Ranjit Singh vs The State of Haryana

Gurnam Singh, J.—Ranjit Singh son of Mahla Singh, resident of Hissar, along with eight others, was tried under sections 366, 368, 366 read, with section 34, and 368 read with section 34, Indian Penal Code, by the learned Additional Sessions Judge, Hissar. Only Ranjit Singh has been convicted Under sections 363 and 365, Indian Penal Code, and sentenced to undergo rigorous imprisonment for four years on each count with the direction that both the sentences shall run concurrently. He was, however, acquitted of the remaining charges. Being aggrieved with the order of his conviction, Ranjit Singh has filed Criminal'' Appeal No. 500 of 1972.

The prosecution story, briefly stated, is that Mst. Shakuntala alias Guddi was living with her parents at Vinod Nagar Mill Gate, Hissar. On 26th June, 1969 Batkishan father of Mst. Shakuntala had gone to Kot Kapura. On that day at about 9 P.M. Mst. Shanti came to the house of Balkishan and took Mst. Shakuntala with her on the pretext of going out to answer the call of nature. At that time, the mother of Mst. Shakuntala was lying asleep. Mst. Shanti took Mst. Shakuntala to a place near the leather factory where Gian Singh accused, since acquitted, was present. Mst. Shanti left that place and Gian Singh took Mst. Shakuntala to his house. Mst. Shakuntala slept at the house of Gian and woke up at about 4 A.M. Gian Singh took her to a Bajra field which was at a distance of two miles from that place where Ranjit Singh appellant was present. Ranjit Singh appellant and Gian Singh told Mst. Shakuntala that they would marry her at a good place. Gian Singh came back from that place while Ranjit Singh stayed with Mst. Shakuntala in the Bajra field. Gian Singh returned at about 9. P.M. and Dalip Singh also came there a little after the arrival of Gian Singh, Gian Singh left the place directing Ranjit Singh and Dalip Singh to marry Mst. Shakuntala at a good place. Ranjit Singh and Dalip Singh took. Mst. Shakuntala with them and they travelled throughout the night on foot. At about 4 A.M., they reached the field of Fauja Singh where he (Fauja Singh) was present. Shortly thereafter Fauja Singh left that place and brought his wife who changed her clothes and combed her hair. From there Ranjit Singh and Dalip Singh accompanied by Mst. Shakuntala boarded a bus and reached Fazilka, where they stayed for the night at the house of Lachhman Singh. In the morning Lachhman Singh asked them to leave his house. Dalip Singh went away from there while Ranjit Singh took Mst. Shakuntala to the house of Kaka Singh in village Khera where she was kept for 3/4 days. Kaka Singh and Ranjit Singh appellant committed se>ual intercourse with Mst. Shakuntala there against her will. From there they (Ranjit Singh and Kaka Singh) brought Mst Shakuntala to Sirsa where Nihal Chand and Fauja Singh met them. Kaka Singh returned from there. Mst. Shakuntala was kept at the house of Nihal Chand for about 10/15 days and was raped there by Nihal Chand and Fauja Singh during those days. Ranjit Singh appellant had already left that place. After fifteen days'' stay there, Nihal Chand and Fauja Singh brought Mst. Shakuntala to railway station Sirsa where Ranjit Singh appellant met them. Nihal Chand left the railway station while Fauja Singh and Ranjit Singh appellant took Mst. Shakuntala in a train to a village near Bikaner where she was kept at the house of Pir Bux and after about 3/4 days she was taken to the other house of Pir Bux situated in village Jaiwali. Fauja Singh left that place and the appellant stayed there for about 10/15 days. After staying there for 10/15 days the appellant also left that place. The appellant was arrested on 9th September, 1969, and on interrogation by Sub-Inspector Ved Raj, he disclosed that he had concealed Mst. Shakuntala alias Guddi daughter of Balkishan, P.W., in the house of Pir Bux at village Jaiwali and could get her recovered. His disclosure statement, Exhibit P.D., was recorded and in pursuance of the same he got recovered Mst. Shakuntala. Mst. Shakuntala was brought to Hissar where she was medically examined by Dr. Mrs. S. Thakur. No injury, on any part of the body of Mst. Shakuntala, was found by the doctor. Mst. Shakuntala was X-rayed for determination of her age by Dr. O.P. Kohli and in his opinion, her age was 14/15 years.

The learned Additional Sessions Judge held that Mst. Shakuntala was aged about 17 years at the time of occurrence and was a consenting party to sexual intercourse with the appellant and, therefore, acquitted him of the offence u/s 376, Indian Penal Code.

According to the medical evidence Mst. Shakuntala was used to sexual intercourse. Dr. Mrs. S. Thakur also stated that Mst. Shakuntala had attained puberty and might be 16/17 years old. In her opinion the age of Mst. Shakuntala might be 1/2 years upwards.

No copy of the birth entry of Mst. Shakuntala has been placed on the record. The evidence of the father and mother of Mst. Shakuntala in respect of her age is not consistent. According to Smt. Kalawanti mother of the prosecutrix, her eldest son Om Parkash is aged about 40 years, her next son Ashok is aged about 38 years and her third son Jagdish is aged about 36 years. She also stated that her next son Roshan lal had died and would have been 34 years of age if alive and that Shakuntala was born after Roshan Lal. She further stated that her children were born with a gap of two years each. If the statement of Smt. Kalawanti is taken as correct then Mst. Shakuntala was aged about 30 years at the time of occurrence. According to the statement of Balkishan father of the prosecutrix, his first son Om Parkash was born in 1948, next to him were Roshan Lal, Ashok Kumar and Jagdish Kumar and then Shakuntala was born, with a gap of two years each. According to his calculations. Mst. Shakuntala was aged about 14 years at the time of occurrence. Thus the oral evidence of the parents of the prosecutrix is not helpful.

In the opinion of Dr. O.P. Kohli, Mst. Shakuntala could be aged 14/15 years. Asossification test is not a surertest to determine the age of a person, the evidence of Dr. O.P. Kohli cannot be held as final on the point and requires corroboration. The statements of the father and mother of Mst. Shakuntala are of no help to determine the age of Mst. Shakuntala. It is For the prosecution to establish the age of the prosecutrix. In this case there is no convincing evidence that Mst. Shakuntala was below 18 years of age at the time of occurrence.

Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound-mind, without the consent of such guardian, is said to kidnap Such minor or person from lawful guardianship of that minor. In the instant case Mst. Shakuntala had been been taken away from her house by Mst. Shahti on the pretext of answering the call of nature where Gian Singh met them. Leaving Mst. Shakuntala with Gian Singh, Mst. Shanti went away and he (Gian Singh) took her (Mst. Shakuntala) to his house. After that Gian Singh took her to a Bajra field at a distance of two miles and it was at that place that the persent appellant met them. According to Mst. Shakuntala, the appellant and Gian Singh had directed her not to make any noise otherwise they would kill her. From there the appellant and Dalip Singh accused, since acquitted, took Mst. Shakuntala away and they travelled on foot throughout the night and reached the field of Fauja Singh at about 4 A.M. Ultim tely Mst. Shakuntala was detained at the house of Pir Bux and was recovered from there on the information provided by the appellant. In view of the definition of ''kidnapping from lawful guardianship'' it is clear that Mst. Shanti removed Mst. Shakuntala from the lawful guardianship of her parents and took her to a place near the leather factory and from there Gian Singh took her to his house and than to a Bajra field. At the time when Ranjit Singh appellant met Mst. Shakuntala, she was with Gian Singh. Now it is to be seen as to whether the appellant had taken Mst. Shakuntala from out of her lawful guardianship. The term lawful guardian'' does not include a person who has himself gained possession of the minor by committing an offence u/s 361, Indian Penal Code. There is nothing on the file to suggest that the appellant was a party to the original kidnapping of Mst. Shakuntala from the custody of her lawful guardian. There is also nothing in the statement of Mst. Shakuntala that the appellant in any manner induced her to accompany him. It is inconceivable that a grown up girl like Mst. Shakuntala would submit to her being carried about and raped without protesting. She accompanied the appellant and Dalip Singh and travelled on foot throughout the night to reach the field of Fauja Singh which shows that she was a consenting party to elopement. It is not even alleged that the appellant took any active part to compel Mst. Shakuntala to abandon the lawful guardianship of her parents. It is thus evident that the appellant played no active part in Mst. Shakuntala''s leaving her lawful guardian''s house. The original kidnapping was complete as soon as Mst. Shakuntala was taken away from the lawful guardianship of her parents by Mst. Shanti. Even considering the prosecution version that the appellant and Dalip Singh had taken Mst. Shakuntala from the custody of Gian Singh, no offence of kidnapping on the part of the appellant is established, as the latter was not her lawful guardian. It also cannot be held that Mst. Shakuntala was forced to illicit sexual intercourse, rather the finding of the learned Additional Sessions Judge is that she was a consenting party. Under these circumstances the appellant could not be convicted for kidnapping Mst. Shakuntala for the purpose of having sexual intercourse with her. This appeal is, therefore, accepted and the convictions and sentences of the appellant are set aside and he is acquitted of both the charges. His bail bond is also cancelled.