Punjab-Haryana High Court
Subeg Singh And Ors vs State Of Punjab on 24 December, 2014
Crl.Appeal No.S-1063-SB-2003 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl.Appeal No.S-1063-SB-2003
Date of decision : 24.12.2014
Subeg Singh and others .....Appellant(s)
Versus
State of Punjab ....Respondent(s)
CORAM : HON'BLE MR. JUSTICE DARSHAN SINGH
1. Whether reporters of local newspapers may be allowed to
see judgment?
2. To be referred to reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Harmanjit Singh Thiara, Advocate for the appellants.
Mr. Jashanpreet Singh, AAG, Punjab.
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DARSHAN SINGH, J.
1. The present appeal has been preferred by the accused appellants mentioned above against the judgment of conviction dated 6.5.2013 vide which appellant-Subeg Singh has been held guilty and convicted for the offences punishable under Section 363, 366, 376 and 506 of the Indian Penal Code (hereinafter called 'the IPC), appellant Sarabjit Kaur has been held guilty and convicted for the offences punishable under Sections 363, 366 and 506 IPC and appellant Buta Singh has been held guilty and convicted for the offences punishable under Sections 363/366 read with Section 120-B/34 IPC and 506 IPC PUSHPINDER SAINI 2014.12.31 11:51 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.S-1063-SB-2003 2 and the order of sentence dated 7.5.2003 vide which they were sentenced as under:
Sr.No. Name of the U/S RI Fine In default of
convict payment of
fine, further
RI
1. Subeg Singh (i) 376 IPC 8 years Rs.3,000/- 6 months
(ii) 363 IPC 3 years Rs.1000/- 2 months
(ii) 366 IPC 4 years Rs.2,000/- 4 months
(iii) 506 IPC 6 months Rs.500/- 1 month
2. Sarabjit Kaur (i) 363 IPC 3 years Rs.1,000/- 2 months
(ii) 366 IPC 4 years Rs.2,000/- 4 months
(iii) 506 IPC 6 months Rs.500/- 1 month
3. Buta Singh (i) 363 read with 2 years Rs.500/- 1 month
Section 120-
B/34 IPC
(ii) 366 read
with Section 3 years Rs.1500/- 3 months
120-B/34 IPC
(iii) 506 IPC 6 months Rs.500/- 1 month
2. The legal machinery has been set into motion by PW-3 Swaran Singh, father of the prosecutrix, vide his statement Ex.PF dated 21.5.2001 recorded by PW-6 SI Dalbir Singh wherein he alleged that he is having five children. That yesterday evening, as usual their family members went to sleep in the courtyard of their house after taking the meal. That on 21.5.2001, in the morning at about 3 A.M, he got up to supply fodder to the cattle and found that the prosecutrix, his daughter aged about 14-15 years, was not present on her cot. He searched for his daughter here and there but she could not be traced. On making enquiry, he came to know that appellant-Subeg Singh was also missing from his house from the night. He has enticed away his daughter. When he was going to report the matter along with Bhag Singh, Member Panchayat SI Balbir Singh met him and recorded his statement PUSHPINDER SAINI 2014.12.31 11:51 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.S-1063-SB-2003 3 Ex.PF on the basis of which the formal FIR Ex.PF/3 was registered. On 22.5.2001, complainant-Swaran Singh made the supplementary statement alleging therein that appellant-Sarabjit Kaur and her husband Buta Singh in furtherance of their common intention have forcibly enticed away his daughter.
