Punjab-Haryana High Court
Kala Singh And Ors. vs State Of Punjab on 23 July, 1996
Equivalent citations: 1997CRILJ1313
Author: P.K. Jain
Bench: P.K. Jain
JUDGMENT P.K. Jain, J.
1. This appeal is directed against the judgment/order dated 6-6-1995 passed by-the Additional Sessions Judge, Patiala whereby the appellants have been convicted for the offences under Sections 452/ 366 of the Indian Penal Code and each of the two appellants has been sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 1000, in default of payment of fine to undergo further rigorous imprisonment for one month for the offence under Section 452 of the Indian Penal Code and to undergo rigorous imprisonment for five years and to pay a fine of Rs. 2000/- and in default of payment of fine to undergo rigorous imprisonment for three months for the offence under Section 366 of the Indian Penal Code. The substantive sentences of imprisonment have been ordered to run concurrently.
2. The facts, necessary for the disposal of this appeal and which can be gathered from the record of the trial court are that the proxecutrix Rajwant Kaur was engaged with appellant Kala Singh alias Daljit Singh about 1 1/2 years prior to the day of the occurrence. Appellant Nishan Singh is the brother-in-law of Kala Singh. However, this engagement was called off mutually due to certain reasons. One month prior to the date of the occurrence, Rajwant Kaur was engaged to one Angrej Singh.
3. On 22-3-1990, certain members of the family of the prosecutrix had gone to village Kakera to attend some marriage. During the night of 22nd and 23rd March, 1990 the prosecutrix and her brother Major Singh were sleeping in the verandah of their house. Lights were on. At about I a.m. one Maruti van stopped near, the gate of their house. Both the appellants alighted from the van, entered the house and forcibly took away the prosecutrix Rajwant Kaur with them in spite of the hue and cry raised by her. Major Singh also tried to rescue her but in vain. On hearing the noise, Telu Ram, a resident of house opposite, also came in the street but of no consequence. By the side of the Maruti van bearing No. PB-11-8526 driver Darshan Singh son of Mangal Singh of Majri Samana was standing who was already known to Major Singh. The appellants took away Raj want Kaur in the said van being driven by Darshan Singh. On 24-3-1990, Major Singh lodged D.D.R. entry No. 33 at Police Station Samana on the basis of which First Information Report Ex. PM was recorded on 27-3-1990.
4. On 31-3-1990, the prosecutrix along with appellant Kala Singh alias Daljit Singh was apprehended by Assistant Sub-Inspector Darbara Singh, Investigating Officer on the pointing out of Sarwan Singh, brother-in-law of Major Singh. Statement of the prosecutrix under Section 161, Cr.P.C. was recorded. She was medically examined from the Civil Hospital. Both the appellants were arrested and they were also got medically examined. The parcel containing the swabs was sent to the Chemical Examiner and the report Ex.PQ was received. During investigating, rough site plan of the spot of occurrence, was prepared and the School Leaving Certificate Ex. P.3 in respect of the age of the prosecutrix was taken into possession. After completing the investigation a charge sheet was filed against both the appellants.
5. A charge under Section 452/366/376 of the Indian Penal Code was framed against both the appellants to which they pleaded not guilty and claimed trial.
6. In support of its case, the prosecution examined ten witnesses. Assistant Sub-Inspector Gurdial Singh (PW 1) and Constable Balbir Singh (P.W. 2) merely tendered their respective affidavits Ex.PA and Ex.PB as their evidence was of formal nature. Doctor Alkesh Arora (PW. 3) had examined the prosecutrix on 31-3-1990 at 5.10 p.m. in Civil Hospital, Samana. She has proved Ex. PC the carbon copy of the medico legal report of the prosecutrix prepared by her. She had also referred the prosecutrix to Civil Hospital Nabha for X-rays to ascertain her age. Rajwant Kaur (PW 4) is the prosecutrix. Major Singh (PW. 6) is her brother on whose statement case was registered and Swaran Singh (P.W. 7) is her brother-in-law. Gurinder Singh (PW 5) is a teacher from Government High School Bibipur who has proved School Leaving Certificate Ex.PE relating to the prosecutrix. Doctor P.K. Bansal (PW 8) had conducted* medical examination of the appellants. He" has proved Ex.PK and Ex.PL the Medical Legal Reports prepared by him. Sub-Inspector Jagroop Singh (P.W. 9) had recorded the D.D. Entry Ex.PF on 24-3-1990 on the statement of Major Singh (P.W. 6). A.S.I. Darbara Singh (PW 10) is the Investigating Officer.
