Harsharan Singh vs State of Punjab

R.L. Anand, J.

This is a criminal appeal and has been directed against the judgment and order dated 24.10.1994, passed by the court of Addl. District and Sessions Judge, Amritsar, who convicted the appellant Harsharan Singh u/ss 363, 366A and 376, IPC, and sentenced him to undergo R.I. for a period of 10 years u/s 376, IPC. The appellant was further directed to pay a fine of Rs. 2,000/; in default of payment of fine, he was directed to undergo R.I. for two years. Appellant was also directed to undergo R.I. for a period of 10 years and to pay a fine of Rs. 500/ u/s 366A, IPC. In default of payment of fine, he was further to undergo R.I. for one year. The appellant was further directed to undergo R.I. for five years u/s 363, IPC. All the substantive sentences were ordered to run concurrently.

The brief facts of the case are that on 3.10.1991, ASI Harjinder Singh of Police Post Sarai Amanat Khan, attached with Police Station Gharinda, was present at Bus Stand, Cheema Kalan, in connection with patrolling. Gurmeet Kaur, PW, met him there and made the statement, Ex. PF, alleging, inter alia, that she is the resident of village Cheema Kalan. Her husband Mukhtiar Singh is an agriculturist. She has one son Dhira and six daughters. Eldest daughter Ramesh Kaur is married with Sajjan Singh son of Dara Singh of village Panj Garaiyan. Younger to her is Karmaljit Kaur is married with Puran Singh son of Malook Singh of village Dall. Next to her is Savinder Kaur, who is married with Darshan Singh son of Surat Singh, resident of village Kaleke and younger to her Rajwinder Kaur is married with Kewal Singh son of Gulzar Singh resident of village Bhagwan. Lakhwinder Kaur and Sharanjit Kaur, who are aged about 14 years and 16 years are unmarried and help her in domestic work. On 1.10.1991, at about 12 P.M., her husband Mukhtiar Singh had gone out of station. Her son Dhira Singh was in the fields. She and her daughters Lakhwinder Kaur and Sharanjit Kaur were present in the house. Prem Singh alias Prema and Harsharan Singh alias Sgarana (appellant) sons of Mohinder Singh, residents of Village Cheema Kalan along with two other Sikh gentlemen, aged about 20 years, each having beard, who can be identified by her, came into the courtyard of her house. Harsharan Singh and his brother Prem Singh caught hold the arms of Sharanjit Kaur and took her from the house. She and her other daughter Lakhwinder Kaur asked them not to do so but they were threatened with death. They had kidnapped Sharanjit Kaur. Two unidentified persons remained standing in the courtyard and thereafter they also left her house. Since, her husband was out of station, she did not go to the police station to lodge the report. Since, her husband has come, she came to lodge the report. She is convinced that Harsharan Singh and his brother Prem Singh had forcibly committed rape upon Sharanjit Kaur.

The above statement, Ex. PF, was read over and explained to Gurmeet Kaur, who thumb marked the same in token of its correctness. ASI Harjinder Singh made an endorsement, Ex. PF/1, underneath the said statement and sent the same to the police station for the registration of the case, on the basis of which formal FIR was recorded. The ASI visited the place of occurrence and prepared the rough site plan, Ex. PM. He received a secret information that Harsharan Singh along with Sharanjit Kaur were going to board a train bound for Delhi at 2 PM for Amritsar. The I.O. went to the Railway Station, Amritsar, and saw Sharanjit Kaur coming alone on a rickshaw to the Railway Station. He apprehended her and got her medically examined. Her statement u/s 161, Cr.P.C. was also recorded. The appellant was arrested on 13.1.1992. He was also medically examined and after completion of the investigation of the case, the appellant was challaned u/ss 363, 366A, 376 and 376/34, IPC. Prem Singh, brother of the appellant, was found innocent by the police.

The Area Magistrate supplied the copies of the documents to the appellant and vide commitment order dated 21.2.1992, committed the appellant to the court of Sessions. Prem Singh was, however, summoned u/s 319, Cr.P.C. in order to face trial, though he was found innocent earlier. Vide orders dated 8.8.1992, Harsharan Singh and Prem Singh were chargesheeted for the offences u/ss 366A, 376, 376/34, IPC. The charges were read over and explained to the accused who pleaded not guilty and claimed trial.

In order to prove the charges, the prosecution examined Gurmeet Kaur, PW 1, Dr. Daljit Singh, PW2, Dr. Sita Ahuja, PW3, Dr. Harjit Kaur, PW4, Sampuran Singh, PW5, MHC Amarjit Singh, PW6, Lakhwinder Kaur, PW7, HC Gurmeet Singh, PW8, Prosecutrix Sharanjit Kaur, PW9 and the I.O. Harjinder Singh, PW10.

