-1- Criminal Appeal No.386-SB of 1999. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Appeal No.386-SB of 1999. Date of Decision: February 10, 2010. Avtar Singh and another ...Appellants VERSUS State of Punjab ...Respondent 1. Whether the Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? CORAM : HON'BLE MR. JUSTICE MOHINDER PAL. Present: Mrs. Baljeet Kaur Mann, Advocate, for the appellants. Mr. Vishal Munjal, Additional Advocate General, Punjab. -.- MOHINDER PAL, J. Appellants Avtar Singh and Sohan Lal along with Gian Singh (acquitted accused) were charged under Sections 366, 506, 342 and 376 (2) (g) of the Indian Penal Code (for short `the Code') by the learned Sessions Judge, Hoshiarpur vide -2- Criminal Appeal No.386-SB of 1999. amended charge sheet dated 26.2.1999. Earlier, vide charge sheet dated 8.1.1997, they were charge sheeted under Sections 366, 506 read with Section 34, 376 read with Section 34 and Section 342 of the Code. Vide judgment of conviction and the sentence order dated 27.2.1999 passed by the trial Court, appellant Avtar Singh was convicted and sentenced under Sections 366, 506, 342 and 376 (2) (g) of the Code whereas appellant Sohan Lal was convicted and sentenced under Sections 342 and 376 (2) (g) of the Code. Under Section 376 (2) (g) both the appellants were sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs.1,000/- each, in default whereof to undergo further rigorous imprisonment for two months. Under Section 342 of the Code, the appellants were sentenced to undergo rigorous imprisonment for one year. Appellant Avtar Singh, under Section 366 of the Code was sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.500/- in default whereof to undergo further rigorous imprisonment for one month. Under Section 506 of the Code, appellant Avtar Singh was sentenced to undergo rigorous imprisonment for one year. The substantive sentences awarded to the appellants were ordered to run concurrently. Hence this appeal by appellants Avtar Singh and Sohan Singh. Co-accused of the appellants, namely, Gian Singh was acquitted of the charge framed against him by the trial Court. The instant F.I.R was registered against the appellants -3- Criminal Appeal No.386-SB of 1999. on the basis of statement (Exhibit P.F) made by the prosecutrix (name withheld). On 22.7.1996 at about 8.30 P.M, as per the version contained in the statement of the prosecutrix (Exhibit P.F), she went to ease herself in the maize crop field adjoining their `Haveli'. She had just entered the maize crop field when appellant Avtar Singh came there, put his hand on her mouth, took her in the crop and made her to sniff something. Thereafter, the prosecutrix became unconscious. When the prosecutrix regained her consciousness, she found herself on the floor of a room. At that time, appellant Avtar Singh was lying with her and her `Salwar' had been removed. She was feeling pain in her vagina. When she tried to get up, appellant Avtar Singh showed her knife and threatened that in case she raised an alarm, he would kill her. Early in the morning, appellant Avtar Singh again showed knife to her and committed rape with her. At about 6 A.M in the morning of 23.7.1996, Gian Singh (acquitted accused), Panch of their village, came and opened the door. Then, she came to know that the room was a part of the Haveli of Gian Singh. Gian Singh (acquitted accused) thereafter committed rape with her when appellant Avtar Singh had gone by bolting the door from outside. The prosecutrix remained with Gian Singh (acquitted accused) throughout the day. In the evening of 23.7.1996, appellant Avtar Singh and Sohan Lal came to the room and Gian Singh went from there. During the -4- Criminal Appeal No.386-SB of 1999. night, both appellants Avtar Singh and Sohan Lal committed rape on the prosecutrix turn by turn against her wishes. In the morning of 24.7.1996, appellants Avtar Singh and Sohan Lal took the prosecutrix to the `Bajra' field behind the Haveli of Gian Singh and again committed rape on her, turn by turn. Thereafter, appellants Avtar Singh and Sohan Lal detained the prosecutrix in the `Bajra' field and in the evening when they were taking her to somewhere, she ran away and reached her house. She told everything to her mother. On 25.7.1996, the instant case was registered against the accused when the prosecutrix along with her mother and uncle Basant Singh went to the Police Station. In order to prove its case, the prosecution examined as many as thirteen witnesses. After the closure of the prosecution evidence, statements of the appellants were recorded under Section 313 of the Code of Criminal Procedure, in which they denied the prosecution allegations and pleaded false implication at the instance of one Sadhu Singh, who was very close to the complainant part. Appellant Avtar Singh further stated that the prosecutrix was having intimate relations with him and she used to write letters and `ruqas' to her. The same were placed on record as Mark A-1 to A-12. Tarlochan Singh, Rattan Chand, Naresh Kumar and Arvind