Amarjit vs State of Punjab

A.S. Nehra, J.

This appeal is directed against the judgment dated April 29, 1986, of Additional Sessions Judge, Jalandhar, by which the appellant was convicted under Sections 376 and 386 of the Indian Penal Code, and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 500/ and in default of payment of fine to undergo rigorous imprisonment for 3 months, under Section 376 of the Indian Penal Code and to undergo rigorous imprisonment for two years under Section 366 of the Indian Penal Code. The substantive sentences were ordered to run concurrently.

The facts of the case in brief are as under :

In June, 1986 the accused used to commute between his village and Nawanshahar for certain training in the profession of Muneem. He had to pass through village Bhangal Kalan. Kulvinder Kaur resident of that village a student of VIIIth class used to go to Nawanshahar daily for tuition. They got acquainted with each other and Kulvinder Kaur came under the influence of the accused who boasted before her that he was a Jat and owned a Kothi at Garhshankar. On 19.6.1985, Kulvinder Kaur went to Nawanshahar as usual. At about 7.30 a.m., she reached Railway Station, Nawanshahar, where the accused met her and asked her deceitfully to accompany him to Garhshankar where he would show his kothi to her. The accused represented that after a visit to that place he would leave Kulvinder Kaur back at the same place. Taken in by the sweet talk of the accused Kulvinder Kaur accompanied him. She was taken by the accused first to Jaijon and then to Una. Both of them stayed at Una for two nights. The accused wanted to satisfy his lust but Kulvinder Kaur was mensurating. The accused took Kulvinder Kaur to Hamirpur and after a night''s stay there, to Nawanshahar. Ultimately, the accused took Kulvinder Kaur to his native village Garhi Ajit Singh. He took Kulvinder Kaur to a deserted brick kiln and committed sexual intercourse with her without her consent in one of the uninhabited rooms at the brick kiln. Kulvinder Kaur resisted and also cried but the accused threatened her at knife point and also threatened that he would leave her alone at that place in case she raised any alarm. She was made to stay at the brick kiln for the night.

Kulvinder Kaur prosecutrix was taken by the accused to various places as per the prosecution case referred to above. When she did not reach home her mother Daljit Kaur and other relations started searching for her. She had been noticed by her uncle Balbir Singh at the Railway Station, Nawanshahar before she was taken by the accused in the train. He provided some clue. Private enquiries by the relations of Kulvinder Kaur also led to suspicion against the accused. Daljit Kaur mother of Kulvinder Kaur got drafted an application Ex. PH on 23.6.1985 and proceeded to the Police Station to lodge the report. ASI Madan Lal met her at Bhangal Bridge. She presented that application to him who in turn transmitted the same to the Police Station where the formal first information report Ex. PH/2 was recorded.

During the investigation, ASI Madan Lal on 24.6.1985 received information about the where abouts of the accused and the prosecutrix. He raided the house of the accused in village Lodhipur and found the accused and the prosecutrix present there. The accused was arrested. The custody of Kulvinder Kaur was handed over to her mother. On 25.6.1985, the prosecutrix and the accused were got medically examined. Dr. Paramvir Kaur of Civil Hospital, Nawanshahar, medically examined Kulvinder Kaur and found abrasion on the right knee, right elbow and bruises over both the buttocks of Kulvinder Kaur. According to the doctor the vaginal orifice admitted two fingers with difficulty. She prepared two slides and two swabs sticks and sent the same for Chemical Examination. She also sent the underwear and salwar stained with blood for Chemical Examination. As per report of the Chemical Examiner Ex. PM semen was found on the underwear and slides. However, no spermatozoa were found on the salwar and swabs. On 26.6.1985, Kulvinder Kaur was produced before the Judicial Magistrate, Nawanshahar where her statement under Section 164 Cr.P.C. was recorded. The investigating officer prepared the site plan Ex.PN. Aks Shajra Ex. PD was prepared by Dilbag Singh Patwari. The prosecutrix was cadiologically examined on 28.6.1988 and Dr. Kulvinder Kaur who performed the radiological investigation gave opinion Ex.PB that the age of the prosecutrix was between 10 to 14 years. The accused was medically examined by Dr. K.S. Pahwa, on 25.6.1985. The doctor took into possession his underwear and sent the same to the Chemical Examiner and the report of the Chemical Examiner Ex.PD, is to the effect that semen was found on the underwear. After the completion of the investigation, the accused was challaned and tried.

