Crl. Revision No. 1318 of 2005 ::1:: In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 1318 of 2005(O&M) Date of Decision: April 8, 2011 Bahadur Ali ---Petitioner versus State of Punjab and others ---Respondents Coram: HON'BLE MR. JUSTICE GURDEV SINGH *** Present: Mr.G.N.Malik, Advocate, for the petitioner Ms. Gagan Mohini, Asstt. Advocate General, Punjab *** GURDEV SINGH, J. The petitioner-private complainant, Bahadur Ali, has preferred this revision against the judgment dated 28.2.2005 passed by Additional Sessions Judge (Ad hoc) Fast Track Court, Sangrur, vide which he acquitted the accused-respondents No. 2 to 5 of the offences under Sections 366-A and 376 IPC. The facts, in brief, are that on 4.6.2003, Bahadur Ali, complainant, PW-4, made his statement, Ex. P.4, before Parminder Singh ASI. He narrated therein that the prosecutrix (name not being disclosed in the judgment)who is his sister and was aged about 17 years, had been working as a part time maid servant in the house of Mohd Akhtar @ Gora, accused and had been going to his house from 6-00 a.m. to 10-00 a.m. and then from 4-00 p.m. to 7-00 p.m. and had been helping Shakeela-accused in cooking the meals. Rakesh Kumar Crl. Revision No. 1318 of 2005 ::2:: @ Kala-accused, was working as a domestic servant in the house of those accused. On 2.6.2003, the prosecutrix had gone to the house of the accused at 6-00 a.m. and thereafter never came back. When he went to the house of the accused at about 11-00 a.m., Mohd. Jameel @ Dara met him at that place and when he enquired about the prosecutrix, that accused failed to give any satisfactory reply. He kept on searching for the prosecutrix and on 4.6.2003, his neighbourer Mohd. Shakil, PW-5, told him that on 2.6.2003, he was present in bus stand of Malerkotla for going to Ludhiana when all the accused came there with the prosecutrix at about 7-00 a.m. and made her to board the bus along with Rakesh Kumar @ Kala. Thereafter, he entertained a doubt that the prosecutrix had been kidnapped by the accused for committing some illegal act. On the basis of that statement of the complainant, FIR, Ex. P.26, was recorded against the accused under Sections 363, 366A/34 IPC. On 5.6.2003, the prosecutrix was recovered from the house of Rakesh Kumar @ Kala, who was duly identified by the complainant. Memo Ex. P.5 to that effect was prepared by the ASI. The prosecutrix was produced before the Medical Officer, Civil Hospital, Malerkotla, by the ASI along with application, Ex. P.1, for her medical examination. Her medical examination was conducted by Dr. Ritu Sethi, PW-6. She took the vaginal swabs, which were duly sealed and were handed over to the police. The accused was produced before the Medical Officer for her medical examination and the same was conducted by Dr. Gurvinder Singh, PW-7, who found him fit for performing sexual intercourse. On 7.6.2003, the prosecutrix was produced before Sh. Rakesh Kumar, SDJM, Phul, who recorded her statement under Section 164 Cr.P.C. She narrated therein that on 2.6.2003, she was asked by Shakeela to perform marriage with Mohammedan boy, to which she refused. Then she was taken by all the accused on a scooter to the bus stand where Shakeela gave her ` 2000/- and Crl. Revision No. 1318 of 2005 ::3:: made her to sit in the bus in which Rakesh Kumar @ Kala was already sitting, who took her to Kalka to the house of the friend of his sister Sheela, where he committed rape on her. She had a talk with Shakeela about the performing of that forcible sexual intercourse by Kala, from the PCO, on 3.6.2003 and thereafter, all the three other accused came there in a car make Maruti and told her that they would perform her court marriage with that boy and under fear, she accompanied them. She was brought to the house of that accused at Dhuri, where he committed forcible sexual intercourse with her twice and she was again raped on 4.6.2003 and was recovered from that place on 5.6.2003 by the police. About the date of birth of the prosecutrix, the Certificate, Ex. P.2, was collected from Islamia Girls Senior Secondary School, Malerkotla. On 8.6.2003, the accused was interrogated by the ASI, upon which he made a disclosure statement, Ex. P.13, that he had kept concealed the apparels worn by the prosecutrix on 2.6.2003 in the wooden almirah, lying in the house of the friend of his sister, after putting