Punjab-Haryana High Court
R__________ vs State Of Haryana And Others on 31 July, 2012
Author: S.S. Saron
Bench: S.S. Saron
CRM-A-633-MA of 2011 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM-A-633-MA of 2011
Decided on : 31st July 2012
R__________
..... Applicant
Versus
State of Haryana and others
..... Respondents.
CORAM: HON'BLE MR. JUSTICE S.S. SARON
HON'BLE MR. JUSTICE S.P. BANGARH
*****
Present: Mr. N.S. Dhillon, Advocate for the applicant.
***** S.S. SARON, J The application has been filed by the victim-prosecutrix, seeking leave to appeal against the acquittal of Kanwaljit Singh (respondent No.2), Ram Kumar(respondent No.3) and Rishi Pal (respondent No.4) by the learned Additional Sessions Judge, Yamuna Nagar at Jagadhari in terms of his judgment and order dated 10.05.2011.
The trial Court records were requisitioned and have been perused with the help of the learned counsel.
It has been alleged by the applicant-prosecutrix that respondents No.2 to 4 had gang raped her. She submitted an application dated 03.08.2009 (Ex.PBB) to the Deputy Commissioner, Yamuna Nagar on 03.08.2009. The subject of the application is regarding rape being committed and an attempt to commit murder on the applicant, who is a CRM-A-633-MA of 2011 - 2- poor and helpless lady, at the point of a knife. According to the applicant, she is a resident of village Fatehgarh, Tehsil Jagadhari, District Yamuna Nagar and is poor and a respectable lady. Her husband mostly remained out. On 29.07.2009 she had returned from Ambala and was standing at bus stand Jagadhari. At that time, a resident of her village namely Rishi Pal son of Ishwar Singh (respondent No.4) came there. He enticed her and made her sit on his motorcycle by stating that she would not get any conveyance and he was going to the village. The applicant-prosecutrix could not understand his motive and she sat with him on his motorcycle for going home. When they reached between Bhojpur and Tejli, respondent No.4 (Rishi Pal) stopped his motorcycle by stating that some fault had occurred. Then respondent No.4 (Rishi Pal) made a phone call to someone. Thereafter, Ram Kumar son of Nathi Ram (respondent No.3) and Kanwaljit Singh son of Charan Dass, a depot holder (respondent No.2) came there. They finding the applicant-prosecutrix to be alone, showed her a knife and stated to quietly do their work or they would kill her. Thereafter, they raped her turn by turn and left her there in that condition. With great difficulty she reached her home. On 01.08.2009 when her husband returned, she disclosed about the incident to him. She stated that she was left with nothing and the assailants had looted her of everything. The accused in this manner committed rape upon her on the point of a knife and they wanted to kill her. Therefore, strict action, in accordance with law, be taken against them. The Deputy Commissioner, Yamuna Nagar on 03.08.2009 marked the application (Ex.PBB) to the Superintendent of Police, Yamuna Nagar for necessary action.
