Tilak Raj vs State of Punjab

T.H.B. Chalapathi, J.

This appeal is filed by the appellant against the conviction and sentence imposed by the learned Addl. Sessions Judge, Gurdaspur in Sessions Case No. 30 of 1986 dated July 3, 1986. According to the case of the prosecution, the accusedappellant was prosecuted for the offences under Sections 363, 366 and 376 of the Indian Penal Code. According to the prosecution, one Renu Bala daughter of Pritam Singh went to the house of Shakuntla Devi in village Lamaini, on July 4, 1985 to attend a Shagun ceremony. The accused who is the son of the brotherinlaw of Shakantala Devi was also present there. At about 6 PM, on that day, Shakuntala Devi asked Renu Bala to bring bedding from the house of the accused but she refused to go because the accused had passed ugly remarks against her. But when again Shakuntala Devi compelled her to bring bedding from the house of the accused, accordingly she went there. She was served with tea by Kaushalya, the mother of the accused. Thereupon, Renu Bala felt giddiness and came back to the house of Shakuntala Devi. The accused followed her and threatened with knife to accompany otherwise she would be done to death. Therefore, she accompanied accused on his moped to the Bus Stand from where they boarded bus for Udhampur, where they stayed together in a hotel. Thereafter, they left for Srinagar. At both these places i.e. Udhampur and Srinager, the accused committed rape on her forcibly against her will. She was also compelled to go for civil marriage with the accused but she refused. From Srinagar, the accused took her to Kangra where she was given beatings by some persons at the instance of the accused for getting her signatures on a blank paper. From Kangra, the accused took her to the house of his aunt at Sujanpur where she was subjected to sexual intercourse without her consent. On the next day, the accused took her to the house of one Amar Nath at Pathankot where also the accused subjected her to intercourse, and also made many efforts to persuade her for civil marriage but she refused. Thereafter, the accused took her to the Courts at Pathankot where the police took her into custody and the accused fled away. The police gave her custody to her father. Thereafter, the father of Renu Bala met Sub Inspector Dharamvir who was the S.H.O. Police Station City Gurdaspur and gave a report to him regarding abduction of his daughter, on the basis of which a case was registered against the accused. After Renu Bala was taken into custody on 17.7.1985 at Court premises Pathankot, her custody was given to her father but she was not medically examined. After completion of investigation, the police filed the chargesheet against the accused and registered a case under Sections 363/366 and 376 of the Indian Penal Code. The case was committed to the Court of Sessions as the offence was triable by the court of Sessions exclusively. The learned Additional Sessions, Judge framed charge against the accused under Sections 363, 366 and 376 IPC. In order to prove the guilt of the accused, the prosecution examined seven witnesses and marked documents. On the basis of the evidence on record the learned Additional Sessions Judge acquitted the accused for the offence under Section 363 IPC but convicted him for the offence under Section 366 of the IPC and sentenced the accused to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 250/ and to undergo rigorous imprisonment for a period of 21/2 years and to pay a fine of Rs. 250/ for the offence under Section 376 IPC.

Aggrieved by the said conviction and sentence imposed by the learned Additional Sessions Judge, the accused preferred the above appeal. The learned counsel for the appellant argued that the evidence on record clearly shows that the prosecutrix Renu Bala went alongwith the accused of her own free will and she stayed with the appellant for about 15 days and that she was a consenting party to the sexual intercourse and both of them wanted to marry each other and her evidence in the Court is quite contrary to the statement given to the Police and further, according to the learned counsel, Renu Bala did not make any complaint or complained to any one during the period of 13 days when the accused and Renu Bala stayed at different places and the learned counsel for the appellant further argued that Renu Bala gave a statement before the Executive Magistrate at Kangra and Renu Bala was identified by an Advocate Sh. V.K. Mahajan and the said advocate was examined as DW.1 and there are no reasons to disbelieve the evidence of DW. 1. Thus, the prosecution failed to prove the guilt of the accused. And on the other hand, the accused placed material before the Court to show that Renu Bala was a consenting party and she accompanied him on her own free will as the parents of Renu Bala were compelling her to merry her with an old man against her wishes. Therefore, he contended that the conviction and sentence imposed by the learned Additional Sessions Judge are liable to be set aside.

On the other hand, it is argued by the learned Assistant Advocate General that the evidence on record clearly shows that the accused kidnapped Renu Bala and committed rape on her without her consent and, therefore, there are no grounds warranting interference with the conviction and sentence imposed by the learned Additional Sessions Judge on the accusedappellant.

It is thus to be seen whether Renu Bala accompanied the accused of her own free will and, therefore, the accused has not committed any offence.

