Punjab-Haryana High Court
Sharanjit Singh Alias Sahib Singh vs State Of Punjab on 6 January, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Criminal Appeal No. 467-SB of 1997 1
In the High Court of Punjab and Haryana, at Chandigarh.
Criminal Appeal No. 467-SB of 1997
Date of Decision: 6.1.2010
Sharanjit Singh alias Sahib Singh
...Appellant
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.
Present: Mr. K.L. Chaudhary, Advocate
for the appellant.
Mr. Sudhir Nehra, Additional Advocate
General, Punjab, for the respondent.
Kanwaljit Singh Ahluwalia, J.
The instant appeal has been filed by Sharanjit Singh alias Sahib Singh son of Mukhtiar Singh, resident of village Jodhe, District Amritsar. He was convicted by Additional Sessions Judge, Amritsar, for offence under Sections 376 read with Section 511 IPC, 354 and 506 IPC. He was sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.2,000/-, in default thereof to further undergo rigorous imprisonment for six months under Section 376/511 IPC. He was further sentenced to undergo rigorous imprisonment for one year under Section 354 IPC. He was also sentenced to undergo rigorous imprisonment for one year under Section 506 IPC. All the substantive sentences were ordered to run concurrently.
Criminal Appeal No. 467-SB of 1997 2
Pargat Singh, co-accused of the appellant was acquitted of the offences with which he was charged.
The present appellant Sharanjit Singh along with his c- accused was named in case FIR No. 71 dated 21.9.1995 registered at Police Station Beas, under Sections 376, 511, 354, 506 and 34 IPC.
Brief facts of the case can be gathered from the statement made by prosecutrix on 18.9.1995 at 9.15 P.M. before Kulwant Singh, Assistant Sub Inspector, of Police Station Beas. Prosecutrix aged 14 years along with her mother, Nazar Singh, Member Panchayat and Mangal Singh appeared in the Police Station. In her statement got recorded at Police Station, prosecutrix stated that she is a resident of village Jodhe. They were four sisters and two brothers. Brothers and two sisters were elder to her. She was student of seventh class in Government High School. She along with her sisters and parents had gone to the fields to collect maize. She was asked by her father to go to village and bring tea. She alone proceeded towards village. At ;about 12.00 noon when she reached near the house of present appellant, he was standing outside his house along with his servant Pargat Singh. Sahib Singh, appellant, caught hold of her and took her in the room inside his house. Pargat Singh closed the door from outside. Sahib Singh laid her on the bed. Prosecutrix raised noise to get herself released. Sahib Singh took off her salwar by force and also undressed himself. He lifted the legs of prosecutrix upwards when she became unconscious. When she became conscious, Sahib Singh asked her to wear the salwar and go away. The accused also left a threat that she need not disclose anything to anybody otherwise he would shoot her. Criminal Appeal No. 467-SB of 1997 3 The entire incident was narrated by the prosecutrix to her parents after coming to the fields.
The prosecutrix was got medicolegally examined. On 21.9.1995, case was registered under Sections 354, 506 and 34 IPC. Subsequently, offence under Sections 376 and 511 IPC was also added.
The above said FIR was investigated. A report under Section 173 Cr.P.C. was submitted. The present appellant along with Pargat Singh was charged, on 15.5.1996 by the Additional Sessions Judge, Amritsar for offence under Sections 354 read with Section 34 IPC, 376 read with Section 511 IPC and Section 506 IPC. Acquitted co-accused was charged for offence under Sections 354 read with Section 34 IPC and 376/511 read with Section 34 IPC.
The accused pleaded not guilty and claimed trial. Subsequently, statement of prosecutrix was recorded on 18.7.1996 and an application was filed by the Additional Public Prosecutor for amendment of charge.
On 5.8.1996, charge was amended and the present appellant was charged for offence under Section 354 IPC, 376 and 506 IPC, whereas his co-accused Pargat Singh was charged for offence under Section 354 read with Section 34 IPC. After amendment of the charge, statement of prosecutrix was again recorded.
