IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.898-SB of 1997 Date of decision: 20th January, 2010 Ravitej Singh alias Jyoti … Appellant Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Hari Singh Mann, Senior Advocate with Mr. K.S. Sidhu, Advocate for the appellant. Mr. J.S. Bhullar, Assistant Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) The appellant Ravitej Singh alias Jyoti along with his co- accused Gurdev Singh and Mohan Kaur alias Mohni were tried by the Court of Additional Sessions Judge, Hoshiarpur. They were named as accused in case FIR No.54 dated 04.06.1995 registered at Police Station Mahilpur, District Hoshiarpur under Sections 366/34, 368/34, 376 IPC. The trial Court found the appellant guilty for offence under Section 376 IPC and sentenced him to undergo rigorous imprisonment for seven years and to pay fine of Rs.5000/-, in default of payment of fine to further undergo rigorous imprisonment for six months. Gurdev Singh and Mohan Kaur were convicted and sentenced under Section 366/34 IPC to undergo rigorous imprisonment for three years and to pay fine of Rs.1000/- each, in default of payment of fine to further undergo rigorous imprisonment for three months. They were also sentenced under Section 368/34 IPC to undergo rigorous imprisonment for two years and to pay fine of Rs.500/- each, in Criminal Appeal No.898-SB of 1997 default of payment of fine to further undergo rigorous imprisonment for two months. Gurdev Singh was also sentenced under Section 354 IPC to undergo rigorous imprisonment for six months. All the sentences were ordered to run concurrently. It is stated that Gurdev Singh and Mohan Kaur have not filed appeal, as they have undergone the entire sentence. The present appellant has assailed the judgment of the trial Court and has prayed that same be set aside being against law and facts of the case. Name of the prosecutrix is being withheld as per the mandate of law laid by Hon’ble Apex Court. Therefore, she will be referred as prosecutrix. Ram Chand ASI PW-6 received a medical chit Ex.PN from Medical Officer, Mahilpur. This chit was received on 4th June, 1995. Ram Chand ASI was proceeding to the Civil Hospital, Hoshiarpur when prosecutrix along with Resham Lal and Satinder Singh met him and recorded her statement Ex.PG. Prosecutrix stated that she is resident of village Pallian Khurd and was serving as a Nurse in a Clinic of Dr.Mahesh of Nawanshahar. On 4th June, 1995 at 9.00 p.m. she reached at the bus stand Nawanshahar, then Mohan Kaur resident of Jaijon and Gurdev Singh resident of Kalaam met her. Both the accused used to come to the Clinic to take medicine and were acquaintances of the prosecutrix. Mohan Kaur told prosecutrix that they are going to pay respect to a Saint who had arrived at Gurdwara Palki Sahib near village Mahilpur. She was requested to accompany them on the scooter, as they had planned to return shortly. Prosecutrix agreed to accompany them. They all went on the scooter which was being driven by Gurdev Singh. When they reached village Nangal Khurd via Bangian after going about 20 km, Mohan Kaur told that in village Nangal Khurd her friend Kashmir Kaur wife of Joga Singh reside and they could take tea there. They went to the house of Kashmir Kaur 2 Criminal Appeal No.898-SB of 1997 where she was present along with her husband Joga Singh. All had taken tea there. There one young man Ravitej alias Jyoti aged 20/23 years came. Mohan Kaur disclosed Jyoti that they had come to pay respect to Gurdwara Sahib. Jyoti agreed to accompany them and was going on a scooter ahead of the scooter of Gurdev Singh. When they reached at the main Phagwara Mahilpur road, Jyoti turned his scooter on the Kacha Path towards his left hand. Gurdev Singh, Mohan Kaur and prosecutrix also followed the scooter of Jyoti for 100 yards. The scooter was parked near a water tank. Mohan Kaur told that Jyoti is serving as a pump operator at the tube well. Jyoti opened the door of his residential room. Prosecutrix and Mohan Kaur sat on the cot. After some time, Jyoti and Gurdev Singh arrived and Mohan Kaur went out on the pretext to urinate. Then Jyoti bolted the door. Prosecutrix became nervous. She raised noise in a loud voice and asked Mohan Kaur to help. When prosecutrix tried to open the door, Gurdev Singh caught hold of her arms and Jyoti after taking her in his arms had forcibly thrown her on the cot. Salwar and Jamper of the prosecutrix were forcibly removed and underwear was torn. Gurdev Singh removed her brassier forcibly. The requests made by prosecutrix were not paid heed to. The alarm raised by the prosecutrix to save her also fell on the deaf ears. Prosecutrix was beaten mercilessly and she received abrasions on back and arms. Jyoti placed a quilt on the ground and one pillow was also placed. Gurdev Singh caught hold of her arms and sat on the ground. Jyoti placed a pillow under the buttocks of the prosecutrix and forcibly raped her without her will. Gurdev Singh pulled her breast. Both the accused continued to sexually harass the