Criminal Appeal No.1692-SB of 2003 v. State of Punjab

CORAM :HON'BLE MR. JUSTICE MOHINDER PAL. Present: Mr. Rajiv Vij, Advocate, for the appellants. Mr. Vishal Munjal, Additional Advocate General, Punjab. -.- MOHINDER PAL, J. This appeal is directed against the judgment of conviction and the sentence order dated 12.4.2003 whereby appellants Naresh Kumar alias Sandhu, Soni Ram alias Sonu and Jagdish Kumar alias Disha were convicted and sentenced under Section 376 (2) (g), Section 323 and Section 324 read with -2- Criminal Appeal No.1692-SB of 2003. Section 34 of the Indian Penal Code (for short `the Code'). The maximum sentence awarded to each of the appellant is under Section 376 (2) (g) of the Code, which is rigorous imprisonment for ten years and to pay fine of Rs.5,000/- in default whereof to undergo further rigorous imprisonment for one year. All the sentences awarded to the appellants under Section 376 (2) (g), Section 323 and Section 324 read with Section 34 of the Code were ordered to run concurrently. It may be mentioned here that all the appellants have by now undergone the sentence awarded to them for the aforesaid offences. The prosecutrix (name withheld), was aged about 35 years at the time of occurrence and was mother of three children. On 8.5.2002 at about 10 P.M, the prosecutrix, along with her husband, was coming to her village from the adjoining village where she had gone to take back Rs.10,000/- from her `Jethani' (wife of husband's elder brother). When the prosecutrix and her husband reached near the outskirts of the village, her husband went in the nearby field to answer the call of nature and the prosecutrix started moving slowly towards her village while waiting for her husband. In the meantime, the appellants, who belong to the village of the prosecutrix, intercepted her. At that time, appellant Naresh Kumar alias Sandhu was armed with `Dattar'. Appellant Naresh Kumar alias Sandhu caught hold of the prosecutrix from her collar and gave a `Dattar' blow on her head. The prosecutrix bled profusely and fell down on the ground. -3- Criminal Appeal No.1692-SB of 2003. While she was lying on the ground, both appellants Soni Ram alias Sonu and Jagdish Kumar alias Disha bludgeoned her abdomen and appellant Naresh Kumar alias Sandhu gagged her mouth. They picked her up and took her in the nearby field where sun-flower crop was standing. Appellant Soni Ram and Jagdish Kumar caught hold of the prosecutrix from her arms and appellant Naresh Kumar alias Sandhu broke the string of her `Salwar'. Appellant Naresh Kumar alias Sandhu raped the prosecutrix. She yelled for help. Gurmeet Singh, husband of the prosecutrix, and Malkiat Ram were attracted to the spot. All the accused thereafter ran away from the spot. After the occurrence, the prosecutrix was taken to Civil Hospital, Jalandhar, in the wee hours of 9.5.2002. She arrived in the hospital at about 2.10 A.M and was medico-legally examined vide medico-legal report Exhibit P.1 by Dr. Baldev Singh, who found that she suffered three injuries, one on head which was the result of a sharp pointed weapon and two injuries on her abdomen by blunt weapon. She was also medico-legally examined by Dr.Damanjit Kaur on 10.5.200 at 5.45 P.M vide medico-legal report Exhibit P.2. The Doctor opined that the prosecutrix was subjected to sexual intercourse. The instant case was registered on the basis of statement of the prosecutrix (Exhibit P.7), which was recorded in the hospital on 9.5.2002 by Assistant Sub Inspector Gopal Singh. Vaginal swabs, vaginal slides along with wearing clothes of the prosecutrix were sent to the Chemical Examiner and -4- Criminal Appeal No.1692-SB of 2003. vide report Exhibit P.3 semen was found on Salwar, vaginal swabs and vaginal slides of the prosecutrix. Appellant Naresh Kumar alias Sandhu was produced before Dr. Sudesh Dogra, who medico-legally examined him and opined that he was capable of performing sexual intercourse vide opinion Ex.P.5. After completion of investigation, challan was presented against the appellants in Court. The appellants were charged for the aforesaid offences, to which they did not plead guilty and claimed a trial. At the trial, the prosecution examined Dr. Baldev Singh, Dr. Damanjit Kaur, Dalip Singh Draftsman, Dr.Sudesh Dogra, the prosecutrix, Gurmeet Singh, husband of the prosecutrix, Malkiat Ram, an eye-witness, Constable Tirath Singh and Assistant Sub Inspector Gopal Singh, Investigating Officer. In their statements recorded under Section 313 of