Punjab-Haryana High Court
Ruldu Singh And Another vs State Of Punjab on 25 January, 2011
Author: Jora Singh
Bench: Jora Singh
Crl.Appeal No. 1554-SB of 2006 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Crl.Appeal No.1554-SB of 2006
Date of decision: 25.1.2011
Ruldu Singh and another
... Appellants
versus
State of Punjab
... Respondent
CORAM: HON'BLE MR. JUSTICE JORA SINGH.
Present: Mr.J.S.Brar, Advocate,
for the appellants.
Mr.P.S.Grewal, AAG, Punjab.
...
JORA SINGH, J.
Ruldu Singh son of Dogar Singh and Surjit Singh son of Pritam Singh preferred this appeal to challenge the judgment of conviction and order of sentence dated 3.7.2006 rendered by Additional Sessions Judge, Ferozepur, in Sessions Case No.19 of 22.8.2005, arising out of FIR No. 81 dated 21.5.2005 under Sections 452/376/354/506/34 IPC, Police Station City, Ferozepur.
By the said judgment, Ruldu Singh was convicted under Sections 114 read with Section 376, 452 and 506 IPC and was sentenced to undergo RI for 7 years and to pay a fine of Rs.2,000/-, in default of payment of fine, to further undergo RI for 6 months under Section 114 read with Section 376 IPC, and to undergo RI for 2 years and to a pay fine of Rs.500/-, in default of payment of fine, to further undergo RI for 1 month under Sections 452 and 506 IPC each.
Crl.Appeal No. 1554-SB of 2006 2
Surjit Singh was convicted under Sections 452/506/376/354 IPC and sentenced to undergo RI for 2 years and to a pay fine of Rs.500/-, in default of payment of fine, to further undergo RI for 1 month under Sections 452 and 506 IPC each, to undergo RI for 7 years and to a pay fine of Rs.2,000/-, in default of payment of fine, to further undergo RI for 6 months under Section 376 IPC and to undergo RI for 2 years and to a pay fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for 1 month under Section 354 IPC.
However, all the sentences were ordered to run concurrently. Prosecution story, in brief, is that prosecutrix, aged about 32 years, is the resident of Kirti Nagar, Ferozepur. In the year 1989, she was married with Sham Sunder and from this wedlock, she has two daughters and one son. One daughter is with her parents, second daughter is with her and the son is with her husband Sham Sunder. Ruldu Singh, r/o Goneana Road, Muktsar, was serving as Panchayat Secretary at Jalalabad and used to visit the house of the prosecutrix. Then relations of the prosecutrix with her husband became estranged. After leaving Sham Sunder, prosecutrix started living with Ruldu Singh at Muktsar as his wife and stayed at Muktsar for about 3-1/2 years. After the transfer of Ruldu Singh to Mamdot, prosecutrix and Ruldu Singh had shifted to Ferozepur City, where they stayed as husband and wife for about 5 years. From the loins of Ruldu Singh, prosecutrix has one daughter, aged about 7 years. About 3 months back, relations amongst the prosecutrix and Ruldu Singh became estranged. After leaving the prosecutrix, Ruldu Singh started residing with his wife at Muktsar. Prosecutrix and Ruldu Singh filed complaints against each other and the complaints are pending. From the last 3 months, Ruldu Singh did Crl.Appeal No. 1554-SB of 2006 3 not visit the house of the prosecutrix. On the intervening night of 20/21.5.2005, prosecutrix along with her daughters was sleeping in the verandah. Suddenly at about 1.30 AM during night time, prosecutrix heard noise of opening of main gate. Electric light was switched on and in the light, Ruldu Singh and Surjit Singh, who were earlier known to the prosecutrix, were found present in the house. Ruldu Singh directed the prosecutrix to ask the children to sleep inside the room. As per direction of Ruldu Singh, prosecutrix directed the children to go inside the room to sleep. After that, Ruldu Singh had caught hold the prosecutrix and she was thrown on the quilt spread over the floor in the verandah. She was raped by Ruldu Singh against her wish by using condom. After that, Surjit Singh had raped the prosecutrix against her wish by using condom. After rape, prosecutrix had gone inside the bathroom. Occurrence was witnessed by the children. Surjit Singh had also outraged the modesty of Sonia, aged about 13 years, daughter of the prosecutrix. When Sonia raised alarm, then prosecutrix came out of the bathroom. Prosecutrix was directed not to raise alarm otherwise she was to be eliminated. Out of fear, prosecutrix remained inside her house. In the morning, Ruldu Singh and Surjit Singh had left the house of the prosecutrix. Then prosecutrix along with her daughter contacted Usha Chopra and had gone to lodge report. Near Namdev Chowk, Ferozepur, police party headed by ASI Surjit Singh had met the prosecutrix. Statement of the prosecutrix (Ex.PG) was recorded at about 7.30 AM on 21.5.2005. After making endorsement, statement was sent to the police station, on the basis of which, formal FIR was recorded.
