Baldev Singh vs State of Punjab

Harbans Singh Rai, J.

Baldev Singh son of Nand Singh was convicted by Shri O.P. Goel, Additional Sessions Judge, Ferozepur, vide his order dated March 18, 1986, under Sections 363 and 366A, IPC and was sentenced to undergo R.I. for three years and a fine of Rs. 500/; in default of payment of fine further R.I. for three months under Section 366A, IPC. However, no separate sentence was awarded under Section 363, IPC. Feeling aggrieved, he has filed this appeal.

Prosecution story, in brief, is that Darshna prosecutrix P.Ws. elder sister Anoopo was married to Baldev Singh appellant. Anoopo was admitted in Civil Hospital, Ferozepur, and she gave birth to a female child on June 26, 1985. On that day, Darshna prosecutrix came to the hospital with meals for her sister Anoopo. Baldev Singh appellant met her in the hospital and asked her to accompany him. The accused got her seated in a bus and too her towards village Khai. They got down at Hada Roori and spent the night in the field. Baldev Singh committed rape on her during the night. On the next day Baldev Singh took her to Amritsar and both of them worked as farm labourers in Poorianwala Karkhana for three/four days. Thereafter, Baldev Singh took Dharshna to village Kalwal at the house of his mother''s sister. There they stayed for the night. Kashmir Singh A.S.I. recovered them from the Dham of Maghar Singh. Baldev Singh was arrested and after investigation, challenged and convicted.

Prosecution in support of its case examined Dr. Aprajita Kohli, PW1, who examined Darshna on July 8, 1985, at abut 7 p.m. and found her to be moderately built and nourished having 45 kgs. weight, 5 feet 3 inches height and 14 teeth in each jaw. No mark of violence was noticed. P.W.6 Dr. S.K. Nain, Radiolgoist, Civil Hospital, Ferozepur, had radiologically examined Darshanu and found her between 15 and 17 years of age. He had given this age according to the standard prescribed in the text books of medical jurisprudence. He further stated that there can be variation at the most of six months on either side of age and he did not agree with the suggestion that the variation can be from two to three years. PW2 Baj Singh, father of Darshna, supported the prosecution version and stated that his elder daughter Anoopo was married to Baldev Singh 7/8 years earlier. On June 26, 1985, Anoopo had come to see them at the time of delivery. She gave birth to a female child in the Civil Hospital, Ferozepur, where she was got admitted. His wife Ishar Kaur was attending to Anoopo. Darshna had brought meals for her sister Anoopo and Baldev Singh abducted her from Civil Hospital, Ferozepur. Gajjan Singh PW3 did not support the prosecution case and was declared hostile. Darshna PW4 prosecutrix supported the prosecution version in every detail and stated that she is 14/15 years of age and her elder sister is married to Baldev Singh. Baldev Singh met her in the hospital and asked her to accompany him and when she asked as to where they were going, he told her that they would return soon. He took her in a bus and they got down at Hada Roori, remained in the fields for the whole night and he raped her during the night and the next day he took her to Amritsar and there they worked in Poorianwala Karkhana for three/four days. Thereafter, he took her to village Malwal. A.S.I. Kashmir Singh recovered them from there. Kashmir Singh A.S.I. is the investigating officer.

After close of the prosecution, Baldev Singh, in his statement, denied the prosecution case and pleaded innocence. He further stated :

"I am innocent. The fact is that my fatherinlaw Baj Singh wanted to marry Darshna with some old man after taking money form him about which Darshna complained to me and her sister Anoopo and I asked Baj Singh not do so so. After that Darshna started residing with her sister at village Gama Bhawara in my house of which Baj Singh was annoyed. Then Darshna left for village Valtoha where elder brother of Baj Singh was residing. There she made a statement of her own before the Judicial Magistrate Ist Class, Patti. Because of the abovementioned graduge Baj Singh has planted this false case against me and I was arrested from my house in this false case."

The learned trial Court found that the prosecutrix was a consenting party for rape and acquitted Baldev Singh of the charge under Section 376, IPC, but found her to be below 18 years of age and convicted him under Sections 366A and 363.

I have heard the learned Counsel for the parties and gone through the evidence with their help.

Baldev Singh was married to the elder sister of the prosecutrix and according to the prosecution he enticed his wife''s younger sister and committed sexual intercourse with her. The learned Counsel for the appellant has argued that the trial Court has found that the appellant had committed sexual intercourse with her consent and the finding of the trial Court that she is below 18 years of age is not supported by evidence.

I have considered the arguments, but find no force in the same. No doubt, the trial Court found that she was a consenting party to the intercourse, but she being younger sisterinlaw of the appellant could be easily influenced by him and she being in her teens may not be realising what she was made to do. In any case, Baldev Singh appellant has been acquitted of the charge under Section 376, IPC. So whether the sexual intercourse committed by him was with her consent or not is not relevant for the decision of this case.

The prosecution examined Radiologist, who had conducted the Xray examination and found her age between 15/17 years. Radiological examination is not foolproof and there may be variation in the age of a particular person depending upon the heritage, food, environment and other similar factors. Darshna prosecutrix hails from Ferozepur district which is situated in Central Punjab where it cannot be said that she was not properly nourished, was not getting good food and her heritage is not healthy. A reading of the textbooks of Medical Jurisprudence will show that people who get good food, live in healthy climate and come of healthy heritage, grow faster and their bones fuse earlier. There can be a mistake in their case as to that they may be of younger age and the examination may show that their age is more, but it cannot be conversely true. The bones fuse at a late age in case of people who are under nourished and come from a place where the general health is poor and the heritage is not healthy.

No benefit of variation in age making her older can be given in this case. The Medical Officer, who examined her radiologically, was very emphatic that in her case variation is maximum upto six months and not two to three years.

The trial Court has accepted the evidence of the Radiological and found her to be below 18 years of age. I do not find any justifiable reason to differ with the finding of the trial Court qua the age of Darshna PW and hold that she was below 18 years of age at the time of occurrence.

The learned Counsel for the appellant has argued that the charge framed against the appellant is under Sections 363 and 366A and he has been convicted under Section 366A, IPC which does not cover the case of prosecution. Therefore, the conviction is bad.

Sections 366 and 366A, IPC deal with abduction of woman and minor girl with the intention that she may be compelled or knowing it to be likely that she may be compelled to have intercourse with a man. Under Section 366, IPC the intercourse is to be with the abductor and under Section 366A, IPC it is to be with another person. Legally speaking, both the sections relate to abduction and the ingredients to be proved by the prosecution are that abduction should be with the intention that she may be compelled or seduced to have intercourse with the abductor or with another man. The trial Court should have framed the charge under Section 366, IPC. It appears that word "A" has been added by the trial Court without carefully reading the sections. The learned Counsel for the appellant has not been able to point out any prejudice which have or should have been caused to the appellant by this typographical mistake in the charge. Section 464, Cr.P.C. covers such cases. It reads as under :

"464. Effect of omission to frame, or absence of, or error in, charge

(1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of Appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.

(2) If the Court of appeal, in confirmation or revision is of opinion that a failure of justice has in fact been occasioned; it may :

(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge;

(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit.

Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction."

In the absence of any prejudice, the framing of the charge and conviction of the appellant under Section 366A instead of 366, IPC is of no consequence. The conviction should have been made under Section 366, IPC and I alter the same to be one from Section 366A to Section 366, IPC.

As the accusedappellant had enticed his close relation, younger sisterinlaw, I do not find any justification in reducing the sentence awarded to him. This appeal is without merit and is dismissed.