It will be necessary to briefly notice deposition of the witnesses examined by the prosecution.
Dr. Amritpal Kaur, Senior Medical Officer, Civil Hospital, Amritsar, appeared as PW.1. She stated that on 18.9.1995 she was posted as Senior Medical Officer, Civil Hospital, Amritsar. Police Criminal Appeal No. 467-SB of 1997 4 presented an application Ex.PA and she was directed by the Assistant Civil Surgeon to conduct the medicolegal examination of prosecutrix. On 18.9.1995 at about 4.30 P.M., on examination of the prosecutrix, she observed as under:-
"1) She appeared above 15 years number of teeth was
28. X-ray long bones was advised for ascertaining age.
2) Breast and pubic hair development was normal.
3) Underclothes were not available.
4) No signs of violence nor foreign hair were found
anywhere on the body.
5) Vulva was normal looking. No tar or laceration
anywhere was found. Hymen ring was intact without any fresh laceration or tear, with intact central opening. Elastic hymen right just admitted tip of finger. 2 vaginal swabs were taken first from outside hymen and second just from inside the hymen and were sent to the chemical examiner for evidence of semen. There was no bleeding P/V LMP was one month back".
In cross-examination, she stated that as stated by the prosecutrix, she recorded her age in the medicolegal report as 14 years. However, x-ray report was never received by her later.
Prosecutrix , also numbered as PW.1, stated her age as 14 years and further deposed that she has got one brother and three sisters. All siblings were elder to her except one sister. On 17.9.1995, Criminal Appeal No. 467-SB of 1997 5 she was studying in seventh class. On that date being Sunday, her School was closed. She had gone to fields along her parents and sister Baljinder Kaur. She was directed by her father to bring tea. When she reached near the house of Sahib Singh, appellant, he was standing there along with his servant Pargat Singh. Sahib Singh caught hold of her from the right arm and took her inside the room of the house. Pargat Singh bolted the door of the room from outside. The prosecutrix raised noise. She was made to lie on the cot. Her salwar was removed forcibly. The accused had put her legs on his shoulders and gagged her mouth with chunni and committed rape upon her. Thereafter she became unconscious. When prosecutrix gained consciousness she was asked to leave the house and a threat was also left that in case she disclose the incident to anybody, she will be shot. The prosecutrix went to the fields and narrated the incident to her parents. On the next day, along with her parents and parental uncle she went to Police Station and police got her medicolegal examination conducted. She identified her signatures on the report No. 6 recorded in the roznamcha. The statement was exhibited as Ex.PA. The Public Prosecutor produced her shirt and salwar which were exhibited as Ex.P1 and Ex.P2, respectively. The defence in cross-examination confronted with her statement Ex.PA where it was not recorded that the appellant had gagged her mouth with dupatta. She was further confronted with her statement Ex.PA where the fact of rape was not recorded. The witness stated that other houses were located at distance of about ten karams from the house of accused. She pleaded ignorance regarding grand father of Sahib Singh, present appellant, having deposed against her father in Criminal Appeal No. 467-SB of 1997 6 some case. However, she admitted that her father and father of Sahib Singh accused belong to warring factions. She further admitted that Sahib Singh is the only son of his parents. The witness testified that she made attempts to save herself from the clutches of the accused but she had not suffered any scratch on any part of her body when she resisting the attempts made by accused. The prosecutrix further stated that no x- ray examination (ossification test) was conducted. She denied the suggestion that she was above 18 years of age. According to witness, when she raised noise, no eye witness was attracted.
Santokh Singh PW.2, father of the prosecutrix, corroborated testimony of the prosecutrix to the extent that she was sent to bring tea at 11.00 A.M. When she returned, she narrated about the incident. According to this witness, he was told that accused had dragged the prosecutrix and had committed rape upon her. He accompanied prosecutrix along with Nazar Singh, for making statement to the police and she was medicolegally examined. In cross-examination, this witness was confronted with his statement Ex.DA where fact of dragging by both the accused was not recorded but it was recorded that prosecutrix was dragged by Sharanjit Singh alone. He was further confronted with his statement Ex.DA whether specifically fact of rape was not recorded, however, it was recorded that salwar of Kulwinder Kaur was removed and force was used.
Kulwant Singh, Assistant Sub Inspector, who recorded the statement of Kulwinder Kaur Ex.PA, appeared as PW.3. He proved various aspects of the investigation regarding preparation of rough site plan Ex.PE, seizure of bed sheet spread on the cot and taking into Criminal Appeal No. 467-SB of 1997 7 possession clothes of the prosecutrix. He had sent the swabs and the envelope handed over by the doctor through Narinderjit Singh, Constable to Chemical Examiner, Patiala. This witness further stated that both the accused were arrested on 25.9.1995. In cross-examination, he admitted that on 21.9.1995 case was registered by Paramjit Singh, Inspector under Section 354, 506 and 34 IPC, later on 10.2.1996, offence under Section 376 read with Section 511 IPC was added on the objection raised by Additional Public Prosecutor at the time of scrutiny of report under Section 173 Cr.P.C.
Prosecution tendered into evidence affidavit of Narinderjit Singh, Constable. The defence counsel opted not to cross-examine him.
Tilak Raj, Clerk, Civil Hospital, Amritsar, appeared as PW.4. He stated that report of Chemical Examiner was received. The same was lost and he subsequently obtained duplicate report.
Paramjit Singh, Station House Officer of Police Station Beas, appeared as PW.5. He deposed regarding submission of report under Section 173 Cr.P.C.
Harbans Singh, Officiating Head Master, Government High School, Jodhe, from the record maintained in the School, disclosed that date of birth of prosecutrix, recorded in the admission/withdrawal register, was 16.3.1982. He proved admission form as Ex.PH.
Dr. Hardip Singh Mann, PW.7, stated that at the relevant time, he was posted as Assistant Chemical Examiner to Government of Punjab at Patiala. As per chemical analysis of the parcels received, no spermatozoa was found on the swabs taken from inside the hymen.
Kulwant Kaur, mother of the prosecutrix, was given up as Criminal Appeal No. 467-SB of 1997 8 unnecessary.
Prosecution closed its evidence and the statement of accused under Section 313 Cr.P.C. was recorded. All the incriminating evidence was put to them. They denied the same and pleaded false implication. No witness was examined by the accused in defence.
In the present case, occurrence had taken place on 17.9.1995 at about 12.00 Noon. Statement of the prosecutrix was recorded on next day i.e. On 18.9.1995. She was also medicolegally examined on the next day.
Trial Court formulated following two questions in the impugned judgment:-
a) What offence has been made out against the
accused?
b) Whether any offence against Pargat Singh accused
was established?
In the present case, accused Pargat Singh has been acquitted, therefore, this Court need not devote its time to the second question.
The trial Court answered the first question as under:-
"11. From the above mentioned evidence, it is evident that the offence of rape is not made out. This doctor has nowhere stated in her testimony that it was a case of rape. Dr. Amritpal Kaur, PW.1 has categorically stated that there was no tear or laceration anywhere and that hymen ring was intact without any fresh laceration or tear and there was no bleeding. Had the rape been committed, in that state, signs of Criminal Appeal No. 467-SB of 1997 9 violence, redness around the private part and chipping of pubic hair could have been found present on the private part of the prosecutrix Not only this, initially, the case was registered u/ss 354/506/34 of the I.P.C. and later on, the offence u/s 376/511 IPC was added. Of course, the prosecutrix went on to say that Sahib Singh @ Sharanjit Singh accused had committed rape on her, but, her statement on this aspect is not being corroborated by the medical evidence and that being so, on its basis, it cannot be said that the offence u/s 376 of the Indian Penal Code is made out. If the rape had been committed, the doctor might had opined so and in that eventuality by all probabilities, the case was to be registered u/s 376 IPC alongwith other sections of I.P.C. The ipse-dixit or mouth words of the prosecutrix on their face value, in rape being not supported by medical evidence cannot be deemed to be enough to hold that the offence u/s 376 IPC is made out against the accused. There being no medical evidence regarding rape, it is held that the offence u/s 376 IPC is not established".
