Avtar Singh vs The State Of Punjab

Avtar Singh & Anr. … Appellant(s) Versus State of Punjab … Respondent(s)

JUDGMENT

Rajesh Bindal, J.

1. The judgment dated February 10, 2010 passed by the High

Court of Punjab & Haryana in Criminal Appeal No.386 of 1999 has

been impugned in the present appeal. The appellants were convicted

and sentenced under Section 342 and 376(2)(g) of the Indian Penal

Code [hereinafter ‘IPC’]. The third accused, Gian Singh was acquitted

by the trial court itself.

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2. Briefly noticing, the facts of the case are that FIR No. 102 of

1996 was registered at Police Station Hariana, District Hoshiarpur,

under Sections 366, 376, 342, 506 and 34 IPC1 against the appellants

i.e. Avtar Singh, Sohan Lal and the acquitted accused, Gian Singh by

the complainant, prosecutrix herself i.e., XYZ [name withheld].

3. Briefly as stated by the prosecutrix in the complaint, on the

basis whereof the FIR was registered, that on 22.07.1996 at about 08.30

PM she went to ease herself in the ‘Maize’ crop field close to her

haveli. When she had just entered the ‘Maize’ crop field, appellant no.

1, Avtar Singh came there. He put his hand on her mouth and took her

to the ‘Maize’ crop field. He made her sniff something. She became

unconscious. When she regained consciousness, she found herself on

the floor of a room. At that time, Avtar Singh was lying with her and

her ‘Salwar’ had been removed. She was feeling pain in her vagina.

When she tried to get up, she was threatened by Avtar Singh with a

knife that if she raised alarm, she would be killed. Again, early in the

morning also, Avtar Singh committed rape on her by showing her a

knife. Next morning on 23.07.1996, at about 06.00 AM, Gian Singh,

Panch of the village, came there and opened the room. (Pertinently,

1 Indian Penal Code, 1860.

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he was acquitted by the Trial Court). At that time, she came to know

that the room in which she was detained, was part of the haveli of Gian

Singh. Thereafter, Avtar Singh went out and bolted the door from the

outside. After this, Gian Singh committed rape on her. The prosecutrix

remained with Gian Singh throughout the day. In the evening, Avtar

Singh and Sohan Lal came to the room and Gian Singh went away.

During the night, both Avtar Singh and Sohan Lal committed rape on

her, turn by turn. In the morning on 24.07.1996, Avtar Singh and Sohan

Lal took the prosecutrix to the ‘Bajra’ field behind the haveli of Gian

Singh and again committed rape on her, turn by turn, against her

consent. She was detained in the Bajra field throughout the day. In the

evening, when Avtar Singh and Sohal Lal were taking her to some

other place, she ran away and reached her house. The prosecutrix

narrated the entire incident to her mother in the evening on

24.07.1996.

4. The FIR was got registered on the next day i.e., 25.07.1996,

against the accused persons by the prosecutrix who came along with

her mother and uncle Basant Singh to the Police Station.

5. The prosecution examined 13 witnesses, which included

the prosecutrix herself and her mother. All the other prosecution

witnesses were officials. The defence examined 4 witnesses which

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included a former sarpanch and the sarpanch of the village at time

when the alleged incident had taken place. Further, defence

witnesses includes Adda in-charge of the Union where appellant no. 1

namely, Avtar Singh was employed & lastly, the document and

handwriting expert.

6. The chargesheet was filed against Avtar Singh and Sohan

Lal and Gian Singh was placed in column no. 2. Charges were framed

against Avtar Singh, Sohan Lal and Gian Singh vide order dated

January 08, 1997. On appreciating the evidence produced by the

parties, vide judgment dated February 27, 1999, the trial court

convicted Avtar Singh under Sections 366, 376(2)(g), 342, 506 IPC &

Sohan Lal under Section 342 and 376(2)(g) IPC and sentenced them to

undergone imprisonment for a period of 10 years, respectively,

whereas the accused, Gian Singh was acquitted.

7. Ms. E.R. Sumathy, learned counsel for the appellant

submitted that the story as projected by the prosecution, was not

believable. There are substantial discrepancies therein. Part of

incident was stated to have taken place in a room in the haveli of Gian

Singh, who was also charge-sheeted for committing rape on the

prosecutrix. However, his involvement was disbelieved by the trial

court and he was acquitted. Once the story of the prosecution is

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disbelieved with reference to the involvement of Gian Singh, the chain

of events is broken and the conviction of the appellants can also not

be upheld. The main incident was stated to have taken placed in the

room of the haveli of Gian Singh, where the accused and the

prosecutrix had remained for two days. He further submitted that no

missing report was filed by the family members of the prosecutrix for

more than two days, despite the fact that she was allegedly missing

from the house from the night of July 22, 1996 and had come back to

her home in the evening of July 24, 1996.

