Crl.Appeal No. 614-SB of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal No.614-SB of 2000 Date of decision: 6.10.2010 Jatinder Kumar … Appellant Versus State … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Mr.J.S.Bedi, Advocate, for the appellant. Mr.P.K.Khindra, APP, for UT, Chandigarh. … JORA SINGH, J. This appeal has been instituted by Jatinder Kumar against the judgment of conviction and order of sentence dated 7.6.2000 passed by Additional Sessions Judge, Chandigarh, in Sessions Case No. 3 dated 12.6.1988, arising out of FIR No.104 dated 28.7.1997 under Sections 376/506/323/452 IPC, PS East, Chandigarh. By the said judgment, he was convicted under Sections 376/452/323/506 IPC and sentenced to undergo RI for seven years and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for three months under Section 376 IPC, to undergo RI for two years under Section 506 IPC, to undergo RI for six months under Section 323 IPC and to undergo RI for two years and to pay a fine of Rs.500/-, in default of payment of fine, to further undergo RI for one and half months under Section 452 IPC. All the substantive sentences were ordered to run concurrently. Crl.Appeal No. 614-SB of 2000 2 Prosecution story, in brief, is that on 28.7.1997, Radhika Kohli (for short `the prosecutrix’) had gone to Police Station, East, Chandigarh, and submitted writing (Ex.PE) before SI Sucha Singh. In view of writing (Ex.PE), formal FIR (Ex.PE/1) was recorded. Allegation of the prosecutrix was that she was the daughter of late Ravinder Kohli and was living in one room on rent in House No. 1082, Sector 27-B, Chandigarh. She was serving in M/s Kamla Dials & Devices Ltd., Dera Bassi, District Patiala. Earlier to that, she was living with her family members in House No. 116, Sector 12- A, Panchkula. Accused was living in House No.152, Sector 12-A, Panchkula. Accused developed illicit relations with her by saying that he would marry her. Report was lodged by Smt. Shashi Kohli, mother of the prosecutrix, but accused continued to have sexual intercourse with the prosecutrix by saying that he would marry her. Few days earlier, accused had refused to marry her. Then prosecutrix stopped him from coming to her house. On 24.7.1997 at about 10.30 PM, accused came to her house forcibly at night time and started giving her beatings. Accused was requested not to beat her but she was given beatings with thapi. She received various injuries on her person. When she became semi-conscious, then she was raped by the accused against her wish. Accused had left the room with a threat to eliminate her if incident was brought to the notice of any body. On receipt of injuries, she was unable to walk. Message was sent to the mother of the prosecutrix. Entire incident was brought to the notice of mother of the prosecutrix. Her mother brought the prosecutrix to the police station, where she moved application. Prosecutrix was produced before the doctor for medical examination. After inspecting the place of occurrence, rough site plan (Ex.PH) with correct marginal notes was prepared. Thapi Crl.Appeal No. 614-SB of 2000 3 was taken into police possession vide memo (Ex.PI) attested by the witnesses. After medico legal examination, the doctor had handed over one parcel containing underwear of the prosecutrix to lady Constable Rani, who produced the same before the IO. Parcel was taken into police possession vide memo (Ex.PJ) attested by the witnesses. Statements of witnesses were recorded. On 29.7.1997, accused was arrested and was medico legally examined. After completion of investigation, challan was presented in the Court. Accused was charged under Sections 376/452/323/506 IPC, to which he pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined 13 witnesses. PW1 Dr. Gurdip Kaur on 28.7.1997 has medico legally examined the prosecutrix and observed as under:- “Local examination:- No external injury on external genetalia. Vagina admits two fingers easily, uterus ritroverted, normal size firm mobile, fornice clear, vaginal swabs taken, underwear and vaginal swab sent for chemical examination for evidence of semen. She was referred to radiologist for confirmation of age. Injuries:- Reddish blue multiple contusion on the back upper part. Both scapular region and middle of back, both upper arms on lateral sides, both thighs lateral part, left pelvic region, small contusions on both breasts, small 1 cm abrasion on right wrist lateral side, 1 cm below the elbow.” PW2 Constable Yashpal prepared scaled site plan (Ex.PC). Crl.Appeal No. 614-SB of 2000 4 PW3 ASI Prem Nath tendered his affidavit (Ex.PD). PW4 Prosecutrix reiterated her version disclosed to the police in the application (Ex.PE). Further stated that she