the Code of Criminal Procedure, the accused-appellants denied the prosecution allegations and pleaded false implication on account of party faction in the village. No evidence was led by the appellants in defence. I have heard the learned counsel for the parties and have gone through the records of the case. In this case, the prosecutrix, while deposing in Court, in her examination-in-chief, narrated the entire version, as mentioned above. She identified her signatures on police statement (Exhibit P.7) and on memo (Exhibit P.6) whereby her -5- Criminal Appeal No.1692-SB of 2003. clothes had been taken into possession. This witness was cross- examined on behalf of the accused. She was cross-examined twice i.e in the first instance before lunch session and in the second instance after lunch session before the trial Court. In her statement before lunch session, she fully corroborated her version. However, when appearing for deposition after lunch session, she deposed that she was neither injured nor raped by the accused. Rather, she was raped by some unidentified persons. She deposed thus in spite of the fact that the appellants belonged to her village and she knew them very well. Strangely enough , in the examination-in-chief and her cross- examination in the first instance she had identified the accused as the perpetrators of crime, but in her cross-examination in the second instance she resiled from her earlier statement. Similarly, Gurmeet Singh, husband of the prosecutrix did not support the case of the prosecution. The same was the position in respect of the eye- witness, namely, Malkiat Ram. However, a verdict of acquittal cannot follow the moment the witnesses turn hostile and dispensation of justice is not dependant upon the witnesses who make efforts to hold the law to ransom. Once the prosecution case is established on record taking into consideration the facts and circumstances of the case in totality, non-supporting of its case by the witnesses who appeared to have been won over by the accused does not at all affect the prosecution case. As noticed above, the prosecutrix, after the occurrence, was taken to Civil Hospital, Jalandhar where she was -6- Criminal Appeal No.1692-SB of 2003. medico-legally examined vide medico-legal report Exhibit P.1 by Dr. Baldev Singh. Dr. Baldev Singh had found three injuries on the person of the prosecutrix i.e one injury on head which was the result of a sharp pointed weapon and two injuries on her abdomen by blunt weapon. The prosecutrix was also medico- legally examined Dr.Damanjit Kaur vide medico-legal report Exhibit P.2. Dr.Damanjit Kaur opined that the prosecutrix was subjected to sexual intercourse. The instant case was registered on the basis of statement of the prosecutrix (Exhibit P.7), which was recorded in the hospital on 9.5.2002 by Assistant Sub Inspector Gopal Singh. The prosecutrix, in her examination-in-chief vouchsafed her statement Exhibit P.7. Vaginal swabs, vaginal slides and `Salwar', which were sent to the Chemical Examiner, semen was detected thereon vide report Exhibit P.3. In view of these facts and circumstances on record, the version of the prosecutrix that she was raped by some unidentified persons is not believable and is, apparently, false. In their statements recorded under Section 313 of the Code of Criminal Procedure, the accused took the plea of false implication simpliciter on account of party faction in the village. However, they were not able to lead any evidence in defence to dislodge the case of the prosecution. The injuries found on the person of the prosecutrix show that she had not surrendered herself easily to the perpetrators of crime i.e the appellants. In consequence of the disclosure statement suffered by appellant Naresh Kumar Sandhu, the weapon of offence had been recovered by the police. -7- Criminal Appeal No.1692-SB of 2003. As mentioned above, the appellants were known to the prosecutrix as they belong to her village. She had named them in the F.I.R as the persons who had ravished her. Under the circumstances, there is no escape from the conclusion that the prosecution has been able to prove its case against the accused. In view of the above, I do not find any ground warranting interference in the impugned judgment of conviction recorded by the trial Court. The sentence awarded to the appellants also commensurates with the offence committed by them. Resultantly, this appeal is hereby dismissed being without any merit. April 9 , 2010. ( MOHINDER PAL ) JUDGE