Sood (D.W.1 to D.W.4, respectively) were examined by the accused in their defence. -5- Criminal Appeal No.386-SB of 1999. I have heard the learned counsel for the parties and have gone through the records of the case. Learned counsel for the appellants has argued that the story put forth by the prosecutrix is highly improbable. The prosecutrix was more than 19 years of age and could not be abducted by Avtar Singh alone and taken to the house of Gian Singh. The house of Gian Singh was under construction and labourers were working there. Had the prosecutrix made noise, it was quite natural that some of the persons working there would have been attracted to the spot. However, this was not the case. She further argued that in the morning, the prosecutrix was allegedly raped in the `Maize' crop field and was detained there till the evening of 24.7.1996. Again, she did not raise any noise otherwise the people working in the fields around would have come to her rescue. To buttress the argument, learned counsel for the appellants referred to the statement of Dr.Renu Kumari. Dr. Renu Kumari (P.W.1), who had conducted the medico-legal examination of the prosecutrix on 26.7.1996 at 1 P.M, found that she was well built, well nourished, well oriented in time and space. Secondary sex characters were well developed. Clothes worn by the prosecutrix at the time of her examination were neither torn nor stained. No external mark of injury was seen on any part of the body. No injury was present on the private parts. Hymen was absent and was represented by tag of granulation tissue and admitted two fingers easily. In the opinion -6- Criminal Appeal No.386-SB of 1999. of the Doctor, the prosecutrix was used to sexual intercourse. Learned counsel for the appellants further referred to the letters Mark A-1 to A-12 allegedly written by the prosecutrix to appellant Avtar Singh in this regard and contended that the prosecutrix was a consenting party in this case. On the other hand, learned Additional Advocate General, Punjab, has supported the impugned judgment of conviction and the sentence order by arguing that the prosecutrix had no reason to falsely implicate the appellants in this case at the risk of honour of the family and especially the prosecutrix. I have given careful thought to the arguments raised by learned counsel for the parties and am of the opinion that the prosecution has been able to prove its case against the appellants beyond all shadows of reasonable doubts. Birth Certificate of the prosecutrix issued by the Upper District Registrar, Births and Deaths, Hoshiarpur, has been placed on record as Exhibit D.10. According to it, the date of birth of the prosecutrix is 12.1.1977. The occurrence in this case allegedly took place on 22.7.1996. As such, on the date of occurrence, the prosecutrix was more than nineteen and a half years. She was mature enough and would be the last person to falsely implicate the accused at the cost of her honour and the honour of her family. While appearing in Court as P.W.4, the prosecutrix reiterated what she had mentioned in her statement (Exhibit P.F) leading to the registration of the instant case against the accused persons. She -7- Criminal Appeal No.386-SB of 1999. deposed that on 22.7.1996 at about 8.30 P.M, she had gone to the maize crop field of Lambardar Kartar Singh, adjoining their `Haveli', to ease herself. Appellant Avtar Singh came there and made her to sniff something by putting his hand on her mouth. She became unconscious. When she regained her consciousness, she found herself lying on the floor of a long room. At that time, appellant Avtar Singh was there. Her `Salwar' had been put off. She was feeling pain in her pubic region. When she tried to get up, appellant Avtar Singh showed her knife and threatened that in case she raised an alarm, he would kill her. Appellant Avtar Singh again forcibly committed rape with her in the morning. At about 6 A.M in the morning of 23.7.1996, Gian Singh (acquitted accused), Panch of their village, came and opened the door. At that time, she came to know that the room was a part of the Haveli of Gian Singh. Thereafter, Gian Singh (acquitted accused) committed rape with her when appellant Avtar Singh had gone by bolting the door from outside. In the evening of 23.7.1996, appellants Avtar Singh and Sohan Lal came to the room and thereafter Gian Singh (acquitted accused) went from there. During the night, appellants Avtar Singh and Sohan Lal committed rape on the prosecutrix turn by turn against her wishes. In the morning of 24.7.1996, appellants Avtar Singh and Sohan Lal took the prosecutrix to the `Bajra' field behind the Haveli of Gian Singh and again committed rape on her, turn by turn. Appellants Avtar Singh and Sohan Lal, in the evening of -8- Criminal Appeal No.386-SB of 1999. 