The prosecution, in order to bring home the guilt of the accused examined Dilbag Singh Patwari (PW1), Dr. Kulvinder Kaur (PW2), Dr. K.S. Pahwa (PW3), N.K. Bansal (PW4), Balbir Singh (PW5), Jasbir Kaur (PW6), Daljit Kaur (PW7), Kulvinder Kaur prosecutrix (PW8), Dr. Paramvir Kaur (PW12) and ASI Madan Lal (PW13). Ram Dass, Sukhdev Raj and Chhail Behari were examined on affidavits.

When examined under Section 313 of the Code of Criminal Procedure the accused denied the prosecution allegations and pleaded that a false case out of suspicion has been registered against him. He further pleaded that the parents of the prosecutrix gave him injuries and in order to cover up their act got him falsely implicated in this case.

In defence, the accusedappellant examined Piare Lal Sarpanch of his village as DW1 and he deposed that in June, 1985, the accused and the prosecutrix Kulvinder Kaur came to him and the accused requested that he be got rid of Kulvinder Kaur. He further deposed that he sent for the police and on the arrival of the police, the accused and the prosecutrix were produced before the police. Writing Ex.DC was issued by the investigating Officer ASI Madan Lal regarding taking custody of the accused and the prosecutrix Kulvinder Kaur from the Panchayat.

I have heard the learned Counsel for the parties and have gone through the evidence brought on the file, carefully with their help.

From the defence evidence by produced the accused appellant himself, it is proved on the record that prosecutrix was recovered by the police from residential house of the accusedappellant. From the medical evidence on the record, it is proved that Kulvinder Kaur had been a victim of coitus. It is in the evidence of Dr. Paramvir Kaur (PW12) that at the time of medical examination of Kulvinder Kaur, bleeding was present on the external genitalia, slight bleeding was present in the vagina; hymen was lacerated; tears were present on edges which were red and swollen and tender. From the report of the Chemical Examiner Ex.PM, it is proved that semen was present on the underwear and the slides. In the opinion of Dr. Paramvirt Kaur prosecutrix Kulvinder Kaur was subjected to sexual intercourse and the possibility of rape could not be ruled out. An equally important proof is that the underwear removed from the person of the accusedappellant at the time of his medical examination by Dr. R.S. Pahwa (PW3), was stained with semen, as per the report of the Chemical Examiner Ex.PD. It is also significant that according to the statement of Dr. Kulvinder Kaur (PW12) the medical examination of Kulvinder Kaur revealed that vaginal orifice admitted two fingers with difficulty. This indicates that Kulvinder Kaur was not a girl or easy virtue.

The age of the prosecutrix in these circumstances must occupy the uppermost place of consideration. Kulvinder Kaur (PW8) when examined by the trial Court on oath deposed that her age was 14 years. The statement of the prosecutrix was recorded under Section 167 Cr.P.C. by Sh. N.K. Bansal, Judicial Magistrate Ist Class, Nawanshahar on 26.6.1985 and the prosecutrix had given her age as 14 years. Daljit Kaur (PW1), mother of the prosecutrix, also stated that the age of Kulvinder Kaur was 13/14 years and so is mentioned in the application, Ex.PH., which forms the basis of first information report. The radiological investigation was conducted by Dr. Kulvinder Kaur (PW2) and he has given the age of the prosecutrix between 10 to 14 years. In the School Certificate Ex.PG, date of birth of the prosecutrix is recorded as 2.5.1969 and she attended the school only from 6.4.1984 to 8.12.1984.

