Harpool Singh vs State of Punjab

T.H.B. Chalapathi, J.

These appeals are directed against the conviction and sentences imposed by the learned Additional Sessions Judge Hoshiarpur in Sessions Case No. 74 of 1987 dated 9.12.1987.

The appellants in both the appeals along with one Jit Singh were prosecuted for the offences under Section 363, 366 and 376 read with Section 341 I.P.C.

The case of the prosecution is that one Neelam Rani daughter of Gurdip Singh and one Rachhpal Kaur daughter of Mohan Singh were studying in the 11th Class in the Goswami Ganesh Dutt S.D. College, Hariana. On 21.5.1987, it was their last paper for the final examination. At about 12 noon when these girls alongwith their friends came from their college to the Bus Stand, the accused Rajinder Singh alias Raju and Jit Singh were standing behind a car belonging to Raju. Both the accused were also the residents of village of Neelam Rani. Accused Jit Singh told theres girls that they can sit in the car of Raju who would drop them at their houses as he was going to Hoshiarpur. Both the girls accepted the offer given by the accused and sat in the car. Thereafter Rajinder Singh, A1 started driving the car towards Hoshiarpur. Without dropping them at their village, Rajinder Singh took the car to Tanda Bypass Hoshiarpur and parked the car there. Thereafter Harpool Singh, A2 joined them. After that they drove the car towards Jalandhar road till they reached the Cold Storage of Mandiala near Nasrala. The building of the Cold Storage was almost deserted. Both the girls were taken by accused No. 1 and 2 inside the machinery room where two cots were lying. It was about 4.30 P.M. at that time. Both the girls and the accused spent the night of 21.5.1987 in that room. While the 1st accused Rajinder Singh forcibly committed the rape on Neelam Rani, the 2nd accused Harphool Singh committed rape on Rachhpal Kaur during that night. Again on the next date, the girls were kept locked during the day time in that room and on the night of 22.5.1987 both the accused again committed rape on the girls. On 23.5.1987 the accused brought the girls to the Bus Stand, Hoshiarpur where Rajinder Singh accused left the girls and Harphool Singh at the Bus Stand and went away in his car. Thereafter Harphool Singh took these girls and dropped them at Rama Mandi at Jalandhar. From there they went to village Dhanewalia near Jalandhar at the house of sister of accused No. 2. They spent night there and on the next date i.e. 24.5.1987 accused No. 2 took the girls to Railway Station, Jalandhar and then they boarded the train at 3.30 P.M. for Delhi where they spent two nights of 25.5.1987 and 26.5.1987 at the house of a person whom Harphool Singh called his maternal uncle. Thereafter they came back to Jalandhar from Delhi and stayed at the house of Harphool Singh''s sister at village Dhanewalia on the night of 27.5.1987. On 28.5.1987, Harphool Singh accused brought the girls to the Bus Stand at Rama Mandi where accused No. 1 met them in his car and then all the four travelled in the car towards Hoshiarpur. On the way the Police Party stopped the car. When Harphool Singh tried to run away, he was apprehended by the Police. Both the accused were arrested by the Police.

It is also on record that because of missing the girls from the scene, the fathers of the girls reported the matter to the Police. When no action was taken, Gurdip Singh, father of Neelam Rani, made an application to the Senior Superintendent of Police, Hoshiarpur stating that they came to know that the accused kidnapped the girls in Car No. 1122 and the girls were forced for illicit intercourse.

After the recovery of the girls the Sub Inspector of Police recorded their statements and got them medically examined by Doctor Jasbir Kanwar, who opined that they were subjected to sexual intercourse. After completion of investigation, a chargesheet was filed against all the three accused.

On the basis of the material placed before him, the learned Additional Chief Judicial Magistrate, Hoshiarpur committed the case to the court of Sessions as the offences are exclusively triable by the Court of Sessions. After committal, the learned Additional Sessions Judge framed the charge against the accused for the offences under Sections 363, 366 and 376 I.P.C. read with Section 34 I.P.C.

