Piara Singh and ors. vs State of Haryana

S.D. Bajaj, J.

Around 4.00 p.m. on June 7, 1985, the four accused are alleged to have kidnapped/abducted prosecutrix Amarjit Kaur with intention that she may be forced to have illicit intercourse with them and the after gang reaped her; one after the other, in the residential Kotha of Piara Singh accused located inside the graveyard of Fatehabad, District Hisar of Haryana State.

On being charged with the commission of the offences under Section 366 read with Section 34 of the Indian Penal Code and under Section 376 of the Indian Penal Code, all the our accused pleaded not guilty thereto an claimed to be tried. Vide its impugned judgment dated March 7, 1986, learned trial Court convicted all the four accused of the offences with which they stood charged. For his conviction under Section 376 of the Indian Penal Code everyone of the four accused was individually awarded rigorous imprisonment for a period of ten years and fined Rs. 500/. In default of payment of fine everyone of the four accused had individually to undergo rigorous imprisonment for a further period of three months each. In respect of the conviction under Section 366 read with Section 34 of the Indian Penal Code everyone of the four convicted accused was sentenced to undergo individually rigorous imprisonment for a period of one year and to pay Rs. 500/ each as fine. In default of payment of fine each one of them was ordered to undergo rigorous imprisonment for a further period of three months. Substantive sentences of imprisonment awarded to the accused on both the counts were ordered to run concurrently. Feeling aggrieved from the impugned judgment of the learned trial court, all the four convicted accused have jointly filed Criminal Appeal No. 212SB of 1986 against it in this Court.

I have heard Shri R.S. Rai, Advocate, for the appellants, Shri D.S. Bishnoi, DAG Haryana for the State and have perused the entire relevant material on record very carefully.

The prosecutrix is adjudged by the learned trial Court to be 21 years of age. In her complaint filed in the court of Shri K.R. Goel, learned Judicial Magistrate Ist Class, Sirsa on June 14, 1985, the prosecutrix claimed to have married Gurdeep Singh accused against the wishes of her parents and alleged that she had been severely beaten by her father, brother and paternal uncle on this score two days earlier on June 12, 1985. Photograph Ex. DE was produced before the court at Sirsa as evidence of the alleged marriage. Copy of the complaint has been produced on record as Ex. BD and of the statement made by the prosecutrix in court in support of it as Ex. DC. DW1 Ashok Kumar, Reader, posted in the court of June 14, 1985 has proved the due recording of her statement in court on dictation from the Presiding Officer. Shri P.C. Chaudhary, Advocate Sirsa proves the filing of the complaint by the prosecutrix.

It is difficult wellnigh impossible to believe that after the marriage of the prosecutrix with Gurdip Singh accused of her own free will; may be against the wished of her parents; it was still necessary for the accused to kidnap/abduct her and than again after making her smell some intoxicating drug spread on the handkerchief of Piara Singh. Assertion made to this effect by the prosecutrix before the learned trial Court, however, does not find mention in the course of her statement under Section 164 of the Criminal Procedure Code. It is even otherwise rendered incredible because after the attributed course of action all the four accused are alleged to have taken the prosecutrix from her parental home to the kotha of Piara Singh in the graveyard on foot through thickly populated business places like Bazaars etc. The charge of kidnaping/abduction in pursuance of their common intention framed against the four accused has, therefore, no legs to stand upon and fails.

Adverting to the gang rape Dr. Abha Kulshreshta PW1 states, "On 15.6.1985 at 6.47 p.m. I medico legally examined Amarjit d/o Piara Singh, aged 16 years (as stated by the girl), female. Sidhu by caste, r/o Fatehabad brought by police and complained by Piara Singh, father of the girl. On examination I observed as under :

Average built girl height 5'' 1", 14 teeth in each jaw, all secondary sexual characters were well developed. No marks of violence over the body. Breast were fully developed. Pink coloured areole. No marks of violence were present over both breasts. Auxiliary hair were present. Local Examination :

No marks of violence were present over lower abdomen, thighs, hips and external genitalia.Public hairs were present not matted. Hairs were preserved for any presence of semen. Both labia were fully developed. No Marks of violence of injury were present. Labia minora was normal and there was no injury over it. Few blood stain spots were present on labia minora. Hymen was ruptured, old healed (sic) the entropitus. Vagina was loose, admitting two fingers easily.

In my opinion repeated intercourse has been done with the girl and she is habitual of sexual intercourse.

Ex. PA is the correct carbon copy of MCR which bears my signatures. Ex. PA/1 is the police request on the basis or which I medico legally examined Amarjit. I have seen report Ex. PB of Assistant Chemical Examiner, FSL, Madhuban. The presence of human semen on vaginal swabs suggests commission of sexual intercourse with Amarjit. Amarjit present in the court is the same whom I had medico legally examined.

I cannot tell as to when was the last sexual intercourse committed on Amarjit prior to her medicolegal examination. It has been repeatedly held by this Court in Jai Kumar and others v. The State of Haryana, 1985(1) R.C.R.(Criminal) 332 : 1985(1) Chandigarh Law Reporter 138 and Param Shanta Nand alias Jai Kumar v. State of Punjab, 1985(2) Recent Criminal Report 233 : 1985(2) Chandigarh Law Reporter 187, "Admittedly the prosecutrix was more than 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 two 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 to 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, Samrala, 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."

According to the medical evidence, the hymen of the prosecutrix had an old tear, she was habituated to sexual intercourse and no injury whatsoever was found on her person. Neither any injury was found on the persons of the appellants. The medical evidence thus shows that the proseecutrix was a girl of easy virtue. it looks very probable that she was carrying on with all or some of the appellants and that she went away of her own. The absence of any injury on the prosecutrix and the appellants and the fact that even the glass bangles of the prosecutrix remained intact go to show that no force was used against her and that she did not put up any resistance. The facts of both the authorities aforesaid being pari materia with the facts and circumstances brought on record in the present case, all the four accused earn acquittal on the charge of gang rape as well.

For the reasons given above, Criminal Appeal No. 212 SB of 1986 succeeds and is allowed. Impugned judgment of conviction and sentence passed by the learned trial Court against the four accused on March 7, 1986 is set aside and reversed. All the four accused are on bail from this court vide order dated August 5, 1986 Bail bonds furnished by their respective sureties and the personal bonds put in the accused themselves shall stand discharged.