Punjab-Haryana High Court
Jarnail Singh vs State Of Punjab on 13 July, 2010
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal S-606-SB of 1998
Date of Decision : July 13, 2010
Jarnail Singh
....Appellant
Versus
State of Punjab
.....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. P.K.S.Phoolka, Advocate
Mr. P.S. Sidhu, Additional Advocate General, Punjab
T.P.S. MANN, J.
This appeal is directed against the judgment and order passed by Additional Sessions Judge, Patiala, on 1.6.1998 whereby the appellant was convicted under Section 376 IPC and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.500/- and in default thereof, to undergo further rigorous imprisonment for six months.
According to the prosecution, the prosecutrix, aged 27 years, was married to Bhag Singh about six years ago before the incident. She had two sons, aged three years and one year. A month before the incident, she underwent tubectomy. On the day of the Crl. Appeal S-606-SB of 1998 -2- incident, i.e. on 16.8.1993, her husband had left for Samana in the morning for making household purchases. Her father-in-law and mother-in-law were also not present in the house. At about 10.00 a.m. she was breast feeding her younger son while sitting on a cot in the courtyard. In the meantime, the appellant reached there and after forcibly catching hold of her arm, took her inside. When the prosecutrix tried to raise an alarm, her mouth was covered with the help of dupatta. He kept on holding her by one hand while bolting the door from inside with the other. She was thrown on a cot. The appellant made his intention clear that he would have forcible sexual intercourse with her. The prosecutrix made all possible attempts to rescue herself. Even a scuffle ensued but as the appellant was well built, he was able to pin her down. She received scratches on her person. Thereafter, the appellant broke open the string of her salwar besides removing his own underwear and raped her. In the process, her salwar and shirt were torn. The prosecutrix kept on making efforts to free herself but in vain. The alarm raised by the prosecutrix attracted her brother-in-law Avtar Singh, who started knocking at the door to find out as to what was going on. The appellant tried to hide under the cot. When the prosecutrix opened the door, he managed to escape. While the appellant was running away, he was given 2/3 stick blows by Avtar Singh. A number of persons including Labh Singh, Sarpanch also reached the spot. According to the prosecutrix, 2/3 bangles worn by her had broken during the scuffle. When her husband returned from Samana, the prosecutrix narrated the Crl. Appeal S-606-SB of 1998 -3- entire incident to him. After leaving Kaur Singh, Member Panchayat to guard the spot, the prosecutrix alongwith her husband and Labh Singh, Sarpanch proceeded to the Police Station for lodging a report. On the way, they met SI Uttam Singh, before whom the prosecutrix made her statement Ex.PC which was, thereafter, sent to Police Station Samana where FIR Ex.PC/2 under Sections 376/452 IPC was recorded on the same day at 4.00 p.m. During investigation, the police sent the prosecutrix to Civil Hospital, Samana where she was medico-legally examined and eight injuries found on her person. The salwar and shirt of the prosecutrix were taken into possession. SI Uttam Singh, thereafter, reached the spot and prepared rough site plan. Pieces of bangles were found lying by the side of the cot where rape was committed by the appellant. The same were taken into possession. On 17.8.1993, SI Uttam Singh received an information that the appellant was admitted in Civil Hospital, Samana. Accordingly, he went to the hospital and made an application but the Senior Medical Officer mentioned that the appellant was not on his bed. It was on 22.8.1993 that SI Uttam Singh was able to arrest the appellant from Bus Stand of village Nadam. Request-cum-injury statement was prepared and the appellant sent to Civil Hospital, Samana for medico- legal examination. The doctor, however, reported that the appellant had already been examined on 16.8.1993. The doctor, however, opined that the appellant was fit to perform sexual intercourse. After receipt of the Crl. Appeal S-606-SB of 1998 -4- report of Chemical Examiner and completion of investigation, the final report under Section 173 Cr.P.C. was submitted against the appellant. The Ilaqa Magistrate, thereafter, committed the case to the Court of Sessions where the appellant was charged for an offence under Section 376 IPC, to which he pleaded not guilty and claimed trial.
In support of its case, the prosecution had examined ten witnesses.
PW1 Dr. Alkesh Arora deposed about the medico-legal examination of the prosecutrix conducted on 16.8.1993 at 7.15 p.m. He had noticed the following injuries on the person of the prosecutrix:-
1. Abrasion 6 cm. x .4 cm on the lateral side of left forearm in its middle one-third. Clotted blood was present.
2. Abrasion 9 cm. x .3 cm. on the back of right forearm in its middle one-third.
3. Linear abrasion 10 cm. on the front of right upper arm in its lower half.
4. Linear abrasion 8 cm. x .2 cm on the back of left upper arm in its middle.
5. 2 parallel abrasions 5 cm. x .2 cm. each on right side of cheek.
