Criminal Appeal No.69-SB of 1998 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.69-SB of 1998
Date of decision : 2.12.2008
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Gursewak Singh and others
.....Appellants
Versus
State of Haryana ...Respondent
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CORAM : HON'BLE MR. JUSTICE S. D. ANAND
Present: Mr. H.S.Gill,Senior Advocate with
Mr. Vivek Goyal, Advocate for the appellants.
Mr. S.S.Mor, Senior Deputy Advocate General, Haryana
S. D. ANAND, J.
Appellant Gursewak Singh died during the pendency of
appeal. The appeal filed by him shall stand dismissed as abated. The
other two appellants Mahender Kaur and Sukhwinder Singh ( alongwith
deceased appellant) were convicted and sentenced by the learned Trial
Judge as under:-
Mahender Kaur and Gursewak Singh
“Under Section 372/34 To undergo R.I. for a period of seven
IPC years each and also pay a fine of
Rs.500/- each. In default of payment of
fine the defaulting accused shall
undergo further R.I. for a period of two
months.”
Sukhvinder Singh @ Leela
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“Under Section 376 IPC To undergo R.I. for a period of seven
years and also pay a fine of Rs.500/-. In
default of payment of fine he shall
undergo further R.I. for a period of two
months.”
The prosecution allegations upheld, at the trial, were as
under:-
The prosecutrix was born to DW-3 Mahender Kaur from the
lions of her husband Partap Singh (not examined at the trial). The
prosecutrix was the youngest of the siblings. Her mother Mahender Kaur
had illicit relation with appellant Gursewak Singh because her own
husband was a liquor addict and a vagabond type of person who would be
an infrequent visitor to his own house. In pursuance of a conspiracy,
appellants Gursewak Singh and Mahender kaur sold the prosecutrix away
to appellant Sukhvinder Singh for a consideration of Rs.40,000/-. The
prosecutrix was repeatedly raped by Sukhvinder Singh who was much
older to her in age and who had taken her to his native place in the State of
Rajasthan. Ultimately, the prosecutrix was able to escape from the
clutches of the appellant Sukhvinder Singh. She came over to her sister’s
house at village Rohan, from where she was taken to the police station by
her sister Sukhpal Kaur and latter’s husband. The offence was notified to
the police.
PW-1 Inderjit Singh, Draftsman, had prepared the scaled site
plan Ex. PA on 15.12.1995 on the pointing of the prosecutrix.
PW-2 Raj Kumar, a Drawing Teacher posted at Government
Girls Middle School, Baraguda, made a record-based statement in order to
prove school leaving certificate Ex. PB pertaining to the prosecutrix. He
also testified that the date of birth of the prosecutrix, as recorded in the
admission register, is 4.1.1980.
PW-3 Constable Indraj tendered his formal affidavit Ex. PD
Criminal Appeal No.69-SB of 1998 -3-
into defence evidence.
PW-4 Dr. Vinita Jhuthra had medico-legally examined the
prosecutrix and observed as under:-
“Her general condition was fair, well built, well nourished,
breast, axillary hair, pubic hair well developed. D.L.M.P. 15
days back. Age of menarche 2 -1/2 years back. No external
mark of injury over any part of the body. On local examination:
There was no external mark of injury or stain on parineal
region and medial aspect of thigh. Two vaginal swabs were
taken from posterior fornix and smear slides prepared. Old
healed tags of hymen were present. Vagina admits two
fingers easily. Uterus was anti-verted normal size.
Handed over to police: 1. Sealed parcel bearing four seals
containing two smeared slides and two vaginal swabs in a
sealed vial. Sealed envelope bearing four seals containing
copy of M.L.R., police papers number 1 to 2 duly signed by
me, forwarding latter with sample seal. Carbon copy of M.L.R.
