Criminal Appeal No.312-SB of 1998 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Criminal Appeal No.312-SB of 1998
Date of Decision:03.02.2009
Pala Ram
.....Appellant
Vs.
State of Punjab
.....Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. Samir Rathore, Advocate for Mr. Sumeet Goel,
Advocate for the appellant.
Mr. T.S. Salana, Deputy Advocate General, Punjab.
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JUDGMENT
HARBANS LAL, J.
This appeal is directed against the judgment/ order of sentence
dated 10.3.1998 passed by the Court of learned Sessions Judge, Ferozepur
whereby he convicted and sentenced the accused Pala Ram to undergo
rigorous imprisonment for seven years and to pay a fine of Rs.3,000/- or in
default of the same to further undergo rigorous imprisonment for six months
under Section 376 of IPC and further sentenced him to undergo rigorous
imprisonment for three years and to pay a fine of Rs.1,000/- or in default
thereof, to further undergo rigorous imprisonment for two months under
Section 450 of IPC with a further direction that the substantive sentences
shall run concurrently.
Shorn of all unnecessary details, the prosecution case is that on
6.6.1996 at about 7:00 P.M., the prosecutrix (name is not being indicated in
the judgment to prevent social victimisation of the victim in view of
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Premiya alias Prem Parkash v. State of Rajasthan, 2008(4) Recent
Criminal Reports (Criminal) 539 (SC)) was all alone present in her house.
She had bolted the door from inside and was arranging the wheat-chaff,
when her father was away to his personal work and her sister-in-law,
brother and mother had gone to attend the marriage at Amarpura. Her two
other brothers Prem and Jai Pal had gone for doing labour work in Village
Amarpura. The accused Pala Ram by scaling over the wall entered in the
room and removed her salwar and started committing rape forcibly on her.
She raised alarm. Meanwhile, her brother Beelu PW came there. He
knocked at the door, the bolt of which being loose got opened. He saw the
accused committing rape on her. On catching sight of his, the accused made
an endeavour to flee from the spot. Beelu by picking up a spade gave two
blows, as a result of which, the accused sustained injuries and he ran away
from the scene of crime. Her father Chandu Ram came later on in the
house. She narrated the entire occurrence to her father, who took her to
Fazilka Hospital, where she was medico legally examined. On 7.6.1996 at
12:45 P.M. The ruqa was sent to the Police Station, City Fazilka. On receipt
of the ruqa as well as medico legal examination report, ASI Sucha Singh
went to the aforesaid hospital and recorded the statement of the prosecutrix.
On the basis of the same, the case was registered. The said ASI visited the
spot, prepared the rough site plan showing the place of occurrence and
arrested the accused. On completion of investigation, the charge-sheet was
laid in the Court of learned Illaqa Magistrate. He committed case to the
Court of Session for trial of the accused.
On commitment, the accused was charged under Section 450
and 376 of IPC to which he did not plead guilty and claimed trial. To bring
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home guilt against the accused, the prosecution has examined the
prosecutrix PW1, Beelu PW2, Dr. Sarita PW3, Dr. Ajay Narang PW4, Head
Constable Angrej Raj PW5, Sukhdev Singh Draftsman PW6, Darbara Singh
SI PW7, ASI Sucha Singh Investigator PW8 and closed its evidence by
giving up Dr. M.L. Madan being unnecessary.
When examined under Section 313 of Cr.P.C., the accused
denied all the incriminating circumstances appearing in the prosecution
evidence against him and pleaded that “I am innnocent. Beelu Ram had a
fight with me and he caused me injuries in the fight at about 6:30 P.M and I
was already admitted in the hospital and later on, this case was planted upon
me, when I was in the hospital.” He did not adduce any evidence in
defence. After hearing the learned Public Prosecutor for the State, the
learned defence counsel and examining the evidence on record, the learned
trial Court convicted and sentenced the accused as noticed at the outset.
Feeling aggrieved with his conviction/ sentence, he has preferred this
appeal.
I have heard the learned counsel for the parties, besides
perusing the record with due care and circumspection.
Argued, the learned counsel for the appellant that there was an
inordinate unexplained delay of 17/18 hours in lodging of the First
Information Report in this case as the occurrence allegedly took place on
6.6.1996 at 7:00 P.M whereas this report was lodged on 7.6.1996 at about
12:45 P.M. This delay smacks of concoction and fabrication of the version
by the prosecution. The learned trial Court has not taken this fact into
consideration. There was no signs of any external violence or injuries on
any part of the prosecutrix as divulged by her medico legal examination
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conducted by PW Dr. Sarita. This Doctor had also recommended her
radiological examination for determination of her age, but as is borne out
from the record, no steps were taken in this direction for the reasons best
known to the prosecution. The accused- appellant, who had sustained
injuries had got himself admitted in the same hospital at about 7:30 P.M on
the date of alleged occurrence, yet he was not arrested on that day. He was
hauled up only on 13.6.1996 which is obviously after a lapse of about 7
days which further cast a cloak of suspicion on the prosecution version.
