Punjab-Haryana High Court
Cra No.2024-Sb Of 2003 vs State Of Punjab on 28 October, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRA Nos.2024 & 1703-SB of 2003 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1. CRA No.2024-SB of 2003
Kheta Ram
...Appellant
Versus
State of Punjab
...Respondent
2. CRA No.1703-SB of 2003
Malkiat Kaur ...Appellant
Versus
State of Punjab
...Respondent
Date of Decision:-28.10.2013
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.O.P.Kamboj, Advocate for the appellant
in CRA No.2024-SB of 2003.
Ms.Geeta Sharma, Advocate for the appellant
in CRA No.1703-SB of 2003.
Mr.K.S.Aulakh, A.A.G. Punjab for the respondent-State.
Mehinder Singh Sullar, J. (Oral)
As identical questions of law & facts are involved, therefore, I propose to decide the indicated criminal appeals (CRA No.2024-SB of 2003 filed by appellant Kheta Ram) (for brevity "1st appeal") and CRA No.1703- SB of 2003 filed by appellant Malkiat Kaur (for short "2nd appeal"), arising out of the same impugned decision of conviction & order of sentence, by virtue of this common judgment, in order to avoid the repetition.
2. The contour of the facts & evidence, unfolded during the course of trial, culminating in the commencement, relevant for deciding the Arvind Kumar Sharma 2013.10.31 12:21 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.2024 & 1703-SB of 2003 2 instant appeals and emanating from the record, as claimed by the prosecution, is that on the fateful day (the actual date of occurrence is not known to the prosecution), the parents of prosecutrix (PW10) (name withheld) had gone to the fields for labour work. She alone was present in the house. Initially, the prosecutrix claimed that at noon time, Upkar Singh son of Amarjit Singh, grandson of Kapoor Singh, Ex-Sarpanch, had entered in her house by scaling over the wall. He dragged her in the room of her house, removed her loose trousers (Salwar) and committed forcible intercourse with her. She raised noise, but he gagged her mouth with his hand. Thereafter, committing forcible rape with her, he went away from there. She did not disclose the occurrence to any one. However, with the passage of time, she started vomiting. As soon as, her mother enquired from her the reason of vomiting, then she disclosed the entire incident to her. Consequently, she made statement (Ex.P12) before ASI Mohinder Singh (PW4). He made his endorsement (Ex.P12/A), which formed the basis of FIR (Ex.P13). In the background of these allegations and in the wake of statement (Ex.P12) of the prosecutrix, the present criminal case was registered against accused Upkar Singh, vide FIR No.149 dated 12.9.2000 (Ex.P13), on accusation of having committed the offences punishable u/ss 376, 506 and 120-B IPC, by the police of Police Station Sadar Khuian Sarwar, District Ferozepur, in the manner depicted here-in-above.
3. Sequelly, Upkar Singh did not feel satisfied with the registration of false case against him and his grand father moved an application to SP (Headquarter) in this respect. During the course of inquiry, it was revealed that prosecutrix had leveled false allegations and got registered false case against him under the influence of appellant-convict Arvind Kumar Sharma 2013.10.31 12:21 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.2024 & 1703-SB of 2003 3 Malkiat Kaur Ex-Sarpanch, wife of Ranga Singh (for brevity "the appellant") (in 2nd appeal), Balwant Godara and Preet Mohinder on account of their enmity with Kapoor Singh, grandfather of Upkar Singh. Thereafter, SP directed the concerned SHO to take immediate action against appellant Kheta Ram son of Mani Ram (in 1st appeal), appellant Malkiat Kaur (in 2nd appeal) and above mentioned persons.
