Criminal Appeal No. 151-SB of 1997 1 In the High Court of Punjab and Haryana, Chandigarh. Criminal Appeal No. 151-SB of 1997 Date of Decision: 17.01.2008. Motha Singh and Another …Appellants Versus State of Punjab …Respondent CORAM: HON’BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA Present: Ms. Baljit Mann, Advocate for the appellants. Mr. Mehardeep Singh, Assistant Advocate General, Punjab, for the State. Kanwaljit Singh Ahluwalia, J. (Oral) The present criminal appeal has been filed by Motha Singh, son of Joginder Singh and Ghudha, son of Mit Singh against their conviction and sentence. Both the appellants, along with one Rajinder Singh, son of Surjit Singh (Proclaimed Offender) were found to have committed the offences by the Investigating Officer. Both the appellants were tried by the Court of additional Sessions Judge,Ludhiana who sentenced Motha Singh to five years rigorous imprisonment for offence under Section 376 IPC and a fine of Rs.2,000/-, in default thereof to further undergo rigorous imprisonment for six months and was further sentenced under Section 363 IPC for two years rigorous imprisonment; under Section 366 IPC for two years; under Section 342 IPC for one year and under Section 506 IPC for one year and a fine of Rs.200/- each Criminal Appeal No. 151-SB of 1997 2 under these sections. In default of payment of fine, to further undergo rigorous imprisonment for one month. Accused Gudha alias Gurmail Singh was sentenced to two years rigorous imprisonment under Section 363 IPC and a fine of Rs.500/-, in default thereof, to further undergo rigorous imprisonment for two months. He was further sentenced to undergo rigorous imprisonment for two years under Section 366 IPC and a fine of Rs.500/-, in default thereof, to further undergo rigorous imprisonment for two months. It has been further ordered that all the sentences would run concurrently. The FIR was lodged on a written complaint submitted by Harbans Singh, wherein it was stated that he is resident of Village Manak Majra, Police Station Sadar Khanna and is employed. His daughter Bhinder Kaur alias Niki, aged about 17 years was minor on 25.8.1983. At about 8.00 P.M, she had gone out to ease herself, when she had not returned, the family members became worried. After two days when his daughter had not returned, then on 27.8.1983, he came to the Police Station to report. It is further stated that on 1.9.1993 at about 5:30P.M, Bhinder Kaur alias Niki returned home, she disclosed that on 25.8.1993, when she had gone to ease herself near the toilets, two persons on a blue colour scooter which was without number, came and they forcibly took her away in a room in the fields. One person to whom they were calling Rajinder Singh was already in the field. Rajinder Singh had opened the door of the room where both the persons forcibly dragged her. When the light was switched on, she realised that out of two persons, one was Motha Singh, who was servant of Bhajan Singh and another person was Ghuda Singh alias Gurmail Singh who Criminal Appeal No. 151-SB of 1997 3 was working as a Tailor. It is stated that Ghuda Singh and Rajinder Singh left the room and Motha forcibly raped Bhinder Kaur and in the morning when Motha had left, then Rajinder Singh detained Bhinder Kaur in another room. In the night, Motha Singh came under the influence of liquor and again forcibly raped her. Motha Singh remained in the room for the whole night. Bhinder Kaur insisted before him that she be allowed to go home, upon which the threat to liquidate her was extended by Motha. To cut short, the details in the FIR, it is further stated that for continuous seven days i.e. upto 1.9.1993 she was unlawfully detained there and forcibly raped by Motha Singh and on 1.9.1993, at about 5.00 A.M in the morning when the Rajinder Singh came to lock the room Bhinder Kaur escaped from the fields on the pretext of going out to ease herself and reached her house. It is further stated that along with his relatives and Bhinder Kaur, he wanted to come to the Police Station, but the accused came and gave the threat that they will liquidate the family as they stated they have kept a watch on his family. Therefore, due to the threat, they had not come to the hospital or Police Station and on 9.9.1993, he made the application, which was reduced into writing in DDR and on the basis of the same FIR was registered in the Police Station, Sadar Khanna, Ludhiana. After investigation, prosecution submitted the challan under Section 173 Cr.P.C. Court of Additional Sessions Judge, Ludhiana charged both the appellants for the offences under Section 363 and under Section 366A, Motha Singh under Section 376. Both the appellants were charged that along with proclaimed offender Rajinder Singh are guilty of offence under Section 376 (g) IPC. He had further Criminal Appeal No. 151-SB of 1997 4 charged all the appellants along with Rajinder Singh for offences under Section 342 and 506 IPC. Prosecution examined PW.1 Dr. P.D. Singla, who examined Motha Singh and said that he was fit to perform sexual intercourse. PW.2 Dr. Surinder Kaur examined Bhinder Kaur, prosecutrix. She found no mark of violence present on her body. She found no debris under the nails and according to her the gait of patient was normal. No stains were present over the genital. There was no matting of pubic hair. There was no injury over the genital. As per chemical examination, vagina admitted two fingers easily and there was no mark of injury swelling or discoloration. She further opined that Bhinder Kaur was habitual of intercourse. PW.3 is Bhinder Kaur, prosecutrix. She gave broad features of the case as were disclosed in the FIR by her father Harbans Singh. PW.4 is Harbans Singh, complainant and in the Court he reiterated the allegations levelled in the complaint. PW.5 is Sher Singh, Sub Inspector, who had partly investigated the case. PW.6 is Charanji Lal, Head Constable, who has tendered his affidavit Ex.PW6/1 and was not cross-examined. After examining all the six witnesses, prosecution evidence was closed. All incriminating evidence was put to the appellants. They denied the same. Appellant/accused Motha Singh stated that due to land dispute with Bhajan Singh, they have been falsely implicated in the present case. Whereas Ghudha Singh simply stated that he has been Criminal Appeal No. 151-SB of 1997 5 falsely implicated. In defence, Avtar Singh was examined as DW.1 to show that the place of occurrence is in the locality where there are electric motors installed and there are