Punjab-Haryana High Court
Basant Singh & Anr vs State Of Punjab on 25 September, 2013
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
Criminal Appeal No.S-1325-SB of 2001 {1}
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.S-1325-SB of 2001
Date of Decision: 25th September,2013
Basant Singh & Anr.
...Appellants
Versus
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Mr.Binderjit Singh, Advocate,
for the appellants.
Mr.Sandeep Chhabra, DAG, Punjab.
***
Naresh Kumar Sanghi, J.
Challenge in this appeal is to the judgment of conviction and the order of sentence dated 25.10.2001 passed by the learned Additional Sessions Judge, Bathinda, whereby appellant No.1, Basant Singh, was held guilty under Section 377, IPC, and appellant No.2, Laljit Singh, for the offence punishable under Section 377 read with Section 109, IPC, and ordered to undergo the following sentences:-
Basant Section Sentence Fine (in `) In default Singh (in R.I.) (In R.I.) (appellant 377, IPC Four years 1000/- One month No.1) Laljit 377 read Four years 1000/- One month Singh with Section (appellant 109, IPC No.2) The appellants were acquitted of the offences Kapoor Prashant 2013.10.11 10:52 I attest to the accuracy of this order Criminal Appeal No.S-1325-SB of 2001 {2} punishable under Sections 306 and 506, IPC.
The brief facts of the case are that on 25.08.2000, complainant, Malkiat Kaur (PW2), reported the matter to ASI Kuldip Singh (PW6) alleging that she was resident of village Chughe Kalan and had got three sons and one daughter. Her son, Jasbir Singh, aged about 15 years, was working with Jagsir Singh (PW8) whose house was situated on the outskirts of the village whereas her house was situated in the middle of the village. Jasbir Singh (since deceased) used to come back at his house at about 9.00 p.m after finishing his work. On 21.08.2000, as usual he came back to his house and thereafter Laljit Singh (appellant No.2) whose house was on the back side of the house of the complainant, came to her house and took away Jasbir Singh (since deceased) with him on the pretext that his wife had gone to her parental house and that Jasbir Singh (since deceased) should sleep with him. As such, Jasbir Singh accompanied Laljit Singh. Malkiat Kaur (PW2) along with her husband Gurmail Singh (PW3) slept on the roof of their house.
At about 1.00 a.m during the intervening night of 21st and 22nd August, 2000, Malkiat Kaur (PW2) and Gurmail Singh (PW3) heard the cries of their son Jasbir Singh (since deceased) from the house of Laljit Singh and they rushed to his house. Laljit Singh was found sitting on a cot near the door of the room. There was light of an electric bulb inside the room and Malkiat Kaur (PW2) and Gurmail Singh (PW3) saw from the gap in the Kapoor Prashant 2013.10.11 10:52 I attest to the accuracy of this order Criminal Appeal No.S-1325-SB of 2001 {3} door that Basant Singh (appellant No.1) was committing sodomy with their son, Jasbir Singh, on the bed lying in the room. They knocked at the door and raised alarm and thereafter, Basant Singh (appellant No.1) after putting on his clothes opened the door, pushed them aside and ran away from there. Malkiat Kaur (PW2) and Gurmail Singh (PW3) brought their son to their house who told his parents that he went with Laljit Singh (appellant No.2) and he provided bed for sleeping. At about 12.30 p.m.(midnight), he was made to get up by the appellants and they told him that they wanted to commit unnatural act with him and extended threat not to raise cry or disclose the said fact to anyone otherwise he would be dealt with badly. Thereafter, Laljit Singh (appellant No.2) sat outside the room and Basant Singh (appellant No.1) committed sodomy against his wishes and despite his resistance.
