Crl.Appeal No. 1249-SB of 2002 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Date of decision:28.4.2011 (I) Crl.Appeal No.1249-SB of 2002 Gurdip Singh and another ... Appellants versus State of Punjab ... Respondent (II) Crl.Appeal No.733-SB of 2003 Manjit Kaur ... Appellant versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Ashok Saini, Advocate, with Ms.Suman Seth, Advocate, for the appellants in Crl.appeal No.1249-SB of 2002 None for the appellant in Crl.Appeal No.733-SB of 2003. Mr.P.S.Sidhu, Addl.AG, Punjab. ... JORA SINGH, J. Crl.Appeal No.1249-SB of 2002 was preferred by Gurdip Singh and Kanwaljit Singh, whereas Crl.Appeal No.733SB of 2003 was preferred by Manjit Kaur to impugn the judgment of conviction and order of sentence dated 26.7.2002 rendered by Additional Sessions Judge (Ad-hoc), Amritsar, in Sessions Case No.125 dated 22.1.2002, arising out of FIR No. 35 dated 13.3.1997 under Sections 376/506/120-B IPC, PS Sultanwind, Amritsar. By the said judgment, they were convicted under Sections 376/120-B IPC. All the appellants were sentenced to undergo RI for 7 years and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for 1 month each under Section 120-B read with Section 376 IPC. Gurdip Singh and Kanwaljit Singh were further sentenced to undergo RI for 7 years and to pay a fine of Rs.2,000/-, in default of payment of fine, Crl.Appeal No. 1249-SB of 2002 2 to further undergo RI for 2 months each under Section 376 IPC. All the sentences were ordered to run concurrently. Prosecution story, in brief, is that prosecutrix is the daughter of Mahan Singh, complainant, and on 10.3.1997 at about 3.30 PM, she was present in her house. She was preparing dung cakes. Her mother was suffering from some disease and was lying on a cot. At that time, Paramjit Kaur, her sister-in-law, was also present in the house. Manjit Kaur came to the house of prosecutrix and requested to accompany her to the fields. Prosecutrix refused to accompany her but she was caught hold from her arm by Manjit Kaur and took her to the fields of Buta Singh near the groove of beri trees. Gurdip Singh and Kanwaljit Singh were already present there. Kanwaljit Singh had caught hold the prosecutrix and fell her on the ground. Prosecutrix tried to raise hue and cry. Then Gurdip Singh had gagged her mouth. Manjit Kaur present on the spot told the prosecutrix that she should allow the accused to do what they like and for that purpose, she was brought. By saying so, Manjit Kaur had left the place of occurrence. After that, string of salwar of the prosecutrix was broken. Gurdip Singh and Kanwaljit Singh had raped the prosecutrix against her wish turn by turn. When Gurdip Singh had raped the prosecutrix, then Kanwaljit Singh had caught hold her from her arm and when Kanwaljit Singh had raped the prosecutrix, then Gurdip Singh had caught hold her from her arm and gagged her mouth. Prosecutrix tried to get herself released from the accused and also tried to raise hue and cry but she could not succeed. When Gurdip Singh had raped the prosecutrix second time, then Kanwaljit Singh had caught hold the prosecutrix from her arm, but she raised hue and cry by removing hand of the accused from her mouth. Paramjit Kaur, sister-in-law Crl.Appeal No. 1249-SB of 2002 3 of the prosecutrix, came at the spot. On seeing Paramjit Kaur, both the accused had fled away from the spot. Salwar and shirt of the prosecutrix got stained with blood. Prosecutrix was brought to her house by Paramjit Kaur. Story was brought to the notice of mother of the prosecutrix but father of the prosecutrix was not at the house on that day because as a Driver, he had gone with Kirpal Singh, Ex.MP, Amritsar. On 13.3.1997, father of the prosecutrix came back. Then story was brought to his notice. Complainant along with prosecutrix and some respectables had gone to the police to lodge report. Complaint (Ex.PA) was presented before the SHO while present near the turning of Village Rampur. After making endorsement, complaint was sent to the concerned police station, on the basis of which, formal FIR (Ex.PA/2) was recorded. IO had gone to Village Jhite Kalan, where Paramjit Kaur had produced salwar and shirt of the prosecutrix stained with blood. Salwar and shirt were taken into police possession vide separate memo attested by the witnesses after the same were made into a sealed parcel sealed with the seal bearing impression `JS'. Place of occurrence was inspected. Rough site plan with correct marginal notes was prepared. Straws of grass and wheat crop stained with blood were collected from the spot and made into sealed parcel sealed with seal bearing impression `JS'. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. Prosecutrix was produced before the doctor and was medico legally examined. Manjit Kaur was arrested on 14.3.1997. Gurdit Singh and Kanwaljit Singh were also arrested and produced before the doctor for medico legal examination. After completion of investigation, challan was presented in Court. Crl.Appeal No. 1249-SB of 2002 4 Accused were charged under Sections 376/120-B/506 IPC, to which they pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW1 Man Singh is the complainant. PW2 is the prosecutrix. She has supported the prosecution story by saying that Manjit Kaur came to her house and took her away to the fields of Buta Singh. Gurdip Singh and Kanwaljit Singh were found present there and she was raped against her wish turn by turn by the accused. PW3 Paramjit Kaur is the sister-in-law of the prosecutrix and stated that in her presence, Manjit Kaur came to her house and prosecutrix was taken away by her. After some time, she had gone to the place of occurrence. Gurdip Singh and Kanwaljit Singh were found present there and on seeing her, they had fled away from the spot. Prosecutrix was brought to her house. Story was brought to the notice of her mother-in-law but on that day, her father-in-law was not in the house . When her father-in- law came, then story was brought to his notice. After that, report was lodged. PW4 Dr.Manjit Singh on 14.3.1997 had medico legally examined the prosecutrix, aged about 14 years, and observed as under:- “1. Her secondary sex characters were developed. Axillary hair were present. Pubic hair were present. Breast was well developed. 2. There was no injury or struggle mark present on the body. 3. Two vaginal swabs were taken from lower vagina mark Crl.Appeal No. 1249-SB of 2002 5 as 1 and from upper vagina mark as 2 and sent for chemical examination. I asked for x-ray for age confirmation. The radiological age of patient according to the Radiologist is 17 plus/minus. 4. The report for vaginal swabs came to be negative for confirmation of spermatozoa.” PW 5 Rishi Ram, Draftsman, stated that scaled site plan (Ex.PH) was prepared by him. PW6 SI Kashmir Singh stated that report under Section 173 Cr.P.C. was prepared by him after completion of investigation. PW7 MHC Harjit Singh and PW8 Constable Satnam Singh tendered their affidavits, Ex.PW7/A and Ex.PW8/A, respectively. PW9 Rajesh Kumar, Ahlmed, stated that he was Reader to the Court of JMIC, Amritsar. Statement of prosecutrix was recorded under Section 164 Cr.P.C. by the then JMIC, Amritsar, Shri Sukhjinder Singh. Statement is Ex.PW9/A. He identified the signatures of Sukhjinder Singh, JMIC, Amritsar. PW10 Dalwinder Kaur failed to support the prosecution story and was declared hostile. PW11 Inspector Suba Singh (Retd.) is the Investigating Officer. PW12 Kans Kaur is the mother of the prosecutrix and stated that Manjit Kaur came to her house. Her daughter was taken away by Manjit Kaur by saying that she was to answer the call of nature. Later on, she came to know that her daughter was raped by the accused present in the Court. On the day of occurrence, her husband was away to Chandigarh. When he came back, then matter was brought to his notice. Crl.Appeal No. 1249-SB of 2002 6 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. Opportunity was given to lead evidence but no defence was led. 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 defnece counsel for the appellants, learned State counsel and have gone through the evidence on the file. Learned defence counsel for the appellants, argued that at the time of alleged occurrence, appellants were not known to the prosecutrix. Appellants were identified by the prosecutrix when appeared in Court. Test identification parade was not arranged. Identity of the appellant is doubtful. Prosecutrix while appearing in Court, then stated that names of the appellants were brought to her notice by her brother Guggu but he was not examined for the reasons best known to the prosecution, Occurrence is dated 10.3.1997, whereas report was lodged on 13.3.1997. There is a delay of 3 days. No explanation regarding delay. Medical evidence is contrary to the ocular evidence. According to the story, prosecutrix was raped by the appellant but no injury was noticed on her person. Occurrence was in the fields of Buta Singh. As per report of Chemical Examiner, there was no rape. Statement of prosecutrix is sufficient to convict the appellants but statement should inspire confidence. Prosecutrix stated that before the present occurrence, appellants were not known to her. Appellants were not shown to her by the police. Before the present occurrence, she had no sexual intercourse with any one. Appellants gave