CRIMINAL APPEAL NO. 923-DB OF 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: January 12, 2009 Parties Name Satbir alias Satta ...APPELLANT. VERSUS State of Haryana ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH PRESENT: Mr. H.S.Gill, Senior Advocate, with Mr. Vivek Goel, Advocate, for the appellant. Ms. Archana Sharma, Advocate, for appellant Billu alias Bhagwan Dayal in Cr. A. No. 71-DB of 2005. Mr. K.S.Godara, D.A.G., Haryana; JASBIR SINGH, J. JUDGMENT This judgment will dispose of two Criminal Appeal No. 923- DB of 2004 titled as Satbir alias Satta v. State of Haryana and Criminal Appeal No. 71-DB of 2005, titled as Billu alias Bhagwan Dayal v. State of Haryana as these arise out of a judgment and order dated October 20,, 2004 and October 21, 2004, respectively. For dictation of this order, facts are CRIMINAL APPEAL NO. 923-DB OF 2004 -2- being taken from Criminal Appeal No. 923-DB of 2004. Satbir alias Satta, appellant, Billu alias Bhagwan Dayal (appellant in the connected appeal), Om Parkash, Naresh Kumar, Dayal Chand and one Shamsher alias Kala were put to trial to face prosecution under Sections 342, 376(2)(g) and 120-B of the Indian Penal Code. It was allegation against them that they, in conspiracy with each other, had wrongly confined Promila alias Nahni, the prosecutrix, and committed rape upon her without her consent. Vide judgment and order under challenge, the appellant and Billu alias Bhagwan Dayal were convicted and sentenced under Sections 342 and 376(2)(g) IPC. However, the others were acquitted. It is necessary to mention here that Shamsher alias Kala had committed suicide before challan was put in Court for trial. Process of criminal law was set in motion at the instance of Risal alias Vishal (PW8), brother of the prosecutrix. On his statement FIR Ex. PH/1 was recorded in Police Station Sampla on April 30, 2002, at 2.05 PM. Prosecution case, as noted by the trial Court in para No. 1 of the judgment under challenge, reads thus: “Prosecution case is that on 30.4.2004 S.I. Sohan Lal PW15 along with head constable Rajbir Singh No. 1000, Head Constable Jai Bhagwan No. 371 and Constable Budh Singh No. 749 was present in Main Bazar, Sampla in connection with patrolling, when Risal Singh PW8 met him and gave written report Ex. PH to the effect that they have two houses, one inside the village and another outside in 'Bani' (forest). His sister aged about 27 years (prosecutrix) who is examined as CRIMINAL APPEAL NO. 923-DB OF 2004 -3- PW16 and whose name is being withheld) is mentally retarded. She is married and mother of two children. The previous day dated 29.4.2004, at about 7 p.m., as usual, she had gone from the house inside the village, to the house in 'Bani', but did not return, so, they searched her through out the night. At about 6 a.m. when he and his sister's husband Mahinder PW9 son of Pokhar, reached near village High School, Mahabir PW10, son of Jai Lal, met them. On being appraised, Mahabir told them that in the previous night around 8 p.m. when he was coming towards his house, after closing his shop, near the school, he had seen Shamsher alias Kala (since deceased) taking the prosecutrix, on his scooter No. DL95C/3094, towards his hotel at the By-pass. On this, he (Risal Singh) and his brother in law Mahinder, reached the hotel and inside a room found Shamsher alias Kala, raping the prosecutrix. Accused Satbir son of Ram Chander, resident of Bhaproda and accused Billu son of Bhagwan Dass, resident of Dighal, were sitting on a nearby cot. On seeing them there, all the three, ran away after giving them a push. Later on, on asking, the prosecutrix appraised them that said two persons, who were sitting on the nearby cot, had also raped her in the night. Thereafter he and his sister's husband Mahinder brought her to the house. They called back other family members who had gone to search her. It is further mentioned by Risal Singh in his report Ex. PH that they are running a tea vend and accused Shamsher alias Kala, Satbir and Billu used to come to his tea vend, as such he knew them.” CRIMINAL APPEAL NO. 923-DB OF 2004 -4- After registration of an FIR, the Investigating Officer Sohan Lal, SI (PW15) referred the prosecutrix, (PW16), for medical examination, which was conducted by Dr. Sunita Dhania (PW1) on April 30, 2004, at 2.30 PM in Civil Hospital, Sampla. As per MLR( Ex. PA), above said witness noted bruise on the right cheek of the prosecutrix. The Doctor further opined that possibility of sexual intercourse could not be ruled out. She also took vaginal swabs of the prosecutrix and handed over the same to the police in a sealed packet along with other sealed packets containing wearing clothes of the