Criminal Appeal No. 126-SB of 1998. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Appeal No. 126-SB of 1998. DECIDED ON : May 22,2008 Suraj Bhan Appellant. VERSUS State of Haryana. Respondent. CORAM : Hon'ble Mr.. JUSTICE JORA SINGH. Present:- Mr. S.S.Narula, Advocate, for the appellant. Mr.Kartar Singh, Assistant Advocate General, Haryana. JORA SINGH,J. Suraj Bhan preferred this appeal against the judgment and order dated 3.2.1998 and 5.2.1998 in Sessions Case No. 16 of 1993 bearing First Information Report No. 329 dated 19.8.1993, under Section 376(2)(e) the Indian Penal Code, Police Station City, Bahadurgarh, whereby the accused was convicted under Section 376(2)(e) of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 4000/-. In default of payment of fine, he was directed to further undergo rigorous imprisonment for a period of one year. Criminal Appeal No. 126-SB of 1998. 2 Prosecution story, in brief, is that on 19.8.1993, police party headed by Assistant Sub Inspector Kartar Ram was present near bus stand, Bahardurgarh while on patrol duty. Geeta met the police party and got her statement recorded with the allegation that she belongs to Rajashthan. Her husband is an employee of Hindustan National Glass Factory, Bahadurgarh (hereinafter referred to as “the factory”) for the last 15/20 years. She has three sons and one daughter. Her husband had constructed a house in street No.4 Ram Nagar near factory. She along with her husband and children is residing in the same. Suraj Bhan is the President of Workers Union of the factory. Suraj Bhan had an evil eye on her. Suraj Bhan had also constructed his house adjacent to their house. They have common roof. On 15.8.1993 she along with her husband and children was sleeping on the roof of their house. At about 2/3 A.M., during night time, she felt that someone is rubbing his hand on her breast. Immediately, she got up. Then sighted that Suraj Bhan was doing so. She tried to raise raula but her mouth was gagged by Suraj Bhan with his hand. With the second hand, he had torn her blouse. She was over- powered by Suraj Bhan. She had rescued herself from Suraj Bhan by removing his hand. Raula was raised. Her husband got up. After that, Suraj Bhan by leaving her fled away from the spot by jumping from the roof. Complainant also Criminal Appeal No. 126-SB of 1998. 3 informed the police that earlier Suraj Bhan had also committed such kind of act with Mahesh Kumari wife of Ram Sarup residing in a Jhugi. On 20.8.1993 accused was arrested. During investigation, on 21.8.1993 statement of Mahesh Kumari was recorded by Assistant Sub Inspector Kartar Ram. Mahesh Kumari disclosed to Assistant Sub Inspector Kartar Ram that her father-in-law Hari Parsad and her husband Ram Sarup are the employees of the factory. She was married about ten years back and from this wed lock, she has one issue. Jhugi was constructed on the land of the factory and in that Jhugi they are residing. Her sister-in-law Janak Dulari is married at Laxman Ganj. But, for the last three/four months, she is residing with them. On the night of 15.8.1993, all the family members were sleeping. She along with her sister-in-law Janak Dulari and mother-in-law Yashoda were sleeping on separate cots outside their hut. Her father-in-law Hari Parsad was sleeping at some distance, whereas Ram Sarup was sleeping inside the hut as he was sick. At 4 A.M., one person came to her cot and laid on her cot. Her mouth was gagged with one hand and that man was Suraj Bhan, President of Workers Union. She was over powered by Suraj Bhan and with the other hand, Suraj Bhan had overturned her peticot. He had opened the string of his pyjama. She was raped against her wish. She tried to release Criminal Appeal No. 126-SB of 1998. 