Gurdial Singh vs The State

J.S. Bedi, J.—This judgment will dispose of Criminal Appeals Nos. 934 of 1964 and 817 of 1965, filed respectively by Budha Singh and Gurdial Singh.

Appellants Budha Singh and Gurdial Singh, along with the four acquitted accused, namely, Ishar Singh, Simla, Biru and Sardaru, were committed to the Court of Session to stand their trial. The charge against Budha Singh was under sections 366 and 376, against Gurdial Singh u/s 366 read with section 109, and against the rest of the accused it was u/s 368 of the Indian Penal Code. The trial was held by Shri Surinader Singh, 1st Additional Sessions Judger, Ludhiana, who vide his order dated 16th September, 1964, convicted Budha Singh u/s 366 only sentencing him to one year''s rigorous imprisonment, and Gurdial Singh u/s 366 read with section 109, with a sentence of six months'' rigorous imprisonment, while the rest of the accused were acquitted.

The story for the prosecution as given by Gurmel Kaur, P.W. 3, the prosecutrix, and the other prosecution witnesses briefly runs as under: According to Gurmel Kaur she was married to Dalip Singh of village Latala about six or seven years back. Prior to her marriage, she was known by the name of Kauri. After her marriage, however, her parents-in-law changed her name and started calling her by the name of Gurmel Kaur. Kunda Singh, father in-law of Gurmel Kaur and his family did not permit Gunnel Kaur to go to her parents although her parents had approached Kunda Singh and others for that purpose num-her of times. It was also alleged that Dalip Singh, husband of Gurmel Kaur, was mpotent and as such could not perform his marital obligations towards her. Sometime before this occurrence, it is alleged, Gurdial Singh, appellant whose land was adjacent to that of Kunda Singh, father-in-law of Gurmel Kaur, told Gurmel Kaur that he would arrange to send her to her parents through Budha Singh appellant if she so desired.

On 19th October, 1963, Budha Singh approached Gurmel Kaur at her house and told her that if she wanted to go to her parents she should meet him on the way leading to village Baroondi in the evening. On the same day at about sunset Gurdial Singh appellant approached Gurmel Kaur at her house and told her that Budha Singh was awaiting her at the appointed place. Gurmel Kaur thereafter told her mother-in-law that she was going to case herself; but instead she went to the appointed place where Budha Singh was waiting for her. From there she was taken from place to place until she was taken to the house of Simla accused-acquitted in village Bhudi in district Bhatinda.

Kunda Singh made a search for Gurmel Kaur for four days and ultimately lodged a report with the police on 23rd October, 1963. The investigation was taken in hand by S. I. Raja Singh P. W. 10. On 2nd November, 1963, A. S. I. Harbhajan Singh joined Bhupinder Singh Sarpanch P. W. 13, Kikkar Singh, Kunda Singh and others for the search of Gurmel Kaur and they came across Budha Singh appellant and Gurmel Kaur near the bus stand at Moga. Gurmel Kaur was thus recovered and this appellant arrested. Salwar P. I which Gurmel Kaur was wearing at that time was also taken into possession and sent to the chemical examiner who found it to be stained with semen. Similarly kacchha P. 2 which Budha Singh, was wearing was also taken into possession and sent to chemical examiner who also found the same to be stained with semen.

Gurmel Kaur was got medically examined by Lady Dr. Jaswant Sidhu of Civil Hospital at Moga who could not give any opinion whether Gurmel Kaur was raped or not. She, however, found her hymen to be rupture of old duration.

The prosecution examined a number of witnesses, but the main witness regarding the Kidnapping and her abduction is Gurmel Kaur herself. In such cases, the first and foremost point to be determined is the age of the prosecutrix. According to the trial Judge, Gurmel Kaur was born in the year 1950 in village Sahna. While reaching at this conclusion, he relied on the birth entry relating to Gurmel Kaur. If that is so, she was no doubt a minor girl on the day of the commission of this offence. This finding of the learned trial Judge has not been challenged by any of the defense counsel.

The point raised by the defense counsel before me was, however, very short. The counsel for Budha Singh, while arguing his case, submitted that Gurmel Kaur was herself anxious to leave her parents-in-law and to go to her parents and if Budha Singh helped her in doing so, it cannot be -aid that he was responsible for taking her out of the keeping of the lawful guardianship of her parents-in in-law. This argument evidently is fallacious. urmel Kaur admittedly was a minor girl. It is abundantly proved from the evidence on the record that on the day of the occurrence Budha Singh approached Gurmel Kaur at her house and suggested to her that if she wanted to go to her parents, he would take her there. The same allegation is made against Gurdial Singh appellant. If that was so then it cannot be said that Gurmel Kaur was not under the lawful guardianship of her parents-in-law on the day of this occurrence. In R. v. Jetha (1904) 6 Bom. L. R. 785, a girl under 16 years of age was going to a vegetable market in search of work. On her way she met accused No. 1, another woman, who asked the girl to accompany her under a promise of obtaining work for her. The woman took the girl to her house and kept her there till evening, when she was removed by accused No. 2 to a bungalow and kept there for two days after which she was allowed to return to her home. It was held that the relation between the minor and the guardian was not dissolved at the time when accused No. 1 met the minor in the market and that the accused were guilty u/s 366. In Nga Shwe Thwe v. R. 6 Cri. L. J. 30, a minor girl left the immediate custody of her lawful guardian for a temporary purpose, and met a person in the street and went away voluntarily with that person, it was held that she was just as much in the possession of her legal guardian when she was walking in the street unless she had given up the intention of returning home, as if she had actually been in her guardian''s house when taken off. It makes no difference in such cases if the minor girl was a consenting party. A case which is closer to the facts of the present case is Karan Singh v. R. A. I R. 1960 All. 272, where a married woman, under sixteen years of age, left her husband''s house of her own accord and was proceeding to the house of her maternal uncle, it was held that she did not cease to be in the keeping of her lawful guardian and that, therefore, a person who induced her to go-with him was guilty of kidnapping her. In the present case the girl was approached at her house and it was then that she left her house and met Budha Singh who took her from place to place. No other argument was advanced as far as Budha Singh appellant is concerned. I have no doubt in my mind that the case against him is proved. Nothing has been said against the sentence imposed on him. His appeal fails and is dismissed,

The counsel for Gurdial Singh appellant submitted that probably Gurdial Singh genuinely wanted to help Gurmel Kaur and arranged that Budha Singh should take her to her parents'' house; and it was likely that Budha thereafter changed his mind and took the girl away to various places. The only part attributed to Gurdial Singh is that on the day of occurrence in the evening he approached Gurmel Kaur in her house and told her that Budha was awaiting her at a particular place and if she wanted to go to her parents'' house she should meet him there. There is no other allegation of any kind against this appellant. There is no-mention even that Gurdial Singh ever met Gurmel Kaur or Budha ther- fater. It appears that Budha Singh had been working as a sin of Gurdial Singh and as Budha was in fact guilty of this offence the parents in-law of Gurmel Kaur wanted to rope in Gurdial Singh as well as suspecting that he also had a hand in this affair. There is no evidence that he either took away Gurmel Kaur or enticed her. It then fore, feel that the case against Gurdial Singh is not free from doubt. By way of abundant caution, I give him the benefit of doubt and acquit him.

In the result, the appeal of Budha Singh appellant fails and that of Gurdial Singh appellant succeeds and he is acquitted.