3. The investigation was carried out. The Investigating Officer searched for the prosecutrix and the accused. Ultimately, the prosecutrix along with accused appellant-Subeg Singh was apprehended on 29.5.2001 at Bus Stand Patran. The statement of the prosecutrix was got recorded by the Investigating Officer under Section 164 Cr.P.C wherein she levelled the allegations for having committing rape upon her by appellant-Subeg Singh and that she was forcibly taken away by appellant-Subeg Singh to Amritsar and Kurukshetra where she was forced to wear new clothes and Chura and was compelled to have the photographs. She stated that Subeg Singh had taken her away without her consent and deceitfully. On the basis of the statement of the prosecutrix, offence punishable under Section 376 IPC was added. The prosecutrix as well as accused Subeg Singh were got medically examined. Appellant Subeg Singh was arrested in this case on 29.5.2001. Appellants Sarbjit Kaur and Buta Singh was arrested on 7.6.2001 and on completion of the investigation, the report under Section 173 Cr.P.C was presented in the Court.
4. The case was committed to the Court of Sessions for trial by the learned Judicial Magistrate, Samana vide order dated 7.9.2001.
5. All the three appellants were chargesheeted for the offences PUSHPINDER SAINI 2014.12.31 11:51 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.S-1063-SB-2003 4 punishable under Sections 363, 366 and 506 read with Section 34 IPC. Appellant Subeg Singh was also chargesheeted for the offence punishable under Section 376 IPC. They were also chargesheeted for the offence punishable under Section 120-B IPC vide order dated 17.9.2001 to which they pleaded not guilty and claimed trial.
6. In order to substantiate its case, the prosecution examined as many as nine witnesses. The report of the Chemical Examiner Ex.PK was also tendered into evidence.
7. When examined under Section 313 Cr.P.C, all the three appellants pleaded that the prosecutrix was major. She performed marriage on her own accord and voluntarily with appellant Subeg Singh. Thereafter, her parents started raising demand of Rs. 50,000. The prosecutrix also joined them. The said demand was not fulfilled by the appellants that is why this false case was instituted. The parents of the prosecutrix solemnised her second marriage with Gurjit Singh son of Joginder Singh resident of village Nissing, Distt. Karnal. The prosecutrix has also got registered a case under Section 294 IPC against Surjit Singh and Gurbinder Singh of village Nissing and raised the demand of money for withdrawing that case. She is habitual of lodging false cases and demanding money. They are innocent.
8. In the defence evidence, the accused appellants examined Lakhwinder Singh resident of village Nissing as DW-1 and Harbhajan Singh also resident of village Nissing as DW-2.
9. On appreciating the evidence on record and the contentions raised by the learned counsel for the parties, the learned trial Court PUSHPINDER SAINI 2014.12.31 11:51 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.S-1063-SB-2003 5 vide impugned judgment held guilty and convicted the appellants for the offences mentioned in the opening paragraph of the judgment and they were awarded the sentence as mentioned above.
10. Aggrieved with the aforesaid judgment of conviction and order of sentence, the present appeal has been preferred.
11. I have heard Sh.Harmanjit Singh Thiara, learned counsel for the appellants and Sh.Jashanpreet Singh, learned Assistant Advocate General for the State of Punjab and have meticulously perused the record.
12. Initiating the arguments learned counsel for the appellants contended that the prosecutrix was major on the date of occurrence. The prosecution has not produced any evidence to establish that she was below 18 years of age. Even the medical evidence produced by the prosecution shows that she was above 17 years of age. There is always variation of two years in the age assessed on the basis of medical evidence and the favourable view to the accused should be taken. In this manner, the prosecutrix is proved to be a major on the date of occurrence.
