Judgment:
Criminal Appeal not S-3164 SB o”
1. IN THE HIGH COURT OF PUNJAB AND Punjab AT CHANDIGARH Criminal Appeal not S-3164 SB of 2009 Date of decision 26.11.2012. Davinder Kaur @ Deep @ Bholi ...... Appellant. versus State of Punjab ...... Respondent. Present :- Mr. Sachin Sharma, Advocate for the appellant. Mr. Sandeep Chhabra, Deputy AG, Punjab. Criminal Appeal not S.22 SB of 2010 Harjinder Singh ...... Appellant. versus State of Punjab ...... Respondent. Present :- Mr. Bipan Ghai, Senior Advocate with Mr. Jeevan Gupta, Advocate for the appellant. Mr. Sandeep Chhabra, Deputy AG, Punjab. Criminal Appeal not S.60 SB of 2010 Resham Lal ....... Appellant Versus State of Punjab ....... Respondent Present :- Mr. R.K.Mattoo, Advocate for the appellant. Mr. Sandeep Chhabra, Deputy AG, Punjab. Criminal Appeal not S-3164 SB o”
2. Criminal Appeal not S.2255 SB of 2010 Balbir Chand ....... Appellant Versus State of Punjab ....... Respondent Present :- Mr. Dinesh Nagar, Advocate for the appellant. Mr. Sandeep Chhabra, Deputy AG, Punjab. Criminal Appeal not S.338 SB of 2010 Sandeep Kumar ....... Appellant Versus State of Punjab ....... Respondent Present :- Mr. R.K.Shukla, Advocate for the appellant. Mr. Sandeep Chhabra, Deputy AG, Punjab. CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
1. Whether Reporters of Local Newspapers may be allowed to see the judgment?.
2. To be referred to the Reporters or not?.
3. Whether the judgment should be reported in the Digest?. K.C.PURI, J.By this common judgment, I intend to dispose of five criminal appeals i.e. Criminal Appeal not S-3164 SB of 2009 preferred by Davinder Kaur @ Deep @ Bholi versus State of Punjab, Criminal Appeal not S-22 SB of 2010 preferred by Harjinder Singh versus State of Punjab, Criminal Appeal not S-60 SB of 2010 preferred by Resham Lal versus State of Punjab, Criminal Appeal not S-2255 SB of 2010 preferred by Criminal Appeal not S-3164 SB o”
3. Balbir Chand versus State of Punjab and Criminal Appeal not S-338 SB of 2010 preferred by Sandeep Kumar versus State of Punjab as all these appeals have arisen out of the same judgment and incident. For convenience facts are being taken from Criminal Appeal No.3164 SB of 2009 titled as Davinder Kaur @ Deep @ Bholi versus State of Punjab.
2. All the aforesaid appellants have directed the present appeals against the judgment and order dated 10.11.2009 passed by Shri Dilbagh Singh Johal, learned Additional Sessions Judge, ( Fast Track Court), Patiala vide which accused/appellants have been convicted under Sections 363, 376, 342, 323 and 506 of the Indian Penal Code (in short – the IPC ) and sentenced as under :- Name of the Convicted under Sentence imposed In default of convict Section payment of fine Davinder Kaur @ 363 of the IPC RI for five years and Further fine of Rs.500/- imprisonment for a period of one month. Balbir Chand 376 of the IPC RI for seven years Further and fine of Rs.500/- imprisonment for a period of one month. 342 of the IPC RI for one year. 323 of the IPC RI for one year. Resham Lal @ 363 of the IPC RI for five years and Further Nikka fine of Rs.500/-. imprisonment for a period of one month. 376 of the IPC RI for seven years Further and fine of Rs.500/-. imprisonment for a period of one month. 342 of the IPC RI for one year. 323 of the IPC RI for one year. 506 of the IPC RI for one year. Criminal Appeal not S-3164 SB o”
4. Name of the Convicted under Sentence imposed In default of convict Section payment of fine Sandeep Kumar @ 376 of the IPC RI for seven years Further Chawla and fine of Rs.500/-. imprisonment for a period of one month. Harjinder Singh 376 of the IPC RI for seven years Further and fine of Rs.500/-. imprisonment for a period of one month. 342 of the IPC RI for one year. 506 of the IPC RI for one year.
