Himachal Pradesh High Court
Cr.A No. 140/2013 vs State Of H.P on 12 May, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.A No. : 140 of 2013 .
alongwith Cr.A Nos. 4045/2013 and 4128/2013 Reserved on: 11.5.2016 Decided on:12.5.2016 ______________________________________________________
1. Cr.A No. 140/2013 Ganesh Singh @ Baba. ...Appellant Versus State of H.P.. ...Respondent
2. Cr. A. No. 4045/2013 State of H.P. ...Appellant.
Versus
Ganesh Singh @ Baba ...Respondent.
3. Cr.A. No. 4128/2013
Jeevan Jyoti ...Appellant
Versus
Ganesh Singh alias Baba and another. ...Respondents.
_________________________________________________________ Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge.
Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting? 1 Yes For the appellant(s): Mr. Vinay Thakur, Advocate for appellant in Cr. A. No. 140/2013 and for respondent in Cr. A. Nos. 4045/2013 and 4128/2013.1
Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 2 Mr. H.S. Rana, Advocate for the appellant in Cr.A. No. 4128/2013.
For the Respondent(s): Mr. M.A. Khan, Addl. A.G. for the .
respondent in Cr.A. No. 140/2013 and for the appellant in Cr. A.No. 4045/2013 and for respondent No.2 in Cr. A.No. 4128/2013.
_________________________________________________________ Justice Rajiv Sharma, Judge.
Since all the appeals have arisen from common
2.
r to judgment, the same were taken up together for hearing and are being disposed of by a common judgment.
Cr.A. No. 140 of 2013 has been preferred by the appellant-accused (hereinafter referred to as the "accused") against the judgment and order of conviction dated 27.2.2013 rendered by the learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala, District Kangra, H.P., in Sessions Case No. 3-N/VII/12, whereby the accused has been convicted under Sections 376/511, 307, 394, 454 and 201 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and fine of Rs.2000/- and in default of payment of fine, to undergo rigorous imprisonment for six months under Section 376/511 of the Indian Penal Code; to undergo rigorous ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 3 imprisonment for seven years and fine of Rs. 5000/- and in default of payment of fine to undergo rigorous imprisonment .
for one year under Section 307 of the Indian Penal Code; to undergo rigorous imprisonment for seven years and a fine of Rs.5000/- and in default of payment of fine to undergo rigorous imprisonment for one year under Section 394 of the Indian Penal Code; to undergo rigorous imprisonment for two years and fine of Rs.1000/- and in default of payment of fine, to undergo rigorous imprisonment for three months under Section 454 of the Indian Penal Code; and to undergo rigorous imprisonment for two years and fine of Rs.1000/-
and in default of payment of fine, to undergo rigorous imprisonment for three months, under Section 201 of the Indian Penal Code. All the aforesaid sentences were ordered to run concurrently and the period of detention undergone by the accused during investigation and trial has been ordered to be set off.
3. Cr. A. No. 4045/2013 has been preferred by the State for enhancement of sentence and similarly Cr.A. No. 4128/2013 has been preferred by the prosecutrix for enhancement of the sentence.
::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 44. Cr.A. No. 140/2013 filed by the accused was allowed by one of us (Justice Rajiv Sharma) on 9.9.2013 and .
the judgment of the learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala was set aside. The State filed Special Leave Petition against the judgment dated 9.9.2013 rendered in Cr.A.No. 140/2013. The Hon'ble Supreme Court set aside the judgment dated 9.9.2013. The Hon'ble Supreme Court has observed that the appeal filed by the prosecutrix for enhancement of sentence and the appeal filed by the State for enhancement of sentence against the judgment dated 27.2.2013 were not heard together at the time of allowing Cr.A. No. 140/2013 and these appeals ought to have been heard together.
Thereafter, the appeals were clubbed and are being disposed of by a common judgment.
5. The case of the prosecution, in a nutshell, is that on 7.9.2011, the prosecutrix (PW3) was in her house at village Kuttan, Tehsil Nurpur, District Kangra (HP). Her children had gone to school and her father-in-law and mother-in-law had gone to Chakki Kandhwal for shopping.
At about 1.30 P.M. when the prosecutrix went inside the ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 5 bathroom to take bath after washing clothes, the accused came inside the bathroom of the prosecutrix and attempted .
to rape her. The prosecutrix cried at the spot, however, due to heavy rain and place being isolated, nobody could hear the noise of the prosecutrix. The prosecutrix raised alarm against the act of accused. When the accused failed to fulfill his aim of committing rape on the prosecutrix, he tried to strangulate the prosecutrix and he hit the head of the prosecutrix on the wall. He also gave a blow of knife on the throat of the prosecutrix, due to which she could not speak.
