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Gurtej Singh vs State Of Punjab on 11 July, 2018

CRA-S-515-SB-2010 -1-

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH

CRA-S-515-SB-2010 (OM)
Date of Decision: July 11, 2018

Gurtej Singh

…Appellant

Versus

State of Punjab

…Respondent

CORAM:- HON’BLE MS. JUSTICE JAISHREE THAKUR

Present:- Ms. Manpreet Kaur, Advocate
for the appellant.

Ms. Seena Mand, DAG Punjab.

********

JAISHREE THAKUR, J. (Oral)

1. The instant criminal appeal has been filed against the

judgment/order dated 18.02.2010 passed by the Additional Sessions Judge,

Sangrur whereby, the appellant-accused herein has been convicted and

sentenced to undergo rigorous imprisonment for a period of five years as

well as to pay fine of ` 3000/- under Section 363 of Indian Penal Code in

case FIR No.7 dated 26.01.2009, registered under Sections 366-A, 376, 363

of Indian Penal Code at Police Station Dhuri.

2. In brief, the facts of the case are that complainant-Magher

Singh made a complaint to the effect that he is an agriculturist and has two

daughters and one son. His eldest daughter Amandeep Kaur was studying in

10+1 class in Arya School, Dhuri. Accused Gurtej Singh used to take

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tuition classes for the complainant’s daughter and due to this reason, he used

to visit their house. On 25.01.2009, Gurtej Singh came to their house on

motorcycle and seduced his daughter and took her along with him on his

motorcycle. They searched for their daughter, but could not find her. On

the basis of aforesaid complaint, the instant case FIR came to be registered.

During the course of investigation, site plan was prepared, statements of the

witnesses were recorded, daughter of the complainant was got recovered

and her statement under Section 164 Cr.P.C. was recorded. Her custody

was handed over to her relatives, accused was also arrested and his medical

examination was got conducted and after completing the investigation,

challan was presented against the accused.

3. Copies of the final report were supplied to the accused free of

costs and on finding a prima case under sections 366-A, 376, 363 of Indian

Penal Code, he was charge-sheeted accordingly, to which he pleaded not

guilty and claimed trial.

4. In order to prove its case, the prosecution has examined

Amandeep Kaur as PW1, Dr. Sukhwinder Kaur as PW2, Magher Singh as

PW3, HC Gurmail Singh as PW4, HC Ram Kumar as PW5, Mangal Singh

as PW6, ASI Nirmal Singh as PW7, Dr. Sukhbir Singh as PW8, HC

Pinderpal Singh as PW9, Kashmir Singh, Draftsman as PW10 and Amritpal

Singh as PW11.

5. Thereafter, prosecution evidence was closed and statement of

the accused was recorded under Section 313 Cr.P.C. in which, accused

denied all the allegations levelled against him and pleaded his false

implication in the case. In his defence,accused examined Sunil Gautam as

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DW1, Dr. Inderjit Singh as DW2 and thereafter, accused closed the

evidence.

6. After hearing both the sides, the learned trial court acquitted the

appellant/accused for the charges under Section 366-A, 376 of Indian Penal

Code, however, convicted and sentenced the appellant/accused under

Section 363 of Indian Penal Code. Being aggrieved against the said

conviction and sentence, the instant criminal appeal has been filed.

7. Learned counsel appearing on behalf of the appellant does not

dispute the date of birth of the prosecutrix, however, points out that there

are material contradictions in the statement of the witnesses. It is argued that

allegation of rape has not been proved on record. It is submitted that on

29.01.2009, the prosecutrix was ordered to be sent to the Nari Niketan,

Jalandhar, however, she was not sent to Nari Niketan by the Investigating

Officer on that day due to late hours and she was kept in the Police Station

and on the next day, the statement of the prosecutrix was got recorded

before Illaqa Magistrate, which shows that the prosecutrix was tutored by

the police and her parents because earlier she was not ready to accompany

her parents. It is also contended that before the Illaqa Magistrate, the

prosecutrix has suffered a statement that she wanted to marry the

appellant/accused and she would be ready to accompany her parents on the

condition that they must give in writing that they would not pressurize her

and on attaining her majority, they would marry her with the appellant. It is

argued that the trial court acquitted the appellant herein for the offences

punishable under Sections 376, 366-A of Indian Penal Code, but wrongly

held the appellant guilty under Section 366 of Indian Penal Code. Leaned

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counsel for the appellant also read the evidence of DW1 Sunil Gautam and

