Punjab-Haryana High Court
Rajbir Singh vs State Of Punjab on 16 August, 2010
Author: Jora Singh
Bench: Jora Singh
Crl.Appeal No.37-SB of 2000 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Crl.Appeal No.37-SB of 2000
Date of decision: 16.8.2010
Rajbir Singh
... Appellant
versus
State of Punjab
... Respondent
CORAM: HON'BLE MR. JUSTICE JORA SINGH.
Present: Mr. A.P.S.Mann, Advocate,
for the appellant.
Mr.Arshwinder Singh, DAG, Punjab.
...
JORA SINGH, J.
Challenge in the present appeal by Rajbir Singh is to the judgment of conviction and order of sentence dated 11.12.1999 rendered by Sessions Judge, Gurdaspur, arising out of FIR No.74 dated 21.9.1998 under Section 376 IPC, PS Kalanaur.
By the said judgment, he was convicted under Section 376 IPC and sentenced to undergo RI for ten years and to pay a fine of Rs.5,000/-, in default of payment of fine, to further undergo RI for six months.
Prosecution story, in brief, is that Shinder Kaur, complainant, was the resident of Village Sarje Chak. Gurwinder Kaur, aged about 5 years (prosecutrix), daughter of her daughter Lakhwinder Kaur, was adopted by the complainant. On 20.9.1998 at about 3.00 PM, prosecutrix was playing in the street and was taken away by Rajbir Singh to his house because his other family members had gone to attend Amavashya ceremony. After waiting for some time, when prosecutrix did not return, then she had gone to the house of Rajbir Singh. She was in the deodi, then heard the shrieks of Crl.Appeal No.37-SB of 2000 2 prosecutrix. After that she had gone inside the house, then prosecutrix was seen while lying on the ground and was weeping. Blood was oozing out of private parts of the prosecutrix. On seeing the complainant, Rajbir Singh while tying his underwear had fled away from the spot. Prosecutrix was shifted to Civil Hospital, Kalanaur, for medical aid. From Civil Hospital, Kalanaur, she was referred to Civil Hospital, Gurdaspur. From Civil Hospital, Gurdaspur, wireless message was sent to Police Station City, Gurdaspur, regarding admission of prosecutrix in the hospital. ASI Kamal Kishore from PS Kalanaur had gone to Civil Hospital, Gurdaspur. Application was moved for obtaining opinion of doctor regarding fitness of the prosecutrix to make statement. Prosecutrix was declared unfit to make statement.
On 21.9.1998, again ASI Kamal Kishore had gone to Civil Hospital, Gurdaspur, where Shinder Kaur, complainant, had met him. Statement of Shinder Kaur (Ex.PE) was recorded, who had signed the same in token of its correctness. After making endorsement at 11.50 AM, statement was sent to the police station, on the basis of which, formal FIR (Ex.PE/2) was recorded. Special report was delivered to the Ilaqa Magistrate at 7.00 PM on 21.9.1998.
Complainant had produced one underwear stained with blood before the Investigating Officer and the same was made into sealed parcel sealed with seal bearing impression `KK'. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. After that, ASI Kamal Kishore had gone to the spot and after inspection prepared rough site plan (Ex.PH) with correct marginal notes. Accused was arrested on 25.9.1998. After completion of investigation, challan was presented in Crl.Appeal No.37-SB of 2000 3 the Court.
Accused was charged under Section 376 IPC, to which he pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
PW1 Janak Singh Dhanjal stated that he had prepared scaled site plan (Ex.PA) at the instance of complainant.
PW2 Dr.Rajinder Pal Kaur had medico legally examined prosecutrix on 21.9.1998 at 10.40 AM and observed as under:-
"Local examination:- Labia majora normal. Labia minora normal. There was tear present in the hymen, about 1 cm x .5 cm. At the posterior fourchette and another tear about .5 cm present at 10' O Clock position. Edges of tear bleed on touch. Lower vaginal swab taken from out aspect of hymen and upper vaginal swab taken from posterior fornix of vagina and sent for chemical examination.
