Jarnail Singh vs State Of Haryana

1. The factual position on which the prosecution version is founded, commences with the passing of information by Savitri Devi (the mother of the prosecutrix VW - PW6), to her husband Jagdish Chander-PW8, on 26.3.1993, at about 6 am. She informed her husband, that the prosecutrix VW - PW6 was missing from their residence. In this behalf it would be pertinent to mention, that on 25.3.1993 at about 10 pm, Jagdish Chander went to sleep in the “baithak” (drawing room) of their residence. Savitri Devi, the mother of the prosecutrix VW - PW6, along with the prosecutrix VW

- PW6, and the other children (comprising of three sons, the prosecutrix VW – PW6 and one other daughter), went to sleep in the other rooms of the house. Savitri Devi, told her husband, that she suspected the accused- appellant Jarnail Singh, may be responsible for having taken away their daughter.

2. Jagdish Chander-PW8, commenced to search for his daughter. During the course of the aforesaid search, the accused-appellant Jarnail Singh, who had his residence in the neighbourhood (of Jagdish Chander-PW8), was also found missing from his residence. The search for the prosecutrix VW - PW6 by her father, proved futile. It is therefore, that Jagdish Chander- PW8, made a complaint Exhibit PO on 27.3.1993 to the Sub-Inspector Incharge, Police Post, Jathlana. In his complaint, he described VW - PW6, as the elder of his two daughters. He gave out her age as about 16 years. He also alleged, that his daughter VW - PW6 had gone missing from their residence in the night intervening 25th and 26th March, 1993. He also alleged, that an amount of Rs.3,000/- was missing from his house, which he assumed may have been taken away by his daughter VW - PW6, while leaving the house. In the complaint Exhibit PO, the needle of suspicion was pointed at the accused-appellant Jarnail Singh.

3. After the registration of the complaint of Jagdish Chander-PW8, the prosecutrix VW - PW6 was recovered on 29.3.1983, from the custody of the accused-appellant Jarnail Singh, from the house of Shashi Bhan at Raipur in district Haridwar. The accused-appellant simultaneously came to be arrested, on 29.3.1993.

4. The statement of the prosecutrix VW - PW6 was got recorded under Section 164 of the Code of Criminal Procedure before O.P. Verma, Judicial Magistrate First Class, Jagadhri on 6.4.1993. It is necessary in the facts and circumstances of this case to extract herein her short statement recorded under Section 164 of the Code of Criminal Procedure, which is being reproduced hereunder:

5. On completion of investigation, a challan was presented under Sections 366, 376 and 120 of the Indian Penal Code. The matter was committed to the Court of Sessions, Jagadhri, whereupon, it was marked to the Additional Sessions Judge, Jagadhri. The Additional Sessions Judge, Jagadhri framed charges on 20.12.1993. The accused-appellant pleaded not guilty, and claimed trial.

6. In order to bring home the charges levelled against the accused- appellant, the prosecution examined 9 witnesses. Thereafter, the prosecution evidence was closed. The statement of the accused-appellant Jarnail Singh, was then recorded under Section 313 of the Code of Criminal Procedure. He denied the allegations levelled against him, and pleaded false implication. Despite opportunity having been afforded to him, the accused-appellant did not lead any evidence, in his defence.

7. It is necessary to record, that on the culmination of the trial, the Additional Sessions Judge, Jagadhri arrived at the conclusion, that the prosecution had been able to bring home the guilt of the accused-appellant beyond any shadow of reasonable doubt, under Sections 366, 376(g) and 120-B of the Indian Penal Code. The accused-appellant Jarnail Singh was accordingly held guilty of the charges levelled against him. The Additional Sessions Judge, Jagadhri gave an opportunity of hearing to the accused-appellant Jarnail Singh on the question of sentence. Thereupon, for the offence under Section 376(g) of the Indian Penal Code the accused- appellant was awarded rigorous imprisonment for 10 years, he was also required to pay a fine of Rs.200/- (in case of default in payment of fine, the accused-appellant was to undergo further rigorous imprisonment for 3 months). For the offence under Section 366 of the Indian Penal Code, the accused-appellant was awarded rigorous imprisonment for 7 years, and was required to pay a fine of Rs.150/- (in case of default in payment of fine, the accused-appellant was to undergo further rigorous imprisonment for 3 months). And for the offence under Section 120-B of the Indian Penal Code, the accused-appellant was awarded rigorous imprisonment for 7 years, and was required to pay a fine of Rs.150/- (in case of default in payment of fine, the accused-appellant was to undergo further rigorous imprisonment for 3 months). The aforesaid sentences were ordered to run concurrently.