was medico legally examined by the doctor. She was given beatings on 24.7.1997 at about 10.30 PM with thapi, then accused had raped her against her wish. By leaving the place of occurrence, accused had threatened her to eliminate if incident was brought to the notice of any body. PW5 Constable Sukhwinder Singh had produced the accused before the doctor, where he was medico legally examined. After examination, doctor had handed over one sealed parcel containing the underwear of the accused to him. He produced the same before the IO. Sealed parcel was taken into police possession vide memo (Ex.PF) attested by the witnesses. PW6 Dr.Ikramul Haque proved his report (Ex.PG). PW7 Shashi Kohli is the mother of the prosecutrix and stated that accused used to reside in front of their house. She had obtained cable connection from the accused. Her daughter was taken away by the accused with a promise to marry her. Matter was brought to the notice of the police. On 28.7.1997, Anurag telephonically informed her that prosecutrix had altercation with the accused. Prosecutrix was beaten by the accused. She (Shashil Kohli) was requested to take the prosecutrix to her house. Further stated that she was not on visiting terms with the prosecutrix after she had gone with the accused. As per telephonic message, she had gone to the house of Anurag, where prosecutrix was present. Entire incident was brought to her notice. PW8 SI Sucha Singh is the Investigating Officer. Crl.Appeal No. 614-SB of 2000 5 PW9 Dr. Paramjit Singh has examined the accused on 30.7.1997 and reported that accused was fit to perform sexual intercourse. Ex.PL is the copy of MLR. PW10 Anurag stated that the prosecutrix was treating him as her brother because she used to tie rakhee. She was living alone in House No. 1082, Sector 27, Chandigarh. Prosecutrix told him that accused was her fiance and she was to marry him. On 24.7.1997 at about 11.00 PM on telephone from the landlord, he came to know that prosecutrix had an altercation with the accused. He had gone to the house of the prosecutrix and found the prosecutrix in injured condition. Clothes of the prosecutrix were found stained with blood. After first aid, prosecutrix was left at her house. He had enquired from the prosecutrix as to whether her other family members should be informed or not, then prosecutrix replied that no need to inform them because she was not having cordial relations with them. On his insistence, he had informed the mother of the prosecutrix on 28.7.1997. PW11 Dr. Devinder Jain had given first aid to the prosecutrix and stated that he does not remember whether injuries were noticed on the person of prosecutrix on 25.7.1997 but certificate (Ex.D1) was given by him. He was declared hostile. PW12 Seema Mittal is the landlady in whose house prosecutrix was residing on rent in one room. She stated that prosecutrix told her that her fiance would be visiting her and here God given brother was residing in Sector 27, Chandigarh, in another house. Accused used to visit prosecutrix, who was occupying a room on the ground floor. She was also residing on the ground floor. She heard noise from the room of the prosecutrix, then Crl.Appeal No. 614-SB of 2000 6 she along with Simmi Gupta had gone to the room of the prosecutrix. Accused was found present while quarrelling with the prosecutrix. PW13 Simmi Gupta was the tenant of Seema Mittal. Statement of Simmi Gupta is similar to the statement of Seema Mittal. After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the appellant was as under:- “I have been falsely involved in this case because a case U/S 9 of Suppression of Immoral Traffic in Women & Girls Act, 1956, was registered against the mother of prosecutrix and her paramour Harbans Lal Arora where the prosecutrix was the star witness as the case was registered against Shashi Kohli i.e. the mother of prosecutrix & Harbans Lal Arora on the statement of prosecutrix. The mother of the prosecutrix and her paramour with a view to escape from that case got falsely implicated me in the case so that they could procure the statement of prosecutrix in that case. Furthermore the mother of prosecutrix being a lady of loose character wanted to extract money from me and when I refused, the present case has been got registered against me. On the earlier occasion also the mother of the prosecutrix in connivance with Harbans Lal Arora falsely implicated me and my father U/S 366 IPC where the case was dropped against us by Punjab & Haryana High Court. Further DSP, Panchkula, was directed to proceed against the mother of prosecutrix and her paramour Harbans Crl.Appeal No. 614-SB of 2000 7 Lal. As a matter of fact, immediately after registration of present