Crl.Appeal No. 1158-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal No.1158-SB of 2002 Date of decision: 4.3.2011 Surjit Singh … Appellant Versus State of Haryana … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Mr.Jagjeet Gill, Advocate, for the appellant. Mr.Raja Sharma, AAG, Haryana. Mr.B.S.Sidhu, Advocate, for the complainant. … JORA SINGH, J. This is an appeal filed by Surjit Singh to challenge the judgment of conviction and order of sentence dated 5.7.2002 passed by Additional Sessions Judge, Sirsa, in Sessions Case No. 105 dated 1997/2001, arising out of FIR No.275 dated 2.9.1996 under Sections 376/451/450 IPC, PS Kalanwali. By the said judgment, he was convicted under Section 376 IPC and sentenced to undergo RI for seven years and to pay a fine of Rs.5,000/-, in default of payment of fine, to further undergo RI for six months. Prosecution story, in brief, is that prosecutrix was married with Mander Singh two years ago but from this wedlock, no issue. Her husband was residing separately from his brother. On the intervening night of 1/2.9.1996, she along with her husband was sleeping in the verandah of her house. At about 3.30 AM, accused came and gave a call to Mander Singh that he has surplus water and he (Mander Singh) could irrigate his land. As per request of the accused, Mander Singh had gone to irrigate his land. Crl.Appeal No. 1158-SB of 2002 2 After that, she had slept in her house. After 30 minutes, accused again came and laid on her. String of her salwar was broken and she was raped against her wish. Her mouth was gagged. So, she failed to raise an alarm. In the meantime, her husband came back and on seeing her husband, accused had gone to the roof of her house and had jumped into the open plot of Hamir Singh. Later on, she came to know that accused got fractured his leg. Matter was reported to the panchayat and there was an effort to settle the matter but they failed to get justice from the panchayat. She was pregnant at the time of rape and pregnancy was 5 months' old. Prosecutrix along with her husband had gone to lodge report but near Mandi Kalanwali, police party headed by SI/SHO Ram Avtar had met the prosecutrix where her statement (Ex.PA) was recorded on 2.9.1996 at 1.15 PM. After making endorsement, statement was sent to the concerned police station, on the basis of which, formal FIR was recorded. Prosecutrix was produced before the doctor and she was medico legally examined. Accused was arrested and after completion of investigation, challan was presented in Court. Accused was charged under Section 376 IPC, to which he pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW1 is the prosecutrix. She has reiterated her stand before the police by saying that she was raped against her wish by the accused. PW2 Mander Singh is the husband of the prosecutrix and stated that he and his wife were sleeping in the courtyard of their house. At about 3.30 AM, accused came and requested him to use his surplus canal water. Crl.Appeal No. 1158-SB of 2002 3 He had gone to irrigate his fields. After 30-40 minutes, he came back, then accused was seen while committing rape upon his wife. On seeing him, accused had gone to the roof of the house and jumped into the nohra of Hamir Singh. Panchayat was convened but accused failed to appear before the panchayat. Then he along with his wife had gone to lodge report. PW3 ASI Kulwant Singh stated that the prosecutrix was produced before the doctor for medico legal examination. After examination, doctor handed over to him one copy of MLR and one parcel containing swabs and clothes, which were handed over to the IO. PW4 Subhash Chander, Draftsman, prepared scaled site plan (Ex.PC). PW5 J.R.Chauhan, JMIC, Sirsa, stated that on 4.9.1996, he had recorded the statement of the prosecutrix (Ex.PE). PW6 Dr. Bhushan Garg stated that on 6.9.1996, he had medico legally examined Surjit Singh and found him fit to perform sexual intercourse. PW7 Constable Om Parkash stated that SI Ram Avtar got the accused medico legally examined from Civil Hospital, Kalanwali. Doctor had handed one parcel containing underwear of the accused to SI Ram Avtar and the same was taken into police possession vide separate memo attested by him. PW8 Dr. Santosh Pasija on 2.9.1996 at 4.30 PM had medico legally examined the prosecutrix and observed as under:- “On examination, general condition of the patient was found fair. Date of last menstruation period was 21st April, 1996. She was married for two years and was having no living child at Crl.Appeal No. 1158-SB of 2002 4 that time. However, there was history of one abortion at 2-1/2 months gestation, and was having pregnancy at the time of examination. There was no external mark of injury present on any part of body, including breasts, arms, face etc. On abdominal examination, she was pregnant of 20 to 22 weeks gestation. Foetal parts palpable. Foetal movements were present. On prevignam examination, no mark of injury was present on genitalia and inner parts of thigh. Vagina easily admitted two fingers. OS was closed. No bleeding per vagina was present. White discharge was present. Two swabs taken and 2 smears prepared and handed over to the police for being sent to Chemical Examiner. She felt pain on examination.” PW9 HC Rajpal and PW10 Constable