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2010 DIGILAW 1693 (PNJ)

Bhupinder Singh (Bhirda) v. State Of Punjab

2010-05-17

HEMANT GUPTA, JASWANT SINGH

body2010
Judgment Hemant Gupta, J. 1. The present appeal is directed against the judgment and order dated 13.5.2002 passed by the learned Sessions Judge, Jalandhar, convicting the appellant under Sections 376 and 302 IPC and sentencing him to undergo life imprisonment and to pay a fine of Rs. 5000/- for the offence under Section 302 IPC and RI for 10 years and to pay a fine of Rs. 2000/- for an offence under Section 376 IPC. It has been further ordered that the punishment for the offence under Section 376 shall commence after the sentence of life imprisonment is completed by the appellant. 2. The prosecution case was set in motion on the basis of statement of Malkiat Singh (Exhibit PG) made to Rattanjit Singh ASI, Police Station, Kartarpur on 17.9.2000 at about 8.30 p.m. The statement is endorsed by Harjinder Singh, who has appeared as PW-5. It has been stated by Malkiat Singh that he returned to his house from his motor at about 6 p.m. His daughter Prabhdeep Kaur aged about 6-1/2 years and son Harminder Singh aged 13 years came to the house from the motor after him at about 7 p.m. Thereafter, his daughter Prabhdeep Kaur and son Harminder Singh had gone to Gurudwara to pay obeisance. His son Harminder Singh came to the house after few minutes, but his daughter Prabhdeep Kaur did rot return home. He asked his son Harminder Singh as to why Prabhdeep Kaur had not returned home upon which his son Harminder Singh told that Bhinda son of Surinder Singh caste Carpenter had taken Prabhdeep Kaur to his house by holding her finger. On hearing this, he was going to the house of Bhinda son of Surinder Singh, when Harjinder Singh, Sarpanch resident of Dayalpur met him and they both went and knocked at the door of Bhinda son of Surinder Singh. After sometime Bhinda opened the door of his house. He was perplexed. On seeing them, he ran away by jumping over the backside wall of his house. At 8.30 in the night when he went inside the residential room of Bhindas house, Prabhdeep Kaur was lying smeared with blood in entirely naked condition and was breathing with difficulty. She told him and Harjinder Singh, Sarpanch, that Bhinda had committed wrong act and gave her beatings after taking her to his house. At 8.30 in the night when he went inside the residential room of Bhindas house, Prabhdeep Kaur was lying smeared with blood in entirely naked condition and was breathing with difficulty. She told him and Harjinder Singh, Sarpanch, that Bhinda had committed wrong act and gave her beatings after taking her to his house. He and Harjinder Singh, Sarpanch, took his daughter to Brar Hospital, Dayalpur, after wrapping her in a cloth, but she died on the way. He and Harjinder Singh raised alarm that Bhinda son of Surinder Singh, carpenter resident of Dayalpur had given beatings to his daughter Prabhdeep Kaur after committing rape upon her, who died lateron. On the basis of such report, a ruqa was sent by ASI, Rattanjit Singh (Exhibit PG/ 1) to Police Station Kartarpur at about 11.30 p.m. On such ruga, FIR Exhibit PG/2 was lodged at 11.45 p.m. The special report was received by the learned Magistrate on 18.9.2000 at 4 a.m. 3. The appellant was arrested on 19.9.2000 at about 1.30 p.m. Prior thereto, the post mortem was conducted by PW-1-Dr. Chanjiv Singh on 18.9.2000 at 12.20 p.m. in association with PW-2- Dr. Harpreet Mann. The dead body was brought by constable Balraj Singh from Brar Hospital. The Doctor found the following injuries :- "1. Dry blood was present on pubic area, upper parts of thighs and perennial area. On - examination un-clotted blood was coming out of vagina. 2. Bruising was present on both lips-reddish and lower part of nose reddish. 3. Unnatural mobility of neck." 4. In addition to such injuries, the Doctor found that the hymen was torn and there were multiple tears in vagina and that un- clotted blood was coming out of the vaginal orifice. The cause of death was due to injuries described, which were sufficient to cause death in the ordinary course of nature and all injuries were found to be ante mortem in nature. Exhibit PA is the copy of the post mortem report. Dr. Harpreet Mann (PW-2) specifically examined vaginal parts of the deceased. She has also opined on receipt of the Chemical Examiners report Exhibit PD that there was evidence of sexual activity. The prosecution has recovered blood stained clothes of the deceased from the place of occurrence on 18.9.2000. The recovery memo is Exhibit PJ. The appellant suffered a disclosure statement Exhibit PL in police custody on 19.9.2000. She has also opined on receipt of the Chemical Examiners report Exhibit PD that there was evidence of sexual activity. The prosecution has recovered blood stained clothes of the deceased from the place of occurrence on 18.9.2000. The recovery memo is Exhibit PJ. The appellant suffered a disclosure statement Exhibit PL in police custody on 19.9.2000. Such disclosure statement was in respect of the concealing of the underwear of greenish gray colour which he was wearing while doing wrong act with Prabhdeep Kaur daughter of Malkiat Singh Jat, resident of Dayalpur, stained with his semen, underneath the cow dung cakes lying along the western wall of his house. On the basis of disclosure statement Exhibit PL, such underwear was recovered vide recovery memo Exhibit PM. Exhibit PT is the report of the Forensic Science Laboratory, reporting that Parcel- A containing underwear and Parcel-B containing Kameej are stained with human semen, but no demonstrable blood could be detected. The prosecution also led other evidence to complete the chain of circumstances. The learned trial Court on such evidence convicted and sentence the present appellant, as referred to above. 5. When the appeal came up for hearing before this Court on 3.2.2010, an argument was raised by the learned counsel for the appellant that the appellant was juvenile on the date of occurrence i.e. 17.9.2000. Since such an argument was raised, the respondent-prosecution was directed to prove the age of the accused on the date of commission of offence as by proving endorsement of the doctor on the requisition dated 19.9.2000 or by getting the accused examined by a Medical Board. The learned District & Sessions Judge-cum- Registrar (Vigilance) Punjab, was directed to conduct inquiry in this respect. In pursuance of such order, the learned District & Sessions Judge-cum- Registrar (Vigilance) Punjab, has submitted his report dated 22.4.2010 on the basis of the report of the Medical Board. The Medical Board consisting of Dr. Hatinder Kaur, Radiologist, Dr. Gurmeet Singh, Medical Specialist and Dr. Davinder Kaur, Ortho Specialist, Civil Hospital, Ludhiana and Dr. Pawandeep Singh Dhillon, Dental Surgeon, has opined that age of the appellant Bhupinder Singh is in between 30-40 years as on 29.3.2010. Since the date of occurrence is 17.9.2000, the appellant was reported to be not a juvenile at the time of commission of the offence. Davinder Kaur, Ortho Specialist, Civil Hospital, Ludhiana and Dr. Pawandeep Singh Dhillon, Dental Surgeon, has opined that age of the appellant Bhupinder Singh is in between 30-40 years as on 29.3.2010. Since the date of occurrence is 17.9.2000, the appellant was reported to be not a juvenile at the time of commission of the offence. Faced with such report, learned counsel for the appellant did not press the argument any further that the appellant was juvenile on the date of commission of offence. From the opinion of the Medical Board, which stands proved on record, it is established that the appellant was about 20 years of age on the date of commission of crime. 6. We have heard learned counsel for the parties and with their assistance have gone through the record of the case carefully. 7. The deceased, a female child of 6-1/2 years was resident of the same village as that of the appellant. PW-6-Malkiat Singh, father of the deceased- child has supported the prosecution case in its entirety to the effect that when they knocked at the door of the accused, he opened the door after few minutes and he was in a perplexed state. He ran away on seeing them by scaling over the backside wall of the house. When they entered his house, they found Prabhdeep Kaur lying in the house naked smeared with blood. He deposed to the following effect : "We entered the house of the accused. We saw Prabhdeep Kaur lying in the house naked with blood. She was breathing. When I enquired, she told that Bhinda had taken her to his house and had done wrong and had beaten her. Accused was alone in his house at that time when he ran away. Then we wrapped Prabhdeep Kaur in a cloth and were taking Prabhdeep Kaur to Brar Hospital of our village. Prabhdeep Kaur died on the way. Still we took her to the hospital where she was declared dead." 8. There is no cross-examination to the effect that Prabhdeep Kaur had died prior to her father reaching the house of the accused. It is only suggested that Prabhdeep Kaur had died natural death in their house i.e. in her fathers house. PW-5- Harjinder Singh, Sarpanch of the village, is a signatory of the statement made to the police (Exhibit PJ) by Malkiat Singh. It is only suggested that Prabhdeep Kaur had died natural death in their house i.e. in her fathers house. PW-5- Harjinder Singh, Sarpanch of the village, is a signatory of the statement made to the police (Exhibit PJ) by Malkiat Singh. He has also supported the prosecution case and the manner of occurrence as deposed in statement Exhibit PJ and by father of the deceased. He has stated to the following effect :- "When he ran away we entered the room and saw the girl Prabhdeep Kaur lying naked in the room. She was there in pool of blood. She was alive. She told that Bhinda accused had brought her saying that he will give her something to eat. She told that Bhinda accused had brought her in the house and then removed her clothes and had committed rape. We had wrapped Prabhdeep in a chadar/cloth to local private hospital known as Brar Hospital. On the way, Prabhdeep Kaur had become unconscious. She had died even before we reached that Brar Hospital. Still we took her to Brar Hospital where she was declared dead." 9. In the cross-examination, the witness has deposed that his statement was recorded by the police in Brar Hospital at about 11 in the same night. The witness has also deposed that the accused was wearing underwear when he opened the door of the house of the accused. There is no cross-examination that Prabadeep Kaur was not alive when they entered the house of the accused. PW-7-Harminder Singh is 14 years of age and brother of the deceased. He has stated that they returned to the house from the motor at 7-7.30 p.m. and thereafter they both (he and his sister Prabhdeep Kaur) had gone to the village Gurudwara. He deposed that Bhupinder Singh accused, now present in the Court, was found standing on the door of the house when they were returning from Gurudwara after paying obeisance. On seeing them, the accused came and caught hold of Prabhdeep Kaur from finger and took her to his house and he went to his house. He deposed that he went with his father to the house of the accused and after some time accused opened the door. He was perplexed and on seeing them, he ran by scaling over the back wall of his house. He remained outside. He deposed that he went with his father to the house of the accused and after some time accused opened the door. He was perplexed and on seeing them, he ran by scaling over the back wall of his house. He remained outside. His sister was taken to the hospital where she died. He has deposed that his statement was recorded by Police at Brar Hospital, Dayalpur at 11- 11.30 p.m. ASI Rattanjit Singh has been examined as PW-8. He is the Investigating Officer, who has deposed the chain of events and also the disclosure statement suffered by the appellant. PW-9 is Inspector Nirmal Singh, who is a witness of the disclosure statement Exhibit PL and the recovery of underwear vide memo Exhibit PM. 10. From the evidence on record, it transpires that PW-6- Malkiat Singh; PW-5-Harjinder Singh and PW-7-Harminder Singh have seen the accused in perplexed condition after they knocked the door of his house. They also saw accused running away after scaling over the back wall of his house. The statement of PW-7 is to the effect that the deceased was taken by the accused by holding her finger when both the children were returning from Gurudwara. The statements of PW-5 and PW-6 are to the effect that the deceased had told that wrong act was done by the appellant. The statement was made by the deceased, just before her death and thus, it is a dying declaration. The argument that the child was already dead is not sustainable. Firstly, all the witnesses are categorical that the deceased was taken to Brar Hospital and their statements, in fact, were recorded by the Police at Brar Hospital. PW- 1-Dr. Chanjiv Singh deposed that the dead body was received from Brar Hospital. From the statements of the witnesses, it transpires that Prabhdeep Kaur was sexually and physically assaulted by the accused, which is evident from the nature of the injuries suffered by her. From the said statements, it also stands proved that Prabhdeep Kaur was in the house of the deceased. The chain of events which happened in the quick succession leaves no manner of doubt that it is the appellant, who has sexually and physically assaulted the deceased. Such assault is corroborated by the eye witness account of the three witnesses and it corroborates the dying declaration. The chain of events which happened in the quick succession leaves no manner of doubt that it is the appellant, who has sexually and physically assaulted the deceased. Such assault is corroborated by the eye witness account of the three witnesses and it corroborates the dying declaration. The clothes of the deceased were recovered from the place of occurrence i.e. house of the accused on 18.9.2000. Such clothes had blood stains. The semen had been found on the underwear recovered on the basis of the disclosure statement Exhibit PL of the appellant. Such clothes, when examined by the FSL, have been found to contain human semen. Therefore, the prosecution version stands corroborated by the medical and scientific evidence as well. Therefore, we do not find any illegality in the finding recorded by the learned trial Court convicting the appellant for the offences under Sections 302 and 376 IPC. Thus, conviction of the accused-appellant for the said offences is affirmed. 11. However, an argument has been raised by the learned counsel for the appellant that in tee terms of Section 31 Cr.P.C., the punishment for an offence under Section 376 IPC cannot be ordered to run after the punishment of life imprisonment is completed by the accused. It is contended that such punishment concurrently with the punishment of life imprisonment. 12. We find merit in the said argument. In the cases, where the life imprisonment is awarded, all other punishments of the common trial have to run concurrently. Therefore, while upholding the sentence imposed upon the accused-appellant, we order that both the sentences shall run concurrently. 13. Before parting, we would like to observe that life imprisonment is not an imprisonment for a fixed term. The said question was examined by Honble Supreme Court in Swamy Shraddananda @ Murali Manohar Mishra v. State of Karnataka, 2008(3) R.C.R.(Criminal) 772 : 2008(4) R.A.J. 480 : (2008) 13 Supreme Court Cases 767, wherein it has been held to following effect : "88. It is thus to be seen that both in Karnataka and Bihar remission is granted to life convicts by deemed conversion of life imprisonment into a fixed term of 20 years. It is thus to be seen that both in Karnataka and Bihar remission is granted to life convicts by deemed conversion of life imprisonment into a fixed term of 20 years. The deemed conversion of life imprisonment into one for fixed term by executive orders issued by the State Governments apparently flies in the fact of a long line of decisions by this Court and we are afraid no provision of law was brought to our notice to sanction such a course. It is thus to be seen that life convicts are granted remission and released from prison on completing the fourteen-year term without any sound legal basis. One can safely assume that the position would be no better in the other States. This Court can also take judicial notice of the fact that remission is allowed to life convicts in the most mechanical manner without any sociological or psychiatric appraisal of the convict and without any proper assessment as to the effect of the early release of a particular convict on the society. The grant of remission is the rule and remission is denied, one may say, in the rarest of rare cases." In view of the law in respect of term of life imprisonment, the State Government shall consider the question of remission to be earned by the appellant in view of the heinous crime proved to be committed by him.