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Punjab High Court · body

2007 DIGILAW 1083 (PNJ)

Arvinder Kaur v. State Of Punjab

2007-05-09

A.N.JINDAL

body2007
Judgment A. N. Jindal, J. 1. This judgment disposes of two Criminal Appeals Nos.503-SB and 519-SB of 1994, as the both arise out of the same judgment dated 15.10.1994 passed by additional Cessions Judge, Patiala, vide which accused Baldeep Singh alias Deepa was convicted under Sections 363, 366 and 376, whereas the remaining two accused, namely Arvinder Kaur alias Rozi and amarjit Kaur were convicted under Section 363/109 and 366/109 of the Indian Penal code and were sentenced as under: baldeep Singh U/s 376 IPC to undergo rigorous imprisonment for seven years and pay fine of rs.1,000, in default of payment of fine, to undergo further rigorous imprisonment for six months; u/s 366 IPC to undergo rigorous imprisonment for three years and pay fine of rs.1,000, in default of payment of fine; to undergo further rigorous imprisonment for six months. U/s 363 IPC to undergo rigorous imprisonment for three years and pay fine of rs.1,000, in default of payment of fine, to undergo further rigorous imprisonment for six months. Arvinder Kaur U/s 366 IPC to undergo and Amarjitkaur rigorous imprisonment for three years and pay fine of Rs.500, in default of payment of fine, to undergo further rigorous imprisonment for three months. U/s 363 IPC to undergo rigorous imprisonment for two years and pay fine of Rs.500, in default of payment of fine, to undergo further rigorous imprisonment for three months, each. 2. Baldeep Singh alias Deepa, aged about 22/23 years and Arvinder Kaur alias Rozi, aged about 18/19 years are son and daughter of Jagmohan Singh, whereas, Amarjit kaur is the brothers wife of Baldeep singh-accused. Arvinder Kaur alias Rozi and the prosecutrix (name not being disclosed)were the friends. Baldeep Singh-accused was employed on the shop diamond Saree and Silk Store, Patiala. Baldeep Singh and the prosecutrix had developed love affairs and he wanted to marry the prosecutrix, to which she was not agreeing. It has been further disclosed by Dalbir singh (PW7-father of the prosecutrix) (hereinafter referred to as the complainant)that on 27.6.1988 at about 11.30 a. m. ,accused-Arvinder Kaur alias Rozi took the prosecutrix from their house with the consent of her mother on the pretext to go to bazar, but she did not turn up. It has been further disclosed by Dalbir singh (PW7-father of the prosecutrix) (hereinafter referred to as the complainant)that on 27.6.1988 at about 11.30 a. m. ,accused-Arvinder Kaur alias Rozi took the prosecutrix from their house with the consent of her mother on the pretext to go to bazar, but she did not turn up. Since the prosecutrix did not turn up to her house up to 9.00 p. m. , they suspected that accused baldeep Singh had enticed her away with the connivance of Amarjit Kaur and arvinder Kaur alias Rozi. The complainant continued searching her till 12.40 p. m. on 28.6.1988. Ultimately, he got recorded his statement before the Station House Officer, police Station Kotwali, Patiala, on the basis of which formal First Information Report no.118 under Sections 363, 366 IPC was registered. Sub-Inspector Chaman Lal investigated the case, prepared the site-plan ex. PW11a of the place from where the prosecutrix was kidnapped. After long search, on 2.7.1988 at 5.30 p. m. , accused Baldeep singh along with the prosecutrix came to bus stand, Patiala, who were spotted by jagir Singh (PW10 ). The prosecutrix approached him, but accused Baldeep Singh took to his heals. Ultimately, Jagir Singh brought them out of the main bus stand and produced them before Sub-Inspector chaman Lai (PW11 ). She got recorded her statement under Sec.164 of the Code of criminal Procedure and got her medico legally examined. 3. On completion of the investigation, inspector H. P. Singh, SHO, Police Station kotwali, Patiala presented the challan against the accused in the Court. 4. Previously, Additional Sessions Judge, patiala framed charge against the accused under Sec.366 IPC vide his order dated 26.10.1988. Subsequently, on 1.4.1991, charge was amended to 363, 366 and 376 ipc against accused Baldeep Singh and charge under Sections 363", and 366 IPC against accused Arvinder Kaur alias Rozi and Amarjit Kaur. They did not plead guilty and claimed trial. 