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2002 DIGILAW 1201 (PNJ)

Jasmer Singh v. State Of Haryana

2002-11-13

M.L.SINGHAL

body2002
Judgment M.L.Singhal, J. 1. Vide order dated 1.6.1988, Sessions Judge, Kurukshetra convicted and sentenced appellant Jasmer Singh to undergo RI for four years and one year respectively for offences punishable under Sections 366 and 376 Indian Penal Code respectively in case FIR No. 92 dated 28.8.1987 registered under Section 363/366/376 Indian Penal Code at PS Dhand. 2. The prosecution case in brief is that on the night intervening 19/20.8.1987, Mohindro daughter of Khila Ram of village Pabala disappeared from her house. Khila Ram was away. When he returned to his house 20.8.1987, his wife Smt. Bharpai told him about the disappearance of their daughter Mohindro since the previous night. She told him that she and their daughter Mohindro had gone to sleep at about 10 P.M. and when she woke up at mid-night, she found that Mohindro was not on her cot. He searched for his daughter here and there in the neighbourhood. He enquired about his daughter from the inmates of the house of Jasmer Singh. Mohindro was on visiting terms at the house of Jasmer Singh and they used to exchange items of daily use from each other. Smt. Bharpai also tried to trace Mohindro. She took along her relations with her in search of Mohindro. On 28.8.1987, Khila Ram went to Police Station Dhand where FIR No. 92 dated 20.8.1987 was recorded on his statement. On 23.8.1987 at about 4 P.M., S.I. Gian Singh was present near railway station Dhand along with Khila Ram and others. In the meanwhile, accused came there with Mohindro Prosecutrix. Khila Ram pointed out towards them. He arrested Jasmer Singh accused. He also secured Mohindro. He recorded Mohindros statement. He got Mohindro medically examined at Civil Hospital, Kaithal. Doctors opinion was that he had been subjected to sexual intercourse. Mohindro was radiologically examined at Civil Hospital, Kaithal for ascertaining her age. Jasmer Singh was medicaly examined by Dr. S.C. Mittal, Medical Officer, PHC, Dhand with a view to ascertaining whether he was capable of sexual intercourse. After investigation, accused was challaned. Case was committed to the Court of Session by Sub Divisional Judicial Magistrate, Kaithal vide order dated 27.11.1987. 3. At the conclusion of the trial, Jasmer Singh was convicted and sentenced by Sessions Judge, Kurukshetra as indicated above. 4. After investigation, accused was challaned. Case was committed to the Court of Session by Sub Divisional Judicial Magistrate, Kaithal vide order dated 27.11.1987. 3. At the conclusion of the trial, Jasmer Singh was convicted and sentenced by Sessions Judge, Kurukshetra as indicated above. 4. It is submitted by the learned counsel for the appellant that it is not a case of abduction of Mohindro by Jasmer Singh. It is rather a case of elopement of Mohindro with Jasmer Singh. It is submitted that as per her father, she was on visiting terms at the house of Jasmer Singh and there used to be exchange of items of daily use between them. Mohindro went to sleep at 10 P.M. At about mid-night, her mother got up. She was not found on her cot. As per Mohindro, it was about 9 P.M. when the accused met her in the fields at a distance of about one Kila from their house He told her to accompany him. It is thus clear that she left her house according to some set programme with the accused. According to that programme, she was to accompany the accused. Mohindro PW6 stated that the accused told her that he was going to show her a movie. He would take her on tour. She refused to accompany him. Accused told him that he was going to give her jewellery. He shut her mouth with his hand and took her under a kiker tree where he forcibly had sexual intercourse with her. Them he again took her near culvert and again had sexual intercourse with her forcibly. Then there was on set of menses and therefore accused could not have intercourse with her. Accused took her to village Chanar Heri where his uncle resides. Accused was abused by his uncle when he found him with her. They stayed in the night at the place of the uncle of the accused. On the following day, accused took her to village Dhankar where his fathers sister resides. She also rebuked him when she found him in her company. On the following day he took her to Pehowa and from there they came to Dhand. Accused told her that he would be taking her to Delhi and Bombay. Near Railway Station, Dhand, they were apprehended by the police. She also rebuked him when she found him in her company. On the following day he took her to Pehowa and from there they came to Dhand. Accused told her that he would be taking her to Delhi and Bombay. Near Railway Station, Dhand, they were apprehended by the police. They travelled by bus and she did not disclose to any passenger travelling by that bus that the accused had abducted her. It is thus a clear case of elopement of Mohindro with the accused according to the programme which she had chalked out with him. Why should she have left her house at 9 P.M. and be at a distance of one kila from their house. It was obviously because she had settled with the accused that she would be available to him at 9 P.M. and he should be available to her. As per the entry in the school record, she was born on 30.3.1972. Entry as to the date of birth in school record is not of much evidentiary value as entries are made in the school record at the time of admission, say, after 4, 5 and 6 years of the birth of the child. Radiological examination performed on her with a view to determining her age suggests that she was aged between 13 to 17 years. She was in love with Jasmer Singh. She was yearning for his company. So that she could be in his company. She left her house at 9 P.M. on 19/20.8.1987 according to the programme chalked out with Jasmer Singh. 5. For the reasons given above, I am of the opinion that the learned Sessions Judge was not justified in holding the charge proved against the accused, convicting and sentencing him. So, this appeal is allowed. Conviction and sentence passed upon by him learned sessions Judge, Kurukshetra is set aside and he is acquitted of the charge framed against him.