Crl.Appeal No.1113-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal No.1113-SB of 2002 Date of decision: 13.10.2010 Narinder Singh @ Banti … Appellant Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Mr.Kundan Lal Chaudhari, Advocate, for the appellant. Mr.Arshvinder Singh, DAG, Punjab. … JORA SINGH, J. Narinder Singh @ Banti directed this appeal against the judgment of conviction and order of sentence dated 12.7.2002 passed by Additional Sessions Judge, Amritsar, in Sessions Case No. 42 of 2000, arising out of FIR No.41 dated 22.2.2000 under Sections 376/452/506 IPC, PS, Ajnala. By the said judgment, he was convicted under Sections 376/452/506 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 two months under Section 376 IPC, 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 month under Section 452 IPC and to undergo RI for one year under Section 506 IPC. All the substantive sentences were ordered to run concurrently. Prosecution story, in brief, is that Jatinder Kaur (for short `the prosecutrix’), aged about 19/20 years, is the resident of Village Chhina Crl.Appeal No.1113-SB of 2002 2 Karam Singh. She has three brothers including Daljit Singh. There is boundary wall around her residential house but no outer gate. On the intervening night of 19/20.2.2000, she was sleeping in her house and at about 11.30 PM, she got up to urinate and went towards hand pump of their house. In the meantime, accused came in the court yard of her house and caught hold her from her arms and threatened to eliminate in case raised noise. She was taken towards the heap of paddy straw. Forcibly string of her salwar was broken and salwar was removed. She was made to lay on the ground and raped against her wish. She started making shrieks and on hearing her shrieks, her mother Dalwinder Kaur and brother Daljit Singh came at the spot. At that time, accused was committing rape on her and on seeing them, accused tried to run away from the spot, but was caught by her brother Daljit Singh. There was a scuffle amongst the accused and her brother Daljit Singh and in that scuffle, accused received minor injuries but he managed to run away from the spot. Her father is a truck driver and on telephone, information was given to him. Her father came and then entire story was brought to his notice. After that, she was going to lodge report but near `T’ point of Village Isapur at about 8.00 AM, police party headed by SI/SHO Balkar Singh had met her. Her statement (Ex.PA) was recorded. After making endorsement (Ex.PA/1), statement was sent to the concerned police station, on the basis of which, formal FIR (Ex.PA/2) was recorded. Prosecutrix was produced before the doctor for medical examination. Accused was arrested on 23.2.2000 and produced before the doctor for medical examination. Swabs taken by the doctor at the time of medico legal examination of the prosecutrix were sent to Chemical Examiner. As per report of Chemical Examiner, semen was found on the Crl.Appeal No.1113-SB of 2002 3 swabs. Rough site plan with correct marginal notes was prepared. Statements of witnesses were recorded and after completion of investigation, challan was presented in the Court. Accused was charged under Sections 376/452/506 IPC, to which he pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined 8 witnesses. PW1 is the prosecutrix and stated on oath that on the intervening night of 19/20.2.2000, she was sleeping in her house and at about 11.30 PM, she got up to urinate and went towards hand pump of their house. In the meantime, accused came in the court yard of her house and caught hold her from her arms and threatened to eliminate in case raised noise. She was taken towards the heap of paddy straw, where she was raped against her wish. She raised shrieks and on hearing her shrieks, her mother Dalwinder Kaur and brother Daljit Singh came at the spot. At that time, accused was committing rape on her and on seeing them, accused tried to run away from the spot, but was caught by her brother Daljit Singh. There was a scuffle amongst the accused and her brother Daljit Singh and in that scuffle, accused received some injuries but he managed to run away from the spot. Her father is a truck driver and was outside. Intimation was given to him on telephone. When her father came, then entire story was brought to his notice. After that, she was going to lodge report but near `T’ point of Village Isapur at about 8.00 AM, police party headed by SI/SHO Balkar Singh had met her. Her statement was recorded. She was medico legally examined by the doctor. Crl.Appeal No.1113-SB of 2002 4 PW2 Dalwinder Kaur is the mother of the prosecutrix. She has supported the prosecution story. PW3 Dr.Alok Narain Sharma on 23.2.2000 has medico legally examined the accused. Ex.PB is the copy of MLR. Accused was found fit to perform sexual intercourse. PW4 Dr. Manjit Singh on 22.2.2000 has medico legally examined the prosecutrix. Ex.PF is the copy of MLR. Doctor observed as under:- “Her LMP according to Jatinder Kaur was 28.1.2000. 