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Madhya Pradesh High Court · body

2012 DIGILAW 835 (MP)

Kunwarsingh v. State of M. P.

2012-08-31

A.K.SHRIVASTAVA

body2012
JUDGMENT 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 20.1.1998 passed by the learned Special Judge, West Nimar (Mandleshwar) in Special Case No.196/1997 convicting appellants under sections 148, 366/149 IPC and thereby sentencing them to suffer one year and four years RI respectively and further convicting the first appellant under section 376(1) IPC and sentencing him to suffer 7 years RI apart from fine mentioned in the impugned judgment with defaulting clause, the appellants have taken shelter of this Court by preferring this appeal under section 374(2) of the Code of Criminal Procedure, 1973. 2. The alarming feature in this case is that although the Constitution of this country was framed 62 years ago but there are certain places in this country where still the girls are being sold by their father as it happened in the present case as per the defence of the accused persons. 3. In brief the case of the prosecution is that the prosecutrix is the daughter of Ter Singh (Ber Singh) r/o Badgaon. On the date of incident i.e. 14.3.1997 the father of the prosecutrix was sitting outside of his house and the prosecutrix was discharging household work. At that juncture, accused persons namely Kunwar Singh, Naval Singh, Raliya, Mayaram, Parmu, Bharat and Jagan with an intention to kidnap the prosecutrix so that she may be compelled to marry with accused Kunwar Singh uplifted her from her father’s house. It is said that the appellants were armed with bow and arrow, faliya (sharp-edged weapon) etc. Some of the accused persons brandished the arms which they were carrying upon the father of prosecutrix so that he may become helpless and could not move. Rest of the accused persons entered inside the house and uplifted the prosecutrix on the point of the arms which they were carrying and brought her to the house of first appellant Kunwar Singh at Dongargarh. Except first appellant Kunwar Singh all the other accused persons used to sleep outside the house where the prosecutrix was kept. In the night first appellant committed rape over the prosecutrix and whenever she tried to flee away, threat of life was given to her by the appellant No.1. Except first appellant Kunwar Singh all the other accused persons used to sleep outside the house where the prosecutrix was kept. In the night first appellant committed rape over the prosecutrix and whenever she tried to flee away, threat of life was given to her by the appellant No.1. In the night the other accused persons used to lock the house from outside in which the prosecutrix and first appellant were staying and during the day hours some of the accused persons one by one were watching the house so that family members of the prosecutrix may not come from their village to get the prosecutrix released. 4. It is the further case of the prosecution that the father and family members of the prosecutrix were searching her since 14.3.1997 and ultimately they lodged a report in Police Station Kasrawad on 15.3.1997 naming the accused persons. It is said that on 5.4.1997 when the prosecutrix arrived back to parents house of her own, on 7.4.1997 she was sent for medical examination and also for Radiological examination in regard to verification of her age. The accused persons were arrested on different dates and after investigation was over a charge-sheet was submitted in the committal Court who committed the case to the Court of Sessions and from where it was received by the trial Court for trial. 5. Learned trial Judge on the basis of averments made in the charge-sheet framed charges against accused Kunwar Singh under sections 148, 366/149 and 376 IPC while other accused persons were charged under sections 148, 366/149 IPC. Needless to say that all the accused persons denied the charges and requested for the trial. Eventually the prosecution examined as many as 8 witnesses and placed Ex.P-1 to P-21 the documents on record. 6. The defence of the accused persons is that according to their custom after paying Rs.2,000/- to the father of the prosecutrix, she was purchased. In support of their defence they also examined one Ramti Bai as DW1. The further defence of the accused persons is of false implication. 7. The learned Special Court after marshalling the evidence came to hold that except the charge under section 323/149 imposed against first appellant Kunwar Singh rest of the charges are proved against all the accused persons and eventually convicted them and passed the sentence which I have mentioned hereinabove. The further defence of the accused persons is of false implication. 7. The learned Special Court after marshalling the evidence came to hold that except the charge under section 323/149 imposed against first appellant Kunwar Singh rest of the charges are proved against all the accused persons and eventually convicted them and passed the sentence which I have mentioned hereinabove. However, the first appellant was acquitted from the charge punishable under section 323/149 IPC. 8. In this manner this appeal has been filed by the appellants against their conviction. 9. During the pendency of trial accused Nawaliya alias Nawal Singh died and because in the memorandum of appeal his name was mentioned as appellant No.3 vide order dated 15.3.1999 of this Court his name was deleted from the cause title. Similarly on account of the death of appellants 5 and 6, namely Parmu and Jagan respectively their names were deleted from the cause title. 