Crl. Revision No. 2200 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 2200 of 2003 Date of decision: April 21, 2011 Karamjit Kaur ...Petitioner Versus State of Punjab and others ...Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. R.S. Bains, Advocate, for the petitioner. Mr. Anil Sharma, Advocate, for Mr. Amit Jhanji, Advocate, for respondents No. 2 and 3. GURDEV SINGH, J. The petitioner/private complainant (PW-1) filed this revision against judgment dated 21.3.2003 passed by the Additional Sessions Judge, (Fast Track Court), Ludhiana, acquitting the accused/respondents No. 2 and 3 of the offences under Sections 366 and 376 IPC. The facts, in brief, are that the petitioner/prosecutrix (the name not being disclosed in the judgment) was residing with her parents in village Akalgarh and was a student of 10+2 in G.H.G. Khalsa College, Gurusar Sudhar. On 10.11.1999, she was left at the college at 9 a.m. by her father Chanan Singh (PW-2). After about one hour, on account of her bad health, she started for her house on foot after informing the college authorities. When she reached near the turning of her village, Manjinder Singh accused Crl. Revision No. 2200 of 2003 2 came there with the motor car make Maruti. After stopping the same, he offered lift to her in the car and she occupied the same. She found that two Sikh boys, who were sporting beard and wearing turbans, were already sitting in that car. After taking the turn in the street, that car was again taken towards the bridge of canal Sudhar. Thereafter, that car was taken towards village Sauhali and was stopped in the pits at some distance of the bridge of Sauhali. Manjinder Singh asked one of the above said boys, by calling him Sodhi, to accompany him and asked the third boy Tarna to wait for them in the car itself. Thereafter, Tarna committed rape on her in the car itself. Manjinder Singh and Sodhi came after about 10-15 minutes. Manjinder Singh started driving the car and the other two accused made her to sit on the floor thereof. She was brought to a hotel in Ludhiana city and was kept there during the night, where she was again raped. The next day, the accused asked her to accompany them to her house. When she was brought near the canal in the limits of village Gill, she asked the accused to allow her to make a telephone call from the PCO. She gave a message on the telephone to one of her neighbours, requesting him that her father be asked to collect her from the PCO, situated near the bridge of Village canal, where she had been brought by Manjinder Singh. The accused again asked her to occupy the car to which she refused and a raula was raised, which attracted the people to that place. Manjinder Singh told those people that she was wife of Tarna and had come from the house after quarreling with the family members and that they would take her to that place. Thereafter, she was forcibly taken in the car to the house of Tarna at Mandi Ahmedgarh. At that place, Tarna and Sodhi committed forcible sexual intercourse with her, after consuming alcohol and also made her to consume Crl. Revision No. 2200 of 2003 3 the same. She was not allowed to go to her house inspite of the requests made by her to that effect. On 14.11.1999, both those accused asked her to sit in the car and told that they would take her to her house. Then she was brought to village Sehbajpur and was left at that place. One old man met her and she disclosed all these facts to him and that old man took her to the house of Amarjit Singh Sarpanch. After hearing her story, that Sarpanch sent a message to her house and after some time, her father accompanied by 2-3 persons, came to that place and took her to their house. On account of her serious condition, she was admitted in the hospital by her father. She was medically examined by Dr. Kuljit Kaur (PW-3). About her admission in the hospital, a message was sent to the Police Station and on receipt thereof, Gurdev Singh, ASI (PW-4), accompanied by other police officials, came to that place and recorded her statement Ex. PA. After making his endorsement Ex. PA/1 upon the same, it was sent to the Police Station and on the basis thereof, FIR Ex. PA/2 was recorded against the accused under Section 342, 366 and 376 IPC. On 20.11.1999, Tarna accused was arrested by the ASI. He was taken to the hospital and was medically examined by Dr. R.S. Grewal (PW-5), who found him fit to perform sexual intercourse. In the course of investigation, Harbans Singh accused was arrested. After completion of the investigation, challan was put in before the SDJM, Jagraon, who committed the same to the Court of Session, vide his order dated 30.3.2000. Both the accused were charged under Sections 366 and 376 IPC by the Additional Sessions Judge, Ludhiana, who from the perusal of the documents, sent alongwith the police report under Section 173 of of the Code of Criminal Procedure (hereinafter referred to as 'the Act'), found prima facie case under those two sections against the accused. To prove Crl. Revision No. 2200 of 2003 4 their guilt the statements of the prosecutrix was recorded and thereafter, the Public Prosecutor moved an application under Section 319 of the Code for summoning Manjinder Singh @ Daler Singh and Sodhi @ Navdeep as additional accused. That application was allowed and both those were summoned to stand their trial with the already arraigned accused. Those accused appeared before the trial court. Fresh charges were framed under Sections 366 and 376 IPC, to which they pleaded not guilty and claimed trial. The FIR was quashed against Harbans Singh accused by this Court, vide order dated 14.3.2001. Tarna @ Taranjit Singh accused absented himself during the trial. After warrants of arrest were issued against him, he concealed himself to avoid the execution of those warrants. Proclamation was issued against that accused under Sections 82/83 of the Code and was declared as proclaimed offender. To prove the guilt of the accused, the prosecution examined Karamjit Kaur (PW-1), Chanan Singh (PW-2), Dr. Kuljit Kaur (PW-3), Baldev Singh, ASI (PW-4), Dr. R.S. Grewal (PW-5) and Shivdev Singh (PW-6). After the close of the prosectuion evidence, the accused were examined by the trial court and their statements were recorded under Section 313 of the Code. All the incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their innocence and false implication. It was stated by Maninder Singh/Manjinder Singh that the prosecutrix and her family members were not on speaking terms either with him or his family. She was having illicit relation with one Joginder Singh and he had been persuading her to desist Crl. Revision No. 2200 of 2003 5 from that illicit relationship. His fields are situated on the back side of the house of the prosecutrix and damage was caused to that house on account of irrigation of those fields. He is a truck driver. On 3.11.1999, he had taken his truck from Ludhiana to Jaipur, where he remained upto 11.11.1999. On that day, he loaded the truck for Kinaur and reached Parwanoo boarder on 14.11.1999. A dispute arose with sale tax authorities at Parwanoo and on that account he had stayed at that place upto 17.11.1999. Thereafter, he left Parwanoo and reached Kinaur with loaded truck on 21.11.1999 and it was unloaded on 22.11.1999. It was stated by Navdeep Singh-accused that he is a student of Elementary Teacher Training at Sangrur and on the date of alleged occurrence, he was undergoing training at Hari Kishanpura Primary School, Sangrur under the guidance of Shri Darshan Singh Dhindsa, Physical Lecturer of that school. He is not known by the name of Sodhi. In order to save Harbans Singh, he was made a scape goat. The accused were called upon to enter on the defence and they examined Gurtej Singh (DW- 1), Chamkaur Singh (DW-2), Prof. Baldev Singh (DW-3), Darshan Singh Dhindsa (PW-4), Shamsher Singh (DW-5), Anand Singh (DW-6), Puran Singh (DW-7) and Parmod Kumar (DW-8) in their defence evidence. After going through the evidence, so produced and hearing Public Prosecutor for the State and the learned defence counsel for the accused, the trial court acquitted the accused of the aforesaid offences, vide impugned judgment. I have heard learned counsel for both the sides. It has been submitted by the the learned counsel for the petitioner/complainant/prosecutrix that the finding recorded by the trial court for acquitting the accused is totally illegal and perverse. The guilt of Crl. Revision No. 2200 of 2003 6 the accused stands proved from the statement of the prosecutrix, who is to be treated at par with an injured witness and not an accomplice. After she was left by the accused, she narrated all the facts to her father Chanan Singh (PW-2) and he duly corroborated her testimony. There was no reason with the trial court to disbelieve her. There was no ground for disbelieving her father also, in view of the cogent and convincing statement made by him. The prosecutrix could not have been held to be a consenting party for the reasons recorded by the trial court in the judgment. Those reasons are devoid of merits and are not sustainable. The delay in such like cases of rape is not material and could not have been made a ground for doubting the prosecution version. First, the prosecutrix and her father were made to suffer at the hands of the police, which did not register the FIR when it was approached to register a case after the prosecutrix went missing and again when no action was taken to register the case after the prosecutrix was left by the accused and her father approached it for doing the needful. On account of this pathetic attitude on the part of the police, the trial court should not have insisted on corroboration to the statement of the prosecutrix and should not have made the delay in lodging the FIR as a ground for disbelieving the prosecution version. It is a case where the acquittal should not have been recorded. He prayed that the revision be accepted and the acquittal so recorded by the trial court be converted into conviction. In this revision by the private complainant against the acquittal, she is required to make a very strong case for setting aside that acquittal and is required to prove that the findings record by the trial court are perverse. After acquittal was recorded, double presumption operates in favour of the accused. On examination of the record, it has been found that no such case Crl. Revision No. 2200 of 2003 7 for upsetting the acquittal is made out. According to the prosecutrix (PW-1), she was born on 25.10.1981 and the present occurrence had taken place on 10.11.1999. Thus, she was major on that day. No doubt, she deposed about the facts, which constitute the prosecution version and her statement is to be treated at par with of an injured witness and not a accomplice but a perusal thereof shows that it does not inspire any confidence. She stands contradicted by the evidence produced by the accused in the defence and the story put forward by her appears to be most improbable. She stated that she had left the college on account of ill health, after giving intimation to Baldev Singh, Professor. That Baldev Singh was examined by the accused as DW-3, who produced the attendance register in the court in which the prosecutrix had been marked absent for 10.11.1999 and he made a categorical statement that she did not attend the classes on that day and was otherwise irregular in attending the classes. On inquiry made from other students, he was told that she comes daily to the college, but was not attending the classes regularly. It is pertinent to note that his statement to that effect was not challenged during his cross-examination. It was never put to him that the prosecutrix had attended her classes on 10.11.1999 and had left the college after duly intimating him. According to the prosecutrix, she had already reached the turning of her village when Manjinder Singh came there with the car and offered lift. When she was so near the village and was not having good health, she would certainly have preferred to come to her house