Crl.Appeal No. 678-SB of 2002 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No.678-SB of 2002 Date of decision:4.10.2010 Balbir Singh ... Appellant versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr. Binderjit Singh, Advocate, for the appellant. Mr.Arshvinder Singh, DAG, Punjab. ... JORA SINGH, J. Balbir Singh son of Jagir Singh preferred this appeal to impugn the judgment of conviction and order of sentence dated 5.4.2002 rendered by Additional Sessions Judge, Ludhiana, in Sessions Case No. 34 of 2000, arising out of FIR 69 dated 25.3.2000 under Sections 366/376/109/120-B IPC, Police Station Focal Point, Ludhiana. By the said judgment, he was convicted under Sections 366/376 IPC and sentenced to undergo RI for five years and to pay a fine of Rs.1000/- , in default of payment of fine, to further undergo RI for three months under Section 366 IPC and to undergo RI for seven years and to pay a fine of Rs.2000/-, in default of payment of fine, to further undergo RI for four months under Section 376 IPC. Both the sentences were ordered to run concurrently. Co-accused Narinder Singh, Karamjit Kaur and Joginder Kaur were acquitted of the charge levelled against them. Against acquittal, no appeal by the State. Crl.Appeal No. 678-SB of 2002 2 Prosecution story, in brief, is that Sharanjit Kaur (for short `the prosecutrix'), complainant is the resident of House No. 8778, Street No.24, Kot Mangal Singh, Ludhiana. On 19.2.1999 she was married with Kamaljit Singh son of Mukhtiar Singh. Kamaljit Singh was carrying on the business of denting and painting and used to visit his shop at 9.00 AM and return at about 10.00 PM. She was having a problem with her menstrual cycles and was getting treatment from nurses. After that, problem was brought to the notice of her father Narinder Singh and mother Karamjit Kaur. Her parents suggested that there was a saint, namely, Balbir Singh (for short `the appellant') r/o Village Kutbewal, who was giving medicines of that problem. Prosecutrix was taken to the appellant in the month of October, 1999, by her father Narinder Singh. In the dera of appellant, prosecutrix had disclosed about her problem to the appellant. Then appellant had given some medicine to the prosecutrix. After that, prosecutrix along with her father came back to her house. Again in the month of February, 2000, prosecutrix along with her husband had gone to the dera of the appellant and brought medicine. On 23.3.2000, appellant gave telephonic call at the house of neighbour Nihal Singh by saying that prosecutrix was residing in his neighbourhood. Nihal Singh was requested to summon the prosecutrix to have a talk with the appellant. On the request of Nihal Singh, prosecutrix had gone to his house and had attended the call from the side of the appellant. Appellant on telephone stated that he was standing near Dhandari Phatak. Prosecutrix was requested to come along with her father to meet him immediately. Prosecutrix on telephone had summoned her father and had gone to Dhandari Phatak at about 11.00 AM. Appellant was present there and told that he has prepared a special medicine for the prosecutrix Crl.Appeal No. 678-SB of 2002 3 and the medicine was lying at his dera. Prosecutrix and her father were requested to accompany him to the dera. On the motorcycle of the appellant, prosecutrix and her father had gone to the dera of the appellant at Village Kutbewal. Prosecutrix was directed by the appellant to come inside the room because after checking her, medicine was to be given. Prosecutrix along with the appellant had gone inside the room. Father of the prosecutrix remained sitting outside in the dera. Appellant had bolted the room from inside. Prosecutrix was directed to open her salwar. Prosecutrix replied that his action was not proper. Then appellant stated that he was to marry her permanently. No need to raise raula. Prosecutrix continued to lodge protest but appellant repeatedly directed the prosecutrix to remove her salwar, otherwise he was to finish in-laws family and parental family of the prosecutrix with his magic power. Then prosecutrix became frightened. Salwar of the prosecutrix was removed forcibly. Prosecutrix was raped against her wish and directed her not to disclose about the incident to anyone, otherwise he was to finish her in-laws as well as parental family and promised to marry her. Prosecutrix came outside the room and out of fear did not disclose about the incident to her father. Prosecutrix along with her father came back to Ludhiana. Narinder Singh by leaving the prosecutrix at her in-laws house came back to his house. Appellant raped the prosecutrix against her wish by saying to marry her and to provide medicine. Out of