Kirpal Singh vs State Of Punjab on 23 October, 2017

Criminal Appeal No. S-587-SB of 2013 (OM) 1

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

Criminal Appeal No. S-587-SB of 2013 (OM)
Date of decision : October 23, 2017

Kirpal Singh @ Pal …..Appellant

Versus

State of Punjab and another ….Respondents

CORAM:- HON’BLE MRS. JUSTICE LISA GILL

Present: Mr. H.S. Minhas, Advocate
for the applicant-appellant.

Mr. Davinder Bir Singh, DAG, Punjab.

****

LISA GILL, J.

The present appeal has been preferred by the appellant

Kirpal Singh @ Pal, challenging the judgment and order dated

14.02.2013 passed by the learned Additional Sessions Judge, Fatehgarh

Sahib, whereby he has been convicted for the offences punishable

under Sections 342, 376 and 506 IPC. The appellant has been

sentenced to undergo rigorous imprisonment for ten years besides pay a

fine of `10,000/- for the offence punishable under Section 376 IPC and

in default thereof undergo rigorous imprisonment for one year, to

undergo rigorous imprisonment for one year besides pay a fine of

`1,000/- for the offence punishable under Section 342 IPC and in

default thereof undergo rigorous imprisonment for one month and to

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further undergo rigorous imprisonment for one year besides pay a fine

of `2,000/- for the offence punishable under Section 506 IPC and in

default thereof undergo rigorous imprisonment for two months.

It is to be noted that three persons were named as accused,

in this case, i.e. the present applicant-appellant Kirpal Singh @ Pal, his

father Satnam Singh and one Bhupinder Singh @ Bhinder. The

applicant’s father Satnam Singh son of Banta Singh filed a petition

under Section 482 Cr.P.C. for quashing of the said complaint against

him. This Court on 21.05.2013, quashed the complaint qua Satnam

Singh. It is informed that the said decision has attained finality.

Brief facts are that initially, on a statement (Ex. PB)

suffered by the complainant/victim on 11.07.2009, FIR No. 73 dated

20.07.2009 for the offences punishable under Sections 354, 342, 506,

34 IPC was registered at Police Station Mulepur. Cancellation of the

abovesaid FIR was recommended after investigation. The Special

Investigation Team constituted under orders of this Court also found

the allegations against the accused to be incorrect and recommended

cancellation of the FIR. A complaint dated 24.08.2009 was filed by the

victim.

It is relevant to note that the appellant has been convicted

on the complaint preferred by the victim.

The victim in her initial statement dated 11.07.2009, stated

that she was a student of 10th class at Guru Nanak Public School,

Chunni Kalan. She used to go to school in a van and as per her routine

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she was waiting for her school van near the crossing (Puli) over the

canal at Brass on 09.07.2009 at about 8.00 a.m. The present appellant

and Bhupinder Singh, in the meanwhile, arrived in a white Indica car.

Bhupinder Singh was driving the car. The appellant suddenly opened

the door of the car, caught hold of the victim’s arm and forcibly

dragged her into the car. The driver Bhupinder Singh drove away at a

high speed. Some how her family came to know about this incident.

Her grandfather and mother came in pursuit but the accused drove the

car even faster and her grandfather could not keep up with the accused.

Her grandfather and mother returned home. The accused took the

complainant to Sector 17, Chandigarh. It is alleged that the accused

made the victim sit in the car and kept roaming around. They insulted

her (beizzati kiti) and at about 2 o’clock in the afternoon, they returned

to the village and threw her out of the car in front of the school

dispensary. The victim’s parents approached the appellant’s father

Satnam Singh. Efforts were made by respectable persons of the area to

settle the matter amicably but both the boys did not show any remorse

for their wrong doing but to the contrary started threatening the victim

and her family. Therefore, action against them was prayed for. FIR No.

73 dated 20.07.2009 for the offences punishable under Sections 354,

342, 506, 34 IPC was registered at Police Station Mulepur on this

statement. No allegations attracting the rigours of Section 376 IPC

were raised in this statement. Medico legal examination of the victim

was conducted on the same day (Ex. PX). Subsequently, statement of

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the victim (Ex. DA) was recorded on 20.07.2009.

