High Court Punjab-Haryana High Court

Satbir Alias Satta vs State Of Haryana on 12 January, 2009

Punjab-Haryana High Court
Satbir Alias Satta vs State Of Haryana on 12 January, 2009
CRIMINAL APPEAL NO. 923-DB OF 2004                          -1-

IN THE HIGH            COURT        OF     PUNJAB   AND   HARYANA     AT
CHANDIGARH.




             DATE OF DECISION: January 12, 2009

                     Parties Name

Satbir alias Satta
                                         ...APPELLANT.

       VERSUS
State of Haryana
                                          ...RESPONDENT




CORAM:       HON'BLE MR. JUSTICE JASBIR SINGH
             HON'BLE MR. JUSTICE JORA SINGH



PRESENT: Mr. H.S.Gill, Senior Advocate,
         with Mr. Vivek Goel,
         Advocate, for the appellant.

             Ms. Archana Sharma, Advocate, for
             appellant Billu alias Bhagwan Dayal
             in Cr. A. No. 71-DB of 2005.

             Mr. K.S.Godara, D.A.G., Haryana;


JASBIR SINGH, J.



JUDGMENT

This judgment will dispose of two Criminal Appeal No. 923-

DB of 2004 titled as Satbir alias Satta v. State of Haryana and Criminal

Appeal No. 71-DB of 2005, titled as Billu alias Bhagwan Dayal v. State of

Haryana as these arise out of a judgment and order dated October 20,, 2004

and October 21, 2004, respectively. For dictation of this order, facts are
CRIMINAL APPEAL NO. 923-DB OF 2004 -2-

being taken from Criminal Appeal No. 923-DB of 2004.

Satbir alias Satta, appellant, Billu alias Bhagwan Dayal

(appellant in the connected appeal), Om Parkash, Naresh Kumar, Dayal

Chand and one Shamsher alias Kala were put to trial to face prosecution

under Sections 342, 376(2)(g) and 120-B of the Indian Penal Code. It was

allegation against them that they, in conspiracy with each other, had

wrongly confined Promila alias Nahni, the prosecutrix, and committed rape

upon her without her consent. Vide judgment and order under challenge, the

appellant and Billu alias Bhagwan Dayal were convicted and sentenced

under Sections 342 and 376(2)(g) IPC. However, the others were acquitted.

It is necessary to mention here that Shamsher alias Kala had committed

suicide before challan was put in Court for trial.

Process of criminal law was set in motion at the instance of

Risal alias Vishal (PW8), brother of the prosecutrix. On his statement FIR

Ex. PH/1 was recorded in Police Station Sampla on April 30, 2002, at 2.05

PM.

Prosecution case, as noted by the trial Court in para No. 1 of the

judgment under challenge, reads thus:

“Prosecution case is that on 30.4.2004 S.I. Sohan Lal PW15

along with head constable Rajbir Singh No. 1000, Head

Constable Jai Bhagwan No. 371 and Constable Budh Singh No.

749 was present in Main Bazar, Sampla in connection with

patrolling, when Risal Singh PW8 met him and gave written

report Ex. PH to the effect that they have two houses, one

inside the village and another outside in ‘Bani’ (forest). His

sister aged about 27 years (prosecutrix) who is examined as
CRIMINAL APPEAL NO. 923-DB OF 2004 -3-

PW16 and whose name is being withheld) is mentally retarded.

She is married and mother of two children. The previous day

dated 29.4.2004, at about 7 p.m., as usual, she had gone from

the house inside the village, to the house in ‘Bani’, but did not

return, so, they searched her through out the night. At about 6

a.m. when he and his sister’s husband Mahinder PW9 son of

Pokhar, reached near village High School, Mahabir PW10, son

of Jai Lal, met them. On being appraised, Mahabir told them

that in the previous night around 8 p.m. when he was coming

towards his house, after closing his shop, near the school, he

had seen Shamsher alias Kala (since deceased) taking the

prosecutrix, on his scooter No. DL95C/3094, towards his hotel

at the By-pass. On this, he (Risal Singh) and his brother in law

Mahinder, reached the hotel and inside a room found Shamsher

alias Kala, raping the prosecutrix. Accused Satbir son of Ram

Chander, resident of Bhaproda and accused Billu son of

Bhagwan Dass, resident of Dighal, were sitting on a nearby cot.

