Satpal alias Vijay Kumar vs State of Punjab

A.S. Nehra, J.

This appeal is directed against the judgment and order dated September 9, 1986 passed by in the Additional Sessions Judge, Amritsar by which appellant Sat Pal alias Vijay Kumar was convicted under Sections 363, 366 and 376, Indian Penal Code, and was sentenced as under :

For offence under Section 376, Indian Penal Code: R.I. for seven years and a fine of Rs. 1,000/ and in default of payment of fine, to undergo further R.I. for three months.

For offence under Section 366 Indian Penal Code : R.I. for three years and a fine of Rs. 500/ and in default of payment of fine, to undergo further R.I. for two months .

For offence under section 363, Indian Penal Code : R.I. for three years and a fine of Rs. 500/ and in default of payment of fine to undergo further R.I. for two months.

All the substantive sentences of imprisonment were, however, ordered to run concurrently. Janak Rani, coaccused of the appellant, was acquitted.

The prosecution story as unfolded by complainant Chaman Lal (PW5) is as under :

Chaman Lal complainant made a written complaint to the Senior Superintendent of Police, Amritsar, alleging that on November 11, 1985, when he (Chaman Lal) returned to his house from his office after duty hours, he found his daughter Rajni, aged about 14 years, missing from his house. His wife Uma Devi told him that Rajni had gone to School but she had not returned till then. Thereafter, he made a search for Rajni but could not find her anywhere. On enquiry, he came to know that accused Sat Pal alias Vijay Kumar, who resided adjacent to the house of the complainant and was his tenant upto November 10, 1985, on which date he had vacated the room which was taken by him on rent @ Rs. 150/ p.m. had abducted his daughter in connivance with coaccused Janak Rani, by giving her inducement and allurement. He had gone to Police Station Sadar, Amritsar and Police Post, Vijay Nagar in order to lodge a report in this regard but the police took no action. Thereafter, he made application, Ex. PK, to the Senior Superintendent of Police, Amritsar, on November 23, 1985, on the basis of which formal FIR Ex. PC, was registered in Police Station Sadar, Amritsar, on November 25, 1985. The investigation in this case was conducted by S.I. Dewan Singh (PW7) who accompanied by HC Teg Bahadur and some other police officials had met the complainant near Gagan Theatre on December 7, 1985 and joined him in the police party. Thereafter, when the complainant and the police party were proceeding towards Katra Jaimal Singh, Amritsar and reached outside General Bus Stand, Amritsar, a person met S.I. Dewan Singh and told him something in privacy. Thereafter, the police party accompanied by the complainant went inside the waiting hall of the General Bus Stand and saw both the accused and prosecutrix sitting on benches. Rajni was recovered from the custody of the two accused and recovery memo, Ex. PF, to that effect was prepared, which was attested by the complainant and HC Teg Bahadur. Both the accused were arrested. On search of accused Sat Pal alias Vijay Kumar, besides an attache case and a hand bag, Rs. 40/ were recovered from him and the same were taken into possession vide recovery memo, Ex. PG. On search of coaccused Janak Rani, Rs. 20/ were also recovered from her, which were taken into possession vide recovery memo, Ex. PH, attested by the complainant and HC Teg Bahadur. The Investigating Officer also prepared rough site plan, Ex. PL, of the place of recovery of the prosecutrix and, thereafter, the statements of the witnesses. Rajni, prosecutrix was got medicolegally examined from Dr. Gian Sandhu (PW1) of Government Hospital for Women, Amritsar, on December 7, 1985. Accused Sat Pal alias Vijay Kumar was also got medicolegally examined from Dr. Rakesh Kumar Gorea (PW2), who was then posted as Registrar, Forensic Medicine, Government Medical College, Amritsar, on December 7, 1985. The prosecution also collected the evidence with regard to the age of Rajni, prosecutrix from the Government Girls Higher Secondary School, Mahan Singh Gate, Amritsar where she had studied.

