BHAJAN SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THE appellant has challenged in this appeal the order of the conviction and sentence dated 15.1.1994 recorded by Mr. B.S. Bedi, learned Additional Sessions Judge, Patiala in Sessions Case No. 51 of 1989 whereby he was sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 500/- for committing the offence under Section 363 of the Indian Penal Code, in default of payment of fine to further undergo rigorous imprisonment for one month. He was also sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs. 500/- for committing the offence punishable under Section 366 of the Indian Penal Code, in default of payment of fine to further undergo rigorous imprisonment for one month. All the substantive sentences were ordered to run concurrently.

(2.) BRIEFLY the facts of the case are that on the night intervening 29.9.1988 and 30.9.1988, the complainant Puran Singh and his wife Smt. Charan Kaur along with other family members including his daughter Smt. Sinder Kaur-prosecutrix then aged about 15 years were asleep in front of their house situated in village Ajanali. It was at about 6.00 a.m. On 30.9.1998, Puran Singh got up and found that Sinder Kaur was missing from her bed. He made inquiries from his wife Charan Kaur, who told him that she might have gone to answer the call of nature. Both Puran Singh and his wife Charan Kaur waited for her return but she did not return. After making enquiries in the village from relatives and neighbours, she was not traced. Puran Singh suspected that Bhajan Singh- accused might have kidnapped his daughter because he had been previously visiting the house of sister of his father, whose house was adjoining to their house and a day earlier he had visited the house of neighbourhood of her father's sister. It was on 1.10.1988 at about 11.00 a.m., he reported the matter to ASI-Hardev Singh, who recorded his statement Ex. PH on the basis of which FIR was registered against the accused under Sections 363, 366 and 376 of the Indian Penal Code. After recording the FIR, ASI-Hardev Singh visited the house of Puran Singh to prepare the site plan and recorded the statements of various PWs under Section 161 of the Code of Criminal Procedure. It was on 12.10.1988, the accused Bhajan Singh was arrested and minor Sinder Kaur was recovered from his custody. She was medico-legally examined by lady Dr. Asha Kiran-PW2, who prepared the medical report Ex. PD. She took out the swab from her vagina and sent it to the Chemical Examiner. The wearing clothes of Smt. Sinder Kaur were also taken into possession. Her statement was recorded by the Police wherein she named the accused having kidnapped her at the knife point on the night intervening 29.9.1998 and took her towards Sirhind on his cycle from where he threw his cycle and made her to board a bus and took her to Sanaur to the house of his friend, Jasbir Singh @ Bhola. There he represented to Jasbir Singh that Sinder Kaur was his wife and because of flood in their village, they had come to stay there for a few days. After staying there for a few days, she was taken to village Shatrana in a bus where she was kept in a house in the fields outside the village owned by his friend for five days. During their stay at the house of Jasbir Singh and the friend of Bhajan Singh in village Shatrana, the accused committed sexual intercourse with her against her will. She further stated that due to fear, she did not raise hue and cry. It was on the morning of 12.10.1988, she was brought to her village Shatrana to Amloh and then to Khanna where police arrested the accused Bhajan Singh. He was sent to the Medical Officer for medico-legal examination where the doctor opined that there was nothing to suggest that he was incapable of performing sexual intercourse. The Investigating Officer also took into possession the School Leaving Certificate of Sinder Kaur Ex. PA wherein the date of birth was recorded as 10.1.1971. Challan against the accused was filed in the Court of Illaqa Magistrate. Then learned Additional Sessions Judge framed the charge against the accused under Sections 363/366 and 376 of the Indian Penal Code. The said charge was read over and explained to the accused to which he pleaded not guilty and claimed trial. To bring over the charge against the accused, the prosecution examined ASI Shiv Raj Parkash, who had partly investigated the case by collecting the School Leaving Certificate, Ex. PA from the School Headmaster and made attempts to SMO Civil Hospital Mandi Gobindgarh, Civil Hospital, Nabha and Civil Hospital, Fatehgarh Sahib for the ossification test of Smt. Sinder Kaur daughter of Puran Singh as advised PW2-Dr. Asha Kiran to determine the age of the prosecutrix but the X- ray machine was either not in working order or proper material for the examination was not available. PW2-Dr. Asha Kiran conducted the medico-legal examination where she had declared her age as 18 and was of the opinion that she is not virgin. She is used to sexual intercourse. She further stated that patient at the time of examination disclosed her age as 18 years. After medical report, clothes which she had collected from the Chemical Examiner, she advised for the Ossification Test of Smt. Sinder Kaur daughter of Puran Singh. PW-3, ASI Hardev Singh partly investigated the case. PW-4, Puran Singh is the father of prosecutrix, who stated that he had got the date of birth of Smt. Sinder Kaur recorded in Chowkidar Register. PW-5 Smt. Charan Kaur, mother of the prosecutrix, also disclosed that her date of birth is recorded in the Chowkidar Register. PW-6 Sinder Kaur-prosecutrix has not supported the case of the prosecution rather she disclosed that she was in love with Bhajan Singh-accused and wanted to marry him but her father and father's brother (uncle Nirmal) were opposing and she was subjected to severe beatings. She further stated that they had contracted the civil marriage and were living for 4-5 days with the cohabited marriage. The accused neither took her forcibly at point of knife on a cycle nor she was raped by him at Sanaur or Shatrana. Inspite of lengthy cross-examination, she however disclosed her age as 18 years at the time of occurrence. PW-7 Dharam Pal, Pawtari prepared the site plan. PW-8 is the Head Master, Gulzar Singh, who had not proved the Birth Certificate-Ex. PA of the prosecutrix and proved the age of one Balwinder Kaur daughter of Puran Singh. PW-9, ASI-Gurdial Singh had tendered the affidavit Ex. PZ. PW-9 is a formal witness. Thereafter, the prosecution evidence was closed. Statement of accused under Section 313 of the Code of Criminal Procedure was recorded. Prosecution version was put to the accused to which he pleaded not guilty or the accused led no evidence in defence.

(3.) I have gone through the contentions of the learned counsel for the appellant and Mr. Narinder Kapur, Assistant Advocate General, Punjab.