After the incident, Jasbir Singh felt humiliated. In the morning of 25.08.2000, Jasbir Singh had gone to the house of Jagsir Singh (PW8) for performing his duties. At about 11.50 a.m on the same day Jagsir Singh (PW8) approached Malkiat Kaur (PW2) and Gurmail Singh (PW3) and told them that Jasbir Singh had arrived at his house at about 9.30 a.m and he (Jasbir Singh) had told him (Jagsir Singh) that both the appellants had done injustice with him and he was very much perturbed. Jagsir Singh (PW8) told Jasbir Singh (since deceased) that they would inform the panchayat and action would be taken against the Kapoor Prashant 2013.10.11 10:52 I attest to the accuracy of this order Criminal Appeal No.S-1325-SB of 2001 {4} culprits and thereafter, Jasbir Singh went to fetch the fodder for the cattle by carrying "datri" (sickle) and "Parna" (a cloth for tying the fodder) with him. At about 11.00 a.m, when Jagsir Singh went to his fields for assisting Jasbir Singh (since deceased) then he saw at the tubewell situated outside his house that Jasbir Singh was hanging with Parna tied with shaft of the well and had died. After receiving such information, Malkiat Kaur (PW2) and Gurmail Singh (PW3) accompanied Jagsir Singh (PW8) went to the spot and found that dead body of Jasbir Singh was hanging in the well with Parna. ASI Kuldip Singh (PW6) recorded the statement (Ex.PE) of Malkiat Kaur, put his endorsement Ex.PE/1 and sent the memo to the police station on the basis of which formal FIR (Ex.PE/2) was recorded. ASI Kuldip Singh (PW6) prepared the inquest report (Ex.PK). Photographer Jaskaran Singh (PW4) clicked the photographs of the dead body. Dead body was sent to the Civil Hospital, Bathinda, for autopsy which was conducted by Dr.H.L.Garg (PW5) vide PMR (Ex.PF). After their arrest, the appellants were medico legally examined. After completion of the investigation, the charge-sheet (report under Section 173, Cr.P.C.) was presented in the Court. The documents as required under Section 207, Cr.P.C., were supplied to both the appellants free of costs and the case was committed to the Court of Session vide order dated 21.11.2000 since the offence punishable under Section 306, IPC, was exclusively triable by the latter court.
Kapoor Prashant 2013.10.11 10:52 I attest to the accuracy of this order Criminal Appeal No.S-1325-SB of 2001 {5} Basant Singh (appellant No.1) was charge-sheeted substantively for the offence punishable under Section 377, IPC, while Laljit Singh (appellant No.2) for the offence punishable under Section 377 read with Section 109, IPC. Both the appellants were further charged for the offences punishable under Sections 306 and 506, IPC. They pleaded not guilty and claimed trial.
In order to substantiate its allegation, the prosecution examined the following witnesses:-
PW-1 Dr.Kasturi Lal, Medical Officer, Civil Hospital, Bathinda. He had medico legally examined the appellants on 10.09.2000 and found that there was nothing to suggest that the appellants were unfit to perform intercourse. He proved the MLRs (Ex.PA) and (Ex.PB) and police requests (Ex.PC) and (Ex.PD). He further deposed that vide Ex.PD/2 and Ex.PD/3, he opined that there were no external marks of injury on the persons of appellants.
PW-2 Malkiat Kaur: She is the complainant and mother of Jasbir Singh (since deceased). She had reiterated her version as narrated to the police. In her lengthy cross-examination, nothing material in favour of the appellants could be elicited. PW-3 Gurmail Singh: He is father of Jasbir Singh (since deceased) and husband of the complainant, Kapoor Prashant 2013.10.11 10:52 I attest to the accuracy of this order Criminal Appeal No.S-1325-SB of 2001 {6} Malkiat Kaur (PW2). He too deposed in consonance with the statement suffered by Malkiat Kaur (PW2) and fully supported the prosecution version. PW-4 Jaskaran Singh, Photographer. He deposed that on 25.08.2000 at request of ASI Kuldip Singh, Incharge, Police Station, Balluana, he had clicked the photographs Ex.P1 to Ex.P4 and the negatives thereof were Ex.P5 to Ex.P8. In cross-examination, he stated that feet of the dead body were not touching the ground when he clicked the photographs. PW-5 Dr.H.L.Garg, Radiologist, Civil Hospital, Bathinda. He deposed that on 26.08.2000, he had conducted the postmortem on the dead body of Jasbir Singh @ Babi son of Gurmail Singh, aged about 15 years. He found a ligature mark between the larynx and chin which was directed obliquely upward following the line of lower jaw and interrupted on the left side reaching the mastoid process behind the ear. The base was pale and hard and margins were congested and redish brown. On dissection, ligature mark was found to be dry and white. There was laceration of the platysma and sternomastoid, carotid arters also lacerated with extravasation of blood. He also found two abrasion on the left side of the neck and in the middle and dorsem of left hand. He further Kapoor Prashant 2013.10.11 10:52 I attest to the accuracy of this order Criminal Appeal No.S-1325-SB of 2001 {7} deposed that sphincter ani was slightly relaxed. Lacerated anus internal to sphincter ani was seen on the right side with effusion of blood of 2 cms x 1.4 cm. Two swabs were taken for detection of semen.