prosecutrix for semen examination. Above said material was sent for testing and as per report Ex. PB of the Forensic Science Laboratory, human semen was detected on both the vaginal swabs and Salwar Ex. P1 but not on shirt Ex. P2 and Chunni Ex. P3. In the meantime, Investigating Officer went to the place of occurrence, got prepared rough site plan and also took into possession scooter, which allegedly was used in committing the crime. Investigation was verified by the Deputy Superintendent of Police concerned. On that very day, appellant and Billu alias Bhagwan Dayal were arrested. They were sent for their medical examination, which was conducted by Dr. Rajiv Narwal (PW2) at 9.42 PM and 8.37 PM respectively. As per Doctor's opinion, there was nothing suggestive that they were not capable to perform the sexual intercourse. No smegma was found present on the penis of Billu alias Bhagwan Dayal but smegma was found present on the penis of the appellant. Wearing clothes of the above said accused were sent for chemical examination, as per report Ex. PB of the Forensic Science Laboratory, human semen was detected on clothes of the accused. However, on CRIMINAL APPEAL NO. 923-DB OF 2004 -5- serological analysis, semen grouping was found inconclusive. The Investigating Officer recorded statements of other witnesses. On May 4, 2004, SI Ram Singh (PW14) recorded statement of PW11 Mohinder, who stated facts regarding conspiracy hatched by the accused to kidnap and rape the prosecutrix. After recording his statement offence under Section 120-B IPC was also added in the FIR. On May 6, 2004, accused Om Parkash, Dayal Chand and Naresh were also arrested. On May 4, 2004, accused Suresh alias Kala committed suicide by hanging. Inquest report regarding his dead body was prepared by SI Sumer Singh (PW12). After completing investigation, the Investigating Officer filed final report in Court for trial. The accused were charge-sheeted to which they pleaded not guilty and claimed trial. The prosecution, to prove its case, examined as many as 16 witnesses and also brought on record documentary evidence. On conclusion of prosecution evidence, statements of all the accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them. They denied the same, claimed innocence and false implication. Appellant Satbir took up a defence that he was arrested at about 9.00/10.00 AM, when he was standing on Delhi Bypass, Sampla, near his Maruti car. Many persons including one Karne (DW1) was also standing at that place. In defence, the appellant also examined Karan Singh (Dw1) and Deepak Atri (DW2). After hearing counsel for the parties and perusal of record, the trial Court convicted the appellant and Billu alias Bhagwan Dayal. However, others were acquitted. Hence these appeals. Shri H.S.Gill, Senior Advocate, counsel for the appellant, has vehemently contended that the trial Court was not justified in convicting CRIMINAL APPEAL NO. 923-DB OF 2004 -6- and sentencing the appellants – accused. By making reference to the statements made by PW8, PW9 and PW16, he argued that on material points, deposition of above said witnesses was contradictory to each other. The trial Court has misread their statements, which resulted into wrong conviction of the appellants. From the statements of above said witnesses, he has indicated that their deposition is contradictory so far as to who was committing rape upon the prosecutrix when eye witnesses reached at the spot, what was the situation at the spot, how many people were available and which accused ran away from the place of occurrence? Counsel further argued that even as per prosecution version, the prosecutrix went missing in the evening of April 29, 2004. Police Station is available in the village. Despite that no report was made. Alleged rape was committed at 6 AM on April 30, 2004. FIR was recorded only at 2.05 PM. The prosecution has failed to explain delay in lodging the FIR. By stating as above, counsel argued that intervening period was used by the prosecution in concocting a false story against the appellants and others. He further argued that the oral evidence is not supported by the medical evidence on record. At the time of medical examination of the appellant, Dr. Rajiv Narwal (PW2) found that smegma was present on the penis of the appellant, which negatives commission of rape by him. By making reference to the statement of Investigating Officer, he stated that the complainant instead of making statement to the police under Section 161 Cr.P.C. in this case, preferred to file written application, which he got typed outside the Police Station to get the FIR recorded. This aspect goes to show that the FIR was recorded after discussion with the