1. There was no injury mark present on the body. 2. The secondary sex characters were developed. Breast was developed. Axillary hair were present. Arebla was light brown in colour. Pubic hair were present. 3. There was no bleeding from the vagina. The hymen had irregular, healed, granular margin. The vaginal entrotius admits two fingers. 4. Vaginal swab taken for confirmation of spermatozoa.” PW5 Jagtar Chander, Head Teacher, brought record and stated that as per record, copy of which is Ex.PW5/A, date of birth of prosecutrix is 6.1.1978. PW6 SI Balkar Singh is the Investigating Officer. PW7 Constable Gurnam Singh tendered his affidavit (Ex.PW7/A). PW8 Constable Kewal Singh tendered his affidavit (Ex.PW8/A). Crl.Appeal No.1113-SB of 2002 5 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 that he was falsely implicated due to enmity. He has been illegally detained by the police on 19.2.2000. Daljit Singh had caused injuries to him. With the connivance of police, false case was got registered against him. In defence, DW1 Tarsem Singh, Ahlmad, stated that Ex.D1 is the photostat copy of application, on which he identified the signatures of Presenting Officer on the order dated 21.2.2000. 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. Learned defence counsel for the appellant argued that prosecutrix was 19/20 years’ old at the time of occurrence and as per doctor, she was habitual to sexual intercourse. Prosecutrix was having illicit relations with the appellant. She was the consenting party. According to story, occurrence was at about 11.30 PM. There was a boundary wall outside the house of the prosecutrix but no main gate. Prosecutrix had gone to urinate and was present near the hand pump, when appellant was sighted inside the court yard of her house. In case appellant had caught hold the prosecutrix from her arms, then prosecutrix should have raised alarm. Distance of hand pump was 100 feet from the verandah where prosecutrix was sleeping. Heap of paddy straw was at a distance of 200 feet from the Crl.Appeal No.1113-SB of 2002 6 hand pump. Near the hand pump, prosecutrix was caught hold by the appellant and after covering a distance of 200 feet, prosecutrix was raped near the heap of paddy straw. If the prosecutrix was not the consenting party, then she should have raised hue and cry. Letters (Mark A to C) were put to the prosecutrix that the same were written by her to the appellant but the prosecutrix denied to have written those letters to the appellant. Appellant was residing in a dera and dera was at some distance from the village. House of the prosecutrix was within abadi. After occurrence, number of persons had collected at the spot. Intimation was also given to Sarpanch but no one was examined by the prosecution. Prosecutrix is the real sister of Daljit Singh. Kanwalpreet Singh had filed complaint against Daljit Singh. Daljit Singh had also filed complaint against Kanwalpreet Singh. Appellant had appeared as a witness in favour of Kanwalpreet Singh and this fact was admitted by Dalwinder Kaur. Daljit Singh and his mother were inimical towards the appellant because prosecutrix was having illicit relations with the appellant. Daljit Singh and his mother Dalwinder Kaur were restraining the prosecutrix to continue illicit relations with the appellant. When Daljit Singh and Dalwinder Kaur came to know about the illicit relations of prosecutrix with the appellant, then to seek revenge, story was concocted that prosecutrix was raped by the appellant. In case prosecutrix was raped against her wish, then she should have raised hue and cry. Salwar worn by the prosecutrix was not produced before the police. No injury was noticed on the person of the prosecutrix. Evidence shows that with the consent of the prosecutrix, appellant had gone to the house of the prosecutrix at about 11.30 PM. There is a possibility that mother and brother might have seen the prosecutrix in the company of the appellant. Crl.Appeal No.1113-SB of 2002 7 Appellant was given beatings and this fact is clear from the copy of MLR. Application was also given to the Court by the father of the appellant on the allegation that appellant was illegally detained by the police and be got medico legally examined. Possibility of false implication due to previous enmity when prosecutrix was having