CIVIL APPEAL None on 31 October 2000

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Crl. Appeal No.S-921-SB of 2002Date of Decision: September 12, 2013

Tejinder Singh

...Appellant

VERSUS

The State of Punjab

...Respondent

CORAM:HON'BLE MR. JUSTICE INDERJIT SINGH

Present:Mr.Bipan Ghai, Senior Advocate with Mr.Mandeep Kaushik, Advocatefor the appellant.

Mr.Yogesh Gupta, Asstt. Advocate General, Punjabfor the respondent-State.

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INDERJIT SINGH, J.

The present appeal has been filed by the appellant againstthe judgment of conviction and order of sentence dated 22.03.2002,passed by the learned Addl. Sessions Judge, Jalandhar, whereby, hewas held guilty and convicted and sentenced to undergo rigorousimprisonment for a period of three years and to pay a fine of ` 1000/-under Section 363 IPC and in default of payment of fine, to furtherundergo rigorous imprisonment for a period of nine months andfurther convicted and sentenced to undergo rigorous imprisonment fora period of five years and to pay a fine of ` 3000/- under Section 366IPC and in default of payment of fine, to further undergo rigorousimprisonment for a period of one year. He was also convicted and sentenced to undergo rigorous imprisonment for a period of sevenyears and to pay a fine of ` 5000/- under Section 376 IPC and indefault of payment of fine, to further undergo rigorous imprisonmentfor a period of one and a half year. All the sentences were ordered torun concurrently. Co-accused Dharamvir Singh was acquitted of thecharges framed against him.

The brief facts of the prosecution case are that on24.07.1999 at 11.00 A.M. prosecutrix was coming back afterpurchasing the envelope from the post office. When she reachednear the site of the Bhairo, then one white coloured car arrived therein which two persons, one of whom was Joga son of Mohni and thename of the other was not known, were sitting. Joga threw theprosecutrix into the car by gagging her mouth. The other companionof Joga drove away the car towards the side of Phillaur and took herto a place of an unknown well where a room was built. Both Joga andhis companion committed rape upon her one after the other and theydetained her in the room of the well for about two hours. After a gapof 2½ hours, they took her in the said car and left her on the brick kilnof Amrik Singh and fled away. The prosecutrix on coming back to thehouse narrated the said version to her parents. On being felt insultedof their reputation, they did not tell about the incident to anybody.However, later on Joga and his companion started chasing prosecutrixand on being fed up, they lodged the report regarding the incident toASI Sucha Singh of P.S. Goraya on 27.09.1999. Statement of theprosecutrix Ex.PD was recorded and ruqa was sent to police station, on the basis of which FIR Ex.PD/2 was registered. Statements ofwitnesses were recorded. Rough site plan was prepared. Prosecutrixwas medico-legally examined. Accused were arrested. AccusedTejinder Singh was also subjected to medical examination. Afternecessary investigation, challan was presented against the accused-appellant and supplementary challan was presented against co-accused Dharamvir Singh.

On presentation of challan against accused-appellant andsupplementary challan against co-accused, copies of challan andother documents were supplied to them under Section 207 Cr.P.C.Finding prima facie case, the accused-appellant and co-accused werecharge-sheeted under Sections 363, 366A and 376(g) IPC, to whichthey pleaded not guilty and claimed trial.

