Brahm Dutt vs State of Punjab

R.L. Anand, J.

This is a criminal appeal filed by Brahm Dutt, a young boy of 24 years and Sarwan Kumar, aged 50 years, and has been directed against the judgment and order dated 30.3.1999, passed by the court of Sessions Judge, Hoshiarpur, who convicted and sentenced the appellant to undergo R.I. in the following manner :

Appellant Brahm Dutt was convicted u/ss 376/363/366 and was sentenced to undergo RI for 7 years u/s 376 and to pay a fine of Rs. 1,000/; in default of payment of fine to further undergo RI for 2 months, to undergo RI for 2 years u/s 363 and to pay a fine of Rs. 500/; in default of payment of fine to further undergo RI for one month and to undergo RI for 3 years u/s 366 and to pay a fine of Rs. 500/; in default of payment of fine to further undergo RI for one month. Appellant Sarwan Kumar was convicted u/ss 376/368, IPC, and was sentenced to undergo RI for 7 years u/s 376 and to pay a fine of Rs. 1,000/; in default of payment of fine to further undergo RI for 2 months and to undergo RI for 3 years u/s 368 and to pay a fine of Rs. 500/; in default of payment of fine to further undergo RI for one month. All the substantive sentences were ordered to run concurrently.

The brief facts of the case are that on 12.2.1996, Sewa Kaur wife of Gopal Singh, Addharmi, resident of village Jia Sahota Khurd got recorded her statement with ASI Jarnail Singh of Police Station, Tanda, that she is a household lady and her husband has gone to Dubai for the last 10 years. Her daughter Mandeep Kaur alias Rajji (prosecutrix), aged about 17 years, was doing the work of plucking the peas of Sohan, resident of village Ramdaspur, and accused Brahm Dutt son of Bawa Dass, Addharmi, of the same village also used to do the same job there. The complainant further stated that on 9.2.1996 at about 7 A.M., her daughter Mandeep Kaur went to the fields of sugarcane to answer the call of nature but did not return from there till the date her statement was recorded. She made search of her daughter from her relatives but she was not traceable. She suspected that her daughter had been taken away by accused Brahm Dutt after giving some allurement. She also suspected Sohan son of Prabhu of village Ramdaspur for the same. On this statement, a case was registered and during the course of investigation, Brahm Dutt was arrested on 1.4.1996 and Mandeep Kaur was recovered from his possession. She was handed over to her mother. Mandeep Kaur made the statement that on 7.2.1996 at 7 A.M. she had gone to the sugarcane fields of Amarjit Singh where Brahm Dutt came and grappled with her and raped her. Then, he asked her for marriage and made her sit on the carrier of the cycle and brought her to Dasuya Courts, where Tilki, Sarwan Ram and Sucha were present. Brahm Dutt forcibly got her signatures on some papers. Then, they all said that now she was married to Brahm Dutt. Thereafter, Brahm Dutt, Tilki, Sarwan and Sucha brought her to the house of sister of Sarwan; namely Bebo, who did not keep them there. Then, they brought her to the house of Sarwan at Tanda where she was kept for four days and there Brahm Dutt raped her for all these days. Thereafter, Brahm Dutt took her to his sister''s house at Village Khurd, but his sister also refused to keep them. On that day, they stayed in the fields. She was raped in the fields also, then they all returned to the house of Sarwan at Tanda. Sarwan took Brahm Dutt to his shop and brought the prosecutrix to his house. Then, Sarwan raped her. Then, Sarwan took her to the house of his inlaws at Village Bookkan where also Brahm Dutt used to rape her. Thereafter, Brahm Dutt took her to village Tahli and used to rape her there. After that she was taken to Harmandir Sahib, Amritsar, where she was kept in a room for four days and was raped there. Then she came to Jalandhar. They stayed for 20/22 days and she was raped there every day. Thereafter, both of them were apprehended by the police in Village Khurdan. On these broad allegations, the investigation of this case was completed and the challan was presented in the court of the Area Magistrate who supplied the copies of the documents to the accused and vide commitment order dated 12.10.1996, both the accused were committed to the court of Sessions. Vide orders dated 8.11.1996, Brahm Dutt was chargesheet u/ss 363/366/376, IPC. Vide order dated 4.2.1997, an amended charge was framed against Sarwan Kumar u/ss 368/376, IPC, though vide order dated 8.11.1996 he was only chargesheeted u/s 368, IPC. The charges were read over and explained to the appellants to which they pleaded not guilty and claimed trial.

