Param Shanta Nand alias Jai Kumar vs State of Punjab

K.P.S. Sandhu, J.

Appellant Param Nand alias Jai Kumar stands convicted and sentenced to rigorous imprisonment for five years and a fine of Rs. 100, in default further rigorous imprisonment for one month, under section 366 of the Indian Penal Code and to rigorous imprisonment of five years and a fine Rs. 150, in default further rigorous imprisonment for two months, under section 376 of the Indian Penal Code by the Additional Sessions Judge, Ludhiana, vide his order dated 27th July, 1983. The substantive sentences of imprisonment have been ordered to run concurrently. No separate sentence has been awarded for the offence under section 363 of the Indian Penal Code.

The appellant was a resident of Mohalla Soodan and was a preacher in Manav Uthan Seva Samiti. Yash Pal PW 10 father of the prosecutrix was a President of aforesaid samiti. For that reason of the appellant used to visit the house of the prosecutrix which was situated on Dressi Road, Ludhiana. At times the appellant used to have his food at the house of the prosecutrix. It is alleged that on 6th August, 1982, the prosecutrix went to the house of the appellant to call him for lunch. The appellant was alone in the house. He caught hold of the prosecutrix and committed rape upon her. He warned her that in case she disclosed this fact to anybody he would kill her. The prosecutrix came back to her house but did not disclose this fact to anybody.

The prosecutrix had after passing her matriculation examination joined college. On 7th August, 1982, at 8.30 a.m. while she was proceeding towards her college the appellant met her on the way and forced her to sit in a rickshaw. She was taken to the bus stand, Ludhiana, by the applicant. From the bus stand they boarded a bus for Khanna and from there ultimately the appellant took her to village Rajewal in a taxi and made her to stay with him for about three months under threat. During all this period the appellant very often committed intercourse with her against her will and without her consent. During that period he started running a parchoon shop at village Rajewal. On 8th November, 1982, while the prosecutrix was being brought to Khanna on a bicycle by the appellant for the purchase of some household articles Assistant SubInspector Ramesh Chander, SubInspector Raj Kumar and Anil Kumar brother of the prosecutrix met them while going on a jeep. The appellant tried to slip away but he was secured by the police. The father of the prosecutrix had on 15th August, 1982, lodged a report Exhibit PA/2 under section 363 read with section 366 of the Indian Penal Code at Police Station Division No. 4 Ludhiana.

The prosecutrix was medically examined by Dr. Sudesh Kumari PW3 on 9th November, 1982, at 1.05 p.m. Following is the result of the medical examination:

"1. Breats were developed.

Axillary hair were present. Public hair were well developed.

External genitalia was fully developed. Hymen was torn (old healed tear posteriorly). Vagina was two fingers loose. Cervix was directed backward, uterus was anteverted and normal in size.

Fornices were clear.

................ ............... ................".

She was radiologically examined by Dr. Harcharan Singh PW 1 to ascertain her age. This doctor after conducting ossification test opined that the prosecutrix was aged between 17 and 18 years with a margin of two to three years on either side.

The appellant was also medically examined by Dr. Subhash Batta PW4 on 10th November, 1982, at about 2.30 p.m. He opined that there was nothing to suggest the appellant was not capable of performing sexual intercourse. After due investigation the appellant was sent up for trial.

When examined under section 313 of the Code of Criminal Procedure, the appellant denied the prosecution allegations and came out with the following version:

"The truth is that on 7.8.1982 at about 9 a.m. Asha Dhir and her father Yash Pal came to my place in two rickshaws. They took me alongwith them. We all the three went to bus stand, Ludhiana and then reached Khanna by bus. From Khanna Asha Dhir and Yash Pal took me to Rajewal where Yash Pal had already arranged accommodation to be used as my residence and shop. Leaving me and Asha Dhir at Rajewal. Yash Pal came back. After days I started running a grocer''s shop. After one week Yash Pal came to us and told that he had a plan to call me and Asha Dhir back to Ludhiana. I told him that thousands of my personal funds were with him and I will not let him pocket that amount in the way he wanted. On 14.8.82 in the evening Yash Pal intimidated me and then left away. Some months before going to Rajewal Yash Pal had married Asha Dhir with me in temple of Mata Rani, Ludhiana, according to Hindu rites. Asha Dhir accompanied me to Rajewal as my wife. When Yash Pal left Rajewal in the evening of 14.8.82 in an agitated modd I told my wife Asha Dhir that there was not enough money with us but still we could lead a good life being on the roadside. She then told me that she was prepared to work as a teacher and ultimately joined as a teacher in Popular English School, Samrala on 17.8.1982. Husband of Yash Pal''s sister is residing at Samrala. After 20/25 days we started receiving threats from him. On account of these threats my wife resigned from the said school on my asking. On 21.9.82 Asha Dhir and I went to Khamano for bringing saleable Karyana articles. When we got down from the bus at bus stand, Khamano, some pickpocket removed a gold ring of my wife Asha Dhir. We went to lodge a report in the police station but no heed was paid to us. We came to Rajewal. On 22.9.82 I went to my lawyer Shri J.S. Aujla, Advocate. He asked me to come on the following day. Then I went on 23.9.82 and he filed a case in the Court of the Magistrate. On 5.10.82 Asha Dhir and I appeared in the Court where Asha Dhir had admitted before the Magistrate that I was her husband. On 6.10.82 Asha Dhir joined as a teacher in Govt. Primary School, Dhilwan Yash Pal and other family members of Asha Dhir had been meeting her in the school in my absence. On 7.11.82 my wife Asha Dhir went to Dhilwan school on the pretext that she was going there for tuition work and also for collecting her tuition fee at 9 a.m. At about 10 a.m. I went to Samrala to buy Karyana saleable articles. I came back to Rajewal at 12 noon. I learnt from my neighbours that Asha Dhir had come in my absence. They also told me that she was accompanied by her father Yash Pal, her brother Anil Kumar and Amarjit Singh teacher of Dhilwan school. That Asha Dhir went with them taking all the valuable articles in a car. I found cash of Rs. 4000 missing from my attache case. She also took away gold ornaments weighing 890/90 grams. Ludhiana police reached my place at Rajewal soon after my return from Samrala. Yash Pal, Anil Kumar, Master Amarjit Singh and some others were accompanying the police. I was then arrested and taken to Police Station, Samrala. From there I was brought to Ludhiana. Thereafter I was falsely involved in this case."

