BALDEV SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Baldev Singh appellant bas challenged his conviction and sentence of rigorous imprisonment for 31/2 years and a fine of Rs. 500, in default further rigorous imprisonment for three months under Section 363 of the Indian Penal Code recorded by the Additional Sessions Judge, Amritsar, vide his order dated 20th January, 1983. He was also charged with an offence under Section 376 of the Indian Penal Code and tried for the same but the learned trial Judge has come to a positive finding that the prosecution bas failed to prove that the prosecutrix was below 16 years of age on the relevant date when he was alleged to have indulged in sexual intercourse with her. The learned trial Judge further found that the prosecutrix was a consenting party as far as the sexual act was concerned. Resultantly he acquitted the appellant of the charge under Section 376 of the Indian Penal Code and convicted and sentenced him as aforesaid:

(2.) The prosecution case is that Kumari Par winder Kaur was studying in a school at Boparai in the ninth class. On 31st August, 1982, she had gone to her school as usual but did not turn up. One Charanjit Kaur, a schoolmate of the prosecutrix, on inquiry by the mother of the prosecutrix, Tarlocban Kaur, told her that earlier during the day Parwinder Kaur was called out by the appellant and told that her mother bad suddenly fallen ill and bad been taken to her father at Babadur Nagar Hathar and that the appellant bad been deputed to take her with him. This story was narrated by Tarlochan Kaur to her husband Gurbax Singh P.W. when be returned home on the same day. Gurbax Singh tried, to trace his daughter and then he made report Exhibit PF to the police. On the basis of the same formal first informatiol report Exhibit PF/2 was recorded at Police Station, Patti, on 2nd September 1982. Both the prosecutrix and the appellant were apprehended by the police at 12.30 p.m. on 4th September 1982, near Chuslewar turning. At the time Kumari Parwinder Kaur was holding a bag containing an additional shirt Exhibit P2 and salwar Exhibit P1 which was taken into possession. The prosecutrix was got medically examined by Dr. Usha Dhir PW 1 on 4th September, 1982, at 6 p.m. The doctor found that prosecutrix was used to sexual intercourse, hat her vagina admitted two fingers easily and that her hymen was absent. She did not find any mark of external or internal injury on her person.

(3.) The only evidence regarding kidnapping is that of the prosecutrix herself. However, she has taken different stands at different stages. Before the police she stated that on 31 st August, 1982, when she had gone to the fields to ease herself the appellant met her and threatened her on knife-point telling her to come out of the school during the recess and join him. She also stated before the police tbat while she was present in her class the appellant gave a signal to her to come out of the school and that she left her books there but took a bag containing a suit, a pair of earrings and a ring with her and accompanied the appellant. During the trial, however, she denied having made the above statement and stated that during the recess she went out of the school to take water at the tap where a girl friend of hers handed over a wrapper to her containing a suit and that she accompanied the appellant on being threatened with a knife. Another version has been given by the father of the prosecutrix in the first information report wherein he stated that Charanjit Kaur, a class-mate of the prosecutrix, had told the mother of the prosecutrix tbat she had been taken away by the appellant on the pretext that her mother was ill.