Harpal Singh vs State of Haryana

K.P.S. Sandhu, J.

Harpal Singh appellant aged 28 years has challenged his conviction and sentence recorded by the Additional Sessions Judge, Ambala. The learned Additional Sessions Judge has vide his order dated 24th October, 1983 sentenced the appellant to five years rigorous imprisonment and a fine of Rs. 1000, in default further six months rigorous imprisonment, under section 376 of the Indian Penal Code and to six months rigorous imprisonment under section 342 of the Indian Penal Code. Both the substantive sentences of imprisonment were ordered to run concurrently. Two coaccused of the appellant were given the benefit of doubt and acquitted of the charges against them.

Udey Bir Singh PW husband of Asha Devi prosecutrix was an employee of Kumar Steel Factory, Jagadhri. Along with the prosecutrix he was living in a room rented out by him from one Piarey Lal in Dwarkapuri Colony, Jagadhri. The appellant was also occupying another room in the same house as a tenant. Both the coaccused of the appellant were also living as tenants in the same house in another room. On 7th June. 1982, Udey Bir Singh PW came back to his house at 6 p m and informed the prosecutrix that he had to go back and he would be coming late at night as he had some additional work in the factory. He further told the prosecutrix that she should take her meal and go to bed without waiting for him. At about 9 or 10 p.m. on that night the appellant came to the hand pump fixed in the compound of the house and started taking water from the same. He enquired from the prosecutrix as to whether she "as asleep. The appellant is alleged to have pulled the prosecutrix from her hands after showing a knife. The prosecutrix lifted an iron rod lying nearby aid gave a blow with it to Harpal Singh appellant. However, Harpal Singh appellant dragged her to his room from the back side, made her lie on, the ground on a quilt. closed the door and committed rape upon her. The prosecutrix continued resisting a lot and gave kicks, and also slaps and fist blows to the appellant. She also so(tatchc....sick word), the face of the appellant with her nails. On an alarm raised by the prosecutrix her husband Udey Bir Singh, and Sat Pit came there. They pushed open the door And rescued the prosecutrix. The coaccused of the appellant came inside and caused to injuries to Sat Pal'' Singh, he was also given injuries by Harpal Singh appellant. Udey Bir Singh was also caused some injuries by the coaccused of the appellant. Udey Bir Singh and Sat Pal Singh PWs then gave some injuries to Harpal Singh appellant. The prosecutrix was taken by Sat Pal Singh and Udey Bir Singh to the factory of Seth Nand Lal where Udey Bir Singh use to work and narrated the whole occurrence to him. Seth Nand Lal took Sat Pal Singh and Udey Bir Singh to the hospital where they were medically examined by Dr. R. K. Jain, PW 4 on 8th June, 1982. At 2.25 a.rn. and 2.10 a.m. respectively. Udey Bir Singh had the following injuries on his person :

Lacerated wound 23/4" x 1/3" x bone deep on the head placed slightly obliquely to the sagittal plane in the mid parietal region.

He complained of pain in the right shoulder. Overlying skin was normal. It was painful and tender.

Both the injuries were on Xray examination found to be simple in nature. Sat Pal Singh had the following injuries on his person :

Red contusion 2" x 1" on the frontolateral lateral aspect of left forearm in the middle. The middle third of the forearm was diffusely swollen. It was painful and tender.

Abrasion 1" x 1/3" x on the medial aspect of right ankle.

Injury No. 2 was found simple while injury No. 1 was as a result of radiological examination declared grievous.

The appellant was also medically examined by the same doctor on the, same date, i. e., 8th June, 1982, and he found the following injuries on his person :

Incised wound 3/4" x 1/3" x bone deep on the palmer and medial aspect of fight index finger in its distal twothirds. The wound curved in the anteromedical aspect of the finger with its convexity towards the distal end. Soft blood clot was present and bled on touch.

Inched wound 1" x 1/3" muscle deep on the palmer aspect of right hand placed transversely at the base of index and middle fingers. Soft blood clot was present.

