. In the evening he came back then came to know that his neighbour of old house namely Gurmit Singh @ Tony-appellant S/o Karnail Singh, goldsmith by caste resident of Ward No. 20, Mansa, at about 11.00 a.m. had kidnapped the prosecutrix with an intention to marry her. An effort was made to trace the prosecutrix but she was not traceable nor they find out any clue and whereabouts of the prosecutrix and Gurmit Singh @ Tony. Statement of Bhura Singh-complainant was CRA-S-498-SB of 2010 -3- recorded and after making endorsement, the same was sent to the police station on the basis of which formal FIR was recorded. During investigation, raid was conducted by the police but prosecutrix and the accused could not be traced out.
On 11.6.2007, Gurmit Singh @ Tony and the prosecutrix were arrested by the police near Mansa crossing. Statement of the prosecutrix was recorded. Allegation of the prosecutrix was that she was raped against her consent by the accused. In view of the statement of the prosecutrix, offence punishable under Section 376 IPC was added. Rough site plan of the place of recovery of the prosecutrix was prepared with its correct marginal notes. Prosecutrix and the accused were produced before the doctor and they were got medico- legally examined. After the completion of investigation, challan was presented in Court.
Offence punishable under Section 376 IPC was exclusively triable by the Court of Session then case was committed to the Court of Session, vide order dated 16.8.2007 passed by the learned Chief Judicial Magistrate , Mansa.
Appellant was charge-sheeted under Sections 363/366/376 IPC, to which he pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
PW-1 Prosecutrix appeared as her won witness and stated that she is 17½ years old. On 4.6.2007, her father and brother were not present in their house. At about 11.00 a.m. she was present alone in her house. Gurmit Singh @ Tony-appellant came and proposed to CRA-S-498-SB of 2010 -4- marry her. She was taken away by the appellant to marry her. Firstly, she was taken to Budhlada then to Delhi and from Delhi to Bombay. After 6 days on 10.6.2007, she was brought back to Maur. After that she was taken to village Tamkot. She was kept in a katcha room situated near Berri tree. During the night time, she was raped against her wish. On the next day she was brought to Mansa Crossing. Police party with her father was near Gurudwara Sahib. She along with the appellant was arrested by the police. Her statement was recorded and she was produced before the doctor for medico-legal examination. After that she was handed over to her father.
PW-2 Bhura Singh, is the complainant. He has reiterated his stand before the police as per his statement Ex. PB. Bhura Singh stated that prosecutrix was 17½ years old when she was kidnapped by the appellant.
PW-3 Dr. Sukhdev Singh, stated that on 11.6.2007 at about 4.30 p.m., he had medico-legally examined the appellant and he was found fit to perform sexual intercourse.
PW-4 Dr. Navjot Kaur, stated that on 11.6.2007, at 5.20 p.m. she had medico-legally examined the prosecutrix aged about 18 years and observed as under:
"There was history of sexual assault since 4th June, 2007. Patient was conscious, cooperative, moderately build and nourished. Her PB was 106/70 and pulse rate was 80 per minute. There were no external marks of injury on any part of her body. Axillary hair were well developed. Breast were well CRA-S-498-SB of 2010 -5- developed. Nipple and areola were well developed and were light brown in colour. There were no scratch marks.
Examination of external genitalia:- There were no external marks of injuries. External genitalia were well developed. Pubic hair were well developed and these were cut and sent for chemical examination.
On PV examination vagina admitted two fingers
easily. There was no bleeding as per vagina.
Hymen was ruptured and healed. Cervix were
downward uterus were anteverted, normal in size. Vaginal swab was taken and sent for chemical examination."
PW-5 Dr. Dupinder Kumar, stated that he was the member of the board to determine the age of the prosecutrix. Prosecutrix was examined by board and after X-ray examination board opined that age of the prosecutrix is between 17 to 19 years. Ex. PE is the X-ray report and Ex. PE/1 to Ex. PE/4 are the skiagrams.
