CRA-S-2510-SB-2014 (OM) 1

IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH

CRA-S-2510-SB-2014 (OM)
Date of Decision : 26.02.2019

Devinder Kumar alias Davinder Singh
…… Appellant
Versus

State of Punjab
…… Respondent

CORAM : HON’BLE MR. JUSTICE RAJ SHEKHAR ATTRI

***
Present : Mr. Abhishek Goyal, Advocate
for the appellant.

Mr. Ramdeep Partap Singh, DAG, Punjab.

***

RAJ SHEKHAR ATTRI, J. (Oral)

Feeling aggrieved against the judgment of conviction and

order of sentence dated 24.04.2014, passed by the learned Additional

Sessions Judge, SAS Nagar (Mohali), vide which he has been convicted

and sentenced to undergo rigorous imprisonment for a period of 10 years

and to pay a fine of Rs.10,000/- and in default of payment of fine to further

undergo rigorous imprisonment for a period of 04 months under Section

376 IPC and rigorous imprisonment for a period of 07 years and to pay a

fine of Rs.5,000/- and in default of payment of fine to further undergo

rigorous imprisonment for a period of 02 months under Section 450 IPC, he

has preferred the instant appeal.

This case pertains to sexual assault on a mentally retarded

minor girl at the relevant time. She belongs to a down trodden part of the

society. Her mother Smt. Paramjit Kaur was doing the labour work in a

factory. On 02.09.2013, at about 11:00 a.m., she had gone to her work

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place and the prosecutrix was alone at home. Suddenly the immediate

neighbour Smt. Jaswinder Kaur wife of Sh. Jaswinder Khan as well as

another neighbour namely Jaswinder Kaur wife of Mandeep Singh heard

the shrieks of the minor prosecutrix. They immediately rushed towards the

house of the prosecutrix. When they merely entered into the house, one

boy on seeing them fled away from there. They raised alarm and chased

him. Other neighbours Mandeep/Navneet Singh and Balwinder Singh

also accompanied them and apprehended the running person, who was

none-else but the appellant. When Jaswinder Kaur wife of Sh. Jaswinder

Khan and Jaswinder Kaur wife of Mandeep Singh entered the room, they

found that the minor prosecutrix was half naked. She was weeping and

bleeding. On inquiry, the prosecutrix told that the person, who just ran

from the house, had come there on the pretext of taking room on rent and

on finding the prosecutrix alone, he forcibly committed rape upon her.

The prosecutrix was taken to the hospital by the neighbours.

Police was informed. On arrival of the police, the accused was apprehended

from the place. Statement Ex.PW1/A of Jaswinder Kaur wife of Sh.

Jaswinder Khan was recorded. The intimation (Ruqa) was sent to the

police on the basis of which FIR was registered. Accused was arrested on

the spot vide memo Ex.PW9/D. The blood stained mattress (dari) was also

taken into possession and sent to the chemical examiner, who opined vide

his opinion that it contained human blood. Similarly, the clothes worn by

the prosecutrix were also sent to chemical examiner. On examination,

spermatozoa were detected on the high vaginal swab.

In order to prove its case the prosecution examined PW1 Dr.

Balwinder Kaur, Medical Officer, Civil Hospital, Kharar, who had medico

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legally examined the prosecutrix specifically opined vide his endorsement

Ex.PW1/D that possibility of sexual intercourse with the minor prosecutrix

cannot be ruled out. PW2 Jaswinder Kaur wife of Jaswinder Khan, eye

witness to the occurrence, also corroborated the case of the prosecution.

The prosecutrix also stepped into witness box as PW3 but she was not

found to be a competent witness as she was mentally retarded. Her

disability certificate, placed on record, proves that she was having 75%

intellectual disability of permanent nature. PW4 Jaswinder Kaur wife of

Sh. Mandeep Singh, who is another eye witness, corroborated the case of

the prosecution. PW5 Som Nath, who is the father of the prosecutrix, has

stated that the prosecutrix was alone in the house on the day of occurrence.

He also proved her age. PW6 Balwinder Singh testified that when he

alongwith Mandeep Singh was coming in the street, they heard the noise

and they saw the accused while running away from the spot. They chased

him and apprehended him and later on he was handed over to the police.

He identified the accused during the trial. PW7 MHC Bawinder Kumar is a

formal witness. He had taken the sealed parcels containing clothes of the

prosecutrix and deposited with the chemical examiner. PW8 Dr. Rajesh

Kumar, who has medico legally examined the accused, opined that he was

capable to perform sexual intercourse. PW9 ASI Randhir Singh conducted

the investigation of this case. PW10 lady constable Rup Kaur is the formal

witness. She accompanied the prosecutrix to the hospital for getting her

medically examined on 02.09.2013. She received the sealed parcels from

the doctor and deposited the same with the MHC. PW11 Constable

Kuldeep Singh had deposited the sealed parcel containing mattress (dari)

with the chemical examiner in a safe condition.

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After closing of evidence, the accused was examined under

Section 313 Cr.P.C. and all the incriminating material was put to him to

which he took the plea of innocence and false implication.

On appreciation of evidence, the trial court convicted and

sentenced the accused, as stated above.

I have heard learned counsel for the parties and have gone

through the record.

Learned counsel for the appellant has vehemently contended

that the prosecutrix was found to be incompetent witness, therefore, her

evidence could not be recorded; that no person was present at the time of

alleged occurrence; that there is absolutely no evidence if the appellant was

identified and the evidence with regard to the identification produced by

the prosecution is not reliable; that no test identification parade was

conducted and prosecution has miserably failed to prove the charges

framed against the appellant. He further argued that Section 53-A of the

Code of Criminal Procedure is mandatory in nature and in the

circumstances of the case it was mandatory for the prosecution to collect

DNA profile of the appellant to compare with the vaginal swabs of the

prosecutrix but nothing has been done and the appellant is entitled to the

benefit of doubt. In support of his contention, he has placed reliance upon

the judgments of Hon’ble Supreme Court in Shail Kumari Devi and

another v. Krishan Bhagwan Pathak alias Kishun B Pathak 2008(3)

RCR (Criminal) 842 and Krishan Kumar Malik vs. State of Haryana

2011 (3) RCR (Criminal) 589 and the judgment of Rajasthan High Court in

Richpal Kharra vs. State 2013 (8) RCR (Criminal) 2605.

On the other hand, learned State counsel vehemently

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contended that the accused was seen leaving the house of the prosecutrix

immediately after the occurrence and PW2 Jaswinder Kaur wife of

Jaswinder Khan and PW4 Jaswinder Kaur wife of Mandeep Singh entered

the house of the prosecutrix after hearing her shrieks and this evidence is

sufficient to connect the accused with the crime. He further submitted that

apart from it PW6 Balwinder Singh had accompanied Manjit Singh and

apprehended the accused, who was running away from the spot.

According to him, the prosecution proved the charges against the accused

beyond reasonable shadow of doubt.

This court has given thoughtful consideration to the rival

contentions.

The following points have arisen for the determination:-

(i) Whether the prosecutrix is mentally retarded ?

(ii) Whether the prosecutrix was ravished?

(iii)Whether the identification of the accused being a

rapist has been proved beyond shadow of doubt ?

Mental condition of the prosecutrix

First of all coming to the mental condition of the prosecutrix.

PW1 Dr. Balwinder Kaur has categorically deposed that the prosecutrix

was mentally sub-normal. This fact has been corroborated by PW2

Jaswinder Kaur wife of Jaswinder Khan. She has categorically stated that

the prosecutrix was not mentally sound. Apart from it, she was also

medico-legally examined and learned trial court has given specific

observation that she was not competent witness. PW4 Jaswinder Kaur wife

of Mandeep Singh has also substantiated said version of prosecution and

stated that the prosecutrix was not mentally sound and due to this reason,

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she was used to stay at home. PW2 Jaswinder Kaur wife of Jaswinder

Khan and PW4 Jaswinder Kaur wife of Mandeep Singh are the immediate

neighbours and they are on visiting terms with the family of the

prosecutrix. PW5 Som Nath, who is the father of the prosecutrix has

categorically stated that the prosecutrix is not mentally sound.

Thus, from the analysis of evidence, this court reach to the

conclusion that the prosecutrix herself was mentally retarded and was a

special child, due to which she could not be examined, though produced

before the court and was found to be inompetent witness.

Sexual assault of the prosecutrix

So far as the sexual assault of the prosecutrix is concerned, it is

proved by medcially as well as circumstantial evidence. When the crime

was committed upon her, she was in the house and started screaming in a

loud voice, which attracted her neighbours PW2 Jaswinder Kaur wife of

Jaswinder Khan and PW4 Jaswinder Kaur wife of Mandeep Singh. When

they rushed to her rescue and entered the house of the prosecutrix, they saw

the accused coming out of the house of the prosecutrix and on see them, he

started running in the street. They raised alarm and chased him and

ultimately the passer byes Manjit Singh and his associate apprehended the

accused and he was handed over to the police

Res gestae

The principle of res gestae is an important rule of evidence,

embodied in Section 6 of the Indian Evidence Act, which means that a fact

which though not in issue, is so connected with an effective issue as to

form the part of same transaction becomes relevant by itself. The purpose

of incorporating this Rule in Section 6 of the Evidence Act was to complete

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the missing links in the chain of evidence of a witness.

This rule is an exception to the general rule wherein, hearsay

evidence becomes admissible.

In the case in hand, following chain of the facts points towards

the identification of the accused and shows his presence.

PW2 Jaswinder Kaur wife of Jaswinder Khan and PW4
Jaswinder Kaur wife of Mandeep Singh rushed to the house of
the prosecutrix on hearing her shrieks. They found the
accused was running out of the house. Consequently, they
chased the accused and raised alarm and on seeing this PW6
Balwinder Singh and one Manjit Singh chased the petitioner
and apprehended him in the street.

This court would like to reproduce the relevant part of the

examination-in-chief of PW2 Jaswinder Kaur wife of Jaswinder Khan as

under:-

“When I reached near the house of Paramjit Kaur, I noticed
that the accused present in the court came out of the house of
Paramjit Kaur and tried to slip away from the spot. I raised
raula and the persons from the Mohalla apprehended the
accused present in the court. Thereafter I entered the house of
Paramjit Kaur and went inside.”

Similarly PW4 Jaswinder Kaur wife of Mandeep Singh

corroborated the prosecution version in unequivocal terms and stated that

she alongwith PW2 Jaswinder Kaur wife of Jaswinder Khan on hearing the

shrieks of the prosecutrix, visited the house of the prosecutrix and noticed

that present accused hurriedly came out of the house and fled away. They

raised alarm, therefore the accused was arrested by the residents of the area

(mohalla). Thus, evidence of PW2 Jaswinder Kaur and PW4 Jaswinder

Kaur establishes that when they reached at the spot, they found accused

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coming out of the house of the prosecutrix hurriedly and he ran away from

there to make good escape. The evidence of PW2 Jaswinder Kaur and

PW4 Jaswinder Kaur was assailed on the ground that their evidence is

inter-se contradictory. Reliance has been placed upon the cross-

examination of PW2 Jaswinder Kaur wife of Jaswinder Khan that she

alongwith PW4 Jaswinder Kaur wife of Mandeep Singh went to the house

of the prosecutrix together but contrary to it PW4 Jaswinder Kaur wife of

Mandeep Singh has stated that both of them had not entered the house of

the prosecutrix jointly. Rather PW4 Jaswinder Kaur wife of Mandeep

Singh entered her house firstly. However, if we read the entire evidence of

PW4 Jaswinder Kaur wife of Mandeep Singh, it establishes that both had

gone together to the house of the prosecutrix and at that time PW4

Jaswinder Kaur was ahead of PW2 Jaswinder Kaur and they entered her

house almost at the same time. Both PW2 Jaswinder Kaur and PW4

Jaswinder Kaur are the neighbours and have no special interest in the case

of the prosecution or any axe to grind against the accused.

PW6 Balwinder Singh was passing through the street when he

heard the noise. He has categorically stated that when he was passing

through the street, 2-3 ladies were raising hue and cry and saying that

accused committed rape upon the prosecutrix and at that time he noticed

that the accused was running from the spot towards the market. Thereafter,

this witness alongwith Mandeep Singh chased the accused and

apprehended him and lateron handed over to the police. This fact has also

been corroborated by the investigating officer.

Thus, evidence of PW6 Balwinder Singh is reliable one. He is

a natural witness. He has no interest in the case of the prosecution and has

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no enimity with the accused. It has been established that immediately after

the offence, accused tried to escape from the spot. He was seen by PW2

Jaswinder Kaur and PW4 Jaswinder Kaur coming out of the house of the

prosecutrix and he was also seen running in the street by PW6 Balwinder

Singh, who with the help of Manjeet Singh apprehended the accused. Thus,

one fact has been strongly established that the accused was seen coming

out of the victim’s house by the neighbourers immediately after the alleged

occurrence, this fact itself gives rise to a reasonable belief that he had in

fact committed the heinous crime.

Apart from it, the accused was medically examined and was

found capable of performing sexual intercourse. Therefore, all these

circumstances formed a chain, leading from the house of the prosecutrix till

he was apprehended. In these circumstances, it was the duty of the accused

to explain his presence in the house of the prosecutrix, as these facts were

in his special and personal knowledge, but he failed to submit any

explanation. Thereafore, inference is drawn against him that he was the

person who committed rape upon the prosecutrix.

It has been argued that the doctor failed to collect the DNA

profile and this fact also creates doubt in the prosecution story. This court

has gone through the evidence on record, but it carries no weight. Section

53-A of the Code of Criminal Procedure is mandatory in nature. [in

Krishan Kumar Malik’s case (supra)] But if DNA has not been collected,

this fact ipso facto does not belie the prosecution evidence. The medical

evidence as well as the ocular evidence of PW1 Jaswinder Kaur wife of

Jaswinder Khan, PW4 Jaswinder Kaur wife of Mandeep Singh and PW6

Balwinder Singh are reliable and trustworthy and sufficient to prove the

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guilt of the accused.

This court is satisfied that the facts and circumstances of the

case had proved the identification of the accused. Thus, the identification

of the accused is well established.

The ocular evidence of the prosecution is fully corroborated

by medical evidence as well as by direct evidence of PW2 Jaswinder Kaur

wife of Jaswinder Khan and PW4 Jaswinder Kaur wife of Mandeep Singh.

After careful and minute analysis of evidence, this court is of the opinion

that the prosecution has been able to prove its case beyond reasonable

shadow of doubt.

The facts of Richpal Kharra’s case (supra) are distinguishable.

Similarly, the facts in Krishan Kumar Malik’s (supra) case are entirely

distinguishable.

In this view of the matter, the judgment of conviction and

order of sentence do not require any interference and are hereby affirmed.

Consequently, the instant appeal being devoid of any merit is

hereby dismissed. The sentenced awarded to the appellant by the trial court

stands maintained.

( RAJ SHEKHAR ATTRI)
26.02.2019 JUDGE
mamta

Whether speaking/reasoned Yes/No
Whether Reportable : Yes/No

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