The prosecutrix herself had lodged a complaint against her brother Beelu
PW in the Court of learned Judicial Magistrate Ist Class at Fazilka. As per
this complaint, the accused – appellant had not committed the alleged act
with the prosecutrix and she had mentioned his name in her statement
before the police only under coercion and at the instance and pressure of her
brother PW Beelu, who had held out a threat to put an end to her life, if she
refused to make statement in the Court against the accused. Her statement
was also recorded by the aforementioned learned Magistrate, wherein again
she reiterated the above facts. Thus, it is discernible from the prosecution
evidence that it is incompatible and unconvincing. As such, no implicit
reliance should be placed thereon.
To tide over these submissions, Mr. T.S. Salana, Deputy
Advocate General, Punjab on behalf of the State maintained that the
evidence tendered by the prosecutrix as well as her brother Beelu PW and
eye witness being consistent and intrinsically trustworthy, warrants no
interference in the impugned judgment. This contention merits rejection for
the discussion to follow hereunder:
PW3 Dr. Sarita has stated in the following terms:
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“On 7.6.1996 at 12.45 P.M., I medico legally examined
—–(referring to the prosecutrix) daughter of Chandu Ram 15
or 16 years of age, resident of Khui Khera, brought to me by the
police and found the followings:-
—–(prosecutrix) was moderately built and nourished,
well oriented and was wearing a printed salwar and kameez,
with a weight of 40 Kgs and height of 5′, having 14 teeth in
upper jaw and 15 teeth in the lower jaw. Pulse was 72 PM and
B.P was 110/70 MM of Hg.
On examination, there was no sign of external violence
on any part of the body. The secondary sexual characteristics
were developed. Pubic and axillary hair was present. Breast
developed.
On per-vagina examination – pubic hair present, labia
majora and minora well developed. Hymen was torn and the
tear of the hymen was an old one. Vagina admitted two fingers
easily, uterus was ante-verted and ante-flexed, small size
mobile forensic clear. No bleeding was present.
I took two vaginal swabs and sent the same to the
Chemical Examiner for confirmation of spermatozoa. Clothes
i.e salwar and kameez of the patient were also sent to the
Chemical Examiner for confirmation of spermatozoa. I also
advised x-rays for confirmation of age.
I handed over to the police, the box with five seals
containing two vaginal swabs, a packet with nine seals
containing the clothes of the patient, an envelope with seven
Criminal Appeal No.312-SB of 1998 -6-seals containing sample of the seal, covering letter, MLR and
the police papers and one another copy of the MLR.
Ex.P3 is the correct carbon copy of the medico legal
report, original of which I have brought today in the court. She
was medico legally examined on police request Ex.P4, which
bears my endorsement Ex.P4/1. (At this stage a sealed parcel
has been opened and salwar MO-4 and shirt MO-5 have come
out of it). These are the same clothes, which I had removed
from the person of the prosecutrix.
XXXn
The prosecutrix arrived in the hospital at 12.30 PM on
7.6.1996. She was brought by ASI Sucha Singh. I did not find
any teeth bite injury on any part of the body of the prosecutrix.
The possibility of the prosecutrix being accustomed to habitual
intercourse cannot be ruled out. I had not received the report of
Ossification test.”
It is in the cross-examination of the prosecutrix PW1 that “the
accused caught hold of me and threw me on the ground with force. I
received injury on my back. I was wearing green bangles at that time.
Some bangles were broken and I also received some scratches on my arms.