PW-6 HC Darshan Singh and PW-8 HC Karnail Singh, tendered their affidavits Ex. PF and Ex. PJ, respectively.
PW-7 Mrs. Harjit Kaur, retired Head Teacher of Government Primary School, Surgapuri, brought the summoned record and stated that Ex. PG and Ex. PG/1 are the photocopies of the application form. Ex. PH is the photocopy of the relevant register. As per entries date of birth of the prosecutrix is 25.4.1990.
PW-9 SI Suraj Bhan, is the Investigating Officer.
CRA-S-498-SB of 2010 -6-After close of the prosecution evidence, statement of the appellant under Section 313 Cr.P.C. was recorded. He denied all the allegations of the prosecution and pleaded to be innocent.
Defence version of the appellant was that prosecutrix had an affair with him. She was willing to marry him and she told him that her age is 22 years. She has election voter card Mark-A issued to her but her parents are not agreeing to this marriage. He was taken away by the prosecutrix. Prosecutrix was not raped against her wish. She was not taken to any kotha in the fields. He along with the prosecutrix was arrested from Sangrur by the Sangrur Police when they were going to solemnize the marriage at Sangrur. After their arrest intimation was given to the Mansa Police.
After hearing learned Additional Public Prosecutor for the State, learned defence counsel and from the perusal of evidence available on the file, appellant was convicted and sentenced as stated aforesaid.
I have heard learned counsel for the appellant, learned State counsel and carefully gone through the evidence available on the file.
Learned defence counsel for the appellant argued that prosecutrix had an affair with the appellant. Prosecutrix was interested to marry the appellant but parents of the prosecutrix were not agreeing . Appellant was taken away by the prosecutrix. Prosecutrix had shown the identity card issued by the Election Commission of India that she is 22 years old. Prosecutrix was not raped against her wish. Appellant along with the prosecutrix were going to Sangrur to solemnize the CRA-S-498-SB of 2010 -7- marriage when they were apprehended. Prosecutrix appeared as PW-1 and stated that she is 17½ years old but was raped against her wish. In cross-examination she admitted that appellant came to her house and induced and allured her for a decent marriage and life. He proposed to marry her but he was not of her liking. She did not raise any alarm when the appellant induced her for marriage. She had collected two suits with her. Appellant assured to arrange for other suits. Appellant was not having any spare clothes when he came to her house. They had gone to bus stand Mansa and from there they went to Budhlada. From Budhlada they had gone to Delhi by train. They had spent one night at Railway Station, Delhi. They had their meals in the town and from Delhi they had gone to Bombay via train. When the appellant fell short of money at Bombay then her ear rings were sold. She had not gone with the appellant to the shop for the purpose of sale her ear rings. Police officials were present at the Railway Station, Bombay, but no complaint was lodged with the police. At Bombay, she had requested that appellant to solemnize marriage then the appellant replied that marriage would be solemnized after reaching to his parents. Her father had a cellphone. Appellant was also having a cellphone but she did not telephoned her father from the cellphone of the appellant.
