Criminal Revision No.1595 of 2005 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.1595 of 2005 Date of Decision: 03.05.2011 Partap Singh ....Petitioner Versus The State of Punjab and others ....Respondents CORAM: HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. S.P.S.Sidhu, Advocate, for the petitioner. Mr. Ranvir Singh Chauhan, D.A.G. Punjab, for the respondent – State. Mr. S.C.Chhabbra, Advocate, for respondent Nos. 2 to 4. Dr. Anmol Rattan Singh Sidhu, Senior Advocate, with Mr. Ajay Kaushik, Advocate, for respndent Nos. 7 and 8. None for respondents No. 5, 6, 9, 10 and 11. NAWAB SINGH.J (ORAL) This complainant's revision is directed against the judgment dated January 17th, 2005 passed by Additional Sessions Judge, Fast Track Court, Ferozepur, whereby, respondents were acquitted of the charge for the offence punishable under Sections 363, 366, 376 and 496 read with Section 120-B of Indian Penal Code in case bearing First Information Report No. 154 dated September 19th, 2002, Police Station – Zira, District Ferozepur. 2. The prosecution story is as under : Veerpal Kaur – prosecutrix (PW-4) accompanied Criminal Revision No.1595 of 2005 2 .. Balwinder Kaur – respondent No.1, her aunt (father's sister) to her village Behak Gujjar in the month of August, 2002 in order to attend marriage of her son Iqbal Singh (respondent No.3). At the house of Balwinder Kaur, marriage between the prosecutrix and Sukhdev Singh, respondent No. 7, was arranged and solemnized in a Gurdwara in the month of September, 2002, which was attended by relatives from both sides. The marriage was consummated between the prosecutrix and Sukhdev Singh. 2. Prosecution was launched on the statement of Partap Singh (PW-3), father of the prosecutrix. It was alleged that marriage was performed by playing fraud upon the prosecutrix and under the threat. 3. The case was registered against Balwinder Kaur, father's sister of the prosecutrix, her two sons – Gurpal Singh and Iqbal Singh, Anup Kaur (aged 70 years), Rajbir Singh, Jagir Singh (70 years), Jaswinder Singh, Jaswant singh, Gurvinder Kaur and Sukhdev Singh. Except Sukhdev Singh, all were in relation of the prosecutrix. During investigation, Jaswant Singh, Gurvinder Kaur and Jaswinder Singh were found innocent because allegations against them were that they also attended the marriage ceremony. However, during trial, they were summoned to face trial along with other accused on the application filed by the prosecution under Section 319 of Code of Criminal Procedure. 4. Learned counsel for the revisionist has urged that the prosecutrix was 15 years and 3 years old as per the 5th class certificate (Exhibit P/17) on the day of her marriage with Sukhdev Singh and prior to that, she was kidnapped by Balwinder Kaur from the lawful guardianship of her father. This would be sufficient to prove the allegations against the respondents. Notwithstanding that, learned trial Judge acquitted the respondents, which was patently wrong. 5. In this case, firstly it has to be seen as to whether (i) prosecution succeeded in proving that the prosecutrix was Criminal Revision No.1595 of 2005 3 .. kidnapped by the respondents or not? and secondly, whether she was raped by Sukhdev Singh or not? 6. With regard to the age of the prosecutrix, the prosecution has placed reliance only on the 5th class certificate (Exhibit P/17) of the prosecutrix. The said certificate has been dis- belived by the trial Judge on the ground that except issuance of said certificate and that too duplicate, no other document whatsoever has been produced in evidence by the prosecution. So much so, the trial Judge summoned the Headmistress of the concerned school as a Court witness, but she could not bring any record to prove the date of birth of the prosecutrix because according to her, the entire record had already been burnt. Ossification test of the prosecutrix was also conducted by Dr. Meena Dhir (PW-1), who opined that age of the prosecutrix was between 15 to 17 years. In view of this, there is no cogent evidence on record with regard to the correct age of the prosecutrix. Be that as it may, is it a case of abduction or kidnapping by the respondents? The answer is in the negative. It is not the case of Partap Singh – complainant (PW-3) or Veerpal Kaur (PW-4) that at the time when the prosecutrix was taken away by her aunt – Balwinder Kaur (respondent No.1) to her village in order to attend the marriage ceremony of her son, there was any mens rea on the part of Balwinder Kaur that she would compel the prosecutrix to marry with Sukhdev Singh. Balwinder Kaur is none else but sister of father of the prosecutrix. At the house of Balwinder Kaur, marriage between the prosecutrix and Sukhdev Singh was arranged and solemnized in a Gurdwara which was attended by the relatives from both sides. Photographs, Exhibit D/3 to D/25 and Mark 1 to Mark 14 further show that the marriage of prosecutrix with Sukhdev Singh was a happy occasion and not solemnized under any threat or compulsion. Rather it was solemnized as per the rites. Hence, it cannot be held that the prosecutrix was abducted or kidnapped by the respondents in order to compel her to marry with Sukhdev Singh. 7. Now, coming to the second point with regard to Criminal Revision No.1595 of 2005 4 .. committing of rape by Sukhdev Singh upon the prosecutrix or not since charge under Section 376 IPC was framed only against Sukhdev Singh. 8. Section 375 IPC defines that a man is said to commit rape with a woman under circumstances falling under any of the six following descriptions :- “First.—Against her will. Secondly.—Without her consent. Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death, or of hurt. Fourthly.—With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.—With or without her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.-- With or without her consent, when she is under sixteen years of age.” 9. There is exception to the aforesaid descriptions which provides that sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape. It is an admitted case that Sukhdev Singh married with the prosecutrix and the marriage was consummated. Even if the age of the prosecutrix, as per the prosecution, is taken to be 15 years and 3 months, then also, per the definition of 'rape' and exception thereto, no offence of 'rape' was committed by Sukhdev Singh, because he had sexual intercourse with his wife, who was, undoubtedly, not less than 15 years. 10. In view of above, trial Judge rightly appreciated the evidence and acquitted the respondents. Hence, no interference is Criminal Revision No.1595 of 2005 5 .. called for in the impugned judgment. 11. Dismissed. (NAWAB SINGH) JUDGE 03.05.2011 som Whether referred to the Reporter : Yes/No