Crl.Appeal No. 380-SB of 2001 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.380-SB of 2001 Date of decision: 19.4.2011 Vijay Singh ... Appellant versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.S.S.Kaliramna, Advocates, for the appellant. Mr.Raja Sharma, AAG, Haryana. ... JORA SINGH, J. This is an appeal by Vijay Singh, appellant, to challenge the judgment of conviction dated 15.3.2001 and order of sentence dated 17.3.2001 passed by Additional Sessions Judge, Gurgaon, in Sessions Case No.5 of 28.1.2000, arising out of FIR No.114 dated 26.2.1998 under Sections 363/365/366/376 IPC, Police Station City, Gurgaon. By the said judgment, he was convicted under Sections 363/365/366/376 IPC and sentenced to undergo RI for 3 years and to pay a fine of Rs.200/-, in default of payment of fine, to further undergo RI for 1 month under Sections 363/365/366/376 IPC. All substantive sentences were ordered to run concurrently. Prosecution story, in brief, is that Des Raj, complainant, submitted one application dated 26.2.1998 (Ex.PJ) before DIG, Gurgaon, on the allegation that he was married with Anita on 21.1.1998. On 2.2.1998, he along with his wife was going to his in-laws house. On the way at Gurgaon, Anita had gone to a shop for hair cutting and from the shop, she was found missing. Complainant suspected that Anita was kidnapped by Crl.Appeal No. 380-SB of 2001 2 Vijay Singh, Bhim Singh, Guddu and Vikram Singh. Application was marked to ASI Atma Ram for investigation. When application was being investigated, then Anita and Vijay Singh were arrested on 27.2.1998. Both were produced before the doctor for their medico legal examination. Anita was produced before the Magistrate and made statement that she had gone with Vijay Singh on her own accord. She is major. In view of the statement of Anita, cancellation report was submitted but after obtaining opinion of Deputy District Attorney, investigation was handed over to ASI Saroj Bala. School leaving certificate of Anita was collected and as per certificate, her date of birth was 9.9.1982. Then case under Sections 363/365/366/376 IPC was registered. After completion of investigation, challan was presented in the Court. Accused was charged under Sections 363/365/366/376 IPC, to which he pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW1 Dr. Brij Mohan Bhatnagar stated that on 28.2.1998, he had conducted pregnancy test and after test, Anita was found pregnant. PW2 Dr. B.B.Aggarwal after ossification test opined that age of the prosecutrix was between 17-1/2 to 18 years. Ex.PB is the report. PW3 Sarwan Kumar, Draftsman, had prepared scaled site plan (Ex.PC). PW4 Lal Singh did not support the prosecution story and was declared hostile. PW5 Jitender Kumar proved marks sheet (Ex.PE). PW6 is the prosecutrix and stated that Vijay Singh used to Crl.Appeal No. 380-SB of 2001 3 visit her house. She wanted to marry him. She was summoned to the police station. She was sold by her maternal uncle Ravinder for a sum of Rs.60,000/- to Des Raj, resident of Village Pathera. She was kept by Des Raj for 3-4 days. Des Raj had sexual intercourse with her against her consent. No marriage ceremony with Des Raj was solemnized. Des Raj wanted to sell her and brought 3 customers. She was shown to the customers. After that, she was kept inside the room. She had overheard Des Raj while saying to the customers that she was to be brought to their house on 2.2.1998. After that, she came back to her parental house. Vijay Singh was summoned and she had showed her intention to marry him. She had married with Vijay Singh on 4.2.1998. She had stayed with Vijay Singh for about one month at Faridabad when police had brought her from there. Her maternal uncle Ravinder and uncles Jasbir and Satbir had raped her earlier. At the time of marriage with Vijay Singh, she was 22 years' old. Her statement was recorded by the Magistrate under Section 164 Cr.P.C. She did not make any statement before the police. After that, prosecutrix was declared hostile and was cross-examined by learned PP for the State. PW7 Constable Bharat Singh tendered his affidavit (Ex.PH). PW8 Puran is the father of the prosecutrix and stated that prosecutrix was married with Des Raj. From Gurgaon, prosecutrix was found missing from the shop. Prosecutrix was kidnapped by Vijay Singh. Occurrence is dated 26.2.1998. PW9 ASI Atma Ram is the Investigating Officer. PW10 Des Raj is the complainant. After close of the prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. He denied all the prosecution Crl.Appeal No. 380-SB of 2001 4 allegations and pleaded to be innocent. 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 the file. Learned defence counsel for the appellant argued that prosecutrix is the legally wedded wife of the appellant and from this wedlock, prosecutrix has one issue. Allegation of the prosecution is that prosecutrix was kidnapped by the appellant on 2.2.1998. She was raped against her wish, but prosecutrix appeared in Court and stated that she was not kidnapped by the appellant and was not raped. Suppose, prosecutrix is minor, even then story is not genuine one because prosecutrix categorically stated that she was not raped and kidnapped by the appellant. Father of the prosecutrix appeared in Court and stated that occurrence is dated 26.2.1998 but allegation of Des Raj is that occurrence is dated 2.2.1998. Nothing on the file that marks sheet (Ex.PE) tendered by PW5 Jitender Kumar is of the prosecutrix. Suppose, marks sheet is of the prosecutrix, even then story is not genuine one in view of the statement of prosecutrix. Learned State counsel argued that as per school leaving certificate, date of birth of prosecutrix is 9.9.1982. Occurrence was in the month of May, 1998. At that time, prosecutrix was less than 16 years of age. Consent of the prosecutrix is