On seeing them there, all the three, ran away after giving them

a push. Later on, on asking, the prosecutrix appraised them that

said two persons, who were sitting on the nearby cot, had also

raped her in the night. Thereafter he and his sister’s husband

Mahinder brought her to the house. They called back other

family members who had gone to search her. It is further

mentioned by Risal Singh in his report Ex. PH that they are

running a tea vend and accused Shamsher alias Kala, Satbir and

Billu used to come to his tea vend, as such he knew them.”

CRIMINAL APPEAL NO. 923-DB OF 2004 -4-

After registration of an FIR, the Investigating Officer Sohan

Lal, SI (PW15) referred the prosecutrix, (PW16), for medical examination,

which was conducted by Dr. Sunita Dhania (PW1) on April 30, 2004, at

2.30 PM in Civil Hospital, Sampla. As per MLR( Ex. PA), above said

witness noted bruise on the right cheek of the prosecutrix. The Doctor

further opined that possibility of sexual intercourse could not be ruled out.

She also took vaginal swabs of the prosecutrix and handed over the same to

the police in a sealed packet along with other sealed packets containing

wearing clothes of the prosecutrix for semen examination. Above said

material was sent for testing and as per report Ex. PB of the Forensic

Science Laboratory, human semen was detected on both the vaginal swabs

and Salwar Ex. P1 but not on shirt Ex. P2 and Chunni Ex. P3. In the

meantime, Investigating Officer went to the place of occurrence, got

prepared rough site plan and also took into possession scooter, which

allegedly was used in committing the crime. Investigation was verified by

the Deputy Superintendent of Police concerned. On that very day, appellant

and Billu alias Bhagwan Dayal were arrested. They were sent for their

medical examination, which was conducted by Dr. Rajiv Narwal (PW2) at

9.42 PM and 8.37 PM respectively. As per Doctor’s opinion, there was

nothing suggestive that they were not capable to perform the sexual

intercourse. No smegma was found present on the penis of Billu alias

Bhagwan Dayal but smegma was found present on the penis of the

appellant. Wearing clothes of the above said accused were sent for chemical

examination, as per report Ex. PB of the Forensic Science Laboratory,

human semen was detected on clothes of the accused. However, on
CRIMINAL APPEAL NO. 923-DB OF 2004 -5-

serological analysis, semen grouping was found inconclusive. The

Investigating Officer recorded statements of other witnesses. On May 4,

2004, SI Ram Singh (PW14) recorded statement of PW11 Mohinder, who

stated facts regarding conspiracy hatched by the accused to kidnap and rape

the prosecutrix. After recording his statement offence under Section 120-B

IPC was also added in the FIR. On May 6, 2004, accused Om Parkash,

Dayal Chand and Naresh were also arrested. On May 4, 2004, accused

Suresh alias Kala committed suicide by hanging. Inquest report regarding

his dead body was prepared by SI Sumer Singh (PW12). After completing

investigation, the Investigating Officer filed final report in Court for trial.

The accused were charge-sheeted to which they pleaded not guilty and

claimed trial.

The prosecution, to prove its case, examined as many as 16

witnesses and also brought on record documentary evidence. On conclusion

of prosecution evidence, statements of all the accused were recorded under

Section 313 Cr.P.C. Incriminating material existing on record was put to

them. They denied the same, claimed innocence and false implication.

Appellant Satbir took up a defence that he was arrested at about 9.00/10.00

AM, when he was standing on Delhi Bypass, Sampla, near his Maruti car.

Many persons including one Karne (DW1) was also standing at that place.

In defence, the appellant also examined Karan Singh (Dw1) and Deepak

Atri (DW2). After hearing counsel for the parties and perusal of record, the

trial Court convicted the appellant and Billu alias Bhagwan Dayal.

However, others were acquitted. Hence these appeals.

Shri H.S.Gill, Senior Advocate, counsel for the appellant, has

vehemently contended that the trial Court was not justified in convicting
CRIMINAL APPEAL NO. 923-DB OF 2004 -6-

and sentencing the appellants – accused. By making reference to the

statements made by PW8, PW9 and PW16, he argued that on material

points, deposition of above said witnesses was contradictory to each other.

The trial Court has misread their statements, which resulted into wrong

conviction of the appellants. From the statements of above said witnesses,

he has indicated that their deposition is contradictory so far as to who was

committing rape upon the prosecutrix when eye witnesses reached at the

spot, what was the situation at the spot, how many people were available

and which accused ran away from the place of occurrence? Counsel further

argued that even as per prosecution version, the prosecutrix went missing in

the evening of April 29, 2004. Police Station is available in the village.

