Crl.Appeal No.1291-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal No.1291-SB of 2002 Date of decision:13.10.2010 Kulbir Singh … Appellant Versus State of Haryana … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Mr.H.S.Gill, Sr.Advocate, with Mr.R.K.Dhiman, Advocate, for the appellant. Mr.Paramjit Batta, Addl.AG, Haryana, with Mr.Amit Goyal, AAG and Mr. Gaurav Arora, AAG, Haryana. … JORA SINGH, J. This appeal has been instituted by Kulbir Singh against the judgment of conviction dated 10.8.2002 and order of sentence dated 13.8.2002 passed by Sessions Judge, Kurukshetra, in Sessions Case No.9 of 2001, arising out of FIR No.76 dated 18.3.2001 under Sections 363/366/376 IPC, PS, Sadar, Thanesar. By the said judgment, he was convicted under Sections 363/366/376 IPC and sentenced to undergo RI for seven years and to pay a fine of Rs.5,000/-, in default of payment of fine, to further undergo RI for one year under Section 376 IPC, to undergo RI for three years and to pay a fine of Rs.2,000/-, in default of payment of fine, to further undergo RI for six months under Section 366 IPC and to undergo RI for two years and to pay a fine of Rs.1,000/-, in default of payment of fine to further undergo RI for three months under Section 363 IPC. All the sentences were ordered to run concurrently. Prosecution story, in brief, is that on 18.3.2001, Sardar Singh, Crl.Appeal No.1291-SB of 2002 2 resident of Dera Satta, Village Sirsla, complainant, reported to SI Chander Pal Singh, SHO, PS, Sadar, Thanesar, while present near Bus Stand, Pipli, that his son Balwinder Singh was residing in the same dera and was a labourer. Balwinder Singh has four sons and one daughter, namely, Rasvinder Kaur (for short `the prosecutrix), aged about 16/17 years. Kulbir Singh, aged about 20/22 years', resided in the adjacent dera in Village Sanwala. Accused used to visit his house. On 15.3.2001 at about 8.30 PM, prosecutrix had gone to the fields to answer the call of nature but did not return. After one hour, they had gone to search her but could not trace her. They suspected the accused so they had gone to his house but accused was also found absent from his house. Complainant, his son and other family members kept on searching the prosecutrix and the accused but could not trace them. They were sure that the prosecutrix was kidnapped by the accused by alluring her with bad intention. Statement of Sardar Singh (Ex.PA) was recorded and after making endorsement (Ex.PA/1), same was sent to the concerned police station, on the basis of which, formal FIR (Ex.PA/2) was recorded. On 20.3.2001, SI/SHO Chander Pal Singh along with Balwinder Singh and other police officials, as per secret information, had gone to the tubewell room of Gian Chand in the area of Village Sirsla. Prosecutrix and accused were found inside the room, which was bolted from inside. Recovery memo (Ex.PE) of the prosecutrix was prepared. Rough site plan (Ex.PL) with correct marginal notes was prepared. Prosecutrix expressed her desire to make statement before the Magistrate instead of making statement before the police. Application (Ex.PN) was moved to record the statement of the prosecutrix under Section 164 Cr.P.C. Crl.Appeal No.1291-SB of 2002 3 Prosecutrix made statement before the Magistrate that she was in love with the accused for the last one year. On 15.3.2001 at 8.00 PM, she had gone with the accused from Kurukshetra to Chandigarh. She had married with the accused on the day of Holi festival against the wishes of their families. She had voluntarily gone with the accused at Chandigarh and had stayed in a guest house and then in a room for two nights as husband and wife. From Chandigarh, they had gone to Faridabad and stayed for two nights at the house of friend of the accused. During this period, they had sexual intercourse with each other as husband and wife. She has studied upto 8th class and did not want to accompany her parents. After the statement under Section 164 Cr.P.C., prosecutrix was produced before the doctor for medico legal examination. Accused was also produced before the doctor for medico legal examination. After completion of investigation, challan was presented in Court. Accused was charged under Sections 363/366/376 IPC, to which he pleaded not guilty. In order to substantiate its case, prosecution examined 9 witnesses. PW1 Prosecutrix appeared as her own witness and stated on oath that she was 16 years' old and after the death of her father, her mother Daljit Kaur had contracted karewa marriage with her uncle Balwinder Singh. Her date of birth was 10.7.1985. On 10.3.2001, she was summoned in the fields by the accused. Sindoor was applied in her maang and she became the