Punjab-Haryana High Court
Daler Singh And Ors. vs The State Of Haryana on 6 January, 1994
Equivalent citations: 1995CRILJ614
JUDGMENT S.S. Grewal, J.
1. This appeal directed against the orders of Additional Sessions Judge, Karnal, dated 21st September, 1992 whereby Daler Singh, and Nishan Singh appellants were convicted under Section 376 of the Indian Penal Code and each one of them was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 500/-. In default of payment of fine each one of them was ordered to undergo further rigorous imprisonment for two months. Both of them were also convicted under Section 506 of the Indian Penal Code and each of them was sentenced to undergo rigorous imprisonment for two years, whereas, Gurmej Singh appellant was convicted under Section 354 of the Indian Penal Code and was directed to pay a fine of Rs. 2000/- and in default of payment of fine to undergo further rigorous imprisonment for nine months.
2. In brief facts of the prosecution case as emerge from the first information report recorded at the Police Station on the statement of Gurnam Kaur prosecutrix aged about 17 years are that on 3-8-1991 at about 1 P.M. while she was returning from her fields after serving food to her father and when she reached near the field of Surain Singh, Daler Singh, and Nishan Singh accused came there. Both of them caught hold of her from her arms and took her inside the nearby Charri field. Nishan Singh accused broke open the string of her salwar and then committed rape on her. Thereafter Daler Singh accused committed rape on her without her consent. Thereafter the accused allegedly committed rape on her one by one. On hearing her noise Gurmej Singh accused who belongs to the same village came there and caught hold of the prosecutrix from her breasts and kissed her. Her uncle Gurbachan Singh happened to come there, when she was trying to escape from the clutches of the accused and on seeing her uncle, all the three accused ran away from the spot. While leaving the accused threatened the prosecutrix that if she told about the incident to anybody, then her family members as well as that of Gurbachan Singh would be done to death. Out of fear she did not disclose anything to her uncle Gurbachan Singh. Because of poverty her parents remained silent. On 9-8-1991 at about 1 PM. while she was again returning from her fields Daler Singh and Nishan Singh accused caught hold of her from her arms and tried to drag her inside the field. The prosecutrix raised alarm hearing which both the accused ran away. The prosecutrix could not bear this humiliation and she narrated the entire occurrence to her uncle Kundan Singh who along with her went to Police Station, Bhutana on the following day and lodged the first information report. After getting Gurnam Kaur medically examined, arresting the accused, they were challanged, tried, convicted and sentenced as stated earlier.
3. The learned Counsel for the parties were heard.
4. The learned Counsel for the appellants has assailed the testimony of the prosecutrix mainly on the ground that apart from the fact that there is inordinate delay of about a week in lodging the first information report, Gurnam Kaur prosecutrix who is a woman of easy virtue and was used to sexual intercourse has changed her version from stage to stage and is a wholly unreliable witness. It was further contended that her testimony on salient features of the prosecution story is amply contradicted by other independent evidence on the record.
5. According to the prosecutirx first incident took place on 3-8-1991 when she was forcibly taken by Daler Singh and Nishan Singh accused inside the Charri field and was ravished by them. Thereafter Gurmej Singh accused came there and tried to fondle with the breasts and kissed the prosecutrix. On seeing her uncle Gurbachan Singh all the three accused ran away. For reasons best known to the prosecution, Gurbachan Singh who is a close relation of the prosecutrix has not been produced by the prosecution. So the most material witness, whose testimony could have lent independent corroboration to the version given by the prosecutrix has not been produced in this case. No plausible explanation has been put forth for not examining this witness. In these circumstances from non-production of Gurbachan Singh as a prosecution witness in this case adverse inference can be reasonably drawn against the prosecution that in case he had been examined he would not have supported the prosecution case.
6. Delay of about seven days in lodging the first information report with regard to the first occurrence is sought to be explained on the ground that before leaving, the accused had threatened the prosecutrix that in case she disclosed the incident either to her parents, her family members or that of her uncle Gurbachan Singh, would be done to death and due to fear she did not disclose anything to her uncle Gurbachan Singh and her parents also kept mum because of their poverty. During the trial the prosecutrix stated that on returning home she had narrated the incident to her father who went and lodged a protest about the incident with Mohinder Singh father of Daler Singh but Mohinder Singh paid deaf ear to their protest. It is pertinent to note that Boor Singh father of the prosecutrix who is a material witness in this case has not been examined. Nor any plausible explanation has been put forth as to why he was not examined as a prosecution witness. From this circumstances adverse inference can reasonably be drawn against the prosecution that in case he had been examined he would not have supported the version given by the prosecutrix. The explanation given by the prosecutrix concerning inordinate delay of seven days in lodging the first information report thus cannot be taken to be correct. Even otherwise there was ample time for the prosecutrix to introduce a coloured version of her choice after making due deliberations and consulations, to falsely implicate the accused during this period.
7. The prosecutrix also made significant improvements during the trial. In her earliest version before the police she has stated that after Nishan Singh and Daler Singh committed rape on her they again committed rape on her one by one, whereas, during the trial she stated that the accused raped once each. She also introduced for the first time during the trial that while Nishan Singh committed rape on her Daler Singh his co-accused caught hold of her arm and gagged her mouth, whereas, in her earlier statement either before the police or in her statement recorded under Section 164 of the Code of Criminal Procedure Ex. DA she has not said a word about it. She had mentioned that in spite of her crying, the two accused committed rape on her. This aspect of the case contradicts the version that her mouth was gagged while the accused committed rape on her.
8. The second incident is alleged to have taken place after six days i.e. on 9-8-1991. According to the prosecutrix she was returning from her fields to her house and when she reached near the field of Surain Singh, Daler Singh and Nishan Singh met her. Both of them caught hold of her from her arms and tried to drag inside the Charri field. Kundan Singh came there and on seeing him coming the accused ran away. Kundan Singh did state during the trial that he had seen the two accused dragging the prosecutrix to the Charri field of Surain Singh. He was duly confronted with his statement before the police Ex.DB wherein it was not so recorded whereas in the earliest version before the police he had stated that he had seen Gurnam Kaur coming out from the Chari field of Surain Singh and the accused were following her and that she was not crying at that time.
9. Another significant aspect of the case is that both Daler Singh and Nishan Singh accused are cousins and Gurmej Singh is their uncle. It is highly improbable that the two cousins would commit rape on the prosecutrix in each other's presence of their uncle Gurmej Singh accused would try to molest her in the presence of his nephews.
10. Medicolegal examination of the prosecutrix reveals that she was used to sexual intercourse. Taking into consideration the inherent probabilities and the material contradiction referred to above in the prosecution story no implicit reliance can be placed on the testimony of the prosecutrix who is a woman of easy virtue and seems to be a consenting party.
11. For the foregoing reasons, I am of the considered view that the prosecution has not been able to bring home charge against the appellants beyond reasonable doubt, and as an abundant caution giving the benefit of doubt I hereby acquit the appellants by setting aside the order of conviction and sentence passed by the learned trial Court. This appeal is accordingly allowed.