Crl. Appeal No. 771-SB of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 771-SB of 2006 Date of Decision : September 27, 2011 Sukhdev Singh .... Appellant Vs. State of Punjab .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Gurinderjit Singh, Advocate for the appellant. Ms. Gagan Mohini, AAG, Punjab. * * * L. N. MITTAL, J. (Oral) : Convict Sukhdev Singh has filed the instant criminal appeal to challenge his conviction and sentence ordered by learned Additional Sessions Judge, Kapurthala, vide judgment and order dated 13.03.2006, whereby the appellant stands convicted under Section 376 of the Indian Penal Code (in short – IPC) and sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.1,000/- and in default thereof, to undergo further rigorous imprisonment for three months. Prosecution case may briefly be stated as under :- Crl. Appeal No. 771-SB of 2006 2 Prosecutrix (name not being mentioned) wife of complainant Sadhu Singh was suffering from cancer. Surjan Singh told the complainant that accused Sukhdev Singh could cure the prosecutrix. Accordingly, Surjan Singh brought the accused to the house of the complainant. The complainant paid Rs.150/- for bringing medicines to the accused, as desired by him. Thereafter, on 07.09.1996, complainant, who was working as Granthi in Village Gurudwara, had gone to the house of Bhupinder Singh to recite Guru Granth Sahib. In his absence, Sukhdev Singh and his brother Hardev Singh came to the complainant's house. The complainant came back to his house and found that the accused was committing rape on complainant's wife, who was raising alarm, whereas the other person was sitting there. On seeing the complainant, both of them ran away. The prosecutrix told the complainant that the other person had also committed rape on her and thereafter, the accused was committing rape on her. The complainant lodged FIR by making statement to the police. Prosecutrix was got medico-legally examined. Rough site plan of the place of occurrence was prepared. Statements of witnesses were recorded. During investigation, one Santokh Singh stated that he had overheard Sukhdev Singh accused and Hardev Singh accused talking with each other that they had committed sin by committing rape on the prosecutrix. Hardev Singh also made extra-judicial confession to this effect before Bhupinder Singh – Member Panchayat on 13.09.1996. Bhupinder Singh accordingly produced Crl. Appeal No. 771-SB of 2006 3 Hardev Singh before the police. He was arrested and put to trial and was convicted vide judgment dated 11.05.1998. However, accused Sukhdev Singh absconded and was declared Proclaimed Offender. Ultimately, Sukhdev Singh was arrested on 12.04.2004. He was medico-legally examined. After completion of investigation, report under Section 173 of the Code of Criminal Procedure (in short – Cr.P.C.) was presented for trial of accused Sukhdev Singh under Sections 376 and 452 IPC. Charge under Section 376 IPC was framed against the accused. He pleaded not guilty and claimed trial. To prove its case, the prosecution examined 11 witnesses. Apar Singh (PW-1) stated that salwar of the prosecutrix was sealed into parcel and seized by the police. SI Ram Lubhaya (PW-2) stated about part investigation of the case conducted by him. Complainant Sadhu Singh (PW-3) stated according to the prosecution version. Here, it may be mentioned that the prosecutrix had since died, and therefore, could not be examined as witness. Bhupinder Singh (PW-4) stated about extra-judicial confession made before him by Hardev Singh regarding alleged rape committed by both Hardev Singh and Sukhdev Singh on the prosecutrix. Santokh Singh (PW-5) stated that he overheard the conversation of Sukhdev Singh and his brother Hardev Singh that they had Crl. Appeal No. 771-SB of 2006 4 committed rape on the prosecutrix. Dr. Manjit Kaur (PW-6) stated that she and Dr. Sudesh Mehmi had medico-legally examined the prosecutrix. During investigation, she gave her opinion that possibility of rape with prosecutrix could not be ruled out. Surjan Singh (PW-7) stated that he had taken the accused Sukhdev Singh to the house of complainant for treatment of complainant's wife i.e. prosecutrix. Dr. Des Raj Bharti (PW-8) stated that he had medico-legally examined accused Sukhdev Singh and found nothing to suggest that he was incapable of committing sexual intercourse. Rajwinder Kaur (PW-9) is daughter of the complainant. She stated that she had washed the salwar of her mother. ASI Lakhwinder Singh (PW-10) stated that he had arrested accused Sukhdev Singh on 12.04.2004. ASI Kewal Singh (PW-11) stated about investigation of the case conducted by him. Accused Sukhdev Singh, in his examination under Section 313 Cr. P. C., denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. He did not lead any evidence in