case Smt. Shashi Kohli and said Harbans Lal Arora took the prosecutrix and got her statement recorded in the Court of Addl. Sessions Judge, Ambala, where the case U/S 9 of the Suppression of Immoral Traffic in Women and Girls Act read with Section 376 was pending against Smt. Shashi Kohli and her paramour Harbans Lal Arora.” In defence, DW1 Laxmi Narayan, Record Keeper, office of SSP, Panchkula, stated that FIR No. 34 dated 20.5.1996 under Section 366 IPC was registered at the instance of Shashi Kohli. Ex.DJ is the copy of the FIR. Prosecutrix was recovered in this case on 29.5.1996. Prosecutrix was produced before the Ilaqa Magistrate and her statement (Ex.DL) was recorded on 29.5.1996. Prosecutrix was entrusted to her grand mother. Ex.DM is the copy of receipt. Case was ultimately cancelled. Copy of order dated 23.5.1998 of Ilaqa Magistrate is Ex.DN. DW2 K.N.Parshad, Document Expert, has examined the signatures purported to be of the prosecutrix on the note (Ex.DO) and compared the same with her signatures on MLR (Ex.PA). Disputed signatures and standard signatures are of one and the same person. Ex.DP is the copy of report. Photo chart is Ex.DR. Number of documents were also tendered into evidence. After hearing learned PP for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on file. Crl.Appeal No. 614-SB of 2000 8 Learned defence counsel for the appellant argued that earlier the prosecutrix was residing in House No. 116, Sector 12-A, Panchkula. Appellant was also residing in House No. 152, Sector 12-A, Panchkula, in front of the house of the prosecutrix. Prosecutrix wanted to marry with the appellant. Prosecutrix had gone with the appellant, then mother of the prosecutrix got one case registered under Section 366 IPC but the case was later on cancelled. After the death of father of the prosecutrix, mother of the prosecutrix developed illicit relations with Harbans Lal. Mother of the prosecutrix and Harbans Lal were residing jointly. Both were challaned under Section 9 of the Suppression of Immoral Traffic in Women and Girls Act, 1956 (for short `the Act’). Case was registered at the instance of the prosecutrix. Prosecutrix was the main witness because mother of the prosecutrix was pressurizing her to have illicit relations with Harbans Lal. Appellant had also filed Crl. Writ Petition in the Hon’ble High Court. Prosecutrix had appeared in the High Court and made statement that she was apprehending danger at the hands of her mother. To wriggle out of the case under Section 9 of the Act, appellant was falsely implicated in this case. Allegation of the prosecution was that on 24.7.1997, prosecutrix was occupying one room on rent. At about 10.30 PM, appellant had gone to the house of the prosecutrix under the influence of liquor. After entering into the room of the prosecutrix by force, appellant had caused injuries to the prosecutrix with a thapi. When prosecutrix became semi conscious, then she was raped by the appellant against her wish. But allegation of the prosecutrix is not correct one. Occurrence is dated 24.7.1997, whereas report was lodged on 28.7.1997. On 26.7.1997 and 27.7.1997, prosecutrix had gone to her office. STD was in front of the house of the prosecutrix. Crl.Appeal No. 614-SB of 2000 9 Police zypsy also remained posted outside the house of Seema Mittal. There was a telephone at the house of Seema Mittal and Anurag. Intimation could easily be sent to the police immediately after the occurrence. According to the prosecutrix, landlady came at about 11.00 PM, but she was not requested to inform the police. She was simply requested to inform her brother. Brother of the prosecutrix came from House No. 81, Sector 27, Chandigarh. Entire incident was brought to his notice. But after first aid, brother of the prosecutrix had gone back to his house. In cross- examination, prosecutrix admitted that she was residing separately from her mother w.e.f. 13.5.1996. From 13.5.1996 upto 24.7.1997, she was residing with the appellant. On enquiry by the Court, prosecutrix again admitted that from 13.5.1996 to 24.7.1997, she was staying with the appellant, again stated that from 13.5.1996 to 22.7.1997, she had stayed with the appellant. Appellant was paying the rent. All the utensils in the kitchen were of the appellant. Expenditure of the kitchen was also being paid by the appellant. At the time of occurrence, she was wearing shirt and pyjama. Shirt and pyjama were stained with blood but the same were handed over to the police after same were washed. No injury was given to the appellant. Injuries on her person were bleeding. After 10-15 minutes, her landlady came and stayed with her during night time. Case was registered against Harbans Lal and she had