In support of its case, prosecution examined PW-1Dr.Karnail Singh, who medico-legally examined accused-appellant on26.05.2000 at 10.00 A.M. PW-2 Anita Kumari, Science Mistressbrought the attendance register for the year 1999-2000. As perrecord, the prosecutrix was student of their school. Her name wasregistered on 20.05.1999. She has also brought the certificate file forthe year 1999-2000 and a certificate was issued on 31.10.2000 byRajni Kohli, Head Mistress of the school showing the date of birth ofthe prosecutrix as 30.10.1983. The copy of the certificate is Ex.PB.PW-3 Constable Balkar Singh, is the formal witness, who tenderedinto evidence his affidavit Ex.PC. PW-4 prosecutrix, mainly deposedas per prosecution version. PW-5 is mother of the prosecutrix. She also deposed as per prosecution version. She further deposed thatJoga Singh is present in the court and she pointed accused TejinderSingh as Joga Singh. PW-6 ASI Sucha Singh, is the InvestigatingOfficer. He deposed regarding investigation conducted by him in thepresent case. PW-7 is the father of the prosecutrix. He also deposedas per prosecution version. He also stated that prosecutrix is now 14years of age. PW-8 Dr.Gurinder Kaur Chawla, Medical Officerdeposed that she medico-legally examined the prosecutrix on05.10.1999. She stated that hymen was torn. She also gave theopinion that prosecutrix was subjected to sexual intercourse.

At the close of prosecution evidence, the accused-appellant and co-accused were examined under Section 313 Cr.P.C.They denied the correctness of the evidence and pleaded themselvesas innocent. Accused-appellant Tejinder Singh further pleaded that hehas been falsely involved to blackmail him In defence, accused-appellant examined DW-1 SurinderSingh, Lamberdar, who mainly deposed regarding affidavits Ex.D1and Ex.D2. DW-2 Inderdev Singh, Tehsildar deposed regardingattesting of the affidavits.

On the basis of the evidence produced by the prosecution,accused-appellant was convicted and sentenced by the learned Addl.

Sessions Judge, Jalandhar whereas co-accused Dharamvir Singhwas acquitted as stated above.

At the time of arguments, learned counsel for the appellantargued that in the statement under Section 164 Cr.P.C., name of the

appellant has not been given by the prosecutrix, which creates doubtin the prosecution version. He further argued that there is delay in therecording of FIR of about two months, which also creates doubt in theprosecution version. The execution of affidavits Ex.D1 and Ex.D2 bythe parents and prosecutrix also creates reasonable doubt in theprosecution version. He next contended that no birth certificate hasbeen produced on the record to show that the prosecutrix was minorat that time. Learned counsel for the appellant further contended thatChemical Examiner's report cannot be connected with the appellantas FIR was registered in this case after a period of two months and asper PW-8 Dr.Gurinder Kaur Chawla, semen can be detected by theChemical Analyst to the maximum period of about 15 days after thesexual intercourse. Learned counsel for the appellant, therefore,argued that there being merit in the appeal, it should be allowed andappellant should be acquitted.

On the other hand, learned Asstt. Advocate General,Punjab for the respondent-State has argued that case of theprosecution has been duly proved. There is no evidence to disbelievethe school certificate. Secondly, PW-7 father of the prosecutrix alsostated in his statement that prosecutrix's age was 14 years at the timeof occurrence and there was no cross-examination on this ground andtherefore, he argued that prosecutrix was minor at the time ofoccurrence. Learned State counsel further argued that the delay hasbeen duly explained. The name of the present appellant TejinderSingh son of Mohan Singh has been given as Joga Singh son of Mohni Singh in the FIR. Tejinder Singh is also known as Joga Singhand he was identified as Joga Singh in the Court by the prosecutrix aswell as by mother of the prosecutrix. As regarding affidavits producedas Ex.D1 and Ex.D2, he argued that, at the most, it can be held astampering with the evidence. These affidavits are not substantialevidence nor the same create any doubt in the prosecution version.He further argued that case of prosecution has been duly proved bythe PWs. The oral statements of PWs are duly supported andcorroborated by the medical evidence and the investigation of thecase. There is nothing on the record that accused-appellant has beenfalsely implicated. Learned State counsel, therefore, argued that therebeing no merit, the appeal should be dismissed.

I have gone through the record minutely and carefully andhave heard learned counsel for the appellant as well as learned Asstt.Advocate General, Punjab for the respondent-State.

