Mohammad Kasam vs State of Punjab

V.S. Aggarwal, J.

By this common judgment I propose to dispose of two appeals (Criminal Appeal No. 441SB of 1992 filed by Mohammad Kasam) and (Criminal Appeal No. 284SB of 1991 filed by Manjit Singh and Jaspal Singh). The two appeals arise out of a common judgment and order of sentence passed by Additional Sessions Judge, Ropar on 22.7.1991. By virtue of the impugned judgment, the learned trial Court had held appellant Mohammad Kasam guilty of the offences punishable under Sections 363/366A/368 and 376 Indian Penal Code. Appellant Manjit Singh was held guilty of the offences punishable under Sections 363/366A/368 and 376/109 Indian Penal Code. So was the case of appellant Jaspal Singh who too was held guilty of the same offences as Manjit Singh. Mohammad Kasam was sentenced to undergo rigorous imprisonment for three years and a fine of Rs. 1,000/ for the offence punishable under Section 363, Indian Penal Code and in default of payment of fine to further undergo rigorous imprisonment for two months. For the offence punishable under Section 366A, Indian Penal Code, he was sentenced to undergo rigorous imprisonment for a period of five years and a fine of Rs. 1,000/ and in default of payment of fine to further undergo rigorous imprisonment for two months. Similar sentence was awarded to him for the offence punishable under Section 368 Indian Penal Code but with respect to Section 376. Indian Penal Code, he was sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. 1,000/ and in default of payment of fine, to further undergo rigorous imprisonment for two months.

The sentences awarded to appellants Manjit Singh and Jaspal Singh were identical, five years rigorous imprisonment and a fine of Rs. 1,000/ and in default of payment of fine, they were to undergo further rigorous imprisonment for two months. The substantive sentences were directed to run concurrently.

Paramjit Kaur aged about 15 years is the prosecutrix. She was living with her parents in village Badala. Appellant Mohammad Kasam lived in the house of Faqiria just opposite the house of Paramjit Kaur. Appellant Jaspal Singh is distantly related to Paramjit Kaur. It is obvious that the appellant Mohammad Kasam came to know Parmjit Kaur being a neighbour.

On 16.4.1988 at about 1.30 P.M. parents of Paramjit Kaur had gone out for work namely to harvest the crop. Appellant Mohammad Kasam. came and compelled Paramjit Kaur to accompany him. Appellant Jaspal Singh also came there and told Paramjit Kaur to go with Mohammad Kasam. He threatened Paramjit Kaur that otherwise, she will not be allowed to live in the village. On the demand of Mohammad Kasam and Jaspal Singh, she gave them the photographs and the money that was in the purse. She was told to go out of the village. Jaspal Singh gave his cycle to Mohammad Kasam. Both Jaspal Singh and Mohammad Kasam met her out side the village. Paramjit Kaur was taken to nearby village Khunni Majra. In that village brother of Mohammad Kasam was working with appellant Manjit Singh. Mohammad Kasam appellant took money from Manjit Singh.

The prosecutrix was brought to Chandigarh. The cycle was sold by Mohammad Kasam. The prosecutrix was taken to Panchkula. At Panchkula she was taken to a hut and raped. Mohammed Kasam had been threatening the prosecutrix of her life whenever he went out, he locked the hut. She was raped daily. Thereafter, she was taken to Bihar.

When the parents of the prosecutrix did not find her, her father lodged a report at the nearby police station. In the meantime, the Bihar police recovered the prosecutrix on 15.7.1988. Intimation was received from Bihar. Sub Inspector Kuldip Singh proceeded to Bihar. The prosecutrix was brought back and was medically examined by Dr. Raman Nijhawan. It was opined that her age was between 14 to 16 years. The birth certificate of the prosecutrix was obtained. On these broad facts, challan against the appellants was filed.

The learned trial court on appraisal of evidence concluded that the prosecutrix was below 16 years of age and that the appellant Mohammad Kasam had taken the prosecutrix from the lawful guardianship of her parents and had raped her. She was removed from place to place and accordingly held accused Mohammad Kasam guilty of the offences under Sections 363/366A/368 and 376 Indian Penal Code. Appellants Manjit Singh and Jaspal Singh were held guilty for abetment of the said offences already mentioned above. With these findings, the impugned order of sentence followed.

Aggrieved by the same, the present appeals have been filed.

At the out set, it has been argued that the prosecutrix Paramjit Kaur was about 20 years of age and the findings of the trial court that she was below 16 years, were not stated to be correct.

Paramjit Kaur appeared as PW2 and gave her age as 151/2 years when examined in the learned trial court. Her statement finds support from the statement made by Gulzar Kaur PW5 mother of the prosecutrix. She has stated that prosecutrix was studying in 7th class and at the relevant time she was of 14 years. To the same effect is the testimony of Gurmit Singh PW16 that the date of birth of the prosecutrix is 14.5.1973. Prosecutrix Paramjit Kaur is the eldest child and Gurmit Singh PW6 has given his age as 35 years while Gulzar Kaur described herself as 32 years of age. It betrays common sense to believe that Paramjit Kaur could be 20 years of age at that time.

