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2007 DIGILAW 448 (PNJ)

Shanti Devi v. State Of Punjab

2007-03-14

H.S.BHALLA

body2007
Judgment H.S.Bhalla, J. 1. This appeal is directed against the judgment dated 28.9.1993 passed by Additional Sessions Judge, Ludhiana, whereby he convicted the appellant under Sections 363/366/343/346 and 376 read with Section 109 of the Indian Penal Code. Appellant was sentenced to undergo rigorous imprisonment for three years under Section 363 of the Indian Penal Code and she was ordered to pay a fine of Rs. 500/-, in default thereof, she was further directed to undergo rigorous imprisonment for two months. Appellant was sentenced to undergo rigorous imprisonment for four years under Section 366 of the Indian Penal Code and she was ordered to pay a fine of Rs. 500/-; in default thereof, she was further directed to undergo rigorous imprisonment for two months. Appellant was further sentenced to undergo rigorous imprisonment for one year under Sections 343 and 346 of the Indian Penal Code respectively. Further, appellant was sentenced to undergo rigorous imprisonment for seven years under Section 376 read with Section 109 of the Indian Penal Code and she was ordered to pay a fine of Rs. 1,000/-; in default thereof, she was further directed to undergo rigorous imprisonment for three months. All the substantive sentences were ordered to run concurrently. 2. Briefly stated the facts of the prosecution case are that accused Shanti Devi and her husband Bansi Lal remained tenants in the house of Bhag Singh for three or four months. During this period, Baldev Parshad accused (Proclaimed offender) used to visit the house of Shanti Devi accused and Bansi Lal. Thereafter, Bansi Lal and Shanti Devi took another house in Gali No. 4, Janak Puri, Ludhiana, yet they remained on visiting terms to the house of Bhag Singh. Sometime, prosecutrix used to go to their house. On 2.6.1992 Shanti Devi accused and her brother Baldev Parshad came to the house of Bhag Singh and continued talking with his daughter and then went away. On 3.6.1992 a masionary work was going on in the house of Bhag Singh. Bhag Singh, in order to purchase material, left the house at 4.00 p.m. and when he returned to his house at 5.00 p.m. he found his daughter missing. He and his wife continued searching for her daughter for two days, i.e., on 3.6.1992 and 4.6.1992, but their all efforts remained futile. Bhag Singh, in order to purchase material, left the house at 4.00 p.m. and when he returned to his house at 5.00 p.m. he found his daughter missing. He and his wife continued searching for her daughter for two days, i.e., on 3.6.1992 and 4.6.1992, but their all efforts remained futile. On 5.6.1992 Bhag Singh, during search, met one Nirmal Singh of his Mohalla, who informed him that on 3.6.1992 his daughter was going on a Rikshaw with Shanti Devi and Baldev Parshad in Dholewal Chowk, Ludhiana. On receipt of this information, on 5.6.1993 Bhag Singh lodged a report, Ex. PA, with ASI Nishan Singh in Cheema Chowk, Ludhiana. On 6.6.1992 a school certificate, Ex. PB, was produced before ASI Nishan Singh, according to which, the date of birth of prosecutrix was shown to be 5.11.1976. 3. On 11.6.1992 ASI Nishan Singh met Bhag Singh along with other police officials in Partap Chowk, Ludhiana and they went in search of the prosecutrix and when they were proceeding towards Arora Cinema, ASI Nishan Singh received a secret information, on the basis of which, a raid was conducted on a deserted house located in new Kartar Nagar, Ludhiana. Accused Baldev Parshad was found standing in front of the room and on seeing the police party, he sped away. On search of the room, Shanti Devi and accused was found sitting holding the hand of prosecutrix. Memo reading recovery of the prosecutrix was prepared and she was got medico-legally examined and thereafter, custody of the victim was handed over to her father. Shanti Devi was arrested at the spot. Accused Baldev Parshad could not be arrested despite the best efforts made by the police and therefore, he was declared proclaimed offender. After completion of necessary investigation, accused was sent up for trial. 4. Accused was charge-sheeted under Sections 363/366/343/346 and 376 read with Section 109 of the Indian Penal Code to which she did not plead guilty and claimed trial. 5. Prosecution, in order to prove its case, examined nine witnesses, namely, Bhag Singh (PW-1), Prosecutrix (PW-2), Harminder Singh (PW-3), Gian Singh, Head Constable (PW-4), Dr. Arupam Watts (PW-5), Baldev Singh Constable (PW-6), Dr. G.S. Randhawa (PW-7), ASI Nishan Singh (PW-8), the Investigating Officer and Dr. Jasprit Kaur (PW-9). 6. 5. Prosecution, in order to prove its case, examined nine witnesses, namely, Bhag Singh (PW-1), Prosecutrix (PW-2), Harminder Singh (PW-3), Gian Singh, Head Constable (PW-4), Dr. Arupam Watts (PW-5), Baldev Singh Constable (PW-6), Dr. G.S. Randhawa (PW-7), ASI Nishan Singh (PW-8), the Investigating Officer and Dr. Jasprit Kaur (PW-9). 6. In her statement recorded under Section 313 of the Code of Criminal Procedure, the prosection denied all the prosecution allegations levelled against her and pleaded that she has been falsely implicated in the present case. 7. I have heard the learned counsel for the parties and have also gone through the record of the case carefully. 