7. After the closure of the prosecution case, the appellants were examined under Section 313 of the Code of Criminal Procedure. They have denied the allegations of the prosecution. Appellant Kala Singh stated that he was engaged with the prosecutrix but later on her parents changed their minds being greedy persons, that Rajwant Kaur wanted this alliance to subsist and she of her own accord got married with him. Thereafter some dispute developed and she brought the same to the Court which was settled. He further stated that the prosecutrix joined her parents who wanted her to marry at some other place but without obtaining divorce from the appellant. They could not do so. He further stated that in connivance with the police Major Singh and his family members foisted a false case of rape and kidnapping against him and his real brother-in-law Nishan Singh appellant. Similar is the statement of Nishan Singh appellant.
8. In their defence, the appellants examined two witnesses. Jagat Singh (DW 1) is Record Keeper of the Deputy Commissioners Office Kurukshetra. He has proved the documents Ex.D.I to Ex.D.9, certain copies of the civil as well as criminal cases puported to have been filed by the prosecutrix. Shri Sushil Kumar (DW 2) is a clerk from Sub Tehsil Office Shahbad. On the basis of the official record brought by him, he has proved Ex.DW. 2/1 to Ex.DW. 2/5 record relating to the registration of the marriage between Kala Singh and Rajwant Kaur.
9. On a perusal of the evidence produced on the record, Additional Sessions Judge, Patiala by his impugned judgment acquitted both the appellants of the charge under Section 376 of the Indian Penal Code. However, he convicted and sentenced both the appellants for the offences under Sections 452/366 of the Indian Penal Code as stated above. Hence this appeal.
10. I have heard the learned counsel for the parties who have taken me through the record of the trial court.
11. Shri Raman Gaur, learned counsel for the appellants has argued that the story of the prosecution as put forward is highly improbable in view of the evidence produced on the record. It has been pointed out by the learned counsel that prosecution has utterly failed to prove that Rajwant Kaur was below the age of 18 years on the date of the occurrence and the trial court has erroneously given a finding merely on the basis of School Leaving Certificate Ex.PE. The learned counsel has; argued that the best evidence regarding the age of the prosecutrix has not been collected during investigation nor produced at the trial. It has been further argued by the learned counsel that the best witness alleged to be present at the time of the occurrence was Telu Ram who has not been produced or examined at the trial nor any reason has been given for his non-examination. It. has been pointed out by the learned counsel that according to the prosecution case Darbara Singh the alleged driver of the Maruti car was known since earlier to Major Singh (PW 6) the brother of the prosecutrix but he has not been examined or arrested or shown in Column No. 2 of the charge-sheet, which fact goes to show that the entire investigation is tainted one and aimed at falsely implicating the appellants in this case. It has also been urged by the learned counsel that once the appellants have been acquitted of the charge under Section 376 of the Indian Penal Code with a finding that the testimony of the prosecutrix was not credible or acceptable, her testimony regarding the alleged offence of criminal trespass and kidnapping ought not to have been accepted.
12. Shri Jasbir Singh Advocate the learned counsel appearing for the appellant Nishan Singh has supplemented the above arguments with the contention that the parents of the prosecutrix were greedy persons and that after the engagement of the prosecutrix with appellant No. 1 was called Off she was engaged to one Angrej Singh which engagement also did not materialise in marriage and ultimately that engagement was also broken and now the prosecutrix has been married with Harjinder Singh. While relying heavily on Ex. PC the Medico Legal Report regarding the prosecutrix Rajwant Kaur it has been argued that her testimony should not be accepted without some independent corroboration.
13. On the other hand Shri Ramanjit Singh learned Assistant Advocate General Punjab has argued that the testimony of the prosecutirx Rajwant Kaur has been duly corroborated by the testimony of Major Singh (PW 6) and non-examination of Telu Ram does not affect the prosecution case in any manner. It has been further argued by the learned Assistant Advocate General that in the absence of any other evidence, the School Leaving Certificate Ex.PE is the best evidence to prove the age of the prosecutrix and there is nothing on the record to rebut the same. It has been further argued that the mere fact that the appellants have been acquitted of the charge under Section 376 of the Indian Penal Code, in no way absolves the appellants of the offences committed by them under Sections 452/ 366 of the Indian Penal Code. It has been further explained by the learned Assistant Advocate General that the appellants on a threat manipulated certain judicial record civil as well as criminal while the prosecutrix was in their custody and the same does not carry any weight. Thus defending the conviction and sentence of the appellants, it has been argued that the prosecution has proved its case at least for the offence of criminal trespass and kidnapping beyond reasonable doubt and the appellants have been rightly convicted and sentenced for the said offences.
