Punjab-Haryana High Court
Rajveer Singh And Another vs The State Of Punjab on 22 March, 2010
Author: Hemant Gupta
Bench: Hemant Gupta, Jaswant Singh
Crl. A. No. 127-DB of 2007 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: February 22, 2010
(i) Crl.A. No.127-DB of 2007
Rajveer Singh and another .....Appellants
Versus
The State of Punjab .......Respondents
Present: Shri P.S. Ahluwalia, Advocate, for the appellants.
Shri D.S. Brar, DAG, Punjab.
(ii) Crl. A. No. 240-DB of 2007
Jagtej Singh .....Appellant
Versus
The State ofPunjab .......Respondents
Present: Shri A.P.S. Deol, Senior Advocate, with
Shri Davinderbir Singh, Advocate, for the appellant.
Shri D.S. Brar, DAG, Punjab.
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE JASWANT SINGH
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Crl. A. No. 127-DB of 2007 [2]
HEMANT GUPTA, J.
This order shall dispose of Criminal Appeal No.127-DB of 2007 filed by Rajveer Singh and Surinder Singh and Criminal Appeal No. 240-DB of 2007 filed by Jagtej Singh, against the judgment and order dated 22.1.2007 passed by the learned Sessions Judge, Jalandhar convicting appellant-Jagtej Singh, under Section 376(2)(g) IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs.30,000/-and in default of payment of fine, to further undergo RI for one year; convicting the said appellant under Section 302 IPC and sentencing him to undergo life imprisonment and to pay a fine of Rs.50,000/- and in default of payment thereof to undergo further RI for two years and both the sentences were ordered to run consecutively i.e., one after another.
Appellants Rajveer Singh and Surinder Singh @ Manga have been convicted under Section 376(2)(g) IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.30,000/- each.
The prosecution case was sent in motion on the basis of statement of the prosecutrix (Ex.PE) given to ASI Bharat Bhushan on 6.1.2005 at 5.50 p.m. She has stated that on 9.10.2004, Jagtej Singh of her village asked her to go to Devi Talab Mandir for roaming. At about 9.30 a.m., she accompanied Jagtej Singh by sitting on his motorcycle. Jagtej Singh by fraud had taken her to a vacant house in Baba Deep Singh Nagar, where Manga and Rajveer Singh of her village were already present. Jagtej Singh took her to another room and started forcibly committing rape on her without her consent. She raised an alarm, then Manga came in the room. Jagtej Singh and Rajveer Singh came out of the room. Manga Crl. A. No. 127-DB of 2007 [3] forcibly committed rape on her. Then Manga came out of the room and then Rajveer committed rape. Then all the three threatened her that in case she disclosed about the said incident to anybody, she would be done to death. Thereafter, she used to remain under fear of them and also under stress and started remaining ill. They had been terrorising and threatening her . On 6.1.2005, when in the morning she was going to school, then on way at Doaba Chowk, Jagtej Singh met her and asked her that she remains ill and if she swallows the medicine, she will get all right. On coming back from the School, she swallowed two tablets with water, given to her by Jagtej Singh and her condition became serious. Her mother and her brother Ram Lubhaya got her admitted in the Civil Hospital for treatment.
On the basis of the said statement, ruqa was sent to Station House Officer at about 5.50 p.m. On the basis of the said statement, an FIR (Exhibit PA) for the offences under Sections 376, 328, 506 and 34 IPC IPC was lodged at about 6.10-6.50 p.m. Later on vide Exhibit PC, the Duty Magistrate was requested to record the statement of Gurpreet Kaur. Vide endorsement Exhibit PC/1, the learned Magistrate recorded an order to obtain fitness certificate from the Emergency Medical Officer at about 9.40 p.m. Thereafter, on being declared fit to give statement, the Magistrate has recorded statement of Gurpreet Kaur. The said statement is Exhibit PC/2. The learned Magistrate recorded an endorsement Exhibit PC/3 believing that the statement was voluntarily made by Gurpreet Kaur and it was taken in his presence and after reading the contents of the same to her and admitted by her to be correct.