fear, she did not disclose about the incident to anybody but today, she disclosed about the incident to her husband Kamaljit Singh. Police party headed by SI Waryam Singh, Incharge, Police Post Dhandari Kalan, was present near Yard Chowk, Focal Point, Ludhiana. Statement of prosecutrix (Ex.PF) was recorded and she had signed the same Crl.Appeal No. 678-SB of 2002 4 in token of its correctness. After making endorsement (Ex.PF/1) at 8.30 PM on 25.3.2000, statement was sent to the police station, on the basis of which, formal FIR (Ex.PF/2) was recorded. Police party headed by SI Waryam Singh along with prosecutrix and her husband had gone to the spot. Rough site plan with correct marginal notes was prepared. On 26.3.2000, police party headed by SI Waryam Singh along with prosecutrix and her husband had gone to the dera of the appellant. Rough site plan with correct marginal notes was prepared. Appellant was arrested and produced before the doctor for medical examination. On 26.3.2000, another application was moved for medical examination of the prosecutrix but attending doctor stated that SMO was to mark the application to some lady doctor. Lady doctor was not available. On 26.3.2000, prosecutrix could not be got medico legally examined. On 27.3.2000, HC Baljit Singh was directed to produce the prosecutrix before the doctor for examination. In view of application (Ex.PA), prosecutrix was medico legally examined. Sealed parcel was handed over to HC Baljit Singh by the doctor and that sealed parcel was deposited with the Incharge of Malkhana. After receipt of report from the office of Chemical Examiner and completion of investigation, challan was presented in Court against the appellant. Accused was charged under Sections 366/376/506 IPC, to which he pleaded not guilty and claimed trial. After some evidence, application was moved under Section 319 Cr.P.C. to summon Narinder Singh, Karamjit Kaur and Joginder Kaur. Application was allowed. After appearance of Narinder Singh, Karamjit Crl.Appeal No. 678-SB of 2002 5 Kaur and Joginder Kaur, accused were charged under Sections 120- B/366/376/109 IPC. In order to substantiate its case, prosecution examined number of witnesses. PW1 Dr. U.S.Sooch stated that he had medico legally examined the appellant on 26.3.2000 and found him fit to perform sexual intercourse. PW2 Prosecutrix reiterated her statement (Ex.PF) made before the Investigating Officer. PW3 Mukhtiar Singh is the father-in-law of the prosecutrix and has supported the version of prosecutrix. PW4 Inspector Paramjit Singh had partly investigated the case after investigation by SI Waryam Singh. PW5 Dr. Kiran Chawla stated that on 27.3.2000, she had medico legally examined the prosecutrix and observed as under:- “She was medorately built and nurished well oriented sex characters, i.e., secondary were well developed. Per vagina, external genitalia was normal. Three swabs have been taken from vagina and sent to office of Chemical Examiner, Pb., Patiala, for chemical examination. Then observed that hymen was torn and healed. Uterus was normal size and vagina admitted two fingers. Annexa, i.e., the other adjoining organs to vagina were normal.” PW6 Dr. Ashok Raswant had conducted x-ray examination of the prosecutrix and after radiological examination, opined that age of prosecutrix was about 19 years. Crl.Appeal No. 678-SB of 2002 6 PW7 HC Baljit Singh had deposited sealed parcel in the office of Chemical Examiner, Patiala. PW8 HC Tarsem Singh was serving as MHC,with whom case property was deposited. PW9 Nihal Singh stated that at about 10.15 AM, there was a telephone call from the side of the appellant and on telephone, he had a talk with the prosecutrix, who was residing in his neighbourhood. PW10 SI Waryam Singh had initially investigated the case in hand. PW11 Harminder Singh, Draftsman, had prepared scaled site plan. 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. Defence version of Balbir Singh, appellant, was as under:- “Sharanjit Kaur and her parents besides her in-laws were my disciples. They used to come and stay at my dera. I performed her marriage as a maternal uncle. After marriage, Sharanjit developed a problem with her husband and in-laws because they suspected her moral character because letter of a driver had been found in her purse. Sharanjit Kaur had filed a complaint (Ex.DA) against her husband and in-laws levelling serious allegations of dowry demand and cruelty. They were summoned to the police station and were humiliated. However, the matter was compromised and Sharanjit Kaur returned to her matrimonial home. Her husband and in-laws suspected that I Crl.Appeal No. 678-SB of 2002 7 was the moving force behind filing of complaint (Ex.DA) by Sharanjit Kaur against them and responsible for their false implication. Husband and his relations started pressurising Sharanjit Kaur to involve me in some false case, as a result of vengeance but she refused. As a result, she was turned out of matrimonial home. Sharanjit Kaur came to my dera on 21.3.2000 in my absence and stayed there till 23.3.2K till morning hours. On my return to dera in the morning, I asked her to leave my dera and she left against her wishes. Sharanjit Kaur finding no other alternative returned to her matrimonial home and succumbed to their pressure to falsely implicate me. On 24.3.2000 ASI Waryam Singh came to my dera and informed me regarding the ill design of husband and in-laws of Sharanjit Kaur to falsely implicate me in some false criminal case. He cheated me of Rs.25,000/- in the name of DSP. The amount of Rs.20,000/- was withdrawn from the bank through Amarjit Singh. On 25.3.2000, I went to P.S. Focal Point, Ludhiana, as directed by ASI Waryam Singh where I was illegally detained and later on falsely implicated. ASI Waryam Singh had not paid the money to DSP. I had a quarrel with ASI Waryam Singh on that score. My gold kantha and gold bracelet were also misappropriated by ASI Waryam Singh. My father had moved applications against conduct of ASI Waryam Singh. I am innocent.” Opportunity was given to lead defence, but no defence was led. After hearing learned PP for the State, learned defence counsel Crl.Appeal No. 678-SB of 2002 8 for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on the file. Learned defence counsel for the appellant argued that the prosecutrix was 19 years’ old and was married with Kamaljit Singh. Marriage was solemnized on 19.2.1999 but she was not having cordial relations with her in-laws. Complaint dated 28.10.1999 (Ex.DA) was sent to the SSP by levelling allegation that she was harassed for want of dowry. She was given beatings. At one time, an attempt was made to set her on fire. Dowry articles shown in Ex.DA/1 were given at the time of marriage. Prosecutrix has also filed private complaint (Ex.DX) dated 3.3.2000 against the appellant, her father, mother and grand mother. After the registration of FIR, only the appellant was challaned. Later on, father, mother and grand mother of the prosecutrix were summoned under Section 319 Cr.P.C., but ultimately they were acquitted of the charge levelled against them. Father-in-law of the prosecutrix appeared as PW. In-laws of the prosecutrix were of the view that complaint against them (Ex.DA) was filed at the instance of the appellant. After compromise, appellant was named by the prosecutrix at the instance of her in-laws. Bald statement of the prosecutrix is sufficient to convict the appellant but statement should inspire confidence. Statement should be corroborated with some independent evidence. First allegation of the prosecutrix was that on the day of occurrence, her husband was at his shop. She was having menstrual problem and was getting treatment from the nurses. Second allegation of the prosecutrix was that in the month of October, 1999, prosecutrix with her Crl.Appeal No. 678-SB of 2002 9 father had gone to the dera of the appellant to get medicine. Second time in the month of February, 2000, she along with her husband had gone to the dera of the appellant and brought medicine. On 23.3.2000, at the house of Nihal Singh, telephone call was received at the instance of the appellant. Nihal Singh had summoned the prosecutrix to his house and telephone was attended by the prosecutrix. After that, prosecutrix on telephone summoned her father and with her father, she had gone to Dhandari Phatak. From Dhandari Phatak, prosecutrix along with her father on the motor cycle of appellant had gone to the dera, where she was raped against her wish by the appellant. At the time of rape, father of the prosecutrix was sitting outside the room in the dera. After rape, prosecutrix along with her father came back to her in-laws house. But at the time of rape or after that, prosecutrix did not inform anyone. According to story, husband of the prosecutrix had gone to Delhi and when he came back on 25.3.2000, then incident was brought to his notice. Then prosecutrix with her husband had gone to lodge report and had met the police party near Yard Chowk, Focal Point, Ludhiana, at 8.30 PM. Prosecutrix appeared in Court and supported the prosecution story but question is whether statement of the prosecutrix inspires confidence. No reason why husband of the prosecutrix failed to appear in Court to state that on 23.3.2000, he was not present at his shop from 9.00 AM to 10.00 PM and after that, he had gone to Delhi and remained in Delhi upto 25.3.2000. On 