Sukhwinder Singh vs State of Punjab

M.L. Singhal, J.

Sukhwinder Singh was convicted by the Additional Sessions Judge, Patiala in case FIR No. 75 dated 24.6.1990 of Police Station, Saddar Nabha under Sections 363, 366 and 376 of the Indian Penal Code and was sentenced to undergo Rigorous Imprisonment on various counts. In the final analysis, he was sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 600/ vide order dated 6.8.1994.

The prosecution case in brief is that on 16.6.1990 at about 12.00 Noon, Gurmit Kaur (Prosecutrix) and her sister Balwinder Kaur were washing clothes at the motor in their fields situated in the revenue estate of village Sauja. Sukhwinder Singh accused alongwith Gurmeet Chand @ Goggi s/o Dev Raj of village Sauja came there. They asked her as to where her father was. She replied that he had gone to Nabha for purchasing Jawar. Sukhwinder Singh accused gave a slap on her cheek and forced her to sit on his cycle. She raised hue and cry. Sukhwinder Singh showed her knife threatening her that in case she raised any hue and cry, she would be done to death. She was made to sit on the handle of the cycle which was pedalled by Sukhwinder Singh, Gurmeet Chand @ Goggi was left there. While cycle was pedalled by Sukhwinder Singh, she was taken to the sugarcane field of village Sauja. Jaswinder Kaur sister of Sukhwinder Singh was found standing there. She also gave her fist blows. She gave her slaps and pushed her towards the sugarcane field. Sukhwinder Singh took her inside the sugarcane field and opened the string of her salwar and raped her. She tried to raise hue and cry, but he threatened to kill her.

After sometime, Sukhwinder Singh took her outside the sugarcane field. His sister Jaswinder Kaur was still standing there. When they came out. Sukhwinder Singh''s sister left the place on foot. Sukhwinder Singh then took Gurmit Kaur to Patiala on that very cycle. On the force of threat, he took her from Patiala to Sanaur on cycle to some electric motor in the fields. On the roof of Kotha, he committed rape upon her. She was kept by Sukhwinder Singh on the roof of that kotha during the night. On the following day, Sukhwinder Singh brought her to Patiala on cycle. He parked that cycle at busstand cylcestand and took her to Kaithal by bus. At busstand, Kaithal, she was seated in a bus to Rajaund. At busadda Rajaund, he told her that he would be coming shortly after taking water. He did not return for quite some time. While she was sitting there and weeping, she told two persons who happened to reach there that she wanted to go to village Khirkni to her maternal grand father. One of them was a rickshaw puller. They took her to village Khirkni on rickshaw. They dropped her at the house of her maternal grand father at village Khirkni. She told the entire episode to her maternal grandfather Ranjodh Singh who brought her to village Kahlemajra. She lodged first information report at Police Station, Saddar Nabha on 24.6.1990 disclosing offences falling within the ambit of Sections 363, 366, 376, 506 and 34 of the Indian Penal Code. She was medically examined by Dr. Surinder Kumari, Medical Officer, Civil Hospital, Nabha on 24.9.1990. She found that there was no external mark of injury on her body. She found no injury on the external genitalia. No fresh injury was found on her hymen. She was used to intercourse. She took three swabs from the posterior vaginal fornix. Sealed swabs were sent to the Chemical Examiner. Doctor N.K. Singla, Radiologist Civil Hospital, Nabha performed ossification test for the determination of her (Gurmit Kaur''s) bony age. Exhibits PB/1 to 8 are the Xray films. In his opinion, bony age of Gurmit Kaur by radiological examination was more than 141/2 years, but less than 16 years.

Dr. Harbans Singh, C.M.O. Civil Hospital, Nabha medically examined Sukhwinder Singh with a view to ascertain his capacity for sexual intercourse and he found that there was nothing to suggest that he was not capable of performing sexual intercourse.

After investigation, Sukhwinder Singh was challaned. Gurmeet Chand @ Goggi and Jaswinder Kaur sister of Sukhwinder Singh were not challaned. They were shown in column No. 2 of the challan.

Case was committed to the Court of Session by Sh. U.S. Gera, Judicial Magistrate Ist Class, Nabha vide order dated 16.11.1990. Vide order dated 12.12.1992, in exercise of the powers vesting in him under Section 319 of the Criminal Procedure Code, Sh. M.R. Batra, Addl. Sessions Judges, Patiala summoned Gurmeet Chand @ Goggi and Jaswinder Kaur for their trial as he found that he was prima facie of the view that they had abetted the commission of offence of abduction and rape by Sukhwinder Singh qua her.

In response to the process issued, Gurmeet Chand @ Goggi and Jaswinder Kaur appeared before the Court. Vide order dated 15.1.1993, Sukhwinder Singh was charged under Sections 363, 366 and 376 of the Indian Penal Code while Jaswinder Kaur and Gurmeet Chand @ Goggi were charged under Section 109 of the Indian Penal Code for having abetted the commission of offences falling within the ambit of Sections 363, 366 and 376 of the Indian Penal Code by Sukhwinder singh. Accused pleaded not guilty and claimed trial.

