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2005 DIGILAW 1270 (PNJ)

Sunil Kumar v. State Of Haryana

2005-12-13

MEHTAB S.GILL, PRITAM PAL

body2005
Judgment Pritam Pal, J. 1. This appeal by Sunil Kumar is directed against judgment dated 9.8.2003 and order dated 13.8.2003 whereby he was convicted for commission of offence punishable under Section 452/376 of the Indian Penal Code and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and then sentenced as under :- Offence Sentenced 1. U/s. 452 IPC Rigorous Imprisonment for 3 years and to pay fine of Rs. 1000/-,, in default of payment of fine further RI for 3 months. 2. U/s 376 IPC Rigorous Imprisonment for 10 years and to pay fine of Rs. 5000/-,, in default of payment of fine further RI for 6 months; and 3. U/s 3(2)(v) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act,, 1989. Imprisonment for life with fine of Rs. 10,000/- in default of payment of fine,, further RI for 1 year. 2. In nutshell, facts culminating to the commencement of this appeal may recapitulated thus : Prosecutrix-Smt. Nirmala Devi (23 years) (PW-6) wife of Jaswinder Singh (PW-9) (caste-Chamar) was residing in village Tangori District Kurukshetra. She had a child of 1-1/2 months old. It was on 27.07.1999 at about 12.00 noon that she was sleeping with her child in her house. Sunil Kumar (21 years, Caste Pandit (accused-appellant (hereinafter referred to as "the appellant"), a student, resident of the same village Tangori entered in her house and bolted the door from inside. He then committed sexual inter- course upon her without her consent. She cried and raised an alarm. As no one was present in the neighbourhood, so, no body came to her rescue. However, in the meantime, on hearing the noise, her mother-in-law, (a lame lady) Smt. Kesho Devi (PW-8) came rushing. She called her daughter-in-law and wanted to know as to what happened and why she (prosecutrix) had raised the alarm. The appellant then unbolted the door and came out of the bedroom of the prosecutrix. After giving a push to Smt. Kesho Devi, the appellant fled away from the spot. After the said occurrence, the prosecutrix narrated the whole incident to her mother-in-law, who in turn narrated the same to her other son Roop Chand with whom she was residing. Roop Chand then went to call her husband Jaswinder Singh (PW-9). After giving a push to Smt. Kesho Devi, the appellant fled away from the spot. After the said occurrence, the prosecutrix narrated the whole incident to her mother-in-law, who in turn narrated the same to her other son Roop Chand with whom she was residing. Roop Chand then went to call her husband Jaswinder Singh (PW-9). Thereafter, a Panchayat was held, but no justice was done to her and so it was on 28.7.1999 that the prosecutrix in the company of her mother- in-law and husband went to the Police Station, Ismailabad. There, she met ASI Mohinder Singh (PW-10) and then handed over her complaint Ex.PD in the above narration of the facts whereupon, ASI Mohinder Singh (PW-10) made his endorsement Ex. PD/3 at 1.50 AM. Ultimately, a formal FIR Ex. PD/4, under Sections 376/452 IPC was recorded vide Daily Diary No. 30 dated 28.7.1999. After that, ASI Mohinder Singh (PW-10) took the investigation of this case in his hand. First of all, he got the prosecutrix medico-legally examined in LNJP Hospital at Kurukshetra. Then, he left for the village of the prosecutrix and inspected the place of occurrence. He prepared rough site plan Ex. PH with correct marginal notes in his hand. On the same day, i.e., 28.7.1999, he also recorded the statements under Section 161 of the Code of Criminal Procedure of Roop Chand, Jaswinder Singh and Kesho Devi, PWs. 3. The appellant was arrested in this case on 29.7.1999 and was got medico- legally examined. On return to the Police Station, case property and clothes of the prosecutrix and that of the appellant were deposited with MHC. After completion of the formal investigation of the case, report under Section 173 of the Code of Criminal Procedure was prepared by SI/SHO Bansi Lal, Police Station, Ismailabad. 4. The appellant was charge-sheeted, for commission of offence punishable under Section 452/376 of the Indian Penal Code and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, vide order 4.1.2000, by the Presiding Officer, Special Court, Kuruskshetra, to which he pleaded not guilty and claimed trial. 5. 4. The appellant was charge-sheeted, for commission of offence punishable under Section 452/376 of the Indian Penal Code and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, vide order 4.1.2000, by the Presiding Officer, Special Court, Kuruskshetra, to which he pleaded not guilty and claimed trial. 