8. Dissatisfied with the judgment dated 14.3.1995, rendered by the trial Court, the accused-appellant Jarnail Singh preferred Criminal Appeal no. 247-SB of 1995 before the Punjab & Haryana High Court at Chandigarh (hereinafter referred to as, the High Court). The High Court dismissed the appeal preferred by the accused-appellant on 4.11.2008. The judgment of conviction dated 14.3.1995 and the order of sentence dated 15.3.1995 (rendered by the trial Court i.e., the Additional Sessions Judge, Jagadhri) were upheld.

9. Dissatisfied with the judgment of the trial Court dated 14.3.1995 and that of the appellate Court dated 4.11.2008, the accused-appellant Jarnail Singh approached this Court. On 7.7.2010, this Court granted leave, in the Petition for Special Leave to Appeal (Crl.) no. 7836 of 2009, filed by the accused-appellant. Having traversed the aforesaid course, the instant criminal appeal has finally been placed before us, for adjudication.

(iii) The prosecution then examined Moti Ram as PW3. Moti Ram testified, that he was present when the prosecutrix VW - PW6, was recovered whilst in custody of the accused-appellant, from the house of Shashi Bhan at Raipur, in district Haridwar. Moti Ram also affirmed the presence of Om Prakash, Jagmal and Sumer Chand, along with the police party, at the time of recovery of the prosecutrix VW - PW6, on 29.3.1993. Moti Ram had identified the prosecutrix VW - PW6, at the time of her said recovery.

(v) The prosecutrix appeared as PW6 before the trial Court. She affirmed the factual position expressed by her father Jagdish Chander-PW8 in his complaint dated 27.3.1993 (Exhibit PO). She also reiterated the factual position expressed by her, in her statement, recorded under Section 164 of the Code of Criminal Procedure, on 6.4.1993. In sum and substance she asserted, that she had studied upto class 3 at the Government High School, Jathlana, whereafter, she started to do household work at home. On 25.3.1993 at about 11 pm, she had gone out of her house to urinate in the street. The accused-appellant Jarnail Singh and three other persons had caught hold of her, and had taken her in a tanker towards Raipur side in Uttar Pradesh. The accused- appellant Jarnail Singh and his three accomplices, had then raped her in a small room. She also testified, that she had been recovered by the police from Raipur, and at the time of her recovery, Moti Ram-PW3 and her uncle Omilal (Om Prakash) and Jagmal were present with the police party. Thereafter, she claims to have been brought to police post Jathlana, and was got medico-legally examined by a lady doctor at Civil Hospital, Radaur. Since the prosecutrix VW - PW6, was not disclosing the entire factual position, and seemed to be changing the version of her statement recorded under Section 164 of the Code of Criminal Procedure, the Public Prosecutor sought permission to cross-examine her. Consequent upon being permitted to cross- examine the prosecutrix VW - PW6, she affirmed, that the accused- appellant had been alluring her for marriage, with the promise of giving her ornaments and clothes, and a further commitment to move her to the city, after their marriage. During these allurements, the accused-appellant Jarnail Singh used to also impress upon her, that her parents were poor and would marry her to some poor person, who would never be able to provide her such facilities. During her cross-examination, she expressly denied the suggestion, that she herself had allured the accused- appellant Jarnail Singh, to take her away, in order to marry him.

15. In so far as the issue of having gone with the accused-appellant Jarnail Singh of her own free will, and of having had sexual intercourse with him consensually, it is necessary only to examine the uncontested deposition of the prosecutrix VW - PW6. In this behalf, it may be pointed out, that in her statement recorded under Section 164 of the Code of Criminal Procedure before the Judicial Magistrate, First Class, Jagadhari on 6.4.1993, the prosecutrix VW – PW6 had expressly asserted, that she was forcibly taken away on 25.3.1993, when she had gone out of her house to urinate in the street, by Jarnail Singh and his three accomplices. She had clearly and categorically testified, that all the four had caught hold of her. They had made her inhale something, which rendered her unconscious. She had further stated, that the accused-appellant Jarnail Singh and his accomplices, had then taken her to some unknown place in Uttar Pradesh in a vehicle where Jarnail Singh forcibly attempted to commit intercourse with her. At that juncture, she had slapped Jarnail Singh on his face, but in order to subjugate her, he had put a cloth in her mouth to prevent her from raising an alarm. Thereafter, the accused-appellant Jarnail Singh and his accomplices had committed forcible intercourse with her, one after the other. In her statement before the Trial Court, where she appeared as PW6, she had reiterated clearly the position of having been taken away by the accused-appellant Jarnail Singh, and his three accomplices. She affirmed, that she was taken away in a tanker to Uttar Pradesh and then all the accused had committed rape on her in a small room. On the aforestated aspect of the matter, she was not subjected to cross-examination at the behest of the accused. Only a suggestion was put to her, that she had persuaded the accused-appellant Jarnail Singh to take her away, in order to perform marriage with her, and for the said purpose had taken away cash, clothes and jewellery from her own residence. The aforestated suggestion was denied by the prosecutrix VW - PW6. Keeping in view the statement of the prosecutrix VW - PW6 under Section 164 of the code of Criminal procedure before the Judicial Magistrate, First Class, Jagadhri, as also, the statement made by her while appearing before the trial court, and the manner in which she was subjected to cross-examination, there is no room for any doubt, that the prosecutrix was forcefully taken away, and that, she was subjected to rape at the hands of the accused-appellant Jarnail Singh and his three accomplices. It may still have been understandable, if the case had been, that she had consensual sex with the accused-appellant alone. But consensual sex with four boys at the same time, is just not comprehensible. Since the fact, that the accused-appellate Jarnail Singh and the prosecutrix VW – PW6 had eloped together is not disputed. And furthermore, since the accused-appellant having had sexual intercourse with the prosecutrix is also the disputed. It is just not possible to accept the proposition canvassed on behalf of the accused-appellant. We, therefore, find no merit in the instant submission.

16. The contention advanced at the hands of the learned counsel for the accused-appellant Jarnail Singh, that while leaving her house on 25.3.1993, the prosecutrix VW – PW6, had taken away a sum of Rs.3,000/-, needs a holistic examination. Whilst it is true that in the complaint, Jagdish Chandra (PW8), the father of the prosecutrix VW - PW6, had categorically mentioned that a sum of Rs.3,000/- was missing from his residence, and the said fact was duly mentioned in his complaint to the police dated 27.3.1993, yet he had not accuse the prosecutrix VW - PW6 for having taken it away. The instant aspect, in our considered view pales into insignificance, on account of the statement made by Jagdish Chandra (PW8) before the Trial Court. During the course of his deposition before the Trial Court, he had asserted, that he had mentioned that a sum of Rs.3,000/- was missing from his residence, but his wife Savitri Devi had found the aforesaid money from the residence itself, a few days later. Accordingly, the assertion made by the learned counsel representing the accused- appellant to the effect that the prosecutrix VW - PW6 had taken away a sum of Rs.3,000/-, when she left the house of her father on 25.3.1993, cannot be stated to have been duly proved. Besides the aforesaid, it is apparent from the cross-examination of the prosecutrix VW - PW6, that a suggestion was put to her that besides cash, she had taken away clothes and jewellery at the time of leaving her father’s house on 25.3.1993. The prosecutrix VW

