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1996 Supreme(P&H) 1062
PUNJAB & HARYANA HIGH COURT
P.K.Jain, J.
Kala Singh
Versus
State Of Punjab
Criminal Appeal No. 348 of 1995,
Decided On : JULY 23, 1996
The prosecution must prove beyond reasonable doubt all the essential elements of the offence charged, including the age of the prosecutrix in cases involving offences under Sections 363 and 366 of the Indian Penal Code. The court should not rely solely on the school leaving certificate to determine the age of the prosecutrix, but should also consider other evidence, such as medical evidence and the testimony of the prosecutrix's parents.
Headnote:
CRIMINAL APPEAL - CONVICTION AND SENTENCE FOR OFFENCES UNDER SECTIONS 452 AND 366 OF THE INDIAN PENAL CODE - CHALLENGE - AGE OF PROSECUTRIX - SCHOOL LEAVING CERTIFICATE - MEDICAL EVIDENCE - CREDIBILITY OF PROSECUTRIX - INDEPENDENT CORROBORATION - WITHHOLDING OF BEST EVIDENCE - EFFECT - ACQUITTAL OF APPELLANTS FOR OFFENCE UNDER SECTION 376 OF THE INDIAN PENAL CODE - RELEVANCE.
Fact of the Case:
Appellants were convicted and sentenced for offences under Sections 452 and 366 of the Indian Penal Code for criminal trespass and kidnapping of the prosecutrix. The prosecution alleged that the appellants forcibly took away the prosecutrix from her house. The appellants challenged the conviction and sentence, arguing that the prosecution failed to prove the age of the prosecutrix, the testimony of the prosecutrix was not credible, and there was no independent corroboration of the incident.
Finding of the Court:
The court found that the prosecution failed to prove beyond reasonable doubt that the appellants committed criminal trespass and kidnapped or abducted the prosecutrix. The court held that the trial court erred in relying solely on the school leaving certificate to determine the age of the prosecutrix, as the prosecution failed to collect the best evidence regarding her age and failed to examine her parents. The court also noted that the medical evidence suggested that the prosecutrix was habitual to sexual intercourse, which cast doubt on her credibility. Additionally, the court found that the prosecution failed to produce and examine an independent witness who could corroborate the incident.
Issues: 1. Whether the prosecution proved beyond reasonable doubt that the appellants committed criminal trespass and kidnapped or abducted the prosecutrix? 2. Whether the trial court erred in relying solely on the school leaving certificate to determine the age of the prosecutrix? 3. Whether the medical evidence suggested that the prosecutrix was habitual to sexual intercourse, which cast doubt on her credibility? 4. Whether the prosecution failed to produce and examine an independent witness who could corroborate the incident?
Ratio Decidendi: 1. The prosecution failed to prove beyond reasonable doubt that the appellants committed criminal trespass and kidnapped or abducted the prosecutrix. 2. The trial court erred in relying solely on the school leaving certificate to determine the age of the prosecutrix, as the prosecution failed to collect the best evidence regarding her age and failed to examine her parents. 3. The medical evidence suggested that the prosecutrix was habitual to sexual intercourse, which cast doubt on her credibility. 4. The prosecution failed to produce and examine an independent witness who could corroborate the incident.
Final Decision: The court allowed the appeal, set aside the conviction and sentence of the appellants, and acquitted them of the charges under Sections 452 and 366 of the Indian Penal Code.
1. This appeal is directed against the judgment/order dated 6-6-1995 passed by the Additional Sessions Judge, Patiala whereby the appellants have been convicted for the offences under Sections 452/366 of the Indian Penal Code and each of the two appellants has been sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1000, in default of payment of fine to undergo further rigorous imprisonment for one month for the offence under Section 452 of the Indian Penal Code and to undergo rigorous imprisonment for five years and to pay a fine of Rs.2000/- and in default of payment of fine to undergo rigorous imprisonment for three months for the offence under Section 366 of the Indian Penal Code. The substantive sentences of imprisonment have been ordered to run concurrently.
2. The facts, necessary for the disposal of this appeal and which can be gathered from the record of the trial court are that the prosecutrix Rajwant Kaur was engaged with appellant Kala Singh alias Daljit Singh about 1 1/2 years prior to the day of the occurrence. Appellant Nishan Singh is the brother-in-law of Kala Singh. However, this engagement was called off mutually due to certain reasons. One month prior to the date of the occurrence, Rajwant Kaur was engaged to one Angrej Singh.
3. On 22-3-1990, certain members of the family of the prosecutix had gone to village Kakera to attend some marriage. During the night of 22nd and 23rd March, 1990 the prosecutrix and her brother Major Singh were sleeping in the verandah of their house. Lights were on. At about 1 a.m. one Maruti van stopped near the gate of their house. Both the appellants alighted from the van, entered the house and forcibly took away the prosecutrix Rajwant Kaur with them in spite of the hue and cry raised by her. Major Singh also tried to rescue her but in vain. On hearing the noise, Telu Ram, a resident of house opposite, also came in the street but of no consequence. By the side of the Maruti van bearing No. PB-ll-8526 driver Darshan Singh son of Mangal Singh of Majri Samanawas standing who was already known to Major Singh. The appellants took away Rajwant Kaur in the said van being driven by Darshan Singh. On 24-3-1990, Major Singh lodged D.D.R. entry No.33.at Police Station Samana on the basis of which First Information Report Ex. PM was recorded on 27-3-1990.
4. On 31-3-1990, the prosecutrix along with appellant Kala Singh alias Daljit Singh was apprehended by Assistant Sub-Inspector Darbara Singh, Investigating Officer on the pointing out of Sarwan Singh, brother-in-law of Major Singh. Statement of the prosecutrix under Section 161, Cr.P.C. was recorded. She was medically examined from the Civil Hospital. Both the appellants were arrested and they were also got medically examined. The parcel containing the swabs was sent to the Chemical Examiner and the report Ex.PQ was received. During investigating, rough site plan of the spot of occurrence was prepared and the school Leaving Certificate Ex. P.3 in respect of the age of the prosecutrix was taken into possession. After completing the investigation a charge sheet was filed against both the appellants.
5. A charge under Section 452/366/376 of the Indian Penal Code was framed against both the appellants to which they pleaded not guilty and claimed trial.
6. In support of its case, the prosecution examined ten witnesses. Assistant Sub Inspector Gurdial Singh (PW 1) and Constable Balbir Singh (P.W. 2) merely tendered their respective affidavits Ex.PA and Ex.PB as their evidence was of formal nature. Doctor Alkesh Arora (PW. 3) had examined the prosecutrix on 31-3-1990 at 5.10 p.m. in Civil Hospital, Samana. She has proved Ex.PC the carbon copy of the medico legal report of the prosecutrix prepared by her. She had also referred the prosecutrix to Civil Hospital Nabha for X-rays to ascertain her age. Rajwant Kaur (PW 4) is the prosecutrix. Major Singh (PW 6) is her brother on whose statement case was registere