P.V.:- One finger went into the vagina. Uterus small size fornices clear. Patient referred to department of radiology for radiological determination of age."
According to Radiologist, age of the prosecutrix was between 4 to 7 years. Ex.PB is the copy of MLR.
PW3 Shinder Kaur is the complainant and supported the prosecution story by saying that prosecutrix, daughter of her daughter Lakhwinder Kaur, was adopted. On 20.9.1998 at 3.00 PM, prosecutrix was playing in the street and was taken away by the accused to his house. When prosecutrix failed to return, then she had gone to the house of the accused. Crl.Appeal No.37-SB of 2000 4 While present in the deodi, then she had heard the shrieks of prosecutrix. After that she had gone inside the house, then prosecutrix was seen while lying on the ground and was weeping. Blood was oozing out of private parts of the prosecutrix. On seeing the complainant, Rajbir Singh while tying his underwear had fled away from the spot. Prosecutrix was shifted to Civil Hospital, Kalanaur, for medical aid. From Civil Hospital, Kalanaur, she was referred to Civil Hospital, Gurdaspur. She had produced blood stained underwear before the police and the same was taken into police possession.
PW4 Constable Narinder Singh tendered his affidavit (Ex.PG). PW5 ASI Kamal Kishore is the Investigating Officer.
PW6 Dr. Jagjiwan Singh had medico legally examined the prosecutrix for determination of her age. Prosecutrix was in between 4 to 7 years as per x-ray report (Ex.PC).
PW7 Dr. Dinesh Kumar had medico legally examined the accused on 25.9.1998 and found him fit to perform sexual intercourse.
PW8 HC Jaswant Singh tendered his affidavit (Ex.PL).
After close of the prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent.
Defence version of the accused was that he was not present in Village Sarje Chak on 20.9.1998. So, no question of committing any offence. Due to litigation between his forefathers and relatives of Shinder Kaur, he was falsely implicated in this case.
In defence, DW1 Ashwani Tuli, Draftsman, appeared and stated that site plan (Ex.DX) was prepared by him.
Crl.Appeal No.37-SB of 2000 5
DW2 Dr. Dinesh Kumar stated that on 25.9.1998 when he had medico legally examined the accused, then clothes worn by the accused were not found torn. No button of his shirt was found missing. There was no dust on the clothes. There was no blood or semen on the clothes. He had not noticed bruises, scratches or teeth bites on the body of the accused. He had not seen any scratches or laceration on the penis of the accused.
DW3 Tehal Singh, Ex. Sarpanch, stated that there was civil and criminal litigation between the family members of the complainant and the accused. Father of the accused was convicted in a case filed by Pritam Singh and Bachan Singh. Mohinder Singh, brother of the accused, was also involved in an excise case at the instance of complainant party. Accused party was not on speaking terms with the complainant party. Case was false.
After hearing learned Public Prosecutor for the State, learned counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid.
I have heard learned counsel for the appellant, learned State counsel and have gone through the evidence on file.