The medico legal examination was conducted by PW7- Crl. A. No. 127-DB of 2007 [4] Dr. Damanjit, Medical Officer, Civil Hospital, Jalandhar at 11.20 p.m. The report is Exhibit PH. It has been found that hymen was partially torn at left lateral region (5 O' clock position) and right lateral region (at 7 O' clock position). Vagina admitted one finger and no bleeding or discharge was seen at the time of examination. Two vaginal smeared slides and two vaginal swabs were taken and sent for chemical examination.
The post mortem was conducted by PW6-Dr. Namita Ghai, Medical Officer, Civil Hospital, Jalandhar, on 7.1.2005. The opinion about the cause of death was deferred to be given after the receipt of the chemical examiner's report. The chemical examiner in his report Exhibit PL/1 in respect of vaginal swab reported that no spermatozoas were seen in the contents of Exhibits No. I and II. In respect of viscera, the chemical examiner has reported that aluminium phosphide, a pesticide was detected in the contents of Exhibit Nos. III & IV. Phosphide, a constituent of aluminium phosphide was detected in the contents of Exhibits No. I, II & VI. No poison was detected in the contents of Exhibits No. V and that no spermatozoa was seen in contents of Exhibit Nos. 1 and II. DW15- Dr. Prem Nath Dutta has medico legally examined the appellants and has opined that there is nothing to suggest that the appellants are incapable of performing the sexual intercourse.
To prove the dying declaration, the prosecution has examined PW3-Shri Tejindervir Singh, Judicial Magistrate, Ist Class and PW13-ASI Bharat Bhushan. The prosecution has also examined PW9-Manjit Kaur, mother of the Gurpreet Kaur, PW4- Sukhpreet Singh, a neighbour and an attesting witness to the dying declaration Exhibit PC and PW5-Ram Lubhaya, cousin of the deceased.
Crl. A. No. 127-DB of 2007 [5]
PW4-Sukhpreet Singh and PW5-Ram Lubhaya have not supported the prosecution case and were declared hostile. The Public Prosecutor has cross-examined the aforesaid witnesses.
PW9-Manjit Kaur has deposed that on 6.1.2005 her daughter Gurpreet Kaur told her that on 9.10.2004, Jagtej Singh had taken her to Baba Deep Singh Nagar, on the pretext of going to Devi Talab Mandir. In the house of Baba Deep Singh Nagar, Rajbir Singh and Manga were also present. She had further told the witness that all the aforesaid accused had forcibly committed rape on her. She also deposed that Gurpreet Kaur told her that on 6.1.2005 Gurtej Singh had given her some tablets and she consumed the same with water. In cross-examination, she has deposed that before 6.1.2005, she had no knowledge that the accused took her daughter to Baba Deep Singh Nagar and have had forcible sexual intercourse with her. She denied the suggestion that her daughter did not disclose any circumstance under which she has consumed the tablets or her having been forcibly subjected to sexual intercourse. She denied the suggestion that she told Ram Lubhaya and others that she had consumed the pills of her own. She denied that her daughter was feeling upset on account of the conduct of Amarjit Kaur, her husband's sister in character assassination of her daughter. She stated that her daughter did not disclose to her that she had consumed the pills, which are kept for wheat preservation. There was no suggestion put to the witness that Surinder Singh is not known as Manga.
Appellant-Jagtej Singh in his statements under Section 313 Cr.P.C., took up a stand that he was present in his class on 9.10.2004 and 6.1.2005 and that a false case has been registered against him. Accused Rajveer Singh and Surinder Singh denied Crl. A. No. 127-DB of 2007 [6] the prosecution case in its entirety. Jagtej Singh examined DW1- Sudesh Kumar, who brought the summoned attendance register of the students for the year 2005-06, and DW2-Ravi Kumar, an adhoc teacher, who was teaching in Labhu Ram Doaba School of Secondary School, Jalandhar, reportedly marked appellant-Jagtar Singh present on 9.10.2004 and 6.1.2005.
