Crl. Appeal No.D-366-DB of 2006 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.D-366-DB of 2006 Date of Decision :28.07.2011 Jaswinder Singh ... Appellant Versus State of Haryana .... Respondent CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE VIJENDER SINGH MALIK ....... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.H.S. Jaswal, Advocate for the appellant. Mr. P.S. Punia, Addl. A.G.,Haryana, for the respondent-State. -- Vijender Singh Malik, J. Jaswinder Singh is in appeal before us against the judgment of his conviction dated 30.01.2006 vide which learned Additional Sessions Judge (Adhoc), Fast Track Court, Kurukshetra held him guilty for an offence punishable under sections 342,376(2) (g) and 452 of the Indian Penal Code and the order of sentence dated 03.02.2006 vide which he has been sentenced as under:- Crl. Appeal No.D-366-DB of 2006 --2-- Jaswinder Singh 376(2)(g) IPC Rigorous imprisonment for 12 years and and to pay a fine of Rs.10000/-.In default of payment of fine to further undergo RI for 06 months. 452 IPC Rigorous imprisonment for 03 years and and to pay a fine of Rs.1000/-. In default of payment of fine to further undergo RI for one month. 342 IPC Rigorous imprisonment for 06 months. All the sentences were ordered to run concurrently. The case set up against the appellant and one Vijay Kumar (a proclaimed offender) by Police Station Pehowa, District Kurukshetra, is as under: The prosecutrix ( name withheld in view of the law laid down by the Apex Court) is a resident of village Joshi, district Panipat. Her parents had been residing presently at Gau-Charand, Pehowa for the last about one year. Her maternal uncle had been residing at Sayalkothi Farm, Pehowa. The prosecutrix had come to the house of her maternal uncle, Jaspal. He had gone to Amritsar, where he was working in a factory. Her maternal aunt and maternal grandfather Gurdial were present at the house. On 20.06.2004, the prosecutrix as also her maternal aunt and maternal grandfather were sleeping on two cots in the courtyard, in which there was light of electric bulb. The prosecutrix and her maternal aunt were sleeping on one cot. At about 11.00 PM Vijay Kumar and Jaswinder Singh entered the courtyard of the house after scaling the boundary wall of Crl. Appeal No.D-366-DB of 2006 --3-- the house. Vijay Kumar forcibly caught hold of her maternal aunt by her hands and took her in a room, while Jaswinder Singh took the prosecutrix to another room forcibly and tied her hands with the help of a handkerchief and mouth and eyes with the help of chunni. Jaswinder Singh committed rape upon her without her consent after putting off her salwar. The prosecutrix tried her best to free herself, but she could not succeed. After committing rape, both of them ran away. Her maternal aunt untied herself and the prosecutrix narrated the whole occurrence to her. She was told by her maternal aunt that Vijay Kumar had not done any illicit act with her, but kept her away from the prosecutrix forcibly under the effect of threat. The mother of the prosecutrix was informed on telephone about the incident. When she came to Sayalkothi Farm, the prosecutrix started with her maternal aunt and others to the police station, where on her statement, FIR was recorded at about 3.05 PM on 21.6.2004. Special reports of the case were sent to the Illaqa Magistrate and others. The prosecutrix had also produced red coloured chunni, salwar, jamphar and one shirt stained with blood before Hanu Ram, ASI, which were given the shape of a parcel and sealed the same with seal 'HR'. The same were taken into possession by way of recovery memo, Ex.PG. The prosecutrix was then taken to CHC, Pehowa for her medico-legal examination, where Dr. Kanchan Bala examined her. Hanu Ram, ASI recorded the statement of maternal aunt of the prosecutrix named Baby under the provision of section 161 of the Code of Criminal Crl. Appeal No.D-366-DB of 2006 --4-- Procedure in the hospital. Dr. Kanchan Bala, after medicolegal examination, had handed over one sealed parcel containing two bottles sealed with seal 'KBS' and another sealed parcel containing clothes of the prosecutrix alongwith another envelope bearing the same seals and a copy of MLR of the prosecutrix, which were taken into possession by way of a recovery memo. Statements of the witnesses were also recorded there. Then Hanu Ram, ASI reached the place of occurrence and after inspecting the same, on the