5. During the trial, the prosecution examined pw1 Dr. Anju Gupta, who medico legally examined the prosecutrix on 2/7/1988, recorded the age of the prosecutrix as 15 years and while appearing in the witness box, during cross-examination, she stated that the prosecutrix could be over 18 years of age and the absence of hymen indicated that she was used to sexual intercourse. Anju Gupta, who medico legally examined the prosecutrix on 2/7/1988, recorded the age of the prosecutrix as 15 years and while appearing in the witness box, during cross-examination, she stated that the prosecutrix could be over 18 years of age and the absence of hymen indicated that she was used to sexual intercourse. She further stated that the absence of hymen does not take place if she was subjected to sexual intercourse on isolated occasions or in a week. It takes months and years for sexual intercourse for the hymen to be absent. She proved the medico-legal report Ex. PB. She further stated that ossification is not the surer test to determine the age and the examination of teeth is an important factor for its determination. 6. Pw2 Dr. Amrit Pal Singh, Medical Officer, who conducted the ossification test upon the prosecutrix, stated that her age was found between 15 to 17 years. He proved his report Ex. PE. PW3 Amarjit Kaur, lecturer in Victoria senior Secondary School, Patiala proved the school leaving certificate relating to the prosecutrix Ex. PF, wherein her date of birth is mentioned as 4/1/1973. PW4 Dr. A. S. Thind, Registrar, Department of Forensic Medicines, Government medical College, Patiala, who had examined the accused observed that there is nothing to suggest if he was incapable of doing sexual intercourse. PW5 D. S. Malwai proved the statement of the prosecutrix under Sec.164 Cr. P. C. Ex. PK. PW6 is the prosecutrix, who supported the prosecution allegations that she was raped by accused Baldeep Singh at various places after they left Patiala and went to manikaran and on their way back. PW7 Dalbir Singh is the father of the prosecutrix, who besides supporting the allegations of kidnapping of the prosecutrix, has stated that the prosecutrix was less than 16 years of age at the time of the incident. PW8 Balwinder Kaur is the mother of the prosecutrix. She proved the age of the prosecutrix as 16 years and has further stated that on 28.6.1988 at 11.30 a. m. accused arvinder Kaur took the prosecutrix with her to the Bazar. Thereafter, she did not turn up and later on also, accused Amarjit Kaur told them that accused Baldeep Singh, arvinder Kaur and the prosecutrix had gone to Bazar and they should wait. Thereafter, she did not turn up and later on also, accused Amarjit Kaur told them that accused Baldeep Singh, arvinder Kaur and the prosecutrix had gone to Bazar and they should wait. PW9 Raghu Nandan Parkash, Sub-Registrar, births and Deaths, Municipal corporation, Amritsar proved the date of birth of the prosecutrix as 5.1.1973. He has proved entry in this regard Ex. PM. PW 10 Jagir Singh is a collateral of dalbir Singh (PW7), who had brought the accused and the prosecutrix and produced them before the police. According to him the prosecutrix was more than 18 years of age. PW11 Sub-Inspector Chaman Lal is the investigating Officer. He has proved the entire investigation as conducted by him from time to time. 7. On closure of the prosecution evidence, the accused were examined under Section 313 Cr. P. C. , in which they denied all the incriminating circumstances appearing against them and pleaded their false implication in this case. Baldeep Singh explained as under: "this case is false and I have been falsely implicated. The prosecutrix is an ill-reputed and immoral girl. I did not abduct her or kidnap her nor committed rape on her. I did not go to manikaran or Kiratpur Sahib with her nor stayed there in the Gurudwara. I did not make any entry in the gurudwara in the Register about my stay there and the stay of the prosecutrix and her statement is false. I was joined by the police in the investigation of this case from Diamond Saree, adalat Bazar, Patiala, where I am an employee. I had been attending my duties and did not absent from there on any day as alleged by the prosecution. I was joined and arrested on 28.6.1988 from the said shop falsely. " Amarjit Kaur, in her explanation submitted as under: "i had gone to Delhi on 25.6.88 in connection with the bhog of the path of the marriage of my sister, which was to be performed on 4.7.1988 at amritsar (the place of her in-laws) as desired by them. I remained there on 26.6.1988 also when a brunch was held. I attended the Bhog ceremony in connection with the marriage at Delhi and was there even on 27/6/1988. Thereafter, we all attended that marriage at Amritsar and had directly gone to Amritsar from Delhi to attend the marriage. I remained there on 26.6.1988 also when a brunch was held. I attended the Bhog ceremony in connection with the marriage at Delhi and was there even on 27/6/1988. Thereafter, we all attended that marriage at Amritsar and had directly gone to Amritsar from Delhi to attend the marriage. " Arvinder Kaur