Crl. Appeal No. 662-SB of 2003 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH * * * * * Crl. Appeal No. 662-SB of 2003 Date of decision : April , 2008 * * * * * Kashmir Singh ............Appellant Versus State of Punjab ...........Respondent * * * * * CORAM: HON'BLE MR. JUSTICE A.N JINDAL * * * * * Present: Mr. Dhruv Dayal, Advocate for the appellant. Mr. C.S Brar, DAG, Punjab. * * * * * A.N JINDAL, J When the sex mania goes to the head of a person, it breaks all the boundaries as to status, relationship, age or opportunity. He looses all likes and dislikes and fulfills his that sole object. The same thing happened with Kashmir Singh, 21 years old young man, resident of Village Dhabi Gujran, Tehsil Samana. The prosecutrix Rekha, aged about two and a half years fell prey in his hands and thereby he damaged her mortal frame. The accused- appellant (hereinafter referred to as `the accused') was prosecuted for the aforesaid crime, consequently, he earned conviction and was Crl. Appeal No. 662-SB of 2003 2 sentenced to undergo RI for 10 years and to pay fine of Rs.5000/- under Section 366-A of the IPC and similar sentence under Section 376-G IPC. The woeful story as disclosed by Ginder Ram- (hereinafter, referred to as `the Complainant'), which became the foundation of prosecution against the accused, is that Nek Ram, the brother of the complainant was away for the last five-six days, whereas, Ginder Ram was in his house. On 21.12.1999 at about 8:00/8:30 P.M, Chhindo Devi, wife of Nek Ram being worried about her daughter, Rekha, aged about two and a half years called the complainant and told him that she has not been traced inspite of the search. Consequently, he and Chhindo Devi along with his neighbour Piara Ram set for searching Rekha. When they reached near the embankment of the drain near their house, they heard the cries of Rekha. Consequently, they saw that the accused-Kashmir Singh was committing rape on her, whereas two other persons namely, Hardev Singh alias Billa and Janti were standing nearby. On raising alarm, the accused stood up and on seeing them he fled away along with two other persons. Rekha had become unconscious. They shifted her to the Civil Hospital at Shatrana for treatment, but she was not treated there. Thereafter, she was brought to Civil Hospital, Samana in the morning of 22.12.1999, where the Medical Officer told them that first they should get the FIR lodged, only thereafter, she could be medico legally examined. As such, after leaving Chhindo along with the prosecutrix, Ginder Ram, complainant went to the Police Station and got recorded the statement, EX. PK (FIR). Pursuant to which, ASI, Hari Chand visited Crl. Appeal No. 662-SB of 2003 3 the Civil Hospital, Samana and moved an application Ex. PB/2 for conducting the medical examination of Rekha. Parcels of Swab and slides were handed over to the ASI, Hari Chand by the Doctors with seals intact vide memo Ex.PL and statements of the witnesses were recorded. Later on she was shifted to Rajindera Hospital, Patiala for treatment. In the meantime, SHO, Police Station, Patran met ASI, Hari Chand in the Hospital, then he along with the SHO reached the spot, prepared a rough site plan Ex.PO of the place of occurrence. The accused was arrested on 24.12.1999. On 25.12.1999, the accused was interrogated in the presence of Munshi Ram, Sarpanch of the Village Matuli and the accused in persuance of a disclosure statement got recovered a black coloured pant stained with human blood which he had worn on the day of the occurrence. The Investigating Officer took the same into possession vide recovery memo Ex PQ. On the completion of the investigation, report under Section 173, Cr.P.C was presented against him. On commitment, the accused was charged under Section 376 IPC to which he pleaded not guilty claimed trial. In order to substantiate the charges, the prosecution examined Dr. Alkesh Arora, PW-1, Dr. Satish Arora, PW-2, Janak Arora PW-3, Constable Bant Singh PW-4 who deposed on affidavit Ex.PJ, Ginder Ram PW- 5, Chhindo Devi, PW-6 (mother of the victim), Ajaib Singh Patwari PW-7, Surinder Pal HC PW-8 who also deposed on sworn affidavit, Ex.PN and PW-9 Hari Chand, who is the Investigating Officer. After tendering in evidence, the report of the Chemical Examiner Ex.PS and the report furnished by Forensic Science Crl. Appeal No. 662-SB of 