Is Ex.PE. It is in my hand and signed by me. Police request
for medico legal examination is Ex.PE/1 which was forwarded
by Medical Superintendent whose signatures identify. “
For the purpose of determination of age, the prosecutrix was
referred to the Radiologist.
PW-5 Dr. R.K.Bishnoi conducted radiological examination of
the prosecutrix and gave his report Ex. PF.
PW-6 is the prosecutrix.
PW-7 Dr. R.P.Dahiya had medico-legally examined appellant
Sukhvinder Singh on 5.12.1999 and opined that there was nothing
abnormal which could prevent him from performing sexual intercourse.
Criminal Appeal No.69-SB of 1998 -4-
PW-8 Charanjit Singh is real brother of the prosecutrix.
PW-9 Sukhpal Kaur is the real sister of the prosecutrix.
PW-10 Gurjant Singh is husband of PW-9 Sukhpal Kaur.
PW-11 SI Balbir Singh had investigated this case.
PW-12 Beebo is own sister of father of the prosecutrix.
Ex. PM is the FSL report.
Appellant Sukhvinder Singh raised the following plea in the
course of his statement under Section 313 Cr.P.C.:-
“Kiranjit Kaur was aged about 18/19 years and she was
married with me with the consent of her parents and is my
legally wedded wife as she also consented this marriage. I am
innocent and has been falsely involved in this case at the
instance of her parents, Gurjant Singh and Sukhpal Kaur as
Gurjant Singh wanted to marry Kiranjit Kaur with his brother.”
Appellant Mahender Kaur, in course of the statement under
Section 313 Cr.P.C., averred as under:-
“I am innocent. Marriage of my daughter Kiranjit Kaur was
done with Sukhvinder Singh as per her wishes and as per the
wishes of other family members. Kiranjit Kaur was aged about
19/20 years but I have been falsely implicated in this case
lateron at the instance of Charanjit Singh and Gurjant Singh as
Gurjant Singh wanted to marry Kiranjit Kaur with his brother
for which I did not agree.”
DW-1 Kulwant Singh, a village mate of appellant Sukhvinder
Singh, deposed to the factum of latter’s marriage with the prosecutrix in the
year 1995.
DW-2 Thana Singh also gave testimony to the same effect.
DW-3 appellant Mahender Kaur entered the witness box, as
Criminal Appeal No.69-SB of 1998 -5-
her own witness, as DW-3.
I have heard Shri H.S.Gill, learned Senior Counsel and Mr.
S.S.Mor, learned Senior Deputy Advocate General, Haryana and have
carefully gone through the record.
Learned Senior Counsel, appearing on behalf of the
appellants, argues that the entire prosecution presentation is false
inasmuch as there is adequate material on the file to prove that the
prosecutrix had been married to appellant Sukhvinder Singh and she
became estranged only at a subsequent point of time.
There is force in the plea. It would be apparent from a perusal
of the statement of none else or other than the prosecutrix herself that the
marriage between her and appellant Sukhvinder singh had indeed taken
place. In the course of the cross-examination, she conceded that
photogrpahs Ex. D2 to Ex. D10 were taken at the time of their marriage.
That photographs Ex. D11 to Ex. D18 were also taken at that time and
that ceremony of Anand Karaj was performed at the time of marriage,
(which was also attended by her maternal uncle Surjit Singh alongwith 8-
10 persons from the village, was also stated by her. Though she conceded
that five persons came over as Baratis in a jeep, she had no idea about
whether any tent installed for the marriage ceremony or not and she also
had no idea about whether “any meals, cold drink, tea etc. were provided
to the Barati or not.” She, however, conceded that she remained with the
appellant Sukhvinder Singh for about one month at Jandwala. She also
conceded, as correct, a suggestion that appellant Sukhvinder Singh used
to leave for the fields in the morning and would come home in the evening.