illicit relations with the appellant and was not agreeing to discontinue illicit relations cannot be ruled out. Learned State counsel argued that the prosecutrix was unmarried. No evidence on the file that Kanwalpreet Singh had filed complaint before the present occurrence or after the present occurrence. No evidence on the file whether appellant had appeared against Daljit Singh before the present occurrence. Copy of the statement of appellant could easily be produced to show that appellant had appeared against brother of the prosecutrix before the present occurrence. If appellant had appeared as a witness against Daljit Singh before the present occurrence, only then, learned defence counsel was right to argue that there was previous enmity amongst the parties. As per report of the doctor, prosecutrix was raped. Semen was detected. Before the present occurrence, there was no complaint on the allegation that appellant developed illicit relations with the prosecutrix and is not agreeing to discontinue illicit relations. Suggestion was given to the witnesses that before the present occurrence, Daljit Singh had given injuries to the appellant. Suggestion was given to the prosecutrix that she was having illicit relations with the appellant, then her brother gave beatings to the appellant. Mother of the prosecutrix appeared as PW2 but suggestion was given to her that in case of Kanwalpreet Singh, appellant received injuries. Copy of complaint filed by Kanwalpreet Singh is not on the record to show that as per allegation, appellant had received injuries in Crl.Appeal No.1113-SB of 2002 8 the occurrence. Kanwalpreet Singh was not produced in defence to state that he along with appellant had received injuries at the hands of Daljit Singh and in the complaint, appellant had appeared as a witness before the present occurrence. If prosecutrix was habitual to sexual intercourse, then nothing to presume that she was having illicit relations with the appellant. When the prosecutrix had gone to urinate, then near the hand pump she was caught hold by the appellant. Appellant had threatened the prosecutrix to eliminate if raised raula. Due to this reason, prosecutrix failed to raise raula. When prosecutrix was being raped, then she raised shrieks. On hearing shrieks, mother and brother of the prosecutrix had gone at the spot. Appellant was apprehended by Daljit Singh. Injuries were caused to the appellant. Original complaint, copy of which is Ex.D1, is not on the file. Ex.D1was produced on the allegation that Daljit Singh gave beatings to the appellant on 19.2.2000 when he was seen while raping the prosecutrix. Appellant was in illegal custody of the police and was given beatings. If prosecutrix was the consenting party, then there was no idea to raise shrieks. Injuries noted on the person of the appellant show that appellant was caught hold by Daljit Singh when he was committing rape on the prosecutrix. Marks A to C are the letters on the file, but no expert was examined for comparison of disputed hand writing with the specimen hand writing of the prosecutrix. If the appellant was to be falsely implicated, then complaint could easily be filed against the appellant on the allegation that he had stolen some house hold articles. There was no idea to involve unmarried girl. Allegation of prosecution was that at about 11.30 PM on 19.2.2000, prosecutrix was raped against her wish near the heap of paddy Crl.Appeal No.1113-SB of 2002 9 straw lying near the house of the prosecutrix, whereas defence version of the appellant was that prosecutrix was having illicit relations with the appellant. Prosecutrix was habitual to sexual intercourse. When this fact came to the notice of mother and brother of the prosecutrix, then false case was got registered against the appellant by Daljit Singh, brother of the prosecutrix. Brother of prosecutrix was inimical towards the appellant because appellant had appeared as a witness in favour of Kanwalpreet Singh, who had filed complaint against Daljit Singh. Now the question is whether the prosecutrix was the consenting party or she was raped against her wish. Prosecutrix appeared as PW1 and stated that on 19.2.2000, she was sleeping in the verandah of her house and at about 11.30 PM, she got up to urinate and was present near hand pump, where appellant was seen. She was caught hold by the appellant. Appellant had threatened to eliminate her if raised noise. Near the heap of paddy straw, she was raped against her wish. She raised shrieks attracting her mother and brother. Her father was a truck driver. Intimation was given to him on telephone and when he came, then entire matter was brought to his