Punjab-Haryana High Court
Bikramjit Singh And Others vs State Of Punjab on 21 December, 2013
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
CRA-109-SB-1997 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.109-SB of 1997
Reserved on : 26.09.2013
Date of Decision : 21.12.2013
Bikramjit Singh and others
.......Appellants
Versus
State of Punjab
.......Respondent
CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Mr. Puran Singh Hundal, Sr. Advocate,
with Mr. H.S. Bajwa, Advocate,
for the appellants.
Mr. Mehardeep Singh, DAG, Punjab
****
JITENDRA CHAUHAN, J.
The present appeal, which was decided by a Co- ordinate Bench of this Court, vide judgment/order dated 22.01.2008, has been received back from Hon'ble the Apex Court, for afresh disposal, in terms of the order dated 10.07.2013, passed in Supreme Court Criminal Appeal No.1222 of 2008. The operative part of the order passed by their Lordships is as under:-
"xxx xxx xxx xxx xxx In our opinion, the High Court had not decided the appeal as was expected from it. Hence, Sethi Atul 2014.01.20 17:25 I attest to the accuracy and integrity of this document Chandigarh CRA-109-SB-1997 -2- we deem it expedient that the matter be heard by the High Court afresh in accordance with law.
The appellants are on bail. They shall continue to remain on bail till the disposal of the appeal.
In the result, the appeal is allowed. The impugned judgment and order of the High Court is set aside and the matter is remitted to it back for re- hearing and disposal in accordance with law." The appellants have preferred the present appeal assailing the judgment and order dated 24.01.1997, passed by the Addl. Sessions Judge, Amritsar, (for short, 'the trial Court'), whereby, they have been convicted and sentenced as under:-
Bikramjit Singh Section 366 IPC RI for 10 years and fine of `1,000/- or in default of payment of fine, to further undergo RI for 01 year Bikramjit Singh Section 376 IPC RI for 10 years and fine of Raj Mohinder Singh `1,000/- or in default of Jasbir Singh payment of fine, to further undergo RI for 01 year However, both the sentences of appellant- Bikramjit Singh, were ordered to run concurrently.
The brief facts of the case in hand, as recorded by the learned trial Court, are thus:- Sethi Atul 2014.01.20 17:25 I attest to the accuracy and integrity of this document Chandigarh CRA-109-SB-1997 -3-
"The prosecution story, in brief, is that on 29.5.1994, Mohinder Singh ASI alongwith other police officials was present on the road near interrogation Centre, Amritsar in connection with search of bad elements, Rupinder Kaur complainant alongwith her father got recorded her statement in which she disclosed that she is resident of Naushehra Nangli and her father does the work of agriculture. She studies in 10th Class, in Govt. Senior Secondary School, Mall Road, Amritsar. Some times she used to go to school on cycle and some times on bus. On 28.5.94, she boarded in a bus from her village Nangli Naushehra at about 7 a.m. and the bus reached Chowk Rattan Singh at 7.30 a.m. She was standing there in search of a rickshaw when Bikramjit Singh accused who is employed in the police came on a scooter No.PB-02-E-2174 and asked her where she wanted to go. She disclosed him that she is to go to her school. Bikramjit Singh offer a lift to her to which she refused to go with him. But on pressing hard by him she sat on his scooter. On the way Bikramjit Singh accused Sethi Atul 2014.01.20 17:25 I attest to the accuracy and integrity of this document Chandigarh CRA-109-SB-1997 -4- told her that he has some work in Ranjit Avenue, and after giving message he will leave her in the school. They reached Kothi No.575 B Block in Ranjit Avenue, where he opened the lock and took her in a room after locking the scooter. Where he gave her water. After some time two other persons came there who were being called Raj Mohinder Singh @ Bittu and Jasbir Singh @ Babbu to whom she had seen earlier roaming with Bikramjit Singh accused. They locked the room and they asked her to remove her clothes. On her refusal they forcibly removed her clothes and then they committed rape upon her against her will one by one. After this incident Bikramjit Singh brought her in Rattan Singh Chowk and she came to her village and told the incident to her parents. A ruqa was sent to the police station for registration of the case. The complainant and the accused were got medically examined and after completion of necessary investigation the accused were challaned and sent up for trial to the Court."
Upon completion of investigation and presentation Sethi Atul 2014.01.20 17:25 I attest to the accuracy and integrity of this document Chandigarh CRA-109-SB-1997 -5- of challan, the accused-appellants were charged under Sections 366, 376 IPC, to which they pleaded not guilty and claimed trial.
In order to substantiate the charges against the accused, the prosecution examined the following witnesses:-
PW1, Dr. Sant Parkash Singh Dhillon, examined the accused-appellants and found them capable of performing sexual intercourse.
PW2, Dr. Amrit Pal Kaur, Medical Officer, Civil Hospital, Amritsar, medically examined the prosecutrix on 29.5.94 at 5.15 p.m. She proved the MLR, Ex.PW2/A. Ex.PW2/C is the report of the Chemical Examiner, whereby no spermatezoa were found on exhibits No.5(a), 5(b) and 5(c).
PW3, Rishi Ram, Draftsman, District Courts, Amritsar, proved site plan, Ex.PW3/A. PW4, HC Parminder Singh, deposed that personal search of the accused were made in his presence. He also deposed that the prosecutrix came to the police party on 29.05.1994, and her statement was recorded by ASI Mohinder Singh.
PW5, the prosecutrix deposed about the Sethi Atul 2014.01.20 17:25 I attest to the accuracy and integrity of this document Chandigarh CRA-109-SB-1997 -6- entire incident. She also proved her statement, Ex.PW5/A, which was recorded on 29.05.1994, near Interrogation Centre.
PW6, Balbir Singh, the father of the complainant, supported the prosecution case.
PW7, Dr. Gurinderbir Singh Mahal, Medical Officer, Department of Radiology, Government Medical College, Amritsar, conducted the x-ray of long bones of the prosecutrix for ascertaining her age and he reported that "The radiological age of the subject is 15-16 years.
PW8, Surinder Kaur, Clerk, office of the District Transport Officer, Amritsar, proved that the scooter bearing registration No.PB-02-E-2174, was registered in the name of Sukhjinder Kaur d/o Kuldip Singh.
PW9, ASI Mohinder Singh, is the Investigating Officer of the case.
PW10, Shri K.C. Garg, Judicial Magistrate 1st Class, Amritsar, deposed that the prosecutrix was produced before him by ASI Mohinder Singh, for recording statement of the prosecutrix under Section 164 Cr.P.C. on Sethi Atul 2014.01.20 17:25 I attest to the accuracy and integrity of this document Chandigarh CRA-109-SB-1997 -7- 12.8.1994, however, due to his busy schedule, her statement, Ex.PW10/A, was recorded on 13.8.1994.
In their statements under Section 313 Cr.P.C., the accused-appellants denied all the allegations of the prosecution case and pleaded false implication. They examined Constable Darbara Singh, as DW1, who proved that there was an overwriting in report No.33 making it as report No.32. Beant Kaur, DW2, deposed that she accompanied the prosecutrix at the time of her medical examination. Dr. Narvail Singh, PHC Ramdas, DW-3, was examined to prove that accused-appellant Rajwinder Singh was admitted in PHC on 25.5.1994, vide Indoor Register Entry No.72 and was discharged on 28.5.1994.
The learned trial Court, after hearing learned counsel for the parties and appreciating the evidence on record, convicted and sentenced the appellants as noticed at the outset of this judgment.
Hence, the present appeal, which was admitted by this Court on 07.07.1997.
The learned Senior counsel appearing for the appellants submits that there is an unexplained delay of 24 hours in lodging the FIR. The alleged occurrence took place on 28.05.1994, Sethi Atul 2014.01.20 17:25 I attest to the accuracy and integrity of this document Chandigarh CRA-109-SB-1997 -8- whereas, the instant FIR was recorded on 29.05.1994 at 7.30 a.m. He further argued that as per the prosecution story, the prosecutrix was taken through busy roads by the accused-appellant Bikramjit Singh, on a scooter, however, she did not raise any hue and cry. The learned Senior counsel further contended that in the present case, ocular evidence is contradictory to the medical evidence. It is argued that as against the assertion of the prosecutrix, no injury was found on her person including the private parts, in the medico legal report. There was no tear or laceration of the hymen of the prosecutrix. It is further contended that no blood/semen stains were found on the clothes produced by the prosecutrix before the police. The learned counsel further argued that the prosecution has failed to prove that the prosecutrix was less than 16 years of age at the time of the alleged incident.
On the other hand, the learned State counsel, argued that the testimony of the prosecutrix is at par with an injured witnesses, thus, does not require any corroboration. The learned counsel further argued that the absence of any external or internal injury on the person of the prosecutrix is not sufficient to conclude that she was not subjected to sexual assault. The delay in lodging the FIR is sufficiently explained. Lastly, it is submitted that there is no motive for the prosecutrix to falsely involve the accused-appellants in the present case.
Sethi Atul2014.01.20 17:25 I attest to the accuracy and integrity of this document Chandigarh
CRA-109-SB-1997 -9- I have heard the learned counsel for the parties and perused the record carefully, with their able assistance.
In Vijay @ Chinee Vs. State of Madhya Pradesh, JT 2010(7) SC5 76, it has been held that "Thus, the law that emerges on the issue is to the effect that statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix."
As per the Middle Standard Certificate, Mark 'A', the date of birth of the prosecutrix is 02.05.1979. The alleged occurrence took place on 28.05.1994. Therefore, the prosecutrix was less than 16 years of age at the time of the alleged incident. Moreover, in the presence of school certificate, no other evidence is required to determine the age of the prosecutrix.
As far as the delay in lodging the FIR is concerned, this Court feels that the same, if any, has been sufficiently and satisfactorily explained. As per the statement of the prosecutrix, the incident took place on 28.05.1994, in the morning. She has further stated that after the incident, Bikramjit Singh dropped her at Rattan Singh Chowk at 11.30 a.m. She reached her village at about 12.30 p.m. Her sister-in-law (Bhabhi) was present at home but she did not tell her anything. Her parents had gone to the fields. When her mother returned back to home in the evening at about 5.00 p.m., she Sethi Atul 2014.01.20 17:25 I attest to the accuracy and integrity of this document Chandigarh CRA-109-SB-1997 -10- narrated the whole incident to her. Thereafter, her father also returned home and she also narrated the incident to him. The FIR was lodged on the very next date i.e. on 29.05.1994, at 7.25 a.m. The act of rape leaves deep scar on the psyche of the young victim, shatters her emotionally and physically, even her prospects of upward movement in life and getting a decent match are substantially curtailed along with the loss of honour and reputation of the family. Therefore, delay in reporting the matter to the police, cannot be said to be material in the instant case.
The learned Senior counsel appearing on behalf of the appellants has stressed that as per the case of the prosecution, rape was committed by the appellants, one after the other, however, medical evidence does not support the story projected by the prosecution as there is no positive report/evidence that in fact, the prosecutrix was raped. He made a specific reference to the MLR, Ex.PW2/A, wherein, it has been noticed as under:-
1. She was about 15 years of age. Age of menarche 13 years. Number of teeth 28. LMP was 8.5.1994.
Breast and public hair were well developed. X-ray long bones was advised for age.
2. Underwear worn at the time of incident was packed and sent to the chemical examiner.
3. No foreign heir marks of violence present anywhere else on the body.
4. All finger nails were intact. No difficulty in Sethi Atul 2014.01.20 17:25 I attest to the accuracy and integrity of this document Chandigarh CRA-109-SB-1997 -11- working or micturition.
5. No dried blood or semen stains present on vulva or inside of thigh.
6. No bruising or redness of vulva hymen was patulous did not show any fresh tear or laceration. Vagina allowed easy passage of one finger. Two vaginal swabs were taken 1 from lower vagina second from upper vagina and sent to the chemical examiner for evidence of semen. Uterus was normal size. Urine for pregnancy test was advised. The argument advanced by the learned Senior counsel, in nutshell is that in the light of the statement of the prosecutrix that (i) it was her first sexual encounter and (ii) all the three accused raped her one after the other; the signs corresponding to the act, such as swelling/redness of vulva or tears or laceration of hymen or any other injury on her person, were inevitable on the person of the prosecutrix.
In this regard, reference is placed on Modi's Medical Jurisprudence & Toxicology (22nd Edition), Page 503, wherein, it is noticed that in cases where the hymen is intact and not lacerated, it is absolutely necessary to note the dispensability of the vaginal orifice in the number of fingers passing into vagina without any difficulty. The possibility of sexual intercourse having taken place without rupturing the hymen may be inferred if the vaginal Sethi Atul 2014.01.20 17:25 I attest to the accuracy and integrity of this document Chandigarh CRA-109-SB-1997 -12- orifice is capacious enough to admit easily the passage of two fingers.