prosecutrix for about half an hour. Prosecutrix demanded water. Jyoti went inside to bring water and Gurdev Singh to another room to bring the glass. Prosecutrix had worn her Jamper and was going to wear her Salwar when Gurdev Singh came and snatched her Salwar and told her not to wear the clothes. The prosecutrix 3 Criminal Appeal No.898-SB of 1997 ran away from there without Salwar and reached Pacca Adda of village Paldi and raised raula. People there gave her Pajama to wear. Many persons gathered there. Resham Lal and Satinder Singh resident of Paldi brought her to Civil Hospital, Mahilpur on their scooter. The doctor there told that no lady doctor is available and she was asked to go to Civil Hospital Hoshiarpur. The prosecutrix complained that on 4th June, 1995 at 3.00 p.m. she was raped by the appellant. The above statement Ex.PG was endorsed by the ASI Ram Chand PW-6 vide endorsement Ex.PG/1 and the formal FIR Ex.PG/2 was registered at Police Station Mahilpur at 6.30 p.m. prosecutrix was examined on 5th June, 1995 at 10.45 a.m. by lady doctor at Civil Hospital, Hoshiarpur. Details of injuries suffered by the prosecutrix will be given later. Suffice it to say, the FIR was investigated and report under Section 173 Cr.P.C. was submitted. The accused and case was committed to the Court of sessions and was entrusted for trial to the Court of Additional Sessions Judge, Hoshiarpur, who on 11th October, 1995 framed charges against the accused. Mohan Kaur and Gurdev Singh were charged for offence punishable under Section 366/34 IPC for having induced the prosecutrix with intention that she be forced or seduced to illicit intercourse. They were also charged for offence under Section 368/34 IPC. The appellant Ravitej Singh alias Jyoti was charged for offence of rape punishable under Section 376 IPC. Gurdev Singh was also charged for offence under Section 376 IPC. Appellant and co-accused pleaded not guilty and claimed trial. PW-1 lady doctor Renu medico legally examined the prosecutrix and on examination recorded her observation as under: “General Examination:- 1. Multiple reddish blue oblique abrasion on back of right hand and distal 1/3rd of right 4 Criminal Appeal No.898-SB of 1997 fore-arm varying from 1 cm to 1.5 x ½ to 1 cm. 2. Reddish blue abrasion on left elbow 0.7 cm x ½ cm. 3. Reddish blue abrasion 7 cm x 1 cm transversely placed extending from posterior auxiliary fold toward back of right side of the chest. 4. Reddish blue abrasion 1 cm x 1 cm over mid line of back (vertebral column) at a level lower to costal margin. 5. Contusion 3 cm x 3 cm on angle of left jaw 1 cm below left ear labule and having 3 reddish blue abrasions 0.2 cm x 0.2 cm in each. 6. Multiple small abrasion varying from 0.2 cm x 0.2 cm in front of neck and below chin. 7. Two contusions reddish in colour 7 cm x 3 cm obliquely placed on each buttock on medial sides and 3 cm linear transverse abrasion reddish blue in colour lying 3 cm above contusion of left side of buttock. Local Examination: No vulval injury seen. Per vaginal examination: Tender, hymen, rupture, reddish in colour, congested and admitted two fingers. On per speculam vaginal was congested. Two swabs were taken from posterior fornix and one slide prepared and sent to Chemical Examiner, Patiala for test.” She opined that there was possibility of rape committed on the prosecutrix. In cross examination, she stated that she had not prepared pictorial diagram showing injuries on the person of prosecutrix. She further stated that there was no injury on the nipple of the prosecutrix. This witness further deposed that injuries are signs of struggle and are not self suffered. The patient was not habitual to sexual intercourse. 5 Criminal Appeal No.898-SB of 1997 Prosecution examined Dr.Daljinder Singh Surgical Specialist as PW-2. He had examined the appellant on 7th June, 1995 and opined that there was nothing to suggest that the accused was unable to perform sexual intercourse. This witness further stated that he had sent the information Ex.PN/1 to the police and he had also informed the police that prosecutrix was referred to Civil Hospital, Hoshiarpur as lady doctor was not available and was on leave. This witness stated that the prosecutrix was brought to the hospital on 4th June, 1995 at 4.15 p.m. however, no time is mentioned in the slip. This witness further stated that from Mahilpur, Primary Health Centre, Paldi is at a distance of 6 km and he had not referred the prosecutrix to Paldi. This witness further admitted that there is a common boundary wall between the hospital and Police Station Mahilpur. According to this witness, he had asked the patient, the purpose of medical examination but had not recorded her statement. It is further stated that police arrived at the Civil Hospital at 5.15 p.m. and had taken the patient along with them. Harish Chander Patwari, Halqa Paldi appeared as PW-3. He had prepared scaled site plan Ex.PG of the spot. In cross examination, he stated that other houses were at a distance of 3/4 karams from the tube