IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.S-921-SB of 2002 Date of Decision: September 12, 2013 Tejinder Singh ...Appellant VERSUS The State of Punjab ...Respondent CORAM: HON'BLE MR. JUSTICE INDERJIT SINGH Present: Mr.Bipan Ghai, Senior Advocate with Mr.Mandeep Kaushik, Advocate for the appellant. Mr.Yogesh Gupta, Asstt. Advocate General, Punjab for the respondent-State. **** INDERJIT SINGH, J. The present appeal has been filed by the appellant against the judgment of conviction and order of sentence dated 22.03.2002, passed by the learned Addl. Sessions Judge, Jalandhar, whereby, he was held guilty and convicted and sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of ` 1000/- under Section 363 IPC and in default of payment of fine, to further undergo rigorous imprisonment for a period of nine months and further convicted and sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of ` 3000/- under Section 366 IPC and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year. He was also convicted and Gulati Vineet 2013.09.18 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-921-SB of 2002 -2- sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of ` 5000/- under Section 376 IPC and in default of payment of fine, to further undergo rigorous imprisonment for a period of one and a half year. All the sentences were ordered to run concurrently. Co-accused Dharamvir Singh was acquitted of the charges framed against him. The brief facts of the prosecution case are that on 24.07.1999 at 11.00 A.M. prosecutrix was coming back after purchasing the envelope from the post office. When she reached near the site of the Bhairo, then one white coloured car arrived there in which two persons, one of whom was Joga son of Mohni and the name of the other was not known, were sitting. Joga threw the prosecutrix into the car by gagging her mouth. The other companion of Joga drove away the car towards the side of Phillaur and took her to a place of an unknown well where a room was built. Both Joga and his companion committed rape upon her one after the other and they detained her in the room of the well for about two hours. After a gap of 2½ hours, they took her in the said car and left her on the brick kiln of Amrik Singh and fled away. The prosecutrix on coming back to the house narrated the said version to her parents. On being felt insulted of their reputation, they did not tell about the incident to anybody. However, later on Joga and his companion started chasing prosecutrix and on being fed up, they lodged the report regarding the incident to ASI Sucha Singh of P.S. Goraya on 27.09.1999. Statement of the prosecutrix Ex.PD was recorded and ruqa was sent to police station, Gulati Vineet 2013.09.18 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-921-SB of 2002 -3- on the basis of which FIR Ex.PD/2 was registered. Statements of witnesses were recorded. Rough site plan was prepared. Prosecutrix was medico-legally examined. Accused were arrested. Accused Tejinder Singh was also subjected to medical examination. After necessary investigation, challan was presented against the accused- appellant and supplementary challan was presented against co- accused Dharamvir Singh. On presentation of challan against accused-appellant and supplementary challan against co-accused, copies of challan and other documents were supplied to them under Section 207 Cr.P.C. Finding prima facie case, the accused-appellant and co-accused were charge-sheeted under Sections 363, 366A and 376(g) IPC, to which they pleaded not guilty and claimed trial. In support of its case, prosecution examined PW-1 Dr.Karnail Singh, who medico-legally examined accused-appellant on 26.05.2000 at 10.00 A.M. PW-2 Anita Kumari, Science Mistress brought the attendance register for the year 1999-2000. As per record, the prosecutrix was student of their school. Her name was registered on 20.05.1999. She has also brought the certificate file for the year 1999-2000 and a certificate was issued on 31.10.2000 by Rajni Kohli, Head Mistress of the school showing the date of birth of the prosecutrix as 30.10.1983. The copy of the certificate is Ex.PB. PW-3 Constable Balkar Singh, is the formal witness, who tendered into evidence his affidavit Ex.PC. PW-4 prosecutrix, mainly deposed as per prosecution version. PW-5 is mother of the prosecutrix. She Gulati Vineet 2013.09.18 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-921-SB of 2002 -4- also deposed as per prosecution version. She further deposed that Joga Singh is present in the court and she pointed accused Tejinder Singh as Joga Singh. PW-6 ASI Sucha Singh, is the Investigating Officer. He deposed regarding investigation conducted by him in the present case. PW-7 is the father of the prosecutrix. He also deposed as per prosecution version. He also stated that prosecutrix is now 14 years of age. PW-8 Dr.Gurinder Kaur Chawla, Medical Officer deposed that she medico-legally examined the prosecutrix on 05.10.1999. She stated that hymen was torn. She also gave the opinion that prosecutrix was subjected to sexual intercourse. At the close of prosecution evidence, the accused- appellant and co-accused were examined under Section 313 Cr.P.C. They denied the correctness of the evidence and pleaded themselves as innocent. Accused-appellant Tejinder Singh further pleaded that he has been falsely involved to blackmail him In defence, accused-appellant examined DW-1 Surinder Singh, Lamberdar, who mainly deposed regarding affidavits Ex.D1 and Ex.D2. DW-2 Inderdev Singh, Tehsildar deposed regarding attesting of the affidavits. On the basis of the evidence produced by the prosecution, accused-appellant was convicted and sentenced by the learned Addl. Sessions Judge, Jalandhar whereas co-accused Dharamvir Singh was acquitted as stated above. At the time of arguments, learned counsel for the appellant argued that in the statement under Section 164 Cr.P.C., name of the Gulati Vineet 2013.09.18 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-921-SB of 2002 -5- appellant has not been given by the prosecutrix, which creates doubt in the prosecution version. He further argued that there is delay in the recording of FIR of about two months, which also creates doubt in the prosecution version. The execution of affidavits Ex.D1 and Ex.D2 by the parents and prosecutrix also creates reasonable doubt in the prosecution version. He next contended that no birth certificate has been produced on the record to show that the prosecutrix was minor at that time. Learned counsel for the appellant further contended that Chemical Examiner's report cannot be connected with the appellant as FIR was registered in this case after a period of two months and as per PW-8 Dr.Gurinder Kaur Chawla, semen can be detected by the Chemical Analyst to the maximum period of about 15 days after the sexual intercourse. Learned counsel for the appellant, therefore, argued that there being merit in the appeal, it should be allowed and appellant should be acquitted. On the other hand, learned Asstt. Advocate General, Punjab for the respondent-State has argued that case of the prosecution has been duly proved. There is no evidence to disbelieve the school certificate. Secondly, PW-7 father of the prosecutrix also stated in his statement that prosecutrix's age was 14 years at the time of occurrence and there was no cross-examination on this ground and therefore, he argued that prosecutrix was minor at the time of occurrence. Learned State counsel further argued that the delay has been duly explained. The name of the present appellant Tejinder Singh son of Mohan Singh has been given as Joga Singh son of Gulati Vineet 2013.09.18 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-921-SB of 2002 -6- Mohni Singh in the FIR. Tejinder Singh is also known as Joga Singh and he was identified as Joga Singh in the Court by the prosecutrix as well as by mother of the prosecutrix. As regarding affidavits produced as Ex.D1 and Ex.D2, he argued that, at the most, it can be held as tampering with the evidence. These affidavits are not substantial evidence nor the same create any doubt in the prosecution version. He further argued that case of prosecution has been duly proved by the PWs. The oral statements of PWs are duly supported and corroborated by the medical evidence and the investigation of the case. There is nothing on the record that accused-appellant has been falsely implicated. Learned State counsel, therefore, argued that there being no merit, the appeal should be dismissed. I have gone through the record minutely and carefully and have heard learned counsel for the appellant as well as learned Asstt. Advocate General, Punjab for the respondent-State. From the evidence on record, I do not find any merit in the arguments of learned counsel for the appellant. First of all, it has been duly proved by the prosecution that the prosecutrix was less than 16 years of age at the time of occurrence as per the school certificate. Further, the father of the prosecutrix has also states her age as 14 years. The prosecutrix who appeared in the witness box, herself also given her age as 14 years. There was no cross- examination to challenge her age. There is also no other evidence on record nor there is any cross-examination to the parents of the prosecutrix regarding her age. As per school certificate, the date