Mahinder Singh tendered their affidavits (Ex.PN and Ex.PO), respectively. PW11 Satbir Singh, Member Panchayat, stated that on 2.9.1996, Mander Singh, husband of the prosecutrix, lodged protest. Then panchayat was convened. Message was sent to the accused to appear before the panchayat. Then mother of the accused reported that accused got fractured his leg and was taken to Bathinda for treatment. PW12 SI Ram Avtar is the Investigating Officer. After close of the prosecution evidence, statement of 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 Mander Singh, husband of the prosecutrix, had taken loan from him as per pronote dated 1.2.1996. Mander Singh, Gian Singh and Sukhbir Singh had caused injuries Crl.Appeal No. 1158-SB of 2002 5 to him on the intervening night of 1/2.9.1996 when he was present in front of the house of Mander Singh. They were doubting the character of the prosecutrix and were suspecting that the prosecutrix was having illicit relations with him. Prosecutrix and Mander Singh after appearing in Court, then confessed before the panchayat that they made false statements in Court and gave their affidavits in duplicate. In defence, DW1 Narain Parshad, Finger Print Expert, proved report (Ex.DC). DW2 Karanjit Singh, Deed Writer, stated that Mander Singh had executed an agreement for sale on 20.5.1997 to alienate land measuring 8 kanals in favour of Sukhbir Singh. Rs.25,000/- was paid as earnest money. Sale deed was to be executed by 19.5.1998. DW3 Roop Singh, Chowkidar, stated that Mander Singh had borrowed Rs.5,000/- from Surjit Singh as per pronote/receipt in his presence. Payment was not returned in his presence. DW4 Premsukh Dass stated that stamp papers were purchased by Mander Singh and his wife for the purpose of affidavits. Entries were made in the register. DW5 Dr.S.L.Aggarwal stated that on 7.9.1996, injuries on the person of Surjit Singh were x-rayed and report is Ex.DH. DW6 Dr. Joginider Singh stated that on 6.9.1996 at 5.20 PM, Surjit Singh was brought from District Jail, Sirsa, and was admitted in the hospital. His left leg was found fractured. He was referred to General Hospital, Sirsa, for further treatment. DW7 Lajpat Rai stated that affidavits (Ex.DK and Ex.DK/1) of Mander Singh and Ex.DL and Ex.DL/1 of the prosecutrix were attested by Crl.Appeal No. 1158-SB of 2002 6 him as Notary Public on the identification of Gurdev Singh, Lambardar. Entries were made in the register. DW8 Kuldeep Singh Sidhu, Advocate, stated that Ex.DL is the affidavit of the prosecutrix. He had identified the deponent. DW9 Banta Singh stated that the accused is known to him. Case is false. 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 counsel for the appellant argued that according to the story, on the intervening night of 1/2.9.1996 at about 3.30 AM, appellant had gone to the house of the prosecutrix with a request to her husband to utilize his surplus water. Husband of the prosecutrix had gone to irrigate his land and in his absence, prosecutrix was raped by the appellant, but on the intervening night of 1/2.9.1996, appellant had no turn of water. So, no question to visit the house of prosecutrix with a request to utilize his surplus water. Ex.PD is the copy of warabandi. In fact, Mander Singh and his collaterals were doubting the character of the prosecutrix. They were suspecting that the prosecutrix has developed illicit relations with the appellant. When appellant was in front of the house of Mander Singh, then Mander Singh and his collaterals had caused injuries to him. Appellant was medico legally examined and injuries were noticed by the doctor. Mander Singh had borrowed Rs.5,000/- from the appellant, as per pronote/receipt dated 1.2.1996. Payment was demanded but Mander Singh was not ready to Crl.Appeal No. 1158-SB of 2002 7 return the payment. Mander Singh was inimical towards the appellant. So, appellant was falsely implicated in this case. Prosecutrix and Mander Singh after appearing as PWs, then admitted before the panchayat that appellant was falsely implicated. They made false statements in Court. Stamp papers were purchased. Affidavits (Ex.DK and Ex.DL) are on the file showing that story is not correct one. Lastly argued that prosecutrix was married and at this stage, is having children. Appellant is also married and is having children. Parties have effected compromise. Requested that in view of compromise, lenient view may be taken because appellant has already undergone one year, one month and twelve days. Learned State counsel argued that compromise on file produced by the appellant shows that prosecution story is correct one. In case, there was no rape, then there was no idea to effect compromise. Evidence on the file was rightly scrutinized by the trial Court. First submission of learned defence counsel for the appellant was that as per copy of warabandi (Ex.PD), on the intervening night of 1/2.9.1996, appellant had no turn of water, so there was no reason to visit the house of the prosecutrix with a request to Mander Singh, husband of the prosecutrix, to utilize his surplus water. After going through the evidence on the file, I am not in a position to agree with the submission of learned defence counsel for the appellant. Ex.PD shows that appellant had a turn of water but the question is