alias Rozi explained as under: "i accompanied my sister-in-law amaljit Kaur to Delhi and Amritsar for attending the functions of the marriage of the sister of my sister-in-law on 25/6/1988 and the marriage was to be performed on 4/7/1988 at Amritsar, (the place of her in-laws) as desired by them. I remained there on 26/6/988 also when a brunch was held. I attended the Bhog ceremony in connection with the marriage at Delhi and was there even on 27/6/1988. Thereafter, we all attended that marriage at. Amritsar and had directly gone to amritsar from Delhi to attend the marriage. " 8. In defence, the accused examined seven witnesses; DW1 Jagat Singh is the father of accused Amarjit Kaur. He has stated that amarjit Kaur was present at Delhi in connection with the Bhog of the Akhand Path at their residence on 26/6/1988. DW2 Maninderjit Singh Sodhi has stated that accused Baldeep Singh was arrested on 28.6.1988 and not on 2/7/1988 from the diamond Saree and Silk Store, Patiala, where he was employed. DW3 Sarup Singh son of Mohar Singh is co-employee of appellant Baldeep Singh. He has also supported the version of maninderjit Singh (DW2 ). DW4 Amarjit Singh is also a witness to the plea of alibi, raised by accused Amarjit kaur. DW5 Satwant Puri is the person, who examined the disputed gurmukhi writing ex. PB, corresponding to the writing and signatures on Ex. PB. 9. Ultimately, the trial ended in conviction of the accused and, hence, this appeal. 10. The counsel for the parties have been heard and record perused with their able assistance. 11. From the testimony of Balwinder kaur (PW8), it is evident that accused baldeep Singh was, on visiting terms to the house of the prosecutrix, without any objection on the part of the parents of the prosecutrix. Balwinder Kaur has admitted that accused visited their house on many occasions and the prosecutrix and Baldeep Singh were also on visiting terms with each other for the last more than year prior to the occurrence. This fact is in corroboration of the letter Ex. Balwinder Kaur has admitted that accused visited their house on many occasions and the prosecutrix and Baldeep Singh were also on visiting terms with each other for the last more than year prior to the occurrence. This fact is in corroboration of the letter Ex. PB which is in the hand of the prosecutrix which reflects their previous affairs -before they left their respective houses. Balwinder Kaur has further admitted that the letter Ex. PB is in the hand of her daughter. Not only this, Satwant Puri (DW5) document expert, Patiala after tallying writing on letter Ex. PB with the question writing Ex. DB vide his report Ex. DW5a opined that both correspond with each other. Dr Anju Gupta (PW1) specifically mentioned in her report Ex. PA that hymen was absent and there were no tear or marks of injury on the private parts of the prosecutrix. No secretion or discharge from vagina was present. During cross-examination, she stated as under: "it is correct that the development of pubic hair, breast and axillary hair indicated in this case that the prosecutrix could be over 18 years of age. The absence of hymen in this case indicated that she was used to sexual intercourse. The absence of hymen does not take place if she was subjected to sexual intercourse on isolated occasions or in a week. It takes months and years for sexual intercourse for the hymen to be absent. I have mentioned the age as told by the prosecutrix herself. There was no need of taking swab as there was no such discharge present in the vagina. " This expert evidence coming from the mouth of Dr. Anju Gupta, a. prosecution witness, in the absence of any suggestion that her this evidence was partial or motivated cannot be brushed aside altogether, but at the same time, this part of the statement demolishes the case of the prosecution as a whole and falsifies the testimony of the prosecutrix, whereby she stated that rape was committed by the accused only during the period when she stayed with her i. e. between 27/6/1988 to 2/7/1988, which is just less than one week. The circumstances speak for themselves that the accused and the prosecutrix had old habitual sexual perversions and she left the house of her own with the accused and not as a result of any threat or pressure. The circumstances speak for themselves that the accused and the prosecutrix had old habitual sexual perversions and she left the house of her own with the accused and not as a result of any threat or pressure. The statement made by the prosecutrix also cannot be said to be trust-worthy from another angle. She is not a minor, but a mature girl studying in 10th class. She left the house with the consent of her mother. ,the evidence reveals, that she was enjoying