State of Punjab Vs. Harchet Singh Alias Chet Singh - Court Judgment

Excerpt:
- a.s. nehra, j.1. this judgment will dispose of (1) murder reference no. 1 of 1993 (state of punjab v. harchet singh) and (2) criminal appeal no. 162-db of 1993 (harchet singh v. state of punjab).2. the sessions judge, bathinda, tried harchet singh alias chet singh, accused-appellant, and convicted and sentenced him as followed:-under section 376, sub- to undergo rigorous impri-section (2)(f), sonment for life and to pay a ipc fine of rs. 2000/- and, in default of payment of fine, to undergo further rigorous imprisonment for six mon ths.under section 302, ipc sentenced to death and to pay a fine of rs. 2000/- and, in default of payment of fine, to undergo further ri- gorous imprisonment for six months.3. the record of the case has been sent to this court for confirmation 'of the death sentence. convict harchet singh alias chet singh has also preferred an appeal against his conviction and sentence passed by the sessions judge, bathinda. both these matters shall be disposed of by this order as these arise out of the same judgment of the trial court.4. briefly stated, the case of the prosecution is as follows:-gurpal singh pw 3 is a lecturer in the government college, sunam. he along with his wife manjit kaur and infant daughter aged 1% years, went to the house of his sister who was married to kashmir singh in village chughe kalan, in connection with the marriage of manjit kaur his niece, which -was fixed for 20-3-199,1. they had gone to village chaghe kalan 2-3 days before the actual date of the marriage. harchet singh accused used to come to the house of kashmir singh in connection with various arrangements regarding the marriage occasion. the accused was friendly to kashmir singh, brother-in-law of gurpal singh pw 3, and, during those days, the accused used to take with him his female child, namely, malhar, for playing. the marriage ceremony was over on 20-3-1991 according to the schedule. on 21-3-1991 at about 3-00 p.m., the accused was having the female child in his lap as usual and he went j away with the child to make her play. on that day, the bride and the bride-groom had come j back to village chughe kalan in connection with their first visit after the marriage. gurpal ' singh pw, his wife manjit kaur and other members of the family became busy in connection with the visit of the bride and the bride-groom. at about 5-00 p.m., the bride and the bride-groom went away to village arniwala. thereafter gurpal singh pw became conscious of the child and, when he tried to find her, she was not available in the house. harchet singh accused was also absent. gurpal singh pw and his brother-in-law kashmir singh then started searching for the child and, in the process, they reached the house of gurbax singh pw 4 who told them that he had seen harchet singh accused going with the child on the passage known as diggiwali pahi towards the fields. gurbax singh pw joined gurpal singh and kashmir singh and they went along the said diggiwali pahi. when they reached near the field of hardev singh at 6.00 p.m., they noticed that the accused was committing rape with the unfortunate child malhar under a and tree. on seeing these persons, the accused left the child and ran away. gurpal singh pw and his companions went near the child and found that the child was bleeding profusely and she was already dead. leaving gurbax singh pw at the spot to guard the dead body, gurpal singh and kashmir singh proceeded towards the police station to make a report. on the way, the police met them and asi janak singh recorded the statement of gurpal singh. thereafter, further investigation started. the police arrived at the place of occurrence at about 7-00 p.m. inquent report was prepared and then the dead body was forwarded for post-mortem examination. the doctor reported that it was a case where the child had been subjected to rape and the death had resulted due to shock as a result to haemorrhage and pain. subsequently, during the investigation, the accused was also apprehended and his medico-legal examination was also got done.5. to prove its case, the prosecution examined pw 1 dr. khem raj bansal, pw 2 dr. (mrs.) ashoka goyal pw 3 gurpal singh complainant, pw 4 gurbax singh, pw 5 dr. charanjit garg and pw 6 investigating officer asi janak singh. affidavits of formal witnesses were also tendered in evidence.6. when the acccused was examined under section 313 of the code of criminal procedure after the prosecution evidence, he denied the circumstances appearing against him in evidence. he took up the plea that he was a devotee of a sant in a dera for the last 10 years and, as such, he did not think of having any sexual intercourse with any person and that he was innocent.7. pw 1 dr. khem raj bansal contacted post-mortem examination on the dead body of malhar, aged about 2 years, at 11-00 a.m. on 22-3-1991. pw 2 dr. (mrs.) ashoka goyal also joined dr. khem raj bansal. these witnesses reported that the length of the dead body was 2-9'; that it was well-built and well-nourished female body wearing 't' shirt, banyan and