wife of the accused. On 15.3.2001 at 8.30 PM, she was summoned by the accused. They had boarded the bus from Kurukshetra to Chandigarh and had stayed in a guest house for one night. Room was hired Crl.Appeal No.1291-SB of 2002 4 and for one night they had stayed in that room and had sexual intercourse as husband and wife. From Chandigarh, they had gone to Faridabad, and had stayed two nights there. During this period, they had sexual intercourse with each other as husband and wife. From Faridabad, they had come back to Village Sirsla and had gone to the tubewell room of Gian Chand from where they were arrested. She made statement before the Magistrate. PW2 Sardar Singh is the complainant. PW3 Daljit Kaur is the mother of the prosecutrix. PW4 Dharam Pal, Teacher, brought record and stated that Ex.PB and Ex.PC were the copies of school leaving certificates. As per certificates, date of birth of Supinder Kaur d/o Dalbir Singh was 2.12.1985. PW5 Balwinder Singh is the son of complainant and stated that after the death of his brother Dalbir Singh, he had contracted karewa marriage with Daljit Kaur. Supinder Kaur @ Jasvinder Kaur was about 15- 1/2 years' old. PW6 Karam Chand, Patwari, proved scaled site plan (Ex.PF). PW7 Dr. Paramjit Singh on 20.3.2001 has medico legally examined the accused and stated that accused was fit to perform sexual intercourse. PW8 Dr. Anupma Singh on 20.3.2001 has medico legally examined the prosecutrix, aged 18 years, and observed as under:- “The breasts were semi spherical and developed . Axillary and pubic hair were present. No mark of injury were seen on any part of the body. Menarche was approximately four years back. Cycles were Crl.Appeal No.1291-SB of 2002 5 4/30 days and date of last menstrual period was 26.2.2001. Local Examination:- Pubic hair were found present and were taken for examination. Labia majora and labia minora were developed and had no mark of injury. Hymen had healed, tears at 4, 7, 9' o clock position. Vagina admitted two fingers. Two swabs and two slides were prepared from the secretion of posterior vaginal fornix. Uterus was retroverted and normal size.” PW9 SI Channder Pal Singh is the Investigating Officer. After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that prosecutrix has married with him on 10.3.2001 and cohabited with each other as husband and wife. Prosecutrix was in love with him. After hearing learned PP for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on file. Learned defence counsel for the appellant argued that the prosecutrix was 18 years’ old. On 10.3.2001, prosecutrix had married with the appellant. Prosecutrix had stayed with the appellant at Chandigarh and Faridabad for about 4-5 days. During this period, they had sexual intercourse as husband and wife. Prosecutrix while appearing before the Magistrate, then stated that she was in love with the appellant and had Crl.Appeal No.1291-SB of 2002 6 married with the appellant. She had stayed with the appellant at Chandigarh and Faridabad and during this period, she had sexual intercourse with the appellant as husband and wife. She was not to accompany her parents. Prosecutrix was sent to Nari Niketan. Prosecutrix while appearing in Court as PW1, then admitted that she had married with the appellant on 10.3.2001 and on 15.3.2001, she had gone with the appellant on her own accord. She had stayed with the appellant at Chandigarh for two nights and two nights at Faridabad. During this period, she had sexual intercourse with the appellant as husband and wife. On 20.3.2001, she along with the appellant had come back to Village Sirsla and had gone to the tubewell room of Gian Chand, from where they were arrested. Before the Magistrate, prosecutrix had disclosed that she was 18 years’ old. Before the doctor, she stated that she was 18 years’ old. Prosecutrix was the daughter of Balwinder Singh and not Dalbir Singh. According to story, Daljit Kaur had two sons and one daughter from the loins of Dalbir Singh. After the death of Dalbir Singh, she had contracted karewa marriage with Balwinder Singh and from the marriage with Balwinder Singh, she had two children but birth certificates of remaining children not produced. Prosecutrix had studied upto 8th class. Three certificates on the file. According to complainant, name of the prosecutrix is Rasvinder Kaur, whereas as per certificates (Ex.PB and Ex.PC), name of the prosecutrix is Supinder Kaur d/o Dalbir Singh and her date of birth is 2.12.1985. Third certificate is Ex.PD brought from the hospital by Balwinder Singh. According to this certificate, date of birth is 10.7.1985 and name of the prosecutrix is Jasminder Kaur. Prosecutrix when appeared in Court, then