teeth bites on her cheeks Crl.Appeal No. 1249-SB of 2002 7 and breast. There was a bleeding by teeth bites from the cheeks and breast. When she had resisted, then gave scratches on the body of the appellants. There were bruises on her elbows and shoulder, whereas doctor stated that there was no injury or struggle mark on the person of the prosecutrix. Prosecutrix was habitual to sexual intercourse. Doctor categorically stated that there was no sexual intercourse with the prosecutrix. When the appellants were not known to the prosecutrix and no eye witness, then delay of 3 days is fatal. If the prosecutrix was raped against her wish, then why no external injury or struggle mark. If for the first time, appellants had raped the prosecutrix, then report of the doctor is not correct one that she was habitual to sexual intercourse. In fact, prosecutrix seems to have affair with the appellants. She was the consenting party. Without independent corroboration, statement of the prosecutrix alone is not sufficient for conviction of the appellants. Learned State counsel argued that on 10.3.1997, prosecutrix was present in her house. Manjit Kaur had gone to the house of the prosecutrix with a request to accompany her to answer the call of nature. In the presence of Paramjit Kaur and Kans Kaur, prosecutrix had gone with Manjit Kaur. In the fields of Buta Singh, prosecutrix was raped by the appellants against her wish turn by turn. At the time of occurrence, appellants were not known to the prosecutrix but appellants were from the village of prosecutrix. Names of appellants were brought to the notice of the prosecutrix by her brother. After the occurrence, matter was brought to the notice of Kans Kaur but complainant was not present in his Village. He was away to Chandigarh. On 13.3.1997, Mahan Singh came back to his village, then story was brought to his notice. After that, Mahan Singh Crl.Appeal No. 1249-SB of 2002 8 reported the matter to the police. Before the present occurrence, appellants were not inimical towards the prosecutrix. Without enmity, complainant had no reason to name the appellants, particularly when reputation of his unmarried daughter was at stake. His unmarried daughter was raped in the fields of Buta Singh but there was grass. Prosecutrix was about 14 years' old. She was not in a position to rescue herself from the clutches of the appellants. When one of the appellant had raped the prosecutrix, then second appellant had gagged her mouth. Arms of the prosecutrix were caught hold by one of the appellant when second was committing rape. So, this was the reason as to why no external injury was noticed on the person of the prosecutrix. Prosecutrix was medico legally examined on 14.3.1997. According to report (Ex.PE), possibility of rape cannot be ruled out. But while appearing in Court, then doctor stated that as per report of Chemical Examiner (Ex.PG), there was no rape because no spermatozoa was noticed. Prosecutrix while appearing in Court, then stated that she was 16-17 years' old. Prosecutrix appeared in Court on 24.1.1998. Occurrence was on 10.3.1997. That means, at the time of occurrence, prosecutrix was less than 16 years of age. At the time of medico legal examination, prosecutrix disclosed her age as 14 years. According to ossification test, prosecutrix was 17 years' old. Age is variable 3 years on either side. Suggestion was given to the prosecutrix that name of her sister is Daljit Kaur, whereas her name is Parveen Kaur but no certificate in defence was produced to show that Parveen Kaur or Daljit Kaur is the sister of the prosecutrix. Suppose, Parveen Kaur or Daljit Kaur is the sister of the prosecutrix, then age of the prosecutrix cannot be declared more than 16 years. Prosecutrix when appeared in Court, then stated that earlier to the occurrence, she had no Crl.Appeal No. 1249-SB of 2002 9 sexual intercourse with anybody but this line alone is not sufficient to ignore the prosecution story because prosecutrix was illiterate and to save her reputation stated in Court that earlier to the occurrence, she had no sexual intercourse. If before the present occurrence, prosecutrix was habitual to sexual intercourse, then appellants had no right to rape the prosecutrix against her wish. Prosecutrix was not more than 16 years' old. So, no question of consent. No question was put to the prosecutrix that she was having affair with the appellants. Appellants when examined under Section 313 Cr.P.C., then did not state a word that they had relation with the prosecutrix and prosecutrix was the consenting party. No love letter, greeting card etc. on the file to show that prosecutrix was having affair with the appellants. Paramjit