2003 4 Laboratory Ex.PT, the prosecution closed its case. While examining under Section 313 Cr.P.C, the accused denied all the allegations and pleaded his false implication in the case. The trial ended in his conviction. Hence this appeal. Arguments heard. Record perused. The prime contention put forward by the appellant is that there is an inordinate delay in lodging the FIR. As per prosecution, occurrence took place on 21.12.1999 at about 8:00/8:30 P.M. But she was medico legally examined at Civil Hospital, Samana on 22.12.1999 at 4:10 P.M and the FIR was registered against accused on 22.12.1999 at 2:00 P.M in Police Station, Patran. No explanation is coming forth for lodging such a delayed FIR. It is also in evidence that first of all, the complainant went to Civil Hospital, Shatrana and thereafter they went to Civil Hospital, Samana for treatment that shows that the Doctors could not oblige him and ultimately he could succeed in manipulating and getting report favourable to him from Civil Hospital, Samana. Having given due consideration to the aforesaid contention, while coming to the witness box, Chhindo, mother of victim explained the delay in the manner that after the occurrence they went to their house. They convened a Panchayat and the injury was shown to all the Members of the Panchayat including Lambardar and Chowkidar. A resolution was also passed against the accused in order to show that the complainant as well as Chhindo Devi mother of the victim were hesitant to go to the police. They first took the matter to the Panchayat and thereafter on persuasion of the Crl. Appeal No. 662-SB of 2003 5 Panchayat, they went to the Hospital and got her treated. First of all the victim was admitted in Civil Hospital at Samana. Thereafter, keeping in view her critical condition, she was shifted to Rajindra Hospital, Patiala. Thus, the explanation given by Chhindo PW-6, is quite plausible. In any case, on seeing the bizarre incident happening with their minor daugther, they must have felt stunned. The night was falling ahead when they came back from Shatrana as they could not be attended by the Doctors there and in the morning, they in order to, save their repute tried to settle the matter in the Panchayat. Under these circumstances, the prosecution version could not be discarded only on the plea of one day's delay in lodging the FIR. The Apex Court also repeatedly observed that in cases of rape, mere one day's delay in lodging the FIR is hardly sufficient to discard the prosecution version as, on one hand, there is strong sense of anguish and revenge among the family members of the victim and they are anxious to punish the accused of such a heinous crime. On the other hand, the honour of the family is at stake. It is these considerations, that may consequently lead to some delay in lodging the FIR. This fact cannot be denied that whatever may be the ultimate result of the litigation, the prosecutrix and her family had to face great agony and humiliation in the society. While deciding this case, normal human conduct and behaviour has to be taken into consideration but the delay part which has been duly explained by the prosecution may not be sufficient but should be ignored. The Apex Court in case of State of Himachal Pradesh vs. Shree Kant Shekari, 2004 (4) RCR 345 observed as under: Crl. Appeal No. 662-SB of 2003 6 19. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so, the mere delay in lodging of first information report does not in any way render prosecution version brittle. These aspects were highlighted in Tulshidas Kanolkar v. State of Goa, 2003(4) RCR (Crl.) 964 (SC): 2003(8) SCC 590. Crl. Appeal No. 662-SB of 2003 7 In the instant case, the victim was two and a half years old. There was no previous enmity between the parties so as to drag the accused in such a case involving heinous crime. Chhindo, mother of the victim has offered explanation for lodging the delayed FIR which appears to be satisfactory and could not be doubted. There is sufficient medical evidence on the record to prove offence of rape against the accused. Thus, mere delay in lodging the FIR is hardly sufficient to discard the testimony of two witnesses namely, Ginder Ram PW-5 and Chhindo Devi PW-6 corroborated by medical evidence coming from the mouth of two Doctors i.e PW-1, Alkesh Arora and PW-3, Dr. Janak Arora and also of the