Piara Singh vs State of Punjab

S.S. Sudhalkar, J.

The appellant who was tried for the offences under sections 366, 366A, 376 and 506 of the Indian Penal Code was convicted for the offence punishable under section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 500/ and in default of payment of fine to further undergo R.I. for two months. Being aggrieved by the said conviction and sentence, the appellant has filed this appeal before this Court.

The facts leading to the case are that the prosecutrix Darsana Kaur daughter of late Chanan Singh aged 14 years was staying in Mohalla Sangatpura in Gobindgarh with her mother and three sisters. She has studied upto 4th standard. The appellant was residing in Mohalla Sangatpura as a tenant. On 11.3.1995, there was a marriage in their mohalla and the prosecutrix had gone to attend the marriage and while she was returning, appellant Piara Singh met her in the lane and asked the prosecutrix to accompany him to his house and on her refusal to accompany him the appellant threatened to kill her. Thereafter the prosecutrix accompanied the appellant due to fear. He took the prosecutrix in the rented room where the appellant was residing and bolted the room from inside. Thereafter the appellant forcibly put off her clothes and committed sexual intercourse with the prosecutrix forcibly and against her wishes. Whenever the prosecutrix tried to raise any alarm due to pain, the appellant used to shut her mouth with his hands. The prosecutrix was forcibly detained the whole night in the room and the appellant repeatedly committed rape on her. In the morning the prosecutrix finding a chance ran away and she narrated the entire occurrence to her mother on reaching home. The prosecutrix and her mother did not tell the same to anyone out of fear for getting a bad name. Then the mother of the prosecutrix narrated the incident to her neighbour Jujhar Singh son of Jarnail Singh and after taking Jujhar Singh with her the mother of the prosecutrix along with the prosecutrix was going to lodge the report and when they reached at the bus stand of Mandi Gobindgarh, ASI Mohinder Singh along with other police officials who happened to be present there, met them. ASI Mohinder Singh recorded the statement of the prosecutrix which was signed by the prosecutrix and on the basis of the same, the formal FIR was recorded in the police station.

During the trial, the prosecution examined the following witnesses :

PW1 Darshna Kaur, the prosecutrix,

PW2 Dr. Baljit Singh, Medical Officer,

PW3 Dr. Jaspal Singh Rekhi, Medical Officer,

PW4 ASI Mohinder Singh, and

PW5 Dr. B.S. Chabra, SMO, Incharge Civil Hospital.

Out of the above witnesses, PW4 is the Investigating Officer. PW2 Dr. Baljit Singh, Medical Officer, Civil Hospital, Mandi Gobindgarh examined the appellant on 19.3.1995. Dr. Jaspal Singh Rekhi, Medical Officer, Civil Hospital, Mandi Gobindgarh had examined the condition of the prosecutrix. PW5 Dr. B.S. Chabra, SMO Incharge Civil Hospital, Mandi Gobindgarh had examined the prosecutrix for the purpose of age.

Learned counsel for the appellant argued that the trial court has erred in coming to the conclusion that the prosecutrix was proved to be less than 16 years of age. PW5 Dr. B.S. Chabra has deposed that it is revealed from the Xray examination that the age of the prosecutrix seemed to be between 13 and 15 years old. He also opined that she is less than 16 years of age as coracoid was not united with the scapula and olecranon was not united to the ulna. However, he has further stated in the examinationinchief that variation of age of one or two years is possible on either side. With this admission of variation of two years on either side, it cannot definitely be said to have been proved that the prosecutrix was below the age of 16 years at the time of incident.

It is not in dispute that the prosecutrix studied upto 4th standard and thereafter she left the studies. She has stated so in the complaint and no record of age from the school is produced to prove the age of the prosecutrix. Moreover the mother of the prosecutrix who could have been the best witness to state as to the exact date of birth of the prosecutrix is not examined. There is no reason coming forth for the nonexamination of the mother of the prosecutrix.

In view of the above reasons, I find that the prosecution has not been able to prove beyond reasonable doubt that the prosecutrix was below the age of 16 years at the time of occurrence.

After dealing with the question of age of the appellant, the next question to be seen is whether the appellant committed rape on the prosecutrix. On this point, the prosecutrix is the only witness. No doubt in cases of rape, the only witness can be the prosecutrix except in some rare circumstances but the corroborative evidence could have been led by the prosecution in the present case. The prosecutrix has stated in her deposition that after finding a chance she ran away to her home from the grip of the appellant and narrated the incident to her mother. The mother narrated the same to Jujhar Singh, her neighbour. Surprisingly none of these two witnesses have been examined by the prosecution to corroborate the fact that the prosecutrix, at the earliest opportunity narrated the incident to them. Moreover it can be found from the evidence of Dr. Jaspal Singh PW3 that according to the prosecutrix, she was kidnapped after attending the marriage and on her way back she was forcibly taken by few persons. In the absence of the examination of the mother of the prosecutrix and Jujhar Singh, this statement made by the prosecutrix before the doctor assumes importance. It is, therefore, not clear as to in what circumstances the prosecutrix went to the house of the appellant. She had gone to attend the marriage and on the way back she was allegedly taken by the appellant by giving threats to her. If this was so, other people must have seen it. The prosecutrix has stated in her deposition that the marriage ceremony of Bittu was to be solemnised in his house. The house of the appellant is at a sufficient distance and that the said house is at a distance which could be covered by 20 minutes. She has further stated that many persons were present in the house of Bittu and the gate was near the place from where she was taken by the appellant. In the crossexamination, the prosecutrix has also stated that when the appellant had given her threat, he had gagged her mouth and thus she could not raise hue and cry. If this was so, it could have been witnessed by some persons on the road in between the two houses. Moreover the fact that her mouth was gagged by the appellant was not stated by her in the police statement. Moreover no mark of injury was found on the body of prosecutrix which would show that there was scuffle between the two and to show that the prosecutrix had resisted. It is also not shown as to why the prosecutrix had left the place of marriage alone when that was a lonely road. Because of the above reasons, it is difficult to believe that force was used by the appellant to take the prosecutrix to his house. Moreover, in view of the above facts and circumstances, it is difficult to believe the story of the prosecution that the prosecutrix was subjected to sexual intercourse by the appellant against her wish. As a result, I do not find it proper to agree with the finding recorded by the trial court holding the appellant guilty of the offence of committing rape on the prosecutrix.

In view of the above, this appeal is allowed. The conviction and sentence against the appellant are set aside and the appellant is acquitted of the charges levelled against him. He is ordered to be set at liberty if not required to be in custody in any other case. Fine, if paid, is ordered to be refunded.