To prove its case, the prosecution examined PW1 Dr. Gian Sandhu, PW2 Dr. Rakesh Kumar Gorea, PW3 S.I. Om Parkash, PW4 Bishambar Nath Verma, PW5 Chaman Lal complainant, PW6 Rajni prosecutrix PW7, S.I. Dewan Singh, the Investigating Officer. Head Constable Teg Bahadur was given up being unnecessary. Affidavits of the formal witnesses, namely, Constable Kewal Singh and Garib Singh, were tendered into evidence as Exhibits PM and PN respectively, besides report of Chemical Examiner, Ex. PO.

Dr. Gian Sandhu (PW1) stated that on December 7, 1985 at 4.00 p.m. she had examined Rajni d/o Chaman Lal, who was brought by SI Dewan Singh, P.S. Sadar, Amritsar. The doctor made the following observations :

" There are no marks of struggle on any part of body. Clothes were intact. No staining of under clothes.

Secondary sex characters Breasts are well develop. Axillary hair Moderately developed. Pubic hair well developed. There are no blood or semen stains on pubic hair. 14 permanent teeth are found, each in upper and lower jaws. Wisdom teeth not erupted.

P/V examination There is redness of vulva; fungal infection is seen. Hamen is torn. Several small tags of granular tissue are seen. Vagina admits two finger. Uterus antiverted. Nulli parous size, mobile, fornices clear.

Nature of injuries Subjected to intercourse. Probable duration of injuries more than 10 days."

Dr. Gian Sandhu further stated that the two swabs taken from the posterior fornix of the vagina of the prosecutrix were put in a card board box and after affixing seven seals therein, the same was sent to the Chemical Examiner, Patiala for analysis. Ex. PA is the correct carbon copy of the original medicolegal report which was prepared by him in the same process. The witness also identified Rajni prosecutrix in Court and stated that she was the same girl whom he had medically examined.

Dr. Rakesh Kumar Gorea (PW2) stated that on December 7, 1985, at 2.30 p.m. he had examined Sat Pal Sharma son of Banarsi Dass Sharma, resident of Katra Jaimal Singh, Gali Bhatarian, Amritsar, on the request of S.I. Dewan Singh (PW7) and had detected no abnormality in his chest, abdomen, central nervous system and cardiovascular system. He further stated that no abnormality was detected in the external genitalia and smegma was present. The accused had no history of diabetes or any psychological illness. The doctor opined that there was nothing to suggest that the accused was not capable of doing sexual intercourse. Ex. PB is the correct carbon copy of the original medicolegal report of accused Sat Pal alias Vijay Kumar.

S.I. Om Parkash (PW3) stated that on November 25, 1985, he had recorded FIR, Ex. PC, under the orders of the Deputy Superintendent of Police (Headquarters) made on the application dated November 23, 1985, filed by Chaman Lal son of Khushi Ram, r/o Vijay Nagar, Amritsar.

Bishambar Nath Verma, (PW4) stated that he had brought the school record of Government Girls Higher Secondary School, Mahan Singh Gate, Amritsar, according to which, Rajni d/o Chamal Lal, r/o H.No. 71 Vijay Nagar, Gali No. 3, Amritsar, remained admitted in their school from 4.6.1985 to 26.11.1985 and her date of birth was 3.5.1973 as per the admission register as well as the admission form filled in at the time of her admission.

Chaman Lal complainant (PW5) stated that he was working as a Constable in the office of the Senior Superintendent of Police, Amritsar, for the last 4/5 years. On November 11, 1985, he attended his office and after his duties, he went to his house situated at Batala Road, Vijay Nagar Gali No. 3, Amritsar, when his wife Uma Rani told him that his daughter Rajni Bala, who was aged about 14 years, had gone to school but had not had not returned till then. Thereafter, he searched for his daughter Rajni Bala but could not find her anywhere. He fully corroborated the prosecution version as stated in the earlier part of this judgment which needs no reinteraction.