13. He further contended that the prosecutrix was a consenting party. She has solemnised the marriage with appellant Subeg Singh. The story of the prosecution is highly improbable that the prosecutrix could be forcibly kidnapped in such a manner at the dead hours of the night. She has travelled with appellant Subeg Singh to Amritsar and Kurukshetra in public transport. She stayed with him for about nine days but no alarm was raised at any point of time. She also did not suffer any PUSHPINDER SAINI 2014.12.31 11:51 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.S-1063-SB-2003 6 injury on any part of her body. She went to the Gurudwara Sahib with appellant Subeg Singh in order to solemnise marriage. The floral garlands are visible in the photographs Ex.D2 to D5. Even the photographs show that the prosecutrix was in happy mood and does not seems to be under any pressure. The prosecutrix has admitted that accused was not having any weapon. The version of the prosecutrix that she was threatened and forced to accompany appellant Subeg Singh and solemnised the marriage does not inspire any confidence. Thus, he pleaded that as the prosecutrix was a consenting party so, no offence of kidnapping and rape is made out. To support his contentions, he has relied upon cases Bibhishan versus State of Maharashtra 2007(4) RCR (Criminal) 469, Jamil Ahmad versus State of Haryana 2011(3) RCR (Criminal) 385, Sagar Kumar versus State of Haryana 2011 (1) RCRA (Criminal) 620, Bhira Singh and another versus State of Haryana 2007(4) RCR (Criminal) 924, Sumer Singh versus State of Rajasthan 1998(1) RLW 204, Bhagwati and others versus State of Rajasthan 1989(2) RajasthanLR 296 and Ram Bahadur versus State of Rajasthan 2004(2) RajCriC 1083.
14. On the other hand, learned Assistant Advocate General for the State of Punjab contended that as per the statements of Swaran Singh-complainant, the father of the prosecutrix and the prosecutrix herself, she was below 16 years of age at the time of the occurrence. She was a teenager and illiterate village girl. She was threatened and forced to accompany Subeg Singh-appellant. The girl of such a age can be easily allured, so, it cannot be stated that she has voluntarily and PUSHPINDER SAINI 2014.12.31 11:51 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.S-1063-SB-2003 7 willingly accompanied appellant-Subeg Singh and had sexual relation with him. He further contended that the prosecutrix has repeatedly deposed that she could not raise alarm as she was under threat. She was even forced to pose in the photographs of the fake marriage. Thus, he pleaded that the conviction of the appellants has been rightly recorded by the learned trial Court.
15. I have duly considered the aforesaid contentions. In the cases of sexual offences, it is incumbent upon the prosecution to establish the age of the prosecutrix because the age of the prosecutrix is a vital issue to determine the culpability. In the instant case, the Investigating Officer has not collected any evidence to establish the age of the prosecutrix. PW-3 Swaran Singh has not at all deposed the age of the prosecutrix in his examination-in-chief. In the cross examination, he stated that he was married 20-22 years ago. He cannot tell the age of his children. However, he has denied the suggestion that the age of the prosecutrix is 20-21 years. Then there is a statement of the prosecutrix recorded by the learned trial Court on 10.10.2002. In her statement, she has mentioned her age to be 15/16 years. In the cross examination, she deposed that she does not know the age of her elder sister. She was married 4-5 years ago. She further stated that she does not know how many years she was younger to her elder sister. PW-5 Dr. Alkesh Arora has medico legally examined the prosecutrix on 29.5.2001. He proved the copy of the Medico Legal Report Ex.PW-5/A. In the Medico Legal Report, the age of the prosecutrix has been mentioned as 17 years. In the cross examination, this witness deposed PUSHPINDER SAINI 2014.12.31 11:51 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.S-1063-SB-2003 8 that the age mentioned in the Medico Legal Report was disclosed by the girl herself. He further deposed that she can be more than 17 or around 18 years of age.
16. PW-6 SI Balbir Singh, the Investigating Officer of the case, has also deposed that the doctor has given the opinion that age of the prosecutrix was above 17 years. Then there is a statement of PW-7 Dr. Garja Singh, Medical Officer. He deposed that on 31.5.2001, two applications were presented before him which are Ex.PW-6/B and PW- 6/C. The first application was for seeking opinion about the age of the prosecutrix. Thereupon, he has given opinion that upon medical approximation, her age was 17 years. He proved his opinion to this effect Ex.PW-6/B1. This is the evidence adduced by the prosecution and the prosecution cannot wriggle out from the evidence produced by it on the point of the age of the prosecutrix. As per statements of PW-5 Dr. Alkesh Arora, PW-6 SI Balbir Singh, the Investigating Officer of the case and PW-7 Dr. Garja Singh, the age of the prosecutrix was 17 or above 17 years. PW-7 Dr. Garja Singh has stated in his cross examination that the age of the prosecutrix may fluctuate one year on the either side.
