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2014 DIGILAW 412 (PNJ)

Lal Chand v. State of Punjab

2014-02-20

KULDIP SINGH, SATISH KUMAR MITTAL

body2014
Judgment Satish Kumar Mittal, J. 1. Appellant Lal Chand was tried by the court of learned Additional Sessions Judge, Ferozepur, for the offence under Section 376 IPC, for committing rape upon his minor daughter (PW.2), aged about eight years; and for the offence under Section 323 IPC, for causing simple hurt to his wife Kamla Devi (PW.3). The trial court, vide its judgment and order dated 13.2.2009 convicted and sentenced the appellant to undergo imprisonment for life under Section 376 IPC. However, he was acquitted of the charge under Section 323 IPC. 2. Complainant Kamla Devi (PW.3) was married to the appellant, about 15 years prior to 6.5.2007, the day of occurrence. From the marriage, two sons and two daughters were born. The couple used to do the work of agriculture labour. The prosecutrix in this case was their eldest child, and the appellant along with his family was residing with his parents, namely Kalawati (mother) and Kahna Ram (father). 3. It is the case of the prosecution that on 6.5.2007, the complainant and her mother-in-law went to do the agriculture labour work in the fields, leaving her four children in the house. Later on, her father-in-law had also gone out of the house, while leaving the appellant and the children in the house. It is the case of the complainant that in the evening at about 8.00 PM, when she came back to her house, her children were found in a state of shock. On her asking, her elder daughter (prosecutrix) started crying and told that after the complainant had left for the fields, she was taken by her father in the room, where he forcibly committed rape upon her, and bleeding started from her vagina. When she raised hue and cry, her father had gone out of the house. It is the further case of the complainant that when she told these facts to her mother-in-law, but she did not take any action stating that it is a matter between the complainant and her husband. On the next day, on getting information, Vijay Kumar (PW.7), brother of the complainant came to her house and she narrated the entire incident to him. Later on, said Vijay Kumar took the prosecutrix to the Hospital, where she was medico legally examined on 11.5.2007. On the next day, on getting information, Vijay Kumar (PW.7), brother of the complainant came to her house and she narrated the entire incident to him. Later on, said Vijay Kumar took the prosecutrix to the Hospital, where she was medico legally examined on 11.5.2007. It is further the case of the complainant that on 12.5.2007 at about 1.30 PM, she was beaten by her parents-in-law, on account of the fact that she was levelling allegation of rape against her husband and bringing bad name to the family. The complainant was medico legally examined on 12.5.2007. 4. On receiving two MLRs, one pertaining to the prosecutrix and the other pertaining to the injuries received by the complainant, the police went to Civil Hospital, Abohar, and recorded the statement (Ex.P2) of the complainant, on the basis of which the formal FIR (Ex.P7) was registered against the appellant. 5. After completion of investigation, challan was filed only against the appellant. Even his parents were not joined in the investigation at all, and no challan was filed against them. 6. Charge under Sections 376 and 323 IPC was framed, to which the appellant did not plead guilty and claimed trial. 7. In support of its case, the prosecution examined eight witnesses. 8. PW.1 Dr. Alka Khurana, who medico legally examined the prosecutrix, proved the MLR of the prosecutrix as Ex.P1. PW.4 Dr. Gobind Aggarwal, who medico legally examined the complainant, proved the MLR of the complainant Ex.P2/A and the pictorial diagram Ex.P3. 9. PW.2, the prosecutrix, fully supported the prosecution case that her father forcibly committed rape upon her. PW.3 Kamla Devi, mother of the prosecutrix, also deposed against her husband and supported the prosecution version. PW.7 Vijay Kumar, brother of the complainant, also supported the prosecution version regarding the injuries given to the complainant by her parents-in-law. PW.8 SI Sanjeev Kumar, the Investigating Officer of the case, proved the statement of the complainant (Ex.P2), endorsement on the same (Ex.P6), FIR (Ex.P7), rough site plan of the place of occurrence (Ex.P8), personal search memo of the appellant (Ex.P4), grounds of arrest (Ex.P5) and the recovery memo, vide which one envelope with seal impression `AK', MLR of the prosecutrix, one envelope bearing sample impression `AK' and one viol containing swab bearing seal impression `AK' were taken into possession. 10. PW.5 HC Sukhchain Singh and PW.6 HC Darshan Singh are the formal witnesses. 11. 10. PW.5 HC Sukhchain Singh and PW.6 HC Darshan Singh are the formal witnesses. 11. In his statement recorded under Section 313 Cr.P.C., the appellant denied all the incriminating evidence appearing against him and pleaded his innocence. He took the plea that he has been falsely implicated in this case at the instance of his wife Kamla Devi and brother-in-law Vijay Kumar, by fabricating injuries on her person and on the body of the prosecutrix, as he was having strain relations with his wife Kamla Devi. 12. After hearing learned counsel for the parties, the trial court, while disbelieving the defence version of the appellant and relying upon the ocular evidence as well as the medical evidence, convicted and sentenced the appellant, as indicated in the first para of this judgment. Hence, this appeal. 