Baran Singh and Others vs State

N.S. Gupta, J.—This is a criminal revision against the judgment and order dated 22.5.82 passed by Sri D.L. Soni, the then 1st Additional Sessions Judge, Ghaziabad, in criminal appeal No. 29 of 1982, dismissing the appeal and upholding the conviction of all the three revisionists u/s 366, I.P.C. and maintaining their sentence of 3 years R.I. and a fine of Rs. 500 each. Further upholding the conviction of revisionist No. 1 Baran Singh and revisionist No. 3 Kanwar Pal Singh u/s 376, I.P.C. and maintaining their sentence of 7 years R.I. and a fine of Rs. 500 each and in default of payment of fine of the same, further to undergo R.I. for a period of 3 months as recorded by Sri K.D. Rai, the then Assistant Sessions Judge, Ghaziabad vide judgment and order dated 15.2.1982 in State v. Baran Singh and Ors. S.T. No. 281 of 1980

The prosecution story briefly stated is as follows:

The accused revisionist Smt. Pitam Kaur is the wife of accused revisionist Baran Singh. Accused revisionist No. 3 Kanwar Pal Singh is the brother-in-law of Baran Singh. They are all residents of village Kania alias Kalyanpur, P.S. Babugarh, district Ghaziabad.

The prosecutrix Km. Sunita, P.W. 5 and Vakila, P.W. 6 were minor girls aged about 12-13 years in the year 1976. They were living under the lawful guardianship of their respective guardians in Kasba Modi Nagar, Mohalla Govindpuri, district Ghaziabad. The accused revisionists Baran Singh and his wife Smt. Pitam Kaur were living in a quarter opposite to that of the prosecutrix. The prosecution claimed that on 23.9.1976 at about 10.11 a.m., the accused revisionist Pitam Kaur seduced the prosecutrix Km. Sunita and Km. Vakila to go from their quarter to marry with Kanwar Pal Singh and Baran Singh. The accused revisionist took these prosecutrix in his motor car to a village across the Ganges. There the prosecutrix were kept in a sugarcane field. The accused revisionists Kanwar Pal Singh and Baran Singh as also 4-5 other persons committed rape upon these prosecutrix for a period of about one month from 23.9.1976 to 20.10.1976. On 20.10.1976, the accused revisionists took away the prosecutrix to Gajraula.

Sri Dharam Pal P.W. 3, the father of the prosecutrix Km. Sunita and Hakimuddin, father of the prosecutrix Vakila had gone in search of the prosecutrix at Gajraula. Seeing these persons, the accused revisionists Baran Singh and his wife Pitam Kaur and Kanwar Pal Singh ran away leaving the prosecutrix there. Sri Dharam Pal P.W. 3 brought the prosecutrix to Modi Nagar where he lodged a report about the recovery of these prosecutrix at P.S. Modi Nagar, district Ghaziabad on 21.10.1976 at 0.30 a.m. The prosecutrix Km. Sunita and Km. Vakila were referred for medical examination to Meerut where they were examined by Dr. Amrit Phull P.W. 1 who found the position as under:

Km. Sunita

Teeth Upper jaw 14/ 28 Lower jaw 14/ Height 5'' 2" Weight 50 Lbs

Breast developed. Hairs pubic and axillary present, scanty growth.

P/V examination Hymen torn. Vagina admitted two fingers easily. Uterus was normal.

There was no external or internal injury. On vaginal examination, no sperms were seen. On the basis of the X-Ray examination, Dr. Amrit Phull opined that the wrist elbow and knee joints, epiphysis of lower end radius ulna, medial candyle of humerous and upper end of libra and fibula were not united. The prosecutrix was aged about 15 years. She was accustomed to sexual intercourse. No opinion on the point of rape was given.

Km. Vakila

Teeth Upper jaw 14/ 28 Lower jaw 14/ Height 4'' 9" Weight 68 Lbs

Breast developed. Small pubic hair present. They were scanty in growth. Axillary hair was absent.

P/V examination Hymen torn. Small old healed laceration present at posterior for-schette. Vagina admitted two fingers easily and uterus was normal in size. There was no external or internal injury. On the vaginal examination, no sperms were seen. The doctor opined on the basis of the X-Ray examination that elbow epiphysis of medial condyle and humerous were united, wrist joint and knee Joint, epiphysis of lower end, redius and ulna and upper end of tibia and fibula were not united. The prosecutrix was aged about 16 years. She was accustomed to sexual intercourse. No opinion about rape was given.