The accused had also taken away the ornaments of the prosecutrix. The prosecutrix managed to come to the verandah of her house by crawling and she wrapped her body with the bed sheet. In the meanwhile, the children of the prosecutrix came there and by gestures, she asked them to provide her copy and pencil. She wrote on the paper "TAU KO PHONE KARO". The children did not know telephone number of their uncle (Tau). The prosecutrix asked her children to call Kalu from her neighbourhood.
The son of the prosecutrix went to the house of Kalu and Smt. Nirmala Devi, mother of Kalu, came at the spot after ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 6 some time. The villagers had also come on the spot. In the meantime, mother-in-law and father-in-law of the .
prosecutrix also came on the spot. They took the prosecutrix to Sukh Sadan Hospital at Pathankot. The statement of the prosecutrix was recorded. It was found that the accused has taken away the ornaments of the prosecutrix. The matter was reported to the police by Joginder Singh, father-in-law of the prosecutrix and an FIR was registered. Police investigated the matter and after completing the investigation and codal formalities, filed the challan in the Court.
6. The prosecution examined as many as 20 witnesses to prove its case. Statement of the accused was recorded under section 313 Cr.P.C. Accused has pleaded his innocence. Accused also examined two witnesses in his defence. The learned trial court convicted and sentenced the accused as stated hereinabove, on 27.2.2013. Hence, the accused has filed an appeal against his conviction and sentence and the State and prosecutrix have filed the appeals for enhancement of fine and sentence.
::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 77. Mr. Vinay Thakur, Advocate, has vehemently argued that the prosecution has failed to prove the case .
against the accused.
8. Mr. M.A. Khan, learned Additional Advocate General and Mr. H.S. Rana have vehemently argued that the impugned judgment be modified and fine and sentence be enhanced.
9. We have heard the learned counsel for the parties and have gone through the record carefully.
10. PW-1 Subhash Chand has testified that he was posted as Naib Tehsildar, Nurpur since 5.9.2011. He visited Sukh Sadan Hospital, Pathankot on the direction of S.D.M. Nurpur, on 12.9.2011. He was told by the doctor that the victim was not able to speak anything, but she was able to write down. He handed over blank papers to the victim.
She gave her statement by writing on the papers vide Ext.
PW-1/A. It was attested by him. The victim has given statement voluntarily and without any pressure. He has shown three photographs to the victim. She pointed out towards one photograph. The statement was written by the victim herself on the paper, in which the photograph was ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 8 affixed. He verified the statement vide Ext.PW-1/B. Thereafter, he prepared the report, Ext.PW-1/C. The .
application, which was moved to the SDM, Nurpur, is Ext.PW-2/D. It was marked by the SDM Nurpur. He also made the endorsement on this application vide Ext.PW-1/E. In his cross-examination, he deposed that ASI Ajeet Singh had accompanied him when he went to the hospital. He has denied the suggestion that he already knew the fact on 12.9.2011 that a news item has been published in Punjab Kesari on 9.9.2011 that accused was arrested by the police and he was likely to be produced before the concerned court. He identified the accused on news paper Mark 'X', who was standing between police officials. ASI Ajeet Singh accompanied him to the hospital, who was also standing besides the accused. Photo Ex.PW-1/B was supplied to him by ASI Ajeet Singh, which was shown to the victim by him in the hospital. He did not inquire since when ASI Ajeet Singh had the photograph Ex.PW-1/B with him nor it was told by ASI Ajeet Singh. He did not know that the photograph Ex.PW-1/B was with the police prior to publication in news paper on 9.9.2011.
::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 911. PW-2 Joginder Singh testified that on 7.9.2011, he along with his wife had gone to Chaki Kandhwal. Two .
children of Jagdev, i.e. his grand son and grand daughter had gone to school. His daughter-in-law was alone in the house. They came back at about 4.30 P.M. When they reached in the courtyard of their house, they found their daughter-in-law lying there. Blood was oozing out of the wound, which she had sustained on the neck. They took Jeevan Jyoti to Sukh Sadan Hospital, Pathankot and on the way they informed the Police Post, Kandhwal regarding this occurrence. Police came to the hospital. He came to his house with the police after admitting Jeevan Jyoti in Sukh Sadan Hospital, Pathankot. He found numerous articles lying scattered. Almirah was found open. The golden ornaments were missing. He was not knowing at that time about the person who has committed such offence. His statement Ex.PW-2/A was recorded by the police under section 154 Cr.P.C. Police visited the spot and took into possession the blood stains from two spots from the verandah and one from bathroom of Jeevan Jyoti. The blood stains were picked up with the help of cotton.