On a consideration of the evidence on record, the learned Additional Sessions Judge acquitted the 3rd accused Jit Singh as the prosecution failed to establish his involvement in the commission of the offence. The learned Additional Sessions Judge convicted the appellants in both the appeals who are accused No. 1 and 2 for the offence under Session 363 read with Section 34 I.P.C. and sentenced them to undergo rigorous imprisonment for a period of two years and pay a fine of Rs. 500/ each. Thus the accused have been acquitted for the offences under Sections 366 and 376 I.P.C.

Aggrieved by the said conviction and sentence, the 1st accused filed Criminal Appeal No. 666SB of 1987 while the 2nd accused preferred Criminal Appeal No. 9 of 1988.

The case of the prosecution is that both the girls Neelam Rani and Rachhpal Kaur were kidnapped by the accused and they committed rape on them. The evidence does not show that any force was exerted on the girls to go alongwith the accused. It is clear from the evidence of Neelam Rani that the accused came in a car to the Bus Stand where she and Rachhpal Kaur were waiting for a Bus and offered them a lift and then both of them sat in the car. Even though the car passed through their villages and went towards Tanda bypass of Hoshiarpur. It is also clear from the evidence of Rachhpal Kaur who has been examined as PW6 that when she and her friend Neelam Rani (PW5) were waiting for the Bus, the accused offered them a lift in the car. The 1st accused drove the car towards Hoshiarpur. Her evidence does not show that they raised any alarm when they were being taken to Hoshiarpur road. When the accused (girls ?) were being taken to a different direction other than of their village, it is nothing but natural that the girls should have raised alarm. Even when they were taken towards Jalandhar side, they did not raise any hue & cry. The evidence of PW5 and PW6 clearly indicates that even after 21.5.1987 they were taken to different places namely Jalandhar, Dhanewalia and Delhi. Even tat the Railway Station at Jalandhar when the girls alongwith accused No. 1 and 2 boarded the train for Delhi, neither they raised objection nor they informed anybody that the accused were taking them forcibly to some place against their will.

A close reading of the evidence on record clearly shows that both the girls went with accused No. 1 and 2 on their own. The part played by the 3rd accused Jit Singh is not proved on record. The only thing that had been stated against him was that he was present when the offer was made to these girls to go along with the 1st accused Rajinder Singh. Therefore, the 3rd accused Jit Singh was rightly acquitted by the learned Additional Sessions Judge.

PW1 is the Doctor who examined Rachhpal Kaur on 29.5.1987. According to her, she had undergone scheduled intercourse. Her evidence clearly indicates that there was no mark of external injury on the vulva region and the labia majora or minora were not swollen. Hymen was also torn and the vagina admitted two fingers easily. Therefore, it is clear that Rachhpal Kaur was habitual to sexual intercourse. She further deposed that on the same day i.e. 29.5.1987, she also examined Neelam Rani. PW1 did not find any marks of injury either on the body of Neelam Rani or on vulva region. In her case, labia majora or minora were not swollen. According to the Doctor hymen was also torn and vagina admitted two fingers easily. Thus the evidence of PW1 clearly reveals that both the girls were habituated to sexual intercourse even prior to the occurrence.

As observed earlier, both the girls went alongwith the accused on their own and there was no resistance on their part and they were not taken forcibly. From the evidence on record it is clear that both the accused committed sexual intercourse with Neelam Rani and Rachhpal Kaur respectively with their consent and since both the victims went alongwith the accused appellants to different places for a period of one week, I am of the opinion that the learned Additional Sessions Judge rightly acquitted the accused for the offences under Sections 366 and 376 I.P.C.

The only point that remains for consideration is whether the accused are guilty of the offence under Section 363 read with Section 34 I.P.C. To attract Section 361 I.P.C. the girls must be less than 18 years of age. According to PW1, though both the girls stated to be 17 years of age, she treated both of them as major girls meaning thereby both of them were aged above 18 years. According to PW2 who examined Rachhpal Kaur for determination of her age, she was between 17 and 18 years. He further stated that there may be variation of two or three years in her age from the medical examination. Therefore, his evidence is not of much importance to determine the age of Rachhpal Kaur. The father of Rachhpal Kaur was not examined. Her mother was examined as PW10. According to her, Rachhpal Kaur was aged about 161/2 years, but she did not produce any evidence in regard to the age of Rachhpal Kaur. According to her, Paramjit Singh is her eldest son and Manjit Singh is her second son and the 3rd issue is Rachhpal Kaur. Her further deposition is that Manjit Singh, the second son was aged about 18 years and she has given the age of Rachhpal Kaur as 161/2 years, but she did not produce any evidence on record to show the respective ages of her sons and daughter. Thus there is no evidence in regard to the age of Rachhpal Kaur. There is no specific evidence adduced by the prosecution to show the exact age of Rachhpal Kaur.