6. 2 parallel abrasions 6 cm. x .2 cm. each on the left side of cheek.
7. Abrasion 7 cm. x .3 cm. on the middle of right thigh.
8. No mark of any injury on the vulva, genitalia and Crl. Appeal S-606-SB of 1998 -5-
breast.
The prosecutrix was examined as PW2 while her brother- in-law Avtar Singh as PW3 and husband Bhag Singh as PW4. All of them supported the prosecution case regarding the commission of rape by the appellant upon the prosecutrix.
PW6 Dr. P.K.Mittal testified that the appellant was examined on 16.8.1993 at about 4.45 p.m. and following injuries were noticed on his person:-
1. Contusion 20 cm. x 2.5 cm. on the back of the right side of chest in the lower part extending to opposite side. Colour reddish. Advised X-ray.
2. Contusion 13 cm. x 3 cm. on the posterior lateral aspect of right forearm, area around it swollen and tender. Colour reddish. Advised X-ray.
3. Tender swelling 10 cm. x 5 cm. on the anterior lateral aspect of the left thigh, 10 cm above the knee joint. Advised X-ray.
4. Tender swelling 8 cm. x 4 cm. on the lateral aspect of right thigh just above the knee joint.
Advised X-ray.
The weapon used was blunt for all the injuries. Duration of the injuries was fresh.
The investigation part of the case was proved by the prosecution by examining PW5 SI Uttam Singh, PW7 HC Shamsher Crl. Appeal S-606-SB of 1998 -6- Singh, PW8 Constable Kulwinder Singh, PW9 HC Harmeet Singh and PW10 HC Nirmal Singh.
When examined under Section 313 Cr.P.C., the appellant claimed that he was innocent and falsely involved in the case due to party faction in the village. However, he did not examine any evidence in his defence.
After hearing learned counsel for the parties and going through the evidence available on the record, the trial Court believed the prosecution version and convicted and sentenced the appellant, as mentioned above.
Learned counsel for the appellant has submitted that there was unexplained delay in the lodging of the FIR. The same had been used for foisting a false case upon the appellant.
It is the consistent case of the prosecution that on 16.8.1993 at 10.00 a.m., the prosecutrix was all alone in the house and while sitting on a cot in the courtyard, was breast feeding her one year old son. At that time, the appellant reached there and forcibly removed the prosecutrix inside the room of her house. He kept on holding the prosecutrix with one hand while bolting the door from inside with the other. He then threw her on the cot inside the room and had forcible sexual intercourse with her. The alarm raised by the prosecutrix attracted her brother-in-law Avtar Singh, who knocked at the door of the Crl. Appeal S-606-SB of 1998 -7- room to find out as to what was going on. Realizing that he had been cornered, the appellant tried to hide under the cot. However, when the prosecutrix opened the door to let her brother-in-law in, the appellant tried to sneak out. The appellant was given 2/3 stick blows by Avtar Singh. However, this did not deter the appellant, who managed to run away.
At the time of the occurrence, the husband of the prosecutrix was away to Samana for making household purchases. He returned from Samana at about 2.00 p.m. and was apprised about the incident. Thereafter, the prosecutrix alongwith her husband as well as the village Sarpanch left for Samana for informing the police. On the way, they came across SI Uttam Singh, before whom the prosecutrix made her statement Ex.PC. The same was completed by SI Uttam Singh on the same day at 3.15 p.m. As the statement revealed the commission of the offences under Sections 376/452 IPC, it was sent to Police Station Samana where formal FIR Ex.PC/2 was registered on 16.8.1993 at 4.00 p.m. Therefore, there was no delay in the lodging of the report with the police. Whatever delay occurred, had been satisfactorily explained.
Learned counsel for the appellant then submitted that there was no corroboration of the testimony of the prosecutrix that she had been subjected to forcible sexual intercourse by the appellant.
