IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 336-DB of 2005 Dated of Decision:- March 03, 2009 Jasbir Singh@ Deepa @ Gurmit Singh ....APPELLANT VERSUS The State of Punjab ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MR. JUSTICE L.N.MITTAL Present:- Sh. N.S.Sodhi, Advocate for the appellant. Sh. Satinder Singh Gill, Addl. A.G. Punjab. ------ MEHTAB S.GILL, J. This is an appeal against the judgment dated 17.2.2005 of the learned Addl. Sessions Judge, Moga, whereby he convicted Jasbir Singh @ Deepa @ Gurmit Singh son of Mehar Singh under Section 376 IPC and sentenced him to undergo R.I. for life and to pay a fine of Rs.10,000/-. In default of payment of fine to further undergo R.I. for one year. The case of the prosecution is unfolded by the statement Ex.PC of Bala Devi given to Jaswant Singh SI at Civil Hospital, Moga. Bala Devi stated, that she is a resident of Village Lavitakhal, District Pauri Garhwal and for the last 10 years, she was staying along with 2 Criminal Appeal No. 336-DB of 2005 her husband and children in Basti Gobindgarh, Moga, in the house of Bachan Lal in a rented room. Her husband Barinder Singh was employed as ALM in Punjab State Electricity Board, Dagru. She had four children; two sons and two daughters. About a year back, she brought the prosecutrix aged about six years, the daughter of her Dewar Seikhar Singh, so that she could study at Moga. On 2.4.2001 at about 11.30 a.m., the prosecutrix along with other children were playing in the street. After some time, Bala Devi went out to call the prosecutrix, but heard her shrieks coming from the room of their neighbour Jasbir Singh alias Deepa son of Mehar Singh, who was residing in the house of Shadi Ram, in which he had taken a room on rent. Bala Devi knocked at the door of the room of Jasbir Singh alias Deepa, who came out and ran away after opening the door. Bala Devi entered the room and saw the prosecutrix lying on the bed without any clothes. Her under-wear was stained with blood. She further stated, that Jasbir Singh alias Deepa had committed rape with her niece. She got admitted the prosecutrix in Civil Hospital, Moga for treatment. On the basis of this statement, FIR Ex.PC/2 was recorded on 2.4.2001 at 6.10 p.m. The special report reached the J.M.I.C., Moga at 9.55 p.m. on the same day. The prosecution to prove its case brought into the witness box, Dr. Naresh Aggarwal PW1, Dr. Rajesh Kumar Puri PW2, The Prosecutrix PW3, Mrs. Bala Devi PW4, C. Harbans Singh PW5, HC Balwinder Singh PW6, HC Tara Chand PW7, SI Jaswant Singh PW8, Dr. S.P.Bansal PW9 and Dr. Kulwinder Kaur PW10. Learned counsel for the appellant has argued, that the testimony of both the prosecutrix PW3 and Bala Devi PW4 have a number 3 Criminal Appeal No. 336-DB of 2005 of contradictions, which are fatal to the prosecution case. Further he has argued, that some person by the name of Jasbir Singh was the one, who committed the offence, but appellant is not the one, as his name is not Jasbir Singh. Name of the appellant is Gurmit Singh @ Deepa and nobody calls him by the name of Jasbir Singh. The word alias Gurmeet Singh written after Jasbir Singh was only to falsely implicate him. Medico Legal Report Ex.PB also states Gurmit Singh. Prosecutrix PW3 is a tutored witness and it is only her statement, which shows that the rape was committed on her. No independent witness was joined from the locality. Bala Devi PW4, as per the prosecution case, did not see the occurrence. Learned counsel for the State has argued, that as per FSL Report Ex.PJ, semen was present on the two swabs taken from the vagina. As per FSL Report Ex.PL, there was bleeding of the vagina. This itself is clinching evidence, that rape had been committed on the prosecutrix. FIR is prompt. There is no delay in lodging of the FIR. It has come in evidence, that Bala Devi PW4 took the prosecutrix to the hospital and she was present there and SI Jaswant Singh PW8 recorded her statement in the hospital. The testimony of the prosecutrix is sufficient to prove the guilt of the appellant. We have heard the learned counsel for the parties and perused the record with their assistance. The main thrust of the argument of the learned counsel for the appellant is that the appellant has been falsely implicated, as his name is Gurmeet Singh and not Jasbir Singh. This argument of the learned counsel for the appellant does not cut much ice. In her testimony before the Court, Bala Devi PW4 has categorically stated, that she knew specifically that accused (Jasbir Singh alias Deepa) is the person, who committed the 4 Criminal Appeal No. 336-DB of 2005 offence. The learned trial Court has made an observation, that the witness gave this reply by pointing out towards the accused with full assertion. She has further stated in her testimony, that appellant was her neighbour and in the first