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2014 DIGILAW 1502 (PNJ)

Gobind Singh v. State of Punjab

2014-11-05

JITENDRA CHAUHAN

body2014
Jitendra Chauhan, J. 1. This judgment shall dispose of criminal appeal i.e. CRA No. S-2631-SB of 2009, filed by the appellant. Brief facts of the case as set-out in Para 2 of the judgment passed by learned Sessions Judge, Hoshiarpur are as under: "The facts leading to the present case are that on 11.5.2008, ASI Gurdip Singh was present in the Police Station. There he received one chit of the doctor bearing No. 101/E dated 10.5.2008 alongwith MLR No. SC/Gen/23/08, dated 10.5.2008 in respect of Tripta Devi wife of late Gurbachan Singh, resident of Chingarwan. On receipt of this chit, he visited BBMB Hospital Talwara and filed an application regarding the fitness of the injured. The doctor declared Tripta Devi unfit to make statement due to unsoundness of mind. Then ASI searched Sukhdev Singh (PW 1) as his name figured in the MLR. The said Sukhdev Singh alongwith Som Pal met ASI Gurdip Singh outside the police station at chowk, where the statement of Sukhdev Singh was recorded by ASI Gurdip Singh. According to Sukhdev Singh, he was resident of village Chingarwan and was running a rice sheller near his residence. That on 10.5.2008 at about 8.30 PM, he was present in his rice sheller when he was informed by two children that one person was tying alongwith one lady in the fields of Balwant Singh. On this, the complainant went to the spot and with torch light he found that Gobind Singh accused was raping Tripta Devi forcibly, who was unable to speak due to mental retardation and she was trying to save herself from Gobind Singh. The complainant raised an alarm and on this, Onkar Singh (PW 2) and Som Pal came to the spot and saw the occurrence. When the complainant alongwith Onkar Singh and Som Pal was in the process of freeing Tripta Devi from clutches of Gobind Singh, then Gobind Singh accused who was under the influence of liquor, ran away in the fields. Onkar Singh and Som Pal arranged for a vehicle and took Tripta devi to BBMB Hospital, Talwara." After completion of investigation, the challan against the accused-appellant was presented before the Sub-Divisional Judicial Magistrate, Dasuya. Since, the offence was triable by the Court of Sessions, therefore, the case was committed by learned Sub-Divisional Judicial Magistrate, Dasuya to the Court of learned Sessions Judge for trial vide order dated 11.08.2008. Since, the offence was triable by the Court of Sessions, therefore, the case was committed by learned Sub-Divisional Judicial Magistrate, Dasuya to the Court of learned Sessions Judge for trial vide order dated 11.08.2008. The charge was framed against the accused-appellant vide order dated 04.09.2008, to which he pleaded not guilty and claimed trial. 2. To prove its case, the prosecution examined Sukhdev Singh as PW 1, Onkar Singh as PW-2, Dr. Shalini Chaudhary as PW 3, Dr. Amaijit Singh as PW 4, H.C. Gurnam Singh as PW 5, Tarsem Lal as PW 6, Constable Surjit Singh as PW 7, SI Kulwinder Singh Virk as PW 8, M.H.C. Harminder Singh as PW 9 and Ranjit Singh as PW 10 and the remaining evidence of the prosecution was closed. 3. After closure of the prosecution evidence, statement of appellant-accused under Section 313 of the Code of Criminal Procedure was recorded in which he denied the prosecution allegations and stated that he is innocent and has been falsely implicated in the present case. However, the appellant-accused did not lead any evidence in defence. 4. The trial Court convicted and sentenced the accused appellants as under:- Under Section 376 of IPC To undergo rigorous imprisonment for 7yeaars along with fine of Rs. 5000/- In default of making payment of fine , accused shall undergo further rigorous imprisonment for three monthes 5. Aggrieved against the judgment of conviction and order of sentence, the present appeal is directed by the appellant which was admitted by this Court on 09.11.2009. 6. It is contended on behalf of the appellant that the prosecution evidence being discrepant and unreliable does not inspire confidence and not sufficient to prove the case of the prosecution. There is an inordinate delay of about 20 hours in reporting the matter to the police. The prosecutrix in this case is a married woman, having major children and she was neither joined by the police in the investigation of the case nor her statement was recorded under Section 164 Cr.P.C. Furthermore, she was not examined in the Court during the trial. The prosecution has stated that the prosecutrix to be mentally unsound person. However, neither the medical certificate or medical proof was placed on record by the prosecution to this effect. The witnesses examined by the prosecution are interested witnesses, who are related to the prosecutrix and their presence at the spot is doubtful. The prosecution has stated that the prosecutrix to be mentally unsound person. However, neither the medical certificate or medical proof was placed on record by the prosecution to this effect. The witnesses examined by the prosecution are interested witnesses, who are related to the prosecutrix and their presence at the spot is doubtful. Moreover, the two children who informed Sukhdev Singh-the complainant on 10.05.2008 at about 08:30 p.m., about the incident, have not been examined. The prosecutrix aged about 45 years did not raise any alarm. The medical evidence does not support the prosecution case. Lastly, the learned counsel for the appellant refers to the statement made by the appellant under Section 313 Cr.P.C. in which it is stated that the appellant denied the prosecution allegations and stated that he is innocent and has been falsely implicated in the present case due to enmity of Sukhdev Singh-the complainant with his family on account of litigation and also due to the reason that his family was opposing them in elections. 