In her statement (Ex. DA) recorded on 20.07.2009, the

victim levelled allegation of commission of rape in the running car by

the appellant as well as Bhupinder Singh. It is further alleged that she

was threatened not to reveal this incident to her family members

otherwise harm would befall her family. The victim stated that she did

not reveal about the commission of rape upon her to her family earlier

due to such threats meted out by the accused. True facts, it is stated,

were revealed by the victim to her family members on 19.07.2009 and

consequently her statement (Ex. DA) was recorded on 20.07.2009.

The police investigated the matter and found the allegations

to be incorrect, thereby recommended cancellation of the said FIR.

However, the victim filed a petition before this Court and a Special

Investigation Team was constituted. The said Special Investigation

Team on investigation of the matter yet again found the allegations to

be incorrect as reflected in its report dated 25.05.2010 (Ex. DE).

Cancellation report was again prepared and presented before the

learned Judicial Magistrate First Class, Fatehgarh Sahib on 06.07.2010.

The victim protested against the same and her statement in this respect

was recorded on 05.07.2010. However, in the interregnum private

complaint dated 24.08.2009 was filed by the victim specifically stating

that the police authorities were not taking action against the accused

persons. Accordingly, the learned trial Court ordered the cancellation

report to be attached with the private complaint and the matter in the

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complaint was proceeded against.

As per the allegations in the complaint dated 24.08.2009,

the victim mentioned herself to be a student of class 12 and not 10th as

stated by her earlier. It is stated that she was standing on the bridge of

the canal at Brass at 8.00 a.m. on 09.07.2009 waiting for her school van

as students of class XII had been called to school for extra classes.

Allegations of the present appellant dragging her into the Indica car

and speeding away of the car by co-accused Bhupinder Singh were

reiterated. The following of Indica car of the accused by the victim’s

grandfather and mother after the victim’s grandfather came to know of

the abduction was reiterated as well. They could, however, not catch up

with the car of the accused, thus, they returned back. The accused

allegedly took the victim to Sector 17, Chandigarh. It is further stated

that the accused violated the person of the victim, turn by turn, in the

running car. She was threatened by the accused not to disclose the

incident to anyone and it is due to this fear that the matter was not

reported to her parents. It is only after her medical examination at Civil

Hospital, Fatehgarh Sahib on 20.07.2009, that her parents came to

know regarding the commission of rape, hence, the victim disclosed the

facts to them. It is averred that the appellant and the co-accused

proclaimed that no action would be taken against them as the present

appellant’s father was the Chairman of the Block Samiti, Khera and a

leader of the ruling party. She further averred in the complaint that the

police is deliberately not taking any action against the accused because

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of the influence wielded by them.

All the accused were summoned by the learned Judicial

Magistrate First Class, Fatehgarh Sahib vide order dated 15.02.2010 for

the commission of offences punishable under Sections 354, 342, 363,

376 and 506 IPC. Co-accused Bhupinder Singh was declared a

proclaimed offender and the complaint was committed qua the other

two accused.

The co-accused Satnam Singh preferred CRM-M No. 2156

of 2011 for quashing of the said complaint against him. This Court on

21.05.2013, quashed the complaint qua Satnam Singh while observing

that allegations levelled by the complainant were found to be false,

levelled due to party faction in the village and consequently a

cancellation report was prepared. It was held that the learned trial Court

committed a patent error in summoning Satnam Singh as no allegation

was levelled against him constituting the commission of a criminal

offence by him. It is informed that the said decision dated 21.05.2013

has attained finality.

Charge sheet against the appellant was framed. Seven

witnesses were examined by the prosecution/complainant. The accused

in his statement under Section 313 Cr.P.C. denied the incriminating

evidence put to him. He pleaded innocence and false implication due to

extraneous reasons and political rivalry.