police. He further laid challenge to the statements made by Mahabir Singh(PW10), who has stated that he had seen Shamsher CRIMINAL APPEAL NO. 923-DB OF 2004 -7- accused taking away the prosecutrix on a scooter and she was struggling. Counsel argued that the conduct of this witness in not reporting the matter to the family members of the prosecutrix shows that this witness was introduced by the prosecution lateron. Counsel further argued that Mohinder (PW11) was not a truthful witness. This witness has deposed regarding conspiracy hatched by the accused to kidnap and rape the prosecutrix, two days prior to the date of occurrence. Counsel argued that by not intimating family members of the prosecutrix, conduct of this witness becomes unreliable. He further argued that statement of the prosecutrix was not recorded as per law. At the time of recording her deposition, without adopting the procedure, she was allowed to take help of her father and doctor. There was no certificate on the file to show that she was of unsound mind. He prayed that the appeal be allowed and the appellants – accused be acquitted of the charges framed against them. Prayer made by counsel for the appellants has been opposed by counsel for the State, who argued that the statement made by the prosecutrix (PW16) is alone sufficient to uphold conviction and sentence awarded to the appellants. He, by making reference to the prosecution witnesses, argued that the prosecution was successful in bringing home guilt of the appellants and further that it was an eye witness account, the defence has failed to shatter testimony of the prosecution witnesses despite lengthy cross- examination. By stating that delay in recording the FIR has sufficiently been explained, he prayed that the discrepancies indicated by the defence counsel in statements of the prosecution witnesses are immaterial, as such be ignored. He prayed that the appeal having no substance be dismissed. After hearing counsel for the parties, this Court is of the CRIMINAL APPEAL NO. 923-DB OF 2004 -8- opinion that counsel for the appellant was successful in creating doubt regarding involvement of the appellants in the alleged crime. No doubt in normal circumstances, if deposition made by the prosecutrix is truthful, it alone is sufficient to convict an accused. In the present case, eye witness account has also been projected by the prosecution. To know whether deposition made by the prosecution witnesses is truthful or not, we have to analyse carefully the statements made by them. As per case of the prosecution, the prosecutrix is of low intelligence. She went missing from her house, , in the evening on April 29, 2004. Police Station is situated in the village. However, despite opportunity available, no intimation was sent to the police. As per prosecution, the family members continued to search for the prosecutrix during night intervening April 29 & 30, 2004. PW8 Risal (complainant) has said in his deposition that after detection of the crime, he, his brother-in-law Mohinder, husband of the prosecutrix, and the prosecutrix reached their house at about 7.00/8.00 AM on April 30, 2004. No explanation has been given, in deposition of any of the witnesses, as to why matter was not reported to the police immediately. FIR was got lodged at 2.05 PM , that too by making a written application, which was got typed in a shop from outside the Police Station. Above said facts clearly indicate that the prosecution has failed to explain delay in lodging the FIR. It appears that the intervening period was used in consultations to involve the appellants in the false case. Perusal of depositions made by PW8 Risal, PW9 Mohinder , husband of the prosecutrix, and PW16, the prosecutrix, reveals that they have contradicted each other on material points. PW8 has specifically stated that he along with PW9 Mohinder had seen Shamsher Singh committing CRIMINAL APPEAL NO. 923-DB OF 2004 -9- rape upon the prosecutrix at about 6 AM on April 30, 2008, in a hotel (Dhaba) room, the appellant and one Kala were sitting on a cot nearby. This witness has further stated that outside the room in question, in a veranda, 7/8 persons were sleeping. He further said that he had seen six accused named in the FIR at the spot. All the accused ran away from the spot after pushing them aside. He has specifically stated that an accused, who was committing the rape, ran away from the spot without putting on his clothes. He has further deposed that Mohinder (PW9) was with him when he lodged the FIR. This witness has shown his ignorance as to where and when the appellant and Billu accused were arrested. This witness has also failed to state as to in which direction the prosecutrix