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2010 DIGILAW 254 (PNJ)

Gurcharan Singh v. State Of Punjab

2010-01-12

KANWALJIT SINGH AHLUWALIA

body2010
Judgment KANWALJIT SINGH AHLUWALIA, J. 1. Two appellants Gurcharan Singh and Harpal Singh, residents of villagebalrampur by filing the present appeal have assailed the judgment rendered by Additional Sessions Judge, Rup Nagar whereby they have been convicted for offence under Sec.376 IPC and sentenced to undergo rigorous imprisonment for 10 years each and to pay a fine of Rs.2,000/- each. In default of payment of fine, they were to further undergo rigorous imprisonment for one year each. 2. The prosecution version can be spelled out from the statement of prosecutrix Ex. PB which was recorded by SI Naranjan Dass, Incharge Police Post sandhuan. As per observations of Honble Apex Court, name of the prosecutrix is being withheld. It was stated by the prosecutrix that she was married 20 years ago. She gave birth to four children. About 1-1/2 years ago, her husband had expired. She was posted as Peon in the bank. On 16.6.1994, after banking hours, she had come to Bazar at Kurali for her personal work where her neighbourer Gurcharan Singh alias Roda and Harpal singh alias Fauji, residents of Village Balrampur met her in the Bazar. Gurcharan Singh asked her as to from where she is coming. She stated that she had come to the Bazar and now she has to go the village, upon which Gurcharan singh stated that Harpal Singh is to unload sunflower crop in the Mandi. Thereafter, they have also to go to the village, therfore, she can accompany them. She was asked to wait for them at Bus Adda. Prosecutrix reached, Bus Adda at 6.30 P. M. She waited for the Bus. As the Bus was not available, at 7.00 P. M. accused met her and gave her lift on the tractor. Instead of going to the village, the tractor was taken to the Kotha where tubewell motor was installed. On refusal of the prosecutrix, she was threatened and under fear she was taken inside the room where motor was installed. Harpal Singh and Gurcharan Singh made consultations. Gurcharan Singh committed rape upon the prosecutrix. Thereafter, Harpal Singh came inside the room and forcibly committed the rape. On the night intervening 16/17.6.1994, it is stated that both the appellants committed sexual intercourse three times each. On the morning of 17.6.1994, both the accused made the prosecutrix alight at Bus Adda Jagatpura. Harpal Singh and Gurcharan Singh made consultations. Gurcharan Singh committed rape upon the prosecutrix. Thereafter, Harpal Singh came inside the room and forcibly committed the rape. On the night intervening 16/17.6.1994, it is stated that both the appellants committed sexual intercourse three times each. On the morning of 17.6.1994, both the accused made the prosecutrix alight at Bus Adda Jagatpura. The prosecutrix further stated that due to act of rape committed by the accused, her health deteriorated and further more out of shame, she went to the house of her relations at Ropar. On 18.6.1994, she disclosed the entire incident to hakam Singh younger brother of her husband. Charan Singh, Sarpanch of Village Balrampur persuaded not to lodge the report so that some compromise could be effected. On 23.6.1994, the prosecutrix in the company of Hakam Singh younger brother of her husband made the statement. The above said statement was endorsed by SI Naranjan Dass vide Ex. PB/1, on the basis of which formal FIR Ex. PA was recorded. The matter was investigated. Report under Sec.173 Cr. P. C. was submitted against the appellants. 3. Both the appellants were charged for offence under Sec.376 IPC by the Court of Additional Sessions Judge, Ropar. The charge stated that both the accused on night intervening 16/17.6.1994 in the area of Village Khizrapur with common intention committed gang rape upon the prosecutrix and thereby offence under Sec.376/34 IPC is made out, to which the appellants pleaded not guilty and claimed trial. Prosecution examined HC Jodh Singh PW1 who stated that on 23.6.1994 statement recorded by SI Niranjan Dass was received through s. P. O. Daljit Singh and on the basis of same formal FIR Ex. PA was recorded. In cross-examination, he stated that recording of the FIR was concluded at 7.00 p. M. 4. Charan Singh, Sarpanch of village of the accused appeared as PW2. He stated that he was Sarpanch of the village since 1992. Hakam Singh younger brother of the husband of Harbans Kaur met him on 19.6.1994 and disclosed the entire occurrence as told to him by the prosecutrix. In cross-examination, he stated that he had not called meeting of the Panchayat but had called some persons but no writing was prepared. Accused was called but only Harpal Singh and his father came. Hakam Singh younger brother of the husband of Harbans Kaur met him on 19.6.1994 and disclosed the entire occurrence as told to him by the prosecutrix. In cross-examination, he stated that he had not called meeting of the Panchayat but had called some persons but no writing was prepared. Accused was called but only Harpal Singh and his father came. They had not declined to arrive at the compromise but thereafter prosecutrix and her Devar Hakam singh had not come forward for effecting the compromise. Dr. Preet Inder Kaur pw3 medico legally examined the prosecutrix on 24.6.1994. Prosecutrix gave her age as 42 years. No injury was found on the private parts of the prosecutrix. However, on examination of thighs, following injuries were noticed by the doctor:- "1. Multiple bruises of blackish colour each measuring approximately 1.5 cm in diameter approximately 10 in number on frontal part of right thigh 9 cm from anterior superior iliac spine. Intervening area clear. Bruises present only in the middle part. Tenderness present. 2. Diffuse multiple bruises on left thigh front blackish in colour approximately 8-9 cm from anterior superiors iliac spine till knee joint. No demarcated area of bruise. No clear intervening area. Tenderness present. " In cross-examination the Doctor stated that no sign of rape on the body of prosecutrix was found. She was a married woman with children. It was further stated that there was no internal injury but external marks were present on the thighs. 5 Prosecutrix appeared as PW4. She reiterated what was stated in ex. PB, on the basis of which formal FIR was registered. This witness further stated that police has taken into possession her Salwar Ex. P1. Mr. Bipan Ghai, senior counsel assisted by Mr. Deepak Garg, Advocate has brought into my notice certain portions of cross-examination. In cross- examination, this witness stated that she went to the Bank on 17.6.1994 and 18.6.1994 but do not remember whether she had gone to the Bank on 20.6.1994 and 21.6.1994. However, this witness stated that after Sunday, she attended her duties on Monday and Tuesday in June, 1994. Later this witness stated that she had not attended her duties on 22.6.1994 but was present on duty in the bank on 20.6.1994 and 21.6.1994. The witness further stated that after reporting the matter to the police, she proceeded on leave. She went to the police only once on 23.6.1994. Later this witness stated that she had not attended her duties on 22.6.1994 but was present on duty in the bank on 20.6.1994 and 21.6.1994. The witness further stated that after reporting the matter to the police, she proceeded on leave. She went to the police only once on 23.6.1994. The witness further stated that she had a dispute with her Devar but he had not given her beatings. Her Devar had told her that she should leave the job, as she used to come late. However, this witness later stated that she was given beatings on the night of 20th and 21st of June, 1994. Her Devar was objecting and saying that some body met her in the bus. Further more her Devar was suspecting that a person who was prepared to pay bus fare for her, had relations with her. This witness further admitted that land of Gurcharan Singh accused adjoins Hakam Singh. However, she expressed her ignorance whether there was any dispute between the accused and her Devar Hakam Singh. In cross-examination, this witness further stated that after 23.6.1994 or on 23.6.1995 she did not make any statement to the police. She further stated that whatever was told by her Devar to the police, the police might have recorded the same. In cross-examination she further stated that accused were taking liquor. Firstly, she was raped by Harpal Singh. He raped twice. The accused had pulled her hairs. They were under the influence of liquor. Thereafter Gurcharan Singh also raped her twice. She further stated that she had scratches on her body but she did not tell this fact to any body. 6. Basakha Singh was examined as PW5. He had not supported the prosecution case and was declared hostile. Dalip Singh PW6 stated that one year before his deposition, he had seen the prosecutrix going with accused on tractor. 7. Dr. P. P. SINGH, Medical Officer, Incharge, Civil Dispensary, Phase i, Mohali appeared as PW7. He stated that on 27.6.1994 he medico legally examined Gurcharan Singh. He found simple abrasions on the left scapular region. He also examined Harpal Singh alias Fauji and found simple injuries on the left arm and scapular region. He further stated that injuries suffered by the accused could be result of resistance by the prosecutrix in case intercourse is committed against wishes of the prosecutrix. He found simple abrasions on the left scapular region. He also examined Harpal Singh alias Fauji and found simple injuries on the left arm and scapular region. He further stated that injuries suffered by the accused could be result of resistance by the prosecutrix in case intercourse is committed against wishes of the prosecutrix. In cross-examination, this witness stated that injuries could be result of police torture also. 8. Constable Gurmel Singh appeared as PW8. He was witness to the recovery memo Ex. PJ vide which clothes of the accused were taken into possession by SI Niranjan Dass. SI Sarwan Ram appeared as PW9. He prepared the report under Sec.173 Cr. P. C. PW10 SI Niranjan Dass on the day of occurrence was posted at Police Station Sandhuan and had recorded the statement Ex. PB of the prosecutrix. He stated that on 24.6.1994 he got the prosecutrix medico legally examined and arrested both the accused on 27.6.1994 and also got both the accused medico legally examined. I have heard counsel for the parties. 9. Mr. BIPAN Ghai, senior counsel appearing for the appellants has submitted that in the present case the occurrence had taken place on the night intervening 16/17.6.1994. Prosecutrix attended the Bank on 17.6.1994, 18.6.1994, 20.6.1994 and 21.6.1994. She was roaming freely and met various persons but had not disclosed the fact of rape to any body. In the present case, FIR was recorded on 23.6.1994 after six days of the occurrence. It is further submitted that Hakam Singh younger brother of the husband of the prosecutrix compelled the prosecutrix to make statement against the accused and he also caused injuries to the prosecutrix. Therefore, the statement made by the prosecutrix should not be believed. He has further drawn my attention to the admission made by the prosecutrix that she had not divulged any information, but same was relayed by Hakam Singh. It was further urged that the land of Hakam Singh younger brother of the husband of the prosecutrix adjoins the land of Gurcharan Singh accused, therefore, due to enmity present appellants have been falsely implicated. It has been further submitted that from all the circumstances and conduct of the accused, it is evident that prosecutrix was consenting party to the sexual intercourse. 10. Mr. It has been further submitted that from all the circumstances and conduct of the accused, it is evident that prosecutrix was consenting party to the sexual intercourse. 10. Mr. MEHARDEEP Singh, Deputy Advocate General, Punjab has submitted that prosecutrix was a widow having four children and taking into consideration marital status, accused had exploited her. Mr. Mehardeep Singh has further submitted that prosecutrix has stated that out of shame, she had not come forward to make statement to the police. The striking feature of the case is that two persons had committed sexual intercourse with the prosecutrix against her wish. It is not a case of single person who committed sexual intercourse with the prosecutrix. It is in this context that the argument propounded before me regarding consent are to be appreciated. Prosecutrix has categorically stated that when she met the accused in the Bazar, they gave her lift for taking her to the village. Instead of dropping her at the village, she was taken to the room where tubewell motor was installed, where both the accused had taken liquor and raped the prosecutrix turn by turn. A lady having four children has not only to ponder but has to think again and again before narrating the story of rape, as the reputation of the family is involved and it may eclipse matrimonial prospects of the children. This Court cannot become oblivious of the fact that in the village life a widow has to suffer ignominy on account that she was raped by two persons. Many fingers are to be raised qua her character. Therefore, in this background delay of six days in lodging the report will not be material. 11. The fact that prosecutrix was caused injuries by her Devar depicts typical male chauvinist attitude prevailing in our society. Instead of having solace with the victim, she is made to suffer, as if, by act of rape on part of accused, she has become party to the same. It is probable that later the prosecutrix mustered courage and came out to report the matter. Hence, this court is not inclined to accept the argument of consent advanced by senior counsel for the appellants. It is probable that later the prosecutrix mustered courage and came out to report the matter. Hence, this court is not inclined to accept the argument of consent advanced by senior counsel for the appellants. Further more except that the land of younger brother of the husband of the prosecutrix adjoins the land of Gurcharan Singh accused, the defence has not ventured to give any meaningful suggestion that relations between the parties were inimical due to land dispute. No case was pending between the parties. The suggestion has been given for the sake of suggestion without corroborating the same, therefore, what has been stated above regarding the plight of a woman in the Indian society, the suggestion advanced is not to be given any credence. Hence, there is no merit in the present appeal and the same is dismissed.