High Court of Punjab and Haryana, Chandigarh
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Lal Singh alias Lali v. The State of Punjab. - CRA-S-394-sb-1990  RD-P&H 3394 (24 May 2006)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHNDIGARH.
CRIMINAL APPEAL NO. 394-SB OF 1990
DATE OF DECISION: MAY 19, 2006.
Lal Singh alias Lali son of Nachattar Singh son of Chanan Singh, aged 23 years, labourer, resident of village Koreana.
The State of Punjab.
Present: Shri S.S.Chopra,Advocate, for the appellant.
Shri Narinder Kapoor, Assistant Advocate General, Punjab.
Appellant Lila alias Lali, resident of Village Koreana was convicted and sentenced by the learned Additional Sessions Judge, Bhatinda, under Sections 363 and 366 of the Indian Penal Code in case bearing FIR No. 17 dated 6.03.1989 registered at Police Station, Jaurkian and was sentenced to undergo rigorous imprisonment, as under: "RI for a period of four years under Section 366 IPC and to pay a fine of Rs.3,000/- (Three thousand). In default of payment of fine to further undergo RI for one month. The accused is further convicted under Section 363 IPC and sentenced to undergo RI for one year and to pay a fine of Rs.100/-. In default of payment of fine to further undergo RI for 15 days. The sentence of substantive imprisonment shall run concurrently".
In brief, the prosecution case is summed up as under:- Accused-appellant Lal Singh used to work as Seeri with Dalbara Singh. Mohinder Kaur prosecutrix is the daughter of Kaur Singh and grand daughter of Dalbara Singh. On 2.3.1989 Lal Singh accused came to their house 2 Crl.A.No.394-SB of 1990.
and showed a naked kirpan to Mohinder Kaur and threatened her that in case she raised raula he would kill her with the kirpan. Thereafter, the accused took Mohinder Kaur prosecutrix with him to the canal and while going with the accused Mohinder Kaur carried with her one Golden Clip, 9 Gold mohars, one gold tabiti and one pair of Shakuntla Chain and an amount ofRs.2500/-. All the ornaments and cash was handed over to the accused. The accused then took her to village Kilian Wali and from there to Sirsa. At Sirsa she was kept in a house for two days and thereafter the accused brought her to Bhatinda Courts, for registration of marriage. At Bhatinda, the marriage could not be registered as the girl was minor at that time. Thereafter, feeling that the accused had bad intention, she after boarding a Bus reached at her house in Talwandi Sabo. Her statement was recorded by the investigating officer.
On 6.3.1989 ASI Harnek Singh along with HC Inderjit Singh and other police officials were present on the crossing of Netheha, where Dalbara Singh met them and made the statement Ex.PB which was read over and explained to him and in token of its correct, he thumb marked the same. The Sub Inspector then made an endorsement Ex.PB/1 thereon and sent the same to the Police Station through constable Santokh Singh for registration of a case, on the basis of which formal FIR Ex.PB/2 was recorded by ASI Malkiat Singh.
The Sub Inspector on return to the police station, recorded the statement of Malkiat Singh ASI along with the statements of other witnesses.
The prosecutrix was got medically examined from Dr. A.C.Bajaj, Radiologist, Civil Hospital, Bhatinda PW-1, on 12.6.1989, who after radiologically examining the prosecutrix opined as under:- Name of Epiphysis Year of susion Remarks
1. Head of humorous 15-16/1-2 years Fused.
2. Acromion 15-16/1-2 years Fused.
3. Distal radius 15-17 years. Fused. 3 Crl.A.No.394-SB of 1990.
4. Distal Ulna 15-17 years Fused.
5. Iliac Chest. 15/1-2 - 19 years. Fused.
6. Proximal Fibula 15- 16/1-2 years Fused.
7. Medial end of Clavicle 20 years Not appeared appearance epiphysis.
The investigating officer after completing all other formalities of the case, report under Section 173 of the Code of Criminal Procedure was filed in the Court of Ilaqua Magistrate who after preparing the calendera committed the case to the court of learned Sessions Judge, Bhatinda.
On appearance of the accused before the court, a prima facie case under Sections 363 and 366 of the Indian Penal Code, was made out against the accused and he was accordingly charged which was read over and explained to the accused in vernacular to which he pleaded not guilty and claimed trial.
The prosecution in support of its case, in all examined five witnesses. PW-1 Dr.A.C.Bajaj, Radiologically examined the prosecutrix for the purpose of determining her age. He gave the age of the prosecutrix as 15/1-2 years to 20 years and proved his report Ex.PA and Skia gram Ex.PA1 to PA/5.
He further stated that the age of the prosecutrix could be 19 years. There is a margin of three years error on the either side. PW-2 Mohinder Kaur is the prosecutrix who reiterated the prosecution version, fully described in the earlier part of the judgment. PW-3 Dalbara Singh is the grand father of the prosecutrix and deposed having made statement before the investigating officer on the basis of which formal first information report was recorded in the police station. He further deposed that at the time of occurrence, the age of the prosecutrix was 17 years. PW-4 Harbant Singh is the son of Dalbara Singh, i.e. uncle of the prosecutrix. He testified before the court that on 2.3.1989 at 9 PM the accused took Mohinder Kaur prosecutrix. He further deposed that Mohinder Kaur took with her 9 Gold mohars and Rs.2500/- in cash, one clip weighing about one tola, one hair pin of gold and one Tabiti and silver Pajeb. During cross-examination, 4 Crl.A.No.394-SB of 1990.
this witness denied the suggestion that Mohinder Kaur was 20 years of age.