well. Prosecutrix appeared as PW-4 and reiterated what was stated in the FIR. She had made small improvements in her statement. She stated that the wooden leg of the cot was broken due to struggle. She was confronted with her statement Ex.PG, where it was not so recorded. However, in examination in chief, this witness stated that police had taken into possession one lady purse Ex.P1, one Tamba Kara (copper bracelet), two earrings and handkerchief Ex.P2, P3 and P4 respectively. These articles were taken into possession vide recovery memo Ex.PH. One underwear and the brassier were also taken into possession in torn 6 Criminal Appeal No.898-SB of 1997 condition from the room, where sexual intercourse had taken place. They were exhibited as Ex.P5 and P9. Salwar Ex.P8 was also taken into possession from the spot. Police had also taken into possession the Jamper Ex.P14 and Pajama Ex.P15 (which was handed over to her by some person). In cross examination, this witness stated that she was medically examined by the doctor at Civil Hospital, Hoshiarpur. She stayed at the residence of her relative at Mahilpur. She went to the hospital on the next day after taking bath and wearing new clothes. However, she stated that she had not identified the appellant in the identification parade. Resham Singh appeared as PW-5. He stated that on 4th June, 1995 at 3.30 p.m. he was present in the shop when the prosecutrix came there. She informed him that rape had been committed upon her in the room meant for operator of Government tube well. At that time, prosecutrix was not wearing Salwar. Jaswinder Singh shopkeeper had given her Pajama to wear. The prosecutrix was handed over to the police as her father had come there. ASI Ram Chand appeared as PW-6. He proved statement Ex.PG, endorsement given by him Ex.PG/1 and the formal FIR Ex.PG/2. He further stated that he had prepared rough site plan Ex.PO and from the place of occurrence had taken into possession one quilt Ex.P11, one cot Ex.P12 and one pillow Ex.P13 vide recovery memo Ex.PK. He had also taken into possession underwear Ex.P5, Salwar Ex.P8 and one brassier Ex.P9. He proved various other facets of the investigation. He had arrested the accused appellant on 6th June, 1995. Constable Sodhi Singh PW-7 tendered his affidavit Ex.PM to prove link evidence. Hardip Singh SI appeared as PW-8. He had partly investigated the case and recorded statement of the witnesses. PW-9 Kewal Singh MHC Tanda tendered his affidavit Ex.PU to prove link evidence. 7 Criminal Appeal No.898-SB of 1997 All incriminating circumstances were put to the accused and his statement under Section 313 Cr.P.C. was recorded. He denied the same and divulged following version: “Yes sir, I have not committed rape with Devinder Kaur at the alleged place and time of occurrence. I am Government employee and also having property. I am bachelor. There was a talk regarding my marriage with Devinder Kaur PW through mediator Mohan Kaur. Devinder Kaur wanted to get married and I also agreed at one time but when I came to know that Devinder Kaur was having illicit relations with Resham Singh PW, then I refused for marriage. Thereafter, Devinder Kaur again compelled Mohan Kaur mediator to compel me for marriage. But I expressed my helplessness and thereafter Devinder Kaur prosecutrix spent one night with one Lakhwinder Singh before the medico legal examination and planted a false case against me.” In defence, accused had examined five witnesses. DW-1 Yadwinder Singh stated that Ravitej Singh was serving as a pump- operator and was having a landed property and was unmarried. There was a talk regarding marriage of Ravitej Singh and prosecutrix. The appellant agreed but later refused, learning that prosecutrix was having illicit relations with Resham Singh. Jasbir Singh DW-2 stated that he was Chowkidar on the tube well. He stated that no rape took place on 4th June, 1995 and false case had been planted against Ravitej Singh accused. Karnail Singh DW-3 stated that he was patrolman on the tube well and no incident had taken place. DW-4 Kashmir Kaur stated that accused person present in Court had never come to her house. Ram Parkash DW-5 stated that on 4th June, 1995 no girl or woman had come to him in naked condition and Pajama was not given to anybody. I have heard Mr.Hari Singh Mann, Senior Advocate assisted by Mr.K.S. Sidhu, appearing for the appellant and Mr. J.S. Bhullar, 8 Criminal Appeal No.898-SB of 1997 Assistant Advocate General, Punjab. Mr. Mann has forcibly contended that as the appellant had turned down the proposal of the prosecutrix to marry her, she felt offended and had falsely implicated the appellant. It is contended that in the present case, occurrence had taken place on 4th June, 1995 at 3.00 p.m. Even though statement of the prosecutrix was recorded on the same day at 6.30 p.m. and FIR was registered at 7.30 p.m., medico legal examination of the prosecutrix was not conducted and prosecutrix was medico legally examined by Dr.Renu on the next day i.e., on 5th June, 1995 at 10.45 