He identified parcel Ex. P-1, plastic Dibba Ex. P-2, ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 10 hair Ex.P-3, nose ring Ex.P-4 and blood stained cotton swabs Ex.P-5 to Ex.P-7. One knife was also taken into .
possession by the police from the water tank. The knife was sealed in a parcel by the police with seal impression 'Y'. On the same day, police recovered a paper from the spot on which the words "TAU KO PHONE KARO" were written. The paper is Ex.P.10. It was taken into possession vide recovery memo Ext. PW-2/D. In his cross-examination, he stated that his statement was recorded firstly by the police under Section 154 Cr.P.C. when he came back to his house after admitting Jeevan Jyoti in the hospital. It was recorded at about 5.00 P.M. He did not remember that his statement was recorded at 9.00 P.M. He has admitted that in Ex.PW-
2/A, he has mentioned that some unidentified person has committed such offence. He found that his grand son and grand daughter were present in the house. He also admitted that when he reached the home, Jeevan Jyoti was able to see, understand and write down. He admitted that when he reached the home, Jeevan Jyoti had already written on the paper "Tau Ko Phone Karo" after procuring pencil from his grand son. He also admitted that Jeevan ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 11 Jyoti had earlier told his grand son through gestures to call Kalu the neighbourer. She had written only Kalu on the .
paper. No other person present at the spot was knowing about the person who had committed offence. While taking Jeevan Jyoti to hospital, they firstly reached the Police Post, Kandhwal. He told to the police that some unidentified person has committed the offence and he was taking Jeevan Jyoti to Sukh Sadan Hospital, Pathankot. No investigation was made in his presence regarding finger prints on the knife Ex.P-9.
12. PW-3 prosecutrix has deposed that on 7.9.2011 her children had gone to school and her father-in-law and mother-in-law had gone to Chakki Kandhwal. She was alone in her house. Her husband was posted at Srinagar in Army. After washing clothes, she went inside her bathroom to take bath. There was no door in the bath room, though the curtain was put in the door. In the meantime, accused came inside the bathroom and tried to commit rape on her.
She resisted and shouted but since there was heavy rain nobody could hear her cries. Accused caught her from her hair and hit her head with the wall. Accused also gagged ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 12 her mouth with cloth. Accused gave blow of knife on her throat and she fell down on the floor of her bathroom. She .
became unconscious. When she regained consciousness, she tried to come out of the bath room, but could not walk.
She came out of the bathroom by crawling and reached in the verandah. She wrapped bed sheet on her body, which was lying on the bench. She could wear her salwar but could not wear her shirt. She tried to make telephone call to her husband, but her voice was not coming out. After sometime, her son and daughter came from school. They asked her about the injury. She could not speak, therefore, through gesture she asked for pen/pencil and paper. They gave her paper and pencil and she wrote on the paper with pencil "Tau Ko Phone Karo". The paper is Ex.P-10. Her children were not having telephone number of their Tau (uncle). Thereafter she asked for another paper and wrote the word Kalu on the same. Thereafter, mother of Kalu came on the spot. Other villagers also come on the spot.
Her father-in-law and mother-in-law came there, who took her to Sukh Sadan Hospital, Pathankot. She remained admitted in Sukh Sadan Hospital w.e.f. 7.9.2011 to ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 13 17.9.2011. She gave her statement to Naib Tehsildar, Nurpur in writing vide Ex.PW-1/A. Three photographs of .
different persons were shown to her by Naib Tehsildar. She was asked to indentify the person who had come in her house. She identified the photograph of the accused. She remained admitted in Military Hospital, Pathankot upto 30.9.2011. She came to know in the hospital that her ear ring and nose ring were missing. In her cross-examination, she admitted that she was able to see, hear and understand the things.
However, due to injury, she was not able to speak, but she could write. She has admitted that her son and daughter were first to reach to her in verandah. Her children had asked her after seeing the blood oozing out of her throat, who has caused injury to her. She had asked her children to provide pen/pencil and paper by way of gestures. Thereafter, she wrote on that chit "TAU KO PHONE KARO". She also admitted that she had not written on the paper, who has caused injury to her. Her son told her that he was not having telephone number of his "TAU". The neighbourers of village had come at the spot. She had seen mother of Kalu Nirmala Devi. Police had not asked the ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 14 villagers in her presence as to who among them has come there at the time when she was in trouble. Her mother-in-
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law and father-in-law had not asked anything from her. On the way, her father-in-law had informed the police post Kandhwal. She has admitted that her father-in-law had not told ASI Ajeet Singh as to who has committed the offence.
She did not know that ASI Ajeet Singh had also reached the hospital when they reached there. She did not know the time when she was admitted in Sukh Sadan Hospital on 7.9.2011. She has admitted that after arrest of the accused, his photograph was published in the newspaper. She could not tell the duration when she resisted the act of attempt of committing rape by the accused. She admitted that the period was one hour. The accused struck her head with the wall after holding her from her hair. She did not remember as to how many time, her head was struck with the wall.
