Punjab-Haryana High Court
Gian Sarup vs State Of Punjab on 16 August, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRA No.759-SB of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No.759-SB of 2002
Date of Decision:-16.8.2013
Gian Sarup
...Appellant
Versus
State of Punjab
...Respondent
CORAM:- HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.A.D.S.Sukhija, Advocate for the appellant.
Mr.K.S.Aulakh, A.A.G. Punjab for the State
Mehinder Singh Sullar, J. (Oral)
The compendium of the facts & evidence, unfolded during the course of trial, culminating in the commencement, relevant for deciding the instant criminal appeal and emanating from the record, as claimed by the prosecution, is that complainant Nikka Singh son of Kehar Singh (PW5) (for brevity "the complainant") was employed as a Security Guard in Maharaja Factory, Industrial Area, Phase VII, Mohali. Appellant-convict Gian Sarup son of Ramji Lal (for short "the appellant") and Manmohan Singh, son of the complainant, were class fellows and friends. The prosecutrix (name withheld), daughter of the complainant, was studying in 7th class in Vijay Model School, but her name was struck off from the school rolls, one month prior to the present occurrence. The appellant had been visiting the house of complainant with his son Manmohan Singh.
Sharma Arvind Kumar 2013.08.23 09:22 I attest to the accuracy and integrity of this document CRA No.759-SB of 2002 2
2. Sequelly, the case of the prosecution is that on 21.4.1998 at about 8.00 PM, the complainant was on guard duty at the gate of the factory, where his daughter (prosecutrix) came and told him that he should reach home to have his dinner. He followed her advice. As soon as, he returned back to resume his duty at the gate after 10 minutes, in the meantime, he noticed that the prosecutrix was missing. He searched for her in and around the factory premises, but in vain. He suspected that his daughter had been allured by the appellant with inducement of solemnizing marriage with her. Thereafter, he searched for her with the assistance of his relatives and friends, but she could not be traced till 3.5.1998. Subsequently, the complainant reported the matter to the police and made a complaint (Ex.PF) of missing of his daughter on 3.5.1998 at 9 A.M. to SI Mohinder Singh, who made his endorsement (Ex.PF/3) and sent the same to the police station for registration of the case.
3. The story of the prosecution further proceeds that on 3.8.1998 (after about 3½ months), the prosecutrix had voluntarily returned home and got recorded her statement (Ex.DA), inter-alia, to the effect that on the fateful day, she was called by the appellant, who was standing outside the gate of the factory and induced her to go with him. He took her to Bus-stand, Chandigarh on cycle, from where, they went to Ambala by bus. They boarded the train from Ambala to Malipur (UP). Then, he took her to the house of his maternal uncle at Baramadpur. The appellant was stated to have told her that he would marry her. His maternal uncle provided them a room where the appellant had committed sexual intercourse with her. It was claimed that from there, they went to Sharma Arvind Kumar 2013.08.23 09:22 I attest to the accuracy and integrity of this document CRA No.759-SB of 2002 3 Pethia at the house of his another uncle Raja Ram, where he (appellant) also raped her. She narrated the entire episode and uncle of the appellant took pity on her and paid her fare, with which, she boarded the train for Ambala and reached home.
4. Leveling a variety of allegations and narrating the sequence of events, in all, according to the prosecution that the appellant had induced, kidnapped the prosecutrix with the intent that she may be compelled to marry with him against her will and committed rape on her. In the background of these allegations and in the wake of complaint (Ex.PF) of complainant, the present criminal case was registered against the appellant, by virtue of FIR No.104 dated 3.5.1998 (Ex.PF/1), on accusation of having committed the offences punishable u/ss 363, 366 and 376 IPC by the police of Police Station Mohali, previously District Rupnagar, now District SAS Nagar (Mohali), in the manner depicted here-in-above.
5. After completion of the investigation, the final police report (challan) was submitted by the police against the appellant to face the trial for the pointed offences.
6. Having completed all the codal formalities, the appellant was charge-sheeted for the indicated offences. As he did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution by the trial Judge.