In his opinion, the cause of death was asphyxia as a result of hanging which was sufficient to cause death in ordinary course of nature and the same was antemortem in nature. After autopsy, a stitched dead body, copy of the postmortem report, a packet containing the belongings of the deceased, sample seal, an envelope containing request letter, postmortem report, police papers 1 to 18 pages duly signed by him, sample seal forwarded to chemical examiner, Patiala, and a vial containing two swabs taken from the inner region were handed over to the police. Probable duration that elapsed between death and injury was instantaneous while between death and postmortem about 24 hours. He further deposed that the report of chemical examiner (Ex.P-1) was also handed over to the police.
PW-6 ASI Kuldeep Singh: He had partly investigated the matter and deposed in detail about the investigation conducted by him. PW-7 Constable Gurjinder Singh: He had tendered his affidavit, Ex.PL, in the evidence. Kapoor Prashant 2013.10.11 10:52 I attest to the accuracy of this order Criminal Appeal No.S-1325-SB of 2001 {8} PW-8 Jagsir Singh: He is employer of Jasbir Singh (since deceased). He too fully supported the prosecution case and deposed in detail that the deceased was working with him and as to how he committed the suicide. He also deposed that Jasbir Singh (since deceased) had told him about the unnatural act committed by the appellants with him (since deceased).
PW-9 Kewal Singh: He is the brother of the deceased and deposed that he had identified the dead body of his brother at the time of inquest report (Ex.PK).
PW-10 Inspector Des Raj: He had completed the remaining investigation and thereafter, filed the charge-sheet (report under Section 173, Cr.P.C.). Learned Additional Public Prosecutor tendered into evidence affidavits (Exs. PM & PN of ASI Baldev Singh and HC Jaskaran Singh) and closed the prosecution evidence.
Statements of the appellants in terms of Section 313, Cr.P.C., were recorded. Both of them denied the incriminating evidence appearing against them and pleaded false implication. In answer to the last question, appellant No. 1, Jaswant Singh @ Basant Singh submitted as under:-
"I am innocent. I have been falsely implicated in this case. I was working as driver with Kartar Singh Mann Kapoor Prashant 2013.10.11 10:52 I attest to the accuracy of this order Criminal Appeal No.S-1325-SB of 2001 {9} and after some time, I left Mr.Mann and started working with Sahib Singh. Jagsir Singh (PW) and my first employer Kartar Singh Mann are related to each other whereas there is civil litigation between Sahib Singh and Kartar Singh. Since I had joined Sahib Singh, as such at the instance of Kartar Singh Mann, I have been falsely implicated in this case."
Appellant No. 2, Laljit Singh, in answer to the last question submitted as under:-
"I am innocent. I have gone to my in-laws house on 21.08.2000 at day time where my wife had gone to deliver a child and when I returned on 22.08.2000 in noon time I was informed by the parents of Jasbir Singh about this occurrence and thereafter, I along with parents of Jasbir Singh tried to find out who had done this act with Jasbir Singh for 3-4 days. After the death of Jasbir Singh on 25.08.2000, I was falsely implicated in this case on the basis of suspicion."
No evidence in defence was led.
After hearing the learned counsel for the parties, the learned trial Court acquitted the appellants for the offences punishable under Sections 306 and 506, IPC, but held appellant No. 1 guilty for the offence punishable under Section 377, IPC, and appellant No. 2 for the offence punishable under Section 377 read with Section 109, IPC, and passed the sentences, as has been discussed in the initial part of this judgment.