the same in a polythene bag, about which only he had the knowledge and could get the same recovered from that place. In pursuance of that disclosure statement, the accused got recovered the wearing apparels from the said place, which were converted into a parcel and the same was sealed by the ASI with his seal “PS”. The sealed parcel containing the vaginal swabs and those wearing apparels, were sent to the Chemical Examiner through Sudham Singh, Constable, PW- 11, and were delivered at that place with seals intact on 22.8.2003. After analysis, it was reported by the Chemical Examiner, vide his report, Ex. P.11, that the semen was detected only on the salwar and on no other article. During the investigation, Shakeela, Mohd. Akhtar and Mohd. Jamil @ Dara were found to be innocent, whereas the challan was presented against Rakesh Kumar @ Kala before SDJM, Malerkotla, who committed the same to the Court of Session on the ground that Crl. Revision No. 1318 of 2005 ::4:: the accused committed offences punishable under Sections 363, 366A and 376 IPC. From the documents sent along with the police report and after hearing Public Prosecutor for the State and the accused in persons, the Additional Sessions Judge found sufficient grounds for presuming that the accused committed offences punishable under Sections 366-A and 376 IPC. He was charged accordingly, to which he pleaded not guilty and claimed trial. To prove the guilt of this accused, prosecution examined Dr. Ritu Sethi, PW-1, Dr. Gurvinder Singh, PW-2, Mohd,. Jamila, PW-3, Amrit Singh, Draftman, PW-4 and the prosecutrix, PW-5. Thereafter the Public Prosecutor moved an application under Section 319 Cr.P.C., for summoning the other accused as additional accused. That application was allowed, vide order dated 20.2.2004 and the other accused were summoned to stand their trial along with Rakesh kumar @ Kala, accused. On appearance of these accused in the court, mandatory provisions of Section 207 Cr.P.C. were complied with. From the documents sent along with the police report, the Additional Sessions Judge found sufficient grounds for presuming that all the accused committed offences punishable under Sections 366A and 376 IPC. They were charged accordingly, to which they pleaded not guilty and claimed trial. To prove the guilt of the accused, prosecution examined the prosecutrix, PW-1, Naheed Jamal, Principal, Islamia Girls Sr. Sec. School, Malerkotla, Amrik Singh, Draftsman, PW-3, Bahadur Ali, PW-4, Mohd. Shakil, PW-5, Dr. Ritu Sethi, PW-6, Dr. Gurwinder Singh, PW-7, Nazeer Mohd, PW-8, Gurmaj Singh, PW-9, Rakesh Kumar, SDJM. Phul, PW-10 and Sudham Singh, PW-11. After the close of the prosecution evidence the accused were examined and their statements were recorded under Section 313 Cr.P.C. All the incriminating circumstances appearing against them in the prosecution Crl. Revision No. 1318 of 2005 ::5:: evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their false implication. It was stated by Rakesh Kumar @ Kala that the prosecutrix was major and had love affair with him but refused to marry him under the pressure of her parents and brothers, being from different religion. She had accompanied him with her free will and false story was concocted by her family members in connivance with the police. It was stated by the other accused that they had been running a factory of manufacturing almirahs etc. and on that account, the complainant party had been moving a number of applications to the authorities for the removal of that factory on the ground that the same created nuisance and spread dirt. The prosecutrix eloped with Rakesh Kumar @ Kala and the complainant party found an occasion to falsely implicate them. Even during the investigation, they were found to be innocent. The accused were called upon to enter on their defence. They examined Mohd. Nazir, DW-1, Mohd. Ismail, DW-2 and Gulam Mohd. Gama, DW-3 in their defence evidence. I have heard learned counsel for both the sides. It has been submitted by learned counsel for the petitioner that the learned trial court failed to appreciate the law that the prosecutrix stands at the same footing as that of an injured witness and reliance was to be placed on the statement of the prosecutrix even in the absence of any corroborative evidence. From the statement of the prosecutrix, it stands proved that she was kidnapped