Kaur is the sister-in-law of the prosecutrix and in her presence, prosecutrix was taken away by Manjit Kaur. When prosecutrix failed to return, then Paramjit Kaur had gone to trace the prosecutrix. Appellants were seen present with the prosecutrix and on seeing Paramjit Kaur, appellants had fled away from the spot. Salwar and shirt of the prosecutrix were found to be stained with blood. Clothes worn by the prosecutrix at the time of occurrence were produced by Paramjit Kaur before the police. Earlier to the occurrence, appellants were not known to the prosecutrix but appellants were from the village of prosecutrix. Appellants remained with prosecutrix for sufficient time. So, it was not difficult for the prosecutrix to identify the appellants when appeared in Court at the time of evidence. If appellants were sure that crime was not committed by them, then they could easily move an application for arranging test identification parade. No defence as to why appellants were named without enmity. If complainant party was to implicate the Crl.Appeal No. 1249-SB of 2002 10 appellants, then complainant could easily level allegation against the appellants that they had misbehaved with Paramjit Kaur or Kans Kaur by using derogatory language. There was no idea to level allegation against the appellants that his unmarried daughter was raped by them against her wish. By levelling false allegation against the appellants, particularly when reputation of the prosecutrix was involved, complainant was not going to be benefited. No suggestion to the witnesses that to extract payment from the appellants, they were named. First submission of learned defence counsel for the appellants was that appellants were not known to the prosecutrix. Test identification parade was not arranged. Name of the appellants were disclosed to the prosecutrix by her brother but he was not examined. Prosecutrix admitted that she did not disclose about the names of the appellants but names of the appellants were found mentioned in the statement of the prosecutrix. So, identity of the appellants is doubtful. 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. Occurrence was at about 3.00 PM on 10.3.1997 in the fields of Buta Singh. Appellants are from the village of the prosecutrix, although names of the appellants were not known to the prosecutrix. Prosecutrix was raped by the appellants turn by turn. One of the appellant had raped the prosecutrix twice. That means, for sufficient time, appellants remained with the prosecutrix. Prosecutrix in Court stated that appellants were not known to her. Names of the appellants were not disclosed to her by the police. Appellants were not shown to her by the police and there was no test identification parade but prosecutrix stated that names of the appellants were disclosed to her by her brother. On 10.3.1997 Crl.Appeal No. 1249-SB of 2002 11 after the occurrence, prosecutrix was brought to her house by her sister-in- laws. At that time, father of the prosecutrix was away to Chandigarh because he was driver of Kirpal Singh. Complainant came back on 13.3.1997. Mother of the prosecutrix was not feeling well. She was on bed. After the occurrence, story was brought to the notice of Kans Kaur, mother of the prosecutrix, but only the ladies were in the house. When Mahan Singh came back on 13.3.1997, then story was brought to his notice. After that, Mahan Singh reported the matter to the police. Statement of the prosecutrix was also recorded on 13.3.1997. At that time, she had disclosed about the names of the appellants. Prosecutrix appeared in Court, then stated that appellants present in Court had raped her against her wish turn by turn. As discussed earlier, appellants were from the village of the prosecutrix. Nothing on the file that prosecutrix had not seen the appellants in the village earlier to the occurrence. When appellants remained with the prosecutrix for sufficient time, then there was no difficulty with the prosecutrix to identify the appellants at the time of evidence in Court. If appellants were sure that they had not committed the crime, then they could surrender before the Court with muffled faces with a request to arrange test identification parade but no request. When appellants were produced in Court, then they could request the Court to arrange test identification parade. Earlier to the occurrence, appellants were not inimical towards the complainant party. Complainant was a driver and belongs to poor family, he is Mazbi Sikh by caste, whereas appellants were financially sound. One of the appellant was in Police Department. Without previous enmity, there was no reason to leave the real culprits and name the