Punjab-Haryana High Court
Labh Singh And Another vs State Of Haryana on 8 January, 2010
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
CRA No.423-SB of 1997 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. Appeal No.423-SB of 1997
Date of Decision: 8 - 1 - 2010
Labh Singh and another .....Appellants
v.
State of Haryana .....Respondent
CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA
***
Present: Mr.Baljit Puri, Advocate
for the appellants.
Mr.Deepak Jindal, DAG, Haryana.
***
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
Dissa Singh son of Sukhdev Singh, aged 29 years, Labh Singh son of Kirpal Singh and Gurmail Singh son of Bhira Singh were tried by Additional Sessions Judge, Hisar in Sessions Case No.73 of 1993. Two other co-accused Jagmail Singh and Deva Singh were declared proclaimed offender. During the trial, Dissa Singh is said to have expired. The present appeal has been filed by Labh Singh and Gurmail Singh. Appellants are aggrieved against the judgment rendered by Additional Sessions Judge, Hisar whereby he held Labh Singh accused guilty for offence under Sections 366/506 IPC read with Section 34 IPC and Gurmail Singh accused was convicted for offence under Sections 366/376/506 IPC read with CRA No.423-SB of 1997 [2] Section 34 IPC. To specify, Labh Singh has not been convicted for offence under Section 376 IPC.
Learned Additional Sessions Judge, Hisar had sentenced the appellants as under:-
"....I hereby convict both the accused under Sections 366 IPC read with Section 34 IPC and sentenced them each to undergo rigorous imprisonment for five years and to pay a fine of Rs.500/- each, in default of payment of fine they shall undergo further RI for six months. I also convict both the accused Gurmail and Labh Singh under section 506 IPC read with section 34 IPC and sentenced them each to undergo RI for one year. Gurmail Singh accused is also convicted under section 376 IPC and is sentenced to undergo RI for seven years and to pay a fine of Rs.500/-, in default of payment of fine he shall further undergo RI for six months. The sentence of imprisonment shall run concurrently. ..."
In the present case, FIR was lodged by Surjit Singh father of the prosecutrix. The same, if translated into English, read as under:-
"I am resident of village Baliala and am doing agricultural work. About ten years back my wife Suchar Kaur had died. I have three daughters, eldest daughter is Reshma aged about 22/23 years, Gogy is aged about 19 years and youngest is Amarjeet Kaur aged about 14 years old. I have also two sons namely Krishan and Sohan and they are 19 years old and 12 years old respectively. After passing the examination of 7th standards, my daughter Amarjeet Kaur left her studies this CRA No.423-SB of 1997 [3] year. About 15-20 days back Gurmail Singh son of Bhira Singh Majbi Sikh, resident of Chailanwaly misbehaved with my daughter Amarjeet Kaur. But the matter was compromised in our village and no report was made to the police by us. But Gurmail Singh was having an evil eye on my daughter Amarjeet Kaur. Yesterday i.e. on 17.5.92, I and my family members were sleeping in courtyard of our house after taking dinner as usual after parking rehra in front of main gate. At about 11.30 P.M. I suddenly woke up then I saw that Gurmail Singh and three other persons were present on the main gate of our house where the rehra was parked. I asked them what is the matter and as to why they have come there. They asked me to remove the rehra and I did so. Gurmail Singh who is already known to me alongwith one sikh man of wheatish colour aged about 50 years stout bodied wearing kurta pajama with black turban and open hair beard having kirpan came to me and another young sikh person aged about 30 years of wheatish colour with muffled face wearing yellow turban and kurta pajama armed with double barrel gun of .12 bore remained present at the gate and one more young sikh aged about 25 years of wheatish colour; wearing kurta pajama and white turban with muffled face stood on the way. The man, accompanied with Gurmail Singh asked me to call the daughter who's dispute was with Gurmail Singh, upon which I called my daughter Amarjeet Kaur. My daughter Amarjeet Kaur and my mother Dhun Kaur had come and three sikh persons abducted CRA No.423-SB of 1997 [4] forcibly my daughter Amarjeet Kaur, who is aged about 14 years, wheatish colour, slim body and wearing Salwar and jumper and used to talk in Punjabi. I followed them up to Panchayat Ghar of village Baliala, and they threatened me to go back to my home and if made noise, they will kill me and out of fear, I came back to my house. Today at 7.00 A.M. I informed members of Panchayat Hem Raj and Kundan Lal ex-Sarpanch of village Baliala and then I alongwith both above has gone to the police station for lodging the report. That you have met me at Ratangarh Chowk. My minor daughter Amarjeet Kaur was forcibly abducted by Gurmail Singh and alongwith his companions after hatching conspiracy. Action may be taken. I have heard my statement which is correct."
Occurrence in the present case had taken place on 17.5.1992 at 11.30 P.M., whereas statement of the complainant was recorded by SI Nihal Singh on 18.5.1992 at 1.10 P.M. at Rattangarh Chowk, where he was present in connection with patrolling. Amarjeet Kaur returned to her parental house on 18.7.1992 after two months. Her statement under Section 161 Cr.P.C. Ex.DA was recorded on 19.7.1992. Statement of Amarjeet Kaur under Section 164 Cr.P.C. Ex.PB was recorded on 30.7.1992. The matter was investigated. Report under Section 173 Cr.P.C. was submitted and both the appellants along with Dissa Singh were summoned to stand trial. On 17.11.1993 Additional Sessions Judge, Hisar framed a charge against the appellants that between 18.5.1992 to 17.7.1992 they committed rape upon Amarjeet Kaur at different places, namely, villages Chala Wali, Kaur Wala, Mansa, Kharag Singh Wala, Malot. Khanauri and Hisar and CRA No.423-SB of 1997 [5] thereby committed offence under Singh 376 IPC. Dissa Singh, Gurmail Singh and Labh Singh were also tried for offence under Sections 366 and 506 IPC.
Prosecution examined Sh.B.Diwakar, Judicial Magistrate, Gohana PW1 who stated that on 30.7.1992 Amarjeet Kaur was produced before him by ASI Rajpal along with application Ex.PA with a request that statement of Amarjeet Kaur be recorded under Section 164 Cr.P.C. This witness has proved Ex.PB statement recorded under Section 164 Cr.P.C..
Shamsher Singh, Draftsman appeared as PW2 and proved scaled site plan Ex.PC. In cross-examination he stated that he has not shown any electric connection in the house of Surjit Singh nor any electric pole in the street around the house. Surjit Singh, Headmaster, Government High School, Balyala PW3 proved date of birth of the prosecutrix. According to him at the time of admission, date of birth of Amarjeet Kaur recorded was 20.4.1976.
Dr.Mrs.Sunita Goel PW4 on 19.7.192 medico legally examined the prosecutrix. Her observations can be noticed as under:-
"Vagina admitted three fingers easily without any difficulty, cervix was healthy, bleeding through os + x, carcumcla myritm formis present.
PER VAGINAL EXAMINATION:-
Cervix down ward, uterus anti-verted, anti-plex, normal size, firn moble and fornix was clear. There was bleeding through os +."
She opined that possibility of Amarjeet Kaur subjected to rape could not be ruled out.
CRA No.423-SB of 1997 [6]
Dr.R.K.Aggarwal PW5 examined Gurmail Singh and opined that there was nothing to suggest that Gurmail Singh was not capable of performing sexual intercourse. Surjit Singh father of the prosecutrix appeared as PW6. He reiterated what was stated by him in the statement which led to registration of the FIR. He further added that border of Punjab was at a distance of 10/11 Kilometers from his village. In those days terrorists activities were in full swing in the State of Punjab, therefore, fear prevailed. He was confronted with his statement that his son Krishan had a quarrel with Gurmail Singh. He further admitted that at the time of making statement to the police, only name of Gurmail Singh was known to him. This witness further deposed that Gurmail Singh was working as a Tractor Mechanic in the village. This witness further stated that he never stated that Gurmail Singh is also called as Jagmail Singh. He denied that his daughter had affairs with Jagmail Singh. He denied the fact that his daughter had eloped with Jagmail Singh.
