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2002 DIGILAW 1058 (PNJ)

Balwinder Singh @jogi v. State Of Punjab

2002-10-09

ASHUTOSH MOHUNTA

body2002
Judgment Ashutosh Mohunta, J. 1. Balwinder Singh and his mother Miran Devi have filed this appeal against their conviction and sentence passed by the learned Sessions Judge, Patiala, vide judgment and order dated February 7, 2001, whereby Balwinder Singh accused has been convicted under Sections 376 and 363, Indian Penal Code, while his mother Miran Devi has been convicted for the offence under section 363, Indian Penal Code, and their co-accused Jaspal Singh has been acquitted of the charge. Under Section 376, Indian Penal Code. Balwinder Singh has been sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.5,000/-, or in default of payment of fine, he was ordered to undergo further rigorous imprisonment for three months. Under Section 363, Indian Penal Code, he has been sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2,000/-, or in default of payment of fine, he has been sentenced to undergo further rigorous imprisonment for a period of two months. Both the substantive sentences of imprisonment have been ordered to run concurrently. Miran Devi accused has been sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000/-. In default of payment of fine, she has been sentenced to undergo further rigorous imprisonment for a period of one month. 2. The case of the prosecution can be put in a narrow compass. Nidhi Garg - a student of 10th Class and aged about 14 years - daughter of Jiwan Kumar Garg - is alleged to have kidnapped by Balwinder Singh alias Jogi in connivance with his mother Smt. Miran Devi and Jaspal Singh alias Pali on November 6, 1997 at about 5.30 P.M., while she had gone to the house of Smt. Miran Devi. She was allegedly taken on a scooter by Balwinder Singh and Jaspal Singh, while Smt. Miran Devi was standing on the gate. Her father Jiwan Kumar Garg started looking for her and he was told by Sukhdev Singh with regard to the fact of his daughter Nidhi Garg having been driven away by Balwinder Singh and Jaspal Singh on a scooter. On the statement made by Jiwan Kumar Garg, case was registered against the accused. 3. The investigation of the case was initiated. Nidhi Garg was recovered in the company of the accused on November 13, 1997. On the statement made by Jiwan Kumar Garg, case was registered against the accused. 3. The investigation of the case was initiated. Nidhi Garg was recovered in the company of the accused on November 13, 1997. Both Balwinder Singh and Nidhi Garg were got medically examined. The investigation was completed and all the three accused were challaned by the Police for having committed the offences punishable under Sections 363, 366, 367 read with Sections 34 and 20-B and 109, Indian Penal Code. They were tried for the said offences by the learned Sessions Judge, Patiala. 4. The prosecution in support of its case examined Dr. Satinder Kaur (P.W.1), who had medically examined Nidhi Garg prosecutrix on November 13, 1997, and she reported as under : "On external examination found breast well developed, axillary hair were present and well developed. Pubic hair were developed. No external mark of injury. Labia, minors well developed. No tear or laceration. On P.V. examination, vagina admits two fingers. Size of uterus could not be made exactly." The doctor further stated that as per the opinion and as per report of the Chemical Examiner, sexual intercourse had taken place. 5 Dr. Bhupinder Singh Gill (P.W.2), who medically examined Balwinder Singh accused, opined that there was nothing to suggest that Balwinder Singh accused was incapable of performing sexual intercourse. 6. In her statement Nidhi Garg prosecutrix (P.W.4) stated that while she was going to her school in the morning, she was called by Miran Devi accused and she started talking to her. She got late and out of fear she did not go to the school and stayed in the house of Miran Devi accused. Balwinder Singh accused was also present in the house. Both the accused threatened her that they would show the letters, fabricated by them, to her father. Balwinder Singh accused committed sexual intercourse with her. When the time of her school was over, she was asked by Balwinder Singh to return home and also come back to him and threatened that if she did not return, he would deliver the said letters to her father. Accordingly, she went to her home and returned after 15 minutes, after changing the clothes. At that time, both her parents were in the house and she told her parents that she was called by Miran Devi accused. Accordingly, she went to her home and returned after 15 minutes, after changing the clothes. At that time, both her parents were in the house and she told her parents that she was called by Miran Devi accused. When she reached the house of Miran Devi, she was told by her to run away with Balwinder Singh accused. 7. She further stated that thereafter Balwinder Singh accused and Jaspal Singh accused took her on a scooter to the Bus Stand. At the Bus Stand Jaspal Singh held her and Balwinder Singh accused to board a bus towards Rajpura, from where they continued their journey to Gorakhpur. Jaspal Singh accused returned to Miran Devi from the Bus Stand. From Rajpura, they went to Delhi by Bus and from Delhi they took another bus for Lucknow and from there they reached Gorakhpur by train to the house of the aunt (Massi) of Balwinder Singh. After spending two nights at Gorakhpur, they were called by Miran Devi and they returned to Patiala, wherefrom they were detained by the police. 8. When examined under Section 313, Code of Criminal Procedure, the accused pleaded innocence and false implication. 9. The learned Sessions Judge after hearing the learned counsel for the parties and examining the evidence brought on record, convicted and sentenced the appellants as indicated in the earlier part of the judgment. 10. It has been contended by the learned counsel for the appellants that no ossification test with regard the determination of age of the prosecutrix was conducted. According to him, the prosecutrix was a consenting party and Balwinder Singh accused cannot be held guilty of the offence under Section 376, Indian Penal Code. 11. I do not find any merit in the contention raised by the learned counsel for the appellants. The prosecution has led conclusive evidence with regard to the age of Nidhi Garg prosecutrix on the date of the occurrence. In his statement before the Police (Ex.PF) dated November 7, 1997 Jiwan Kumar Garg (P.W.3), who is the father of the prosecutrix, has stated that she was born on September 22, 1983. His statement stands corroborated by Harcharan Singh (P.W.10), who is an official of the Punjab School Education Board, Mohali. He had brought the gazette issued by the Punjab School Education Board for Class VIII for the year 1996, which was issued on April 29, 1996. His statement stands corroborated by Harcharan Singh (P.W.10), who is an official of the Punjab School Education Board, Mohali. He had brought the gazette issued by the Punjab School Education Board for Class VIII for the year 1996, which was issued on April 29, 1996. He proved that according to the Punjab School Education Board, her date of birth was September 22, 1983. Nidhi Garg prosecutrix, while appearing as P.W.4, has also stated that she was 15 years of age. Her statement was recorded on September 24, 1998. From this evidence it stands conclusively proved that she was 14 years old at the time of the occurrence. 12. With regard to the commission of offence of rape by Balwinder Singh accused, it stands proved beyond doubt from the statement of Nidhi Garg prosecutrix herself. Her statement finds corroboration from the statement of Dr. Satinder Kaur (P.W.1), who had proved that the sexual intercourse had taken place. No evidence has been produced by Balwinder Singh accused to controvert the statement made by Nidhi Garg. She went missing from her house from November 6, 1997 to November 13, 1997, when she was recovered in the company of the accused. After recovery she was subjected to medical examination. While appearing in the Court as P.W.4, Nidhi Garg prosecutrix stated that she was subjected to sexual intercourse by Balwinder Singh on November 6, 1997 in his own house. She has also proved that she was raped by him at Gorakhpur. Thus it stands amply proved that Balwinder Singh accused has committed rape upon her. 13. So far as the argument with regard to her consent to sexual intercourse is concerned, the said consent on her part is immaterial as it has been proved on record that she was below 16 years of age at the time of occurrence. Thus, whether she was a consenting party or not, it is of no consequence. 14. With regard to the offence falling under Section 363, Indian Penal Code, it also stands proved that she had been kidnapped by Balwinder Singh accused. Both of them went missing from their respective houses from November 6, 1997 to November 13, 1997. On the evening of November 6, 1997 her father Jiwan Kumar Garg (P.W.3) searched for her. She was not found anywhere. He lodged the report with the Police on November 7, 1997. Both of them went missing from their respective houses from November 6, 1997 to November 13, 1997. On the evening of November 6, 1997 her father Jiwan Kumar Garg (P.W.3) searched for her. She was not found anywhere. He lodged the report with the Police on November 7, 1997. She remained missing from November 6, 1997 to November 13, 1997, on which date she was recovered by the Police in the company of Balwinder Singh accused. In her statement before the Court as well as before the Police, it was stated by Nidhi Garg that she was taken by Balwinder Singh from Patiala to Rajpura and from Rajpura to Delhi and from Delhi to Gorakhpur. She was kept at Gorakhpur for two days. She has also stated the Balwinder Singh had taken her to all these places. Her statement stands corroborated by the circumstances which led to her elopement for about a week and after that her recovery from Balwinder Singh appellant. Thus, this allegation of kidnapping also stands proved against Balwinder Singh appellant. 15. However, so far as the conviction of Smt. Miran Devi, who is the mother of Balwinder Singh appellant, under Section 363, Indian Penal Code, is concerned, I am of the view that the allegation against her does not stand proved. It is the case of the prosecution that Smt. Miran Devi had connived with Balwinder Singh for kidnapping Nidhi Garg prosecutrix. It has only come on record that while Nidhi Garg was taken by Balwinder Singh and Jaspal Singh on a scooter, Smt. Miran Devi was standing at the gate of her house. Nidhi Garg had herself come to the house of Miran Devi. In her statement Nidhi Garg has stated that on November 6, 1996 Balwinder Singh appellant had committed rape on her at his house. After that she was sent to her own house by Balwinder Singh with a direction that she should come back. On his direction Nidhi Garg came back to the house of Balwinder Singh and Miran Devi. Miran Devi had not played any role in calling Nidhi Garg to her house. After that Nidhi Garg of her own went to different places in the company of Balwinder Singh. Smt. Miran Devi has not forced her to accompany Balwinder Singh accused. On his direction Nidhi Garg came back to the house of Balwinder Singh and Miran Devi. Miran Devi had not played any role in calling Nidhi Garg to her house. After that Nidhi Garg of her own went to different places in the company of Balwinder Singh. Smt. Miran Devi has not forced her to accompany Balwinder Singh accused. Her mere standing at the gate at the time when Nidhi Garg rode the scooter on which she was taken by Balwinder Singh and Jaspal Singh to the Bus Stand, does not show her connivance with Balwinder Singh to kidnap Nidhi Garg from the lawful guardianship of her parents. Thus, I am of the view that no offence under Section 363, Indian Penal Code, is made out against Smt. Miran Devi. She is acquitted of the charge under Section 363, Indian Penal Code. 16. In the light of the above discussion, I set aside the conviction and sentence of Smt. Miran Devi appellant. However, the prosecution has been successful to bring home the guilt against Balwinder Singh appellant both under Sections 376 and 363, Indian Penal Code. 17. Consequently, the appeal qua Miran Devi appellant is allowed. However, it stands dismissed so far as the conviction and sentence awarded to Balwinder Singh appellant is concerned.