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2010 DIGILAW 3283 (PNJ)

Babu Singh v. State of Haryana

2010-12-07

JITENDRA CHAUHAN

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JUDGMENT JITENDRA CHAUHAN, J. 1. Babu Singh and Harvinder Singh, appellants have preferred this appeal against their conviction and sentence awarded by Additional Sessions Judge, Jagadhari, vide judgment/order dated 12.6.2000, the details of which are as under:- Name of accused Conviction under section Sentence Fine In default to undergo Babu Singh 376(2)(g) read with Section 511 IPC Two years R.I. Rs.5000- Simple imprisonment for three months Harvinder Singh 376(2)(g) read with Section 511 IPC Two years R.I. Rs.5000/- Simple imprisonment for three months 2. The brief facts of the case are that Daler Kaur, PW4, and Sukhwinder Kaur, PW5, submitted an application Ex.PA, to the DSP Jagadhari, wherein they alleged that on 29.12.1998, at about 10.00 a.m., on an application Ex. PA jointly submitted by Daler Kaur, PW4, and Sukhwinder Kaur, PW5, to DSP Jagadhari wherein they alleged that on 29.12.1998 at about 10.00 a.m. they went to attend the call of nature in the fields of Babu Singh. Their mother was coming at a short distance. Babu Singh S/o Tarlok Singh and Harvinder Singh S/o Karnail Singh had tried to commit rape upon them. On raising noise their mother reached at the spot. On this application FIR No. 91 dated 3.7.1999 under Section 376, 511 IPC was registered in police station Bilaspur. 3. After completion of investigation challan against the accused was presented. The learned Judicial Magistrate committed the case to the Court of Sessions. The learned Additional Sessions Judge charged both the accused under Sections 376 (2) (g) read with Section 511 of Indian Penal Code to which both the accused pleaded not guilty and claimed trial. 4. The prosecution to prove its case examined Daler Kaur, PW4 and Sukhwinder Kaur, PW5 and Smt. Harpal Kaur, PW7, mother of both the prosecutrix. Vinod Kumar, Assistant appeared as PW1`. Gurbaksh Singh, Patwari PW2 proved site plan Ex.PB. ASI Pala Ram PW3 proved registration of FIR Ex. PC. ASI Des Raj PW6 proved the investigation. 5. In his statement under Section 313 Cr.P.C. both the accused denied the incriminating evidence against them. No evidence was led in defence. 6. Learned counsel for the appellants submitted that there is inordinate delay in lodging the FIR. Learned counsel for the appellants further submitted that FIR does not contain the details of the allegation and is vague. The presence of the mother is unnatural. No evidence was led in defence. 6. Learned counsel for the appellants submitted that there is inordinate delay in lodging the FIR. Learned counsel for the appellants further submitted that FIR does not contain the details of the allegation and is vague. The presence of the mother is unnatural. The story put forth by the prosecutrix is highly improbable and unnatural. Harpal Kaur, PW7, mother of both the prosecutrix categorically admitted that no rape was committed upon her daughters. Learned counsel for the appellants further argued that Babu Singh accused is the real uncle of the prosecutrix and the rape story was first time put in the Court on 7.3.2000. There is no mark of struggle on any of the prosecutrix. If there would have been any such incident there would have been struggle marks, scratches or minor injuries on the person of either the prosecutrix or the accused-appellants. Moreover, the place of occurrence is not proved. 7. The learned State counsel stated that the prosecution has proved its case beyond reasonable doubt. Nobody would stake the reputation of their daughters in order to falsely implicate their real uncle. So the statements of the prosecutrix and their mother are trustworthy and believable. 8. I have heard learned counsel for the parties and carefully gone through the record. 9. Firstly there is delay in lodging the FIR. The alleged incident happened on 29.12.1998 at about 10.00 a.m. It was a day time the statements of both the prosecutrix are contradictory. Daler Kaur, PW4 the prosecutrix stated that on the same day the matter was reported to the Panchayat which was convened at the house of Kanshi Lambardar . There were many people in the Panchayat but no decision could be taken in the Panchayat. But in order to explain the delay none of the Panchayat member was either cited as a witness nor examined in Court. 