8. Though it is stated in the FIR that the uncle of the prosecutrix

namely, Basant Singh had accompanied them to the police station at

the time of registration of the FIR, however, he has not been produced

in the Court. The appellants could not be linked with the crime, as

there was no report produced from the laboratory linking them to the

crime. It was claimed that the samples of semen and blood was taken

from the clothes of the prosecutrix, but the same were not matched.

There is further discrepancy in the evidence lead by the prosecution

as the prosecutrix stated that she had handed over her clothes namely

salwar and shirt to the Investigating Officer at the police station

whereas her mother, Bakshish Kaur (PW6) stated that the clothes of the

prosecutrix had been given to Sadhu Singh, who had handed over the

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same to the police. Sadhu Singh has not been produced as a

prosecution witness. It was further submitted that there was no injury

found on the body of the prosecutrix, even though she claimed that

rape was committed against her consent firstly on the floor of a room

in the haveli and secondly in the ‘Bajra’ field, that too multiple times.

The plea raised by the appellant no.1 namely Avtar Singh, claiming an

alibi was disregarded by the trial court without any reason. It is further

submitted that the appellant no. 1, namely Avtar Singh had produced

certain love letters written by the prosecutrix to him. Initially, the

prosecutrix had given her sample of handwriting, distorting the same.

However, when she was asked by the handwriting expert for another

sample of handwriting, she had refused to provide the same. For this

conduct of the prosecutrix, an adverse inference is to be drawn.

Further, there is a delay of more than one day in getting the FIR

registered by the prosecutrix. It has further been contended that

Rattan Chand, sarpanch of the village, (DW2) had stated that there

were two rooms in the haveli of Gian Singh. In another room, goods

of Gian Singh were lying, as on the same plot, house of Gian Singh was

under construction and in another room, some labourers were

residing.

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9. The conviction of the appellants deserves to be set aside as

the findings recorded are totally perverse and the view taken by the

Courts below was not a possible view.

10. On the other hand, Mr. Karan Sharma, learned counsel for

the State submitted that the evidence led by the prosecution has been

properly appreciated by the Courts below while recording a finding

of conviction, which does not require interference by this Court, as at

this stage, re-appreciation of evidence should not be done. It is a case

in which rape was committed on the prosecutrix by three accused,

namely Avtar Singh, Sohal Lal, and Gian Singh, though one of them

was acquitted by the trial court. However, the involvement of the

appellants was proved beyond any doubt. Plea taken by them in

defence was not found to be tenable. Delay of one day in getting the

FIR registered in such type of cases is not fatal.

11. We have heard learned counsel for the parties and

perused the relevant referred record. As per the version of the

prosecutrix, three accused were involved in the offence, namely Avtar

Singh, Sohan Lal and Gian Singh. It was claimed that on July 22, 1996

when the prosecutrix was on her way to ease herself in a Maize field,

she was waylaid by Avtar Singh who had put handkerchief on her nose

and made her smell something, after which she had become

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unconscious. Thereafter, she was taken in a room in an under-

construction building. It is difficult to believe that in the residential

area of the village, at around 08.30 p.m., Avtar Singh could manage to

take the prosecutrix in an unconscious condition to a room in the

haveli of Gyan Singh unnoticed by anyone. It is further the case setup

by the prosecution that throughout the night, Avtar Singh had

committed rape on the prosecutrix. When she regained

consciousness, she had found herself lying on the floor of the room. In

the morning at about 06.00 AM, Gian Singh had come there along with

a cup of tea, which she had refused to consume. Thereafter, Avtar

Singh left the place and Gian Singh committed rape on her throughout

the day on July 23, 1996. While going out, Avtar Singh had bolted the

door from outside.

12. This story of the prosecution is belied by the fact, as has

come on record through the evidence led by the prosecution, that the

haveli of Gian Singh was under construction where regular activity

was going on. Labour was working there throughout the day. Coupled

with the fact that it was the case of the prosecutrix herself that the

accused party belonged to the opposite group in the village. The trial

court did not find any case made out against Gian Singh in whose

haveli, the prosecutrix had allegedly stayed for two days, out of which

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on one day, she was allegedly raped by Gian Singh, owner of the

haveli. The acquittal of Gian Singh has broken the chain of events and

falsified the story projected by the prosecutrix.

13. Now coming to the evidence lead against the appellants.

It is the case of the prosecution itself that the room in which the

prosecutrix was allegedly detained and raped for two days by three

persons is located in an under-construction haveli of Gian Singh

where labour was working throughout the day. Despite this fact, the

prosecutrix did not raise any alarm. The stand of the prosecutrix in her

statement was that she neither drank water, nor had she eaten

anything for three days. She remained in the illegal custody of the

accused and was raped repeatedly for three days, against her wishes.

When considered in the light of her medical examination, the said

statement is falsified as the doctor noted that she was well-built and

well-nourished.