7. The prosecution, in order to substantiate the charges framed against the appellant, examined PW1 ASI Ram Kishan, who formally arrested the appellant on 19.3.1999 and prepared the rough site plan Sharma Arvind Kumar 2013.08.23 09:22 I attest to the accuracy and integrity of this document CRA No.759-SB of 2002 4 (Ex.PA) on 18.7.1999 of place of occurrence with its correct marginal notes at the instance of the complainant. PW6 Inspector Amarjit Singh, on receipt of ruqqa (Ex.PF), recorded the formal FIR (Ex.PF/1). PW7 Constable Swaran Singh has delivered special reports of this case to the higher authorities. PW9 Gian Chand, Draftsman prepared the scaled site plan (Ex.PW9/A) of the place of occurrence at the instance of the complainant. PW10 HC Dharam Dev and PW12 HC Kashmira Singh are the formal witnesses, who have only tendered their respective affidavits (Ex.PW10/A & (Ex.PW12/A) to complete the chain of link evidence.
8. Likewise, PW11 C-I Balbir Singh has stated that on 3.5.1998, he had joined the police party headed by SI Mohinder Singh and SPO Satish Kumar. At about 7.30/8.00 AM, the complainant came to them, narrated the entire story and made his complaint (Ex.PF). The same was read over and explained to him, who signed the same in token of its correctness. SI Mohinder Singh made his endorsement (Ex.PF/3) and sent the same to the police station for registration of a case, on the basis of which, the formal FIR (Ex.PF/1) was recorded by SI Amrit Singh.
9. The next to note is the testimony of PW2 Dr.Andesh, who has medico legally examined the prosecutrix, aged 17 years, vide MLR (Ex.PB). He opined that the case is suggestive of sexual intercourse. PW3 Dr.S.K.Nain, Radiologist, after conducting her radiological examination, opined, by way of report (Ex.PE), that she (prosecutrix) appeared to be between 16 to 17 years of age. PW8 Dr.Kamlesh Kumar Gupta, on police request (Ex.PW8/A), made his report (Ex.PW8/B) that the appellant was capable of sexual intercourse.
Sharma Arvind Kumar 2013.08.23 09:22 I attest to the accuracy and integrity of this document CRA No.759-SB of 2002 5
10. Similarly, complainant Nikka Singh (PW5) has attempted to corroborate the contents of his initial complaint (Ex.PF) and maintained that his daughter (prosecutrix) returned to home after 40/50 days of her disappearance.
11. The last to mention is the testimony of prosecutrix (PW4), who deposed in the following terms:-
"On 21.4.1998 I had been residing with my father in the residential quarter allotted to my father being employee of Maharaja Factory at Mohali. At that time I was student of 7th class of Vijay Model School, Phase V, Mohali. My brother Manmohan Singh was student of 8th class of the same school. Gian Sarup accused was class fellow of my brother. He was residing at Balongi. Accused occasionally had been coming to our house being friend of my brother Manmohan Singh. On 21.4.1998 I had gone to see my father at the gate of the factory for asking him to take his meals. My father had already left to take his meals. I noticed Gian Sarup standing at the gate of the factory. At about 8.00 P.M. he caught (Sic. called) me with a gesture. He threatened me to accompany him otherwise he would kill my brother Manmohan Singh who had gone out with a knife. He forced me to sit on his cycle and took me to Chandigarh Bus stand, from Bus stand, Chandigarh he took me to Ambala Cantt. in a bus. From Ambala Cantt. accused took me to Malipur situated in U.P. on a train. And I was taken to the house of Raja Ram, maternal uncle of the accused. Raja Ram had been doing the work of a singer and dancer in marriage parties. In that house accused had been committing rape on my person against my consent. Thereafter, accused took me to the house of his uncle Raja Ram at Pathia. I however do not remember the name of maternal uncle of accused, but his name was not Raja Ram. Accused also committed sexual rape with me at the house of his uncle without my consent and against my wishes. I narrated the entire occurrence to Raja Ram. Raja Ram after hearing the incident left me at the village of maternal uncle of the accused. After many days accused came there and again committed rape on my person without my consent and against my wishes by threatening me. I narrated the entire occurrence to the maternal uncle of the accused who purchased my ticket for Ambala Cantt. and I came to Ambala Cantt by boarding train and was successful in reaching my home on 1.8.1998. I then got my statement recorded to the police. I was also medically examined. I narrated the entire Sharma Arvind Kumar 2013.08.23 09:22 I attest to the accuracy and integrity of this document CRA No.759-SB of 2002 6 incident to my father and mother. Accused Gian Sarup is present today in the Court."
12. After the close of the prosecution evidence, the statement of the appellant was recorded. The entire incriminating material/evidence was put to enable him to explain any circumstance appearing against him therein, as contemplated under section 313 Cr.PC. However, he has denied the prosecution evidence in its entirety and pleaded false implication.