sex from prior to the date of occurrence, may not be with the mention to marry with the accused. She did not disclose in her statement that she left Patiala under fear, but she has stated that since amarjit Kaur asked the accused to take her out of Patiala, therefore, the accused took her to Chandigarh. Her fearless movements away from her house to various places indicate that she was a consenting party. She has stated that from Chandigarh, she was taken to Manikaran in a night-bus and she stayed there in room No.125, got allotted by accused Baldeep Singh, for two days. Thereafter, the accused took her to gurudwara at Kullu and from Kullu to kirtpur Sahib, where they stayed in the room of a Gurudwara. From Kiratpur, she was brought to Patiala. During this period of her stay and free movements throughout, she did not complain about her illegal custody by the accused to anyone amongst the public. She did not complain to the bhaiji or the Gurudwara or the other people staying in the Gurudwara. During this stay, they must be taking langer in the gurudwaras and going for toilet. She must have come across so many persons in the bus also, but she did not complain to anyone about the alleged high handedness of the accused. She had also not denied that when the bus started from Patiala, the police had checked the bus near Zirakpur chowk. However, admittedly, police personnel may be at the bus stand at Chandigarh. Had she not been a consenting party, then she would have approached the police to complain about the accused. Her testimony further reveals that she is changing her statement time and again. Once, she admits that letter Ex. DB is written and signed by her, but in the next breath she denies having scribed such letter. Had she not been a consenting party, then she would have approached the police to complain about the accused. Her testimony further reveals that she is changing her statement time and again. Once, she admits that letter Ex. DB is written and signed by her, but in the next breath she denies having scribed such letter. What to talk of handwriting of the letter, she has intelligently denied the signatures stating that the signatures on the letter are like her signatures. She also refused to depose as to whom she had written this letter. She also made various improvements over her statement under section 161 Cr. P. C. much less under section 164 Cr. P. C. Since, by the cross-examination of this witness, it has been fully established on the record that she is a consenting party, therefore, it will be needless to refer to such improvements. 12 Now coming to the next important question, which needs my consideration to bring home the guilt of the accused, is the age of the prosecutrix. In order to establish that the prosecutrix was below 16 years of age, it has relied upon the testimony of Dr. Anju Gupta, who conducted the medico legal examination of the prosecutrix on 2.7.1988, before whom the prosecutrix gave her age as 15 years. The second piece of evidence is the testimony of Dr. Amrit Pal singh (PW2), who conducted the ossification test and opined vide his report Ex. PE that her age was between 15 to 17 years. However, during cross-examination, he did not deny that the ossification test was not a sure test. The third piece of evidence is the school leaving certificate Ex. PF, wherein the date of birth of the prosecutrix is recorded as 4.1.1973. The fourth piece of evidence is the copy of the municipal record ex. PM of Municipal Committee, Chhahtra, where date of birth of one kaki was recorded as 5.1.1973. Other oral evidence is that of Balwinder Kaur (PW8), mother and dalbir Singh (PW7), father of the prosecutrix and Jagir Singh (PW10), a collateral of the prosecutrix. Before evaluating the reliability of the documentary evidence, I must proceed to examine the oral evidence in this regard. Other oral evidence is that of Balwinder Kaur (PW8), mother and dalbir Singh (PW7), father of the prosecutrix and Jagir Singh (PW10), a collateral of the prosecutrix. Before evaluating the reliability of the documentary evidence, I must proceed to examine the oral evidence in this regard. As far as Jagir Singh (PW10) is concerned, he has stated that the prosecutrix was the eldest daughter of Dalbir Singh and her age was 18 years and name of the elder daughter was Baby. Though Balwinder Kaur (PW8) has belied the testimony of Jagir singh and has stated that the prosecutrix is her younger daughter, but she could not maintain this stand in cross-examination, wherein, she disclosed that she was 22 years of age on the birth of the prosecutrix. She has given her age as 38 years. Therefore, certainly, the prosecutrix was 16 years of age at the time of occurrence. . In any case, her statement