DW1 Inspector Gurmeet Singh was examined in defence.

After closure of the defence evidence, Dr. Usha Singla who had

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conducted the examination of the victim on 20.07.2009, was examined

as a Court witness on 17.01.2013. Supplementary statement of the

accused under Section 313 Cr.P.C. thereafter was recorded as well.

Learned trial Court on considering the facts and

circumstances of the case concluded that the prosecution had proved its

case beyond reasonable doubt against the appellant and convicted him

for the offence punishable under Sections 342, 376 and 506 IPC. The

appellant was, however, acquitted of the offence punishable under

Section 363 IPC for lack of evidence. He was sentenced as detailed

above.

Aggrieved from his conviction and sentence, the appellant

has filed this appeal.

Learned counsel for the appellant vehemently argues that

the evidence on record does not justify the conviction of the appellant

in any manner. First and foremost, there is an unexplained delay in

lodging of the FIR. The incident in question is stated to have taken

place in the morning of 09.07.2009. It is not probable that in such a

situation where the grandfather and the mother of the victim allegedly

saw the accused racing away with the victim, they would not have

taken immediate and prompt action by informing the police. However,

surprisingly, the first complaint was lodged on 11.07.2009 after two

days of the said incident. Moreover, there is no allegation of rape in the

said statement (Ex.PB) of the victim, which was recorded at the outset.

Medical examination, it is submitted, was deliberately not conducted

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on the same day i.e. on 09.07.2009. It is after considerable delay that

the victim on 20.07.2009 for the first time raised allegations of

commission of rape by the present appellant alongwith Bhupinder

Singh.

It is further submitted that the manner in which the offence

is stated to have been committed is opposed to all probability. It is not

possible that on a busy road, the victim could be taken forcibly in a car,

which did not even have tinted/dark glasses and thereafter subjected to

rape by two persons taking turns. It is opposed to all reasonableness

that the accused would take the victim to Sector 17, Chandigarh and

thereafter bring her back at about 2 o’clock in the afternoon and throw

her outside the village dispensary. Furthermore, thorough investigation

of the case was conducted by the police. The allegations against the

appellant were found to be false. Thereafter a Special Investigation

Team was constituted under orders of this Court. The said team also

recommended cancellation of FIR as the allegations were found to be

incorrect on investigation. It is further submitted that Dr. Usha Singla

has been wrongly examined as a Court witness after dismissal of the

application under Section 311 Cr.P.C. filed by the prosecution on

21.09.2011. The said order dated 21.09.2011 passed by the learned trial

Court was duly upheld by this Court in CRR No. 2443 of 2011 on

12.10.2011. The learned trial Court, it is submitted, dismissed the

application under Sections 311 Cr.P.C. for proving the medical

examination of the victim, which was conducted nine months after the

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alleged incident. It was observed that it is not such a piece of evidence,

which is necessary for the just adjudication of this case and it would

only amount to filling up of lacunae in the prosecution evidence. This

Court while dismissing the petition filed by the complainant observed

that such medical examination conducted after almost nine months of

the alleged rape, would not be a relevant piece of evidence. In this view

of the matter, it is contended that the learned trial Court wrongly

summoned Dr. Usha Singla as a Court witness vide order dated

14.01.2013 and further placed reliance on her statement for convicting

the appellant.

Learned counsel for the appellant further submits that it is

proved on record that the victim’s school was closed from 09.07.2009

to 12.07.2009 as is evident from the report (Ex. DE) submitted by the

Special Investigation Team. It is clearly mentioned therein that as per

the Principal of Guru Nanak Public School, Chunni Kalan the school

was closed, no school vans were operating in this period and no

extra/special classes were being held in the school, neither were any

students called for any extra classes. Driver of the van in question also

suffered a statement to the same effect before the Special Investigation

Team. As per the said report dated 25.05.2010, evidence was present to

show that the present appellant and the victim in question were in touch

with each other telephonically on 08.07.2009. Evidence of messages

being exchanged in the morning of 09.07.2009 was also found. It is

mentioned in the report that the grandfather of the victim is an old man,

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living in the village ever since, still he was unable to reveal the identity

of the person, who allegedly informed him regarding his grand

daughter being forcibly taken away by the accused. The victim’s

grandfather had stated that a person tending to the cows in the area had

revealed the above said incident to him. Pursuant thereto, he went back

home, took the victim’s mother alongwith him and thereafter pursued

the car of the accused in which his grand daughter was taken forcibly

by the accused. However, he could not keep up with the said car, thus,

he along with his daughter-in-law returned home. This version was

found to be incorrect.