In defence he examined Sarwan Kumar DW 1 who produced file No. 49/1 of 23.9.1982 titled Asha Dhir v. Kulwant Singh decided on 10th October, 1982. DW 2 Shri J.S. Aujla Advocate stated that he filed a complaint titled Asha Dhir v. Kulwant Singh at the instance of Asha Dhir in the Court of Shri Gurdev Singh, Judicial Magistrate First Class, Samrala, on 23rd September, 1982. The complaint was under sections 354, 506, 323 and 379 of the Indian Penal Code. DW3 Sakinder Singh deed writer brought the register containing the entries made by him on 23rd September, 1982. As per entry No. 713 dated 23rd September, 1982, he scribed an agreement between Asha Dhir and the appellant to the effect that they had married each other.

Apart from Dr. Harcharan Singh PW1, Dr. Sudesh Kumari PW3 and Dr. Subhash Batta PW4, the prosecution examined Charan Singh computer of the office of the Registrar, Births and Deaths, Municipal Corporation, Ludhiana, who proved birth entry Exhibit PC. PW5 Rajinder Kumar stated that the appellant had rented out the baithak of his house and he occupied that room for about a year. PW 6 Gurdial Singh stated that he rented out one shop, a residential room and a kitchen to the appellant at the rate of Rs. 100 per month PW7 is Asha Dhir prosecutrix herself. PW8 Ved Parkash Assistant SubInspector recorded the statement of Yash Pal father of the prosecutrix, Exhibit PA. On the basis of the same first informationreport Exhibit PA/2 was registered at Police Station Division No. 4, Ludhiana. PW9 Anil Kumar brother of the prosecutrix is a witness to the arrest of the appellant and the recovery of the prosecutrix. PW 10 Yash Pal father of the prosecutrix stated that he was the President of the Manav Uthan Seva Samiti and the appellant used to work as a preacher and also used to visit his house. He gave the age of his daughter as about 17 years at the time of the occurrence. He also stated that he had two other daughters apart from the prosecutrix. He made statement Exhibit PA before the police. PW 11 Ramesh Chander Assistant SubInspector arrested the appellant and investigated the case.

Admittedly the prosecutrix was more then sixteen years of age at the time of the alleged occurrence. To my mind, birth entry Exhibit PC produced in evidence by the prosecution has not clearly been connected with the prosecutrix. The prosecutrix has stated that she was the eldest daughter of Yash Pal PW 10. Birth entry Exhibit PC does not make any mention of the name of the child. Only the birth of a girl is mentioned there. Although the prosecutrix has stated that they are only sisters and that she is the eldest one but she stands belied by the statement of her father Yash Pal that he has three daughters. In this situation I do not think that it would be safe to use Exhibit PC as the birth entry of the prosecutrix. According to the radiological test, her age was between 17 and 18 years with a variation of two to three years on either side. She herself gave her age as 17 years. So, the my mind there is no conclusive evidence on record to ascertain the age of the prosecutrix. Mr. Vinod Sharma, learned counsel for the appellant, has contended that even if the statement of the appellant, is not accepted at its face value the circumstances appearing in the prosecution evidence clearly show that she was a consenting party to the whole affair and that she probably left her house on her own sweet will. The medical evidence produced on record is of a negative nature. It does not help the prosecution or the defence in any way . The prosecutrix, according to her own admission, went to the house of the appellant herself a day prior to the alleged abduction and she was raped by the appellant but she did not disclose this fact to anybody, not even to her girl friend who met her immediately thereafter. It is in evidence that she had been going about in the bus and visiting various places along with the appellant but she did not raise her little finger or protest against the conduct of the appellant. She even appeared in the Court of the Judicial Magistrate First Class, Shamrala, and lodged a complaint through a lawyer, but she did not make any grouse against the appellant. Her mere ipse dixit that she was threatened to death by the appellant cannot be accepted at its face value.

In view of the aforesaid evidence and circumstances I have no hesitation in my mind in coming to a finding that in all probability the prosecutive was a consenting party and left her house of own accord. In this view of the matter the appellant is certainly entitled to the benefit of doubt. Consequently, I allow this appeal and set aside the conviction and sentence of the appellant. The fine, if realised, shall be refunded to him.