25.3.2000, prosecutrix had brought to his notice about the present occurrence. Then he along with the prosecutrix had gone to lodge report. There were number of telephones at the dera of the appellant and at the shop and residence of the prosecutrix but no proof regarding telephone calls. Prosecution should have produced Crl.Appeal No. 678-SB of 2002 10 documentary evidence that there was a telephone at the house of Nihal Singh and at about 10/11.00 AM, there was a telephone call from the side of the appellant, standing near Dhandari Phatak. When there was a telephone at the house of the prosecutrix, then there was no idea to telephone at the house of Nihal Singh. Appellant could telephone the prosecutrix at her residence. Suppose there was a telephone at the house of Nihal Singh, then question is whether the prosecutrix had telephoned her father to visit Dhandari Phatak. No record on the file that from the house of the prosecutrix, there was a telephone at the house of her parents at about 10/11.00 AM on 23.3.2000. Ex.PF is the statement of the prosecutrix and after recording statement (Ex.PF), there is endorsement (Ex.PF/1). According to endorsement, only the prosecutrix had met the police party. She was not accompanied by her husband. No evidence on the file for what purpose, husband of the prosecutrix had stayed in Delhi for two days. If husband of the prosecutrix on 23.3.2000 had gone to Delhi and came back only on 25.3.2000, then he should appear in Court and state on oath that in the morning of 23.3.2000, he had gone to his shop and from the shop, he had directly gone to Delhi and on 25.3.2000 when came back, then his wife had disclosed about the incident. After that, he along with his wife had gone to lodge report and police party had met them near Yard Chowk, Focal Point, Ludhiana. In case the prosecutrix received telephone from the appellant on 23.3.2000, then she could easily summon her husband from the shop. In cross-examination, prosecutrix admitted that her mother had close relations with the appellant. Sometimes, her mother continuously stayed for 10 days at the dera of the appellant. After the FIR, her father, mother and grand mother requested her not to pursue the case because they will get Crl.Appeal No. 678-SB of 2002 11 Rs.10.00 lacs for her from the appellant. Prosecutrix admitted that qua the same occurrence, private complaint was filed and she was medico legally examined on 27.3.2000. In case, prosecutrix was raped on 23.3.2000, then on the same day, she should have reported the matter to the police because her father was with her. If due to some reason, prosecutrix was not in a position to report the matter to the police on 23.3.2000, then on 25.3.2000, prosecutrix should have been medico legally examined by the doctor, but no explanation why on 25.3.2000 or 26.3.2000, prosecutrix was not medico legally examined. Prosecutrix had matrimonial dispute with her in-laws and in-laws were suspecting that complaint was filed at the instance of the appellant. At the time of filing complaint (Ex.DA), prosecutrix was residing with her parents. Prosecutrix admitted that she had filed complaint (Ex.DA) against her in-laws then stated that complaint was false. If prosecutrix can file false complaint against her in-laws, then she can also depose falsely against the appellant. So, without independent corroboration, not safe to base the conviction on the statement of the prosecutrix. Learned counsel for the appellant cited the following authorities:- “1. AIR 1973 (SC) 501, Thulia Kali vs. State of T.N., 2. 2002(2) AICLR 521, Sk. Mostakim @ Sk. Ganga @ Amit Roy vs. State of W.B., 3. 2004(4) RCR (Crl.) 1005, Mohinder Singh vs. State of Haryana, 4. 2006 Crl.L.J. 3276, Gabbu vs. State of M.P., 5. 2009(1) RCR (Crl.) 310, Rajoo & others vs. State of M.P., and 6. 2009(3) AICLR 48, Vir Singh and others vs. State of Haryana.” Learned State counsel argued that prosecutrix was a married lady and she was not to get anything to name the appellant. If appellant was Crl.Appeal No. 678-SB of 2002 12 to be named, then it was very easy for the prosecutrix to level allegation that some house-hold articles were stolen or she was abused. When reputation of the prosecutrix was at stake, then there was no idea to level false allegation. Father of the prosecutrix was not examined because he was one of the accused. Father-in-law of the prosecutrix while appearing in Court, then supported her version. Hymen was found torn and healed. No reason to disbelieve the prosecutrix when she had no previous enmity with the appellant. Admitted position that the prosecutrix, aged about 19 years, was married with Kamaljit Singh on 19.2.1999. This fact is an admitted one that