On the closure of the prosecution evidence, the statement of the accused was recorded u/s 313, Cr.P.C., and all the incriminating circumstances appearing in the prosecution evidence were put to him. Accused denied those circumstances and the appellant stated that he has been falsely implicated in this case. I need not incorporate the plea of Prem Singh since he has been acquitted by the trial court.

When called upon to enter defence, the accused examined DW1 Rajni Kant, Reader of the Court of Addl. Sessions Judge, Amritsar, who stated that Sharanjit Kaur had filed a complaint against her father Mukhtiar Singh and her statement was recorded in court on 27.11.1991. This witness proved the complaint and the statement of Sharanjit Kaur. DW2 Suresh Pal, proved the certified copy of the statement of Sharanjit Kaur.

The learned trial court convicted and sentenced the appellant in the manner as stated above while giving benefit of doubt to Prem Singh and aggrieved by his conviction and sentence, the present appeal, which I am disposing of with the assistance rendered by Mr. Malkiat Singh, counsel for the appellant and Mr. Randhir Singh, DAG, Punjab, appearing on behalf of the State and with their assistance have gone through the record of this case.

The learned counsel for the appellant has assailed the judgment and order of the learned trial court and his first frontal argument was that it is not proved on the record that the prosecutrix Sharanjit Kaur was less than 16 years of age at the time of the incident which took place on 1.10.1991. The counsel submitted that there is no satisfactory evidence led by the prosecution with regard to the establishment of the age of the prosecutrix. The counsel further submitted that the prosecution has not proved the birth entry. The School Leaving Certificate cannot be held to be a conclusive piece of evidence. The evidence of the prosecutrix and her mother Gurmeet Kaur is discrepant inter se and, in these circumstances, the finding of the trial court that Sharanjit Kaur was less than 16 years of age is incorrect.

I am not convinced with the argument raised by the counsel for the appellant. It is correct that the best evidence which has been recognised by law is the birth entry. Unfortunately, the birth entry has not been produced by the prosecution. Thus, we have to see whether the second best evidence which has been led by the prosecution is sufficient to hold that the prosecutrix was less than 16 years of age on the date of his kidnapping. In this regard, first of all, I would like to refer to the statement of PW5 Sampuran Singh, who has proved the School Leaving Certificate of Sharanjit Kaur and as per that certificate her date of birth is 25.3.1976. This witness had also brought the Admission Register of the school. In the cross examination, the witness stated that Sharanjit Kaur was admitted in the school in his presence. No affidavit from the parents of Sharanjit Kaur was taken at the time of admission and she was admitted on the basis of her 5th class Certificate. That Primary School is also situated in the same village though separate. Then, we have the statement of Gurmeet Kaur, PW1, who is none else but the mother of the prosecutrix. According to her, Sharanjit Kaur was aged about 14 years on the date of the kidnapping. When prosecutrix was recovered by the I.O. on 30.12.1991, she was sent for medical examination on 31.10.1991 (31.12.1991 ?) Dr. Sita Ahuja, PW3, medically examined her and gave the following observations with regard to the teeth of the prosecutrix :

"Teeth : 7/7 7/7"

She further stated that the hymen was ruptured and the edges were healed. There was no evidence of fresh injury on hymen and that the vagina admitted two fingers easily. Further, it has been stated by this doctor that the prosecutrix had indulged in intercourse.

Dr. Harjit Kumar, PW4, conducted ossification test of the prosecutrix and gave the following observations :

"As Epiphysis of head of humurus, acromion process, medial epicandyl of hymurus, distal end of ulna, head of forus, distal end of fumure, upper and lower end of tibua and fibula were fused."

According to this doctor, the prosecutrix was between 15 to 17 years and his report is Ex. PC in this regard and Ex. PC/2 to Ex. PC/3 are the relevant skiagrams. When the prosecutrix appeared before the doctor on 31.12.1991, she gave her age as 161/2 years.

Gurmeet Kaur is none else but the mother of the prosecutrix. It is true that the birth entry of the prosecutrix has not been produced by the prosecution but the second best evidence which has been produced on behalf of the prosecution gives an irresistible conclusion that Sharanjit Kaur, prosecutrix, was less than 16 years of age on 1.10.1991.

In these circumstances, the consent or no consent on the part of the prosecutrix is immaterial for the purpose of constituting the offence u/s 376 IPC.

With regard to the main occurrence, we have on record the statement of Gurmeet Kaur, her daughter Lakhwinder Kaur and that of the prosecutrix. Gurmeet Kaur had stated that on the date of occurrence, she along with her two daughters Lakhwinder Kaur and Sharanjit Kaur, was present in the house. Four persons including Prem Singh and Harsharan Singh, who are real brothers and sons of Mohinder Singh of our village came to the house. The other two companions of the accused were Sikhs and were having beard open. Harsharan Singh caught hold of her daughter Sharanjit Kaur from her arm. He and his brother Prem Singh forcibly took her daughter Sharanjit Kaur out of the house in her presence. She prevented them not to do so but they did not adhere and threatened that in case they were prevented from doing so, the complainant and her daughters would be killed with the fire arms which were in their possession.

Lakhwinder Kaur, PW7, stated as follows :

"My father had gone out of station. Harsharan Singh and Prem Singh accused present in court trespassed into our house. Harsharan Singh caught hold my sister Sharanjit Kaur from her arms and said that he wanted to take her with him and took her away with them. My mother became out of sense and went outside the house and I locked the door from inside the house. My father, however, came on the same day at 3 p.m. I narrated the whole incident to him. My statement was recorded."

Sharanjit Kaur, while appearing as PW9, stated as follows :

"Both the accused along with two other persons came there. Both the accused asked me to accompany them otherwise they would kill me. Both were armed with pistols. They forcibly took me and had put in a car. They had already parked the car on the road. My mother Gurmeet Kaur and my elder sister tried to save me but in vain. Both the accused then took me in that car to Pathankot. I stayed there at Pathankot for three months. During the day I used to be kept in a locked room and at night both the accused used to come to me. Then I was brought back to Amritsar. I was then recovered by the police from Amritsar. I was medically examined."

Thus, from the statements of these three witnesses, there is a consistency that Harsharan Singh was one of the persons who kidnapped Sharanjit Kaur from the lawful guardianship of her parents. The above would show that Sharanjit Kaur was kidnapped for unlawful purposes by the appellant Harsharan Singh but there is no evidence on the record to show that the prosecutrix was ever subjected to sexual intercourse either by the appellant or anybody else. Sharanjit Kaur in her statement, even does not indicate to any extent that Harsharan Singh had been committing rape upon her against her will or consent or that he had ever committed sexual intercourse with her.

The learned counsel for the respondent has relied upon the medical evidence and has argued that from the medical evidence, a reasonable inference can be drawn that the appellant Harsharan Singh has committed the offence u/s 376 IPC.

I do not subscribe to the argument of the counsel for the appellant. There is no automatic presumption in favour of the prosecution once it is proved that the prosecutrix had lost her virginity. Who is responsible for the loss of virginity has to be proved independently and by leading satisfactory evidence by the prosecution. The medical evidence is suggestive of the fact only that Sharanjit Kaur was subjected to sexual intercourse before her examination but in the absence of any link between the appellant and Sharanjit Kaur with regard to sexual intercourse, the offence u/s 376, IPC, is not proved. In this view of the matter, I am inclined to set aside the conviction of the appellant u/s 376, IPC. However, his conviction u/ss 363, 366, IPC is always there.

The counsel for the appellant, then, submitted that the appellant may be visited with leniency in the matter of sentence because in this case, it appears that the girl had a soft corner for the appellant.

There is logic in the argument raised by the counsel for the appellant. Though Sharanjit Kaur was less than 16 years of age on the date of the occurrence, but the fact is that she was a mature girl. She was not found in the custody of the appellant. At no point of she ever tried to go to the house of her parents. She even does not go to the police station when there was no coercion or restraint upon her from the side of the appellant. She was recovered on 30.12.1991 clearly indicating that she probably remained in the custody of the appellant for a sufficiently long time. Equally it is possible that Sharanjit Kaur might have soft corner for the appellant. All these are the mitigating circumstances for the reduction of the sentence of the appellant.

In this view of the matter, I sentence the appellant u/s 363, IPC, and he is directed to under go RI for 3 years and he shall also pay a fine of Rs. 200/; in default of payment of fine, the appellant shall further undergo R.I. for a period of nine months. The appellant is further sentenced to undergo R.I. for a period of five years u/s 366, IPC instead of section 366A, IPC. He shall also pay a fine of Rs. 500/; in default of payment of fine, he shall further undergo R.I. for 11/2 years. All the sentences shall run concurrently.

The net result that the appeal of the appellant is partly accepted. His conviction and sentence u/ss. 376, IPC, stands set aside. In the alternative, he is convicted u/ss 363 and 366, IPC, in the terms as stated above.

Appeal partly accepted.