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2009 DIGILAW 923 (PNJ)

Jasbir Singh v. State Of Punjab

2009-05-12

HARBANS LAL

body2009
Judgment 1. This appeal is directed against the judgment dated 30-4-2003/order of sentence dated 1-5-2003 passed by the court of learned Additional Sessions Judge, patiala whereby he convicted and sentenced jasbir Singh accused to undergo rigorous imprisonment for 5 years and to pay a fine of Rs.3,000/- under S.366 of IPC and in default of payment of fine to further undergo rigorous imprisonment for six months and further sentenced him to undergo rigorous imprisonment for four years and to pay a fine of Rs.2,000/- under S.368 of IPC and in default of payment of fine to further undergo rigorous imprisonment for two months and further sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs.200/- under S.342 of IPC and in default of payment of fine to further undergo rigorous imprisonment for seven days and also sentenced him to undergo rigorous imprisonment for 1 1/2 years and to pay a fine of rs.500/- under S.506 of IPC and in default of payment of fine to further undergo rigorous imprisonment for 15 days and also convicted and sentenced Sinder Pal Kaur alias sinder to undergo rigorous imprisonment for four years and to pay a fine of Rs.2,000/-under S.368 read with S.366 of IPC and in default of payment of fine to further undergo rigorous imprisonment for four months with a further direction that the substantive sentences of Jasbir Singh shallrun concurrently and on realisation of fine, an. amount of Rs.2,000/- shall be paid as the compensation to the victim under Sec.357 of Cr. P. C. 2. The facts in brief are that on 29-7-2001, asi Jit Singh along with other police officials being on patrol duty happened to be present at bus stoppage of Village Siamal mairi, where Naranjan Singh made statement before him in terms that he has got five daughters and a son out of whom, his four daughters have been married off. His younger daughter, the prosecutrix (name of the victim is not being indicated to prevent her social victimisation in view of Premia alias prem Parkash V/s. State of Rajasthan, 2008 (4)Recent Criminal Reports (Criminal) 539 (SC): (AIR 2009 SC 351)) was 18 years of age. She had appeared in her matriculation examination. On 15-5-2001, he along with his wife Jagmail Kaur was away from their house in connection with some private affair. She had appeared in her matriculation examination. On 15-5-2001, he along with his wife Jagmail Kaur was away from their house in connection with some private affair. Around 6.00 p. m. , when they returned home, they found their daughter (prosecutrix) missing from the house. They made search with their relatives about her. When she could not be found, on 5-7-2001, they reported matter to the police with regard to her missing from the house. At about 10.30 a. m. , he received a telephonic message from his daughter. She narrated by weeping that she has been kept confined forcibly by Jasbir Singh accused, who had brought her from the house of his maternal aunt Sinder Pal Kaur accused and that she is making this telephonic call by giving slip to the accused Jasbir Singh. She further told that on 15-5-2001, when they (referring to Naranjan Singh complainant and his wife) were away from the house, meanwhile, the accused Jasbir Singh, a relative of mohan Singh of their village came to their house and enticed her away by saying that he would satisfy all her desires as he was running a big business and she was allured by his such talks and further narrated that he took her with him and when she found that he was not having even his own house, he forced her to many with him. If she refused to do so, he would kill her lonely brother and members of her family. By putting her under fear, he has performed marriage with her in a Gurdwara. He has threatened that in the court, she will have to say, whatever he was dictating to her and accordingly she did. She further told that in all such episode, there was involvement of Sinder Pal Kaur accused. On the basis of this statement, FIR was registered against both the accused. From the house of Tarsem Lal son of Jagir Chand resident of Sialwa Majri, P. S. Kurali, District ropar, the prosecutrix along with the accused jasbir Singh was recovered. Both the accused were arrested on 29-7-2001. After completion of investigation, the charge-sheet was laid in the Court of learned Illaqa Magistrate, who committed the case to the Court of Sessions for trial of the accused. 3. On commitment, the accused were charged under Ss.366/368/376/342/506 of ipc to which they did not plead guilty and claimed trial. Both the accused were arrested on 29-7-2001. After completion of investigation, the charge-sheet was laid in the Court of learned Illaqa Magistrate, who committed the case to the Court of Sessions for trial of the accused. 