Balwinder and ors. vs State of Punjab

S.S. Dewan, J.—The appellants Balwinder Singh, Amarjit Singh and Mohan Singh, all residents of village Fattupar stood charged before the Sessions Judge, Gurdaspur, under Sections 376 and 342, Indian Penal Code. The learned Sessions Judge held the charges as proved. The appellant were convicted for the aforesaid offences and each of them was sentenced to 7 years rigorous imprisonment and a fine of Rs. 400/ under the first count and six months rigorous imprisonment under the second count with the direction that the substantive sentences so awarded to them shall run currently.

The prosecution case is in a very narrow compass. On 881984, in the afternoon Jagir Kaur, wife of Chanchal Singh of village Ransike Kalan went to village. Dehar Gwar to bring medicine from a doctor. After getting medicine, she started back for her house from village Dehar Gwar at about 5 P.M. and when she reached near village Fattupur, the three accused started following her and they asked her to go inside the Chari filed. She told the accused that the was in a surry, to go to her house because her husband was sick but the accused forcibly took her inside the Chari field broke open the string of her salwar and each of them committed rape upon her. Later on the accused took Jagir Kaur to a tubewell and there also each of them committed sexual intercourse with her forcibly. Thereafter, she was looked inside the tubewell room. On the following morning at about 4 A.M. do was taken to a sugarcane field, where they again committed sexual intercourse with her against her will. Thereafter, Balwinder Singh remained sitting with Jagir Kaur and the two other accused went away to brung meals. When the meals were brought by the accused, then they again committed intercourse with her. It is stated that when Jagir Kaur raised alarm, she was slapped by the accused. On hearing the alarm raised by Jagir Kaur, Sukhdev Singh and Mohinder Singh were attracted to the spot and then the accused fled away. Sukhdev Singh and Mohinder Singh brought Jagir Kaur to her house. A compromise was tried to be arrived at between Jagir Kaur and the accused but when the efforts for compromise failed, Jagir Kaur accompanied by Sukhdev Singh and others set out for the Police Station to lodge the report. On the way, they met Hans Raj, Assistant Sub Inspector and Jagir Kaur made a statement before him. On the basis of of that statement, formal F.I.R. Ex. PG/1 was recorded at Police Station Dera Baba Nanak by Sub Inspector Gurbachan Singh. Hans Raj Assistant Sub Inspector went to the places of occurrence and prepared the usual plans Exs. PM, PN and PO. Jagir Kaur was medically examined by Dr. Indu Mahajan and she found the following injuries on her person

Diffused. smelling of 6 x 6 cm. on the left cheek. She was able to open mouth but was painful.

Lacerated wound 1 x 2 cm. muscle deep on left side of the lower lip. It was covered with mucopurulent discharge. There was also 5 x 1 cm. mucose deep abrasion on right side of lower lip.

1 x 1 cm. abrasion mark on the front of right leg just below the knee joint. It was covered with clotted blood Scab.

Pin head size two abrasion marks on lateral side of right thigh in the middle.

The swabs and the salwar of the prosecutrix were sent to the Chemical Examiner. No spermatozoa was found on the swabs. Stains of human blood were, however, found on the salwar Ex. P. 1. The accused were arrested on 1281984 and they were medically examined by Dr. Vijay Kumar Mahajan who found them capable of performing sexual intercourse. After necessary investigation, the accused were challaned and committed.

In support of its case the prosecution examined six witnesses when examined under Section 313, Criminal Procedure Code the accused denied the prosecution allegations and pleaded false implication in the cast. Puran Singh was examined by them in defence. He deposed that the reputation of Jagir Kaur prosecutrix was bad.