The trial Judge Sri K.D. Rai, Assistant Sessions Judge, Ghaziabad placed reliance upon the statement of the prosecutrix Km. Sunita and Km. Vakila and Dr. Amrit Phull, convicted and sentenced the accused revisionists as aforesaid. On appeal, the conviction and sentence passed by the trial Judge were affirmed by Sri D.L. Soni, the then 1st Additional Sessions Judge, Ghaziabad, hence this revision.

I have heard Sri A. Misra, counsel for the revisionists and the learned Additional Government Advocate for the State; considered their contentions and have gone through the facts and circumstances of the case.

The first point urged by the learned Counsel for the accused revisionists before me is that the prosecution has failed to establish that on the date of occurrence of the case, the prosecutrix Km. Sunita and Km. Vakila were aged less than 16 years of age. It was argued that the X-Ray examination report of the prosecutrix was not proved before the trial court. No reliance over the medical report of Dr. Amrit Phull in proof of the age of the prosecutrix could, therefore, be placed. The learned court below, therefore, committed an illegality in upholding the conviction of the accused revisionists. I am unable to agree with the contention of the learned Counsel for the accused revisionists for the reason that Dr. Amrit Phull who was examined as P.W. 4 before the trial court had opined that the age of the prosecutrix of Km. Sunita and Km. Vakila was 15 and 16 years respectively on the basis of the X-Ray examination report. Since the lower redius ulna of these prosecutrix were not united and humerous and upper end of libra and fibula were not united, it was obvious that both these prosecutrix were aged less than 16 years. Apart from that, the prosecution filed certified copies of the Scholar''s Registers of Adarsh Kanya Inter College, Ghaziabad where these two prosecutrix were reading. The extract of Scholar''s Registers Exhibit Ka-7 and Ka-8 revealed that the date of birth of Km. Sunita was 1.1.1965 and that of Km. Vakila was 15.3.1965. According to the extracts of these Scholar''s Registers, the prosecutrix were aged 11 and 13 years respectively on the date of their kidnapping. It is well-established from the evidence of Dharam Pal P.W. 3, father of the prosecutrix Km. Sunita that at the time of the occurrence, both the prosecutrix were living under the lawful guardianship of their respective parents. The statement of the prosecutrix Km. Sunita and Km. Vakila are clear on the point that they were suduced to go from their house by the accused revisionist pitam Kaur, wife of the accused revisionist Baran Singh and that the accused revisionists Kanwar Pal Singh and Baran Singh took them away in a motor car across the Ganges where they were kept and were raped by the accused revisionists Baran Singh, Kanwar Pal Singh and 3-4 other persons. It is, thus, clear that on the date of the incident when the prosecutrix were kidnapped, they were less than 16 years of age and they were taken away out of the keeping of their lawful guardian without the consent of their guardian with an intent that they may be compelled to marry against their will or in order that they may be forced to illicit intercourse and that the illicit intercourse was, in fact, committed on them by the accused revisionists Baran Singh and Kanwar Pal Singh. The medical evidence of Dr. Amrit Phull, P.W. 1 and the fact that at the time of the medical examination of prosecutrix Km. Vakila, small old healed laceration was found at posterior for-schette of the prosecutrix fully proved the guilt of the accused revisionists.

I am accordingly of the opinion that there is* no illegality or impropriety in the finding of facts sustained by the learned 1st Additional Sessions Judge, Ghaziabad regarding the kidnapping of the prosecutrix by the accused persons and regarding the rape having been committed upon them by the accused Baran Singh and Kanwar Pal Singh.

I accordingly Hold that the accused revisionists were rightly convicted u/s 366, I.P.C. and the accused revisionists Baran Singh and Kanwar Pal Singh were also rightly convicted u/s 376, I.P.C.

Coming to the point of sentence, I find that the accused revisionists were responsible for exploiting innocent girls who were living in their close neighbourhood.

It was argued by the learned Counsel for the accused revisionists that the prosecutrix not being under 12 years of age, the minimum sentence of 7 years imprisonment awarded to accused revisionists Baran Singh and Kanwar Pal Singh u/s 376, I.P.C. was not warranted. He prayed for leniency in the matter of sentence.

Having regard to the facts and circumstances of the case, the gravity of the offence and that the period of 19 years has since passed when the incident had taken place. I am of the opinion that it will meet the ends of justice if the sentence of imprisonment awarded to accused revisionists Baran Singh and Kanwar Pal Singh u/s 376, I.P.C. is reduced to 5 years R.I. instead of 7 years R.I. In all other respects, the order of conviction and sentence passed against the accused revisionists are sustained.

With these observations, the revision is dismissed.

Let the record of the lower court be sent back forthwith for further necessary action according to law.