Learned counsel for the appellant vehemently argues that

the entire version is clearly concocted. It is impossible that the

grandfather would even be able to tail the car of the accused after

having first gone back to his residence and thereafter returned to the

spot after collecting his daughter-in-law. Moreover, identity of the

person, who informed him, is not revealed neither is there any

explanation as to why the grandfather and mother of the victim kept

quiet and did not take immediate action for apprehension of the

accused. Their conduct is clearly unnatural in the facts and

circumstances of the case. It is further submitted that the complaint

against Satnam Singh has been quashed by this Court, which indicates

that the present case has indeed been registered out of political rivalry.

It is submitted that apart from the improbability of the version set forth

at the outset, it is to be noted that the victim never raised any

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allegations of commission of rape by the appellant initially. She merely

stated that she was insulted by the accused when they took her in the

car at 8.00 a.m., then proceeded on to the extremely busy road to

Chandigarh, went to Sector 17, Chandigarh and thereafter came back

and threw her out of the car at about 2.00 p.m. (afternoon) in front of

the dispensary of their village.

Learned counsel for the appellant argues that the possibility

of friendly relations between the victim and the appellant in this case

and subsequent registration of the case due to political rivalry cannot

be ruled out. The victim admittedly major at the time of incident (it is

stated that she was 19 years of age at the time of incident) accompanied

the appellant out of her own accord, if at all. Medical evidence on

record does not prove the commission of any offence punishable under

Section 376 IPC by the appellant. It is submitted that the appellant has

been wrongly convicted for the offences punishable under Sections 342,

376 and 506 IPC though rightly acquitted of the offence punishable

under Section 363 IPC. It is further submitted that once the appellant

has been acquitted of the offence punishable under Section 363 IPC, the

entire foundation of the prosecution version falls like a house of cards.

Therefore, it is prayed that this appeal be allowed and the appellant be

acquitted of the charges against him.

Learned counsel for the State refutes the above said

arguments and submits that the appellant has been rightly convicted

and sentenced for the offences punishable under Sections 342, 376 and

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506 IPC vide the well reasoned, logical judgment and order dated

14.02.2013 which is based on the specific evidence on record. It is

submitted that the victim, in this case, has supported her version

throughout. The accused can be convicted on the sole testimony of the

prosecutrix herself without seeking any corroboration once her

testimony is found to be trustworthy. In the present case, there is

nothing on record to impeach the credibility of the prosecutrix. Medical

evidence especially in the shape of the evidence of Dr. Usha Singla

corroborates her version. Thus, it is prayed that this appeal be

dismissed.

I have heard learned counsel for the parties and have gone

through the record with their able assistance.

It is not in dispute that in respect to the alleged occurrence,

which took place on 09.07.2009, FIR No. 73 was registered on

20.07.2009. The police on investigation found allegations against all

the accused including the appellant to be incorrect. Thereafter, Special

Investigation Team was constituted under the orders of this Court

consisting of DSP Fatehgarh Sahib, Incharge, CIA, Sirhind and SHO,

PS Mulepur. The Special Investigation Team also found the allegations

to be incorrect and a cancellation report in this case was presented

before the learned Judicial Magistrate First Class, Fatehgarh Sahib on

06.07.2010. The victim prayed for rejection of the cancellation report

and for taking action against the accused. As the private complaint by

the victim already stood instituted, learned trial Court ordered that the

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cancellation file be attached with the private complaint.

