Punjab-Haryana High Court
Bansi Lal vs State Of Haryana on 12 August, 2011
Author: Hemant Gupta
Bench: Hemant Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
(1) Crl. Appeal No. 419-DB of 2006
Bansi Lal.
....... Appellant through
Shri R.S.Cheema,
Senior Advocate with
Shri Pawan Girdhar,
Advocate.
Versus
State of Haryana.
...... Respondent through
Shri P.S.Punia,
Additional Advocate
General, Haryana.
(2) Crl. Appeal No. 443-DB of 2006
Sultan Singh.
....... Appellant through
Shri A.P.S. Deol,
Senior Advocate with
Shri Vishal Rattan
Lamba, Advocate.
Versus
State of Haryana.
...... Respondent through
Shri P.S.Punia,
Additional Advocate
General, Haryana.
Date of Decision: 12.8.2011
CORAM: HON'BLE MR.JUSTICE HEMANT GUPTA
HON'BLE MR.JUSTICE VIJENDER SINGH MALIK
....
1. Whether Reporters of Local Newspapers may be
allowed to see the judgment?
Crl.Appeal No.419-DB of 2006
-2-
....
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the
Digest?
....
VIJENDER SINGH MALIK,J.
The two appeals, one by Bansi Lal and the other by Sultan Singh have been preferred against the judgment of their conviction dated 9.5.2006 passed by learned Additional Sessions Judge, Fast Track Court No.III, Faridabad for an offence punishable under sections 363, 366 read with section 34 and section 376(2)(g) of the I.P.C., as also the order of sentence dated 10.5.2006 awarding the following sentences to them:-
1. For the offence punishable under To undergo rigorous section 363 of the I.P.C. imprisonment for four years and and to pay a fine of Rs.2000/- each. In default of payment of fine, to undergo further rigorous imprisonment for a term of six months each.
2. For the offence punishable under To undergo rigorous section 366 of the I.P.C. imprisonment for six years and and to pay a fine of Rs.2000/- each. In default of payment of fine, to undergo further rigorous imprisonment for a term of six months each.
3. For the offence punishable under To undergo rigorous section 376(2)(g) of the I.P.C. imprisonment for twelve years and and to pay a fine of Rs.5000/- each. In default of payment of fine, Crl.Appeal No.419-DB of 2006 -3- ....
to undergo further rigorous imprisonment for a term of one year each.
All the sentences were ordered to run concurrently. The case set up against the appellants by Police Station, City Palwal is as under:-
Jaipal, complainant is a resident of village Tehrki Tehsil Palwal. He was working as driver with S.D.M., Ballabgarh. He was residing near the house of Tehsildar, Palwal. The prosecutrix, his daughter, has been aged about 14-15 years. She was studying in 8th standard in Government Senior Secondary School (Girls), Jawahar Nagar Camp, Palwal. Bansi Lal, Naib Tehsildar had been residing near his house. The complainant used to visit his house. On 1.1.2005, at about 3.00 P.M., the prosecutrix went to school to attend extra classes,but she did not return. The complainant and his family members made search for her. Geeta, a resident of village Kashipur had been the class mate of the prosecutrix. She was contacted and she told that on 1.1.2005, Bansi Lal, Naib Tehsildar had come to her house in a car and at that time, the prosecutrix was with him. She further disclosed that he had taken Geeta also for celebrating the birth day of the prosecutrix to Shyam Hotel in the area of village Bamini Khera. He left Geeta back near his village at about 7.00 P.M. and proceeded further in the car with the prosecutrix towards Palwal. As his daughter did not return home till 3.1.2005, he suspected Bansi Lal Crl.Appeal No.419-DB of 2006 -4- ....
to have kept his daughter concealed somewhere. He made a complaint in writing to Ajit Singh, S.I., S.H.O. whom he met near Tehsil Office, Palwal. On his application, Ajit Singh, S.I. made his endorsement recommending registration of a case, in pursuance of which F.I.R. No.10 dated 3.1.2005 was registered at Police Station, City Palwal for an offence punishable under sections 363, 366 of the I.P.C.
Bansi Lal, appellant was arrested on 3.1.2005 itself. The prosecutrix was recovered from Railway Station, Panipat on 4.1.2005. Her statement was got recorded with Smt. Shashi Chauhan, J.M.I.C., Palwal on 6.1.2005 in which she had stated that on 1.1.2005, she left her house at about 4.00 P.M. for tuition and on the way, she came across Bansi Lal, Tehsildar, who asked her to come with him addressing her as a daughter. She further told that he took her as well as Geeta in his vehicle to a hotel in the area of village Bamini Khera where the prosecutrix and Geeta were served with tea. Even Bansi Lal purchased toffees for them. Geeta got down the car near Bangla Factory and she was taken by Bansi Lal to the kothi where Sultan was already present. She has then stated that they committed rape upon her. According to her, she became mad and she could not come to know where she was taken by Sultan. She also told the Magistrate that she made this statement without any fear or pressure. On her statement, section 376 of the I.P.C. was added to the case. Sultan Crl.Appeal No.419-DB of 2006 -5- ....