Learned counsel for the appellant argued that according to prosecution story, occurrence was at 3.00 PM on 20.9.1998, whereas matter was reported to the police on 21.9.1998 at about 11.50 AM. Complainant party had civil and criminal litigation with the appellant. According to the doctor, prosecutrix was raped but complainant was not sure as to who had raped the prosecutrix. When complainant party failed to trace the real culprit, then due to previous enmity, appellant was named. On 20.9.1998, prosecutrix was shifted to Civil Hospital, Gurdaspur. From Civil Hospital, Crl.Appeal No.37-SB of 2000 6 Gurdaspur, wireless message was sent to the police station and on receipt of wireless message, police party headed by ASI Kamal Kishore had gone to Civil Hospital, Gurdaspur. On the intervening night of 20/21.9.1998, complainant and her son remained in the hospital. In case, prosecutrix was unfit to make statement, then statement of Shinder Kaur could easily be recorded on 20.9.1998. Investigating Officer in examination-in-chief stated that on 20.9.1998, intimation was received regarding admission of prosecutrix in the hospital but on that day, no one was present in the police station. So, police party had not gone to the hospital. On 21.9.1998, he had gone to Civil Hospital, Gurdaspur, and then recorded statement of complainant, but when Investigating Officer was confronted with application (Ex.PJ) dated 20.9.1998, then under pressure, he had to admit that on 20.9.1998, he had gone to Civil Hospital, Gurdaspur. Special report was received by the Ilaqa Magistrate at 7.00 PM on 21.9.1998. When occurrence was at 3.00 PM on 20.9.1998, then no explanation why delay in lodging the FIR. Delay was not explained and was fatal. Possibility of false implication due to previous enmity cannot be ruled out. Shinder Kaur while appearing as PW, then made number of improvements in her statement. Improvements showed that Shinder Kaur was not telling the truth. She has deposed being related to the prosecutrix. She was very much interested in the success of this case. Prosecutrix was 4 to 7 years' old and if appellant had raped the prosecutrix, then some injuries were expected to be noticed on the person of appellant, but no injury was noticed on his person when examined by Dr. Dinesh Kumar.
Learned State counsel argued that prosecutrix was 4 to 7 years' old and while playing in the street was taken away by the appellant. When Crl.Appeal No.37-SB of 2000 7 prosecutrix failed to return, then complainant had gone to the house of appellant. Complainant was in the deodi, then heard the shrieks of prosecutrix. After that, she had gone inside the house, then prosecutrix was seen while lying on the ground and was weeping. Blood was coming out of private parts of the prosecutrix. Appellant was seen while leaving the scene of crime while tying his underwear. In the house, there was no person except the appellant. Prosecutrix was medico legally examined. Doctor stated that prosecutrix was raped. Swabs from lower vagina and upper vagina were taken and sent to the office of Chemical Examiner. As per report (Ex.PD), semen was detected. Occurrence was on 20.9.1998, whereas appellant was arrested on 25.9.1998. Prosecutrix aged about 4 to 7 years was not in a position to resist. So, no question of injury on the person of the appellant. No document on the file that there was civil or criminal litigation amongst the parties. According to defence version, forefathers of appellant had litigation with the relatives of the complainant. If there was civil or criminal litigation amongst the parties, then documentary evidence could easily be produced. If appellant was to be implicated, then there was no idea to involve minor daughter on the allegation that she was raped. Appellant could easily be implicated by saying that he had stolen household articles or had misbehaved with the husband of the complainant.