demarcation of the prosecutrix and Baby, he prepared a rough site plan thereof. Statement of Gurdial Singh was recorded at the spot. The investigating officer then made inquiries from the people in the locality. Mr. Nripjeet Singh, DSP, Pehowa and Pawan Kumar, SI/SHO of Police Station, Pehowa also reached the spot and verified the facts. Search was made for the accused. They were not available. Hanu Ram, ASI deposited the case property with the MHC after reaching the police station. Search made for the accused thereafter also remained fruitless. On 23.06.2004, the prosecutrix was produced before learned Judicial Magistrate Ist Class, Kurukshetra for her statement under section 164 of the Code of Criminal Procedure. An application was made requesting the Magistrate to record the statement of the prosecutrix under the aforesaid provision. Her statement was recorded by the Magistrate. The accused were not traceable on Crl. Appeal No.D-366-DB of 2006 --5-- 24.06.2004. Jaswinder Singh was, however, arrested on 27.6.2004 after observing the formalities required to be observed at the time of arrest, Jaswinder Singh, accused was produced before Medical Officer, CHC, Pehowa, where he was medicolegally examined. Vijay Kumar was still not traceable and after obtaining his warrants of arrest followed by proclamation under sections 82 and 83 of the Code of Criminal Procedure, he was declared a proclaimed offender by the court. The father of the prosecutrix produced affidavit dated 20.09.2004 regarding the date of birth of her daughter. Site plan to scale of the place of occurrence was got prepared from Rishi Pal, constable-cum-draftsman. On completion of the investigation, challan against Jaswinder Singh was prepared and presented in the court showing Vijay Kumar accused as proclaimed offender. Charge was framed against the appellant for an offence punishable under sections 376(2)(g), 342 and 452 IPC, vide order dated 27.10.2004. The appellant pleaded not guilty to the charge and claimed trial. The prosecution has examined fourteen witnesses in all at the trial. After the evidence of the prosecution came to a close, the appellant was examined in the terms of section 313 Cr.P.C. The appellant has denied each piece of incriminating evidence brought by the prosecution when put to him in the shape of questions. He has claimed himself to be innocent and to have been falsely implicated in Crl. Appeal No.D-366-DB of 2006 --6-- the case due to enmity between his family and the family of the maternal grandfather of the prosecutrix. He has added that Kalo, sister of his co-accused Vijay Kumar had love affair with Kewal Masih, a cousin brother of the prosecutrix. According to him, said Kewal Masih was beaten up by his brother Rajinder Singh and for that reason, he has been falsely implicated in the present case by the prosecutrix in collusion with the police. Ms. Bimla Devi, Head Mistress, Government Middle School Joshi, district Panipat had been examined as DW-1 regarding the admission record of the prosecutrix and the defence evidence came to a close thereafter. After hearing learned public prosecutor for the State, learned defence counsel and going through the evidence on record, learned Additional Sessions Judge (Adhoc) Fast Track Court, Kurukshetra convicted the appellant for the offence detailed above vide judgment dated 30.01.2006 and awarded the sentence detailed as above vide order dated 03.02.2006. Feeling aggrieved by the judgment of conviction and the order of sentence passed by the trial court, the present appeal has been brought by Jaswinder Singh, appellant. We have heard Mr. H.S. Jaswal, learned counsel for the appellant and Mr. P.S. Poonia, learned Addl. A.G.,Haryana, for the respondent-State and have gone through the record of the case with their assistance. Crl. Appeal No.D-366-DB of 2006 --7-- Learned counsel for the appellant has submitted that there is significant divergence in the story of the incident narrated by the prosecutrix in the FIR, Ex.PA, in the statement, Ex.PB before the Magistrate and the statement made at the trial. According to him, the role of Vijay Kumar, is differently told in the three statements. According to him, it is stated in the FIR that Vijay Kumar forcibly took her maternal aunt to a room and Jaswinder Singh forcibly took her to another room. He has further submitted that as per the prosecutrix in Ex.PA, Jaswinder Singh tied her hands, mouth and eyes and putting off her