Prosecutrix was produced before the doctor for medico legal examination.
Crl.Appeal No. 1554-SB of 2006 4
IO had gone to the place of occurrence. Rough site plan with correct marginal notes was prepared. Used condoms were lifted from the spot and were made into a sealed parcel. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. Empty dabbi of condoms was also taken into police possession after converting it into a sealed parcel, vide separate memo attested by the witnesses. Accused were arrested on 21.5.2005 and were produced before the doctor for medico legal examination. After completion of investigation, challan was presented in Court.
Accused were charged under Sections 452/354/376/114/506 IPC, to which they pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
PW1 Dr. Rajinder Manchanda stated that on 22.5.2005, he had medico legally examined Surjit Singh and Ruldu Singh. They were found fit to perform sexual intercourse.
PW2 Dr. Sonia Gulati stated that on 21.5.2005, she had medico legally examined the prosecutrix and observed as under:-
"1. A reddish contusion on right cheek 2.5 cms x 1 cm in dimension.
2. Complaining of pain in neck and in front of chest and nipple of left breast.
No other external mark of any fresh injury was seen on the body.
On pre-vaginum examination, vagina admitted two fingers. At that time, uterus size could not made out exactly because of Crl.Appeal No. 1554-SB of 2006 5 obesity and tenderness of fornices. She was advised ultra sound for exact size of uterus. Vaginal swabs four in number taken for chemical examination and DNA testing."
As per report of Chemical Examiner, no spermatozoa was seen. PW3 Krishan Lal Sondhi, Draftsman, prepared scaled site plan (Ex.PF).
PW4 is the prosecutrix. She has reiterated her stand before the police.
PW5 Sonia is the daughter of the prosecutrix. She has also supported the version of the prosecutrix.
PW6 ASI Surinder Singh on 21.5.2005 while present near Namdev Chowk, Ferozepur, had recorded the statement of the prosecutrix (Ex.PG) and after making endorsement, statement was sent to the police station, on the basis of which, formal FIR (Ex.PG/2) was recorded by ASI Bohar Singh. He had also recorded statements of the witnesses. In the meantime, police party headed by ASI Bohar Singh came. Then further investigation of the case was conducted by ASI Bohar Singh.
PW7 HC Mohinder Singh stated that on 9.6.2005, sealed parcels were handed over to him by MHC Baljinder Singh for depositing in the laboratory but due to holiday, parcels could not be deposited in the laboratory. On the same day, parcels were returned to the Incharge of Malkhana. On 13.6.2005, again sealed parcels were handed over to him for depositing in the laboratory, which were deposited in the laboratory on the same day.
PW8 HC Baljinder Singh stated that he was Incharge of Malkhana. Case property was deposited with him by the IO. On 9.6.2005, Crl.Appeal No. 1554-SB of 2006 6 he had handed over sealed parcels to HC Mohinder Singh for depositing in the laboratory.
PW9 ASI Bohar Singh is the second IO.
