Criminal Appeal No. 724-SB of 1998 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 724-SB of 1998 DATE OF DECISION: January 27, 2010 Gurmail Singh .....APPELLANT VERSUS State of Punjab and another .....RESPONDENTS CORAM: HON'BLE MR JUSTICE T.P.S.MANN PRESENT: Mr S.S.Rangi, Advocate for the appellant. Mr P.S.Sidhu, Additional Advocate General, Punjab for State-respondent No.1. Mr Y.P.Singla, Advocate for respondent No.2. T.P.S .MANN, J. (Oral): The appellant was tried in a private criminal complaint instituted by respondent No.2 for an offence under Section 376 IPC. The trial Court convicted the appellant for the said offence and sentenced him to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/-. In default of payment of the fine, he was directed to undergo further rigorous imprisonment for six months. Out of the fine, a sum of Rs.4,000/- was ordered to be paid to prosecutrix-respondent No.2 as compensation. Aggrieved of the same, the appellant is before this Court by way of an appeal. In her complaint, respondent No.2 stated that she was resident Criminal Appeal No. 724-SB of 1998 -2- of village Rajpura. Her husband Nazar Singh used to work as Seeri with Gurmail Singh appellant and resided in his outer house. On 6.6.1996, her husband went to work in the Rorrewala field of the appellant. At about 6.00 AM, the appellant told the prosecutrix to bring fodder from the field for the buffaloes. Accordingly, she went to the field situated near the village. The appellant also reached there. When the prosecutrix was cutting the maize crop, the appellant forcibly caught hold of her and threw her there. He forcibly removed her Salwar and against her will, committed rape upon her. While committing rape, the appellant had placed his hand on her mouth. After committing the rape, the appellant left the spot and went away. While leaving, he threatened the prosecutrix that in case she disclosed the said fact to anybody, the consequences would be worst. The prosecutrix then went back to her house. When her husband returned in the evening, she narrated the entire occurrence to him. On the next morning, the prosecutrix and her husband went to village Rajpura, where her husband's parents resided. However, her in-laws were not found present as they had gone out in connection with some domestic work. They returned at about 7.30 PM and were duly apprised of the occurrence by the prosecutrix and her husband. The matter was also reported to the police and consequently, FIR No.42 dated 7.6.1996 was registered at Police Station, Bhadson against the appellant. The prosecutrix was got medically examined on 8.6.1996 by the police and she was assured that the appellant would be arrested and action taken against him. However, the police connived with the appellant and obtained her thumb impressions forcibly on some blank papers. Even her husband was pressurized to give thumb impressions on some blank papers. No action was taken against the accused, for the reasons that he was a rich Criminal Appeal No. 724-SB of 1998 -3- person and had influence over the police, whereas the prosecutrix herself belonged to poor strata of the society. Left with no other option, she filed the complaint. After recording preliminary evidence, learned Judicial Magistrate Ist Class, Nabha vide order dated 7.9.1996 summoned the appellant for offence under Section 376 IPC. Upon appearance of the appellant, the case was committed to the Court of Sessions. Vide order dated 12.8.1997, Additional Sessions Judge, Patiala came to the conclusion that prima facie, a case under Section 376 IPC was made out against the accused. He was charge sheeted, accordingly. On 27.10.1997, Dr Pamela Berry, Medical Officer, Civil Hospital, Nabha was examined by the prosecution as PW-1, who stated about the medical examination of the prosecutrix. On the same day, the accused moved an application under Section 210 Cr.P.C with the plea that the un-traced report submitted by the police in the case arising out of the aforementioned FIR was not accepted by learned Judicial Magistrate Ist Class, Nabha and the said case also stood committed and, therefore, both the cases be tried together. The application was accepted vide order dated 27.10.1997 and both the cases were clubbed for joint trial. The prosecution, thereafter, examined four more witnesses, i.e. the prosecutrix herself as PW-2, her husband Nazar Singh @ Nazar Khan as PW-3, C.Manjit Singh as PW-4 and H.C Tej Singh as PW-5. When the accused was examined under Section 313 Cr.P.C, he denied the prosecution allegations against him. He stated that as he had a dispute with Nazar Singh @ Nazar Khan regarding his not returning a sum of Rs.36,000/- advanced by him, he was falsely implicated in the case and Criminal Appeal No. 724-SB of 1998 -4- the prosecution witnesses had deposed falsely against him. In defence, the accused examined DW-1 Sh. Malkiat Singh Sidhu, Advocate, DW-2 Jatinder Singh, Tehsildar and DW-3 Pushpinder Pal Singh, D.S.P. After hearing learned counsel for the parties and going through the evidence on record, the trial Court came to the conclusion that the statement of the prosecutrix was quite reliable and trustworthy. It inspired confidence of the Court. Her testimony was corroborated by her husband Nazar Singh PW-3 as well as medical evidence, which was available on the record by way of statement made by PW-1 Dr Pamela Berry. The delay of 40 hours in lodging of the FIR with the police stood clearly explained. The defence version was rejected on the ground that the conduct of all the defence witnesses showed that they fell prey to the designs and motive of the appellant. Accordingly, the appellant was convicted and sentenced, as mentioned above. During pendency of the appeal, the