Criminal Appeal No. 711-SB of 2004 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Appeal No. 711-SB of 2004 Date of Decision: 24.4.2008 Zakir Hussain …Appellant Versus State of Punjab …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Ms. Anju Arora, Advocate for the appellant. Mr. Mehardeep Singh, Assistant Advocate General, Punjab, for the State. Kanwaljit Singh Ahluwalia, J. Appellant Zakir Hussain has been convicted and sentenced by the Court of learned Additional Sessions Judge, Bathinda, under Section 366-A IPC to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/- and in default of payment fine to further undergo for one year. He was further convicted and sentenced under Section 376 IPC to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/-. In default of payment of fine to further undergo rigorous imprisonment for one year. In the present case, FIR No. 604 dated 22.12.2001, was registered at Police Station Kotwali, Bathinda, under Sections 366-A & Criminal Appeal No. 711-SB of 2004 2 376 IPC by Sushila Kaur Sharma wife of late Darshan Lal Sharma. She stated in the FIR that her husband expired about eight years ago. She has got four children, three sons and one daughter. Her daughter Kirna Sharma aged 14 years was preparing for examination and used to go to Hazi Rattan for taking tuition. On 16.12.2001 as usual, she went for tuition but she did not return home till night. It was further stated that Zakir Hussain, who was residing in her house as tenant was also missing. She expressed her suspicion that her daughter Kiran Sharma has been abducted by allurement by Zakir Hussain and her daughter was wearing one gold chain weighing 1½ tolas, one pair of ear rings weighing one tola, two finger rings weighing one tola and cash of Rs.20,000/- has also been taken away from the house. It will be pertinent to mention here that even though Kiran Sharma was missing since 20.12.2001, the statement leading to FIR was made on 22.12.2001. The above said FIR was investigated. Challan was submitted in the Court. Appellant was charged for the offence punishable under Sections 366-A & 376 IPC on the ground that he had taken away and raped Kiran Sharma, minor girl aged 14 years. Appellant pleaded not guilty to the charge and claimed trial. PW.1 Dr. Dhira Gupta medicolegally examined Kiran Sharma on 27.12.2001 at 4.15 P.M.. No external or internal marks of injuries were found on her body. Vagina of the prosecutrix admitted two fingers, which were sufficient to infer that she was habitual of having sexual intercourse. In cross-examination, it has come that her hymen was absent. Various questions were put in cross-examination to the said doctor to suggest that the prosecutrix was aged about 20 years but no Criminal Appeal No. 711-SB of 2004 3 categoric answer was given by PW.1 Dr.Dhira Gupta. PW.2 Mohinder Singh, Assistant Sub Inspector, is stated to have recorded statement of complainant Ex.PD on the basis of which FIR Ex.PD/1 was recorded. PW.3 Dr. K.S.Brar, examined Zakir Hussain and gave his opinion that he is fit to perform sexual intercourse. Complainant Sushil Kaur appeared as PW.4. She reiterated the allegations levelled by her in the FIR. Kiran Sharma, prosecutrix, appeared as PW.5 and gave her age as 17 years. She gave her date of birth as 1.10.1986. She further stated that on 16.12.2001 accused who was residing as tenant in her house assured her that he will prepare golden jewellery for her and would make her life comfortable as he owned big property at Delhi. Therefore, on 16.12.2001 when she had gone to attend tuition at Hazi Rattan, the accused took her to the house of sister of his father at Ludhiana. They had gone by bus. She along with accused stayed for two days at Ludhiana. He stated that there accused committed rape to her. Then accused had taken her to Delhi and kept her in a hotel in Nizamudin. There they stayed for two days and again rape was committed. Then she was taken to a house which she was unable to state whether the same belonged to accused or somebody else. There again she was raped. On 26.12.2001 she returned to Bathinda as accused had run short of money. She admitted that she had not raised any noise when she was travelling in the bus as she was given threats by the appellant. She, however, admitted that no injury was caused to