Report of Chemical Examiner (Ex.PZ) was tendered into evidence.
After close of the prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent.
Defence version of Ruldu Singh was that he was not married with the prosecutrix. He was Government employee and was serving as Secretary in the Panchayati Raj at Jalalabad. Prosecutrix was living in his neighbourhood and demanded money but he refused to fulfill her demand. On 4.12.2003, she filed complaint in PS City Ferozepur. There was compromise. Complaint of the prosecutrix was found to be false. Again, she filed another complaint on 26.3.2005 against him and demanded Rs.60,000/-, but he failed to make payment. Due to non-payment, prosecutrix had a grudge against him and she started harassing him. Then his friend Surjit Singh along with other respectables moved application dated 30.3.2005. He was transferred to Makhu. On 28.3.2005, he was going to attend his office but on the way, prosecutrix along with two unknown persons snatched his mobile phone, identity card and other documents, including driving licence. Application was given to the Executive Officer of Panchayat Committee on 30.3.2005. He was falsely implicated in the rape case.
Defence version of Surjit Singh was that he is friend of Ruldu Singh and moved applications to the higher authorities against the Crl.Appeal No. 1554-SB of 2006 7 prosecutrix on 30.3.2005. Due to this grudge, he was falsely implicated in the rape case.
In defence, DW1 Constable Shavinder Singh brought record and stated that Amarjit Kaur wife of Ruldu Singh moved complaint dated 18.3.2005 and the complaint was marked to SP (HQ). Another complaint was moved by Amarjit Kaur on 19.3.2005 and the same was marked to SHO, PS City, Muktsar. Ex.D1 is the copy of complaint dated 18.3.2005 and Ex.D2 is the copy of complaint dated 19.3.2005.
DW2 HC Mohinder Singh brought summoned enquiry file and stated that Surjit Singh, General Secretary, Dalit Sena, Punjab, filed complaint dated 30.3.2005. Enquiry was marked to Women Cell, Ferozepur. Ex.D3 is the copy of complaint. Prosecutrix also filed complaint dated 8.4.2005 on 19.4.2005. Ex.D4 is the copy of complaint dated 8.4.2005.
After hearing learned PP for the State, learned defence counsel for the appellants and from the perusal of evidence on the file, appellants were convicted and sentenced as stated aforesaid.
I have heard learned defence counsel for the appellants, learned State counsel and have gone through the evidence on the file.
Learned defence counsel for the appellants argued that Ruldu Singh was serving as Panchayat Secretary and was residing in the neighbourhood of the prosecutrix.
As per story, prosecutrix was married with Sham Sunder in the year 1989 and from this wedlock, she has three issues. Prosecutrix developed illicit relations with Ruldu Singh and for about 8-1/2 years stayed with him as his wife. From this wedlock, prosecutrix has one daughter, Crl.Appeal No. 1554-SB of 2006 8 aged about 7 years. Prosecutrix started blackmailing Ruldu Singh. Then Ruldu Singh started residing with his legally wedded wife at Muktsar. Prosecutrix was compelling Ruldu Singh to stay with her. Complaints were sent by the prosecutrix against Ruldu Singh. Appellants had also filed complaints against the prosecutrix. Ex.D1, Ex.D2 and Ex.D3 are the copies of complaints filed by the appellants. Ex.D4 is the copy of the complaint filed by the prosecutrix. All the complaints were before the present occurrence. There was compromise and as per compromise, Ruldu Singh was to pay Rs.60,000/- to the prosecutrix but he failed to pay Rs.60,000/- to her. When prosecutrix was blackmailing Ruldu Singh, then complaint was sent by Surjit Singh, General Secretary, Dalit Sena, Punjab, and this fact is clear from the copy of complaint (Ex.D3). When Ruldu Singh failed to pay Rs.60,000/-, then appellants were falsely implicated in this case. According to the story, on the intervening night of 20/21.5.2005, appellants had gone to the house of the prosecutrix and by using condoms, they had raped her against her wish. Prosecutrix was medico legally examined but no external injury was noticed. Ex.PZ is the report of Chemical Examiner but no spermatozoa was seen. Used condoms were also taken into police possession and sent to the laboratory but no report of the laboratory on the file. In view of the report of laboratory (Ex.PZ), prosecution story inspires no confidence, particularly when prosecutrix had motive to implicate the appellants due to non-payment of Rs.60,000/-. Prosecutrix when appeared in Court, then admitted that both the parties filed complaints against each other. Ruldu Singh was insisting to get rid of her. One complaint was filed against Ruldu Singh on 4.12.2003 on the allegation that he stole Rs.10,000/-. Then stated that she cannot tell whether wife of Ruldu Singh Crl.Appeal No. 1554-SB of 2006 9 had filed complaint or not. But admitted that there was a talk of Rs.60,000/-. Her signatures were obtained on the compromise. House with her was taken on rent by Ruldu Singh @ Rs.1000/- per month. For about 8 years, prosecutrix stayed with Ruldu Singh without divorce and there is one minor daughter, aged about 7 years, from the loins of Ruldu Singh. When wife of Ruldu Singh filed complaint against the prosecutrix, then Ruldu Singh was insisting to get rid of the prosecutrix but to pressurize Ruldu Singh to stay with the prosecutrix, story was concocted and if the prosecutrix was raped against her wish, then why spermatozoa was not noticed and report of laboratory was not produced in Court. After the occurrence, both the appellants stayed in the house of the prosecutrix. House was in the abadi. Raula was not raised. In the morning, appellants had left the house of the prosecutrix, then prosecutrix had contacted Usha Chopra. Ultimately, statement of the prosecutrix was recorded near Namdev Chowk but Usha Chopra was not produced in Court to state as to whether prosecutrix had contacted her or not. Prosecutrix and her daughter are very much interested in the success of this case. Evidence on the file was not properly scrutinized by the trial Court.
Learned State counsel argued that occurrence was on the intervening night of 20/21.5.2005. In the morning, report was lodged. Prosecutrix was medico legally examined by the doctor but if no external injury, then no reason to discard the statement of the prosecutrix. PW5 Sonia is the daughter of the prosecutrix. One of the appellants had outraged the modesty of Sonia. If prosecutrix was pressurizing Ruldu Singh to stay with her and her statement is to be ignored due to complaints by both the sides, then no reason to ignore the statement of Sonia. There was no delay Crl.Appeal No. 1554-SB of 2006 10 in lodging the FIR. Previous enmity due to complaints rather shows that appellants have motive to commit the crime.
Admittedly, prosecutrix was married with Sham Sunder in the year 1989 and from this wedlock, prosecutrix had two daughters and one son. Prosecutrix was residing separately from her husband Sham Sunder. One daughter of the prosecutrix is with her parents, second daughter is with her and son is with Sham Sunder. Relations of the prosecutrix with her husband became estranged. Then as per story, prosecutrix started residing with Ruldu Singh as his wife. For about 8-1/2 years, prosecutrix stayed with Ruldu Singh and from the loins of Ruldu Singh, prosecutrix had one daughter, aged about 7 years. Three months earlier to the present occurrence, prosecutrix was staying with Ruldu Singh as his wife because Ruldu Singh had married her while present in the premises of Harminder Sahib, Amritsar. Defence version of the appellants was that Ruldu Singh was married with Amarjit Kaur. Ruldu Singh had no relation with the prosecutrix. Ruldu Singh was residing in the neighbourhood of the prosecutrix. So, prosecutrix started blackmailing him. One complaint was filed by the prosecutrix with this allegation that Rs.10,000/- was stolen. In view of complaint, there was compromise and as per compromise, Rs.60,000/- was to be paid by Ruldu Singh to the prosecutrix. He being poor did not pay Rs.60,000/-. Then to pressurize to make payment, false implication. But question is whether defence version seems to be more probable than the prosecution story.