While appearing as PW2, the prosecutrix stated in no Crl. Appeal S-606-SB of 1998 -8- uncertain terms that it was the appellant, who had trespassed into her house and caught her from her arm. When she tried to raise an alarm, her mouth was covered with her chuni. The appellant dragged her into a room of her house. After throwing her on a cot inside the said room, the appellant had forcible sexual intercourse with her. The prosecutrix had been making all possible efforts to free herself. In the process, her bangles broke. Her salwar and shirt also got torn. She received injuries on her arms and face. The appellant was physically stronger than the prosecutrix and for that reason he was able to keep her down and sexually ravished her. When the appellant discharged, the prosecutrix, once again, screamed, which attracted her brother-in-law Avtar Singh, who reached the spot. He knocked at the door of the room. At that point of time, the appellant tried to hide himself under the cot. When the prosecutrix opened the door, the appellant was able to escape. However, he was given stick blows by Avtar Singh.
The testimony of the prosecutrix was duly corroborated by PW3 Avtar Singh who stated that when he had come to the house for taking tea, he noticed the main gate lying open and heard shrieks coming out of the room. The room was lying bolted from inside. He called the prosecutrix in a loud voice to which she replied that the appellant had committed rape upon her. He then knocked at the door and asked the prosecutrix to open the door, which she did. He found the appellant present there, who made an attempt to run away. However, Crl. Appeal S-606-SB of 1998 -9- PW3 Avtar Singh gave him stick blows. Despite the same, the appellant escaped from the spot. Thereafter, the prosecutrix disclosed to him about the entire incident. She showed the abrasions present on her body. She was only wearing shirt at that time.
Similarly, PW4 Bhag Singh stated that on 16.8.1993, he returned from Samana at about 2.00 p.m. after making household purchases. When he reached his house, he found a number of persons present there. He was informed by his wife, i.e. the prosecutrix about the commission of rape upon her by the appellant.
The presence of injuries on the person of the prosecutrix stands duly corroborated by the testimony of PW1 Dr. Alkesh Arora, who medico-legally examined her on the day of the incident at 7.15 p.m. The duration of the injuries was found to be between 6 to 12 hours. Similarly, the appellant during his medico-legal examination at the hands of PW6 Dr. P.K.Mittal on 16.8.1993 at about 4.45 p.m. was found to be having four injuries on his person, two of which were contusions and the remaining two swellings. The weapon used for causing of the injuries was blunt and the duration of the injuries was fresh.
It has appeared in the testimony of PW5 SI Uttam Singh that when he inspected the spot, he found some broken pieces of bangles which he took into possession. This further confirmed the fact that when the appellant had sexual intercourse with the prosecutrix, the latter Crl. Appeal S-606-SB of 1998 -10- had been resisting his attempts and in the process, the glass bangles worn by her were broken.
After the appellant was arrested on 22.8.1993, he was sent to Civil Hospital, Samana for medico-legal examination. An opinion was also sought from the doctor as to whether he was capable of performing sexual intercourse. On the request Ex.PH submitted by SI Uttam Singh, Dr. P.K.Mittal made an endorsement Ex.PH/1 that the appellant was fit to perform sexual intercourse. Further, that his medico-legal report had already been sent to Police Station Sadar, Samana on 16.8.1993. Though the prosecution did not ask any question from PW6 Dr. P.K.Mittal of giving his opinion Ex.PH/1 that the appellant was capable of performing sexual intercourse yet the defence did not challenge the correctness of endorsement Ex.PH/1 as no question was asked from SI Uttam Singh during his cross-examination regarding the same.
In view of the above, there is ample corroboration to the testimony of the prosecutrix that she was subjected to forcible sexual intercourse by the appellant. At no point of time did the prosecutrix give her consent for having sexual intercourse with the appellant. Therefore, no interference is called for in the conviction of the appellant for the offence under Section 376 IPC.
The appellant has been facing the agony of criminal Crl. Appeal S-606-SB of 1998 -11- prosecution for the last about 17 years. He was a young man of the age of 21 years at the time of the occurrence. When he was heard on the quantum of sentence by the trial Court, he had stated that there was none to look after his old mother. Even his wife was all alone in the house. He had been sentenced by the trial Court to undergo rigorous imprisonment for ten years. Taking into consideration the totality of the circumstances, the Court is of the view that the sentence of imprisonment is slightly on the higher side and needs to be reduced to the minimum, i.e., seven years.
Resultantly, the conviction of the appellant for the offence under Section 376 IPC is maintained. His substantive sentence of imprisonment is reduced to rigorous imprisonment for seven years. The sentence of fine alongwith its default clause is maintained.
The appeal is, accordingly, disposed of.
( T.P.S. MANN )
July 13, 2010 JUDGE
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