residential houses and during the month of August, main crop paddy was sown and the people remained present on their motors and were irrigating their fields. I have heard Ms. Baljit Mann, Advocate, learned counsel for the appellants and Mr. Mehardeep Singh, learned Assistant Advocate General, Punjab, for the State and perused the record. Ms. Mann has stated that prosecution has miserably failed to prove the age of prosecutrix and she was above 18 years of age. She has stated that there was no mark of injuries and the prosecutrix was habitual of sexual intercourse, therefore, long period for which she remained with accused Motha Singh and delay in making the complaint will lead this Court with no other conclusion except that she was major and consenting party. On the other hand, Mr. Mehardeep Singh, learned Assistant Advocate General, Punjab, has stated that prosecutrix would be the last person to falsely implicate anyone and on the basis of her sole testimony, conviction and sentence of the appellants should be maintained. Before this Court analyse and dissect the evidence, it is pertinent to mention here that the trial Court came to finding that Motha Singh was only responsible for the offence of rape. From the evidence, to be discussed hereinafter, this Court has no hesitation to accept that the prosecutrix's age has not been Criminal Appeal No. 151-SB of 1997 6 proved and it can be safely inferred that she was bordering or above 18 years of age and benefit of doubt on this score is to be extended to the appellants. Furthermore, there is enough basis for this Court to arrive at a conclusion that the prosecutrix was consenting party. PW.2 Dr. Surinder Kaur in cross-examination has admitted that she did not check the teeth of Bhinder Kaur as she had referred her to S.M.O., Civil Hospital, Khanna and he had further referred the case to Radiologist for determination of the age of Bhinder Kaur. From this, it is evident that prosecution was conscious and intending to get the age of Bhinder Kaur determined from a Radiologist by conducting ossification test. The report of Radiologist and ossification test, if conducted, has been withheld from Court. Therefore, this is to be considered against prosecution and there is also no explanation as to why radiological examination or ossification test of Bhinder Kaur was kept in abeyance. Furthermore, PW.3 Bhinder Kaur in the opening lines of her examination-in-chief has stated her date of birth to be 2.8.1977 and she has stated that she is matriculate. But the matriculation certificate has not been produced. The same has also been withheld from Court. In the written complaint Ex.PW4/A , father of the prosecutrix has given her age to be 17 years. Therefore, she was bordering 18 years. Once the prosecution intended to secure conviction of accused for kidnapping, it was incumbent upon it to prove the necessary ingredient of the age to the hilt. Prosecutrix was examined in the Court on 6.6.1996. Date of occurrence is stated to be between 25.8.1993 to 1.9.1993. In the year 1996, she stated that her eldest brother is aged 30 years. This fact is borne from the vernacular recording of the evidence. Then she stated Criminal Appeal No. 151-SB of 1997 7 that younger to his brother is a sister who is younger by two years. Then she has a second brother who is younger by one year to his sister and the fourth sibling is a sister who is younger by one year from her brother and she is younger by one year to that sister. By this analogy, her age will come to be 25 years on the date of examination. If we subtract three years i.e. when she was examined her age would be 22 years. After such a cross-examination, it was suggested to her that her age is more than as given by her in the Court. This suggestion was denied. Be that as it may, by withholding the radiological examination/ossification test, matriculation certificate and from the sequences of siblings given, the benefit of doubt has to be given to the accused. It can be held that since according to his own averments Harbans Singh in his complaint Ex.PW4/A has stated that prosecutrix was 17 years of age, therefore, the margin of atleast one year if granted will lead to conclusion that prosecutrix was above 18 years. It is a case of prosecution that she has been only raped by Motha Singh, a fact which has also been found by the trial Court. She remained with Motha Singh in a tube-well kotha in the village. Apparently, she was missing from 25.8.1993 to 1.9.1993. Her father PW.4 Harbans Singh has stated that at the place of occurrence, residential houses are built and families are living there. He has further admitted that there are electric motors and people were working there. It is unbelievable that for seven days in a village, where residential houses are built and in a paddy season tube-well motors for irrigation were used, prosecutrix had made no attempt to inform anybody and would not raise any voice. Her medical evidence assume significance. Criminal Appeal No. 151-SB of 1997 8 No external or internal mark of injuries were found. Her vagina admitted two fingers easily. She was held to be habitual of having sexual intercourse. Therefore, it is probable that she on her own will had left her house and remained with Motha Singh till 1.9.1993. After the prosecutrix had arrived on 1.9.1993, no attempt was made to inform anybody and for the first time written complaint was submitted on 9.9.1993. To cover up the delay, explanation has been given that the family of the prosecutrix was under fear as the accused had left the threat. Prosecutrix had admitted in cross-examination that Motha Singh is servant of Bhajan Singh. She has further admitted to be correct that land of her family is on lease with Bhajan Singh. That being so explanation of under fear of threat is false. Nowhere it has been stated that the complaint was not made because of fear of dishonour. Since the prosecution has failed to discharge the onus to prove the age and there are enough circumstances to infer consent on the part of the prosecutrix, this Court has to take delay in lodging of the FIR into consideration. True it may be that delay in lodging of the report in each case cannot be construed against the prosecution but in the present case, there are numerous attending circumstances to take delay into consideration. Hence, this appeal is accepted. Conviction and sentence awarded upon the appellants are set aside and they are acquitted of the charges. (Kanwaljit Singh Ahluwalia) Judge January 17, 2008 “DK” Refer to Reporter