Learned counsel for the appellants has vehemently argued that deceased-Gurpreet Kaur has been improving her statement from the one recorded in Bed Head Ticket than the one given to the police (Exhibit-PC) on the basis of which FIR was recorded and then statement made before the Magistrate. The said fact clearly shows that she has been tutored to give such statement. It is further argued that on the basis of the dying declaration recorded by the learned Magistrate, which is more authentic and in close proximity to her death, it is apparent that she has stated that tablets meant to be kept in wheat were given to her at 8.30 a.m., but such tablets were swallowed at 11-11.30 when she reached back home. Therefore, the appellant-Jagtej Singh cannot be attributed any liability for causing death of Gurpreet Kaur. The only allegation is of handing over the poisonous substance to Gurpreet Kaur. She has swallowed the same at her home after about three hours. It shows that in fact, it was a case of suicide as the celphos tablets i.e. tablet of Aluminium Phosphide emits pungent smell and nobody can bear the smell of such pungent tablets at the asking of a third person. It is so recognised by the Hon'ble Supreme Court in Jaipal v. State of Haryana, AIR 2002 Supreme Court 3447. The cause of death is not directly attributed to the appellant Jagtej Singh, therefore, his conviction under Section 302 IPC is not sustainable. Crl. A. No. 127-DB of 2007 [7]
It is also argued that the offence under Section 376(2)(g) IPC is not made out as it was a voluntary act on the part of the deceased to join appellant-Jagtej Singh for going to Devi Talab Mandir. She has voluntarily accompanied the appellant on the motorcycle. Since Gurpreet Kaur was more than 16 years of age, it is a case of consensual sex. Such consent is apparent for the reason that no external or internal injury was found on her person and that for almost three months, she did not make any grievance to any person. The medical report suggests only partial rupture of hymen and that there was no symptom of withdrawal from the society or from the family which can show that the deceased was under stress or deprivation on account of alleged act of sexual intercourse. Therefore, the conviction of the appellant for an offence under Section 376 IPC is again not tenable.
Lastly it is argued that learned trial Court has ordered punishment for an offence under Section 376(2)(g) and 302 IPC to run consecutively, which is not permissible as the appellants can be convicted for one life alone. It is contended that the consecutive sentencing of the appellant-Jagtej Singh for life is not tenable. Reliance is placed upon Ranjit Singh v. Union Territory of Chandigarh and another, 1991 SCC (Criminal) 965; State of Maharashtra v. Najakat Alia Mubarak Ali, 2001(1) SCC (Crl.) 1106 and Chatar Singh v. State of M.P. AIR 2007 SC 319.
Shri Ahluwalia, learned counsel for appellants Rajveer Singh and Surinder Singh has supported the arguments in respect of consensual sex, but also argued that partial rupture of hymen is in fact indicative of lack of multiple sexual intercourse. It is also argued that there is no proximity between the act of sexual intercourse on 9.10.2004 and death on 6.1.2005. Therefore, the Crl. A. No. 127-DB of 2007 [8] conviction of the appellants for an act of sexual intercourse is unjustified. Lastly, it is argued that there is no evidence that Manga is the same person as Surinder Singh. PW5-Ram Lubhaya, who has stated in his statement under Section 161 Cr.P.C. that Surinder Singh is known as Manga has not supported the prosecution case and that there is no other evidence of the fact that Surinder Singh is also known as Manga.
The prosecution case is primarily based upon Exhibit- PE recorded by PW13- Bharat Bhushan and Exhibit PC/2 recorded by PW3-Tejindervir Singh. The Bed Head Ticket has not been produced in evidence though PW10-Dr. Gurmeet Kaur has brought the record of Bed Head Ticket. She has deposed that Gurpreet Kaur has given case history and told her that she has swallowed two tables of celphos and has been vomiting on the way. The statement Exhibit-PE given to ASI Bharat Bhushan, is not materially different than what was stated to the Doctor except that she has not named the tablet that of celphos. In the statement Exhibit PC/2 recorded by the Judicial Magistrate, she has stated that she was given the tablets which are kept in wheat. Keeping in view the statement made before the learned Magistrate and also the judgment of the Hon'ble Supreme Court in Jaipal's case (supra), we find it difficult that the deceased can be misrepresented to swallow the two tablets of celphos, emitting foul smell for her well being. The act of giving tablet simpliciter cannot be said to be an act of causing culpable homicide. It is an abetement to commit suicide falling within the meaning of Section 306 IPC and an offence under Section 328 IPC as it contemplates that whoever administers to or causes to be taken by any person any poison with intent to cause hurt to such person, or with intent to commit Crl. A. No. 127-DB of 2007 [9] or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
As per the dying declaration, the deceased knew Jagtej Singh very well as both are from the same village. She accompanied Jagtej Singh on a motorcycle on 9.10.2004. There is no reason to disbelieve her dying declaration Exhibits PE and PC/2, when she states that she was taken to Baba Deep Singh Nagar and subjected to sexual intercourse by all the three accused. Such statement is corroborated by medical evidence as well when the hymen is found to be partially ruptured. She cannot be said to be used to sexual intercourse as vagina was only admitting one finger. The dying declaration of Gurpreet Kaur relied upon by the prosecution disclosed the circumstances, which resulted in her death. Thus, such dying declaration is admissible and can be made basis of conviction of the appellants. In Tarkeshwar Sahu v. State of Bihar (now Jharkhand), (2006)8 Supreme Court Cases 560, it was held that even the slightest penetration will be sufficient. Whereas penetration was proved, but not of such a depth as to injure the hymen, still it was held to be sufficient to constitute the crime of rape.