Undisputedly, in the year 1989, prosecutrix was married with Sham Sunder and from this wedlock, prosecutrix had two daughters and one son. Prosecutrix was residing separately from her husband Sham Sunder. Crl.Appeal No. 1554-SB of 2006 11 One daughter of the prosecutrix is with her parents, second daughter is with her and son is with Sham Sunder. According to story, Ruldu Singh was residing in the neighbourhood of the prosecutrix and started visiting her house. Then prosecutrix developed illicit relations with Ruldu Singh. Relations of the prosecutrix with her husband became estranged. Ultimately prosecutrix started residing with Ruldu Singh by leaving her husband Sham Sunder. For about 3-1/2 years, prosecutrix stayed with Ruldu Singh at Muktsar. After the transfer of Ruldu Singh, prosecutrix and Ruldu Singh started residing at Ferozepur and stayed there for about 5 years. Total stay of the prosecutrix with Ruldu Singh was about 8-1/2 years. From the loins of Ruldu Singh, prosecutrix has one daughter, aged about 7 years, but no documentary proof on the file that minor daughter is from the loins of Ruldu Singh. No ration card, voter list etc. on the file to show that prosecutrix stayed with Ruldu Singh for about 8-1/2 years and from the loins of Ruldu Singh, she has one daughter, aged about 7 years.
On 21.5.2005, prosecutrix was medico legally examined. Vaginal swabs were sent to the laboratory but report of laboratory (Ex.PZ) is to the effect that no spermatozoa was found. In case prosecutrix was raped against her wish by the appellants, then report should have been to the effect that spermatozoa was noticed.
After recording the statement of the prosecutrix, IO had gone to the spot. Used condoms were lifted from the spot and taken into police possession after making the same into sealed parcel. On return to the police station, case property was deposited with the Incharge of Malkhana. Ultimately, on 9.6.2005, sealed parcels were deposited in the laboratory but no report of the laboratory is on the file. If sealed parcel of used condom Crl.Appeal No. 1554-SB of 2006 12 was deposited in the laboratory, then it was for the prosecution to explain where is the report of the laboratory. No case of the prosecution that report was not received. In case sealed parcel of used condoms had been deposited in the laboratory, then before presenting the challan or after presentation of challan, an effort should have been made by the prosecution to produce the report of the laboratory or explain where the sealed parcel had gone.
DW1 Constable Shavinder Singh and HC Mohinder Singh brought record and stated that number of complaints were sent by the prosecutrix against the appellants. Appellants had also sent complaints against the prosecutrix. Wife of Ruldu Singh had also sent complaints against prosecutrix. Ex.D1 and Ex.D2 are the copies of complaints dated 18.3.2005 and 19.3.2005, respectively, moved by Amarjit Kaur wife of Ruldu Singh against the prosecutrix. Ex.D3 is the copy of the complaint filed by Surjit Singh and Ex.D4 is the copy of the complaint moved by the prosecutrix. Ex.D3 dated 30.3.2005 was sent by Surjit Singh as President of Dalit Sena, Punjab. Complaint shows that on 4.12.2003, prosecutrix had moved application against Ruldu Singh with this allegation that he (Ruldu Singh) has stolen her Rs.10,000/-. Amarjit Kaur also filed complaints (Ex.D1 and Ex.D2) on the allegation that prosecutrix is blackmailing her husband Ruldu Singh.
Prosecutrix appeared in Court and admitted that in the year 2005, her relations with Ruldu Singh became estranged. Ruldu Singh started residing with his wife Amarjit Kaur. She has filed complaints against the appellants. Appellants have also filed complaints against her. Ruldu Singh was insisting to get rid of her. Allegation against Ruldu Singh was that on 4.12.2003, he had stolen her Rs.10,000/- but she cannot tell whether wife of Crl.Appeal No. 1554-SB of 2006 13 Ruldu Singh filed complaints against her in the month of March, 2005 or not. Lastly admitted that there was a talk regarding payment of Rs.60,000/-. Her signatures were obtained on the compromise. House in her possession was taken on rent by Ruldu Singh @ Rs.1,000/- per month.