She admitted that due to striking of her head with the wall, she suffered injuries on her head. She did not remember that Doctor had seen her all injuries in the hospital. She had mentioned the names of accused in her statement before the Tehsildar. She had not told this fact to her ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 15 children and the villagers on 7.9.2011 that accused entered into her bathroom and tried to commit rape upon her.
.
13. PW-4 Santokh Singh, deposed that on 7.9.2011, he was coming back after dropping the children. At 3.20 PM, when he reached at place Kuttan, he saw accused walking on the path. He asked the accused as to from where he has come. But he did not reply. He was perplexed. Thereafter, he went home. On the next day, he came to know through newspaper about the incident. In his cross-examination, he has admitted that on 9.9.2011, a news item was published in the newspaper, regarding arrest of the accused and his photo with the police was also published.
14. PW-5 Jaspal Singh has deposed that on 8.9.2011 he had gone to Sukh Sadan Hospital, Pathankot to enquire about the well being of Jeevan Jyoti. The police had come to the hospital for recording the statement of Jeevan Jyoti, however, the doctor had opined that she was not able to speak, though she was able to write down. Thereafter, Jeevan Jyoti wrote her statement on a paper. In cross-
examination, he testified that Jeevan Jyoti was his niece.
ASI Ajeet Singh was present at the time of writing the ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 16 statement. ASI Ajeet Singh had supplied the paper and ball pen to Jeevan Jyoti. He reached the hospital at 4-5 PM. In .
his presence, no certificate was issued by the doctor to the effect that Jeevan Jyoti was not in a position to speak.
15. PW-6 Nirmala Devi testified that she went to the house of Jeevan Jyoti and found that she was lying in her verandah, in a pool of blood. She saw in injury on her throat and she was not able to speak. She took a glass of water from the kitchen of the house of Jeevan Jyoti and tried to give her water. She was not able to drink water.
After some time, other villagers also reached the spot.
Thereafter she was taken to the hospital. In her cross-
examination, she deposed that she did not remember whether she had given statement to the police that Jeevan Jyoti was not in a position to speak. Confronted with her statement Mark Z, wherein it is not so recorded. She also admitted that the news item regarding this occurrence had come on 9.9.2011. She also admitted that the accused, his brother, Shiv Raj, Suresh and Rajesh were apprehended by the police on suspicion in the case.
::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 1716. PW-7 Master Arush testified that he was studying in 3rd standard in Shivalik Public School Gangath.
.
He has one younger sister. His school closed at 3 PM. He did not remember the date and year. However, he was in 2nd standard, when he and his sister reached back the house from school, he saw that his mother was in the verandah of the house and she was in a pool of blood. She was making some gesture. He supplied a paper and pencil to her. She wrote on the paper "Tau Ko Phone Karo". He was not having telephone number of his Tau and asked his mother about his telephone number. She said no through gesture. She wrote Kalu on the paper. Thereafter, he went to the house of Kalu and found his mother there. He told her that his mother has suffered injury on her throat and blood was oozing out of the wound. Thereafter Dadi (mother of Kalu) came on the spot.
17. PW-8 Rashpal Singh deposed that the police collected two blood samples from the verandah of the house of Joginder Singh and one blood sample from the bathroom.
From the bath room, hair were also collected by the police.
The police had also taken into possession a knife from the ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 18 water tank which was kept in the bathroom of Joginder Singh. He identified knife Ex.P-9. In his cross-examination, .
he has admitted that the police had gone to the bathroom in his presence and prior to his reaching the spot; police had gone to other rooms.
18. PW-9 Madan Singh has testified that the accused had given disclosure statement before him and Purshotam Singh. Accused told that he has concealed his clothes and Chuni which he could get recovered. He also admitted in his cross-examination that a news item was published in the newspapers on 9.9.2011 regarding the case and the photograph of the accused was also published. He also admitted that the accused was in police custody since 8.9.2011. He did not know that the accused was interrogated by the police on the intervening night of 8/9.9.2011.
19. PW-10 Subhash Singh Mankotia deposed that the accused had given disclosure statement in his presence and in the presence of Sudhir Singh. The disclosure statement is Ext.PW-10/A. The accused led the police to the place near his house where he had concealed the gold ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 19 ear rings under a stone in the bushes. In his cross-
examination, he admitted that accused remained in the .
police custody after 8.9.2011.
