Punjab-Haryana High Court
Satnam Singh & Ors vs State Of Punjab on 26 April, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Crl. Appeal No.31-SB of 2003 -: 1 :-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
Crl. Appeal No.31-SB of 2003
Date of decision: April 26, 2011.
Satnam Singh & Ors.
... Appellant(s)
v.
State of Punjab
... Respondent(s)
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Shri Dalbir Singh Pheruman, Advocate, for the appellants.
Shri Mehardeep Singh, Assistant Advocate General, Punjab
for the respondent-State.
Kanwaljit Singh Ahluwalia, J. (Oral):
Present appeal has been filed by Satnam Singh, Gopal Kaur, Gattu and Sukha Singh. They were tried by the court of Additional Sessions Judge, Amritsar in a case arising out of FIR No.6 dated 5.1.2000 registered at Police Station Khem Karan, under Sections 352, 509, 376/511/120-B IPC. The court of Additional Sessions Judge, Amritsar vide the impugned judgment dated 9.12.2002 held the appellant Gattu guilty of offence under Section 376/511 and 352 and 509 IPC. However, Sukha Singh, Satnam Singh and Gopal Kaur were convicted under Section 376/511 read with Section 120-B, 352/120-B and 509/120-B IPC. Vide a separate order of even date, the appellants were sentenced as under:-
Gattu U/s 376/511 IPC - RI for three years and to pay a fine of Crl. Appeal No.31-SB of 2003 -: 2 :- Rs.300/-. In default of payment of fine to undergo further RI for three months.
U/s 352 IPC - RI for three months and to pay a fine of Rs.100/-. In default of payment of fine to undergo further RI for 15 days.
U/s 509 IPC - Simple imprisonment for one year and to pay a fine of Rs.100/-. In default of payment of fine to undergo further SI for one month.
Sukha Singh U/s 376/511/120-B IPC - RI for three years and to pay a fine of Rs.300/-. In default of payment of fine to undergo further RI for three months.
U/s 352/120 IPC - RI for three months and to pay a fine of Rs.100/-. In default of payment of fine to undergo further RI for 15 days.
U/s 509/120-B IPC - Simple imprisonment for one year and to pay a fine of Rs.100/-. In default of payment of fine to undergo further SI for one month.
Satnam Singh U/s 376/511/120-B IPC - RI for three years and to pay a fine of Rs.300/-. In default of payment of fine to undergo further RI for three months.
U/s 352/120 IPC - RI for three months and to pay a fine of Rs.100/-. In default of payment of fine to undergo further RI for 15 days.
U/s 509/120-B IPC - Simple imprisonment for one year and to pay a fine of Rs.100/-. In default of payment of fine to undergo further SI for one month.
Gopal Kaur U/s 376/511/120-B IPC - RI for three years and to pay a fine of Rs.300/-. In default of payment of fine to undergo further RI for three months.
U/s 352/120 IPC - RI for three months and to pay a fine of Rs.100/-. In default of payment of fine to undergo further RI for 15 days.
U/s 509/120-B IPC - Simple imprisonment for one year and to pay a fine of Rs.100/-. In default of payment of fine to undergo further SI for one month.Crl. Appeal No.31-SB of 2003 -: 3 :-
All the substantive sentences were ordered to run concurrently. Aggrieved against the conviction, the appellants have filed the instant appeal to assail the conviction and sentence.
Occurrence in the present case had taken place on 20.12.1999 whereas the statement of the prosecutrix (named withheld to protect her identity) was recorded on 5.1.2000. The prosecutrix was aged about 15 years. She stated that she was resident of village Mahandipur and was doing labour work. On 20.12.1999 at about 10 a.m. she along with her sister Sukhwinder Kaur, widow of Surjit Singh, caste Majhabi was going to the house of Bachittar Singh son of Hazara Singh for doing domestic work. When they reached in the public street near the house of Gattu son of Kala Singh caste Majhabi, Sukha Singh, Satnam Singh, Gattu and Gopal Kaur were present. They took the prosecutrix and her sister to the house of Gattu. In order to outrage the modesty of the complainant and her sister, they were taken to one room where all the accused had scuffle with prosecutrix and her sister. Both the sisters raised a noise. Gattu is stated to have given slaps to the prosecutrix and had broken the string of the salwar, and with intention to rape her, threw her on the cot. Rest of the persons gave injuries to the sister of the prosecutrix. It was stated that Gattu above stated made an attempt to commit rape. Since both the sisters were together and they had entered into scuffle, the accused could not succeed in their designs. Mother of the prosecutrix was attracted to the spot. The accused decamped from the spot. The mother gave a salwar to the prosecutrix and along with sister of the prosecutrix, they went to home. An effort was made in the village to arrive at a compromise. Since the compromise could not arrive at, instant complaint was made to the police.Crl. Appeal No.31-SB of 2003 -: 4 :-
The above stated FIR was investigation; report under Section 173 Cr.P.C. was submitted.
On 13.11.2000, the court of Additional Sessions Judge, Amritsar charged all the appellants for offence under Section 120-B IPC on the ground that on 20.12.1999 at about 10 a.m. in the area of village Mehandipur Gattu, agreed with Sukha Singh, Satnam Singh and Gopal Kaur to do the illegal act, i.e., to commit rape upon the prosecutrix and her sister. They were further charged for the offence under Sections 352, 509 and 511 IPC. The accused pleaded not guilty and claimed trial.
The prosecutrix herself appeared as PW2. She stated that on 20.12.1999, she along with her sister Sukhwinder Kaur were going to do labour work in the house of Bachittar Singh. When they reached near the house of Gattu, accused Gattu, Sukha Singh, Satnam Singh and Gopal Kaur caught hold of them and took them inside the house of Gattu. Gattu took her in one room for committing rape. Gattu had forcibly broken string of the salwar and tore off her clothes. Gattu slapped her and told her to keep quite. They scuffled with the accused. Then on hearing raula, their mother came there. The accused also tore off the clothes of Sukhwinder Kaur. When mother reached at the spot, the accused ran away from the spot. The mother took them to the house and there they changed the clothes. Panchayat tried to get the matter compromised but the complainant party did not agree. On 5.1.2000, she along with her parents had gone to the police for reporting the matter. Police met them on the bridge of the drain where her statement was recorded. It was read over to her and in evidence of correctness of the same, she had thumb marked the same. The torn clothes were also handed over to the police. In cross examination, she stated that Crl. Appeal No.31-SB of 2003 -: 5 :- the police had recorded her statement on the day of occurrence at 10 a.m. At that time, her parents were with her. When the police was recording her statement, her father was also narrating the events to the police. Prosecutrix stated that she was illiterate. In cross examination, she further stated that only Gattu had torn her clothes. The other accused had given beatings to her. She denied the knowledge that civil case was pending between her father and Gurdial Singh. She further denied any knowledge regarding the fact that her father had filed a civil suit against Gurdial Singh for recovery of Rs.13,600/- on the basis of pronote.
Sukhwinder Kaur, sister of the prosecutrix appeared as PW3. She stated that on 20.12.1999 at about 10.30 a.m., she accompanied prosecutrix. They were going to do labour work. All the accused took them to the room of Gattu. Accused Gattu gave fist blow to the prosecutrix and had torn the clothes and threw her on the cot for committing rape. Accused had given fist blows and torn her clothes also. On raula being raised, their mother reached and rescued them.
Rishi Ram Draftsman appeared as PW1 and proved Ex.PA scaled site plan. ASI Deep Singh PW3 stated that on 5.1.2000, Daljit Kaur, mother of the prosecutrix, had produced clothes of the prosecutrix which were taken into possession. PW4 Malhar Singh was posted as SHO Police Station Khem Karan. He had recorded the statement Ex.PA made by the prosecutrix on the basis of which formal FIR Ex.PE/1 was registered.
Thereafter, the statement of the accused was recorded under Section 313 Cr.P.C. They denied all incriminating circumstances put to them and pleaded false implication. No witness was examined in defence.
A perusal of the charges framed will reveal that no charge Crl. Appeal No.31-SB of 2003 -: 6 :- under Section 376 read with Section 511 IPC was framed against the other accused except Gattu. Sukha Singh and Satnam Singh are said to have given only fist blows and had torn shirt of the sister of the prosecutrix. For tearing off the shirt of the sister of the prosecutrix,no charge under Section 376/511 or 354 IPC has been framed qua accused Sukha Singh and Satnam Singh.
