Punjab-Haryana High Court
Pinder Singh vs The State Of Punjab on 6 March, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
CRA-S-1446-SB-2003 1
IN THE PUNJAB & HARYANA HIGH COURT AT CHANDIGARH
CRA-S-1446-SB-2003
Date of decision : 06.03.2014
Pinder Singh
... Appellant
Versus
The State of Punjab
... Respondent
CORAM: HON'BLE MRS. JUSTICE REKHA MITTAL
Present: Mr.Nitin Jain, Amicus Curiae
for the appellant.
Mr.Amarinder Singh Klar, AAG, Punjab.
REKHA MITTAL, J.(ORAL)
The present appeal has been directed against judgment and order dated 20/22.05.2003 passed by the Additional Sessions Judge, Barnala whereby the accused-appellant has been convicted and sentenced for commission of offence punishable under Sections 366 and 376 of the Indian Penal Code (for brevity "IPC") extracted hereinbelow:-
Name of Under Section Sentence Fine(in `) In
Convict (R.I.) Default
(R.I.)
Pinder Singh 366 IPC 5 years 1000/- 1 month
376 IPC 7 years 1000/- 1 month
Mohinder Singh, father of the prosecutrix (name kept secret) resident of Maur Nabha, made a statement that on 10.07.2002, in absence of the complainant, Amarjit Kaur his wife and Jita Singh his son, their daughter went missing from the house and they came to know about the Davinder Kumar 2014.03.20 16:11 I attest to the accuracy and integrity of this document CRA-S-1446-SB-2003 2 same when they came back to the house at about 8 PM. A frantic search was made in the house of their relatives but she was not found. On 12.07.2002 Gulab Singh and Soma Singh residents of Maur Nabha told Mohinder Singh and his wife that on that day, they had gone to Barnala in connection with domestic work and were waiting for a bus to come back to the village when the prosecutrix and Pinder Singh were found standing at the counter of Sangrur in the bus stand. When they made an enquiry as to why they were roaming around, they boarded the bus for Sangrur. The statement suffered by Mohinder Singh in the presence of Gulab Singh led to registration of formal FIR Ex.PE/2.
The search for the accused from 13.07.2002 to 21.07.2002 remained unsuccessful. On 22.07.2002, SI Paramjit Singh along with a policy party was present on the bridge of canal in the area of Baloka when accused Pinder Singh along with the prosecutrix was seen coming from the side of village Sandhu Kalan through unmetalled path. After making due inquiry, Pinder Singh was arrested in the case. The statement of the prosecutrix under Section 161 of the Code was recorded. She stated that about 12/13 days before, when she was alone in her house at village Maur Nabha, at about 5 PM, Pinder Singh living in their neighbourhood came to their house and told her that her mother was ill and had been taken to Civil Hospital, Tapa. She was taken along with by Pinder Singh and they started for Tapa. Pinder Singh, on the pretext of searching her mother, roamed around with her. When her mother was not found at Tapa, he said that she might have been taken to Barnala. She being a simpleton young girl accompanied her to Barnala and then as per instructions of Pinder Singh, Davinder Kumar 2014.03.20 16:11 I attest to the accuracy and integrity of this document CRA-S-1446-SB-2003 3 they boarded the train for Delhi and alighted there. At Delhi, he (Pinder Singh) committed sexual intercourse with her continuously for a number of days, under threat. She was brought to Bhadaur as money with Pinder Singh had finished. She was threatened that she should not narrate the incident to anybody and for that reason she remained quite. On the statement of the prosecutrix, offence under Section 376 IPC was added.
The prosecutrix was got medically examined on the next day. The medico legal report of the prosecutrix was taken into possession. Three vials containing swabs with seal bearing impression "SG" of the doctor were taken into possession vide recovery memo Ex.PD. The case property was deposited with MHC. After completion of investigation and receipt of the report of Chemical Analyst, report under Section 173 of the Code was submitted for commencement of trial.
The case was committed to the Court of Sessions as offence under Section 366-A and 376 IPC being exclusively triable by the said Court. The accused was charged for commission of offence under Sections 363, 366-A, 376 IPC to which he pleaded not guilty and claimed trial.