As per allegations in complaint dated 24.08.2009, the

complainant/victim was studying in 12th class in Guru Nanak Public

School, Chunni Kalan. She was taking extra classes in school during

the summer vacations. The victim used to go to school for the extra

classes on a school van. According to her daily routine, she was

standing on the bridge over the canal at Brass at 8.00 a.m. on

09.07.2009. The present appellant alongwith Bhupinder Singh statedly

arrived there in an Indica car. The appellant allegedly dragged the

victim into the car forcibly. No one was stated to be present at the

bridge at that time. The victim’s grandfather and mother came to know

about the incident. They followed the car of the accused but were

unable to keep up with them. It is stated that the appellant and

Bhupinder Singh violated the victim turn by turn in the running car.

She was threatened not to disclose the incident to anyone and it is due

to fear that the matter was not reported to her parents. It is only after

her medical examination was conducted at Civil Hospital, Fatehgarh

Sahib that her parents came to know regarding the commission of rape.

Hence, the victim herself disclosed the abovesaid fact regarding the

commission of rape by the two accused to them. It is stated that the

police was pressurising the complainant and her parents to compromise

the matter and were not taking any action against the accused, hence

the complaint.

The victim (PW2) while testifying before the learned trial

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Court stated that she was standing on the bridge of the canal at about

8.00 a.m. on 09.07.2009 while waiting for her school van. She was a

student of class XII at Shri Guru Nanak Public School. The appellant

arrived at the bridge in an Indica car driven by Bhupinder Singh. It is

stated that the appellant pulled the complainant inside the car and

Bhupinder Singh drove off the car at a great speed. The complainant’s

grandfather was stated to be present at a petrol pump situated about two

acres away from the place of occurrence. The complainant further

stated that someone informed her grandfather, who first went home,

picked up her mother and then chased the Indica car in which she was

forcibly taken by the appellant and the co-accused. The complainant’s

grandfather was driving a Ford Ikon car. The complainant stated that

she was raped by the appellant and the co-accused Bhupinder Singh

turn by turn in the running car. It is stated that she tried to raise a hue

and cry but both the accused threatened to kill her family and further

threatened her with dire consequences if she informed her parents

about the occurrence. The appellant and the other co-accused, it is

stated, threw her out of the car at about 2.00 p.m. in front of the

dispensary of the village after having taken her around Section 17,

Chandigarh in the car. The complainant’s mother reached the

dispensary and took her home. A threatening call was received by the

victim’s grandfather. Grandfather, mother and a maternal aunt of the

victim went to the police station on 11.07.2009 but FIR was not

registered. Application (Ex.PB) was submitted by the complainant.

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Political pressure was exerted. The victim’s father, a truck driver

returned on 18.07.2009, met superior police officials and FIR No. 73

was finally registered on 20.07.2009. Medical examination of the

victim was conducted on 20.07.2009. The complainant stated that she

revealed about the commission of rape to her father for the first time on

20.07.2009 before she was medically examined.

The victim’s grandfather Sardool Singh could not be

examined before the learned trial Court as he passed away in the

interregnum. However, his statement was recorded at the time of

recording of preliminary evidence wherein he stated that the victim was

his granddaughter. She was going to school for extra classes as students

of the 12th class were called for the same. She was standing on the

bridge of the minor canal on 09.07.2009 at 8.00 a.m. for going to

school on the school van. He stated that he passed the complainant on

the bridge when he was going to get fuel for his car from the petrol

pump. The victim at that time was standing at the spot waiting for the

van. When he returned, she was not present. People who were gathered

there informed that the victim was kidnapped by the appellant and one

Bhupinder Singh in their Indica car. Sardool Singh CW2 further stated

that he went back home, took the victim’s mother alongwith him and

thereafter followed the car of the accused, which was being driven by

Bhupinder Singh. The appellant was sitting with his granddaughter on

the rear seat of the car. The accused sped away and Sardool Singh and

his daughter-in-law failed to catch the accused. They returned home. At

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about 2.00 p.m. the accused dropped the victim on the road from where

she was kidnapped. The matter was reported to the police. The victim

was medically examined at Civil Hospital, Fatehgarh Sahib from where

they gathered that she had been raped by the appellant and Bhupinder

Singh. The factum of rape was disclosed by the victim after her medical

examination. It is further stated that the appellant’s father Satnam Singh

threatened them not to pursue the matter. Due to pressure exerted by

Satnam Singh, no action was taken by the police.

