Judgment:
CRA-S-146-SB of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA-S-146-SB of 2010 (O&M) Date of decision: 07.05.2014 Jarnail Singh ....Appellant Versus State of Punjab ....Respondent CORAM: HON'BLE Mr.JUSTICE M.
JEYAPAUL1 Whether Reporters of local papers may be allowed to see the judgment?.
Yes/No 2.
To be referred to the Reporters or not?.
Yes/No 3.
Whether the judgment should be reported in the digest?.
Yes/No ***** Present: Mr.H.S.Bath, Advocate for the appellant.
Mr.S.S.Chaudhary, DAG, Punjab.
***** M.
Jeyapaul,J,(Oral) Jarnail Singh who was 35 years of age at the time of occurrence, was convicted by the trial Court under Section 376 of the Indian Penal Code and sentenced to undergo 7 yeaRs.rigorous imprisonment and to pay a fine of `5,000/-, and in default thereof, to further undergo rigorous imprisonment for 2 yeaRs.Aggrieved by the above conviction and sentence passed by the trial Court, appellant has Smriti preferred the present appeal.
2014.05.24 14:41 I attest to the accuracy and integrity of this document CRA-S-146-SB of 2010 (O&M) -2- It is the case of the prosecution that the prosecutrix aged 13 years old, was all alone in her house on 08.03.2009.
When Karamjit Kaur, who was acquitted by the trial Court, came to the house of the prosecutrix at about 11:00 A.M on that day and took the prosecutrix to her house.
Accused Jarnail Singh, husband of Karamjit Kaur, took the prosecutrix forcibly inside his house and committed rape upon her.
Thereafter, Karamjit Kaur left the prosecutrix in her house.
The prosecutrix narrated the entire occurrence to her mother on 16.03.2009.
Baljeet Kaur- PW-2, mother of the prosecutrix, alongwith her husband Jarnail Singh, proceeded to Police Station and suffered a statement Ex.PA which was registered as FiRs.Information Report.
Accused was arrested on 17.03.2009 from his house.
Jarnail Singh was medico-legally examined by Dr.
R.P.Singh-PW-3.
The prosecutrix was also medico-legally examined by Dr.
Simarpreet Kaur-PW-4.
Though no spermatozoa was detected on the vaginal swab of the prosecutrix, PW-4 arrived at a conclusion that the prosecutrix was subjected to sexual intercouRs.as hymen was found not intact.
Investigating Officer having completed the investigation laid a final report.
Smriti 2014.05.24 14:41 I attest to the accuracy and integrity of this document CRA-S-146-SB of 2010 (O&M) -3- The trial Court having adverted to the evidence of the prosecutrix in the background of medical evidence on record, rejected the defence set up by the accused and recorded the conviction as stated above.
The prosecution has come out with a case that the prosecutrix was aged between 13 to 15 years at the time when the occurrence took place.
In other words, prosecutrix while being examined as PW-1 and her mother who was examined as PW-2, have stated that the prosecutrix was 13 years old at the time when the occurrence took place.
Dr.
Simarpreet Kaur-PW-4 who medico-legally examined the prosecutrix has assessed the age of the prosecutrix as 15.
But the trial Court having thoroughly analyzed Ex.
DA- birth certificate issued by the Municipal Authorities and Ex.DB- School record, arrived at the conclusion that the prosecutrix was 18 years of age at the time when the occurrence took place as she was born on 02.11.1990 as per the above record.
The prosecutrix has categorically deposed before the trial Court that when her parents were away from the house, then Karamjit Kaur took her in her house and the accused Jarnail Singh took her inside the room.
While Karamjit Kaur stood outside the room, Jarnail Singh having removed the clothes of the Smriti 2014.05.24 14:41 I attest to the accuracy and integrity of this document CRA-S-146-SB of 2010 (O&M) -4- prosecutrix and committed rape upon her.
She has stated the she had been weeping for about 8-9 days and, thereafter, she narrated the entire incident to her mother.
PW-2 mother of the prosecutrix, has also towed the version of PW-1 to the effect that the prosecutrix disclosed the entire episode which took place on 08.03.2009 after a lapse of 8-9 days and thereafter, she alongwith her husband proceeded to the police station and set the law in motion.
Learned counsel appearing for the appellant would vehemently submit that the prosecutrix has come forward with a totally artificial version.
He would also submit that the evidence of the prosecutrix that Karamjit Kaur stood at the gate of her house when rape was being committed by her husband, is highly improbable.
Learned State counsel would submit that there was no reason for the prosecutrix to implicate the accused in the crime of rape unless such an occurrence had taken place.