To bring home guilt to the accused, the prosecution examined as many as 8 witnesses namely Dr.Sunita Goyal, Medical Officer, Civil Hospital, Barnala PW1, ASI Ajaib Singh PW2, Sub Inspector Paramjit Singh, Investigating Officer PW3, Dr. Suresh Kumar, Medical Officer, Civil Hospital, Barnala PW4, the prosecutrix PW5, Mohinder Singh complainant PW6, Gulab Singh PW7, Dr.Karam Singh, Radiologist PW8. The prosecution also tendered into evidence report of the Forensic Science Laboratory Ex.PO.
Davinder Kumar2014.03.20 16:11 I attest to the accuracy and integrity of this document CRA-S-1446-SB-2003 4
On the evidence of the prosecution being closed, the accused was examined under Section 313 of the Code and he denied all the incriminating circumstances appearing in evidence against him and raised a plea of false implication. He has stated that in fact the prosecutrix was suspected to have illicit relations with him and some other people. She left her house without informing her parents to some undisclosed place. On the basis of suspicion, he was arrested and tortured by the police. She was arrested at Faridkot and from where she was brought to P.S.Sehna. At the time of torture to him, he had threatened the police to file a complaint against them. The police got annoyed and after recovery of prosecutrix, he was falsely involved in this case. However, he did not examine any witness in defence.
The learned trial Court, in view of evidence adduced by the prosecution and on consideration of submissions made by counsel for the parties, recorded its conclusion that the prosecution has proved its case beyond a shadow of reasonable doubt, the accused is guilty of committing offence punishable under Sections 366 and 376 IPC and accordingly convicted and sentenced him, as detailed hereinbefore.
Feeling aggrieved by the judgment passed by the learned trial Court, the present appeal has been preferred by convict Pinder Singh.
The appeal was admitted on October 09, 2003. During pendency of appeal, the substantive sentence imposed on the appellant was suspended vide order passed on February 11, 2005 and the appellant remained in custody for a period of about 2 years and 6 months.
Mr. Nitin Jain, Advocate is appointed as Amicus Curiae to Davinder Kumar 2014.03.20 16:11 I attest to the accuracy and integrity of this document CRA-S-1446-SB-2003 5 assist the Court, who was earlier appointed as a counsel by the Legal Services Authority but Power of Attorney in his favour was not available for filing.
Counsel for the appellant submits that the case of the prosecution is not free from lacunae, embellishments and improvements of which the benefit is liable to be extended to the appellant. To substantiate his contention, he has made few submissions on different counts.
Counsel would submit that as per allegations, the prosecutrix went missing from her house on 10.07.2002 but the FIR has been lodged on 12.07.2002 and there is no explanation for delay in lodging the FIR.
It is submitted that the prosecution has failed to lead cogent and convincing evidence on record to prove that the prosecutrix was less than 18 years of age at the time of occurrence and the learned trial Court has held that she was more than 16 years of age. It is further argued that the prosecutrix herself was a consenting party to sexual intercourse which exonerates the appellant of his liability for charge under Section 376 IPC.
Counsel has raised another plea that the appellant has been convicted of offence under Section 366 IPC in the absence of any charge for the said offence. Further dilating, it is argued that the accused was charged for commission of offence under Section 366-A IPC and as offence under Section 366 IPC is not a minor offence vis-a-vis offence under Section 366- A IPC, the accused cannot be convicted for the said offence. In support of his contention, he has relied upon the judgment of Madras High Court in Suramani and others Vs. State by Inspector of Police, 2011(4) RCR (Criminal) 679.
Davinder Kumar 2014.03.20 16:11 I attest to the accuracy and integrity of this document CRA-S-1446-SB-2003 6
Counsel, in support of his contention that the prosecutrix herself was a consenting party has argued that in medical examination of the prosecutrix, no injury was found on her person. The prosecutrix travelled from one place to another using public transport but she did not raise any alarm to express her grievance against the accused or facilitate her escape from his custody. To bring home his contention, counsel has carried me through the deposition of the prosecutrix particularly the facts elicited during her cross-examination.
Counsel for the State, on the contrary, while refuting the contentions of counsel for the appellant has supported the judgment passed by the learned trial Court. It is argued that the learned trial Court has adverted to all the factual and legal issues involved in the case and on a detailed consideration of the matter has rightly held the appellant guilty of the offences for which he has been convicted and sentenced. He has prayed that the judgment passed by the learned trial Court is liable to be affirmed and the appellant be directed to suffer the remaining sentence awarded by the trial Court.