24.7.1996, were trying to take her to somewhere else. She was able to give a slip to them and ran away from the spot. She reached her house in the evening. She told everything to her mother. The prosecutrix (P.W.4) further stated that there was a dispute between appellant Avtar Singh and her father and due to that the appellants had committed rape on her. The prosecutrix was subjected to a searching cross-examination by the defence counsel before the trial Court, but it could not shatter the veracity of her version. Smt. Bakhshish Kaur (P.W.6), mother of the prosecutrix, has supported the version given by the prosecutrix. She stated that her husband was settled in Saudi Arabia. She was also cross-examined at a great length by the counsel for the accused in the trial Court. Nothing could be elicited therefrom to doubt the veracity of the version given by Smt.Bakhshish Kaur (P.W.6). She would be the last person to falsely name the accused in such a case where the honour of her unmarried daughter and her family was at stake. For acquitting accused Gian Singh, the learned trial Judge was influenced by the fact that, during investigation, an inquiry into the matter was conducted by the Deputy Superintendent of Police, which revealed that the fact that appellant Avtar Singh had detained the prosecutrix in the `Haveli' of Gian Singh was not to the knowledge of Gian Singh. Gian Singh was not living in the `Haveli' at the relevant time as the same was under construction. He was residing in another house -9- Criminal Appeal No.386-SB of 1999. nearby. The State has not chosen to prefer appeal against the acquittal of Gian Singh. Insofar as the argument of the learned counsel for the appellants that the house of Gian Singh (acquitted accused) was under construction and if the prosecutrix had made noise, some persons working there would have been attracted to the spot and had saved her, the same is without any force. Avtar Singh (appellant) had forcibly taking the prosecutrix to the room in the `Haveli' of Gian Singh (acquitted accused). The prosecutrix was under the threat and danger which was restraining her from raising hue and cry. It is worth-mentioning here that as per the site plan (Exhibit P.D), mark `A', which is the room where by the prosecutrix was abducted and raped by the accused, is attached with a gallery and after the gallery there is a wall. Thereafter, there is thoroughfare 17' x 0” wide. On the other side of the thoroughfare is the residence of one Ajmer Singh. The noise of the prosecutrix, under the circumstances, would not have attracted the passersby. There is another site plan (Exhibit P.E). In the said site plan, Mark `A' is the place from where the prosecutrix was allegedly abducted by appellant Avtar Singh. No doubt, the site plan (Exhibit P.E) shows that there was a `Kacha Path' 22' x 0” wide beside the place Mark `A', but as noticed, accused Avtar Singh had abducted the prosecutrix by sniffing her something. She had become unconscious and thereafter taken to -10- Criminal Appeal No.386-SB of 1999. the `Haveli' of Gian Singh (acquitted accused). The prosecutrix was living in the village with her mother. She was to go back to her house after easing herself. She could not accompany appellant Avtar Singh of her own when her mother was waiting for her in the house. Appellant Avtar Singh forced her to remain with her in the night. He committed rape on her. Thereafter, she was subjected to rape by the other accused. Sub Inspector Bakhshish Singh, Investigating Officer (P.W.10) had prepared the site plan (Exhibit P.L). It shows that the area of the `Haveli' of Gian Singh (acquitted accused) where construction was going on was far away from the room where the prosecutrix was kept by the accused during the night and raped. There was a mango tree besides open space in between the room where the prosecutrix was kept and the gate of the `Haveli' where the construction was going on. There is open space (gallery) near the room where the prosecutrix was kept. After the open space (gallery) there was a wall. A `Kacha' path was abutting the wall. These facts disclose that the prosecutrix was taken to an aloof place in the night and made helpless by the accused while she was subjected to gang rape. Letters Mark A-1 to A-12, relied upon by the learned counsel for the appellants, allegedly written by the prosecutrix to appellant Avtar Singh expressing her love towards appellant Avtar Singh, have not been proved on record. However, if it is presumed that these letters were written by the prosecutrix to -11- Criminal Appeal No.386-SB of 1999. appellant Avtar Singh, it did not provide any right to the appellant to garner such strength as to abduct the prosecutrix for committing gang rape upon her. The accused have committed a heinous crime by which they have ruined the life of a young unmarried girl of the age of nineteen years. For the aforesaid reasons, I do not find any merit in this appeal. The same is hereby dismissed. Bail bonds of the appellants are accordingly cancelled and they be taken into custody to serve the remaining sentence awarded in this case. Necessary information in this regard be sent forthwith to the Chief Judicial Magistrate, Hoshiarpur. February 10,2010. ( MOHINDER PAL ) ak JUDGE