The accused gave me the bite on my cheek. He also gave teeth bite on my
breast and also torn my shirt. But I had not given any teeth bite to the
accused. The accused kept me in his grip for one hour. During this one
hour, I was making a struggle and I received injuries on my back and arms
and on the legs.” On a combined reading of this ocular account as well as
the medical evidence trickled from the mouth of Dr. Sarita (sic.), it
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transpires that palpably, there is divergence rather sharp contradiction
between the two. Dr. Sarita has stated in candid and categoric terms that on
examination, there was no sign of external violence on any part of the body,
whereas on evaluating the above referred evidence of the prosecutrix, she
had sustained injuries on her back, arms and legs. She was got medico
legally examined not on the date of alleged occurrence, rather on the next
day i.e. after 17 to 18 hours. The complainant party has not apportioned any
reason for not taking the prosecutrix to the hospital for her medical
examination soon after the occurrence. There is no dispute or quarrel with
the proposition that if there is variance between the medical and ocular
evidence, the latter has to be accepted, provided it stands the test of judicial
scrutiny in the crucible of probabilities. But here in this case, the medical
evidence cannot be brushed aside. If she had sustained injuries on the
stated parts of her body, in all human probabilities; to prevent further loss of
blood, she would have been rushed immediately to the hospital. As
emanates from Dr. Sarita’s evidence, the vagina admitted two fingers easily.
Under the stress of cross-examination, she has deposed that “the possibility
of the prosecutrix being accustomed to habitual intercourse cannot be ruled
out. ” This evidence speaks volumes of the prosecutrix being habitual to
sexual intercourse. As is borne out from Dr. Sarita’s testimony, two vaginal
swabs, salwar and kamiz of the prosecutrix were sent to the Chemical
Examiner for confirmation of spermatozoa. The Chemical Examiner’s
report has not been tendered in evidence by the prosecution. The record of
the trial Court does not reveal any reason worth mention for withholding the
same. In the absence thereof, it is very difficult to say that on the vaginal
swabs, salwar and kamiz of the prosecutrix, the spermatozoa were found
Criminal Appeal No.312-SB of 1998 -8-
present. The reason for holding back such report may be that no
spermatozoa was found on these articles. An adverse inference has to be
drawn against the prosecution that such report had gone against it. It is in
the evidence of Dr. Sarita that “she had advised X-Ray for confirmation of
age of the prosecutrix.” At the fag end of her cross-examination, she has
testified that “I had not received the report of ossification test.” On the day
of her examination as a witness in the Court, the prosecutrix gave her age 16
years. So, is the age given by Dr. Sarita in her evidence. Dr. Ajay Narang
PW4 had medico legally examined the accused on 7.6.1996 at 12:45 P.M.,
i.e., on the next day of the occurrence. It is in his evidence that “Smeghma
was not present.” Absence thereof on the accused’s person coupled with
non-tendering of the Chemical Examiner’s report gives an inkling that even
symptomatic proof of rape was not there. Annexure P.1 is the copy of the
complaint purportedly lodged by the prosecutrix against her own brother
Beelu Ram PW under Sections 504/323/506 of IPC in the Court of learned
Judicial Magistrate First Class, Fazilka. As its contents proceed, on
7.6.1996, Pala Ram (referring to the present accused- appellant) had not
committed rape with me (referring to the prosecutrix). It is further
mentioned in this complaint that there used to be a dispute in the
complainant’s house that she should depose against Pala Ram, but the
complainant used to refuse by saying that she would not lay any innocent
man to suffer. Towards the end of her cross-examination, the prosecutrix
has stated that “The accused had got thumb impressions on blank paper and
those papers may have been used for the statement. I am not ready to give
my thumb impression for comparison in this case.” But to the utter dismay
of the prosecution, the occasion at which her thumb impressions were
Criminal Appeal No.312-SB of 1998 -9-
obtained by the accused has been left in the womb of mystery. Where was
such occasion for the accused has not been unfolded. In Annexure P.2 also
it has been stated that “on 7.6.1996 I (referring to the prosecutrix) on
Beelu’s asking had registered an FIR against Pala Ram that he had raped me
but Pala Ram had not raped me.” This statement having been recorded
before the Judicial Magistrate First Class, Fazilka cannot be ignored easily.
If the prosecutrix had not suffered this statement in the aforesaid Court, the
complainant party would have taken this matter to its logical conclusion by
way of inquiry. There being no plausible reason to discard this
documentary evidence, it has to be relied upon. The same further deals a
coup-de-grace or strike a death knell to the prosecution edifice.
Dr. Ajay Narang PW4 has deposed in his cross-examination
that the “Patient (referring to the accused- appellant) was admitted in Civil
Hospital, Fazilka at the time of his medico-legal examination.” One thing is
clear that the accused lay already admitted. It is apt to be borne in mind that
the rival theory of defence set up by the accused is that as a matter of fact he
had received injuries at the hands of Beelu PW, brother of the prosecutrix
and was lying admitted in the hospital at the time of alleged occurrence.
