In the High Court of Punjab and Haryana at Chandigarh Crl. Appeal No. 1868-SB of 2004 Date of decision: February 27, 2008 Madan Lal and another ... Appellants versus State of Punjab ... Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. M.L. Saini, Advocate for the appellants. Mr. C.S. Brar, DAG, Punjab for the respondent. A. N. Jindal, J Challenge in this appeal is to the judgment dated 21.8.2004 passed by the learned Additional Sessions Judge, Ropar whereby the accused-appellants Madan Lal and Chiranji Lal (hereinafter referred to as 'the accused') were convicted under Sections 323, 376 read with Section 120-B IPC and sentenced to undergo rigorous imprisonment for six months each under Section 323 IPC; to undergo rigorous imprisonment for 10 years and to pay fine of Rs.2000/- each under Section 376 read with Section 120- B IPC. The prosecution has come with the version that the complainant Krishna Devi (hereinafter referred to as 'the complainant') had three daughters out of them, the prosecutrix (name not disclosed) was married with Madan Lal on 8.11.2002. After marriage, the prosecutrix along with her husband Madan Lal and Chiranji Lal came to her house in a van Crl. Appeal No. 1868-SB of 2004 -2- *** bearing registration No.PB-45-0065 on a customary visit and returned to their village Nalhoti at about 3.30 pm. On 15.11.2002, the complainant was informed on telephone by her other son-in-law namely Sonu that the health of the prosecutrix was not good. On 16.11.2002, she along with her husband Ram Lal went to the village Nalhoti to enquire about the health of the prosecutrix, where the prosecutrix informed the complainant that on 13.11.2002 when she along with her husband and Chiranji Lal reached near the ditches of village Resra (which is situated in the area of village Nalhoti) Chiranji Lal accused after stopping the van at a deserted place raped her. On resistance shown by her, she was beaten by both of them on account of which her health has been deteriorating. The complainant disclosed the entire incident to her husband Ram Lal. As the complainant and her husband were under the belief that the prosecutrix was under the influence of some evil spirits, therefore, they consulted a tantrik. Ultimately, on 18.11.2002, the prosecutrix was got admitted in a hospital of Singh Pur where she was medically treated as she was not speaking in any manner. Consequently, the aforesaid statement made by the complainant, was made the basis of the FIR against the accused under Section 376, 323/34 IPC at Police Station Nurpur Bedi. The prosecutrix could not be recovered from the trauma and died on 30.1.2003, therefore, the offence under Section 304 and 120-B IPC was added. Investigation was commenced. The accused were arrested and completion of the investigation was followed by a report under Section 173 Cr.P.C. The accused were charged under Sections 120-B, 376, 304, 323 IPC to which they pleaded not guilty and opted for trial. Crl. Appeal No. 1868-SB of 2004 -3- *** During evidence, the prosecution examined Dr. Harpreet Kaur, Medical Officer, PHC, Nurpur Bedi (PW-1), Dr. Shiv Kumar (PW2), Dr. Gurvinderveer Singh (PW3), Krishna Devi complainant (PW4), ASI Narinder Singh (PW5), Ram Lal (PW6), Dr. Karamveer (PW7), HC Balbir Kumar (PW8), Rakesh Kumar (PW9), Sanjiv Kumar (PW10), Ranbir Kumar Patwari (PW11), Niranjan Singh (PW12), ASI Gurbax Singh (PW13), Dr. Satinder Chauhan (PW14), Dr. Ranjan Angra (PW15), Dr. Sawita Malhotra (PW16), HC Ved Parkash (PW17), C. Lal Chand (PW18), Ram Chand (PW19), Inspector Harnam Singh (PW20), SI Sohan Lal (PW21), Dharamjeet Singh Sarpanch (PW22) and Inspector Vibhor Kumar (PW23). When examined under Section 313 Cr.P.C. The accused denied all the allegations and pleaded their false implication. They further stated that the prosecutrix was not normal at the time of her marriage. When Madan Lal remonstrated before his in-laws then a false case was planted upon him. In defence, the accused examined Kanta Devi (DW-1), Dhanno (DW-2) and Madan Lal accused himself appeared in the witness box as DW-3. Ultimately the trial ended in acquittal of the accused under Section 304 IPC but convicted under Section 376, 323 read with Section 120-B IPC. Hence this appeal. Arguments heard. Record perused. The present case was registered on the statement of Krishna Devi (PW4), who is none-else but the mother of the prosecutrix, to whom the entire occurrence had been disclosed by her. Krishna Devi, while Crl. Appeal No. 1868-SB of 2004 -4- *** appearing as PW4 has consistently testified the occurrence. Sanjiv Kumar alias Sonu, brother-in-law of the prosecutrix appeared as PW10 and proved the fact that the marriage of the prosecutrix was solemnised on 8.11.2002 with Madan Lal – accused and when he visited the house of Madan Lal – accused on 15.11.2002, he noticed that the prosecutrix was in perplexed and fearsome condition. She disclosed to her mother about the rape committed by both the accused against her will and consent. Since, the prosecutrix was found