Criminal Appeal No. 755-SB of 1998 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 755-SB of 1998 Date of decision : 8.8.2008 Gurwinder Singh .....Appellant Versus State of Punjab ...Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Sanjay Jain, Advocate as Amicus Curiae Mr. B.S. Sra, Deputy Advocate General, Punjab. S. D. ANAND, J. While convicting the appellant on a charge under Section 457/376/306 IPC, learned Trial Judge upheld the following prosecution presentation at the trial:- 2. First informant/ PW-3 Naranjan Singh, an Ex-serviceman, is a resident of village Chatiwind. His two married sons Harjinder Singh and Sukhwinder Singh are in occupation of separate rooms in the house; while his 3rd son Balwinder Singh shares a room in occupation of the first informant himself. His only daughter is married. Harjinder Singh and Sukhwinder Singh, who were married to Raj Kaur and Sukhwinder Kaur respectively in the same year, used to daily go out to Amritsar to earn livelihood. They would leave the house at 7.00 P.M. and get home normally at 8.00 A.M. They would be late, at times, in getting home. Criminal Appeal No. 755-SB of 1998 -2- **** 3. On the relevant date, Raj Kaur and Sukhwinder Kaur were watching television in their separate rooms. At about 8.00 P.M. Naranjan Singh came out of his room and into the court yard. He heard shrieks from the room of Raj Kaur. He entered that room and found that appellant Gurwinder Singh, a police employee who was living in a house opposite to the house of Naranjan Singh, was in the act of raping Raj Kaur. At that point of time, the bulb inside the room was off; while the bulb in the Verandah was burning. Naranjan Singh took the appellant into his grip but the latter being younger in age got himself released and fled the spot, taking along his underwear and Paijama in his hand, In the course of the escape endeavour, he fell down by striking against a hearth situated in the courtyard. Naranjan Singh also gave an iron rod blow on the forehead of the appellant but he succeeded in running away. Raj Kaur started crying and told Naranjan Singh that she had been insulted by the appellant and that she would not like to live any more. Naranjan Singh comforted her and further told her that the police would be notified in the morning, on the return home of her husband and brother-in-law. Thereafter, Naranjan Singh came to the room and fell asleep. When he got up in the morning at about 7.00 A.M., he found two children of Raj Kaur crying in the room. He gave a push to the door and also called out Raj Kaur but no response came from her. The room was found bolted from inside. He pushed a room window open and found that Raj Kaur had committed suicide by hanging herself. Naranjan Singh informed his wife and the other Criminal Appeal No. 755-SB of 1998 -3- **** daughter-in-law. Thereafter, he went to Amrtisar to look for his two sons. He could not, however, locate them. When he was on the back home journey, he came across the police party available at Kot Mit Singh and lodged the First Information Report. 4. The prosecution plea, at the trial, was supported by the solitary ocular testimony of PW-1 Naranjan Singh. 5. PW-1 Dr. Ashok Chanana had conducted the post- mortem examination on the dead body of Raj Kaur and opined that “cause of death in this case was antemortem hanging leading to asphyxia which was sufficient to cause death in the ordinary course of nature.” Qua the prosecution plea that her person had been deflowered, Dr. Chanana observed as under:- “Without the presence of spermatozoa or semen in a married female having children, it is not possible to say whether sexual intercourse has been taken place or not. The detection of spermatozoa or semen in the smeared swabs and slides is only possible if the ejaculation has occurred in the vagina.” 6. PW-5 Dr. Jaswant Singh had medical legally examined appellant and opined that “there was nothing to suggest that he was not capable of performing sexual intercourse.” 7. PW-2 Darshan Lal, AMHC proves the facts of the appellant having been on leave on 11.1.1997 and 12.1.1997. 8. The testimony of other witnesses is of formal character. Criminal Appeal No. 755-SB of 1998 -4- **** 9. The appellants plead false implication due to party faction. 