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1999 Supreme(P&H) 1400
PUNJAB AND HARYANA HIGH COURT
T.H.B. Chalaqpathi, J.
Harpool Singh - Appellants
Versus
State of Punjab - Respondents
Criminal Appeal Nos. 666-SB of 1987 and 9-SB of 1988.
Decided On : 19 November, 1999
For the Appellant :Mr. H.S. Bhullar, Advocate.
For the Respondent: Mr. G.S. Gill, D.A.G., Punjab.
To attract Section 363 Indian Penal Code, the girls must be less than 18 years of age. The burden of proof lies on the prosecution to prove the actual age of the victims stated to have been kept in unlawful custody.
Headnote:
KIDNAPPING - SECTION 363 INDIAN PENAL CODE - AGE OF VICTIMS - BURDEN OF PROOF - EVIDENCE - SUFFICIENCY - INTERPRETATION OF SECTION 363 INDIAN PENAL CODE - REQUIREMENT OF PROOF OF AGE OF VICTIMS BELOW 18 YEARS - FAILURE OF PROSECUTION TO ESTABLISH AGE OF VICTIMS - ACQUITTAL OF ACCUSED.
Fact of the Case:
Two accused were convicted for kidnapping and raping two girls. The girls were allegedly taken to different places and subjected to sexual intercourse. The accused challenged the conviction and sentence.
Finding of the Court:
The court found that the prosecution failed to prove that the girls were below the age of 18 years at the time of the alleged kidnapping and rape. The court also found that the girls went with the accused on their own and there was no resistance on their part.
Issues: 1. Whether the prosecution proved that the girls were below the age of 18 years at the time of the alleged kidnapping and rape? 2. Whether the girls went with the accused on their own or were they taken forcibly?
Ratio Decidendi: 1. The court held that the prosecution failed to prove that the girls were below the age of 18 years at the time of the alleged kidnapping and rape. The court relied on the evidence of the doctor who examined the girls, which showed that both the girls were habituated to sexual intercourse. The court also relied on the photographs marked in the case, which showed that both the girls fell in love with the accused and went along with them of their own. 2. The court held that the girls went with the accused on their own and there was no resistance on their part. The court relied on the evidence of the girls, who stated that they went with the accused because they were offered a lift in their car.
Final Decision: The court allowed both the appeals, set aside the conviction and sentence imposed on the accused-appellants by the learned Sessions Judge, Hoshiarpur, and acquitted them of the charges framed against them.
T.H.B. Chalapathi, J. - These appeals are directed against the conviction and sentences imposed by the learned Additional Sessions Judge Hoshiarpur in Sessions Case No. 74 of 1987 dated 9.12.1987.
2. The appellants in both the appeals along with one Jit Singh were prosecuted for the offences under Section 363, 366 and 376 read with Section 341 Indian Penal Code
3. The case of the prosecution is that one Neelam Rani daughter of Gurdip Singh and one Rachhpal Kaur daughter of Mohan Singh were studying in the 11th Class in the Goswami Ganesh Dutt S.D. College, Hariana. On 21.5.1987, it was their last paper for the final examination. At about 12 noon when these girls alongwith their friends came from their college to the Bus Stand, the accused Rajinder Singh alias Raju and Jit Singh were standing behind a car belonging to Raju. Both the accused were also the residents of village of Neelam Rani. Accused Jit Singh told theres girls that they can sit in the car of Raju who would drop them at their houses as he was going to Hoshiarpur. Both the girls accepted the offer given by the accused and sat in the car. Thereafter Rajinder Singh, A-1 started driving the car towards Hoshiarpur. Without dropping them at their village, Rajinder Singh took the car to Tanda Bypass Hoshiarpur and parked the car there. Thereafter Harpool Singh, A-2 joined them. After that they drove the car towards Jalandhar road till they reached the Cold Storage of Mandiala near Nasrala. The building of the Cold Storage was almost deserted. Both the girls were taken by accused No. 1 and 2 inside the machinery room where two cots were lying. It was about 4.30 P.M. at that time. Both the girls and the accused spent the night of 21.5.1987 in that room. While the 1st accused Rajinder Singh forcibly committed the rape on Neelam Rani, the 2nd accused Harphool Singh committed rape on Rachhpal Kaur during that night. Again on the next date, the girls were kept locked during the day time in that room and on the night of 22.5.1987 both the accused again committed rape on the girls. On 23.5.1987 the accused brought the girls to the Bus Stand, Hoshiarpur where Rajinder Singh accused left the girls and Harphool Singh at the Bus Stand and went away in his car. Thereafter Harphool Singh took these girls and dropped them at Rama Mandi at Jalandhar. From there they went to village Dhanewalia near Jalandhar at the house of sister of accused No. 2. They spent night there and on the next date i.e. 24.5.1987 accused No. 2 took the girls to Railway Station, Jalandhar and then they boarded the train at 3.30 P.M. for Delhi where they spent two nights of 25.5.1987 and 26.5.1987 at the house of a person whom Harphool Singh called his maternal uncle. Thereafter they came back to Jalandhar from Delhi and stayed at the house of Harphool Singhs sister at village Dhanewalia on the night of 27.5.1987. On 28.5.1987, Harphool Singh accused brought the girls to the Bus Stand at Rama Mandi where accused No. 1 met them in his car and then all the four travelled in the car towards Hoshiarpur. On the way the Police Party stopped the car. When Harphool Singh tried to run away, he was apprehended by the Police. Both the accused were arrested by the Police.
4. It is also on record that because of missing the girls from the scene, the fathers of the girls reported the matter to the Police. When no action was taken, Gurdip Singh, father of Neelam Rani, made an application to the Senior Superintendent of Police, Hoshiarpur stating that they came to know that the accused kidnapped the girls in Car No. 1122 and the girls were forced for illicit intercourse.
5. After the recovery of the girls the Sub Inspector of Police recorded their statements and got them medically examined by Doctor Jasbir Kanwar, who opined that they were subjected to sexual intercourse. After completion of investigation, a charge-sheet was filed against all the three accused.
6. On the basis of the material placed before him, the lear
