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2004 DIGILAW 1323 (PNJ)

Gurmit Kaur v. Joginder Singh

2004-12-07

HARJIT SINGH BEDI, NIRMAL SINGH

body2004
Judgment Nirmal Singh, J. 1. This appeal has been filed by the appellant, Gurmit Kaur (complainant) against the judgment dated 13.9.2003 passed by learned Additional Sessions Judge, Fast Track Court, Ferozepur, vide which respondent Nos. 1 and 2 were acquitted of the charges levelled against them. 2. The prosecution story in brief is that Gurmit Kaur, prosecutrix, was permanent resident of Jalalabad but two years earlier to the occurrence, she along with her family started residing in the Dhani of Sher Singh near Abohar as she was employed there. Her husband was in jail in an excise case. 3. On 21.5.2000, Joginder Singh and Subhash Chander, respondent Nos. 1 and 2, had drinks with Sher Singh in his Dhani. Gurmit Kaur, complainant, was all alone in her house as her son had gone out of station. When at about 9.30 p.m., she went to answer the call of nature in the field, on her return, both the accused caught her and forcibly laid her on the ground and committed rape one by one. On her raising noise, Sher Singh came on the spot and then both Joginder Singh and Subhash Chander ran away from the spot. Since it was night, both Sher Singh and Gurmit Kaur remained in the Dhani and on the next morning, Gurmit Kaur along with Sher Singh went to Civil Hospital for medical examination. On receipt of the report of medical examination PW-6 ASI Veer Chand along with police officials reached Civil Hospital, where he recorded the statement, Ex. P1, of the prosecutrix and sent ruqa to the police station, on the basis of which formal FIR, Ex. P-6, was registered against respondent Nos. 1 and 2. The prosecutrix also filed criminal complaint under Sections 376/34 IPC on 25.5.2000 against both respondent Nos. 1 and 2. 4. After lodging the FIR, PW-1 SI Veer Chand conducted the investigation and tried his level best to join the prosecutrix and Sher Singh but despite his efforts, they did not cooperate with the investigation and ultimately, after thorough investigation, the allegations against respondent Nos. 1 and 2 were found to be false and cancellation report was filed in the Court. 5. Learned Judicial Magistrate clubbed the private complaint as also the cancellation report of the police and after recording preliminary evidence of the complainant, Gurmit Kaur, summoned respondent Nos. 1 and 2 to face trial under Section 376/34 IPC. 1 and 2 were found to be false and cancellation report was filed in the Court. 5. Learned Judicial Magistrate clubbed the private complaint as also the cancellation report of the police and after recording preliminary evidence of the complainant, Gurmit Kaur, summoned respondent Nos. 1 and 2 to face trial under Section 376/34 IPC. 6. After commitment of the case, charge under Section 376 IPC was framed against respondent Nos. 1 and 2, to which they placed (pleaded ?) not guilty and claimed trial. 7. To prove the case, the prosecution examined PW-1 Gurmit Kaur, complainant, PW-2 Sher Singh, PW-3 Piara Singh No. 2641, Excise Staff Fazilka, PW-5 Vinod Kumar and PW-6 Inspector Veer Chand. 8. The accused were examined under Section 313 Cr.P.C. to explain the incriminating circumstance appearing in the prosecution evidence. They pleaded innocence and alleged false implication. In defence, they examined DW-1 HC Prem Singh, PW-2 Balraj Singh, Ahlmad and DW-3 Nirmal Singh, Record Clerk, Judicial Record Room Fazilka. 9. The learned trial Court, after hearing the defence counsel and learned PP for the State found respondent Nos. 1 and 2 to be innocent and acquitted them of the charges levelled against them as stated in Para 1 of the judgment, against which the present appeal has been filed by the complainant Gurmit Kaur. 10. We have heard learned counsel for the parties and carefully gone through the record. 11. As the matter pertains to an acquittal of the accused, it would have to be examined in the light of the principles as laid down by the Honble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991(1) RCR(Crl.) 14 (SC) : 1991(1) SCC 166 and Kashi Ram v. State of M.P., 2001(4) RCR(Crl.) 556 (SC), wherein it has been held that interference in an appeal against acquittal would be called for only when the judgment under appeal was palpably perverse or based on a misreading of the evidence and where two views are possible, the one taken by the trial Court in making a judgment of acquittal should not be disturbed. When the evidence is scanned in the light of the above observations of the Honble Supreme Court, we are of the considered opinion that in this case even two views are not possible and only one view is possible, which has been taken by the learned trial Court. 