her. She further admitted that accused had obtained a writing from her Criminal Appeal No. 711-SB of 2004 4 for change of religion but she stated that this was due to beatings. She denied the suggestion that at the time of Nikah her maternal uncle was also present. She denied that at the time of Nikah ceremony her photographs were taken. PW.6 Paramjit Singh, Assistant Sub Inspector, investigated the case. He showed his ignorance that he does not now if any affidavit had been given by the prosecutrix in the Court of Sub Divisional Magistrate, Delhi, for change of her religion. PW.7 Gurpal Singh, Head Constable, has stated regarding the arrest of accused. PW.8 Paramjeet Singh, Constable, has taken vaginal swab to the Chemical Examiner. Statement of accused was recorded under Section 313 Cr.P.C. He stated that the false case has been registered against him at the instance of Sushil Kumari, mother of prosecutrix. The prosecutrix Kiran Sharma is aged about 18 years at the time of occurrence and he performed marriage by way of Nikah Ceremony in the presence of uncle of prosecutrix in Masjid situated at Paharganj New Delhi by the Kazzi of the said Masjid. They performed inter-caste marriage and when they returned back to Bathinda, the mother of prosecutrix asked to pay her the amount of Rs.50,000/-, which was to be given to them by the Government in future for the performance of inter-caste marriage. But Sushil Kumari insisted them for the payment of this amount. On his refusal, she got a false case registered against him. He is innocent. Pws are interested witnessed and are deposing falsely. In defence he tendered photograph Mark 'A', Sanad of Nikah Criminal Appeal No. 711-SB of 2004 5 and Mark 'C' is affidavit regarding change of religion. Mark 'B' is the photocopy of Middle Standard Examination of Kiran wherein her age was recorded as 1.10.1986. Ms. Anju Arora, Advocate, who was appointed as Amicus Curiae has very ably assisted this Court and stated that prosecutrix had travelled from Bathinda to Ludhiana and from Ludhiana to Delhi and stayed in hotel and many other places. She left Bathinda on 16.12.2001 and was recovered on 27.12.2001. She has stated that there are photographs of Nikah, and affidavit of prosecutrix even though they have been tendered as Mark 'A' and Mark 'B' but not proved. She has stated that the prosecutrix had stayed with the appellant for a long period and had not disclosed that she was under threat of appellant, this is sufficient to infer that she was consenting party. She has further stated that prosecution has miserably failed to prove the age of prosecutrix. No ossification test had been conducted, no certificate form the Registrar, Births and Deaths has been proved. Furthermore, school certificate had also not been proved, only Mark 'B' has been tendered. In the present case, whatever benefit is granted to the accused prosecutrix Kiran Sharma cannot be said to be more than 18 years and was minor. Her age was bordering 16 years. She herself has stated her date of birth as 1.10.1986. The same is also recorded in the certificate Mark 'B'. Therefore, it can be safely stated that the benefit regarding determination of age should be given to the appellant as prosecutrix was around 16 years of age and prosecution has failed to discharge its bounden duty to prove age of prosecutrix. Therefore, the present appellant is acquitted of his charges under Section 376 IPC. Criminal Appeal No. 711-SB of 2004 6 However, since she was less than 18 years, she has been allured on the promise of marriage from the lawful guardianship of her mother complainant Sushila Kaur PW.4. Therefore, the offence will not fall under Section 366-A IPC but under Section 366 IPC. The appellant has been sentenced for five years under Section 366-A IPC. In the present case since prosecutrix also sated to have accompanied the accused, both appellant and prosecutrix were of immature of age and the prosecutrix has eloped with the appellant. Even though technically, offence under Section 366 IPC has been made out but rigor of the sentence imposed upon the appellant is to be visited leniently. Therefore, the appellant is sentenced to three years under Section 366 IPC. With these modifications, the present appeal is disposed off. (Kanwaljit Singh Ahluwalia) Judge April 24, 2008 “DK”