3. On commitment, the accused were charged under Ss.366/368/376/342/506 of ipc to which they did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW 1 gurcharan Singh, PW 2 Dn Pamela Chopra, pw 3 Dr, Jagrup Singh, PW, 4 Dr. Chander mahani, PW 5 Naranjan Singh complainant, pw 6 MHC Mohan Singh, PW 7 Lady Constable Bimla Devi, PW 8 ASI Jit Singh, the investigator and closed its evidence. When examined under Sec.313 of Cr. PC, both the accused denied all the incriminating circumstances appearing in the prosecution evidence against them. Jasbir Singh, accused put forth that he never enticed or abducted the prosecutrix, who is his legally wedded wife he never committed sexual intercourse against her wishes. The accused Sinder Pal kaur pleaded false implication. In her defence, she examined DW 1 Surinder Singh, junior Engineer of the office of Superintending Engineering (Operation Circle) Guru gobind Singh Super Thermal Plant, Ropar. They closed their defence evidence. After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced both the accused as noticed at the outset. Feeling aggrieved with their conviction/sentence, they have preferred this appeal. 4. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. 5. Mr. Rahul Rathore, urged with great eloquence that the learned trial Court has gravely erred in not appreciating the fact that a case of love marriage was being given a colour of abduction at the instance of the prosecutrix for the reasons best known to her despite the fact that sufficient evidence has been adduced to show that she was not only the consenting party but wilfully she had agreed to enter into marriage with Jasbir singh accused-appellant in a Gurdwara according to Sikh Rites/customs on 22-5-2001 after having left their house for achieving this goal on 15-5-2001 along with the. aforesaid accused-appellant. He further puts that admittedly, the prosecutrix being more than 19 years, of age has been held by the learned trial Court to be a consenting party to the sexual intercourse. aforesaid accused-appellant. He further puts that admittedly, the prosecutrix being more than 19 years, of age has been held by the learned trial Court to be a consenting party to the sexual intercourse. He further argued that as is borne out from the evidence, after performing the marriage with the afore-referred accused-appellant; the prosecutrix stayed with him for about 2/2 1/2 months. She has admitted the photographs Ex. D.1 to D.11 relating to their marriage and this fact go along way in suggesting that the marriage was performed with her consent. Besides this, it has also been established on the record that Court marriage was also performed by the prosecutrix with the accused-appellant referred to hereinbefore. A fortiori, she has admitted in candid terms that she did not complain before the marriage office that she Was under force or duress. More to the point, she along with the accused-appellant Jasbir Singh had moved a joint application before the learned additional Sessions Judge, Ropar on 12-6-2002 through Mr. Udham Singh Advocate seeking their anticipatory bail and she has admitted her signatures on such application. On putting all these facts together, an inference which can be drawn safely is that she had left her parental house wilfully and being major, had got performed her marriage with the said accused-appellant. The learned trial Court has not appreciated the fact that the prosecutrix acknowledged that she ever was a major at the relevant time and she did not sustain any injury, nor she ever resisted the act of the aforesaid accused-appellant and allowed repeated sexual intercourse to the said accused. The learned trial Court was not justified in recording conviction under Sec.366 of IPC or 368 of IPC or other offences particularly when the accused has been acquitted of the charge under Section 376 of IPC. The record is quite barren to show that Sinder Pal Kaur alias Sinder in any manner was instrumental in performing the marriage of the prosecutrix with accused-appellant Jasbir Singh, A mere fact alleged by the prosecutrix that after performing of the marriage, she stayed at the house of sinder Pal Kaur alias Sinder accused, maternal aunt of accused-appellant. Jasbir Singh by no stretch of imagination would bring her act within the purview of Ss.368/366 of IPC. 6. To controvert these submissions, Ms. Jasbir Singh by no stretch of imagination would bring her act within the purview of Ss.368/366 of IPC. 6. To controvert these submissions, Ms. Ravinder Kaur Nihalsinghwala on behalf of the State maintained that the prosecutrix has stated in clear and unambiguous terms that she was abducted by the accused-appellant jasbir Singh and she was coerced to marry with him and in their marriage Sinder Pal kaur alias Sinder accused-appellant had played an active role. This apart, she had also kept them in her house after their marriage and thus, the charge is fully established against both the accused-appellants. 7. I have given a deep and thoughtful consideration to the rival contentions. 8. The learned trial Court has observed that "accused Jasbir Singh had enticed away the victim and committed repeated acts of sexual intercourse with her though such acts could not be proved within the purview of section 376 of IPC. He allured victim, a young girl of just 19 years and few months old and abducted her with intention to compel her to perform marriage with him and he had compelled her to perform marriage with him. " Needless to say. the accused-appellant, jasbir Singh has been acquitted of the charge under Sec.376 of IPC by the learned trial court by holding that the prosecutrix was a consenting party. To be determined herein is as to Whether it is a case of elopement or enticement. It is abundantly clear from the above observations that the prosecutrix was above 19 years of the age at the time of commission of the offence. The learned State counsel has not posed a challenge to this finding. Furthermore, Naranjan Singh-complainant-father of prosecutrix has also given the age of the prosecutrix to be more than 19 years in the FIR. The prosecutrix as PW 4 has testified in her cross-examination that "my date of birth is 2-4-1982". The occurrence started on 15-5-2001, though the FIR came into being on 29-7-2001. So, on calculating, it transpires that as per record she was more than 19 years of age. It is in her further cross-examination that "jasbir Singh (referring to the accused) had been visiting our house since time immemorial. My parents and I were also visiting the house of Jasbir singh, then said, my parents and I were visiting the house of Sohan Singh". It is in her further cross-examination that "jasbir Singh (referring to the accused) had been visiting our house since time immemorial. My parents and I were also visiting the house of Jasbir singh, then said, my parents and I were visiting the house of Sohan Singh". It is in her further cross-examination that "i had never asked Jasbir Singh to get prepared documents for performing marriage. I have seen photographs Ex. D.1 to Ex. D.11 and I identify myself in these photographs. I do not know whether Ex. D.1 to Ex. D.11 are regarding my marriage with accused Jasbir Singh. Ex. D.1 to Ex. D. ll are relating to marriage, which was forcibly performed with me of jasbir Singh. But for this case, I did not complain before any police officer against Jasbir singh, any Sikh priest about subjecting me to forcible marriage with Jasbir Singh. " It is deducible from this evidence that the prosecutrix did not complain to the priest that her marriage with Jasbir Singh was being celebrated against her wishes. This leaves no scope for doubt that the marriage was an outcome of her volition. That being so, by no process of reasoning, the same cart be described to be the result of use of force by the accused Jasbir Singh. If she had not been willing to solemnise her marriage with the said accused, by all human probabilities, she would have pointed out to the priest that her marriage was being performed against her wishes. As soon as, she would have complained about this fact, the priest would have stopped the marriage ceremonies. It is own evidence of the prosecutrix that at no stage she lodged any protest against the performance of her marriage with the aforesaid accused. 9. It is in her further cross-examination that "when I was brought for Court marriage, i was under duress and threat of killing my brother, and my family members. That is why, I did not complain before the officer conducting proceedings of Court marriage. " by no stretch of speculation, it can be presumed that even in the presence of the Presiding Officer of the Court, she would have been scared or unsafe. It was such a place, where she would have been under the umbrella of protection. That is why, I did not complain before the officer conducting proceedings of Court marriage. " by no stretch of speculation, it can be presumed that even in the presence of the Presiding Officer of the Court, she would have been scared or unsafe. It was such a place, where she would have been under the umbrella of protection. Had she been reluctant to enter into marriage with the accused-appellant Jasbir Singh, by all probabilities, she would have brought so to the pointed notice of such officer. In such cases, when the girl and boy who are major are recovered, in pursuance of the registration of the case against the boy, at the instance of the girls father or other relatives, after, observing certain formalities, the person of the girl is handed over to her father or/mother as the case may be. Thereafter, the girl buckles down under the pressure of her, mother or father or both or relatives and make a statement before the police throwing the entire blame on the boy, thereby betraying the latter. She gets settled in her life by marrying with someone else, though the boy goes on languishing in the jail. He remains loser in all the spheres or walks of life. In some cases, it is the girl, who in fact induces the boy to run away from home and enters into marriage with him. When she turns hostile to the boy under the circumstances narrated, hereinbefore, it is only the boy, who faces the music, albeit, she had actively participated in the run away marriage. That being so, in these cases, the court has to be extra-cautions and vigilant while analysing and evaluating the evidence. 10. It is in her further cross-examination that "i do not know whether jasbir Singh and i had moved an application on 12-6-2001 before learned Sessions Judge, Ropar for grant of bail. I do not know whether Udham singh was Advocate for filing such application on our behalf. I identify my signatures mark-B on Mark-B1, photostat copy of bail application, but my these signatures were obtained forcibly". A glance (through Ex. D. l, ex. D.9. Ex. DA/1, the certified photostat copies of the bail application would reveal that it purportedly bear her signatures as well as the signatures of Jasbir Singh. Ex. I identify my signatures mark-B on Mark-B1, photostat copy of bail application, but my these signatures were obtained forcibly". A glance (through Ex. D. l, ex. D.9. Ex. DA/1, the certified photostat copies of the bail application would reveal that it purportedly bear her signatures as well as the signatures of Jasbir Singh. Ex. DB is the copy of the order dated 14-6-2001 passed by the Court of Additional Sessions Judge, ropar. Ex. DC is a certified copy of her affidavit. As the contents of this affidavit proceed, on 22-5-2001, she solemnised her marriage with Jasbir Singh accused in Gurudwara shri Akal Garh Sahib according to Sikh rituals of her own accord, without any fear and pressure and since that day she and Jasbir singh have been cohabiting as husband and wife and that she has entered into this marriage against the wishes of her father and mother as they were not happy with their marriage. This affidavit purport to have been notarised by the Notary Public, Roopnagar (Pb ). When this affidavit was got attested, she would have brought to the notice of the notary Public that her signatures have been obtained under this affidavit, forcibly. She would have declined to append her signatures under this affidavit before the Notary Public. It is very difficult to presume that at every stage, the alleged threat continued hovering over her head. As such, the version given out by her is unbelievable and farfetched. She has deliberately regretted her inability to tell whether the above-mentioned bail application was moved jointly before the learned Sessions Judge, Ropar or the aforementioned Advocate was engaged as a counsel. It was very facile for her to say later on in the trial Court that her signatures Mark B on Mark B1 were obtained forcibly. There is no vouch for this fact. 11. It is in hex further cross-examination that "on photostat copy of affidavit Mark c.1, Mark C.2, Mark C.3 are not my signatures. On Mark Mark C.4 is not my signatures. " She has intentionally denied her signatures on these documents. If these were not her signatures, the prosecution to be more precise would have examined some document expert to prove that these documents do not bear her signatures. On Mark Mark C.4 is not my signatures. " She has intentionally denied her signatures on these documents. If these were not her signatures, the prosecution to be more precise would have examined some document expert to prove that these documents do not bear her signatures. It is in her further cross-examination that "i did not swear any affidavit on 7-6-2001, wherein I admitted having performed marriage voluntarily on 22-5-2001 with jasbir Singh son of Budh ram resident of Ratto and thereafter resided with him as his wife. I did not complain against Jasbir Singh about obtaining signatures from me forcibly on bail application, by personally before Shri Kuldeep Singh, additional sessions Judge, Ropar". Again she has lied on these facts. 12. It is in her further cross-examination that "in Bus stop of Ditupur, I did not disclose or complain to any person in that Bus stop that Jasbir Singh was enticing away me. I was taken to Ratto on scooter by Jasbir singh. We reached Ratto from Village sayalwa Majri. I cannot tell the distance between Sialwa Majri and Ratto by time and measurement. We both were on scooter. While going from Sialwa to Ratto. I did not raise any alarm to tell anybody that I was being enticed away by Jasbir Singh. I never went to Ratto by bus with accused Jasbir singh. On 28-7-2001, we came from Sialwa majri to Ratto and went back on same day on scooter from Ratto to Sialwa Majri. We came back on 29-7-2001 from Ratto to sialwa Majri. So long as, we remained in night, I did not tell or complain to any person that I was enticed away by Jasbir Singh. " to my mind, when she was proceeding to village Ratto on scooter, no sword of fear was hanging over her head to disclose to the passers-by or the passengers present at the bus stoppage of the aforesaid Village that she was being taken away forcibly by the accused-appellant Jasbir Singh. 