SUKHWINDER SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS is a criminal appeal filed by Sukhwinder Singh son of Nirmal Singh, resident of Hawara Kalan and it has been directed against the judgment and order dated 3.5.1996 passed by the Court of Additional Sessions Judge, Fatehgarh Sahib, who convicted this appellant under Section 376 IPC and sentenced him to undergo RI for a period of 8 years and to pay a fine Rs. 5000/-; in default of payment of fine the appellant was directed to further undergo RI for two months for committing rape upon Smt. Baljit Kaur, a young girl of 19 years, wife of Swaran Singh. It may be mentioned here at the first instance that along with the present appellant, two more persons namely Srabjeet Singh and Bharpur Singh were also tried but the trial Court acquitted them for the reasons stated in the judgment and there is no State appeal against their acquittal.

(2.) THE proceedings of the criminal case started on 20.6.1995 when Smt. Baljit Kaur prosecutrix gave her statement before DSP Ranjit Singh in which she alleged that she was the resident of Village Dugari, tehsil Chamkaur Sahib by birth and about three years back she was married to Swaran Singh of village Hawara Kalan. Yesterday i.e. on 19.6.1995 at about 11.00 a.m./12.00 noon when she was going to the shop of doctor for getting injunction injection ? and when she reached near the house of Nirmal Singh, Member Panchayat, his son Sukhwinder Singh who was standing at the door of his house, told her "sister- in-law (Sali) stop" and when she stopped he dragged her from her left arm inside the Baithak and made her by giving pushes. He bolted the door which opens towards street. Bharpur Singh alias Bhura son of Baldev Singh and Sarabjit Singh alias Jeeti residents of Badasha were sitting in the said Baithak. Sukhwinder Singh at that time was fully intoxicated. He lifted her and put her on a cot forcibly and started grappling with her. She tried to give pushes several times so that Sukhwinder Singh may not use force with her but he did not desist nor he paid any attention to her requests. Thereafter Sukhwinder Singh broke upon open ? the string of her Salwar and sexually assaulted her in order to satisfy his lust. During the process of rape, he gave her teeth bite on her right cheek. He grappled with her, as a result of which she sustained injuries on the upper part of her left arm, wrist and right arm, both her legs and abdomen. He plucked her breasts and as a result of the grappling she also suffered injuries upon her head with the Pawa of the cot hit upon her head. After committing rape Sukhwinder Singh exhorted his companion Sarabjit Singh alias Jita to enter inside the room, upon which Jita also committed rape upon her. Then Bharpur Singh entered inside the room and he also committed rape. In the meanwhile, the mother of Sukhwinder Singh knocked the door of the room and she gave a call, upon which Sukhwinder Singh told to the prosecutrix to run away from the room. The prosecutrix has further alleged that on account of the sexual intercourse committed upon her and also due to the injuries she remained lying on the place where she was laid. In the meanwhile her husband came there as he was trying to locate her. She knew all the three persons earlier. Two persons namely Sarbjeet Singh and Bharpur Singh had been coming to the house of their co-accused Sukhwinder Singh. It has been further alleged by the prosecutrix in her statement that her husband then took her to her house in a semi-conscious condition. She sustained several injuries. She was afraid and nervous and due to this reason she remained present in her house. She earlier used to prevent her husband and other members of the family not to go to the police station because the assailants had given her the threat that in case she reported the matter to the police, her entire family members would be liquidated. It is further alleged by the prosecution (Prosecutrix ?) Baljit Kaur that she belongs to a poor family and for that reason she did not take courage to come out from the house in order to report the matter. However, on 20.6.1995 Sewa Singh, who also came at the spot, on the previous day, gave her the assurance and for that reason she along with Sewa Singh and other respectables of the village went to the office of DSP Shri Ranjit Singh in order