DW2 Dr. Inderjit Singh, in order to stress the point that the prosecutrix has

deposed falsely in the court that she was taken to Barnala and then to

Bathinda, whereas, DW1 clearly proved on record that both the prosecutrix

and the appellant/accused had actually stayed in his Dharamshala on

26.01.2009 in Rohtak where the prosecutrix made an entry in her own

handwriting that she is staying in the room with her own wishes with the

accused and the said handwriting has been duly proved by DW2 Dr. Inderjit

Singh. Learned counsel for the appellant concluded her arguments with the

prayer that the appellant/accused is also liable to be acquitted under Section

363 of Indian Penal Code. In support of her arguments, learned counsel

relies upon judgments of the Apex Court in S. Varadarajan vs. State of

Madras, 1965 AIR (SC) 942 and of this High Court in Narinder vs. State

of Haryana, 2003(3) RCR (Criminal) 721.

8. Per contra, learned counsel appearing on behalf of the

respondent-State argues that the judgment passed by the trial court is well

reasoned and no ground is made out to interfere with the same.

9. I have heard learned counsel for the parties and with their

assistance also gone through the record of the trial court.

10. In the instant case, the appellant/accused was booked under

Sections 363, 366-A, 376 of Indian Penal Code by the police. He was

acquitted of the charges framed under Sections 376, 366-A of Indian Penal

Code by the trial court, while observing as under;-

“27. Whereas, the question arise, when she had gone on
motor cycle to the market and accused instead of taking
her to the market, took her to Barnala and from Barnala

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took her to Bathinda in a train, she could have easily raise
alarm or ask the persons moving on the road or present at
the Railway Statin for help, but she did not. Rather, she
alleged that she was under constant threat of accused, who
was holding a knife in his hand. Whereas, it is admitted
fact that on 29.1.2009, she came in train to Dhuri.
Thereafter, she was produced before Duty Magistrate,
Malerkotla where she did not suffer any statement, so she
was ordered to be taken to Nari Niketan, Jalandhar and as
per prosecutrix, she was taken to Nari Niketan, Jalandhar.
However, PW7 ASI Nirmal Singh, Investigating Officer of
the case deposed that since, it was late hours, so
prosecutrix was not taken to Nari Niketan, Jalandhar,
rather she was kept in the Police Station under the
supervision of lady constable. So, thereafter, brain of
prosecutrix was washed and tutored and then she started
alleging that whatever has been alleged by her was under
constant threat. In her cross-examination, she admitted
that she was produced before Duty Magistrate, Malerkotla
where she refused to suffer statement or to accompany her
parents, but admitted that she had suffered statement
before SDJM, Dhuri that she want to marry with accused
Gurtej Singh and further admitted it correct that her
parents made a statement to the effect that they will not
pressurize her to marry with any one and will not give
beatings to her and further admitted it correct that on
suffering the said statement by her parents, she became
ready to accompany her parents. It means, she intended to
marry Gurtej Singh, but due to fear of her parents that they
may not refuse to marry her with Gurtej Singh or she was
not given beatings, so she refused to accompany her
parents. It means, she was consenting party. Therefore,
statement of prosecutrix cannot be believed at all as she
has backed out from her earlier statement, rather deposed
falsely that she was taken to Nari Niketan, Jalandhar
where she did not discuss or shared her grievances with
her colleagues or ladies. Whereas, as per statement of
Investigating Officer, she was not taken to Nari Niketan,
Jalandhar due to late hours, rather she was kept in the
Police Station under the supervision of Lady Constable.

28. Further more, even version of the police is not
believable as PW5 HC Ram Kumar has deposed that on
13.2.2009, he along with ASI Nirmal singh and other
police officials went to village in connection with
investigation of present case and in his presence, ASI
Nirmal Singh arrested accused Gurtej Singh. Whereas,
ASI Nirmal Singh deposed that accused Gurtej Singh
already surrendered before the court, so he obtained
production warrant from the court, then formally arrested

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him. It means, HC Ram Kumar is not believable and no
reliance can be placed upon him.