ASI Bohar Singh had partly investigated the case in hand and admitted that both the parties were summoned to the police station along with other respectables in connection with the investigation of the complaints. There was compromise and as per compromise, Rs.60,000/- was to be paid by Ruldu Singh to the prosecutrix. So, from the statements of the prosecutrix, ASI Bohar Singh and DWs, one thing is clear that without divorce, prosecutrix started living with Ruldu Singh. She claimed to be his wife and from the loins of Ruldu Singh, there is one daughter, aged about 7 years. Regarding birth of daughter from the loins of Ruldu Singh, no documentary proof on the file.
Prosecutrix stated that while present in the premises of Harminder Sahib, Amritsar, Ruldu Singh had put sindoor in her maang, then she became his wife. By putting sindoor in the maang of the prosecutrix while present in the premises of Harminder Sahib, Amritsar, prosecutrix cannot be considered to be the legally wedded wife of Ruldu Singh. But evidence on the file shows that illegally, prosecutrix was staying with Ruldu Singh and stay was for about 8-1/2 years. When prosecutrix started blackmailing Ruldu Singh, then appellants had filed complaints against her. Ruldu Singh was insisting to get rid of the prosecutrix and started residing with his first wife, namely, Amarjit Kaur. So, there was motive for the prosecutrix to implicate the appellants.
According to the story, on the intervening night of 20/21.5.2005 Crl.Appeal No. 1554-SB of 2006 14 at about 1.30 AM during night time, both the appellants had gone to the house of the prosecutrix. By using condoms, they raped the prosecutrix against her wish. After rape, prosecutrix allowed them to stay in the house and only in the morning on 21.5.2005, appellants had left the house of the prosecutrix. House of the prosecutrix was within abadi. Daughters of the prosecutrix were also in the house. In case, appellants had raped the prosecutrix against her wish, then she should have raised hue and cry. There was no idea to remain silent and allow the appellants to stay in the house till morning. After the incident, prosecutrix contacted Usha Chopra. Then near Namdev Chowk, reported the matter to ASI Surjit Singh but Usha Chopra was not produced in Court for the reasons best known to the prosecution. Usha Chopra was to state whether prosecutrix had contacted her or not and after that, whether she had gone with the prosecutrix to lodge report and near Namdev Chowk, police party had met them, where statement of the prosecutrix was recorded.
PW5 Sonia is the minor daughter of the prosecutrix, but she is interested in the success of this case. Sonia was 13 years' old. Both the daughters were directed to sleep inside the room. As per story, minor daughters had seen the appellants while committing the crime but no hue and cry. Statement of the prosecutrix is sufficient to convict the appellants but statement should inspire confidence. There should be some independent evidence to corroborate the version of the prosecutrix. As per report of the laboratory, spermatozoa was not noticed. No report of the laboratory that human semen was noticed in case of used condoms lifted from the spot. There were complaints against the prosecutrix to the effect that she is blackmailing Ruldu Singh. President of Dalit Sena, Punjab, also filed Crl.Appeal No. 1554-SB of 2006 15 complaint against the prosecutrix to stop her from blackmailing Ruldu Singh. With the filing of complaints when Ruldu Singh started residing with his wife and was not agreeing to stay with the prosecutrix, particularly when there was no payment of Rs.60,000/- as per compromise, then I am of the opinion that there is no independent evidence to corroborate the version of the prosecutrix and her daughter. Defence version seems to be more probable than the prosecution story.
In view of all discussed above, I am of the opinion that evidence on the file was not properly scrutinized by the trial Court. Impugned judgment suffers from infirmity and illegality and the same is ordered to be set aside. Appellants are acquitted of the charge levelled against them.
For the reasons recorded above, appeal is allowed.
25.1.2011 ( JORA SINGH ) pk JUDGE