Mohan Singh alias Munshi vs State of Haryana

Harbans Singh Rai, J.

Mohan Singh alias Munshi, aged 24 years, was convicted by Shri K.K. Chopra, Additional Sessions Judge, Hissar, vide order dated 17th February, 1986, for offence under Sections 363, 366 and 376 Indian Penal Code and sentenced thereunder to rigorous imprisonment for one year with a fine of Rs. 500/; or in default of payment of fine, to further undergo rigorous imprisonment for a period of six months; rigorous imprisonment for two years and a fine of Rs. 500/, or in default of payment thereof to undergo rigorous imprisonment for six months, and rigorous imprisonment for seven years with a fine of Rs. 1,000/, or in default of payment of fine to further undergo rigorous imprisonment for nine months, respectively. Feeling aggrieved, he has filed this appeal.

As per the prosecution case, Smt. Gurmeet Kaur PW6 made a statement of SI Bhoja Ram PW7 at Police Station Sadar Hissar on 26th August, 1985, that her daughter Kulwinder Kaur (prosecutrix), aged 14 or 15 years, had been enticed away by the appellant Mohan Singh alias Munshi and his relation Ram Singh on the night of 14th August, 1985, and taken to an unknown place. Smt. Gurmeet Kaur PW searched Kulwinder Kaur PW for all these days out all in vain.

About 10 days after lodging of the report, Smt. Kulwinder Kaur PW was found at the Bus Stand, Hissar by the police where they saw the appellant and her alighting from a bus. She was, thus recovered from the appellant. It was on 3rd September, 1985.

Smt. Kulwinder Kaur, on interrogation, stated that on 14th August, 1985, she along with her mother Smt. Gurmeet Kaur PW and sister Harmesh Kaur was sleeping outside their dhani in the fields. At about midnight the appellant came there and woke up Kulwinder Kaur telling her that her bufflow had got untied and was heading towards the canal. She started for the canal, with the appellant following her. On the way, the appellant overpowered her and took her to the nearby bajra field where he forcibly committed sexual intercourse with her against her will and without her consent. She was threatened by him and taken to Railway Station Neoli Kalan. From there she was taken to Sirsa and from there to various other villages and towns. At Buandshahr she was made to sign some papers under threat. She was then taken by the appellant to a temple in another town and he made her to put a garland around his neck and told her that she was from that day his wife. She asked the appellant to take her to her mother and on her repeated requests she was brought to Hissar where she was apprehended by the police along with the appellant at the bus stand. The appellant was arrested and after investigation, challaned, tried and convicted.

The prosecution, in support of its case, inter alia, examined Dr. Abha Kulsheshta PW1, Medical Officer, General Hospital Hissar, who upon medicolegal examination of Smt. Kulwinder Kaur PW observed as under :

"Average built girl, height 5''2" with 14 teeth in each jaw,; all secondary sexual intercourse were well developed. Auxillary hair were present; breast was fully developed. No marks of violence were present on any other part of the body."

The doctor was of the opinion that repeated sexual intercourse was done with the prosecutrix. She referred her to the radiologist for determination of her age. PW2 Dr. R.P. Singhal, Radiologist, on radiological examination of Kulwinder Kaur on 10th September, 1985, gave her age as 14 to 141/2 years.

PW3 Banwari Lal, a teacher from `B'' Block, Primary School Hissar produced the admission form in respect of Kulwinder Kaur PW where the date of her birth is recorded as May 15, 1970, besides producing the admission registers to show that the prosecutrix was admitted to the said school.

Kulwinder Kaur PW5, the prosecutrix, in her statement fully testified to the prosecution case regarding her rape and the subsequent events as given in the opening part of this judgment. Her mother, Smt. Gurmeet Kaur PW6 corroborated her statement on the point of her enticement by the appellant, besides giving the age of the prosecutrix as 15 years.

