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2013 DIGILAW 1047 (PNJ)

Amit Kumar v. State of Punjab

2013-08-13

ANITA CHAUDHRY

body2013
JUDGMENT Anita Chaudhary, J. 1. This judgment would dispose of Criminal Appeal No. 1992-SB of 2007 bearing title Amit Kumar @ Vicky vs. State of Punjab and Crl. Revision No. 1331 of 2008 bearing title Ranjit Kaur vs. The State of Punjab and Another. Appellant Amit was convicted under Section 376 IPC and sentenced to undergo rigorous imprisonment for 7 years and pay-a fine of Rs. 3,000/- and in default of payment to further undergo rigorous imprisonment for 5 months in FIR No. 165 dated 23.04.2005, registered at Police Station Sadar, Hoshiarpur. 2. Unfolding the factual matrix, the prosecutrix (name withheld) made a written complaint to the police on 19.04.2005. She was married to one Paramjit Singh about 10 years ago and had two children. Her husband went abroad and did not return. She returned to live with her mother at village Khanoor. Appellant Amit was a friend of her brother Sukhjit. He used to come to her house often. Sukhjit went abroad about one and a half months prior to the incident. The appellant came to the house of the prosecutrix when she was alone. On that day her mother had gone to Hoshiarpur for some personal work. The complainant was suffering from temperature. The appellant came to enquire about her health. She disclosed to him that she was running temperature. The accused left the house to bring medicine. The appellant brought some medicine and gave it to her. The prosecutrix took the tablets and fell unconscious. She regained consciousness after an hour and found that she was not wearing her Salwar and had been raped. After few days, the appellant again visited her house, the prosecutrix asked him to leave but the accused insisted on staying and disclosed that he had taken some photographs of her in a naked position and if she did not fulfil his demands, he would paste her photographs on the village walls. The allegations made by the prosecutrix were that the accused continued raping her under threat. The prosecutrix has also mentioned that the appellant had shown her some of the photographs and asked her to part with her gold ornaments. Allegations were made that the appellant had threatened to eliminate her children as well. 3. The above complaint was sent to the SHO of the concerned Police Station for inquiry. On the basis of the complaint, the FIR was lodged on 23.04.2005. Allegations were made that the appellant had threatened to eliminate her children as well. 3. The above complaint was sent to the SHO of the concerned Police Station for inquiry. On the basis of the complaint, the FIR was lodged on 23.04.2005. The prosecution case is that the accused was arrested and during interrogation he had disclosed in the presence of Jasbir Singh that he had the photographs with him and could get the same recovered and that he also had the gold ornaments with him which he had converted into ornaments and they were with his wife and some ornaments had been sold. The police could not recover the photographs or the ornaments. After the completion of investigation, a report was laid in the Court under Sections 376, 383 and 506 IPC. 4. Charge was framed under Sections 376/388 IPC. The accused pleaded not guilty and claimed trial. The prosecution had examined Dr. Ritu Narad, Medical Officer PW1. On local examination she had found no external mark of injury, the hymen was absent and there was no fresh tear. The medical examination was carried out on 25.04.2005 in Civil Hospital, Hoshiarpur. Swabs from the vagina, cervix and the posterior fornix were taken which were sent to the chemical examiner. The report is Ex. PB. No spermatozoa was seen. 5. Besides it, the prosecution had examined the prosecutrix, PW3. She stated that she had been married to Paramjit Singh for the last 10 years and 5-6 years earlier Paramjit had gone abroad and had not returned and she came to reside with her mother. She stated that she had two sons from the marriage. She stated that Amit was a friend of her brother and he started visiting her house. She disclosed that one and a half month prior to 19.04.2005 when her mother was away and she was alone, the accused came and gave her some medicine as she was suffering from fever and after consuming the same, she fell unconscious. She deposed that when she gained consciousness, she found that she was not wearing her Salwar and she felt that the accused had committed rape upon her. She deposed that when she gained consciousness, she found that she was not wearing her Salwar and she felt that the accused had committed rape upon her. She stated that she did not disclose this to anyone and the accused came again to her house after some days and she asked him to return but he extended threats and told her that he had taken some photographs of her. She deposed that the accused had showed the photographs and told her that if she did not compromise then he would paste her photographs in the village and he used to rape her under threat. She further disclosed that the accused took away her gold ornaments weighing 20 tolas which were included two gold chains, one set of gold, two rings and two bangles. She stated that the accused started showing her photograph at the village bus stand and this fact was disclosed to her mother by someone and they lodged a complaint which was drafted by an advocate. The witness was confronted with the complaint as there was no reference to the fact that the accused had