4 herself, but Suraj Bhan did not leave her. On hearing noise, her sister-in-law Janak Dulari and mother-in-law Yashoda woke up. They had seen Suraj Bhan while committing rape upon her. When they came near Suraj Bhan, then Suraj Bhan after leaving her, had fled away from the spot. She was pregnant and was raped by Suraj Bhan. Due to this reason, report was not lodged with the police earlier. Statement of Janak Dulari was also recorded. Mahesh Kumari was got medico legally examined, then offence under Section 376 of the Indian Penal Code was added to the case. Statement of Geeta first prosecutrix and Mahesh Kumari, second prosecutrix were also got recorded before Sub Divisional Judicial Magistrate, Bahadurgarh on 30.8.1993. After completion of investigation, challan was presented and vide order dated 5.11.1993 passed by Mr. G.S.Kotla, Sub Divisional Judicial Magistrate, Bahadurgarh, this case was committed to the learned Session Judge, Rohtak for trial. Accused was charge sheeted under Sections 354, 452, 376 of the Indian Penal Code to which he pleaded not guilty and claimed trial. In order to substantiate the charges, the prosecution examined as many as 16 witnesses. PW1 Dr. Anil Gautam had medico legally examined Suraj Bhan accused on 15.10.1993. Criminal Appeal No. 126-SB of 1998. 5 PW-2 Ashok Kumar Bakshi Sub Inspector/Station House Officer had simply prepared the report under Section 173 Cr.P.C. PW-3 Bhup Singh Constable and PW-4 Shiv Charan Head Constable had tendered their affidavits Ex.PB and Ex.PC., respectively. PW-5 Head Constable Hari Singh had arrested the accused on 20.8.1993. PW-6 Jagdish Chander MHC produced Rapat Roznamcha dated 21.7.1993 and also proved the First Information Report Ex.PE. PW7- Head Constable Nathu Ram was deputed to get second prosecutrix medico legally examined at Civil Hospital, Rohtak. PW8- Assistant Sub Inspector Ishwar Singh got recorded the statement of first prosecutrix and second prosecutrix under Section 164 Cr.P.C. PW-9 Mr. G.S.Kotla, Sub Divisional Judicial Magistrate, Bahadurgarh had proved the statements of first prosecutrix and second prosecutrix recorded by him under Section 164 Cr.P.C. on 30.8.1993. PW-10 Shri K.S.Hooda, draftsman had prepared scaled site plan Ex.PL. PW-11 Geeta wife of Teja Ram is the complainant who got the instant case registered against Suraj Bhan. Criminal Appeal No. 126-SB of 1998. 6 PW-12 Teja Ram is the husband of Geeta but PW- 11 and PW-12 did not support the prosecution story. PW-13 Mahesh Kumari is the second prosecutrix, who stated that she was raped by the accused against her wishes. PW-14 Janak Dulari is the sister in law of Mahesh Kumari. She is the eye witness and supported the version of Mahesh Kumari. PW-15 Assistant Sub Inspector Kartar Ram is the main Investigating Officer. PW-16 Dr. Indu Lalit had medico legally examined Mahesh Kumari on 21.8.1993 at 9.45 P.M. After the close of prosecution evidence, the accused was examined under Section 313 Cr.P.C. to explain the allegations, levelled against him. Accused denied all the allegations and claimed to be innocent. The defence version of the accused was as under:- “ This case has been got falsely foisted upon on me in connivance with the police. at the instance of Mr. R.D.Taparia, Shri Vipin Kumar Mehta, Personnel Officer and Shri Dharam Singh, Security Officer of the Management and Hindustan National Glass Company, Bahadurgarh, where I am serving,and where I am holding the President’s Criminal Appeal No. 126-SB of 1998. 7 post of the worker’s union. These three persons were aggrieved of me because I was heading the agitation of the workers to press their demands and the workers had stopped the belt-conveyor, with the result that the factory had come to a stand- still. The management had not only got me falsely implicated in this case, but also pressurized me from other sources to withdraw the strike. I was arrested on 19.8.1993 and was kept illegally in the police custody till 20.8.1993. The counsel for Mahesh Kumari was engaged before this Court as well as before the Hon’ble High Court to oppose my bail application at the instance of the management. Even my resignation was obtained from my job under forced circumstances while I was in the jail. I also contested the M.L.As election in 1982. I remained organizing Secretary INTUC – Station Union. Hari Persad was a personal servant of Mr.R.D.Taparia.He is the father-in-law of Mahesh Kumari.” In defence, accused examined as many as 33 witnesses; DW-1 Dr. Anil Gautam, earlier appeared as PW-1 had medico legally examined Suraj Bhan on 15.10.1993. DW2, V.K.Mehta; DW3-Dharam Singh; DW-4 B.D.Periwal, Chief Accountant; and D.W-5 R.D.Taparia, Criminal Appeal No. 126-SB of 1998. 