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