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2022 DIGILAW 2067 (RAJ)

Harvinder Singh @ Binder Singh v. State

2022-07-20

PUSHPENDRA SINGH BHATI

body2022
JUDGMENT : 1. These Criminal Appeals under Section 374 Cr.P.C. has been preferred claiming the following reliefs :- In S.B. Criminal Appeal No. 52/1990 :- “It is, therefore, respectfully prayed that this Appeal may kindly be accepted and the accused appellant may be acquitted of all the charges levelled against him and he be set at liberty.” In S.B. Criminal Appeal No. 53/1990:- “It is therefore respectfully prayed that the appeal of the appellants may kindly be allowed and the conviction and sentence passed against the appellants by the learned Sessions Judge Sri Ganganagar may kindly be set aside and they may be acquitted of the charge levelled against them any other appropriate order may kindly be passed in the faver of the appellants” 2. The matter pertains to an incident which occurred in the year 1989, and the criminal appeal has been pending since the year 1990. 3. Mr. Nishant Bora, learned counsel, at the outset, submitted that he has no instructions from his client (appellant herein), for quite a long time. He however, submitted that if the Court deems it appropriate, Amicus Curiae may be appointed in this case to represent the appellant. 3.1 On such submission, the Court asked Mr. Bora himself to appear and argue this case on behalf of the appellant, as Amicus Curiae. 3.2 Accordingly, Mr. Nishant Bora, Advocate is appointed as Amicus Curiae to argue the matter on behalf of the accused-appellant under the free legal aid scheme. His remuneration shall be paid by the Rajasthan State Legal Services Authority as per the rules. 4. Learned Public Prosecutor furnished before this Court the death certificate of appellant-Harvinder Singh (in CRLA No.52/1990) and submitted that on count of the death of the said appellant on 24.12.2021 (as per the death certificate), present SBCRLA No.52/1990 filed by him stands abated. Learned Public Prosecutor also submitted before this Court a report dated 10.07.2022, which however, indicates that appellant no. 1 Ikbal Singh s/o Balvant Singh and appellant no. 2 Sukhdev Singh @ Sukha Singh s/o Gulab Singh -in S.B. Criminal Appeal No. 53/1990 -both are alive and therefore the said appeal filed by them survives. The aforementioned report dated 10.07.2022 and the above-mentioned death certificate issued by the competent authority on 24.01.2022, are taken on record. 5. 1 Ikbal Singh s/o Balvant Singh and appellant no. 2 Sukhdev Singh @ Sukha Singh s/o Gulab Singh -in S.B. Criminal Appeal No. 53/1990 -both are alive and therefore the said appeal filed by them survives. The aforementioned report dated 10.07.2022 and the above-mentioned death certificate issued by the competent authority on 24.01.2022, are taken on record. 5. The Criminal Appeal No.53/1990 has been preferred against the judgment dated 18.01.1990 passed by the learned Sessions Court, Sri Ganganagar whereby the accused-appellants were convicted for the offences under Section 376 (2) (g) and Section 366 I.P.C.; for the offence under Section 376(2)(g) IPC, the appellants were awarded a sentence of 10 years R.I. along with a fine of Rs. 500/-each, in default of payment of which, each of them to further undergo 6 months R.I. and; for the offence under Section 366 IPC, they were ordered to undergo five years R.I. each, alongwith a fine of Rs.500/-each, in default of payment of which, each of them were to undergo further 6 months R.I. 6. Learned counsel for the appellants further submitted that the learned trial court has erred in believing the testimony of the prosecturix, as it is rife with contradictions; she stated that the appellants forced themselves upon her, but there are no injuries on her private parts or her body, nor was there any bleeding from her private parts. And that it was further alleged that her husband was present when the offence of rape was committed upon her, but this has been denied by her husband P.W. 6, Sohanlal. 7. Learned counsel for the appellants further submitted that P.W. 1 Dr. K.N. Markandya has deposed in his statements that a definite finding cannot be given stating that the prosecutrix was raped. 8. Learned counsel for the appellants also submitted that there are no independent witnesses to corroborate the version of the prosecution. 9. Learned counsel for the appellants further submitted that the sole basis for the conviction of the appellants herein is the testimony of the prosecutrix, which itself is called into question due to the contradictions and discrepancies, and that therefore the appellants must be given the benefit of the doubt and acquitted from all the charges levelled against them. 10. 9. Learned counsel for the appellants further submitted that the sole basis for the conviction of the appellants herein is the testimony of the prosecutrix, which itself is called into question due to the contradictions and discrepancies, and that therefore the appellants must be given the benefit of the doubt and acquitted from all the charges levelled against them. 10. Learned counsel for the appellants also submitted that the appellants have undergone about 6 months in custody out of the total sentence awarded to them by the learned trial court. 