salwar, committed rape upon her. He has further submitted that regarding the role of Vijay Kumar, she has not stated even a single word in relation to her and what she has stated subsequently is that her maternal aunt came and released her and to her she narrated the incident. She is further on the record saying in the FIR that her maternal aunt told her that Vijay Kumar though did not commit rape upon her, yet he kept her away from the prosecutrix forcibly under the effect of threats. He has submitted that this statement appearing in the FIR clearly shows that Vijay Kumar did not commit rape with the prosecutrix and his role has been confined to his keeping the maternal aunt of the prosecutrix away from her by use of threats and force. Referring to her statement Ex.PB, recorded by the Magistrate, learned counsel for the appellant has pointed out the Crl. Appeal No.D-366-DB of 2006 --8-- prosecutrix stating that Vijay Kumar and Jaswinder Singh entered their house at about 11.00 PM. She is further shown to have stated that Vijay Kumar had closed the mouth of her maternal aunt while Jaswinder Singh did so in respect of her. The prosecutrix has further stated that Vijay Kumar had tied the hands, legs, mouth and eyes of her maternal aunt and had confined her in a room, which he had bolted from outside. She has further stated that Jaswinder Singh and Vijay Kumar thereafter tied her and took her to another room and committed rape upon her on account of which she became unconscious. Learned counsel for the appellant has, thus, submitted that the version about the occurrence coming in the FIR, Ex.PA and the statement Ex.PB clearly appears to be different. Learned counsel for the appellant has further submitted that the version of the prosecutrix recorded as PW-1 is still at variance with her earlier statements in as much as appearing as PW-1, she has stated that her mouth was tied by Jaswinder Singh with a handkerchief and tying her eyes and legs, took her to another room, where he was joined by Vijay Kumar and that they committed rape upon her one after the other. He has further submitted that the variance in the statements is so glaring that a person making these statements cannot be believed. Learned counsel for the appellant has further submitted that there is no proof of age of the prosecutrix in this case. According to him, the prosecutrix is stated to have studied up to 8th standard and Crl. Appeal No.D-366-DB of 2006 --9-- if it was so the record of the school could be produced in proof of her age. He has submitted that there is no evidence on record to prove that the prosecutrix was below the age of 16 years on the date of alleged occurrence. He has further submitted that the appellant has been falsely involved in this case on account of enmity and his conviction for the offences cannot be upheld. Learned Additional Advocate General, Haryana for the respondent-State, on the other hand, has submitted that the alleged variance in the statements of the prosecutrix is not significant in this case. According to him, the same makes no difference to the case as the ocular testimony of the prosecutrix is fully supported by the medical evidence. According to him, the statement of the prosecutrix is duly corroborated by Ms. Baby, PW-9 as well as Gurdial Singh, PW-6. He has submitted that no difference is going to be made to the case of the prosecution for want of proof of the age of the prosecutrix because the defence of the prosecutrix being consenting party to the sexual intercourse has not been taken. He has further submitted that the version of the appellant appearing in his statement recorded under section 313 Cr.P.C. is so discrepant and vague that it does not create any dent in the prosecution case. He has, therefore, submitted that the conviction of the appellant is well founded and does not deserve any interference in the appeal. It is true that the version of the occurrence as appears in FIR Ex.PA is at variance with the same appearing in Ex.PB, the Crl. Appeal No.D-366-DB of 2006 --10-- statement of the prosecutrix recorded by learned Judicial Magistrate Ist Class, Kurukshetra. It is altogether different if Vijay Kumar kept a watch on Baby and kept her away from the prosecutrix by extending threats to her from the fact that he tied Baby at her hands, legs, eyes and mouth and had packed her in another room and then joined Jaswinder Singh in taking turns with the prosecutrix. On deeper