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2010 DIGILAW 3189 (PNJ)

Gurdip Singh @ Kala v. State Of Punjab

2010-12-01

JITENDRA CHAUHAN

body2010
Judgment Jitendra Chauhan, J. 1. This appeal is directed against judgment and order dated 4.9.2000 whereby the learned Additional Sessions Judge, Ludhiana (hereinafter referred to as the trial Court) convicted the appellant for the offence under Sections 363,366-A,376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 1,000/- under Section 363 of the Indian Penal Code or in default of payment of fine, to undergo further rigorous imprisonment for six months; rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- under Section 366-A of the Indian Penal Code, or in default of payment of fine, to undergo further rigorous imprisonment for six months and also rigorous imprisonment for seven years and to pay a fine of Rs. 2,000/- under Section 376 of the Indian Penal Code, or in default of payment of fine, to undergo further rigorous imprisonment for one year. 2. Brief facts of the case are that on 8.7.1999, complainant Ram Pal Singh got recorded his statement with ASI Harbhajan Singh of Police Station Samrala in which he stated that he has got three children and his elder daughter Sandeep Kaur, aged about 16-1/2 years had been getting training in stitching from Stitching Training Centre running in the house of Karnail Singh, Lambardar of village. Sandeep Kaur used to leave home for the Training Centre at 9.00 a.m. and would come back at 12.00 noon. It is stated by the complainant that on 5.7.1999, as per routine Sandeep Kaur did not return home at 12.00 noon from the Stitching Training Centre, he got worried and started searching, during the course of which, he came to know that accused-appellant Gurdeep Singh @ Kala son of Balwant Singh, resident of village Dhilwan had enticed his daughter without his consent giving her inducement that he would marry her. Complainant further stated that he searched for his daughter but could not come to know about her whereabouts. On 9.7.1999, ASI Harbhajan Singh had received a secret information, as such, a naka was laid on Ludhiana-Chandigarh Road on Sihala turn. At about 1.30 p.m., police party intercepted a white colour Bajaj Chetak, having registration No. PB-43A-174 being driven by accused appellant Gurdip Singh on which Sandeep Kaur was pillion riding, coming from the side of Sihala. The accused-appellant was interrogated and arrested. At about 1.30 p.m., police party intercepted a white colour Bajaj Chetak, having registration No. PB-43A-174 being driven by accused appellant Gurdip Singh on which Sandeep Kaur was pillion riding, coming from the side of Sihala. The accused-appellant was interrogated and arrested. ASI Harbhajan Singh enquired from Sandeep Kaur who told him that she had been raped by the accused in village Neelon Kalan. The Investigating Officer took the accused-appellant and the prosecutrix to the place of occurrence and prepared the rough site plan, Exhibit PG. He also took into possession Scooter in question along with driving licence of the accused- appellant, challan chit, a pant, a shirt, T-shirt, one kurta, one payjama, one vest, one female suit, a trouser (salwar), one Dupatta, one shirt, one salwar, one chuni, Exhibits P1 to P12, respectively vide recovery memo, Exhibit PH. Personal search of the accused-appellant was also conducted which resulted in the recovery of a Titan watch, a belt, one spectacle and Rs. 457/- cash, which were taken into possession vide recovery memo, Exhibit PG. ASI Harbhajan Singh recorded the statement of the prosecutrix and arrested the accused. Both the accused-appellant and the prosecutrix were got medico-legally examined. After completion of investigation, challan against the accused was filed in the Court. 3. The accused-appellant was charge-sheeted for the commission of an offence punishable under Sections 363/366-A/376 of the Indian Penal Code, to which he pleaded not guilty and claimed trial. 4. In support of its case, the prosecution examined as many as six witnesses, viz., Dr.Rashmi, Medical Officer, Civil Hospital, Samrala as PW1, complainant-Rampal Singh, father of the prosecutrix, as PW2, prosecutrix- Sandeep Kaur as PW3, Dr.Amarjit Singh, Medical Officer, Rural Dispensary, village Noorpur, PHC Machhiwara as PW4, Darshan Singh, Statistical Asstt., Office of Civil Surgeon, Fatehgarh Sahib as PW5 and ASI Harbhajan Singh, the Investigating Officer of the case, as PW6. 