17. As per the testimonies of the doctor witnesses, the age of the prosecutrix as per the medical approximation was 17 or above.
18. In the defence evidence, the accused have brought on record the copy of the statement of the prosecutrix dated 25.07.2002 recorded by the police of Police Station Nissing. In that statement, the prosecutrix has mentioned her age as 24/25 years.
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19. It is settled principle of law that such variation favourable to the accused should be taken into consideration. In this manner, the age of the prosecutrix comes to about 18 years or above. Thus, the prosecutrix was major at the time of the occurrence.
20. The version of the prosecutrix that she was forcibly taken away and compelled to accompany appellant-Subeg Singh is highly improbable. As per her testimony, on the night intervening 20/21.5.2001 she woke up at about 12 o'clock/1 AM to urinate. Appellant-Sarabjit Kaur was standing along with the side of the wall of their house adjoining to their house. She asked her to listen her for two minutes. She called her to her house. She honoured her desire and went to her house. She found their parents, Buta Singh and Subeg Singh. Sarabjit Kaur asked her for engagement with Subeg Singh. She refused. She further deposed that when she was about to stand up for leaving their house, all the three caught hold of her from her arms and started giving her threats. They said that if she would not volunteer for marriage she would be married forcibly with Subeg Singh. Thereafter, she deposed that all the three accused by catching her hold took her to the mettaled road. Sarbjit Kaur-appellant threatened her that if she would not go with Subeg Singh she would be done to death. Thereafter, Sarbjit Kaur and Buta Singh returned. Subeg Singh took her to the agricultural field by catching her from her arms. She kept mum being scared of. He took her 4-5 killas deep into the agricultural field and forcibly committed rape upon her. Thereafter, she deposed that she was taken by appellant- Subeg Singh to bus stand Patran. They boarded the bus went to PUSHPINDER SAINI 2014.12.31 11:51 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.S-1063-SB-2003 10 Amritsar and stayed there for 3-4 days in some village. Then they came to Kurukshetra at the house of the relative of appellant-Subeg Singh. Sarbjit Kaur and Buta Singh were also present there and they asked her to marry Subeg Singh. She refused to marry Subeg Singh. They said that if she would not marry him, her marriage would be forcibly performed with him. Thereafter, she was made to wear new clothes and Chura. Her photographs were taken with Subeg Singh. All this was done against her wishes. She was kept for 4-5 days in Kurukshetra and then they came to Bus Stand Patran where they were apprehended by the police.
21. The story putforward by the prosecutrix that she was compelled and forced to accompany Subeg and to marry him is highly improbable and unreliable. There are number of circumstances on record which show that she has voluntarily and willingly accompanied Subeg Singh. It is the admitted version of the prosecutrix that she and appellants are neighbours. Only small walls separate their courtyards. They were on visiting terms. As per the version of the prosecutrix, on the night of the occurrence she was sleeping on the bed near her parents, brother and sister. She got up at about 12 o'clock/1 AM in the night to urinate. It is alleged that appellant-Sarbjit Kaur was standing by the side of the wall. This version is highly improbable as accused Sarbjit Kaur could have no knowledge that prosecutrix will woke up and come outside of her house to urinate at that point of time. It is also not expected that accused Sarbjit Kaur will keep waiting by the side of the wall of the house to take a chance that the prosecutrix may come out of PUSHPINDER SAINI 2014.12.31 11:51 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.S-1063-SB-2003 11 her house. Thus, this version that appellant-Sarbjit Kaur was present by the side of the wall of their house and took her away to their house is not believable at all rather it shows that she voluntarily left her house in the night and went to the house of the appellants. The family members of the prosecutrix were sleeping nearby so, it is not believable that she could be taken away in this manner to her house by appellant-Sarabjit Kaur. It is also highly improbable that she will accompany Sarbjit Kaur- appellant at the dead hours of the night to her house knowing fully well that she was pressurising and compelling her to marry Subeg Singh and have sexual relation with him and her intentions were not fair. It is also not believable that appellant-Sarbjit Kaur would have chosen the dead hours of the night to persuade the prosecutrix to have engagement and marry with her brother-in-law (Devar) appellant-Subeg Singh.