The sum and substance of the evidence given by Beelu PW is that on seeing
the accused committing rape on his sister, he picked up the rusted spade and
gave one or two blows with the same on the accused. It is in his cross-
examination that “the community men of the accused were also attracted to
the spot with dangs to beat me. They were 6-7 in number.” If the accused-
appellant had committed rape, his community men would have not come to
his rescue. Their coming to the spot rather probablises that the accused-
appellant was assaulted by Beelu Ram PW and to wreak vengeance, they
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came over there duly armed with dangs. The medico legal examination
report of the accused though not exhibited is available on the record. As per
the same, Pala Ram accused had arrived in the hospital on 6.6.1996 at 7:30
P.M and he was medico legally examined at 7:40 P.M. As many as, three
injuries were found on his person. One lacerated wound was observed in
the middle of his scalp. The other lacerated wound was also observed at the
saggital line. The third one i.e. lacerated wound was found on the front of
his forehead. The bleeding was present in all the injuries. Obviously, all
these three injuries were found on the vital parts of his body. May be that,
the fight occurred between the accused- appellant and Beelu PW2. In order
to exert pressure upon the accused- appellant, the latter got planted a false
case of rape by using his sister as a tool who was already habitual to sexual
intercourse, particularly, when the taking place of rape has not been
established by evidence.
As alleged by the prosecutrix, the occurrence took place on
6.6.1996 at about 7:00 P.M. It is in her cross-examination that “the accused
kept me in his grip for one hour.” If the accused kept her for one hour in the
grip of his loins, in that eventuality, by no stretch of speculation, he would
have reached the hospital at 7:30 P.M. There being injuries on his head,
with a spade, he would have not been able to reach the hospital hurriedly.
To add further to it, the alleged occurrence took place in the evening time.
Normally speaking, the parents or other members of the family of a young
girl do not leave her all alone at such hours.
It is in the corss-examination of ASI Sucha Singh PW8
Investigator that “the ruqa which was received by me is not on the judicial
file.” As would be apparent from his cross-examination, he was questioned
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as to why he had not arrested Pala Ram on that day? He replied that “the
accused was admitted in hospital, therefore, he had not arrested him nor he
put guard”. It is also in his cross-examination that “medico legal
examination of Pala Ram was got done on 7.6.1996 at 12:45 P.M. When I
got him medico legally examined, the accused was not arrested.” The
question recorded in his further cross-examination is “when you had got
medico legally examined Pala Ram accused on 7.6.1996, why you had not
recorded the statement of Pala Ram accused regarding the injuries suffered
by him and why you had not arrested him on that day?” The note recorded
in the answer is “the witness is not giving any reply to the question.” It is in
his further cross-examination that “there were three injuries on the person of
Pala Ram accused. These injuries were on the head and the Doctor had
advised X-Ray for two injuries. It is correct that the injuries were declared
by me as simple before the receipt of the X-Ray report. I have not obtained
the report from the Doctor with regard to the X-Ray report of Pala Ram
accused.” Obviously, he has not assigned any reason for declaring the
injuries as simple on his own. He has also not given any reason for not
obtaining the X-report from the Doctor. This conduct shows that he was too
bent upon to help the complainant party. A suggestion has been put to him
in his further cross-examination that “it is wrong to say that I have sided
with the complainant and conducted partial investigation.”
To sum up, there is unexplained inordinate delay of as many as
17 to 18 hours in getting the prosecutrix medico legally examined.
Secondly, as alleged by her, she has sustained injuries on her back, arms and
legs, which were not found by Dr. Sarita during the course of medico legal
examination of the prosecutrix. Thirdly, as per Annexure P.1 as well as
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Annexure P.2, Beelu PW brother of the prosecutrix had forced her to make a
statement in the Court that the accused Pala Ram had committed rape on her
though as per these documents, she was not ravished. Fourthly, the
prosecution has not tendered in evidence the Chemical Examiner’s Report to
affirm the presence of spermatozoa on the vaginal swabs, salwar and kamiz
of the prosecutrix. Fifthly, smegma was absent on the person of the
accused- appellant. Sixthly, the prosecutrix was habitual to sexual
intercourse. Seventhly, the age of the prosecutrix was not got determined by
way of ossification test despite the direction given by the Doctor. Eighthly,
the presence of the accused- appellant at the time and palce of occurrence is
rendered highly doubtful.
In the ultimate analysis, it boils down that the prosecution has
not been able to bring home guilt against the accused- appellant beyond a
shadow of reasonable doubt. Consequently, this appeal is accepted, setting
aside the impugned judgment/ order of sentence. The accused- appellant is
hereby acquitted of the charged offence.
February 03, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes