Punjab-Haryana High Court
Gurjinder Singh vs State Of Punjab on 18 August, 1997
Equivalent citations: 1998CRILJ710
JUDGMENT H.S. Brar, J.
1. This is an appeal against the judment order dated 23-5-1987 of the Additional Sessions Judge, Ludhiana, vide which he convicted the appellant under Section 376, I.P.C. and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs, 1,000/-. In default of payment of fine he was ordered to undergo further R.I. for six months.
2. As per statement of the prosecutrix Baskshish Kaur, she had gone to ease herself in the fields on 12-8-1986 at about 7 p.m. When she was opening string of her Salwar to answer the call of nature, accused Gurjinder Singh came on a cycle and caught hold of Bakshish Kaur from behind. Accused closed her mouth with hand and forcibly committed rape on her. She had put up resistance and during that period she received injuries on her right side of the face and left ear. As her mouth was gagged, she could not raise any alarm. After committing rape the accused left the place. She talked about the happening to Nachhatarar Kaur and Darshan Lal. During the process of rape, her bangles were also broken and Chappals were also left at the spot. Her husband who was working as tailor came back to the house at about 9 p.m. and she narrated him the whole story. They then left for the Police Station to lodge the report and in the way S.I. Nazar Singh (PW 7) met them, where Bakshish Kaur (PW 4) made statement Ex. PF which was read out to her and she thumb marked the same after admitting it to be correct. Sub Inspector Nazar Singh(PW7) made endorsement Ex.PF/1 and sent the same for the registration of the case and on its basis formal FIR Ex. PF/2 was recorded by Inspector Balbir Singh. Ex.PB/1 is the injury statement of Bakshish Kaur. On 13-8-1986 Sub Inspector Nazar Singh (PW 7) inspected the spot and prepared rough site plan Ex. PR. He also took into possession Chappals Ex. PI and PW 2 and broken pieces of bangles Ex.P-3, vide memo Ex. PF. The accused was charged under Section 376, I.P.C. to which he pleaded not guilty and claimed trial.
3. In order to substantiate their case, the prosecution examined Dr. Santosh Katari, PW 1, who medically examined Bakshish Kaur, aged 20 years, on 13-8-1986 at 3 a.m. and found the following injuries on her person :-
1. 2 cm x 1 cm oval abrasion 1 cm to the left of the pinna of the left ear louble.
2. 2 cm x 1 cm linear contusion, with abrasion blush in colour on the right upper lip and angle of the mouth extending towards right cheek.
4. She was an averagely built young female aged 20 years wearing Salwar and Kamij and underwear. She says she was wearing the same clothes at the time of incident. Clothes were blood stained. Breast and axillary and pubic hair moderately developed. There was no soiling with mud.
5. Her external genetalia were normal vagina admits two fingers loose, hymen was old and completely torn. There was no fresh tear or laceration over the vagina According to the doctor, injuries could be caused in a scuffle, PW 2 is Ishwar Chander who prepared scaled plan Ex.PC and also proved the copy of the Jamabandi Ex. PD, PW 3 is Dr. Sukhjit Singh Sindhu, who examined the accused on 14-8-1986 and found that the accused was fit to commit sexual intercourse. He also found smegma layer, which starts immediately after the intercourse and visible with naked eye after about 12 to 24 hours, PW 4 is Bakshish Kaur complainant her self and has given the details of the prosecution case mentioned above, PW 5 Nachhatar Kaur is a witness to whom Bakshish Kaur informed about the occurrence being her neighbourer, but she was got declared hostile and was cross-examined by the learned Addl PP for the State, PW 6 Amarjit is the husband of Bakshish Kaur and he also corroborated the statement of Bakshish Kaur, PW 7 S.I. Nazar Singh is the investigating officer of this case.
6. After close of the prosecution evidence the accused was examined under Section 313, Cr.P.C and he denied the prosecution version and has taken the plea in the following terms :-
I had sown Makki, Bazra and Jantar in the fields. Bakshish Kaur was plucking corn. I went to the fields and stopped her from plucking the corn and abused her and after giving pushes, pushed her from the field and then I went to my house.
The accused did not produce any witness in defence.
7. The learned trial Court convicted and sentenced the accused, now appellant before me, as stated above.
8. Learned Additional Sessions Judge convicted the appellant mainly on the following grounds and I will re-produce the grounds in the same language which have been narrated by the Additional Sessions Judge in the judgment:
(i) "The occurrence in this case took place at 7 p.m. and statement was recorded at 10.40 p.m. on the basis of which the present case has been registered, and in the FIR the name of the accused, place of occurrence, the part played by the accused is mentioned in detail. To my mind the FIR was recorded at the earliest possible time and there could not be substitution of accused.
(ii) The accused says that when the prosecutrix wanted to steal the crop, she was pushed by the accused and on that score, she has named him for the rape, but this fact is otherwise, when suggestions were put to the witnesses and there the plea of the accused was that she has named the accused on the asking of the President of Adharmi Association.
(iii) "In Indian society, no woman can level such a serious allegation of rape, unless, actually some body has committed rape.
(iv) The examination of the accused by Sukhjit Singh Sidhu is of great importance when he found the smegma layer and according to the doctor the thin layer of smegma starts immediately after the intercourse and is visible to a naked eye after about 12 to 24 hours. In this case the accused was examined on 14-8-1986 at 4.20 p.m. so the presence of layer of smegma is a fact and this proves that the accused had raped the prosecutrix.
(v) Recovery of broken bangles and chappels of the prosecutrix from the spot.
(vi) Two injuries on the left pinna near the ear lobule and on the upper lip of the mouth extended upto right cheek.
9. I have heard the learned counsel for the parties and have gone through the record of the case with their assistance.
10. I find that the grounds on the basis of which learned trial Court has convicted the accused are not sufficient for his conviction.
11. The occurrence is alleged to have taken place on 12-8-1986 at about 7 p.m. FIR is alleged to have been recorded at 11.10 p.m. by S.I. Nazar Singh on the same day on the basis of the statement of Bakshish Kaur, prosecutrix recorded by S.I. Nazar Singh (PW 7) at the petrol pump situated on the National Highway. The special report had reached the Judicial Magistrate First Class, Ludhiana on the next day i.e. on 1 3-8-1986 at 1.16 a.m. The distance of the police station Sadar Ludhiana from the place of occurrence is three miles.
12. It is proved from the statement of the prosecutrix at the trial itself that the first information report was lodged after the spot inspection and after due deliberations and consultations. The prosecutrix (PW 4) has stated before the trial Court which is re-produced as under:-
I was narrating the occurrence to Darshan Lal. Darshan Lal did not come with me to leave me. I remained in the house of Darshan Lal where my husband came at his own. My husband came after about one hour, after my reaching the house of Darshan Lal. From there myself. Darshan Lal and my husband left for police post. There we made statement to the police from the police post we came to the place of occurrence. I accompanied the police to the place of occurrence from the police post. I remained at the spot for about half an hour. There was no body else except Darshan Lal, my husband and myself, along with the police. Police people returned with me from the spot. Then we came to the culvert where my statement was recorded which was read over to me and I thumb-marked the same.
13. It is, thus, clearly established from the statement of the prosecutrix (PW 4) herself that the police had visited the spot in the same night and the F.I.R. was lodged only after the inspection of the spot and after deliberations and consultations with the interested people.
14. It also becomes clear from her statement that the investigation made by the police is not honest. The prosecution has tried to suppress The factual occurrence and the real story from the Court.
15. It is pertinent to note here that Nazar Singh, S.I. PW 7, Investigating Officer of this case has clearly denied in his cross-examination at the trial by saying that he did not go to the spot during night. The recording of the FIR after inspection of the spot and after due deliberations and consultations is further fortified by the statement of S.I. Nazar Singh, PW 7, at the trial. He has admitted in his cross examination as correct that in Ex.PB/1 he had recorded the FIR number subsequently. Ex.PB/1 is a letter written by Nazar Singh, PW 7 to the S.M.O. Civil Hospital, Ludhiana for the medical examination of Bakshish Kaur, prosecutrix. S.I. Nazar Singh has further admitted in his cross-examination that there is no mention of FIR number even in the ruqa vide which a request for medical examination of the prosecutrix was made. Even, PW 6, Amarjit Singh has admitted in his cross-examination that the Thanedar visited the spot at 11 pm. and he remained there for about 2/3 hours. He further stated that the Thanedar came to the mohalla after inspecting the spot.
16. I, thus, find from the evidence on the record that the FIR in this case was lodged after due deliberations and consultations and only after inspection of the spot by the Investigating Officer.
17. It is, of course, true that mere delay in lodging the FIR cannot be made the basis for disbelieving the prosecution story; but in such a case it becomes necessary to find an independent corroboration to the statement of the prosecutrix.
18. Medical evidence in this case also does not corroborate the statement of the prosecutrix. The medical evidence produced by the prosecution rather, in my view, does not prove that rape has been committed on the prosecutrix at all. It has come in the evidence of Dr. Santosh Katari, PW I who examined Bakkshish Kaur, prosecutrix on 13-8-1986 at 3 a.m. that hymen was old torn completely. Vagina admits two fingers loosely. No fresh tear or lacceration was found over the vagina. She did not find any semen stains on the clothes etc. She then stated that in grown up and well built ladies, whether married or un-married, mark of violance such as bruises marks or scratches of fingers nails can be found on the external genitial perineurm, abdonmen, chest and back bat they were not missing on the person of the prosecutrix. She then stated in her cross examination that the injuries on the lip and face were superficial in nature and the possibility of their being self suffered could not be ruled out. She then stated in her statement that the prosecutrix told her that she was wearing the same clothes which she was wearing at the time of incident and the doctor found that there was no soiling with mud. Two swabs and two slides were taken from the vagina and the clothes and salwar and under wear were sent to the Chemical Examiner. From the report of Chemical Examiner, Ex. DA, no spermatizoa were found on any of the articles clothes, swab).
19. Bakshish Kaur, prosecutrix, has clearly stated in her statement at the trial that she had put in resistance to the alleged act of the accused. She specifically stated in her cross-examination before (he trial that the accused had received injuries with her legs. She has also stated in her examination-in-chief that she gave injuries to the accused on his face. There is no evidence on the file which could show that there was any injury external or internal or even superficial on the body of the accused. I have seen the medico legal report Ex.PE prepared by Dr. Sukhjit Singh Sidhu, PW 3. Neither there is any mention in the report Ex. PE nor it has been stated by the doctor at the trial that any injury was found on the person of the accused. Even PW 7, S.I. Nazar Singh, Investigating Officer of this case who arrested the accused on 4-8-1986 did not find any injury on the person of the accused. He has admitted as correct in his cross-examination that the accused was medically examined and he did not find any injury on the person of the accused. Thus, the medical evidence completely contradicts the statement of the prosecutrix.
20. The falsity of the prosecutrix story and the biased investigation by the police is established from the statement of the prosecutrix herself. She has admitted in cross-examination that the accused was called at the spot by the police which means that the accused was available to the police on the day of occurrence itself and immediately after the day of occurrence. The following statement of the prosecutrix establishes this fact:
We came to the place of occurrence. I accompanied the police to the place of ocurrence from the police post. I remained at the spot for about half an hour. There was no body else except Darshan Lal, my husband and myself along with the police. Police people returned with me from the spot. Then we came to the culvert where my statement was recorded which was read over to me and I thumb marked the same. The accused was called at the spot by the police. Thereafter we came to the culvert. I was taken to the hospital by the Thanedar at 10/11 p.m. I do not know if the accused was made to sit in the police post when I was taken to the hospital.
21. The above said admission of the prosecutrix clearly shows that the accused was available to the police immediately after the occurrence but his arrest has been shown on 14-8-1986 by the police. The Investigating Officer, PW 7, Nazar Singh has stated before the trial Court that the accused was arrested on 14-8-1986.
22. PW 4, Bakshish Kaur, prosecutrix, has stated at the trial that when she had sat down to ease herself, accused cinched her in that position and shut her mouth with his hands. This portion of the statement has not been correctly translated. I have seen the original statement of the prosecutrix which is in Punjabi. The Punjabi version is like this :
Use pehlan mainu japhee pa layee te mere muhun nu hathan naal band kar ditta.
So these lines written in the examination-in-chief of PW 4, Bakshish Kaur, should be read as under:
When I sat down to ease myself, accused came there. He first cinched me and then he closed my mouth with his hands.
She has admitted in her cross-examination which reads as under :
I was sitting when the accused gave me cinch. The accused did not leave me in spite of giving the injuries by me on his face. My salwar was not removed by the accused. Shirt was not removed. "The accused had placed his one hand on the mouth and the other on the body while doing inter-course and he remained in the same position from the start till the end. I was made to lay on the ground.
23. In the face of this description of the incident given by the prosecutrix it looks un natural that the accused would be able to commit rape on her. There is no evidence that the accused had any weapon with him by which he threatened her. It is not even the case of the prosecutrix that, the accused threatened her if she did not allow him to commit rape on her. It is not possible to control a married woman of about 20 years by placing one hand on the mouth and the other on the body for committing rape on her. In this position it is not even possible to indulge in inter-course, though from the evidence of the prosecutrix it seems that he had done full inter-course with her, when she has specifically stated that the accused had placed his one hand on her mouth and the other on the body while doing intercourse and remained in the same position from the start till the end. She has herself admitted that her salwar was not removed by the accused. Again her statement that the crop of jantar was also crushed and her clothes were soiled with mud does not find any corroboration. Dr. Santhosh Katari, PW 1, has stated so in her examination-in-chief that she was wearing the same clothes which she was wearing at the time of incident and they were not soild with mud. No crushed jantar crop was taken into possession from the spot by the Investigating Officer.
24. A woman who is a victim of an out rageous act is generally speaking not an accomplice though the rule of prudence requires that the evidence of a prosecutrix should be corroborated before a conviction can be based upon it. The evidence of the prosecutrix is not corroborated by the medical evidence. Her statement is contradictory and contradicts the other prosecution evidence as regards the lodging of the first information report and the arrest of the accused. As has been discussed above, it is proved from her statement itself that before lodging the first information report the police visited the spot and she had accompanied the police to the spot and the accused was also present at the spot with her when he was called by the police before the registration of the F.I.R. Her definite statement that she gave injuries on the face of the accused is also contradicted by the fact that no injury was found on the person of the accused at all. She has stated at the trial that blood fell at the place of occurrence on account of her bleeding but no blood was removed from the place of occurrence. Nazar Singh, S.I. who is the Investigating Officer of this case and who visited the spot has specifically stated at the trial when cross-examined that he did not find any blood at the spot. Her statement is again contradicted by S.I. Nazar Singh (PW 7) when she stated that she was taken to the hospital by the Thanedar at about 10/11 p.m. but the Thanedar i.e. P.W. 7 has contradicted her statement by saying that he had not accompanied Bakshish Kaur for medical examination. Though she has stated that she was taken to the hospital by the Thanedar at 10/11 p.m. but it has come in the evidence of the doctor that she was examined only on the next day at 3 a.m. Thus, the statement of the prosecutrix cannot be relied upon as it does not find any corroboration either from the medical evidence or from any other evidence on the file, rather her statement is contradicted on material particulars by the Investigating Officer as well as the doctor.
25. In the absence of any injury on the body of the prosecutrix, except the two superficial injuries, it is possible that they were self suffered; and Dr. Satithosh Katari (PW 1) has stated so that there was a possibility of the superficial injuries to be self suffered.
26. Learned trial Court has erred while observing as under :-
The presence of layer of smegma is a fact and that the accused has committed sexual inter course and this shows that the accused has committed rape on the prosecutrix.
27. The learned Addl. Sessions Judge has observed and then held that the presence of smegma layer showed that the accused had committed sexual intercourse. In my considered view the trial Court has erred in this regard. In the whole of his examination-in-chief regarding smegma, PW 3 Dr. Sukhjit Singh Sidhu has stated as under:-
Smegma was present He did not utter even a word in his examination-in-chief that what did he mean by this expression. He did not give any reasons that the presence of smegma when the accused was examined on 14-8-1986 at 4.20 p.m. could be a sure test for holding that the accused had committed rape on the prosecutrix. When this doctor was questioned to explain about this examination in the cross-examination he contradicted his own statement. First of all, he stated that smegma rules out the possibility of intercourse within about 24 hours. He then stated in his cross-examination that it was wrong that smegma could occur after 24 hours if no bath is taken by a person. He then stated that he did not agree with Modi on this point. In the case in hand the occurrence had taken place on 12 -8-1996 at about 7.00 p.m. and the accused was examined by this doctor on 14-8-1986 at 4.20 p.m. i.e. after about 44 hours.
28. It has been held in Dr. S.P. Kohli v. High Court of Punjab and Haryana AIR 1978 SC 1753 : 1978 Cri LJ 1804 as under (Para 12) :-
It is well known in the medical world that the examination of smegma loses all importance after 24 hours of the sexual intercourse.
29. Learned trial Court has, thus, erred in taking the presence of smegma as an important factor in establishing that the accused had committed rape on the prosecutrix.
30. Again the alleged recovery of broken bangles and the chappals of the prosecutrix from the spot is fake and a padding. It is established on the record that the police along with the prosecutrix had visited the spot earlier i.e. on the day of occurrence itself and the recovery has been shown on the next day i.e. on 13-8-1986. Moreover, no witness of recovery has been produced to prove the recovery of broken bangles and chappals from the spot except PW 7. S.I. Nazar Singh PW 7, as already stated, cannot be believed, as according to the statement of the prosecutrix herself he had visited the place on the day of occurrence itself.
31. The accused while examined under Section 313, Cr.P.C. has stated that he had sown makki bajra and jantar in the fields and Bakshish Kaur was plucking corn. He went to the fields and stopped her from plucking the corn and abused her and after giving pushes he pushed her from the field and then went to his house. Even the prosecutrix has admitted that the fields belonged to the accused and makki, bajra and jantar were standing in the fields.
32. The version of the accused seems to be truthful. It is possible that some type of a minor scuffle had taken place between the prosecutrix and the accused but the family members of the prosecutrix took it as an insult and tried to involve the accused in such a heinous crime. The prosecutrix has admitted that she is adharmi by caste and there is panchayat of adharmis. It has come in the evidence of the prosecurtix as well as her husband that they all are adharmis and there is adharmi's panchayt in the village and Kewal is the President of the Panchayat. Kewal might have incited the husband of the prosecutrix to make out a false case against the accused who belongs to a different caste. The active participation of Kewal is proved from the statement of Nazar Singh, S.I. PW 7 when he has admitted in his cross-examination that Kewal, Amarjit Singh and Bakshish Kaur were the only persons who met him for lodging the first information report. Suggestion was put to her that on Kewal's asking false case has been registered against the accused.
33. Learned Additional Sessions Judge has erred on facts while holding that the plea taken by the accused has not been put to the witnesses. The plea taken by the accused in his statement under Section 313, Cr.P.C. has been put to the principal witness i.e. the prosecutrix. The relevant portion of the answer given by the prosecutrix reads as under:-
It is incorrect that I was plucking corns from the fields of the accused and the accused objected to it and gave pushes and abused me.
34. In addition to this, she was asked in the cross-examination that Kewal had asked the prosecutrix to get a case registered against the accused, though she denied the suggestion but admitted that Kewal Krishan was the President of Adharmis' society. The above said observation of the trial Court is not based upon the correct factual position.
35. Nachhattar Kaur (PW 5) has not supported the prosecutrix story. She stated in her examination-in-chief that the prosecutrix had told her that she was easing in the fields when Gurjinder Singh came there on cycle and gave her beatings and she was dishonoured and the prosecutrix did not tell her anything else. She was declared hostile and was cross-examined by the Public Prosecutor. When cross-examined by the counsel for the accused she stated that Bakshish Kaur prosecutrix told her story to her; then her husband came after 5-7 minutes who took her to the police station. Police came at 7.30 p.m. at their house.
36. PW 6 Amarjit Singh though is not an eye witness, has contradicted the prosecutrix story as well as the statement of the prosecutrix on material particulars. In his examination-in-chief Amarjit Singh i.e. the husband of the prosecutrix stated that the prosecutrix had told him that the accused loosened her Salwar but the prosecutrix says otherwise. She is definite in saying that the accused did not loose her Salwar. He stated in his examination-in-chief that Thanedar did not accompany him and his wife to the hospital for medical examination. When the prosecutrix says that Thanedar accompanied her to the hospital for medical examination. He contradicts even the Thanedar i.e. PW7 Nazar Singh S.I. Investigating Officer, when he stated that Thanedar visited the spot at 11.00 p.m. which means on the day of occurrence but the Thanedar says that he did not visit the spot on the same day but on the next day.
37. I cannot persuade my self to rely on the sole testimony of the prosecutrix at the trial which is contradicted by the medical evidence on the records as well as by the other witnesses.
In view of my discussion made above, I accept this appeal, set aside the judgment/order dated 23-5-1987 of the Additional Sessions Judge, Ludhiana and acquit the convict-appellant Gurjinder Singh in the charge framed against him. The accused is already on bail. The bail bonds furnished by him shall, thus, stand cancelled.