In order to prove the charges, the prosecution examined PW1 Dr. Jarnail Singh, who medically examined Brahm Dutt, appellant, and declared him fit to perform the sexual intercourse vide M.L.R. Ex. PA. Dr Shashi Dhawan, Medical Officer, Civil Hospital, Dasuya, appeared as PW2 and she medically examined Mandeep Kaur, prosecutrix on 1.4.1996 and at that time, the prosecutrix gave her age as 171/2 years. This doctor deposed that at the time of the examination of the prosecutrix her breasts were fully developed. Axillary and pubic hair were present. There was no external mark of injury on the genitalia. The hymen was absent. Vaginal orifice was dilated. Vagina admitted two fingers easily. She also declared that uterus was of normal size and cervix was normal. The case was referred to the Radiologist, Civil Hospital, Hoshiarpur, for radiological examination. Ex. PB is the correct carbon copy of the MLR and Ex. PD is the letter which was written by this doctor for the ossification test of the prosecutrix. Unfortunately, the prosecution did not get the prosecutrix radiologically examined. In the crossexamination, this doctor admitted that there was no injury on the person of the prosecutrix at the time of the medical examination and in her opinion the prosecutrix was habitual to sexual intercourse. Sewa Kaur, PW3, is the complainant. According to her the age of her daughter was approximately 17 years. She proved her statement, Ex. PF, which was made before the police. She also proved the recovery of her daughter in the company of Brahm Dutt on 1.4.1996. ASI Jarnail Singh appeared as PW1 and deposed that on 12.2.1996, he received a complaint, Ex.PF, of Sewa Kaur and on the basis of that, he recorded formal FIR, Ex. PF/2. Mandeep Kaur, prosecutrix, appeared as PW5 and she has supported the allagations as stated in the earlier portion of this judgment. In the crossexamination, she admitted that there was no knife or revolver or any other type of weapon with the accused when she was being taken from one place to another. A suggestion was also put to her that on 9.2.1996 she left the house of her mother of her own accord. Also, she admitted that when she was allegedly taken to the Golden Temple, Amritsar, there was a lot of rush. A suggestion was also put to her that Sarwan Kumar, appellant, never committed rape upon her but this suggestion has been denied. She further admitted that when she stayed at Amritsar and Jalandhar she used to do her makeup like a married woman. PW6 ASI Balbir Singh is the I.O. Dr. Sarup Singh, PW7, Medical Officer, medically examined Sarwan Kumar, appellant, and declared him fit to perform sexual intercourse. A.S. Grewal, J.M.I.C., Samana, appeared as PW8. PW9 is Kuldeep Kumar Sharma, draftman. PW10 ASI Daljit Singh completed the challan of this case. PW11 Devinder Singh gave his statement on affidavit, like PWs 12 and 13. Finally, the report of the Chemical Examiner was also tendered, which suggested that semen was found on Exhibits but no spermatozoa was found on any of the articles which were sent to the office of the Chemical Examiner.

On the closure of the prosecution evidence, the statements of the accused were recorded u/s 313, Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to them. Accused denied those circumstances and Brahm Dutt stated as follows :

"I am innocent. The parents of the prosecutrix were against our marriage. The prosecutrix had filed a criminal complaint in the court of Shri B.K. Gaur, Sub Divisional Judicial Magistrate, Dasuya, also. I have been falsely implicated in this case.

Sarwan Kumar, appellant, stated as follows :

"I am innocent. I have been falsely implicated only due to the friendship of Brahm Dutt."

