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2013 DIGILAW 1283 (PNJ)

State of Punjab v. Amrik Khan

2013-09-23

ANITA CHAUDHRY, M.JEYAPAUL

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JUDGMENT Anita Chaudhry, J. (Oral) The present appeal is directed by the State against the judgment of acquittal passed by Addl. Sessions Judge, Patiala vide judgment dated 11.07.2002 recorded in FIR No.128 dated 28.02.2001 registered under Section 376 IPC at police station Sadar Rajpura. The incident took place on 25.02.2001 around 4.00 pm. The prosecutrix (name withheld) aged 35 years is a resident of Balsuan village. Her husband is a mason who used to stay outside the village for a number of days. The prosecutrix has four children. The prosecutrix had gone to the house of the accused who was a tailor, to get a suit of her daughter stitched. The allegations are that the accused caught hold of her and threw her on the bed and broke the string of her salwar and raped her. She raised alarm and her cries attracted her son Jasbir Singh. The accused then ran away from the spot. The husband of the prosecutrix returned to the village on 28.02.2001. The incident was narrated to him and on the same day the matter was reported to police and the formal FIR Ex.PD/2 came into existence. The prosecutrix was sent for medical examination. Investigations were completed and report was laid against the accused under Section 376 IPC. The prosecution examined the prosecutrix, her son and her husband besides the medical officer and the witnesses, who proved the link evidence besides the investigating officer. The medical officer medico-legally examined the prosecutrix and had noted the following injuries on her person: No external mark of violence on body was present. On P/V examination, no injury was present on introitus or vaignal wall. No signs of inflammation was present. Hymen/remnants of hymen were not present. Vagina admitted two fingers loosely, multiparous in size and was anteverted. Three vaginal swabs were taken from fornices and put in three test tubes and sealed and handed over to police for semen analysis by Chemical examiner. After the report of Chemical Examiner was received, the medical officer gave the opinion that the possibility of sexual intercourse having taken place could not be ruled out. After the close of the prosecution evidence, the incriminating evidence adduced by the prosecution was put to the accused, who abjured the trial. He examined one witness in his defence, Harnek Singh, Sarpanch of the village. After the close of the prosecution evidence, the incriminating evidence adduced by the prosecution was put to the accused, who abjured the trial. He examined one witness in his defence, Harnek Singh, Sarpanch of the village. The trial court acquitted the respondent primarily on the ground that there were contradictions in the evidence and the medical evidence did not support the prosecution case and there was delay in reporting the incident to the police. The appeal was carried to the High Court by the State. We have heard learned counsel for the parties and with their assistance carefully perused the record. Learned counsel for the State had submitted that the statement of the prosecutrix should be acted upon and can be made the basis for conviction without any corroboration and the Courts do not insist upon corroboration and the statement of the prosecutrix was trustworthy and the respondent cannot list any reason for falsely implicating him. It was urged that the medical report also supports the prosecution and semen was found in the FSL report. It was urged that the prosecutrix had explained the delay in lodging the FIR as her husband was away and on his return the matter was reported. It was contended that the only material, which the defence could bring on record is that prosecutrix was a quarrelsome lady and there is nothing on record regarding her character and since the prosecutrix was a married lady, there could be no injuries. Per contra, the submission made by learned counsel for the respondent was that the FIR was delayed and if the son, who is a major, had reached in front of the house and had come to know about the incident there was no reason for not making a complaint to the police on the same day. It was urged that the prosecutrix has made major improvement in her statement and she had stated that she was gagged and she fell unconscious after the incident and it is a case of married woman, who was 13 years older to the appellant and it could be a case of consent and therefore, there was no injury or any external or internal mark of injury on part of the body. It was urged that the story put-forward by the prosecution is not genuine. It was urged that the story put-forward by the prosecution is not genuine. It was contended that the prosecutrix had gone to the jail to meet the accused and she wanted to extract money and the explanation given by her is false. It was urged that the chemical examiner's report would not help the prosecution as the prosecutrix is a married lady and she was residing in the company of her husband in the intervening period. Reliance was placed upon K.Venkateshwarlu vs. State of Andhra Pradesh, 2012(3) RCR (Criminal) 990 and Narender Kumar vs. State (NCT of Delhi) 2012(3) Criminal Court Cases 169. In order to test the veracity of the prosecution made by the prosecutrix it is necessary to refer her statement but before that reference to the first statement made to the police would be relevant. In Ex.PD the prosecutrix had stated that she had gone to the house of the accused in order to get the suit of her daughter stitched. Amrik Khan was alone in the house then and a tape-recorder was being played at full volume. When the prosecutrix stepped into witness box, she admitted that she knew tailoring and she herself stitched clothes and her explanation was that she had gone to the house