12. When the evidence is scanned in the light of the above observations of the Honble Supreme Court, we are of the considered opinion that in this case even two views are not possible and only one view is possible, which has been taken by the learned trial Court. 12. Subhash Chander, respondent No. 2, has taken a plea that his brother Kewal Krishan was working in Ware Housing Corporation, Fazilka. Manjit Singh son of Raj Singh, SI, Police Station City Jalalabad, was also working in the same Department at Fazilka. His brother moved an application against Manjit Singh son of Raj Singh and on that account SI Raj Singh along with ASI Lal Chand, HC Baljit Singh and other police officials came to their house on 5.4.1998 at about 5.30/6 A.M. However, his brother was not available and they kidnapped him and gave beating. The occurrence was witnessed by Joginder Singh. They moved various applications to the higher authorities for registration of a case but when nothing fruitful came out, they filed a writ petition before this Court, on the basis of which FIR bearing No. 49 dated 6.7.1999 was registered against Raj Singh in Police Station City Fazilka. SI Raj Singh was pressurising him for compromise but he did not agree and due to that grudge, SI Raj Singh got registered this false case against them through Gurmit Kaur, who is permanent resident of Jammu Basti, Jalalabad and habitual of filing such false complaints and was also close to SI Raj Singh. Therefore, from the statement of Subhash Chander, respondent No. 2, possibility of false implication cannot be ruled out. 13. PW-1 Gurmit Kaur, in her cross-examination, has admitted that she was resident of Jammu Basti, Jalalabad. She also admitted that she got registered a case under Sections 436 and 336 IPC against Kashmir Kaur and Surjit Singh and that cancellation report was submitted by the police in that case on the ground that it was a false case and the prosecutrix had not filed any appeal or revision against that cancellation report. Therefore, when the earlier case of the prosecutrix was found to be false, then possibility of false implication of respondent Nos. 1 and 2 by lodging the case in hand cannot be ruled out. Therefore, when the earlier case of the prosecutrix was found to be false, then possibility of false implication of respondent Nos. 1 and 2 by lodging the case in hand cannot be ruled out. Gurmit Kaur further deposed in her statement that she was residing in the Dhani of Sher Singh and was working there as servant. The story put- forward by PW-1 Gurmit Kaur that she was residing at the Dhani of Sher Singh and was working as servant is highly suspicious and doubtful. She deposed in her statement that her husband was lodged in Central Jail, Ferozepur in an excise case. However, when she was cross-examined, she admitted that she was permanent resident of Jammu Basti, Jalalahad and Dhani of Sher Singh was near Abohar, which was at a distance of 27 miles from Jammu Basti, Jalalabad. She also admitted that she had four daughters and one son. Her daughter, Savtri, is married and her son, aged about 25 years, was residing with her. She admitted that she went to the Dhani of Sher Singh from Jalalahad about 2-3 days prior to the occurrence but when she was cross-examined, she deposed that she neither knew the number of children of Sher Singh nor the names of his wife, father and mother. She even did not know the name of Sarpanch or Panch of the village of Sher Singh. She further deposed that she exactly did not know the place of residence of respondent Nos. 1 and 2. 