unfit to make a statement, therefore, statements of her parents (Krishna Devi and Ram Lal) were recorded, both of whom while appearing as PW4 and PW6 have fully supported the prosecution version. The counsel for the accused argued that neither any witness from the neighbourhood of the accused was cited nor examined in Court and this way, the prosecution has withheld the best evidence available. He also argued that the prosecutrix was suffering from mental disorder prior to the marriage with the accused, and the solemnisation of marriage was a result of fraud. It is also argued that when accused Madan Lal raised objections, he was falsely implicated in the present case. Having considered, the aforesaid contentions fall short of any merit. Non-joining of any independent witness from the place of occurrence, in the peculiar circumstances of the present case, cannot be said to be fatal to the prosecution case, as the incident had taken place at a deserted place in the area of village Nalhoti. The accused persons belong to village Nalhoti, while, the prosecutrix was married in that village. Normally, in such circumstances, no-one would like to invite enmity of co-villagers and that too without gains. Regarding the mental disorder of the prosecutrix, there Crl. Appeal No. 1868-SB of 2004 -5- *** is no evidence, except the statement of Dr.Savita Malhotra (PW16), who examined her five times between 20.12.2002 to 28.1.2003, i.e, after the alleged occurrence, but she could not find any abnormality in her so as not to understand the act of rape committed upon her. Further more, the Professor of Psychiatry, PGI, Chd. (PW16) also opined that such mental disorder could be the result of forcible sexual intercourse with the prosecutrix. Admittedly, the prosecutrix lived with her parents at village Lamlehri before marriage, where the sister of accused Madan Lal, namely Kanta Devi was married and she was the mediator of the marriage. While appearing as PW2, she admitted that at the time of ring ceremony, she was present with 4-5 more persons from village Lamlehri. She also stayed for 4-5 days at the house of accused Madan Lal even after solemnisation of the marriage. If the victim had been suffering from mental disorder before marriage, it must be in the knowledge of Kanta Devi (PW2) and in that case, she would not have initiated to choose the prosecutrix to become the life partner of his brother. The medical evidence also lends support to the prosecution case. The mental trauma suffered by the prosecutrix, because of the rape committed upon her by the appellants, was so grave that she was not able to make a statement upto 20.12.2002 i.e. even after 38 days of the alleged occurrence. Dr.Shiv Kumar (PW2), opined that the prosecutrix was unfit to make statement upto 20.12.2002. Dr.Harpreet Kaur, Medical officer of PHC, Nurpur Bedi (PW1), who conducted the medico legal examination of the prosecutrix proved her MLR (Ex.PA) showing injuries on her person and that she was not speaking at that time and was under severe mental Crl. Appeal No. 1868-SB of 2004 -6- *** trauma. Dr.Savita Malhotra, a Professor of Psychiatry in PGI, Chandigarh, who appeared in the witness box as PW16 stated that she examined the prosecutrix on 20.12.2002, 27.12.2002, 3.1.2003, 10.1.2003 and 28.1.2003 and found that she was suffering from major mental disorder. She further opined that the similar mental disorder could occur due to forcible sexual intercourse with the prosecutrix. Madan Lal being the husband though may not be guilty of rape but he having abetted Chiranji Lal to commit rape upon the prosecutrix is equally liable. Faced with the above situation, Mr.M.L.Saini, learned counsel appearing for the appellants, had nothing to say, but opted to seek indulgence of this court for extending some leniency towards the accused, keeping in view the fact that the accused are the sole bread winners of their families. Accused Madan Lal has old ailing parents and there is none-else to look after them, while accused has wife, three children and old mother to support. Having considered the above submissions, I am of the view that though the accused do not deserve any leniency, as the prosecutrix was wife of one of the accused, who rather than playing the role of protector in her life, in conspiracy with the other accused, had become her enemy, yet their family circumstances can be taken as a mitigating circumstance for reduction of the sentence. Consequently, while finding no merit in the appeal, the same is hereby dismissed with the modification that the sentence of rigorous imprisonment under Section 376 read with Section 120-B IPC is reduced to seven years. However, the sentence of fine and also the sentence for other offences shall remain intact. Crl. Appeal No. 1868-SB of 2004 -7- *** Copy of the order be sent to the concerned Chief Judicial Magistrate for taking necessary steps to ensure the custody of the appellants, for serving remaining part of the sentence. February 27, 2008 (A.N. Jindal) deepak/gian Judge