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2008 DIGILAW 870 (PNJ)

Som Nath v. State Of Punjab

2008-04-10

KANWALJIT SINGH AHLUWALIA

body2008
Judgment Kanwaljit Singh Ahluwalia, J. 1. Som Nath (appellant) has been convicted by the Court of Additional Sessions Judge, Ludhiana for offence under section 376 IPC to undergo rigorous imprisonment for five years and to pay a fine of Rs. 2,000/- and in default of payment of fine to undergo rigorous imprisonment for six months. While awarding sentence of five years, the learned trial Court took into consideration the fact that accused was a young boy. 2. The appellant was named as accused in FIR No. 190 dated 20.09.1994 registered at Police Station Civil Lines, Ludhiana under section 376 IPC. FIR (Ex.PW 8/B) was recorded at the instance of Prem Singh son of Bhagat Singh, who stated that he has three sons namely Tejinder Singh, Kulwant Singh and Kuldip Singh and one daughter namely Kamaljit Kaur. His daughter has studied up to 6th class and he along with his children was residing in his house No. 767, Prem Nagar, Ghumar Mandi. His house is said to be double storied. He used to reside on the ground floor along with his children. Two rooms of upper portion were given on rent. In the upper portion, Brij Mohan was residing along with his family members. Family of Brij Mohan consisted of his mother, brother and children. Brij Mohan has three sons and one daughter. Daughter of Brij Mohan was married. Eldest son of Brij Mohan, Som Nath was working as accountant. Son of the complainant, Kulwant Singh also used to go to Dholewal to do the work of accounts. Complainant used to go to do the work of polish of grinder and his other son used to go to Dashmesh Nagar to do the work of lathe. Complainant stated that in the evening, they used to return to the house and 2-3 days ago his daughter Kamaljit Kaur was looking sad. On asking, she disclosed that from the last 2-3 months Som Nath, who was son of the tenant on the first floor, has committed bad work with her for 5-6 times and he had pressurized her not to narrate this fact to her father and threat of killing was also given. It is stated that complainant became nervous and then discussed the mater with Lakshmi Narayan and Jang Bahadur Bindra and then came at police post to give the information. 3. The matter was investigated. It is stated that complainant became nervous and then discussed the mater with Lakshmi Narayan and Jang Bahadur Bindra and then came at police post to give the information. 3. The matter was investigated. Report under section 173 Cr.P.C. was submitted and the appellant Som Nath, who was aged 24 years, was charged for offence under section 376 IPC. Prem Singh complainant appeared as PW-1. In cross- examination, Prem Singh admitted that Som Nath, appellant along with his five family members used to reside in one room on the upper floor of the house. In cross-examination, he admitted that it was enquired from Kamaljit Kaur as to why she had gone weak and why she was vomiting. Upon that she told that she was pregnant. He admitted that Kamaljit Kaur had told regarding pregnancy a day or two days prior to the lodging of the report. He admitted that he had not stated to the police in the report that his daughter was pregnant. Kamaljit Kaur appeared as PW-2. At the time of recording evidence, she had given her age as 17 years. She stated that three months before the present occurrence, she was all alone in the house. Som Nath came to her. He caught hold of her from arms and forcibly took her to his room on the first floor. No body was present in the said room. The accused threw her down on a cot, forcibly removed her cloths and committed sexual intercourse. She was threatened not to disclose this fact to any body. She stated that on different days, accused Som Nath took her to his room for 5-6 times and committed sexual intercourse and she had not disclosed this fact to any body. 2-3 days prior to reporting the matter to the police, she started feeling giddy and was vomiting. Then her father saw her and then she told that she was not having her menses and she learnt that she had become pregnant. She stated that on 18th September, 1994, she was taken by the investigating officer to the Civil Hospital, where she was x-rayed and her blood and urine were also tested. She stated in cross-examination that first time when the accused committed sexual intercourse, it was 11/12 noon. She stated that on 18th September, 1994, she was taken by the investigating officer to the Civil Hospital, where she was x-rayed and her blood and urine were also tested. She stated in cross-examination that first time when the accused committed sexual intercourse, it was 11/12 noon. She admitted that when accused caught hold of her and committed sexual intercourse, she had not bolted the door and her mother had left the house about two hours earlier. She further stated that after two days of the first sexual intercourse, accused again came at the same time and took her upstairs for sexual intercourse. Both time, her mother was not there. At that time also, she had not bolted the door. She further stated that accused used to come after every two days and took her upstairs for committing sexual intercourse and every time door was not bolted from inside. She admitted that accused used to come after every two days and committed sexual intercourse for about two months. She stated that last time, accused