Despite that no report was made. Alleged rape was committed at 6 AM on

April 30, 2004. FIR was recorded only at 2.05 PM. The prosecution has

failed to explain delay in lodging the FIR. By stating as above, counsel

argued that intervening period was used by the prosecution in concocting a

false story against the appellants and others. He further argued that the oral

evidence is not supported by the medical evidence on record. At the time of

medical examination of the appellant, Dr. Rajiv Narwal (PW2) found that

smegma was present on the penis of the appellant, which negatives

commission of rape by him. By making reference to the statement of

Investigating Officer, he stated that the complainant instead of making

statement to the police under Section 161 Cr.P.C. in this case, preferred to

file written application, which he got typed outside the Police Station to get

the FIR recorded. This aspect goes to show that the FIR was recorded after

discussion with the police. He further laid challenge to the statements made

by Mahabir Singh(PW10), who has stated that he had seen Shamsher
CRIMINAL APPEAL NO. 923-DB OF 2004 -7-

accused taking away the prosecutrix on a scooter and she was struggling.

Counsel argued that the conduct of this witness in not reporting the matter

to the family members of the prosecutrix shows that this witness was

introduced by the prosecution lateron. Counsel further argued that Mohinder

(PW11) was not a truthful witness. This witness has deposed regarding

conspiracy hatched by the accused to kidnap and rape the prosecutrix, two

days prior to the date of occurrence. Counsel argued that by not intimating

family members of the prosecutrix, conduct of this witness becomes

unreliable. He further argued that statement of the prosecutrix was not

recorded as per law. At the time of recording her deposition, without

adopting the procedure, she was allowed to take help of her father and

doctor. There was no certificate on the file to show that she was of unsound

mind. He prayed that the appeal be allowed and the appellants – accused be

acquitted of the charges framed against them.

Prayer made by counsel for the appellants has been opposed by

counsel for the State, who argued that the statement made by the prosecutrix

(PW16) is alone sufficient to uphold conviction and sentence awarded to the

appellants. He, by making reference to the prosecution witnesses, argued

that the prosecution was successful in bringing home guilt of the appellants

and further that it was an eye witness account, the defence has failed to

shatter testimony of the prosecution witnesses despite lengthy cross-

examination. By stating that delay in recording the FIR has sufficiently been

explained, he prayed that the discrepancies indicated by the defence counsel

in statements of the prosecution witnesses are immaterial, as such be

ignored. He prayed that the appeal having no substance be dismissed.

After hearing counsel for the parties, this Court is of the
CRIMINAL APPEAL NO. 923-DB OF 2004 -8-

opinion that counsel for the appellant was successful in creating doubt

regarding involvement of the appellants in the alleged crime. No doubt in

normal circumstances, if deposition made by the prosecutrix is truthful, it

alone is sufficient to convict an accused. In the present case, eye witness

account has also been projected by the prosecution. To know whether

deposition made by the prosecution witnesses is truthful or not, we have to

analyse carefully the statements made by them. As per case of the

prosecution, the prosecutrix is of low intelligence. She went missing from

her house, , in the evening on April 29, 2004. Police Station is situated in

the village. However, despite opportunity available, no intimation was sent

to the police. As per prosecution, the family members continued to search

for the prosecutrix during night intervening April 29 & 30, 2004. PW8 Risal

(complainant) has said in his deposition that after detection of the crime,

he, his brother-in-law Mohinder, husband of the prosecutrix, and the

prosecutrix reached their house at about 7.00/8.00 AM on April 30, 2004.

No explanation has been given, in deposition of any of the witnesses, as to

why matter was not reported to the police immediately. FIR was got lodged

at 2.05 PM , that too by making a written application, which was got typed

in a shop from outside the Police Station. Above said facts clearly indicate

that the prosecution has failed to explain delay in lodging the FIR. It

appears that the intervening period was used in consultations to involve the

appellants in the false case.

Perusal of depositions made by PW8 Risal, PW9 Mohinder ,

husband of the prosecutrix, and PW16, the prosecutrix, reveals that they

have contradicted each other on material points. PW8 has specifically stated

that he along with PW9 Mohinder had seen Shamsher Singh committing
CRIMINAL APPEAL NO. 923-DB OF 2004 -9-

rape upon the prosecutrix at about 6 AM on April 30, 2008, in a hotel

(Dhaba) room, the appellant and one Kala were sitting on a cot nearby. This

witness has further stated that outside the room in question, in a veranda,

7/8 persons were sleeping. He further said that he had seen six accused

named in the FIR at the spot. All the accused ran away from the spot after

pushing them aside. He has specifically stated that an accused, who was

committing the rape, ran away from the spot without putting on his clothes.

