The State of Punjab vs Makhan Lal and Another

Jasbir Singh, J.—Respondents along with Sheera, Baru and Beeta were accused of commission of offences under Sections 366A/376 of the Indian Penal Code. Three persons, named above, other than the respondents, were found to be juvenile and their trial was separated from that of the respondents.

Criminal law was set in motion on the basis of statement, made by Manjit Kaur (PW3) on April 14, 1994, wherein she has stated that on the night of April 09, 1994, at about 9 PM, she and her cousin Rani, aged about 12 - 13 years, had gone to ease themselves near pond of village Chhajli in eucalyptus trees. It was further stated that above named five persons came there. Sheera stated that if the complainant and Rani raised any alarm, they shall be done to death. Sheera and respondent Makhan caught hold of the complainant from arms, whereas Rani was caught by Beeta and Baru from her arms. Later they were taken to the shop of Makhan and out of panic, the complainant and Rani did not raise any alarm. Rani was taken inside the verandah by Beeta and Sheera, while Makhan closed the door of the shop. The respondents and Baru turn by turn committed forcible rape upon Manjit Kaur (PW3). Beeta and Sheera committed rape upon Rani. Both - the complainant and Rani - returned to their house around mid-night and narrated the entire occurrence to Angrez Kaur, mother of the complainant. The father of the informant was not available as he had gone to meet his relatives. When he came back, entire episode was narrated to him. Matter was reported to the police on April 14, 1994. Upon statement made by Manjit Kaur (PW3), FIR Ex. PW3/C was recorded on September 14, 1994. Both - the complainant and Rani - were got medico legally examined from Civil Hospital, Sangrur. Thereafter, the accused were arrested.

On completion of investigation, final report was put in Court for trial. Respondents were charge-sheeted, to which they pleaded not guilty and claimed trial.

In support of its case, the prosecution examined PW1 Dr. Harbans Singh, Radiologist, PW2 Dr. Renu Singla, Medical Officer, PW3 Manjit Kaur, prosecutrix, PW4 Rani, PW5 Dr. Rakesh Jain, PW6 Anant Ram, PW7 Tejinder Kumar, Draftsman, PW8 Constable Ranjit Singh, PW9 ASI Surjit Singh, PW10 H.C. Jagga Ram, PW11 Jaila Singh and PW12 Dr. Arvind Kumar and closed its evidence after tendering into evidence report of the Chemical Examiner Ex. PZ.

After conclusion of prosecution evidence, incriminating circumstances were put to the respondents while recording their separate statements u/s 313 Cr.P.C. They refuted the same, pleaded innocence and claimed false implication. It was specifically stated by them that on April 9, 1994, Jaila Singh (PW11), father of the complainant along with his two sons and Hakam Singh, Megha Ram Pandit and one Nandi attacked and injured the respondents. Both were medico legally examined and remained in the hospital from April 9, 1994, to April 15, 1994. It was further asserted that the assailants with a view to save themselves, have implicated the respondents in this false case. They also led evidence in defence.

Trial Court, on appraisal of evidence as led by the parties, came to a conclusion that the prosecution has failed to prove its case beyond reasonable doubt and consequently acquitted the respondents of the charges framed against them. Hence this appeal.

State counsel, by making reference to the statements of PW2 Dr. Renu Singla, PW3, the complainant, and Rani (PW4), argued that a fool-proof case was made out against the respondents. The trial Court has misread the evidence and erred in acquitting them. He further argued that age of the complainant and Rani was below 16 years and it has come on record that five accused committed gang rape upon them forcibly and against their consent. He contended that the trial Court, by taking note of minor contradictions, existing here and there in the statements of the prosecution witnesses, has wrongly discarded case of the prosecution. He also contended that father of the complainant was away and not available. On account of his absence, the complainant and other family members preferred not to report the matter to the police. When he came back, episode was narrated to him and immediately thereafter FIR in question was recorded. By stating that the delay in recording the FIR stood explained, he prayed that the appeal be allowed, judgment under challenge be set aside and the respondents be convicted and sentenced for the offences with which they were charged.

Prayer made by the State counsel has vehemently been opposed by counsel for the respondents. He contended that the alleged occurrence had taken place on April 9, 1994. The complainant and Rani brought the entire occurrence to the notice of their parents. They preferred to keep mum and matter was not reported to the police till April 13, 1994. There existed no proof on record to show that father of the complainant was not available on the day of alleged occurrence. By making reference to the testimony of PW2 Dr. Renu Singla, Shri Narula argued that the medical evidence clearly depicts that no rape was committed upon the complainant and Rani as alleged. He further argued that the sequence of events, as alleged to have happened, were not possible. By reading statement of PW3, the complainant, counsel argued that this witness has completely shattered case of the prosecution and altogether a new story has been put forward with regard to which the prosecution has failed to lead any evidence. The respondents were attacked and injured by PW11, father of the complainant, along with other persons. Respondents remained in the hospital from April 9, 1994, to April 15, 1994. They were medically examined by PW5 Dr. Rakesh Jain. Injuries on their persons were not explained by the prosecution. By stating that the defence version is more probable, counsel prayed that the appeal be dismissed.