8 employees of the factory stated that there was a strike of the workers Union in the factory in August, 1993. Suraj Bhan had submitted his resignation and after resignation, Management of the factory had made payment to Suraj Bhan. DW-6 Om Parkash MHC brought Daily Diary Register dated 12.8.1993 to 22.8.1993. DW-7 Chajju Ram was the driver of the factory who stated that no log book of the vehicle was being maintained by him as driver of the factory. DW-8 Ramesh Chander was the Security Supervisor of the factory. He brought records of the vehicles passed through factory gate in the month of June1993 and records of the visitors during the period 1.4.1994 to 1.4.1996. DW-9 Tara Chand stated that Ramesh Kumari is lady of loose character. DW-10 Nagar Mal, employee of the factory stated that inside the factory premises , quarter was allotted to Hari Parsad father-in-law of the second prosecutrix. DW-11 Mahabir was driver in the factory and stated that Mr. Taparia and other Officers were taken to Chandigarh and other places. DW-12 Anurag was the driver in the factory and stated that no log book of the cars of the factory were being maintained. DW-13 Bhim Singh Parbhakar stated that Suraj Criminal Appeal No. 126-SB of 1998. 9 Bhan was the president of the Union. He was also Trade Unionist INTEC. DW-14 Malook Singh produced the interview register of District Jail, Rohtak and proved that Shri V.K.Mehta held interview with accused under trial on 8.10.1993. DW-15 Om Parkash Hooda, Advocate was counsel for the second prosecutrix and stated that bail application was moved against the order of Judicial Magistrate Ist Class dated 21.8.1993. DW-16 Shiv Raj Malik stated that he was engaged as counsel by second prosecutrix to oppose the bail application moved by the accused. DW-17 Rohtash is the Head Constable but his statement is not material. DW-18 Shri Sushil Chand Mohanta, Senior Advocate stated that he had argued bail application on behalf of the accused in the Hon’ble High Court. DW-19 D.N.Sharma was the Personnel Officer of the factory but his statement is not material. DW-20 Arti Rani stated that she had never given any application against the accused to the management of the factory or to the police. DW-21 Nafe Singh was the employee of the factory and stated that he was requested by Mr. Taparia to level Criminal Appeal No. 126-SB of 1998. 10 allegations against Suraj Bhan, so that services of Suraj Bhan are terminated. DW-22 Shri Sanjay Kaushal, Senior Advocate was engaged by second prosecutrix to oppose the bail application moved by Suraj Bhan before Hon’ble High Court. DW-23 Krishan Lal Sharma stated that accused was Union Leader and his relations with the Management were not cordial. DW-24 Girdhar Gopal, is Senior Superintendent of Police, proved letter Ex.D1 dated 20.8.1993. DW-25 Rohan Lal, Assistant proved the letter dated 20.8.1993 written by the factory to Deputy Commissioner, Rohtak. DW-26 Om Pal Singh Saini, Statistical Assistant, Office of Labour Commissioner stated that record summoned was not available in the office. DW-27 Teja Ram appeared as PW, so his statement was not recorded as DW. DW-28 Dr. S.K.Sharma was the Professor and Head of Department of Urology PGI. DW-29 Anil Yadav, D.S.P., Gurgaon stated that complaint was received from R.D.Taparia, Manager of HNG, Bahadurgarh regarding labour unrest in the factory. DW-30 Manjit Singh Assistant Officer of Labour Commissioner proved letter dated 18.8.1993 and letter dated Criminal Appeal No. 126-SB of 1998. 