First submission of learned defence counsel for the appellant was that there was a delay in lodging the FIR. Delay was not explained and was fatal to implicate the appellant due to previous enmity amongst the parties, but after going through the evidence on file, I am of the opinion that submission of learned defence counsel for the appellant is without any force. According to the evidence on file, prosecutrix, aged about 4 to 7 Crl.Appeal No.37-SB of 2000 8 years, was playing in the street in front of her house. Then she was taken away by the appellant to his house. When prosecutrix failed to return, then after some, complainant had gone to the house of appellant. While present in the deodi, complainant had heard the shrieks of prosecutrix. After that she had gone inside the house, then prosecutrix was seen while lying on the ground and was weeping. Blood was coming out of private parts of the prosecutrix. Appellant was seen while leaving the scene of crime while tying his underwear. After the occurrence at 3.00 PM, prosecutrix was shifted to Civil Hospital, Kalanaur for medical aid. From Civil Hospital, Kalanaur, prosecutrix was referred to Civil Hospital, Gurdaspur. Complainant party was in Civil Hospital, Gurdaspur, at 8.00 PM. Prosecutrix was medico legally examined by Dr. Rajinderpal Kaur. After admission of prosecutrix, intimation was sent to the police station. On receipt of wireless message, Investigating Officer from PS Kalanaur had gone to Civil Hospital, Gurdaspur. Application (Ex.PJ) dated 20.9.1998 was moved requesting the doctor to opine as to whether prosecutrix was fit to make statement or not. At that time, no other member was available. Then Investigating Officer came back to the police station. On the next day, again Investigating Officer had gone to Civil Hospital, Gurdaspur. Complainant had met the police party, then statement of complainant was recorded and after making endorsement at 11.50 AM, statement (Ex.PE) was sent to the police station, on the basis of which, formal FIR was recorded. Special report was sent to the Ilaqa Magistrate and the same was received by Ilaqa Magistrate at 7.00 PM on the same day. From Civil Hospital, Gurdaspur, firstly, message was sent to Police Station City, Gurdaspur, and from Police Station City, Gurdaspur, message was sent to Crl.Appeal No.37-SB of 2000 9 Police Station, Kalanaur. Then on receipt of message, from Police Station, Kalanaur, Investigating Officer had gone to Civil Hospital, Gurdaspur. No evidence on file as to what was the distance of Police Station, Kalanaur, from Civil Hospital, Gurdaspur, but distance of Police Station, Kalanaur, was 6 km. from the place of occurrence. No documentary proof on the file that earlier to the present occurrence, complainant party had litigation with accused party. When there was no litigation, then there was no reason to name the appellant. On the day of occurrence, appellant was alone in the house. His other family members had gone to attend Amavashya ceremony. Appellant when examined under Section 313 Cr.P.C., then stated that he was not present in village Sarje Chak on 20.9.1998. He has not stated a word that other members were present in the house or no one had gone to attend Amavashya ceremony. When complainant party had no enmity with anybody else, then there was no idea to name the appellant. All this shows that delay was fully explained. Suppose, there was delay, then delay is not sufficient for the acquittal of accused. Delay is one of the suspicious circumstances to scrutinize the evidence with great care and caution.
Next submission of learned defence counsel for the appellant was that according to medical evidence, prosecutrix was raped but real culprit was not known to the complainant. Due to previous enmity, appellant was named. But after going through the evidence on file, I am not in a position to agree with the submission of learned counsel for the appellant. Appellant when examined under Section 313 Cr.P.C., then stated that he was not present in Village Sarje Chak on 20.9.1998. His forefathers had litigation with the relatives of complainant. Due to previous enmity, he was falsely implicated in this case. In defence, DW3 Tehal Singh appeared Crl.Appeal No.37-SB of 2000 10 and stated that there was civil and criminal litigation amongst the parties. Father of the appellant was convicted in a case filed by Pritam Singh and Bachan Singh. Mohinder Singh, brother of appellant, was involved in an excise case at the instance of complainant party, but in support of this allegation, no documentary proof on the file. In case, appellant party had litigation with complainant party, then copies of plaint, FIR or any other document could easily be produced. Copy of judgment should have been produced to show that excise case was registered against Mohinder Singh at the instance of complainant party. Tehal Singh, Ex.Sarpanch, did not file complaint before any authority that case was false. Tehal Singh had not joined the investigation. In cross-examination, Tehal Singh admitted that he had contested election against Daljit Singh. Daljit Singh was supported by complainant party. That means, relations of DW3 Tehal Singh were not cordial with the complainant party. There seems to be party faction in the village. One party was led by Daljit Singh and the second by DW3 Tehal Singh. Complainant was the supporter of Daljit Singh. Due to this reason, Tehal Singh appeared as DW3 in support of appellant. Any witness like Tehal Singh could easily be produced in defence to state that there was litigation between the parties and due to litigation, false implication. If there was false implication, then complaints in writing should have been sent to higher authorities. There was no idea to remain silent. Statement of Tehal Singh was without any evidentiary value and was not helpful to the appellant to opine that appellant was implicated falsely due to previous enmity.