of the accused to get the suit cut from the tailor. The explanation was given by her when she was confronted with the statement that she used to stitch the clothes herself. The prosecutrix volunteered and had deposed that there was no one in the house and they had gone for a wedding. Admittedly, there is a delay of three days in reporting the incident. It has come in evidence that Amrik Khan resides in the neighbourhood. His house adjoins the house of the mother-in-law of the prosecutrix and on one side is the house of her husband's uncle. Her house is a little further. She had admitted that the distance between her house and the house of accused was at least 30-35 feet. The time of the incident was stated to be around 4.00 pm in the month of February, 2001 when most of the people would be outside their houses. Jasbir Singh -PW-3 son of the prosecutrix came forward to support the statement of the prosecutrix. The time of the incident was stated to be around 4.00 pm in the month of February, 2001 when most of the people would be outside their houses. Jasbir Singh -PW-3 son of the prosecutrix came forward to support the statement of the prosecutrix. He had stated that on hearing the cries of his mother, he reached the house of the accused and saw the accused running away. He found his mother crying and she told him that she had been raped. The question is whether his statement can be accepted? The accused lives along with his mother, brothers and sister-in-law. According to the prosecutrix, there was no one in the house that evening. It is difficult to accept that the cries of the mother could be heard by the son, who was in his house, which is not close and none of the neighbour heard her. It is settled legal proposition that if the statement of the prosecutrix inspires confidence then it can be accepted by the Court and conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons, which necessitate the Court for corroboration. Corroboration to the testimony of the prosecutrix is not a requirement of law but prudence demands that where the Court finds it difficult to accept the version of the prosecutrix on its face value then it may search for evidence direct or circumstantial which may lend assurance her testimony. The evidence of the prosecutrix in this case suffers from serious infirmities and inconsistencies. The prosecutrix has made major improvement in her case. She herself was a tailor and used to do stitching work. There was no reason for her to go to the house of the accused. In her complaint she had mentioned that she had gone to the house of the accused to get the suit stitched and when confronted with the fact she made a different statement. The prosecutrix is a married women and is 12 years older to the respondent. The medical officer did not find any injury on her person. There was no inflammation. There was no external mark of injury. Therefore, it was necessary in the given circumstance to look for evidence which could lend assurance to her testimony for various reasons also because there is a delay in lodging the FIR. The medical officer did not find any injury on her person. There was no inflammation. There was no external mark of injury. Therefore, it was necessary in the given circumstance to look for evidence which could lend assurance to her testimony for various reasons also because there is a delay in lodging the FIR. It is not a case where a child or a young girl had been raped. It is a case of rape on a married woman, who had a major son. The son was by her side within minutes of the incident. The in-laws of the prosecutrix reside in her neighbourhood. She could have immediately informed the police. One more circumstance, which throws a doubt regarding the incident is the visit made by the prosecutrix to the jail. The prosecutrix has admitted that she had gone to the jail to see the accused. Her husband explained that the prosecutrix wanted to see whether the accused was confined in jail. He had given an explanation that the accused was released by the police for about 1½ months and therefore she was to see whether he had returned to the jail. A perusal of the record however, shows that the accused after his arrest remained in custody throughout. His bail application had been dismissed and he was never released on bail during trial. It is a clear case where the prosecutrix and her family had been deliberately made improvements and have given false explanations. The contradiction referred to herein above are minor but have a serious impact on the case. The FSL report does say that semen was found but no further examination was carried out to find out the origin. The prosecutrix had remained in the company of her husband after the incident and the presence of semen was natural. The Hon'ble Apex Court on more than one occasion has held that if the view taken by the trial Court is legally possible view, then the High Court cannot set it aside and substitute it by its own view merely because that view is also possible. The presumption of innocence of an accused is strengthened by his acquittal and unless there are strong and compelling circumstances, which rebut that presumption and conclusively establish the guilt of the accused, the order of acquittal cannot be set aside. The presumption of innocence of an accused is strengthened by his acquittal and unless there are strong and compelling circumstances, which rebut that presumption and conclusively establish the guilt of the accused, the order of acquittal cannot be set aside. In this case, the order of acquittal cannot be said to be perverse. No interference is called for. The crime may be heinous and morally repulsive but moral considerations cannot be a substitute for legal evidence. The trial Court had rightly discarded the evidence as unworthy of reliance. The appeal is dismissed. Bail bonds and surety bonds furnished by the appellant stand discharged.