immediately and should not have accepted the lift in the car and must have stopped the accused from proceeding again towards Sudhar, moreoso, when she found that there were two other boys already sitting in the car. Crl. Revision No. 2200 of 2003 8 According to her, it was Manjinder Singh, who was known to her. After he had left with Sodhi, leaving her with Tarna, she had no business to keep sitting in the car and to become a victim of rape. The natural conduct on her part, if there was any truth in her version, would have been to immediately come out of the car, after Manjinder Singh had left. She did not leave the car, even after rape was so committed and continued to wait for the other accused. She stated during her cross-examination that when the car was taken to Sauhali, she was sitting on the front seat and was asked by Manjinder Singh forcibly to come to the back seat and she was sitting with Tarna on the back seat when the rape was committed on her. According to her, her underwear and salwar were removed by Tarna before committing sexual intercourse and those were again worn by her. If she could have done that, then she could have also left that place. It was most unnatural conduct on her part. Even after rape was committed upon her, she permitted the accused to take her in the same car to Ludhiana. According to her, she had raised hue and cry at the PCO where the car was stopped by the accused on her request, while coming from Ludhiana. If she could have raised such a hue and cry why she did not do so while being taken to the hotel or at the reception of the said hotel. It is not her statement that she was under a threat or the accused were carrying any such weapons which deterred her from raising such hue and cry. The only inference which can be drawn from all these facts is that she willingly accompanied the accused and she has not come out with the truthful version in the court. She made a number of improvements, while making statement in the court and she was duly confronted with the statement made before the police. It is not a case where the father of the prosecutrix had come Crl. Revision No. 2200 of 2003 9 with the version that on account of the honour of the girl, efforts were not made to approach the police. According to him, he had gone to the Police Station, Sudhar on 10.11.1999 but his report was not recorded and that he appeared before the SSP, Jagraon also. If the same was not done, he could have filed a private complaint. Even after the prosecutrix had been so left by the accused on 14.11.1999, no efforts were made to lodge the FIR immediately. Though in such like cases of rape etc. the delay in lodging the FIR is not material, yet in the facts and circumstances of the case, this delay does assume importance as the father of the complainant was not averse to the lodging of the report with the police immediately after the prosecutrix went missing. Even the medical evidence does not support the statement of the prosecutrix. Dr. Kuljit Kaur (PW-3), who medically examined her, did not find any injury on the inner aspect of thigh and genitalia. She did not rule out the possibility of sexual intercourse. After she recorded in the MLR that there was no injury on the person of the prosecutrix, she subsequently mentioned therein that there was scar on the face, suggestive of violent kissing within 5 to 7 days. According to the prosecution, she was repeatedly raped without her consent. In that eventuality, some injuries on the private parts of the prosecutrix were bound to be there. The accused produced evidence to prove the stand taken by them in their respective statements under Section 313 of the Code and to prove the plea of alibi. It was stated by Anand Singh (DW-6), who was carrying on business of transport under the name and style of Himachal, Punjab Transport Company, that Maninder Singh accused is working as a truck driver in this Company. On 5.11.1999, he came to the office and Crl. Revision No. 2200 of 2003 10 parked his truck bearing No. AS-25-4615 for loading goods about which entry was made in the register at page 216. The truck remained in the agency upto 11.11.1999. It left Jaipur on that day at about 10 p.m. and from 5.11.1991 to 11.11.1999, Maninder Singh remained at his office at Jaipur. The statement of this witness has been fully corroborated by Puran Singh (DW-7), who is also a transporter. According to him, the accused left with this truck for Jaipur on 3.11.1999 at 7 p.m. The statements of these witnesses are corroborated by the documents brought by them in the court and photostat copies of which were proved on record. Nothing could be elicited during their cross-examination which could lead to the inference that these documents were fabricated or that they did not make correct statements in the court. If Manjinder Singh was at Jaipur from 5.11.1999 to 11.11.1999, there was no question of his being present near the village of the prosecutrix on 10.11.1999. Gurtej Singh, Lecturer, District Institute of Education and Training, Sangrur, appeared in the witness box as DW-1 and stated that Navdeep Singh was the student of E.T.T. Classes of their College since 16.3.1999. During the months of November and December, 1999, he was In-charge Principal of the Institute. He produced in the court the attendance register, which was counter-signed by Darshan Singh, Lecturer therein. He proved the photostat copy of that register as Ex. DH. As per this register, Navdeep Singh was present in the Institute from 9.11.1999 to 10.11.1999. That rules out the possibility of his presence near the village of the prosecutrix on 10.11.1999. From the above discussion, I conclude that the trial court did not commit any illegality, while recording the findings in favour of the accused, while disbelieving the prosecutrix and her father. No case is made Crl. Revision No. 2200 of 2003 11 out for setting aside the acquittal. The revision is dismissed accordingly. April 21, 2011 (GURDEV SINGH ) prem JUDGE Note:- Whether to be referred to reporter Yes/No