Zamir Ahmad vs The State of Punjab

K.C. Gupta, J.—This Criminal appeal is directed by the accused Zemir Ahmed against the judgment and order dated 15.9.1989 passed by the Additional Sessions Judge, Ludhiana, vide which he was found guilty and convicted under Sections 363, 366 and 376 IPC and sentenced to undergo R.I. for five years and a fine of Rs. 1000/- u/s 363 IPC; in default of payment of fine, to further undergo R.I. for 6 months; to R.I. for five years and a fine of Rs. 1000/- u/s 306 IPC, in default of payment of fine to further undergo R.I. for six months; to undergo R.I. for 7 years and a fine of Rs. 1,000/- u/s 376 IPC and in default of payment of fine, to further undergo R.I. for six months.

However all the substantive sentence were ordered to run concurrently.

Briefly stated,the facts are that on 29.8.1988, Tarsem Lal son of Nath Ram, resident of Neemwala Chowk, Ludhiana, returned to his house at about 6-7 P.M. after performing his duty. His wife, Santosh Kumari, told him that she had gone to the market for making some purchases and she had seen the appellant roaming in the street under suspicious circumstances and when she returned to her house, then she found her daughter Rajni Rani missing from the house.

They continued searching for their daughter, Rajni Rani but could not locate her. Ultimately, Tarsem Lal alongwith Gurdev Singh started going to the Police Station, Division No 3, Ludhiana, on 31.8.1988 to lodge the report but ASI Pushap Raj met them in the Chowk Khawaja Azam, Ludhiana at about 10.30 A.M., where Tarsem Lal made his statement, Ex. PB, which was read over to him and he signed the same in token of its correctness. PW-5 ASI Pushap Raj sent the said statement to the police station for registration of the case, on the basis of which formal FIR, Ex. PB/1 was recorded by Harbans Singh, ASI, whose signatures he identified.

PW-5 ASI Pushap Raj alongwith Tarsem lal and Gurdev Singh went to the place of occurrence and prepared rough site plan, Ex. PF with correct marginal notes. He recorded the statements of the witnesses u/s 161 Cr.P.C. He searched for the accused and Miss Rajni Rani but could not locate them.

On 31.8.1988, Tarsem Lal, PW-2, produced before him the photograph of Rajni Rani, mark A and negative, mark B, which were taken into possession vide Memo Ex. PG attested by the witnesses. On 12.10.1988, Tarsem Lal produced birth certificate, mark C, which was taken into possession vide memo Ex. PH.

On 5.9.1988, he alongwith HC Satbir Singh, Tarsem Lal and Gurdev Singh reach Rai Bareily and came to know that the appellant and the prosecutrix had already been attested int he case and Rajni Rani had been sent to Civil Hospital, Rai Bareily for medico-legal examination.

The appellant was arrested in the present case on 8.9.1988 and on 9.9.1988 he alongwith the appellant, Rajni Rani and other members of the party returned to Ludhiana. The appellant was got medico-legally examined from Civil Hospital, Ludhiana and he was found fit to perform sexual inter-course. The statement of the prosecutrix was recorded u/s 161 Cr.P.C.

After the completion of the investigation, the challan was put up in the Court by Balkar Singh, Inspector in the Court of Judicial Magistrate Ist Class, Ludhiana, who in turn vide his order dated 24.12.1988 committed the case to the Court of Sessions.

Having made out a prima-facie case, the appellant was charged under Sections 363, 366 and 376 IPC, to which he pleaded not guilty and claimed trial.

In order to prove the allegations, the prosecution examined 9 witnesses.

After the closure of the prosecution evidence, the statement of the appellant was recorded u/s 313 Cr.P.C. wherein he denied the allegations and pleaded false implication. In defence, he examined DW-1 Harbans kaur, Headmistress to prove the age of Rajni Rani as entered in her school record and also tendered in evidence school leaving certificate, Ex. DB to prove his age.

After hearing learned PP for the State and the defence counsel, the Additional Sessions Judge, Ludhiana, vide his judgment dated 15.9.1989 found the appellant guilty and convicted him under Sections 363, 366 and 376 IPC and sentenced vide order of even date as stated above.

Aggrieved by the said judgment and order, the accused has filed the present appeal.

I have heard Shri Bipan Ghai, counsel for the appellants, Ms.R.K. Nihalsinghwala, DAG, Punjab, for the respondent-State and carefully gone through the record.

The first question to be seen is as to what was the age of the prosecutrix, Rajni Rani on 29.8.1988 i.e. at the time of occurrence. In order to prove the age of the prosecutrix, the prosecution has relied upon birth entry, Ex. PJ. It shows her date of birth as 7.9.1978 i.e. she was aged about 13 years 11 months and 22 days at the time of occurrence i.e. about 14 years of age. Counsel for the appellant contended that the said birth entry was not connected with Rajni Rani as the name of mother of the prosecutrix has been mentioned in it as Nasib Kaur and not as Santosh Rani and further the name of the girl is mentioned as Raji instead of Rajni Rani. Of course, these facts are mentioned there. However, she has been mentioned to be the daughter of Tarsem Lal son of Nathu Ram. The name of father of Rajni Rani is also Tarsem lal son of Nathu Ram and the address mentioned is Neem Wala Chowk, Ludhiana, and this is also the address of her father, Tarsem Lal. PW-7 Santosh Kumari has categorically stated in her statement that before marriage her name was Nasib Kaur and after marriage she was named as Santosh Kumari by her in-laws and her daughter Rajni was born at Village Powat and was known as Raji at that time. Since Raji was born at Village Powat, to which the parents of Nasib Kaur belong, so, her parents must have told the name to the Chowkidar as Nasib Kaur instead of Santosh Kumari, which was her original name. Thus, the date of birth, Ex.PJ, is connected to the prosecutrix, Rajni Rani and it is held that she was born on 7.9.1974.

The appellant has produced in evidence DW-1 Harbans Kaur, Head Mistress to prove that the date of birth as entered in the School record is 9.5.1972. DW-1 Harbans Kaur stated that she had brought the original register regarding the result of candidates studying in their school from 5th to 8th Classes and at Sr.No. 14, name of Miss Rajni Rani daughter of tarsem Lal has been mentioned and her date of birth is recorded as 9.5.1972. In cross-examination, she stated that she had not brought the original admission form of Rajni Rani, which was given at the time of her admission. She also did not know by whom she was got admitted in their school. She did not know whether she was admitted on the basis of affidavit or on the basis of birth certificate. Thus, the statement of DW-1 Harbans Kaur cannot be relied upon to prove that the date of birth of Rajni Rani is 9.5.1972. The admission form has not been produced by her. Moreover, it is not known as to whom had got her admitted in the School and further whether any birth entry was produced at that time or any affidavit was given. PW-2 Tarsem Lal, father of the prosecutrix, stated that Rajni Rani was aged about 14 years and her mother has also stated that Rajni Rani was less than 1 (SIC) years of age. Thus, they also corroborated the birth entry that Rajni Rani was less than 14 years. Hence, the statement of DW-1 cannot be relied upon. It is, therefore, held that the date of birth of Rajni Rani is 7.9.1974 and as such, she was aged about 14 years and, thus, was minor at the time of occurrence.

PW-3 Rajni Rani, aged about 14 1/2 years, categorically stated that she knew the appellant, Zamir Ahmed and about 8 months prior to recording o her statement, the appellant alongwith his brother etc. were tenants and she used to sit there with Baby wife of Babu Mihan, brother of Zamir Ahmed and she used to tell her that Zamir Ahmed was earning a good amount and she should marry him but she always opposed and told that she being Hindu would not marry a Mohamdin. She next stated that on 29.7.1988, she was alone at her house and the appellant visited her house and lured her to accompany him to Delhi and took her to the house of said baby at Delhi and kept there for 5 days and raped her. She further stated that thereafter he took her to Rai Bareily and kept in the house of his parents and also raped there. She further stated that she was medico-legally examined at Rai Bareily.

PW-2 Tarsem Lal stated that the appellant and his brother, Babu Mihan, were his tenants but the appellant tried to have illicit relations with his daughter and as such, he got vacated the premises from them. However, appellant used to call on his daughter. he further stated that on 29.8.1988, in the morning, he had left for his duty and when returned at about 6-7 P.M., then his wife Santosh Kumari told him that she had gone to make purchases in the market and in her absence, she suspected that the appellant had taken away their daughter Rajni Rani. He further stated that he alongwith Gurdev Singh proceeded towards police station and made statement Ex.DB to the Thanedar, who met them near Khazwaja Chowk, Ludhiana. He further stated that ultimately they went to Rai bareily, to which the appellant belonged and there from the police, they came to know that the appellant and the prosecutrix had already been arrested and the prosecutrix had been sent for medical examination while the appellant was in judicial custody. His statement is further corroborated by PW-7 Santosh Kumari.

PW-1 Lady Dr. Sharela Shukla, Medical Officer, Civil Hospital, Rai Bareily, medico-legally examined Rajni Rani daughter of Tarsem Lal on 6.9.1988 and gave finding that Rajni Rani was used to sexual inter-cause. She proved her report, Ex.PA. She further stated that her vaginal orifice admitted two fingers easily and the hymen was torn and healed. She next stated that there were old tags of ruptured hymen present. Thus, from her statement it is proved that she was subjected to sexual inter-course. PW-3 Rajni Rani has categorically stated that she was subjected to sexual inter-course by the appellant forcibly. Even if it is presumed that she was subjected to sexual inter-course with her consent by the appellant, then also, it is no consent in the eyes of law because she was less than 16 years of age at the time of occurrence. Hence, I find that the appellant has rightly been found guilty and convicted under Sections 363, 366 and 376 IPC.

Counsel for the appellant next contended that Miss Rajni Rani had willing accompanied the appellant to enjoy life as she was a consenting party and the occurrence had taken place about more than 14 years ago and the appellant had been suffering the agony of trial for a long period, so, a lenient view be taken and the sentence be reduced to three years as observed by this Court in Krishan Kumar v. State of Haryana, 1999 (2) RCR (Criminal) 773. In my opinion, the contention of learned counsel is not tenable and the above mentioned authority is not applicable to the facts of the present case. In the above mentioned case, it was found by the Court that the prosecutrix was near about 16 years of she could be a few months above 16 years. Thus, it was a marginal case regarding age. So keeping in view the age of the prosecutrix, coupled with that she wrote letters to the accused and remained with him for four months, the sentence was reduced. However, in the present case it is conclusively proved from the birth entry that she was aged about 14 years at the time of occurrence and there is no evidence that she had written any letters to the appellant and further she remained with him for only a few days. In such circumstances, there is no justification to reduce the sentence as minimum sentence has been awarded u/s 376 IPC.

Consequently, the appeal is dismissed.

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