The accused and the deceased are of almost of the same age group, all being students of 10+2 class and of the same village. The guilt that she had been sexually assaulted by three of her co-villagers seems to be weighing in her mind, which led Jagtej Singh to give her the tablets. The statement of deceased Exhibit PE that appellant-Jagtej Singh told her that such tablets will do good to her, is to remove the feeling of guilt by prompting her to take Crl. A. No. 127-DB of 2007 [10] her life. The threat to Gurpreet Kaur that she will be done to death in the event of disclosure of the act of rape, cannot be said to unjustified as the accused are the residents of the same village. The disclosure of this fact to the police would have been damaging to her reputation and stay in the village. Therefore, for Jagtej Singh, prompting Gurpreet Kaur to end her life, was the best course. The appellant-Jagtej Singh cannot be said to be unknown of the consequence of handing over such tablets to Gurpreet Kaur. Jagtej Singh has abeted Gurpreet Kaur to swallow celphos tablets. But since the tablets have been swallowed by Gurpreet Kaur herself after almost three hours of the tablets being handed over to her, it is a case of conviction under Section 306 IPC.
Appellant-Jagtej Singh is proved to have given poisonous substance to Gurpreet Kaur with the intent to facilitate commission of an offence of suicide. Jagtej Singh-appellant, by handing over celphos tablets to Gurpreet Kaur has facilitated for commission of an offence of administration of poison to Gurpreet Kaur, which is punishable under Section 328 IPC. Therefore, we modify the conviction of the appellant for an offence under Section 302 IPC to the one under Section 306 IPC read with Section 328 IPC. Such modification of sentence is permissible in view of the judgment of the Supreme Court in Dalbir Singh v. State of Punjab, (2004)5 SCC 334, wherein it was held that any error, omission or irregularity in the charge including any misjoinder of charges shall not result in invalidating the conviction or order of a competent court unless the appellate or revisional court comes to the conclusion that a failure of justice has in fact been occasioned thereby. In the present case, Jagtej Singh has been convicted for an offence under Section 302 IPC, whereas we have found that an Crl. A. No. 127-DB of 2007 [11] offence punishable with lesser punishment i.e. offence under Section 306 and 328 IPC is proved to have been committed by the appellants. Therefore, on the evidence adduced by the parties, there is no failure of justice or any prejudice which can be said to be suffered by the appellant in this connection.
The argument that Gurpeet Kaur has not made any grievance in respect of the alleged incident on 9.10.2004 and it is a case of consensual sex, is again not tenable. As per the evidence on record, the appellants and the deceased are residents of the same village. They are known to each other well. The appellant Jagtej Singh has misused that confidence when he took her to a house in Baba Deep Singh Nagar and subjected her to his lust. Not only that, he also joined other boys of the same village in the act of committing sexual intercourse. In cross-examination, PW9-Manjit Kaur, mother of Gurpreet Kaur, has been asked about the character assassination by Amarjit Kaur and rumours in the village about the reputation of the deceased. May be, the mother was not aware of the commission of sexual intercourse of her daughter, but the fact that the others in the village may be knowing about it, cannot be ruled out. Still further a young girl of 17/18 years of age could not get over the guilt attached with the violation of her body. She reacted to it when she swallowed the celphos tablets given by Jagtej Singh. Therefore, the fact that she has not made any grievance soon after the alleged violation of her person, is not sufficient to return a finding of consensual sex. She was medico legally examined after almost three months. Therefore, after three months of the incident, lack of finding any injury on the person of Gurpeet Kaur in the medico legal or post mortem examination, will not materially change the position. Therefore, the conviction of the Crl. A. No. 127-DB of 2007 [12] appellants for an offence under Section 376(2)(g) IPC cannot be said to be unjustified or illegal.