11. Learned counsel for the appellants however, submitted that the sentence so awarded to the present appellants, namely Ikbal Singh and Sukhdev @ Sukha Singh was suspended by this Hon’ble Court vide order dated 24.07.1990 in S.B. Criminal Misc. Bail Application No. 65/1990. 12. On the other hand, learned Public Prosecutor opposed the submissions made on behalf of the appellants and submitted that the learned Court below has rightly passed the impugned judgment, after looking into the overall facts and circumstances of the case, and the evidences placed on record before it. 13. Heard learned counsel for the parties, and perused the record of the case. 14. This Court observes that P.W. 6, Sohanlal – husband of the prosecutrix-has not extended any substantial support, whatsoever, to the version of the prosecution. And therefore, the sole basis for the conviction of the accused is the testimony of the prosecutrix. 15. This Court further observes that the deposition of the prosecutrix, before the learned trial court, does not seem to be believable, on count of the same being full of contradictions and discrepancies. 16. This Court, arrives at such a conclusion, while making such observations: 16.1 It is an admitted position in the present case that the prosecutrix and her husband were in the fields to cut grass, on the day on which the incident in question occurred and that, owing to ill health, the prosecutrix stayed back; while her husband proceeded further, she remained there and laid down to rest. 16.2 The prosecutrix stated that she laid down in the field, which at the time had a crop of narma which was about 4 feet in height, amidst which she laid down. 16.3 The prosecutrix further stated that the accused herein suddenly appeared and taking turns, gang raped her. 16.2 The prosecutrix stated that she laid down in the field, which at the time had a crop of narma which was about 4 feet in height, amidst which she laid down. 16.3 The prosecutrix further stated that the accused herein suddenly appeared and taking turns, gang raped her. After which, her husband returned to the scene and then asked the accused persons as to why had they had gang raped her. And that, he subsequently left her there to call the other villagers. 16.4 However, a perusal of the testimony of the husband, P.W. 6 Sohanlal reveals that when he returned after cutting grass, to the location at which he had left his wife, he could not find her. 16.5 Furthermore, the prosecutrix, in her testimony, also deposed that she did not meet her husband until the next day of the incident in question, and that he had then asked her where she had been. 16.6 Additionally, the husband, when he lodged the F.I.R. against the accused herein, did not make any mention of finding at the spot, the broken bangles of his wife, whereas the same is stated in his testimony. 16.7 The prosecutrix also stated that when the incident in question occurred, and she was sexually assaulted, she was threatened to stay silent, which is why she did not wail or make any noise, however, she also stated the exact opposite in her testimony. 16.8 The aforementioned contradictory versions of the prosecutrix and her husband also cast a serious doubt upon the case of the prosecution and points towards false implication of the accused-appellants in the present case. 16.9 There is also a delay of about 2 days in filing the F.I.R. the explanation for which, as provided by the prosecutrix in her testimony, does not seem probable. 16.10 Additionally, the testimony of P.W. 1 Dr. K.N. Markandya reveals that an opinion could not be formed as whether the offence of rape had been committed upon the prosecutrix, since there were no injuries around the genital area of the prosecutrix either. Also, there is no clinching medical evidence which points to the culpability of the accused either, there is no evidence to corroborate the version as put forth by the prosecutrix. 17. Also, there is no clinching medical evidence which points to the culpability of the accused either, there is no evidence to corroborate the version as put forth by the prosecutrix. 17. In light of the above made observations, this Court finds that the impugned judgment of conviction and order of sentence passed against the appellants herein deserves to be quashed and set aside. 18. Resultantly, the appeal No.53/1990 preferred by the appellants-Ikbal Singh and Sukhdeo Singh is allowed and accordingly, the impugned judgment of conviction and order of sentence passed by the learned trial court is quashed and set aside; the said appellants are acquitted of all charges levelled against them. They are on bail, in pursuance of the order passed by this Hon’ble Court on 24.07.1990 in S.B. Criminal Misc. Bail Application No. 65/1990, whereby the sentenced awarded to them was suspended. They need not surrender. Their bail bonds stand discharged. However, appeal No.52/1990 preferred by appellant-Harvinder Singh @ Binder Singh is dismissed, as having abated, on count of his death. All pending applications stand disposed of. Record of the learned below be sent back forthwith.