shown her photographs at the village bus stand. The fact that the accused had shown her naked photographs in the house was not mentioned in the complaint. The witness was duly confronted with the complaint. The prosecutrix admitted that there was a land-line phone installed at their house and her brother had a mobile phone. She stated that her brother had given his mobile phone to the accused. The prosecutrix admitted that she had made 200 calls between 01.03.2005 to 31.03.2005 on the mobile phone. She stated that her brother was abroad during this period and she had made no call abroad. She stated that the wife of the accused and her parents had attacked their house and had insulted them and the matter was reported to the police and a compromise was effected. She admitted that the accused had got married to Jasbir Kaur on 02.04.2005. She admitted that no complaint was made to the police prior to 19.04.2005. She denied that a story had been concocted as the accused had refused to marry her. She admitted that her brother's wife had got a case registered against them under Section 406, 498-A IPC. She admitted that her father-in-law had filed a petition seeking custody of her minor children. She denied that a story had been concocted as the accused had refused to marry her. She admitted that her brother's wife had got a case registered against them under Section 406, 498-A IPC. She admitted that her father-in-law had filed a petition seeking custody of her minor children. She volunteered that the petition was filed after the accused had shown the photographs. She could not give the name of persons who had shown the photographs to her in-laws. She admitted that the wife of the accused had filed a complaint on 02.09.2005 with S.S.P. Hoshiarpur in which a compromise was effected. She admitted that her husband had contacted marriage while he was abroad and had not returned. She stated that she has no receipt to show that she had purchased any gold. 6. Sanjeev Kumar PW4 deposed that he knew the prosecutrix for the last 10-12 years. He stated that the prosecutrix had got gold ornaments prepared from him but he had not kept any record with him. 7. Hardip Kaur PW5 mother of the prosecutrix supported the statement given by her daughter. She stated that when her daughter was alone, the accused took some photographs and threatened to show it to the villagers and he had been committing rape upon her and had also taken away gold ornaments and the total gold taken by him weighed about 20 tolas. She stated that she went to the house of Amit the next day and told Amit upon which he started hurling abuses and showed the naked photographs of her daughter. She stated, later on after registration of the case, she had received a registered letter Ex. P1 addressed to her daughter which contained the photograph. 8. Avtar Singh PW6 deposed that 5-6 days prior to the registration of the case, he was standing at the bus stand when 4-5 persons including the accused were present and Amit showed naked photographs of the prosecutrix to them and all of them went to Ranjit Kaur's house and told her about the facts upon which Ranjit Kaur started crying and told them that Amit was blackmailing her daughter and had taken her gold ornaments. 9. Jasbir Singh DSP had carried out the investigation. 9. Jasbir Singh DSP had carried out the investigation. He stated that the accused was interrogated and he suffered a disclosure statement and had stated that he had got some gold ornaments prepared and some ornaments had been sold. He stated that no recovery could be effected. He stated that no photographs could be recovered. He stated that he did not make Inquiries about the matrimonial dispute of the prosecutrix and her husband. 10. The accused abjured the trial and pleaded false implication. He stated that a false story had been concocted. He produced a clerk who brought the record of the proceedings initiated under Section 107/151 Cr. P.C. against him on the complaint lodged by the prosecutrix. He had stated that the accused was discharged in that case. 11. The trial Court had recorded conviction under Section 376 IPC and had convicted him to the sentence mentioned aforesaid. The appellant is aggrieved and has preferred this appeal. A revision has also been filed by the prosecutrix seeking enhancement of sentence. 12. I have heard the submissions of both the sides and the counsel representing the prosecutrix. 13. It was contended on behalf of the appellant that the prosecutrix is a married lady and was 29 years old and was living separately from her husband for the last 8-10 years and her husband had gone abroad and had not returned. It was urged that the accused was a friend of her brother and the prosecutrix wanted to many him but he married another girl on 02.04.2005 and the prosecutrix was infuriated and got a false report lodged. It was urged that the medical officer had found no injury and the hymen was absent and even the chemical examiner report does not support the prosecution. It was urged that the prosecutrix had made 2.00 calls to the accused in the month of March and she was agitated as Amit was marrying another girl. It was urged that the story of the photograph and the gold ornaments is concocted and there was no recovery pursuant to the disclosure. It was contended that the police also could not recover the photographs but during trial the mother had produced a naked photograph of a girl. It was urged that the story of the photograph and the gold ornaments is concocted and there was no recovery pursuant to the disclosure. It was contended that the police also could not recover the photographs but during trial the mother had produced a naked photograph of a girl. It was contended that the face of the girl is not clear and it is the photograph of some other girl and had been introduced just to seek sympathy of the Court. It was urged that the prosecutrix had filed a complaint against Amit and his new wife as she was enraged and the complaint had been given out of vengeance. Reliance has been placed upon M. Selvakumar vs. Inspector of Police, All women Police Station, Thirumangalam, Madurai District, 2013 (2) RCR (Crl.) 614, Nikhil Parasar vs. State of Government N.C.T. of Delhi, 2010 (2) RCR (Crl.) 259, State of Haryana vs. Shashi Kant alias Bam Bam alias Lambu, 2010 (1) RCR (Crl.) 338 and Banna Lal vs. State of Rajasthan, 2003 (3) RCR (Crl.) 146. 14. On the other hand, the counsel representing the complainant had urged that no self respecting woman would come forward and make a humiliating statement affecting her honour. It was urged that the appellant had taken undue advantage of his friendship with the brother of the prosecutrix and he had given her a medicine upon which she had fallen unconscious and she was raped. It was urged that on account of shyness, the matter was not reported to the police but when the accused started blackmailing her and started showing the photographs then a complaint was lodged and this is one of the rare cases where maximum punishment should have been awarded. It was urged that the post conduct of the appellant should also be noted and the appellant had threatened the girl and another complaint was pending. Reliance was placed on Swaroop Singh vs. State of Madhya Pradesh, 2013 (2) RCR (Crl.) 926. 15. The counsel representing the State had urged that an application was given by the prosecutrix and the police report was placed on the record and it was found that the report was false but that is a different matter and the statement of the prosecutrix should be accepted and the Court should not seek corroboration of the statement made by a victim of rape. 16. 16. The case put forward by the prosecution is that the prosecutrix was raped by appellant Amit Kumar after she was given some medicine and the appellant thereafter look her photographs and started blackmailing her and when she did not succumb to the blackmailing, the appellant started showing the photographs in the village. The prosecutrix is a married lady. Her husband had deserted her and had married again and had settled abroad. The prosecutrix had returned to her mother's house several years ago. She had two children aged 10 years and 5 years. The case of the prosecutrix is that her mother had gone out of station and she was alone and the appellant came to see her and she told him that she was suffering from fever upon which the accused brought some medicine and after consuming it, she became unconscious and later when she gained consciousness, she found that she was not wearing her clothes and the accused had committed rape upon her. The prosecutrix could not give the date or the time of the incident. Her statement was also silent with respect to the fact whether her children were at school or at home on that day. The prosecutrix did not divulge the details which were expected from her. Since, the time and date of the occurrence was not giver, by her, therefore, it is difficult to assess the time period and the period when the appellant had misused the prosecutrix. The prosecutrix also did not depose as to when her mother had returned. The prosecutrix did not confide to her mother or to any other person. The medical evidence does not show any injury. The hymen was absent. There is no support so far as the medical evidence is concerned. In the case of sole evidence of the prosecutrix, the Apex Court had held that:- "A woman, who is the victim of assault, is not an accomplice to the crime but a victim of another person's lust then her evidence need not be tested with the same amount of suspicion as an accomplice and her statement should be accepted." 17. In the case of sole evidence of the prosecutrix, the Apex Court had held that:- "A woman, who is the victim of assault, is not an accomplice to the crime but a victim of another person's lust then her evidence need not be tested with the same amount of suspicion as an accomplice and her statement should be accepted." 17. The victim of a rape is undoubtedly a competent witness and her evidence may receive the same weight as given to an injured witness but the Court must be alive and conscious to the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge. If for some reason, the statement or the evidence brought by the prosecution appears to be shaky then the Court can look for evidence which may lend assurance to the testimony of the prosecutrix that is short of corroboration. That kind of evidence would be required to support the testimony of the prosecutrix and circumstances of each case have to be examined. 18. Here the prosecutrix is a adult woman married for over 11 years. The incident took place in her own house. The accused was known to her as he was her brother's friend. Normally in the village scenario, it is unusual for the men to openly visit a women at her house. Admittedly he was on visiting terms. There is evidence on the record that in that particular month of March, 2005 there was an exchange of 200 phone calls between appellant and the prosecutrix. Therefore, keeping all this into view, the case has to be examined more carefully and to see whether the explanation furnished by her is sufficient or her version is discrepant on material, particular and her-story is doubtful. There is no quarrel with the proposition that conviction can be based on the sole testimony of the prosecutrix but only if it inspires confidence and in absence of circumstances which militate against her veracity. 19. As already noticed, we can take no help from the medical evidence. The prosecutrix has admitted that the appellant was a regular visitor to her house. Except the first incident, her mother and children would have been in the house. 19. As already noticed, we can take no help from the medical evidence. The prosecutrix has admitted that the appellant was a regular visitor to her house. Except the first incident, her mother and children would have been in the house. It is difficult to accept that the appellant who was living in the neighbourhood kept a watch and only came when the prosecutrix was alone in the house. It does not appeal to reason. There was no reason for the prosecutrix to keep quite and not even confide in her mother. She was not in her teens. She was a mature lady. She knew in what situation she had put herself. She did not even approach the police. The exchange of phone calls between the appellant and the prosecutrix in fact show that both the appellant and the prosecutrix were in touch with each other very often and were intimate. It is not the case of the prosecutrix that the accused had offered to marry her or had refused her. The timing of the report is important. The matter was reported to the police on 19.04.2005. The appellant had got married on 02.04.2005. All was well earlier. 20. The prosecutrix had alleged that the accused was blackmailing her with her nude photographs and the accused had shown photographs to the villagers. The police was unable to recover any photograph. In the midst of the trial, after the statement of the prosecutrix had been recorded, her mother produced an envelope which they had received after the case was registered and recording of evidence had commenced. It is said to contain a nude photograph of the victim. The envelope was taken on record as Ex. P1. The statement was given by the mother on 08.11.2006. The letter Ex. P1 was posted on 2nd March, 2006. There is no reason why this envelope was not handed ever to the police and why it was not introduced in the statement of the prosecutrix. The reason is obvious; the face of the girl is not visible in the photograph. If the prosecutrix had received the nude photograph in the envelope before she had made a statement, she would have produced the photograph herself and the defence could have got an opportunity to confront the prosecutrix with respect to this photograph. 21. The reason is obvious; the face of the girl is not visible in the photograph. If the prosecutrix had received the nude photograph in the envelope before she had made a statement, she would have produced the photograph herself and the defence could have got an opportunity to confront the prosecutrix with respect to this photograph. 21. It is difficult to believe that the accused during the trial would take the risk of sending nude photograph of the prosecutrix to her so as to create evidence against himself. 22. The prosecutrix had admitted that she had exchanged 200 calls in the month of March, 2005. She has offered no explanation regarding this. A perusal of the file reveals that her father-in-law had filed a petition under the Guardians and Wards Act, seeking custody of the minor child. Therein the date of marriage of the prosecutrix is mentioned as 19.04.1992. The incident is of year 2005. It is also mentioned in the petition that Paramjit Singh, her husband had left for Newzealand 8 years ago. The prosecutrix was residing for almost 8-9 years with her parents. It appears that she had developed intimacy with the appellant. The revisionist has placed on record a complaint which was filed in 2009 where again the same allegations have been levelled against the appellant. During the pendency of this appeal, a report was submitted by the prosecution in response to the prayer for suspension of bail and it was mentioned in the reply filed by the State dated 01.12.2009 that the application given by the prosecutrix against the appellant was found to be false. From the above, it is dear that the trial Court went wrong in corning to conclusion that the charge of rape had been proved. No doubt, no woman would ordinarily like to make false allegations of having been subjected to rape as that bring blemish upon her but the statement of the prosecutrix cannot be accepted in every case. It is not the law that it has to be blindly accepted. It has to be closely examined and evaluated with regard to the facts and circumstances as borne out from the record. In the present case, the prosecution had not been able to prove the charges. The statement of the prosecutrix is not reliable and cannot be acted upon. Therefore, the appeal is accepted. It has to be closely examined and evaluated with regard to the facts and circumstances as borne out from the record. In the present case, the prosecution had not been able to prove the charges. The statement of the prosecutrix is not reliable and cannot be acted upon. Therefore, the appeal is accepted. The judgment of the lower Court is reversed. The accused be released if in custody and not required in any other case. As a consequence thereof, the revision stands dismissed. Appeal dismissed.