PW2 the victim has, however, deposed that she was thrown

out of the car at about 2.00 p.m. at the dispensary of the village. PW3,

the mother of the victim has reiterated that the victim was standing at

the bridge of the minor canal for going to school for extra classes.

Father-in-law of PW3 came home and informed her about the

kidnapping of the victim. She alongwith her father-in-law chased the

Indica car till Landran. Bhupinder Singh was driving the car. Not being

able to keep up with the Indica car, they returned to their village. They

went to the victim’s school at Chunni Kalan but the victim was not

found present though other students were present in the school.

Thereafter, PW3 alongwith her father-in-law returned home and

remained silent for two days. The victim, it is stated was thrown out at

about 2.00 p.m. behind the trees near a chowk.

It is a matter of record that the allegations against the

accused were found to be incorrect on investigation by the police.

Thereafter, the Special Investigation Team (SIT) constituted under

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orders of this Court also found no truth in the allegations against the

accused persons. This Court in CRM-M No.2156 of 2011 quashed FIR

No. 73 dated 20.07.2009 qua Satnam Singh i.e, the appellant’s father.

As per report (Ex. DE), it was found that extra classes were not being

held in the school at the relevant time neither were the school vans

plying during this period. The Principal of the school as well as the

driver of the school van revealed the said facts before the SIT. The

victim admitted that Surjit Singh Sandhu is the Director/Principal of

her school and Major Singh is the driver of the van which used to ferry

her to school.

Palpable doubt is raised on the version put forth by the

complainant on a perusal of the evidence on record. First and foremost,

there is nothing on record to show as to who informed the victim’s

grandfather of her abduction from the bridge. In case, the victim was

waiting at the canal bridge for the school van when her grandfather was

proceeding to the petrol pump, there is no reason for any apprehension

to rise in his mind on not finding her present at that spot on the way

back, as it would be a normal presumption that she might have boarded

the school van, in the interregnum. However, even if it is accepted for

the sake of arguments that such information of the victim’s abduction

was indeed conveyed to the grandfather, there is no plausible

explanation as to why he first went to his residence, picked up his

daughter-in-law and thereafter pursued the Indica car, in which the

victim was being taken by the appellant and Bhupinder Singh. In case,

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the accused had sped away from the spot after abducting the victim as

alleged, it is highly improbable that they would still be in the vicinity,

permitting the grandfather and mother of the victim to chase them till

Landran, as narrated. It is not the case of the prosecution that the

appellant alongwith the co-accused had taken the victim in the car and

were waiting on the road side, thereby enabling the grandfather to

follow them and duly identify them as well. The grandfather of the

victim had not seen the victim being forcibly taken by the appellant as

the version put forth by the prosecution is that the grandfather was

informed of the incident. The identity of the person informing the

grandfather has not been disclosed. It is further opposed to all

probability that if the grandfather and the mother of the victim had

witnessed the victim being taken away by the appellant and Bhupinder

Singh, they would have simply returned back home without taking

immediate action against the accused. It appears highly unnatural that

they would have come back home and waited quietly for the victim to

be dropped back by the accused at about 2 o’clock in the afternoon

without raising any hue or cry. The victim’s grandfather admittedly

remained a Panch of the village and contested elections regularly,

therefore, it appears improbable that the return of the victim’s father

was awaited to approach the superior police officials to complain of

police inaction.

