Criminal Appeal No186-SB of 1998 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.186-SB of 1998 Date of decision : 16.9.2008 Jang Bahadur .....Appellant Versus State of Punjab ...Respondent Criminal Appeal No. 409-SB of 1998 Ranjit Singh .....Appellant Versus State of Punjab ...Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr.H.P.Singh, Advocate for Mr. R.S.Bains, Advocate for the appellants. Ms. Manjari Nehru, Deputy Advocate General, Punjab for respondent-State. S. D. ANAND, J. These two appeals (Criminal appeal No. 186-SB of 1998 and Criminal Appeal No. 409-SB of 1998) have been filed by Jang Bahadur and Ranjit Singh respectively who ( along with two others namely Charanjit Singh and Mithu) was convicted by the learned Trial Judge for offences under Sections 366-A and 376(2)(g) IPC. Criminal Appeal No186-SB of 1998 -2- **** ( Charanjit Singh and Mithu are not indicated to have filed an appeal against their conviction). Learned counsel for the present appellants have a feeling that they may have already undergone the sentence awarded to them. In any case, what presently concerns is the fact that they are not indicated to have filed an appeal. The prosecution allegations, in the statement of prosecutrix (PW-6) and her father Bhajan Singh (PW-5), may be indicated as under:- On 18.1.1996, at about 7.15 P.M., the prosecutrix had been to fields to relieve herself. When she was returning to her house, she was accosted by the two appellants before this Court and also two other accused indicated above. Appellant Jang Bahadur administered some intoxicant to the prosecutrix by using his handkerchief. The prosecutrix became unconscious. She regained consciousness the following day and found herself in the sugarcane fields. She 'observed' that she had been raped. At the time she regained consciousness, the appellants (and their associates)were sitting by her side. Thereafter, Jang Bahadur and Ranjit Singh left the spot. Then the non appellants Charanjit Singh and Mithu raped her against her will. The act of rape was committed while she was lying on two mattresses which had been spread over on the dried leaves of sugarcane. After a short while, appellants Jang Bahadur and Ranjit Singh returned, while they were carrying food for all of them. The prosecutrix initially refused but she was forced to take meals. Thereafter, appellants Ranjit Singh and Jang Bahadur also Criminal Appeal No186-SB of 1998 -3- **** raped her. The prosecutrix was detained in the sugarcane fields for a period of 6-7 days. She was raped all through. Non appellants Charanjit Singh obtained the signature of the prosecutrix on some papers which (papers) she signed differently from her name. After the detention of the prosecutrix in the sugarcane fields for a period of about 6-7 days, non appellants Charanjit Singh and Mithu and appellant Ranjit Singh deputed appellant Jang Bahadur to fetch a vehicle to enable all of them to go elsewhere. When Jang Bahadur did not turn up till noon, non appellants Mithu and Charanjit Singh entertained an apprehension that he might well have been arrested. Then, the prosecutrix was brought by non- appellants Mithu and Charanjit Singh to Zira in the truck. When the trio ( prosecutrix and also non-appellants Mithu and Charanjit Singh) were standing near the premises of Government Higher Secondary School (located on the Katcha Zira road) they were apprehended by Bhajan Singh, Dara Singh and Mohinder Singh (father, brother and uncle respectively of the prosecutrix). Non-appellants Mithu and Charanjit Singh grappled with Bhajan Singh etc. who were, however, able to capture them. Then, Dara Singh fetched the police from the Police Station. PW-1 Dr. Hardev Singh, then posted at Civil Hospital, Zira, had medico legally examined non appellant Charanjit Singh on 16.2.1996 at 8.10 P.M. and found two reddish brown abrasions and three reddish blue bruises on his person. All those bruises/abrasions were found to be simple in nature. Dr. Hardev Singh further opined Criminal Appeal No186-SB of 1998 -4- **** that the injuries aforementioned had been caused within a probable duration of 24 hours. This witness again examined appellant Charanjit Singh on 17.2.1996 at about 6.30 P.M. and opined that the latter was capable of performing sexual intercourse. On that very day, Dr. Hardev Singh medico legally examined non-appellant Mithu and opined that he was capable of performing sexual intercourse. On 20.2.1996, at about 5.00 P.M., the Medical Officer afore-mentioned medico legally examined Jang Bahadur and opined that there was nothing to suggest that latter was incapable of performing sexual intercourse. In the case of non- appellants Charanjit Singh and Mithu and also appellant Jang Bahadur Dr. Hardev Singh found that “smegma around corona was absent.” PW-2 Dr. Vikas Arora, then posted as Radiologist Examiner at Civil Hospital, Zira, had radiologically examined the prosecutrix for determination of her age. As per the radiological skeltetal survey, he opined that the age of the prosecutrix was 17 to 18 years, as per galstaun data for females. He conceded, in the course of cross-examination, that ossification test is not a surer test for age estimation of the person and that there can be variation of two years on either side. PW-3 Dr. O.P.Bhagri made a record based statement to the effect that appellant Jang Bahadur was in employment at Mini Primary Health Centre, as a Ward Servant, and that he was absent from duty from 20.1.1996 to 19.2.1996. He joined duty on 22.2.1996 Criminal Appeal No186-SB of 1998 -5- **** but again absented from 22.2.1996 onwards till 18.9.1996. It is upto that date only that Dr. O.P.Bhagri was posted over there. PW-4 Dr. Renu Singla had medico-legally examined the prosecutrix on 18.2.1996 at about 10.50 A.M. She found that there were no marks of violence on any part of the body and the private parts. On examination of vulva, she found that there was no injury. On P/V examination, she found that the vagina admitted two fingers. No bleeding from vagina was found. Three vaginal swab were obtained and sealed in a glass bottle which was sent to the Chemical Examiner for confirmation of spermatozoa. After the prosecutrix had been medico legally examined, Dr. Renu Singla handed over the following articles to Constable Soji Singh:- “i) Glass Bottle containing three vaginal swabs with one seal. ii) envelope containing copy of MLR, sample seal, letter to Chemical Examiner and police papers.” PW-5 Bhajan Singh is the father of the prosecutrix. PW-6 Kulwant Kaur is the prosecutrix herself. PW-7 Rajni Bala, a teacher posted at Government Primary School, Khacharwala, made a record based statement to the effect that the date of birth of the prosecutrix is recorded in the school record as 28.4.1979. She also proved her signature (as acting Headmistress) on school leaving certificate (Ex. P21). PW-8 Sakattar Singh, Patwari, Circle Longodewal had prepared scaled site plan, with correct marginal notes, on 18.3.1996. Criminal Appeal No186-SB of 1998 -6- **** PW-9 ASI Joginder Singh, PW-10 SI Gurdev Singh and PW-11 SI Devinder Singh Dhuri are the Investigating Officers of this case. PW-12 MHC Shiv Dayal tendered his formal affidavit Ex. P-25 into evidence. PW-13 Avinash Singh, Senior Assistantin the office of Civil Surgeon, Ferozepur, made a record based statement to the effect that Jang Bahadur had been appointed as a Ward Servant in that office. Ex. P-27 is the report by the Chemical Examiner. Appellants Jang Bahadur and Ranjit Singh denied the prosecution allegations and alleged false implication in the case. The appellants did not adduce any evidence in defence. Learned counsel for the appellants averred as under to obtain the invalidation of the impugned finding:- 1. The prosecution presentation that the prosecutrix had been detained and subjected to gang rape in the open fields for a duration of seven days, and that too during the winter month of January, is thoroughly unacceptable, particularly when the place of occurrence is alleged to be in that very village itself where the family of the prosecutrix was living and there is also evidence that sugarcane crops were standing in that land and also the other agricultural holdings around it; Criminal Appeal No186-SB of 1998 -7- **** 2. Even if the impugned occurrence is held as proved, it was all consensual affair as between the prosecutrix and Charanjit Singh as there is evidence on record to prove that there was love affair between the two. In support of that averment, sustenance was also drawn from the statement of Dr. Renu Singla PW-4 to the effect that “there was no mark of violence on any part of the body and private parts.” 3. That are lot many circumstances available on the file which disprove the fact of impugned occurrence itself. In the context, the attention of this Court was drawn towards the fact that the statement made by the prosecutrix (to the effect that her clothes as well as quilts and mattresses had become blood stained) is falsified by the testimony on oath of her father PW- 5 Bhajan Singh who testified that he did not notice any blood stains over the mattresses or the clothes worn by the prosecutrix. In this very context, learned counsel invites my attention to the statement made by the prosecutrix that “so long I remained in the fields till I was taken in custody by the police, I remained in the same clothes which were already worn by me. The police did not take into possession my clothes.” Criminal Appeal No186-SB of 1998 -8- **** The presentation on behalf of the appellants merits acceptance. The item wise reasons therefor are as under:- As per the statement of the prosecutrix, she was subjected to gang rape in the open sugarcane fields for 6-7 days. Apart from the fact that prosecutrix has not explained where exactly she was thereafter till the time of apprehension, it would appear highly unnatural that she would have been subjected to violation of her person at an unprotected site during the month of January when the winter is almost at its peak. In this context, it would be relevant to notice that the investigating officer did not notice any blood stains or semen on the mattresses and quilts etc. As pointed out on behalf of the appellants, PW-5 Bhajan Singh had testified that he did not notice any blood stains over the mattresses or the clothes worn by the prosecutrix. Likewise, PW-9 ASI Joginder Singh, Investigating Officer had also testified that “the mattresses and the quilt were not having blood stains or the semen. I did not see the blood stains on the clothes of the girl.” However, the testimony of PW-5 Bhajan Singh and PW-9 ASI Joginder Singh is in contradiction to statement of the prosecutrix to the effect that her clothes as well as quilt and mattresses had become blood stained. Apart from the inconsistency noticed in the inter-se testimony of above witnesses, it may be indicated that if the appellants had actually gone about raping the prosecutrix repeatedly, one would have expected that there would be some blood stains or semen available on the mattresses and quilts etc. Criminal Appeal No186-SB of 1998 -9- **** which are obviously alleged to have been used to protect the appellants and also the prosecutrix from the winter chill. That would give rise to a reasonable doubt about the truthfulness of the prosecution presentation. It seems illogical that though the site of occurrence was in the village itself, none from the adjacent fields or otherwise happened to come to that side for looking after their crops or in order to answer the call of nature. It is a matter of common observation that house holds in village do not, by and large, have the toilet facility and it is not uncommon to find people in villages utilising the open space in the village for defecation. The grievance indicated at item no.1 is accepted. Insofar as the criticism at item no. 2 is concerned, it too deserves to be approved. Though the defence did not adduce substantive evidence to prove love letters purporting to be in the hand of prosecutrix (and addressed to non appellant Charanjit Singh) and Ex. D4 (which had allegedly been filed by the prosecutrix under Section 125 Cr.P.C. against non-appellant Charanjit Singh), there are circumstances aplenty to uphold the defence plea that the prosecutrix was a consenting party to the violation of her person, ofcourse at the hands of non appellant Charanjit Singh. The prosecutrix would want the Court to believe that she became unconscious on inhaling an intoxicant administered to her by appellant Jang Bahadur at the time of the first encounter. She would further want the Court to believe that she was repeatedly physically assaulted by the appellants but that she did not make noise Criminal Appeal No186-SB of 1998 -10- **** because she had no occasion to make a noise. This statement she made in the context of the initial encounter. It is not in her statement that the appellants were armed with fire-arms or any other weaponry. It would be thoroughly unnatural to accept that an eighteen years old girl would not resist the repeated violation of her person. She also has not tried to explain her whereabouts and also that of appellants after the alleged initial stay in the open fields for 6-7 days. As already noticed, the prosecution allegation is that the prosecutrix was apprehended by Bhajan Singh, Dara Singh and Mohinder Singh near the premises of Government Higher Secondary School (located on the katcha Zira Road.) on 16.2.1996. The present, thus, a case in which the prosecutrix alleges to have been in the company of the appellants for the period from 18.1.1996 to 16.2.1996. On her own showing, she was detained and raped in open field in the village itself for a period of 6-7 days. She does not indicate where exactly she and the appellants stayed thereafter till they were apprehended by the police. It is not the allegation that the appellants were carrying any fire-arm or other weaponry which could have deterred her from crying foul. It is also not her plea that she did not get an opportunity to raise alarm through out upto the period she was apprehended by the police. After all, the prosecutrix and the appellants must have stayed somewhere even after leaving the open site in the village. For reaching their destination (where-ever it was) they must have passed through one or the other public roads. The Investigating agency did Criminal Appeal No186-SB of 1998 -11- **** not collect any evidence in that context. The entire prosecution presentation suffers from the vice of reliability. The prosecutrix had also made a statement under Section 164 Cr.P.C. (Ex. D3) before a Magistrate. In the course thereof, she did not name appellant Ranjit as one of the rapists. In response to a question, she categorically indicated that she did state in her statement before the Magistrate that Ranit Singh also used to commit rape upon her in the sugarcane field. She was confronted