kachhi and two plastic bangles, one each on each forearm; that rigor mortis was present; and that kachhi was worn on the right thigh. pw 1 dr. khem raj bansal, in his statement, gave the following description of the injuries found on the dead body of malhar:-1. there was contusion injury 1.25 x 2.5 cms. an the left face bluish in colour. it was result of teeth bite. shape of the injury was as given in copy of the post-mortem report exhibit pa. the shape of the injury is shown at point 'a-1'.2. contusion on the right forehead, just lateral from the mid-line. it was bluish in colour.3. multiple abrasions varying from 0.5 cm. to 1 cm. in size on the left and right face. clotted blood was present.4. clotted blood was present on the groin, medial side of both thighs, 1 cm. linear tear was present on the vulva. hymen was injured and ruptured.vaginal canal was torn and blood clots were present in it. two fingers could be introduced into the vaginal cavity. small intestines were having sub-serous haemorrhage on the walls of the small gut at multiple sites. the two doctors gave opinion that the child died due to shock as a result of haemorrhage and pain due to the rape injuries which were ante-mortem in nature and were sufficient to cause death in the ordinary couse of nature. the probable time that elapased between injuries and death was stated to be within minutes and between death and post-mortem examination 24 hours. pw 1 dr. bansal further reported that, on seeing the report exhibit pb of the chemical examiner, there was spermatozia found on the kachhi; and that sub-serous haemorrhage on the intestines could result in the course of forcible sexual intercourse with the child. during the cross-examination, pw 1 dr. bansal stated that injury no. 1 could be caused by teeth-bite of an adult and not by teeth bite of 12 years old child. on this point, however, during cross-examination, pw 2 dr. (mrs.) ashoka goyal stated that these injuries could have been caused by teeth-bite of a child of 10-12 years of age. when further questioned, pw 1 dr. bansal stated that it was not possible for him to tell the age of the assailant who gave injury no. 1 but he asserted that it could not be the result of a dog bite; and that the colour of such injury remains bluish after 24 hours and it does not become black after 12 hours. regarding injury no. 3, pw 1 stated that it could not be caused by dragging or by fall. then pw 1 was questioned about the crucial injury no. 4 and, according to this witness, it could not be possible by fall of female child on the pointed substance even if the particular part of the female child struck that substance.8. pw 2 dr. (mrs.) ashok goyal was also cross-examined regarding injury no. 4 and she also asserted that the injury could not be possible if the female child set on a pointed peg which may be fixed on the ground even if the particular portion of the vagina of the child fell on the pointed end.9. dr. charanjit garg was the medical officer, civil hospital, bhatinda, on 31-3-1991 and the accused was examined by him on 2-45 p.m. on that day. he deposed that the accused had a well-developed male body and well-developed sexual organ and there was no mark of struggle like bruises/abrasions 'except the partially scabbed wounds measuring 1.25 cms. x 0.23 cm and 1 cm. x 0.25 cms. over the back of glans penis'. he gave the duration of these injuries to be within two weeks. the witness gave opinion that there was nothing to suggest that the accused was incapable of performing sexual intercourse. he specifically identified the accused in court as the person who was examined by him. when further questioned, hesitated that the injuries found on the glans penis could have been suffered in the course of an attempt to have sexaul intercourse with female child of about 2 years of age. in cross-examination, the witness stated that these injuries could not be suffered if the person suffered from a disease known as 'scab' nor these injuries could be suffered in the person happened to rub a particular portion against the cot.10. pw 3 gurpal singh, the unfortunate father of the unfortunate victim malhar, gave all the details of the prosecution version as narrated in the earlier part of this judgment. in cross-examination, pw 3 deposed that his brother-in-law kashmir singh was 40 years of age and his sister was married to him about 20 years back and their house was situated in the middle of the village whereas the house of the accused was located near the bus stop on the out-skirts of the village and the distance was about half a kilometre. he claimed that harchet singh accused was known to him since 1984-85 and the accused was friendly with his brother-in-law in the sense that he used to come to his house. he further stated that, after the birth of his daughter malhar, he had gone to the house of kashmir singh for the first time; that, when the accused took away malhar from the house, about ten members of the family were sitting in the court-yard of the house; that the accused was already playing with the child in the courtyard and then he went away with the child and they