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2002 DIGILAW 1310 (PNJ)

Tilak Raj v. State Of Punjab

2002-11-27

VIRENDER SINGH

body2002
Judgment Virender Singh, J. 1. Tilak Raj son of Madan Singh stands convicted vide impugned judgment of learned Additional Sessions Judge, Hoshiarpur dated 1.8.1988 under sections 363/366/376 of Indian Penal Code and has been sentenced as under : U/s 376 IPC Sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 1000/- or in default to undergo further rigorous imprisonment for one year. U/s 366 IPC Sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1000/- or in default to undergo further rigorous imprisonment for one year. U/s 363 IPC Sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 500/- or in default to undergo further rigorous imprisonment for six months. However, the sentences of imprisonment on all three counts have been ordered to run concurrently. 2 In short, the case of the prosecution is that Narinder Kaur prosecutrix who was a student of Government High School, Hardokhundpur, was abducted by the appellant in a deceitful and fraudulent manner in order to gratify his sexual lust. 3. The appellant was a teacher/Incharge of section A of 10th class at Government High School, Hardokhundpur. He was posted there as Social Studies Master for the academic session 1985-86. He used to check the home task of his class students and Narinder Kaur prosecutrix used to take tuition from Tilak Raj appellant. It is then the case of the prosecution that in the first week of November 1985 at about 8/9 A.M. Narinder Kaur had gone to the house of the appellant to take tuition and at that time he was alone at his house. He allegedly raped her there and threatened her that in case she disclosed that fact to anybody, he would get her failed in examination. Narinder Kaur consequently returned to his house. It is then the case of the presecutrix that evey Sunday she visited the house of appellant. for taking tuition and whenever she visited his house, he used to rape her and this state of affairs continued till commencement of the matriculation examination. Narinder Kaur consequently returned to his house. It is then the case of the presecutrix that evey Sunday she visited the house of appellant. for taking tuition and whenever she visited his house, he used to rape her and this state of affairs continued till commencement of the matriculation examination. It is further the case of the prosecution that on April 8, 1986 examination in science practical was to be held and when she was on her way to the school for taking science practical examination, the appellant had allegedly met her on the way and told her that the examination would not be held on that day and, asked her to accompany him as he wanted to marry her. Both of them then went to Chandigarh via Pathankot in a bus. Narinder Kaur was kept at the house of sister of appellant at Chandigarh till 14.4.1986 where he used to commit sexual intercourse with tier. On the other side Dhiraj Singh (PW 13) father of Narinder Kaur also started searching her in his relations as she had not returned from her school and ultimately on April 10, 1986 he reported the matter to the police showing his suspicion towards the appellant regarding the dis-appearance of his daughter. Narinder Kaur was ultimately taken from the custody of the appellant, on 15.4.1986. It is then the case of the prosecution that from the possession of the appellant a forged certificate showing the prosecutrix to be on higher age, was allegedly recovered. The appellant, thus, was booked in the present case. 4. The applicant was charged for the offence punishable under Section 363/366/376 IPC and on a consideration of the entire evidence, stands convicted and sentenced as indicated above. Hence, this appeal. 5. I have heard Mr. A.S. Sandhu, learned counsel for the appellant and Mr. H.S. Grewal, learned Deputy Advocate General, Punjab. The entire evidence recorded by the trial court and other relevant documents have also been perused by me minutely. 6. Opening his arguments Mr. Sandhu has vehemently argued that the age of Narinder Kaur, the prosecutrix was 18 years and above at the time of alleged commission of offence and this fact is clear from the documentary evidence which is otherwise over-looked by the trial court. Developing his arguments on this count, Mr. 6. Opening his arguments Mr. Sandhu has vehemently argued that the age of Narinder Kaur, the prosecutrix was 18 years and above at the time of alleged commission of offence and this fact is clear from the documentary evidence which is otherwise over-looked by the trial court. Developing his arguments on this count, Mr. Sandhu has taken me through the evidence of PW 13 Dhiraj Singh, the father of the prosecutrix and even the statement of prosecutrix as PW-3. So far as the school leaving certificate Ex. PL is concerned, Mr. Sandhu has stated that there is no ambiguity about the date of birth of prosecutrix and that it is not a forged certificate. It is then contended by the learned counsel for the appellant that in case the age of prosecutrix is considered to be of 18 years and above, it can be very safely said from the entire evidence that she was a consenting party to whole of the affair and she had infact eloped with the appellant on her own without any deceitful or fraudulent manner adopted by the appellant in taking her away and in this context he has once again taken me through the statement of prosecutrix in which she has stated that on 8.4.1986 she went with the appellant as he wanted to marry her. She accompanied him first to Pathankot and then to Chandigarh by bus. She remained at Chandigarh for about a couple of days at the house of the sister of the appellant and from there also they returned to Mukerian by bus and when they had got down from the bus, the police party had spotted them. Mr. Sandhu has also laid much stress on the photograph Ex. DC showing that the appellant and the prosecutrix were clicked together having garlands and the said photograph is duly proved by DW-3 Gurmail Singh Photographer and its negative as Ex. DC/1. The argument of Mr. Sandhu is that if all the facts are taken collectively, it speaks volumes of false implication of the appellant in this case and the impugned judgment of conviction is un-sustainable. 