his defence. Learned Additional Sessions Judge, Kapurthala, vide impugned Crl. Appeal No. 771-SB of 2006 5 judgment and order dated 13.03.2006, convicted and sentenced the accused, as already noticed herein before. Feeling dissatisfied, convict has filed the instant criminal appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that there is sole statement of complainant regarding the occurrence and no other eye-witness of the occurrence had been examined. It was also contended that the prosecutrix has not been examined as witness. It was also argued that there are contradictions in the statements of prosecution witnesses. On the other hand, learned State counsel argued that the prosecution evidence is reliable and sufficient to prove the guilt of the accused beyond reasonable doubt. I have carefully considered the rival contentions. The statement of complainant regarding the occurrence is fully corroborated by other evidence. The complainant immediately reported the matter to police. The accused-appellant was named in the FIR. Prompt lodging of the FIR naming the accused-appellant is valuable piece of evidence corroborating the testimony of the complainant. Moreover, complainant's statement is further corroborated by testimony of Bhupinder Singh (PW-4), before whom appellant's real brother and co-accused Hardev Singh made extra-judicial confession six days after the occurrence. Hardev Crl. Appeal No. 771-SB of 2006 6 Singh confessed that he and present appellant had committed rape on the prosecutrix. Prosecution case is further corroborated by testimony of Santokh Singh (PW-5), who overheard the conversation of both the accused that they had committed rape on the prosecutrix. Bhupinder Singh and Santokh Singh are independent witnesses. Bhupinder Singh was also Member Panchayat at the relevant time. Statements of both these witnesses fully corroborate the testimony of complainant Sadhu Singh. There is no reason why all these witnesses would depose falsely against the accused or would implicate him in false case and that too, of rape committed with wife of the complainant. Even the accused has not alleged any ground for his false implication. Moreover, the accused had absconded and could be apprehended more than 7½ years after the occurrence. This is also a material circumstance against the accused. Non-examination of prosecutrix has been explained by the prosecution because she died a few days after the occurrence, as stated by Bhupinder Singh (PW-4) and also by complainant Sadhu Singh (PW-3). No material contradictions have been pointed out in the statements of prosecution witnesses. On the other hand, prosecution witnesses have stood the test of cross-examination. Their veracity could not be impeached in their cross-examination. On the other hand, some contradiction may appear due to lapse of long period also because the material witnesses were examined in this case more than eight years after the occurrence. Crl. Appeal No. 771-SB of 2006 7 For the reasons aforesaid, I find that the prosecution evidence is very cogent and reliable and is, therefore, sufficient to prove the guilt of the accused-appellant beyond reasonable doubt. There is no reason to doubt or discard the statements of prosecution witnesses. Conviction of the appellant is well founded. Accordingly, impugned judgment of conviction is affirmed. As regards quantum of sentence, perusal of the Custody Certificate reveals that the appellant was released from jail on 20.09.2008 on completion of sentence after undergoing actual sentence of 04 years 05 months and 02 days and by granting remissions of 02 years, 06 months and 28 days. Consequently, question of quantum of sentence is now of academic importance only. Even otherwise, minimum sentence of imprisonment for seven years provided under Section 376 (1) IPC has been imposed on the appellant and there is no reason for reducing the minimum sentence. In fact, the appellant has been dealt with leniently inasmuch as charge of gang-rape under Section 376 (2) (g) IPC should have been framed against the appellant because the prosecutrix was raped by two persons i.e. by appellant and his brother Hardev Singh, and therefore, it was a case of gang-rape attracting minimum punishment of imprisonment for ten years. However, since the charge for gang-rape was not framed against the appellant nor he has been convicted for this offence, nothing can be done on this aspect in the present appeal. State has not preferred any appeal in this Crl. Appeal No. 771-SB of 2006 8 regard. However, minimum sentence of imprisonment for seven years imposed on the appellant does not warrant any reduction by this Court. The net result is that there is no merit in the instant criminal appeal, which is accordingly dismissed. September 27, 2011 ( L. N. MITTAL ) monika JUDGE