The oral testimonies of these witnesses get support and corroboration from the birth certificate of Paramjit Kaur Ex. 10. It describes the date of birth of the prosecutrix as 16.5.1973 and daughter of Gurmit Singh son of Sampuran. This document had come into being before the present incident should have been contemplated. To (sic) about the date of birth of Paramjit Kaur prosecutrix. The same conclusion has arrived at from the statement of Dr. Raman Nijhawan PW1. Dr. Rama Nihawan had examined the skiagrams of Paramjit Kaur and opined that she was between 14 to 16 years of age. The argument advanced that there is a variation of two years in the opinion of the radiologist in the epiphysis test is without any merit because Dr. Raman Nijhawan had himself given variation in the age. The appellant cannot take advantage of the opinion of Dr. Ravicharan Singh Sachdeva PW3 when the said doctor opined that according to him the age of the prosecutrix was 17 years. The statement has to be read as a whole. One line cannot be read in isolation of the rest. In fact Dr. Ravicharan Singh Sachdeva had clearly opined that exact age can be given by Xray of the joint. In other words, he could not even give the approximate age in the absence of the material placed before him. Keeping in view of oral evidence, opinion of Dr. Raman Nihawan and the birth certificate produced, I hold that in April 1988 prosecutrix Paramjit Kaur was only of 15 years of age.

Learned counsel for Mohammand Kasam argued that the prosecutrix Paramjit Kaur was a consenting party. There was no injury on her person to show that resistance had been offered by her and, therefore, appellant Mohammad Kasam cannot be held guilty of the offence punishable under Section 376, Indian Penal Code. It becomes unnecessary to ponder further. In this regard answer is provided by Section 375, Indian Penal Code which defines rape, consent of a girl below 16 years, is irrelevant. The Hon''ble Supreme Court in the case of Harpal Singh and another v. State of Himachal Pradesh, AIR 1981 Supreme Court 361 dealt with a similar argument and paragraph 2 records a pertinent finding as under :

"Mr. Hardy laid emphasis on the circumstances that no injury was detected on the private parts of the girl and that she was found to have been used to sexual intercourse by consent. This argument will be of no avail to the appellants if once it is proved that the girl was below 16 years of age, because in that case the question of consent becomes wholly irrelevant."

The resultant findings are obvious that this argument is without any basis and necessarily has to be rejected.

Even regards the fact if Paramjit Kaur had accompanied Mohammad Kasam voluntarily, the statement of the prosecutrix cannot be ignored. The manner in which she was removed and taken in normal circumstances would be stated by the prosecutrix. To insist on other direct evidence would be adding insult to the injury. The learned trial court rightly concluded that the prosecutrix was terrified and was living a life of borrowed years. These conclusions are based on evidence of Paramjit Kaur PW. 2. She had been coerced to leave the house of her parents and under an oath she left the village. It was followed by a threat to her life. A young teen aged girl necessarily would be terrified and to insist chivalry would be too much keeping in view that she was only a student of 7th class studying in a village.

Appellant Mohammand Kasam when examined in terms of Section 313 of Code of Criminal Procedure admitted that he accompanied and taken Paramjit Kaur but denied that he had raped her. The evidence that she was raped by him not only comes in the form of statement of Paramjit Kaur PW2 but gets support from the statement of Dr. Ravicharan Singh Sachdeva PW3. He examined Paramjit Kaur after few days of her recovery on 25.7.1988 in Civil Hospital, Kharar. He gave the period of last sexual intercourse from the date of examination by him as 7 to 10 days. The prosecutrix at that moment was with Mohammad Kasam and keeping in view the said fact, one finds no reason to discard the statement of Paramjit Kaur that she was raped by Mohammad Kasam.

In the absence of any other argument, the findings of the trial court that Mohammad Kasam was held guilty for the offences punishable under Sections 363/366A/368 and 376, Indian Penal Code necessarily have to be affirmed.

As regards Jaspal Singh appellate the learned counsel appearing on his behalf felt that his client had no role to play except that he had scolded Paramjit Kaur, but this argument, is not enough to rebut the evidence on the record. The evidence clearly shows that despite Jaspal Singh being a distant relation of Paramjit Kaur, he compelled and coerced her to accompany Mohammad Kasam. He threatened her that otherwise she will not be allowed to live in the village. To crown it, he offered his cycle to Mohammad Kasam, with a result that they could leave the village. In this process, he played an active role and abetted the crime. There is no reason to upset the findings of the trial court in this regard.

However, the case of Manjit Singh appellant is on different footings. Paramjit Kaur appeared as PW2 and stated that she was taken to village Khunni Majra where the brother of appellant Mohammad Kasam was working with appellant Manjit Singh. She was left outside the village while Mohammad Kasam went to get money from Manjit Singh. After he came back, she was brought to Sector17, Chandigarh. How could Manjit Kaur know as to what had happened thereafter. The court cannot presume in the absence of any evidence against appellant Manjit Singh. There is no evidence on record besides what had been stated above that Manjit Singh was aware about Paramjit Kaur having been kidnapped and the purpose for which the money was given by him at all. Therefore, he is entitled to the benefit of doubt.

Learned counsel for Mohammad Kasam had asserted that the sentence imposed is excessive and in any case, the same may be reduced.

Sentencing an accused is a sensitive exercise of discretion. It is not a routine mechanical acting on a hunch. The nature of the crime, the social background of the accused, the personal factors connected with the accused are some of the relevant factors. In the present case, it is a vulgar masculine outrage on human right a woman who was helpless. Soft paddling in the facts of the present case by itself would be gross injustice. There is no ground to interfere in the sentence awarded to Mohammad Kasam and Jaspal Singh appellants.

For these reasons, given above, appeal filed by Manjit Singh appellant is accepted and the judgment as well as order of sentence of the learned trial court qua him is set aside. He be set at liberty if not required in any other case.

Appeals filed by Mohammad Kasam and Jaspal Singh appellants are dismissed. Jaspal Singh should surrender to his bail bond.