JARNAIL SINGH v. STATE OF U P — 1994 DIGILAW 438 (ALL)

S. K. VERMA, J. Both these bail applications relate to the same crime and hence are being disposed of by a common order. 2. On 12th January, 1994 complainant Vir Singh lodged a report in Police Station Bilaspur district Rampur (Crime No. 21 of 1994) that her minor daughter Kumari Sarbjit Kaur aged about 13 years was forcibly taken away on 6th January, 1994 at 5-00 p. m. from his village Mullakheda by Narender alias Nindu son of Kulwant Singh and his mother. Since the girl did not return and even after search the father of the girl could not trace her out, but since he received information through Pooran Singh son of Bahadur Singh and Baj Singh son of Sewa Singh that they had seen the girl going alongwith Narender and his parents, he lodged a report as aforesaid on 12-1-1994. 3. In the meantime because the girl was untraceable, Criminal Writ Petition No. 29 of 1994 was filed by Vir Singh, father of the girl in the Supreme Court. Certain directions were issued by the Supreme Court to the Superin tendent of Police, Rampur to file affidavit before the Apex Court regarding progress of investigation and to trace out the girl. Ultimately, the girl was recovered on 10-2-1994 from Patiala Railway Station. Press Reports were also published in amar Ujala dated 12-1-1994 which are on record. The girl tiled an application before the Apex Court on 28-2-1994 stating the circum stances under which she was kidnapped and kept at different places and then ultimately recovered. The statement of the girl was recorded under Section 161, Cr. P. C. by the investigating agency on 28-4-1994. During investigation the police also recorded the statements of Pooran Singh, Sajjan Singh, Ratan Singhand Lakhvinder Singh disclosing tnat two sittings of Panchayat were held in the Biradari in which applicant Jarnail Singti, one Harender Singh, Gyani Kulwant Singh and Gurnam Singh participated. The applicant is said to have insisted that the girl should be married to Narender Singh. The com plainant is said to have disagreed claiming that the girl was a minor and that Narender Singh did not have any property. The applicant is said to have insisted that the girl should be married to Narender Singh. The com plainant is said to have disagreed claiming that the girl was a minor and that Narender Singh did not have any property. The applicant Jarnail Singh is said to have offered three acres of and to be transferred to Narender Singh, Gyani Harender Singh and Kulwant Singh are said to have threatened that the marriage between the victim and the main accused has to take place otherwise the girl would not be returned. 4. In her statement under Section 161, Cr. P. C. the girl is said to have stated that at one point of time or the other Kulwant Singh alias Kanta, Narender alias Nindu, Paramjit Singh alias Prema, Jagdish, Mahipal, Rani, sister of Narender and Ranis father-in-law Guru Baksh Singh, Jarnail Singh, applicant, Teepa, Gyani Harender Singh, Ranjit Singh, applicant kidnapped her or wrongfully confined her or detained her in their houses and threatened her and Narender alias Nindu forcibly committed rape on her. Applicant Jarnail Singh is said to have threatened her whereas applicant Ranjit Singh is said to have given her shelter in his house and detained her there. 5. Certain love letters admittedly written by Sarbjit Kaur have also been recovered by the police. These love letters one of which is dated 6-9-1992 contain expressions of love and pangs of separation from the beloved one. There are also expressions desiring ever-lasting faithfulness, love and affection towards accused Narender and the willingness of the girl always to live with Narender and to die for him. 6. The Magistrate concerned and the Sessions Judge rejected the bail applications of these two applicants. There are also expressions desiring ever-lasting faithfulness, love and affection towards accused Narender and the willingness of the girl always to live with Narender and to die for him. 6. The Magistrate concerned and the Sessions Judge rejected the bail applications of these two applicants. Another accused Gyani Harender Singh, respondent No. 6 involved in this crime, moved an application in Criminal Writ Petition No. 29 of 1994 before the Supreme Court in which order dated 13th May, 1994 was passed and in this order the Apex Court remarked: "we should also make it clear that the proceedings before this Court, confined as they are to the question of ensuring a fair and just investigation into the matter, should not cast any shadow, one way or the other, on the merits of the investigation or the sub sequent prosecution, should there be any; nor should the pen dency of the proceedings here prejudice the case of any of the parties, in the matter of bail or otherwise. The parties should have their usual remedies under the criminal law. " 7. It may be noticed that in this case because writ petition was pending before the Supreme Court in which certain orders were passed and the allega tions and counter-allegations indicate that one M. L. A. and one M. L. C. are allegedly involved in the whole affair one way or the other and there have been Press Reports also, there might have been some apprehension in the minds of the accused persons that they would not get justice. That fear has been allayed by the aforesaid order of the Apex Court. 8. In bail matters decision has to be made after having regard to the nature of the crime, the circumstances in which it was committed, the back ground of the accused, the probability of his jumping, bail, the impact that his release may make on the prosecution witnesses, its impact on society and the possibility of retribution etc. State of Maharashtra v. Capt. B. K. Subbarao, JT 1989 (4) SC 1. 9. Certainly kidnapping and rape of a minor girl is a serious crime but in this particular case the circumstances under which the girl is said to have been kidnapped, prima facie, indicate that she was a willing party. State of Maharashtra v. Capt. B. K. Subbarao, JT 1989 (4) SC 1. 