The learned Counsel for the accusedappellant contended that the statement of Kulvinder Kaur regarding her own age is not reliable; that the deposition of her mother is also not dependable being interested P.W.; that school leaving certificate carries very little evidentiary value and that the ossifications test is not a sure test and there is always a margin of three years on either side. If all these submissions of the counsel for the appellant are accepted, there would be a vacuum and justice will be casualty of legal quibblings. Dr. Kulvinder Kaur (PW2) has given almost complete data and the conclusion based on that material is the most reliable piece of evidence. According to this witness the age of Kulvinder Kaur was 10 to 14 years. The school leaving certificate Ex.PG will not override the expert opinion. Even the mother of the prosecutrix is the best witness to tell about the age of the prosecutrix. In crossexamination Daljit Kaur (PW7) testified that the birth of Kulvinder Kaur was got recorded with the Chaukidar of the village Hajipur i.e. her parental village where Kulvinder Kaur was born. She also stated that the birth certificate was produced before the police. However, that certificate is not on the record. In my opinion, it cannot be said that Daljit Kaur, or for that matter the prosecution, has intentionally withheld the birth certificate. Daljit Kaur cannot be aware of the technical import of the word `birth certificate''. There is sufficient material on the record to lead to the conclusion that Kulvinder Kaur was less than 16 years of age at the time of occurrence. It is also significant that she was a student of 8th class and it has not been challenged on behalf of the accused. At the time of her medical examination, she told her age to the doctor as 14 years. Dr. Kulvinder Kaur (PW1) also observed that physical condition of Kulvinder Kaur and stated that her breasts were found elastic and hemispherical with small underdeveloped nipples and brown areola. The test of epiphysis on the basis of fusion is a scientific test and is normally acceptable. The conclusion, therefore, is that Kulvinder Kaur was just 13/14 years of age.

The learned Counsel for the accusedappellant submitted that the age of the prosecutrix was more than 18 years. This contention of the learned Counsel for the appellant is not based on any material and is just in the air. On the other hand on consideration of the entire circumstances on record, I have no doubt in my mind that the prosecutrix was less than 16 years of age at the time occurrence and it stands so established by evidence.

The learned Counsel for the appellant submitted that the prosecutrix was a consenting party. He pointed out that there was no nail scratch or other injuries on the person of the accused appellant caused at the hands of the prosecutrix at the time of commission of sexual intercourse. It was further contended that the prosecutrix did not raise hue and cry and for all these reasons she was a consenting party to the act. I have held above that the prosecutrix was less than 16 years of age. That being so, the consent theory is irrelevant. Even otherwise it cannot be concluded that Kulvinder Kaur was a consenting party. She was with the appellant since 19.6.1985 and was taken from place to place by the accusedappellant. After humiliating for a number of days he took her in a lonely place in a room at a deserted brickkiln in his native village Garhi Ajit Singh and raped her. It is in evidence that the said place is a deserted brickkiln and that no body resided near it. That would mean that it was a place where even angels would not have heard the agony of the prosecutrix. It is in her statement that she screamed when the accused committed sexual intercourse but she was silenced at knife point. She was in the claws of the accusedappellant for a number of days and according to the testimony of the prosecutrix, the accusedappellant threatened her that he would leave her alone in case she raised alarm and committed the act on the knife point. The suggestion that Kulvinder Kaur was consenting party is absolutely without any basis. In the totality of circumstances the absence of injuries on the person of the accusedappellant cannot lead to the conclusion that Kulvinder Kaur was a consenting party. Thus, the accusedappellant committed sexual intercourse with Kulvinder Kaur without her consent and against her will and further she had been put in fear of death.