instance, when her statement Ex.PC was recorded, she stated, that rape was committed on the prosecutrix by her neighbour Jasbir Singh @ Deepa son of Mehar Singh. Further the prosecutrix herself, who appeared as PW3, also recognized and categorically stated in no uncertain terms, that Jasbir Singh @ Deepa is the one who committed rape on her and he is the one present in Court. In fact the testimony of the prosecutrix is convincing and categorical, especially after a number of questions were put to her by the learned trial Court and then her statement was recorded on oath after the learned trial Court was satisfied, that she was in a position to make a statement. She has clearly stated, that she had been brought to Moga by her uncle and aunt from her village. She identified the appellant in Court. She has stated, that his name is Deepa. He is her neighbour. She has further stated, that he called her inside his house to give her some money to buy something from the shop. After she entered the room, he bolted the door from inside and after taking off her underwear, he committed rape on her. She has further stated, that after hearing her cries, her aunt Bala Devi PW4 came and saved her. She remained an indoor patient in the hospital. Her statement is corroborated by Bala Devi PW4. The medical evidence and FSL Reports Exs.PJ and PL also corroborate her statement. Dr. Naresh Aggarwal PW1 has stated in his testimony, that the prosecutrix was admitted in Civil Hospital, Moga on 2.4.2001 and the 5 Criminal Appeal No. 336-DB of 2005 Admission receipt being Ex.PA. Dr. Kulwinder Kaur PW10, who examined the prosecutrix and report is as under: - “ 1. Reddish contusion 11 cm. x 6 m. Placed on abdomen. 1½ cm. below umblicus. 4½ cm. above umblicus. 4 cm. on left side of umblicus. 7 cm. on right side of umblicus. Patient complained of severe pain in this area and presented with vomiting. Ultrasound was advised and surgical opinion was sought. 2. Reddish contusion (with multiple abrasions of varying sizes) 2x4 cm. on left side of neck on its lateral side. Direction was transversa. 3. Reddish contusion (with multiple abrasions of varying sizes) was of the size of 2x1 cm. placed on right lateral side of neck. 4. Multiple reddish brown spots on whole of face. The attendants of patient alleged that three spots have appeared after the incident. Opinion of skin specialist was sought”. She (PW10) has stated in her testimony, that there is possibility of attempt to commit rape, which cannot be ruled out in this case after observing the local genitalia. Whether rape was committed or not, the FSL reports clinch this issue. As per FSL Report Ex.PJ, two vaginal swabs, which were taken from the prosecutrix Mark a1 and a2, were stained with human semen. Parcel Ex.PA, which was sent to the Forensic Science Laboratory, contained these swabs Mark a1 and a2. FSL Report Ex.PL shows that another parcel containing underwear of the prosecutrix was sent and the report was that it was stained with human blood. It is clear, that rape had been committed on the prosecutrix. 6 Criminal Appeal No. 336-DB of 2005 SI Jaswant Singh PW8 has stated in his testimony, that he went to Civil Hospital, Moga and after getting MLR regarding rape Mark-A, he recorded the statement of Bala Devi, the aunt of the prosecutrix. He did not record the statement of the prosecutrix in the hospital, as she was not fit to make a statement. In his investigation, he investigated regarding the name of Jasbir Singh. He has further stated in his testimony, that Gurmit Singh @ Deepa is the same person, who is the accused in this case and his name being also Jasbir Singh. There is no delay in lodging of the FIR. Occurrence had taken place on 2.4.2001 at 11.30 a.m. FIR Ex.PC/2 was recorded on the same day at 6.10 p.m. The special report reached the J.M.I.C., Moga on 2.4.2001 at 9.55 p.m. FIR Ex.PC/2 is very prompt. This itself goes a long way in proving the case of the prosecution. Appellant has taken the plea of alibi, that he was not in Moga on that day, when the occurrence had taken place. In his statement under Section 313 Cr.P.C., he has stated, that he was away to Ludhiana, but has not brought any evidence before the Court to substantiate his not being in Moga on the day of occurrence. We do not find any infirmity in the judgment of the learned trial Court qua conviction. Conviction of the appellant is maintained under Section 376 IPC but sentence of the appellant seems to be on the higher side. Sentence of the appellant is modified and reduced from R.I. for life to fourteen years R.I. Fine shall remain intact, as awarded by the learned trial Court. With the above modification in sentence, appeal is dismissed. 7 Criminal Appeal No. 336-DB of 2005 (MEHTAB S.GILL) JUDGE (L.N.MITTAL) March 03, 2009 JUDGE SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO