Criminal Appeal No.662-SB of 1998 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.662-SB of 1998 Date of decision : 11.11.2008 Vijay Singh and others .....Appellants Versus The State of Haryana ...Respondent CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr.Jagdish Manchanda, Advocate for the appellants. Mr.S.S.Mor, Senior Deputy Advocate General, Haryana. **** S. D. ANAND, J. On 27.9.1994, at about 2.00 P.M., the prosecutrix was in the process of cutting fodder on the daul in the field of Jawahar son of Godha Ram when appellant Vijay Kumar, a son of Jawahar afore-mentioned, appeared on the scene and caught hold of her. He was closely followed by other two appellants. Thereafter, the prosecutrix was forcibly taken to the sugarcane field belonging to Jawahar where she was raped by the appellants one by one. After committing rape, appellant Vijay Kumar son of Jawahar took away her Salwar. A raula raised by the prosecutrix attracted Ashok Kumar son of Godha Ram, who was employed on the tubewell of Tirth Ram to the spot. Ashok Kumar afore-mentioned was known to the prosecutrix. On the request of the prosecutrix, Ashok Kumar son of Godha Ram obtained her salwar from the appellant Vijay and gave it to her. Hari Chand son of Gorya Ram had also been attracted to the Criminal Appeal No.662-SB of 1998 -2- **** spot by the alarm raised by the prosecutrix. On return to the house, the prosecutrix found that her husband was away for a labour assignment. She had no option but to wait for his arrival. In the meantime, Ram Chander resident of village Bazidpur and Jawahar Lal kept on pressurizing her to enter into compromise. The duo afore-mentioned did not permit the prosecutrix to approach the police. It was ultimately on 28.9.1994 that the prosecutrix and her brother Jaga Singh went to the police station and notified the offence to the police. The prosecution examined PW-1 Dr. G.S.Arora, PW-2 Dr. R.M.Sharma, PW-3 Dr. (Mrs.) Amarjit Wadhwa, PW-4 Dr. (Mrs.) Suvhita Ajmani, PW-5 Bhoop Singh, PW-6 Udhey Singh, PW-7 Harpal Singh, PW- 8 ASI Karta Ram, PW-9 Hari Chand, PW-10 Darshno Bai, PW-11 SI Jeet Ram and PW-12 SI Gurcharan Singh. PW-1 Dr. G.S.Arora, Radiologist posted at Government General Hospital, Karna,l had conducted ultra-sound examination of prosecutrix on police plea Ex. PA/1. He found that the prosecutrix was pregnant with 36 weeks foetus. PW-2 Dr. R.M.Sharma, Medical Officer, Government General Hospital, Karnal, had examined the appellants on 3.10.1994 and found that there was nothing to indicate that they were not able to perform sexual intercourse. PW-3 Dr. (Mrs.) Amarjit Wadhwa, Medical Officer, Government General Hospital, Karnal on police plea Ex.PE, had medico- legally examined the prosecutrix and found that there was no injury on any part of the body, that hymen was absent and that hymen was healed and torn. PW-4 Dr. (Mrs.) Suvhita Ajmani, posted at Government Criminal Appeal No.662-SB of 1998 -3- **** General Hospital, Karnal, on police plea Ex. PG, had examined Saroj wife of Ram Lal. PW-4 drawn Medico Legal Report (Ex. PH) of the prosecutrix and found that she was carrying 36 weeks foetus. On that very date, PW-4 Dr. (Mrs.) Suvhita Ajmani had also examined the prosecutrix and found that she was habitual to sexual intercourse. PW-5 Bhoop Singh Patwari, village Kambohpura, who also held the additional charge of village Nalvi Kalan on 8.11.1994, prepared scaled site plans Ex. PL/1 to Ex. PL/3 at the instance of Darsho Bai, Darshana wife of Satpal and Saroj wife of Ram Lal. PW-6 HC Udhey Singh handed over a parcel containing wearing apparel of the prosecutrix, one sealed envelope containing sample seal bearing inscription of AW (which had been handed over to him by Dr. (Mrs.) Amarjit Wadhwa) to SI Gurcharan Singh who took the same into possession, vide memo Ex PM. PW-7 HC Harpal Singh attested memo Ex.PN, vide which a sealed parcel had been taken into possession by SI Gurcharan Singh. PW-8 ASI Karta Ram had partly investigated this case and had, in the course of investigation, recorded the statement under Section 161 Cr.P.C. of MHC Sukhvinder Kumar and given application Ex. PK to Bhoop Singh Patwari for preparing site plan onscale who, in turn, also handed over plans Ex. PL/1 to Ex. PL/3 to him. PW-9 Hari Chand is an eye witness of the impugned occurrence. PW-10 is the prosecutrix. PW-11 SI Jeet Ram had recorded formal FIR Ex. PQ/1 on receipt of ruqqa Ex. P/Q. PW-12 SI Gurcharan Singh investigated this case. Criminal Appeal No.662-SB of 1998 -4- **** Ex. PS is the FSL report. Appellant Vijay son of Jawahar Lal denied the prosecution allegations and pleaded innocence by averring as under, in the course of his statements under Section 313 Cr.P.C.:- “One day prior to the alleged occurrence, prosecutrix had gone to the field of my father Jawahar to collect fire wood and, however, our servant had given her beating. Due to that grudge, I had been involved in this case.” Similar plea had also been taken by the remaining appellants in course of their statements under Section 313 Cr.P.C. DW-1 Nathi Ram, an Assistant on the establishment of Karnal Branch of Haryana Financial Corporation, made a record-based statement to the effect that a loan of Rs.3,28,000/- was disbursed to Hari Singh Oil Mills through its proprietor Hari Chand. It is in his statement that loan was repayable in installments but, as per the record, no installment had been paid in this case. He further testified that the auction notice for the sale of the factory premise afore-mentioned had been issued in the issue dated 25.6.1993 of