with her statement (Ex. D3) where it was not so recorded. She was not in a position to offer any clarification about the circumstances under which that averment came to be omitted from Ex. D3. Apart therefrom it, she testified that she does not remember if she told the police, in the course of the statement under Section 161 Cr.P.C. , that Jang Bahadur and Ranjit Singh appellants used to leave the place of occurrence late at night. Her attention was drawn towards her statement under Section 161 Cr.P.C. where this fact was not found to have been recorded. The prosecutrix testified that she and the appellants had been standing at the place of apprehension for the last about half an hour before her father, brother and uncle came over there. It is also in her statement that there are few shops near the place where they were standing. She had earlier stated in the examination-in-chief that she and the appellants were standing near the Government High/Secondary School, Katcha Zira Road at Zira. As against it, Bhajan Singh PW-5 told the Court that the prosecutrix and the Criminal Appeal No186-SB of 1998 -12- **** appellants were found standing near a cinema hall at Zira. The investigating officer further stated that appellants were sitting by the side of the cot and they had not been tied at that time. No such thing was stated by PW-5 Bhajan Singh. It would also require pertinent notice at this stage that the appellant Jang Bahadur was not apprehended in the company of the prosecutrix and his co-accused. As per as the prosecution presentation he left the party near the school but did not return to the spot thereafter. The presentation about the apprehension of the prosecutrix and the appellants is rendered doubtful because, on the own showing of the Investigating Officer, the place of apprehension is within jurisdiction of Police Station, Zira and he did not make any entry in the Police Station, Zira, about his arrival over there and also he did not join any police official from that police station. Interestingly enough, he also did not make any entry at Police Station, Zira even after the appellants had been arrested. There is, thus, no documented corroborative evidence to cement the prosecution allegation that the prosecutrix and the appellants were apprehended at the above place. The manner in which the investigation was conducted also leaves much to be desired. The Investigating Officer conceded that the police had been to the spot i.e. Sugarcane fields but that the police did not record the statement of owner of the neibhouring fields. He also conceded that he did not summon the owner of neighbouring fields or the owner of the relevant sugarcane field. Criminal Appeal No186-SB of 1998 -13- **** The prosecution has also not explained why exactly non- appellant Charanjit Singh had to be presented twice before PW-1 Dr. Hardev Singh, once for pure and simple medico-legal examination on 16.2.1996 and, thereafter, on 17.2.1996 for finding out where he was capable of performing sexual intercourse or not. His immediate examination was very relevant because Doctor would have made certain relevant observations about the presence of otherwise of semen/smegma on his private parts. For the reasons noticed in the fore-going paras, the following facts are apparent:- 1. The prosecution version that the prosecutrix was gang raped in the open under the sky, for a period of 6-7 days at a stretch and in the month of January when the winter is at its peak, would appear to be unnatural; 2. The mattresses and quilts recovered from the spot have not been proved to have had any blood stains or semen. It does not fit in the prosecution presentation. 3. The clothes of the prosecutrix were not taken off as per her own testimony. That being so, the FSL report that semen was detected on female underwear is insignificant and irrelevant; 4. There are contradictions galore in the testimony of the prosecution witnesses which raise doubt about the prosecution plea. 5. In the course of her statement under Section 164 Criminal Appeal No186-SB of 1998 -14- **** Cr.P.C., the prosecutrix had not described appellant Ranjit as one of the rapist; 6. The absence of any struggle marks on her person including private parts is suggestive of it all having been a consensual affair. Further, it sounds fairly unnatural that she did not raise a raula through out the period of her stay in the company of appellant from 18.1.1996 to 16.2.1996 particularly when she claimed to have been ravished in part of village itself for 6-7 days and she was brought to Zira where there were a number of shops in the vicinity of the place they had been standing. In the light of the above discussion, it is held that the prosecution has not been able to prove its case against the appellants beyond reasonable doubt. Appellants Jang Bahadur and Ranjit get the benefit thereof. The appeals shall stand allowed. The appellants are acquitted of the charge. September 16, 2008 (S. D. ANAND) Pka JUDGE