13. Learned counsel for the appellant argued that the trial court has not properly appreciated the evidence led by the prosecution and has wrongly come to the conclusion that in the present case, the prosecution has fully proved its case against the appellant beyond a shadow of reasonable doubt. He has argued that relations between the complainant and the appellant, who are the husband and wife, were strained, as admitted by the prosecutrix herself in her cross-examination, while appearing as PW.2, and due to the said strained relations, the appellant has been falsely implicated in the present case. He further argued that the prosecutrix, being of tender age, was under the influence of her mother and at her instance, she has falsely deposed against the appellant in the court. Learned counsel further argued that there is considerable delay in reporting the matter to the police. According to him, the occurrence had taken place on 6.5.2007, whereas statement of the complainant was recorded by the police only on 12.5.2007. On account of this delay, by concocting a false story at the instance of Vijay Kumar, brother of the complainant, this false case was registered against the appellant, which has not been established by the prosecution by leading cogent evidence. Learned counsel further argued that the prosecution case is also not supported by the medical evidence, as no opinion of the doctor regarding the commission of rape upon the prosecutrix is available on record. Learned counsel further argued that the prosecution case is also not supported by the medical evidence, as no opinion of the doctor regarding the commission of rape upon the prosecutrix is available on record. He further argued that parents-in-law of the complainant were not associated during investigation of the case to corroborate the version given by the prosecutrix and the complainant. He further argued that while conducting medico legal examination of the prosecutrix, though swabs were taken, but the same were not sent for chemical examination. The blood stained clothes of the prosecutrix were also not taken into possession by the police for getting the same examined from the Forensic Science Laboratory. These facts further establish that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. 14. On the other hand, learned Additional Advocate General, Punjab, argued that the trial court has rightly convicted and sentenced the appellant on the basis of the reliable and trustworthy evidence led by the prosecution. 15. We have considered the submissions made by learned counsel for the appellant as well as the learned Additional Advocate General, Punjab, and have carefully perused the record of the case. 16. It has been proved on record that on 11.5.2007 at 1.30 PM, the prosecutrix was medico legally examined by Dr. Alka Khurana. The said doctor, while appearing in the witness box as PW.1, categorically stated that on 11.5.2007, she medico legally examined the prosecutrix daughter of the appellant, aged about 8 years, who was brought by Vijay Kumar (PW.7). On medical examination, she found that clothes of the prosecutrix were soaked with blood, hymen margins were irregular and there was bleeding from vagina. The vaginal swabs and clothes were taken and sent for chemical examination to Patiala. She proved the MLR of the prosecutrix as Ex.P1, which clearly suggests that rape was committed upon the prosecutrix. In cross-examination of the said witness, no suggestion was given that no rape was committed upon the prosecutrix. 17. In order to prove as to who has committed rape upon the prosecutrix, the prosecution has examined the prosecutrix herself as PW.2. In her statement before the court, she stated that on the day of occurrence at about 11 AM, her father took her to the bed room and after removing her Salwar, he had committed rape upon her. 17. In order to prove as to who has committed rape upon the prosecutrix, the prosecution has examined the prosecutrix herself as PW.2. In her statement before the court, she stated that on the day of occurrence at about 11 AM, her father took her to the bed room and after removing her Salwar, he had committed rape upon her. At that time, her mother was away to the fields for doing the labour work. She further stated that she cried and objected, but her father raped her, and threatened not to tell the occurrence to her mother, otherwise she would be killed. She further stated that when in the evening at about 8 PM, her mother came back, she narrated the entire incident to her. She further stated that on the next day, she was taken to Civil Hospital, Abohar, where she was medico legally examined. This witness was subjected to cross-examination by counsel for the appellant. In spite of the lengthy cross-examination by counsel for the appellant, she stood to her version. She specifically denied the suggestion that she has falsely implicated her father at the instance of her mother and maternal uncle. Complainant Kamla Devi was examined as PW.3. She also fully supported the prosecution version. She also denied the suggestion that she has falsely implicated her husband due to their strained relations. 