Mark-A is the photocopy of the identity card issued by the Election Commission of India. As per identity card issued by the Election Commission of India, prosecutrix was 22 years old. If Mark-A is not to be read into evidence even then prosecutrix at the time of medical examination disclosed to the doctor that she is 18 years old. While appeared as PW-1 she stated that she is 17½ years old. Father CRA-S-498-SB of 2010 -8- of the prosecutrix stated that she was 17½ years old at the time of occurrence. Board of doctors after X-ray examination of the prosecutrix opined that her age is between 17 to 19 years. There is variation of two years on either side. According to the school leaving certificate, date of birth of the prosecutrix is 25.4.1990. All this shows that prosecutrix was more than 16 years of age at the time of commission of crime. Prosecutrix was medico-legally examined by Dr. Navjot Kaur (PW-4). No external mark of injury was noticed. Vagina was admitting two fingers easily. Hymen was found ruptured and healed. There is no mark of resistance. No complaint of pain on P/V examination. From Mansa, prosecutrix was taken to Budhlada then to Delhi. From Delhi the prosecutrix with the appellant had gone to Bombay by train. Police officials were present at the railway station. One night was spent at railway station but no complaint to the police officials. When the appellant was short of money then ear rings of the prosecutrix were sold by the appellant. Prosecutrix had not gone with the appellant. In the absence of appellant when he had gone to sell the ear rings of the prosecutrix then she could easily escape. While going to Bombay by bus or train number of passengers were in the bus or train. Appellant was not armed. At Bombay, prosecutrix had requested the appellant to marry but reply of the appellant was that he is to marry the prosecutrix while coming back to his parents. All this shows that prosecutrix was the consenting party. In support of his contention learned counsel for the appellant has cited 2010 (3) RCR (Criminal) 309, "Vinod Vs. The State of Haryana"; 2010 (4) RCR (Criminal) 107, "Birkramjit Singh and another Vs. State of Punjab" and 2011 (1) RCR (Criminal) 498, CRA-S-498-SB of 2010 -9- "Alamelu and another Vs. State represented by Inspector of Police".
Learned State counsel argued that prosecutrix was 17½ years old at the time of commission of crime . Prosecutrix was kidnapped by the appellant with a view to marry her. Appellant had sexual intercourse with the prosecutrix on promise to marry her. Evidence on file was rightly scrutinized by the trial Court.
Admittedly, prosecutrix is the daughter of PW-2 Bhura Singh-complainant and as per Bhura Singh, prosecutrix was 17½ years old on 7.6.2007. Prosecutrix when appeared as PW-1 then stated that she is 17½ years old. Prosecutrix along with the appellant was apprehended by the police on 11.6.2007, while present near Mansa crossing Gurudwara Sahib. After that statement of the prosecutrix was recorded. Before the police prosecutrix stated that she is more than 16 years of age. Prosecutrix was produced before PW-4 Dr. Navjot Kaur for medical examination. Before the doctor prosecutrix disclosed that she is 18 years old. A board of doctors was constituted. Prosecutrix was X-rayed and as per ossification test age of the prosecutrix was found to be between 17 to 19 years. Possibility of variation of 2 years on either side.
PW-7 Mrs. Harjit Kaur, retired Head Teacher, Government Primary School Surgapuri, Mansa, as per record maintained by the school stated that date of birth of the prosecutrix is 25.4.1990. Ex. PG/1 and Ex. PH, are the entries of the application form and admission register. No case of the prosecution that prosecutrix was less than 16 years of age. Prosecutrix when appeared as PW-1 then suggestion CRA-S-498-SB of 2010 -10- was given to her that Mark-A is the photocopy of the voter identity card issued by the Election Commission of India. Suggestion was denied by the prosecutrix but appellant when examined under Section 313 Cr.P.C. then stated that prosecutrix was intending to marry him by stating that she is 22 years old as per voter identity card issued by the Election Commission of India. So, in view of the statements of the prosecutrix, her father, ossification test report and record maintained by the school, one thing is clear that prosecutrix was more than 16 years of age at the time of alleged kidnapping on 4.6.2007.
Next question is whether the prosecutrix had gone with the appellant on her own accord or she was forcibly taken away by the appellant and was raped against her wish?
