Criminal Appeal No.1087-SB of 1998 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.1087-SB of 1998 Date of decision : 31.10.2008 Jagmohan Singh and another .....Appellants Versus State of Punjab ...Respondent CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr.K.S.Sidhu, Senior , -Advocate with Mr. R.S.Chahal, Advocate for the appellants. Ms. Manjari Nehru, Deputy Advocate General, Punjab for the respondent . S. D. ANAND, J. The appellants along with (one Devinder Kaur) prosecuted on charges under Sections 342, 366, 376, 506 IPC The non appellant Devinder Kaur earned a verdict of acquittal; while appellants were indicted and sentenced as under:- 342 IPC To undergo rigourous imprisonment for a period of one year and to pay a fine of Rs.500/- each and in default of payment of fine to further undergo imprisonment for two months. 366 IPC To undergo rigourous imprisonment for a period of seven years and to pay a fine of Rs.1000/- each and in default of payment of fine to further undergo imprisonment for one year. 376 IPC To undergo rigourous imprisonment for a period of ten years and to pay a fine of Rs.3500/- each and in default of payment of fine to further undergo imprisonment for two years. “However, no separate sentence has been awarded under Sections 120-B and 506 IPC as punishment has been awarded under the Criminal Appeal No.1087-SB of 1998 -2- **** main offence.” The prosecution plea, upheld at the trial, was as under:- The prosecutrix (PW-2) is eldest of her siblings (two sisters and an equal number of brothers in all). They were born to PW-3 Tej Kaur from the lions of PW-4 Kewal Krishan. The prosecutrix dropped her studies while she was a student of +2. In may, 1997, she joined employment at a PCO, located in the Court Complex, owned by one Naresh Kateria. On account of the locational placement of the place of employment in the Court premises, the prosecutrix came into contact with acquitted accused Devinder Kaur who was functioning as a license agent. Devinder Kaur, and also two appellants, used to frequent the PCO where the prosecutrix was employed. Infact, it was Devinder Kaur who had introduced the two appellants to the prosecutrix. On 30.8.1997, which was a Saturday, the prosecutrix had lunch in the company of Devinder Kaur at the PCO itself. As the prosecutrix was having headache, Devinder Kaur administered a capsule to her along with tea. After consuming the capsule contents, the prosecutrix felt intoxicated. She was home bound at about 3/3.30 P.M. When she reached near Bachat Chowk Fountain, both the appellants came to that side on a motor-cycle, which was being driven by Lakhbir Sngh alias Bittu; appellant while appellant Jagmohan was the pillion rider thereof. Both the appellants forced the prosecutrix to sit on the motor-cycle in between them and held out a threat that she would be done to death if she raised an alarm. The motor-cycle was taken towards Morinda side. The prosecutrix was taken to a tubewell Kotha situated in the field. The door of the Kotha was lying open. The appellants took turn in deflowering the prosecutrix. Thereafter, the appellants locked up the prosecutrix in side the Kotha and went away. They surfaced only the following evening. Again, Criminal Appeal No.1087-SB of 1998 -3- **** they raped the prosecutrix during night without her consent. They left the Kotha at about 2.00 P.M. Before leaving they locked up the prosecutrix in side that Kotha, The appellants again turned up at Kotha at about 8.30 A.M. on Monday and took the prosecutrix to Mohali. It was there that appellant Jagmohan talked to Devinder Kaur on telephone. They also required the prosecutrrix to talk to Devinder Kaur on telephone. Before she complied, the appellants told her that they had provided Rs.50,000/- to Devinder Kaur to secure her help in kidnapping her (i.e. the prosecutrix). On telephone, Devinder Kaur told the appellant that if the prosecutrix had not 'adjusted' with them, she may be taken to Shimla. However, the appellants left the prosecutrix at an abandoned place in the area of Mohali. While leaving her over there, the appellants paid her some money to enable her to pay the fare to reach Ropar. The prosecutrix reached Ropar by bus on 1.9.1997 at about 12.30 P.M. Back home, she narrated the entire occurrence to her mother in the absence of her father, who was away to Delhi. He returned only on 5.9.1997. On his arrival, the prosecutrix and her mother narrated the incident to him. Thereafter, the prosecutrix and her father proceeded to the police station to lodge the First Information Report. They met the police party enroute near Kalyan Cinema. It was there that she dictated a statement to the police upon which she appended her signature in token of correctness thereof. Thereafter, the prosecutrix led the police party to the Bachat chowk and indicated the place from where she was kidnapped. She was medically examined at Civil Hospital, Ropar. The prosecution examined PW-1 