20. PW-11 Dr. Avneesh Kumar, Incharge, Sukh Sadan Hospital, Pathankot, deposed that Jeevan Jyoti was admitted in Sukh Sadan Hospital as emergency case of cut throat injury with alleged history of injury caused by sharp edged weapon by known person at her home when she was alone on 7.9.2011 at 1.30 PM. He noticed the following injury on her person:-
"Cut throat injury over anterior aspect of the neck with complete transection of the trachea along with strap muscle and part of the thyroid and external jugular vein on the left side. I declared the said injury as dangerous to her life."
He issued MLC, Ext.PW11/A. In his cross-
examination, he has deposed that on 7.9.2011, police had given application to him to ascertain whether the injured Jeevan Jyoti was fit to give her statement and whether the injured could have died due to alleged blow of sharp edged weapon. The application is Ex.PW-11/C. He gave opinion on the same that Jeevan Jyoti was not fit to give her statement at that time and without giving adequate ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 20 treatment, patient could have died. In his cross-
examination, he has deposed that patient was operated by .
him and after the operation when she gained consciousness;
he asked her whether she knows the person, who has assaulted her. She nodded her head in affirmative and therefore, he wrote his report that the patient knew the person who has assaulted her. The patient had not told the name of the assailant. He has not supplied the explanation made before the court to the police. He has not given explanation in his opinion, which he has written on the MLC. He has admitted that he has not mentioned in Ext.
PW-11/A that the patient was taken to the operation theatre.
21. PW-15 H.C. Vipin Kumar has deposed that on 8.9.2011 he had given an application Ext. PW-11/D to MO Sukh Sadan, Hospital Pathakot on the direction of ASI Ajeet Kumar to take opinion whether Jeevan Jyoti was fit to make her statement. The doctor has given opinion on the application Ext. PW-11/D
22. PW-16 SHO Brij Mohan deposed that he had recorded the statements of Constable Maninder Singh and ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 21 MHC Vinod Kumar on 23.11.2011. He admitted that a news item was published in daily newspaper, i.e. Punjab Kesari .
on 9.9.2011 after arrest of the accused. He also admitted that the photograph of the accused was also published in the newspaper who was with the police. The photograph was published in the newspaper. It was taken in the Police station and two police officials stood on either sides of the accused. The photograph was taken on 8.9.2011. The accused was also arrested on 8.9.2011.
23. PW-17 HC Som Raj admitted that in Rapat No. PW-17/A names of the persons have not been mentioned and only this fact has been mentioned therein that some unknown person has seriously injured Jeevan Jyoti, who was taken to Sukh Sadan Hospital, Pathankot.
24. PW-19 Chanderkanta has deposed that she remained associated in the investigation. At the instance of accused two gold rings were recovered, which she identified to be of Jeevan Jyoti.
25. PW-20 ASI Ajeet Kumar was the investigation officer. In his examination-in-chief, he has deposed that on 7.9.2011 at 5.05 PM, he was present in police Post ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 22 Kandhwal. Joginder Singh came there and told that his daughter-in-law was injured by some unknown persons and .
she was being taken to Sukh Sadan Hospital, Pathankot.
Joginder Singh took his daughter to Pathankot. He also went to Sukh Sadan Hospital, Pathankot. Statement of Joginder Singh Ext. PW-2/A was recorded. On the same day, in the bathroom there was a plastic tank, in which a knife was found. The photographs of knife were taken. No finger prints or blood stains were found on the knife. The knife was sealed in a parcel with seal impression 'Y' in the presence of Joginder Singh and Rashpal Singh. On the same day, in the verandah of the house of the complainant, near the blood stains a piece of paper was found which was taken into possession vide seizure memo Ext. PW-7/D. In his cross-examination, he has admitted that in Rapat Ex. PW-
17/A, it has been mentioned that some unknown person has seriously injured Jeevan Jyoti who has been taken to Sukh Sadan Hospital, Pathankot. He has also admitted that Joginder Singh was present in the police post at that time.
Jeevan Jyoti was in the vehicle, which was outside the police post. He has admitted that it was a cognizable ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 23 offence. He could not state the exact time when he reached at Kuttan. He admitted that the villagers had told that .
Jeevan Jyoti had not mentioned the name of the person who committed the crime on 7.9.2011. He also admitted that on 7.9.2011, on the spot he came to know that Jeevan Jyoti was able to listen and write down the things. The accused was detained on 8.9.2011 to ascertain the identification of the assailant. He has admitted that no identification parade was conducted in this case. He also admitted that photograph of accused was published in Punjab Kesari on 9.9.2011. He also admitted that Jeevan Jyoti knew about the weapon of offence at the time of admitting to the hospital. He also admitted that there is no mention of word 'sharp edged weapon' in the statement of Jeevan Jyoti.
Volunteered that she has mentioned the weapon 'chaku' like knife.
