Research › Search › Judgment

Punjab High Court · body

2013 DIGILAW 547 (PNJ)

Suman v. State of UT, Chandigarh

2013-04-30

JITENDRA CHAUHAN

body2013
JITENDRA CHAUHAN, J. The present criminal appeal has been preferred by the appellant, namely, Suman, challenging the judgment and order dated 14.10.2011, passed by the Additional Sessions Judge, Chandigarh, (hereinafter as 'the trial Court'), convicting the accused (herein the appellant) for committing offence under Sections 376 read with Section 120B, 363, 366, 342, 346 and 506 of the Indian Penal Code, (for short, 'the IPC') and sentencing her as under: Offence under Sections Sentence 376 read with Section 120 Seven years rigorous B IPC imprisonment with fine of Rs.1,000/and in default of payment of fine to undergo RI for 15 days. 363 IPC Five years rigorous imprisonment with fine of Rs.1,000/and in default of payment of fine to undergo RI for 15 days. 366 IPC Seven years rigorous imprisonment with fine of Rs.1,000/and in default of payment of fine to undergo RI for 15 days. 342 IPC One year rigorous imprisonment. 346 IPC Two years rigorous imprisonment. 506 IPC One year rigorous imprisonment. The brief facts of the case in hand, as recorded by the learned trial Court in the impugned judgment, are reproduced as under: “2. In nutshell the version of prosecution is that on 6.8.2010, SI Ranbir Singh alongwith other police officials was present near Forest Nursery, village Darua, Chandigarh in connection with crime detection duty. It was at about 5 p.m. one Smt. Savitri Devi, wife of late Vish Ram, resident of House No.38, village Darua, Chandigarh (complainant of the present case) came alongwith her son Durga Parshad and daughter (prosecutrix) and got recorded her statement to this effect that her husband had already died about eight years ago. She is having five children. On 3.7.2010, her daughter prosecutrix, aged about 14 years disappeared from the house, report regarding which was already lodged with police. Thereafter, efforts were made to locate her at their own level, but she could not be traced. On previous night she had come back to home at her own. At that time, she was looking frightened and then next day, when she became normal, she told the complainant that on 3.7.2010, she was alone at home. At about 11:30 A.M. Suman, who earlier used to reside in front of their house came to her and she took prosecutrix with her on the pretext that she wanted to purchase some clothes for her, as she has no child of her own. At about 11:30 A.M. Suman, who earlier used to reside in front of their house came to her and she took prosecutrix with her on the pretext that she wanted to purchase some clothes for her, as she has no child of her own. Then she came under her influence and went with her. Then she took her to a house at village Baltana and remained there till evening and when in the evening, she expressed her desire to go to home, then Suman said to her as night was approaching and she would drop her in th next morning and when her daughter insisted to drop her at her house, then Suman accused forcibly locked her in the room and then in the night her husband Raju @ Shanki also came. He also threatened her that in case, she insisted to go to home, then she would be done to death. Out of fear, she remained silent. They even used to get house hold work done from her. She further got recorded that her daughter had told her that husband of accused Suman, Shanki used to beat her daughter and even raped her. He also threatened her that in case, she told about it to anybody, she would be done to death. She also got recorded that her daughter told her that when Suman went to asleep, then Shanki used to commit rape on her. Then she further got recorded that somehow by chance when Suman was absent from the house, she ran away from there. A prayer was made to take action against accused Shanki and her wife Suman, as Suman had kidnapped her daughter and kept confined her daughter in their house, where accused Shanki had committed rape upon her in which accused Suman had assisted her husband. On the basis of this statement, after recording police proceedings, a ruqa was sent on the basis of which an FIR was registered against the accused. Investigation of the case was started. The prosecutrix was sent for medico legal examination. During investigation accused Suman was arrested. Accused Shanki could not be arrested despite best efforts as he went underground and accused Suman also could not disclose his whereabouts. So, he was declared proclaimed offender. Investigating Officer collected the other relevant evidence during investigation. Investigation of the case was started. The prosecutrix was sent for medico legal examination. During investigation accused Suman was arrested. Accused Shanki could not be arrested despite best efforts as he went underground and accused Suman also could not disclose his whereabouts. So, he was declared proclaimed offender. Investigating Officer collected the other relevant evidence during investigation. Investigating Officer sent vaginal swab, perineal swab, pubic hair, head hair, nail clipping, blood sample, a yellow Kameez, blue Salwar and Pink Dupatta of the prosecutrix to Central Forensic Science Laboratory, Chandigarh for analysis purpose. Site plan was prepared, statements of the witnesses were recorded. Then after completion of investigation, challan against the accused was presented.” Charges under Sections 376, 120B, 363, 366, 342, 346 and 506 IPC were framed against the accusedappellant to which, she pleaded not guilty and claimed trial. In order to substantiate the charges against the accused, the prosecution examined as many as nine witnesses, viz., Rajinder Singh as PW1; Dr. Pragya Goel as PW2; Prosecutrix as PW3; Savitri mother of the prosecutrix and complainant of the present case as PW4; Constable Minakshi as PW5; Rajeev, JBT, Government High School, Darua as PW6; Head Constable Gulzar Singh as PW7; Constable Ombir as PW8 and SubInspector, Ranbir Singh as PW9. In her statement under Section 313 Cr.P.C., the accused appellant denied all the allegations of the prosecution case and pleaded false implication in the case. Though, she opted to lead evidence in defence, but did not lead the same. The learned trial Court, after hearing both the parties, convicted the present appellant under Sections 376 read with Section 120B, 363, 366, 342, 346 and 506 IPC and sentenced for the term as indicated in para 1 of this judgment, vide judgment and order dated 14.10.2011, which is under challenge in the present criminal appeal. This appeal was admitted on 21.11.2011. The learned counsel for the appellant contends that there were material improvements in the statement of the complainant and the mother of the prosecutrix. In her statement under Section 161 of Cr.P.C., she stated that prosecutrix is her fourth issue whereas in deposition