reflection, the difference in the version appears to affect the case of the prosecution against Vijay Kumar only, who is not before us. For Jaswinder Singh, there is no difference in the version. The prosecutrix as per Dr. Kanchan Bala, Medical Officer, PW-2 had been of the age of 15 years and she had found her labia majora and labia minora to be stained with fresh blood. She was also found to have suffered a lacerated wound of size 1.5 cm on vulva on the left side posteriorly at 5 O'clock position. The doctor noticed mild bleeding present there on probing and she also reported her hymen to be ruptured which was bleeding on probing. It showed that rupture in the hymen was fresh. In this case, the prosecutrix was not found to be in receipt of injuries on her hands, face, abdomen, chest, breast and legs. The question that arise in this situation is whether absence of injuries or other marks on these parts of her body demolish the case of the prosecution. The prosecutrix had been tied with handkerchief, scarf etc. and Dr. Kanchan Bala, PW-2 has come out with an explanation Crl. Appeal No.D-366-DB of 2006 --11-- for absence of injuries by saying that the injuries would depend on the quality of cloth, used to tie the prosecutrix. Human semen mixed with blood was detected on salwar, lady shirt, kurta and chunni. Blood was detected on salwar as well as swab. These findings of Forensic Science Laboratory appearing in Ex.P8 strengthens the statement of the prosecutrix to the effect that she had been forcibly subjected to sexual intercourse. Though the affidavit of father of the prosecutrix was taken by Hanu Ram, ASI, yet he was not examined at the trial. Therefore, no evidentiary value could be attached to the affidavit Ex.PW13/A of Tarsem. However, failure of the prosecution to lead evidence regarding age of the prosecutrix is of little value on its case because there is not even a suggestion put to the prosecutrix that she had been the consenting party to the sexual intercourse, alleged to have been done with her by the appellant. If she has not been the consenting party and she was found on 21.6.2004 to have all the evidence of forcible sexual intercourse, then there appears no reason to disbelieve the prosecutrix and others namely Baby and Gurdial Singh. The defence version is that there is enmity between the family of the appellant and the family of the maternal grand father of the prosecutrix. The enmity is further specified by the appellant in his statement recorded under section 313 Cr.P.C. that Kalo, sister of his co-accused Vijay Kumar had love affair with Kewal Masih, a cousin Crl. Appeal No.D-366-DB of 2006 --12-- brother of the prosecutrix. According to him, when Kewal Masih was beaten up by his brother Rajinder Singh, then a false case has been got registered. Besides being co-accused, no other relationship appears between the appellant and Vijay Kumar. Kewal Masih is being beaten up by Rajinder Singh, his brother, and that can hardly provide any motive for the prosecutrix to put her reputation at stake by bringing such a charge against the appellant and Vijay Kumar. Moreover the defence version appearing in the statement of the appellant recorded under section 313 Cr.P.C., is an after thought. No such suggestion has been put to the prosecutrix or others examined as prosecution witnesses in this case. Therefore, no credibility could be attached to this version. In view of the aforesaid discussion, we find no ground to interfere with the finding of guilt recorded by learned trial court against the appellant. Although there is discrepancy in the statements of the prosecutrix regarding the role of Vijay Kumar, yet the attempt made in this to change the statement is with a view to enhance his role. The presence of Vijay Kumar and his keeping Baby away under threats appearing in the first version, cannot be held doubtful and it is sufficient to hold it to be a case of gang rape, because the facts that emerge in this case are covered by Explanation 1 appended to section 376 IPC. The person committing gang rape is to be punished severely. So, the sentence awarded by learned trial court cannot be said to be harsh, warranting reduction of the same. Therefore, upholding the Crl. Appeal No.D-366-DB of 2006 --13-- judgment of conviction and order of sentence passed by learned trial Court against Jaswinder Singh, we dismiss the appeal. ( HEMANT GUPTA) (VIJENDER SINGH MALIK) JUDGE JUDGE 28.07.2011 dinesh