I have heard counsel for the parties and perused the records. The submission made by counsel for the appellant in regard to delay in lodging the FIR sans merit and deserves outright rejection. Firstly, delay in lodging the FIR itself cannot be a ground to discard the prosecution case. The delay certainly puts the Court at guard to be more circumspect in evaluating the evidence to rule out possibility of false implication. In cases involving sexual assault, and that too upon a young unmarried girl, it is highly improbable that the prosecutrix and her parents would join hands to Davinder Kumar 2014.03.20 16:11 I attest to the accuracy and integrity of this document CRA-S-1446-SB-2003 7 falsely implicate an accused at the risk of damaging the matrimonial prospect of the girl.
Much stress has been laid by counsel that the prosecutrix herself was a consenting party to sexual relationship between them.
To adjudicate this issue, the two questions need to be answered
1) what was the age of the prosecutrix at the time of occurrence;
2) whether the prosecutrix was a consenting party to sexual intercourse.
As has been noticed earlier, learned trial Court has held that the prosecutrix was more than 16 years of age at the time of occurrence. Therefore, if she is proved to be a consenting party, the accused would escape his liability for offence under Section 376 IPC.
There is no documentary evidence on record in regard to age of the prosecutrix. The prosecution has relied upon the testimony of the prosecutrix, Mohinder Singh her father and radiological examination of the prosecutrix in view of testimony of Dr.Karam Singh PW8. The prosecutrix has stated her age to be 15 years while giving her particulars as PW5. During her cross-examination, she has deposed in the following terms:- "I do not know as to in which year I was born. I do not know as to whether I was born in 1980. I was having menstruation for the last 8 to 10 years. My brother is one year old to me. He is a cultivator and is also doing labour work. It is incorrect that his age is 25 years. I do not know as to what is his age. I do not know as to since when he had been doing labour work. I have never been doing any labour work. It is incorrect to suggest that my age is 23 years." The prosecutrix was examined on 29.03.2003 and by that time Davinder Kumar 2014.03.20 16:11 I attest to the accuracy and integrity of this document CRA-S-1446-SB-2003 8 she had already performed marriage with one Vijay @ Vija as admitted in the opening line of her cross-examination. In view of cross-examination of the prosecutrix, it is difficult to rely upon her testimony to hold that she was 15 years old in March, 2003.
Mohinder Singh, her father, stated his age to be 50 years, deposed that the prosecutrix is aged about 15/16 years. Mohinder Singh is admittedly working as a labourer. During cross-examination, the evidence in regard to age of the prosecutrix reads hereunder:-
"That I was married at the age of 17/18 years, two children were born to my wife from my lions. My son was born one year after my marriage.------- prosecutrix my daughter was born one year after the birth of my son (Voluntarily stated that my first wife died). -------(prosecutrix) was born to Amarjit Kaur, my second wife from my loins. The difference of age between my son and ------ my daughter is two years.
Mohinder Singh has not cleared the mist nor stated as to when he was married with Amarjit Kaur, mother of the prosecutrix. He has not deposed when his first wife passed away. The statement of Mohinder Singh does not lead us anywhere to prove the age of the prosecutrix.
Dr.Karam Singh PW8 radiologically examined the prosecutrix to ascertain her probable age. The witness, on the basis of radiological examination, gave the opinion that she was aged between 17 to 19 years. There is no dispute about the settled position that the opinion regarding age on the basis of radiological examination admits variation of 2 years on either side. Equally settled is that benefit of variation of 2 years towards upper side would go in favour of the accused. Viewed from the aforesaid Davinder Kumar 2014.03.20 16:11 I attest to the accuracy and integrity of this document CRA-S-1446-SB-2003 9 discussion, it is to be held that the prosecutrix was more than 18 years at the time of occurrence.