There is no dispute that on 4.7.1985, the prosecutrix Renu Bala went to the house of Shakuntla Devi to attend a Shagan ceremony and Shakuntla Devi is the aunt of Renu Bala. It is the case of the prosecution that by threatening Renu Bala, the accused took her away to Udhampur from village Lamaini. They stayed at a hotel in Udhampur and thereafter, they went to Srinagar and from Srinagar they went to Kangra and from Kangra, the accused took Renu Bala to Sujanpur to the house of his aunt and at all these places, the accused committed sexual intercourse with Renu Bala. That evidence of Renu Bala who has been examined as P.W. 5 and her father Pritam Singh, who has been examined as P.W. 6, there is no other evidence to show that the accused forcibly took away Renu Bala. Even the evidence of P.W. 5 is of no help to the prosecution. According to her evidence, on 4.7.1985, she went to her aunt Shakuntla Devi. It is also in her evidence that many people collected at the house of Shakuntla Devi and Tilak Raj was also present there. At about 6.00 p.m. she was compelled by Shakuntla Devi to bring bedding from the house of the accused while she told her aunt that she would not go there but again on compelling to fetch the bedding, she and Paramjit Kaur went to the house of Kaushalya Devi, the mother of the accused, served them with tea. After taking tea, she felt giddiness and she came back. the accused followed her and threatened her with knife to accompany him. Out of fear, she accompanied the accused on a moped. They handed over the moped to some person. From there, the accused took her Udhampur in a bus.