Rajni Bala (PW6) is the prosecutrix. She stated that she was studying in 9th Class in Government Girls High School, Shivala Bhayan, Amritsar and was aged about 1314 years but she did not remember her date of birth exactly. She further that Sat Pal accused, present in court that day, was residing alongwith his wife Bindu in a room in their house which was rented out to him. Bindu remained with him for only two months and, thereafter, she was turned out after being given beating by the accused. On November 10, 1985, accused Sat Pal vacated the room, which was on rent with him and took away his household luggage from there. The prosecutrix further stated that on November 11, 1985, at about 7.00 a.m. she was going to her school, i.e. Government High School, Shivala Bhayan, Amritsar and when she reached near Gagan Theatre, accused Sat Pal alias Vijay met her and told that she should get a message of her father. When she reached near the accused, he put a handkerchief on her nose and due to the smelling of that handkerchief, she became unconscious. On regaining her consciousness at about 11.00/12.00 noon, she found herself travelling in a bus with Sat Pal accused. When she asked Sat Pal accused as to where he was taking her, the accused then showed her a knife and asked her to keep quiet. She further stated that the accused took her to Patiala railway station and kept her in a room near the railway station and that whenever the accused left that room, he used to lock it from outside. On November 12, 1985, the accused took her to the house of his friend Sham Lal which was situated at Mohalla Jaurhian Bhattian, Sheranwala Gate, Patiala, Sham Lal was a rickshaw puller. The accused told him that he had married recently; as a result of which he gave them one separate room for sleeping. The prosecutrix further stated that Sham Lal used to leave the house for plying rickshaw and his wife, after sending her three children to school, used to go out of her house to clean utensils in some houses and that the accused continued to commit rape upon her without her consent for 26 days, once in day time and once at night. She further stated that the accused had also got written 1012 letters from her under threat of knife indicating therein that she loved him. She further stated that on December 7, 1985, the accused had brought her to Bus Stand, Amritsar, as they wanted to meet their parents and when they were sitting in the waiting hall, a Thanedar, a Head Constable and some other officials and her father Chaman Lal came there and she was recovered from the custody of the accused. She further stated that the accused had kidnapped her without the consent of her parents and that the Thanedar had recorded her statement.

S.I. Dewan Singh (PW7) stated that on December 7, 1985, he was posted at Police Post Vijay Kumar, Amritsar as Incharge. On that day, he along with the HC Teg Bahadur and some other police officials started from Police Post Vijay Nagar for investigation of this case. When he reached near Gagan Theatre. Chaman Lal met him and he also joined them. He further stated that when they reached near the General Bus Stand, an informer informed him that the accused and the prosecutrix were sitting in the waiting hall of General Bus Stand, Amritsar. When they reached the waiting shall, they found the two accused Sat Pal alias Vijay Kumar and Janak Rani along with Rajni prosecutrix present in that hall. The prosecutrix Rajni was recovered from their custody and a memo, Ex. PF, to that effect was prepared, which was attested by Chaman Lal and Teg Bahadur HC. He prepared rough site plan Ex. PL, of the place of recovery of the prosecutrix and apprehension of the accused. Personal search of accused Sat Pal was conducted and Rs. 40/ were recovered from him besides an attache case and one hand bag, which were taken into possession vide recovery memo Ex. PG. He also recorded the statements of Rajni Bala and accused Sat Pal, got them medically examined, and on return to the police station, deposited the case property with MC Garib Singh on the same day.

When examined under Section 313, Criminal Procedure Code, the appellant denied the prosecution allegations and stated that he was a tenant in the house of complainant Chaman Lal, who was a Constable, posted in S.S.P.''s Office, Amritsar. He further stated that Chaman Lal took Rs. 6,000/ from him as loan and when he lodged a protest with the complainant he got him falsely involved in this case in connivance with the local police. He laso stated that he did not abduct or rape Rajni Bala, prosecutrix, and that she was a major girl of easy virtues and she was not recovered from him. He further stated that Rajni Bala had also written love letters to him of her free consent. In his defence, accused Sat Pal examined Dr. Jatinder Pal Singh, Registrar, Radio Diognosis Department, SGTB Hospital, Amritsar and Puran Singh, Moharrir Constable Police Post, Vijay Nagar, who appeared as DW1 and DW2 respectively.

