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2009 DIGILAW 395 (PNJ)

Sugar v. State of Haryana

2009-02-25

HARBANS LAL

body2009
JUDGMENT HARBANS LAL, J 1. This appeal is directed against judgment dated 19.3.1998/ order of sentence dated 20.3.1998 passed by the Court of learned Additional Sessions Judge, Faridabad, whereby he convicted and sentenced the accused Sugar, Kalu @ Pehlad and Aidal to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs.4,000/- each under Section 376(2) (g) of IPC and in default of payment of the same, the defaulter to further undergo imprisonment for four months and also sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,000/-each under Section 506 of IPC and in default of payment of the same, the defaulter to further undergo imprisonment for one month with a further direction that the substantive sentences of all these accused shall run concurrently. 2. Tersely put, the facts of the prosecution case are that on the intervening night of 29/30.8.1996 at about 12:30 midnight, the prosecutrix X (name of the victim to prevent her social victimisation is not being indicated in view of Premia alias Prem Parkash v. State of Rajasthan, 2008(4) Recent Criminal Reports (Criminal) 539 (Supreme Court)) wife of Pohap Singh along with her children was asleep at a tubewell, when her husband was away to some work. On hearing some voice, she saw Aidal, Sugar and Kalu accused standing close to her cot. Kalu was armed with a pistol. They all three threatened her that if she raised alarm, she will be done to death. First of all, Sugar accused and thereafter Aidal and Kalu one by one committed rape on her. Her husband being not there, she narrated this occurrence to her husband's brother Satpal's wife, who conveyed the same, in turn, to her husband. She apprised her own husband about this occurrence on his return to home in the evening. When the prosecutrix, her husband and her husband's brother were on their way to the police station, they came across ASI Sukhbir Singh, whom she delivered application. This ASI by making endorsement on it, got registered the case. In due course of time, the accused were arrested. After completion of investigation, the charge-sheet was laid in the Court of learned Illaqa Magistrate, who committed the same to the Court of Sessions for trial of the accused. 3. This ASI by making endorsement on it, got registered the case. In due course of time, the accused were arrested. After completion of investigation, the charge-sheet was laid in the Court of learned Illaqa Magistrate, who committed the same to the Court of Sessions for trial of the accused. 3. The accused Sugar, Kalu alias Pehlad and Aidal were charged under Section 376(2)(g) and 506 of IPC to which they did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined Dr. S.S. Yadav PW1, Durg Pal Head Constable PW2, Babu Lal Patwari PW3, Dr. Vinita Singh PW4, Dr. Subhash Chander PW5, Prem Singh Assistant Sub Inspector PW6, Satya Narain SI/SHO PW7, Dr. Amar Bajaj PW8, the prosecutrix X PW9, her husband Pohap Singh PW10, Ram Kishan Head Constable PW11, Sukhbir Singh SI PW12, Sohan Lal PW13 and closed its evidence by tendering the FSL report Ex.PX and by giving up Satpal, Smt. Rajwati and Smt. Kela as having been won over by the accused. 4. When examined under Section 313 of Cr.P.C, all the three accused denied the incriminating circumstances appearing in the prosecution evidence against them. The accused Pehlad has come up with the plea that “The present case has been fastened upon us by the complainant party in collusion with Satya Narain SI/SHO. In a case Ranbir Vs. Satender Pal about the dispute over agricultural land, Sugar and Ranbir were arrested falsely. A complaint was made against SI Satya Narain by Ranbir and Sugar accused to SP, Faridabad on 7.9.1996 and to the Hon'ble Chief Justice of India on 9.8.1996. Satya Narain PW was having a grudge against us and on that account, he colluded with the complainant party and implicated us falsely in this case. Basanti is habitual of making false report. I am innocent.” His co-accused have adopted a similar plea. 5. After hearing the learned public prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced all the three accused as noticed at the outset. Feeling aggrieved with their conviction/ sentence, they have preferred this appeal. 6. I have heard the learned counsel for the parties and perused the record with due care and circumspection. 7. Mr. Feeling aggrieved with their conviction/ sentence, they have preferred this appeal. 6. I have heard the learned counsel for the parties and perused the record with due care and circumspection. 7. Mr. Deepender Singh, Advocate appearing on behalf of the appellants urged with a good deal of force that as per the statement of the prosecutrix, she did not know any of the appellants prior to the incident nor she knew their names and their parentage and to add further to it, they were not made to join any test identification parade. Their identification in the Court for the first time after about a year of the incidence carries no evidentiary value. Thus to say the least of it, their identity has not been established. He further agitated at the bar that there was inordinate and unexplained delay of as many as 48 hours in reporting the alleged incidence to the police. This delay assumes greater importance in view of the fact that the appellants were unknown to the prosecutrix. The medical evidence further drives a nail in the coffin of the prosecution as according to Dr. Vinita Singh PW4, who had medico legally examined the prosecutrix has testified in no uncertain terms that “On local examination, I found no mark of injury over labia majora, lavia minora, clitorous, perinium, vaginal intrortous. There was no mark of injury over thigh and breast. Per vaginal examination, vagina admitted two fingers easily. Uterus was of normal size.” 8. Furthermore, as surfaces in the cross-examination of this Doctor, if a married woman also is subjected to rape, one after the other, by three persons, lacerations in the vagina and swelling which expected, whereas these were missing on medical examination of the prosecutrix. Thus obviously, even medical evidence impairs the prosecution version. This apart, there are vital discrepancies with regards to the lodging of the FIR. One version coming forth is that the prosecutrix had made statement before the Police Officer. The other one is that an application was given to the Investigator regarding this incidence. As per FSL report, Ex.PX, human semen was not detected on the swabs, which further nullifies the story proffered by the prosecutrix. One version coming forth is that the prosecutrix had made statement before the Police Officer. The other one is that an application was given to the Investigator regarding this incidence. As per FSL report, Ex.PX, human semen was not detected on the swabs, which further nullifies the story proffered by the prosecutrix. To the utter dismay of the prosecution, she has admitted in her cross-examination that she had made a report against Kanda Singh Pehalwan son of Hukam Singh under Section 376 of IPC alleging that he had committed rape on her and she had compromised the matter with him in the police station. Nay this, as emerges out of the cross-examination of SI Satya Narain PW7, he was hostile towards the appellants. When these lacunae in the prosecution case are put together, it comes out that the appellants have been roped in this case falsely. 9. Mr. Vashist countered these arguments by urging with great eloquence that the appellants have been named with specificity in the FIR, which adequately establishes their identity. He further canvassed at the bar that as per the FSL report, the semen was detected on the peticot as well as the underwear of the prosecutrix. This concludes the commission of this offence. I am unable to persuade myself to agree with these submissions for the discussion to follow hereunder:- 10. Primarily, determination of identity of the appellants is required. It is apt to be borne in mind that the occurrence took place on the intervening night of 29/30th August, 1996 around 12/12:30 P.M. As per the FIR, Ex.PK/2, the matter was reported to the police on 2.9.1996 around 3:10 P.M. Palpably unexplained delay exceeding 48 hours has been allowed to creep in. It is in the cross-examination of the prosecutrix X that “I did not know Sugad (referring to the accused) since before the incidence. I did not know Kalu either. However, since Kalu used to pass through the passage and used to live at the tubewell therefore, I used to see him. I do not know Edal accused either. I came to know that Hukam Singh was the name of the father of Kalu after this occurrence. I came to know of this fact after the report had been lodged and the police started visiting my house. I do not know Edal accused either. I came to know that Hukam Singh was the name of the father of Kalu after this occurrence. I came to know of this fact after the report had been lodged and the police started visiting my house. Similarly, in the same fashion and manner I came to know about the parentage of Sugad and Edal. I do now know if Kalu is known by any other name.” This evidence speaks volume of the fact that the accused-appellants were not known to her before this occurrence. She came to know about their names as well as parentage after the occurrence. It gives an inkling that the interregnum of more than 48 hours was cashed in on holding discussions, due deliberations and confabulations as to who was to be dragged or involved. If she was non-cognizant of their names/ parentage, how the same figured in the F.I.R, has been left in the womb of mystery. It is in her further cross-examination that “I came to know the name of Sugad accused after the incident when Kalu exclaimed that Sugad “let us run” I had stated this fact in my report.” When she was confronted with her statement Ex.PK, it was not found so recorded therein. It is in her further cross-examination that “I came to know the name of Edal in the similar manner, and, I had similarly stated this fact in my report Ex.PK.” On being confronted with Ex.PK, it was not found so recorded therein. She wipes out the identification of all the three accused-appellants by stating in her further cross-examination that “Since my mouth was gagged and a cloth was put on my face, therefore, I was not in a position to identify the accused and, therefore, the police did not call me for identifying my assaulters.” If her face was covered with a cloth and it was night time, by no process of reasoning, it can be assumed that she had seen their faces and kept a mental note of their identifying features. Of course, in terms of Daya Singh v. State of Haryana, 2001 Criminal Law Journal 1268 Supreme Court “it is to be borne in mind that the purpose of test identification is to have corroboration to the evidence of the eye witnesses in the form of earlier identification and that substantive evidence of a witness is the evidence in the Court. If that evidence is found to be reliable then passing of corroboration by the test identification would not be in any way material.” But herein it is own evidence of the prosecutrix that her face lay covered with a cloth at the time of occurrence. If it was so, where was the opportunity for her to impress upon her mind their physical description. Palpably, the prosecution has not brought on the record, the reasons for gaining an enduring impression of the identity of the accused-appellants on the mind and memories of the prosecutrix. The prosecutrix has further spilled the beans by deposing in her further cross-examination that “I had made a report against Kanda Singh Pehalwan son of Hukam Singh under Section 376 IPC, alleging that he had raped me. I had compromised the matter in the police station.” It is inferable from this piece of evidence that the prosecutrix is in the habit of falsely implicating persons, may be with an end in view to extort money from them. 11. Towards the end of her cross-examination, she has testified that “On the last date of hearing, Satya Narain SI tutored me my statement.” It is thus clear and unambiguous that as a matter of fact, she spoke in the Court, whatsoever was tutored to her by the Investigator SI Satya Narain. 12. It is in her cross-examination that “Externally, I also received injury in my elbow as I got three scratches and skin was peeled off. I also received injury internally as I suffered swelling. Because of repeated sexual assaults, I received bleeding injuries on my private part and remained sore for a number of days. I was examined by Doctor. after a gap of one night. I had shown all my injuries to the doctor.” At this juncture, reference to the medical evidence tendered by Dr. Vinita Singh PW4 is necessitated. Because of repeated sexual assaults, I received bleeding injuries on my private part and remained sore for a number of days. I was examined by Doctor. after a gap of one night. I had shown all my injuries to the doctor.” At this juncture, reference to the medical evidence tendered by Dr. Vinita Singh PW4 is necessitated. Her evidence reads as under:- “On 2.9.96, at about 5:30 P.M., I medico legally examined Basanti wife of Pohap Singh, age 25 years, female, r/o Chhainsa, who was brought by Sukhbir Singh Constable No.1184. As per history given by patient, there was no history of sexual intercourse with husband for 20 days although she has had three children and the youngest was 9 month old. found the following injuries on her person: Abrasion over ring finger at 2nd inter-phalangeal joint. There was crust formation over margins, in centre of wound. There were healthy pink granulation tissues present. Size of the wound was ½ cm x 1/8th cm. Upto sub-cutaneous tissue. On local examination, I found no mark of injury over labia majora, labia minora, clitorous, perinium, vaginal introitous. There was no mark of injury over thigh and breast. Per vaginal examination-vagina admitted two fingers easily. Uterus was of normal size. Vaginal swabs was prepared, sealed and handed over to the police and forensic examination. The injury was simple in nature caused by blunt weapon within a duration of more than 48 hours. The patient was married, but the possibility of sexual intercourse could be ruled out. Ex.PD is the correct carbon copy of the MLR which is in my hand and bears my signatures. Ex.PD/1 is the police application for medico legal examination of the patient. XXX Cross-examination by S/Sh. Suresh Sharma, Yogesh Sharma and C.S. Sharma, Advocates for the accused. It is correct that in the MLR it is not mentioned that the patient has given any history of rape but I remember that she had so given. It is incorrect to suggest that no such history was given and I am improving upon my MLR to toe the line of prosecution. It is also correct that there is no mention in the MLR about my taking over the clothes of the prosecutrix for chemical examination but I recollect that I had given the clothes also. It is incorrect to suggest that no such history was given and I am improving upon my MLR to toe the line of prosecution. It is also correct that there is no mention in the MLR about my taking over the clothes of the prosecutrix for chemical examination but I recollect that I had given the clothes also. The abrasion found on the person of Basanti was a superficial injury on barnacle part of the body and could have been self suffered or self inflicted. Now, I recollect that I had mentioned the fact of clothes being handed over to the police in the MLR also and made an endorsement on one side of the MLR. I did not come across any evidence during my examination of the patient Basanti which could suggest that her person had been violated against her wishes. In fact, I did not come across any evidence even to suggest even indulgence in sexual activity in the recent past. If a woman against whom no sexual assault has taken place is brought before me, I would record the same kind of findings that I recorded in this case after examining Basanti. If a married woman also is subjected to rape, one after the other by three persons, lacerations in the vagina and swelling are expected but only in recent cases. In this case I did not come across any laceration, abrasion, redness or swelling in the vaginal part of the prosecutrix, nor she complained of pain. I cannot rule out the possibility that no sexual assault has taken place with the prosecutrix. 13. It is axiomatic from this medical evidence that the injuries as stated by the prosecutrix in her cross-examination were not found on her body. As per FSL report Ex.PX, human semen was detected on petticot and underwear of the prosecutrix. She being a married woman, it could be there. That being so, the presence of human semen on these clothes is not required to be dilated upon. The semen could not be detected on the vaginal swabs. According to the prosecutrix, she was medico legally examined after a gap of one night, whereas according to Dr. Vinita Singh PW4, the prosecutrix was medico legally examined on 2.9.1996 at about 5:30 P.M. On calculating, it transpires that she was subjected to such examination after about 48 hours. The semen could not be detected on the vaginal swabs. According to the prosecutrix, she was medico legally examined after a gap of one night, whereas according to Dr. Vinita Singh PW4, the prosecutrix was medico legally examined on 2.9.1996 at about 5:30 P.M. On calculating, it transpires that she was subjected to such examination after about 48 hours. As per spermatology, the sperms survive for 72 hours. If the prosecutrix X had been ravished, the sperms would have been detected on the swabs taken from her vagina as the same were collected within less than 72 hours. This lacuna further strikes a death knell to the prosecution case. For a little while, if it is assumed that the prosecutrix for the reasons best known to her had started tilting in favour of the accused – appellants during her cross-examination, it was obligatory upon the public prosecutor whosoever was conducting the case on behalf of the State to get her declared hostile. But needless to say, as per record, no such attempt has been made. Obviously, as surfaces in the cross-examination of Dr. Vinita Singh (sic.), the abrasion found on the person of (prosecutrix X) was a superficial injury and could have been self suffered or self inflicted. 14. In re : Karnel Singh v. State of Madhya Pardesh, AIR 1995 Supreme Court 2472, it was held that the find of semen on petticot and in vagina lends assurance to the story narrated by the prosecutrix, but herein as just noticed, strangely enough that find of semen on the swabs taken from the vagina was not detected. True that the delay in lodging complaints in such cases in this country does not raise an inference that the complaint was false, but herein the inexplicable delay is of more than 48 hours, which raises dimensions of doubt in the light of host of infirmities referred to hereinbefore. 15. It is in the cross-examination of Satya Narain SI/SHO PW7 Investigator that “I remained in Police Station Chhainsa as SI/SHO from 20.7.96 to 1.1.97. I received a complaint in case Ranbir v. Satender Pal about the dispute over agricultural land prior to this case. Ranbir and Sugar were arrested in that case. A complaint against me was made by Ranbir and Sugar to the SP, Faridabad on 7.9.1996 and to the Chief Justice of Supreme Court on 9.8.1996. I received a complaint in case Ranbir v. Satender Pal about the dispute over agricultural land prior to this case. Ranbir and Sugar were arrested in that case. A complaint against me was made by Ranbir and Sugar to the SP, Faridabad on 7.9.1996 and to the Chief Justice of Supreme Court on 9.8.1996. I cannot tell the number of persons, who had complained against me. It is correct that there is partisanship in village Chhainsa. One group is headed by Genda and the other by Rajender.” The accused have come up with a specific plea in their respective statutory statements that the present case has been fastened upon them by the complainant party in collusion with Satya Narain SI/SHO. They have also put forth that a complaint was made against SI Satya Narain by Ranbir and Sugar accused to SP, Faridabad on 7.9.1996 and to the Hon'ble Chief Justice on 9.8.1996. Satya Narain was having a grudge against them and on that account, he colluded with the complainant party. Prosecutrix is habitual of making false reports. This plea coupled with the afore-extracted cross-examination of Satya Narain SI (sic.) further cast a cloak of suspicion over the prosecution version. It is deducible from the evidence of Sohan Lal PW13 that Kela PW is his wife and Pohap Singh husband of the prosecutrix is his brother. Startlingly enough that Kela PW has been given up by the prosecution on the pretext of her having been won over by the accused. It is the prosecution case that soon after the occurrence, Kela PW came at the spot and the story was narrated to her. If the occurrence had verily taken place, Kela PW being closely related to the complainant party in the normal course would not have joined hands with the accused party. 16. In re : Rajoo and others v. State of M.P. 2009(1) Recent Criminal Reports (Criminal) 310 (S.C.), the prosecutrix version was that 13 persons had committed rape on her one after the other. No scratch was found on her person. Medical evidence showed that she was habituated to intercourse for long. The Apex Court held that “it could be difficult to conclusively show the involvement of each of accused beyond reasonable doubt. The truth and falsehood are so inextricably intertwined, that it is impossible to discern where one ends and the other begins. No scratch was found on her person. Medical evidence showed that she was habituated to intercourse for long. The Apex Court held that “it could be difficult to conclusively show the involvement of each of accused beyond reasonable doubt. The truth and falsehood are so inextricably intertwined, that it is impossible to discern where one ends and the other begins. The statement of prosecutrix should be evaluated at par with that of injured witness who will not tell a lie, but it can never be presumed that her statement is a gospel truth. The statement of prosecutrix has to be evaluated at par with that of an injured witness and if the evidence is reliable, no corroboration is necessary. But at the same time, they cannot be universally and mechanically applied to the facts of every case of sexual assault, which comes before the Court. Rape causes the greatest distress and humiliation to the victim, but at the same time, a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved.” In the instant case, no mark of injury over labia majora, labia minora was found. As per cross-examination of Dr. Vinita Singh (sic.), if a married woman is subjected to rape one after the other by three persons, lacerations in the vagina and swelling are expected. In this case, she did not come across any laceration, abrasion, redness or swelling in the vaginal part of the prosecutrix, nor she (Prosecutrix) complained of pain, though the prosecutrix went on to say that she had received bleeding injuries on her private part and remained sore for a number of days and she had shown all her injuries to the Doctor. Explicitly, there is divergence between medical and ocular evidence. The prosecutrix has inextricably mixed the truth and falsehood to such an extent that it has been rendered not only difficult rather impossible to sift the grains of truth if any from the heap of chaff. If she was ravished by three accused-appellants one after the other, in that eventuality, as per opinion of the afore-mentioned Doctor, she would have certainly sustained laceration, abrasion, redness or swelling in the vaginal part. But curiously enough, even spermatoza were not detected on her vaginal swabs. If she was ravished by three accused-appellants one after the other, in that eventuality, as per opinion of the afore-mentioned Doctor, she would have certainly sustained laceration, abrasion, redness or swelling in the vaginal part. But curiously enough, even spermatoza were not detected on her vaginal swabs. This renders the prosecution version highly improbable. To conclude finally, the prosecution has not been able to bring home guilt against the accused-appellants, beyond a shadow of reasonable doubt. Seuqelly, this appeal is accepted, setting aside the impugned judgment/ order of sentence. The accused-appellants are hereby acquitted of the charged offences. Order accordingly.