3. However, all the sentences were ordered to run concurrently.
4. The brief facts of the prosecution case are that on 29.7.2004 complainant Lakhbir Singh moved an application at Police Station Kotwali Nabha stating therein that his two daughters (both prosecutrix – name not disclosed) were residing with him and his wife remained unwell and she had undergone surgery. Accused-Davinder Kaur @ Deep @ Bholi, who was his tenant, acquainted with both the prosecutrix. On 15.7.2004 complainant along with his wife went to take medicine from doctor and when they came back, they saw their both daughters and the tenant-accused-Davinder Kaur @ Deep @ Bholi, were missing. On inquiry, he came to knot that above said accused-Davinder Kaur @ Deep @ Bholi and her husband Amanpreet Singh @ Aman enticed away his daughters. While leaving, they also took away all their household articles. After searching for his daughters, complainant moved an application against the accused before police. Investigation commenced. One daughter of the complainant was recovered from Resham Lal of Jalandhar and her medico legal examination was got Criminal Appeal not S-3164 SB o”
5. conducted on 24.7.2004. The investigating officer also got recovered another daughter of the complainant from Phillour. During investigation, the investigating officer found that the both the prosecutrix were enticed away by accused-Davinder Kaur @ Deep @ Bholi. He prepared cancellation report on 24.9.2004 as rape was committed on both the prosecutrix in the area of District Jalandhar. Thereupon the then SSP, Patiala referred the matter to the SSP, Jalandhar. But the complainant approached this Court and this Court asked Smt.Shashi Prabha Divedi, IPC to take further action. She after conducting investigation submitted report in this Court. This Court asked the SSP, Patiala to take further necessary action in the matter. As per the inquiry report, Sandeep Kumar Chawla, Paramjit Singh, Harmesh Kumar @ Meshi and Gorkha Lal @ Gora were found guilty for offence under Section 376 IPC. Balbir Chand @ Ghona, Resham Lal @ Nikka Singh @ Jindi were found guilty of offence under Sections 376, 506, 323, 342 of the IPC. The accused were arrested and after completion of the investigation challan against the accused was presented in the Court.
5. Copies of documents were supplied to the accused. The learned Sub Divisional Judicial Magistrate, Nabha committed the case to the Court of Session vide order dated 22.5.2006 as offence punishable under Section 376 of the IPC was exclusively triable by the Court of Session.
6. Accused namely Davinder Kaur @ Deep @ Bholi was ordered to be summoned for having committed offence under Section 363 of the IPC vide order dated 4.10.2006. After recording statements of three Criminal Appeal not S-3164 SB o”
6. witnesses, an application under Section 319 of the Cr.P.C. was moved to summon Kala, Artia @ Manish Kumar as accused in this case and the same was allowed and the accused were summoned on 14.8.2007. Thereafter fresh charges were framed.
7. Charges under Sections 376, 506, 323 and 342 of the IPC were framed against the accused. The accused pleaded not guilty to the charges and claimed trial.
8. In order to prove its case, prosecution examined prosecutrix No.1 as PW-1, another prosecutrix No.2, as PW-2, complainant Lakhbir Singh PW-3, Jaswant Kaur PW-4, Dr.Pamela Chopra PW-5, Dr. Davinderjit Kaur PW-6, Inspector Bindu Bala PW-7, Dr.Jarnail Singh PW-8, ASI Narinderpal Singh as PW-9, SI Kuldip Singh PW-10, MHC Kirpal Singh PW-11, SI Gajjan Singh PW-12, Constable Faquir Singh PW-13, ASI Gulzar Singh PW-14. ASI Tek Singh PW-15 and HC Gurbachan Singh PW-16 and closed its case.
9. The accused were examined under Section 313 of the Cr.P.C., and they denied all the circumstances appearing against them and pleaded their false implications. In their defence, the accused examined Buta Singh, Manager of Sutlej Classic Hotel, Phillour as DW-1 and closed the same.
10. The trial Court, after hearing the learned counsel for the parties convicted and sentenced accused Davinder Kaur @ Deep @ Bholi, Harjinder Singh, Resham Lal, Balbir Chand and Sandeep Kumar were convicted and sentenced as aforesaid whereas acquitted accused Nirmal Kumar, Ghorkha Lal, Buta Singh and Munish Kumar @ Kala Arhtia vide judgment and order dated 10.11.2009 after giving them benefit of doubt. Criminal Appeal not S-3164 SB o”
7. 11. Feeling dissatisfied with the aforesaid judgment and order, the appellants have preferred their aforesaid separate appeals before this Court.
12. Learned counsel for the appellants have submitted that judgment of the conviction recorded by the trial Court against the appellants suffers from illegalities, infirmities and as such is liable to be set aside on the grounds mentioned hereinafter.