I have heard Mr. M.S. Dhillon, Advocate for the appellant, and Mr. Parminder Singh, Assistant Advocate General Punjab, for the State and have gone through the evidence carefully.

The learned counsel for the appellant vehemently argued that the prosecutrix was above sixteen years of age and was capable of giving her consent. In support of his argument that the prosecutrix was above 16 years of age, he relied upon the statement of Dr. Gian Sandhu (PW1) wherein she had deposed in her crossexamination that the prosecutrix had 28 teeth and she could be above 17 or 18 years and also on the statement of Dr. Jatinderpal Singh (DW1) whereby he deposed that as xray for determination of age of prosecutrix showed epiphyses of head of humerus, acromion, medial epicondyle of humerus, proximal and distal end of radius and ulna, proximal and distal end of tibia and fibula fused and of iliac rest not fused, so her age was 15 to 19 years. The learned counsel for the appellant relying upon the statement of Chaman Lal (PW5), father of the prosecutrix submitted that Chaman Lal in his statement had given the age of his children and according to him, his son Rajiv Kumar''s date of birth was April 2, 1969 while prosecutrix Rajni deposed that her brother Rajiv Kumar was two years elder to her and, therefore, as per the statement of Chaman Lal and Rajni, the prosecutrix was above 16 years. He also argued that birth certificate of the prosecutrix, which is the conclusive evidence to prove her age, had not been produced by the prosecution, nor did the prosecution examine her mother. There is no force in this contention raised by the learned counsel for the appellant. Dr. Gian Sandhu (PW1) in her crossexamination had deposed that the prosecutrix had 28 teeth and that she could be below 17 or 18 years or could be above 17 or 18 years. The opinion regarding age given by Dr. Sandhu is of no value as she had not given any expert opinion. Dr. Jatinderpal Singh (DW1) had also not given specific opinion regarding the age of the prosecutrix. He deposed in his statement that the age of the prosecutrix could be 15 to 19 years and his observation was merely based on the chart prepared on Punjabi girls by M.L. Aggarwal and I.C. Pathak. Moreover, in his crossexamination, Dr. Jatinderpal Singh (DW1) had himself admitted that his opinion was not conclusive proof of the age as the age could vary due to hereditary character, diet, living environment and health of the patient. He also admitted that according to Modi, the distal end of fusion in a Hindu female is 16 years, while the proximal end of tibia fusion is 14 to 16 years. Similarly, the fusion of distal end of fibula is 13 to 15 years. The chart prepared by M.L. Aggarwal and I.C. Pathak is not an authority, whereas Modi is an authority. So, I agree with the finding of the trial court that the age of the prosecutrix given by Dr. Jatinderpal Singh (DW1) is not the conclusive proof. The evidence regarding age of the prosecutrix is quite reliable even though her birth certificate is not forthcoming. Chaman Lal (PW5) in his statement had specifically given the dates of birth of his children. He deposed that his eldest son Rajiv Kumar''s date of birth was 2.4.1969 and younger to him was Rajni (prosecutrix) whose date of birth was 3.5.1973. The statement of Chaman Lal has been further corroborated by the documentary evidence, i.e. the Middle Standard School Certificate, which had been issued by the Punjab School Education Board and photo copy of which is Ex. PJ. As per the certificate, the date of birth of Rajni, prosecutrix, is 3.5.1973. This has been further corroborated by the statement of Bishamber Nath Sharma (PW4), who deposed that according to the record of the School, Rajni, daughter of Chaman Lal, resident of Vijay Nagar, Gali No. 3, House No. 71, Amritsar, remained admitted in Government Girls Higher Secondary School, Mahan Singh Gate, Amritsar from 4.6.1985 to 26.11.1985; that she was admitted at serial No. 5236 of the admission Registrar on 4.6.1985 and that her date of birth was 3.5.1973. This admission form was filled up according to the Middle Standard School Certificate issued by the Punjab School Education Board. Moreover, this is a public document and the name of Rajni, prosecutrix, has been published in the Gazette of the said Board. The age given by the prosecutrix as well as by her father Chaman Lal (PW5) is the same. In spite of a lengthy cross examination of Chaman Lal and Rajni, PWs, by the counsel for the accused in trial Court, nothing had come out from their statements, which are consistent and there is no contradiction theirin regarding the age of the prosecutrix. Moreover, Bishmabar Nath Verma (PW4) produced in Court the original admission form, copy of which is Ex. PE, which shows the date of birth, parcentage, occupation of the father and residential address of Rajni. This admission form is also signed by Chaman Lal, father of the prosecutrix. So, I find no reason whatsoever to disbelieve this admission form in the absence of any evidence to the contrary. The evidence of the prosecution regarding age of prosecutrix is reliable.