saw him going from the house and it was not possible to know at that time as to in which direction the accused had gone with the child; that thereafter all of them remained busy in connection with various odd jobs in connection with the marriage and they practically forgot about the child; that they become conscious of the child after the bride and the bride-groom had gone and they saw the other children playing; that it was thereafter that the search of the child began; that no member panchayat or sarpanch was informed about the search of the child and about half an hour was consumed in locating the child; that the distance of the place of occurrence was stated to be 3/4th of a kilometre from the house of kashmir singh; that there was a gurdwara at a small distance from the place of occurrence and the said place was at a distance of 15 karams from the passage. in answer to another question, pw 3 gurpal singh stated that there was a small-sized sand-hill near the kachha path in-between the place of occurrence and the passage but, in spite of it, it was possible to see a person sitting under the jand tree as soon as that small sand-hill was crossed. the witness stated that there was no person nearby and he further stated that the particular passage was used only by a few persons who had fields on that side and that the village abadi was at a distance of 500 karams fromthe said place. pw 3 admitted that on one side of the pahi (passage), there was the house of one mukhtiar singh, but he pleaded ignorance if on the other side there were some house of gurbax singh and jit singh. pw 3 further stated that the child was lying on the ground under the jand tree and the accused was seen lying over the child. when questioned about their running after the accused to catch him, the witness stated that he was not having any capacity left to run after the accused on seeing the condition of the child. he admitted that his other two companions also did not try to catch hold of the accused and stated that neither any lalkara was raised nor the accused was asked to stop and that the body of the child was be smeared with blood and it was lying with her face upwards. when questioned about the kachhi, he said that the kacchi was on one leg.11. pw 4 gurbax singh corroborated the account as given by pw 3 gurpal singh in all its material particulars. he asserted that he had seen harchet singh accused having female child with him going towards the fields and the time was about 5-30 p.m. he further stated that, after the accused went towards diggiwala pahi, gurpal singh and kashmir singh came to his house and enquired about the child and harchet singh; that he gave the information to them and also accompanied them; that, under the jand tree, the accused was doing 'bad act' with the child and, on seeing them, the accused left the child and ran away; that they went near the child and found that he child had died and the dead body of the child was smeared with blood; that he remained near the dead body; and the that the police arrived at about 9-00 p.m. after the police got information from gurpal singh and kashmir singh. in cross-examination, pw 4 stated that his house was situated at a distance of more than 200 karams from the house of kashmir singh; that the house of the accused was situated on the roadside in the direction of village balluana and that, if anyone was to go towards diggiwali pahi, from the house of the accused, one has to pass in front of his house. when further questioned, pw 4 stated that he saw the accused and the child with him from a very short distance of three yards; that he had seen the accused with his own eyes and not from the back; that he did not make any attempt to catch hold of the accused; and that the distance of the place of occurrence from his house is 200 yards. when pw 4 was questioned whether the place of occurrence was visible from the passage, he stated that the said place was certainly visible but added that there was a sand-mound near the passage. he further stated that he saw blood on the legs of the child but not on the ground and that he was not related to the complainant.12. asi janak singh pw 6 investigated the case, summed up the investigation and ; proved various documents which he had prepared during investigation. he deposed that he recorded the statement exhibit pe of gurpal singh pw 3; that he made enforcement exhibit pe/1 on that statement; that he sent the same to the police station, on the basis of which, fir exhibit pe/2 was recorded; that, after reaching the spot, he did not immediately prepare the inquest report as it had gone dark; that he formally inspected the spot and then remained at the spot during the night; that gurbax singh pw was already present when he went to the spot; that he prepared inquest report exhibit pd at 6.30 a.m. on 22-3-1991; that, after the post-mortem examination, two parcels containing belongings of the female child malhar, including one parcel containing kachhi, were received by him through head constable gurdas singh; that he sent the sealed parcel containing the kachhi to the chemical examiner for