22. It is also not believable that when the prosecutrix refused to obey the dictates of the appellants, she was caught hold by them and taken to the metalled road from their house. In the dead hours of the night, even a slight noise is audible but this action of the appellants did not attract any neighbourer or inhabitant of the locality. The prosecutrix has also not raised any alarm when she was being forcibly taken away by the appellants even though her house adjoins the house of the accused and her family members were present therein, in such a situation, it would have been the natural reaction of the prosecutrix to raise alarm so that their family members are attracted and she could be saved.
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23. It is also not believable that appellant-Subeg Singh could have carried the prosecutrix in the agricultural field to the distance of 4- 5 killas from the metalled road on foot by catching the prosecutrix from her arms. The prosecutrix is well built girl as per the medical evidence and could not be overpowered in this manner. The prosecutrix has alleged that appellant-Subeg Singh had broken the string of her salwar and committed rape upon her. The said broken string has not been produced before the police. Moreover, the prosecutrix had stated that she was not having any other dress. If the string of her salwar was broken, then how she could have tied the salwar around her waist.
24. Thereafter, the prosecutrix had accompanied appellant- Subeg to Bus Stand Patran on foot and by that time, it was 5 AM. It is a fact of common knowledge that in the villages, the people rises early for going to the fields to do the agriculture work. It is not believable that at such point of time, appellant-Subeg Singh could have forcibly carried the prosecutrix to the bus stand, a public place. The prosecutrix has further admitted that from Bus Stand Patran, they boarded the bus and went to Amritsar, situated at a long distance. She further admitted that they stayed in a village for 3-4 days and then, she accompanied appellant0-Subeg to Kurukshetra. This time again they travelled through the public transport but at no point of time, the prosecutrix tried to escape or raise alarm. It is not the case of the prosecutrix that she was kept confined at Amritsar or Kurukshetra where she had resided for about 8-9 days.
25. As per the admission of the prosecutrix, she wore the new PUSHPINDER SAINI 2014.12.31 11:51 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.S-1063-SB-2003 13 clothes and Chura and accompanied Subeg Singh to the Gurudwara Sahib for marriage. The learned trial Court has held that the marriage between the prosecutrix and accused Subeg Singh was not solemnised as per the Sikh rites. The validity of the marriage between the accused and the prosecutrix is not to be decided in this case but the conduct of the prosecutrix accompanying appellant-Subeg to the Gurudwara Sahib, exchanging the floral garlands and posing for the joint photograph are very significant events to show that she was a consenting party. The Gurudwara is a public place and various persons might be present their. Similarly, Amritsar and Kurukshetra are also the big cities. The presence of number of public persons and even the police officials is natural but at no point of time, she lodged any protest that she was being forcibly kept or taken away by the appellants rather she has admitted in the cross examination that she did not disclose anything to any person present at the bus stand or while travelling in the bus. It appears that the prosecutrix had returned to Partran along with appellant-Subeg when Saudagar Singh, father of appellant-Subeg Singh, came to them and told that police was making the search for them and he suggested that they should go to Patran. This is another significant fact to show that she only returned to Patran on the advice of Saudagar Singh, the father of appellant-Subeg Singh that the police was searching for them. Again, she came to Patran along with appellant-Subeg in a bus.