26. DW-1 Dr. Ashutosh Joshi, Medical Officer, Civil Hospital, Nurpur, District Kangra deposed that he examined the accused on 23.9.2011 and noticed the following injuries on his person:
"1. Non healing deep wound on the ventral aspect of the penis. Penile ulcer shows dark brown scab and slough, size 3 cm x 2 cm.::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 24
2. Non healing deep wound on the medial aspect of the left thigh, size 8cm x 3 cm, rectangular in shape, dark brown scab and slough present."
.
In his cross-examination, he admitted that the accused was examined in Civil Hospital, Nurpur on 8.9.2011 by Dr. Mukesh Bhardwaj. No injury was mentioned in MLC. He also admitted that accused was also examined on 10.9.2011, 12.9.2011, 15.9.2011 and 18.9.2011 as per the record. He also admitted that the injuries mentioned in Ex.DW-1/A were not fresh injuries.
There was alleged history of the injuries being caused due to burning of charcoal.
27. DW-2 Anita Devi wife of the accused has deposed that she was married to accused about nine years back.
Her husband was arrested on 8.9.2011. The persons present with the police pelted stones on them, which caused injury on her head also. She went to Sub Jail, Nurpur to see her husband and found that he was crying with pain. He told her that he was tortured by the police by giving burning charcoal on his private parts. She has submitted an application to S.P. Dharamshala to this effect and thereafter FIR was registered. In her cross-examination, she has ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 25 deposed that she has given the application to S.P. on 21.9.2011.
.
28. Statement of the victim was recorded by PW-1 Subhash Chand, Naib Tehsildar, Nurpur on 12.9.2011. It is stated in the statement Ext. PW-1/A that the victim was washing her clothes in her bath room. Baba came from behind and throttled her throat and thereafter tried to outrage her modesty. She resisted for a considerable time.
He pulled her hair and banged her head against the wall.
She told him that she had recognized him and he could not escape. Thereafter, he cut her throat. She did not know how many persons were accompanying him. She remained lying in the bath room for a considerable time. When she regained consciousness, she crawled towards verandah and pulled bed sheet from the bench and telephoned her husband, however she could not talk to him. Her mother-in-law and father-in-law were not at home as they had gone out.
Thereafter, her son and daughter came from school and saw her. They asked her what happened to her. She asked them by way of gestures to give her copy and pencil. The children supplied her copy and pencil. She wrote on the paper and ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 26 told them to call Kalu uncle. Her son went there, but mother of Kalu came on the spot. After some time, her mother-in-
.
law and father-in-law also came at the spot, who took her to the Hospital. She did not know what was stolen from the house. She was only aware of the fact that the ornaments from her nose and ear were missing.
29. PW-2 Joginder Singh is the father-in-law of the prosecutrix. According to him, when they reached the courtyard of their house, they found that his daughter-in-
law was lying there and blood was oozing out from the wound. She had sustained injury on the throat. They took her to Sukh Sadan Hospital, Pathankot. He informed the police post Kandhwal regarding the occurrence. Police visited the hospital. He came back to his house with the police. His statement was recorded by the police under Section 154 CrPC. In his cross-examination, he has admitted that in Ext. PW-2/A, he has mentioned that some unidentified persons have committed the offence. He also admitted that when he reached the home, the victim was able to see, understand and write down the things. He also admitted that victim had already written on the paper 'Tau ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 27 Ko Phone Karo', after procuring pencil from his grandson. He has told the police that some unidentified persons have .
committed the offence.
30. The victim has appeared as PW-3. She has stated that her son and daughter came from school. They enquired about the injuries suffered by her. She could not speak.
Therefore, through gestures she asked for pen/pencil and paper. They gave her paper and pencil and wrote on the paper with the pencil, 'Tau Ko Phone Karo". She identified paper Ext. P-10. Her children were not knowing the telephone number of their Tau (uncle). Thereafter, she asked for another paper and wrote the word "Kalu", on the same.
She remained admitted in Sukh Sadan Hospital, Pathankot with effect from 7.9.2011 to 17.9.2011. She has given her statement to the Naib Tehsildar Nurpur which is Ext. PW-
1/A. She identified the photograph of the accused vide Ext.
PW-1/B. Another document Ext. PW-3/A was written by her in the hospital. The papers were given to her by her family members. In her cross-examination, she has deposed that she was able to see, hear and understand the things, but due to injury on her throat, she could not speak. Neither her ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 28 father-in-law nor her mother-in-law asked anything from her. Her father-in-law had not informed the police who have .
committed the offence. She also admitted that after the arrest of the accused, photographs of the accused were published in the newspaper. She has also admitted that she has not told her children and the villagers that accused entered into her bathroom and tried to commit rape upon her. In Ext. PW-3/A she stated that Baba has cut her throat. He tried to commit rape with her. When she resisted, he cut her throat. He thought that she has died. PW-1 Subhash Chand has deposed that the prosecutrix was not able to speak but she was able to write. He handed over blank papers to the victim. She gave her statement by writing on the paper. The statement was voluntary. She was shown three photographs and she pointed out towards one photograph. In his examination, he has admitted that he alongwith ASI Ajeet Singh reached the hospital at about 5.00 PM. The photograph Ext. PW-1/B was given to him and the same was shown by him to the prosecutrix.
