State of Punjab vs Darshan Singh

S.D. Bajaj, J.

Around 9.30 A.M. on March 22, 1987 Renu Bala daughter of Baldev Raj went to the neighbouring house of Darshan Singh accused in Adarsh Colony, Patiala, for collecting the arithmetic book of elder sister Suman Bala from him and did not return home. After searching for her for six long days and not finding her Baldev Raj PW 3, her father reported the matter to the police vide First Information Report No. 54 got registered in Police Station Sadar, Patiala, at 1.10 P.M. on March 28, 1987.

On being charged with the commission of offences under Sections 363, 366 and 376 of the Indian Penal Code for kidnaping Renu Bala a minor girl aged 141/2 years from the lawful custody of her father and subjecting her to sexual intercourse forcibly against her will, accused Darshan singh pleaded `not guilty'' thereto and claimed to be tried. Vide its impugned judgment dated December 2, 1987 learned trial court gave to accused Darshan Singh the benefit of doubt and acquitted him. Feeling aggrieved from the judgment of acquittal aforesaid State of Punjab has filed Criminal Appeal No. 130DBA of 1988 in this Court.

We have heard Shri S.S. Kang, DAG Punjab for the appellant State, Shri R.S. Ghai, Senior Advocate, with Sarvshri Bipen Ghai and Vinod Ghai, Advocates, for the respondent and have perused the relevant material on record very carefully.

Dr. Jagir Kaur PW 1 who medically examined the prosecutrix at 2.30 P.M. on April 8, 1987 states :

"On 8.4.1987, at 2.30 P.M., I examined Renu Bala d/o Baldev Raj resident of Adarsh Colony, Patiala, and I found the following :

Number of teeth were 7 plus 7 over 7 plus 7(7x7). Her height was 158 cm.

Secondary sex character were well developed and auxiliary hair were present. According to her, her age of monarcha was 14 years. She was mensurating for the last 5/6 months. Her mensural formal was 45/30 days and regular. Last mensure period was 23rd March.

No mark of violence on the body was found present. There was no internal or external injury.

External examination :

There was nomark of violence, pubic hair were present. There was no matting of hair. Hymen was ruptured. Old healed tags were present.

Pre vaginal examination :

Vagina admitted two fingers easily. There was no tenderness. No resistance to examination. Uterus retroverted. Size was normal. Fornices were clear. There was no tenderness. Two cotton swabs were taken from posterior fornices on sticks and were sent for chemical examination in sealed container bearing my seal for confirmation of her age. She was referred to Rajindra Hospital for examination which I meant Xray examination for her age.

In my opinion, she was used to sexual intercourse".

Even the prosecutrix herself, while appearing as PW 4, had to admit that during three months of her coaching by the accused she had sexual intercourse with him 18 times. It is thus clear that the prosecutrix is a woman of loose morals and easy virtue and the alleged extension of threats to her by the accused while raping her after kidnaping her was only an excuse to pacify the parents and befool the police investigating agency. Learned trial court thus rightly observed in para 12 of its impugned judgment that the only question which remains to be examined on given facts is if he prosecutrix was capable of giving her consent on March 22,1987, the alleged date of occurrence.

Certificate Exhibit PB which states that the prosecutrix was born on September 26, 1972 is obviously of no evidentiary value because it is not stated therein as to who got the prosecutrix admitted in the school or gave out to the school authorities her date of birth incorporated therein. Affidavit Exhibit DA admittedly sworn by Baldev Raj PW 3 before the notary public on April 20, 1987 states that the prosecutrix is more than 18 years of age. Similar is the assertion made by the prosecutrix in her own affidavit Exhibit DB sworn by her before the notary public on the same day. Neither the prosecutrix nor her father ever approached the authorities that these affidavits were obtained from them under threat by the real brother of the accused a police constable. Making this allegation more than six months after the date of execution of these affidavits on November 26, 1987 in Court is of no avail the prosecution for nullifying the effect of these two affidavits in creating a doubt regarding the age of the prosecutrix more so when in terms of medical advice tendered by Dr. Jagir Kaur P.W. 1, the prosecution did not get the prosecutrix Xrayed for determination of her age.

In this view of the matter learned trial court rightly categorised the prosecution case against the accused to be of a doubtful nature and suspicious character. Finding of `not guilty'' returned in favour of the respondent by the learned trial Court is, therefore, affirmed. Appeal against his acquittal field by the State of Punjab thus fails and is, therefore, dismissed.