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2002 DIGILAW 995 (PNJ)

Joginder Singh v. State Of Punjab

2002-09-26

K.S.GAREWAL

body2002
Judgment K.S.Garewal, J. 1. Joginder Singh (18) was tried by the learned Addl. Sessions Judge, Ludhiana for having committed rape upon Renu Bala (12) (PW 2) and was convicted of the offence. He was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 2000/- and in default of payment of fine to further undergo rigorous imprisonment for 3 months. 2. Joginder Singh has filed this appeal to challenge his conviction and sentence. 3. The prosecution case was that on June 26, 1999 at abort 10 A.M. Renu Bala left her house to buy some house-hold articles from a shop. A Gurdwara known as Singh Sabha fell on the way. When she was passing that way the appellant, a priest of the Gurdwara, threatened Renu Bala with a naked sword and dragged by her arm after putting a handkerchief on her mouth. The said handkerchief had been treated with some intoxicant and smelling it made Renu Bala unconscious. When Renu Bala did not return her mother looked for her in the Mohala for 2-3 hours but could not find her. She even asked the appellant whether Renu Bala was in the Gurdwara but he denied any knowledge. After some time suspicion was aroused against the appellant who was taking rounds in the street and on this the appellants room was searched thrice but Renu Bala was not found. Suddenly someone noticed a chunni hanging from a cooler fitted in the appellants room and when the cooler was opened Renu Bala was found lying inside in an unconscious state. She regained consciousness on the following day and narrated the entire episode to her mother Kamaljit Kaur. Thereafter, Kamaljit Kaur (PW 3) reported the matter to the police on June 27, 1999 and a case was registered. 4. Renu Bala was medico legally examined by Dr. Manorma Avasthi (PW 1), Medical Officer, Civil Hospital Ludhiana on July 7, 1999. The Investigating Officer also collected the evidence of Renu Balas age from Surinder Kaur (PW 5, Head Mistress, Shri Ganesh Vidyala Middle School, Ludhiana, which showed her date of birth to be April 11, 1987. The investigator produced Renu Bala before the Magistrate and her statement undep Section 164 Cr.P.C. was recorded on July 29, 1999. 5. After the completion of investigation the appellant was sent up for trial. The investigator produced Renu Bala before the Magistrate and her statement undep Section 164 Cr.P.C. was recorded on July 29, 1999. 5. After the completion of investigation the appellant was sent up for trial. At the trial he was charged under Section 376 IPC to which he pleaded not guilty and claimed to be tried. After the prosecution evidence had been recorded, the appellant was examined under Section 313 Cr.P.C. and he stated that a false case had been registered against him at the instance of Harish Chaudhary, President Janta Dal, Punjab and at the instance of the mother of the prosecutrix, who wanted to malign him and to extract money. The appellant was called upon to enter defence and he examined two witnesses. 6. The learned Addl. Sessions Judge considered the arguments of the defence to the effect that there was no positive evidence that the accused had committed rape upon the prosecutrix. Renu Balas statements Exhibits DA and DB were also considered, but her statement at the trial was preferred and the discrepancy/contradiction in the statement under Section 164 Cr.P.C. (Ex. DA) and under Section 161 Cr.P.C. (Ex. DB) was outrightly rejected. The further arguments of the defence that the prosecutrix would not have known what had happened since she had become unconscious, medical evidence not supporting rape, absence of supermatozoa on the swabs and delay in reporting the matter to the police as well as the delay in medical examination, were all considered and rejected. The date of birth of the prosecutrix, as per school leaving certificate Ex. PE, was accepted as April 11, 1987. 7. Learned counsel for the appellant has argued that the offence of rape has not been established because the prosecutrix had given contradictory versions to her mother Kamaljit Kaur (PW 3), to the investigation officer when examined under Section 161 Cr.P.C. on July 15, 1999 (Ex. DB) and when she was examined under Section 164 Cr.P.C. on July 29, 1999 (Ex. DA). According to the counsel what Renu Bala had informed her mother and which information had formed the basis of the FIR was that the appellant had made her unconscious and had committed a bad act with her (ku karam). DB) and when she was examined under Section 164 Cr.P.C. on July 29, 1999 (Ex. DA). According to the counsel what Renu Bala had informed her mother and which information had formed the basis of the FIR was that the appellant had made her unconscious and had committed a bad act with her (ku karam). In her statement under Section 161 Cr.P.C., she had stated that the appellant had committed ku karam but in the statement under Section 164 Cr.P.C. the prosecutrix completely omitted to mention any bad act or act of rape committed by the appellant. She had simply stated that she had become unconscious, and she did not remember a thing. 8. The unassailable evidence in this case is that Renu Bala, a young 12 year old girl, was enticed by the appellant, who was a Gurdwara priest, and taken to his room where she remained for 3 or 4 hours and from where she was recovered from inside a cooler in a drowsy and unconscious state. The above is the evidence of Renu Bala herself and of her mother Kamaljit Kaur (PW 3). The connection between the appellant and Renu Bala stands fully established since she was found from a cooler inside his room. However, what is required to be established is whether or not the appellant had committed rape or any other lesser offence. 