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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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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