14. I have considered the respective arguments carefully. It is pertinent to note that the trial Court while disbelieving the prosecutrix Rajwant Kaur, has acquitted both the appellants of the offence under Section 376 of the Indian Penal Code. Admittedly, the State has not filed any appeal against such acquittal 'which has become final.
15. The first, question, which gains importance to make out it a ease Under Section 363/366 of the Indian Penal Code relates to the age of the prosecutrix as on the date of the occurrence. According to the First Information Report Ex.PM lodged by Major Singh (P.W.6), the age of Rajwant Kaur has been given as 17 years. In his statement on oath in the court. Major Singh (P.W.6) has deposed that his sister Rajwant Kaur was 17 years old a proximately on the day of the occurrence. Rajwant Kaur (P.W.4) has given her age as 21 years as on 7-3-1994 when she was examined in the court. Thus according to this statement her age was about 17 years on the date of the occurrence. In her cross-examination she has stated that she is ignorant of her date of birth and her parents may, be having the knowledge of the said fact. Shri Gurinder Singh (P.W.5) is a teacher from Government High School Ribipur and has proved Ex.PE the school leaving certificate regarding Rajwant Kaur wherein her date of birth has been recorded as 19-4-1973. In his cross-examination he has stated that the date of birth of a student is recorded as given by guardian and no medical certificate or municipal record regarding this fact is required. This is the entire evidence produced by the prosecution to prove the fact that the prosecutrix was of the age of below 18 years on the day of occurrence. The trial court while accepting this evidence has concluded that the prosecutrix was below the age of 18 years on the day of the occurrence.
16. After giving my careful thought, I am of the view that the trial court committed a grave error in arriving at the aforesaid conclusion. The reasons are more than one. In the first instance A.S.I. Darbara Singh (P.W. 10) the Investigating Officer never made any effort during investigation to collect the best evidence regarding the age of the prosecutrix i.e. the record maintained by the chowkidar or the civil hospital, nor any explanation whatsoever has been given for not procuring this best evidence on this point. Withholding of the best evidence weighs heavily against the prosecution case.
17. Admittedly doctor Alkes Arora (P.W.3) conducted medical examination of the prosecutrix Rajwant Kaur on 31-3-1990. At the time of her examination the prosecutrix gave, her age as 20 years. This fact is duly recorded in the Medico Legal Report Ex.PC. In her cross-examination Dr. Alkesh Arora (P.W.3) has, categorically stated that the age of the prosecutrix was disclosed to her by Rajwant Kaur herself. This evidence strikes at the root of the prosecution case on this point. It is also important to note that Dr. Alkesh Arora (P.W.3) referred the prosecutrix to Civil Hospital Nabha for X-rays to ascertain her age but she was never subjected to ossification test for the said purpose. Assistant Sub-Inspector Daibara Singh (P.W. 10) the Investigating Officer has failed to give any explanation for this omission. Ossification test if had been carried out could have been the corroborative evidence in support of the school leaving certificate or the statement of the prosecutrix. This omission on the part, of the Investigating Officer appears to be intentional inasmuch as when the prosecutrix herself had given her age as 20 years to Dr. Alkesh Arora, which was duly incorporated in the Medico Legal Report -Ex.PC, there was no use to subject the prosecutrix to ossification test.
18. The prosecution as well as the trial Court has laid great stress on the school leaving certificate Ex.PE to hold that the age of the prosecutrix was below 18 years on the day of the occurrence. The cross-examination of Shri Gurinder Singh (P.W.5) makes it clear that the date of birth of a student is given by the guardian at the time of admission. The prosecution has not examined the parents of the prosecutrix to corroborate the date of birth entered in the school register or the person who had accompanied Rajwant Kaur to school at the time of( her admission. Moreover, the parents of Rajwant Kaur could have been the best witnesses to depose regarding the exact age of the prosecutrix but they have also been withheld by the prosecution for the reasons best known to it. An entry of date of birth in school record has a very little evidentiary value. The obvious reason is that at the time of admission a guardian understates the age of his ward either for the purpose of admission or so that in future some advantage may be obtained in public service etc. It would be improper for a court...to base its conclusion merely on the basis of an entry in school record pertaining to the date of birth without any corroborative evidence of the person who gave such information or record on the basis of which such entry had been made.
19. Another important factor of this case is that according to the medical examination report of the prosecutrix, her vagina was patulous and admitted two fingers easily. This goes to show that the prosecutrix was habitual to sexual intercourse. In Ram Murti v. State of Haryana, AIR 1970 SC 1029 : (1970 Cri LJ 991) the Apex Court made the following observations:-
"In cases Under Sections 366 and 376, age of prosecutrix is always of importance, particularly so where according to medical evidence, she was found to have been used to sexual intercourse and there was old rupture of hymen. Where the accused was acquitted of offence Under Section 376, the Court should examine the question of age more closely."
Applying this test to the facts of the present case, it is not safe to place implicit reliance on Ex.PE the school leaving certificate. When according to prosecutrix herself, her age was 20 years on 31-3-1990 when she was medically examined and she was not subjected to ossification test in spite of a reference by the doctor, and in the absence of any proper explanation in not collecting the best evidence regarding the date of birth during investigation and non-examination of the parents of the prosecutrix in this respect are enough to hold that the prosecution has miserably failed to prove that the prosecutrix Raj want Kaur was below the age of 18 years on the date of the occurrence. From the facts and circumstances discussed above, the only necessary conclusion is that she was more than 18 years of age on that day.
20. It may be repeated that the trial Court while acquitting the appellants for the offence Under Section 376 of the Indian Penal Code has given sound reasons to disbelieve the prosecutrix of her allegations that the appellants had committed sexual intercourse with her against her consent. This fact is further clear from her medical examination report to the effect that her vagina was patulous and admitted two fingers easily. In other words the prosecutrix who was admittedly unmarried on the day of the occurrence, was habitual to sexual intercourse. It may be clarified that there was no fresh vaginal tear or external mark of injury on the private parts or around the same of the prosecutrix nor was there any bleeding from her vagina. These facts are important to ascertain as to what evidentiary value can be attached to the evidence of the prosecutrix who was habitual to the sexual intercourse even at the time she was not married to any person. Once she had been discredited and disbelieved on this major aspect of the case, it is difficult to believe her version regarding the allegations of criminal trespass and kidnapping by the appellants.
21. According to the First Information Report Ex.PM, and the testimony of Major Singh (P.W.6) and Rajwant Kaur (P.W.4), Darshan Singh son of Mangal Singh of Majri Samana was standing near the van and had driven it away after the prosecutrix was forced to sit therein. Strangely enough, this Darshan Singh was neither examined/interrogated during investigation by A.S.I. Dar-bara Singh or the subsequent Investigating Officer, nor shown in Column No. 2 of the charge-sheet, nor even produced at the trial to corroborate the case of the prosecution. It hardly inspires any confidence that at 1 a.m. a person would be able to note down the number of the Maruti van. The manner in which the First Information Report has been lodged in itself goes to show that the story has been cooked up to fit in the circumstances otherwise it was not possible for Major Singh to mention as to how van had come and stopped in front of his house and how the appellants alighted and came inside his house and as to how they had dragged Rajwant Kaur before she raised a noise because up to this time Major Singh is stated to be sleeping inside the verandah. Telu Ram, who is stated to have come out of his house situated opposite in the same street has also not been produced and examined by the prosecution at the trial. The explanation that the prosecution is not bound to produce and examine each and every witness cannot be accepted in the present case for the obvious reason that Telu Ram, a neighbourer residing opposite to house of the prosecutrix could have been the best and independent person to corroborate the incident or at least the presence of the appellants and as to how Rajwant Kaur was taken away by them. Withholding of Telu Ram without any just cause reflects a great doubt on the genesis and origin of the prosecution case.
22. Finally, the photographs Ex.D.5 to Ex.16 appear to be fatal to the prosecution case. According to the prosecutrix Rajwant Kaur, these photographs were taken when she was forcibly taken away by the appellants and was in their custody. From a bare perusal of her testimony as (P. W.4), it is evident that she was being kept either in a kotha in a deserted place or she was kept moving in the van by the appellants. This factum stands falsified by these photographs. Ex.D.9 Ex.D.15 and Ex.D. 16 clearly go to show that the prosecutrix is in a house inhabited by a family consisting of children and at least of another female who is conspicuously present and visible in Ex.D. 15. These photographs thus support and probabilise the defence of the appellants. Consequently, I have no hesitation in holding that the prosecution has failed to prove beyond reasonable doubt that the appellants committed criminal trespass and kidnapped or abducted Rajwant Kaur from her house as alleged.
23. For the foregoing reasons I accept this appeal. The conviction and sentence of both the appellants are set aside and they are acquitted of the charge Under Sections 452/366 of the Indian Penal Code. Both of them shall be released from custody forthwith if not wanted in any other case.