Prosecutrix herself appeared as as PW7. In the Court she gave her age as 18/19 years. She supported what was stated by her father. She further said that accused and other assailants took her forcibly. She was given threat of elimination. She stated that accused went on talking with her but had not committed intercourse with her. At that time she was wearing the school uniform. They made her to wear a gents Kurta and Pajama so that she could look like a boy. First they took her to village Chala Wali and then to village Kaur Wala i.e. village of accused Labh Singh. They stayed there for about one hour. Then she was taken to Mansa in a bus. There Gurmail Singh committed sexual intercourse with her. Then she was taken to Kharag Singh Wala. There also Gurmail Singh committed rape upon her. CRA No.423-SB of 1997 [7] Upto village Chala Wali all accused were with her. Thereafter only Gurmail Singh accompanied her. Thereafter she was taken by Gurmail Singh to village Malot and they remained there for 5/6 days. During that period Gurmail Singh was committing sexual intercourse with her. She stated that during her stay at various places, all the five accused had committed sexual intercourse with her. In village Khanauri they stayed for a period of three weeks. Gurmail Singh fell ill there. Gurmail Singh and Jagmail Singh remained with the prosecutrix while the other accused went away. Gurmail Singh went for taking medicine, Jagmail Singh also accompanied him. She remained alone and came back to her village and narrated the whole incident to her father who took her to the police and then to Illaqa Magistrate. She was medico legally examined. She stated that at the time of her abduction, she was 17 years of age. This witness stated in the Court that Gurmail Singh used to tease her when she was studying in 7th class. She was duly confronted with her statement under Section 161 Cr.P.C. where it was not so stated. She also stated that her uncle and brother had beaten Gurmail Singh before 10 days of kidnapping. She was confronted with her statements Exs.DA and PB wherein it was recorded that Gurmail Singh and Jagmail Singh were given beatings 2/3 months before the occurrence. Regarding the fact of giving beatings to Gurmail Singh, she was also confronted with her statements Exs.DA and PB. In cross- examination she stated that Gurmail Singh was mechanic in the village, whereas Jagmail Singh used to visit her village and the accused present in Court is Gurmail Singh and not Jagmail Singh. She proved photographs Exs.DB and DC in which she was standing with Jagmail Singh who was not present in Court. She denied that she had affairs with Jagmail Singh and CRA No.423-SB of 1997 [8] she was writing letters to him. She also denied the suggestion that she was apprehended by the police of Police Station Jhanir and she was brought by Police of Jhanir to Police Station Ratia. She admitted the fact that from her village, she was taken to village Chala Wali on foot, from there to Baliyala and then to Kaur Wala. She travelled to different villages in buses. She along with the accused boarded the bus from Bus Stand. She further stated that from Village Kaur Wala to Village Khanauri, from one village to another, she moved with Jagmail Singh and during the journey she had not disclosed any body about her abduction, as witness stated that she was under fear. This witness further admitted that for a period of three weeks she stayed in the house of Roop Chand at village Khanauri. The wife and son of Roop Chand also used to live in that house. The house of Roop Chand was surrounded by other houses. She had not told the story of abduction and kidnapping at any place to any one. She further stated that she saved the money which was given to her by Jagmail Singh. She further stated that she has not given any report to police or Roop Chand after the accused had left her alone in the house.
SI Nihal Singh PW8 stated that on 18.5.1992 when he was present at Rattangarh Chowk for patrolling, Surjit Singh met him there and made his statement Ex.PJ, on which he made endorsement Ex.PJ/1 and sent the same to Police Station for registration of the case. Formal FIR Ex.PJ/2 was recorded.
SI Ram Kumar PW9 stated that on 4.12.1992 Sadhu Singh produced Dissa Singh and Labh Singh accused before him and Gurmail Singh accused was arrested on 15.12.1992.
PW10 ASI Om Parkash stated that on 6.6.11993 he was CRA No.423-SB of 1997 [9] entrusted with investigation of the case.
PW11 Inder Singh, D.S.P. proved various phases of the investigation. In cross-examination he admitted that Lady Doctor advised x-ray (ossification test) but he had not got Amarjeet Kaur x-rayed. He stated that as there was documentary evidence, he did not feel necessity for any x-ray examination of Amarjeet Kaur. He denied that ossification test was done but the same was withheld as Amarjeet Kaur was more than 18 years of age. Thereafter prosecution closed its evidence.
Statements of the accused were recorded under Section 313 Cr.P.C. and they denied all incriminating evidence. Labh Singh accused stated that Amarjeet Kaur had eloped with Jagmail Singh and police had concocted a false story. Statement of other accused is also on similar lines.
