Kulwant Singh vs State of Punjab

A.N. Jindal, J.—The accused-appellant Kulwant Singh (herein referred as ''the appellant'') alongwith three other accused namely Gurdial Singh, Daljit Singh and Gulbadanjit Kaur have been prosecuted for the offence under Sections 363, 366, 376, 506, 342, 368 read with Section 120-B I.P.C. for raping the prosecutrix (name not disclosed), aged less than 16 years. The three accused namely Daljit Singh, Gurdial Singh and Gulbadanjit Kaur were acquitted whereas appellant Kulwant Singh was convicted for the offence under Sections 342, 363, 366, 376 and 506 I.P.C. vide judgment dated 21.11.1997, passed by Sessions Judge, Hoshiarpur and was sentenced to undergo as under:

Under Section 363 IPC To undergo R.I. for a period of seven years and to pay a fine of Rs. 500/- Under Section 366 IPC To undergo R.I. for a period of seven years and to pay a fine of Rs. 500/- Under Section 376 IPC To undergo R.I. for a period of seven years and to pay a fine of Rs. 500/- Under Section 506 IPC To undergo R.I. for a period of two years Under Section 342 IPC To undergo R.I. for a period of one year

The prosecutrix, having born on 30.04.1980 (as per school leaving certificate), was studying in 10th Class in Mai Bhagwati Senior Secondary School, Hariana. On 12.01.1996, she had gone to attend the school but did not return. Complainant Harmesh Singh, father of the prosecutrix, suspected Kulwant Singh behind her abduction. On 16.01.1996, he got recorded the FIR with regard to missing of his daughter (prosecutrix) and enticing her by Kulwant Singh with an intention to merry her. Ultimately, she was recovered on 25.01.1996 by the police and in her statement before the Investigating Officer, disclosed that on 12.01.1996 when she was attending the class of her teacher Ranjit Kaur, then the accused Kulwant Singh came to school and took her on the pretext that her mother was admitted in the hospital at Dasuya. Thereafter, she moved the application for leave and accompanied Kulwant Singh. She took her cycle and satchel and went to leave the same at a hotel situated at Dholbaha road and the books at the shop of one tailor. He took her to Dasuya in a bus. Thereafter, he took her to the shop of his friend Sewa at Dasuya and he while threatening her with the knife told that the illness of her mother was an excuse and she should accompany him as per his direction or she would be killed. Out of fear, she continued acting on his command. He took her to house in a village where Kulwant Singh misrepresented that she was his fiancee and demanded a separate room. During night, he committed rape upon her at knife point. Then he took her to Naushehra Panwan in a bus and stayed at his uncle''s house for six nights and he continued raping her during those nights. From there, he brought her to a village in Gurdaspur where the father''s sister (bua) of Kulwant Singh was present where they again stayed in a separate room and raped her during the night. On 20.01.1996, Kulwant Singh''s father Daljit Singh and and his sister Gulbadan Jeet Kaur came to the said village Nangal and told them to get ready to go to a lawyer at Hoshiarpur. Kulwant Singh continued threatening her to make the statement according to him in the car. After consulting the lawyer, Kulwant Singh, Daljit Singh and Gulbadanjit Kaur came back and they took her to village Janauri where Gurdial Singh was present. The accused also committed rape upon her at village Janauri and all the four accused pressed her to marry Kulwant Singh but she did not agree. After the necessary investigation, the case was committed.

On finding a prima facie case, all the four accused were charged for the aforesaid offences including the offence u/s 368 I.P.C.