Dr. Surjit Singh, PW-2 Jaswinder Kaur, PW-3 Tej Kaur, PW-4 Kewal Krishan, PW-5 Dr. B.H.P.Singh, PW-6 Balbir Singh, PW-7 ASI Gurmail Singh, PW-8 Nikka Ram, PW-9 Ram Lal and PW-10 Sr. Sangeeta Aggarwal to prove its plea Criminal Appeal No.1087-SB of 1998 -4- **** at the trial. PW-1 Dr. Surjit Singh had medico legally examined the appellant Lakhbir Singh on 15.9.1997. He opined that there was nothing to suggest that he was incapable of performing sexual intercourse. PW-2 is the prosecutrix; while PW-3 Tej Kaur and PW-4 Kewal Krishan are her parents. PW-5 Dr. B.H.P.Singh had medico-legally examined appellant Jagmohan on 14.9.1997 and found that there was nothing to suggest that he was incapable of performing sexual intercourse. PW-6 Balbir Singh had prepared the scaled site plan Ex. PF of the tobewell Kotha on the pointing of the prosecutrix. PW-7 ASI Gurmail Singh is the Investigating Officer of the case. PW-8 Constable Nika Ram and PW-9 Constable Ram Lal tendered their affidavits Ex. PS and Ex. PT respectively into evidence. PW-10 Dr. Sangeeta Aggarwal had medico legally examined the prosecutrix on 6.9.1997. The appellants alleged false implication in the case. No evidence was adduced in defence. Learned Trial Court upheld the prosecution plea, declined the appellants' plea of innocence and indicted them. The appellants are in appeal. Learned counsel for the appellants argues that the material obtaining on the record indicates that it was all a consensual affair, as between the prosecutrix and the appellants, as the latter had sex with the former with her consent. The prosecutrix being a major on her own showing, the argument proceeds, she cannot be heard to raise a charge of legal infraction as the part of the appellants before this Court. Criminal Appeal No.1087-SB of 1998 -5- **** Learned State counsel resists the plea by arguing that the prosecutrix having been put in fear of death could not be expected to raise a cry for help while passing through the Bazar or while passing in front of Deputy Commissioner's residence or SSP's residence. Apart therefrom, the learned counsel for the appellants in order to assail the validity of the prosecution presentation, argues that the First Information Report had been lodged after unexplained and inordinate delay of 5/6 days and the prosecution evidence, on point of father of the prosecutrix having been away to Delhi for the duration aforementioned, is not reliable. In the context of the above plea, learned State counsel argues that there is nothing unnatural in the prosecutrix and her mother having waited the return of the male head of the family before approaching the police. It is argued that the prosecutrix and her parents belong to an economically weaker segment of the society who could not dare to go to the police by themselves. It is also the plea that the parents of the prosecutrix may have consumed that time on account of hesitation on their part in going over to the police for fear of spoiling the matrimonial prospects of the prosecutrix. In the context of the controversy about the delay in lodging of the First Information Report, it may be noticed at the very out set, that the delay per-se, would not affect the validity of the prosecution presentation if there is a reasonable explanation to explain why the complainant party refrained from going over to the police. There is plethora of evidence on record to prove that the prosecutrix was a grown up major lady and was aware of the vicissitudes of life. It is also apparent from the fact that she was earning her livelihood by being an employee at a PCO situated within the Court Complex premises. The earlier indicates that she was a Criminal Appeal No.1087-SB of 1998 -6- **** consenting party to her being taken away and her being violated. She testified that since she was suffering from headache, Devinder kaur (acquitted accused) gave her a tablet which she consumed with tea and she started feeling giddiness immediates thereafter. She further told the Court that she was home bound when the appellants met her enroute and forced her to sit in between them on the motor-cycle. She conceded that the motor-cycle (carrying the appellants and the prosecutrix) passed by the DC's residence and the residence of the SSP and also the State Bank of Patiala premises. She also conceded that police guards are always available at the residence of SSP. It is also in her statement that there is generally a lot of rush at the Bachat chowk which was also crossed by her in the company of the appellants. It is also in her statement that there is a Canal Colony towards the left side of road if one turns from Bachat Chowk towards her residence. The Red-cross building that also fell enroute) has a guard on the first floor. It is also in her testimony that CRPF Guards reside with their family on the first floor of the State Bank of Patiala premises which is situated on the main road which she passed in the company of the appellant. It