IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 844-SB of 1997 Date of Decision : August 25, 2010 Lakhi alias Dharam Pal ....Appellant Versus State of Punjab .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Gurcharan Dass, Advocate for the appellant. Mr. P.S. Grewal, Assistant Advocate General, Punjab. T.P.S. MANN, J. By one judgment, the Court intends to dispose of the present, i.e. Criminal Appeal No.844-SB of 1997 filed by convict Lakhi @ Dharam Pal and Criminal Appeal No.1125-SB of 2000 filed by convict Cheena @ Hakam Singh as both the appeals arise out of judgment and order dated 19.8.1997 passed by Sessions Judge, Ludhiana. Vide impugned judgment and order, the appellants were convicted under Section 376 IPC and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.1,000/- each and in default thereof, to undergo further rigorous imprisonment for three months. They were also convicted under Section 306 IPC and sentenced to undergo Satish Kumar 2014.02.26 13:43 Criminal Appeal No. 844-SB of 1997 -2- rigorous imprisonment for seven years and to pay a fine of Rs.500/- each and in default thereof, to undergo further rigorous imprisonment for one month. Both the sentences of imprisonment were ordered to run concurrently. According to the prosecution, on 12.2.1995 at about 1.30/2.00 p.m., when parents of the prosecutrix were away to Pohir Dera in connection with 'Bhog' ceremony, appellant Cheena, who resided in her neighbourhood, came to her and told her that she was wanted by his mother. The mother of appellant Cheena being related to the prosecutrix, she accompanied the appellant to his house. When the prosecutrix entered his house, the appellant bolted the door from inside. Appellant Lakhi was already present in the house. He felled the prosecutrix on a cot and tore the clothes worn by her. Both the appellants raped the prosecutrix. The prosecutrix raised an alarm but to of no avail. After satisfying their lust, the appellants turned the prosecutrix out of his house. At that time a 'Shobha Yatra' on account of the birth anniversary of Shri Guru Ravi Dass was passing through that area. The prosecutrix felt disgraced and on coming back to her house set herself ablaze after pouring kerosene. Surjit Kaur and Karnail Singh were attracted to the spot. They tried to extinguish the fire. Thereafter, the parents of the prosecutrix came back to the hosue and the prosecutrix was taken to Puri Nursing Home, Criminal Appeal No. 844-SB of 1997 -3- Model Town, Ludhiana. The prosecutrix remained admitted in that Clinic till 16.2.1995 when she was referred to the Civil Hospital, Ludhiana. Further case of the prosecution was that after receiving a questy, ASI Dharam Pal accompanied by other police officials went to Civil Hospital, Ludhiana and on his application Ex.PM, the doctor declared the prosecutrix unfit to make statement. On the next day, ASI Dharam Pal after getting clearance from the doctor recorded statement Ex.PO of the prosecutrix. After making endorsement on the same, ASI Dharam Pal sent it to Police Station, Dehlon, on the basis of which formal FIR Ex.PO/2 was recorded. ASI Dharam Pal recorded the statements of Balbir Singh and Kuldip Kaur. On 18.2.1995, ASI Dharam Pal accompanied by Balbir Singh went to village Gopalpur and prepared site plan. He got conducted the medico-legal examination. The vaginal swabs were taken into possession. ASI Dharam Pal also took into possession one bottle containing kerosene, one match box and burnt clothes from the spot vide memo.Ex.PJ. On 24.2.1995, both the appellants were arrested and were got medico-legally examined. After the death of the prosecutrix on 7.4.1995, the dead body was subjected to post-mortem by Dr. G.P. Mangla. Upon completion of investigation and presentation of Criminal Appeal No. 844-SB of 1997 -4- the challan, followed by its commitment to the Court of Sessions, charges under Sections 376 and 306 IPC were framed against the appellants, to which they pleaded not guilty and claimed trial. In support of its case, the prosecution examined PW1 Dr. D.S. Kochhar, PW2 Dr. Jagdish Kaur, PW3 Dr. G.P. Mangla, PW4 Balbir Singh, PW5 Surjit Kaur, PW6 Dr. Subhash Batra, PW7 ASI Dharam Pal, PW8 Constable Amardeep Singh and PW9 Head Constable Joginder Singh. When examined under Section 313 Cr.P.C., the appellants denied all the allegations of the prosecution. Appellant Lakhi stated that prior to the alleged incident a criminal case under Section 307 IPC was registered against his co-accused Hakam Singh @ Cheena. A cross-case was also registered at the instance of Cheena against Sukhwinder