18. An argument has been raised by learned counsel for the appellant that as per the initial statement (Ex.P2) of the complainant, the occurrence had taken place on 6.5.2007, whereas the matter was reported to the police on 12.5.2007, therefore, due to delay, the prosecution version is based upon concoction at the instance of PW Vijay Kumar. 19. If we closely examine the statement of the prosecutrix while appearing in the witness box as PW.2, she has stated that on the next day of the occurrence, she was taken to Civil Hospital, Abohar, where she was medico legally examined by the doctor. Similarly, complainant Kamal Devi, while appearing as PW.3, has stated that after one day of the occurrence, when her brother came, the prosecutrix was got medico legally examined. In the cross-examination, when she was confronted with her initial statement (Ex.P2) made to the police, where she got recorded the date of occurrence as 6.5.2007, she stated that she did not remember if she got recorded the said date. In the cross-examination, when she was confronted with her initial statement (Ex.P2) made to the police, where she got recorded the date of occurrence as 6.5.2007, she stated that she did not remember if she got recorded the said date. It appears that the said part of the statement of the complainant was wrongly recorded by SI Sanjeev Kumar (PW.8), the then SHO, Police Station City Abohar, and in the statement of the complainant, the date of occurrence was wrongly mentioned as 6.5.2007. The complainant and the prosecutrix are illiterate and poor persons. The complainant has thumb marked her statement (Ex.P2). It has not come in evidence that the said statement was read over and explained to her before getting her thumb impression on the same. It is evident from the MLR of the prosecutrix that she was medico legally examined on 11.5.2007, and at that time, there was bleeding from the vagina and her clothes were soaked with blood. It indicates that the occurrence had taken place on 10.5.2007, i.e. one day prior to medico legal examination of the prosecutrix, and not on 6.5.2007, as was recorded in the initial statement of the complainant. We are surprised that why the Investigating Officer of the case did not take the swabs into possession and sent the same for chemical examination. A serious crime of rape was committed by a father upon his minor daughter, which was taken lightly by the Investigating Officer. Even opinion of the doctor regarding the rape was not obtained by the Investigating Officer. But the MLR of the prosecutrix clearly suggests that the rape was committed upon the minor child. The prosecutrix has categorically stated in the court that her father took her in the bed room of their house and after removing her Salwar, he committed rape upon her. She was crying, but her father threatened her with dire consequences. In this case, the accused was also not got medico legally examined. Here also, the Investigating Officer has taken the matter in a very casual manner. He did not associate the parents-in-law of the complainant in the investigation. 20. Learned counsel for the appellant vehemently argued that relations between the complainant and her husband (the appellant) were strained and due to that, false case has been planted by the complainant on her husband. He did not associate the parents-in-law of the complainant in the investigation. 20. Learned counsel for the appellant vehemently argued that relations between the complainant and her husband (the appellant) were strained and due to that, false case has been planted by the complainant on her husband. In this regard, learned counsel referred to cross-examination of the prosecutrix, wherein she stated that “It is correct that my parent shad been on quarreling terms with each other prior to the occurrence.” Merely because, the husband and wife were quarreling with each other, it cannot be inferred that their relations were strained, due to which false case will be planted by the wife against her husband, when they along with their children and parents of the husband were living together under one roof. The defence taken by the appellant that the instant case has been falsely planted upon him is improbable. In our opinion, no wife and daughter will depose falsely against her husband and father, alleging such a heinous act. In our opinion, testimonies of the prosecutrix as PW.2 and complainant Kamla Devi as PW.3 are trustworthy and reliable and the same cannot be discarded. From their testimonies, coupled with the medical evidence, the offence of rape has been proved against the appellant beyond reasonable doubt. 21. In view of the above, we are of the opinion that in the facts and circumstances of the case, the trial court has rightly convicted and sentenced the appellant for the offence under Section 376 IPC. 22. The appeal is, accordingly, dismissed. 23. Since SI Sanjeev Kumar, the then SHO, Police Station City Abohar, has investigated this case in a very casual way, may be for extraneous considerations in order to help the accused, we direct the Director General of Police, Punjab, to hold a departmental enquiry against the said police officer. After conclusion of such enquiry, the final report in this regard be sent to this court.