13. The appellant, in order to prove his line of defence, has examined DW1 J.P.Jain son of Roshan Lal, Vice President of Vijay Model School, Mohali, who has proved the admission form and date of birth of prosecutrix as 3.7.1981. This is the whole evidence brought on record by the parties.
14. Taking into consideration the entire evidence on record, the appellant was acquitted u/s 376 IPC as under (para 17) :-
"So far as the question of offence under Section 376 IPC is concerned, though the prosecutrix in her statement claimed to have been sexually assaulted and the medical evidence is there in support of her allegations but the same does not inspire confidence. The consistent conduct of the prosecutrix in willingly joining the accused from her residence for journey, on the cycle upto Bus Stand, Chandigarh and then from Chandigarh to Ambala, on the bus and from Ambala to Uttar Pradesh in train and the stay for longer duration at the residence of the maternal uncle and the uncle of the accused, where the prosecutrix and the accused were being treated as husband and wife by allowing them to stay in a separate room and the prosecutrix did not object and raise her little finger, at any time, despite having ample opportunity to inform the police, Army officials and the co-passengers. She also did not make any effort to run away from the residence of the maternal uncle or the uncle of the accused, despite the fact that she was not kept in confinement nor her activities were kept under surveillance. All this conduct of the prosecutrix points out to the only conclusion that she was a consenting party to the sexual Sharma Arvind Kumar 2013.08.23 09:22 I attest to the accuracy and integrity of this document CRA No.759-SB of 2002 7 intercourse by the accused. So far as medical evidence is concerned, in the first instance, there is no possibility of getting any evidence of sexual intercourse, on the person of the prosecutrix, after about one week of the said last act, when during the said period, she had already changed clothes, many times and also had bath many times. The report of the Chemical Examiner is also not free from doubt. The possibility of live sperm on the vaginal swab, taken at the time of medical examination of the prosecutrix, after more than one week of the commission of the sexual act, is almost nil. The age of the prosecutrix according to the version of the prosecution & evidence of the prosecution and also the defence evidence, was almost nearly 17 years and, therefore, the sexual act of the accused, on the person of the prosecutrix with her consent, cannot be said to be attract the mischief of Section 376 IPC and the prosecution accordingly failed to prove an offence punishable under Section 376 IPC and the accused is acquitted of the charge under Section 376 IPC."
15. At the same time, he (appellant) was convicted & sentenced to undergo rigorous imprisonment (in short "RI") for a period of three years, to pay a fine of ` 400/-, & in default thereof, to further undergo RI for a period of one month for the commission of an offence punishable u/s 366 IPC. He was further sentenced to undergo RI for a period of one year, to pay a fine of ` 200/- and in default thereof to further undergo RI for a period of 15 days u/s 363 IPC. However, both the sentences were ordered to run concurrently, by means of impugned judgment of conviction & order of sentence dated 19.4.2002 by the trial Court of Addl. Sessions Judge.
16. Aggrieved thereby, the appellant has preferred the instant appeal. That is how I am seized of the matter.
17. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the present Sharma Arvind Kumar 2013.08.23 09:22 I attest to the accuracy and integrity of this document CRA No.759-SB of 2002 8 appeal deserves to be accepted in this context.
18. What cannot possibly be disputed here is that all the cogent cardinal fundamental principles and basic rules of criminal law/jurisprudence, have to be kept in focus while deciding such criminal cases. Some of these are that the absolute onus is always on the prosecution to prove its case beyond any reasonable doubt. The accused cannot possibly be convicted without any substantive evidence as the evidence is essential element in the criminal proceedings, notwithstanding the seriousness of the allegations alleged against him. The criminal proceedings require strict proof of guilt. It is the legal evidence, on the basis of which, the decision of a criminal court is based and is the legal requirement of criminal justice. Otherwise, in the absence of cogent substantive evidence, the Courts have no option, but to record an order of acquittal howsoever painful the same may be.
19. As indicated here-in-above, the trial Court, while acquitting the appellant u/s 376 IPC, convicted him, on accusation of having committed the offences punishable u/ss 363 and 366 IPC for kidnapping the prosecutrix. Section 361 IPC postulates that whoever takes or entices any minor female under 18 years of age out of the keeping of the lawful guardian of such minor, without the consent of such guardian, is said to kidnap her. Section 366 IPC further posits that whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit Sharma Arvind Kumar 2013.08.23 09:22 I attest to the accuracy and integrity of this document CRA No.759-SB of 2002 9 intercourse, is liable to be punished therein.
