Harbans Singh vs State of Punjab

A.L. Bahri, J.

Harbans Singh aged about 20 years and Ranjit Singh aged about 17 years were convicted by Additional Sessions Judge, Sangrur, vide his order dated 4.9.1985 under Section 376 read with Section 34 of the Indian Penal Code. Harbans Singh was sentenced to rigorous imprisonment for five years and a fine of Rs. 1000/ and in default of payment of fine to further undergo rigorous imprisonment for one year under Section 376 of the Indian Penal Code. Ranjit Singh was awarded rigorous imprisonment for two years and a fine of Rs. 200/ and in default of payment of fine to further undergo rigorous imprisonment for six months under Section 376 read with Section 34 of the Indian Penal Code.

The prosecution story as given by prosecutrix Baldev Kaur PW4 is briefly as under :

Baldev Kaur on the day of occurrence at about 5.00 p.m. along with Bholi had gone to the field in village Punnewal for bringing fodder. After collecting fodder, they were returning. Both of them were carrying bundles of dry grass and leaves. When they reached near the field of Kaur Singh, Harbans Singh accused appeared there from the Chari field and asked Baldev Kaur to throw away the bundle of grass. When she declined, he himself threw the same. He caught hold of Baldev Kaur forcibly from the arm and dragged her to the Chari field of Kaur Singh. She raised alarm. However, Harbans Singh removed her salwar and underwear and ultimately after removing his own Chadder, he committed rape on her. He called his elder brother''s brotherinlaw Ranjit Singh who put his hands on the mouth of Baldev Kaur while she was being raped. Bholi also raised alarm which attracted Karora Singh, Pritam Singh, Sukhdev Singh and Kartar Singh. On seeing them both the accused ran away.

With the assistance of Gurdev Singh Sarpanch of the village, the same day, they left for the Police Station. However, at Kakkarwal Chowk, the police party met them. Her statement Exhibit PG was recorded on the basis of which case was registered. Thereafter Baldev Kaur was got medically examined. The police took into possession clothes of the prosecutrix. The spot was inspected. The same was got photographed. After recording statements of the witnesses, challan was presented in Court.

The prosecution produced as many as 19 witnesses which included the medical evidence as well as oral evidence. The accused denied the prosecution allegations and pleaded false implication at the instance of Gurdev Singh Sarpanch on account of elections. Harbans Singh further stated that earlier Baldev Kaur had gone to their fields but his father had objected to the cutting of grass. She felt annoyed on that account. Ranjit Singh accused pleaded innocence.

PW1 Dr. P.C. Aggarwal examined the accused Harbans Singh. PW2 Dr. Deep Rashmi examined the prosecutrix. Except an abrasion 0.5x 0.5 cm. on the radial border of right hand. No other injury on any part of the body was found on the person of Baldev Kaur. Hymen was found torn, bleeding was presenet on the torn right edge of hymen. Two fingers could not be introduced and the vaginal examination was painful. Baldev Kaur was described to be moderately built and nourished woman. During crossexamination the doctor stated that if the prosecutrix had resisted there were bound to be abrasions or contusions on her back, if the act was committed on a hard surface. PW3 S.S. Hundal, Judicial Magistrate deposed about Ranjit Singh accused declaring to take part in the identification parade. PW4 Baldev Kaur deposed about the prosecution story as briefly discussed above. It is her evidence that needs close scrutiny. During crossexamination she stated that when she was taken by Harbans Singh in the field, she resisted. She was lifted by Harbans Singh and taken into the fields. She fell down twice. First time when she fell down and the accused removed her salwar, and she tried to run away taking away her clothes. She was again chased by the accused and pushed when she again fell down. She continued struggling even when she was being raped. If there is the state of evidence as deposed by her and taking into consideration the photographs Exhibits P15 and P16 which shows the standing crop and the rough surface, it was highly improbable that the incident took place as stated by the prosecutrix. Doctor did not find any injury on the back or other parts of the body touching the ground.

The hymen was no doubt found to be torn freshly but that will not prove itself that whatever she has stated in court is correct. In isolation facts cannot be considered to corroborate the statement of the prosecutrix. The entire prosecution story and circumstances of the case are to be considered.