In defence, the accused examined Dharam Pal, DW1, who produced the file of bail application No. 84 (Sarwan Kumar v. State) decided by Sh. M.S. Rattu, Additional Sessions Judge, Hoshiarpur.

The learned trial court, however, held that Mandeep Kaur was aged 17 years but she has been raped by the appellants. Resultantly, the appellants were convicted and sentenced in the manner as stated above u/s 366A, no separate sentence was passed u/s 363, IPC. Aggrieved by their conviction and sentence, the present appeal, which I am disposing of with the assistance rendered by Mr. G.S. Savra, counsel for the appellants and Mr. S.S. Randhawa, DAG, Punjab, appearing on behalf of the State, and with their assistance have gone through the record of this case.

First of all, I would like to proceed with the proved and admitted facts. The proved facts are that Mandeep Kaur, prosecutrix, is daughter of Sewa Kaur. Mandeep Kaur when appeared before the doctor on 1.4.1996, she gave her age as 171/2 years. When the mother of the prosecutrix appeared as PW, she gave the age of her daughter as 17 years. Inspite of the fact that the lady doctor wrote a letter to the Radiologist for the ossification test, the prosecution has not produced the prosecutrix before the Radiologist for the determination of her age. The admitted facts are that there is no birth entry on the record and also there is no School Leaving Certificate etc. to indicate about the age of the prosecutrix. Thus, we are left with oral evidence which, inter se, is contradictory. The prosecutrix when she was examined at the first instance gave her age as 171/2 years but she is an illiterate lady. The mother of the prosecutrix gave the age of her daughter as 17 years. She too is an illiterate lady. Therefore, in these circumstances, it cannot be said with precision as to what was the age of the prosecutrix on the date of her alleged kidnapping/abduction. The prosecution was obliged to prove the age of the prosecutrix in order to take the advantage of various provisions of the Code. In such circumstances, this court will have to hold that the prosecutrix was definitely more than 18 years of age and the court has taken a wrong opinion of the matter that the prosecutrix was 17 years of age. Definitely, she was more than 16 years of age and once this fact is established, now, the point to be seen is whether the appellants could be held guilty for the offense u/s 376, IPC, or not.

It is the case of the prosecution itself that at the first instance Brahm Dutt came into contact with the prosecutrix. He allegedly raped her and, then, allured her that he would marry her. The prosecutrix goes to Dasuya Courts where she executes some documents by way of evidence to establish the marriage between her and Brahm Dutt. Thereafter, the prosecutrix moved in the company of Brahm Dutt from one place to another. Then, it is the case of the prosecution, that Sarwan Kumar took the prosecutrix to his house where he allegedly committed rape upon her. This looks to be very absurd and improbable. If Mandeep Kaur had performed marriage with Brahm Dutt, she would not accompany with Sarwan Kumar. Even from the evidence of the prosecution, it is established that the prosecutrix had stayed in the Golden Temple Complex, Amritsar. Admittedly, there was a lot of rush, etc. The prosecutrix never complained to anybody about the conduct of Brahm Dutt or Sarwan Kumar. There is no injury on her person. Even the examination of private parts indicate that she was used to sexual intercourse clearly suggesting that there was consent on the part of the prosecutrix when she submitted herself for sexual intercourse before Brahm Dutt. I have already held above that she was more than 16 years of age and, in these circumstances, (offence under) section 376, IPC, is not made out against either of the appellants.

Now, the second point which survives for determination is whether the conviction can be based against the appellants u/ss 363/366/368, IPC, or not.