In view of the above discussion, I am of the considered opinion that the age of the prosecutrix at the time of commission of offence was 121/2 years as per the Middle Standard School Certificate, Ex, PJ.

The case of the prosecutrix is that Sat Pal, appellant, had abducted prosecutrix Rajni and committed rape upon her from November 11, 1985 to December 7, 1985. The testimony of the prosecutrix regarding the rape having been committed upon her by the appellant has been corroborated by PW1 Dr. Gian Sandhu, who deposed that on the medicolegal examination of Rajni, she had found her hymen torn and several small tags of granular tissue were seen; that the vagina admitted two fingers and uterus was anti verted, nulli parous size, mobile fornices were clear and subjected to intercourse. From the medical examination, it is clear that the prosecutrix was not virgin at the time of her medicolegal examination and was subjected to sexual intercourse. This further gets corroboration from report, Ex. PO, of the Chemical Examiner which says that the vaginal swabs were containing semen. So, the medical evidence fully corroborates that Rajni, prosecutrix, was subjected to sexual intercourse. The contention of the learned counsel for the appellant that there was no mark of injury, struggle or violence, which is a strong evidence of the consummated offence of rape or of an abortive attempt of rape and the prosecutrix had not raised any alarm at any time, has no force. Rajni prosecutrix, clearly deposed in her statement that the accused had threatened her with a knife and committed rape on her under the threat of knife. Thus, there was no occasion for the prosecutrix to raise the alarm and under threat of knife, she had to submit to the wishes of the accused against her consent or will. Even from the circumstantial evidence, it has been proved on the record that the appellant had abducted the prosecutrix. PW5 Chaman Lal, father of the prosecutrix, had lodged a complaint with the police that his daughter had been abducted by Sat Pal accused, who was his tenant. The story of the prosecutrix also finds corroboration from the statement of the accused under Section 313 Criminal Procedure Code, to the effect that the prosecutrix had written love letters of her free consent. It has also been stated by the accused in his statement that he was a tenant in the house of complainant Chaman Lal, but he put up a defence that since Chaman Lal owed a sum of Rs. 6,000/ to him, he was falsely involved in this case. The defence put by the appellant is unbelievable. No sane father will ever ruin the life of her daughter of the age of 121/2 years by involving her in a case under Section 376 Indian Penal Code, for a sum of Rs. 6,000/ only. Moreover, it has also come in the testimony of the prosecution witnesses that Rajni, prosecutrix, was recovered from the custody of Sat Pal, appellant by S.I. Dewan Singh (PW7) in the presence of her father Chaman Lal (PW5) and HC Teg Bahadur. From the Statement of Rajni, prosecutrix and the circumstantial evidence, I am of the considered view that Rajni had been abducted and raped by Sat Pal, appellant, and by none else.

In view of the above discussion, there is no merit in the appeal and the same is dismissed.