4. In compliance thereof, SI Raj Singh (PW12) again recorded the supplementary statement (Ex.P19) of the prosecutrix, where she has stated that in fact, it was appellant Kheta Ram, who committed the forcible rape with her in the manner narrated here-in-above and she has falsely named Upkar Singh as an accused at the instance of appellant Malkiat Kaur and other pointed persons. She has also stated that appellant Kheta Ram had threatened her with dire consequences if she would narrate the occurrence to her parents. She did not disclose the incident to her mother due to fear. They were stated to have threatened the prosecutrix to turn the entire members of her family out of the village if she did not name Upkar Singh as accused in the FIR. Narrating the sequence of 2nd story according to the prosecutrix that in fact, appellant Kheta Ram committed forcible rape with her in the month of June (Haad) 2000. In this manner, he was substituted as an accused in the rape case instead of Upkar Singh.
5. After completion of the investigation, the final police report (challan) was submitted against appellants Kheta Ram and Malkiat Kaur to face the trial for the indicated offences. However, the remaining accused were found innocent and were exonerated by the police.
6. Having completed all the codal formalities, appellant Kheta Ram was charge-sheeted for the commission of an offence punishable u/s Arvind Kumar Sharma 2013.10.31 12:21 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.2024 & 1703-SB of 2003 4 376 IPC, whereas appellant Malkiat Kaur was charged u/s 506 IPC. As they did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution by the trial Judge.
7. Likewise, the prosecution, in order to substantiate the crime against the appellants, has examined PW10 prosecutrix, who has deposed in the following terms:-
"Six months earlier to the occurrence I along with my parents was residing in Rajasthan State, village Mirjewala Distt.Ganganagar. About 3 years ago my father and mother had gone to the field to do labour work. It was month of Harr. I was alone in my house at village Killianwali. It was noon time. Kheta Ram accused present in court came to my house. He enquired from me as to how many people were present in my house. I replied that I was alone. Accused Kheta Ram dragged me inside a room of my house and threatened to kill me if I raised alarm. He also gave me beatings. He put his hand on my mouth. So that I might not cry. Accused then committed rape with me forcibly against my consent. In order to avoid my defamation and also because the accused went after giving me threats I did not disclose this fact to my parents. I disclosed this fact to my mother only when I became pregnant. Accused was also threatening me after rape not to disclose this fact to any one by visiting my house. Accused Kheta Ram is residing in village Killianwali in a farm house. Earlier I lodged FIR regarding rape against Upkar Singh under pressure and coercion of Balwant Godara, Preet Mohinder and lady Sarpanch Malkiat Kaur as they threatened me to give false name of Upkar Singh instead of the name actual culprit. They kept on threatening me and beating me for a long time not to name Kheta Ram and to name falsely Upkar Singh. We left the village under threats of the accused. They threatened that if we resided in the village they would kill us. Malkiat Kaur lady Sarpanch is also accused in the present case. I identified her in court today as second accused. I and my mother went to accused Malkiat Kaur Sarpanch and disclose her the entire story. She along with Balwant Godara and Preet Mohinder took us to the police station. Under the pressure, I falsely named Upkar Singh. Later Malkiat Kaur, Balwant Godara and Preet Mohinder took me to the hospital where I was medico legally examined. The lady doctor also aborted me there. Police recorded my two statements. First statement was recorded under pressure which is Ex.P12. Second statement of mine recorded by the police is Ex.P19 which was without any pressure and duress."
8. Similarly, the prosecution has also examined Baldev Kaur, mother of prosecutrix as PW11. Instead of reproducing her entire statement Arvind Kumar Sharma 2013.10.31 12:21 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.2024 & 1703-SB of 2003 5 and in order to avoid the repetition, suffice it to say that she has attempted to corroborate the statement of prosecutrix on all vital counts
9. Now adverting to the medical evidence, PW1 Dr.Poonam has medico legally examined the prosecutrix on 12.9.2000, vide MLR (Ex.P10). She maintained that there was no mark of external injury on her person. PV hymen was absent. The vagina admitted two fingers. OS open. Placenta and foetus was removed manually. Foul smelling discharge was coming from vagina. On receipt of report (Ex.P1) of Radilogist and skiagrams (Ex.P2 to Ex.P8), she made endorsement (Ex.P9) and sent it to the police station. She has also sent the report (Ex.P11) of Chemical Examiner to the police station, by way of endorsement (Ex.P11/A). PW7 Dr.S.K.Janeja, radiologically examined the prosecutrix on 13.9.2000 and opined, vide his report (Ex.P1) that her age was between 17 to 19 years at the relevant time.
