Crl.Appeal No. 1641-SB of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.1641-SB of 2007 Date of decision: 19.4.2011 Parmod Kumar and another ... Appellants versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.S.S.Dinarpur & Ms.Deipa Singh, Advocates, for the appellants. Mr.Raja Sharma, AAG, Haryana. ... JORA SINGH, J. This is an appeal by Parmod Kumar son of Ram Bilas Sahni and Raghu Sahni son of Santokh Sahni, appellants, to challenge the judgment of conviction dated 6.8.2007 and order of sentence dated 8.8.2007 passed by Additional Sessions Judge, Yamuna Nagar, in Sessions Case No.5 of 2007, arising out of FIR No.454 dated 27.10.2006 under Sections 376(2)(g)/506 IPC, Police Station City, Jagadhri. By the said judgment, they were convicted under Sections 376 (2)(g)/506 IPC and sentenced to undergo RI for 10 years and to pay a fine of Rs.7,500/-, in default of payment of fine, to further undergo RI for 6 months each under Section 376(2)(g) IPC and to undergo RI for 2 years each under Section 506 IPC. Both the sentences were ordered to run concurrently. Prosecution story, in brief, is that the prosecutrix was married with Vishnu Pandey about 10 years back and from this wedlock, she has one son, aged about 3 years. She along with her husband and son was residing in a room constructed in the plot of Des Raj situated near the weigh bridge Crl.Appeal No. 1641-SB of 2007 2 known as Balaji Dharam Kanta on Court Road, Jagadhri. On 26.10.2006 at about 10.00 PM, prosecutrix had gone to the adjoining vacant plot of Sham Lal Luthra to ease herself. Then Parmod Kumar and Raghu Sahni, employees of Madan Factory, Jagadhri, who were earlier known to her, came at the spot. She was caught hold by them. Firstly, Parmod Kumar gagged her mouth, then Raghu Sahni had committed sexual intercourse upon her against her wish and after that, Raghu Sahni gagged her mouth, then Parmod Kumar had raped her against her wish. She raised raula, which attracted her husband Vishnu Pandey. On seeing Vishnu Pandey, accused had fled away from the spot. While fleeing from the spot, accused had threatened to eliminate her. After the occurrence, prosecutrix along with her husband came to her house. On the next day, she along with her husband had gone to lodge report. Statement of the prosecutrix (Ex.P16) was recorded and the same was thumb marked by her in token of its correctness. After making endorsement, statement was sent to the concerned police station, on the basis of which, formal FIR was recorded. IO had gone to the spot and after inspecting the spot had prepared rough site plan with correct marginal notes. Prosecutrix was produced before the doctor and was medico legally examined. Parcels handed over by the doctor were taken into police possession vide separate memo attested by the witnesses. On 27.10.2006, accused were produced before the police by Harinder, Thekedar. Accused were produced before the doctor and were medico legally examined. Parcels handed over by the doctor were taken into police possession vide separate memo attested by the witnesses. After receipt of report of FSL and completion of investigation, challan was Crl.Appeal No. 1641-SB of 2007 3 presented in the Court. Accused were charged under Sections 376(2)(g)/506 IPC, to which they pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW1 Dr.Deepika Gupta stated that on 27.10.2006, she has medico legally examined the prosecutrix and observed as under:- “The patient gave history of alleged sexual assault on 26.10.2006 at night. She was conscious and oriented. Her general examination was within normal limits. She was G.1, P1 AO and her last child birth was 3 years earlier. Her age of menarche was 14 years. Previous menstrual cycle were of 3 to 4 days and regular. Last menstrual period was 20 days back. There were no marks of injury on the body. She was wearing of cream colour petticoat with possible blood and semen stains and purple colour blouse. On her speculum examination, no discharge was present. Pubic hair was not matted and hymen was ruptured. On her vaginal examination, the cervic was downwards and backwards and uterus was extroverted and retroflexed. The vagina easily admitted three fingers. On the basis of clinical examination, possibility of penetration and sexual assault could not be ruled out.” As per report of FSL, human semen was detected on all exhibits except pubic hair. PW2 Dr.M.K.Goyal stated that after examining sealed parcels, he has submitted his report (Ex.P7). Crl.Appeal No. 1641-SB of 2007 4 PW3 Dr.Anuj Mangla stated that on 27.10.2006, Raghu Sahni and Parmod Kumar were medico legally examined. Both were found fit to perform sexual intercourse. PW4 Constable Mulakh Raj prepared scaled site plan (Ex.P13) with its correct marginal notes. PW5 HC Devi Dayal and PW6 Constable Ashok Kumar tendered affidavits, Ex.P14 and Ex.P15, respectively. PW7 is the prosecutrix and stated on oath that she was married with Vishnu Pandey about 10 years back and from this wedlock, she has one son, aged about 3 years. She along with her husband and son was residing in the plot of Des Raj, where room was constructed. On the day of occurrence at about 10.00 PM, she had gone to the adjoining plot to ease herself. Accused came inside the plot and had raped her against her wish turn by turn. Her mouth was gagged. Accused had threatened to eliminate in case matter is brought to the notice of the police. Her husband came at the spot and on seeing him, both the accused had fled away from the spot. PW8 Vishnu Pandey is the husband of prosecutrix. He has also supported the version of prosecutrix by saying that his wife had gone to answer the call of nature in the adjoining plot. On hearing cries of his wife, he had gone to the spot, then both the accused were found present there while scuffling with his wife. On seeing him, both the accused had fled away from the spot. PW9 Constable Paramjit Singh stated that special report was handed over to the Ilaqa Magistrate at 1.55 PM on 27.10.2006. PW10 HC Amar Singh stated that he was with the IO. On 27.10.2006, accused were produced before the doctor for medico legal Crl.Appeal No. 1641-SB of 2007 5 examination. Parcels handed over by the doctor were taken into police possession vide separate memo attested by him. On 28.10.2006, accused had suffered disclosure statements separately. PW11 ASI Om Parkash is the Investigating Officer. After close of the prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused was that they were falsely implicated under the influence of Des Raj, owner of the factory, where husband of the prosecutrix was working as Thekedar of labourers. Vishnu Pandey, husband of the prosecutrix, used to harass poor labourers by hiring them and when they demanded labour charges, then they were involved in false cases. After hearing learned PP for the State, learned defence counsel for the appellants and from the perusal of evidence on the file, appellants were convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellants, learned State counsel and have gone through the evidence on the file. Learned defence counsel for the appellants argued that according to prosecution story, occurrence was at about 11.00 PM, whereas report was lodged on the next day. There was delay of 14 hours in lodging the report. Delay was not explained and is fatal. Conduct of the prosecutrix and her husband shows that story is not genuine one. There was a weigh bridge known as Balaji Dharam Kanta near the place of occurrence. Police station was also at a distance of 1 km. Matka Chowk was at a distance of 200 yards, where police vehicle remains parked. If prosecutrix was raped Crl.Appeal No. 1641-SB of 2007 6 against her wish, then after the occurrence, report could easily be lodged with the police available at a distance of 200 yards. Prosecutrix was raped against her wish and dragged upto 10-15 feet. There was grass and bushes at the place of occurrence. Brick bats were also there. But no external injury was noticed on the person of the prosecutrix. There was a wall of 10 feet height around the plot of Sham Lal Luthra. Without the help of ladder, not possible to go inside the plot by scaling over the wall. Chain and chappal of prosecutrix were left at the spot but same were not recovered by the IO after inspecting the place of occurrence. After the occurrence, complainant party could easily lodge report with the police because Matka Chowk was 200 yards from the place of occurrence, where police remains present. After the occurrence, prosecutrix along with her husband had gone to her house and had slept. In case, appellants had raped the prosecutrix against her wish, then after the occurrence, there was no reason to sleep at the house and report the matter on the next day. In fact, appellants were known to the prosecutrix. Appellants used to visit the house of the prosecutrix. There was a possibility that prosecutrix had relations with the appellants. When the prosecutrix was seen with the appellants, then report was lodged. Argued that as per report of the laboratory, human semen was detected in case of all exhibits except pubic hair but no effort to take blood samples of the appellants to connect them with the crime. In fact, appellants had dispute with Des Raj, landlord of the prosecutrix. Vishnu Pandey, husband of prosecutrix, was working as a Thekedar of labourers. Vishnu Pandey used to harass the labourers. Whenever any one demanded wages, then he was got implicated at the instance of Des Raj. Appellants were falsely implicated in this case. Crl.Appeal No. 1641-SB of 2007 7 Learned State counsel argued that occurrence was at about 10.00 PM on 26.10.2006. Prosecutrix was raped against her wish by the appellants turn by turn. Vishnu Pandey on hearing cries of the prosecutrix had gone to the spot and had seen the appellants while scuffling with the prosecutrix but on seeing him, appellants had fled away from the spot. An effort was made to apprehend the appellants but Vishnu Pandey was not successful to catch hold any of the appellants. After the occurrence, prosecutrix along with her husband came back to her house, but brother of Vishnu Pandey was out of station. Due to odd hours and absence of brother of Vishnu Pandey, matter was not brought to the notice of the police or panchayat. Before the occurrence, appellants had no enmity with the complainant party. There was no idea to choose the appellants, particularly when reputation of the prosecutrix was involved. Vacant plot was adjoining the house of the prosecutrix. At about 10.00 PM, prosecutrix had gone to answer the call of nature in the vacant plot owned by Sham Lal Luthra. Appellants had gone inside the vacant plot and had raped the prosecutrix. Prosecutrix was medico legally examined. Human semen was detected on all exhibits except pubic hair. External injuries were not noticed on the person of the prosecutrix because prosecutrix was caught hold by one of the appellant, then second had raped. After that, second appellant had caught hold the prosecutrix and first appellant had raped her. Prosecutrix had no enmity with the appellants. There was no reason to name the appellants. According to defence version of the appellants, false case at the instance of Des Raj but nothing on the file that Vishnu Pandey was a Thekedar and had a dispute with the labourers. Suppose, Vishnu Pandey was a Tehkedar and was employee of Des Raj or Vishnu Pandey had some Crl.Appeal No. 1641-SB of 2007 8 dispute with the labourers, then no question of false implication because appellants were not serving at the factory of Des Raj. There was no dispute of appellants with Vishnu Pandey. When the appellants had no dispute with Des Raj or Vishnu Pandey, then there was no reason to leave the real culprits and name the appellants. According to evidence on the file, there was a boundary wall of 10 feet height around the vacant plot of Sham Lal Luthra, but there are number of ways to enter the plot by scaling over the wall. Appellants were earlier known to the prosecutrix. There was street light near the place of occurrence. Appellants remained with the prosecutrix for sufficient time. So, no dispute regarding identification of the appellants. If the appellants had affair with the prosecutrix, then suggestion could be given to the prosecutrix that she had relations with the appellants. Appellants when examined under Section 313 Cr.P.C., then did not state a word that they had relations with the prosecutrix. Prosecutrix was tenant of Des Raj but Des Raj had no dispute with the appellants. So, no question of false implication of the appellants at the instance of Des Raj. According to the story, on 26.10.2006 at about 10.00 PM, prosecutrix was raped by the appellants when she had gone to the adjoining plot of Sham Lal Luthra to ease herself, whereas defence version of the appellants was that they were falsely implicated at the instance of Des Raj, owner of the factory, because complainant party was residing in the room of Des Raj. Now the question is whether prosecution story inspires confidence or defence version seems to be more probable. First submission of learned defence counsel for the appellants was that there was delay of 14 hours in lodging the FIR. Delay is fatal and was not explained. Possibility of false implication cannot be ruled out but Crl.Appeal No. 1641-SB of 2007 9 after going through the evidence on the file, I am of the opinion that submission of learned defence counsel for the appellants seems to be not correct one. Prosecutrix was married with Vishnu Pandey 10 years earlier to the occurrence and from this wedlock, she has one son, aged about 3 years. Prosecutrix along with her husband was occupying a room of Des Raj. Vacant plot of Sham Lal Luthra was adjoining the plot of Des Raj. In the plot of Des Raj, there was no toilet but there was bathroom to take bath. At 10.00 PM, prosecutrix had gone to answer the call of nature in the vacant plot of Sham Lal Luthra. If some portion of plot of Des Raj was vacant, then prosecutrix was not expected to ease herself in the vacant portion near the residential portion. When vacant plot was adjoining the residential portion of the complainant party, then prosecutrix was expected to visit the vacant plot to answer the call of nature. When prosecutrix was raped against her wish by the appellants turn by turn, then she raised cries. On hearing cries of prosecutrix, Vishnu Pandey had gone to the spot and had seen the appellants while scuffling with the prosecutrix. On seeing Vishnu Pandey, appellants had fled away from the spot. After the occurrence, prosecutrix along with her husband came back to her house. Reputation of the prosecutrix was involved. Brother of Vishnu Pandey was out of station. Vishnu Pandey was thinking to visit police station but his brother was not present in the house at that time. After brother of Vishnu Pandey came back, then matter was brought to his notice. On 27.10.2006, prosecutrix along with her husband had gone to lodge report. No doubt, there is delay of 14 hours in lodging the FIR but delay is not sufficient for acquittal of the appellants. Delay is one of the suspicious circumstance to scrutinize the evidence with great care and Crl.Appeal No. 1641-SB of 2007 10 caution. When reputation of a married lady is involved, then lady thinks twice before lodging report with the police or panchayat. On 27.10.2006, statement of the prosecutrix was recorded. Special report was delivered to the Ilaqa Magistrate at 1.55 PM. Appellants were named by the prosecutrix. Before the present occurrence, appellants had no enmity with the complainant party. Without enmity, there was no reason to implicate the appellants. Admittedly, there was a weigh bridge known as Balaji Dharam Kanta near the place of occurrence but nothing on the file that at the time of occurrence, any vehicle was present there. Some employees were expected to be present at the weigh bridge but question is whether they had heard cries of the prosecutrix. Vishnu Pandey, husband of the prosecutrix, stated that matter was not brought to the notice of panchayat or any other person present at the weigh bridge because honour of the prosecutrix was involved. If immediately after the occurrence, intimation is given to the panchayat or police, then very difficult for the prosecutrix to move in the village or bazar. When there is an allegation of rape, then complainant party thinks twice as to whether report is to be lodged with the police or not. Sometimes before lodging the report, an effort is made to settle the controversy with the help of respectables. Report is lodged with the police when no settlement at the intervention of panchayat or respectables. So, delay of 14 hours in lodging the report is not sufficient for acquittal of the appellants. Delay is one of the suspicious circumstance to scrutinize the evidence with great care and caution. Before the present occurrence, appellants were not inimical towards the complainant party. So, there was no reason to name the appellants by leaving the real culprits. If appellants were to be named falsely, then it is very easy for the complainant party to Crl.Appeal No. 1641-SB of 2007 11 level allegation that some household articles were stolen by the appellants or appellants had given beatings to Vishnu Pandey or the prosecutrix. Next submission of learned defence counsel for the appellants was that conduct of the prosecutrix and her husband shows that story is not genuine one because occurrence was in the plot of Sham Lal Luthra. There were grass and bushes. Brick bats were also lying in the plot, but no external injury was noticed on the person of the prosecutrix. Chappal and chain of the prosecutrix were left at the spot but same were not recovered by the IO while inspecting the place of occurrence. There was a boundary wall of 10 feet height around the plot of Sham Lal Luthra. Without the help of ladder or support, appellants were not expected to scale over the wall to enter the plot and leave the spot after committing the crime. Blood samples of the appellants were not taken to connect the appellants with the crime. In case, prosecutrix was raped by the appellants, then human semen should have been detected in case of pubic hair. Prosecutrix was married and was expected to have sexual intercourse with her husband. Report of the laboratory to