In order to substantiate the charges, prosecution examined Dr. Surinder Singh (PW1), who medico legally examined the accused Kulwant Singh and found that there was nothing to suggest that he was unable to perform the sexual inter-course. Dr. Harish Ohri (PW2) conducted the dental examination of prosecutrix Kamaljit Kaur and opined vide his report that she was less than 18 years. Dr. Surinder Gangar (PW3) conducted her radiological examination and opined that she was between 16 1/2 to 17 years of age. Dr. Renu Kumari (PW3) conducted the medico-legal examination of prosecutrix on 25.01.1996 and found no mark of external injury on her private part. Hymen was absent and represented by small tags of granulation pieces and admitted two fingers loosely and was habitual to sexual intercourse. Ranjit Kaur (PW4), teacher in Mai Bhagwati Girls Senior Secondary School, Hariana, also certified the fact that on 12.101.1996, the accused Kulwant Singh had approached her to take prosecutrix alongwith him and she had gone after moving an application for leave. Neeraj Prabha, Principal of Mai Bhagwati Girls High Secondary School, Hariana, (PW6), is a witness to prove the date of birth of prosecutrix. She disclosed that as per school leaving certificate, her date of birth was 30.04.1980. Shri Jagnahar Singh, Judicial Magistrate Ist Class, (PW7), proved the statement of prosecutrix, recorded u/s 164 Cr.P.C. Prosecutrix (PW8) has reiterated the prosecution version while narrating the occurrence in detail including that she was less than 16 years of age at the time of occurrence. She was taken by the accused on a false pretext from the school which he disclosed to her while reaching at Dasuya. She was raped at various places, however, she remained silent due to the fear of accused. She had tried to talk to somebody in the bus but could not do so due to fear of the accused. She was also tested at the altar of cross examination and she withstood the same. Constable Rajinder Singh (PW9) filed his affidavit Ex.PO. Raj Rani (PW10) stated that Kulwant Singh had left his bicycle at her shop. ASI Karnail Singh (PW11) affected the recovery of bicycle from the shop of Raj Rani and satchel of the prosecutrix from the shop of tailor. Madan Lal (PW12), the tailor, supported the allegations that the accused had left the satchel of the prosecutrix at his shop. Harmesh Chander (PW13), complainant, narrated about the circumstances leading to the abduction of the prosecutrix and her acquaintance with the accused and his family stating that he was on visiting terms at his house for the last three months. He was cultivating the fields given by his father. Ravinderpal Singh (PW14) is the Investigting Officer.

On closure of the prosecution evidence, the accused were examined u/s 313 Cr.P.C. in which they denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. Accused Kulwant Singh further disclosed that the prosecutrix had taken him to village Mehandipur where they both stayed in the house of her father''s sister till 23.01.1996 and she had been pressurizing her father''s sister to get their marriage performed which could not be materialized and on 23.01.1996 he had left the prosecutrix in her village on a motorcycle. In his defence, the accused did not examine any witness. The trial Court, on scrutiny of the entire evidence, acquitted the accused Daljit Singh, Gulbadanjit Kaur and Gurdial Singh while observing that they had no significant role to play and they were not party to the abduction and rape committed by the accused Kulwant Singh.

There is lot of evidence that prosecutrix was taken away from the school by the accused on 12.01.1996 and was recovered on 23.01.1996. Besides, the accused has also admitted this fact that they stayed together upto 23.01.1996. The factum of rape stands proved from the statement of Dr. Renu Kumari (PW3) that there was evidence of sexual inter-course. Besides, the prosecutrix has also stated that during the period of 12.101.1996 to 23.01.1996 she was raped by the accused at Dasuya, Mehandipur, Gurdaspur and Nangal. Be that as it may, on account of the evidence led by the prosecution that the prosecutrix stayed in the company of accused Kulwant Singh for 11 days, some inference with regard to consent could be drawn but the said consent does not apply to the cases of rape where the prosecutrix is less than 16 years of age. Thus, essentially before examining the legality of the sentence imposed upon the accused, age of the prosecutrix needs to be determined. In this regard, the two material dates need to be reiterated. The prosecutrix was abducted by the accused on 12.01.1996 and was recovered on 23.01.1996. In order to prove the factum of age, the prosecution examined PW2 Dr. Harish Ohri, who after conducting her dental examination, disclosed that prosecutrix was less than 18 years of age at the time of occurrence. He has given his reasons for forming this opinion. While disclosing that there was no third molar in the oral cavity of the prosecutrix. While taking exception to the fact that the dental examination is not a surer test and the eruption process of the third molar could be due to some hereditary or environmental reasons. As such, no reliance could be placed on the dental examination. The second piece of evidence is of Dr. Surinder Gangar, (PW3), who after radiologically examining the prosecutrix, stated that she was between 16� to 17 years of age but for the same reasons referred to above and due to variation of age regarding fusion of the bones which may depend upon in what type of family and under what circumstances, environment temperature, she has been nourished, it would not be safe to rely upon such reports. However, it is worthwhile to mention here that at the very inception, the statement made by the prosecutrix before the Magistrate Ex.PN and before Dr. Renu Kumari (PW3) assume significance. In the statement Ex.PN and also before Dr. Renu Kumai, the prosecutrix disclosed her age as 15 years. Without placing complete reliance on these two pieces of evidence, it would be worthwhile to notice that Neeraj Prabha, Principal of Mai Bhagwati Girls High Secondary School, Hariana, (PW6), proved the school leaving certificate Ex.PL which is signed by her. She has stated that according to the said certificate, prosecutrix was born on 30.04.1980. It would be significant to mention here that this witness was not challenged qua this aspect of the case. No suggestion was given that the school leaving certificate was false. Moreover, it has come in her evidence during cross-examination that admission form is generally filled by the parents. Certainly, parents would be the last persons to give wrong date of birth unless they want to derive any undue benefit out of it or they do not know the actual date of birth. While going further, PW13 Harmesh Chander (father of the prosecutrix), while appearing in the witness box had the courage to state that her daughter was about 15 years of age at the time of occurrence. He has stated that he got her admitted in school at the age of 6 years. If as per statement of complainant, we calculate the age of prosecutrix, then certainly she was short of 16 years of age. Thus, the aforesaid evidence of the prosecutrix, if read with aid the statements of Dr. Renu Kumari (PW4), Neeraj Prabha (PW6) and Harmesh Chander (PW13), the only possible conclusion which could be drawn regarding the age would be that prosecutrix was less than 16 years of age at the time of occurrence. It was observed in case Naresh Kumar v. State of Punjab 1995 (2) RCR 450 that once it is proved from the school leaving certificate that she was 14 years of age and there was no evidence to show the entries in the school record were not correct then the same would be believed. In this case, birth certificate was issued on the basis of admission register. It had also come in evidence that prosecutrix was got admitted by her father in the said school. Similarly, in the case in hand, the date of birth has been proved from the school admission register and there is no evidence to rebut this school leaving certificate which contains the date of birth of prosecutrix as 30.04.1980, thus, the findings returned by the trial Court that the prosecutrix was less than 16 years of age at the time of commission of crime would be upheld. It is also apparent from the statement of Harmesh Chander (PW13) that her wife was ill for 1-2 days and she was taken to the hospital due to the heart ailment, therefore, it appears that the prosecutrix came in the impression while leaving the school that her mother, who was suffering from heart ailment, may be serious for which she was required at the house but she never knew that some ghost was lying hidden in the mind of the accused and being innocent to his designs. She, being fully acquainted as well as related to him, left in his Company. Ranjit Kaur (PW4) also certified that it was Kulwant Singh, who had taken her from the school, therefore, it would be deemed that she was unlawfully taken by the accused from lawful guardianship of the complainant.

In this world of human, the people are effected by three types of lust i.e. power lust, money lust and sexual lust. The first two types of lust are satisfied with the passage of time but the third type of lust i.e. sexual lust could be achieved by any young man forcibly by getting undue benefit of the innocence of the simple, illiterate rustic, helpless and adolescent females who, without knowing the consequences of the event come under the allurement, inducements threats, mis-representations, exploitation, blackmailing of such mischievous persons and fell pray to them. Once they are trapped, they find themselves helpless may be under the fear of social or family wrath and feel themselves guilty and difficult to return with a fear in mind as to what would happen if they go back as such under those compelling circumstances, they act according to command of the accused but the same cannot be taken as consent. The evidence so led by the prosecution in the instant case is so voluminous and the testimony of the prosecutrix is so trustworthy that there is no reason to discard the same but to uphold that the accused Kulwant Singh while making misuse of the adolescent and immature age of the prosecutrix with an intention to marry her, abducted her from the lawful guardianship of her parents, and committed rape upon her. The prosecutrix was also wrongfully confined and threatened to submit herself to sexual intercourse. Therefore, the trial Court was right in holding him guilty for the offence for which he was charged.

As regards the quantum of sentence, it may be observed that keeping in view the fact that the menace of abduction and rape, nowadays for the young boys, has become a fashion. By doing this, they not only assault the prosecutrix but also spoil their whole career and disturb their social fabric. As such, in the given circumstances of the case, the appellant did not deserve any leniency quo the quantum of sentence.

Resultantly, I do not find any merit in the appeal and the same is dismissed.