In order to prove this offence, it is again necessary to establish on the part of the prosecution that the prosecutrix was enticed or taken away by Brahm Dutt so as to prosecute the offence of kidnapping for the purposes of sections 363 and 368, IPC. Further, it has also to be established by the prosecution that Sarwan Kumar had wrongfully concealed or confined the lady who has been abducted. If it is established on the record that Mandeep Kaur, who was a grown up girl of more than 17 years as on 9.2.1996, had left the house of her mother of her own accord, the case of the prosecution will not fall within the definition of kidnapping from the lawful guardianship as defined u/s 361, IPC. If a mature girl of 18 years leaves the house of her parents of her own accord and stays with her paramour, in such circumstances, it cannot be held that the paramour had taken or enticed the woman. Various factors leading to consent clearly show that Mandeep Kaur left the house of her mother of their own accord in order to marry herself with Brahm Dutt or she wanted to enjoy life/sex in the manner she desired but definitely this court is of the opinion that there was no taking or enticing on the part of Brahm Dutt or Sarwan Kumar and also there was not wrongful confinement on the part of Sarwan Kumar. If Brahm Dutt and Mandeep Kaur had voluntarily gone to the house of Sarwan Kumar, for staying there under the pretext of husband and wife in such a situation Sarwan Kumar cannot be convicted for the offence u/s 368, IPC. There is also a strong probability in favour of Sarwan Kumar as he is an old man of 50 years and, in these circumstances, he would not have tried to commit rape upon the prosecutrix nor he will try to give cover to Brahm Dutt and Mandeep Kaur in his house for the purposes of wrongly concealment. In order to constitute an offence u/s 368, IPC, it was obligatory on the part of the prosecution to establish the following factors :

(i) the person in question has been kidnapped.

(ii) Accused knew that such person had been kidnapped.

(iii) Accused having such knowledge, wrongfully concealed or confined the person concerned.

Knowledge on the part of Sarwan Kumar cannot be readily inferred or presumed u/s 368, IPC. It is to be proved by leading positive and reliable evidence. I have already held above that it was not a case of kidnapping on the part of Brahm Dutt, rather it was a case where Mandeep Kaur had left the house of her mother on her own accord in order to join with Brahm Dutt and with her wish executed certain documents of marriage whether legally or otherwise. She has been roaming from one place to the other of her own free will with Brahm Dutt and she had surrendered herself physically before Brahm Dutt. There is no indication that her consent was obtained under duress or force as I have already stated above that there is no evidence of violence on any part of the body of the prosecution.

The learned counsel for the State has tried to bring out the case of the prosecution u/s 376(2)(g), IPC, and submitted that it was a case of a gang rape and the prosecutrix had stated in court that she never consented to the sexual intercourse allegedly committed by Brahm Dutt and Sarwan Kumar and with the aid of section 114A of the Indian Evidence Act, the court has to presume that the prosecutrix was not a consenting party.

I have considered this submission of the learned State counsel and I am not in a position to concur with him because section 114A will apply only if it is proved that gang rape has been committed. As per Explanation (1) to section 376, IPC, where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection.

It is not the case of the prosecution that the appellants ever constituted a group of persons or that any one of them acted in furtherance of their common intention. Rather, the case of the prosecution is that at the first instance Brahm Dutt allegedly committed rape with Mandeep Kaur in the fields or at various places where she was taken. Then, Brahm Dutt and Mandeep Kaur contacted Sarwan Kumar, who allegedly provided shelter for them and at one occasion, sexual intercourse was committed by him upon Mandeep Kaur. This allegation will not constitute a gang rape and come within the purview of Explanation (1) to section 376, IPC, and, therefore, the provisions of section 114A, Indian Evidence Act will not come into play.

In the light of the above discussion, I have come to the conclusion that there was not act of enticing/kidnapping on the part of Brahm Dutt. I have further held that the prosecution has not been able to prove the exact age of the prosecutrix and it cannot be ruled out that Mandeep Kaur might be more than 18 years of age and under these circumstances, even the offence u/s 366, IPC, is not made out. There is no satisfactory evidence to constitute the offence u/s 368, IPC. As the prosecutrix was a consenting part and she was more than 16 years of age, the offence u/s 376, IPC is also not made out.

Resultantly, giving benefit of doubt to the appellants, I accept this appeal, set aside the judgment and order of the trial court and acquit the appellants of the charges framed against them. The information regarding the acceptance of this appeal be sent to the Superintendent Central Jail, Ludhiana, so that the appellants should be set at large forthwith, if not required in any other case.