stated that her date of birth is 10.7.1985. That means, certificates (Ex.PB and Ex.PC) are not correct one. Birth certificates Crl.Appeal No.1291-SB of 2002 7 of other two issues of Daljit Kaur from the loin of Dalbir Singh are not on the file. According to certificates (Ex.PB and Ex.PC), date of birth of the prosecutrix is 2.12.1985 but according to certificate (Ex.PD), date of birth is 10.7.1985. That means, documentary evidence produced by the prosecution qua age of the prosecutrix is not correct one. According to the doctor, ossification test was advised but no explanation why there was no ossification test. Prosecution is not clear as to whether name of the prosecutrix is Rasvinder Kaur or Supinder Kaur or Jasminder Kaur. After certificates (Ex.PB and Ex.PC) are ignored, then statement of the prosecutrix before the Magistrate and doctor are to the effect that she was 18 years’ old. Prosecutrix on her own accord had gone with the appellant. She had sexual intercourse with the appellant voluntarily on the allegation that she is the wife of the appellant. Before the Magistrate, prosecutrix admitted that she had married with the appellant. In Court also, she has stated that she had married with the appellant. If no proof regarding marriage, then evidence on file shows that the prosecutrix was 18 years’ old and was the consenting party. Learned State counsel argued that prosecutrix was not the legally wedded wife of the appellant. Prosecutrix in Court stated that she was summoned by the appellant to the fields. Sindoor was applied in her maang, then she became the wife of appellant. No defence, where the marriage was solemnized and what were the ceremonies. In the fields, simply by applying sindoor in the maang of the prosecutrix, she cannot be the legally wedded wife of the appellant. In Court, prosecutrix stated that she was 16 years’ old. Similar is the statement of Sardar Singh, complainant, Daljit Kaur and Balwinder Singh. When the prosecutrix was Crl.Appeal No.1291-SB of 2002 8 less than 16 years, then consent of the prosecutrix is immaterial. Prosecutrix and the appellant were arrested from the tubewell room of Gian Chand. Appellant when examined under Section 313 Cr.P.C., then admitted that he had sexual intercourse with the prosecutrix. When sexual intercourse by the appellant with the prosecutrix was against her wish, then trial Court rightly opined that the prosecutrix was kidnapped and raped. According to the prosecution, prosecutrix was about 15-1/4- 15-1/2 years’ old. She was unmarried. Prosecutrix was kidnapped by the appellant and was raped against her wish, whereas defence version of the appellant was that prosecutrix was the wife of the appellant and was 18 years’ old. Prosecutrix was the consenting party now question is whether the prosecutrix was the legally wedded wife of the appellant and 15-1/2 years’ old or 18 years’ old. Complainant is the grand father of the prosecutrix and stated that prosecutrix was unmarried at the time of occurrence. Similar is the statement of Daljit Kaur, mother of the prosecutrix. Balwinder Singh, PW, is the husband of Daljit Kaur, and stated that the prosecutrix was unmarried. Prosecutrix was recovered along with the appellant on 20.3.2001. Instead of making the statement before the police, prosecutrix preferred to make statement before the Magistrate. Application (Ex.PN) was moved to record the statement of the prosecutrix under Section 164 Cr.P.C. Statement of the prosecutrix was recorded before the Magistrate. Before the Magistrate, prosecutrix stated that she was in love with the appellant for the last one year. On 15.3.2001 at 8.30 PM, she had gone with the appellant from Kurukshetra to Chandigarh. She had married with the appellant on the day of Holi festival against the wishes of their families. She had voluntarily Crl.Appeal No.1291-SB of 2002 9 gone with the appellant and stayed with him at Chandigarh and Faridabad. During this period, she had sexual intercourse with the appellant as husband and wife. Prosecutrix appeared in Court as PW1 and stated that she was 16 years’ old. Her mother Daljit Kaur was married with Dalbir Singh and from the loin of Dalbir Singh, Daljit Kaur has two sons and one daughter. She is the eldest daughter of Daljit Kaur. After the death of Dalbir Singh, her mother had contracted karewa marriage with her uncle Balwinder Singh. From the loin of Balwinder singh, her mother has two children. Her date of birth is 10.7.1985. On 10.3.2001, appellant called her in the fields and applied sindoor in her maang. Then stated that she became his wife. Except this line, no proof regarding marriage. In 1980 HLR 157, L/NK Nasib Chand vs. Surinder Kaur alias Chhindo, Hindu