notice. After that, matter was reported to the police. Suggestion was given to the prosecutrix that she wrote letters (Mark A to C), to the appellant but suggestion was denied. One thing is clear from the statement of the prosecutrix that her house was within the abadi, whereas appellant was residing in a dera situated at some distance from the village. Second suggestion to the prosecutrix was that she was having illicit relations with the appellant, meaning thereby, she was the consenting party, but suggestion was denied by the prosecutrix. Prosecutrix stated that she was caught hold by the appellant from her arms and was Crl.Appeal No.1113-SB of 2002 10 threatened to eliminate if raised raula. Her mouth was shut and was raped against her wish. When she raised shrieks, then her mother and brother came at the spot. Her brother caught hold the appellant and when appellant tried to run away, then some injuries were caused to him. Appellant was arrested on 23.2.2000 and was produced before Dr. Alok Narain Singh. Ex.PB is the copy of MLR. Three injuries were noted on the person of the appellant. Suggestion was given to the prosecutrix that Kanwalpreet Singh had filed complaint against her brother Daljit Singh. Daljit Singh filed complaint against Kanwalpreet Singh and in the complaint filed by Kanwalpreet Singh, appellant had appeared as a witness but reply of the prosecutrix was that she cannot tell whether any complaint was filed by Kanwalpreet Singh and in his favour, appellant had appeared as a witness against her brother or not. Last suggestion to the prosecutrix was that appellant appeared as a witness against Daljit Singh. Due to this reason, false case was got registered. That means, before present occurrence, appellant had appeared as a witness against Daljit Singh in a complaint filed by Kanwalpreet Singh but copy of statement not on the file. Kanwalpreet Singh was also not produced to state that he had filed complaint against Daljit Singh and in that complaint, appellant had appeared as a witness from his side. In the absence of copy of statement or copy of complaint not safe to opine that before the present occurrence, Kanwalpreet Singh had filed complaint against Daljit Singh. Second complaint was filed by Daljit Singh against Kanwalpreet Singh and in the complaint filed by Kanwalpreet Singh, appellant had appeared as a witness. After the occurrence, there was a possibility of complaint by Kanwalpreet Singh against Daljit Singh and by Crl.Appeal No.1113-SB of 2002 11 Daljit Singh against Kanwalpreet Singh and appearance of appellant as a witness because prosecutrix and her mother appeared in Court on 26.9.2000, whereas occurrence is dated 19.2.2000. Possibility of injuries by Daljit Singh at the time of occurrence cannot be ruled out. If before the present occurrence, Daljit Singh had caused injuries to Kanwalpreet Singh or the appellant, then certified copy of complaint or summoning order or copy of statement of appellant could easily be produced to show that both the complaints were before the present occurrence and in one complaint, appellant had appeared on behalf of Kanwalpreet Singh. Dalwinder Kaur, mother of the prosecutrix, admitted that appellant had appeared as a witness in favour of Kanwalpreet Singh but as discussed earlier, question is whether he had appeared as a witness before the present occurrence or after the occurrence. If the appellant had appeared as a witness before the present occurrence against Daljit Singh, then there was no doubt to opine that appellant was inimical towards Daljit Singh. If appellant had appeared against Daljit Singh after the present occurrence, then there was no question of enmity amongst the appellant and Daljit Singh and due to enmity, false implication. Statement of the prosecutrix alone is sufficient to convict the accused but statement should inspire confidence. Statement of the prosecutrix is not a gospel truth. According to the prosecutrix, she failed to raise raula when she was caught hold by the appellant because appellant had threatened to eliminate her. Secondly her mouth was shut. Prosecutrix raised raula while she was being raped by the appellant. If the prosecutrix was the consenting party, then there was no idea to raise raula. After sexual intercourse, prosecutrix could easily go to Crl.Appeal No.1113-SB of 2002 12 her bed because there was no light in the house and there was no raula. So, no question for the mother and brother to woke up. One suggestion given to the prosecutrix was that letters (Mark A to C) were written by the prosecutrix because she was having illicit relations with the appellant but no expert was examined for comparison of