9. For some inexplicable reasons Renu Bala was not medico- legally examined immediately after she had been found from the appellants room. The case was registered after a delay of nearly a day and a half. There appears to be no satisfactorily explanation as to why Renu Bala had not been medico-legally examined immediately after the registration of the case. The investigating officer took another 10 days to arrange for her medico-legal examination by Dr. Manorma Avasthi (PW 1) on July 7, 1999. The Medical officer found that there was no injury on the external genitalia, hymen was torn and healed and hymen admitted 1 finger. In cross-examination the Medical Officer admitted that she did not notice any blood stains on Renu Balas clothes. The clothes earlier worn by her had not been produced. She also stated that if sexual intercourse had been performed vagina would have admitted 2 fingers. 10. In cross-examination the Medical Officer admitted that she did not notice any blood stains on Renu Balas clothes. The clothes earlier worn by her had not been produced. She also stated that if sexual intercourse had been performed vagina would have admitted 2 fingers. 10. The reference to the statements of Renu Bala (PW2) and her mother Kamaljit Kaur (PW 3) must necessarily be made in order to determine if the finding of the trial court that Renu Bala had been subjected to rape is correct or not. Renu Bala stated that .she was taken by the appellant to his room and rape had been committed upon her. She had become unconscious and regained consciousness on the next day and she narrated the entire episode to her mother, who reported the matter to the police. In cross-examination, she admitted that she was not examined by the doctor of the dispensary attached to the Gurdwara, which was 4-5 houses away from her house but before her medical check up on the 8th day of incident she had been checked up by a doctor at the Civil Hospital. She, however, admitted that her clothes had not got blood stained at the time of the incident or after the incident. She had also been confronted with her statement under Section 164 Cr.P.C. where she had not specifically mentioned that rape had been committed upon her. When she was confronted with the her statement under Section 161 Cr.P.C., she admitted that she had stated that rape had been committed upon her (mera nal ku raram kita hail. Kamaljit Kaur (PW 3) testified that they found Renu Bala unconscious and when she regained consciousness on the following day at 10 A.M, Renu Bala told her about the entire incident and the case was registered. In cross-examination the witness categorically admitted that "rape has not been committed by the accused with my daughter." 11. The controversy in this appeal boils down whether or not the appellant has committed the offence of rape. Renu Bala was recovered from the appellants room in an unconscious condition but there is no medical corroboration of her unconscious state or of rape. The medical evidence in this case based on the examination. conducted after 10 days can hardly support rape because evidence of personal injury was not present, hymen though torn admitted only I finger. Renu Bala was recovered from the appellants room in an unconscious condition but there is no medical corroboration of her unconscious state or of rape. The medical evidence in this case based on the examination. conducted after 10 days can hardly support rape because evidence of personal injury was not present, hymen though torn admitted only I finger. In any case the delay in the examination naturally has the effect of diluting the findings given by the Medical Officer. 12. In the vernacular record of the various statements, there is no explicit description of the sexual act allegedly committed by the appellant. All that has been said is that a bad act was committed by him, whereas Kamaljit Kaur (P W 3) in cross- examination denies that rape had been committed on her daughter. In examination-in-chief itself she does not specifically describe what her daughter had told her. Thus valuable evidence in the form of res gestae is totally missing. 13. From the above analysis it can safely be held that it is difficult to accept the findings of the trial court that the appellant had committed the offence of rape punishable under Section 376 IPC. However, the evidence does not totally absolve the appellant. Renu Bala was recovered from his room and Renu Bala was certainly subjected to some form of sexual act short of rape because she categorically states that some bad act had been committed. It is unfortunate that neither the prosecutor nor the trial court tried to get an explicit description of the act from the prosecutrix while she was being examined at the trial. If the prosecutrix had given a better description of what had happened then the trial court would have been on a much sounder ground to determine the nature of the offence committed by the accused. 14. On the basis of the evidence recorded at the trial, it is difficult to hold that the appellant was guilty of rape. The act of the appellant described as a bad act cannot even be said to be an attempt to commit rape punishable under Section 376/511 IPC. Nevertheless, the offence committed by the appellant can at best be said to be one of outraging the modesty of Renu Bala punishable under Section 354 IPC. The act of the appellant described as a bad act cannot even be said to be an attempt to commit rape punishable under Section 376/511 IPC. Nevertheless, the offence committed by the appellant can at best be said to be one of outraging the modesty of Renu Bala punishable under Section 354 IPC. The conviction of the appellant under Section 376 IPC is hereby set aside by converting to one under Section 354 IPC. The sentence passed on the appellant is hereby reduced to 2 years rigorous imprisonment. The appellant shall also pay a fine of Rs. 2,000/- and in default of payment of fine, he shall further undergo rigorous imprisonment for 3 months. 15. With the above reduction in the sentence, the appeal stands disposed of accordingly.