Thus, according to P.W. 5 she was taken from the house of her aunt under threat against her will but as already stated by her, several people were present at the house of Shakuntla Devi to attend the Shagan ceremony. But the prosecution has not examined any of the persons present at the Shagan ceremony. Further, even according to P.W. 5, she was accompanied by Paramjit Kaur, her cousin sister, when she went to the house of the accused and Paramjit Kaur was not examined by the prosecution. Further, according to P.W. 5 she went alongwith the accused on a moped to Bus Stand Udhampur and the accused handed over the moped to some person. The prosecution did not collect the information as to whom the said moped was handed over. Further, according to P.W. 5, she and the accused travelled in a bus but strangely she did not raise any alarm and tell any person travelling in the bus about her taking away against her wish. It is difficult to believe that she remained silent out of fear. It is in her evidence that many persons were travelling with them in the bus. She further stated that they stayed at Udhampur in a hotel but the prosecution has not taken any steps to find out the name of the hotel where they stayed at Udhampur. From Udhampur they went to Srinagar. Even at Srinagar, no evidence has been collected where they stayed. According to her, the accused took her to Kangra and there some persons gave her beatings at the hands of the accused. In this regard, the prosecution has not attempted to adduce any evidence. It is also in the evidence of P.W. 5 that from Kangra, the accused took her to Sujanpur in the house of his aunt but the aunt was not examined by the police. Thereafter, according to P.W. 5, on the next day, the accused took her to Pathankot at the house of Amar Nath but the said Amar Nath was not examined by the prosecution. It is strange that P.W. 5 did not even complain to the aunt of the accused or Amar Nath at Pathankot. According to her, the accused made many efforts to persuade her for civil marriage but she refused. It is not stated by her that the accused assaulted her physically anywhere. It is only stated that the accused had sexual intercourse with her against her will. It is a fact that Renu Bala remained with the accused for a period of 13/14 days. This itself is a pointer that she was a consenting party and she went with him on her own free Will. Even at the time of her being taken into custody by the police in the Court premises at Pathankot, she did not say anything about her taking away by the accused against her Will from the village. Further, there are several contradictions in her evidence and in the statement recorded by the Police. These contradictions were put to P.W. 5. P.W. 5 admitted in her crossexamination that she did not tell the Police that she was frightened. She also admitted that she did not tell to the Police that her aunt Shakuntla Devi compelled her to go to the house of the accused for fetching beddings. She also admitted that she did not complain to the police that the accused showed her knife and threatened her not to raise any alarm. She also admitted that she did not tell the Police that at the hands of the accused some persons gave her beatings at Kangra. She also did not tell the police that the accused had told her that a case has been registered against him. These are all material omissions in the statement recorded by the police. The learned Additional Sessions Judge is not correct in brushing aside all these omissions simply for the reason that the statement was not marked and the statement has to be marked only if the witness denied the suggestions and asserted these facts have been told to the police but if the witness herself admitted that she did not tell the police these facts in her statement recorded under Section 161 Cr.P.C. there is no need to make the statement. Further P.W. 7 is the Sub Inspector of Police who investigated the case, in his crossexamination stated that he correctly recorded the statement of Renu Bala under Section 161 Cr.P.C. without any addition or omission. The statement of Renu Bala recorded under Section 161 Cr.P.C. forms part of the record. It is always open to the Court to look into the record and the statements recorded by the Police for the purpose of Subsection (2) of Section 172 though not as evidence in the case. P.W. 5 has admitted that she did not tell the police about the threats said to have been given by the accused during the period when she was taken away by the accused from the village to Udhampur, Srinagar, Kangra, Sujanpur and Panthankot. If there is any doubt in the mind of the Court, the Court can look into record where the fact stated by the accused is not correct. Further, when examined D.W. 1 Shri V.K. Mahajan, Advocate, District Courts, Dharamsala, he deposed that Renu Bala and the accused Tilak Ran are known to him and the affidavit Ext. DA was sworn by Renu Bala before the Executive Magistrate, Kangra and he identified Renu Bala before the Executive Magistrate. He further stated that the Executive Magistrate, Kangra made the endorsement DA/1 in his presence. It is also in evidence that she signed it in token of its correctness. Renu Bala who has been examined as P.W. 5, has clearly admitted that Ext. DA bears her signatures, though she further stated that she did not appear before the Executive Magistrate. There is no reason to disbelieve the evidence of Shri V.K. Mahajan, Advocate so far as P.W. 5 appeared before the Executive Magistrate, Kangra and gave a statement in Ext. DA especially when P.W. 5 admitted her signatures on Ext.D.A. Therefore, on the basis of the evidence on record, I am clearly of the opinion that Renu Bala, P.W. 5 accompanied the accused of her own free will and the accused committed sexual intercourse with her. The next question is whether P.W. 5 was under the age of 16 years so as to attract the provisions of Section 375 of the Indian Penal Code. The prosecution itself failed to prove the school leaving certificate which is marked PD. In Ext. PD the date of birth of PW. 5 was recorded as 11.11.1967. The learned Additional Sessions Judge himself acquitted the accused for the offender under Section 363 of the Indian Penal Code on the ground that the prosecution failed to prove that PW. 5 was under the age of 16 years. When the learned Additional Sessions Judge himself gave the benefit of doubt that she was 18 years of age, then the provisions of Section 375 are not attracted as the accused had sexual intercourse with PW, 5 with her consent. Section 375 provides that a man is said to commit rape with or without her consent if the victim girl was under the age of 16 years. But in the present case, Ext. PD clearly shows that the date of birth of the prosecutrix as recorded in the School leaving certificate is 11.11.1967. Further, P.W. 6 Pritam Singh has himself stated that his daughter is 16 years of age. Thus, it is clear that the age of PW. 5 at the time of commission of offence was over 16 years. The learned Additional Sessions Judge in the course of his judgment has observed that it is settled law that the entry in the School leaving certificate is not legal and authenticated evidence and thus can not be taken as proof of the age. He has not referred to any decisions. In this connection it is useful to refer to the decision of the Supreme Court in Mohd. Ikram Hussain v. State of U.P., AIR 1964 SC 1625 wherein their Lordships observed that the entries in the School register amount to evidence under the Indian Evidence Act and the entries in the school registers were made ante litem motam. Again in Harpal Singh v. State of Himachal Pradesh, AIR 1981 SC 361, the Supreme Court relied upon the admission register maintained at the Government Girls High School, Sonouli for the purpose of corroboration of the medical evidence. Therefore, it cannot be said that the entries in the School registers as to the age of the student cannot be said to be inadmissible. The value which can be attached to these certificates may vary from case to case. It is difficult to say that the School Leaving Certificates are in admissible evidence. The entry in the School register has to be assessed alongwith the other evidence available on record. It is for the Court to rely upon such entries or not in the context of other evidence available on record. It cannot be said as a rule that the entries in the School registers are not admissible in evidence for any purpose at all. In the instant case, the father of the girl has clearly stated that his daughter is aged about 16 years. The school leaving certificate Ext. PD shows that she deceased age of 16 at the time of the incident. Thus it is clear that PW. 5 was above 16 years of age at the time of the incident. When on the basis of evidence it is held that she accompanied the accused of her own free will and the accused committed sexual intercourse with her consent, it cannot be said that the accused has committed an offence of rape on PW 5.

In view of my foregoing discussion, I am of the opinion that the appellant is entitled to have an order of acquittal in his favour. The appeal is accordingly allowed and the conviction and sentence imposed by the learned Additional Sessions Judge are hereby set aside. The bail bonds stand cancelled and the amount of fine, if paid, is directed to be refunded to the appellant.