and the accused were lying when they reached at the spot. This witness has not specifically mentioned name of Billu alias Bhagwan Dayal as a person, who had committed rape upon the prosecutrix. As against this, PW9 Mohinder Singh , husband of the prosecutrix, has specifically stated that when he along with Risal (PW8) reached at the spot, they found appellant Satbir committing rape upon the prosecutrix and two other persons were sitting in the Veranda. All the three persons ran away from the spot. Upon questioning, the prosecutrix disclosed that Satbir, Billu, Naresh and Om Parkash had also committed rape upon her. This witness has further stated that Kala and Satbir were arrested by the police from the hotel, i.e., the place of occurrence and other accused ran away. He has further stated that the person who was committing rape was also completely naked. The above said person first put on his clothes and then ran away. This witness has not named any accused, who was committing rape upon the prosecutrix. He has further stated that he did not accompany PW8 Risal to the Police Station when FIR was recorded. CRIMINAL APPEAL NO. 923-DB OF 2004 -10- Application Ex. PH was not written by Risal Singh. The prosecutrix , in her deposition, had stated that when in the morning, Risal and Mohinder reached at the spot, she was being raped by two persons, who thereafter ran away. She could identify the persons who raped her. When she was asked to identify the accused, who were sitting in Court, she pointed towards Lilu, Dayal Chand and Satbir as the persons who had committed rape upon her. In the next breath, she stated that rape was committed upon her by Billu and Santa also. She has specifically admitted that names of the accused persons were told to her by the police. In her cross-examination, she has specifically pointed towards Billu, who was committing rape upon her when Risal and Mohinder reached at the spot. She has further stated that when she was raped in a hotel room, many persons were available and they had seen the occurrence. She has further stated that Risal is working in Delhi for the last 1- ½ – 2 years, which fact was specifically denied by PW8 Risal. This witness has further stated that she was earlier also raped by the accused and others. She has admitted relationship of PW10 Mahabir and PW11 Mohinder with her family. Above said facts clearly show that on material points, all the three witnesses are deposing contrary to each other. This fact alone is sufficient to cast doubt in the mind of the Court, regarding participation of the appellants in the alleged crime. Further submission of Shri Gill that medical evidence does not corroborate participation of appellant Satbir in the alleged crime appears to be justified. After his arrest, appellant was medico-legally examined on April 30, 2004, at 8.37 PM by Dr. Rajiv Narwal (PW2), who has opined as under: CRIMINAL APPEAL NO. 923-DB OF 2004 -11- “Local Examination: Pubic hair metted. Penis size 6.5 cm in unerrected stage. Prepuce retracted and smegma present. No fresh injury mark on his person. Secondary sexually character were normal. Opinion: There was nothing suggestive of that the person was brought by police cannot perform sexual intercourse.” Shri Gill has argued that the very presence of smegma on the penis of the appellant negatives allegation of rape against him. To say so, he has relied upon observations made in Modi's Medical Jurisprudence , 21st Edition, page 384, which reads as under: “Presence of Smegma as Negative Rape.-1. In July, 1921, Mt. Ramdevi, aged 15 years, made a report that three young men, viz, Panchu, Debi and Jodha had committed rape on her. They were arrested and sent immediately to Modi for examination. None of them had any mark of injury on their genitals or anywhere else on their bodies. The first two had smegma on the glans penis covered by the foreskin; this proved that they could not have had sexual intercourse at least during the last twenty- four hours. The girl was also examined and found to have been used to sexual intercourse, inasmuch as her hymen had old lacerations. She had no mark of injury to her private parts or to any other part of her body. The men were released.” Their lordships of the Supreme Court dealing with a similar situation in Sadashiv Ramrao Hadbe v. State of Maharashtra and another, CRIMINAL APPEAL NO. 923-DB OF 2004 -12- (2006) 10 Supreme Court Cases 92, has observed as under: “8. It may also be noticed that the appellant was medically examined on the same day by PW 10. In his evidence, he stated that smegma was present around the corona glandis. He further deposed that his examination negatived sexual intercourse and for collection of