10. Now coming to the evidence of police officers, PW2 ASI Narinder Pal has stated that on 8.3.2001, he recorded the statements of witnesses. PW3 ASI Jalour Singh formally arrested accused Preet Mohinder, Kulwant Rai and Malkiat Kaur. PW6 Avtar Singh, Reader has identified the signatures of Gurcharan Singh Pherurai, SSP Ferozepur and proved the letter (Ex.P16) sent by him to SHO. PW5 C.Randhir Singh, PW8 HC Darshan Singh and PW9 C.Jatinder Singh are the formal witnesses, who have tendered their respective affidavits (Ex.P1/A, Ex.P17 and Ex.P18) to complete the chain of link evidence.
11. The next to examine is the testimony of PW4 ASI Mohinder Singh, Investigating Officer, who has maintained that on 12.9.2000, the prosecutrix and her mother came to the police station. The prosecutrix made her statement (Ex.P12). It was read over and explained to her and she thumb Arvind Kumar Sharma 2013.10.31 12:21 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.2024 & 1703-SB of 2003 6 marked the same in token of its correctness. He attested and made endorsement (Ex.P12/A) on it and got FIR (Ex.P13) registered against accused Upkar Singh u/s 376 IPC. He identified the signatures of MHC Darshan Singh on it. Then, he has recorded the statement of the mother of prosecutrix. Thereafter, he inspected and prepared the rough site plan (Ex.P14) of the spot at the instance of prosecutrix. He has categorically deposed that on the pretext of urinating, both prosecutrix and her mother had left the place of occurrence. They moved an application and after obtaining the order from the Court, the prosecutrix was medico legally examined in Civil Hospital, Abohar. On 13.9.2000, he went to the hospital and moved an application (Ex.P15) for obtaining the copy of MLR. Dr.Poonam (PW1) handed over a copy of MLR as well as the vial containing some material for sending the same to the office of Chemical Examiner, Patiala. He handed over the case property to MHC Darshan Singh. He has also recorded the supplementary statement of Baldev Kaur, mother of prosecutrix on 15.10.2000. PW4 has proved the initial version of prosecutrix.
12. The last to note is the testimony of PW12 SI Raj Singh (retired), who has stated that on 12.9.2000, ASI Mohinder Singh got registered FIR (Ex.P13) on the basis of statement (Ex.P12) of prosecutrix, in which, Upkar Singh grandson of Kapoor Singh, was named as an accused. He was not arrested as the allegations contained in the FIR against him were found to be false. On the basis of application filed by the grandfather of Upkar Singh, the SSP ordered the inquiry. On perusal of inquiry report, the SSP, vide his letter (Ex.P16) directed him to proceed against Kheta Ram, Malkiat Kaur (appellants), Balwant Godara and Preet Mohinder u/ss 376 Arvind Kumar Sharma 2013.10.31 12:21 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.2024 & 1703-SB of 2003 7 and 120-B IPC. On 16.10.2000, he called prosecutrix and her parents in the police station. They were interrogated. He has recorded the statements (Ex.P19) of prosecutrix and of her mother (Ex.P20). On 17.10.2000, appellant Kheta Ram was produced before him by Ram Singh Lambardar and he formally arrested him. After completion of the investigation, SHO Jaswinder Singh challaned the accused.
13. After the close of the prosecution evidence, the statement of appellant Kheta Ram was recorded. The entire incriminating material/evidence was put to enable him to explain any circumstance appearing against him therein, as contemplated under section 313 Cr.PC. However, he has stoutly denied the prosecution evidence in its entirety and pleaded falsely implication in the following manner:-
"I am innocent. Case against me is false. I did not rape Sarabjit Kaur. Under the pressure of police and politician I have been falsely involved in the present case. Earlier, the prosecutrix got case registered against Upkaar Singh and his grand father Kapur Singh by making statements on 12.9.2000. She also moved informatory letter Dated 23.9.2000 against Upkaar Singh and Kapur Singh in the court of JMIC, Abohar. On the same day, she filed criminal complaint against both of them u/s 376 IPC. She also made statement to the said court along with her mother against Upkaar Singh. Later under political pressure and police pressure and also in a greed of money she had falsely implicated me in the present case."
14. In the same sequence, appellant Malkiat Kaur has also denied the prosecution evidence & pleaded false implication in this case. C.Gurdev Singh was examined as a Court witness to prove the inquiry report (Ex.C1). This is the total oral as well as documentary evidence brought on record by the parties.
15. Taking into consideration the entire evidence on record, appellant Kheta Ram was convicted and sentenced to undergo rigorous imprisonment (for brevity "RI") for a period of ten years, to pay a fine of ` Arvind Kumar Sharma 2013.10.31 12:21 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.2024 & 1703-SB of 2003 8 2,000/- and in default thereof, to further undergo RI for a period of six months, for the commission of an offence punishable u/s 376 IPC. At the same time, appellant Malkiat Kaur was convicted & sentenced to undergo RI for a period of two years, to pay a fine of ` 1500/-and in default thereof, to further undergo RI for a period of three months u/s 506 IPC, by means of impugned judgment of conviction and order of sentence dated 5.9.2003, by the trial Judge.
16. Aggrieved thereby, the appellants have preferred the instant appeals. That is how I am seized of the matter.
17. After hearing the learned counsel for the parties, going through the evidence on record with their valuable assistance and after considering the entire matter deeply, to my mind, the present appeals deserve to be accepted in this context.
18. At the very outset, it cannot possibly be disputed here is that the legal proposition with regard to burden of proof and admissibility of evidence in criminal (rape) cases was considered by the Hon'ble Apex Court in case Narender Kumar v. State (NCT of Delhi) 2012 (3) RCR (Criminal)
66. Having considered the provisions of Section 376 IPC, Sections 53 & 54 of the Indian Evidence Act and a line of previous judgments, it was observed that once the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on her solitary evidence and no corroboration would be required unless there are compelling reasons in this respect. At the same time, it was ruled as under
(para 23):-
"However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why Arvind Kumar Sharma 2013.10.31 12:21 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.2024 & 1703-SB of 2003 9 in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide: Tukaram & Anr. v. The State of Maharashtra,, AIR 1979 SC 185; and Uday v. State of Karnataka, 2003(2) R.C.R. (Criminal) 99 : 2004(1) Apex Criminal 13 : AIR 2003 Supreme Court 1639)."
19. Such thus being the legal position and evidence on record, now the core controversy, which invites an immediate attention of this Court and arises for determination in these appeals is, as to whether the prosecution was able to prove the charges of rape and criminal intimidation against the appellants or not?
20. Having regard to the rival contentions of learned counsel for the parties, to me, the answer must obviously be in the negative, as the prosecution has utterly failed in this respect.
21. As is evident from the record that as per initial statement (Ex.P12), which formed the basis of FIR (Ex.P13) the prosecutrix claimed that Upkar Singh, grandson of Ex-Sarpanch Kapoor Singh had repeatedly committed sexual intercourse with her and she became pregnant. During the course of inquiry, he was found innocent by the police. Then, the prosecutrix moved a complaint (Ex.D1) before the Magistrate alleging therein that Upkar Singh was committing rape on her. Not only that, she made statement (Ex.D2) before the Magistrate to that effect. Her mother has also made statement (Ex.D3), reiterating the previous story of 1st version in the Court. PW4 has duly verified the narration of 1st version contained in the Arvind Kumar Sharma 2013.10.31 12:21 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.2024 & 1703-SB of 2003 10 initial statement (Ex.P12) of prosecutrix.