In HWV Cox Medical Jurisprudence and Toxicology (Seventh Edition), Page 678-79, it is noticed that "In virgin, the hymeneal orifice admits the tip of the little finger. It is practically always present in a virgin though it may be congenitially absent in some cases. A hymen may remain intact but that does not necessarily mean that she is virgin. The hymen remains intact even though repeated acts of coitus have been done. It depends upon the form, structure, consistence and nature of opening. In children, due to high up position, it is not ruptured during attempted sexual intercourse........ Hymen is ruptured in a majority of cases during the first act of coitus. But certain types of hymen will not rupture even by repeated acts of coitus."
From the above, it is clear that in case, where hymen was patulous and not ruptured, is not sufficient to conclude that the prosecutrix was not subjected to sexual intercourse.
The absence of any injury on the person of the prosecutrix only goes to show that she did not put up resistance. In the case of Gurcharan Singh Vs. State of Haryana, AIR 1972 SC 2661, it has been held by Hon'ble the Apex Court that "the absence of injury or mark of violence on the private part on the person of the prosecutrix is of no consequence when the prosecutrix is minor and would merely suggest want of violent resistance on the part of the Sethi Atul 2014.01.20 17:25 I attest to the accuracy and integrity of this document Chandigarh CRA-109-SB-1997 -13- prosecutrix. Further absence of violence or stiff resistance in the present case may as well suggest helpless, surrender to the inevitable due to sheer timidity. In any event, her consent would not take the case out of the definition of rape."
It is further to be noticed that even for the sake of argument, it is accepted that there is contradiction in the ocular and medical evidence, it is settled law that in such situations, the ocular version of the prosecutrix, which is found reliable by this Court, is to be believed.
From the perusal of the file, it emerges that the investigation in the instant case has been carried out in a tainted manner. There is a definite, pointed and positive statement of the prosecutrix that after she was physically ravished, blood started oozing out and the blood-stained clothes worn by her at the time of occurrence, were taken into possession vide recovery memo Ex.PW9/H, by the Investigating Officer. However, for the unexplained reasons, the Investigating Officer specifically instructed the MHC not to send these clothes to the Chemical Examiner. This further strengthens the belief of this Court regarding the investigation being tainted, which is understandable from the fact that the main accused Bikramjit Singh, happens to be a police official.
From the statements of the accused-appellants, recorded under Section 313 Cr.P.C., no motive has been disclosed for Sethi Atul 2014.01.20 17:25 I attest to the accuracy and integrity of this document Chandigarh CRA-109-SB-1997 -14- framing them in the instant case.
Moreover, as per the provisions of Section 114A of the Indian Evidence Act, the onus shifts on the accused of proving consent to sexual intercourse from the victim, if she stated in her evidence that she did not consent. In the considered opinion of this Court, the accused-appellants have failed to discharge this burden.
The argument of the learned Senior counsel that the prosecutrix did not raise any hue and cry while she was being taken by the appellant on his scooter through the busy roads, also does not carry any weight. The prosecutrix, being young child, was allured by the accused, who was previously known to her, on the pretext of dropping her at the school.
In this case, the FIR had been lodged promptly. No reason or motive has been assigned to the prosecutrix or her family members for falsely implicating the accused-appellants. The statement of the prosecutrix is worth of credence and cannot be ignored.
In view of the above discussion, this Court feels that the prosecution has been successful in bringing home guilt to the accused-appellants. Consequently, the present appeal is dismissed and the judgment of conviction and order of sentence, passed by the learned trial Court dated 24.01.1997, is maintained. The appellants who are on bail, shall surrender before the learned Chief Judicial Sethi Atul 2014.01.20 17:25 I attest to the accuracy and integrity of this document Chandigarh CRA-109-SB-1997 -15- Magistrate, Amritsar, forthwith, to suffer the remaining part of the sentence.
( JITENDRA CHAUHAN ) 21.12.2013 JUDGE atulsethi Note: Whether to be referred to reporter ? Yes/No Sethi Atul 2014.01.20 17:25 I attest to the accuracy and integrity of this document Chandigarh