a.m. A reference has been made to the statement of the prosecutrix in her cross examination, where she stated that she stayed at the house of her relative at Mahilpur, therefore, it was contended that adverse inference should be drawn against the prosecution. It is further submitted that defence evidence is cogent, reliable and trustworthy and a grave error has been committed by the trial Court in ignoring the same. It is further submitted that vagina of the prosecutrix admitted two fingers and she was a lady of easy virtue. Thus, no credence, should be granted by this Court, to her testimony. It is submitted that independent person Satinder Singh, who along with Resham Singh had taken her to the hospital has not been examined by the prosecution, therefore, no corroboration is coming to the testimony of the witness from the independent sources. It has been stated that testimony of PW-5 Resham Singh should be ignored, as in his statement recorded under Section 313 Cr.P.C. appellant had taken a specific stand that the prosecutrix was having illicit relations with Resham Singh. In the alternative, it has been submitted that in the present case, occurrence had taken place in year 1995 and the appellant has already suffered a protracted trial of about 15 years, therefore, taking into 9 Criminal Appeal No.898-SB of 1997 consideration the fact that the appellant has suffered agony and pain of protracted trial, sentence awarded to the appellant should be reduced. Mr. J.S. Bhullar, Assistant Advocate General, Punjab has submitted that no woman will put her reputation at stake to falsely implicate anybody, therefore, implicit reliance should be placed upon the testimony of the prosecutrix. I have considered submissions made by Mr.Mann. I am unable to agree with them. My reasons for discarding the arguments advanced by counsel for the appellant are as follows: (a) In the present case, FIR has been promptly lodged. The version divulged by the prosecutrix is spontaneous. The occurrence had taken place on 4th June, 1995 at 3.00 p.m. The report was made to the ASI Ram Chand PW-6 at 6.30 p.m. Case was registered at 7.30 p.m. Furthermore, PW-2 Dr.Daljinder Singh, Medical Officer, had stated that prosecutrix accompanied by Resham Singh and Satinder Singh reached at Govt. Health Centre, Mahilpur at 4.15 p.m. and the police also arrived at 5.15 p.m. (b) When the prosecutrix was medico legally examined there were seven injuries on her person. There were abrasions/contusions on the left elbow, back of right side of the chest, on left jaw, left ear labule, on neck, chin and the buttocks. These injuries are not only testimony to the struggle but also to the resistance offered by the prosecutrix. These injuries also corroborate the version of the prosecutrix that she was mercilessly beaten. PW-1 lady doctor Renu had specifically sated that these injuries show signs of struggle and are not self suffered. 10 Criminal Appeal No.898-SB of 1997 (c) The vaginal examination of the prosecutrix reveals that there was a tenderness and rupture of hymen. Same was reddish in colour and congested. It is proved that immediately before medico legal examination, she was subjected to sexual assault. (d) Medical Officer had specifically stated in cross examination that the patient was not habitual to sexual intercourse. No other effort was made by the defence counsel to impeach this assertion of the Medical Officer. (e) From the spot one underwear in torn condition, one Salwar and one brassier in torn condition Ex.P5, P8 and P9 respectively were recovered along with other articles, which lend corroboration to the testimony of the prosecutrix. Furthermore, quilt Ex.P11, pillow Ex.P12 and cot in broken condition were also recovered from the spot. These recoveries were effected by the investigating officer on the day of occurrence, i.e. on 4th June, 1995. (f) The version given by the prosecutrix is natural, probable and convincing. She ran away from the spot without Salwar and was given Pajama by some person from the public. (g) Resham Singh and Satinder Singh had accompanied the prosecutrix to the Police Station and Govt. Health Centre, Mahilpur. The accused had ventured to say that prosecutrix had illicit relations with Resham Singh. It is nothing else, but adding insult to the injury. In the cross examination, defence had miserably failed to cause any dent in the testimony of the prosecutrix. Except that a minor improvement for which she was confronted, defence could not gain 11 Criminal Appeal No.898-SB of 1997 anything. The defence witnesses examined are not trustworthy. The findings recorded by the trial Judge in the judgment to ignore the defence evidence are well founded on the facts and circumstances of the case and on the principles of appreciation of evidence. The conduct of the appellant and the fact that he caused injuries to the prosecutrix is such that he deserves no leniency. Hence, there is no merit in the present appeal and the same is dismissed. [KANWALJIT SINGH AHLUWALIA] JUDGE January 20, 2010 rps 12