the effect that human semen was detected is not sufficient to connect the appellants with the crime, but 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 appellants. No doubt, prosecutrix was married and was having one son, aged about 3 years. Prosecutrix was raped at about 10.00 PM on 26.10.2006. On the next day, she was medico legally examined. Dr. Deepika Gupta appearing as PW1 stated that no external injury was noticed on the person of prosecutrix but the doctor did not state a word that there was no rape. Doctor rather stated that possibility of sexual intercourse cannot be ruled out. Doctor further stated that as per Crl.Appeal No. 1641-SB of 2007 12 report of laboratory, human semen was detected on all exhibits except pubic hair. But the doctor further stated that as per clinical examination, possibility of penetration and sexual assault can not be ruled out. In cross- examination, doctor stated that in case there was a forcible rape, then possibility of external marks of resistance are liable to be present and if rape was on a hard surface, then there might be injuries on the body. But in the present case, prosecutrix was raped in the vacant plot of Sham Lal Luthra. There was grass. Firstly, one of the appellant had gagged the mouth of the prosecutrix and then second had raped. After that, second appellant had gagged mouth of the prosecutrix, then first had raped her against her wish. That means, appellants had raped the prosecutrix turn by turn when her mouth was gagged. No evidence on the file that prosecutrix was strong than the appellants. If weak lady is raped by gagging her mouth and no resistance by her, then external injuries are not expected on the person of the prosecutrix. If the prosecutrix was in a standing position and is dragged upto 10-15 feet, then no question of injury. No authority was cited by learned defence counsel for the appellants that if no external injury is noticed, then on this short ground, story is to be ignored. When there was grass etc. in the vacant plot and there was no resistance by the prosecutrix being weak, then doctor rightly observed that there was no external injury. As discussed earlier, there was a boundary wall around the plot of Sham Lal Luthra and height of the wall was about 10 feet. Appellants had gone inside the plot by scaling over the wall but there are number of modes to enter the plot by scaling over the wall. There was possibility of some bricks or earth outside the plot near the wall or by using some wooden log, one can scale over the wall to enter the plot. To enter the plot by Crl.Appeal No. 1641-SB of 2007 13 scaling over the wall of 10 feet, every time ladder is not required. Evidence is to the effect that when the prosecutrix had gone inside the plot to ease herself, then had noticed the appellants while coming inside the plot by scaling over the wall and it was for the appellants to see as to how to scale over the wall. When there are two appellants, then one can lift the other and later on, second can hold the other to scale over the wall. No reason to discard the version of prosecutrix and her husband on the ground that appellants cannot scale over the wall without ladder etc., which was 10 feet in height. Vishnu Pandey, husband of the prosecutrix, stated that on hearing cries of his wife, he had gone to the spot and had seen the appellants while scuffling with the prosecutrix. On seeing him, appellants had fled away from the spot. While leaving the spot, they had threatened to eliminate them if the matter is brought to the notice of any one. He further stated that he made an effort to catch hold the appellants, but he was given a push by the appellants. This was the reason as to why Vishnu Pandey failed to catch hold any of the appellants. On 27.10.2006, prosecutrix was produced before the doctor and was medico legally examined. Sealed parcels were sent to the laboratory. Report of the laboratory (Ex.P7) is on the file. Human semen was detected on all exhibits except pubic hair. One of the appellants was unmarried at the time of occurrence. There was no question of presence of human semen on his underwear. No doubt, prosecutrix was married and there was a possibility of intercourse with her husband but there was no reason to name the appellants, when they were not inimical towards the complainant party. Minor discrepancies in the statements of prosecutrix Crl.Appeal No. 1641-SB of 2007 14 and her husband. Discrepancies rather show that story is natural one. Next submission of learned defence counsel for the appellants was that Vishnu Pandey was a Thekedar of