26. As per the medical evidence, the prosecutrix did not suffer any injury on any part of her body. In the cross examination, she PUSHPINDER SAINI 2014.12.31 11:51 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.S-1063-SB-2003 14 admitted that she did not suffer any abrasion on her body. She also admitted that the accused was not having any weapon. So, the theory of threat and criminal intimidation projected by the prosecutrix totally collapses. Thus, all the aforesaid circumstances, mentioned above, establish that the prosecutrix has willingly and voluntarily eloped with appellant-Subeg Singh. She was major at the time of the occurrence and was a consenting party.
27. In case Dharmender and others versus State of Haryana 2010 (3) RCR (Criminal) 179, the prosecutrix was 17 years of age. This Court held that she had knowledge and capacity of having full import of what she was doing. Accused was not guilty of taking her away from the keeping of the lawful guardianship and she was a consenting party. In case Vinod versus The State of Haryana 2010 (3) RCR (Criminal) 309, the prosecutrix was a minor girl of 16 years of age. It was found that she went to meet the accused and accompanied him to various places and performed marriage with him. The prosecutrix was mature enough to decide between her good and bad. This Court held that the essential ingredients constituting the offence of kidnapping was not made out. The same legal position has been reiterated in case Sukh Ram versus State of Haryana 2010 (4) RCR (Criminal) 875. In that case, the prosecutrix was 16 years and eight months of age. Reliance can also be placed upon case Anil Kumar @ Sunil versus State of Haryana 2010 (6) RCR (Criminal) 814. In case Bahadur Ali versus State of Punjab and others 2011 (3) RCR (Criminal) 380, the prosecutrix was taken to Kalka in a bus where sexual intercourse was PUSHPINDER SAINI 2014.12.31 11:51 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.S-1063-SB-2003 15 committed. This Court held that prosecutrix was a consenting party as she was taken by the accused on the bus. She had sufficient opportunity to raise hue and cry but she did not do so. Even from the medical evidence no force used against her was proved. In case Alamelu and another versus State Represented by Inspector of Police 2011 (1) RCR (Criminal) 489, the prosecutrix stayed with accused for six days. She did not make any complaint on so many occasions when she had opportunity to do so. She also had opportunity to run away but she did not. She married the accused in a temple. The Hon'ble Supreme Court held that version of the prosecution that accused forcibly abducted the prosecutrix and committed sexual intercourse with her was not believable. In case Avdesh versus The State of Haryana 2010 (4) RCR (Criminal) 154, no weapon was shown to the prosecutrix by the accused while threatening. She travelled with him in a bus. She had many occasions to raise alarm but she kept mum. There was no mark of external injury on her person. She was held to be a consenting party. The similar ratio of law has been laid down in the cases relied upon by the learned counsel for the appellants.
28. Thus, keeping in view my aforesaid discussion, there is no escape from the conclusion that the prosecutrix was a consenting party. She voluntarily and willingly eloped with appellant-Subeg Singh. The prosecution has not been able to establish that she was below 18 years of age at the time of the occurrence. Consequently, the prosecution has failed to establish its case beyond shadow of reasonable doubt against all the appellants. They deserve the benefit of doubt. PUSHPINDER SAINI 2014.12.31 11:51 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.S-1063-SB-2003 16
29. Resultantly, the present appeal is hereby allowed. The conviction of the appellants and the sentence awarded to them vide impugned judgment/order are hereby set aside. They stand acquitted of the charges.
December 24, 2014 ( DARSHAN SINGH )
ps JUDGE
PUSHPINDER SAINI
2014.12.31 11:51
I attest to the accuracy and
integrity of this document
High Court Chandigarh
Crl.Appeal No.S-1063-SB-2003 17
PUSHPINDER SAINI
2014.12.31 11:51
I attest to the accuracy and
integrity of this document
High Court Chandigarh