13. It is submitted that as many as eleven accused have faced the trial. Both the prosecutrix have changed their stand at different stages of the trial. Prosecutrix No.1 in her statement in the Court on 27.9.2006 has stated that four persons have committed rape upon her and out of which the accused persons, are Resham alias Nika and Buta and other two accused are not present whose names are Kalu Artia and she does not knot the name of fourth person. However, the prosecutrix No.1 in her statement on 1.5.2007 has stated that none of the four boys had committed rape upon her and in the later part of her statement, on the same day, she has given the name of Resham Lal appellant only. Similarly she gave names of different accused in her statement on 29.1.2008. Similarly, the prosecutrix No.2 has also named different accused on different stages. So, the testimonies of both the prosecutrix regarding rape cannot be accepted. From the eleven accused arrayed by the prosecution, only five have been convicted and others have been acquitted by giving them benefit of doubt by the trial Court. The case of the appellants is similar to that of acquitted accused. So, they are also entitled for acquittal.
14. Learned counsel for the appellants have further submitted that Criminal Appeal not S-3164 SB o”
8. ages of both the prosecutrix were more than 18 years of age at the time of occurrence. They have voluntarily accompanied some persons and as such the ingredient of offence under Section 376 of the IPC are not made out. The date of birth certificate of both the prosecutrix and their school records have not been produced. Ossification test also proved that both the prosecutrix were above 18 years of age.
15. Learned counsel for the appellants have further submitted that at an early stage of investigation, the concerned Station House Officer had declared all the accused innocent. It is only the zeal of an IPS officer, who has indicted the appellants. The Station House Officer, who has declared the appellants as innocent has been examined by the prosecution and the IPS officer, who found the accused guilty has not been examined. So, the prosecution story is not believable.
16. Learned counsel for the appellants have further submitted that no test identification parade was conducted and the prosecution has failed to prove that it was the accused, who had committed the offence.
17. Learned counsel for the appellants have further submitted that the medical evidence ruled out the possibility of rape, hymen was found absent and vagina admitted two fingers with ease. So, the prosecution story is doubtful.
18. It is further submitted that there is contradiction in respect of recovery of both the prosecutrix which militates the prosecution story doubtful.
19. Learned counsel for Davinder Kaur @ Deep @ Bholi accused- appellant has submitted that there is no allegation against the appellant- Criminal Appeal not S-3164 SB o”
9. Davinder Kaur @ Deep @ Bholi of kidnapping. So, she has been wrongly convicted under Section 363 of the IPC.
20. Learned counsel for the appellants have further submitted that in their statements recorded on 9.8.2004 under Section 164 of the Cr.P.C., both the prosecutrix's have stated that they do not want their medical examination not they want to state anything against the accused. So, it can be safely inferred that prosecutrix had been extracting money from the accused and those accused who had paid the money, were exonerated and the appellants who had not succumbed to the pressure of appellants to extract money have been falsely implicated.
21. Learned State counsel has supported the judgment and order passed by the learned trial Court.
22. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance.
23. The trial Court has already acquitted the accused whose names have not been mentioned by both the prosecutrix. Statement of prosecutrix No.1 recorded on 1.5.2007 has to be read as a whole. There are allegations of committing rape against Balbir Chand, Resham Lal, Harjinder Singh and Sandeep Kumar accused in the said statement. It is further stated by prosecutrix No.1 that Davinder Kaur @ Deep @ Bholi accused- appellant facilitated the kidnapping for which she gave the statement dated 1.5.2007 and the same has to be read as a whole and not in isolation. It is specifically mentioned that Balbir Chand, Resham Lal, Harjinder Singh and Sandeep Kumar accused have committed rape upon her on different occasions. In statement of prosecutrix No.1 recorded on 29.1.2008 name of Balbir Criminal Appeal not S-3164 SB o”
10. Chand, Resham Lal, Harjinder Singh and Sandeep Kumar accused and the person who committed rape is also mentioned. In the later part of her testimony, name of accused-Harjinder Singh has been mentioned as Jindi. So, that does not make any difference. Both the prosecutrix have categorically stated that they were subjected to sexual inter course against their consent. Both the prosecutrix were kept in illegal confinement for number of days and as such in the absence of any injuries on the day of examination of the prosecutrix, does not create doubt in the prosecution version. Hymen was found absent, which can clearly suggest that both the prosecutrix were subjected to rape on different dates.
24. So far as the submissions made by learned defence counsel to the effect that both the prosecutrix were above 18 years of age and that they have voluntarily accompanied some persons, is without any substance. None of the accused has stated in their statements recorded under Sections 313 Cr.P.C., that both the prosecutrix voluntarily accompanied them on different places. The argument that they accompanied with some other persons is not substantiated on the file. The testimony of Buta Singh, DW-1 is irrelevant as he has stated that no document of identity of any person is entered in the register maintained by them. The age of the prosecutrix have been rightly determined by the learned trial Court. Even otherwise the appellants have failed to prove the factum of voluntary sex by both the prosecutrix with them. So, the ossification test relied upon by the appellants is not helpful to their case. No doubt, the doctor conducted the ossification test has stated that there could be variation of age two years on either side Criminal Appeal not S-3164 SB o”
11. but that evidence has to be read in consonance with the oral evidence.