Learned counsel for the appellants submitted that Kapoor Prashant 2013.10.11 10:52 I attest to the accuracy of this order Criminal Appeal No.S-1325-SB of 2001 {10} there was a huge delay in reporting the matter to the police since the occurrence of alleged sodomy had taken place on the intervening night of 21st - 22nd August, 2000, while the matter was reported to the police on 25.8.2000; the conduct of the material witnesses, namely, Malkiat Kaur (PW2), Gurmail Singh (PW3) and Jagsir Singh (PW8) was un-natural, therefore, their depositions could not be relied upon for holding the appellants guilty; the material witness Kaur Singh has not been examined; there are severe discrepancies in the depositions of the material witnesses; there was tendency in the family of the deceased to commit suicide since the uncle of the deceased had also committed suicide; no independent corroboration is coming forward to establish the sodomy allegedly committed by appellant No. 1; there is contradictory evidence with regard to availability of electric light in the room where the alleged sodomy was committed; it was highly un-natural that semen would be found in the anus after four days of the commission of the sodomy; in spite of the fact that the aggrieved person, Jasbir Singh, was got treated from a private doctor, but he was withheld from the witness box, therefore, it could not be established that sodomy was committed; suspicion howsoever may be grave, it cannot take the place of proof; and that the sentences awarded to the appellants was on higher side. In support of his contention on the question of sentence, learned counsel for the appellants has placed reliance on the judgment of Kapoor Prashant 2013.10.11 10:52 I attest to the accuracy of this order Criminal Appeal No.S-1325-SB of 2001 {11} Hon'ble the Supreme Court delivered in the case of Chitranjan Dass v. State of U.P., AIR 1974 SC 2352, wherein the substantive sentence of the accused who was found guilty for the offence punishable under Section 377, IPC, was reduced to rigorous imprisonment for approximately two months.
On the other hand, learned counsel for the State vehemently refuted the submissions made by the learned counsel for the appellants and submitted that from the deposition of Malkiat Kaur (PW2), Gurmail Singh (PW-3), Dr. H.L. Garg (PW-5), and Jagsir Singh (PW-8), it has well been proved beyond the shadow of reasonable doubt that appellant No. 1, Basant Singh, committed sodomy with Jasbir Singh while appellant No. 2, Laljit Singh, abetted the commission of the said offence as he was sitting outside the door of the room of his house where sodomy was being committed by appellant No. 1. He further submitted that the findings recorded by the learned trial Judge are well based and no interference is called for by this Court.
I have heard learned counsel for the parties and with their able assistance gone through the entire material available on record.
The first argument of the learned counsel for the appellants is that there was delay in reporting the matter to the police, therefore, no importance should be attached to the statement suffered by Malkiat Kaur (PW-2) with regard to the commission of the offence of sodomy by appellant No. 1 with her Kapoor Prashant 2013.10.11 10:52 I attest to the accuracy of this order Criminal Appeal No.S-1325-SB of 2001 {12} son. It has come in the deposition of Malkiat Kaur (PW-2) that due to shame they did not report the matter to the police. The said fact has also been mentioned in the report (Ex. PE) lodged with the police. The statement suffered by Malkiat Kaur (PW-2), mother of the aggrieved boy, appears to be natural. In our society, if such like incident occurs, then everyone tries that the same is not brought to the knowledge of others. Jasbir Singh, with whom such shameful act was committed, was very much perturbed on account of the sodomy committed with him and the said fact is apparent from the material available on record. After the incident, he did not go to attend his work at the place of his employer, Jagsir Singh (PW-8). His parents boosted his morale and than after four days he went to place of his work in the morning, but due to shame he committed suicide at the tubewell of his employer. Therefore, the matter was reported to the police by the mother of the aggrieved person immediately after knowing that her son had committed suicide. Keeping in view the peculiar facts of the case in hand, it cannot be concluded that there was delay, much less deliberate delay, in reporting the matter to the police and, as such, the appellants cannot draw any benefit from the said fact.
The next submission of the learned counsel for the appellants was with regard to un-natural conduct of the prosecution witnesses. It is suffice to say that the conduct of the parents of the deceased was very much natural and no Kapoor Prashant 2013.10.11 10:52 I attest to the accuracy of this order Criminal Appeal No.S-1325-SB of 2001 {13} abnormality in their conduct has been shown or expressed while making the submissions before this Court.