by all the accused with the intention that she be induced to illicit intercourse with Rakesh Kumar @ Kala, who repeatedly raped her. The findings recorded by the trial court suffer from illegality and perversity. The statement of the prosecutrix and other evidence produced by the prosecution, could not have been brushed aside for the reasons incorporated in the judgment. The conviction of the accused could have been easily recorded on the basis of Crl. Revision No. 1318 of 2005 ::6:: cogent and convincing evidence produced by the prosecution to the effect that the prosecutrix was minor and was kidnapped by all the accused with the intention that she be induced to illicit intercourse and that Rakesh Kumar @ Kala committed forcible sexual intercourse with her against her consent. He prayed that the acquittal of the accused be set aside and they be convicted. There is no ground to differ with the legal argument raised by learned counsel for the petitioner that the statement of the prosecutrix, in such like cases, is to be treated at par with the statement of an injured witness and if the same is found to be trustworthy, no corroboration is required for basing conviction of the accused on that statement. The question to be determined is whether it can be said that the statement of the prosecutrix is trustworthy and inspires confidence? The same is to be scrutinized in the light of the fact that on account of the acquittal of the accused by the trial court, there is double presumption of innocence in their favour. It is also to be seen as to what was the age of the prosecutrix at the time of alleged occurrence. The prosecutrix, PW-1, herself stated that her date of birth is 20.2.1986. Other evidence has also been produced for proving that fact and the same consists of the Certificate, Ex. P.2, issued by the School Authorities and proved on the record by Naheed Zamaal, Principal, Islamia Senior Secondary School, Malerkotla, PW-2. In that Certificate also, her date of birth is recorded as 20.2.1986 . Thus, she was more than 16 years old at the time of the alleged occurrence. The prosecutrix while making her statement in the court deposed about the facts which constitute the prosecution version and which were stated by her before the Magistrate. According to her, she was abducted by all the accused and was taken by Rakesh Kumar @ Kala in the bus to Kalka, where he committed sexual intercourse with her without her consent and thereafter, she Crl. Revision No. 1318 of 2005 ::7:: was brought by all the accused to the house of that accused in Dhuri, where he again committed rape on her and that she was recovered from the house of that accused by the police on 5.6.2003. According to Section 375 IPC, a man is said to commit rape, who committed sexual intercourse with a women under the following circumstances:- 1.Against her will. 2. Without her consent. 3. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. 4. With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. 5. With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. 6. With or without her consent, when she is under sixteen years of age. Once it is proved that the prosecutrix was more than 16 years old at the time of the said sexual intercourse, the prosecution was required to prove that the same was against her will and without her consent or with her consent but the same had been obtained by putting her under the fear of death or hurt. Crl. Revision No. 1318 of 2005 ::8:: It is not the case of the prosecutrix that any such threat was given to her by Rakesh Kumar @ Kala before committing the sexual intercourse with her. In case, her statement is scrutinized minutely, it becomes very much clear that it is a case of sexual intercourse, if any, with consent. According to her, the bus was fully packed with passengers when she was first taken to Ludhiana and in the bus stand, Ludhiana, also many persons were moving about and from that place she boarded the bus for Kalka and there were passengers in the bus also. The bus stopped at Bus Stand, Chandigarh, for about 40-45 minutes and during that period, a number of passengers got down and board the bus. According to her, she had not talked to any passenger during all that period. She stated that she remained at Kalka for one day but did not talk to any neighbourer during that period. She has gone to the extent