Singh, a relation of Balbir Singh, father of the deceased. He was a prosecution witness in that case. Due to enmity he was falsely implicated in this case. Appellant Hakam Singh @ Cheena stated that prior to the alleged incident he was involved in a criminal case under Section 307 IPC due to a fight which had taken place in the village. A cross case against Sukhwinder Singh, who was a relation of Balbir Singh, father of the deceased was also Criminal Appeal No. 844-SB of 1997 -5- registered in which his co-accused Dharam Pal alias Lakhi was a prosecution witness against him. Due to that they were falsely implicated in this case by Balbir Singh and his relations. In defence, the appellants examined DW1 Dr. Indermohan Puri and DW2 Sampuran Singh. After hearing learned counsel for the parties and going through the evidence available on the file, the trial Court believed the prosecution version and convicted and sentenced the appellants, as mentioned above. I have heard learned counsel for the parties and perused the evidence with their able assistance. Learned counsel for the appellants has submitted that the prosecution did not examine any eye-witness of the occurrence. Only circumstantial evidence has been led by the prosecution but the same is not sufficient to prove its case. In regard to the occurrence of commission of rape, there can never be any eye-witness. On the other hand, in the present case, there is statement Ex.PO made by the prosecutrix before PW7 ASI Dharam Pal and so also the statement made by the prosecutrix before PW5 Surjit Kaur. Both the statements have assumed the nature of dying declaration after the death of Criminal Appeal No. 844-SB of 1997 -6- the prosecutrix as she had stated therein the circumstances relating to cause of her death. A perusal of the statement Ex.PO, on the basis of which FIR Ex.PO/2 was later on registered, reveals that on 12.2.1995, her parents had gone to the Dera at Pohir, while she, alongwith her younger siblings, was present in the house. At about 1.30/2.00 p.m. appellant Cheena, who resided in her neighbourhood came to her house and asked her to accompany him as his mother had sent him to call her. The mother of appellant Cheena being her aunt (Mousi), she accompanied Cheena to his house. When she entered her house, Cheena bolted the door from inside. The other accused, namely Lakhi, who was also residing in the same street as that of the prosecutrix, was already present there. She was thrown on the cot and her clothes were torn. She was sexually ravished by both of them. She had raised alarm but nobody was attracted. She was, later on, turned out of the house. At that time, there was 'Shobha Yatra' passing in the street. She joined the same in tattered clothes and felt disgraced. After returning to her house, she poured kerosene and set herself ablaze. When her clothes caught fire, she raised an alarm, which attracted Surjit Kaur wife of Bhan Singh and Karnail Singh son of Baati Singh, who put off the fire. Her parents returned half an hour later to whom she narrated the entire occurrence. Criminal Appeal No. 844-SB of 1997 -7- Similarly, PW5 Surjit Kaur deposed that on 12.2.1995 at about 1/1.30 p.m. when she was in her house, she heard some cries and rushed to the house of Balbir Singh, father of the prosecutrix. She was followed by Karnail Singh. In the cattle shed of the house of Balbir Singh, they saw the prosecutrix lying in a burnt condition. They put quilt on her and served her water. She was asked as to what she had done. Thereupon, the prosecutrix told her and Karnail Singh about how she was taken to the house of appellant Cheena, where she was sexually assaulted by him and appellant Lakhi and feeling disgraced and finding it difficult to carry the stigma that she found it better to end her life. The occurrence in question had taken place on 12.2.1995. After the occurrence, the prosecutrix was taken to a private hospital in Model Town at Ludhiana where she remained admitted for five days. Finding it difficult to pay for the costly treatment, father of the prosecutrix shifted her to Civil Hospital, Ludhiana on 16.2.1995. On receiving a message from Police Station, Division No.2, Ludhiana to the effect that the prosecutrix was lying admitted in a burnt condition in Civil Hospital Ludhiana, PW7 ASI Dharam Pal of Police Station Dehlon, reached the said hospital and submitted application Ex.PM to the doctor to find out as to whether the prosecutrix was fit to make a statement. The Criminal Appeal No. 844-SB of 1997 -8- doctor vide endorsement Ex.PM/1 opined that she was unfit to make