appeared as a witness. Petition was filed by the appellant in the Hon’ble High Court and by appearing before the Hon’ble High Court, she had stated that she was apprehending danger from Harbans Lal. Her mother was pressurizing her to have relations with Harbans Lal. She cannot tell whether rape case was registered against Harbans Lal at her instance but she had appeared as a witness against Harbans Lal. Now from the statement of Crl.Appeal No. 614-SB of 2000 10 the prosecutrix, one thing is clear that occurrence was on 24.7.1997, but report was lodged on 28.7.1997. On 24.7.1997, prosecutrix stayed in her room with the landlady. Information was given to Anurag. He came and after first aid had gone back to his house. One criminal case was registered against Harbans Lal and in that case, prosecutrix had appeared as a witness. Harbans Lal and mother of the prosecutrix were the accused in one case. Case was registered at the instance of the prosecutrix. No explanation why on 25.7.1997 or 26.7.1997 or 27.7.1997, matter was not brought to the notice of the police. Anurag appeared as PW10 and stated that on 24.7.1997 as per telephonic message from the landlord, he had gone to the house of the prosecutrix. Prosecutrix was found injured. Her clothes were stained with blood. Landlady and another lady were present in the room of the prosecutrix. After first aid, he came back to his house. Next day, prosecutrix was taken to the clinic of Dr. Devinder Jain. On 28.7.1997, he had informed the mother of the prosecutrix. Criminal case was registered against her mother and Harbans Lal. Dr. Devinder Jain stated that on 28.7.1997, prosecutrix came to his clinic, whereas allegation of the prosecutrix is that on the next day, i.e., 25.7.1997, she was taken to the clinic of Dr. Devinder Jain by Anurag. Seema Mittal, landlady of the prosecutrix, stated that she along with another tenant Simmi Gupta had gone to the room of the prosecutrix. Appellant was found present with the prosecutrix but injuries were not noticed on the person of the prosecutrix. She along with Simmi Gupta had shifted the prosecutrix to the house of her (prosecutrix ) brother on the same night. Police zypsy remained posted outside her house. PW13 Simmi Gupta was the tenant of Seema Mittal. Crl.Appeal No. 614-SB of 2000 11 Mother of the prosecutrix when appeared in Court, then stated that prosecutrix was taken away by the appellant. Then a criminal case was got registered against him. On 28.7.1997, Anurag had informed her about the occurrence by saying that after occurrence, prosecutrix was brought by him to his house. She had gone to the house of Anurag. Her daughter was present there. Lastly admitted that the prosecutrix had appeared before the Hon’ble High Court but she cannot tell whether prosecutrix had made statement that she (Shashi Kohli) had illicit relations with Harbans Lal. Shashi Kohli admitted that she was facing trial at Ambala Courts with Harbans Lal. Allegation was that she was pressurizing the prosecutrix to have sexual intercourse with Harbans Lal and others. At the time of occurrence, prosecutrix was residing with the appellant. According to the evidence, on 28.7.1997, Shashi Kohli came to know about the occurrence. She along with the prosecutrix had gone to the police station and lodged report but statement of Shashi Kohli was recorded on 9.11.1997. According to the evidence, appellant was residing with the prosecutrix. According to certificate (Ex.D1), only knee injury was noticed by Dr.Devinder Jain. Dr. Gurdip Kaur had medico legally examined the prosecutrix on 28.10.1997. In case, appellant had raped the prosecutrix against her wish on 24.7.1997, then on the same day or next day, report should have been lodged with the police when there was a telephone at the house of the landlord. There was a STD outside the house of the landlord. Police zypsy also remained posted outside the house of the landlord. Anurag had the intimation on the same day. If prosecutrix was not in a position to inform the police, then matter should have been brought to the notice of police by Anurag. Seema Mittal and Simmi Gupta were present with the prosecutrix on the day of Crl.Appeal No. 614-SB of 2000 12 occurrence. When there was telephone at the house of landlord, STD shop outside the house of the landlord and police zypsy also remained posted near the house of the landlord, then no explanation why report was not lodged with the police. At the time of occurrence, prosecutrix was only wearing shirt and pyjama. She was not wearing underwear. So, no question of presence of semen on the underwear, but underwear was sent to the laboratory. Report of laboratory was to the effect that there was no semen. In fact, room