BAHADUR SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) This judgment of mine shall dispose of the Criminal Appeal filed by accused Raghbir Singh challenging his conviction under Section 366 IPC and the revision petition filed by complainant Bahadur Singh against the acquittal of the accused under Sec.376 IPC vide judgment dated 23.8.1994 passed by Additional Sessions Judge, Patiala. On 19.10.1991, at about 6 a. m. Prosecutrix (name not disclosed) had gone to attend the call of nature but she did not return. Crl. A. No.386-SB of 1994 -2-Despite efforts, she could not be traced. However, she was recovered on 6.11.1991 and she was produced by Gurbax Singh, uncle of Harmesh Kaur before police. Then on the statement made before the police that the accused had committed rape upon her at various places, FIR No.65 dated 24.10.1991 was registered against him. She also made a statement under Sec.164 of cr. P. C. before the Judicial Magistrate Ist Class, Rajpura regarding rape committed upon her.

(2.) On completion of investigation, challan against the accused was presented in Court. He was charged accordingly. In order to support the case, Prosecution examined PW1 Dr. Ram Kumar, PW2 Dr. Anita Sood, pw3 Harmesh Kaur, PW4 Bahadur Singh, PW5 Mehar Chand Sharma, pw6 Gurbax Singh, PW7 Sh. R. C. Sachdeva (S. D. J. M.), PW8 Gulzara Ram i. O. and PW9 HC Kuldip Singh. When examined under Sec.313 Cr. P. C. the accused denied the circumstances appearing against him and pleaded that the prosecutrix was in love with him and was writing letters to him. Letters Mark A and B were written by her. She had been asking him through these letters to take her away. He had turned down the request of the prosecutrix to accept her in marriage. On his refusal, Bahadur Singh, father of the prosecutrix and her other relations felt offended and implicated him in this case. The trial Court while holding the prosecutrix as consenting party, acquitted the accused under Sec.376 IPC but while observing that she was less than 18 years of the age and had been kidnapped by the accused from the lawful guardianship of her father Bahadur Singh, hold him guilty of the offence under Sec.366 IPC and sentenced him accordingly. The date of occurrence is stated to be 19.10.1991, the crl. A. No.386-SB of 1994 -3-

(3.) Prosecutrix was recovered by the police from accused Raghbir Singh on 6.11.1991 and the FIR was registered on 24.10.1991. It has come in evidence that first of all, the accused committed rape upon the prosecutrix in the room on the tubewell and thereafter, he took her on a tractor by threatening to kill her, to village Barwala from there they went to Yamuna nagar and other places. They had visited Gurdwara Sis Ganj Delhi, Hazur sahib, Sri Harvinder Sahib Amritsar, Tarn Taran, Goindwal Sahib and then to Gurdwara Dukh Niwaran Sahib Patiala. During this period of abduction, she never made any complaint at any place to any public man or official about her illegal custody at the aforesaid places. She also did not raise any hue and cry in the buses in which they travelled, therefore, certainly she was a consenting party. The revision petitioner has failed to show any evidence if she was below 16 years of age at the time of occurrence or that the rape was committed upon her by force. Therefore, I do not find any reason to hold that the accused was guilty of rape. Now coming to the other offence under Sec.366 IPC, overwhelming evidence has been led by the prosecution that she was born on 19.9.1974 and at the time of occurrence, she was 17 years and 2 months. Besides the testimony of her father, the date of birth has been proved by examining PW5 Mehar Chand, who proved the admission register of government Primary School, Ibrahimpur. As such, it was rightly held by the lower Courts that she was below 18 years of age at the time of occurrence.