that date of birth of the prosecutrix is 4.1.1973, appears to be in conformity with the School Leaving Certificate, issued by Principal, Victoria Senior secondary School, Patiala. School Leaving certificate cannot be relied upon, as the original admission record was not produced on the record. The person, who got admitted her in the School was not examined. Balwinder kaur has not stated that if she got her admitted in the School and gave her date of birth as 4.1.1973.11 is also not established on the record as to on what basis the date of birth of the prosecutrix was recorded in the school records. Therefore, I am unable to place reliance on this evidence in the absence of best evidence in the form of the admission Register to prove the age. 13. Not only this, the School Leaving certificate is not in conformity with the entry in the Birth Register Ex. P. N. The School leaving Certificate disclosed the date of birth as 4/1/1973, whereas, Birth Entry register shows it to be 5/1/1973. In any case, this birth entry also cannot be connected with the prosecutrix as this entry relates to one kaki daughter of Dalbir Singh son of khazan Singh, Kartar Nagar, Chhehrta. Admittedly, the complainant is not a resident of Chhehrta, but have been residing at Patiala. In any case, this birth entry also cannot be connected with the prosecutrix as this entry relates to one kaki daughter of Dalbir Singh son of khazan Singh, Kartar Nagar, Chhehrta. Admittedly, the complainant is not a resident of Chhehrta, but have been residing at Patiala. Nevertheless, if the prosecutrix was born at her maternal parents house, even then the address of Dalbir Singh could be recorded as that of Patiala, but this entry ex. PM, where the address of Dalbir singh is recorded as that of Chhehrta reveals that it pertains to some other Dalbir singh and not the father of the prosecutrix. The other fact, which creates doubt for not to place reliance on this entry is that this birth entry relates to one kaki born on 5.1.1973, but none of the witnesses has stated that the prosecutrix was also known as kaki in her childhood, rather, Jagir singh has stated that her name was baby. At the cost of repetition, the other factor, which also creates dent in the prosecution case is that date of birth mentioned in the municipal Register records does not synchronise with the date of birth in the school Leaving Certificate. As such no authentic evidence is coming forth enabling me to observe that the prosecutrix was below 16 years of age, rather, there is sufficient evidence on the record including that of Dr. Anju Gupta (PW1) (who conducted the ossification test) and Balwinder Kaur (PW8) (mother of the prosecutrix) and Jagir Singh (PW10), to safely conclude that the prosecutrix was more than 18 years of age. 14. Nevertheless, the letters Ex. DB written by the prosecutrix prior to her leaving the house and also the medical evidence, where the doctor observed that the absence of hymen is due to continuous sexual intercourse and it could not be a result of sexual intercourse on isolated occasions or in a week, indicate that the prosecutrix had sexual relations with the accused since prior to her elopement with him on 27/6/1988. The prosecutrix remained moving in the company of Baldeep Singh from 27/6/1988 to 2/7/1989 without any resistance or pressure. In addition to it, she even did not complain to any person coming across them during travelling in the buses as well as at the places of their stay, leaves no doubt in the mind of this Court that she was a consenting party. In addition to it, she even did not complain to any person coming across them during travelling in the buses as well as at the places of their stay, leaves no doubt in the mind of this Court that she was a consenting party. The prosecutrix left her house with the consent of her mother and she joined Baldeep Singh (accused) in the Bazar. Further the fact that Baldeep Singh took her to different places and there is nothing on the record that Baldeep Singh ever took her with the promise that he would marry her, also establishes that she had left the house of her own and no offence of kidnapping or abduction is made out against any of the accused. The two ladies, namely; arvinder Kaur alias Rozi and Amarjit Kaur appear to have been involved in the case just to malign their reputation as the parents of the prosecutrix had already lost it due to the missing of their daughter. 15. For the foregoing reasons, I am constrained to hold that the Trial Court did not take into consideration the aforesaid facts. As such, the interference in the impugned judgment has become inevitable at my end. Consequently, I hereby accept the appeals and set aside the impugned judgment. Appeal allowed.