Coming to the age of Neelam Rani, PW2 stated that Neelam Rani was also aged about 1719 years. He also stated that there may be variation of two years in her age on either side. PW4 is the father of Neelam Rani. He has not produced any certificate showing the age of Neelam Rani. He has not produced any document showing the age recorded in the school register. Further PW4 was declared hostile by the prosecution. Even in chief examination he stated that he and the father of Rachhpal Kaur attached the certificates of birth of both Neelam Rani and Rachhpal Kaur with the application given by them to the Senior Superintendent of Police, but the prosecution failed to place them on record. This witness further stated that Exhibits PH and PJ were obtained from the Additional District Registrar, Births and Deaths, Hoshiarpur. Exhibit PH is a birth certificate said to have been issued on 5.6.1987. It shows that Neelam was born on 1.7.1970. In Exhibit PJ the date of birth of Rachhpal Kaur is given as 21.7.1970. None of the persons connected with Exhibit PH and PJ has been examined by the prosecution. There is also no evidence that these birth certificates relate to the victims Neelam Rani and Rachhpal Kaur. The name of the informant in regard to birth has not been mentioned in none of these certificates. At the time of admission in the school, the age of both of the girls should have been given, but no effort has been made to produce the school register. It is evident that both the girls completed 11th class. It is clear from the reading of Exhibit PJ that it does not relate to Rachhpal Kaur. PW10 is stated to be the mother of Rachhpal Kaur, but her name has not been mentioned in Exhibit PJ. On the other hand, the mother''s name of Rachhpal Kaur was mentioned as Malkiat Kaur. Therefore, no reliance can be placed on Exhibit PJ. Thus the prosecution failed to prove the age of Rachhpal Kaur.

Coming to Neelam Rani, except filing Exhibit PH, the prosecution has not produced any evidence to prove the same. Even the learned Additional Sessions Judge on a consideration of the evidence on record observed that Neelam Rani could have been of the age of 19 to 21 years when she was allegedly kidnapped by the accused. But however he relied Exhibit PH. which shows the date of birth of Neelam Rani as 1.7.1970. But none had been examined to prove Exhibit PH. Even the father of Neelam Rani who has been examined as PW4 has stated that he does not know the exact date of birth of Neelam Rani. Further the date of birth should have been mentioned in the School Register, same was suppressed by the prosecution.

There is no doubt that both the girls were above 17 years of age at the time of commission of the offence. To prove that they are under the age of 18 years so as to attract Section 361 I.P.C., it is for the prosecution to prove the actual age of the victims stated to have been kept in unlawful custody. After going through the record carefully, I am of the opinion that there is no specific and acceptable evidence to show that both the girls are below the age of 18 years. In fact, the father of Neelam Rani turned hostile as stated earlier and in his examination inchief he did not name the accused as the persons who are responsible for kidnapping his daughter. Therefore, the accused cannot be convicted even on the basis of the evidence of the father of Neelam Rani who has been examined as PW4. Further the evidence of the Doctor clearly shows that both the girls were habituated to sexual intercourse and the photographs marked in this case clearly show that both the girls fell in love with accused No. 1 and 2 respectively and they went alongwith the accused of their own.

In these circumstances, I am of the opinion that the prosecution has failed to prove the guilt of the accused by cogent, admissible and acceptable evidence. I am, therefore, of the view that both the accused deserve to be acquitted of the charge in which they have been convicted.

Accordingly, I allow both the criminal appeals, set aside the conviction and sentence imposed on the accusedappellants by the learned Sessions Judge, Hoshiarpur and acquit them of the charges framed against them. Their bail bonds shall stand cancelled.

Appeals allowed.