appellant filed an application with a prayer for disposal of the appeal in terms of compromise deed dated 18.10.2008. When the same came up for hearing on 4.11.2008, learned counsel for the appellant stated that it be taken up for hearing with the appeal. Accordingly, the Court directed the listing of the main appeal for actual hearing. On 12.1.2010, when the appeal was taken up for final hearing, learned counsel for the appellant and respondent No.2 once again informed the Court that the matter stood amicably resolved. They prayed for a short adjournment for appearance of their clients so as to make necessary statements. Pursuant thereto, the prosecutrix has come present today and made statement that at the intervention of the respectables and keeping in view the fact that the appellant is 76½ years of age, having sons and grand Criminal Appeal No. 724-SB of 1998 -5- sons, whereas she is also having children, a compromise has been arrived at between her and the appellant. While entering into such a compromise, she has not been put under any fear or pressure from anyone and with her own free will and consent, she agreed to the compromise. She has also produced fresh compromise deed dated 20.1.2010 and confirms the fact that it bears her right thumb impression, besides it being witnessed by Sarpanch of Gram Panchayat, Rajpura, Sarpanch of Gram Panchayat, Jatiwal, Lambardars of Jatiwal and Warre villages and seven others, including her husband Nazar Singh. Accordingly, the compromise deed dated 20.1.2010 is taken on record as mark 'A'. In view of the fact that the prosecutrix and the appellant have entered into a compromise and the said compromise deed has been brought on record as mark 'A', this Court finds it unnecessary to go into the merits of the case. Instead, the question which requires consideration is as to what benefit can be given to the appellant in view of the aforementioned compromise. The offence of rape punishable under Section 376 IPC is non compoundable, even with the permission of the Court. Any one found liable for committing the offence of rape is required to undergo the minimum sentence of seven years under Section 376 (1) IPC. However, proviso to Section 376 (1) states that the Court may, for adequate and special reasons to be so incorporated in the judgment, impose a sentence of imprisonment for a term of less than seven years. In Sukhwinder Singh vs State of Punjab, (2000) 9 Supreme Court Cases 204, a three Judge Bench of the Hon'ble Supreme Court observed that the prosecutrix having got married and she did not want the Criminal Appeal No. 724-SB of 1998 -6- matter to be carried any further so as to lead a happy and healthy married life with her husband, and, therefore, filed the compromise petition to that effect, was an adequate and special reason to invoke the proviso to Section 376 (1) IPC. The Bench then went on to maintain the conviction of the appellant therein, but reduced the sentence of imprisonment to the period already undergone by him, considering that such a course was in the interest of the prosecutrix herself. Similarly, in Sunder vs State of Haryana, 2005 (3) R.C.R. (Criminal) 910, while taking into consideration the facts that the occurrence had taken place in the year 1990 when the prosecutrix was little below 15 years of age, whereas the appellant was also below 21 years of age, but the prosecutrix had got herself married in the year 1992 and became mother of two daughters and a son and similarly, the appellant had also got himself married and was father of three children, the Court was of the opinion that the matter be given a quietus, more so when the parties had entered into a compromise. Accordingly, sentence of the imprisonment imposed upon the appellant therein was reduced to that already undergone by him. Again, in Ravinder alias Binder vs State of Haryana, 2005 (2) R.C.R. (Criminal) 143, where both the convict and the prosecutrix had settled in their own lives and compromise stood arrived at between them, it was considered as a mitigating circumstance so as to reduce the sentence of the imprisonment to that already undergone. In the present case also the occurrence had taken place in June 1996. In the impugned judgment of conviction and sentence passed by the trial Court on 17.9.1998, the appellant was mentioned as 65 years of age. A period of more than 11 years has elapsed since then. The prosecutrix was Criminal Appeal No. 724-SB of 1998 -7- a married lady and had given her age as 20 years, when she made statement before the police on 7.6.1996, on the basis of which FIR No.42 dated 7.6.1996 was registered at Police Station, Bhadson. The appellant is stated to be having sons and grand sons. Similarly, the prosecutrix is also having children. Both the appellant and the prosecutrix have entered into compromise and resolved to live in peace and amity in the village. Apart from placing on record compromise deed dated 21.1.2010, the prosecutrix has appeared in person before this Court today and made statement on similar lines. The compromise deed stands witnessed by the respectables of the area. Even her husband Nazar Singh has signed the same. In the peculiar facts and circumstances of the case, as mentioned above, the matter deserves to be given a quietus. Therefore, the conviction of the appellant for the offence under Section 376 IPC is maintained. However, his sentence of imprisonment is reduced to that already undergone by him. The sentence of fine alongwith its default clause is maintained,. The appellant is on bail. His bail bonds shall stand discharged. The appeal is, accordingly, disposed of. January 27, 2010 (T.P.S.MANN) Pds JUDGE Whether to be referred to Reporter: Yes/No Criminal Appeal No. 724-SB of 1998 -8-