He has further deposed that Mohinder (PW9) was with him when he lodged

the FIR. This witness has shown his ignorance as to where and when the

appellant and Billu accused were arrested. This witness has also failed to

state as to in which direction the prosecutrix and the accused were lying

when they reached at the spot. This witness has not specifically mentioned

name of Billu alias Bhagwan Dayal as a person, who had committed rape

upon the prosecutrix. As against this, PW9 Mohinder Singh , husband of the

prosecutrix, has specifically stated that when he along with Risal (PW8)

reached at the spot, they found appellant Satbir committing rape upon the

prosecutrix and two other persons were sitting in the Veranda. All the three

persons ran away from the spot. Upon questioning, the prosecutrix disclosed

that Satbir, Billu, Naresh and Om Parkash had also committed rape upon

her. This witness has further stated that Kala and Satbir were arrested by the

police from the hotel, i.e., the place of occurrence and other accused ran

away. He has further stated that the person who was committing rape was

also completely naked. The above said person first put on his clothes and

then ran away. This witness has not named any accused, who was

committing rape upon the prosecutrix. He has further stated that he did not

accompany PW8 Risal to the Police Station when FIR was recorded.
CRIMINAL APPEAL NO. 923-DB OF 2004 -10-

Application Ex. PH was not written by Risal Singh.

The prosecutrix , in her deposition, had stated that when in the

morning, Risal and Mohinder reached at the spot, she was being raped by

two persons, who thereafter ran away. She could identify the persons who

raped her. When she was asked to identify the accused, who were sitting in

Court, she pointed towards Lilu, Dayal Chand and Satbir as the persons who

had committed rape upon her. In the next breath, she stated that rape was

committed upon her by Billu and Santa also. She has specifically admitted

that names of the accused persons were told to her by the police. In her

cross-examination, she has specifically pointed towards Billu, who was

committing rape upon her when Risal and Mohinder reached at the spot.

She has further stated that when she was raped in a hotel room, many

persons were available and they had seen the occurrence. She has further

stated that Risal is working in Delhi for the last 1- ½ – 2 years, which fact

was specifically denied by PW8 Risal. This witness has further stated that

she was earlier also raped by the accused and others. She has admitted

relationship of PW10 Mahabir and PW11 Mohinder with her family. Above

said facts clearly show that on material points, all the three witnesses are

deposing contrary to each other. This fact alone is sufficient to cast doubt in

the mind of the Court, regarding participation of the appellants in the

alleged crime.

Further submission of Shri Gill that medical evidence does not

corroborate participation of appellant Satbir in the alleged crime appears to

be justified. After his arrest, appellant was medico-legally examined on

April 30, 2004, at 8.37 PM by Dr. Rajiv Narwal (PW2), who has opined as

under:

CRIMINAL APPEAL NO. 923-DB OF 2004 -11-

“Local Examination: Pubic hair metted. Penis size 6.5 cm in

unerrected stage. Prepuce retracted and smegma present. No

fresh injury mark on his person. Secondary sexually character

were normal.

Opinion: There was nothing suggestive of that the person was

brought by police cannot perform sexual intercourse.”

Shri Gill has argued that the very presence of smegma on the

penis of the appellant negatives allegation of rape against him. To say so, he

has relied upon observations made in Modi’s Medical Jurisprudence , 21st

Edition, page 384, which reads as under:

“Presence of Smegma as Negative Rape.-1. In July, 1921, Mt.

Ramdevi, aged 15 years, made a report that three young men,

viz, Panchu, Debi and Jodha had committed rape on her. They

were arrested and sent immediately to Modi for examination.

None of them had any mark of injury on their genitals or

anywhere else on their bodies. The first two had smegma on the

glans penis covered by the foreskin; this proved that they could

not have had sexual intercourse at least during the last twenty-

four hours. The girl was also examined and found to have been

used to sexual intercourse, inasmuch as her hymen had old

lacerations. She had no mark of injury to her private parts or to

any other part of her body. The men were released.”

Their lordships of the Supreme Court dealing with a similar

situation in Sadashiv Ramrao Hadbe v. State of Maharashtra and another,
CRIMINAL APPEAL NO. 923-DB OF 2004 -12-

(2006) 10 Supreme Court Cases 92, has observed as under:

“8. It may also be noticed that the appellant was medically

examined on the same day by PW 10. In his evidence, he stated

that smegma was present around the corona glandis. He further

deposed that his examination negatived sexual intercourse and

for collection of smegma around corona glandis a period of 24

hours is required. This scientific evidence also did not support

the prosecution. Had there been a vigorous sexual act as alleged

by the prosecutrix there could not have been the presence of

smegma on his private part.”