prosecutrix had filed complaint dated 28.10.1999 (Ex.DA) against her in- laws. Allegation of the prosecutrix was that she was harassed for want of dowry and was given beatings. At one stage, her in-laws made an effort to set her on fire. Dowry articles shown in the list (Ex.DA/1) were given by her parents. In view of complaint, in-laws of the prosecutrix were summoned by the police. Then there was a compromise. Regarding the present occurrence, prosecutrix had filed private complaint (Ex.DX) dated 3.3.2000. Complaint was against the appellant, her father Narinder Singh, mother Karamjit Kaur and grand mother Joginder Kaur. In the complaint dated 3.3.2000, there is a reference of occurrence dated 23.3.2000. Prosecutrix in her statement (Ex.PF) dated 25.3.2000 recorded at 8.30 PM by SI Waryam Singh stated that her husband was carrying on the business of denting and painting and he used to go to his shop at 9.00 AM and return at 10.00 PM in routine. She was having menstrual problem and was getting treatment from the nurses. This fact was brought to the notice of her parents. Then on the request of her parents, in Crl.Appeal No. 678-SB of 2002 13 the month of October, 1999, she along with her father had gone to the dera of the appellant and brought medicine. Next allegation of the prosecutrix was that again in the month of February, 2000, she along with her husband had gone to the dera of the appellant and brought medicine. On 23.3.2000, there was a telephone from the side of the appellant at the house of Nihal Singh, neighbour. On the request of Nihal Singh, telephone was attended by the prosecutrix and on the request of the appellant, after summoning her father, prosecutrix along with her father had gone to Dhandari Phatak because appellant was saying that he has prepared a special medicine for her and medicine was lying at his dera. Request was to collect the same immediately. As per request of the appellant, prosecutrix along with her father had gone to Dhandari Phatak. Appellant was standing there with his motor cycle. On the motor cycle of the appellant, prosecutrix along with her father had gone to the dera of the appellant. Father had stayed outside the room in the dera, whereas prosecutrix had gone inside the room as per request of the appellant and in the room, prosecutrix was raped against her wish. After rape, prosecutrix along with her father came back to her in-laws house. Narinder Singh by leaving the prosecutrix at her in-laws house came back to his house. Her husband was away to Delhi and came back on 25.3.2000. On 25.3.2000, incident was brought to the notice of Kamaljit Singh. Then prosecutrix along with her husband had gone to lodge report and near Yard Chowk, Focal Point, Ludhiana, statement of the prosecutrix (Ex.PF) was recorded. Now the Court is to see whether statement of the prosecutrix (Ex.PF) inspires confidence. Whether without independent corroboration, safe to base the conviction on the bald statement of the prosecutrix. Crl.Appeal No. 678-SB of 2002 14 In Rajoo @ others' case (supra), it was held by Hon'ble Supreme Court that statement of prosecutrix should not be taken as gospel truth because she is an injured witness. In Thulia Kali's case (supra), delay in giving information-On account of delay, FIR not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation- Delay should be satisfactorily explained- Non production of material witness by prosecution-Adverse inference is to be drawn. In the present case also, occurrence is dated 23.3.2000, whereas report was lodged on 25.3.2000. Husband of the prosecutrix not examined by the prosecution without any reason. Firstly, Kamaljit Singh was not examined for the reasons best known to the prosecution. Kamaljit Singh was to state whether he was carrying on the business of denting and painting, whether on 23.3.2000 at about 9.00 AM, he had gone to his shop and was not in the house, whether from the shop, he had directly gone to Delhi and came back on 25.3.2000, and lastly, whether on 25.3.2000, prosecutrix had disclosed about the incident and after that, he along with the prosecutrix had gone to lodge report. According to the prosecutrix, on 25.3.2000, she along with her husband had gone to lodge report but this fact is not correct one. Ex.PF/1 is the endorsement. Ex.PF and Ex.PF/1 no where show that Kamaljit Singh was with the prosecutrix when Ex.PF was recorded. No nurse was examined by the prosecution to state that prosecutrix remained under her treatment due to menstrual problem. Evidence on the file shows that there were 2-3 telephones at the Crl.Appeal No. 678-SB of 2002 15 dera of the appellant and 2-3 telephones at the shop and residence of the prosecutrix. When there