Surinder Kumar vs State of Punjab

N.K. Kapoor, J.

Vide judgment dated 15.11.1986 appellant has been convicted under Sections 366 and 376 IPC and sentenced to rigorous imprisonment for a period of 7 years and to pay a fine of Rs. 500/ on each count with a further stipulation that in case fine is not paid he shall undergo rigorous imprisonment for a period of 6 months in addition thereto.

Mangat Ram, brother of the prosecutrixKanta Rani lodged report with the police on 1.11.1985 stating that he has got four sisters, out of them three are elder to him and are married whereas youngest sister Kanta Ranithe prosecutrix is 15 years of age and unmarried. He further stated that about 12/13 years back his father Shiv Lal expired. On his death his mother Ram Kalli married Gaya Parsad alias Ram Parsad and ever since then he alongwith his sister and his mother Ram Kalli are staying with him. It is on the night intervening 25/26101985, while they were sleeping in their house that when he got up at about 4.00 A.M., he found Kanta Rani missing from the house. He thereafter alongwith Gaya Parsad enquired about the whereabouts of Kanta Rani from the neighborhood but could not find her. In the morning one Joginder Singh son of Jaggat Ram resident of Killa Mohalla, Kapurthala came to their house and informed that he had seen Kanta Rani going on Amritsar road alongwith Surinder Kumar accused resident of Mohalla Hathikhana, Kapurthala, whose house is at the back of the house of the complainantMangat Ram. Surinder Kumar was also found not present at the house. Accordingly, Mangat Ram stated that he has a suspicion that his sister Kanta Rani has been kidnapped.

To substantiate the allegations against the accused, prosecution examined Dr. Jagjit Singh PW1, who medically examined Surinder Kumar, Kanta Raniprosecutrix PW2, Gaya Parasad PW3, Mangat Ram PW4, Harjit Singh S.I. PW5Investigating Officer, Dr. Mrs. Kahlon PW6, who examined Kanta Rani and submitted her report exhibit PK as well as proved the report of Chemical Examiner exhibit PL regarding the analysis of the swabs of Kanta Rani. Dr. S.S. Gill PW7, Radiologist, conducted the ossification test. Shri Harish Kumar Joshi PW8 proved the certificate exhibit PO concerning Kanta Rani issued by the School authorities of School Shri Ralla Ram Joshi Shiksha Kender, Kapurthala.

After recording statement of the accused under Section 313 Cr.P.C. an opportunity was afforded to him to lead evidence in defence. He, however, did not lead any evidence.

The Sessions Judge after considering the evidence adduced by the prosecution and primarily basing his conclusion as to the age of the prosecutrix as reflected in the school leaving certificate coupled with the supporting evidence of the members of family came to the conclusion that she was minor at the date of occurrence and so held the appellant to be guilty of offences under Sections 366 as well as 376 IPC.

Challenging the findings recorded by the Sessions Judge, the learned counsel for the appellant has termed the same to be wholly erroneous without there being any material on record to support such a conclusion. According to the learned counsel for the appellant, the learned Sessions Judge has erred in law in not properly perusing the school leaving certificate as in fact the same does not relate to Kanta Rani. According to the counsel, as per certificate issued by the School Kanta Rani is recorded to be the daughter of Gaya Parsad whereas per the version of the prosecution her father''s name is Shiv Lal. Not only this, the necessary corroboration needed to prove this document too is missing in the present case. Shri Harish Kumar Joshi PW8 has deposed in his statement that as per enrolment register of the School father''s name of Kanta Rani against entry No. 120 is mentioned as Ram Parsad whereas in the certificate father''s name is given as Gaya Parsad. This witness has also admitted that while signing the certificate exhibit PO he has not compared the entry with the entry in the enrolment register but has merely compared with the attendance register of the students.

This witness has further admitted in his crossexamination that in the register of the School there is no mention that who was the guardian, who accompanied Kanta Rani at the time of admission. The counsel, thus, argued that the entry in certificate exhibit PO does not conform to the entry in the register as parentage of Kanta Rani differs in these two entries. Moreover, reliance, if any, could be placed only if the same tallied with the information furnished by the person at the time when Kanta Rani was admitted to the School. Strange enough this document has not been adduced in evidence. This way, the Court has erred in law in relying upon certificate exhibit PO. Otherwise too, the Court ought to have kept in view the normal practice of the parents to give age of their wards somewhat less than the actual at the time of admitting them. The counsel further argued that even the Xray examination of Kanta Rani conducted by Dr. S.S. Gill PW7 gives her age to be between 17 to 18 years. No doubt Dr. Gill in his statement has said that this age can vary for about two years on either side but the benefit of this, if any, was to be given to the accused and not to the prosecution. In fact, Dr. S.S. Gill in his crossexamination has accepted that possibility of her age being in between 19 to 20 years is not ruled out. This is by itself an indication that Kanta Rani was of age at the time of alleged incident. Similarly, the Court could not place any reliance upon the statement of Gaya Parsad PW3 as he had no personal knowledge of the date when Kanta Rani was born. According to the counsel, in fact it is a case of consent. Since she was of an age and accompanied the accused of her own, the accusation levelled against the accused and conviction ordered by the Sessions Judge are unsustainable. Reliance has been placed upon the following decisions :

Jage Ram v. The State of Haryana, 1987(1) Recent C.R. 346;

Shrimati Ram Piari and Anr. v. State of Haryana, 1984(1) Recent C.R. 87;

Harbans Singh v. The State of Punjab, 1982 (IX) Cr.L.T. 416; and

Om Parkash v. The State of Punjab, 1983(2) Recent C.R. 545.

The case squarely rests upon the age of the prosecutrix. Oral testimony consists of statements of Kanta Rani PW2, Gaya Parsad PW3, and Mangat Ram PW4. Medical evidence as to the age or the prosecutrix has come in the statement of Dr. S.S. Gill PW7 and documentary evidence in the form of School leaving certificate exhibit PO as per deposition of Harish Kumar Joshi PW8. No reliance can be placed upon the oral deposition of Kanta Rani PW2, Gaya Parsad PW3 and Mangat Ram PW4 on the ground that whereas PW2 and PW3 could not have the exact knowledge, the statement of PW4. Mangat Ram also cannot be given any credence for the reason that at the time of alleged birth of Kanta Rani he was barely 31/2 years old. Possibly, a person at this young age can hardly be said to remember exact date of birth of his younger sister. In fact, the best evidence could come in the form of test and the same only gives approximate age.

In Jage Ram''s case (supra) the Court gave benefit of doubt to the accused holding that there is a variation of three years on either side when age is determined in ossification test.

This coupled with the statement of Kanta Rani that she remained in the company of the accused for a number of days at different places and even stayed at the accused''s mother''s sister house, it would not be wrong to infer that she appears to be a consenting party. In any case, the version as set up and the evidence adduced as to the age of the prosecutrix makes it quite doubtful. Accordingly, I give the benefit of doubt to the accused and so acquit him of the charges. Accused, if in custody, be released forthwith.