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2007 DIGILAW 579 (PNJ)

Bahadur Singh v. State Of Punjab

2007-03-21

A.N.JINDAL

body2007
Judgment , J. 1. This judgment of mine shall dispose of the Criminal Appeal filed by accused Raghbir Singh challenging his conviction under Sec.366 IPC and the revision petition filed by complainant Bahadur Singh against the acquittal of the accused under Sec.376 IPC vide judgment dated 23.8.1994 passed by Additional Sessions Judge, Patiala. On 19.10.1991, at about 6 a. m. Prosecutrix (name not disclosed) had gone to attend the call of nature but she did not return. Crl. A. No.386-SB of 1994 -2-Despite efforts, she could not be traced. However, she was recovered on 6.11.1991 and she was produced by Gurbax Singh, uncle of Harmesh Kaur before police. Then on the statement made before the police that the accused had committed rape upon her at various places, FIR No.65 dated 24.10.1991 was registered against him. She also made a statement under Sec.164 of cr. P. C. before the Judicial Magistrate Ist Class, Rajpura regarding rape committed upon her. 2. On completion of investigation, challan against the accused was presented in Court. He was charged accordingly. In order to support the case, Prosecution examined PW1 Dr. Ram Kumar, PW2 Dr. Anita Sood, pw3 Harmesh Kaur, PW4 Bahadur Singh, PW5 Mehar Chand Sharma, pw6 Gurbax Singh, PW7 Sh. R. C. Sachdeva (S. D. J. M.), PW8 Gulzara Ram i. O. and PW9 HC Kuldip Singh. When examined under Sec.313 Cr. P. C. the accused denied the circumstances appearing against him and pleaded that the prosecutrix was in love with him and was writing letters to him. Letters Mark A and B were written by her. She had been asking him through these letters to take her away. He had turned down the request of the prosecutrix to accept her in marriage. On his refusal, Bahadur Singh, father of the prosecutrix and her other relations felt offended and implicated him in this case. The trial Court while holding the prosecutrix as consenting party, acquitted the accused under Sec.376 IPC but while observing that she was less than 18 years of the age and had been kidnapped by the accused from the lawful guardianship of her father Bahadur Singh, hold him guilty of the offence under Sec.366 IPC and sentenced him accordingly. The date of occurrence is stated to be 19.10.1991, the crl. A. No.386-SB of 1994 -3- 3. The date of occurrence is stated to be 19.10.1991, the crl. A. No.386-SB of 1994 -3- 3. Prosecutrix was recovered by the police from accused Raghbir Singh on 6.11.1991 and the FIR was registered on 24.10.1991. It has come in evidence that first of all, the accused committed rape upon the prosecutrix in the room on the tubewell and thereafter, he took her on a tractor by threatening to kill her, to village Barwala from there they went to Yamuna nagar and other places. They had visited Gurdwara Sis Ganj Delhi, Hazur sahib, Sri Harvinder Sahib Amritsar, Tarn Taran, Goindwal Sahib and then to Gurdwara Dukh Niwaran Sahib Patiala. During this period of abduction, she never made any complaint at any place to any public man or official about her illegal custody at the aforesaid places. She also did not raise any hue and cry in the buses in which they travelled, therefore, certainly she was a consenting party. The revision petitioner has failed to show any evidence if she was below 16 years of age at the time of occurrence or that the rape was committed upon her by force. Therefore, I do not find any reason to hold that the accused was guilty of rape. Now coming to the other offence under Sec.366 IPC, overwhelming evidence has been led by the prosecution that she was born on 19.9.1974 and at the time of occurrence, she was 17 years and 2 months. Besides the testimony of her father, the date of birth has been proved by examining PW5 Mehar Chand, who proved the admission register of government Primary School, Ibrahimpur. As such, it was rightly held by the lower Courts that she was below 18 years of age at the time of occurrence. 4. Faced with the situation Ms. Baljit Kaur Mann, learned counsel for the appellant, while referring to the latest judgment delivered by the apex Court in State of Chhattisgarh Vs. Lekhram 2006 (2) RCR crl. A. No.386-SB of 1994 -4- (Criminal) 475, requested for taking a lenient view and modify the sentence of the accused accordingly. I have perused the judgment in Lekhrams case (supra)wherein the Apex Court observed as under : the prosecutrix was a mature girl. She was married. She spent a few months in her in-laws place. The respondent was working in her house. They, thus, knew each other for a long time. I have perused the judgment in Lekhrams case (supra)wherein the Apex Court observed as under : the prosecutrix was a mature girl. She was married. She spent a few months in her in-laws place. The respondent was working in her house. They, thus, knew each other for a long time. The prosecution evidently could not prove its case that she was enticed away from the custody of her guardian by the Respondent on a false plea that he would marry her. She denied the said suggestion as presumably she was aware that she being married, the question of her marrying the Respondent again may not arise. She lived for some time with the Respondent in a rented house. Both the courts proceeded on the basis that she was a consenting party. The occurrence took place in the year 1986. The Respondent preferred an appeal before the High Court in the year 1987. The same remained pending about 10 years. The special leave petition was filed by the State 230 days after the prescribed period of limitation for preferring such appeal. The delay in filing the special leave petition, however, was condoned. He is said to have remained in custody for about one and a half year. In the peculiar facts and circumstances of this case and having regard to the fact that both the courts have arrived at the conclusion that she was a consenting party, in our opinion, it may not be proper to send the Appellate back to prison. Crl. A. No.386-SB of 1994 -5- 5. The present case is also on the similar footing. The prosecutrix in this case was also mature and it was also reported that she is married by now. It is evident from the record that she went with the accused and stayed with him at different places and that she was a consenting party, therefore, now after 16 years of the case, it will not be just and proper to send the accused-appellant behind the bars. The custody certificate shows that the accused remained in custody for 2 months and 5 days. For the foregoing reasons, both revision petition and the appeal are dismissed with the modification that interest of justice would be met if the accused-appellant Raghbir Singh is directed to be sentenced to the period already undergone by him. However, the sentence of fine shall remain intact.