The application was , received by Birkha Ram SI (PW-14), who was present at D.D. Aggarwal School, Jagadhari alongwith police officials CRM-A-633-MA of 2011 - 3- on 03.08.2009. He made his endorsement Ex.PBB/1 and sent the application (Ex.PBB) to the Police Station for registration of a FIR. Accordingly, vide endorsement Ex.PH case FIR No. 376 dated 03.08.2009 was registered for the offences punishable under Sections 376 (g), 506 and 34 of the Indian Penal Code (for short - IPC) at Police Station City Jagadhari, vide DDR No. 25 dated 03.08.2009 at 10.30 p.m. The investigation of the case was conducted by SI Birkha Ram (PW-14), who on 03.08.2009 was posted as in charge Police Post Buria Gate, Jagadhri. He visited village Fatehgarh to know about the complainant, however, the complainant (applicant) did not meet him in the village. On 04.08.2009, SI Birkha Ram (PW-14) alongwith HC Jasbir Singh, LC Mennakshi and Photographer Harish reached Buria Chowk, Jagadhari. The applicant-prosecutrix (PW-13) and her husband Maan Singh (PW-10) met him. SI Birkha Ram (PW-14) accompanied them to the spot. After the arrival of the scene of crime team, he got the place of occurrence photographed and prepared a rough site plan Ex.PCC with correct marginal notes. He lifted two pieces of bangles (Ex.P14), which he converted into a sealed parcel and took them in possession vide memo Ex.PR. The applicant-prosecutrix handed over to SI Birkha Ram (PW-14) the clothes i.e. Salwar (Ex.P16), Kamij (Ex.P15) and Dupatta (Ex.P17), which she was wearing at the time of occurrence. She also produced one bangle (Ex.P13) which she was wearing at that time before SI Birkha Ram (PW-14). The same were also converted into sealed parcel and were taken in possession vide recovery memo Ex.PS. The spot was inspected and memos were attested by the witnesses. The applicant-prosecutrix was taken to Civil Hospital Jagadhri and got medically examined. An application Ex.PF was submitted to the Doctor for conducting the medical CRM-A-633-MA of 2011 - 4- examination of the applicant-prosecutrix. After medical examination the Doctor handed over to SI Birkha Ram (PW-14), vial containing swab, parcel containing condom, which he (PW-14) also took in possession vide recovery memo Ex.PC. He then recorded the statements of the witnesses. On return to the police station the parcels were deposited with the MHC of the police station. On 06.08.2009, SI Birkha Ram (PW-14) got recorded the statement of the applicant-prosecutrix before the learned Illaqa Magistrate by moving an application Ex.PZ in this regard. Thereafter on 07.08.2009, the accused were arrested , who were produced before SI Birkha Ram (PW-14) by Vinod Kumar. Kanwaljit Singh (respondent No.2) also produced the motorcycle used at the time of commission of offence which was taken in possession vide recovery memo Ex.PI. The accused Rishi Pal (respondent No.4) also produced his motorcycle before SI Birkha Ram (PW-14), which he used at the time of commission of offence. The same was taken in possession vide recovery memo Ex.PJ. Kanwaljit Singh (respondent No.2) suffered a disclosure statement Ex. PL, Ram Kumar (respondent No.3) suffered a disclosure statement Ex.PK and Rishi Pal (respondent No.4) suffered a disclosure statement Ex.PM. The accused were taken to the Civil Hospital, Jagadhari, where they were got medically examined by moving applications Ex. PW, Ex.PY and Ex.PV for the medical examination of Kanwaljit Singh (respondent No.2), Ram Kumar (respondent No.3) and Rishi Pal (respondent No.4) respectively. After medical examination the doctor handed over the MLRs to SI Birkha Ram (PW-14), which SI Birkha Ram (PW-14) took in possession. In pursuance of their disclosure statements the accused led the police party to the disclosed place and got the place of occurrence identified vide memos Ex.PN, Ex.PO and Ex.PP respectively. The statements of the witnesses CRM-A-633-MA of 2011 - 5- were recorded by SI Birkha Ram (PW-14). The accused were put in the police lock up and the case property was deposited with the MHC. On 27.08.2009 the scaled site plan Ex.PB was got prepared from the Patwari and the statement of Patwari was recorded, besides; statements of MHC Devi Dayal and EHC Jaswant Singh were recorded. The photographs were collected from Harish Chand and his statement was recorded.
After completion of investigation the police report was filed in the Court of learned Additional Chief Judicial Magistrate, Yamuna Nagar on 02.09.2009.
The learned Addl. Chief Judicial Magistrate, Yamuna Nagar in terms of order dated 30.09.2009 committed the case to the Court of learned Sessions Judge, Yamuna Nagar at Jagadhari as the offence under Sections 376 (g), 506 read with Section 34 IPC, which were prima facie found to be made out against the accused, were triable by the Court of Sessions and the offence under Section 376 (g) was exclusively triable by the said Court.
The learned Additional Sessions Judge, Yamuna Nagar at Jagadhari vide order dated 10.11.2009 charge sheeted respondents No.2 to 4 on the allegations that Rishi Pal (respondent No.4) on 29.07.2009 within the area of Police Station City Jagadhari, abducted the prosecutrix with an intent that she might be forced to illicit intercourse against her will and, thereby, committed an offence punishable under Section 366 IPC. Secondly, on the same date, time and place, the above named accused (respondents No.2 to 4) committed gang rape upon prosecutrix, without her consent and thereby committed an offence punishable under Section 376 (2)(g) IPC. Thirdly, on the same date, time and place, the above named accused (respondents No.2 to 4) committed criminal intimidation by CRM-A-633-MA of 2011 - 6- threatening to the complainant/prosecutrix with dire consequences of life and thereby committed an offence punishable under Section 506 IPC.
The prosecution in order to establish its case examined as many as fifteen witnesses; besides, tendered documents in evidence.
The statements of respondents No.2 to 4 were recorded in terms of Section 313 of the Code of Criminal Procedure (Cr.P.C-for short). The accused (respondent No.2 to 4) pleaded false implication and innocence.
It is stated by Kanwaljit Singh (respondent No.2) in his defence that after the conviction of Maan Singh, his wife (prosecutrix) used to take kerosene from his depot on credit. The parents and brother-in-law of the prosecutrix were not helping her and did not pay his (Kanwaljit Singh's) debts and when the limit for credit exceeded, he stopped supplying the kerosene to her after 5-6 months and due to this reason the prosecutrix and her children had to leave village Fatehgarh and they shifted to village Akal garh. Maan Singh was also inimical to Rishi Pal (respondent No.4) as he was undergoing sentence because of the statement of his father. Maan Singh got annoyed and became inimical due to stoppage of supply of kerosene in his absence by Kanwaljit Singh (respondent No.2). Maan Singh in order to settle his enmity with all three of them had got them implicated in this case falsely in connivance with his wife (prosecutrix). No such occurrence ever took place. The bangles, clothes and condom etc. were planted in order to strengthen the case. All three of them were not having friendly relations and even their families were not on visiting terms with each other.
Ram Kumar (respondent No.3) in his defence pleaded that he was innocent and had been falsely implicated in this case. After conviction of Maan Singh, his wife (prosecutrix) used to take grocery articles from his CRM-A-633-MA of 2011 - 7- shop on credit. The parents and brother-in-law of the prosecutrix were not helping her and did not pay his (Ram Kumar's) debts and when the limit for credit exceeded, he stopped supplying the grocery articles to her after 5-6 months and due to this reason the prosecutrix and her children had to leave village Fatehgarh and shifted to village Akal garh. Maan Singh was inimical to Rishi Pal (respondent No.4) as he was undergoing sentence because of the statement of his father. Maan Singh got annoyed and became inimical due to stoppage of supply of grocery articles in his absence by Ram Kumar (respondent No.3). Maan Singh in order to settle his enmity with all three of them had got them implicated in this case falsely in connivance with his wife (prosecutrix). No such occurrence ever took place. The bangles, clothes and condom etc. were planted in order to strengthen the case. All three of them were not having friendly relations and even their families were not on visiting terms with each other.
Rishi Pal (respondent No.4) in his defence stated that he was innocent and had been falsely implicated in this case. FIR No. 72 of 1992 was registered against Maan Singh in which his father Shri Ishwar Singh was a witness and on his statement Maan Singh was convicted in the said case. Due to that reason they were not on speaking terms with the family of Maan Singh, there was enmity between the two families and Maan Singh was nourishing a grudge against them. He had falsely implicated Rishi Pal (respondent No.4) in this case. Both Ram Kumar (respondent No.3) and Kanwaljit Singh (respondent No.2) had no relation with him. Both of them are strangers to him. No such occurrence ever took place. He never committed any such offence, as alleged.
In defence, Sunil Kumar was examined as DW-1, who stated that on 29.07.2009, Rishi Pal (respondent No.4) remained present in his 'bara' CRM-A-633-MA of 2011 - 8- (court yard) through out the day. He had seen him working in his 'bara' as it adjoins his 'bara'. He also knew the prosecutrix (wife of Maan Singh). Maan Singh was sentenced in a criminal case. In that case Ishwar Singh father of Rishi Pal (respondent No.4) had deposed against Maan Singh. The relations between the family of Maan Singh and family of Rishi Pal (respondent No.4) were not cordial. After Maan Singh was convicted and sentenced and confined in jail, the prosecutrix along with her children shifted to her parents house at village Akal Garh and remained there till the completion of sentence of Maan Singh. After the release of Maan Singh from jail, Maan Singh brought her back to village Fatehgarh.
Jagdish Lamba was examined as DW-2, who stated that he prepared lay out plan depicting the distance from Jagadhari bus stand to village Fatehgarh, Akal Garh and Yamuna Nagar bus stand. The notes of the site plan were in his hand and were correct according to the factual position. He prepared the above lay out plan after covering the distance himself. The lay out plan was Ex.D1.
The certified copies of judgments Ex.D2, Ex.D3 and Ex.D4 were tendered in evidence.
The learned Additional Sessions Judge, Yamuna Nagar after considering the evidence and material on record acquitted Kanwaljit Singh (respondent No.2), Ram Kumar (respondent No.3) and Rishi Pal (respondent No.4) vide judgment dated 10.05.2011 against which the prosecutrix has filed the present application for grant of leave to appeal.
It is submitted on behalf of the prosecutrix by the learned counsel appearing for her that the learned trial Court has acquitted respondents No.2 to 4 on wholly untenable and baseless grounds. It is submitted that the prosecution has clearly established its case against respondents No.2 CRM-A-633-MA of 2011 - 9- to 4. Reference has been made to the medical evidence of Dr. Poonam Chaudhary (PW-7) as also the spot inspection (Ex.PE) and FSL report (Ex.PQ). It is submitted that the deposition of prosecutrix clearly shows that respondents No.2 to 4 had committed rape upon her and there is no reason of any false implication. Therefore, leave to appeal against the acquittal of respondents No.2 to 4 is liable to be granted.
We have given our thoughtful consideration to the matter, however, we do not find any merit in the same. The incident in the present case had occurred on 29.07.2009, however, the application Ex.PBB was submitted to the Deputy Commissioner, Yamuna Nagar on 03.08.2009. The application is a typed application and Maan Singh (PW-10) husband of the prosecutrix admitted that it was dictated by an Advocate. The application is not addressed to some authority but that has been scored of by putting XXXX; besides perusal of the application Ex.PBB shows that husband of the prosecutrix returned on 01.08.2009. The date 01.08.2009 in the application (Ex.PBB) has been changed from 31.07.2009 by rubbing out 3 and retyping 1 and putting the figure '8' over the figure '7' relating to the month. Besides, it is not understable as to why the application was submitted to the Deputy Commissioner when such an application was to be submitted to the Station House Officer of the Police Station. Therefore, it may be noticed that there is a delay of 5 days in registering the FIR. In case the prosecutrix had told her husband about the incident on 01.08.2009, a further delay of two more days having occurred makes the prosecution case highly doubtful. It may also be noticed that it is not shown as to how the respondents No.2 to 4 are connnected with each other. In the statements under Section 313 Cr.P.C., they have clearly denied any relation amongst themselves and have stated that they are not CRM-A-633-MA of 2011 - 10- even on visiting terms with each other; besides, it has also come in evidence that Ishwar Singh father of Rishi Pal (respondent No.4) had deposed in an attempt to murder case against Maan Singh, husband of the prosecutrix. If it is so, it may be noticed that name of Rishi Pal (respondent No.4) in the application (Ex.PBB) is mentioned as son of Ishwar Singh. Therefore, it can be gathered that the prosecutrix was well aware of the fact that Rishi Pal (respondent No.4) is the son of Ishwar Singh and there was no occasion for the prosecutrix to sit on the motorcycle of Rishi Pal (respondent No.4) when she was fully aware that her husband was undergoing imprisonment on account of the deposition of Ishwar Singh father of Rishi Pal (respondent No.4).