On the conclusion of the trial, Sh. M.R. Batra, Addl. Sessions Judge, Patiala found that charge did not stand proved against Gurmeet Chand @ Goggi and Jaswinder Kaur and they were accordingly acquitted. He found the charge to have been proved against Sukhwinder Singh beyond any reasonable doubt. He accordingly sentenced him to undergo rigorous imprisonment for a period of two years and to pay fine of Rs. 200/. In default of payment of fine to further undergo rigorous imprisonment for 3 months under Section 363 of the Indian Penal Code. He was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs. 200/. In default f payment of fine to further undergo R.I. for 3 months under Sections 366 of the Indian Penal Code. He was further sentenced to undergo rigorous imprisonment for 7 years and to pay fine of Rs. 200/. In default of payment of fine to further undergo R.I. for three months under Section 376 of the Indian Penal Code. Substantive sentences were ordered to run concurrently.

Aggrieved from this conviction and sentence recorded on 6.8.1994, Sukhwinder Singh has come up in Cr.A.No. 375SB of 1994 to this Court.

I have heard the learned counsel Sh. P.S. Hundal, for the appellant, Mr. J.S. Brar, Assistant Advocate General, Punjab and Mr. N.L. Sammi, Advocate and have gone through the record.

Compromise has taken place in this case. Compromise is Exhibit C1. Smt. Gurmit Kaur (prosecutrix) has stated that through the intervention of the respectables of village Kahlemajra and Sauja, she has compromised with the accusedappellant. She and the accused are belonging to the neighbouring villages. She has now married. She does not want that she should be put to further ignominy on account of this episode. She wants to put an end to the matter and settle happily with her husband.

It has been submitted by the learned counsel for the appellant that in view of the compromise which has taken place between the prosecutrix and the accused, the matter should be put an end and not raked up further and the period of detention he has undergone already should serve the ends of justice and he should not be sent to jail over again.

In support of his submission, he has drawn my attention to Ram Pulan and others v. State of Uttar Pradesh, AIR 1973 SC 2148 where sentence awarded to the appellants was reduced to that already undergone in view of compromise.

It has been submitted that these offences are undoubtedly not compoundable, but court should take into account this fact while awarding sentence that the parties have buried the hatchet and have settled amicably and there is no bad blood left in their minds towards each other. He has also drawn my attention to Ishwar Lal v. State of Madhya Pradesh, 1989(1) All India Criminal Law Reporter 6.

In my opinion, this fact is not at all relevant that the prosecutrix and the accused have compromised in a case involving the commission of offences falling within the ambit of Sections 363, 366 and 376 of the Indian Penal Code. It is this seriousness with which the offence of rape was viewed by the Legislature that compelled the Legislature to lay down sentence of 7 years in the minimum for the offence of rape. If offence falling within the ambit of Section 376 of the Indian Penal Code is visited with punishment of less than 7 years period, that would mean defeating the intention of the Legislature and not fulfilling it. Legislature represents the wisdom of the people. While providing sentences for the offences, the Legislature takes into account the pulse of the society. In my opinion, it should not be forgotten that Sukhwinder Singh cannot be sentenced to a sentence of less than 7 years in view of compromise.

What was the age of Gurmit Kaur on 16.6.1990 ? As per school record, she was born on 4.12.1977. She was got admitted in the school on 8.4.1985. It is not forthcoming as to who got her admitted to the school. Rajinder Kaur, Headteacher, Government Primary School, Sauja (PW8) stated that the school authorities did not verify the genuineness or otherwise of the information supplied to them at the time of admission with regard to her age. It is true that much value cannot be attached to mere school record so far as the question of age is concerned. It is, however, equally true that in this case ossification test was also got performed. Doctor N.K. Singla, Radiologist, Civil Hospital, Nabha stated that the bony age of this girl was more than 14 1/2 years, but less than 16 years. According to the ossification test performed on her, epiphyses of medial epicondyle, head of femur, greater trochanter, distil end of femur and distil ends of tibia and fibula on both sides were fused. Epiphyses of acromion, head of humerus, distil ends of radius and ulna and proimal ends of tibia and fibula and iliac crests on both sides were not fused. According to the school record, she was 121/2 years on 16.6.1990. It is not believable that a person would under state the age of his/her child by 3 years. Gurmit Kaur (Prosecutrix) was definitely below 16 years as on 16.6.1990. Gurmit Kaur has stated that she has two sisters and one brother. Her eldest sister''s age is about 19 years. Her brother is elder to Gurmit Kaur. She is at number three.

It is a case of consent pure and simple to the act of intercourse by Gurmit Kaur. If Gurmit Kaur had not been a consenting party to the act of intercourse, she would not have agreed to be taken by Sukhwinder Singh from place to place without any demur. Her consent to the act of intercourse is not material as on 16.6.1990 or thereafter, she was not more than 16 years of age. Consent to intercourse would have mattered if she had been more than 16 years old on 16.6.1990. Her consent would have absolved Sukhwinder Singh altogether of the charge of rape if she had been more than 16 years old on 16.6.1990.

She was taken out of the lawful guardianship of her father Jagar Singh for illicit sexual intercourse.

In my opinion, the charge under Sections 363/366 and 376 of the Indian Penal Code stood proved beyond any reasonable doubt against Sukhwinder Singh. Sukhwinder Singh was justifiably convicted and sentenced by the learned Additional Sessions Judge, Patiala, I would have shown some leniency to Sukhwinder Singh in the matter of sentence taking into account that Gurmit Kaur was a consenting party to the act of sexual intercourse by Sukhwinder Singh and she willingly left her parents to be in his lap for enjoyment of sex, but I feel helpless when I took to that she was less than 16 years old on 16.6.1990 and, therefore, her consent was no consent in the eye of law. It cannot absolve Sukhwinder Singh so far as charge of rape goes.

For the reasons given above, this appeal fails and is dismissed. Cr. Misc. No. 5357 of 1996 has become infructuous.