5. Prosecution, in order to substantiate its case, examined as many as 11 witnesses, namely, PW-1 Inspector Bansi Lal, on completion of investigation, he had submitted the final report under Section 173 Cr.P.C.; PW-2 HC Basau Ram, he tendered into evidence his affidavit PA to prove the link evidence; PW-3 Const. Inderjeet Singh, he proved his affidavit, Ex.PB; PW-4 Constable Swaran Singh, he had taken the Special Report to the Ilaqa Judicial Magistrate; PW-5 Const. Sandeep Kumar, he prepared scaled site-plan Ex. PC of the place of occurrence; PW-6 Nirmala Devi, prosecutrix, PW-7 Dr. Shushma Saini, District Training Officer, on 28.7.1999, she medico-legally examined the prosecutrix at 7.30 AM vide MLR Ex. PE/1; PW-8 Kesho Devi, she is mother- in-law of the Prosecutrix. She had seen the appellant running away from the spot; PW-9 Jaswinder Singh, he is husband of the prosecutrix. After the occurrence, he was informed in the fields about the incident by his brother Roop Chand; PW-10 ASI Mohiner Singh, he is the Investigating Officer in this case. Role assigned to him has been given while narrating the prosecution story; PW-11 Dr. Yogesh Kumar, Medical Officer, he found the appellant capable of doing sexual intercourse vide MLR Ex. PL. 6. After closure of the prosecution evidence, the appellant was examined in terms of Section 313 of the Code of Criminal Procedure and all the incriminating evidence appearing against him was put to him, but he denied the same in toto. 7. In his defence, he examined DW-1, Chand Ram, Ahlmad, he proved the Calandra dated 3.2.2002, Ex. DF, prepared under Section 109/41(2) of the Code of Criminal Procedure. The appellant in his statement recorded on 3.7.2002 tendered into evidence letters mark K and U in his defence; DW-2 V.K. Garg, Advocate-cum-Notary Public, he proved the affidavit Ex. DG of the prosecutrix; DW-3 Laxman Dass, Photographer, he proved photographs Ex. DH taken by him on 8.9.2002 and negatives thereof as Ex. DH/1. Appellant also tendered into evidence copy of the order dated 4.2.2002 as Ex. DJ, copy of order dated 7.2.2002 as Ex. DG of the prosecutrix; DW-3 Laxman Dass, Photographer, he proved photographs Ex. DH taken by him on 8.9.2002 and negatives thereof as Ex. DH/1. Appellant also tendered into evidence copy of the order dated 4.2.2002 as Ex. DJ, copy of order dated 7.2.2002 as Ex. DJ/1, copy of order dated 9.4.2002 as Ex. DJ/2 and copy of order dated 21.8.2002 as Ex. DJ/3 passed by the S.D.M. Pehowa; DW-4 Ramesh Kumar, he has also proved photographs Ex. DK/2 and negative thereof Ex. DK and DK/1 and the bill Ex. DK/3; DW/5 Birbal Singh, Warder, District Jail, Kurukshetra, he proved that on 11.10.1999 and 3.11.1999 one lady, namely, Nirmala wife of Binder had come to meet Sunil son of Om Parkash, who was lodged in the District Jail, Kurukshetra. 8. Learned trial court after hearing learned counsel for the parties and going through the evidence, convicted and sentenced the appellant as indicated in the opening part of this judgment. This is how feeling aggrieved, the appellant has come up in this appeal. 9. We have heard Shri H.S. Gill, learned Senior counsel for the appellant, Shri S.K. Garg Narwana, Additional Advocate General, for the State of Haryana and have carefully gone through the record with their assistance. 10. At the outset of his arguments, learned senior counsel for the appellant submitted that the evidence led by the prosecution in this case should be viewed after taking into consideration the back-ground of this case, wherein enmity of the complainant-party with him (appellant) is admitted in the statement of PW8 Kesho Devi. Further, it was also submitted that in fact, there was love-affairs between the prosecutrix and the appellant prior to the alleged occurrence of this case, but the prosecutrix under the influence and pressure of her husband PW-9 Jaswinder Singh and her mother-in-law PW-8 Kesho Devi, has deposed against the appellant. In order to buttress his aforesaid points of arguments, he made reference to the in-land letters written by the Prosecutrix to the parents of the appellant, record of her visits in the jail to meet the appellant and also the photographs Ex. DH and DK/2 At the same time, learned counsel for the appellant also made reference to Ex. DF, a police Calendra dated 3.2.2002 under Section 109/41(2) Cr.P.C. and the orders Ex. DH and DK/2 At the same time, learned counsel for the appellant also made reference to Ex. DF, a police Calendra dated 3.2.2002 under Section 109/41(2) Cr.P.C. and the orders Ex. DJ, DJ/1, DJ/2 and DJ/3 passed thereon by the Sub Divisional Magistrate, Pehowa, which indicate that both of them were arrested while roaming in suspicious circumstances in order to commit some immoral act during the pendency of this case before the learned trial Court. Further, he also made reference to the copy of order dated 10.5.2005 passed in HMA Case No. 56 of 2004 titled as Nirmla Devi v. Jaswinder Singh, whereby she was ultimately found entitled to obtain a decree of divorce against her husband on the ground of cruelty. At the last leg of his argument, learned counsel for the appellant also pointed out material contradictions and improvements made by the star- witnesses, namely, PW-6 Nirmla Devi, PW-8 Kesho Devi and PW-9 Jaswinder Singh and then also submitted that there was also no mark of injury on either side i.e., on the person of the prosecutrix or the appellant. On his aforesaid points of arguments, he vehemently contended for the acquittal of the appellant. 11. On the other hand, learned Additional Advocate General, Haryana made reference to the statement of PW-6 Nirmla Devi, Prosecutrix and PW-8 Kesho Devi and then argued that they both have deposed that the appellant had trespassed the house of the complainant-party and then committed rape upon the prosecutrix, who belongs to Scheduled Caste. He then supported the impugned judgment and order passed by the learned trial Court. 12. We have given our holistic view to the rival contentions raised on behalf of the parties and find force in the points put-forth on behalf of the appellant for the reasons given hereinafter. 13. It is evident on the file that PW-9 Jaswinder Singh, who is the husband of the prosecutrix, along with his brother Roop Chand was tried and convicted for committing murder of one Lekhu of Village Birjapur. The uncle and relations of Sunil Kumar-appellant had helped the complainant party in that case. Thus, for that reason, the complainant party of the case in hand was nourishing grudge against the family members of the appellant. In this back-drop of the facts, we have to appreciate the prosecution evidence with great caution. The uncle and relations of Sunil Kumar-appellant had helped the complainant party in that case. Thus, for that reason, the complainant party of the case in hand was nourishing grudge against the family members of the appellant. In this back-drop of the facts, we have to appreciate the prosecution evidence with great caution. No doubt, the prosecutrix while appearing as PW-6 did her best to support the prosecution case, but in her cross-examination, she could not stand the test to her veracity. Before that, she was also declared hostile on the request of learned Public Prosecutor when she had stated that no such application (Ex. PD) in writing was given by her to the police for registration of the case. In fact, the application, Ex. PD which formed the basis of registration of this case, was written by one Lala, maternal uncle of PW-9 Jaswinder Singh. The said application is thumb-marked by the prosecutrix, whereas, she is proved to have studied upto 6th standard. The aforesaid application is shown to have been made to the police at 1.50 AM on 28.07.1999 and thereafter her M.L.R. Ex. PE/1 was conducted at 7.30 AM, whereas, in her cross-examination, the prosecutrix categorically deposed that the said application was in fact written after her medical examination, by Lala, who was sitting by her side. In her further cross-examination, she denied to have participated in the Panchayat, which was held before the registration of the case, whereas, PW-8 Kesho Devi deposed that she along with Nirmla Devi (PW-6) had attended the said Panchayat which was convened in the baithak of Pal, Harijan. According to PW-9 Jaswinder Singh, the Panchayat was held joint baithak of their families. Further, according to him, Sarpanch and Vice Sarpanch had not attended the Panchayat, whereas, PW-8 Kesho Devi stated that Sarpanch Gulzar Singh and Gulzaro Devi, Vice Sarpanch had also attended the Panchayat. A close scrutiny of the statement of the prosecutrix further also indicates that in her statement, she also made some embellishments/improvements vis-a-vis the contents contained in her application, Ex.PD. 14. We also take notice of the contents of Calendra, Ex. DF, dated 3.2.2002 under Section 109/41(2) Cr.P.C. and orders Ex. DJ, DJ/1, DJ/2 and DJ/3 passed thereon by the learned Sub Divisional Magistrate, Pehowa. 14. We also take notice of the contents of Calendra, Ex. DF, dated 3.2.2002 under Section 109/41(2) Cr.P.C. and orders Ex. DJ, DJ/1, DJ/2 and DJ/3 passed thereon by the learned Sub Divisional Magistrate, Pehowa. From these documents, it is apparent that on 3.2.2002, the prosecutrix and the appellant were found together while entering in a Warehouse of village Iamailabad. At that time, they both were roaming around to commit some immoral act. Ultimately, they were arrested and sent to judicial custody. The prosecutrix is proved to have been kept in judicial custody from 3.2.2002 to 9.4.2002 in Central Jail, Ambala, whereas, the appellant also remained in judicial custody in the District Jail at Kurukshetra upto 7.2.2002. During this aforesaid period of her custody, she is proved to have written two in-land letters mark K dated 23.3.2002 and mark L dated 11.2.2002 to the parents of the appellants. Not only that, during the pendency of this case before the learned trial Court, it is also well proved in the statement of DW-5 Birbal Singh, Warder of District Jail. Kurukshetra that the prosecutrix had visited the said jail to meet the appellant on 11.10.1999 and 3.11.1999. 15. Further, a perusal of the affidavit Ex. DG, dated 3.11.1999, proved in the statement of DW-2 V.K. Garg, Advocate-cum-Notary Public goes a long way to show that the prosecutrix was under the influence and pressure of her husband, PW-9 Jaswinder Singh and PW-8 Kesho Devi for deposing against the appellant. 16. Further it is well established that no injury of any kind was found by PW-7 Dr. Shushma Saini and PW-11 Dr. Yogesh Kumar on the person of the prosecutrix and the appellant respectively. The occurrence is alleged to have taken place in a day time in the house of the prosecutrix. Her house is admittedly surrounded by other respondent residential houses of the co- villagers. The house of the appellant is also situated in the same vicinity. In these circumstances, it is unbelievable that inspite of her raising the alarm none had reached at the spot from the neighbourhood. At this place, it would also be pertinent to mention that at the time of her medico-legal examination, the prosecutrix did not give the name of the appellant as having committed rape upon her. In these circumstances, it is unbelievable that inspite of her raising the alarm none had reached at the spot from the neighbourhood. At this place, it would also be pertinent to mention that at the time of her medico-legal examination, the prosecutrix did not give the name of the appellant as having committed rape upon her. The only word written in the column relating to the history of the incidence are that some one had forcible intercourse with her. 17. In the light of these aforesaid glaring short-comings and discrepancy/contradictions of the prosecution case, as discussed above, we hold that the statements of PW-6 Nirmla Devi, PW-8 Kesho Devi and PW-9 Jaswinder Singh do not inspire confidence. Thus, the learned trial Court is also held to have not appreciated the evidence and other material brought on the file in its right perspective. Further, we observe here that the learned trial Court has convicted and sentenced the appellant simply on the ground that the hand-writing contained in the letters mark A to L did not appear to be that of the prosecutrix and this observation has been made by it without taking any expert opinion on the file. No doubt, there is no legal bar to the Judge using his eyes, but he (Judge) should hesitate to base his finding with regard to the identity of handwriting solely on comparison made by him, more so when the quality of relevant evidence and evidence in respect of specimen/admitted writings is not of high standard. 18. It is well settled that as a matter of extreme caution and judicial sobriety, the Court should not normally take upon itself the responsibility of comparing the disputed signatures with that of admitted signatures or handwritings and in the event of slightest doubt, leave the matter to the wisdom of the experts. At this place, it may be mentioned that in the instant case, an application for comparison of disputed handwritings/signatures with that of the specimen handwriting of the prosecutrix was made before the learned trial Court, but the same was declined which also resulted into mis- carriage of justice in the given facts and circumstances of this case. 19. In the premises aforesaid, we have no hesitation to hold that the prosecution has not been able to bring home the guilt to the appellant beyond any reasonable doubt. 19. In the premises aforesaid, we have no hesitation to hold that the prosecution has not been able to bring home the guilt to the appellant beyond any reasonable doubt. Hence, the impugned judgment and order passed by the learned trial Court are hereby set-aside and the appellant is acquitted. 20. In the result, this appeal it allowed. The appellant, who is lodged in the jail, be released forthwith, if not required in any other case.