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2003 DIGILAW 1422 (PNJ)

Charanjit Singh v. State Of Haryana

2003-10-15

NIRMAL SINGH

body2003
Judgment Nirmal Singh, J. 1. This appeal has been preferred against the judgement/order 7/4/1989/8/4/1989 by the Additional Sessions Judge, Sirsa vide which the appellants Charanjit Singh and Bhuto have been convicted and sentenced as under Charanjit Singh R. I. for 7 years and to pay fine of Rs.1,000.00. In default of payment of fine to further undergo R. I. for six months u/s 376 (2) (g) IPC. R. I. for a period of two years and to pay fine of Rs.100.00. In default of payment of fine to further undergo R. I. for 15 days u/s 452 IPC. Bhuto R. I. for 7 years and to pay a fine of Rs.1,000.00. In default of payment of fine to further undergo R. I. for six months u/s 376 (2) (g) IPC. R. I. for a period of two years and to pay fine of Rs.100.00. In default of payment of fine to further undergo R. I. for 15 days u/s 452 IPC. Both the sentences were ordered to run concurrently. 2. The prosecution story in brief is that on 14/8/1988 at about 11 a. m. Chhinder Kaur was sitting alongwith her two minor sisters namely Rani and Jassi under a Jand tree situated in front of her house and was doing the embroidery work. At that time Gurmail Singh came there and he took Rani and Jassi to the nearby school on the pretext of giving them swings on the Peeng. Thereafter Charanjit Singh and Bhuto came there. Bhuto caught hold Chhinder Kaur from her neck and Charanjit Singh from her arms. Both of them took her inside the room of her house. Then Bhuto laid her on the cot while twisting her neck and Charanjit Singh committed rape on her. After Charanjit Singh committed rape on the prosecutrix, Bhuto tried to rape her but in the meantime, she stood up from the cot, as at that time, Jagir Kaur mother of prosecutrix came there. On seeing the mother of the prosecutrix, both of them ran away from the spot. Chhinder Kaur narrated the whole incident to her mother, who called her father from the fields. Then Chhinder Kaur and her father went to the Panchayat. The panchayat members advised them to report the matter to the police. On seeing the mother of the prosecutrix, both of them ran away from the spot. Chhinder Kaur narrated the whole incident to her mother, who called her father from the fields. Then Chhinder Kaur and her father went to the Panchayat. The panchayat members advised them to report the matter to the police. Accor-dingly, Chhinder Kaur alongwith her parents went to police station and lodged the report on the basis of which, case against the accused was registered. 3. The prosecutrix was medically examined by Dr. (Mrs.) R. Grover. The accused were arrested and medically examined. After completion of investi-gation, challan was presented before the Illaqa Magistrate. The case was committed to the Court of Sessions, as it was exclusively triable by that court. On commitment of the case, it was entrusted to Additional Sessions Judge, Sirsa for trial. 4. From the perusal of documents replied upon by the prosecution and hearing counsel for the accused, charges under sections 375 and 452/34 IPC were framed against the accused, to which they pleaded not guilty and claimed trial. 5. To prove its case, prosecution has examined the PW1 Dr. Amar Singh. He has conducted X-ray examination of Chhinder Kaur. As per his report, the age of prosecutrix was 15 to 16 years. PW2 Dr. Mrs. R. Grover. She has medically examined prosecutrix. PW3 Constable Harminder Singh. PW 4 Prosecutrix Chhinder Kaur. PW5 Jagir Kaur, mother of the prosecutrix. PW 6 Baljeet Kaur. Minor sister of prosecutrix. She was not competent witness as she could not differentiate between truth and falsehood. PW7 Inderjit Singh, draughtsman, who prepared the scaled site. PW8 HC Khushi Ram, Investigator of the case. PW9 Dr. K. K. Sharma. He was medically examined Charanjit Singh, Bhuto and Gurmail Singh. 6. When the appellants were examined under Sec.313 Cr. P. C. to explain the incriminating circumstances appearing in the prosecution evidence, they denied simplicitor and alleged false implication. The appellants were called to lead defence, but they did not examine any witness in their defence. 7. After appreciating the evidence on record, the learned trial Court acquitted the co-accused Gurmail Singh and convicted and sentenced Charanjit Singh and Bhuto as mentioned in paragraph 1 of the judgment, aggrieved by which the present appeal has been preferred. 8. The appellants were called to lead defence, but they did not examine any witness in their defence. 7. After appreciating the evidence on record, the learned trial Court acquitted the co-accused Gurmail Singh and convicted and sentenced Charanjit Singh and Bhuto as mentioned in paragraph 1 of the judgment, aggrieved by which the present appeal has been preferred. 