Furthermore, it is a matter of record that the victim at the

first instance has not raised any allegation of commission of rape in her

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statement recorded on 11.07.2009. In the FIR, the victim merely stated

that she was insulted by the accused when they forcibly took her in the

car at 8.00 a.m., proceeded on the extremely busy road towards

Chandigarh, went to Sector 17, Chandigarh and thereafter threw her

outside the village dispensary. The victim PW2 in her cross

examination admitted that her grandfather remained the Panch of the

village Brass and regularly contested elections. He earlier owed

allegiance to the Akali Party and later on joined the Congress. He

admittedly enjoy considerable clout in the village. The appellant’s

father Satnam Singh and the victim’s grandfather admittedly contested

elections from opposite sides though earlier the victim’s grandfather

used to support Satnam Singh. Thus, the factum of strained relations is

undeniable.

Therefore, to convict the appellant on the sole testimony of

the prosecutrix/victim would not be safe. Prosecution sought

corroboration from the evidence of Dr. Usha Singla (Court witness).

Much stress has been laid by learned counsel for the State on the

evidence of Dr. Usha Singla, specifically her answer to the court

question that the external injury upon the victim would not be possible

with her clothes on or without an attack on her person.

The injuries detected on the person of the victim when

examined on 20.07.2009 are as under:-

“External injuries:-

1. 0.5 cm healing abrasion on left side of face brownish in

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colour.

2. 2.5 cm x 0.75 cm horizontal reddish brown bruise on left
side front of chest 2 cm from superasternal notch.

3. 2.5 cm x 2 cm brownish bruise in healing stage of inner
side of left thigh 13 cm above left knee joint.
Secondary sex characters fully developed.
Local examination :-

Pubic hair present, external genitals fully developed.
No extra vaginal or intra vaginal injuries seen.
External vaginal swab and intra vaginal swab from
fornices taken and labelled as A and B and preserved for
chemical examination and sealed in a Jar with two seals.

Vaginal orifice admits little finger with pain, finger is

blood stained indicating starting of menstruation.”

The learned trial Court has wrongly drawn an inference of

the commission of rape upon the victim by the appellant on the basis of

the response of Dr. Usha Singla to the Court questions while ignoring

the material discrepancies in the evidence which strike at the very

foundation of the prosecution version. Though examination of Dr. Usha

Singla as a Court witness cannot be linked with the dismissal of the

application under Section 311 Cr.P.C. on 21.09.2011 as prosecution had

sought to prove the medical evidence in respect to the report of the

medical Board constituted nine months after the examination of the

victim vide the said application. It is a matter of record that Dr. Usha

Singla had led preliminary evidence as CW5. At the same time eliciting

of the said response of Dr. Usha Singla in response to a Court question

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cannot be made the basis of conviction of the appellant in the light of

the evidence on record.

A close and wholesome scrutiny of the evidence of the

record reveals that the prosecution has failed to prove its case against

the appellant beyond all reasonable doubt. The evidence on record,

does not unerringly point to a hypothesis of the guilt of the appellant

beyond the shadow of a reasonable doubt. A specific doubt is cast on

the prosecution version, the benefit of which necessarily accrues to the

appellant. It would indeed be rash and improper to convict the appellant

for the offences punishable under Sections 342, 376 and 506 IPC in the

light of the evidence on record. As per the custody certificate dated

13.10.2017, the appellant has undergone actual imprisonment of four

years, eleven months and fourteen days of the sentence imposed upon

him as on 12.10.2017.

Keeping in view the facts and circumstances of the case, it

is concluded that the prosecution has failed to prove its case against

the appellant beyond reasonable doubt. The learned Additional

Sessions Judge, Fatehgarh Sahib has erred in convicting and sentencing

the appellant as detailed above for the commission of the offences

punishable under Sections 342, 376 and 506 IPC

Accordingly, this appeal is allowed. The appellant is

acquitted of all the charges against him.

Consequently, impugned judgment and order dated

14.02.2013 passed by the learned Additional Sessions Judge, Fatehgarh

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Sahib is set aside. The appellant be released forthwith in case not

required in any other case.

(Lisa Gill)
October 23, 2017 Judge
rts

Whether speaking/reasoned : Yes/No

Whether reportable : Yes/No

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