5. PW1-Dr.Rashmi, Medical Officer, Civil Hospital, Samrala had medico-legally examined prosecutrix -Sandeep Kaur on 10.7.1999 at 11.00 a.m. and proved copy of MLR as Exhibit PA. She opined that nature of injury on the person of the prosecutrix was simple and duration was within 72 hours. 6. PW2-complainant Ram Pal Singh, father of the prosecutrix, deposed regarding kidnapping of his daughter by the accused-appellant Gurdip Singh on 5.7.1999. 7. She opined that nature of injury on the person of the prosecutrix was simple and duration was within 72 hours. 6. PW2-complainant Ram Pal Singh, father of the prosecutrix, deposed regarding kidnapping of his daughter by the accused-appellant Gurdip Singh on 5.7.1999. 7. PW3-prosecutrix Sandeep Kaur stated that on 5.7.1999, at about 12.00 noon, when she was coming back from Stitching Training centre to her house, she found accused-appellant Gurdip Singh @ Kala standing in the street along with his scooter. He called her near him and enticed her to go along with him stating that he had lot of property and would marry her. She further stated that inspite of her reluctance, Gurdip Singh made her sit on the scooter forcibly and started the same. Sandeep Kaur also stated that the accused- appellant brought the scooter to halt near village Neelon, took her to bushes near the canal bank and had sexual intercourse with her against her consent. Then he took her to Naina Devi Temple where they remained for two nights, then they left for shrine of Baba Balak Nath, where also they remained for two nights. Sandeep Kaur stated that she was raped by the accused-appellant at both places against her wishes and gave threats to her. When they were returning home on the scooter, they were apprehended by the police. 8. PW4-Dr.Amarjit Singh, Medical Officer stated that on 10.7.1999 while posted at Civil Hospital, Samrala, had conducted medical examination of the accused- appellant Gurdial Singh and found that there was no evidence of his being impotent and being unable to perform sexual intercourse. 9. PW5-Darshan Singh, Statistical Assistant, Office of the Civil Surgeon, Fatehgarh Sahib brought the birth register stating that as per entry in his register at No. 446 dated 27.5.1982, a daughter was born to Ram Pal Singh at village Saunti, Police Station Amloh on 18.5.1982. He also proved the copy of the birth certificate, Exhibit PF. 10. PW6-ASI Harbhajan Singh is the Investigating Officer of the case. 11. Statement of the accused-appellant was recorded under Section 313 of the Code of Criminal Procedure, in which he denied the allegations appearing against him and pleaded his false implication in the case. He also proved the copy of the birth certificate, Exhibit PF. 10. PW6-ASI Harbhajan Singh is the Investigating Officer of the case. 11. Statement of the accused-appellant was recorded under Section 313 of the Code of Criminal Procedure, in which he denied the allegations appearing against him and pleaded his false implication in the case. However, he examined in his defence Inderjit Singh, Headmaster, Govt.Primary School Dhilwan as DW1, who brought the admission register kept in the school stating that Sandeep Kaur, daughter of Ram Pal Singh, was admitted on 8.4.1987, vide Sr.No. 874 in 5th Class. Her date of birth, as per school record, is 6.9.1980. 12. The main defence put forward on behalf of the appellant/accused before the of learned trial Court was that the prosecutrix was a major i.e. over 18 years of age and clearly consented to the sexual intercourse. In support of its assertion, the accused/appellant had produced the relevant entries in the school records where the prosecutrix admittedly studied. In order to controvert the basic defence assertion of consent, prosecution has relied on the Birth certificate Ex. PF, wherein a daughter has been shown to have been born to Ram Pal Singh on 18.5.82. It is, thus, important to scrutinise the contents of Ex. PF i.e. birth certificate. 