The next submission of the learned counsel for the appellants was that immediately after the occurrence, the matter was reported to Kaur Singh, the then Sarpanch of the village, but he has not been examined. It has also been argued that on the day of occurrence the matter was reported to the police, but the said fact has not been substantiated by the police officers or by producing on record any report. There is no gainsaying that Malkiat Kaur (PW-2) did admit in her cross-examination that the matter was brought to the notice of Kaur Singh, the then Sarpanch and he (Kaur Singh) along with the complainant side brought the matter to the notice of the police. Specific question was put to the police officials examined as prosecution witnesses, but they had denied such questions of the learned counsel for the defence. It is the consistent case of the prosecution that for the first time the matter was reported to the police on 25.8.2000 at 1:15 p.m. by Malkiat Kaur (PW-2) vide her statement (Ex. PE), on the basis of which formal FIR (Ex. PE/2) was recorded. Therefore, even if the said fact has emerged on record, that would not be sufficient to discard the case of the prosecution.
Learned counsel for the appellants had also raised the issue with regard to the discrepancies in the statements of Malkiat Kaur (PW2), Gurmail Singh (PW3) and Jagsir Singh (PW8), but the discrepancies pointed out were not going to the Kapoor Prashant 2013.10.11 10:52 I attest to the accuracy of this order Criminal Appeal No.S-1325-SB of 2001 {14} root of the case and the whole case of the prosecution cannot be thrown on the basis of such discrepancies. This Court is conscious of the fact while dealing with the issue that if discrepancies are severe in nature and demolish the whole case of the prosecution, in that eventuality, the benefit should be extended to the accused, but in the case in hand the discrepancies pointed out by the learned counsel for the appellants are of minor nature and such discrepancies are bound to occur when truthful witness steps into the witness box. Minor discrepancies in the deposition of the witnesses, in fact, show that they were not tutored when they appeared as witnesses. Therefore, there is no substance in this submission as well.
The next submission of the learned counsel for the appellants that there was tendency to commit suicide in the family of Jasbir Singh (since deceased), could not be of any consequence in favour of the appellants since they have already been acquitted for the offence punishable under Section 306, IPC. As such, the appellants cannot draw any benefit from this submission.
The next argument of the learned counsel for the appellants that no independent corroboration was coming forward to support the deposition of the parents of the deceased, would not be of any consequence in the present case. The incident of sodomy had taken place at about 1.00 a.m. in the adjacent house of the complainant and it was not expected that Kapoor Prashant 2013.10.11 10:52 I attest to the accuracy of this order Criminal Appeal No.S-1325-SB of 2001 {15} at mid night any independent person would be available at the place of occurrence. The most natural witness could be parents of the aggrieved person, who reached the spot in the adjacent house after hearing the cries of their child. It is also inconceivable that the accused would commit the offence of sodomy in the presence of an independent person. Therefore, there is no substance in this submission.
The other limb of argument of the learned counsel for the appellant was that there was no medical evidence to prove the offence of sodomy, alleged to have been committed with Jasbir Singh (since deceased) and if there is any, that is contrary with the ocular version. Concededly the incident of sodomy had taken place on the intervening night of 21st and 22nd August, 2000, approximately at 1.00 a.m. and during autopsy on 26.8.2000, Dr. H.L. Garg (PW-5), besides other things found as follows:-
"Sphincter anil slightly relaxed. Lacerated anus internal to sphincter ani seen on the right side with a effusion of blood in an area of 2 cms x 2.4 cms. Two swabs were taken for detection of semen."
The FSL report (Ex. P1) reveals that semen was found on the anal swab drawn from the anus of the aggrieved person. Therefore, the medical evidence do corroborate the allegation of the complainant side that sodomy was committed with Jasbir Singh (since deceased).
Kapoor Prashant 2013.10.11 10:52 I attest to the accuracy of this order Criminal Appeal No.S-1325-SB of 2001 {16} The next submission of the learned counsel for the appellants is that there was no electric light in the room where allegedly Jasbir Singh (since deceased) was subjected to sodomy, therefore, there was no occasion for Malkiat Kaur (PW-2) and Gurmail Singh (PW-3) to witness the commission of the sodomy and to identify appellant No. 1 performing such sodomy. The argument has no legs to stand. Malkiat Kaur (PW-2) and Gurmail Singh (PW-3) are specific in their depositions that the electric bulb was glowing and in the light they had seen that appellant No. 1 was committing sodomy with their son. The discrepancy pointed out by the learned counsel for the appellants from the deposition of Inspector Des Raj (PW-10) that he did not find any electricity connection at the house where the alleged incident occurred, was not sufficient to discard the reliable deposition of Malkiat Kaur (PW-2) and Gurmail Singh (PW-3).