test and constable balbir singh was sent for this purpose; that he continued searching for the accused but he was not traceable up to 31-3-1991; that it was on that day the accused met the police party at the canal minor when the police party was going to village chughe kalan; that the accused was immediately sent to the hospital for medico-legal examination; and that on the same day, dr. charanjit garg (pw 5) examined the accused. in cross-examination, pw 6 stated that the complainant and his companions had come on a scooter at 7-00 p.m.; that the distance between the bus stand, balluana, and village chughe kalan was 5-6 kms; that he completed the statement of the complainant, including his own endorsement, by 8-15 p.m.; that immediately thereafter he started for the place of occurrence where he reached at 8-40 p.m.; that there was pucca road up to village chughe kalan; that 5-7 persons were standing at some distance from the spot; that sukhdev singh sarpanch, ram kishan, gurbax singh and one or two more persons were present there that the dead body of the female child was having her face upwards; that there was blood on the thighs of the child and it was coagulated on the female parts; and that there was no residential house near the place of occurrence and the houses were at a sufficient distance.13. dw 1 baij nath, superintendent, government college, sunam, was produced by the accused in order to show that pw gurpal singh, in fact, had not taken leave for 21-3-1991. this attempt of the accused, however, is not successful inasmuch as this witness deposed that initially gurpal singh pw had applied for two days' leave, i.e., for 19th and 20th march, 1991, in addition to station leave for 18th march, 1991; that gurpal singh pw did not attend the college on 21st and 22nd march, 1991; and that, for these days, he applied for leave on 25-3-1991. this witness brought the original applications with him and copies of the same were proved on the record as exhibits da and db. he also brought with the absentee slip 'which was prepared by teachers to know the students who were absent on a particular day. when he was questioned about the absentee slip dated 22-3-1991 (exhibit dc), he stated that it was signed by gurcharan singh sandhu who was another teacher. in answer to another question, he stated that on 20th and 21st march 1991, the college was open and the students/ teachers attended the college but no classes were held as there was some order of the sub divisional magistrate to the effect that the students and the staff were to attend some rally in connection with peace-march organised in honour of shaheed udham singh at sunma. dw 1 further stated that the teachers/officials, who were present on those two days, had signed the list which he brought but the list did not contain the signatures of gurpal singh pw. in cross-examination, dw 1 stated that it was sunday on 24-3-1991 and that it was open to an official or a teacher, who went on leave after getting leave for some period and overstayed, to apply for further leave after he came back.14. the occurrence took place at 5-45 or 6-00 p.m. and it was reported to the investigating officer at 7.00 p.m. the statement of gurpal singh pw was completed by the investigating officer by 8.15 p.m. special report reached the ilaqa magistrate at 10-45 p.m. on 21-3-1990. therefore, there is no delay in reporting the matter to the police and the fact that the special report reached the ilaga magistrate at 10-45 p.m. leaves no manner of doubt that the whole account of the prosecution case was reported to the police within one hour of the occurrence. the fact that the occurrence was brought to the notice of the police within one hour of the occurrence shows that the prosecution witnesses had no time to concoct a version for implicating harchet singh accused-appellant for some ulterior purpose.15. the contention of the learned counsel for the appellant is that gurpal singh, kashmir singh and gurbax singh did not try to run after the accused-appellant to catch hold of him that they neither raised any raula nor asked the appellant to stop; and that this conduct of the witnesses is unnatural. we have given our careful consideration to this submission of the learned counsel for the appellant. there is a very cogent explanation given by pw 3 gurpal singh when he stated that no strength was left in him on seeing the child and, as such, he did not run after the appellant. pw 4 gurbax singh is-a man of 70 years of age and it cannot be reasonably expected of him that he would run after the appellant aged 29 years of age, to catch hold of him. all was over. the child was dead. pw 3 gurpal singh and his companions would be naturally shocked to see the child. they would naturally run to the place where the child was and, in the meantime, the appellant would have easily escaped. we do not draw any adverse inference against the prosecution case from the fact that the witnesses did not give any lalkara or that they did not run after the appellant to catch hold of him.16. another submission of the learned counsel for the appellant is that it is in