7. On the other hand, Mr. DC/1. The argument of Mr. Sandhu is that if all the facts are taken collectively, it speaks volumes of false implication of the appellant in this case and the impugned judgment of conviction is un-sustainable. 7. On the other hand, Mr. H.S. Grewal, learned Deputy Advocate General, Punjab has strenuously argued that the prosecutrix was a student of High School and at a very tender age she was induced by the appellant to marry her and for that reason, the appellant had taken her away by deceitful means and raped her also. Consequently, the appellant, according to Mr. Grewal has been rightly convicted by the trial court. 8. After hearing both the sides, I am of the considered view that the prosecution has not been able to bring home the guilt of the appellant beyond any shadow of doubt and he deserves acquittal. 9. Admittedly, there is no birth entry of the prosecutrix Narinder Kaur in this case. The prosecution has put reliance on school records in which the date of birth of prosecutrix is shown as May 2, 1969. According to the radiological assessment, it was between 14 to 16 years. Even if according to the prosecution itself, the age of Narinder Kaur comes to more than 16 years on the date, of commission of offence i.e. 8.4.1986. Even for the purpose of first week of November, 1985 when the appellant had allegedly committed rape with her on one Sunday in his house, the age is more than sixteen years. It has also been so observed by the trial court itself in its impugned judgment. However, in my view the entry about the date of birth in the school register cannot be the conclusive proof of age and as such weightage cannot be attached to it. Keeping in view this situation in mind, the evidence of Dhiraj Singh PW I3, the father of the prosecutrix and even the evidence of prosecutrix herself as PW3 have to be scanned minutely. Dhiraj Singh has admitted as prosecution witness that he has four daughters and one son, Updesh Kaur is eldest child and she is daughter, next child is Amrik Singh, next to him is Prikhya Devi and then is Narinder Kaur. Youngest is Jasbir Kaur. Dhiraj Singh has admitted as prosecution witness that he has four daughters and one son, Updesh Kaur is eldest child and she is daughter, next child is Amrik Singh, next to him is Prikhya Devi and then is Narinder Kaur. Youngest is Jasbir Kaur. In cross-examination he has admitted that Prikhya Devi was born after an interval of two years after the birth of his son and about two years after her birth Narinder Kaur was born. According to Ex. DD the birth entry produced during the evidence, Prikhya Devi was born on 11.9.19.65 and that as per admission of Dhiraj Singh, Narinder Kaur had born after two years. This comes to year 1967. The evidence of PW3 Narinder Kaur, prosecutrix in this respect is also very relevant who in her cross-examination has also admitted that his sister Prikhya Devi is older to her by two years. From this it can be very safely said that Narinder Kaur had born somewhere in 1967 and not in 1969 as shown in the school records. If her year of birth is taken as 1967 from the evidence adduced on the file, she was certainly above the age of 18 years on the date when she left with the appellant. In this scenario Ex. PL cannot be doubted. I take the age of Narinder Kaur prosecutrix as above 18 years on the date/month of alleged commission of offence i.e. April 1986. 10. So far as the consent is concerned, I also agree with the contentions raised by the learned counsel for the appellant. The defence taken up by the appellant is that parents of Narinder Kaur prosecutrix had settled her marriage with her as they had refused to many her with Narinder Kaur as they wanted that he should deposit Rs. 20,000/- in her name for which he had shown his inability and for this reason the engagement had also broken. The defence taken up by the appellant is that parents of Narinder Kaur prosecutrix had settled her marriage with her as they had refused to many her with Narinder Kaur as they wanted that he should deposit Rs. 20,000/- in her name for which he had shown his inability and for this reason the engagement had also broken. It is then the case of the appellant that Narinder Kaur herself insisted for this marriage and both of them came to Hoshiarpur where an affidavit was also prepared before the Notary Public and thereafter after getting married, they had come to Chandigarh to see his sister where in fact, both of them were apprehended by the police on 12.4.1986, and then upto 15th of April 1986 a lot of pressure was put on her by the police and her parents to disengage her from him and ultimately she came forward to implicate him. 11. The entire evidence if seen minutely would leave no room of doubt that the prosecutrix was a consenting party to whole of the state of affairs and she infact had gone with the appellant on her own and no act was done by the appellant againt her wishes. In this context the statement of Dr. Shashi Khera PW2 is also very relevant who had medico legally examined Narinder Kaur prosecutrix on 15.4.86 at 5.30 P.M. and according to her there was no evidence of blood stains or semen stains on the clothes of Narinder Kaur. There was no mark of any injury on the face, breasts, chest, abdomen, or back. Pubic hair were also normal. No injury on the external genitalia was noticed by her. The vagina, according to her was admitting two fingers very easily. The medical evidence if seen in the light of the other facts including photograph Ex. DC would lead me to draw only one inference that the prosecution is on a slippery footing in order to connect the appellant with the commission of the alleged offence of kidnapping and rape. 12. My observations get support from the judgment of the Apex Court rendered in Rajendra alias Raj v. State of Maharashtra, 2002(4) RCR (Criminal) 608 : [2003(1) All India Criminal Law Reporter 296 (SC)]. 13. No other point was urged before me by either side. 14. 12. My observations get support from the judgment of the Apex Court rendered in Rajendra alias Raj v. State of Maharashtra, 2002(4) RCR (Criminal) 608 : [2003(1) All India Criminal Law Reporter 296 (SC)]. 13. No other point was urged before me by either side. 14. Consequently, the appeal is allowed and the appellant is acquitted of all the charges framed against him. He shall be discharged of his bail bonds forthwith.