14. There is nothing in the evidence laid by the prosecution

that there was any threat to the prosecutrix on 23.07.1996 when she

remained in the room with Gian Singh, alone. The story projected by

the prosecution that she was raped by Gian Singh during the daytime

on 23.07.1996, has been disbelieved by the trial court. The case of the

prosecution is that the appellant no. 1 namely, Avtar Singh had left the

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room on 23.07.1996 in the morning, leaving the prosecutrix with Gian

Singh and had come back in the evening with the appellant no.2,

Sohan Lal. Once the involvement of Gian Singh is taken out from the

entire story, the deduction would be that the prosecutrix may have

been alone in the room throughout the day on 23.07.1996, admittedly

at a place, where construction activity was going on all day long. No

alarm was raised by the prosecutrix. Even in her statement, Bakshish

Kaur (PW6), mother of the prosecutrix had stated that “the kothi

(haveli) was under construction and labourers were working on the roof

as well as inside.” The statement of the prosecutrix that she was raped

throughout the day in open in a field where ‘Bajra’ crop was standing,

is not found to be plausible or persuasive. As per the evidence led by

the prosecution, the ‘Bajra’ field was adjoining the haveli of Gian

Singh, where construction activity was going on at the level of the first

floor and the area all around was visible. If any such incident had

taken place, the prosecutrix being in an open field, could have very

well raised an alarm.

15. The room where the offence was allegedly committed, is

within the compound of an under construction kothi (haveli) of Gian

Singh as it is evident from the site plan (Exhibit PD) produced by the

prosecution. The story of the prosecutrix is further demolished as her

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claim was that she could recognise the place only after she saw Gian

Singh in the morning when he had come there to offer her tea. Gian

Singh’s involvement in the crime has been disbelieved by the Trial

Court while recording his acquittal. The order was not challenged

further.

16. Further in the evidence of the prosecution, a major

discrepancy found in the statements of the prosecutrix as well as her

mother is with reference to handing over the clothes of the prosecutrix

to the police. The prosecutrix had stated that she had handed over her

salwar & kameez (shirt) to the police which had stains of semen,

whereas her mother, (Bakshish Kaur)-PW6, while testifying had stated

that she had handed over the clothes of the prosecutrix to Sadhu Singh

who in turn had given them to the police. Sadhu Singh has not been

produced in the evidence by the prosecution.

17. Admittedly, the prosecutrix had returned home in the

evening of 24.07.96, however, the FIR was got registered in the

evening of 25.07.96 and she was taken for medical examination a day

after, on 26.7.96, at 01.00 pm. From the statement of the doctor, Renu

Kumari (PW1) who examined the prosecutrix (PW4), the claim of the

prosecutrix is further belied. The prosecutrix’s stand is that she was

raped repeatedly from the night of 22.07.1996 till the evening of July

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24, 1996, by three different persons, firstly, in a room with no bedding

and secondly, in a field of ‘Bajra’ crop with no bedsheet or anything.

However, no external/internal injury was found on her body and even

on her private parts. The doctor, Renu Kumari (PW1) opined that the

prosecutrix was well built and well nourished. She further stated that

the prosecutrix was used to sexual intercourse. This is not to say that

the version of a victim of a sexual offence ought to be disbelieved only

because she has had an active sexual life. In the instant case, the

surrounding circumstances pointed out above, discredit the version

of the prosecutrix.

18. Though in the chemical examiner’s report, it had come

that the clothes of the prosecutrix handed over to the police were

having stains of semen, however, no scientific evidence was produced

to link the same with the accused. This issue gains importance in the

light of the fact that a part of the story sought to be projected by the

prosecutrix, had already been disbelieved by the Trial Court with the

acquittal of the Gian Singh. It has not been pointed out from the record,

that the clothes which were handed over to the police station,

belonged to the prosecutrix. More so when there are two different

versions with reference to the manner of handing over the clothes of

the prosecutrix to the police.

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19. There are several material discrepancies even in the

statement of the mother of the prosecutrix, Bakshish Kaur (PW6) who

stated that after her daughter did not return back on 22.07.1996, she

had informed Rattan Chand (DW2), sarpanch of the village, who also

made efforts to search her daughter. However, when Rattan Chand

appeared in court as DW-2, he completely denied this fact.

20. Further, on going through the evidence led by the

prosecution, the findings returned by the trial court are found to be

completely perverse. It is so stated by the prosecutrix in the FIR that

about 5 months back, her father had a quarrel with Avtar Singh (also

called Tari) and others. To take the revenge, Avtar Singh, Gian Singh

and Sohan Lal had committed rape on her. Gian Singh was acquitted

by the trial court noticing the stand of the prosecutrix that there was

party faction in the village and both the parties belonged to different

sections. The same reasoning will apply to the appellants as well for

the reason that in the FIR, the stand taken by the prosecutrix is same

in respect of all the accused, as far as the allegation of party faction is

concerned.

21. In view of the aforesaid discussion, we are of the opinion

that there was no evidence brought on record to connect the present

appellants with the offence. The appeal is accordingly allowed and the

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judgments of both the courts below are set aside. The appellants are

acquitted of the charges framed against them. The bail bonds

submitted by them are discharged.

______________, J.

(Hima Kohli)

______________, J.

(Rajesh Bindal) New Delhi August 02, 2023.

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