This brings the Court to second issue, if the prosecutrix was a consenting party to sexual intercourse. The prosecutrix left her house on 10.07.2002 with accused Pinder Singh and was recovered on 22.07.2002 after about 11/12 days. As per her version, she was taken by the accused living in her neighbourhood on the pretext that her mother was ailing and admitted in a hospital at Tapa. Her mother was admittedly not found at Tapa. Thereafter, the prosecutrix was taken to Sangrur and then to Delhi via train and kept there till return journey. The prosecutrix during her cross- examination has stated that she did not see her mother at Tapa nor did she go to any place at Tapa to enquire about her mother as the accused himself went to enquire about her mother. The prosecutrix was all alone for about half an hour when the accused statedly gone to make enquiry. She did not talk to any person on the alleged pretext that the accused told her that he would kill her in case she talked to anybody. She has admitted that people were roaming around in the surrounding area when she was all alone for half an hour at Tapa. If the accused had extended threat that he would kill her in case she talked to any person, it certainly would have created an apprehension in her mind that the things are not fine and she has not been brought to Tapa in connection with illness of her mother. Later, she boarded the train with the accused. The accused purchased the ticket for travel. The distance between Sangrur and Delhi must be covered in a number of hours, may be 6 to 7 hours. The prosecutrix had an ample opportunity to disclose to the travellers in the train that she was being taken away by the accused Davinder Kumar 2014.03.20 16:11 I attest to the accuracy and integrity of this document CRA-S-1446-SB-2003 10 forcibly. They alighted from the train and went to some place for stay. She has admitted that the police was roaming around at that place but being fearful of police, she did not narrate the incident to them. It is not the plea of the prosecutrix that accused had any weapon with him. The conduct of the prosecutrix in keeping silence during half an hour's stay at Tapa, travel to Delhi and failure to approach the police despite being available speak volumes and creates a serious doubt in her version that she was taken from her house forcibly or on a false pretext. The prosecutrix and the accused stayed together in Delhi for about 10 days. During her return journey, she did not know that she was being taken back to her village. She did not express her grievance to any traveller or others available all the way from Delhi to the place where she alighted from the train. Indisputably, no injury was found on the person of the prosecutrix or the accused as per their medical examination. The non-existence of an injury on the person of the prosecutrix itself may not be sufficient to hold that she was a consenting party. However, when the facts and circumstances of the present case are examined in the light of factum of non-existence of any injury to the prosecutrix, I have no hesitation to conclude that the prosecutrix was a consenting party to sexual intercourse.
The version of the prosecution that the prosecutrix along with the accused was apprehended by a police party headed by Sub Inspector Paramjit Singh on the canal bridge in the area of Baloka gets falsified and belied in view of the facts elicited during her cross-examination. She has deposed "it is correct that at 4 AM, the police apprehended me from the railway station, Faridkot. From Faridkot, I was left at Sehna by the police. Davinder Kumar 2014.03.20 16:11 I attest to the accuracy and integrity of this document CRA-S-1446-SB-2003 11 From Sehna, the police called my father and sent me along with him. I did not talk to my father or anybody else that the accused had committed rape with me." The aforesaid statement of the prosecutrix creates a serious doubt in the story that the prosecutrix and the accused together were noticed by the investigating officer in the area of village Baloka and Pinder Singh was arrested there.
To be fair to counsel for the appellant, he has raised a submission in regard to conviction of the accused for offence under Section 366 IPC being bad in the absence of charge for the said offence. In view of discussion made hereinbefore, the accused cannot be held guilty for committing offence under Section 366 IPC and, therefore, it would be of academic interest only to decide this plea.
Perusal of charge sheet framed by the trial Court would reveal that in view of contents of the charge, the accused was charged for committing offence under Section 366 IPC but the provision has been wrongly quoted as 366-A. Once language used for framing charge gives sufficient notice to the accused of the offence he was being tried, the mere mention of a wrong provision is not sufficient to accept the contention of the accused particularly in absence of any plea that a prejudice has been caused to him.
The judgment passed by the learned trial Court holding the appellant guilty of the aforesaid offences is based upon misreading and misappreciation of evidence, therefore, can not be sustained. Resultantly, the conviction and sentence awarded by the trial Court are liable to be set aside.Davinder Kumar
2014.03.20 16:11 I attest to the accuracy and integrity of this document CRA-S-1446-SB-2003 12
For the aforesaid reasons, the appeal is allowed. The judgment of conviction and order of sentence passed by the learned trial Court are set aside. The appellant, if in custody, be released forthwith, if not required in any other case. The fine, if deposited, shall be refunded to the appellant on expiry of period of appeal.
(REKHA MITTAL) JUDGE March 06, 2014.
Davinder Kumar Davinder Kumar 2014.03.20 16:11 I attest to the accuracy and integrity of this document