11 20.8.1993 of HNG Ltd. Bahadurgarh and stated that the letter dated 18.8.1993 was ordered to be filed as there was no labour trouble found in the factory. DW-31 Ashok Kumar proved letter Ex.DE qua violent activity of Suraj Bhan and his report Ex.DE/1 and Ex.DE/2. DW-32 Anil Dhawan DSP proved the complaint Ex.DE. DW33-Ishwar Singh stated that accused was falsely implicated in the present case. Mr. S.S.Narual, learned counsel for the appellant- accused argued that appellant-accused was the President of the Union. Management of the factory was not having cordial relations with the Union. As per evidence of the management of the factory, appellant-accused was spear- heading the strike by the workers. Occurrence was on 15.8.1993. Report was lodged by first prosecutrix on 19.8.1993. Mahesh Kumari is the second prosecutrix and as per her version, occurrence was on the night of 15.8.1993 at 4 A.M., but first prosecutrix and second prosecutrix did not lodge report on 16.8.1993 or on the next date. For the first time, report was lodged on 19.8.1993. Appellant-accused was arrested on 20.8.1993. Statement of second prosecutrix was recorded on 21.8.1993. There is a delay in lodging the First Information Report. Story of the prosecution is unnatural. Criminal Appeal No. 126-SB of 1998. 12 Firstly, first prosecutrix did not support the prosecution story. First prosecutrix was not medically examined at any stage. Second prosecutrix got her statement recorded on 21.8.1993. She was married. Sister-in-law and mother-in-law of second prosecutrix were sleeping on different cots near the cot of second prosecutrix. Husband of second prosecutrix was sleeping in the Jhugi. Father-in-law was also sleeping near the Jhugi, but husband or father-in-law were not examined by the prosecution. Second prosecutrix was being raped by the appellant-accused at 4 P.M. when Mother-in-law and sister-in-law were sleeping near the cot of second prosecutrix. Appellant-accused was not caught hold by any one. Allegation of first prosecutrix was also on the same line that she was sleeping on the roof of her house with her husband and children. Accused came and had placed his one hand on her breast, her mouth was gagged and with the second hand blouse was torn. There was a raula, then accused had fled away from the spot by jumping from the roof. In case, version of the prosecution was genuine, then first prosecutrix should have supported the prosecution story. Jhugi of second prosecutrix was on the land of factory. Number of employees were expected to be present in the factory premises. When appellant-accused had failed to rape the first prosecutrix and when there was a raula, then he had fled away from the spot, then story becomes unnatural that appellant-accused Criminal Appeal No. 126-SB of 1998. 13 had gone to the Jhugi of second prosecutrix and in the same fashion had raped the second prosecutrix. Particularly, when husband, father-in-law, sister-in-law and mother-in-law were sleeping near the cot of second prosecutrix. The occurrence was at 4 A.M. in the month of August, 1993. Learned counsel for the appellant-accused argued that appellant-accused was arrested on 20.8.1993, then statement of the second prosecutrix was recorded on 21.8.1983. Both the prosecutrix's were married and major. If it is presumed that offence was committed by the appellant- accused then failure to lodge report immediately after the occurrence shows that prosecutrix's were the consenting parties. There was a strike in the factory in the month of July, 1993. Letters were written to different authorities with this allegation that appellant-accused is responsible for the strike. Father in law of second prosecutrix was employee in the factory. Government quarter was also allotted to father- in-law and husband of second prosecutrix being employee. Possibility of false implication at the instance of management of the factory cannot be ruled out. That is why, first prosecutrix and her husband did not support the prosecution story. Services of Teja Ram husband of first prosecutrix were terminated by the management after he appeared in Court and failed to support the prosecution case. Sealed parcels were deposited in the laboratory but MHC was not examined Criminal Appeal No. 126-SB of 1998. 14 who had handed over the sealed parcel to the employee for deposit in the laboratory. Accused approached the Hon’ble High Court for bail. Senior Lawyers were engaged by the second prosecutrix, who was residing in the Jhugi constructed in the factory premises. Officers of the factory visited Chandigarh to pursue the bail application. Intentionally, log books maintained by the driver were not produced. Number of employees of the factory appeared in defence to state that Officers of the factory visited Chandigarh to pursue the litigation on behalf of the prosecutrix. Officers of the factory were inimical towards the appellant-accused. Evidence on the file was not scrutinized with great care and caution. Two separate incidents were tried jointly. Defence counsel cited State of Punjab and another Vs. Rajesh Syal, 2002 (4) R.C.R.(Criminal), 480. Mr. Kartar Singh, Assistant Advocate General, Haryana argued that no-doubt, appellant-accused was employee of the factory, but officers of the factory were not inimical towards the appellant-accused. When there was a violent activity by the union, then report was lodged with the police. Prosecutrix had no enmity with the appellant-accused. First prosecutrix was won over by the appellant-accused. Due to this reason, she failed to support the prosecution story. Second prosecutrix was pregnant, but she was raped against her wish. Appellant-accused had no license to rape Criminal Appeal No. 126-SB of 1998. 15 the prosecutrix against her wish, if as per DW9, Tara Chand, second prosecutrix was of loose character, he declined sometimes to save the reputation of the prosecutrix and the family members, report is not lodged immediately. There are number of factors compelling the prosecutrix not to lodge report immediately, when no action by the Panchayat and no solution when prosecutrix had a talk with the accused, then report is lodged. Evidence on the file was rightly scrutinized. No ground to set aside the impugned judgment. First contention of the defence counsel was that there is a delay in lodging the First Information Report and delay was not explained. Admittedly, occurrence had taken place on the intervening night of 15/16.8.1993 at about 2/3/4 A.M. On 15.8.1993, first prosecutrix alongwith her husband and children was sleeping on the roof of her house. House of the appellant-accused was adjoining to the house of the first prosecutrix with one roof. At about 2/3 A.M, appellant- accused had gone to the roof of the first prosecutrix and with one hand, mouth of the first prosecutrix was gagged, with the second hand, blouse of the first prosecutrix was torn. With great difficulty, first prosecutrix had removed the hand of the appellant-accused then raised raula. Husband of the prosecutrix woke up, accused had fled away from the spot after jumping from the roof. Very strange that when wife with husband and children was sleeping on the roof, Criminal Appeal No. 126-SB of 1998. 16 then attempt was made to rape the first prosecutrix. Husband of the first prosecutrix was also sleeping on the roof near the prosecutrix, but appellant-accused had fled away from the spot after jumping from the roof. In case, allegation of first prosecutrix was correct one, then why report was not lodged immediately. For the first time, first prosecutrix had lodged report with the police on 19.8.1993 Ex.PM is the statement of first prosecutrix recorded by Assistant Sub Inspector Kartar Ram. Appellant-accused was arrested on 20.8.1983, then second prosecutrix came forward. The statement of second prosecutrix was recorded on 21.8.1993. Allegation of the second prosecutrix was that she alongwith her sister-in-law, mother-in-law and father-in-law was sleeping outside her Jhugi, second prosecutrix, her sister-in- law, mother-in-law on different cots were sleeping outside the jhugi. Husband was sleeping inside the jhugi as he was sick. Father-in-law was sleeping at some distance. At 4 A.M. appellant-accused came and with one hand, mouth of the prosecutrix was gagged, with the second hand, appellant- accused had over turned the peticot. String of the Pyjama was opened, then appellant-accused started raping the second prosecutrix. Second prosecutrix with great difficulty had removed the hand of the appellant-accused from her mouth. Then raula was raised. Sister-in-law, mother-in-law woke up. Appellant-accused had fled away from the spot. As per Criminal Appeal No. 126-SB of 1998. 17 second prosecutrix, occurrence was on the same day i.e. 15.8.1993 at 4 A.M, first occurrence was at about 2/3 A.M. If both the occurrences were genuine, then question is as to why report was not lodged immediately. I agree that when offence under Sections 376 and 354 I.P.C., then report is not lodged immediately to save the reputation of the prosecutrix and the family. There are other factors which are taken into consideration before lodging the report. Delay itself is not sufficient to ignore the story provided the story is natural one. In case of second prosecutrix, occurrence was at 4 A.M. On 15.8.1993, but statement of the second prosecutrix was recorded on 21.8.1993 after arrest of the accused on 20.8.1993. First prosecutrix appeared as DW11, but did not support the prosecution story. Husband of first prosecutrix, namely Teja Ram appeared as PW12, but did not support the prosecution story. Second prosecutrix appeared as PW-13 and her sister-in-law Janak Dulari (PW-14). But father-in-law or husband of second prosecutrix failed to appear to support the prosecution story. DW2 V.K.Mehta, was employee of the factory and stated that in August, 1994 as well as in August, 1993,conveyor-belt in the factory for loading and unloading of goods was stopped by the workers. Suraj Bhan was the President of the workers’ union. Appellant-accused was arrested. Appellant-accused, while in jail had sent a letter to Mr. R.D.Taparia, with the request that somebody be sent to Criminal Appeal No. 126-SB of 1998. 18 jail to see the appellant-accused. He alongwith Mr. R.D.Taparia had contacted the appellant-accused in jail. Appellant-accused was the employee of the factory. Resignation of the appellant-accused was received in the factory through Superintendent of Jail. DW-3 Darshan Singh, examination-in-chief, stated that appellant-accused was the President of Worker Union. Hari Parsad is the father-in-law of the second prosecutrix. She was residing in a Jhugi with her family. Jhugi was in the complex of factory. Hari Parsad and his family was allotted a quarter in the area of factory. Opportunity was given to cross examine the witness, but witness was not cross-examined. DW-2 V.K.Mehta was also not cross examined by the learned Public Prosecutor for the State. PW-4 Shri D.D.Periwal, Chief Accountant of the factory in examination in chief stated that Suraj Bhan was the President of the Workers Union of the factory. Resignation of Suraj Bhan was received through Jail Superintendent on 21.10.1993. As per settlement, payment was made to the appellant-accused. PW-5 Mr. R.D.Taparia in examination in chief stated that Suraj Bhan was the employee of the factory and was President of the Worker Union. Conveyor-belt was stopped on 18.8.1993. He had filed civil suit against two unions and their office bearers including Suraj Bhan to restrain them from carrying on illegal activities in the factory. Ex.DC is the copy of the Criminal Appeal No. 126-SB of 1998. 19 plaint. Complaints were sent against Suraj Bhan qua disturbances created in the factory. Ex.DD, Ex.DF and Ex.DG are the copies of the letters. On cross examination, he admitted that Suraj Bhan had submitted resignation through jail. Dues were paid to Suraj Bhan through cheque. So, from the statement of above said DWs, appellant-accused was the President of the union and conveyor-belt of the factory was stopped. Management of the factory had sent complaints to different authorities against the appellant-accused. Management of the factory had the motive to teach a lesson to the appellant-accused. Then two ladies were arranged. Appellant-accused was implicated in the present case. No explanation why delay if appellant-accused had attempted to rape first prosecutrix at 2/3 A.M. and raped the second prosecutrix at 4 A.M. In para No.16 of the impugned judgment trial Court observed that on the complaint of first