31. PW-4 Santokh Singh testified that he saw the accused walking on the path. He asked the accused where ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 29 he had gone but he did not reply. In his cross-examination, he has deposed that he was called by the police. He used to .
meet the police personnel frequently.
32. PW-6 Nirmala Devi testified that she went to the house of prosecutrix. She was lying in her verandah in a pool of blood. She did not remember whether she has given statement to the police that the prosecutrix was not in a position to speak. She also admitted that prosecutrix is her relative. She also admitted that news item regarding occurrence had come in the newspaper on 9.9.2011.
33. PW-7 Master Arush supplied paper and pencil to his mother. She wrote on the paper 'tau ko phone karo'. He did not know the telephone number of his Tau. He asked his mother about his telephone number. But she said 'no' through a gesture. She wrote word 'Kalu' on the paper.
Thereafter, he went to the house of Kalu. The children of the prosecutrix asked her specifically who has caused the injury. However, she did not disclose the name. She instead of writing the word 'Kalu', could have written the name of accused since she was in a position to write. She could easily write on the paper. It has also come on record that ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 30 other villagers had also reached the spot. The prosecutrix has not disclosed the name of the accused either to her in-
.
laws or to the people present on the spot. Rather, surprisingly, neither her father-in-law nor her mother-in-law asked about the name of the accused from the prosecutrix.
The prosecutrix was admitted to the hospital by PW-2 Joginder Singh. He has told the police Kandhwal the manner in which the accident had happened but has not disclosed the name of the accused. Even in Ext. PW-2/A, statement of PW-2 Joginder Singh recorded under Section 154 CrPC , name of the accused has not been mentioned.
The prosecutrix has named the accused in the statement vide Ext. PW-3/A that Baba has cut her throat and thereafter tried to commit rape upon her. However, in her statement, Ext. PW-1/A recorded by the Tehsildar, she disclosed the name of the accused that Baba firstly tried to strangulate her with the cloth and thereafter tried to commit rape upon her. She resisted and told the accused that she has recognized him and he could not escape. In case, she knew the name of the accused, as per Ext. PW-1/A, she was supposed to disclose the name of the accused to her ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 31 children and PW-6 Nirmala Devi. She has identified the accused on the basis of Ext. PW-1/A. PW-1 Subhash Chand .
has admitted that he has shown three photographs to the prosecutrix. However, two photographs were not given to him. These two photographs are also not on the record. The fact of the matter is that the photograph of the accused had already been published in daily edition of Punjab Kesari on 9.9.2011. Thus there is question mark on the identification of the accused.
34. The conduct of PW-3 Prosecutrix was unusual.
Statement of PW-4 Santokh Singh does not inspire confidence. He knew many police officials being driver of the van. PW-5 Jaspal Singh in his cross-examination has admitted that in his presence, no certificate was issued by the doctor to the effect that Jeevan Jyoti was not in a position to speak. Even in MLC Ex.PW-11/A, the time mentioned is 2.30 P.M. and there was overwriting. Figure '2.30' has been converted to '1.30' by overwriting. According to the prosecution, the incident has happened at 1.30 P.M. According to the prosecution, the prosecutrix was taken to the Hospital at 5.30 P.M. In case injury as reflected in ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 32 Ext.PW-11/A had been caused to PW-3, she would have bled to death. Since according to PW-11 Dr. Avinash Kumar, .
there was throat injury over anterior aspect of the neck with complete transection of the trachea along with strap muscle and part of the thyroid and external jugular vein on the left side. PW-20 ASI Ajeet Kumar Investigating Officer also categorically deposed in his examination in chief that on 7.9.2011 at about 5.05 P.M., when he was present in the police Post Kandhwal, PW-2 Joginder Singh came there and told that his daughter-in-law has been injured by some unknown persons and she was taken to Sukh Sadan Hospital. PW-16, SHO Brij Mohan has also admitted in his cross-examination that a news item was published in daily newspaper Punjab Kesari on 9.9.2011 after arrest of the accused. The photograph of the accused was also published in the newspaper, who was with the police. The fact of the matter is that the photograph was taken on 8.9.2011. It is reiterated that the identity of the accused has not been established. There is no mention of knife Ex.P-9 in Ex.PW-
3/A and Ex.PW-1/A. According to PW-20/J, some traces of blood were found on the knife, but these were insufficient ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 33 for further examination, whereas as per PW-20 ASI Ajeet Singh, Investigating Officer, examination in chief, no finger .