to lodge the report. With above allegations Smt. Baljit Kaur gave her statement Ex.PA before the D.S.P. The statement was read over and explained to Smt. Baljit Kaur, who signed the same in token of its correctness. Shri Ranjit Singh, DSP made endorsement underneath the said statement and it was sent to Police Station Khamano for the registration of the case, on the basis of which formal F.I.R. Ex.PW4/A was recorded vide D.D.R. No. 15 at 11.15 p.m. on 20.6.1995. It may be mentioned here that the special report of this case reached the Illaqa Magistrate on the same day at 10.30 p.m. SI Swaran Singh PW4 took up the investigation of this case. At that time he was posted as SHO, Police Station Khamano. He met the prosecutrix along with her husband Swaran Singh and then he visited the place of occurrence. He inspected the spot and took into possession the broken pieces of bangles vide recovery memo Ex.PW4/B. One bangle was also removed from the hand of the prosecutrix and it was also taken into possession. He sent Baljit Kaur for medico-legal examination through ASI Amrik Singh, who handed over the M.L.R. to the Investigating Officer on the next day. The Investigating Officer also prepared the rough site plan Ex.PW4/C. He searched for the accused on 21.6.1995. On the same day he also took into possession two parcels duly sealed with the seal of the doctor along with one envelope vide recovery memo which was attested by ASI Amrik Singh and Constable Sukhwinder Singh. The prosecutrix was also sent to the Court of Magistrate so that she may be able to make her statement under Section 164 Cr.P.C. On 27.6.1995 all the three persons named in the F.I.R. were arrested. The record of the trial Court also indicates that applications were moved by the Investigating Officer before the doctor on 27.6.1995 in order to ascertain the opinion of the doctor whether Sukhwinder Singh, Sarbjeet Singh and Bharpur Singh were fit to perform sexual intercourse or not. The doctor gave the opinion that they were fit to perform sexual intercourse. But these three applications and the opinion of the doctor have not been got proved by the Public Prosecutor, who conducted the case of the prosecution in the trial Court. What would be the effect of this omission would be also discussed in the subsequent portion of this judgment. 3. Baljit Kaur prosecuurix was medico-legally examined by Dr. Prabhat Sobha of Civil Hospital, Fatehgarh Sahib on 21.6.1995 and this doctor has given the opinion with regard to the injuries and about the finding of rape. She issued Ex.PW3/A, the correct carbon copy of M.L.R of the prosecutrix. I will incorporate and deal with the medical aspect of this case in the subsequent portion of this judgment along with the submissions raised by the learned counsel for the appellant. At this stage I may say that the swabs which were prepared by the doctor were sent to the office of Chemical Examiner/Serologist, who vide report Ex.PW3/B found semen on the Salwar of the prosecutrix. However, the Chemical Examiner could not found any blot on other exhibits such as Kameez, Dupatta and swabs prepared by the doctor. 4. With above broad S.P. The statement was read over and explained to Smt. Baljit Kaur, who signed the same in token of its correctness. Shri RaShri D.K. Sarpal under Sections 376, 342 and 506 read with Section 34 of the Indian Penal Code. The learned Magistrate supplied the copies of the documents to the accused as required under the law and vide commitment order dated 10.8.1995 committed the accused to face the trial in the Court of Session. 5. Vide orders dated 25.9.1995, charge under Section 376 IPC was framed against the accused. It was read over and explained to them. They pleaded not guilty and claimed a trial. 6. In order to prove the charge, the prosecution examined Smt. Baljit Kaur prosecutrix as PW1, Swaran Singh, the husband of the prosecutrix, as PW2, Dr. Prabhat Sobha as PW3, SI Swaran Singh as PW4 and after tendering into evidence report of the Chemical Examiner closed the case. 7. On closure of prosecution evidence statements of the accused were recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to them. The accused denied those circumstances. The plea of Sukhwinder Singh appellant was as follows :-

(3.) TWO abrasions about 1- cm x cm, 1 cm x cm on the lateral aspect of right forearm.