statement. On 17.2.1995, ASI Dharam pal again went to Civil Hospital, Ludhiana and submitted application Ex.PN to know about the fitness of the prosecutrix to make statement. This time, the doctor vide endorsement Ex.PM/2 opined that she was fit enough to make statement. ASI Dharam Pal then recorded statement Ex.PO as dictated by the prosecutrix. According to PW2 Dr. Jagdish Kaur, Medical Officer, Civil Hospital, Ludhiana, the prosecutrix was admitted in the Female Surgical Ward since 16.2.1995 with history of burns. She medically examined the prosecutrix on 18.2.1995 at 3.20 p.m. and found on local examination that the external genitalia was normal, pubic hair present, hymen torn and healed. Three swabs were taken from fornices and sent for chemical examination. In cross-examination, she deposed that the prosecutrix could not properly speak and as such could not provide the history. Her mother was asked about the history and, accordingly, it was recorded. She also deposed that on account of the swelling on her face and the mouth that the prosecutrix was speaking with difficulty. It is true that ASI Dharam Pal before recording statement Ex.PO did not insist upon the presence of the doctor during the period he recorded her statement but keeping in view Criminal Appeal No. 844-SB of 1997 -9- the fact that attending doctor had opined about the prosecutrix fit enough to make a statement, no fault can be found with the act of ASI Dharam Pal in not requiring the attendance of doctor while recording her statement Ex.PO. It may also be noticed that in the concluding portion of her statement Ex.PO, the prosecutrix stated that she had remained unconscious upto a day before and was not able to speak but on that day, i.e. 17.2.1995, she was fit enough to make a statement. Her thumb-impression was also obtained on the statement Ex.PO. The post-mortem on the dead body of the prosecutrix was conducted by Dr. G.P. Mangla, Medical Officer, Civil Hospital, Ludhiana on 8.4.1995, who, while appearing as PW3 opined that the death of the prosecutrix was on account of septicaemic shock as a result of excessive and extensive burns, which were sufficient to cause death in the ordinary course of nature. Vide report Ex.PV, Chemical Examiner had found semen on the vaginal swabs. That lent independent corroboration to the case of the prosecution that the prosecutrix was subjected to sexual intercourse. Absence of any injury on the prosecutrix stands explained as she was sexually ravished by two persons and during the occurrence she would not have been able to offer any resistance after being pinned down. Criminal Appeal No. 844-SB of 1997 -10- The prosecution could not bring any material regarding the admission of the prosecution in Puri Nursing Home. On the other hand, the defence examined Dr. Inder Mohan Singh Puri of the aforementioned Nursing Home as DW1, who deposed that the prosecutrix was got admitted on 12.2.1995 by her relatives for burn injuries and she remained in his Clinic till 16.2.1995 on which date she was referred to Civil Hospital, Ludhiana. He further deposed that the relatives accompanying the prosecutrix had given the history about the prosecutrix sustaining burns from the stove. However, that by itself is not sufficient to reject the prosecution case. The prosecutrix had already felt disgraced when she was turned out of his house by appellant Lakhi and had started moving alongwith the 'Shoba Yatra', while wearing tattered clothes. Though she had informed her parents about the occurrence yet they had not taken her to some government hospital and, instead, opted to take her to a private Nursing Home. Thinking that the doctor in the private Nursing Home might not attend upon her as it was likely to be treated as a police case and by stating that the prosecutrix had received burns by stove, the parents of the prosecutrix were able to get her admitted in the private Nursing Home where she remained for 4/5 days. When the pocket of the parents of the prosecutrix did not allow them to pay for the costly treatment that it was found appropriate to shift the prosecutrix to Civil Hospital, Criminal Appeal No. 844-SB of 1997 -11- Ludhiana where she was admitted on 16.2.1995. From the aforementioned evidence, it stands established that the prosecutrix was sexually ravished against her wishes by the two appellants and considering that she would always be living with the stigma, she decided to end her life by setting herself ablaze. Because of the burns received by her, she died after a period of two months of the incident but the medical evidence clearly suggests that