9. Certainly kidnapping and rape of a minor girl is a serious crime but in this particular case the circumstances under which the girl is said to have been kidnapped, prima facie, indicate that she was a willing party. Her lone letters referred earlier, prima facie indicate that she was ready to go anywhere with the main accused Narender Singh. It would be pertinent to mention that though the writing of these letters has been admitted by the girl herself in her statement under Section 161, Cr. P. C. but she has given an explanation which is prima facie highly improbable. She has tried to explain that as early as in 1992 one of the accused, namely, Paramjit alias Prema got these letters scribed by her on his dictation on the threat that if she refused the Barat of her elder sister would go back at the instance of Paramjit. It is prima facie difficult to believe that the girl wrote these letters during the period of two years before the incident and never complained to her parents about the same even after the performance of the marriage of her elder sister. Courts come across explanations of love letters in the shape of statement that after kidnapping or abduction the girl was forced to write these letters but this is probably the first case in which the plea that the letters were written two years prior to the incident of threat of nullifying the marriage of the elder sister of the girl has been taken. As already stated this explanation with the attending circum stances that the girl never complained of the same to her parents is, prima facie, unreliable. It would also be pertinent to mention here that at the time of the alleged kidnapping according to the prosecutrix Paramjit Singh alias Prema who had obtained the hand-writing of the girl in these love letters was also present before she was threatened and at the same time Pooran Singh, maternal uncle of the prosecutrix had also met her. It would also be pertinent to mention here that at the time of the alleged kidnapping according to the prosecutrix Paramjit Singh alias Prema who had obtained the hand-writing of the girl in these love letters was also present before she was threatened and at the same time Pooran Singh, maternal uncle of the prosecutrix had also met her. Prima facie, Paramjit Singh alias Prema was obtaining these love letters in her hand-writing and he was a fast friend of the main accused Narender Singh, it would be difficult to believe that the girl after seeing these persons and meeting her maternal uncle did not suspect anything and went to the house of Narender Singh. Learned counsel for the applicant has rightly remarked that these love letters are prima facie, genuine and indicate that the girl wis a consenting party. 10. The next question pertinent is regarding the age of the girl. Accord ing to the prosecution the girl is 13 years old. According to the medical examination she is about 16 years old and according to the voters list placed on record she is 18 years old prima facie, in the absence of any other reliable evidence regarding date of birth of the prosecutrix the medical examination report stands on a better footing and can be relied safely so as to give the benefit of doubt to the accused. In such test the margin of error on either side varies from one and a-half years to two years and the benefit of margin of error goes to the accused and hence the victim may be above 17 years. 11. The statement of the girl under Section 161, Cr. P. C. as also her statement in an application dated 28-2-1994 before the Apex Court contain certain discrepancies. Moreover, these statements, prima facie, indicate that an attempt has been made to rope in all those persons who tried to settle the dispute between the two families and conducted two sittings of Panchayat. There are some political overtones also in these statements such as the re marks in the statement of the prosecutrix that if she raised alarm she and her family members would be killed as the party of the accused persons was very strong and capable. There are some political overtones also in these statements such as the re marks in the statement of the prosecutrix that if she raised alarm she and her family members would be killed as the party of the accused persons was very strong and capable. It would be difficult to place reliance on the statement of the prosecutrix on a prima facie appreciation of the same specially in view of the contents of the love letters which have already been discussed. 12. So far as the background of the accused is concerned, nothing adverse has been pointed out. There is also no allegation that there is any apprehension or possibility of his jumping bail. There cannot be any appre hension either that the release of the applicant would have any adverse impact on the prosecution witnesses. 13. It is true that law should not be made so much impotent that it does not serve the society and the anti-social elements should not be given licence to create havoc in the society but no such circumstances obtain in this case because prima facie the prosecutrix appears to have willingly gone with the main accused and there are allegations only against him regarding rape which is the more serious offence and regarding the commission of which the probabilities indicate that it was with consent. 14. It is, however, made clear emphatically that all these remarks regarding the facts and circumstances of the case have been made on a prima facie consideration of the evidence available and will have no impact on the merits of the case during the trial which shall be conducted fairly without fear or favour and hopefully expeditiously. 15. In the result, both these bail applications are allowed. The applicants Jarnail Singh and Ranjit Singh involved in Case Crime No. 21 of 1994 under Sections 363/368/376/506, I. P. C. Police Station Bilaspur, district Rampur be released on bail on each of them furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Chief Judicial Magistrate, Rampur. Bails allowed. .