before the Court as PW4, she made categorical statement that the prosecutrix is her third issue. Learned counsel for the appellant states that benefit of the same must go to the appellant. It is further submitted that despite specific opinion made by PW2 Dr. Learned counsel for the appellant states that benefit of the same must go to the appellant. It is further submitted that despite specific opinion made by PW2 Dr. Pragya Goel, no CRA No.2978SB of 2011 6ossification test was carried out. In the absence of ossification test, the school leaving certificate loses its sanctity. It is lastly contended that the appellant is the wife of the main accused Raju @ Shanki, who allegedly committed rape upon the prosecutrix. He submits that a wife would not be a party to seduce the prosecutrix and making her available to fulfill the sexual lust of her husband. On the other hand, the learned counsel for the State submits that no ossification test, as claimed by the appellant, is required in the absence of categorical assertion in school leaving certificate on record. The contradiction, if any, in the statement of complainant is not material. Even the case of the appellant before the learned trial Court was that she willingly accompanied her husband. The prosecutrix was detained by the appellant for a period of about one month. The appellant has been attributed a specific role in alluring the prosecutrix. I have heard the learned counsel for the parties and perused the record with their assistance. This Court finds that admittedly there is contradiction in the statement, under Section 161 of Cr.P.C. and deposition before the Court, of PW4 – the complainant who is mother of the prosecutrix. In the FIR Ex. PC her assertion is that the prosecutrix is her fourth child whereas in her deposition before the trial Court, she has stated that the prosecutrix is her third child. The another very important aspect of the matter which requires consideration is whether a wife is expected to arrange a female for the satisfaction of the lust of her husband. It is highly improbable and inbelievable that while the appellant herself was a young lady and she would make an effort to procure a female and further offer her to her husband. PW3 the prosecutrix stated in cross-examination that she do not know Suman, she did not tell anybody from her family members that she was going with Suman and at that time her elder sister Archna; younger brother Om Parkash were there in the house; they also did not know that she was going with Suman. PW3 the prosecutrix stated in cross-examination that she do not know Suman, she did not tell anybody from her family members that she was going with Suman and at that time her elder sister Archna; younger brother Om Parkash were there in the house; they also did not know that she was going with Suman. It is not believable that a child will go with a stranger lady without telling her to other family members. This Court has read the statement of the prosecutrix. She is telling the exact time of reaching at market, house of the accused, arrival of co-accused in the house, leaving the room by Suman and visiting the other places, without wearing any wrist watch. She says that no wall clock was hanging in the said room. She remained at the house of the appellant about one month. She further goes on to say that her arm was caught by accused Shanky at 9:30 p.m.; at that time Suman was not present at the house, when he caught hold of her arm, nothing more was done by him at that time; and he said nothing to her at that time. Now the role of appellant Suman, as stated by the prosecutrix is that she told Suman with regard to the fact of catching hold of her arm by proclaimed offender accused, but Suman did not say anything. She says that in one dwelling room, the accused had been committing rape upon her. From a bare reading the statement of the prosecutrix, it is apparent that the present appellant was not aware of the committing of rape upon the prosecutrix by her husband co-accused. It appears that the co-accused physically exploited the prosecutrix – child while taking advantage of absence of the pressent appellant. The examination in chief of the prosecutrix proves that she had been going to the market and other places talking with landlady of and on without any restraint or prohibition by the present appellant. The rented room in which the prosecutrix was allegedly confined by the present appellant, one has to pass through the courtyard in order to go to that room. She remained silent when she had sufficient opportunity to inform other persons. The rented room in which the prosecutrix was allegedly confined by the present appellant, one has to pass through the courtyard in order to go to that room. She remained silent when she had sufficient opportunity to inform other persons. PW3 also deposed that she used to get up at 5:00 A.M. at the house of the appellant in order to fetch water from the tap in the courtyard at 5:00 A.M. and the landlady of that house had been also taking water from the same tap. She informed the said landlady about the commission of rape by coaccused and the landlady advised the PW3 – the prosecutrix to go back to her house but she remained at appellant's house out of her own free will and without any pressure. The way in which PW3 narrates the minute details of everything, she appears to be a tutored witness. Though no specific stand taken by the appellant, but the motive for raping the present appellant in this case is apparent, that her husband is fugitive and untraced for trial and she was easily available which was nabbed. The fugitive husband disappeared and the present appellant was made an accused in this case. The entire role attributed to the present appellant by PW3 is doubtful. The testimony of PW3 – the prosecutrix qua the present appellant is unreliable and unbelievable does not inspire the confidence of this Court. It is not proved that she conspired with her husband in this illegal act, or that she kidnapped the prosecutrix, or she compelled her to have illicit intercourse with coaccused, or she wrongfully confined the prosecutrix, to a place with was not know to any person or that she criminally intimidated the prosecutrix. Keeping in view the material contradiction in the statement of the complainant coupled with the fact that the appellant being a young wife, it is highly improbable that she would procure a female and further offer to the husband herself. The prosecution has failed to establish its case as projected in the FIR. Consequently, the present appeal is allowed. The judgment of conviction and order of sentence dated 14.10.2011, passed by the learned Additional Sessions Judge, Chandigarh, is set aside; and the appellant is acquitted of the charge framed against her. The appellant is stated to be in custody. She be released forthwith, if not required in any other case.