He would submit that the prosecutrix has come out with a graphic account of the rape being committed upon her.
It is to be noticed that the prosecutrix in her statement has not alleged that Jarnail Singh committed rape only with the connivance of his wife Karamjit Kaur.
Smriti 2014.05.24 14:41 I attest to the accuracy and integrity of this document CRA-S-146-SB of 2010 (O&M) -5- The prosecutrix has testified that Karamjit Kaur brought the prosecutrix to her husband and stood outside the room whereas accused Jarnail Singh took her inside the room and committed rape upon her.
I find that there is some clarification in the cross-examination portion of the evidence of the prosecutrix.
The prosecutrix has stated that Karamjit kaur asked her to help throwing sand on the roof and then asked her to make tea but unfortunately she was taken inside by the accused Jarnail Singh who thereafter committed rape upon her.
The prosecutrix has not whispered anything about the fact that Karamjit Kaur had connived with her husband in the commission of rape.
It may be a case where Jarnail Singh committed rape inside the room when his wife Karamjit Kaur was standing outside the gate without knowing the things going on inside the room.
Karamjit Kaur had dropped back the prosecutrix at her house as it was only Karamjit Kaur who had taken the prosecutrix for certain assistance.
In my view, the trial Court has rightly acquitted the accused Karamjit Kaur as she was not a party to the rape committed by her husband.
Learned counsel appearing for the appellant would submit that the accused Jarnail Singh was already a married man and his daughter was also Smriti 2014.05.24 14:41 I attest to the accuracy and integrity of this document CRA-S-146-SB of 2010 (O&M) -6- married.
At best, it could be termed as sex with consent, it is submitted.
It is true that the age of the prosecutrix has been fixed by the trial Court as 18 years on the basis of unassailable documents produced by the defence.
It is not the case of the prosecution that the prosecutrix was a consenting party to the sex.
Prosecutrix has categorically deposed that she was raped against her wishes by the accused.
A person who is afflicted with intense sexual urge would never mind the time and place where sexual act is committed, rather he would be insensitive to such surroundings and the timing.
Therefore, I do not find any merit in the version of the defence that no rape would have been committed at 11:00 A.M, that too in the house of the accused.
Learned counsel appearing for the appellant would submit that no sparmatazoa was detected on the clothes of the prosecutrix.
Bleeding was also not found in the vagina.
No mark of injury was also found in the external private parts of the prosecutrix.
Therefore, it is his submission that rape was not proved beyond reasonable doubt.
I find that Dr.
Simarpreet Kaur-PW-4 herself has deposed that non detection of spermatozoa was due Smriti 2014.05.24 14:41 I attest to the accuracy and integrity of this document CRA-S-146-SB of 2010 (O&M) -7- to delayed examination of the clothes of the prosecutrix.
The occurrence took place on 08.03.2009 and the prosecutrix was subjected to medical examination only on 17.03.2009, after the registration of the case.
It cannot be ignored that the clothes might have been washed during the period of eight days.
The person who was subjected to rape would not also keep on wearing the tainted clothes.
It is true that during physical examination, no mark of injury was found on the private parts of the prosecutrix.
There was no bleeding in the vagina of the prosecutrix but it is to be noticed that Dr.
Simarpreet Kaur-PW-4 has stated in her evidence that hymen was found not intact and that the prosecutrix had been subjected to sexual intercourse.
Therefore, I do not find any merit in the submission that rape was not medically proved.
Learned counsel appearing for the appellant would submit that the trial Court has not given much credence to the plea of enmity raised by the defence to falsely implicate the accused in the case of rape.
Pronotes were produced by the defence to show that there was some money transaction between the father of the prosecutrix and the accused.
It is an admitted case that when the parents of the prosecutrix constructed Smriti 2014.05.24 14:41 I attest to the accuracy and integrity of this document CRA-S-146-SB of 2010 (O&M) -8- their house, the family of the prosecutrix resided in the house of accused Jarnail Singh.
Suggestion to the effect that there was some dispute qua share of money to be contributed for construction of drain was denied by the prosecutrix and her mother.
The trial Court has rightly held that the defence has not proved enmity which contributed for false implication in the case of rape.
In view of the above, I find that the trial court has rightly come to the conclusion that the accused Jarnail Singh committed rape upon the prosecutrix.
I find no reason to interfere with the well considered judgment of the trial Court.
Confirming the judgment of conviction and sentence passed by the trial Court, the appeal stands dismissed.
07.05.2014 (M.
JEYAPAUL) smriti JUDGE Smriti 2014.05.24 14:41 I attest to the accuracy and integrity of this document