25. Mere fact that concerned Station House Officer of the Police Station concerned has declared some of the accused innocent, is not a ground to discard the prosecution witnesses. No reasoning has been given by any of the accused for falsely implicating them. The ground taken by the appellants that prosecutrix have identified only those persons who have not paid the money is merely an assertion and no evidence has been produced in this regard. The said plea is not probable from the evidence on the file.
26. So far as the arguments raised by learned counsel for the appellants that no test identification parade was conducted and on that account the prosecution story is doubtful is concerned, that submission is without any substance. In Indian Society more so, the people relating to rural areas, the prosecutrix and General Public normally do not come forward to report the incident of rape as the honour of the victim put at stake. So, mere fact that prosecutrix have refused medical examination at one stage is not a ground for discarding the prosecution story. Minot discrepancies are bound to occur due to the passage of time. No major discrepancy or contradiction has been pointed out during the course of arguments.
27. So far as the submission made by learned counsel for Davinder Kaur @ Deep @ Bholi accused- appellant to the effect that no case under Section 363 of the IPC is made out, is concerned that submission is without any substance. There are specific allegations made by both the prosecutrix that Davinder Kaur @ Deep @ Bholi accused- appellant took both of them Criminal Appeal not S-3164 SB o”
12. to a place where other accused/appellants were waiting in the car. So, she has facilitated the kidnapping of both the minot prosecutrix.
28. So far as the submission made by the counsel for the appellant to the effect that hymen was absent and vagina admitted two fingers and on that account it be presumed that both the prosecutrix are habitual to inter course is concerned, two injuries were found on the person of prosecutrix No.1 as per testimony of Dr. Davinderjit Kaur PW-6 and Dr. Jarnail Singh PW-7 have stated that age of prosecutrix No.1 as per radiological examination could be 16 years and 17 years of age whereas the age of prosecutrix No.2 could be 14½ years to 16 years. In case, the prosecutrix is minot and subjected to rape by number of persons for number of days, in that case hymen cannot be remained present and in those circumstances, it was a natural consequence that her vagina would admit two fingers. The accused have not proved any evidence that prior to the occurrence the hymen of the prosecutrix was absent.
29. There were number of persons committing sexual inter course with both the prosecutrix on different occasion as stated by both the prosecutrix and as such the absence of injury is not a ground to discard the testimony of the prosecutrix otherwise also, two injuries were found on the person of prosecutrix No.1.
30. So far as the submissions made by counsel for the appellants that SHO, who has declared the accused as innocent has been examined and that IPS officer who found the accused guilty has not been examined and on that account the prosecution story is doubtful is concerned that submission is without any substance. The said fact rather shows that the bias attitude of Criminal Appeal not S-3164 SB o”
13. the prosecution towards the prosecutrix. The prosecutrix has knocked the door of this Court for getting justice. The prosecution has not examined the IPS officer who has conducted the investigation and has rather examined the SHO, who declared the applicants as innocent. Otherwise also, unless it is proved that non-examination of the investigating officer is fatal for the prosecution in that case, non-examination of Smt. Shashi Prabha Divedi, IPS does not create doubt in the prosecution version.
31. So far as the contention that test identification parade has not been conducted, that does not make the prosecution story doubtful. There was no reason for both the prosecutrix to falsely implicate the accused. The father of both the prosecutrix has knocked the door of this Court for getting justice.
32. In this case, from the allegations, a case under Section 376(2) (g) of the IPC is made out against the accused/appellants but the accused/appellants have been convicted under Section 376 of the IPC only. However, it would not be in consonance of justice to remand the case for framing charge under Section 376(2)(g) of the IPC, the end of justice would be met in case the conviction of the appellants under Section 376(2) (g) of the IPC and sentence of accused-appellants Harjinder Singh, Resham Lal, Balbir Chand and Sandeep Kumar under Section 376 of the IPC is affirmed.
33. No other point regarding conviction has been argued. So, the conviction recorded by the trial Court stands affirmed. All the appeals preferred by the accused-appellants stand dismissed. Criminal Appeal not S-3164 SB o”
14. 34. A copy of this judgment be sent to the trial Court for strict compliance. November 26 , 2012 (K. C. PURI) sv JUDGE