evidence that, near the place of occurrence the house of one mukhtiar singh was located; that a gurdwara was also at a small distance; that the pake where the occurrence is alleged to have taken place was visible from the passage and that, in such a situation, it looks unnatural that the appellant would commit offence in the open. there is no merit in this submission of the learned counsel for the appellant. diggiwali pahi is not a passage where people go quite frequently. only some persons sometimes moved on that passage in order to go to the fields. it is in evidence that there was no person nearby in the fields. there is nothing to suggest that any person was present in mukhtiar singh's house which was located on one side of the pahi. the exact distance of the said place has not come on the record. from the nature of evidence which has been led, it appears that the place of occurrence was sufficiently secluded, where the appellant could easily commit the crime as the victim was a small child who could not even raise any hue and cry to attract others.17. the learned counsel for the appellant has further contended that witnesses did not disclose as to what type of clothes were being worn by the appellant; that whether he had removed his clothes; and that how he was committing the offence. the witnesses were not questioned in this respect. in answer to a question put during the cross-examination, gurpal singh pw 3 stated that they saw the child lying on the ground under the jand tree and that the appellant was lying over the child. no further question was put to gurpal singh pw. as such, the learned counsel for the appellant cannot now argue that the details in this respect have not come on the record. pw 4 gurbax singh belongs to the village of the appellant. there, is nothing to i suggest that he had any special interest in gurpal singh pw or his brother-in-law kashmir singh; nor there is anything on the record to show that he had any ill-will against; the appellant who belongs to the same village: chughe kalan. gurbax singh pw is an old man of 70 years of age. there does not appear any good reason why he should give false, evidence against the appellant. we, therefore, i hold that he is a reliable witness, being a j disinterested elderly man of the village. ;18. the statements of dr. khem raj bansal and dr. (mrs.) ashoka goyal go a long way to prove that the child was subjected to rape. the injuries which were found on the person of the child have been mentioned in detail and it was noticed that the small intestines were having sub-serous haemorrhage on the walls of the small gut at multiple sites and such injuries were possible when a forcible sexual intercourse is done with the child. vaginal canal was found torn and it admitted two fingers. from the nature of the injuries, we have to conclude with horror that the child was treated most mercilessly by the appellant and the injuries corroborate the case of the prosecution in unmistakable terms. there is another piece of evidence, i.e., kachhi, which was found on the person of the child and which was sent for the purpose of chemical examination. the chemical examiner reported that supermatozoa was detected on the kachhi. that proves that the child was subjected to sexual intercourse.19. the statement of pw-5 charanjit garg is significant. he found two partially healed scab wounds on the glans penis of the appellant on 31-3-1991. pw 5 further stated that such injuries could be suffered in the course of an attempt to have sexual intercourse with a child of 2 years of age. this witness then ruled out the possibility of these injuries having been suffered by the appellant as a result of rubbing against the cot. the appellant really did not have any explanation for these injuries on his glans penis. this evidence further substantiates the allegations of the prosecution against the appellant. the nature of the injuries on the glans penis in the present case and the duration thereof coincide with the time when the occurrence took place and, according to the doctor, these injuries could be suffered in the course of rape with the child. the appellant has got no explanation in that respect. we hold that it is a very strong circumstance against the appellant in the present case when it is appreciated in the light of other evidence. 20. dw-1 baij nath was produced by the . appellant in order to show that pw gurpal singh, in fact, had not taken leave for 21-3- ; 1991. this attempt of the appellant, however, is not successful inasmuch as this witness deposed that initially gurpal singh pw had applied for two days' leave, i.e., for 19th and 20th march, 1991, in addition to station leave j for 18-3-1991. gurpal singh pw, however, did not attend the college on 21st and 22nd march, 1991 and, for these days, he applied for leave on 25-3-1991. dw-1 brought with him the original applications and the same were proved on the record as exhibits da and db. he also brought with him the ; absentee slip which was prepared by the teachers to note the students who were absent on a particular day. when he was questioned about the absentee