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2007 DIGILAW 137 (PNJ)

Kamaljit Singh v. State Of Punjab

2007-01-24

T.P.S.MANN

body2007
Judgment T.P.S.Mann, J. 1. Vide judgment and order dated 9.11.1993, learned Additional Sessions Judge, Amritsat convicted and sentenced the appellant as under : Offence Sentence of Imprisonment Sentence of fine Sentence in default of payment of fine Section 376 IPC RI for Five years Rs, 1000/- Section 506 IPC RI for One year - - Section 342 IPC RI for One year - - All the sentences of imprisonment were ordered to run concurrently. 2. The incident in question was alleged to have taken place on 1.11.1992 at about 10.00 AM, when the prosecutrix, a married lady and aged 28/29 years, went with her ten years old daughter to the house of appellant in Nehru Gali, Tarn Taran. The appellant was working as a doctor (dispenser) in Government Dispensary. The daughter of the prosecutrix had been suffering from skin disease and for that the prosecutrix along with her daughter and her husband had been going to his clinic. However, the accused said that he would test the blood of the mother of the girl before giving any treatment to the girl, but he would conduct the blood test in a room of his residential house. Consequently, the prosecutrix and her daughter went to the appellant at his residence. He sent the daughter outside the room and said that he would check the prosecutrix. He asked her to remove her salwar for checking purposes. When told by the prosecutrix that she would not remove the salwar, he threatened her that if she did not do so, he would kill her by giving an injection. The appellant then removed her salwar and committed rape. She raised an alarm. Her daughter sitting outside started weeping. In the meantime, her husband came and pushed open the door. However, the appellant managed to run away through the said door. The prosecutrix along with her daughter and husband proceeded towards the Police Station. They came across SI Balbir Singh, who recorded her statement Ex.PG on the same day at 12.30 PM, on the basis of which formal F.I.R Ex.PG/1 was recorded in Police Station City, Tarn Taran on 1.11.1992 at 1245 PM. 3. After recording statement Ex.PG SI Balbir Singh visited the house of the accused and prepared rough site plan Ex.PH. Salwar of the prosecutrix was taken into possession vide memo Ex.PE. 3. After recording statement Ex.PG SI Balbir Singh visited the house of the accused and prepared rough site plan Ex.PH. Salwar of the prosecutrix was taken into possession vide memo Ex.PE. A bed-sheet was also taken into possession and so also one torn cloth stained with semen vide recovery memo Ex.PE. The prosecutrix was got medico-legally examined. The accused was arrested on 17.11.1992. On completion of the investigation, final report under Section 173 Cr.P.C was submitted against the accused. 4. On 27.2.1993, learned Additional Sessions Judge, Amritsar framed charges against the appellant for the aforementioned offences, to which the accused pleaded not guilty and claimed trial. 5. In support of its case, the prosecution produced Dr Haripal Kaur PW-1, who was posted as Medical Officer, Civil Hospital, Tarn Taran. On 1.11.1992, she had examined the prosecutrix at 6.15 PM. There were no signs of struggle, no scratches and no bruises over any part of the body including, external genitalia. After receiving report of Chemical Examiner Ex.PB, she gave her report Ex.PC, stating therein that spermatozoa have been found in one of the vaginal swabs. However, this witness could not say definitely if the patient was subjected to sexual intercourse immediately before the examination. Dr Parmodh Kumar PW-2 had given opinion Ex.PD/1 that the appellant was able to do intercourse. 6. The prosecutrix appeared as PW-3, whereas her husband was examined as PW-4. Both of them corroborated the case of the prosecution. SI Resham Singh PW-5 proved the formal FIR. Investigation part of the prosecution case was deposed to by SI Balbir Singh PW-6. After tendering affidavit of MHC Balkar Singh into evidence, learned Public Prosecutor closed the prosecution evidence on 13.10.1993. 7. When examined under Section 313 Cr.P.C, the appellant denied the correctness of the prosecution allegations. He stated that it was a false case and the PWs had deposed falsely against him. However, the accused did not lead any defence evidence. 8. The trial Court believed the prosecution version and convicted and sentenced the appellant as mentioned above. Hence, the present appeal. 9. I have heard learned counsel for the parties and examined the entire evidence and documents minutely. 10. The case of the prosecution is that after sending the daughter of the prosecutrix outside the room, the accused closed the door and told the prosecutrix to put off her clothes. Hence, the present appeal. 9. I have heard learned counsel for the parties and examined the entire evidence and documents minutely. 10. The case of the prosecution is that after sending the daughter of the prosecutrix outside the room, the accused closed the door and told the prosecutrix to put off her clothes. When she refused to do the same, the accused threatened to kill her by giving an injection. In her cross- examination, the prosecutrix stated that some injection and medicines were lying in the room of the accused. The accused had filled the syringe with medicine. However, when she went to the police, the injection was not lying there. Her husband while appearing as PW-4 also stated that when the police visited the spot, he did not see any syringe there, but medicines were lying there. SI Balbir Singh PW-6 categorically stated that he did not see any syringe filled with medicine, nor he took into possession any such thing. Under these circumstances, the plea of the prosecution that the prosecutrix was threatened of being killed by giving an injection is not corroborated by any material available on the file. In her statement Ex.PG, the prosecutrix did not state that she offered resistance to the accused, when the latter was committing rape upon her. However while appearing as PW-3, she stated that she had tried to free herself when the accused tried to commit rape upon her. She had received marks of violence on her body. Swelling had appeared on her private parts and bleeding had started. She also stated that she had shown the injuries on her person and swelling on her body to the doctor, when she was medico-legally examined. She also showed bleeding from her private parts to the doctor. However, a perusal of the statement of Dr. Haripal Kaur PW-1 reveals that there were no signs of struggle, no scratches and no bruises over any part of the body including external genitalia of the prosecutrix. The alleged incident had taken place at 10.00 AM on 1.11.1992. The same evening at 6.15 PM, the prosecutrix was medico-legally examined by Dr Haripal Kaur PW-1. Only about eight hours had elapsed since the occurrence. In case, the prosecutrix had received marks of violence and her private parts getting swollen and bleeding starting, these signs would not have disappeared in such a short time. 11. The same evening at 6.15 PM, the prosecutrix was medico-legally examined by Dr Haripal Kaur PW-1. Only about eight hours had elapsed since the occurrence. In case, the prosecutrix had received marks of violence and her private parts getting swollen and bleeding starting, these signs would not have disappeared in such a short time. 11. Though as per the report Ex.PB of Chemical Examiner and report Ex.PC of Dr. Haripal Kaur PW-1, spermatozoa were found in one of the vaginal swabs, yet that is not a conclusive evidence to show that the prosecutrix was subjected to forcible sexual intercourse by the accused. The prosecutrix was a married lady. Her husband, who was earlier residing in Hong Kong had come back to his house in Tarn Taran and staying with her. Even on the basis of medico-legal examination of the prosecutrix, Dr. Haripal Kaur PW-1 could not say definitely as to whether the prosecutrix was subjected to sexual intercourse immediately before her examination. When there was no definite opinion given by the doctor that the prosecutrix had been subjected to rape, it is not safe to convict and sentence the accused for such an offence. Even otherwise, from the facts and circumstances of the case, there is no material to show that the prosecutrix had been subjected to sexual intercourse by the accused, much-less rape. The prosecution has tried to establish the commission of rape by recovering one chaddar Ex.P-2 and one piece of cloth. Both these articles were taken into possession vide recovery memo Ex.PF. Similarly, the salwar Ex.P-1 of the prosecutrix was taken into possession by the police vide recovery memo Ex.PE. As per the aforementioned recovery memos chaddar Ex.P-2 and salwar Ex.P-1 were having semen stains on them. Both these articles were not sent to the Chemical Examiner for getting expert opinion. What was sent to the Chemical Examiner were only two vaginal swabs. As such, it cannot be established that the salwar Ex.P-1 and chaddar Ex.P-2 had any semen stains on them. As per the case of the prosecution, when the accused was committing rape on the prosecutrix, she raised an alarm, which attracted her husband to the spot. He pushed the door open and then the accused ran away. As such, it cannot be established that the salwar Ex.P-1 and chaddar Ex.P-2 had any semen stains on them. As per the case of the prosecution, when the accused was committing rape on the prosecutrix, she raised an alarm, which attracted her husband to the spot. He pushed the door open and then the accused ran away. If such an incident, as is claimed by the prosecution, had taken place and the husband had heard his wife raising alarm, he would not have allowed the appellant to run away from the spot. Even otherwise, it is a strange coincidence that the husband of the prosecutrix makes his appearance at the spot, when the accused was committing rape upon his wife. He had not earlier accompanied his wife to the house of the accused. According to him, he sent his wife and the daughter to the house of the accused by telling that he would be coming after some time. Even if the presence of the husband of the prosecutrix is accepted, it can be termed as chance presence. However, keeping in view the totality of facts and circumstances of the case, it is not established that any such incident, as alleged by the prosecution had taken place. 12. In view of the above, it is not safe to rely upon the case of the prosecution so as to return a finding of guilt against the accused. Consequently, the appeal is accepted. The conviction and sentence of the appellant is set aside and he is acquitted of the charges against him.