8. The primary argument advanced by the learned counsel appearing for the appellant is that the learned trial Court has erred in law in convicting the appellant under Sections 363/366/343/346 and 376 read with Section 109 of the Indian Penal Code even though no case is made out against the appellant under the aforementioned sections of the Indian Penal Code. The contention raised by the learned counsel for the appellant has to be examined in the light of the evidence available on the record and the findings recorded by the learned Additional Sessions Judge, Ludhiana. 9. The first question that arises in the mind of the Court after going through the charges framed against the appellant is as to whether the appellant can be convicted under Section 376 of the Indian Penal Code with the aid of Section 109 of the Indian Penal Code. In order to arrive at a right conclusion, first of all, I would like to go through the ingredients of Section 109 of the Indian Penal Code on the strength of which the appellant was held guilty of an offence punishable under Section 376 of the Indian Penal Code. The language of Section 109 of the Indian Penal Code reads as under :- "109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment - Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence." 10. It is the case of the prosecution that appellant is a married lady and is a real sister of main accused, i.e. Baldev Parshad (Proclaimed Offender), who has allegedly committed rape on the prosecutrix after kidnapping her. The allegation against the appellant is that she has helped the accused in kidnapping the prosecutrix. The evidence available on the record clearly spells out that it is the appellant, who helped her brother Baldev Parshad (Proclaimed Offender) in committing the commission of the crime by alluring the prosecutrix on the pretext of getting her married in a good family. In such like circumstances, at the most, the appellant can be convicted under Sections 363/366/343/346 of the Indian Penal Code but not under Section 376, inasmuch as the appellant, being a female, cannot be connected in any manner with the commission of the offence under Section 376 of the Indian Penal Code even with the aid of Section 109 of the Indian Penal Code. The act done by the principal accused Baldev Parshad, who, in fact, is the real brother of the appellant, in committing the offence of rape, as has been established by the medical evidence, for which the appellant cannot be made liable individually as if it had been committed by her. In such like circumstances, the findings recorded by the learned Additional Sessions Judge connecting the appellant with the commission of offence of rape under Section 376 read with Section 109 of the Indian Penal Code, are erroneous and are not sustainable in the eye of law, inasmuch as, the requirements contained in Section 375 of the Indian Penal Code to prove the offence of rape are not fulfilled, especially in the case of a female accused. Accordingly, the appellant is acquitted of the charge framed under Section 376 read with Section 109 of the Indian Penal Code. So far as charges framed against the appellant under Sections 363/366/343 and 346 of the Indian Penal Code are concerned, I am of the view that there are sufficient cogent, unimpeachable and reliable evidence available on the record, which have been minutely scrutinized by me and approach of the learned Additional Sessions Judge in convicting the appellant under the aforementioned sections of the Indian Penal Code is quite right. In such like circumstances, I subscribe to the findings of conviction recorded by the learned trial Court against the appellant under the aforementioned sections and accordingly, convict the appellant only under Sections 363/366/343 and 346 of the Indian Penal Code. On the point of quantum of sentence, the learned defence counsel has prayed for taking a lenient view against the appellant, firstly, on the ground that the appellant is a married woman and has her own family to look after; secondly, the appellant has already remained in custody for one year and six months during the trial of the case and thirdly, the appellant has been facing mental agony on account of the pendency of the appeal for the last more than 14 years and now sending her jail at this stage would be unjust and instead chances of reforming herself will become bleak. That apart, it will bring disrepute not only for the appellant, but to the entire family concerning her, especially for the new generation to come who would be facing a social stigma at a later stage in every walk of life. Considering the facts and circumstances of the case in its entirety and the present circumstances, as discussed above, I am inclined to take a lenient view in the matter of sentence against the appellant. Accordingly, taking a lenient view, it is directed that conviction against the appellant under Sections 363/366/343 and 346 of the Indian Penal Code shall be maintained and the period of sentence awarded by the trial Court shall be reduced to the one, which she has already undergone by her while remaining in custody. With the aforementioned reduction in sentence, appeal is partly allowed.