The next submission of the learned counsel for the appellants that in spite of the fact that Jasbir Singh (since deceased) was treated by a private doctor before commission of suicide and the said doctor had not been produced as a witness by the prosecution, would not be sufficient to throw away the whole case of the prosecution. It has not been brought on record by the defence by producing any material showing that Jasbir Singh was got treated from the private doctor for the injury of his anus. Moreover, no question was put by the appellants to the said effect.
Kapoor Prashant 2013.10.11 10:52 I attest to the accuracy of this order Criminal Appeal No.S-1325-SB of 2001 {17} The next submission of the learned counsel for the appellants that suspicion howsoever grave, it cannot take the place of proof, is well based. There is no second opinion of this Court with the said submission, but in the case in hand the judgment is not at all based on suspicion. The whole case of the prosecution is based upon eye witnesses' account and the said witnesses are none else than the parents of the victim, who would be the last person to falsely implicate the innocent person and give a free hand to the person who committed sodomy with their son. Therefore, there is no substance in this submission of the learned counsel for the appellants.
There is substance in the submission made by the learned counsel for the appellants that the sentence awarded by the learned Trial Court is on higher side. The occurrence had taken place in the year 2000. During the pendency of the trial, the appellants remained behind the bars. After filing of the appeal before this Court, their sentence was suspended and by that time they had already suffered incarceration for one year, five months and four days. During the pendency of the appeal, they did not misuse the said concession. Learned counsel for the appellants submits that the appellants are neither involved nor required in any other case by the police. They have clean past record except the case in hand.
So far as appellant No. 1, Basant Singh, is concerned, he has substantively been held guilty for the offence punishable Kapoor Prashant 2013.10.11 10:52 I attest to the accuracy of this order Criminal Appeal No.S-1325-SB of 2001 {18} under Section 377, IPC, and awarded rigorous imprisonment for four years besides payment of fine of ` 1,000/- and in default thereof to undergo further rigorous imprisonment for one month.
So far as appellant No. 2, Laljit Singh, is concerned, it is conceded case of the prosecution that he had not, in fact, committed sodomy with Jasbir Singh (since deceased). He was charged for the offence punishable under Section 377 with the aid of Section 109, IPC. Therefore, the case of appellant No. 2 is on different pedestal than that of appellant No. 1, Basant Singh. Learned counsel for the State also very fairly conceded that appellant No. 2 deserves some concession in his substantive sentence.
Keeping in view the totality of the facts and circumstances of the case, the present appeal is partly allowed with the following modifications in the quantum of sentence:
a) The substantive sentence of appellant No. 1, Basant Singh, is reduced to rigorous imprisonment for 2½ years.
However, the amount of fine is enhanced to ` 20,000/- and in default thereof, he would suffer further rigorous imprisonment for 7½ months;
b) The substantive sentence of appellant No. 2, Laljit Singh, is reduced to the period already undergone by him, i.e. one year, five months and four days, as per the affidavit of Superintendent, Central Jail, Bathinda, placed on record by the learned counsel for the State. Appellant No. 2 is also Kapoor Prashant 2013.10.11 10:52 I attest to the accuracy of this order Criminal Appeal No.S-1325-SB of 2001 {19} burdened with fine of ` 10,000/- and in default thereof to undergo further rigorous imprisonment for 4 months;
c) The amount of fine imposed by the learned Trial Court shall merge in the fine imposed by this Court;
d) The fine, if recovered from the appellants, shall be converted into compensation and paid to the complainant, Malkiat Kaur (PW-2). As soon as the fine is deposited, the learned Trial Court shall issue a notice to the complainant, Malkiat Kaur (PW-2), to move an application for withdrawal of the amount of compensation.
(NARESH KUMAR SANGHI)
September 25, 2013 JUDGE
seema/Pkapoor
Kapoor Prashant
2013.10.11 10:52
I attest to the accuracy
of this order