8. The case of prosecution is that prosecutrix Chhinder Kaur was below the age of 16 years at the time of commission of offence, but the learned trial Court after appreciating the evidence on record came to the conclusion that she was above the age of 16 years and observed as under :- Otherwise also, from the circum-stances of the case, it cannot be said that the age of the prosecutrix was less than 18 years or so at the time of the occurrence. Chhinder Kaur PW 4 in cross-examination has stated that she is voter in the village and she had also cast her votes in the last panchayat election. To the same effect is the statement of her mother Smt. Jagir Kaur PW5. Now, if the name is Chhinder Kaur is there is the voters list and she has already cast her vote in the last panchayat election, then in the absence of any evidence to the contrary, it can be presumed that at the time of the occurrence, she was more than 21 years of age. T 9 The only point to be determined in this case is whether Chhinder Kaur was a consenting party or the appellant Charanjit Singh has forcibly committed rape upon her? From the evidence on record, it has been amply proved that Chhinder Kaur was a consenting party. The prosecutrix has appeared her own witness as PW4 and has deposed that at about 11 a. m. on the day of occurrence she was sitting under the Jand tree and was doing the embroidery work. Her two minor sisters Rani and Jassi were sitting with her. At that time, Gurmail Singh came there and took her sisters on the pretext of giving them swings on the Peeng in the nearby school. Meanwhile, Charanjit Singh and Bhuto came there. Charanjit Singh caught hold her from her arms whereas Bhuto caught hold of her neck and took her inside her house. At that time, Gurmail Singh came there and took her sisters on the pretext of giving them swings on the Peeng in the nearby school. Meanwhile, Charanjit Singh and Bhuto came there. Charanjit Singh caught hold her from her arms whereas Bhuto caught hold of her neck and took her inside her house. Bhuto laid her on the cot while Charanjit Singh broke the string of her saiwar and committed rape. Then Bhuto tried to commit the rape and at that time, her mother Jagir Kaur came there. Chhinder Kaur stood up from the cot and narrated the incident to her mother. 10. Pw7 Inderjit, draughtsman has prepared the scaled site plan at the place of occurrence. The distance from the Jand tree and house of the prosecutrix was shown 82 feet. There was a street intervening the house of the prosecutrix and Jand tree. The prosecutrix has not deposed in her statement that her mouth was gagged by Charanjit Singh and Bhuto when she was forcibly taken to her house. It was also not the case of the prosecutrix that she raised alarm at that time. If there would have been no consent of the prosecutrix, she would not have allowed her two sisters to accompany Gurmail Singh to the nearby school. Moreover, as per version of Chhinder Kaur, Bhuto twisted her neck, while Charanjit Singh broke the string of her saiwar and committed rape upon her. After Charanjit Singh committed the rape, then Bhuto tried to commit rape and in the meantime, Jagir Kaur mother of the prosecutrix came there and both of them ran away. 11. It clearly shows that there was no resistance on the part of the prosecutrix and when her mother appeared at the scene, only then the prosecutrix stood up and made up a story. 12. The consent of the prosecutrix is proved from the other fact also. Dr. K. K. Sharma PW9 has examined Charanjit Singh on 19.8.1988. As per opinion of Dr. Sharma, possibility of injuries having been suffered by the accused Charanjit Singh on his person i. e. on his face, inner thigh, cheeks, elbow in case of resistance by lady during rape cannot be ruled out. The doctor did not find any injury on the person of Charanjit Singh. It also shows that there was no resistance on the part of Chhinder Kaur. 13. The doctor did not find any injury on the person of Charanjit Singh. It also shows that there was no resistance on the part of Chhinder Kaur. 13. Chhinder Kaur is not a trustworthy witness. She has deposed in her statement that none has committed sexual intercourse with her prior to this occurrence. She deposed that when Bhuto caught hold of her neck, she received injuries. Slight blood oozed. As there was only scratches, no bandage was applied by the doctor, although she had shown the same. 14. Pw2 Dr. (Mrs.) R. Grover had examined the prosecutrix on 19.8.1988. She was deposed that there was no mark of injury on the private parts, lower abdomen and inner thigh. As per vaginal examination, two fingers could go inside the vagina. Hymen was ruptured, old healed tags were present. There was no mark of injury on the private parts. Uterus was of normal size. In her cross- examination, Dr. Mrs. R. Grover has deposed that there was also no injury of any kind on her neck, throat and there was also no other injury on any other part of her body. According to the findings of Dr. Grover, Chhinder Kaur was habitual to sexual intercourse. 15. The investigator PW8 Khushi Ram has tried to make out a case that Chhinder Kaur was not the consenting party and has done padding to the case. He has deposed that he has taken into possession the pieces of broken bangles from the spot vide recovery memo Ex. PH. Whereas, Chhinder Kaur has not deposed in her statement that her bangles were broken during resistance and she has received injuries on her arms. PW5 Jagir Kaur has deposed in her statement that police came to the spot but no articles were taken into possession from the place of occurrence. 16. At the time of occurrence, Chhinder Kaur was above the age of 21 years. She has invited Charanjit Singh and Bhuto at her residence and sent her two sisters with Gurmail Singh to the nearby school. It is clear from the evidence on record that Chhinder Kaur was a consenting party, therefore, I give benefit of doubt to Charanjit Singh and Bhuto and acquit them of the charge. They are in custody. They be set free forthwith, if not required in any other case. Appeal allowed.