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2005 DIGILAW 1140 (PNJ)

Shaukat Hussain v. State Of Punjab

2005-10-28

PRITAM PAL

body2005
Judgment Pritam Pal, J. 1. This appeal by Shaukat Hussain, is directed against judgment and order dated 17.3.2004 whereby, learned Additional Sessions Judge (Fast Track Court), Kapurthala convicted him for commission of offence punishable under Sections 376, 450/149, 380/149, 506 and 148 of the Indian Penal Code (hereinafter referred to as "the Code") and sentenced him as under : - Under Section Sentence 376 IPC To undergo RI for seven years and to pay a fine of Rs. 2000/-. In default of payment of fine 450/149 IPC To undergo RI for five years and to pay a fine of Rs. 1000/-. In default of payment of fine, to undergo further RI for two months. 380/149 IPC To undergo RI for years and to pay a fine of Rs. 500/-. In default of payment of fine, to undergo further RI for two months. 506 IPC To undergo RI for one year and to pay a fine a Rs. 500/-. In default of payment of fine, to undergo further RI for two months. 148 IPC To undergo RI for one year and to pay a fine of Rs. 500/-. In default of payment of fine, to undergo further RI for two months. However, all the aforesaid sentencers were ordered to run concurrently. 2-3 In nut-shell, facts leading to the commencement of this appeal may be recapitulated thus : On 11.1.2002, at about 11.00 PM, in the area of Village Mannawali, Police Station Sadar, Phagwara, District Kapurthala, prosecutrix Santri, a married lady, was present in her hut, situated near the brick-kiln. At that time, two unknown persons had forcibly entered in her hut and then enquired about her neighbour, to which she replied that Rajbir was her neighbour. Those two persons then went to the hut of Rajbir. They asked him (Rajbir) to sit on a cot out-side the hut. In the meantime, 10-12 persons came and entered in her hut. They forcibly had stolen-away her Mangalsutar, Jhajar, one watch, nose- pin and some gold ornaments and cash about of Rs. 2,000/- from her trunk and then they fled away from the spot. However, out of those, three persons remained at the spot and they committed rape upon her one after the other. At that time, they were armed with gandasa and arie. 2,000/- from her trunk and then they fled away from the spot. However, out of those, three persons remained at the spot and they committed rape upon her one after the other. At that time, they were armed with gandasa and arie. After committing the rape, they asked said Rajbir, neighbour of the prosecutrix, not to disclose about the occurrence to any body. In the next morning, she explained the entire incident to Brahampal, Jamadar who further narrated the same to Mohinder Singh, owner of the brick-kiln. Thereupon, Mohinder Singh told that the matter would be solved. When nothing tangible could be done by Mohinder Singh, then after about three months, she made a complaint Ex.PB to the Director General of Police, Punjab, Chandigarh and other police officers in the above narration of facts and the Additional Director General of Police, Punjab, Chandigarh after making his endorsement on the complaint sent the same to the S.S.P., Kapurthala. Thereafter vide letter dated 2.5.2002 (Ex. PA/1), Inspector General of Police, Jalandhar Zone, Jalandhar directed S.S.P. Headquarters to take appropriate action in the matter and then the S.S.P. Kapurthala, directed SHO Sadar Phagwara to register FIR. Thereafter a formal FIR Ex. PA/2 was recorded on 13.5.2002 by ASI Dalbir Singh. Investigation of this case was taken into hand on 17.5.2002 by Sukhraj Singh, ASI (PW-8). He recorded the statement of Mamta, Suresh and Rajdeep. Then on 21.5.2002, he also recorded the statements of Joginder Singh (PW) and ultimately, the appellant was arrested in this case on 24.5.2002. He got medico-legally examined appellant Shaukat Hussain on 26.5.2002 by moving an application Ex. PW8/B. In this case, accused Nos. 2 to 14, as mentioned in the heading of the judgement, could not be arrested and as such, they were got declared Proclaimed Offenders. 4. Challen against the appellant and accused Nos. 2 to 14 was presented in the Court. Thereafter, during the trial, Accused Nos. 15 to 17, namely, Mohinder Singh, Braham Pal and Rajbir were arrayed as accused, after recording the statement of prosecutrix Santri and her husband, Suresh. 5. The appellant was charge-sheeted for commission of offence punishable under Sections 376/380/450/506/148/149 of the Code vide order dated 23.5.2003, whereas, Mohinder Singh, Braham Pal and Rajbir were charge-sheeted for commission of offence punishable under Sections 506/201 of the Code, to which they pleaded not guilty and claimed trial. 