of Gulati Vineet 2013.09.18 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-921-SB of 2002 -7- birth of the prosecutrix is 30.10.1983 and the occurrence took place on 24.07.1999. Therefore, at that time, the prosecutrix was less than 16 years of age. Prosecutrix as PW-4 has deposed regarding the prosecution version consistently. The perusal of her cross- examination nowhere shows anything which may make her statement unreliable. There are no material contradictions or material improvements in the statements of PWs, which may go to the root of the case. The statement of prosecutrix has been duly supported and corroborated by the medical evidence as well as investigation of the case. Further, I find that the name of the present appellant has been given in the FIR recorded on 27.09.1999. Even, if it is taken that name of the appellant has not been given in the statement recorded under Section 164 Cr.P.C., it will not create any doubt as in the FIR, name of the appellant has been given. As regarding the delay in recording the FIR, it has been duly explained by the PWs. Even in the FIR, it is stated that after the occurrence, prosecutrix had told the incident to her parents but due to disrepute to family, the matter was not reported to the police but later on when the accused again chased prosecutrix, then the matter was reported to the police. It is settled law that delay in recording the FIR itself is not fatal to the prosecution case. In the case of delay, the Court is to appreciate evidence more cautiously and carefully. In the present case, I have gone through the statements very carefully and I find that there is no concoction or false implication of the appellant. Otherwise also, there is no reason or Gulati Vineet 2013.09.18 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-921-SB of 2002 -8- ground to falsely implicate the appellant. In Indian society, no unmarried girl would level such type of allegations falsely to bring disrepute to herself and her family. On the other hand, appellant has simply taken the plea that he is innocent. There is nothing on the record to show that the appellant has been falsely implicated in the present case. As regarding the affidavit given by the prosecutrix i.e. Ex.D2, I find that she has given this affidavit on 04.10.1999 and in this affidavit she has stated that her mental condition was not proper and she got registered DDR against Joga Singh and Dharamvir but they have not committed any rape upon her. This affidavit is not a substantial piece of evidence but the statement of prosecutrix in the Court levelling allegations against the present appellant is substantial piece of evidence. At the most, this affidavit can be stated to be as a previous statement. Similarly, the prosecutrix even in cross- examination has stated that Tehsildar had not enquired anything about the occurrence and had obtained her signatures on Ex.D1 and Ex.D2. She denied the suggestion that she had got recorded that Joga Singh had not committed any rape with her. On the basis of these affidavits, no benefit to the appellant can be given. If the appellant was not guilty, then why he obtained affidavit after the registration of this case from the prosecutrix etc. As regarding Chemical Examiner's report, even if it is taken that semen test cannot be conducted by the Chemical Examiner after 15 days and he found the semen on the swab after more than Gulati Vineet 2013.09.18 10:20 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.S-921-SB of 2002 -9- two months, no benefit to the appellant can be given. The prosecutrix has deposed against the appellant and there is no reason or motive to falsely implicate the appellant. Further, I find that prosecution has led cogent evidence to prove its case beyond reasonable doubt. The statement of prosecutrix is duly supported and corroborated by the statements of her parents. Her statement is further supported and corroborated by the medical evidence and investigation of the case. Therefore, from the above, I find that prosecutrix was kidnapped and rape was committed and accused-appellant has been rightly convicted. The impugned judgment of conviction and order of sentence passed by learned Addl. Sessions Judge, Jalandhar are correct and as per law and the same are upheld. Resultantly, the present appeal stands dismissed. As appellant Tejinder Singh is on bail, his bail bond stand cancelled and he is directed to surrender himself before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against him in accordance with law. September 12, 2013 (INDERJIT SINGH) Vgulati JUDGE Gulati Vineet 2013.09.18 10:20 I attest to the accuracy and integrity of this document Chandigarh