The trial Court also considered the fact that prosecutrix had suffered no scratch on her body. The State has chosen not to prefer any appeal against the acquittal of the appellant for offence under Section 376 IPC. Thus, the judgment of the trial Court to convict the present appellant for the offence under Section 376 read with Section 511 IPC stand accepted by the State.
Mr. K.L. Chaudhary, Advocate, appearing for the Criminal Appeal No. 467-SB of 1997 10 accused/appellant contended that there was party faction in the village. Therefore, no reliance should be placed on the testimony of prosecutrix as it was admitted by prosecutrix that father of the accused and her father belong to two opposing factions. It was further submitted by Mr. Chaudhary that factum of rape was not specified in the FIR and the statement Ex.DA made by father of the prosecutrix. It is later prosecution witnesses made an attempt to improve the case and introduce offence under Section 376 IPC. Therefore, the witnesses have not been believed qua the offence under Section 376 IPC. Therefore, their testimony should be outrightly discarded and the conviction recorded for offence under Section 376 read with Section 511 IPC should be set aside. It was further submitted that from the findings recorded by the trial Judge, the offence, if any, will fall under Section 354 IPC.
Mr. Sudhir Nehra, Additional Advocate General, Punjab, contended that no witness will come forward to level allegation of rape due to party faction. It was submitted that accused gave a bald suggestion of enmity, if any, but has not substantiated the suggestion by leading any evidence.
I have given my thoughtful consideration to the rival submissions made. I find no merit in the contentions advanced by counsel for the accused/appellant. Prosecutrix was aged 13 years at the time of occurrence. Immediately, she reported regarding the incident to her parents. On the very next day, they had reported the matter to the police. Prosecutrix was also examined by the Medical Officer on the next day of the occurrence. Therefore, on the submissions made by the Criminal Appeal No. 467-SB of 1997 11 defence counsel testimony of witnesses cannot be discarded. This Court is conscious of the fact that witnesses may have later introduced the version of rape to aggravate the offence but that in itself will not make these witnesses unreliable. Furthermore, from the entire reading of testimony of the prosecutrix, it is evident that appellant had made an attempt to commit rape and it cannot be said that he intended to outrage her modesty. Therefore, the trial Court has rightly convicted appellant for offence under Section 376/511 IPC. On the facts of case, Section 354 IPC is not attracted.
Mr. K.L. Chaudhary, Advocate, counsel for the appellant, in the alternate, has submitted that taking into consideration long protracted trial, conduct of the appellant that he has committed no other offence, the sentence of the appellant should be adequately reduced. It was submitted that in the present case, occurrence had taken place in the year 1995 and at that time appellant was aged 23 years and it has been noticed in the judgment, when quantum of sentence was determined, that parents and sister of the appellant have expired and his wife was in the family way. Therefore, it was submitted that the appellant is the sole bread earner of the family and his child is now aged about 13 years. Therefore, some reduction in the sentence may be considered by this Court. To fortify this submission, counsel has cited case of one "Dilbag Singh v. State of Haryana 2008(1) Recent Criminal Reports 350 wherein a Single Bench of this Court taking into consideration longevity of the trial, age of the accused and other attending circumstances, had reduced the sentence from seven years to one year rigorous imprisonment.
Criminal Appeal No. 467-SB of 1997 12
This Court is of the view that the alternative submissions made by counsel for the appellant has merit. Therefore, taking into consideration circumstances spelt by counsel for the appellant and noticed above, sentence of five years awarded upon the appellant is reduced to two years rigorous imprisonment. However, sentence of fine is enhanced to Rs.10,000/-.
With these observations, present appeal is disposed of.
(Kanwaljit Singh Ahluwalia) Judge January 6, 2010 "DK"