whether at the relevant time, i.e., on the intervening night of 1/2.9.1996, appellant had a turn of water of not. According to Ex.PD, appellant had no turn of water at about 3.30 AM on the intervening night of 1/ 2.9.1996 but no evidence on the file that complainant party had the knowledge that at about 3.30 AM, appellant had Crl.Appeal No. 1158-SB of 2002 8 no turn of water. Something could be said if complainant party had the knowledge that at about 3.30 AM, appellant had no turn of water. Evidence rather shows that appellant had gone to the house of the prosecutrix on the intervening night of 1/2.9.1996 at about 3.30 AM with a request to utilize his surplus water. Appellant had a turn of water. Keeping in view the request of the appellant as genuine one, husband of the prosecutrix had gone to his fields to irrigate land as per turn of the appellant. No suggestion was given to the husband of the prosecutrix that he had not irrigated his land on that day. No person appeared in defence to state that husband of the prosecutrix or the appellant was not owning land and they had no turn of water. Common experience shows that when one party has a turn of water in the evening and the second party in the morning, then after making adjustment with other land owners, surplus water of first party is utilized by the second party when second party has a turn of water. Similarly in the case in hand, appellant had a turn of water but his turn was not at about 3.30 AM. On the request of appellant, husband of the prosecutrix had gone to his fields to utilize his surplus water. In the absence of husband of the prosecutrix, appellant had raped the prosecutrix. When husband of the prosecutrix came back, then appellant was seen while raping the prosecutrix. Next submission of learned defence counsel for the appellant was that complainant party was suspecting that the prosecutrix developed illicit relations with the appellant. Mander Singh and his collaterals had caused injuries to the appellant. Story regarding receipt of injuries while fleeing from the spot is not correct one. But submission of learned defence counsel for the appellant is without any force. In case, Mander Singh and Crl.Appeal No. 1158-SB of 2002 9 his collaterals had caused injuries to the appellant, then appellant should have lodged report. If police was siding with the opposite party, then private complaint should have been filed. No criminal case against Mander Singh and others for causing injuries to the appellant. No private complaint against Mander Singh and others. Appellant was medico legally examined on 7.9.1996. If appellant had received injuries on the intervening night of 1/2.9.1996 at the hands of Mander Singh and others, then immediately after the occurrence, appellant should have been medico legally examined. As per injuries noted on the person of the appellant, left leg was found fractured. Prosecution story is to the effect that when the appellant was seen while raping the prosecutrix, then appellant had gone to the roof of the house and jumped into the nohra of Hamir Singh. Panchayat was convened but appellant failed to appear before the Panchayat. According to defence version, appellant received injuries on the intervening night of 1/2.9.1996. If appellant had received injuries at the hands of Mander Singh and others, then on the next day, he should have been medico legally examined. But no explanation why on 2.9.1996, appellant was not medico legally examined. Story regarding receipt of injuries at the hands of Mander Singh and others is not correct one. In fact, after committing crime when appellant had gone to the roof of the house and had jumped into the nohra of Hamir Singh, then he received injuries. MLR of appellant shows that his left leg was found fractured. Injuries were received on the intervening night of 1/2.9.1996 but only dispute is whether injuries had been caused by Mander Singh and others or while fleeing from the spot. Next submission of learned defence counsel for the appellant was that Mander Singh had borrowed payment from the appellant as per Crl.Appeal No. 1158-SB of 2002 10 pronote/receipt dated 1.2.1996. Mander Singh was not ready to return the payment with interest. Due to this reason, appellant was falsely implicated in this case. DW3 Roop Singh stated that Mander Singh had borrowed Rs.5,000/- as per pronote/receipt but payment was not returned but defence version seems to be not reasonable one. Suppose Mander Singh had borrowed Rs.5,000/- as per pronote/receipt dated 1.2.1996, then appellant should have issued notice for return of principal amount with payment. Period of limitation to file suit for recovery was three years. In the month of February, 1999, appellant was expected to file suit for recovery on the basis of pronote/receipt dated 1.2.1996. Nothing on the file that Mander Singh was not ready to return payment as per pronote/receipt dated 1.2.1996. Due to non payment of principal amount with interest as per pronote/receipt dated 1.2.1996, there was no idea to name the appellant, particularly when reputation of married lady and honour of the family was at stake. If Mander Singh was not ready to return payment, then suit for recovery could easily be instituted. No reason to implicate the appellant when dispute was of