slip (exhibit dc) dated 22-3-1991, he stated that it was signed by .. gurcharan singh sandhu who was another teacher. in answer to another question, dw-1 stated that on 20th march, 1991, the college was open and the students/teachers attended . the college but no classes were held as there . was an order of the sub divisional magistrate to the effect that the students and the staff were to attend some rally in connection with peace march organized in honour of shaheed udham singh at sunam. dw-1 baij nath further stated that the teachers/officials, who were present on these two days, had signed the list which he brought but the list did not contain the signature of gurpal singh pw. in cross-examination, dw-1 baij nath stated that it was sunday on 24-3-1991 and it was open to an official or a teacher, who went on leave after getting leave for some period and overstayed, to apply for further leave after he came back.21. the accused-appellant in the course of his statement under section 313 of-the code of criminal procedure, simply denied the circumstances appearing against him in the evidence. he, in fact, had no defence and also had no explanation to the effect that he is a devotee of a sant in a dera for the last 10 years and that, as such, he did not think of having any sexual intercourse with any person. such an explanation on the face of it cannot be accepted. the accused-appellant is a man of 29 years of age and the doctor has reported that there is nothing to suggest that he is incapable of having sexual intercourse. therefore, we reject the explanation of the accused, being without merit.22. keeping in view the entire evidence which has been led in the case, we come to the conclusion that the case of the prosecution has been proved beyond any doubt and the accused is guilty of having committed offences under sub-section (2)(f) of section 376 and section 302, indian penal code.23. the learned counsel for the appellant has further contended that this is not a case which may fall in the category of the rarest of rare cases so as to attract the extreme penalty of death, notwithstanding the gruesome nature of the offences involved; that the deceased in this case died due to rape only and she was not strangulated by the accused appellant; and that, therefore, the sentence of life imprisonment would suffice to meet the ends of justice. in support of his argument, he has relied upon a division bench judgment of the delhi high court in state v. atru rehman alias gorin, (1987) 2 all cri lr 844, and a division bench judgment of this court in chanderpal v. state of punjab, (1983) 2 rec cri r 538.24. it has been further contended by the learned counsel for the accused-appellant that the judgment of the supreme court in jumman khan v. state of u.p., 1991 cri app r (sc) 62 : (1991 cri lj 439) relied upon by the trial court, is not applicable to the facts of the present, case.25. after hearing the learned counsel for the parties on the question of sentence, we feel that this case does not appear to fall in the category of the rarest of rare cases so as to attract the extreme penalty of death, notwithstanding the gruesome nature of the offences involved. this court in chanderpal's case (1983 (2) rec cri r 538) (supra) declined to confirm the death sentence in a similar case where pammi deceased had died due to suffocation and shock as a result of rape committed on the deceased, which was sufficient to cause death in the ordinary course of nature. the division bench of the delhi high court in state v. atru rehman alias gorin (1987 (2) all cri lr 844) (supra) also did not confirm the death sentence, though the accused committed rape on a child was 6 years of age and he committed her murder after committing the rape. jumman khan's case (1991 cri lj 439) (sc) (supra) relied upon by the trial judge is not applicable to the facts of the present case because, in that case, jumman khan committed a pre-meditated rape on a helpless child and he had gone to the extent of strangulating her to death. in 'the present case, the deceased died due to shock as a result of haemorrhage and pain due to rape on her, which was ante-mortem in nature and sufficient to cause dealt in the ordinary course of nature. the crime' was committed for satisfying sexual lust. there was no previous enmity between the parties. it appears that the sexual lust had overwhelmed the appellant to the extent of turning him into a human beast.26. in view of the aforesaid discussion, while maintaining the order of conviction under section 302, indian penal code, passed by the trial court, the sentence of death is altered to one of imprisonment for life and the sentence of fine, awarded by the trial court, is maintained. the reference for confirmation of death sentence is, therefore, declined and the appeal of the appellant is accepted only in part in respect of the death sentence which stands commuted to one for imprisonment for life. the conviction and sentence of the appellant under section 376, sub-section (2)(f). indian penal code, are maintained. both the substantive sentences of imprisonment shall run concurrently.