6. 5. The appellant was charge-sheeted for commission of offence punishable under Sections 376/380/450/506/148/149 of the Code vide order dated 23.5.2003, whereas, Mohinder Singh, Braham Pal and Rajbir were charge-sheeted for commission of offence punishable under Sections 506/201 of the Code, to which they pleaded not guilty and claimed trial. 6. Prosecution, in order to substantiate its case, examined as many as following nine witnesses, namely, PW-1 Dr. Jaswinder Kaur, Medical Officer, Civil Hospital, Phagwara, he had medico-legally examined one Mamta (PW-6) a witness of this case on 17.5.2002, who is next door neighbour of the prosecutirx. She has not supported the prosecution case; PW-2 Dr. Inderjit Singh, MO, Civil Hospital, Phagwara, she proved X-ray films (Ex. P/1 to P/8) in respect of Mamta (PW6). PW-3 Joginder Singh, SDO, Telephones, he deposed regarding the deployment of labourer; PW-4 Narinder Kumar, Patwari, he proved the scaled site plan Ex. PE of the place of occurrence; PW-5 ASI Baldev Singh, he proved complaint Ex. PA, letter of endorsement Ex. PA/1 and formal FIR Ex. PA/2; PW-6 Mamta is daughter of the next door neighbour, Rajbir, she has not levelled any allegation against the appellant; PW-7 Suresho, mother of Mamta, she has also not stated a word against the appellant; PW-8 ASI Sukhraj Singh, he is the main Investigating Officer in this case and PW-9 Santri, he Prosecutrix. 7. After examining the aforesaid nine witnesses, prosecution closed its evidence. While recording the statement of the appellant under Section 313 of the Code of Criminal Procedure, he denied the entire incriminating evidence appearing against him. In answer to the last question, he submitted as under :- "I am innocent and falsely implicated in this case. I am working as labourer with Jatinder Kumar son of Charan Dass, Contractor. Jatinder Kumar is the mate of labourers and he along with labourers went to Jammu and as per his promise to pay the labour amount, I returned to Punjab on 19.5.2002 and then Jatinder Kumar in connivance with the complaint to grab my amount, this false case has been planted upon me." The appellant led no evidence in his defence. 8 Learned trial Court, after appraisal of the evidence and hearing learned counsel for the parties acquitted Mohinder Singh, Braham Pal and Rajbir of the charges framed against them, whereas, the appellant was convicted and sentenced, as indicated in the opening part of this judgment. 8 Learned trial Court, after appraisal of the evidence and hearing learned counsel for the parties acquitted Mohinder Singh, Braham Pal and Rajbir of the charges framed against them, whereas, the appellant was convicted and sentenced, as indicated in the opening part of this judgment. This is how feeling aggrieved, he has come up in this appeal. 9. I have heard learned counsel for the parties and have gone through the file carefully. 10. The main plank of argument raised on behalf of the appellant is that in this case, the statement of the prosecutrix, who is mother of 16 years old son, is full of contradictions and as such, cannot be relied upon. He then made a reference to her statement, wherein, she had admitted to have made her complaint, Ex.PB, to the higher authorities after three months of occurrence. Thereafter, he assailed the findings of the learned trial Court which have been recorded without appreciating the evidence in its right perspective. At the last leg to his argument, learned counsel for the appellant has submitted that here in this case, the prosecutrix was not medico-legally examined and as such, her statement does not find corroboration from any quarter. At the same time, he also argued that in this case, recovery of stolen property could not be effected but still learned trial Court has convicted and sentenced the appellant for the offences punishable under Section 380 read with Section 149 of the Code. Before concluding his arguments, he referred to the cross- examination of the prosecutrix wherein, she stated that out of the culprits, three persons, who had committed upon her, were in muffled faces. After putting-forth the aforesaid points of arguments, learned counsel for the appellant contended for acquittal of the appellant. 11. On the other hand, Shri Narinder Kapur, learned Assistant Advocate General appearing on behalf of the State of Punjab could not rebut any of the aforesaid points raised on behalf of the appellant. However, he did his best to support the impugned judgement and order passed by the learned trial Court. 