13. Similarly, she would have disclosed to the neighbours, when she resided at Village Ratto that she has been brought by the aforesaid accused forcibly. It is also in her cross-examination that "i am manned with makhan Singh. He is resident of Jallandhar". This evidence is a clincher towards the fact that now she has got married with the aforesaid person. Similarly, she would have disclosed to the neighbours, when she resided at Village Ratto that she has been brought by the aforesaid accused forcibly. It is also in her cross-examination that "i am manned with makhan Singh. He is resident of Jallandhar". This evidence is a clincher towards the fact that now she has got married with the aforesaid person. It is inferable from the above discussed evidence that she was a consenting party in all the acts allegedly committed by the accused Jasbir Singh accused-appellant. It emanates from her cross-examination that the appellant-Jasbir Singh was on visiting terms to her house and that being so, by all probabilities, she would have fallen into love with him and she would have contrived to elope with the accused-appellant Jasbir singh. She being a major could bring to bear an independent judgment as to whether or not, she should indulge into an act of elopement. The above referred cross-examination of her go a long way in proving that indeed, she had eloped with the accused-appellant jasbir Singh and the latter had not enticed her away. In re : State of Himachal Pradesh v. Suresh Kumar alias Chhotu, 2008 (4) Recent Criminal Reports (Criminal) 358, it has been observed as under :- "the High Court noted that there was inconsistency in the evidence of the prosecutrix. She appeared to have accompanied the accused of her own accord and the sexual intercourse alleged to have been committed was done with her consent The stand of the prosecutrix was that as she was below 16 years of age, her consent, if any, was of no consequence. The High Court referred to the evidence of PWs.1, 2, 3 and 1.4 and the documents relied upon i. e. the birth certificate. The High Court noted that those documents apparently were not relatable to the prosecutrix and therefore the date of birth indicated in the documents could not be that of the prosecutrix. It referred to the evidence of the mother. It was concluded that the documents could not be also relatable to the prosecutrix in, view of the statement of the mother about her own age. That being so the High Court held that the accusations were not established and the prosecutrix, as evident from the documents was more than 16 years of age at the time of occurrence. " 14. In the present one. That being so the High Court held that the accusations were not established and the prosecutrix, as evident from the documents was more than 16 years of age at the time of occurrence. " 14. In the present one. it is an admitted case that the prosecutrix was a major. Thus, if the matter is viewed in the above extracted observations, no offence is made out. On delving into the prosecutrixs statement carefully, there could be no escape from the finding that she had left her parental house voluntarily and got married with the accused-appellant Jasbir Singh out of her sweet will. 15. Section 366 of IPC does not cover a case of elopement or the removal of a girl with her consent. The question of age of the prosecutrix in cases under Ss.366 and 376 ibid is always a matter of importance. It bears repetition that although the prosecutrix has testified that there being constant threat of her brother as well as members of the family being killed by the accused-appellant Jasbir singh, she did not complain the stated acts of this accused. In re : Ram Murti V/s. State of haryana, 1970 Punj LR 1000 (Vol.72) : (1970 Cri LJ 991), in similar circumstances, the Apex Court held that there should be corroboration on some material particulars from some independent source and her bare statement cannot be considered sufficient to sustain appellants conviction. In the instant case, her testimony on the stated aspects does not find corroboration from an independent source on the record. That being so, it would be going too far to sustain conviction on her such bald statement particularly, when she was a major at the material time. In re ghanchi Vora Samsuddin Isabhai V/s. State of gujarat, 1970 Cri LJ 1348 (Vol.76), it has been observed by the Division Bench of honble Gujarat High Court that "therefore, on the evidence on record in this case; the prosecution has failed to prove that Bai sheela was under the age of 18 on the date of the offence and the charge under S.366 of ipc for kidnapping therefore cannot be brought home to the accused. The conviction on that count of kidnapping must, therefore, be set aside. " 16. The conviction on that count of kidnapping must, therefore, be set aside. " 16. In the ultimate analysis, when no charged offence is established against Jasbir singh accused-appellant, the conviction recorded against his co-accused Sinder Pal Kaur alias Sinder also cannot be sustained in the absence of cogent, convincing and clear evidence. Consequently, this appeal is accepted setting aside the impugned judgment/order of sentence. Both the accused-appellants are acquitted of the charged offences. Appeal allowed.