The argument of Shri Deol that the accused Jagtej Singh has attended his class on 9.10.2004 and 6.1.2005 is again of not much significance as the attendance marked in the school register is not conclusive of the fact that the appellant remained in the school throughout. The prosecution witnesses have not been examined in respect of absence of Jagtej Singh on two dates i.e. 9.10.2004 and 6.1.2005.
The argument that there is no nexus that the incident of rape on 9.10.2004 with the act of death on 6.1.2005, is not tenable. The genesis of the commission of the offence is the act of gang-rape on 9.10.2004. It is the deprivation, after effects and the mental trauma which prompted the deceased to take her life with the intervention of Jagtej Singh, who supplied her celphos tablets. Therefore, we do not find any substance in the said argument raised by the learned counsel for the appellants.
The argument that Manga has not been identified as Surinder Singh, is not tenable. PW9-Manjit Kaur has deposed that Manga is an accused, who committed rape on her daughter as told to her by Gurpreet Kaur. She has further deposed that all the aforementioned accused had jointly committed rape on her. Said aspect has not been disputed in cross-examination. Therefore, the identity of the appellant Surinder Singh as as Manga was not disputed before the learned trial Court. Another fact, which is relevant is that appellant Surinder Singh moved an application for bail before the learned trial Court. In such application for bail under Section 439 of the Code of Criminal Procedure, Surinder Singh has described himself as `alias Manga'. Such application is Crl. A. No. 127-DB of 2007 [13] supported by an affidavit of Karnail Singh, father of Surinder Singh and he has deposed that the deponent is father of Surinder Singh alias Manga. Even in the second bail application filed on 13.3.2005, the accused is described as Manga in the cause title as well as in the note. Therefore, it is ingenuity on the part of the learned counsel for the appellant before this Court to raise an argument that the identity of the accused has not been established. Such identification was not disputed before the trial Court.
Learned counsel for the appellant has vehemently argued that in terms of Section 31 of the Code of Criminal Procedure, the Court can direct that the punishment after conviction at one trial of two or more offences shall run concurrently, but in case of consecutive sentence falling in sub Section (2) of Section 31, two imprisonment for a longer period than 14 years cannot be ordered. Therefore, once the appellant Jagtej Singh has been convicted for life, the punishment for life to run after one another is not sustainable. Reference is made to the judgment rendered in Chatar Singh's case (supra). We need not examine the said question as the conviction for an offence under Section 302 IPC has been found to be not sustainable and for the reason that the appellants are not being convicted for life for an offence under Section 376 IPC.
The appellants are young in age. They have committed heinous crime at the threshold of their carrier without understanding the gravity of offence. There is no previous history of their indulgence in any crime. They have continued with their studies while undergoing sentence as well. Therefore, we find that life imprisonment is a harsh punishment.
In view of the above, we partly allow both the appeals, Crl. A. No. 127-DB of 2007 [14] convict the appellant Jagtej Singh for an offence under Section 376 (2)(g), 306 and Section 328 IPC and sentence him to undergo punishment for 10 years and to pay fine of Rs.1 lac (i.e. by enhancing the same from Rs.50,000/- to Rs.1 lac.). Appellants Rajveer Singh and Surinder Singh are convicted for the offence under Section 376(2)(g) IPC and sentenced to undergo RI for 10 years and to pay a fine of Rs.1 lac (i.e. by enhancing the same from Rs.30,000/- to Rs.1 lac). In the event of default of payment of fine, the appellants shall further undergo RI for a period of one year.
[ HEMANT GUPTA ] JUDGE [ JASWANT SINGH ] JUDGE February 22, 2010 ds