PW-5 Harnek Singh is the investigating officer. He gave the details of the investigation conducted by him. During investigation he interrogated the accused on 26.04.1989 in the presence of Dalbara Singh and Head Constable Harbant Singh whereupon he suffered a disclosure statement Ex.PC attested by the witnesses, which led to the recovery of one box containing gold etc. on the back side of his house. In the cross-examination, he produced the statement of the prosecutrix Ex.DA, which he had recorded on return of the prosecutrix to the village. He denied the suggestion that the ornaments had been planted upon the accused.
After the prosecution evidence was closed, the accused was examined in terms of Section 313 Cr.P.C. And the entire incriminating evidence appearing against the accused were put to him, to which he denied in toto and pleaded false implication. The accused did not opt to lead any evidence in defence.
After going through the evidence of the prosecution and hearing the learned counsel for the parties, the learned Additional Sessions Judge, Bhatinda recorded the finding of conviction and sentence against the accused, as indicated above.
I have heard Shri Sandeep Chopra, Advocate, for the appellant and Shri Narinder Kapoor, learned Assistant Advocate General, Punjab. I have also carefully gone through the evidence and the other material placed on the record.
Opening the arguments, the learned counsel for the appellant contended that in the instant case, the prosecution has not been able to collect the birth entry and the School Leaving Certificate of the prosecutrix to show the age of the prosecutrix on the date of occurrence, except for ossification test conducted by Dr.A.C.Bajaj, who radiologically examined Mohinder Kaur daughter 5 Crl.A.No.394-SB of 1990.
of Kaur Singh on 6.3.1989 and determined her age between 15/1-2 years to 20 years. According to the doctor, the age of the girl could be 19 years and this is more probable because there is a margin of three years on either side. Thus, according to the learned counsel, the radiological age of the prosecutrix has been assessed as 19 years. Admittedly, the prosecutrix was not a minor on the date of occurrence. It has come in the statement of PW-3 Dalbara Singh, grand father of the prosecutrix that the age of Mohinder Kaur on the date of occurrence was 17 years. Similar is the statement of Mohinder Kaur, the prosecutrix. In the absence of any proof regarding birth entry or in the shape of school leaving certificate, the ossification test which was conducted by Dr.A.C.Bajaj, the age of the prosecutrix can be taken as 19 years on the date of occurrence.
The learned counsel for the appellant argued that when two views with respect to the age and the manner in which the occurrence take place, are appearing in the prosecution case, a view favourable to the accused can be taken and accepted by the Court. In support of his contention, he placed reliance on the Division Bench judgment of this Court reported as Om Parkash alias Mita alias Prem Vs. State of Haryana- 1997(1) RCR (Criminal) 741 and Rajinder Chandra Versus State of Chhattisgarh- 2002(1) RCR (Crl.) 587 (Supreme Court), wherein in paragraph 6 of the judgment, it was observed as under: "that if two views may be possible on the said evidence, the Court should lean in favour of holding the accused to be a juvenile in borderline cases".
The learned counsel for the appellant further contended that so far as the charge of kidnaping and abduction is concerned, the same is falsified by the the act and conduct of the prosecutrix. It has come in the evidence that prior to her leaving the house, she had collected one golden chain, 9 mohars, one golden clip and a cash of Rs.2500/-. Thus from this act and conduct of the 6 Crl.A.No.394-SB of 1990.
prosecutrix it appear that she had left the house of her own accord along with the accused in order to merry him. It has further come in the evidence of the prosecution witnesses that after she eloped with the accused, she stayed at Sirsa in a house for 2 days and she took all necessary steps to get the marriage registered in the Court at Bhatinda but as she was not possessing any document regarding her age, the marriage could not be registered. By disclosing her age as 17 years on the date of occurrence before the investigating officer by the prosecutrix as well as by Dalbara Singh, the grand father of the prosecutrix Mohinder Kaur, made an attempt to falsely implicate the accused in the present case. From the act and conduct of the prosecutrix, it is well established on the record beyond any shadow of doubt, that it was a case of consent and the prosecutrix had accompanied the accused of her own accord. It was on this account that before eloping with the accused, she collected the ornaments and cash, and took the same with her. If it would have been a case of kidnapping or abduction on the part of the accused, she would have atleast raised a raula at her house to attract the other family members and the neighbours on 2.3.1989 at 9 P.M. when the accused had entered in her house with an object to abduct her.
Further more, as per her version she thereafter stayed in a house for two days at Sirsa and then was taken to Bhatinda, there also she did not disclose this fact to any one that she had been abducted against her wishes.
The Assistant Advocate General, Punjab was unable to controvert the arguments of the learned counsel for the appellant and frankly conceded that no birth entry and school leaving certificate has been collected by the investigating officer, during the investigation of the case to prove that the prosecutrix was minor on the date of occurrence, except for ossification test.
In view of the facts and circumstances appearing in the case and fully discussed above, it is observed that the prosecution has miserably failed to 7 Crl.A.No.394-SB of 1990.
prove its case against the accused, beyond shadow of doubt. Accordingly, this appeal is accepted and the order of conviction and sentence recorded by the Additional Sessions Judge, Bhatinda is hereby set aside and the accused are acquitted.
MAY 19, 2006.
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