Dr. Poonam Chaudhary, Medical Officer, Civil Hospital, Jagadhri (PW-7) had medico legally examined the prosecutrix on 04.08.2008 at 1.10 p.m., she has deposed that there was alleged history of sexual assault on the night of 29.07.2009. Her vitals were stable. On examination there was no injury mark on any part of the body. On local examination no injury mark was found present on the perineum. No injury mark around the introitus. She (prosecutrix) had been married about 10 years ago and had two children aged 9 and 8 years who were born by cesaerean. As per abdominal examination, vertical scar of previous LS CS present. As per speculum examination no discharge or bleeding per vaginal present. As per vaginal examination, hymen was not intact. Vagina easily admitted two fingers. There was a condom present in the vagina. She removed the same and sent it for forensic examination. She also took two vaginal swabs and sent them for forensic examination. In her opinion the possibility of penetration cannot be ruled out. She handed over to the police two vaginal swabs with two seals each, bottle containing condom with three seals, CRM-A-633-MA of 2011 - 11- envelop containing letter to the chemical examiner and copy of MLR and sample seal with five seals. In cross-examination, it is stated that she did not observe any injury on the wrist of the prosecutrix. The life cycle of sperm is 72 hours. It is stated by Dr. Poonam Chaudhary (PW-7) that it is highly unlikely to contain a condom in the vagina for six days. Normally the condom is not retained in the vagina. Since the clothes of the prosecutrix were not taken by her so, she did not hand over the clothes to the police. The prosecutrix had changed the clothes after the alleged incident.
In terms of Forensic Science Laboratory report Ex.PQ, which is highlighed by the learned counsel for the applicant, observation (ii) is to the effect that the vegetation/grass was found disturbed/trampled at the spot. Two greenish and red/dark brown color broken glass bangle pieces were observed in the grass at the spot. I.O. was adviced to take them into possession from the spot. It was stated by the I.O that the similar color glass bangles were worn by the victim.
It may be noticed that Dr. Poonam Chaudhary (PW-7) stated that it is highly unlikely to contain a condom in the vagina for six days. The basic aspect, it may be noticed is that Ishwar Singh father of Rishi Pal (respondent No.4) had deposed against Maan Singh (husband of the prosecutrix) and the latter had been convicted for the offences punishable under Sections 323, 324 and 326 read with Section 34 IPC and sentenced to rigorous imprisonment for five years; besides pay a fine of `500/- for the offence punishable under Section 326 IPC. He was also sentenced to undergo rigorous imprisonment for two years for the offence punishable under Section 324 read with Section 34 IPC. He was further sentenced to under rigorous imprisonment for one year for the offence punishable under Section 323 read with Section 34 IPC vide judgment and order dated CRM-A-633-MA of 2011 - 12- 19.08.1994 (Ex.D3) passed by the learned Additional Sessions Judge, Jagadhri. Therefore, there was a motive for the prosecutrix and her husband to falsely implicate respondent No.4 (Rishi Pal). The other two accused (respondents No. 2 and 3) have stated that they had stopped credit facilities to the prosecutrix after the limit for credit exceeded and the prosecutrix refused to make the payment. Therefore, their false implication also cannot be ruled out; besides it is not shown as to whether any phone call was made by Rishi Pal (respondent No.4) to respondents No.2 and 3 and how they came at the spot.
The learned trial Court after considering the evidence and material on record held that it had no hesitation in holding that the case in hand was a classic case of false implication, where innocent people had been falsely implicated and they had been languishing in jail right from August, 2009 till date of decision without any fault of their.
The learned trial Court also noticed the discrepencies in the statement of the prosecutrix; besides, it was observed that medical evidence did not prove that the prosecutrix has been raped. Regarding delay, it was noticed that delay in such cases would not make a difference, however, the prosecutrix alleges that she had been raped on 29.07.2009 but the FIR was got registered on 03.08.2009, after a period of 5-6 days. Maan Singh (husband of the prosecutrix) was released from jail on 30.07.2009. It was observed that Ishwar Singh, father of Rishi Pal (respondent No.4) had deposed against Maan Singh in the criminal case due to which Maan Singh had been convicted. The chances of the story having been cooked up during the period i.e. from 29.07.2009 when the prosecutrix went to meet Maan Singh in the jail and when first information report was lodged, it was observed, becomes very high.