12. I have given my holistic view to the above submissions made on behalf of the parties and find that there is a merit in the foresaid contentions put- forward on behalf of the appellant, for the reasons given hereinafter. 13. However, he did his best to support the impugned judgement and order passed by the learned trial Court. 12. I have given my holistic view to the above submissions made on behalf of the parties and find that there is a merit in the foresaid contentions put- forward on behalf of the appellant, for the reasons given hereinafter. 13. At the first place, it is beyond the pale of controversy that here in the instant case, the alleged occurrence had taken place on 11.1.2002 at about 11.00 PM in the hut of Suresh, husband of the proecutrix. It was night time and there is no evidence on the file to show as to whether there was any source of light at that time. The appellant is from the State of Jammu and Kashmir. In the days of occurrence, he was stated to have been employed as a labourer by the contractor, who was laying-down the telephone wires, whereas, the prosecutrix and her husband were the laborers at a brick-kiln of Mohinder Singh, accused (since acquitted). It is also evident from the cross- examination of the prosecutrix that three accused were in muffled faces. According to her allegations, all other co-accused after stealing her ornaments and cash, had fled away from the spot, whereas, three of them had committed rape upon her one-by-one. In her cross-examination, she stated that none of the culprits belonged to her community and the three of them were in muffled faces. According to her, the said three persons had committed rape upon her. Admittedly, no identification parade of the present appellant was got conducted by the police. The appellant, who is admittedly, not of her community, is a resident of Jammu and Kashmir and as such, in the above given facts and circumstance, identification of the appellant, for the first time in the Court, was highly doubtful. Further, the statement of the prosecutrix also appears to be full of contradictions and improvements, wherein, she admitted to have stated in her earlier statement made in the Court as PW-1 on 27.1.2003 that all the accused were in muffled faces. Further, she did not deny that in her applications, Ex.PW-9/A and PW-9/B, she had mentioned regarding identification of accused Shaukat Hussain on the third day of the occurrence. Further, she did not deny that in her applications, Ex.PW-9/A and PW-9/B, she had mentioned regarding identification of accused Shaukat Hussain on the third day of the occurrence. In her further cross-examination, she admitted it to be correct that in her earlier statement, she had mentioned that accused Mohinder Singh had called the police, whereupon all the three accused were called in the police station. Whereas, PW-8 ASI Sukhraj Singh had nowhere stated that if the appellant was identified by the prosecutrix in the Police Station. It is also pertinent to mention here that in this case, PW-6 Mamta, and PW-7 Suresho, who are next door neighbourers of the prosecutrix have not uttered a word against the appellant. Not only that, even her husband, Suresh, who had appeared as PW-2 on 31.3.2003 in this case, had stated a word against the appellant. It would not be out of place to mention here that in this case, no recovery of any articles allegedly stolen from the hut of the prorsecutrix could be effected from the appellant. 14. All these facts and circumstances stated above go a long way to create a dent in the prosecution story. No doubt, in such like cases of rape, accused can be held guilty solely on the statement of the prosecutrix, but before holding a person liable for such an offence, the statement of the prosecutrix must inspire confidence, which is lacking in this case. Here, in the instant case, what to talk of corroboration of her statement from other quarters, the statement of the prosecutrix itself is contradictory and full of embellishments. Faced with such a situation, it is safely held that the learned trial Court has failed to appreciate the evidence consisted in the statement of the prosecutrix in its perspective. In fact, the prosecution has failed to prove its case beyond reasonable doubt against the appellant. 15. In the result, this appeal is allowed. 16. Consequently, the impugned judgement and order are set-aside. The appellant is acquitted of the charges framed against him. The appellant, who is in custody in this case since the date of his arrest, be released forthwith, if not required in any other case.