20. A conjoint and meaningful reading of sections 361, 363 and 366 IPC would reveal that in order to attract these provisions, the prosecution was required to prove by producing cogent evidence on record that the appellant has actually taken or enticed away or induced the prosecutrix with intent that she may be compelled to marry him. Actual taking or enticing away a minor out of the keeping of the lawful guardian are the essential ingredients of the offence of kidnaping. The word "takes" no doubt means physical taking not necessarily means by use of force or fraud. If the two words "taking or enticing" carry a very significant meaning, are read together, would suggest that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement, then the accused cannot be considered to have committed the offence of kidnapping. In other words, in case the minor herself abandoned the guardianship, in the absence of any evidence of taking or enticing or blandishments and left her father's protection knowing and having capacity to know the full import of what she was doing voluntarily joined the appellant, perhaps it will not invite the application of the provisions of kidnapping.
21. That means, if the prosecution fails to prove that immediately prior to the minor leaving the father's protection, no active part was played by the accused, he had at some earlier stage solicited or persuaded the minor to do so, then, it would not be legitimate to infer that he is guilty of taking the minor out of the keeping of the lawful guardian merely because after she had voluntarily left her guardian's house, joined Sharma Arvind Kumar 2013.08.23 09:22 I attest to the accuracy and integrity of this document CRA No.759-SB of 2002 10 and the accused helped her in her design not to return to her guardian's house by taking her along with him from place to place to facilitate and fulfill the intention of the girl. It falls short of an inducement to the minor to slip out/abandon her father's protection and will not tantamount to "taking" as contemplated u/s 361 IPC. Reliance in this regard can be placed to a celebrated judgment of Hon'ble Apex Court in case S.Varadarajan v. State of Madras 1965 AIR (SC) 942, which was subsequently followed in various subsequent judgments.
22. Above being the legal position and evidence on record, now the core controversy, which requires an immediate attention of this Court in this appeal is, as to whether the appellant had actually kidnapped or enticed away the prosecutrix to marry her or not ?
23. Having regard to the rival contentions of the learned counsel for the parties, to me, the answer must obviously be in the negative, as the prosecution has miserably failed in this relevant connection.
24. As is evident from the record that the complainant was residing with his family members in the premises of Maharaja Factory, Mohali, where he was employed as a Guard at the relevant time. The appellant and his son Manmohan Singh were class fellows and friends. He had been visiting to his house. The name of prosecutrix was struck off from the school roll, one month prior to the present occurrence. According to DW1, her date of birth is 3.7.1981. The complainant has also stated that she was 16¾ years of age. PW2 Dr.Andesh, who medico legally examined her, has mentioned her age as 17 years. It means, the victim was 16¾ years of age of discretion and was on the verge of Sharma Arvind Kumar 2013.08.23 09:22 I attest to the accuracy and integrity of this document CRA No.759-SB of 2002 11 attaining majority. She was very much capable of understanding the things at the relevant time. PW5 maintained that on 21.4.1998 at about 8 PM, he was on duty at the gate of the factory. The prosecutrix came there and asked him to go for dinner. When he returned back, she was missing. He searched for her, but in vain. Ultimately, he lodged a missing report on 3.5.1998 (after about 12 days). In this manner, the prosecutrix has herself abandoned the guardianship with her free will, dodged her father and voluntarily slipped away with the appellant. She remained with him for about 3½ months, returned of her own to her parents' house on 3.8.1998 and made her statement (Ex.DA) to the police.
25. Not only that, the prosecutrix, while appearing as PW4, has categorically admitted that the appellant took her from Mohali to Bus stand, Chandigarh on his bicycle, from there, to Railway Station, Ambala Cantt. by bus. From Ambala Cantt, they boarded a train for Malipur (UP) and went to the house of his maternal uncle Raja Ram, from where, the appellant took her to the house of his another uncle at Pethia and repeatedly committed rape without her consent. She admitted in cross- examination that there was a normal flow of traffic on the way from Mohali to Chandigarh. He promised to marry her, but later on took a somersault and resiled from his promise. The bus, in which, they traveled, was full of passengers. One police guard was deputed in the bus. She did not report the matter either to the guard or any other passenger. She further admitted that many police officials, army men and other passengers were present at the platform of Railway Station, Ambala Cantt. She was taken from Aligarh to Baramadpur in a jeep, used as a taxi Sharma Arvind Kumar 2013.08.23 09:22 I attest to the accuracy and integrity of this document CRA No.759-SB of 2002 12 to carry passengers on hire. Many passengers were also present in the jeep. The maternal uncle of the appellant had treated her as his wife. During the day time, the appellant used to remain outside the house. She did not disclose to maternal aunt of the appellant that she was not his wife. She remained with him for about 3½ months.