Prosecutrix appeared as PW-1 and stated that on 4.6.2007, she was alone in her house. At about 11.00 a.m. appellant came to her house and proposed to marry her. She was induced by the appellant on the pretext of marriage. Firstly she was taken to Budhlada and then to Delhi. From Delhi she was taken to Bombay on a train and after 6 days she was brought back to Delhi. She was kept in a Katcha room where she was raped against her wish. Prosecutrix in her examination- in-chief did not state a word that she was raped at Delhi or Bombay. According to the prosecutrix, first time she was raped when she was kept in a Katcha room near Mansa crossing after brought from Bombay but in cross examination, prosecutrix stated that she was the student of Government School at Surgapuri. Appellant came to her house then induced and allured her for a decent marriage. She was requested to marry him but accused was not of her liking. She did not raise any CRA-S-498-SB of 2010 -11- alarm when appellant had induced her for marriage. She had collected two suits with her. Appellant assured to arrange for other suits. Appellant was not having any spare clothes with him. From her house she along with the appellant had gone to Bus Stand, Mansa and from there they had gone to Budhlada. From Budhlada they had gone to Delhi by train. One night was spent at Railway Station, Delhi. They had their meals in the town. From Delhi, Railway Station they had gone to Bombay by train in the evening. At Bombay appellant fell short of money then he sold her ear rings. She had not gone with the appellant to the shop for the sale of her ear rings. She remained at Railway Station, Bombay, when appellant had gone to sell her ear rings. Police officials were seen at Railway Station but she did not lodge any complaint with the police officials. No complaint to the police that appellant is not of her liking. From Maur they came to Mansa crossing by bus. Father of the appellant had a cellphone and he had telephoned the appellant with a request to come to Mansa to arrange their marriage. They were near Mansa crossing when appellant had a telephone call with his parents. They had stayed at Railway Station, Maur. When the appellant had a telephonic call with his parents then parents of the appellant requested them to reach Mansa. She was taken to Tamkot in the bus and from there she was taken to a room. At Bombay, she had requested the appellant to get the marriage solemnized but reply of the appellant was that marriage would be solemnized after reaching to his parents. Lastly, admitted that her father had a cellphone but from the cellphone of the appellant she did not make any call to her father.
CRA-S-498-SB of 2010 -12-
PW-4 Dr. Navjot Kaur, had medico-legally examined the prosecutrix and at the time of examination, no external injury was noticed on the person of the prosecutrix. On P/V examination vagina was found admitting two fingers easily. There was no bleeding. Hymen was found ruptured and healed. Doctor admitted that there was no complaint of pain on P/V examination. So, when the hymen was found ruptured and healed, vagina was admitting two fingers easily then it means that prosecutrix was habitual to sexual intercourse.
As discussed earlier, on 4.6.2007, prosecutrix was taken away by the appellant from Mansa. Prosecutrix along with the appellant firstly had gone to Bus Stand Mansa. Number of shops on the way. Nothing on the file that no one was present at bus stand or no one had met the appellant and the prosecutrix at about 11.00 a.m. while going to bus stand Mansa. From Mansa, appellant and the prosecutrix had gone to Budhlada and from Budhlada they had gone to Delhi by train. At Delhi they had stayed during night time at the railway station. No allegation that appellant was armed and threatened to eliminate if she raised an alarm.
From Delhi, prosecutrix and the appellant had gone to Bombay by train. At Railway Station, Bombay, police officials were present. When there was a shortage of payment with the appellant then with the ear rings of the prosecutrix, appellant had gone to arrange payment by selling the same. Prosecutrix had not gone with the appellant when he had gone to dispose of her ear rings. When police officials were present at the railway station and the appellant had gone to dispose of ear rings then prosecutrix could easily lodge report with CRA-S-498-SB of 2010 -13- the police officials but no complaint to any authority. From Bombay prosecutrix was brought back to Mansa. They had stayed at Railway Station, Maur. On 11.6.2007, prosecutrix along with the appellant as per story were apprehended near Mansa Crossing Gurudwara Sahib. From 4.6.2007 to 11.6.2007, prosecutrix remained with the appellant. While leaving the house, prosecutrix had collected two suits.
In Alamelu and another's case (supra) Hon'ble Supreme Court held that accused kept the prosecutrix for 6 days at different places. Prosecutrix did not make complaint to anyone nor tried to run away despite opportunities. Conviction was set aside.