13. A perusal of Ex. PF reveals that though the name of the father in the said certificate is mentioned as Ram Pal i.e. it corresponds to the name of the Complainant, but the name of the mother is mentioned as Maya. This raises a very strong doubt as to whether the said certificate relates to the present prosecutrix? Name of mother of the prosecutrix is Karamjit Kaur as stated by the Complainant himself. She has also not stepped into the witness box. The ld. Trial Court brushed aside this argument by accepting the prosecution submission that Complainant has not been cross examined on the point as to whether his wife is also known as Maya. 14. Even if the complainant has not been specifically examined as to whether his wife is also known as Maya, this discrepancy in the Birth Certificate is so stark that the same cannot be ignored. Moreover there is dispute regarding the true name of the prosecutrix. PW 5, who brought the birth certificate deposed that the name of the child was mentioned as Malkiat Kaur. Moreover there is dispute regarding the true name of the prosecutrix. PW 5, who brought the birth certificate deposed that the name of the child was mentioned as Malkiat Kaur. However, Complainant deposed that the prosecutrix was named by his in-laws as Gurmail Kaur but he named her as Sandeep Kaur. Sandeep Kaur then deposed that she was also known as Malkiat Kaur in her childhood. The assertions of the Complainant might be of some value when viewed individually but when the same is compared to that of the prosecutrix, it becomes apparent that the testimony of the prosecutrix is tutored so as to correspond to the entry of the childs name in the birth certificate. In view of the discrepancies as pointed above, the Birth Certificate Ex. PF cannot be said to be that of the Prosecutrix. 15. In view of the above finding on the applicability of birth certificate to the present case, the only other proof of birth is the entry in the school records where her date of birth is mentioned as 6.9.1980. No ossification report was conducted to ascertain the age of the prosecutrix and as such due credence has to be attached to the entry of the birth date of the prosecutrix in the school records as per which the age of the prosecutrix on the date of occurrence was more than 18 years. 16. A scrutiny of the testimony of prosecutrix reveals that when she was asked by the Appellant to accompany him, they were both at a public place. The Appellant allegedly showed her a knife and threatened to kill her parents and minor brothers and out of fear of this threat, she chose to accompany him on his scooter. Thereafter, they both went to temples in Himachal Pradesh and stayed at public places where she was allegedly raped repeatedly, before they were apprehended by the police on the way back. 17. The sequence of events as narrated by the prosecutrix is so inherently improbable that it seems to be a plain lie at the outset. Starting from the initial threat handed out by the Appellant, it seems to be a made up story only to negative the defence contention that she was a consenting party. 17. The sequence of events as narrated by the prosecutrix is so inherently improbable that it seems to be a plain lie at the outset. Starting from the initial threat handed out by the Appellant, it seems to be a made up story only to negative the defence contention that she was a consenting party. It is improbable that a person would brand a knife at a public place in broad daylight and then force a girl to sit on her scooter and then drive away without any fear. Even more improbable is the fact that she was raped repeatedly without her consent and still she chose to accompany the appellant to various places without ever raising/inviting any sort of public attention. PW 1 Dr. Rashi also states in her cross-examination that though not surely, but she remembers that the vagina of the prosecutrix admits 2 fingers which is a clear pointer towards the fact the she was habitual to sexual intercourse and had previous sexual intimacy with the appellant. 18. A careful perusal of the evidence available on record coupled with the testimony of the prosecutrix brings out the inherent falsity of the prosecution case. 19. In view of the above discussion, the instant appeal is allowed. The judgment and order of conviction and sentence of the learned trial Court is set aside. The appellant is acquitted of the charges framed against him. Accordingly, his bail bonds be discharged.