Daily Punjab Kesari. Learned Trial court placed implicit reliance on the prosecution presentation, negatived the appellants’ plea of innocence and indicted the appellants on the above indicated charge. Insofar as the appellant Ashok son of Sukhu is concerned, he deserves outright exoneration for the simple reason that he was not named in the course of the statement (Ex, PB) which the prosecutrix had made under Section 164 Cr.P.C. on 30.9.1994. In the course thereof, she named two persons by the name of Vijay and third person by the name of Subhash who had gang raped her. At the trial, she testified that the names Criminal Appeal No.662-SB of 1998 -5- **** of the perpetrators of the crime were given to her by Hari Chand who (Hari Chand) has been proved on record to be related to her. Concededly, no Test Identification Parade was got conducted to fix the identity of Ashok Kumar as one of the perpetrators of the crime. In the light thereof, it is apparent that the prosecutrix did not name him as a member of the gang which raped her. Ashok Kumar son of Sukhu shall stand acquitted accordingly. Insofar as the other two appellants are concerned, they stand nailed by the reliable, clear and clinching testimony of the prosecutrix. In the course of her statement, she categorically named that a sugarcane field was situated on the other side of daul from where she was cutting grass. It is also in her further testimony that Jawahar aforementioned is father of Vijay Singh appellant. It is in her testimony that the other appellant by the name of Vijay son of Ram Chander was carrying a Kulhari in his hand. Equally categorically, she testified on oath that Vijay son of Jawahar lifted her forcibly and he was the first to have had sexual intercourse with her. She proceeded to categorically aver that it was the other appellant namely Vijay Kumar who was carrying her Salwar. Inspite of the fact that she was subjected to fairly lengthy cross-examination, it is evident that her credibility could not be shaken or impeached in the course thereof and she stood by her statement about the violation of her person by these two appellants (Her testimony qua Ashok Kumar son of Sukhu has been believed in view of the fact that she never ever named him in the course of the earliest presentation (Ex PB) under Section 164 Cr.P.C. Learned counsel for the appellants Vijay son of Jawahar and Vijay son of Ram Chander argues that the prosecutrix having conceded that she had not known the names and parentage of the above appellants, Criminal Appeal No.662-SB of 1998 -6- **** latter (i.e. appellants) are entitled to benefit of doubt on account thereof. The plea raised is completely denuded of merits. Though there can be no dispute with the fact that the prosecutrix did concede that she was not familiar with the names and parentage of the appellants afore- mentioned on the date of the impugned occurrence, she was equally categorical that those particulars were given to her by Hari Chand, She proceeded to aver that she had also been told about their names by people present over there while her. There is nothing unnatural if a rural and uneducated woman was not familiar with the names of her co- villagers and she obtained knowledge of those only from her relation who happened to have come over the spot at the time of impugned occurrence. The plea shall stand repelled accordingly. Learned counsel for the appellants, then, argues that the statement made by the prosecutrix at the trial (to the effect that appellant Vijay son of Ram Chand was carrying Kulhari in his hand) is not borne out by her statement under Section 161 Cr.P.C. made to the police. It follows therefrom, it is argued, that the prosecutrix is not a reliable witness. Learned counsel is attaching undeserved importance to the omission of a fact which may not necessarily indicate the falsity of the testimony of the prosecutrix which (omission) may be on account of incompetent manner of recording of the statement at the hands of the police. It would be apparent from a perusal of the statement Ex. PB, which the prosecutrix made under Section 164 Cr.P.C., that she categorically indicated in the course thereof that she was threatened with death by a Kulhari if she raised an alarm. While appreciating evidence of this nature, the Court must be cognizant of the fact that a prosecutrix, whose person is violated, Criminal Appeal No.662-SB of 1998 -7- **** undergoes unenviable mental trauma. Though the prosecutrix in the present case was a married woman, she was a young lady in her twenties and she must have been completely bewildered by the suddenness of capture her and deflowering that followed immediately thereafter. It cannot, thus, be said that bonafides of the prosecution presentation are rendered doubtful just because of the above indicated omission on the part of the prosecutrix. In the prevalent Indian societal scenario, a female would be very reluctant to even notify the violation of her person to the police. She would think twice before doing so because notification of such an offence to the police could endanger her matrimonial life as well. If a lady levels an allegation of this category, it must get the deserved respect, particularly when the allegation is borne out by the medical segment. In the light of the fore-going discussion, the appeal filed by Ashok Kumar son of Sukhu shall stand allowed; while the appeal filed by Vijay son of Jawahar and Vijay son of Ram Chand shall stand dismissed. Appellant Ashok Kumar is acquitted of the charge. November 11, 2008 (S. D. ANAND) Pka JUDGE