Next submission of learned counsel for the appellant was that there are number of improvements in the statement of complainant while Crl.Appeal No.37-SB of 2000 11 appearing in Court and no reasonable explanation as to why all these improvements. Improvements in Court show that complainant was not present at the spot and had not seen the appellant while leaving the place of occurrence. Submission of learned counsel for the appellant carries some weight. Complainant reported to the police on 21.9.1998 at about 11.50 AM that while playing in the street, prosecutrix was taken away by the appellant to his house. When prosecutrix did not return, then after some time, she had gone to the house of appellant. While present in the deodi, she had heard the shrieks of the prosecutrix. After that, complainant had gone inside the room, then prosecutrix was seen while lying on the ground. She was in naked condition. Blood was noticed while coming out of her private parts. Appellant was seen while leaving the scene of crime while tying his underwear, but in Court as PW3, complainant stated that after enquiry from the children, she came to know that prosecutrix was taken away by the appellant to his house. She had seen the appellant while lying on the prosecution while committing sexual intercourse. In cross- examination, complainant stated that she had not stated in Ex.PE that she had enquired from the children about the whereabouts of prosecutrix and children had informed that appellant had taken away the prosecutrix to his house. Further stated that in Ex.PE, she did not state that she was in the deodi of the house of Rajbir Singh, when heard the shrieks of prosecutrix. In Ex.PE, she had stated that prosecutrix was lying unconscious. Witness was confronted with her statement (Ex.PE), wherein it was not so recorded. Complainant stated that in her statement (Ex.PE), she had stated to the Investigating Officer that doctor at Civil Hospital, Kalanaur, had given injection to the prosecutrix. Witness was confronted with her statement Crl.Appeal No.37-SB of 2000 12 (Ex.PE), wherein it was not so recorded. Complainant in cross-examination stated that in her statement (Ex.PE), she had stated to the police that appellant was lying upon the prosecutrix. Witness was confronted with her statement (Ex.PE), wherein it was not so recorded. No doubt, there are some improvements in the statement of the complainant but in view of the improvements, statement of the complainant is not to be ignored because complainant had no enmity with the appellant. Without enmity, there was no idea to name the appellant. Secondly, complainant is the maternal grand mother of the prosecutrix. While appearing in Court, complainant became more sensitive and cautious and made some improvements in her statement. FIR is not an encyclopedia. Minutely all the facts are not to be disclosed to the Investigating Officer while reporting the matter for the first time. At the time of reporting the matter, sometime complainant becomes nervous when a serious crime was committed. In the present case also, 4-7 years' old girl was raped. Report of the doctor is to the effect that prosecutrix was raped. Swabs from lower vagina and upper vagina were taken and were sent to the office of Chemical Examiner. As per report (Ex.PD), semen was detected. Underwear of prosecutrix was produced before the Investigating Officer. Blood was noticed. Suggestion was given to the doctor that it was not a case of rape. In fact, prosecutrix might have received injuries with pointed weapon but reply of the doctor was that nothing to suggest that intercourse had not taken place. If as per defence version complainant was not inimical towards the appellant, then there was no idea to involve minor daughter. Doctor has not stated a word that possibility of injuries by striking against pointed weapon while playing cannot be ruled out. Doctor rather stated that it is wrong to suggest that it is not a case of rape and that prosecutrix might Crl.Appeal No.37-SB of 2000 13 have received injuries with pointed weapon by fall while playing with other children. No one came forward in defence to state that while playing with other children, prosecutrix had received injuries by striking against pointed weapon. If as per suggestion to the doctor prosecutrix received injuries while playing by striking against pointed weapon, then question arises how semen was detected. If complainant was to concoct a story, then she could state before the Investigating Officer when her statement (Ex.PE) was recorded that she had seen the appellant while lying on the prosecutrix and committing sexual intercourse. Instead of saying so before the Investigating Officer, complainant stated that when she was present in the deodi of the house of appellant, then heard shrieks of her daughter. She had gone inside the house and prosecutrix was seen while lying on the ground. Blood was noticed while coming out of her private parts. Appellant was seen while fleeing from the spot while tying his underwear. In Court, if complainant stated that prosecutrix was unconscious and appellant was seen while lying on the prosecutrix while performing sexual intercourse, even then in view of this line only, presence of complainant is not to be doubted, simply on the allegation that she is related to the prosecutrix. When house of the complainant was near the house of the appellant.