From the evidence on record, I do not find any merit in thearguments of learned counsel for the appellant. First of all, it hasbeen duly proved by the prosecution that the prosecutrix was lessthan 16 years of age at the time of occurrence as per the schoolcertificate. Further, the father of the prosecutrix has also states herage as 14 years. The prosecutrix who appeared in the witness box,herself also given her age as 14 years. There was no cross-examination to challenge her age. There is also no other evidence onrecord nor there is any cross-examination to the parents of theprosecutrix regarding her age. As per school certificate, the date of

birth of the prosecutrix is 30.10.1983 and the occurrence took placeon 24.07.1999. Therefore, at that time, the prosecutrix was less than16 years of age. Prosecutrix as PW-4 has deposed regarding theprosecution version consistently. The perusal of her cross-examination nowhere shows anything which may make her statementunreliable. There are no material contradictions or materialimprovements in the statements of PWs, which may go to the root ofthe case. The statement of prosecutrix has been duly supported andcorroborated by the medical evidence as well as investigation of thecase.

Further, I find that the name of the present appellant hasbeen given in the FIR recorded on 27.09.1999. Even, if it is taken thatname of the appellant has not been given in the statement recordedunder Section 164 Cr.P.C., it will not create any doubt as in the FIR,name of the appellant has been given. As regarding the delay inrecording the FIR, it has been duly explained by the PWs. Even in theFIR, it is stated that after the occurrence, prosecutrix had told theincident to her parents but due to disrepute to family, the matter wasnot reported to the police but later on when the accused again chasedprosecutrix, then the matter was reported to the police. It is settledlaw that delay in recording the FIR itself is not fatal to the prosecutioncase. In the case of delay, the Court is to appreciate evidence morecautiously and carefully. In the present case, I have gone through thestatements very carefully and I find that there is no concoction or falseimplication of the appellant. Otherwise also, there is no reason or ground to falsely implicate the appellant. In Indian society, nounmarried girl would level such type of allegations falsely to bringdisrepute to herself and her family. On the other hand, appellant hassimply taken the plea that he is innocent. There is nothing on therecord to show that the appellant has been falsely implicated in thepresent case.

As regarding the affidavit given by the prosecutrix i.e.Ex.D2, I find that she has given this affidavit on 04.10.1999 and in thisaffidavit she has stated that her mental condition was not proper andshe got registered DDR against Joga Singh and Dharamvir but theyhave not committed any rape upon her. This affidavit is not asubstantial piece of evidence but the statement of prosecutrix in theCourt levelling allegations against the present appellant is substantialpiece of evidence. At the most, this affidavit can be stated to be as aprevious statement. Similarly, the prosecutrix even in cross-examination has stated that Tehsildar had not enquired anything aboutthe occurrence and had obtained her signatures on Ex.D1 and Ex.D2.She denied the suggestion that she had got recorded that Joga Singhhad not committed any rape with her. On the basis of these affidavits,no benefit to the appellant can be given. If the appellant was notguilty, then why he obtained affidavit after the registration of this casefrom the prosecutrix etc.

As regarding Chemical Examiner's report, even if it istaken that semen test cannot be conducted by the Chemical Examinerafter 15 days and he found the semen on the swab after more than

Conclusion

two months, no benefit to the appellant can be given. The prosecutrixhas deposed against the appellant and there is no reason or motive tofalsely implicate the appellant. Further, I find that prosecution has ledcogent evidence to prove its case beyond reasonable doubt. Thestatement of prosecutrix is duly supported and corroborated by thestatements of her parents. Her statement is further supported andcorroborated by the medical evidence and investigation of the case.

Therefore, from the above, I find that prosecutrix waskidnapped and rape was committed and accused-appellant has beenrightly convicted. The impugned judgment of conviction and order ofsentence passed by learned Addl. Sessions Judge, Jalandhar arecorrect and as per law and the same are upheld.

Resultantly, the present appeal stands dismissed.

As appellant Tejinder Singh is on bail, his bail bond standcancelled and he is directed to surrender himself before the jailauthorities immediately for completing remainder of sentence, failingwhich the concerned authority shall proceed against him inaccordance with law.

September 12, 2013(INDERJIT SINGH)VgulatiJUDGE