smegma around corona glandis a period of 24 hours is required. This scientific evidence also did not support the prosecution. Had there been a vigorous sexual act as alleged by the prosecutrix there could not have been the presence of smegma on his private part.” Similarly their lordships of the Supreme Court in Aman Kumar and another v. State of Haryana, (2004) 4 Supreme Court Cases 379, opined that “in rape case, if the gland of the male organs is covered by smegma, it negatives the possibility of recent complete penetration. If the accused is not curcumsized, the existence of smegma around the corona gland is proof against penetration since it is rubbed of during the act. The smegma accumulates if no bath is taken within 24 hours. To the same effect is the opinion of their lordships of the Supreme Court in State of Karnataka v. Mahabaleshwar Gourya Naik, 1992 Supp (3) Supreme Court Cases 179. It is also evident from the record that no injury was found present on the private parts of the appellant and another convict, namely, Billu. On the person of the prosecutrix, only one bluish bruise was found at her cheek, which was not a teeth bite. It is not in dispute that age of the prosecutrix was 27 years. She was married and having two children. As per report of the Forensic Science Laboratory, semen was detected on the clothes of the prosecutrix CRIMINAL APPEAL NO. 923-DB OF 2004 -13- and the accused, which were taken into possession. However, as per Serological report, the report with regard to analysis of semen group remains inconclusive. The prosecutrix had admitted her relationship with Mahabir (PW10), who has stated that he had seen Shamsher Singh taking away the prosecutrix in the evening of April 29, 2004 and she was struggling. Very surprisingly, despite being closely related to the family of the prosecutrix, he did not intimate the above said fact to the family members of the prosecutrix. As per admitted facts, Mahabir is residing within a reasonable distance. The prosecutrix has also admitted that Mohinder (PW11) is his uncle. Above said witness has deposed regarding conspiracy hatched by the appellant and other accused to kidnap and rape the prosecutrix on April 28, 2004. This witness was residing at a close distance to the house of the prosectrix. However, he also failed to intimate the prosecutrix or any other family member with regard to above mentioned conspiracy. PW10 Mahabir and PW11 Mohinder have denied their relationship with the family of the prosecutrix whereas the prosecutrix has stated to the contrary. This fact shows that they were not truthful witnesses. Contention of Shri Gill that statement of the prosecutrix was not recorded, as per law, also appears to be justified. PW8 and PW9 both have stated that the prosecutrix was mentally disturbed from the childhood. They have further stated that she was not undergoing any medication at the time of recording her evidence. No certificate from a competent doctor was produced to prove the above said fact. The Court below without insisting upon medical opinion believed that the prosecutrix was of unsound mind and hard of hearing. She was allowed to get assistance from her father and CRIMINAL APPEAL NO. 923-DB OF 2004 -14- doctor at the time of recording her statement. Both the persons mentioned above were not administered oath. Perusal of statement made by the prosecutrix shows that most of the questions she has replied in a very intelligent manner and some she has omitted. The appellant has produced evidence in his defence. It was his contention that he was picked up from Delhi Byepass, Sampla, and falsely involved in this case. His version has been authenticated by DW1 Karan Singh. In view of facts, mentioned above, this Court is of the opinion that statement made by the prosecutrix does not inspire confidence and is not supported by any corroborative evidence. Under similar circumstances, their lordships of the Supreme Court in Sadashiv Ramrao Hadbe's case (Supra) has observed as under: “9. It is true that in a rape case the accused could be convicted on the sole testimony of the prosecutrix, if it is capable of inspiring confidence in the mind of the Court. If the version given by the prosecutrix is unsupported by any medical evidence or the whole surround circumstances are highly improbable and belie the case set up by the proseuctrix, the court shall not act on the solitary evidence of the prosecutrix. The courts shall be extremely careful in accepting the sole testimony of the prosecutrix when the entire case is improbable and unlikely to happen. “ In view of facts, mentioned above, we allow these appeals, set CRIMINAL APPEAL NO. 923-DB OF 2004 -15- aside impugned judgment