Punjab-Haryana High Court
Sucha Singh vs State Of Punjab on 7 November, 2013
Author: Anita Chaudhry
Bench: Anita Chaudhry
Crl. A. No. 944-DB of 2009 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. A. No. 944-DB of 2009
Date of decision: 07-11-2013
Sucha Singh ... Appellant
Versus.
State of Punjab ... Respondent
CORAM:- HON'BLE MR. JUSTICE M. JEYAPAUL
HON'BLE MRS. JUSTICE ANITA CHAUDHRY
Present: Mr. S.S.Behl, Advocate,
for the appellant
Mr. B.S.Bhalla, Addl. AG Punjab
for the respondent.
...
1) Whether the judgment should be reported in the Digest ?. Yes ...
M. JEYAPAUL, J:
1. Accused Sucha Singh has challenged the conviction and sentence passed by the trial Court for the offence under Sections 302/376/363 of the Indian Penal Code.
2. The first information report suffered by the prosecutrix who later on died gives cogent account of the case of the prosecution. The same reads as follows:-
The prosecutrix was the resident of Patti Falian Di, Khadoor Sahib. She had passed 9th class at Government Senior Secondary School, Khadoor Sahib. On the intervening night of 8/9.10.2003 at about 12.30 PM Singh Jagjit 2013.11.18 10:55 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. A. No. 944-DB of 2009 2 when she went out to ease herself in the latrine adjoining her house due to some pain in her abdomen, the electric bulb was on. After easing herself, she came out to wash her hands. Accused Sucha Singh resident of Patti Falian Di was standing over there. He caught hold of her by her arm and pushed her to water tank near the Agricultural complex where he committed rape upon her without her consent. Thereafter, he threw her from the stairs of the water tank which was about 20-25 feet high. When she was in a semi conscious condition, her father PW-3 Baldev Singh and her uncle PW-6 Dalbir Singh came to the water tank and they took her to the Civil Hospital, Mianwind, after arranging a vehicle. As there was no doctor available over there, she was referred to Civil Hospital, Tarn Taran. PW-3 Baldev Singh is the father of the prosecutrix and PW-6 Dalbir Singh is the paternal uncle of the prosecutrix. The prosecutrix informed them that she was raped by the accused and thereafter, she was pushed by him from the water tank's stair-case and as a result of which she fell down and sustained injuries.
3. PW-1 Dr. Gagandeep Kaur medico-legally examined the prosecutrix on 10.10.2003 at about 4 PM. The prosecutrix alleged that she was sexually assaulted on 9.10.2003 at about 2.30 AM. She had a history of trauma on the said day at 6 AM due to fall from a height. She was brought to the hospital on 9.10.2003 at 12.15 PM in a semi-conscious condition with blunt injuries on her abdomen and back. The following injuries were found on her person:
(1) Hymen was torn and the margins were irregular. Vagina easily admitted two fingers. On local examination as regards the allegation of sexual assault, the doctor found that there was no Singh Jagjit 2013.11.18 10:55 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. A. No. 944-DB of 2009 3 sign of any fresh injury. No evidence of any struggle or trauma was found.
(2)She complained of pain in her abdomen. On examination, opigastric area was found mildly tendered. The liver dullness oblitrated clinically, X-ray of abdomen was advised. (3) She complained of back pain and was unable to move her legs.
She was also unable to pass urine. She complained of loss of sensation below umbilicus. On examination, there was complete sensory loss below the deteni level with complete paraplagla with retention of urine. In the opinion of the doctor, blunt edged weapon had been used for causing injuries No. 2 and 3. The semenal swab was sent for examination. On the basis of the report submitted by the Chemical Erxaminer, she had declared injuries 2 and 3 dangerous to life. The prosecutrix was subjected to sexual inter-course, she opined.
4. On 16.1.2004, at about 3 AM, the prosecutrix died in the hospital.
5. PW-2 Dr. Inder Mohan Gupta conducted post-mortem examination on the dead body of the prosecutrix on 17.1.2004 at about 10.30 AM. He found the following symptoms on the dead body:
"1. Large area of foul smelling bed sores on both the blutaal region.
2. There was an old scar mark present on the left sixth inter- coastal space on the lateral side of chest.
3. There were also foul smelling bed sores at both the scapular Singh Jagjit 2013.11.18 10:55 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. A. No. 944-DB of 2009 4 regions.