29. Moreover, accused in defence examined DW1
Sunil Gautam, who alleged that Gurtej Singh along with
Amandeep Kaur stayed in his Dharamshala on 26.1.2009
at Rohtak, where Amandeep Kaur made an entry in her
own hand in the register that she is staying in the room
with her own wishes with Gurtej Singh. Although,
prosecutrix refused to admit her writing and signatures
made there in the register against the entry, but said
writing and signatures have been got compared by defence
counsel with her standard handwriting taken in the court
and signatures from Dr. Inderjit Singh, Handwriting and
Finger Print Expert, who after comparison given his
opinion that the disputed and standard
signatures/handwriting are of the one and the same person
and Dr. Inderjit Singh, when appeared in the witness box
as DW2 proved his report Ex.D.2, besides proving
photographs D.2 to Ex.D.14, negatives thereof Ex.D.15 to
Ex.D.27. Although, DW2 Dr. Inderjit Singh was subjected
to lengthy cross-examination, but noting could be elicited
from his mouth falsifying his report in any manner.
Moreover, record produced by DW1 Sunil Gautam was
maintained in ordinary course of business, so the same
cannot be doubted. So, as such, it is proved that they had
not gone to Barnala, Bathinda but had gone to Rohtak
along with accused Gurtej Singh and the entire story of
going to Barnala and Bathinda has been concocted by the
prosecution. Moreover, it was incumbent upon the
Investigating Officer to get those rooms at Bathinda and
Barnala, who prosecutrix alleged to have stayed to be
inspected and collect the evidence to the effect whether
from those rooms, one could escape or raise alarm, but he
did not, meaning thereby, she was not taken to Barnala or
Bathinda, so it further falsify the story of the prosecution.

30. No doubt, in medical report and chemical
examiner report, it has been proved that rape has been
committed on prosecutrix, but by any stretch of
imagination, it could be said to be committed with force or
constant threat, as discussed above. Rather, from the entire
evidence led by the prosecution, it is proved that
intercourse has been committed with prosecutrix with her
consent. Prosecutrix herself has alleged that her age is less
than 18 years. That her date of birth is 3.2.1991, which is
also proved by PW6 Mangal Singh, Sr. Asstt. Punjab
School Education Board, Mohali, which has not been
rebutted by accused. It means, on 29.1.2009, at the time of
commission of offence, the prosecutrix was of 17 years, 11
months and 26 days. However, rape has been defined

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under Section 375 IPC, as under;-

xxx xxx xxx xxx
So, even if any sexual intercourse is proved to have been
committed by accused Gurtej Singh with prosecutrix, even
then, it is proved to have been committed with her consent,
as discussed above. So, it is not covered under the
definition of rape given in Section 375 of IPC. Therefore,
no offene punishable under Section 376 IPC is made out as
at the time of alleged incident, prosecutrix was more than
16 years of age i.e. 17 years, 11 months, 26 days as is
proved from her date of birth given in school certificate
issued by Punjab School Education Board, Ex.PW6A.
While saying so, I am fortified by the case laws referred
above by defence counsel on this aspect.
Xxx xxx xxx xxx

32. Now, there is left the charge framed under
Section 366-A IPC, although, no arguments have been
advanced either by learned Addl. PP for State or by
learned defence counsel, on the same which is defined as
under;

xxx xxx xxx xxx
But, the present case does not fall within the
ambit of Section 366-A IPC as there is no evidence, if
accused has seduced or forced minor Amandeep Kaur to
have illicit intercourse with another person.”

11. While making the abovesaid observations, the trial court

acquitted the appellant/accused under Sections 376, 366-A of Indian Penal

Code. However, the trial court convicted the appellant/accused under

Section 363 of Indian Penal Code, while observing as under;

“30. So far as offence under Section 363 IPC for
kidnapping a minor is concerned, kidnapping has been
defined under Section 361 Cr.P.C.;

xxx xxx xxx xxx

31. As discussed above, at the time of commission of
offence, Amandeep Kaur was less than 18 years of age and
under Section 361 IPC, it is defined that who ever takes or
entices an minor under 16 years of age, if a male, or under
18 years of age, if a female, or any person of unsound mind,
out of the keeping of the lawful guardian of such minor or
person of unsound mind, without the consent of such
guardian, is said to kidnap such minor or person from
lawful guardianship. So, it means, to complete the offence
of kidnapping, the consent of minor is immaterial as
consent should be from lawful guardian, in case girl is less