22. Strange enough, on 16.10.2000, after more than one month thereafter, the prosecutrix took somersault and has set up entirely a different story that appellant Kheta Ram had committed forcible rape on previous occasions as well as on the fateful day with her. PW11 Baldev Kaur, mother of prosecutrix, has also adopted the same 2nd version as projected by the prosecutrix. PW12 has testified the 2nd version mentioned in the supplementary statement (Ex.P19) of same incident projected by the prosecutrix and her mother. Therefore, in view of complete contradictory versions of same occurrence, to my mind, no implicit reliance can be placed on the statements of prosecutrix (PW10) and her mother (PW11) and it would not be safe to convict the appellants on such type of their interested evidence without any independent corroboration.
23. This is not the end of the matter. Not only that, the story of prosecution appears to be highly improbable, but there is an inordinate and unexplained delay in lodging the report with the police as well. It is very difficult to believe that appellant Kheta Ram had been repeatedly committing forcible rape with her in her own house without her consent. She had not disclosed this fact for more than three months either to her parents or to any other person. It was only when she became pregnant and started vomiting, then in the wake of inquiry, she disclosed this fact to her mother that Upkar Singh had committed the rape with her. This version was found to be false and was disbelieved. Thereafter, suddenly she came up with entirely a new version that appellant Kheta Ram repeatedly committed the forcible rape with her. The initial matter was reported to the police after more than three months of the incident with different version contained in Arvind Kumar Sharma 2013.10.31 12:21 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.2024 & 1703-SB of 2003 11 the initial statement (Ex.P12) against Upkar Singh, whereas 2nd version was recorded by the police on 16.10.2000 against appellant Kheta Ram, by virtue of supplementary statement (Ex.P19) of prosecutrix. Thus, the submissions of learned counsel for appellants that since the story of prosecution was unnatural and there is an inordinate & unexplained delay in reporting the matter to the police, have considerable force.
24. Now adverting to the age of prosecutrix, PW7 has proved his ossification report (Ex.P1) and maintained that she was between 17 to 19 years of age at the relevant time. The prosecution has not produced any birth certificate or school leaving certificate or any other proof of age of prosecutrix. The age given by her and her mother did not find favour and even the trial Court has recorded the finding of fact based on evidence that she (prosecutrix) was more than 16 years of age at the time of commission of offence. The State did not file any appeal and accepted the finding with regard to the age of prosecutrix recorded by the trial Court. That means, she was capable of giving consent for the purpose of rape.
25. Moreover, Dr.Poonam (PW1) did not find any external injury on any part of the body of prosecutrix. Similarly, there is no evidence with regard to injury or medical evidence of appellant Kheta Ram on record. Meaning thereby, she did not raise any resistance when appellant was stated to have repeatedly committed the sexual intercourse with her. She did not inform the incident to any body for more than three months till she started vomiting on account of her pregnancy. If appellant Kheta Ram had committed forcible rape, then, she would have suffered injuries on her person and on his person. No explanation whatsoever, muchless cogent, is forth coming on record even to suggest remotely that she offered any kind Arvind Kumar Sharma 2013.10.31 12:21 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.2024 & 1703-SB of 2003 12 of resistance. It appears to be somewhat unnatural that a young girl would submit herself to forcible intercourse without struggle, particularly when it is not the case of prosecutrix that appellant was having any sort of weapon to scare her at the time of commission of rape. Had she struggled, there would have been some scratches on the face, the hands and the arms of appellant Kheta Ram as well as on her body. Indeed, if this was so, then it was expected the stiffest possible resistance from her resulting in injury on the person of the appellant. This is rather an important circumstance, which negates the allegations of forcible rape. The complete absence of any injury or scratches on the persons of appellant and the prosecutrix in a very clear term would suggest that the intercourse was not forcible, rather she was a consenting party.