It is also in her statement that after the marriage, her father fetched her
from her matrimonial house to her parental house and that it was appellant
Sukhvider Singh who, thereafter, brought her from her parental house to
Criminal Appeal No.69-SB of 1998 -6-
her matrimonial house. It is also in her statement that her stay at her
parental house for a period of 8 days, before she was fetched by appellant
Sukhvinder Singh with whom she stayed thereafter for a period of about 5-
6 days.
It would be crystal clear from a perusal of the testimony of the
prosecutrix that she conceded having entered into a marriage with
appellant Sukhvinder Singh and further that the marriage ceremony was
performed by Anand Karaj.
It is apparent from the record that her brother and sister did
not attend her marriage. That part of her statement is to be appreciated in
the light of the statement made by her brother Charanjit Singh PW-8 to the
effect that “Ninda co-villager is present in photograph Ex.D17. My father is
present in photograph Ex.D16. My maternal uncle is present in
photograph Ex.D3. I am also present in photograph Ex.D5. This
photograph was not taken at the time of marriage but was taken later on.
This photograph D5 relates to the occasion when Sukhvinder Singh had
come to see my sister about 20/25 days earlier to the alleged marriage.”
That Charajit Singh PW-8 is out to support the prosecution
presentation even at the cost of falsehood is apparent from his statement
to the effect that prosecutrix never visited her parental house after her
marriage with appellant Sukhvinder Singh. It may be pointed out, even at
the cost of repetition, that it had been conceded by none else or other than
by the prosecutrix herself that she was fetched from her matrimonial house
her father and it was appellant Sukhvinder Singh who fetched her to the
matrimonial house from her parental house thereafter. The facts available
on the record are further to be appreciated in the light of the statement of
the Investigating Officer to the effect that “I had enquired about the
marriage of Kiranjit Kaur who had told that marriage was taken place about
Criminal Appeal No.69-SB of 1998 -7-
1/1-1/4 year ago. During this period of 1/1-1/4 year none complained me
about the marriage of Kiranjit Kaur. ”
Interestingly enough, appellant Mehnder Kaur entered the
witness box, as her own witness, as DW-3 and testified that the prosecutrix
(who is 3rd in order of seniority on point of age) was married to appellant
Sukhvinder Singh with the consent of her parents and other relations. She
further stated that the appellant is presently residing with her elder sister
Sukhpal Kaur in village Rohan who wanted the prosecutrix to be married to
a younger brother of her husband. That proposal was not acceptable to
appellant Mahender Kaur. She testified that it was on account of that
annoyance that Sukhpal Kaur falsely implicated her in this case. It is
evident from the prosecution presentation that there was a precise plea
that father of the prosecutrix was a big boozer and lofar type of individual
and further that appellant Mahender kaur had illicit relation with (deceased)
Gursewak Singh. When appellant Mahender Kaur stepped into the
witness box and asserted the validity of the marriage of the prosecutrix
with appellant Sukhvinder singh, the field was open to the members of
complainant party to put it to her that she was having illicit relations with
Gursewak Singh and that she had sold the prosecutrix off to Sukhvinder
Singh for a consideration of Rs.40,000/-. No such facts were indicated to
her in the cross examination. The only question put to her in the course of
her cross-examination was a suggestion that she has deposed falsely in
order to obtain exoneration from conviction. She, of course, denied the
suggestion as incorrect. If there was even an iota of truth in the grievance
of the complainant party, there is no reason why it (basis of grievance)
would not have been put to DW-3 Mahender kaur in the course of cross-
examination.
In the light of the fore-going discussion, it is apparent that
Criminal Appeal No.69-SB of 1998 -8-
prosecutrix was married to appellant Sukhvinder Singh, that they co-
habited as husband and wife and that she became estranged thereafter
only. The prosecution presentation is, thus, not acceptable. The finding of
conviction recorded by the learned Trial Judge cannot be affirmed. The
appeal shall stand allowed. The appellants shall stand acquitted of the
charge.
December 02, 2008 (S. D. ANAND) Pka JUDGE