immaterial. Evidence on the file was rightly scrutinized by the trial Court. According to the story, prosecutrix was kidnapped by the appellant and was raped against her wish, whereas defence version of the Crl.Appeal No. 380-SB of 2001 5 appellant was that prosecutrix is the legally wedded wife of the appellant. Prosecutrix was not married with Des Raj. Now the question is whether prosecutrix was kidnapped by the appellant and after that, she was raped against her wish or defence version seems to be more probable. Des Raj moved application (Ex.PJ) dated 26.2.1998 on the allegation that he was married with the prosecutrix. Marriage was solemnized on 21.1.1998. After that, he along with prosecutrix was going to visit his in-laws house. At Gurgaon, prosecutrix had gone to one shop for hair cutting. He had gone to another shop to arrange payment and when came back, then found the prosecutrix missing from the shop. According to complaint, allegation of Des Raj was that prosecutrix was kidnapped by Vijay Singh, Bhim Singh, Guddu and Vikram Singh. Des Raj appeared in Court as PW10 and stated that he was married with the prosecutrix. Marriage was solemnized in the temple. Only garland ceremony was performed. On 2.2.1998, he along with prosecutrix was going to Village Karola but on the way at Gurgaon, prosecutrix had gone to one shop for hair cutting. From the shop of hair dresser, prosecutrix was found missing. Then matter was reported. He had not seen the prosecutrix while going with anybody. Later on, he came to know that prosecutrix had gone with Vijay Singh. In cross-examination, Des Raj admitted that he cannot tell about the age of prosecutrix at the time of marriage. At the time of marriage, no one was present from his side. So, from the statement of Des Raj, one thing is clear that at the time of marriage, prosecutrix was 18 years' old. Des Raj had not seen the appellant while kidnapping the prosecutrix. Des Raj simply suspected that prosecutrix was kidnapped by Vijay Singh, Bhim Singh, Guddu and Vikram Crl.Appeal No. 380-SB of 2001 6 Singh. PW8 Puran is the father of the prosecutrix and stated that prosecutrix was married with Des Raj on 22.2.1998. Prosecutrix was kidnapped by the appellant but this fact is not correct because at the time of occurrence, Puran was not present with Des Raj. In examination-in-chief, Puran did not state a word as to what was the age of the prosecutrix at the time of her marriage. In cross-examination, Puran admitted that marriage ceremony was not performed by any Pandit but only garland ceremony was performed in the temple. He was not present when prosecutrix and appellant were arrested by the police. So, statement of Puran is not helpful to the prosecution to opine that prosecutrix was kidnapped and raped by the appellant because Puran was not present when prosecutrix was kidnapped. Prosecutrix did not inform Puran that she was raped by the appellant. Puran failed to state a word that prosecutrix was raped by the appellant. Prosecutrix appeared as PW6 and in examination-in-chief stated that appellant used to visit her house. She wanted to marry him but she was sold by her maternal uncle to Des Raj, who was an old man. She was kept for 3-4 days at Village Pathora, where Des Raj had sexual intercourse with her without her consent. No marriage ceremony with Des Raj was solemnized. Des Raj wanted to sell her. He brought 3 customers. She was shown to the customers. From the house of Des Raj, she came to her parental house. She had married with Vijay Singh on 4.2.1998 against the wish of her parents. She was brought by the police from the house of the appellant. Her maternal uncle Ravinder and uncles Jasbir and Satbir had also raped her earlier, when she was 15 years' old. At the time of marriage Crl.Appeal No. 380-SB of 2001 7 with Vijay Singh, she was 22 years' old. School leaving certificate was not put to the prosecutrix that as per certificate, her date of birth was 9.9.1982. Prosecutrix when failed to support the prosecution, then she was declared hostile and was cross-examined by learned PP for the State and stated that she did not make any statement before the police that she was kidnapped and raped by the appellant. She has one son from the loin of the appellant. Prosecutrix was the main witness to state as to whether she was kidnapped and raped by the appellant against her wish but prosecutrix on oath categorically stated that she was not kidnapped or raped by the appellant. Firstly, no cogent and convincing evidence on the file that the marks sheet (Ex.PE) is of the prosecutrix. Suppose, marks sheet is of the prosecutrix and date of birth of prosecutrix was 9.9.1982 and at the time of alleged occurrence, she was less than 16 years' old, even then no question of conviction because prosecutrix categorically stated that she was not kidnapped or raped by the appellant. In fact, prosecutrix has married with the appellant against the wish of her parents. As per evidence, prosecutrix was 22 years' old when married with Vijay Singh whereas, as per story, prosecutrix was married with Des Raj. But no proof of marriage of the prosecutrix with Des Raj. Prosecutrix was actually sold to Des Raj. He wanted to sell her. Prosecutrix was intending to marry with the appellant. Ultimately, prosecutrix had married with the appellant against the wish of her parents. After marriage with the appellant, prosecutrix has one son. Prosecutrix is staying with the appellant as his legally wedded wife. In view of all discussed above, I am of the opinion that evidence on the file was not rightly scrutinized by the trial Court. Impugned Crl.Appeal No. 380-SB of 2001 8 judgment s uffers from infirmity and illegality and the same is set aside. Appellant is acquitted of the charge levelled against him. Appeal is allowed. 19.4.2011 ( JORA SINGH ) pk JUDGE