the death of the prosecutrix was on account of burns which were due to septicaemic shock on account of burns which were ante mortem in nature and sufficient to cause death in the ordinary course of nature. Delay in lodging of the FIR stands duly explained. To begin with, soon after the accident, the prosecutrix was taken to a private Nursing Home where she remained admitted upto 16.2.1995. At that point of time the first anxiety on the part of the parents of the deceased was to get her best possible treatment. Later on, when they could not bear the costly treatment that they shifted her to Civil Hospital, Ludhiana where the attending doctor informed the local police from where message was sent to Police Station Dehlon and on receipt of the same ASI Dharam Pal had come to Civil Hospital, Ludhiana on 16.2.1995 to record the statement of the prosecutrix. The attending doctor declared the prosecutrix unfit to make a statement. On the following day, the Criminal Appeal No. 844-SB of 1997 -12- doctor declared the prosecutrix fit to make a statement and, accordingly, ASI Dharam Pal recorded her statement Ex.PO on the basis of which FIR Ex.PO/2 was registered at Police Station Dehlon on 17.2.1995 at 10.30 p.m. As regards the age of the prosecutrix, it stands duly established that she was 14/15 years of age at the time of the occurrence. In her statement Ex.PO, the prosecutrix had given her age as 14 years. When she was medically examined by PW2 Dr. Jagdish Kaur her age was again recorded as 14 years. In cross-examination, it was stated that the age was initially written as 15 but later on scored out and in its place 14 was written. Further, according to PW2 Dr. Jagdish Kaur, the menarche was four months back and, thus, it can safely be held that the prosecutrix was 14/15 years of age at the time of the occurrence. The act of the appellants in subjecting the prosecutrix to rape and, thereafter, pushing her out of the house with practically no clothes on her and at that point of time, there was 'Shobha Yatra' passing that area, was sufficient to establish abetment on the part of the appellants to force the prosecutrix to commit suicide by setting herself on fire after returning to her house. Two months later, she died on account of septicaemic shock which was on account of excessive and extensive burns received by her. Therefore, the offence under Section 306 IPC Criminal Appeal No. 844-SB of 1997 -13- also stands established. Coming to the defence plea of false implication of the appellants, no material has been brought on record which could establish that appellant Lakhi @ Dharam Pal was a witness against Sukhwinder Singh, who was related to the father of the prosecutrix. Simply suggesting to the witness about the enmity which suggestion stood denied, is not sufficient to prove the previous enmity on account of which the appellants could be falsely implicated. As regards the quantum of sentence, it may be noticed that though it was a case of gang rape as the prosecutrix was raped by two persons acting in furtherance of their common intention for which the law requires imposition of sentence of not less than ten years, no such charge under Section 376(2)(g) IPC was framed against the appellants. Instead, they were charged under Section 376 IPC for having sexual intercourse with the prosecutrix against her will and consent which intercourse amounted to rape. For an offence under Section 376 IPC simpliciter, the law requires imposition of sentence of imprisonment of not less than seven years, but which may extend to imprisonment for life. Under these circumstances, this Court is of the view that the sentence of imprisonment for ten years imposed upon the appellants for the offence under Section Criminal Appeal No. 844-SB of 1997 -14- 376 IPC can be reduced to seven years. However, no case is made for reduction of sentence of imprisonment imposed for offence under Section 306 IPC. Resultantly, the conviction of both the appellants under Section 376 and 306 IPC is upheld and maintained. The sentence of imprisonment for the offence under Section 376 IPC is reduced to rigorous imprisonment for seven years each. The sentence of fine for the said offence, alongwith its default clause, is maintained. The sentence of imprisonment and fine alongwith its default clause for the offence under Section 306 IPC is also maintained. The substantive sentences of imprisonment shall run concurrently. Both the appeals, i.e. Criminal Appeal No.844-SB of 1997 and Criminal Appeal No.1125-SB of 2000 are, accordingly, disposed of. ( T.P.S. MANN ) August 25, 2010 JUDGE satish