was on rent with the appellant. Rent was being paid by the appellant. All the utensils in the kitchen were of the appellant. Appellant was bearing the expenses of the kitchen. When the prosecutrix stayed with the appellant from 13.5.1996 to 24.7.1997 and used to have sexual intercourse with him because appellant had promised to marry her, then no question of rape, when the prosecutrix was 21 years’ old. In case occurrence had taken place as per story, then prosecutrix is the consenting party. There is a possibility of some dispute with the prosecutrix. On account of some minor dispute, appellant had given injuries. Injuries were found to be with blunt weapon and simple in nature. At the most appellant is liable for punishment under Sections 323 and 506 IPC and not under Sections 376 and 452 IPC. Learned State counsel argued that the prosecutrix was not staying with the appellant. Earlier to the occurrence, prosecutrix was staying with the appellant. When appellant refused to marry with the prosecutrix, then prosecutrix started residing separately in one room on rent as tenant of Seema Mittal. On the day of occurrence, appellant had gone to the room of the prosecutrix and with a thapi gave injuries to the prosecutrix. When the prosecutrix became semi conscious, then she was raped against Crl.Appeal No. 614-SB of 2000 13 her wish by the appellant. Doctor has stated that possibility of rape cannot be ruled out. If appellant was paying the rent and was bearing the expenses of the kitchen, then he cannot be the tenant under Seema Mittal. Against the wish of the prosecutrix, she was raped after causing injuries. Prosecutrix being lady was not in a position to resist or cause injuries on the person of the appellant. When appellant was intending to marry the prosecutrix, then no reason to disbelieve the prosecutrix. There was a motive to cause injuries and rape the prosecutrix when appellant had refused to marry the prosecutrix but the prosecutrix was insisting to marry him. Admittedly, prosecutrix is the daughter of Shashi Kohli, PW7. Earlier prosecutrix along with her family members was residing in House No. 116, Sector 12-A, Panchkula. Appellant was living in House No.152, Sector 12-A, Panchkula. Appellant developed illicit relations with the prosecutrix by saying that he was to marry her. Prosecutrix was taken away by the appellant and at the instance of Shashi Kohli, criminal case was registered against the appellant under Section 366 IPC, but later on, cancellation report was submitted. After the death of father of the prosecutrix, Shashi Kohli developed friendship with Harhans Lal. Allegation of the prosecutrix was that Shashi Kohli was forcing her to have sexual intercourse with Harbans Lal and others. At the instance of prosecutrix, criminal case was registered against Shashi Kohli and Harbans Lal. This fact is clear from Ex.DB, copy of charge sheet. As per Ex.DB, allegation of the prosecutrix against Harbans Lal and Shashi Kohli was that on 12.8.1996 at about 10.30 PM, they had hatched a criminal conspiracy to compel the prosecutrix to have illicit relations with Harbans Lal. Ex.DC is the copy of charge sheet Crl.Appeal No. 614-SB of 2000 14 showing this fact that criminal case was registered against Harbans Lal. Allegation of the prosecution was that on 12.8.1996, Harbans Lal attempted to rape the prosecutrix. Ex.DD is the copy of charge sheet showing this fact that allegation against Shashi Kohli was that she being the mother and custodian of the prosecutrix, abetted the prosecutrix seduction for prostitution and thereby committed an offence punishable under Section 9 of the Immoral Traffic (Prevention) Act. Appellant had filed writ petition and before Hon'ble High Court. Prosecutrix appeared and made statement. Allegation of the prosecutrix was that she has danger to her life at the hands of Harbans Lal, who lived with her mother and her mother offered her to Harbans Lal for some illegal affairs. She was not willing to live with her mother. Statement of the prosecutrix (Ex.DT) is dated 29.8.1996. Ex.DH is the copy of the order showing this fact that under Section 9 of the Act, case was registered against Harbans Lal and Shashi Kohli, mother of the prosecutrix. So, documentary evidence on the file shows that mother of the prosecutrix was having illicit relations with Harbans Lal. Shashi Kohli was residing with Harbans Lal. She was compelling the prosecutrix to develop illicit relations with Harbans Lal. Case was registered against Shashi Kohli and Harbans Lal at the instance of the prosecutrix. As per evidence on the file, prosecutrix started residing separately from her mother w.e.f. 13.5.1996. This fact was admitted by the prosecutrix in her