Learned counsel for the appellant argued that prosecutrix was 4 to 7 years' old and appellant was 50 years' old, but no injury on the person of appellant. When a girl of 4 to 7 years was raped, then some injuries on the private parts of the appellant were expected. In support of this contention, learned counsel referred to the statement of DW2 Dr. Dinesh Kumar. But after going through the evidence of Dr. Dinesh Kumar, I am of the opinion that in case doctor did not notice any injury on the private parts Crl.Appeal No.37-SB of 2000 14 of the appellant, then appellant is not to be given a clean chit. Dr. Dinesh Kumar while appearing as PW7, then stated that appellant was examined on 25.9.1998 at 12.30 PM. Appellant was found fit to perform sexual intercourse but the same doctor when examined in defence as DW2, then stated that clothes worn by the accused were not found torn. No button of his shirt was found missing. There was no dust, blood or semen on the clothes. He has not noticed bruises, scratches or teeth bites on the body of the accused. There was no external mark of injury on the face, thighs, hands and genitals. Lastly stated that he has not seen any scratches or laceration on the penis of the appellant. But statement of Dr. Dinesh Kumar as DW2 is not helpful because occurrence was on 20.9.1998. Appellant was medico legally examined on 25.9.1998. Dr. Dinesh Kumar was not the eye witness. Opinion of the expert is without any evidentiary value when there is a direct evidence. Prosecutrix was found in the house of the appellant. At that time, she was lying naked on the ground. Blood was noticed while coming out from her private parts. At the time of occurrence, no other member was present in the house of the appellant. Only appellant was seen while trying to flee away from the spot while tying his underwear. Immediately after the occurrence, prosecutrix was shifted to hospital. As per doctor, prosecutrix was raped and this fact is clear from the Chemical Examiner report (Ex.PD). Report was lodged on 21.9.1998, whereas appellant was arrested on 25.9.1998. Mere penetration is sufficient to hold guilty for the offence punishable under Section 376 IPC, discharge was not necessary. If appellant was not at fault, then why he remained absent from his house. After arrest, no complaint in writing to any authority that case was false. No case of the appellant that at the time of alleged occurrence, his family Crl.Appeal No.37-SB of 2000 15 members were present in the house and had not gone to attend Amavashya ceremony.
Regarding previous enmity, DW3 Tehal Singh was produced, but he deposed against the complainant because complainant had supported opposite candidate, namely, Daljit Singh, who had contested election against Tehal Singh. Prosecutrix was 4 to 7 years' old whereas appellant was 50 years' old. 4 to 7 years' old child cannot resist or cause injury on the person of the accused, aged about 50 years. So failure to notice any injury on the person of appellant when examined on 25.9.1998, prosecution story is not to be brushed aside.
No other submission was put forward.
In view of all discussed above, I am of the opinion that evidence on file was rightly scrutinized by the trial Court. No reason to differ with the trial Court. Impugned judgment is to be set aside if the same was perverse and evidence on file was misread.
Appeal without merit is dismissed.
Appellant is on bail. He is directed to surrender before the concerned authority to undergo imprisonment as ordered by the trial Court, failing which CJM, Gurdaspur, to issue re-arrest warrant of the appellant for undergoing the remaining imprisonment.
16.8.2010 ( JORA SINGH ) pk JUDGE