PW4 Zile Singh, Patwari, drew the scaled plan in respect of the place of occurrence, while PW7 Bhola Ram, SI, conducted the investigation of the case.

After the close of the prosecution case, the appellant in his statement under Section 313, Cr.P.C., denied the prosecution allegations relating to enticement of the prosecutrix by him, but pleaded as under :

"I used to purchase milk from the house of the prosecutrix. For the last six months. I used to do labour work in the house of the prosecutrix and used to live in her house. I and the prosecutrix fell into love with each other. On 14.8.1985 Gurmeet Kaur had gone to the town and Kulwinder Kaur told me that she wanted to go with me and that she would come at Railway Station Neyoli Kalan. She asked me to reach there. I expressed my inability to her because I had no funds with me. Kulwinder Kaur had offered to bring the money and had asked me to remain accused of that. She reached at railway station Neyoli Kalan at 10.00/11.00 p.m. on 14.8.1985 and I also reached there. In the early morning next day, we boarded a train and went towards Sirsa. At the railway station next to railway station Adampur the police party had met us and they interrogated me and the prosecutrix separately. Later on prosecutrix told me that she had told the police that she is my wife and that they should not harass us. Thereafter, we went to Sirsa. From Sirsa we went to Fazilka and from there we went by train to Delhi. From Delhi we went to Chiansa. The prosecutrix told me that there is no use roaming from one place to another and that we should get married and thereafter we went to Bulandshahr and at Bulandhshahr prosecutrix Kulwinder Kaur had filed affidavit before the D.C. Bulandshahr and we both field a joint application before D.C. Bulandshahr setting therein that we are married. Thereafter, the prosecutrix expressed her desire to see her mother. I brought her to Hissar. We were intercepted by the police at Hissar. The prosecutrix did not want to involve me but later on she made statement against me under pressure from her mother."

No evidence was, however, led in defence.

I have heard the learned Counsel for the appellant and gone through the evidence with his help. It is not disputed that the appellant and the prosecutrix did leave the village and ultimately she was found in the company of the appellant. The prosecution case is that she is below 16 years of age and was enticed away and sexually assaulted by the appellant. The case of the appellant, on the other hand, is that she was more than 18 years of age and had persuaded him to go out of the village and was with him under her free will. In this situation, the crucial question to be decided is whether at the time of the incident the prosecutrix was below 16 years of age or not, for if she is held to be below 16 years of age, sexual intercourse with her even with her consent will be rape for the purpose of offence under Section 376, IPC. According to the radiological examination conducted by Dr. R.P. Singhal PW2, the age of the prosecutrix was 14 to 141/2 years. As per the school record relating to her date of birth, her age as proved by PW3 Banwari Lal comes to slightly above 15 years of age. Gurmeet Kaur PW6, the mother of the prosecutrix, also deposited that Kulwinder Kaur was 15 years of age. Taking into account the prosecution evidence, it is proved that Kulwinder Kaur was below 16 years of age at the time of the incident. In this view of the matter, the offence would squarely fall under Sections 366 and 376, IPC, without regard to the defence plea that the prosecutrix went with the appellant with her free will and that she had consented to the sexual intercourse the appellant had with her.

Apart from the question of age, other facts or allegations against the appellant as per the prosecution case are not disputed.

In view of the foregoing discussion, the appellant has been rightly convicted.

On the question of sentence, seven years'' rigorous imprisonment awarded to the appellant under Section 376, IPC, in the circumstances of the case, is excessive. Taking into account the age of the appellant, the fact that the prosecutrix had been in his company for over two weeks and the fact that she was a little below 16 years of age, the sentences under Section 376, IPC is reduced from seven years'' rigorous imprisonment to three years'' rigorous imprisonment, as it will meet the ends of justice. The sentence of fine under Section 376, IPC, as also the sentence awarded under Section 363 and 366, IPC are maintained, with a direction that the same will run concurrently.

The appeal is, thus, partly allowed to the extent indicated above.