Bholi alias Gurmail Kaur PW5 was produced to corroborate the statement of Baldev Kaur. No doubt, she tried to lend corroboration to the statement of Baldev Kaur. According to Baldev Kaur PW, as already stated above, everything happened in the presence of Bholi. When other witnesses came to the spot the accused persons ran away. However, Bholi PW has given slightly different version. She was following Baldev Kaur at some distance when Baldev Kaur was taken into the fields of Harbans Singh accused. After noticing that some foul play was going to be there, she went raising alarm and met other witnesses at some distance and she narrated them the occurrence and brought them back. This part of her story apart from being contrary to the statement of Baldev Kaur does not find corroboration from the statements of other witnesses. PW14 Sukhdev Singh stated that he along with Kartar Singh Lambardar, Karora Singh and Pritam Singh and some other persons were putting earth in Dera Badana. At about 7.00 p.m. Bholi daughter of Piara Singh came there and told that she had come running and that there was another girl in the Chari field where there was some noise. Thereafter they rushed to the spot and saw a girl running out of a Chari field. They did not notice any of the accused persons. This witness was crossexamined by the Public Prosecutor but he did not too the line. Similar is the position with the evidence of PW16 Ujagar Singh, PW17 Gurdev Singh. These witnesses did not support the prosecution case. If Sukhdev Singh''s evidence is accepted, it would show that Bholi was not accompanying Baldev Kaur, when the accused is alleged to have taken Baldev Kaur in the fields.

Assuming for the sake of argument that Baldev Kaur was subjected to sexual intercourse by Harbans Singh accused and that Baldev Kaur''s statement that sexual intercourse was done without her consent, prima facie her evidence could be accepted drawing a presumption that sexual intercourse was done against her will and without her consent but such a presumption is rebuttable and the accused can do so even from the evidence of prosecution witnesses and in the present case the evidence of Baldev Kaur herself rebuts this presumption that sexual intercourse with her was done against her will or without her consent. She was subjected to lengthy crossexamination and she had to admit that this process of sexual intercourse continued for about 15/16 minutes and the manner in which it was done further suggests that she was a consenting party, that is, her legs were lifted and put on the shoulder and neck of the accused when he performed sexual intercourse and furthermore she had a discharge. If she was not a consenting party, she being well nourished having good physique could have successfully resisted. Even if she was lifted physically and taken into the fields, she would have caused some kind of injuries on the person of Harbans Singh and she herself would have suffered several injuries as already noticed above. No other part was attributed to Ranjit Singh accused except that at the final stage he just put his hand on the mouth of the prosecutrix. If Ranjit Singh was also joining Harbans Singh in the act, there was no reason why he would not have molested the prosecutrix if he was present there. All this shows that if her statement is correct, she was all alone and a consenting party.

PW2 Dr. Deep Rashmi in the medicolegal described the age of Baldev Kaur is 18 years. Baldev Kaur gave her own age as 16/17 years. She had left the studies 8th class. PW10 Mulakh Raj Head Teacher of Government Primary School Punnewal from the school registers deposited about the admission of Baldev Kaur daughter of Sawan Singh of village Punnewal. Her date of birth was entered as 1.3.1966. She studied in the school from 1972 to 1977. Exhibit PR is the certificate. PW11 Gurdev Singh Headmaster Government Middle School Punnewal from the school registers also gave the date of birth of Baldev Kaur as 1.3.1966 and he produced the certificate Exhibit PL. The occurrence had taken place in September, 1983. In is common that parents give less age of their children while admitting them in the school. Even if the date of birth as given is taken as correct, she was more than 16 years on the date of occurrence. That being the case, the prosecution has failed beyond reasonable doubt to bring home the guilt against the present appellants.

In such like cases one always look for the motive for false implication. Several suggestions were put to Baldev Kaur regarding her shady character as well as shady character of her mother. It is considered necessary to refer to those facts as in view of the discussion above, the appellants are entitled to acquittal.

For the reasons recorded above, this appeal is accepted. The conviction and sentence of the appellants are set aside. Fine, if already paid, is ordered to be refunded.