In Vinod's case (supra) prosecutrix aged about 16 years accompanied the accused to various stations and performed marriage with him. Court observed that prosecutrix was mature enough to decide between her good and bad. She was neither induced or threatened by accused to accompany him and perform marriage with him. Prosecutrix was not kidnapped rather she accompanied the accused on her own accord. Accused was acquitted.
In the present case, prosecutrix stated that appellant came to her house with a proposal to marry then she was taken away by the appellant. In cross-examination she stated that she was not ready to marry the appellant. At the time of arguments on 8.8.2011, learned counsel for the appellant submitted that appellant is still ready to marry the prosecutrix. In view of the request of the learned counsel for the appellant, learned State counsel was directed to summon the parents of the prosecutrix to enquire as to whether they are ready to marry the prosecutrix with the appellant or not. On the next date i.e. on CRA-S-498-SB of 2010 -14- 17.8.2011, father of the prosecutrix was present in Court and in enquiry stated that prosecutrix was married about 3 years back and from this wedlock she has two issues. So, after marriage of the prosecutrix no question to re-marry the prosecutrix with the appellant.
In view of the statement of the prosecutrix when she stayed with the appellant from 4.6.2007 to 11.6.2007, at different stations and during this period prosecutrix did not lodge report with any one particularly when police officials were available at Railway Station and as per examination of the doctor vagina was found admitting two fingers easily and there was no external injury on the person of the prosecutrix then I am of the opinion that prosecutrix was the consenting party. When she was more than 16 years of age, appellant is not liable under Section 376 IPC.
According to the statement of PW-7 Harjit Kaur, Head Teacher of Government Primary School, Surgapuri, who brought the record maintained by the school, date of birth of the prosecutrix is 25.4.1990, that means at the time of commission of crime prosecutrix was less than 18 years of age. She was taken away by the appellant from the lawful guardianship of her parents. Appellant is liable for punishment under Sections 363/366 IPC.
In 1987 (1) RCR (Criminal) 259, "State of Haryana vs. Islam" prosecutrix eloped with accused with her own consent when accused promised to marry her but she was less than 18 years of age. Accused held guilty of kidnapping. Consent is immaterial when prosecutrix is less than 18 years of age. Protective custody of father does not come to an end even if the minor herself abandons custody of CRA-S-498-SB of 2010 -15- her parents. Minor's consent is no consent in the eyes of law.
In 2008 (4)RCR (Criminal) 53, "Angrej Singh and another vs. State of Haryana", FIR under Sections 366/376 IPC. As per school certificate prosecutrix was above 16 years. She was the consenting party to sexual intercourse. No offence under Section 376 IPC is made out but the prosecutrix was less than 18 years of age and was taken away by the accused from the lawful guardianship of her maternal aunt, offence under Section 366 IPC instead of 366-A IPC is made out. Incident was 12 years old. Sentence reduced from 5 years to 3 years under Section 366 IPC. Prosecutrix stated that she was taken away forcibly. Similar is the statement of father of the prosecutrix. When prosecutrix was less than 18 years of age then the appellant is liable under Sections 363/366 IPC.
According to the custody certificate, appellant has already undergone 3 years 7 months 27 days out of the actual sentence up to 3.5.2011. Appellant is the first offender and belongs to a poor family. Incident is dated 4.6.2007. After the present occurrence, prosecutrix has married and has two issues from this wedlock. Ends of justice would be fully met if lenient view is taken.
Keeping in view the facts and circumstances of the case, I take lenient view and direct the appellant to undergo imprisonment already undergone under Sections 363/366 IPC (3 years 7 months and 27 days). He is further directed to deposit ` 10,000/- more as fine and in default of payment of fine to further undergo rigorous imprisonment for a period of 3 months.
CRA-S-498-SB of 2010 -16-
For the reasons recorded above, appeal without merits is partly allowed with modification on the point conviction and sentence. Release warrants be issued forthwith.
September 16, 2011 ( JORA SINGH ) rishu JUDGE