10. Learned counsel appearing on behalf of the appellant as Amicus Curiae argues that entire prosecution presentation is incredible. He argues that it is not natural that appellant who had gone into the room of the deceased prosecutrix to violate her person without her consent particularly when the room where she was available is a part of very premises where Naranjan Singh and other members of his family are living. It is also pointed out in the context that two children though of young age, of deceased prosecutrix were also available in that room and an effort has been made to show that a grown up daughter of the prosecutrix was away to her maternal uncle's house. It is also argued that Naranjan Singh exhibited an unnatural conduct by averring that he went away to sleep in his room even after the deceased prosecutrix who was none else other than his daughter-in-law announce that she did not want to live any more because she has been insulted by the appellant by deflowering her. 11. The plea deserves acceptance. The record indicates that house of the appellant is situated just opposite the house of deceased prosecutrix. He is in employment of the Police Department. It must obviously to have noticed that there was other two rooms as well in the same premises which are in the occupation of members of the in-laws family of the deceased prosecutrix. The house of the deceased prosecutrix has a boundary wall within which she and another member of his family have a common courtyard. Criminal Appeal No. 755-SB of 1998 -5- **** This fact is not to be appreciated in isolation from the attendant circumstances of the case. Naranjan Singh wants the Court to believe that even after Raj Kaur lamented the violation of her person and announced that she would prefer death in the light thereof, he went over to his room and fell asleep. His other daughter-in-law was available in her room. His own wife and 3rd son was available in their room. I find the conduct exhibited by Naranjan Singh to be absolute unnatural. Further more, it requires pertinent notice that the Chemical Examination vide report Ex. PT found that “no spermatozoa were found on the exhibits No. I, II, III and No. IV. To make things clear, it may be indicated that report furnished by the Chemical Examiner relatable to following exhibits :- “I. Smeared swab from vaginal inlet. II. Smeared slide from vaginal inlet. III Smeared swan from posterior formix. IV Smeared swan from posterior formix” which were forwarded by the police to the office of Chemical Examiner for analysis thereof. The report by the Chemical Examiner appreciated in the light of the observations made by PW-1 Dr. Ashok Chanana as noticed in para 5 of this judgment would indicate that prosecution had not been able to prove that the person of deceased prosecutrix had indeed been violated. 12. There is yet another relevant piece of evidence which falsifies the prosecution presentation. 13. PW-3 Naranjan Singh categorically indicated that he had Criminal Appeal No. 755-SB of 1998 -6- **** taken the appellant into his grip but that the appellant being younger in age was able to get himself released. He proceded over the appellant fell down as he struck against a hearth situated outside the verandah. It is also in his testimony that he picked up an iron rod left over there and gave a blow with it to the appellant. The medical evidence is not supportive of that averment. PW-5 Dr. Jaswant Singh who medico legally examined the appellant on 14.1.1997 at 12.30 P.M. categorically testified that he did not notice any external injury on the person of the appellant. If the appellant had actually fallen down by striking against hearth he must have sustained some injuries because he would obviously have been running at a speed in his bid to escape from the spot. Further the iron rod blow which Naranjan Singh averred to have given him must also have left some mark of injury on appellant where-ever it hit him. The testimony of PW-5 Dr. Jaswant Singh falsifies the prosecution plea. 14. The impugned occurrence had taken place on 11.1.1997 at about 8.00 P.M. The FIR was lodged on 12.1.1997 at 2.00 P.M. It is in the testimony of PW-3 Naranjan Singh that Police Station Sultanwind is at a distance of 2 kilometer from his house. Naranjan Singh tried to explain the delay by stating that he told the prosecutrix that police would be notified on the return of her husband and brother-in-law. Thus, when they had not returned in morning he ought to have gone over to the police immediately. He does not indicate where exactly did he search at Amritsar. He does not tell the Court exact job which his sons doing at Amritsar during night Criminal Appeal No. 755-SB of 1998 -7- **** from 7.00 P.M. to 8.00 A.M. It is, thus, obvious from the facts and circumstances of the case that FIR had been lodged after inordinate and unexplained delay. 15. In the light of the foregoing discussion, the impugned finding of conviction is found to be unsustainable. The appeal shall stand allowed. The impugned judgment of conviction is set aside aside. The appellant shall stand acquitted of the charge. August 08, 2008 (S. D. ANAND) Pka JUDGE