7. On the other hand, the learned State Counsel submits that the delay has been fully explained and due to night time and that the victim was in need of medical help immediately, the matter could not be reported to the police. 8. I have heard the learned counsel for the parties and have gone through the record carefully with their able assistance. 9. The victim being mentally unsound was not joined in the investigation. To prove that she was mentally unfit, it is relevant to refer the evidence on record. The complainant-Sukhdev Singh (PW 1) has specifically stated that the prosecutrix was not mentally fit and she was not in a position to hear and speak. He further stated in the cross-examination that even she was not able to give any signal. Onkar Singh (PW 2) has also deposed that due to mental unfitness, the prosecutrix was unable to even talk and has further deposed that Tripta Devi had mental problem since 10 years and treatment was also given by the doctors, but her mental condition did not improve. Dr. Shalini Choudhany, (PW 3) Medical Officer, who conducted the medico legal examination of the prosecutrix has stated that the police moved an application Ex. PC for recording the statement of the prosecutrix and vide endorsement Ex. Dr. Shalini Choudhany, (PW 3) Medical Officer, who conducted the medico legal examination of the prosecutrix has stated that the police moved an application Ex. PC for recording the statement of the prosecutrix and vide endorsement Ex. PC/1, she declared her unfit to make statement due to unsoundness of mind on 11.5.2005. Even SI Kulwinder Singh (PW 8) SHO of Police Station Talwara has explained the reasons for not joining the prosecutrix in the investigation and he specifically stated that the Investigating Officer told him that the prosecutrix was not fit to make statement and the doctor has also opined that she was not fit to make a statement. He further stated that he met the prosecutrix and tried to speak with her, but she did not speak any word. 10. Dr. Shalini Chaudhary, Medical Officer, BBMB Hospital, Talwara (PW 3) who carried out the medico legal examination of the victim on 10.05.2008 noticed that the patient was conscious and non cooperative, not well oriented with time, place and person and seemed to be mentally retarded. On the other hand, Dr. Amarjit Singh (PW 4) had conducted the medico legal examination of the accused-Gobind Singh with reference to his capacity to conduct sexual intercourse and he proved his report Ex. PG. He further stated that as per Chemical Examiner Report, there was nothing to suggest that the said person was not capable to perform sexual intercourse. Ex. PH is the report of the Chemical Examiner regarding contents of the packet containing underwear. It was reported that spermatozoa were detected in the contents of Ex. PI i.e. underwear. Thus, there is ample medical evidence to prove that the rape had been committed by the accused/appellant upon the prosecutrix. 11. Perusal of the First Information Report (FIR) shows that it was recorded on 11.5.2008 at 4.20 PM. It also shows that the same had been received by the Duty Magistrate at 8.15 PM on 11.5.2008. The occurrence took place at 8.30 p.m. on 10.5.2008. Thus, there was a delay of about 20 hours in lodging the FIR and a further delay of four hours in sending the report to the Ilaqa Magistrate. Keeping in view the fact that the prosecutrix was mentally unsound, there was none to pursue this case and it is a case of solitary accused, the delay, if any, is not fatal. 12. Keeping in view the fact that the prosecutrix was mentally unsound, there was none to pursue this case and it is a case of solitary accused, the delay, if any, is not fatal. 12. Keeping in view the oral as well as the documentary evidence as referred to above coupled with medical evidence, this Court is of the considered opinion that the offence of rape has been committed by the appellant/accused upon the prosecutrix, and the prosecution has fully satisfied its case beyond reasonable doubt. This Court finds no merit in the appeal, which deserves to be dismissed. 13. The contention of learned counsel to reduce the sentence is turned down simply on the ground that the appellant has committed rape upon a helpless lady of unsound mind and the appellant deserves no leniency. The learned trial Court has already awarded minimum sentence. There is no merit in the appeal and accordingly, the criminal appeal No. CRA No. S-2631-SB of 2009, is hereby dismissed.