4. There was also bed sore on both the heels."
6. The Board of Doctors including PW-2 Dr. Inder Mohan Gupta who conducted the post-mortem examination opined that the prosecutrix died due to septicaemia which was sufficient to cause death in the ordinary course of nature. PW-14 Dr. R. S. Boparai brought the Bed Head Ticket Exhbit PW- 14/A disclosing the medical treatment given to the prosecutrix. The accused was arrested on 30.10.2003 and was remanded to judicial custody by PW-9 SI Jang Bahadur Sharma who took up the case for investigation.
7. In the statement under Section 313 Cr,P.C.,the accused took up a plea that he was innocent but a false case was foisted upon him.
8. On the side of the defence, DW-1 Amarjit Singh, Mali-cum- Chowkidar was examined. He brought the attendance register Exhibit D-1 to show that he was very much present at the premises of the Water Tank on the intervening night of 8/9.10.2003 and deposed that he had not met anyone during that period.
9. Trial Court having relied upon the first information report suffered by the prosecutrix before her death, the testimony of PW-3 Baldev Singh and PW-6 Dalbir Singh in the background of medical evidence on record, recorded a verdict of conviction as against the accused as stated supra.
10. Learned counsel appearing for the appellant would vehemently submit that the medical evidence did not match with the first information report or the testimony of PW-3 and PW-6. The post-occurrence conduct of PW-3 throws doubt on the case of the prosecution. The prosecution had come out with an artificial version that the victim sustained injuries not only on the Singh Jagjit 2013.11.18 10:55 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. A. No. 944-DB of 2009 5 back side of her body but also on her abdomen without any other injury on any part of the body due to the alleged push given by the accused from a height of about 25 feet. There was no fresh mark of injury on the private parts. The love letters produced by the defence were not properly weighed by the trial Court. The very fact that no Judicial Magistrate was associated for recording dying declaration creates a doubt in the case of the prosecution.
11. Per contra, learned counsel appearing for the State would submit that the charge of rape was established by the prosecutrix herself through her dying declaration. The evidence of PW-3 and PW-6 completely corroborated the dying declaration in the form of first information report suffered by the prosecutrix. The trial Court rightly passed a verdict of conviction, it was submitted.
12. The occurrence had taken place during the mid of night. PW-6 Dalbir Singh was also residing with his family members in the very same campus where the prosecutrix was living with her father PW-3 Baldev Singh and her brother who had come on leave from the Army. Nothing had been whispered in the first information report that the mouth of the prosecutrix was gagged by the accused. She had simply stated that the accused caught hold of her by her arm and pushed her to the water tank in the agricultural complex where he committed rape upon her. Had she raised an alarm, her family members or the family members of her paternal uncle or the family members of other inhabitants of the village would have woken up to rescue her. As she had not been gagged, she had every possible opportunity to raise her protest raising her voice. The very fact that she had not protested in such a fashion would go to show that she had meekly submitted herself to the desire of the Singh Jagjit 2013.11.18 10:55 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. A. No. 944-DB of 2009 6 assailant.
13. The prosecutrix who was in the age group of 19/20 would have used all her force at her command to wriggle out of the clutches of the assailant and in the process the assailant would have sustained some injury. She would also have been subjected to some scratches by the assailant but there is no evidence to show that either the prosecutrix or the assailant sustained any scratches on their body.
14. The prosecutrix had been allegedly taken to an agricultural complex where the water tank was located. The prosecutrix had submitted in her first information report that she was raped against her will but the medico legal report issued by the team of doctors headed by Dr. Gagandeep Kaur would show that there was no fresh bleeding at all found from the vagina of the prosecutrix. That apart, there was no bruise or scratch found in the private part of the prosecutrix. Never had the prosecutrix stated in her first information report that she was raped under threat by the accused. Under such circumstances, the prosecutrix who was quite young would have definitely resisted the onslaught of the accused who had not gagged her mother and wielded threat to her life.
15. To top it all, the prosecution had come out with a totally unbelievable story that the prosecutrix sustained injury in the back and also in the abdomen on account of a fall from the stair-case of the water tank with a height of 25 feet. If a person was thrown from such a height, the victim would have spontaneously made an attempt to save his head and trunk by landing both hands and legs on the floor. The hands and legs would have sustained at least simple injuries, if not grievous one. Surprisingly, not even a scratch was Singh Jagjit 2013.11.18 10:55 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. A. No. 944-DB of 2009 7 found on any part of the body of the prosecutrix despite the fact she was allegedly pushed by the accused from a height of 25 feet. The medico legal report produced by PW-1 would go to show that the injury on the abdomen and on the back had been caused by a blunt edged weapon. There was no explanation offered by the prosecutrix or by PW-3 or PW-6 that as to how the prosecutrix sustained injury on the abdomen and back with the attack launched by blunt edged weapon.
16. We also find that a person who falls on the ground may receive an injury either on the back or on the abdomen and not on both parts as the abdomen and the back would not be exposed simultaneously to the floor to receive grievous injury. In fact the injuries sustained by the prosecutrix had completely immobilized her below the abdomen. Such an incongruous version of the prosecutrix creates doubt in the mind of the Court. Rather we may conclude that the prosecutrix, as rightly pointed out by the counsel for the appellant, had come out with an artificial version suppressing the real story which culminated in the injuries sustained by the prosecutrix.
17. PW-6 had admitted during the course of cross-examination that all the family members of PW-3 and PW-6 had been in search of the prosecutrix right from 12.30 AM on 9.10.2003. It is not as if the prosecutrix was found immobilized in a secluded place. She was spotted at about 8.30 AM in the water tank area. Firstly, there would not have been any obstacle for the family members to spot the prosecutrix lying underneath the water tank at least in the early hours of 9.10.2003 but it had been projected by PW-3 and PW-6 that they could locate the prosecutrix from underneath the water tank only at 8.30 AM. It is the admitted version of PW-3 and PW-6 that a crowd had Singh Jagjit 2013.11.18 10:55 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. A. No. 944-DB of 2009 8 already gathered at the scene of crime. If a villager had first spotted the prosecutrix lying underneath a water-tank, he would have rushed to the house of the prosecutrix to pass on the information but unfortunately, after the crowd had collected, PW-3 and PW-6 had come to the scene of crime. Their conduct after the scene of occurrence is also found to be absolutely doubtful. PW-3 being the father would have immediately rushed the prosecutrix to the hospital for treatment but he had chosen to go over to the police before ever taking her to the hospital for treatment.
18. On a perusal of the medico legal report and the bed-head ticket, we find that the theory of pushing the prosecutrix by the accused from the stair-case of the tank had been given up by the prosecutrix. Rather it had been projected that the prosecutrix sustained injuries on account of a fall .
19. The first information report was allegedly recorded not in the presence of the doctor but of course the doctor would depose that the prosecutrix was in a fit state of mind. It is baffling that the Investigating Official had chosen not to solicit the services of a Judicial Magistrate for recording the dying declaration in spite of the fact that the prosecutrix had survived for three long months.
20. DW-1 was the Mali-cum-Chowkidar posted at the water tank premises. He had supported his version that he was very much present, on the intervening night of 8/9.10.2003, in the premises of the water tank by producing the attendance register Exhibit D-1. It was his categoric version that no one came to the water tank area on the intervening night of 8/9.10.2003. His evidence fortified by the attendance register Exhibit D-1 cannot at all be discarded. If such an occurrence had taken place within the premises of water Singh Jagjit 2013.11.18 10:55 I attest to the accuracy and integrity of this document High Court, Chandigarh Crl. A. No. 944-DB of 2009 9 tank which was guarded by DW-1, DW-1 would have been called upon to explain the occurrence which took place when he was on duty. Nothing is on record to show that any charge memo. was issued calling upon him to explain his lapse.
21. In the above background of the case, the love letters produced by the defence will have to be viewed seriously. The love letters Exhibits DA, DB and DC would go to demonstrate that they had not been fabricated for the purpose of this case. The said love letters also throw doubt on the case of the prosecution that the accused having abducted the prosecutrix, committed rape upon her and thereafter, threw her with an intention to murder her.
22. For the foregoing reasons, we find that the prosecution had miserably failed to establish the charges framed as against the accused. Giving benefit of doubt to the accused-appellant, he is acquitted of all the charges framed against him. Accused-appellant is ordered to be set at liberty forthwith if he is not required in connection with any other case. Consequently, reversing the judgment of conviction and sentence recorded by the trial Court, the present appeal is allowed.
( M. JEYAPAUL )
JUDGE
November 07, 2013 ( ANITA CHAUDHRY )
JS JUDGE
Singh Jagjit
2013.11.18 10:55
I attest to the accuracy and
integrity of this document
High Court, Chandigarh