The Courts have always held that no woman would put her reputation at stake, therefore, delay in lodging of the report should not be taken into consideration to disregard the version given by the prosecutrix. But at the same time, the delay in lodging the report cannot be ignored. In the present case, the occurrence had taken place on 20.12.1999, the statement was made by the prosecutrix to the police on 5.1.2000. For 15 days, matter was not reported to any authority, no member of the panchayat has been examined and no evidence has been led to show that the efforts for compromise were going on. Therefore, delay can be taken into consideration to sift the grain from the chaff and it can be safely presumed that delay was used for consultations and deliberations to inflate the number of the accused. It is stated that Sukha Singh, Satnam Singh and Gopal Kaur had given fist blows and slaps to the sister of the prosecutrix. No medico- legal examination of prosecutrix and her sister was conducted. No injury has been found on the person of sister of the prosecutrix. Thus, involvement of Sukha Singh, Satnam Singh and Gopal Kaur is doubtful. It cannot be ruled out that delay of 15 days was used to involve these accused in the crime.
It is common knowledge that in the country-side, there is a party faction and whenever such an incident takes place, people do divide Crl. Appeal No.31-SB of 2003 -: 7 :- themselves and take sides one way or the other. May be that Sukha Singh, Satnam Singh and Gopal Kaur were actively siding with the accused appellant to arrive at a compromise and later, for this reason, they have been involved. Such a possibility cannot be ruled out. Hence, as a matter of abundant caution, Sukha Singh, Satnam Singh and Gopal Kaur are given benefit of doubt and are acquitted of the charge. Hence, their appeal is accepted.
The prosecutrix has categorically stated that Gattu had taken her inside the room; broken the string of the salwar; thrown her on the cot and made an attempt to commit rape. The question will arise whether this will constitute offence under Section 354 IPC or under Section 376 read with Section 511 IPC. It has nowhere come that the accused had removed his clothes and made any preparation to cause penetration. This Court in Rabbo alias Raban v. State of Haryana (Criminal Appeal No. 761-SB of 1998, decided on 23.2.2010) has considered the entire case law and came to the conclusion that if a string of the salwar of the prosecutrix is broken, the offence would fall under Section 354 IPC. The following relevant portion of the above said judgment reads as under:-
"...It will be necessary to examine the case law and to find out as to whether such an offence, if any, will fall under Section 376/511 IPC. From the circumstances, it can be safely inferred that the appellant had made no attempt to commit the rape. Therefore, the offence, if any, will fall under Section 354 IPC. In State of Madhya Pradesh v. Babulal, AIR 1960 Madhya Pradesh 155 it was held as under:-
"(5) The facts stated above are also mentioned in the first Crl. Appeal No.31-SB of 2003 -: 8 :- information report. The challan was put up by the police under Sec. 354 I.P.C. Admittedly from the facts stated above, it is clear that it is not an offence of rape. The question is whether it was an attempt to commit rape or a criminal assault. The distinction between the two is sometimes very meagre. In Rex v. James Lloyd, (1836) 7 C and P 817: 173 ER 141 while summing up the charge to the jury, Justice Patterson observed:
"In order to find the prisoner guilty of an assault with intent to commit a rape, you must be satisfied that the prisoner, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part."
In Impress v. Shankar, ILR 5 Bom 403 the accused was charged for an attempt to commit rape. There the observations of M. Melvill, J., which are quoted below, are very pertinent:
"We believe that in this country indecent assaults are often magnified into attempts at rape and even more often into rape itself; and we think that conviction of an attempt at rape ought not to be arrived at unless the Court be satisfied that the conduct of the accused indicated a determination to gratify his passions at all events, and in spite of all resistance."
In the present case, from the facts by the trying Magistrate and in the first information report, it is seen that the girl was made naked. There is no other action on the part of the accused. It is quite possible that ultimately he would not have proceeded to have sexual intercourse on account of her unwillingness. If the Crl. Appeal No.31-SB of 2003 -: 9 :- dictum of Justice Patterson in the above cited case is followed, I cannot see from the prosecution case that the accused was determined to have sexual intercourse at all events, because as soon as he saw the uncle of the prosecutrix, he ran away. For an offence of an attempt to commit rape, the prosecution must establish that it has gone beyond the stage of preparation. The difference between mere preparation and actual attempt to commit an offence consists chiefly in the greater degree of determination.
(6) A similar case was decided by Mirza and Broomfield JJ. Of the Bombay High Court in Ahmed Asalt Mirkhan (Criminal Appeal No.161 of 1930, D/- 12-6-1930 reported in Ratanlal's Law of Crimes, p. 922). In that case the complainant, a milkmaid, aged 12 or 13 years, who was hawking milk, entered the accused's house to deliver milk. The accused got up from the bed on which he was lying and chained the door from inside. He then removed his clothes and the girl's petticoat, picked her up, laid her on the bed, and sat on her chest. He put his hand over her mouth to prevent her crying and placed his private parts against hers. There was no penetration. The girl struggled and cried and so the accused desisted and she got up, unchained the door and went out. It was held that the accused was not guilty of attempt to commit rape but of indecent assault. The point of distinction between an offence to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would Crl. Appeal No.31-SB of 2003 -: 10 :- show that he is just going to have sexual connection with her. In the Bombay case the cries of the girl desisted the accused. In the instant case the appearance of the uncle of the girl stopped him. In the present case, as already stated, the accused only made the girl naked. He did not expose nor attempted to expose his private part. For all these reasons I cannot agree with the learned Additional Sessions Judge that from the challan or the first information report it was undoubtedly a case of an offence to commit rape so as to oust the jurisdiction of the trying Magistrate."
After discussing the evidence, the Court came to conclusion that offence will fall under Section 354 IPC.
In Ram Pratap v. State of Rajasthan, 2002 Crl. L.J. 1430, the Court held that where apparels worn by the victim were torn, the offence will fall under Section 354 IPC.
In Hari Mohapatra and another v. State of Orissa and others, 1996 Crl. L.J. 2952, where the accused entered into room, closed the door, molested the victim by squeezing her breast and also tried to open her pant, it was held that offence will fall under Section 354 IPC.
This Court in Subash Chander v. State of Haryana, 1983 Recent Criminal Reports 283 held Criminal Appeal No. 1273- SB of 2001 11 that quite often indecent assaults are magnified into attempts of rape and even more often into rape itself. In the present case prosecutrix had suffered injuries. The Court held that offence will fall under Section 354 IPC. Crl. Appeal No.31-SB of 2003 -: 11 :- In Jai Chand v. State, 1996(2) Recent Criminal Reports 244, Delhi High Court held that where prosecutrix was forcibly laid on the bed, string of her pajama was broken, underwear was drawn and bite was taken on her cheek, offence will fall under Section 354 IPC, as due to push given by the prosecutrix, the accused left the spot. Therefore, it was held that he was not determined to attempt sexual intercourse.
In Shiv Shanker v. State of U.P., 2002 Criminal Law Journal 2673, a Division Bench of Allahabad High Court held as under:
"43. The appellant was also charged with the offence punishable under Section 376 read with 511 I.P.C. The learned Sessions Judge had also convicted and sentenced the appellant under said Sections. But having gone through the evidence on record, we find that the evidence of the prosecution was to the effect that the appellant caught hold of Smt.Usha Devi and made her fall down. There was no sufficient evidence on record to show that the appellant attempted to commit rape on the deceased. The medical evidence also did not indicate any such attempt. The catching hold of the deceased and making her fall down cannot be said an attempt to rape, but it amounted to assault or force used to outrage the modesty of the deceased. Therefore, though there was no sufficient evidence to make out the offence punishable under Section 376 read with 511 I.P.C., we are of the view that conviction of appellant under Section 376/511 I.P.C. Is liable to be Crl. Appeal No.31-SB of 2003 -: 12 :- converted into conviction under Section 354 I.P.C."
Therefore, in view of the law laid down by this Court in Rabbo alias Raban's case (supra), wherein the reliance has been placed on various judgments, the offence, in the present case, will fall under Section 354 IPC and not under Section 376 read with Section 511 IPC.
The maximum sentence prescribed under Section 354 IPC is two years. In the present case, occurrence has taken place in December 1999; a period of more than 11 years has elapsed. Taking into consideration sufferance of protracted trial by the appellant and mitigating circumstances, this Court is of the view that ends of the just will be fully met in case the sentence of 9 months RI and a fine of Rs.10,000/- is awarded upon the appellant Gattu under Section 354 IPC. In case of default in payment of fine, he shall further undergo RI for four months. Fine, if deposited, will be disbursed to the prosecutrix.
With the above modification in sentence, the appeal qua Gattu appellant is dismissed.
[Kanwaljit Singh Ahluwalia] April 26, 2011. Judge kadyan