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2006 DIGILAW 772 (RAJ)

Resham Singh v. State of Rajasthan

2006-03-07

H.R.PANWAR

body2006
Judgment H.R. Panwar, J.-This criminal jail appeal is directed against the Judgment and order dated 24.07.2002 passed by the Additional Sessions Judge (Fast Track), Anoopgarh, district Sri Ganganagar (for short, “the trial Court” hereinafter) in Sessions Case No. 137/2001, whereby the trial Court convicted the appellant for the offences under Sections 363, 366-A and 376, IPC and sentenced him to undergo four years rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine further to undergo two months rigorous imprisonment for the offence under Section 363, IPC; five years rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine further to undergo two months rigorous imprisonment for the offence under Section 366-A, IPC; and seven years rigorous imprisonment and a fine of Rs. 500/-, in default of payment of fine further to undergo two months rigorous imprisonment for the offence under Section 376, IPC. All the sentences were directed to run concurrently. Aggrieved by the Judgment and order impugned convicting and sentencing the appellant for the offences noticed above, the appellant has preferred the appeal through jail. 2. I have heard learned Amicus Curiae appearing for the appellant and the Public Prosecutor for the State. Carefully perused the Judgment and order impugned, as also the record of the trial Court. I have also scrutinized, scanned and evaluated the evidence on record. 3. It is contended by the learned Amicus Curiae appearing for the appellant that from the statement of PW. 1 Jeet Singh, the father of the prosecutrix, it has been established that on the relevant date of the occurrence, the age of the prosecutrix was more than 18 years. It is further contended that the appellant and the prosecutrix were known as the appellant used to stay with the prosecutrix and her parents and the prosecutrix, at her sweet will, accompanied the appellant and, therefore, she was a consenting party even if any sexual intercourse had taken place with her. He further submitted that from the medical evidence, it has been established that the prosecutrix was habitual to sexual intercourse despite being an unmarried girl, which shows that the prosecutrix had relations with the appellant much prior to alleged date of occurrence. On these premises, learned Amicus Curiae appearing for the appellant submitted that the trial Court fell in error in convicting and sentencing the appellant vide impugned Judgment and order. On these premises, learned Amicus Curiae appearing for the appellant submitted that the trial Court fell in error in convicting and sentencing the appellant vide impugned Judgment and order. 4. Learned Public Prosecutor supported the Judgment and order impugned and contended that according to the statement of PW. 8 Dr. Devi Lal Bhakar, the age of the prosecutrix, on the relevant date of the occurrence was 15 to 16 years and, therefore, she was minor. 5. I have given my thoughtful consideration to the rival submissions made by the learned Counsel for the parties. 6. PW. 1 Jeet Singh, the father of the prosecutrix, was examined by the trial Court on 18.04.2002. The occurrence alleged to have taken place on 10.2000 which is evident from the FIR Exhibit P-1. Thus, from the date of the occurrence and the statement made by PW. 1 Jeet Singh before the trial Court, about 18 months elapsed. He stated that his marriage was solemnized about 22 to 23 years ago and after one year of the marriage, the prosecutrix born. The father of the prosecutrix is the best person to state the exact age of his daughter, the prosecutrix. From the statement of PW. 1 Jeet Singh, it is more than clear that on the relevant date of the occurrence, the prosecutrix was above 19 years of age. 7. PW. 8 Dr. Devi Lal Bhakar, though stated the age of the prosecutrix between 15 to 16 years, however, he stated that in order to determine the age, the ossification test is a method, by way of which, on the basis of X-ray report and fusion of bone, the age can be determined. He admitted that he is not a Radiologist. He further stated that the X-ray plates, in respect of the prosecutrix for determination of her age, have not been filed before the trial Court. Admittedly, the prosecution has failed to produce on record the X-ray plates, by which determination of age of the prosecutrix could be made. This witness, however, categorically stated that he is unable to state the exact age of the prosecutrix. He stated that on being medically examined the prosecutrix, in his opinion, the prosecutrix was habitual to sexual intercourse. 8. In absence of definite medical evidence regarding determination of age of the prosecutrix, in view of the statement of PW. This witness, however, categorically stated that he is unable to state the exact age of the prosecutrix. He stated that on being medically examined the prosecutrix, in his opinion, the prosecutrix was habitual to sexual intercourse. 8. In absence of definite medical evidence regarding determination of age of the prosecutrix, in view of the statement of PW. 1 Jeet Singh, the father of the prosecutrix, the age of the prosecutrix has been established to be more than 19 years on the relevant date of occurrence. Therefore, in my view, the trial Court fell in error in not considering the statement of PW. 1 Jeet Singh, the father of the prosecutrix, in right perspective while determining the age of the prosecutrix. 9. Now the question comes up for consideration is: whether the prosecutrix voluntarily accompanied the appellant, travelled to various places, stayed with him at various places and even if the appellant had any sexual intercourse with her, whether she was a willing and it was with her consent. 10. So far as the offence punishable under Section 363, IPC is concerned, in view of the statement of PW . 1 Jeet Singh, the father of the prosecutrix, it has been established that on the relevant date of the occurrence, the prosecutrix was not a minor girl. PW . 12, the prosecutrix, in her statement stated that she, alongwith her brother PW . 5 Gurpreet, accompanied the appellant. There is no evidence that the appellant kidnapped the prosecutrix from the lawful guardianship of her father as she was more than 18 years of age and accompanied the appellant alongwith her brother PW . 5 Gurpreet. 11. So far as the offence under Section 366-A, IPC is concerned, it provides whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person. In the instant case, there is no evidence that the appellant induced a minor girl below 18 years of age to go from any place to do any act with intent that such girl may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person. 12. In the instant case, there is no evidence that the appellant induced a minor girl below 18 years of age to go from any place to do any act with intent that such girl may be, or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person. 12. Thus, the offences under Sections 363 and 366-A, IPC have not been proved by the prosecution beyond reasonable doubt in view of the statement of PW . 1 Jeet Singh, the father of the prosecutrix that on the relevant date of the occurrence, the prosecutrix was more than 19 years of age. Therefore, the offences punishable under both these sections have not been established beyond reasonable doubt. 13. So far as offence under Section 376, IPC is concerned, PW. 1 Jeet Singh, the father of the prosecutrix, stated that when the prosecutrix came to home, she did not disclose that any bad act had been done with her by the appellant. She neither informed to her father, nor to any other person in this regard. PW. 4 Manjeet Kaur, the mother of the prosecutrix, has also not stated that her daughter, the prosecutrix, informed her about any bad act or sexual intercourse having been done with her by the appellant. PW. 4 Manjeet Kaur stated that her daughter was taken away by the appellant by a deceitful means by administering psychotropic substance. 14. PW. 5 Gurpreet, the brother of the prosecutrix, stated that the appellant used to stay with them, he was in visiting terms with the family and earlier also the appellant used to come and stay with them. On the relevant day of the occurrence, the appellant prepared porridge (Haluwa). He, his Mausis son Raju and sister etc. took the porridge (Haluwa).The appellant took him and the prosecutrix first to village Bilochiya and from there to the house of one Sukha Singh. The appellant left him at the house of Sukha Singh and thereafter the appellant and his sister went on a bicycle saying that they would be coming back soon. From the statement of this witness, it is clear that the prosecutrix accompanied the appellant on a bicycle form the house of Sukha Singh assuring her brother PW. 5 Gurpreet to stay at the house of Sukha Singh and they would be returning after sometime. From the statement of this witness, it is clear that the prosecutrix accompanied the appellant on a bicycle form the house of Sukha Singh assuring her brother PW. 5 Gurpreet to stay at the house of Sukha Singh and they would be returning after sometime. That clearly goes to show that the prosecutrix and the appellant never intended that prosecutrixs brother PW. 5 Gurpreet should accompany them any more and, therefore, he was left at the house of Sukha Singh and then the prosecutrix and the appellant went on a bicycle. It is not a case that the appellant took the prosecutrix on the bicycle by any deceitful means, rather it was the prosecutrix who, at her sweet will, accompanied the appellant on the bicycle. PW. 5 Gurpreet further stated that before going to the house of Sukha Singh, the appellant informed that they would be going to Anoopgarh in a marriage, however, subsequently it was noticed by him that he was not taken to Anoopgarh. At the bus stand, they noticed that they were going to Suratgarh and after reaching Suratgarh, they changed the bus at the bus stand, Suratgarh and from Suratgarh, they went to Pilibanga and then to village Bilochiya. On the way, they met many persons but neither PW. 5 Gurpreet, nor the prosecutrix, informed any person that the appellant was taking them by deceitful means. PW. 5 Gurpreet is a child witness. He clearly stated that what the statement he had made in the Court had been made at the instance of his father. He admitted that his father had tutored him to make such statement against the appellant. Though from the perusal of the statement of PW. 5 Gurpreet, nothing goes against the appellant, however, he being a child witness, has been tutored by his father and, therefore, no reliance can be placed on the testimony of a tutored witness. 