of deposing that she talked to Shakeela from PCO. It was near the place where they stayed and she had paid for making the call from her own pocket. Thus, there was sufficient opportunity with the prosecutrix to raise hue and cry when she was first removed to Ludhiana, then to Chandigarh and then to Kalka. She did not raise any hue and cry, which itself shows that on all the way, she accompanied Rakeash Kumar @ Kala with her consent. Even from the statements of the witnesses examined by the accused in their defence, it is very much clear that the prosecutrix accompanied Rakesh Kumar @ Kala, accused, of her own and stayed with him with her sweet will. It was stated by Mohd. Nazir, DW-1, that on 3.6.2003, Bahadur Ali, complainant, came to him at 8.30 a.m. and told that her sister(prosecutrix) had eloped and he asked him to contact Dara, who knew about her whereabouts. Thereafter, he accompanied by the complainant and Gama went to the shop of Dara and were told that one of his labourer, Rakesh Kumar @ Kala was also not coming to the work. Then they went to the house of that Crl. Revision No. 1318 of 2005 ::9:: Rakesh Kumar @ Kala and were told by his father that his daughter was married at Kalka. Thereafter, they went to Kalka at the address so given by the father of Rakesh Kumar @ Kala and at that place the complainant spotted the prosecutrix. They were told by the prosecutrix that she had come along with Rakesh Kumar @ Kala with her free will on account of deep love and wanted to marry him. Then they brought the prosecutrix to Malerkotla and gave her custody to Mohd. Ismile, Municipal Councilor. The statement of this witness has been fully corroborated by Gulam Mohd, DW-3 and Mohd, Ismail, DW-2. Nothing was elicited during their cross examination on the basis of which it may be held that they are made up witnesses or that they have not made truthful statements in the Court. The defence witnesses stand at par with the prosecution witnesses and, if after due scrutiny, their statements are found to be trustworthy, full reliance is to be placed upon the same. From this defence evidence of the accused it stands proved that the prosecutrix accompanied Rakesh Kumar @ Kala to Kalka and stayed at that place with her consent. Even from the medical evidence produced by the prosecution it stands proved that no force was used against the prosecutrix. No struggle marks were found on her body at the time of her medical examination by Dr. Ritu Sethi, PW-6. Even no semen was detected on the vaginal swabs, so taken by that doctor. According to the prosecutrix, she was repeatedly raped by Rakesh Kumar @ Kala, accused, but according to this doctor witness , the vagina admitted only one finger, which falsifies the version of the prosecution. There are inherent improbabilities in the version put forward by the prosecution. It was stated by the prosecutrix, PW-1, during her cross examination that their house adjoins the factory of the accused, which caused much nuisance and created dirt and on that account they were aggrieved Crl. Revision No. 1318 of 2005 ::10:: against them. She showed her ignorance if any application was given to the authorities by her brothers Bahadur Ali and Mohd. Nazir for removal of that factory. But when that fact was put to Bahadur Ali, PW-4, during his cross examination, he admitted the same. He also stated that he got the news published in the newspaper regarding the operating of the factory by the accused in illegal manner and moving of an application before the Pollution Control Board also. If such was the position, there was no question of the prosecutrix working as a maid servant in the house of the accused. There was direct confrontation between her family members and all the accused and they were almost at daggers drawn. Then why she will be going to the house of the accused to work as maid servant and in fact she would avoid to go to their house. The trial court did not commit any illegality while coming to the conclusion that the statement made by the prosecutrix is highly improbable and does not inspire any confidence. No ground is found for upsetting the acquittal of the accused recorded by it. There is no merit in this revision and the same is hereby dismissed. Records of the trial court be returned forthwith. (GURDEV SINGH) JUDGE April 8, 2011 PARAMJIT Whether to be referred to Reporter? Yes