has taken her for intercourse on 15th August, but she did not remember the year. She further stated that accused used to do sexual intercourse with her even after she had missed her menses. She stated that she did not disclose to the accused that she had become pregnant. She stated that 15th August was a holiday and her parents and family members were not at home. She stated that when her father asked, never before that she was sad or depressed. She admitted that accused used to kiss her and play with her breast and after a foreplay, they used to have sexual intercourse for half an our. She further admitted that accused followed this practice all the times he had sexual intercourse with her. She admitted that her house was in densely populated area. 4. PW-3, Dr.Kulwant Singh examined Som Nath accused and declared him to be fit for sexual intercourse. PW-4 Harminder Singh is a draftsman and prepared scaled site plan (Ex.PC). He stated that along the house there were shops. PW-5 ASI Dilbag Singh had taken the prosecutrix Kamaljit Kaur to Civil Hospital for medical examination. PW-6 Dr. Jagdish Kaur examined Kamaljit Kaur and given her age as 15-1/2 years. She found no external or internal injury on the person of Kamaljit Kaur. He stated that along the house there were shops. PW-5 ASI Dilbag Singh had taken the prosecutrix Kamaljit Kaur to Civil Hospital for medical examination. PW-6 Dr. Jagdish Kaur examined Kamaljit Kaur and given her age as 15-1/2 years. She found no external or internal injury on the person of Kamaljit Kaur. On local examination, hymen of the prosecutrix was torn and healed. Her vagina admitted two fingers and her urine for pregnancy test was found positive and she was found pregnant. She stated that age of the prosecutrix was mentioned on the MLR according to her own version. PW-7 Karamdeep Singh is Principal of Deep High School. He proved the school record, as per which the date of birth of the prosecutrix was given as 30th December, 1978. Karamdeep Singh was thoroughly cross-examined. He admitted that he had changed his name. He was cross-examined regarding authenticity of the certificate and he said that record is not available as the same has been destroyed in the floods. PW-8 SI Gurmukh Singh is the investigating officer. He admitted in cross-examination that he has tried to see the municipal record regarding the birth of the girl. He stated that school certificate (Ex.PW7/A) was not produced before him. Later he stated that the complainant had produced the same. He admitted that he had not interrogated the person, who had issued the certificate. 5. The entire incriminating circumstances were put to the accused. He denied the same and stated that since Prem Singh wanted to evict his father, therefore various allegations have been leveled. 6. In the present case, at the time of medico-legal-examination, prosecutrix had given her age as 15-1/2 years. As per school certificate (Ex.PW7/A), authenticity of which has been doubted, as the record, according to the witness, was destroyed in the floods and the witness, who issued the certificate, had changed his name also and there is question mark regarding her education also. Even as per the certificate (Ex.PW7/A), the age of prosecutrix, on the day of occurrence, was 15 years and 9 months, there is no doubt that the prosecutrix was bordering 16th year of her age. Municipal record and the birth certificate has been withheld from the Court. No effort was made to produce the same or to examine any body from the municipal records. Ossification test of the prosecutrix was also conducted. Municipal record and the birth certificate has been withheld from the Court. No effort was made to produce the same or to examine any body from the municipal records. Ossification test of the prosecutrix was also conducted. Ossification test record has been exhibited as Ex.PX. as per ossification record, radiologist has determined her age to be between 17 and 19 years. In the present case, where authenticity of school certificate is doubtful and birth certificate from the municipal record has been withheld, this Court can safely rely upon the report of the radiologist, who had conducted ossification test for determining the age. 7. Since as per the radiologist, the age of the prosecutrix was between 17 to 19 years and the fact that according to prosecution herself, the prosecutrix was bordering 16th year of her age, I have no hesitation to hold that on day of occurrence, prosecutrix was more than 16 years old. The entire testimony of PW-2 Kamaljit Kaur proves that she was the consenting party. After every two days, she used to have sexual intercourse with the accused and this according to her, continued for two months. The door was never bolted. The prosecutrix and accused used to have sexual intercourse when no body was at house. The prosecutrix has admitted that before sexual intercourse, they used to have foreplay and the scene had continued for 1-2 months. First time, when she was vomiting and feeling giddy, it became known to her after two days before reporting the matter, that she was pregnant. 8. Therefore, her entire testimony is sufficient to hold that she was a consenting party. Since I have held that the age of the prosecutrix was more than 16 years and she was the consenting party, I have no option except to accept the present appeal and to set aside conviction and sentence of the appellant and to acquit him.