15. PW. 11 Kashmir Singh stated that the appellant, alongwith a girl and a boy came to his house. The appellant took a bicycle from him, left the boy at his house and the appellant and the girl went on the bicycle. He stated that why the appellant brought the girl, he did not know. He categorically stated that the prosecutrix and her brother PW. The appellant took a bicycle from him, left the boy at his house and the appellant and the girl went on the bicycle. He stated that why the appellant brought the girl, he did not know. He categorically stated that the prosecutrix and her brother PW. 5 Gurpreet, when stayed at his house, had not informed him that they were brought by the appellant by a deceitful means. He categorically stated that the prosecutrix went on a bicycle with the appellant on her sweet will. He further stated that the prosecutrix and the appellant told them that they would be going to Longawal a and returning back thereafter, 16. PW. 12, the prosecutrix, stated that on the relevant day, her father PW. 1 Jeet Singh went to Anoopgarh. The appellant also accompanied her father, however, the appellant came back and informed her that her father had called her. The appellant stayed at their house, prepared porridge (Haluwa) which was taken by her, her mother, Manga Singh and PW. 5 Gurpreet. Thereafter the appellant took her and her brother PW. 5 Gurpreet towards Pilibanga and from there they went to the bus stand, 13 GB and boarded the bus and reached a village near Pilibanga. Thereafter the appellant took them to a house where one old lady and a girl met them. There from, on a bicycle, the appellant took her to another village leaving behind her brother Gurpreet. On the way, in a cotton-crop field, the appellant did bad act with her. She lived with the appellant for about five to seven days, visited to various places and villages but she could not disclose the names of those villages. Thereafter the police came, caught them and brought to the police station. She stated that on two-three occasions, the appellant used force. She categorically denied that the appellant had been living in her Dhani for 3-4 months, however, she stated that the appellant seldom used to come there in connection with labour work. 17. From the statements of PW. 12 the Prosecutrix, her brother PW. 5 Gurpeet and father PW. 1 Jeet Singh, as also the statement of PW. 11 Kashmir Singh, it is more than clear that right from leaving the house, the prosecutrix voluntarily visited to various places with the appellant and left her brother PW. 5 Gurpreet Singh at the house of PW. 12 the Prosecutrix, her brother PW. 5 Gurpeet and father PW. 1 Jeet Singh, as also the statement of PW. 11 Kashmir Singh, it is more than clear that right from leaving the house, the prosecutrix voluntarily visited to various places with the appellant and left her brother PW. 5 Gurpreet Singh at the house of PW. 11 Kashmir Singh, assuring him that she and appellant would be going to Longawala and coming after sometime and at no point of time, she made complaint to any one that she was being taken by the appellant by a deceitful means. On the contrary, she lived with the appellant for 6 to 7 days and visited to various places. Even on being caught by the Police, she neither informed his father or mother, nor to any one that she was forcibly and by deceitful means taken away by the appellant or the appellant did anything with her. Even in her statement, the prosecutrix could say only at one place that the appellant did bad act, but what bad act was done, has not been disclosed by her. From the medical evidence, it has been established beyond reasonable doubt that the prosecutrix was habitual to sexual intercourse, which clearly goes to establish that the prosecutrix had sexual relations with the appellant even prior to accompanying him, as the appellant was on visiting terms to the prosecutrix and finding that the father of the prosecutrix was not available at the house, the prosecutrix accompanied the appellant alongwith her brother PW. 5 Gurpreet. At the house of PW. 11 Kashmir Singh, the prosecutrix left her brother PW. 5 Gurpreet there and thereafter all alone accompanied the appellant at her own sweet will to various places. 18. From this evidence, discussed here-in-above, it has been established beyond reasonable doubt that on the relevant date of the alleged occurrence, the prosecutrix was more than 19 years of age and was major. She, at her sweet will, voluntarily accompanied the appellant and though not established from the evidence that the appellant had sexual intercourse with her, but even assuming the words “bad act” as sexual intercourse, then it was with the consent and will of the prosecutrix and, therefore, in my view, the trial Court fell in error in convicting and sentencing the appellant for the offences noticed above. On close scrutiny of the statements of prosecution witnesses, discussed here-in-above, the prosecution has failed to prove the case against the appellant beyond reasonable doubt and, therefore, the Judgment and order impugned passed by the trial Court, convicting and sentencing the appellant, cannot be sustained and liable to be set aside. 19. Consequently, the jail appeal is allowed. The Judgment and order impugned dated 24.07.2002 passed by the Additional Sessions Judge (Fast Track), Anoopgarh, district Sri Ganganagar in Sessions Case No. 137/2001 is hereby set aside. Appellant Resham Singh S/o Bachan Singh is acquitted of the offences under Sections 363, 366-A and 376, IPC. The appellant is in jail. He be set at liberty forthwith, if not required in any other case.