Singh was arrested on 6.1.2005. The prosecutrix and both the appellants were got medico-legally examined. Clothes of the prosecutrix and those of the appellants along with swabs etc. were taken into possession by the investigating officer. They were sent to Forensic Science Laboratory, Madhuban for examination. Statements of the witnesses were recorded. A rough site plan of the place of occurrence was prepared and a site plan to scale of the same was also got prepared. On completion of the investigation, challan against the appellants was prepared and presented to the court.
Charge was framed against the appellants for an offence punishable under sections 363, 366 read with section 34 of the I.P.C. and section 376(2)(g) of the I.P.C. by learned Additional Sessions Judge, Faridabad vide order dated 1.4.2005 to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution has examined twenty two witnesses. Tendering the reports of the Forensic Science Laboratory and giving up some witnesses as unnecessary, the prosecution evidence came to a close. The appellants were examined thereafter in terms of section 313 of the Cr.P.C. Besides controverting the prosecution evidence put to them in the shape of questions, the appellants have pleaded false implication. Bansi Lal, appellant has added that on the date and at the time of occurrence, he was at Crl.Appeal No.419-DB of 2006 -6- ....
Faridabad. According to him, the prosecutrix appeared to have left her house of her own and had coined a false version under pressure of her family members, who had already submitted a complaint against him on the basis of suspicion and with ulterior motive. Sultan Singh, appellant has claimed that he was present at his shop in Pehowa at the time of occurrence. He has further stated that he came to Palwal on 4.1.2005 and 5.1.2005 on hearing about false implication of Bansi Lal because he was friendly with him. He has added that at Palwal, he had a scuffle with the police as well as with Sat Pal, a relative of the prosecutrix as lawyers were not permitting Bansi Lal to appear in the court. Sat Pal is said to be a member of Bar Association, Palwal and on that account, he was falsely implicated. In the defence evidence, six witnesses have been examined. Besides it, a birth entry has been tendered in evidence.
Hearing learned Public Prosecutor for the State assisted by learned counsel for the complainant and learned counsel for the defence, learned trial court has held the appellants guilty for the offence punishable under sections 363, 366 read with section 34 and section 376(2)(g) of the I.P.C. vide judgment dated 9.5.2006. Hearing on quantum of sentence was given to the parties on 10.5.2006 and the sentence detailed as above has been awarded to them.
Aggrieved by the aforesaid judgment of their conviction Crl.Appeal No.419-DB of 2006 -7- ....
and the order of sentence, the appellants have brought these two separate appeals.
We have heard Shri R.S.Cheema, learned senior counsel with Shri Pawan Girdhar, Advocate for Bansi Lal, appellant and Shri A.P.S.Deol, learned senior counsel with Shri Vishal Rattan Lamba, Advocate for Sultan Singh, appellant and Shri P.S.Punia, learned Additional Advocate General, Haryana for the respondent-State.
Shri R.S.Cheema, learned senior counsel for Bansi Lal, appellant has submitted that the statement of the prosecutrix in a rape case does not require corroboration for being relied upon. He has, however, submitted that she must appear to be reliable for it. According to him, in this case the prosecutrix is wholly unreliable. He has submitted that the complainant lodged a report against Bansi Lal, appellant on 3.1.2005 and suspected him of having kidnapped his daughter. According to him, the prosecutrix was traced by the police during the night of 4th January,2005 at Railway Station, Panipat and she had made a statement to Ajit Singh, S.I., S.H.O. which is Exhibit DA on the record. According to him, she has made another statement about the occurrence before Smt.Shashi Chauhan, J.M.I.C., Palwal on 6.1.2005 which is Exhibit P2. According to him, she was then examined at the trial as PW2 and she has been confronted with the entire statement made by her to the police on 5.1.2005, Exhibit DA Crl.Appeal No.419-DB of 2006 -8- ....
because she had deviated from that statement. He has submitted that the statements of the prosecutrix are so conflicting that she does not seem to stick to her statement Exhibit DA or even Exhibit P2 and that she is clearly shown to be wholly unreliable.
Shri R.S.Cheema, learned senior counsel for Bansi Lal, appellant has further submitted that Geeta, a class mate of the prosecutrix was the best witness to support the prosecutrix at the trial. According to him, she was examined as PW3 but she did not support the prosecution case. He has submitted that the medical evidence coming in the statement of Dr.Beena Sharma, PW20 also does not support the prosecution case. According to him, the prosecutrix is proved on record to be 16 years of age on the date of occurrence and the date of alleged occurrence has been her 17th birth day. He has submitted that this age of the prosecutrix is as per the school record, but if one looks to the statement of the prosecutrix examined as PW2, she did not deny herself to be aged 18 or 19 years on the date of occurrence. According to him, the prosecutrix seems to have gone out of her house of her own and went to Amritsar and before she could be recovered, the complainant had expressed his suspicion against Bansi Lal, appellant, who had been arrested by the police without conducting any enquiry. According to him, when after investigation, the investigating officer found the prosecutrix at Railway Station, Crl.Appeal No.419-DB of 2006 -9- ....
Panipat, he came to know of the truth. However, he could not record the truth because in the meanwhile Bansi Lal, appellant had already been taken into custody and so, a false statement was got made from the prosecutrix. According to him, this is the reason on account of which the prosecutrix often changed her version and had made diametrically opposite statements. He has submitted that the circumstances on record clearly show that it has been a clear case of acquittal.
Shri A.P.S.Deol, learned senior counsel appearing for Sultan Singh, appellant has submitted that Sultan Singh was nowhere in picture. According to him, in Exhibit P7, the site plan prepared by Sarwan Kumar, draftsman, it has been mentioned while describing the point mark `A' that this is the place where the prosecutrix has been raped by Bansi Lal, appellant. According to him, this document is admissible in evidence as corroborative evidence as has been laid down by Hon'ble the Supreme Court in a case titled as Jagdish Narain and another Versus State of U.P., (1996) 8 S.C.C. 199. He has submitted that had there been a case against Sultan Singh, it must have been mentioned in this document that this was the place where the prosecutrix was raped by Bansi Lal and Sultan Singh, appellants. According to him, the prosecutrix appearing as PW2 has categorically denied in her cross-examination having been familiar Crl.Appeal No.419-DB of 2006 -10- ....
with Sultan Singh prior to the occurrence. He has submitted that she has denied having met Sultan Singh even till the date of her appearance in the witness box. According to him, to a question put by the court, the prosecutrix had replied stating that Sultan Singh had never met her from the date she left for her school till the date of her appearance in the witness box. He has submitted that this statement on her part clearly shows that Sultan Singh, appellant had no role in the occurrence and that she herself denied Sultan Singh to have raped her.
Learned Additional Advocate General, Haryana for the respondent-State has, on the other hand, submitted that the prosecutrix was a little confused when she made statement before the police. According to him, the statement she made to the Magistrate is consistent with the statement she made at the trial and learned trial court has rightly placed reliance on her statement even in the absence of corroboration from Geeta and that there is no infirmity in the finding of guilt recorded by learned trial court.
Conviction of an accused in a rape case can be based on uncorroborated testimony of a prosecutrix provided her testimony is reliable. In this case, the statement made by the prosecutrix to the police is Exhibit DA. This was made by her at Railway Station, Panipat. In her cross-examination, she has stated appearing as PW2 Crl.Appeal No.419-DB of 2006 -11- ....
that she was in senses when the police had recorded her statement. In the face of this statement on her part, it cannot be said that she was confused or was rather under the effect of something. Even if anything stupefying was served to her, the same was given to her on 1.1.2005. Thereafter, she had gone to Amritsar of her own and returned therefrom to Panipat. She cannot be said to be under the effect of that substance at the time the police had recorded her statement on 4.1.2005.
In her cross-examination, when she was asked about her previous statement, she has made very strange statement. She has not denied having made that statement. She took shelter behind the plea of failure of memory and, therefore, did not deny having made that statement to the police. Each part of this statement Exhibit DA is at conflict with either the statement Exhibit P2 recorded by the Magistrate or the statement made at the trial. In Exhibit DA, she has stated that on 1.1.2005, she and her friend Geeta were returning after taking tuition. Appearing as PW2, she has stated that she and Geeta were going to the school for taking tuition. In Exhibit DA, she has stated that it was 3.30 or 4.00 P.M. when Bansi Lal, appellant came there in a Santro car bearing registration no. HR-30C-4444 from their back side. She has further stated that he dragged both of them forcibly inside the car and that they made noise. In the statement before the Crl.Appeal No.419-DB of 2006 -12- ....
Magistrate on 6.1.2005, Exhibit P2, she has stated that on 1.1.2005, she left her house at 4.00 P.M. for tuition and Bansi Lal, appellant met her on the way and addressing her as daughter, he asked her to come in the car which she did along with Geeta. In Exhibit DA, she has again stated that he then took her and Geeta to Shyam Hotel near G.T. road where they took tea and breakfast. If the prosecutrix was unwilling to accompany Bansi Lal, appellant and that he had to drag her and Geeta inside the car, it has been done within the limits of Palwal City and they could have cried out loud to attract the attention of the people. They did not do so. Even at Shyam Hotel, they made no protest and took tea and breakfast, served to them by Bansi Lal, appellant. This clearly shows that these two statements are wide apart and are irreconcilable.
In Exhibit DA, the prosecutrix is recorded to have stated to the police that thereafter taking them in the car, Bansi Lal, appellant left her friend Geeta near Bangla Factory near village Dholagarh and went towards Delhi with her and he committed rape upon her forcibly in the car after stopping the same. In the statement recorded on 6.1.2005, Exhibit P2 by the Magistrate, she has been on record saying that after dropping her friend near Bangla Factory, he took her to his kothi where Sultan Singh, appellant was present and both of them committed rape upon her. The name of Sultan Singh, appellant is Crl.Appeal No.419-DB of 2006 -13- ....
introduced for the first time on 6.1.2005 as rapist. In Exhibit DA, he has been introduced as a person whom she called on phone to come to Amrisar, but when he refused to come to Amritsar and told her to return to Panipat Railway Station, she returned there. As per Exhibit DA, she had made a telephone call to Sultan Singh just to come to join her. In Exhibit DA, therefore, Sultan Singh, appellant is not stated to have committed rape upon her.
Appearing as PW2, she has given a big blow to the statement made before the Magistrate by denying being familiar with Sultan Singh, appellant even till the date of her appearance in the witness box. If it was so, then she never came across Sultan Singh, appellant from the date of occurrence till the date of her appearance in the witness box and moreover, she was not familiar with him. Therefore, appearing in the witness box as PW2, she has contradicted her statement Exhibit P2 made before the Magistrate also.
In Exhibit DA, the prosecutrix has stated that after committing rape upon her in the car by stopping the same, Bansi Lal, appellant took her to New Delhi Railway Station where she was asked to get down the car while he went away saying that he would return after ten minutes. It is her statement in Exhibit DA that she waited for Bansi Lal, appellant there, but he did not return and thereafter she was upset and she boarded a train that arrived there which took her to Crl.Appeal No.419-DB of 2006 -14- ....
Amritsar. In Exhibit P2, she does not say anything as to what happened to her after rape on 1.1.2005. She does not say as to where she went and with whom. Appearing as PW2, she has stated that after she was raped by the two, she became mad and that she did not know where Sultan Singh, appellant brought her. This is that Sultan Singh with whom she denies being acquainted. If it is so, then in Exhibit P2, there is nothing to show as to how and where she had gone after being raped by the two appellants. In her statement made as PW2, she has stated that they gave her some intoxicating material and thereafter she could not come to know as to where they had left her thereafter.
Sultan Singh, whether he is the appellant or some one else, is a person whose mobile phone number was in the memory of the prosecutrix. She made a telephone call to Sultan Singh from Amritsar. Though, she could not remember while appearing as PW2 that she told the police about having made a telephone call to Sultan Singh from Amritsar on mobile phone no. 9416036316, the investigating officer, Ajit Singh, S.I./ S.H.O. appearing as PW12 has admitted that the mobile phone number of Sultan Singh that came before him during the investigation, was stated to him by the prosecutrix from memory. Sultan Singh, appellant whose role is not there in the first statement of the prosecutrix made to the police and Crl.Appeal No.419-DB of 2006 -15- ....
acquaintance with whom is denied by the prosecutrix appearing as PW2, cannot be believed to be involved in the occurrence. The statement of the prosecutrix about Sultan Singh committing rape upon her made by her to the Magistrate on 6.1.2005 is, therefore, clearly unreliable. Sultan Singh is rather proved by the circumstances to be a person with whom she was acquainted. His telephone number was in the memory of the prosecutrix.
The two statements of the prosecutrix, one made to the police at the time of recovery, Exhibit DA and the other made to the Magistrate, Exhibit P2 are so contradictory to each other that by any argument of confusion on the part of the prosecutrix, they cannot be reconciled. The prosecutrix, who brings wide change in her stand cannot be said to be a reliable witness and on her statement, the appellants could not have been convicted. Therefore, the judgment of learned Additional Sessions Judge, Faridabad cannot be sustained on this evidence. Consequently, the appeals are accepted and setting aside the judgment of conviction dated 9.5.2006 and the order of sentence dated 10.5.2006, the appellants are acquitted of the charge.
(HEMANT GUPTA ) ( VIJENDER SINGH MALIK)
JUDGE JUDGE
August 12,2011
"SCM"