26. The solitary vague circumstance of inducement pressed into service by the prosecutrix is that she did not narrate the incident to the police, army men or passengers as the appellant had threatened her to kill her brother Manmohan Singh with knife and forced her to sit on his bicycle. This appears to be highly improbable under the indicated set of circumstances. Moreover, she made a considerable improvement in her statement while appearing in the Court as PW4 after due deliberations and consultations, because even she has not so stated before the police. She was duly confronted with her earlier statement (Ex.DA) in this respect.
27. Therefore, having regard to her conduct as also the manner of so-called "taking", it does not seem that the prosecutrix was truthful in that regard. In the first place, it is highly improbable and too much of a coincidence that at the same time, the appellant was present outside the gate of the factory and she went to ask her father to take dinner. Secondly, it is difficult to believe that they would have gone unnoticed while proceeding from Mohali to Chandigarh on bicycle. The prosecutrix cannot be said to have been tied to the bicycle as if a load while sitting on the carrier thereof. She could have easily jumped off. She was a fully grown up girl may be one who had yet not touched 18 years of age, but Sharma Arvind Kumar 2013.08.23 09:22 I attest to the accuracy and integrity of this document CRA No.759-SB of 2002 13 still she was in the age of discretion, sensible and aware of the intention of the appellant that he was taking her away for a purpose. It was expected of her natural conduct to jump down from the bicycle or put up a struggle and, in any case, raise an alarm to protect herself or to narrate her tale of woe to any person going from Mohali to Chandigarh and then at Bus-stand, Chandigarh, Railway Station, Ambala Cantt. or any other person in Uttar Pradesh. No such steps were taken by her, which proved that she was a willing party to go with the appellant of her own and in that sense, there was no taking out of guardianship of her parents. Thus, no implicit reliance can possibly be placed on her delayed, contradictory and interested evidence. In addition to it, she has mentioned that the appellant promised to marry her, but later on, he took somersault and resiled from his promise. The mere fact that he could not keep the promise to marry her, as claimed by the prosecutrix, ipso facto, is not a ground, muchless cogent, to convict him u/ss 363 and 366 IPC, particularly when all the essential ingredients of the pointed offences are totally missing in this case. Even the reasons recorded by the trial court to acquit the appellant u/s 376 IPC are fully applicable for extending the benefit of doubt to him even u/ss 363 and 366 IPC as well. Hence, the ratio of law laid down by the Hon'ble Supreme Court in S.Varadarajan's case (supra) "mutatis mutandis" is attracted to the facts of the present case and is the complete answer to the problem in hand.
28. In this manner, if the facts of highly improbable version of the prosecution, voluntarily abandonment of guardianship by the prosecutrix, lack of essential ingredients of offences in question, conduct Sharma Arvind Kumar 2013.08.23 09:22 I attest to the accuracy and integrity of this document CRA No.759-SB of 2002 14 of the victim, contradictions, insufficient evidence and totality of circumstances, oozing out from the evidence on record as discussed here- in-above, are put together, then, to my mind, the conclusion is inescapable and irresistible that the evidence brought on record by the prosecution falls short as is required to prove the charges u/ss 363 & 366 IPC, which entails the benefit of doubt and acquittal to the appellant as well.
29. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
30. In the light of aforesaid reasons, the instant appeal is hereby accepted. Consequently, the impugned judgment of conviction & order of sentence are set aside. Having extended the benefit of doubt, the appellant is also acquitted of the charges u/ss 363 and 366 IPC, in the obtaining circumstances of the case.
Needless to mention that the necessary compliance and procedural consequences would naturally follow.
Sd/-
16.8.2013 (Mehinder Singh Sullar)
AS Judge
Whether to be referred to reporter? Yes/No
Sharma Arvind Kumar
2013.08.23 09:22
I attest to the accuracy and
integrity of this document