26. An identical matter came to be decided by the Hon'ble Supreme Court in case Pratap Misra and others vs. State of Orissa, 1977 AIR (SC) 1307. The following observations of Taylor, in the Principles and Practice of Medical Jurisprudence, Vol. II were considered:-
"Unless under the influence of drink or drugs or asleep or ill, a fully grown girl or adult woman should be able to resist a sex assault. We should expect to find evidence of struggle to avoid sexual contact or penetration, and may well feel uncertainty about the real nature of an alleged assault in its absence.
A false accusation of rape may sometimes be exposed by marks of violence being wholly inadequate or absent....
Bruises upon the arms or the neck may be considered to constitute some evidence of struggle; and impressions of finger nails are also significant. Bruises or scratches about the inner side of the thighs and knees may be inflicted during attempts to abduct the legs forcibly, and care must also be taken to examine the back, for the victim may have been pinned against the wall or floor. It is important to record these in detail, and to say, if possible, how fresh they are. The ageing of bruises is, as was indicated in Volume I, a matter of some uncertainty in the absence of microscopy.
Arvind Kumar Sharma Strong corroborative evidence of a struggle might be obtained from an 2013.10.31 12:21 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.2024 & 1703-SB of 2003 13 examination of the accused for similar marks of bruises or scratches about the arms or face, and possibly even about his penis, though this is less likely.
Though injury is most unlikely to the penis, a man may have had his face scratched or have been bitten during a sex assault. The clothing may bear some contact traces of the woman-hairs, vaginal secretion or blood, and, though of less significance, seminal stains.
Nevertheless, it is most likely that when there has been some real resistance, local injury will be apparent and probably also marks of violence on the body and limbs."
27. Thus, the ratio of law laid down in the aforesaid judgments 'mutatis mutandis' is fully applicable to the facts of this case and is the complete answer to the problem in hand. In this manner, once it is held that the prosecutrix was a consenting party and no offence of rape is made out, in that eventuality, the question of commission of offence of forcible rape by appellant Kheta Ram did not arise at all as well.
28. At the same time, there is also not an iota of acceptable evidence on record against appellant Malkiat Kaur as well. How, when, in what manner and in whose presence, she threatened the prosecutrix, remained an unfolded mystery. The statements of prosecutrix and her mother cannot also be believed that prosecutrix has falsely involved Upkar Singh as an accused in the case at the instance of appellant Malkiat Kaur. Therefore, she also entitles the benefit of doubt and deserves to be acquitted in the present case in the absence of any cogent evidence against her.
29. Therefore, if the fact of totally contradictory initial version contained in the statement (Ex.P12) of prosecutrix, subsequent new 2nd story emerging in her supplementary statement (Annexure P19), highly improbable case, her conduct & age, complete absence of injuries, above- all, the pointed consent of the prosecutrix and totality of peculiar facts and special circumstances, oozing out from the evidence on record, as discussed Arvind Kumar Sharma 2013.10.31 12:21 I attest to the accuracy and integrity of this document Chandigarh CRA Nos.2024 & 1703-SB of 2003 14 here-in-above are put together, then, to me, the conclusion is inescapable and irresistible that the prosecutrix was a consenting party and the evidence brought on record by the prosecution falls short as is required to prove the charge of rape and criminal intimidation, which entails the benefit of doubt and acquittal of the appellants in the obtaining circumstances of the case.
30. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
31. In the light of aforesaid reasons, the instant appeals are hereby accepted. Consequently, the impugned judgment of conviction & order of sentence are set aside. Having extended the benefit of doubt, the appellants are acquitted of the indicated crime.
Needless to mention that the necessary compliance and procedural consequences would naturally follow.
Sd/-
28.10.2013 (Mehinder Singh Sullar)
AS Judge
Whether to be referred to reporter? Yes/No
Arvind Kumar Sharma
2013.10.31 12:21
I attest to the accuracy and
integrity of this document
Chandigarh