would be apparent from the perusal of the testimony of the prosecutrix that she was cognizant of the locational placement of the various buildings enroute. Inspite thereof, she does not allege to have raised a raula. She would want the Court to believe that she was forcibly made to sit on the motor-cycle under threat and she did not raise an alarm as the appellants threatened her with death. It is also in her testimony that it was dark by the time they reached the place of their night stay where she regained consciousness and asked the accused why she had been taken to that place but the accused again gave her threats. She conceded that she did not state these facts in her statement to the police. The stance adopted by her is thoroughly illogical. Criminal Appeal No.1087-SB of 1998 -7- **** She would further want the Court to believe that though she stayed at the place of detention for 2/3 days, food was not served to her and she also did not ask for food either. She stayed in side the Kotha even after the accused left her every day at the indicated pointed of time. It was not in her statement that the appellant used to lock the Kotha where she was detained. She did not explain why she did not come outside the Kotha even in the absence of the appellants. The prosecutrix told the Court that there were scratches on her back and that she had shown the injuries sustained by her to the Doctor at the time of medical examination. Interestingly enough, her statement is not born out by the testimony of Dr. Sangeeta Aggarwal who categorically testified that there were no mark of injuries on the person of the prosecutrix. Dr. Sangeeta Aggarwal further testified that the prosecutrix simply told her that two days prior to her medical examination, the impugned incident had taken place. She did not, however, mention any precise date. She also did not disclose which vehicle had been used by the appellant to ferry her to an unknown place. She also testified that the prosecutrix did not tell her that an intoxicant, a capsule or medicine, had otherwise been administered to her before she was taken by the appellant to an unknown place. Dr. Sangeeta Aggarwal further clarified that “there was no sign of violence at the time of the alleged rape as there was no injury on the hymen or private part of the prosecutrix. I cannot give my opinion regarding rape as there was no evidence of rape medically. However, I sent the swab etc. for its examination. At the same time there was no evidence that no rape was committed.” It would be apparent from the perusal of the above discussion that the prosecution has not been able to prove that the person of the prosecutrix had at all been violated. In the context, it may also be noticed Criminal Appeal No.1087-SB of 1998 -8- **** that clothes including the under garments worn by the prosecutrix during the relevant time could have also given an idea about the correctness or otherwise of the prosecution allegation that her person had been violated. The prosecutrix disabled the Investigating Agency from laying hands upon the clinching evidence by averring that her clothes had been washed by her mother who owned it at the trial. That part of the evidence also goes against the interest of the prosecution. Apart therefrom, it requires particular notice that the prosecution case has been proved to suffer from the vice of unexplained and inordinate delay in the lodging of the FIR. Though it may be natural for a family of that economical and social placement to a wait the return of the head of the family, the fact available on this file indicate that the prosecution has not, at all, been able to prove that the head of the family was away to Delhi to attend a rally. PW 4-Kewal Krishan, who is father of the prosecutrix, did not recollect the exact venue of the rally at Delhi. He testified that( during that period) he lived with some boys at Gurgaon. Those boys, as per his testimony, were employees of Maruti factory. However, he did not remember the names of those persons. It is unbelievable that a person would stay over for a period of 5/6 days but would not remember the identity of the host, Further more, he claimed to have gone to Delhi (to attend a Rally) by bus but he conceded that he had told the police, in the course of the statement under Section 161 Cr.P.C. that he had been to Delhi for some house hold core. Besides it, he averred that he attended the rally for two days. If that was so, it was for the prosecution to explain why this witness did not return home for another period of two days. It is, thus, apparent that the prosecution has not been able to prove that there was no unexplained and inordinate delay in lodging of the FIR. Criminal Appeal No.1087-SB of 1998 -9- **** In view of the fore-going discussion, the appeal shall stand allowed. The conviction of the appellants shall stand set aside. Appellants shall stand acquitted of the charge. October 31, 2008 (S.D. ANAND) Pka JUDGE