Harnek Singh vs State of Punjab

Pritpal Singh, J.

Amarjit Kaur and Harnek Singh appellants have been convicted under section 366 and Gurdip Singh appellant under section 376 of the Indian Penal Code. Sentence of two years'' rigorous imprisonment and a fine of Rs. 250/, in default of payment of which to undergo further rigorous imprisonment for two months, each, has been awarded to Amarjit Kaur and Harnek Singh under section 366 of the Indian Penal Code. Gurdip Singh has been sentenced to undergo three years'' rigorous imprisonment and to pay a fine of Rs. 500/, in default of payment of which to undergo further rigorous imprisonment for three months under section 376, Indian Penal Code. These three appeals (Crl. Appeals Nos. 397SB and 474SB of 1981) filed by the convicts separately, being against the same judgment will be decided together.

Amarjit Kaur was living in the neighbourhood of the prosecutrix Chander Bala (P.W.5) in Janata Nagar, Ludhiana. Harnek Singh was residing in a house in Military Camp, Ludhiana, He was intimate with Amarjit Kaur and used to visit her house. Amarjit Kaur was also on visiting terms with Chander Bala prosecutrix and her family members being their neighbour. The prosecution story, as narrated by the prosecutrix Chander Bala (PW 5), is that on October 7, 1980, Amarjit Kaur took her to her own house at about 12.00 noon. Harnek Singh was also present at that time in the house of Amarjit Kaur. These two appellants put up a proposal before the prosecutrix that if she so wanted they could get her married to a person of good antecedents having sufficient property. The prosecutrix was taken in by their allurement and she accompanied Amarjit Kaur and Harnek Singh to Mohalla Kashmir Nagar, Ludhiana, a road had been taken by them on rent. The prosecutrix remained with Amarjit Kaur and Harnek Singh in that house overnight and then on the next day, i.e. on October 8, 1980, all three of them went by train to Sirsa, where they reached on the morning of October 9, 1980. From Sirsa went to village Mallewal to the house of Amarjit Kaur''s sister. They remained there on 9th and 10th October, 1980. On the 13th Amarjit Kaur and Harnek Singh brought Gurdip Singh appellant and then all four of them went to the Courts at Sirsa where the signatures of the prosecutrix were obtained on a register and two other papers. Harnek and Amarjit Kaur parted company of the prosecutrix and Gurdip Singh at Sirsa and from there Gurdip Singh appellant brought the prosecutrix to his own house at Mallewal. They left Mallewal on October 11, 1980 in morning and came to the abovementioned house in Mohalla Kashmir Nagar Ludhiana. In that house the prosecutrix and Gurdip Singh spent three days and according to the prosecutrix, Gurdip singh raped her during those days. On October 14, 1980, at about 12.00 noon. Shadi Lal (P.W.5), father of the prosecutrix, came there along with a police party. At that time Amarjit Kaur was sitting in the courtyard of the house. Gurdip Singh was lying on cot in the room and the prosecutrix was sitting on the feet side of the cot. The Police recovered the prosecutrix and arrested Gurdip Singh and Amarjit Kaur.

The story put forward by Shadi Lal (P.W.4), father of the prosecutrix is that on October 7, 1980 he left his house at about 12.30 noon in order to sell general merchandise goods as a hawker in different villages and returned to the house at 7.00 p.m. He found that Chander Bala was absent since about 1.00 p.m. He searched her for the next four days but was unable to trace her. On October 12, 1980 he met A.S.I. Kishore Chand (P.W.10) at Gill Chowk and told him about the absence of his daughter. The A.S.I. recorded his statement Exhibit P.A. which was sent by him to the Police Station, on the basis of which a formal first information report Exhibit P.A./2 was recorded. On October 14, 1980, the Police party along with Shadi Lal, on receipt of a secret information regarding the whereabouts of the prosecutrix, raided the aforesaid house in Mohalla Kashmir Nagar, Ludhiana, and recovered the prosecutrix.

A.S.I. Kishore Chand having arrested Amarjit Kaur and Gurdip Singh, sent the prosecutrix and Gurdip Singh to the Civil Hospital, Ludhiana, for their medical examination. Harnek Singh appellant was subsequently arrested on October 15, 1980. The investigation was completed and all the three appellants were challaned and prosecuted.

The prosecutrix, Chander Bala (PW 4), is not proved to be below 16 years of age at the relevant time. The learned counsel for the appellants submitted that a bare reading of her statement would indicate that it is a case of consent and not of forcible kidnaping or rape. There is merit in this contention and I am in lined to agree with the same. Nowhere in her statement, the prosecutrix stated that she was forced to leave her house by Amarjit Kaur and Harnek Singh appellants. All that she has stated is that she was allured by the proposal put forth by them that they would marry her to a goodlooking man having sufficient property. She, on her own will, accompanied them to village Mallewal where she was introduced to Gurdip singh appellant. She quite willingly accompanied them to Sirsa Courts where she signed on some papers and she was told that a marriage had taken place between her and Gurdip Singh. Amarjit Kaur and Harnek Singh then parted company with them and the prosecutrix accompanied Gurdip Singh first to Mallewal to his own house and thereafter at her own asking to the house in Mohalla Kashmir Nagar, Ludhiana. She appeared to have spent her time quite happily with Gurdip Singh in that house when it was raided by the police on October 14, 1980 at the instance of her father which led to her alleged recovery and the involvement of the appellants in the present case of kidnaping and rape. The only incriminating statement made by the prosecutrix against Gurdip Singh is that during their stay in the house at Mohalla Kashmir Nagar, Ludhiana, she was raped by Gurdip Singh. However, mere allegation of this kind is not proof of rape. It is not even alleged by her that Gurdip Singh had forcibly subjected her to sexual intercourse. The circumstances narrated by her on the contrary indicate that she considered herself wife of Gurdip Singh during those days and she had been quite willing to have sexual intercourse with him. Not a word has been said by her to indicate that she had offered resistance of any kind while Gurdeep Singh had sexual relations with her, when they were together in Mohalla Kashmir Nagar, Ludhiana, from 11th to 13th of October, 1980. It appears that only after she was recovered by the Police at the instance of her father, under the influence of the latter, she has made a lukewarm allegation of rape against Gurdip Singh. So far as Amarjit Kaur and Harnek Singh are concerned no allegation of any kind has been made by her against them.

In this view of the matter, commission of no offence, has been made out against any of the appellants either under section 366, or under section 376 of the Indian Penal Code.

The result is that all these three connected appeals are accepted, the conviction and sentence recorded against the appellants are set aside and they are acquitted.

JUDGMENT accordinlgy.