10. The application Ex.PA, on the basis of which the FIR was registered does not mention the facts in detail. It is very short application. It is unbelievable that Babu Singh uncle and his nephew Harvinder Singh will commit such a heinous crime together or simultaneously. Both the prosecutrix had narrated the incident for the first time in Court in detail. The prosecutrix, PW4, stated that firstly accused Harvinder Singh got her and thereafter the other the prosecutrix, PW5, was caught by accused Babu Singh. It is unbelievable that Babu Singh uncle and his nephew Harvinder Singh will commit such a heinous crime together or simultaneously. Both the prosecutrix had narrated the incident for the first time in Court in detail. The prosecutrix, PW4, stated that firstly accused Harvinder Singh got her and thereafter the other the prosecutrix, PW5, was caught by accused Babu Singh. The incident was seen by each other. The whole incident took about half an hour. PW4 did not state about a word committing of rape. On the other hand the prosecutrix, PW5, categorically in clear words stated that both the accused had committed rape upon them. Both the prosecutrix were visible to each other as stated by PW5. The incident took place 10-15 minutes but none of the prosecutrix was medico legally examined. If such incident had happened, the first step should have been to get the medical examination of both the girls conducted by a Medical Officer. It is admitted fact that Babu Singh is their uncle. So the conduct of the prosecutrix in setting up of rape story prove that they are not trustworthy witnesses. 11. There was no struggle marks on either of persons of the prosecutrix. 12. The complainants PW4, and PW5, were aged about 20 and 25 years, respectively at the time of occurrence. It is their categoric stand in the evidence that the appellants applied a tremendous force while grappling with them. The appellants torn out the shirts of both the sisters from the front side. They have also deposed that the appellant No. 1 Babu Singh broke open the string of the salwar of PW5 and lied upon her after removing lower cloth Chhadara. It was also stated that appellant No. 2, Harvinder Singh, torn out her shirt, broke open her salwar, put off his pant and lied upon her. The aforesaid depositions of both the sisters completely damage the prosecution story on two counts, firstly because had there been so much struggle as has been alleged then the injuries were bound to appear on the person of both the sisters especially in view of the fact that duration of the incident has been said to be half an hour by PW4 in her testimony. Secondly, there was not so much time with the appellants in doing so, as the mother of both the complainants was following them at a distance of ¾ paces. Thus, both the sisters were grown up ladies and they could put up a great deal of resistance which would have resulted into minor injuries to both the sides. Both the complainants have not even wispered about the injuries on their persons. There is no medical evidence to support the deposition of the complainants in this. 13. The prosecution story also dashed to the ground in view of the fact that neither the torn clothes were ever taken into possession by the police nor the said clothes were ever produced by PW4 and PW5 to the police. 14. Daler Kaur, while appearing as PW4, has stated that on the day of occurrence both sisters were wearing white shirts white chunnies and green salwars. The aforesaid piece of evidence is completely contrary to the deposition made by Sukhwinder Kaur, PW5, who in her testimony has stated that on the day of occurrence she was wearing green suit whereas PW4, was wearing Angoori (light green) colour suit. 15. That the story of the prosecution is also not trustworthy especially in view of the fact that the occurrence is said to have taken place on 29.12.1998 at 10.00 a.m. i.e. in the broad day light and near to the village. Ex.PB and Ex. PD the site plans, go to show that on western-eastern side of the place of occurrence there is a sadak sar-e-aam (pucca road) whereas on its southern-northern side, there is a gohar sar-e-aam (kutcha road). It cannot be believed that the appellants would dare to commit such an act in view of the location of the site of occurrence. No independent witness has been produced by the prosecution even to show that the complainants were seen rushing out of the place of occurrence. 16. PW4, has deposed that the matter was reported to the police on the same day and the Panchayat was convened in the village on the day of occurrence itself at about 7.00 pm at the house of Kansi Ram Lamberdar. The Panchayat was attended by a number of villagers including Laxman Singh, Madan Singh and Malkiat Singh. PW5 states that no Panchayat was convened in the village. The Panchayat was attended by a number of villagers including Laxman Singh, Madan Singh and Malkiat Singh. PW5 states that no Panchayat was convened in the village. Thus the evidence of both the complainants is discrepant and contradicting. If the Panchayat was convened at the house of Kansi Ram Lamberdar why this fact was not proved by way of leading evidence by producing any member of the Panchayat. The non-examination of any member of the Panchayat in itself is sufficient to discard the story of the prosecution. 17. The prosecution story is also not believable in view of testimony of Smt. Harpal Kaur, PW7, who stated that “she was at a distance of 5-6 paces” from their daughters. Again stated in her cross-examination that she was at a distance of “3-4 feet away” from their daughters. This witness further stated that their daughters were lying in naked condition and both the appellants were also in naked conditions. It is difficult to believe that firstly the appellants would dare to commit such an unholy act with PW4, and PW5, in the presence of their (complainant's) mother and that too when she was at a distance of “5-6 paces”. It is highly improbable that the appellants would strip off the clothes of both the complainants and would make them naked, put off their own clothes, make them lie on ground & lay upon them altogether within the time having been consumed by the mother of the complainants to reach at the spot especially when it has come in evidence that she was at a distance of 4-5 paces. This aspect clearly falsifies the prosecution story. 18. The story of the prosecution further suffers from another infirmity as no complaint was ever made by the complainant party to the higher authorities to establish that the police at police station Bilaspur did not register their FIR. There is no document on record or any evidence to prove that from 29.12.1998 to 8.1.1999 the complainants ever made any complaint against the police for their inaction which fact by itself is sufficient that the entire story is woven with malafide intention against the appellants. 19. The learned trial Court has failed to appreciate the fact that the uncle and nephew i.e. Babu Singh (Appellant No.1) and Harvinder Singh (appellant No.2), respectively would join together to commit such a crime. 19. The learned trial Court has failed to appreciate the fact that the uncle and nephew i.e. Babu Singh (Appellant No.1) and Harvinder Singh (appellant No.2), respectively would join together to commit such a crime. At the time of occurrence Babu Singh is shown to be of 50 years whereas Harvinder Singh was of 24 years. It does not appeal to the common sense of a person of ordinary prudence that uncle and nephew together would try to commit rape upon both the complainants especially when they are blood related. 20. The DSP Jagadhari to whom complaint Ex.PA dated 8.1.1999 was submitted and which ultimately was treated as FIR, was never examined by the prosecution. No official of the office of DSP was examined to prove the exact date of receipt of application in the office. 21. The place of occurrence could not be proved by the prosecution. The allegation is that the occurrence took place in the sugarcane fields of Babu Singh appellant No. 1 and as per the site plan EX.PD prepared by Pala Ram ASI PW3 at the pointing out of PW4 this site was found to be in the fields of Raunki Ram. Similarly, as per the scaled site plan Ex.PB prepared by Gurbax Singh Patwari, PW2 the field has also been shown belonging to Raunki Ram, Miha Singh, Gurnam Singh and others as co-sharers. Thus the exact place of occurrence could not be identified. 22. The cummulative effect of all the circumstances is that the prosecution story is doubtful and improbable. Therefore, both the appellants are entitled to the benefit of doubt. 23. Resultantly the appeal is allowed, judgment of conviction and sentence of appellants is set aside Babu Singh and Harvinder Singh accused-appellants are acquitted of the charge framed against them by giving them benefit of doubt. Appeal allowed.