Marriage Act, 1955- Section 7- Evidence Act, 1972, Section 17- Validity and proof of marriage- Respondent admitting factum of marriage between her and appellant in proceedings U/S 97 Criminal Procedure Code- Admission no proof of legal and valid marriage unless proved that essential ceremonies of valid marriage have been performed. In 1998 (4) RCR (Crl.) 169, Vinod Kumari vs. Surinder Singh, Application under Section 125 Cr.P.C. to claim maintenance- First marriage of wife dissolved by mutual consent- Wife then married the respondent and cohabited with him for some time- Inference of marriage may be drawn from cohabitation as husband and wife- Wife has simply to prove that she was not concubine- Strict proof of marriage is not required. In AIR 1999 SC 3348, Dwarika Prasad Satpathy vs. Bidyut Prava Dixit and another, Hon'ble Supreme Court held that strict proof is not Crl.Appeal No.1291-SB of 2002 10 required. It is sufficient if claimant prima facie satisfies the Court that claimant and her husband lived as husband and wife. Performance of essential ceremonies need not also be proved. In the present case, before the Magistrate while recording the statement under Section 164 Cr.P.C., then prosecutrix stated that she had married with the appellant on the day of Holi festival against the wishes of their families. In Court as PW, prosecutrix stated that on 10.3.2001, she was called in the fields by the appellant. Sindoor was applied in her maang. Then stated that she became the wife of the appellant. But the prosecutrix has not stated a word as to what were the ceremonies and who had performed the ceremonies. In the fields by applying sindoor in the maang of prosecutrix, prosecutrix cannot be the legally wedded wife of the appellant. Under Section 7 of the Hindu Marriage Act, appellant was required to lead defence that essential ceremonies of valid marriage had been performed. No doubt, prosecutrix admitted before the Magistrate and in the Court that she had married with the appellant against the wishes of their families, but without essential ceremonies, there was no valid marriage amongst the prosecutrix and the appellant. No application under Section 125 Cr.P.C. was instituted by the prosecutrix on the allegation that she was the legally wedded wife of the appellant. No divorce petition was instituted either by the prosecutrix or the appellant on the allegation that marriage was solemnized on 10.3.2001 but due to certain reasons, there is a ground for divorce. No petition for conjugal rights was instituted by the appellant on the allegation that marriage was solemnized on 10.3.2001 and without any sufficient cause, prosecutrix has withdrawn from the society of the appellant. Statement of the appellant under Section 313 Cr.P.C. that they Crl.Appeal No.1291-SB of 2002 11 had married on 10.3.2001 and cohabited as husband and wife and statement of the prosecutrix that by applying sindoor in her maang, she became the wife of the appellant not sufficient to opine that prosecutrix was the legally wedded wife of the appellant. As per story, prosecutrix was 15-1/2 years’ old, whereas allegation of the appellant was that prosecutrix was 18 years’ old. Prosecutrix appeared as PW1 and stated that she is 16 years’ old and her date of birth is 10.7.1985. Mother and grand father of the prosecutrix and Balwinder Singh stated that the prosecutrix was 16 years’ old. Besides oral evidence, three certificates are on the file. Ex.PB and Ex.PC are the certificates as per school record. As per these certificates, date of birth of the prosecutrix is 2.12.1985. Certificates are in the name of Supinder Kaur d/o Dalbir Singh. Third certificate is Ex.PD, exhibited in the statement of Balwinder Singh. This certificate is of Jasminder Kaur and date of birth is 10.7.1985. Sardar Singh when lodged report with the police on 18.3.2001, then stated that name of the prosecutrix is Rasvinder Kaur and her age is 16/17 years, but in Court, complainant stated that name of the prosecutrix is Supinder Kaur. Daljit Kaur stated that name of the prosecutrix is Rasvinder Kaur @ Jaspinder Kaur. Balwinder Singh stated that name of the prosecutrix is Supinder Kaur @ Jasminder Kaur. Prosecutrix stated that her name is Rasvinder Kaur. Prosecutrix after recovery made statement before the Magistrate and disclosed that she is 18 years’ old. Prosecutrix was also produced before the doctor and before the doctor, she disclosed her name as Rasvinder Kaur. Age was disclosed as 18 years. PW8 Dr. Anupma Singh in examination-in-chief stated that patient herself had given her age as 18 Crl.Appeal No.1291-SB of 2002 12 years, but father of the patient alone stated that she was 15 years