The learned Counsel for the appellant next contended that there was no inducement by the accusedappellant and that no offence of kidnapping or abduction was made out. There is no merit in this contention of the learned Counsel for the appellant. The prosecutrix was under 16 years of age at the time of occurrence and was under the lawful guardianship of her mother Daljit Kaur. It has come in the evidence of the prosecutrix that she got acquitained with the accusedappellant as she used to go to Nawanshahar to attend tuition class and the accused also used to commute between his village and Nawanshahar. It is also in her statement that the accusedrespondent represented to her that he was a Jat and had built a kothi at Garhshankar. The further story putforth by Kulvinder Kaur, prosecutrix, that on 19.6.1985 at 7.30 a.m. she met the accused per chance at the Railway Station, Nawanshahar and the accusedrepresented told her that he would show her/his kothi at Garhshankar and then he would leave her back at the same place. The innocent mind of Kulvinder Kaur was taken in. The accused had been posing a rosy picture to her about riches. Enticing is an act of the accused by which the person kidnapped is induced of her own accord to go to the kidnapper. The facts of the prosecution case fully establish that the accusedappellant enticed Kulvinder Kaur with deceitful means. It is axiomatic that any reason given by the accusedappellant to move the girl from one place to another is sufficient for inducement. Even where the girl discovers that she is not being so taken and falls in with the plan of the accusedappellant, the inducement is complete and the girl''s subsequent willingness will neither prevent the offence nor reduce its gravity. In the present case the accused deceitfully took Kulvinder Kaur from Nawanshahar. He took her from one place to another till he satisfied his sexual lust. It does not matter if Kulvinder Kaur did not run away from Jaijon, Garhshankar, Una or Hamirpur or if she did not raise any alarm to collect persons at those places. She had been enticed and induced to go from Nawanshahar. The intention of the accused was only that Kulvinder Kaur may be forced or seduced to illicit intercourse. The offence under Section 366 of the Indian Penal Code, is well established on the record.

The learned Counsel for the appellant further submitted that the prosecutrix was on the verge of majority and she herself went with the accusedappellant and for that reason no offence was made out against the accusedappellant. I am not convinced with this argument. The circumstances of the case do not suggest that she went without inducement. She was induced by deceitful means to go with the accusedappellant from one place to another and the appellant cannot derive any benefit from the conduct of the prosecutrix.

The learned Counsel for the appellant further contended that there was delay in lodging the report with the police and on that ground alone the appellant was entitled to be acquitted. The delay, if any in the peculiar facts and circumstances of the case, is of no significance. The accusedappellant kidnapped Kulvinder Kaur on 19.6.1985. It is the case of the prosecution that the mother of the prosecutrix and other relations searched for the prosecutrix and it was only when they could not know that the accusedappellant had taken her away, then the matter was reported to the police. From the defence evidence adduced by the appellant, it is established on the record that the prosecutrix was recovered by the police from his village. Thus, from the delay in lodging the report with the police, no benefit can be derived by the accusedappellant.

In the statement under Section 13 of the Cr.P.C. the accused took the plea of denial and false implication out of suspicion. He further pleaded that the parents the prosecutrix gave injuries to him and lodged report in order to cover up their illegal act. He in support of his defence plea examined Piara Lal DW1 Sarpanch of village Lodhipur, who deposed that in June, 1985 the accusedappellant and the prosecutrix came to him and the accusedappellant requested him that he accused be got rid of Kulvinder Kaur. The witness further added that he deputed two persons from the village to call for the police and when he visited the village, both the accused and the prosecutrix were produced before ASI Madan Lal who gave writing Ex.DC. Vide that writing Madan Lal took charge of the accused and the prosecutrix from the Panchayat. That writing does not help the accusedappellant in any manner rather it suggests that the accused and the prosecutrix were produced before ASI Madan Lal on 24.6.1985 at 2.40 p.m. and at that time certain respectables of the village were also present. Thus, the evidence of DW1 supports the case of the prosecution that Kulvinder Kaur was enticed and raped by the accusedappellant.

The statement of the prosecutrix inspires full confidence. She was confronted with her statement recorded by the learned Magistrate and before the police to highlight certain omissions in those statements. Those factors are too trivial to be taken serious note of. It cannot be concluded that she has made any material embellishment. Her version is clearly trustworthy. It is proved on the record that she was below 16 years of age at the time of occurrence. It is also proved that she was kidnapped/abducted by the accusedappellant and moreover the prosecutrix was recovered from the custody of the appellant from his village. This further strengthens the prosecution case as also the medical evidence that the prosecutrix was raped, without her consent and against her will at knife point. Thus, there is no merit in the contention of the learned Counsel for the appellant that Kulvinder Kaur was a consenting party.

As a sequel of foregoing discussion, there is no merit in this appeal and the same is hereby dismissed.