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than 18 years of age and it has been said by PW3 Magher
Singh that accused used to come to their house to give
tuition to her minor daughter Amandeep Kaur and he had
taken her with bad intention. Since prosecutrix was more
than 16 of age on the date of commission of offence, and
has been proved to be consenting party, as discussed above,
but that consent is immaterial, as she has been taken away
from the custody of lawful guardian of such minor, without
the consent of such guardian. Therefore, accused Gurtej
Singh is proved to have committed an offence punishable
under Section 363 IPC.”

12. From the above findings recorded by the trial court and from

the perusal of the record of the trial court, it is an admitted fact that date of

birth of the prosecutrix in the instant case is 03.02.1991 and at the time of

alleged occurrence, she was 17 years, 11 months and 26 days old. It means,

she was almost 04 days short to be of 18 years of age. The trial court, after

discussing the entire evidence and the evidence led by the appellant/accused

in his defence, has held that the prosecutrix was a consenting party in the

entire episode, however, held the appellant/accused guilty for the

commission of offence under Section 361 of IPC, while taking note of the

fact that she was less than 18 years of age, and as such, her consent is

immaterial. During her cross-examination, the prosecutrix has admitted that

when she was produced before the Duty Magistrate, Malerkotla, she refused

to suffer statement or to accompany her parents, but admitted that she had

suffered statement before SDJM, Dhuri that she wanted to marry with

accused Gurtej Singh and further admitted it correct that her parents made a

statement to the effect that they will not pressurize her to marry with any

one and will not physically abuse her and further admitted it correct that on

suffering the said statement by her parents, she became ready to accompany

her parents. From the statement of ASI Nirmal Singh, Investigating Officer

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of the case, it is clear that when the prosecutrix was produced Duty

Magistrate, Malerkotla, she was ordered to be taken to Nari Niketan,

Jalandhar, but she was not taken to Nari Niketan, Jalandhar, rather she was

kept in the Police Station under the supervision of lady constable, however,

to this effect also the prosecutrix has deposed falsely that she was taken to

Nari Niketan, Jalandhar. It is here when the prosecutrix was kept at Police

Station instead of Nari Niketan, Jalandhar, that she made a U-turn and

started making allegations of threat upon the appellant/accused. Another

factor which also goes to the very root of the case is that as per the version

of the prosecution, the prosecutrix was first taken to Barnala and from

Barnala she was taken to Bathinda in a train, however, from the statement of

DW1 Sunil Gautam and DW2 Dr. Inderjit Singh, it is clear that the

prosecutrix and the appellant/accused stayed at a Dharamshala at Rohtak

and entry to this effect was made by the prosecutrix in her own handwriting.

In case, the prosecutrix had been enticed, she had all the opportunity to raise

a hue and cry, which she did not. All these facts lead to only one conclusion

that there was no inducement or force used by the appellant/accused.

Therefore, it cannot be said that the prosecutrix was enticed or taken away

from the lawful guardianship by the appellant/accused. Rather, the

prosecutrix, wanted to marry with the appellant/accused and was not even

ready to accompany her parents, when she was produced before the Duty

Magistrate, Malerkotla. In totality, in the case in hand, both the prosecutrix

and the appellant/accused wanted to marry each other and left the house to

fulfill their intention and also stayed at a Dharamshala in Rohtak, so it

cannot tantamount to “taking” as defined under Section 361 of IPC.

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Moreover, the prosecutrix in the case in hand had almost reached the age of

18 years and to attaining majority. The case laws relied upon by learned

counsel for the appellant/accused are applicable in the facts and

circumstances of the present case.

13. In view of the foregoing discussion, under the peculiar facts

and circumstances of the present case and from the material available on

record, no offence under Section 363 of Indian Penal Code is made out

against the appellant/accused and he stands acquitted. Accordingly, the

appeal is allowed and conviction/sentence of the appellant/accused is

hereby set aside.

(JAISHREE THAKUR)
July 11, 2018 JUDGE
vijay saini

Whether speaking/reasoned Yes/No
Whether reportable Yes/No

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