prints or blood stains were found on the knife. It is not believable that the accused would have thrown the knife in the water tank and his normal conduct would have been to conceal the weapon of offence away from the scene of occurrence. PW-2 Joginder Singh and PW-10 Subhash Singh Mankotia have deposed that Ext.P-10 was recovered by the police. PW-2 Joginder Singh has taken his daughter-
in-law to the hospital and how the paper remained lying on the scene of occurrence after a lot of commotion in the house. Moreover, PW-8 Rashpal Singh deposed that the paper Ext.P-10 was already with the police when he reached at the spot and it was picked up from the verandah. In the recovery memo Ex.PW-10/B, there is overwriting and it is apparent that figure '19' has been converted to '10'. The date has been changed from 19.9.2011 to 10.9.2011. The disclosure statements Ext.PW-9/A and Ext.PW-10/A have been recorded when the accused was in the custody of the police. DW-2 Anita wife of the accused has stated that her husband was tortured by the police. She lodged report with ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 34 the higher authorities. DW-1 Dr. Ashutosh Joshi examined the accused and found the following injuries on his person:
.
"1. Non healing deep wound on the ventral aspect of the penis. Penile ulcer shows dark brown scab and slough, size 3 cm x 2 cm.
2. Non healing deep wound on the medial aspect of the left thigh, size 8cm x 3 cm, rectangular in shape, dark brown scab and slough present."
35. According to him, injuries No. 1 and 2 were simple in nature and the duration of the injuries was approximately 15-20 days. According to him, the injuries were possible due to burns. The accused was medically examined on 8.9.2011, 10.9.2011, 12.9.2011, 15.9.2011 and 18.9.2011. No injury has been mentioned in the MLC.
The injuries suffered by the accused correspond to the date of occurrence. Thus, the possibility that the disclosure statements made by the accused vide Ex.PW-9/A and Ex.PW-10/A have been obtained by the police after torture of the accused by burning his private parts cannot be ruled out. These disclosure statements are not admissible in law.
Who has told the police that the knife was lying in the water tank has not been proved. DW-1 Dr. Ashutosh Joshi has ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 35 categorically deposed that the injuries received by the accused were burn injuries.
.
36. PW-3 prosecutrix has deposed that she has received various injuries on her body while resisting the attempt of rape on her by the accused. However, in MLC, Ext.PW-11/A, no injury was found on the person of the prosecutrix except throat injury. According to her, her head was repeatedly banged by the accused against the wall by pulling her hair. In case her head was banged by the accused on the wall repeatedly, it would have resulted in severe injuries on her head.
37. Name of the accused has not been mentioned in Ex.PW-17/A. The incident has taken place on 7.9.2011.
The prosecutrix has disclosed the name of the accused for the first time after he was arrested on 12.9.2011. His photograph was already published in daily Edition of Punjab Kesari on 9.9.2011. It has come on record that she could hear, see, and even write. She had asked for a pen and paper from her children. She could easily write on the paper supplied to her by her children the name of the accused.
Three photographs were shown to the prosecutrix, but only ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 36 one has been placed on record. There are material improvements and contradictions made in the statements .
of the witnesses. Statement of PW-3, prosecutrix does not inspire confidence the manner in which the incident has happened. The identity of the accused has not been disclosed by the prosecutrix either to her-in-laws or to PW-6 Nirmala or to the villagers, who had also assembled at the spot.
38. The presence of the accused on the spot has not been proved by the prosecution. The recovery of knife has also not been proved. Thus, the prosecution has failed to prove that the accused has attempted to commit rape on the victim and attempted to kill her by giving blow of knife on her throat and committed robbery after entering into dwelling house. Accordingly, there was no question of destruction of evidence by the accused.
39. Accordingly, Cr.A. No. 140/2013 is allowed and Cr. A. Nos. 4045/2013 and 4128 of 2013 are dismissed.
Judgment of conviction and order of sentence dated 27.2.2013, under Sections 376, 511, 307, 394, 454 and 201 of the Indian Penal Code, is set aside. The accused is ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP 37 acquitted of the charges framed against him. The fine amount, if any deposited by the accused is ordered to be .
refunded to him. Since the accused is in jail, he be released forthwith if not required in any other case.
39. The Registry is directed to prepare the release warrant of the accused and send it to the Superintendent of the Jail concerned in conformity with this judgment forthwith.
(Justice Rajiv Sharma), Judge.
(Justice Chander Bhusan Barowalia), Judge.
12.5.2016 *awasthi* ::: Downloaded on - 15/04/2017 18:09:58 :::HCHP