Mr. J. S. Mann, learned counsel for the appellants has vehemently contended that according to the prosecution case, Jagir Kaur prosecutrix was subjected to rape by the three appellants but there is no cogent evidence to, come to the conclusion to prove this charge. There appears to be substance in this connection. Jagir Kaur PW was examined by Dr. Indu Mahajan (PW 1) who found no, mark of injury on the external genitalia nor any bruise or contusion was seen on that area. The next circumstance which appears from the record is that there does not appear to have been on her part any attempt or resistance. Normally when a woman is subjected to intercourse against her will, some sort of resistance by her with her hands or otherwise would be expected. Jagir Kaur has stated that when she was returning from village Debar Gwar at about 5 or 6 P.M. and had reached in the area of village Fattupur, the appellants met her in the way and they asked her to go inside the Chari field and that when she told them that she was in a hurry to go to her house because her husband was sick, the appellants forcibly took her inside the Chari field and committed rape on her and thereafter they took her to a tubewell and there they again committed rape on her. She further stated that on the following morning at about 4 A.M. the appellants took her to a sugarcane held and committed rape on her and thereafter one of the appellants remained there and the other two went away to bring meals for her. She has deposed that when the appellants again committed rape on her, she raised alarm, on hearing which Sukhdev Singh and Mohinder Singh were attracted to the spot and then the appellants, fled away. Assuming for a moment that this last act was committed in the sugarcane field where she raised alarm but the record does not show if the prosecutrix raised any alarm when she was subjected to rape by the appellants either in the Chari field or in the tubewell room. If she was to unwilling party and had been forced to accompany the appellants to the Chari field or the tubewell as alleged by her, she could have raised alarm. But do did not do anything of the sort which clearly shows that she herself accompanied the appellants to the said places. She did not raise alarm which implies that she was a consenting party to the sexual intercourse with her. She remained with the appellants for more than 12 hours and it is difficult to believe that she could succumb to the threat continuously for that much period. It is also clear from the record that the places where she was alleged to have been raped were not such as to give a sense of security to the appellants in the normal course of things. Dr. Indu Mahajan found not a single mark of struggle or violence on her private parts. It is inconceivable that the act of the prosecutrix who is a married would submit to forcible intercourse without any struggle. The complete absence of any injury or scratch on the persons of the appellants and the victim suggests very clearly that the intercourse was not forcible.

Be that as it may the evidence of the prosecutrix is also not free from infirmities. Jagir Kaur stated in the crossexamination that she did not know the names of the accused nor their parentage. Strangely enough the F.I.R. Ex. PG allegedly lodged by her contains the names of the accused and parentage. She has categorically stated at the trial that she did not know the accused earlier to this incident. She claimed to have stated before the police that the rape was committed on her by the appellants twice in the sugarcane field. She was confronted with her statement Ex. PG where. This assertion was found conspicuous by its absence. She denied to have stated before the police that Amarjit Singh and Balwinder Singh appellants took her to their tubewells She was confronted with her statement whom it was so recorded. She also denied to have stated before the police that the door of the tubewell was not locked from outside. She was confronted with her statement Ex. PG where it was so recorded. The contention of the learned defence counsel that the abovesaid averments of the prosecutrix constitute an attempt at improvements and contradictions has substance. When an unsophisticated witness attempts improvements and contradictions on points which are material the testimony could be said to suffer from a significant infirmity. As the evidence stands, the prosecution has failed to prove that the prosecutrix was forcibly taken away by the appellants for committing rape on her. It appears that the prosecutrix had gone herself for outing with her free consent and stayed with the accused at different places. The alleged occurrence took place on 881984 at about 6 or 7 P.M. whereas the First Information Report was lodged by the prosecutrix on 1091994 at 1215 P.M. The reason given by her for not lodging the F.I.R. with promptitude is stated to be that an effort for compromise was made on behalf of the appellants, appears to be imaginary and conjectural.

In the opinion of this Court taking an overall view of the aforesaid circumstances pointed out by the learned counsel for the appellants and the evidence produced in the case it is not safe to base the conviction of the appellants merely on the basis of what was deposed against them by the prosecutrix. There being no other reliable evidence on record to connect the appellants conclusively, with the offences alleged against them, they are entitled to the benefit of doubt and deserve to be acquitted.

For the reasons stated above, this appeal is allowed. The convictions and sentences of the appellants are set aside and they are acquitted.