Mr.Baljit Puri appearing for the appellants has laid much emphasis on the cross-examination of Amarjeet Kaur prosecutrix. In the cross-examination she stated that she was photographed with Jagmail Singh; had gone to various places from the village along with Jagmail Singh and Jagmail Singh gave her money which was saved by her for returning to her house. Mr.Puri has further stated that Amarjeet Kaur remained with Jagmail Singh for a period of two months. Out of this period, she stayed for three weeks at the house of Roop Chand. During the travelling from one village to other, they had boarded and alighted from the buses at the Bus Stand. The prosecutrix had opportunity to disclose that she was kidnapped and raped but she opted not to avail the same. He has also drawn my attention to the statement where this witness was confronted and it was stated that earlier uncle and her brother had given beatings to Jagmail Singh. It will be apposite here to reproduce the following portion of the cross-examination of CRA No.423-SB of 1997 [10] the witness:-
".....I have taken from my village to village Chaila Wali on foot. We did not come across any police man while going from Balyala to Chaila Wali and then from village chaila Wali to Kaur Wala. I was taken to different places in buses. We used to board the buses from bus stands. Starting from village Kaur Wala and before going to village Khanauri, I had been moving from one place to another with Jagmail Singh alone. There used to be other passengers in the buses in which we travelled from one place to another. We were never apprehended at any of the bus stand by the Police. I never told any of the passenger travelling in the buses about my abduction by Jagmail Singh as I was always under fear. We stayed at the house of Roop Chand in village Khanauri for about 3 weeks. The wife and son of Roop Chand also used to live in that house. The house of Roop Chand was surrounded by other houses. I never told about my kidnapping or abduction at any place to any one. I cannot tell that the distance between Balyala and Chaila Wali is 245 kilometer, from Chailawali to Mansa 25 kilometers, from Mansa to Malot 75 kilometer and from Malot to Khanauri 130 kilometers. I have saved money for my fare out of the money which Jagmail Singh used to give me from time to time. I did not give any report to the police or to Roop Chand even after the accused had left me alone. I used to cook the food during our stay at Khanauri because I was forced by the accused. I had stated before the police as well as before the Magistrate that CRA No.423-SB of 1997 [11] Jagmail Singh had gone for taking medicines and Gurmail Singh accompanied him. (confronted with her statement Ex.DA and Ex.PB where it is not so recorded)...."
Mr.Baljit Puri has further stated that story of the prosecution that accused came armed and abducted the prosecutrix stand belied from the testimony of PW9 SI Ram Kumar who stated as under:-
"...During investigation it came out that the accused were not possessed with arms at the time of kidnapping of prosecutrix..."
Counsel State that father of the prosecutrix had falsely coined the story that all the five accused came armed and falsely kidnapped her daughter.
Mr.Deepak Jindal appearing for the State of Haryana has stated that testimony of Surjit Singh PW1 and prosecutrix Amarjeet Kaur PW7 are trust worthy and appellants have been rightly convicted by the trial Court.
The learned trial Court noticed that prosecution has produced copy of the school admission certificate Ex.PD, according to which age of prosecutrix was 16 years and one month but even though the Doctor opined that x-ray regarding age be conducted. The Investigating Officer had not done the needful. The trial Court observed that prosecutrix was certainly below 18 years of age and above 16 years of age. The trial Court further held that even though prosecutrix had given her age as 18 or 19 years at the time when she appeared before the trial Court on 9.8.1994, it cannot be held that she was above 18 years of age (when she appeared in the witness box in the trial Court) but at the time of occurrence she was less than 18 years of age. Prosecutrix has further stated that Gurmail Singh and Jagmail Singh are real brothers. However, this Court cannot ignore the fact that prosecutrix has stated that both Gurmail Singh and Jagmail Singh had raped her. At the CRA No.423-SB of 1997 [12] time when she escaped, Gurmail Singh had fallen ill, he went to take medicine, accompanied by Jagmail Singh. Possibility cannot be ruled out that prosecutrix had an affair with Jagmail Singh who induced her to elope and later both the brothers had exploited her. Thus, offence under Section 376 IPC is made against appellant Gurmail Singh. However, the story that five accused came in the night armed with weapons and took away the prosecutrix seems to be exaggeration and result of consultations and deliberations. The entire conduct of the prosecutrix of travelling with Jagmail Singh at different places where Gurmail Singh had joined them show that Labh Singh was unnecessarily named. The trial Court had not convicted Labh Singh for offence under Section 376 IPC. Except a stray line that all the five accused raped her at village Khanauri. No other allegation had surfaced against Labh Singh. This allegation also later stand belied by assertion of the prosecutrix that she travelled alone with Jagmail Singh. Thus, as a matter of abundant caution benefit of doubt is granted to Labh Singh and he is acquitted of the charge.
As a result of above discussion, appeal is partly allowed. Conviction and sentence of Gurmail Singh is maintained and that of Labh Singh is set aside.
( KANWALJIT SINGH AHLUWALIA ) January 8, 2010. JUDGE RC