24. We have given our thoughtful consideration to the above noted submission, advanced at the hands of the learned counsel for the appellant. We, however, find no merit therein. It is not as if the prosecution version is entirely based on the statement of the prosecutrix VW - PW6. It would be relevant to mention, that her recovery from the custody of the accused-appellant Jarnail Singh from the house of Shashi Bhan, at Raipur, is sought to be established from the statement of Moti Ram-PW3. There can therefore be no room for any doubt, that after she was found missing from her father’s residence on 25.3.1993, and after her father Jagdish Chandra- PW8 had made a complaint to the police on 27.3.1993, she was recovered from the custody of the accused-appellant Jarnail Singh. Thereafter, the prosecutrix VW - PW6 was subjected to medico-legal examination by Dr. Kanta Dhankar-PW1 on 29.3.1993 itself at 3.00 p.m. Dr. Kanta Dhankar-PW1, in her independent testimony, affirmed that she had been subjected to sexual intercourse, inasmuch as her hymen was found ruptured. Even though the visual examination of the prosecutrix VW – PW6, during the course of her medico-legal examination did not reveal the presence of semen or blood, yet the report of the forensic science laboratory (Exhibit PL) and of the Serologist (Exhibit PL/1) clearly establish the presence of semen on her salwar, underwear and pubic hair. The serologist’s report also disclose, medium and small blood stains on her “salwar”. In her own deposition, she had mentioned that, when she was raped by the accused-appellant Jarnail Singh and his accomplices, bleeding had taken place and she had felt pain, and her clothes were stained with blood. Her deposition stands scientifically substantiated by Exhibits PL and PL/1. The suggestion put to the prosecutrix VW – PW6 at the behest of the accused-appellant Jarnail Singh, during the course of her cross-examination, that she had accompanied the accused-appellant Jarnail Singh, of her own free will and had had sexual intercourse with him consensually, leaves no room for any doubt, that she was in his company, and that, he had had sexual intercourse with her. The assertion that the prosecutrix VW – PW6 had accompanied the accused-appellant Jarnail Singh, and had had sexual intercourse with him consensually is completely ruled out, because as per the substantiated prosecution version, the prosecutrix VW - PW6 was not taken away by the accused-appellant Jarnail Singh alone, but also, by his three accomplices. All the four of them had similarly violated her person. Additionally, in her statement under Section 164 of the Code of Criminal procedure, the prosecutrix VW - PW6 had asserted, that in the first instance, after having caught hold of her, the accused had made her inhale something from a cloth which had made her unconscious. Thereafter, when the accused-appellant Jarnail Singh attempted to commit intercourse with her, she had slapped him. He had then put a cloth in her mouth, to stop her from raising an alarm. Thereafter, each one of the accomplices had committed forcible intercourse with her in turns. The factum of commission of forcible intercourse by the accused-appellant, as also, his accomplices was reiterated by her during her testimony before the Trial Court as PW6. Besides the aforesaid, there is a statement of her own father, Jagdish Chandra (PW8) who also in material particulars had corroborated the testimony of the prosecutrix VW - PW6. The prosecutrix VW – PW6, was not subjected to cross-examination on any of these issues. Nor was the prosecutrix confronted with either the statements made by her under Section 161 or Section 164 of the Code of Criminal Prosecution, so as to enable her to explain discrepancies, if any. Therefore, we find no merit at all, in the submission advanced by the learned counsel. In the above view of the matter, we are satisfied that there was substantial material corroborating the statement of the prosecutrix VW - PW6, for an unequivocal determination of the guilt of the accused-appellant Jarnail Singh.

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i),

25. No other submission besides those dealt with hereinabove, was advanced at the hands of the learned counsel for the appellant. For the reasons recorded above, we find no merit in the instant appeal and the same is accordingly dismissed.

July 1, 2013.