CRM-A-633-MA of 2011 - 13- The respondents No.2 to 4 have also placed on record the judgment dated 23.08.2007 (Ex.D-2) passed by the learned Chief Judicial Magistrate, Jagadhri. In the said judgment, a complaint was lodged by Maan Singh (husband of the prosecutrix) against Rakesh @ Ritu and Rajiv Kumar sons of Arjun Dass and Shanti Rani wife of Arjun Dass for committing the offences punishable under Sections 323, 324 448 and 34 IPC. According to Maan Singh, complainant in the said case, he runs a motorcycle repair shop. A rent petition was filed by his landlord Shanti Rani in respect of the shop where he was running business. According to Maan Singh for the past one year, Shanti Rani and her sons Rakesh Kumar and Rajiv Kumar were harassing him for vacating the shop. At about 1.30 p.m. when Maan Singh (complainant in the said case) alongwith his brother Gian Singh, was present at his shop. Rakesh @ Ritu came to his shop and grabbed him. In the meantime Rajiv Kumar @ Nikku started grappling his brother Gian Singh. Later on their mother Shanti Rani also reached at the spot and she started throwing the articles lying in the shop, outside the shop. Thereafter, all three of them started beating the complainant as well as his brother. It was alleged that Rakesh Kumar @ Ritu, who was carrying a sharp edged weapon, attacked the complainant (Maan Singh). As per the complainant, at the time of occurrence, a customer Ramesh Kumar was also present in the shop and several persons gathered there, who rescued the complainant and his brother. During deposition in Court, Maan Singh who appeared as PW-2 in the said case, deposed that on 17.09.1999, when he alongwith his brother Gian Singh, was working in his shop, 3-4 persons came there and started throwing the articles outside the shop. They also gave a beating to him and his brother. He further deposed that the accused persons, present in CRM-A-633-MA of 2011 - 14- the Court, were not present at the spot nor they gave beatings to them. Similar version had been deposed by Gian Singh (PW-3) brother of the complainant. Another witness Ramesh (PW-4), who was on alleged eye witness of the occurrence, expressed ignorance about this case and deposed that no incident took place in his presence. They were declared hostile and cross-examined by the Public Prosecutor. Keeping in view the testimonies of PW-2 Maan Singh (complainant), PW-3 Gian Singh (brother of the complainant) and PW-4 Ramesh, the alleged eye witness of the occurrence, the accused were acquitted of the charges by the learned Chief Judicial Magistrate, Jagadhri.
In terms of the judgment Ex.D-3 passed by the learned Additional Sessions Judge, Jagadhri on 19.08.1994, Maan Singh was convicted for the offence under Section 326 IPC and was sentenced to undergo rigorous imprisonment for 5 years, and to pay a fine of `500/- in default of payment of fine to further undergo rigorous imprisonment six months. He was further sentenced to undergo rigorous imprisonment for 2 years for the commisison of an offence under Section 324 read with 34 IPC and also sentenced to undergo rigorous imprisonment for one year for the commission of an offence under Section 323 read with 34 IPC. Maan Singh was attributed grievous injury on the vital part of Satish Kumar with gandasi. Ishwar Singh appeared as PW-12 and as an eye witness in the said case. He had came to the spot on hearing the alarm and had deposed about the infliction of injuries by the accused on the pesons of Mehar Singh, Satish and Dilbhari with their respective weapons. Ishwar Singh, father of Rishi Pal (respondent No.4) indeed did appear as a prosecution witness against Maan Singh and he (Maan Singh) was convicted and sentenced vide judgment dated 19.08.1994 (Ex.D-3). As CRM-A-633-MA of 2011 - 15- such there was a motive for Maan Singh to falsely implicate Rishi Pal (respondent No.4). Besides, the other two accused namely Kanwaljit Singh (respondent No.2) anda Ram Kumar (respondent No.3) had discontinued to extend credit facilities to the prosecutrix. The medical evidence rules out the possibility of rape being committed and a condom remaining in the vagina of the prosecutrix for 5-6 days, which goes to show that an attempt had been made to falsely implicate respondents No.2 to 4.
We are, therefore, satisfied that the learned trial Court has recorded cogent and convincing reason for acquitting the respondents No.2 to 4 and merely because another view may be possible, would not be a ground for interference by this Court.
In the circumstances we find no merit in the application seeking leave to appeal against the acquittal of respondents No.2 to 4 and the same is, accordingly, dismissed.
(S.S. SARON) JUDGE (S.P. BANGARH) JUDGE JULY 31 , 2012 sham