10. The contention of learned counsel for appellants is that firstly no offence has been proved against the appellants and looking to the age of prosecutrix since she is a major girl and she lived voluntarily with first appellant Kunwar Singh for 20 days, being a consenting party is sexual intercourse was committed by first appellant with her it was on account of her willingness and consent and if that would be the position, the learned trial Court erred in convicting appellant Kunwar Singh under section 376 IPC. Learned counsel further submits that looking to the evidence placed on record by the prosecution the offence under section 366/149 IPC is not at all proved. By inviting my attention to the findings rendered by learned Special Judge in paras 16, 17 and 21, it has been contended that if these findings are considered in true perspective, it cannot be said that appellants have committed any offence. Forcefully it has been submitted by learned counsel that since the parties belong to Bheel community and there is a custom in their community to purchase a girl from her father and thereafter to marry with her and because there is positive evidence of defence witness Ramti Bai (DW1) in this regard, the conviction is bad in law. 11. Forcefully it has been submitted by learned counsel that since the parties belong to Bheel community and there is a custom in their community to purchase a girl from her father and thereafter to marry with her and because there is positive evidence of defence witness Ramti Bai (DW1) in this regard, the conviction is bad in law. 11. On the other hand Shri Parmar, learned Public Prosecutor argued in support of the impugned judgment and submitted that looking to the unimpeachable testimony of prosecutrix and surrounding circumstances it is proved that all the appellants have committed offence under sections 148 and 366/149 IPC. The first appellant has further committed offence u/s 376 IPC and if that would be the position, learned trial Court did not commit any error in convicting them and passing the sentence as stated above. Hence, it has been submitted that this appeal be dismissed. 12. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be dismissed with slight modification in the sentence. 13. Before I deal with the merits of the case and marshal the evidence placed on record and by paying heed to the testimony of prosecutrix, it would be fruitful to elaborate the striking features which are happening in this country even after 62 years of framing of the Constitution. Recently, we have also celebrated our independence day but even after having passed more than six decades of the independence and framing of the Constitution, the girls are being sold in this country like a slave, which was happening during ancient period. Even in the British time no such law was ever framed rather such type of practice was deprecated by enacting several laws in that regard. 14. If the Article 21 of the Constitution is seen in broader spectrum according to me it would include a right of women to live and to be treated with decency and proper dignity and, therefore, the defence which is being taken by appellants taking the aid of alleged custom, the same is directly in contravention to Article 21 of the Constitution of India. 15. Article 23 of the Constitution of India speaks about prohibition of traffic in human beings and forced labour and if the magnified spectrum of this article is taken into consideration, selling and purchasing of woman is strictly prohibited. 15. Article 23 of the Constitution of India speaks about prohibition of traffic in human beings and forced labour and if the magnified spectrum of this article is taken into consideration, selling and purchasing of woman is strictly prohibited. But the unfortunate part is that even after we are reaping the fruits of independence and the Constitution for last more than six decades such vile custom which was prevailing during the anciuent period is till surviving and is still growing in the particular part of this country. In modern times, it is surprising that the women is being sold by the father and is being purchased by man for life long to serve him like a slave by quoting the sweet name to be his wife. Thus, this type of practice is highly deprecated and should be criticised. In the present case the prosecutrix by showing braveness and courage did not accept such a hateful custom and firmly opposed the said custom and by burying the same came out from the clutches of the appellants and resumed the company of her parents. 16. In the present case first appellant Kunwar Singh has been charged under sections 148, 376 and 366/149 IPC while other accused persons have been charged under section 366/149 apart from section 148 IPC. It is well settled in law that when a charge in regard to sexual offence is framed, testimony of prosecutrix alone is sufficient to accord conviction and no independent corroboration is needed, but, her testimony should be clear, cogent and trustworthy. 17. The evidence of father of prosecutrix Ter Singh is that age of prosecutrix was 18 years at the time of the incident. Since this has been so stated by him in his examination-in-chief the prosecution is bound by his evidence and therefore it is hereby held that age of prosecutrix was 18 years at the time of incident. However, merely because she is major it cannot be said that she was willing and gave her consent to elope with the appellants so as to marry with first appellant Kunwar Singh. Similarly merely because she is a major girl it would not mean that appellant has not committed the offence under section 376 IPC until and unless the circumstances and evidence so indicate that she was willing and gave her consent to have sexual intercourse with the appellant No.1. Similarly merely because she is a major girl it would not mean that appellant has not committed the offence under section 376 IPC until and unless the circumstances and evidence so indicate that she was willing and gave her consent to have sexual intercourse with the appellant No.1. Thus, by keeping all these principles in mind, I have to marshal the testimony of the prosecutrix. Specifically she has stated in her statement that on the date of incident at 8 p.m. she was inside her house and was cooking the meals and when she went outside to throw the filthy water, at that juncture, all the appellants armed with arrow and bow, sharp-edged weapons like Faliya and axe etc. arrived there. Her father was sitting on a cot but all the accused persons on the point of weapons scolded upon him not to scream otherwise he would be killed. Thereafter first appellant Kunwar Singh came towards her and after gagging her mouth dragged her and other accused persons were insisting the prosecutrix to accompany with the appellant No.1 because he would marry with her and for this reason she has been up-lifted. Further she says that appellants carried her to village Dongargarh where she was kept in the house of appellant No.6 Mayaram. All the accused persons except appellant No.1 slept outside the said house while appellant Kunwar Singh slept with the prosecutrix inside the house. In the night the appellant No.1 committed sexual intercourse with her without her consent and willingness.The rape was committed twice in the night and when she tried to resist, the threat of life was given to her. Further she says that for 20 days she was forced to stay there and whenever she tried to run away she was restrained by the accused persons. Not only this, in the night the lock was also being inserted at the outer door so that she may not run away and the accused persons were encircling the house and were waiting actively one by one. 18. According to her, one day under the pretext to evacuate she managed to flee away in the night at 3 a.m. and at 6 in the morning she arrived at the house of her parents and narrated the entire incident to them. Her father already lodged the FIR and thereafter she gave statement to the police persons. 18. According to her, one day under the pretext to evacuate she managed to flee away in the night at 3 a.m. and at 6 in the morning she arrived at the house of her parents and narrated the entire incident to them. Her father already lodged the FIR and thereafter she gave statement to the police persons. In cross-examination para 17 specifically this witness says that for 20 days first appellant was committing rape over her again and again. Upon cross-examination in para 18, she has categorically stated that she was not allowed to go alone even for evacuation and for that purpose she was being accompanied by sister of first appellant and some other ladies also. Further she says that if she used to say that incident to the ladies, she was being beaten by the accused persons. In paras 9 and 20 of her testimony she says that during the day hours accused persons used to carry her to Jungle because they were under the impression that police persons must be searching her and accused persons and during night hours they used to bolt and lock the outer door of the house so that she may not flee away. In para 23 she has categorically stated that the appellant Kunwar Singh was ready to purchase her for Rs.10,000/- but she was not willing to stay with him and she specifically declined to stay with him. The suggestion put to her that she went along with the appellants by her own consent has been specifically denied by her and further explained and stated that she was forcefully carried by the accused persons. 19. The prosecutrix was cross-examined at length by the defence but she remained firm despite there being a roving cross-examination upon her. Nothing has been carved out in her testimony in order to disbelieve her. On the other hand, by X-raying her testimony from every angle it is found to be clear, cogent and trustworthy and the only inference which is proved from her testimony is that although she is a major girl but she was ravished continuously for 20 days by first appellant Kunwarsingh by committing rape over her. It is also proved from her testimony that she was not at all willing and gave consent to first appellant Kunwarsingh to have sexual intercourse with her. It is also proved from her testimony that she was not at all willing and gave consent to first appellant Kunwarsingh to have sexual intercourse with her. At the same time, it is also proved from her evidence that she was forcibly uplifted by all the accused persons on the point of weapons like arrow and bow and sharp edged weapons with an intention to solemnize her marriage with appellant Kunwarsingh. Hence, the offence under section 376 IPC has been proved against first appellant Kunwarsingh and further it is proved that all the accused persons who were more than 5 in number were having common object to use criminal force on the point of deadly weapons like bow and arrow and also sharp edged weapons like falia and axe and their common object was to up lift the prosecutrix forcibly so that she may be forced and compelled to marry with first appellant Kunwarsingh. Thus, all the appellants have also committed the offence under section 366/149 IPC. 20. Although the law is well settled that if the testimony of the prosecutrix inspires full confidence from all the angles no corroboration is needed but in the present case, the evidence of prosecutrix has been further corroborated by the evidence of her father Tersingh (PW5) who has specifically stated that all the accused persons on the point of deadly weapons like bow and arrow and sharp edged weapons arrived in his house and they brandished the arrow on his chest and inquired about the prosecutrix. Thereafter they entered inside his house and up lifted the prosecutrix by gagging her mouth. This witness has proved the FIR Ex.P-6 lodged by him. This witness has further stated that after 20 days of the incident, one day the prosecutrix came to his house and narrated the entire episode to him and told that the first appellant Kunwarsingh committed rape over her for 20 days. Further this witness says that accused persons had forcibly uplifted the prosecutrix so that she may be compelled to marry with first appellant Kunwarsingh. The other independent witness is Baliram (PW6) who is also the resident of the same village and has corroborated the statement of prosecutrix and Tersingh and said that all the accused persons forcibly carried the prosecutrix with them and they were chasing but were unable to catch them. The other independent witness is Baliram (PW6) who is also the resident of the same village and has corroborated the statement of prosecutrix and Tersingh and said that all the accused persons forcibly carried the prosecutrix with them and they were chasing but were unable to catch them. This witness also says that accused persons were having bow and arrow and sharp edged weapons. 21. I have also scanned the testimony of the prosecutrix, her father Tersingh (PW5) and independent witness Baliram (PW6) and I find that the members of the unlawful assembly were armed with deadly weapons and hence rightly they have been convicted under section 148 IPC. 22. The defence of appellant is that they and the prosecutrix belongs to Bhil community and in their custom a girl is purchased from her father and, therefore, despite the prosecutrix was bought by them, since the father of the prosecutrix viz. Tersingh (PW5) was not permitting his daughter to go and live with first appellant Kunwarsingh as his wife, therefore, if the appellants carried the prosecutrix forcefully, no offence has been committed by them since it is permissible in their custom. I do not find any merit in the said defence. The said custom cannot override the statute unless and until it is saved in the statute. According to me, if a major girl is sexually intercoursed by an accused without her consent and willingness, he commits an offence under section 376 IPC. He further commits an offence under section 366 IPC if he forcibly kidnaps a girl with an intent that she may be compelled to marry with him. Since on account of overwhelming evidence on record these two offences have been proved against the first appellant Kunwarsingh and it is also proved that other appellants have committed the offence under section 366/149 IPC, therefore, the alleged custom which has been set up in their defence by the accused persons carries no meaning despite they examined Ramtibai in their defence as (DW1). According to the defence witness, the accused persons paid Rs.2,000/- to father of the prosecutrix and after receiving the said amount he (father of the prosecutrix) told that he would send his daughter with the accused persons. 23. According to the defence witness, the accused persons paid Rs.2,000/- to father of the prosecutrix and after receiving the said amount he (father of the prosecutrix) told that he would send his daughter with the accused persons. 23. Apart from what I have decided hereinabove, the custom of selling his own daughter by the father cannot be said to be a valid custom for another reason that in order to constitute a valid custom or any usage having the force of law it should be ancient, certain, reasonable, should not be opposed to morality or public policy, should be regular and not forbidden by any law. In the present case the said custom is opposing the morality and public policy and is also forbidden by law and, therefore, it cannot be said to be a valid custom having any force of law. Hence, no credence can be attributed to the defence of alleged custom which has been set up by the accused persons. 24. For the reasons stated hereinabove, I donot find any merit in this appeal. However, the sentence of committing offence under section 366/149 IPC is reduced from 4 years to 2 years RI. Needless to say, all the sentences shall run concurrently. With the aforesaid modification in the sentence, this appeal is hereby dismissed. The appellants are on bail, their bail bonds shall stand cancelled only after they surrender before the learned trial Court on or before 31st October, 2012. After their surrender, the learned trial Court shall send them to jail for serving out the remaining part of their sentence. In case appellant fails to appear on or before 31st October, 2012, the learned trial Court shall issue perpetual arrest warrants against them and shall also issue notice to their sureties and may pass necessary orders against the sureties. In case the appellants surrender on or before 31.10.2012 their bail bonds shall stand cancelled. The learned trial Court shall also intimate the Registry of this Court after sending the appellants to jail. 25. The Principal Registrar of this Court shall send the record of the learned trial Court post haste so as to reach that Court much prior to 31st October, 2012. The learned trial Court shall also intimate the Registry of this Court after sending the appellants to jail. 25. The Principal Registrar of this Court shall send the record of the learned trial Court post haste so as to reach that Court much prior to 31st October, 2012. The Registry shall also send the original bail bond papers of the appellants to learned trial Court to take proper action in case appellants fail to surrender and photo copy of the bail bond papers shall be retained in this file.