Rs.5,000/- as per pronote/receipt with this allegation that married lady was raped against her wish. Next submission of learned defence counsel for the appellant was that Mander Singh had executed agreement to sell dated 20.5.1997 in favour of Sukhbir Singh. Sale deed was to be executed by 19.5.1998. Suppose Mander Singh had executed agreement to sell dated 20.5.1997, then Sukhbir Singh should have filed suit for specific performance of contract. No evidence on the file what was the relation of Sukhbir Singh with the present appellant. If there was an agreement to sell, then there was efficacious remedy to get the sale deed executed. There was no idea to Crl.Appeal No. 1158-SB of 2002 11 involve married lady with this allegation that she was raped against her wish. If the appellant was to be implicated, then complainant party could easily level an allegation that Mander Singh was given beatings or some household articles were stolen. So, with the execution of pronote or receipt or agreement to sell, no reason to disbelieve the prosecutrix. Last submission of learned defence counsel for the appellant was that parties effected compromise. So, in view of the compromise, lenient view may be taken. In support of his contention, learned defence counsel for the appellant cited (i) judgment dated 8.12.2008 in Crl.Misc.No.27145-M of 2008 (Anurag vs. State of Haryana and another), (ii) judgment dated 21.7.2008 in Crl.Misc.No.17249-M of 2008 (Rajinder Singh and another vs. State of Haryana and another), (iii) Crl.Appeal No.638-SB of 2006 decided on 12.12.2007 (Kashmira Singh and others vs. UT, Chandigarh), (iv) 2007(3) RCR (Crl.) 1052, Kulwinder Singh and others vs. State of Punjab and another, and (v) 2007(3) RCR (Crl.) 600, Santokh Singh vs. State of Punjab. I have gone through the authorities cited by learned defence counsel for the appellant but the authorities are not helpful to the appellant. In Anurag's case (supra), petition was under Section 482 Cr.P.C. for quashing of FIR under Sections 323/328/376/506 IPC on the basis of compromise before conviction. In Rajinder Singh and another's case (supra), again petition was under Section 482 Cr.P.C. for quashing of FIR under Sections 420/376/506/120-B IPC on the basis of compromise. FIR was quashed on the allegation that no useful purpose would be served by proceeding with the prosecution when the complainant party was not going to support the Crl.Appeal No. 1158-SB of 2002 12 prosecution. In Kashmira Singh and others' case (supra), appellants were convicted under Sections 323/324/149/325/149/427/452/147/148 IPC. Parties had effected compromise. Before conviction, petition under Section 482 Cr.P.C. was filed to quash the proceedings but same was not allowed as the offences were not compoundable. So, after conviction in view of the compromise, appeal was disposed of. In Kulwinder Singh's case (supra), Full Bench of this Hon'ble High Court held that in case of non-compoundable offences, parties entering into compromise-High Court has power to quash the prosecution to secure ends of justice- This power is not confined to matrimonial disputes alone- Court has power to quash the prosecution when dispute amongst the landlord, tenant, commercial transaction, matrimonial discord. In Santokh Singh's case (supra), appellant was convicted under Section 307 IPC. Complainant and accused were real brothers. In view of the compromise, accused was directed to pay compensation to his brother. In AIR 2011 SCW 1475, Baldev Singh and others vs. State of Punjab, incident was 14 years old. Accused and prosecutrix both married. Parties entered into compromise. Appellants had already undergone 3-1/2 years. Appellants were directed to deposit Rs.50,000/- each as fine. But in the present case, appellant has undergone only 1 years, 1 month and 12 days. Appellant was not married and not ready to pay compensation. In view of compromise, no ground to acquit the appellant. Appellant was 29 years' old at the time of commission of crime. In view of custody certificate, he has undergone 1 year, 1 month and 12 days. Learned counsel for the appellant argued that keeping in view the age Crl.Appeal No. 1158-SB of 2002 13 of the appellant and custody period, appellant may be directed to undergo imprisonment already undergone, but keeping in view the nature of offence, no reason to take lenient view. Appellant is from the village of the prosecutrix. Prosecutrix was married and pregnant. During night time, appellant had gone to the house of the prosecutrix with intention to commit the crime. Husband of the prosecutrix was sent to irrigate his fields by saying that he (appellant) has surplus water and he can use the same for irrigation purpose. If lenient view is taken, then no lady would be safe at her house. In view of all discussed above, I am of the opinion that evidence on the file was rightly scrutinized by the trial Court. There is no infirmity or illegality in the impugned judgment and the same is upheld. Appeal without merit is dismissed. Appellant is on bail. He is directed to surrender before the concerned authority to undergo imprisonment as ordered by the trial Court, failing which, concerned authority/CJM, Sirsa, to issue re-arrest warrants to undergo the remaining period of sentence. 4.3.2011 (JORA SINGH ) pk JUDGE