14. Sher Singh appeared as PW-2, who is the alleged eye witness of the occurrence. He had made the contradictory statement to the effect that prosecutrix Gurmit Kaur was residing in his Dhani for the last two years prior to the occurrence. She was residing at a distance of 10 Karams in the same Haveli from his residential portion and she was on visiting terms in his house. He also admitted that his father, mother and wife were also residing with him. If the prosecutrix was residing with Sher Singh, then she must have known that how many children Sher Singh has and what are the names of his wife, father and mother. Truth come out of the mouth of Sher Singh when he admitted in his cross-examination that prosecutrix occasionally visited his Dhani and that too only during harvesting season to do the labour work. Truth come out of the mouth of Sher Singh when he admitted in his cross-examination that prosecutrix occasionally visited his Dhani and that too only during harvesting season to do the labour work. Sher Singh has not deposed in his statement that prosecutrix had come 2-3 days prior to the occurrence to his Dhani. He further deposed that son of prosecutrix had come to Jalalahad two days prior to the occurrence whereas prosecutrix herself deposed that her son had gone out of station on the fateful day and he returned after three days. However, the prosecutrix did not disclose the occurrence either to her son, husband or any other relative. The learned Additional Sessions Judge has rightly observed as under :- "17. PW-6 Veer Chand, Investigating Officer, categorically deposed that allegations of the prosecutrix were found false. Investigation was also conducted by SHO Mal Singh and DSP Gurmit Singh. They also held enquiry at the spot and, therefore, the FIR was ultimately cancelled. It has come into the statement of the Investigating Officer that after lodging the FIR neither the prosecutrix nor Sher Singh (PW-2) cooperated with him and they even did not show him the place of occurrence despite his best efforts of visiting their houses. It has come out in the cross-examination of the Investigating Officer that he also joined other people residing around the place of occurrence, all of who did not support the occurrence and showed their ignorance. They also disclosed to the investigating officer that the prosecutrix was not residing in the Dhani of Sher Singh. Even the prosecutrix herself deposed that she did not join the investigation and also did not try to contact the police after making statement Ex. P-1. All these factors clearly go to show that the investigating officer in the present case conducted the investigation thoroughly but the alleged occurrence was not proved during the course of his investigation. When such are the circumstances and the other factors discussed above, have also caused dent in the case of prosecution, the cancellation of police case in the facts and circumstances of the present cases goes to the root of the case of prosecution and the testimony of the prosecution and PW-2 Sher Singh cannot be believed". 15. When such are the circumstances and the other factors discussed above, have also caused dent in the case of prosecution, the cancellation of police case in the facts and circumstances of the present cases goes to the root of the case of prosecution and the testimony of the prosecution and PW-2 Sher Singh cannot be believed". 15. The learned Additional Sessions Judge, after scanning the evidence of PW-6 Investigator Veer Chand, had come to the conclusion that the defence put-forth by respondent Nos. 1 and 2 was not probable. In his cross-examination, Veer Chand had admitted that Sukhdev Singh Dhaliwal, who was counsel for the complainant, filed a complaint before the medical examination of the prosecutrix and on the day of medical examination, Sukhdev Singh, Advocate, along with Constable Raj Kumar and Rattan Lal, Gunman of CIA Staff were found present in the hospital along with the prosecutrix at the time her medical examination. He further admitted that both the police officials were deputed by SI Raj Singh of CIA Staff, Abohar, to get the medical examination of the prosecutrix done from the hospital. The learned Additional Sessions Judge has also rightly observed that SI Raj Singh and S.S. Dhaliwal, Advocate as well as PW-2 Sher Singh played a vital role in getting the case registered against respondent Nos. 1 and 2 and in conducting the medical examination of PW-1 Gurmit Kaur. Therefore, from the evidence on record, it is established that this complaint has been filed by Gurmit Kaur PW-1 at the instance of SI Raj Singh as the brother of Subhash, respondent No. 2, had got a case registered against him. Therefore, there is no illegality or infirmity in the impugned judgment passed by learned trial Court. In view of the above discussion, there is no merit in the appeal and the same is hereby dismissed.