appellants. No dispute about the identity of the appellants when prosecutrix stated that the Crl.Appeal No. 1249-SB of 2002 12 appellants present in Court had raped her against her wish turn by turn. Paramjit Kaur, sister-in-law of the prosecutrix, appeared in Court and stated that when prosecutrix failed to return, then she had gone in search of the prosecutrix. Appellants were found present at the spot. At that time, prosecutrix was there and on seeing her, appellants had fled away from the spot. Salwar and shirt of the prosecutrix were found to be stained with blood. Same were produced before the IO. Paramjit Kaur also stated that appellants are the same persons, who were seen at the place of occurrence with the prosecutrix and on seeing her, had fled away from the spot. After that, prosecutrix was brought to her house and matter was brought to the notice of Kans Kaur, mother of the prosecutrix. Next submission of learned defence counsel for the appellants was that medical evidence is contrary to the ocular evidence. Statement of the prosecutrix alone without independent corroboration is not sufficient for convicting the appellants. But submission of learned defence counsel for the appellants is without any force. Prosecutrix while appearing in Court, then stated that her salwar and shirt were removed by the appellants. Then she was raped against her wish. Appellants gave teeth bites on her cheeks and breast. Dr. Manjit Singh stated that prosecutrix, aged about 14 years' old, was medico legally examined on 14.3.1997. No external injury or struggle mark was noticed on the person of prosecutrix. Prosecutrix was habitual to sexual intercourse and as per report of Chemical Examiner (Ex.PG), no spermatozoa was found present. So, prosecutrix was not raped. But Dr. Manjit Singh, as per opinion (Ex.PF) reported that possibility of rape cannot be ruled out. In Court, doctor stated that as per report of laboratory (Ex.PG), there was no rape. If there was no rape, then why Crl.Appeal No. 1249-SB of 2002 13 doctor reported on 27.5.1997 that possibility of rape cannot be ruled out as per his opinion (Ex.PF). In cross-examination, doctor admitted that Ex.PF was wrongly given but if doctor can give report wrongly, then in examination-in-chief, he could also state wrongly that there was no rape. No doubt, prosecutrix stated that earlier to the present occurrence, she had no sexual intercourse with anybody, whereas report of the doctor is to the effect that prosecutrix was habitual to sexual intercourse. But on this short point, statement of the prosecutrix is not to be ignored because prosecutrix was a minor and illiterate. To save her reputation, there was possibility that she might have stated that earlier to the occurrence, she had no sexual intercourse with anybody. As per report of Chemical Examiner (Ex.PG), no spermatozoa was noticed but rape was on 10.3.1997. Prosecutrix was examined on 14.3.1997. In case of vaginal swabs taken on 14.3.1997, if report of the laboratory is that no spermatozoa was noticed, then no ground to opine definitely that there was no rape on 10.3.1997 at about 3.00 PM. As discussed earlier, prosecutrix was not inimical towards the appellants. Prosecutrix was not to get anything by saying that she was raped by the appellants turn by turn. Prosecutrix categorically stated that on 10.3.1997, she was raped by the appellants against her wish turn by turn. Doctor, as per report (Ex.PF) also reported that possibility of rape cannot be ruled out. When there was grass at the place of occurrence and prosecutrix being minor and of weak physique was not in a position to resist, then no question of external injury or struggle mark because when the prosecutrix was raped by one of the appellant, then second had caught hold her from her arms and her mouth was gagged. After rape by one appellant, then second had raped the prosecutrix. At that time, first appellant had caught hold the prosecutrix Crl.Appeal No. 1249-SB of 2002 14 from her arms and gagged her mouth. When the prosecutrix was caught hold from her arms at the time of rape, then less chances of external injuries or struggle marks. Next submission of learned defence counsel for the appellants was that prosecutrix was about 18 years' old. She was the consenting party. PW4 Dr. Manjit Singh stated that as per ossification test, age of the prosecutrix was 17 years. So, appellants are not liable for punishment under Section 376 IPC, when the prosecutrix was consenting party. But 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 reasonable one. According to the prosecution, prosecutrix was less than 16 years' old. Prosecutrix appeared in Court and stated her age as 16-17