Similarly their lordships of the Supreme Court in Aman Kumar

and another v. State of Haryana, (2004) 4 Supreme Court Cases 379, opined

that “in rape case, if the gland of the male organs is covered by smegma, it

negatives the possibility of recent complete penetration. If the accused is not

curcumsized, the existence of smegma around the corona gland is proof

against penetration since it is rubbed of during the act. The smegma

accumulates if no bath is taken within 24 hours. To the same effect is the

opinion of their lordships of the Supreme Court in State of Karnataka v.

Mahabaleshwar Gourya Naik, 1992 Supp (3) Supreme Court Cases 179. It is

also evident from the record that no injury was found present on the private

parts of the appellant and another convict, namely, Billu. On the person of

the prosecutrix, only one bluish bruise was found at her cheek, which was

not a teeth bite. It is not in dispute that age of the prosecutrix was 27 years.

She was married and having two children. As per report of the Forensic

Science Laboratory, semen was detected on the clothes of the prosecutrix
CRIMINAL APPEAL NO. 923-DB OF 2004 -13-

and the accused, which were taken into possession. However, as per

Serological report, the report with regard to analysis of semen group

remains inconclusive.

The prosecutrix had admitted her relationship with Mahabir

(PW10), who has stated that he had seen Shamsher Singh taking away the

prosecutrix in the evening of April 29, 2004 and she was struggling. Very

surprisingly, despite being closely related to the family of the prosecutrix,

he did not intimate the above said fact to the family members of the

prosecutrix. As per admitted facts, Mahabir is residing within a reasonable

distance. The prosecutrix has also admitted that Mohinder (PW11) is his

uncle. Above said witness has deposed regarding conspiracy hatched by the

appellant and other accused to kidnap and rape the prosecutrix on April 28,

2004. This witness was residing at a close distance to the house of the

prosectrix. However, he also failed to intimate the prosecutrix or any other

family member with regard to above mentioned conspiracy. PW10 Mahabir

and PW11 Mohinder have denied their relationship with the family of the

prosecutrix whereas the prosecutrix has stated to the contrary. This fact

shows that they were not truthful witnesses.

Contention of Shri Gill that statement of the prosecutrix was

not recorded, as per law, also appears to be justified. PW8 and PW9 both

have stated that the prosecutrix was mentally disturbed from the childhood.

They have further stated that she was not undergoing any medication at the

time of recording her evidence. No certificate from a competent doctor was

produced to prove the above said fact. The Court below without insisting

upon medical opinion believed that the prosecutrix was of unsound mind

and hard of hearing. She was allowed to get assistance from her father and
CRIMINAL APPEAL NO. 923-DB OF 2004 -14-

doctor at the time of recording her statement. Both the persons mentioned

above were not administered oath. Perusal of statement made by the

prosecutrix shows that most of the questions she has replied in a very

intelligent manner and some she has omitted. The appellant has produced

evidence in his defence. It was his contention that he was picked up from

Delhi Byepass, Sampla, and falsely involved in this case. His version has

been authenticated by DW1 Karan Singh.

In view of facts, mentioned above, this Court is of the opinion

that statement made by the prosecutrix does not inspire confidence and is

not supported by any corroborative evidence. Under similar circumstances,

their lordships of the Supreme Court in Sadashiv Ramrao Hadbe’s case

(Supra) has observed as under:

“9. It is true that in a rape case the accused could be convicted

on the sole testimony of the prosecutrix, if it is capable of

inspiring confidence in the mind of the Court. If the version

given by the prosecutrix is unsupported by any medical

evidence or the whole surround circumstances are highly

improbable and belie the case set up by the proseuctrix, the

court shall not act on the solitary evidence of the prosecutrix.

The courts shall be extremely careful in accepting the sole

testimony of the

prosecutrix when the entire case is improbable and unlikely to

happen. “

In view of facts, mentioned above, we allow these appeals, set
CRIMINAL APPEAL NO. 923-DB OF 2004 -15-

aside impugned judgment and order and acquit both the appellants of the

charges framed against them.

(JASBIR SINGH)
JUDGE

(JORA SINGH)
JUDGE
January 12, 2009.

DKC