old. Patient was referred to X-Ray Department for verification of her age, but there was no ossification test. PW4 Dharam Pal, Teacher, in examination-in-chief stated that certificates (Ex.PB and Ex.PC) are correct as per record but in cross- examination admitted that name of father or residence of Balwinder Singh was not recorded below his signature/thumb impression. No birth entry or affidavit of the parents of the girl was attached with the form. Date of birth was recorded on the basis of previous school leaving certificate. Prosecutrix in Court stated that her date of birth is 10.7.1985. That means, Ex.PB and Ex.PC are not correct one because as per these certificates, date of birth of the prosecutrix is 2.12.1985. Secondly, certificates are of Supinder Kaur, whereas name of the prosecutrix is different. According to story, Daljit Kaur was married with Dalbir Singh and Dalbir Singh and Daljit Kaur had two sons and one daughter, namely, the prosecutrix. Birth certificates of both the sons are not on the file to show that Daljit Kaur was the wife of Dalbir Singh because suggestion was given to the witness that prosecutrix is the daughter of Balwinder Singh and not of Dalbir Singh. If Daljit Kaur is the first wife of Dalbir Singh and from Dalbir Singh, she had three issues, including the prosecutrix, then birth certificates of other two issues should have been produced on the file to show that Daljit Kaur was firstly married with Dalbir Singh. No explanation is forth coming as to why certificates of other two sons from the loins of Dalbir Singh are not on the file. Second allegation of the prosecution is that after the death of Dalbir Singh, Daljit Kaur contracted karewa marriage with Balwinder Singh and from Balwinder Singh, she has Crl.Appeal No.1291-SB of 2002 13 two sons but no certificate of sons on the file. If the prosecutrix was 15-1/2 years’ old or 16 years’ old, then before the Magistrate and doctor, prosecutrix could easily state that she is 15-1/2/16 years’ old. As per advice of the doctor, there was no ossification test. School leaving certificates (Ex.PB and Ex.PC) are not tallying with the certificate (Ex.PD) issued by the hospital. In 2008(4) RCR (Crl.) 756, Babloo Pasi vs. State of Jharkhand and another, Proof of age- Held, entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded. In 2008(3) RCR (Crl.) 531, Sunil Kumar alias Bholu vs. State of Haryana, Rape case-Age of prosecutrix- Age recorded in admission form of school- No evidence that age was recorded on the basis of birth certificate or affidavit of parents- Not safe to rely on school record. In 2010 (3) RCR (Crl.) 734- Balwan Singh vs. State of Haryana, school certificate issued by the Headmaster with regard to the age of the prosecutrix is a legal document having evidentiary value and has to be given weightage- Such dates of births are recorded in the school registers by the authorities in discharge of their public duty- The entry is not conclusive but has evidentiary value- Such like certificates have got the evidentiary value so far as the date of birth recorded therein is concerned as per above said certificate. In 1978 CLR 146, Smt. Santi vs. The State of Punjab, Entries in a birth register are admissible and relevant to prove the age of a person- Birth register is a public document- However, identity of the person concerned must be established- A mere entry in a birth register that a Crl.Appeal No.1291-SB of 2002 14 daughter was born to a person without any statement as to the identity of the girl is not sufficient to prove birth of a particular person- The identity of that person has to be fully established by other evidence- The birth certificate itself is no proof of the age of any particular person unless the identity of the person connected with that entry is established. In AIR 1983 Punjab & Haryana 366, Sarwan Singh and others vs. Ashok Kumar and others, mere production of a copy of birth entry would not, as a matter of law, connect the entry with the person claiming the birth entry of his own. In AIR 1966 Punjab 282, Didar Singh Cheeda vs. Sohan Singh Ram Singh and others, Certificate of death- More than thirty years old- Admissibility in evidence- Certificate mentioning caste of deceased- Produced by returned candidate in election petition against him- Person whose death was recorded alleged to be father of returned candidate- Candidate not deposing to it in his statement- Mere production of copy would not, as a matter of law, connect the entry with the returned candidate's father- Document has to be excluded from consideration as evidence of caste of the returned candidate. In the present case, three documents on the file regarding age of