the disputed writing with the specimen or standard writing of the prosecutrix. According to the story, when mother and brother of the prosecutrix came at the spot on hearing shrieks of the prosecutrix, then appellant was seen while committing sexual intercourse with the prosecutrix. On seeing mother and brother of the prosecutrix, appellant tried to fled away from the spot. He was caught hold by Daljit Singh, brother of the prosecutrix. There was a scuffle amongst Daljit Singh and the appellant and in that scuffle, Daljit Singh gave injuries to the appellant. That means, appellant was seen at the spot and was given injuries by Daljit Singh. Appellant was arrested on 23.2.2000 and was got medico legally examined. Injuries were noted on his person. Appellant when examined under Section 313 Cr.P.C., then did not state a word that at about 11.30 PM on 19.2.2000, injuries were not caused to him by Daljit Singh near his house. No explanation by the appellant from where and when and by whom injuries were caused. Suggestion was given to Dalwinder Kaur that in case of Kanwalpreet Singh, appellant received injuries. Copy of complaint by Kanwalpreet Singh is not on the file to show as to what was the date of occurrence. Whether in that occurrence, appellant had also received injuries and who had caused injuries. Kanwalpreet Singh not produced in Court to state that he along with appellant had received injuries at the hands of Daljit Crl.Appeal No.1113-SB of 2002 13 Singh. Copy of MLR could easily be produced to show that on such and such date, number of injuries were noticed on the person of appellant before the present occurrence. No question was put to the doctor that injuries noted were caused to the appellant before 19.2.2000. Probable duration of injuries was not given by the doctor. Appellant when examined under Section 313 Cr.P.C., then did not state a word that he had also received injuries along with Kanwalpreet Singh at the hands of Daljit Singh and complaint was filed by Kanwalpreet Singh. Defence version of the appellant was that he was illegally detained by the police on 19.2.2000. Daljit Singh has caused injuries to him and with the connivance of police, false case was got registered. That means, appellant received injuries as per prosecution story and if he had received injuries earlier to the present occurrence, then copy of MLR or statement should have been produced. Not a word was stated by the appellant when examined under Section 313 Cr.P.C. that he had illicit relations with the prosecutrix. Secondly, he had appeared as a witness against Daljit Singh. In defence, Ahlmad was examined but original of Ex.D1 not produced for the reasons best known to the appellant. Ex.D1 is not legible. Ex.D1 was produced to show that on 19.2.2000, injuries were caused to the appellant and appellant was in illegal custody of the police. Request was for his medico legal examination. There is not a word in the application that appellant and Kanwalpreet Singh received injuries at the hands of Daljit Singh. No allegation that appellant had received injuries earlier to the present occurrence. So, filing of application (Ex.D1), statement of Dr. Alok Narain Sharma, who noted the injuries at the time of medico legal examination of the appellant, and suggestion to Dalwinder Kaur that in case Crl.Appeal No.1113-SB of 2002 14 of Kanwalpreet Singh, appellant had received injuries, show that appellant received injuries when he was caught hold while committing the crime by Daljit Singh. As discussed earlier, according to the doctor, prosecutrix was habitual to sexual intercourse. Presuming statement of the doctor as correct one, then, as discussed earlier, prosecutrix was not the consenting party. If she was the consenting party, then there was no idea to raise shrieks. There was no light. Without raula and light, mother and brother of the prosecutrix were not expected to know that at 11.30 PM, prosecutrix and the appellant were to be near the heap of paddy straw. No doubt, appellant was residing in a dera situated at some distance from the village, but it was for the appellant to see at what time and where he was to commit the crime. If prosecutrix was habitual to sexual intercourse, then appellant had no right to rape her and if prosecutrix was the consenting party, then there was no idea to raise raula. In 2000(1) RCR (Crl.) 311, Hari Chand vs. State, Prosecutrix aged 23 years- No scuffle, no resistance, no injury marks on prosecutrix- Hymen of prosecutrix was not intact and vagina admitted two fingers and she was used to sexual intercourse- Then Court opined that prosecutrix was a consenting party. In 2010(1) RCR (Crl.) 166, Sunil