Diffused swelling of the lower onethird of the right forearm. On examination, there was no mark of external injury.

Diffused swelling 3" x 21/2" on the back of left forearm. There was red contusion 11/2" x 1/2" over it. It was painful and tender.

Incised wound 3/4" x 1/6" x skin deep on the right shoulder. It was slightly curved with its convexity facing the neck. Soft blood clot was present and bled on touch.

Lacerated wound 3/4" x 1/4" deep on the front of right side of the chest, 51/2" above the nipple, Soft blood clot was present.

Two abrasions 2" x 1/6" and 2'' x 1/8" on the front of the chest in its middle.

Lacerated wound 1/2" x 1/8" x skin deep on the side of left side of the chest in its lower part. Soft blood clot was present.

Abrasion 11/2" x 1/10" on the left side of chest, 3/4" above and parallel to injury No 8.

Two parallel red contusions 11/2" x 1/2" each about 1/2" apart on the left side of the abdomen, 3" below injury No. 8.

Two parallel red contusion 21/2" x 1/2" each 3/4" apart on the left side of the chest, 2" above injury No. 9.

Red contusion 7" x 1/2" on the lateral onethird of doreum of left hand Overlying skin was normal.

Diffused swelling of the lateral one third of dorsum of left band. Overlying skin was normal.

Lacerated wound 11/2" x 1/3" x muscle deep on the medial aspect of left foot. Soft blood clot ''was present and bled on touch.

Injury No. 4 was declared grievous on radiological examination. The, rest of the injuries were declared simple in nature.

Nand Lal advised the prosecutrix to stay in his house for the night and that a report would be lodged on the next morning but since Nand Lal became busy on the next morning the prosecutrix after waiting for bin] up to 3 1). m. herself went to Police Station, Jagadhri, and lodged report Exhibit PT there at 3 20 p. m on 8th June, 1992. The prosecutrix was medically examined by lady Dr. C. K. Shukla, PW 2 on 8th June, 1982, at about 6 p.m. The following is the report of her medical examination :

"She was averagely built and nourished, wearing printed saree, blouse and petticoat, orange in colour having few blood spots on it in front. Height 4'' 10", teeth upper jaw and lower jaw 16/6 permanent.

Secondary sex characteristics

Breasts were well developed. Axillary and pubic hair were black and short due to shaving. No mark of injury on any part of the body was seen.

Examination of Genitals

No mark of injury was seen. Pubic hairs short and black. Hymen was represented by small tags of granular tissue. Vagina admitted two fingers easily. P/VCervix was forward. Uterus was retroverted and normal in size There was slight blood on the fingers while doing per vagina. She said that day was her fourth day of menstrual cycle. P/SNo vaginal or cervical injury was found."

The lady doctor deposed that after going through the report. Exhibit PD, of the Director. Forensic Science Laboratory, Madhuban, she was of the view that the prosecutrix was subjected to sexual intercourse prior to her medicolegal examination. The statement of the appellant who was admitted in the hospital was also recorded by police. The appellant was arrested on 21st October, 1982. After due investigation the appellant and his coaccused were sent up for trial;

When examined under section 313 of the Code of Criminal Procedure, the appellant denied the prosecution allegations and came out with the following version :

"On 6.6.1982 in morning hours Asha Devi was washing the clothes at the handpump near her room in that house. I also wanted to wash my clothes as thereafter I had to go to attend my duties. But she did not allow me to wash my clothes at that time, on which there was some altercation between me and her. In the evening she told about it to her husband. By chance I did not return to my room on that evening On the next day in the evening when I returned from my duty to my house it was about 9110 p.m. I was attacked by Udey Bir and Sat Pal PWs along with some other companions of theirs who were standing by the wall of my room at that time on the above grouse and gave me merciless beating and I fell down on receipt of innumerable injuries from the hands of Sat Pal Singh and Udey Bir Singh PWs In the meanwhile the police came there, Udey Bir Singh and Sat Pal Singh ran away from there. The police removed me to the police station. In the morning the police arrested Udey Bir and Sat Pal P. Ws. I was got admitted. in the Civil Hospital, Jagadhri, by the police after 11/2 hours. I remained in the Civil Hospital, Jagadhri, for a period of 25/26 days. I have been falsely implicated in this case by the complainant party".

In defence he examined Lal Singh lambardar of Jagadhri as DWI. He stated that his house was only 15 yards from the house of the prosecutrix and he further supported the version as given by the defence. DW2 Dr. Mrs. C.M. Shukla brought the bedhead ticket of the appellant and stated that he was admitted in the hospital at Jagadhri on 8th June, 1982, and was discharged from there on 5th July, 1982, and that during this period he remained as an indoor patient.

Apart from Dr. Mrs. C K. Shukla PW 2 and Dr. R. K. Jain PW 4, the prosecution examined Dr. K.C. Marwaha PW 1 who after examining the skiagrams found the injury on the skull of Udey Bir Singh to be simple one. Dr. S. K. Gupta PW 3 examined Harpal Singh on 17th January, 1983, and found him fit to perform sexual intercourse.. PW 5 Gurbachan Singh draftsman prepared siteplan Exhibit P S. PW 6 Shamsher Singh on receipt of the M. L report of the injured. prosecution witnesses and the appellant went to the Civil Hospital, Jagadhri, and sought the opinion of the doctor about the fitness of the injured to make a statement. Asha Devi PW 7 is the prosecutrix. Udey Bir Singh PW8 is the husband of the prosecutrix and PW 9 Sat Pal Singh is the brother or the prosecutrix. Both these prosecution witnesses reached the spot on hearing the cries of the prosecutrix and rescued her from the appellant. PW 10 Pitamber Singh arrested the appellant and investigated the case partly. PW 11 SubInspector Chandgi Ram recorded the statement of the prosecutrix, Exhibit PT, and got her medically examined. He also recorded formal first information report No. 154 dated 8th June, 1982, under section 324, etc., ''of the Indian Penal Code on the basis of the statement of Harpal Singh appellant.

Although the case of the prosecutrix is that she was dragged to his room by the appellant and much force was used against her and that she put up a strong resistance, neither is there any injury on the body of the prosecutrix nor have any of her clothes (been torn....SICK WORD). The medical evidence does not enhance the case of the prosecution at all, because the prosecutrix being a married lady and mother of a child had an old tear of hymen and no injury could be found on her private parts. However, some blood was found in her vagina a rid on her petticoat but the doctor explained that was due to the menses period which she m as undergoing two or three days earlier to the alleged occurrence No semen was found on the swabs sent to the Chemical Examiner However, some stains of semen on her petticoat which were found by the Chemical Examiner do not show that rape was committed on her, as she was a married lady, as pointed out earlier. She categorically stated that she scratched the face of the appellant, but strangely enough, no such injury was found on the face of the appellant. She has been disbelieved by the trial Court as far as the participation of the two coaccused of the appellant is concerned and has also been confronted in her cross. examination on various points to show that she had made a lot of improvements in her statement.

Shri Nand Lal, the employer of Udey Bir Singh PW, whom Udey Bir Singh contacted immediately after the occurrence, and to whom he prosecutrix narrated the whole occurrence, was not produced as a prosecution witness by the prosecution, although it is alleged that ''he carried both Sat Pal Singh and Udey Bir Singh to the hospital. Although the occurrence took place in Jagadhri itself where the police station is located no attempt was made to lodge the report there either by the prosecution witnesses or ''by Seth Nand Lal till about 3.20 p.m. the next day. The appellant gave his version to the police at the earliest and on that version a cage under section 324, etc. of the Indian Penal Code was registered against Sat Pal Singh and Udey Bit Singh although it was cancelled later on. So, in this situation, it cannot be said that the defence was an afterthought. All the aforesaid circumstances suggest that the version given by the appellant is more probable. I am thus of the view that the case against the appellant does not stand proved beyond the shadow of reasonable doubt. Consequently I give him the benefit of doubt and acquit him of the charges. The fine, if paid, shall be refunded to the appellant.