testimony of Dr. Satish Arora who examined the accused and his accomplices. The counsel for the appellant has assailed the medical evidence by urging that Dr. Satish Arora was arrested in a corruption case whereas Dr. Alkesh Arora did not give the history of the incident and the facts leading to the injuries suffered by the prosecutrix. Notwithstanding the fact that Dr. Satish Arora has admitted that he was challaned in a corruption case but he has voluntarily stated that he was later on acquitted. Dr. Satish Arora did not examine the victim but he examined the accused as also his accomplice, Hardev Singh and Janti. He has stated nothing except that they were fit to commit intercourse. His testimony could not be discarded merely for the reason that once he was involved in a case in which he was acquitted, later on, no finger could be raised qua the testimony of Dr. Alkesh Arora except that he did not record the history of the incident or the circumstances leading to the injuries suffered by the victim. Admittedly, Dr. Alkesh Arora had medico legally Crl. Appeal No. 662-SB of 2003 8 examined the victim for the first time, and did not mention any history of the case, yet the same could not be discarded merely for his negligence qua this aspect. But in the light of the fact that he gave a definite opinion that the victim was subjected to forcible intercourse and was raped, his testimony requires due consideration. She has described the injuries on her person in the following manner: 1. There was multiple abrasion on the nose and on the right buttock vulba swollen and odemotous. Hymen was ruptured. Clotted blood was present over the edges. 2. There was a medion perineal tear (3rd degree) involving the posterior fourchette. 3. Posterior vaginal wall, perineum anterior wall of the anal canal and anal sphincter (vaginal passage and anal canal converted into one passage). The upper limit of the tear could not be inspected because of pain and tenderness. Vagina was soiled with foecal matter. She had passed urine. Her mother has washed her private parts after the incident. She was not wearing any under garments, slides and swabs from vaginal secretion were taken and sealed. Such injuries cannot be said to be fabricated. Her testimony stands corroborated by Dr. Janak Arora PW-3 MS (Gen Surgery) to whom she was referred for colostomy, he gave pre- operative findings to the effect that it was a case of badly soiled Crl. Appeal No. 662-SB of 2003 9 external genitalia with stool. There is a tear present in posterior vaginal wall and anterior rectal wall. Upper limit of the tear could not be visualized. Puse was present and was flowing out. Vagina was soiled with stool. Provisional diagnosis 3rd degree perineal tear. Plan was diversion colostomy to divert the stool from the parneal wound. The medical evidence stands corroborated by the ocular version coming from the mouth of PW-5 Ginder Ram and Chhindo Devi PW-6. They are quite consistent qua the time, place and the manner in which the heinous crime was committed. They had no enmity, as alleged by the accused which may have been established on the record. They being the mother and uncle of the victim would be the last persons to throw the honour of their family in the dust of the streets. Minor discrepancies in their statements are hardly sufficient to discard their testimonies. Victim being too young to make a statement was not supposed to have been examined by the prosecution. Munshi Ram, in whose presence pant was recovered , has also been examined to prove that blood was seen on the pant so recovered from the accused. The other argument that prosecution has shifted the place of occurrence also, is without any merit. The site plan shows that the occurrence had taken place in the house of Chhindo. Point `A' has been shown to be the place where the victim was raped. The point B has not been shown inside the house of Chhindo Devi. Moreover, Hari Chand who prepared the said site plan has clarified the fact that occurrence took place outside the house of the victim. The accused had no plausible defence to make. No other arguments has been Crl. Appeal No. 662-SB of 2003 10 advanced. For the aforesaid reasons, I do not find any merit in the appeal and the same is hereby dismissed. Copy of the judgement be sent to CJM, Patiala for compliance. April , 2008 ( A.N JINDAL ) ritu JUDGE