After hearing counsel for the parties, we are of the opinion that the appeal deserves dismissal. Alleged occurrence had taken place on April-9, 1994 at 9 PM. Admittedly entire occurrence was brought to the notice of mother of the complainant and parents of Rani on that very day, they did not mention the same to respectables of the village and no report was lodged with the police. FIR was got recorded on April 14, 1994. To overcome this delay, it has been stated that PW11 Jaila Singh, father of the complainant, was not available. We are of the view that the explanation given to overcome the delay is not plausible. In his statement PW11 has said that he had gone to Utter Pradesh to settle his General Provident Fund account. In that regard, no evidence was led. As against this, PW4 Rani has stated that PW11 had gone to village Bharur. PW3, the complainant, has said that PW11 had gone to meet his relatives. All the three witnesses, named above, are discrepant as to which place PW11 had gone and for what purposes. The explanation, to overcome delay, came shattering to the ground when we read testimony of PW3, in her cross-examination, she has specifically stated that on the day of incident, i.e., April 9, 1995, her parents had reached at the place of occurrence. After reading statements of PW3 and PW4, we are of the view that the prosecution has failed to explain delay in lodging the FIR.

Delay alone may not be fatal to the case of the prosecution, however, coupled with other evidence on record, it has completely negatived the prosecution story. Perusal of evidence further shows that medical evidence on record clearly establishes that no rape was committed upon the complainant and Rani. PW2 Dr. Renu Singla, who had medico legally examined above named two girls, has not noticed any injury on their persons. She specifically stated that there was no mark of injury on the face, neck, lips, breasts, abdomen, thigh, eternal genetalia or elsewhere on the bodies of the complainant and Rani PW. No bleeding was detected. There was no tear of hymen, which admitted only a finger. Statement made by PW2 Dr. Renu Singla clearly falsifies story of the prosecution. It was alleged by the complainant that three persons forcibly committed rape upon her and Rani. Both - the complainant and Rani - were of tender age and if they were forcibly raped, injuries were bound to be caused on their bodies. PW3 has specifically stated that in the process of committing rape upon her, teeth bites were given on her cheeks, breast and those parts of the lady were smeared with blood. Accused had also given bites on her thighs, which bled profusely. Her vagina was also torn and the same bled profusely. Her clothes were smeared with blood. Above said statement clearly contradicts the medical evidence on record. Furthermore, blood smeared clothes were not taken in possession by the police. To the same effect is the statement made by Rani PW4.

The statements made by PW3 and PW4 completely dislodge case of the prosecution. In her deposition, PW3 has stated that when she was forcibly taken from outside the village to shop of respondent No. 1, she was weeping and on the way women met them and they asked the accused as to what were they doing, few male members of the village also met them but the respondents did not care for them. The door of the shop was open. The people were passing through the street and they were listening to their cries when rape was committed upon her and Rani. The neighbours had even threw brick bats upon the accused. She has further stated that after breaking open the door, she and Rani were rescued from the respondents.

They were taken to the Hospital, situated in village Chhangli, where they were medically examined. Their parents and police had arrived at the spot. The respondents were handcuffed and beaten up by the police with sticks. She further deposed that her brother Pargat Singh and father of Rani also gave beatings to the respondents. The face of the respondents was blackened and they were paraded in the village. PW3 and PW4 have put up altogether a new story, for which no foundation was laid by the prosecution. It is nobody''s case that the occurrence was witnessed by many people, the accused were arrested and beaten up as stated by PW3 and PW4. Rather it was case of the prosecution that the complainant, Rani and their parents remained mum till April 13, 1994, when on arrival of PW11, matter was reported to the police.

Further lacuna in the prosecution case has been indicated by Dr. Rakesh Jain (PW5). He has specifically stated that on April 10, 1994, at about 6.40 AM, he had examined Lal Singh, respondent No. 2, and found the following injury on his person:

A lacerated wound 6 Cms x 0.4 cm x 0.8 cm on left parietal region situated 10 Cms above upper border of left pinna and 4 Cms to left of mid line.

He has further deposed that he found fresh bleeding. The injury was stated to have been caused within 24 hours. The witness further stated that on that very date, at 6.40 AM, he examined respondent No. 1 and found the following injuries on his person:

A lacerated wound 3.2 Cms x 0.4 Cm x 0.6 Cm on left parietal region situated 11 Cms above upper border of left pinna and 2.5 Cms to left of mid line. Fresh bleeding was present. Advised x-ray.

There was bleeding from the nail bed of right little finger. Advised x-ray.

There was bleeding from a lacerated wound measuring 1 Cm x 0.6 Cm x bone deep on front of right leg situated 8 Cms below knee. Advised x-ray.

A lacerated wound 0.5 cm x 0.5 cm x bone deep on front of right leg situated 0.8 cm below injury No. 3. Advised x-ray.

An abrasion presenting as a scratch 3.5 cms x 0.3 Cm on medial aspect of left ankle accompanied by diffused swelling.

A reddish contusion 19 Cms x 1.8 Cms on front of chest situated 10 Cms above right nipple and extending to a point just below the left nipple.

A reddish contusion 8 Cms x 2 Cms on posterior lateral aspect of left arm situated 8 Cms above elbow.

A reddish contusion 9 Cms x 5 Cms on superior aspect of left shoulder. Advised x-ray.

An area of 25 Cms x 10.5 Cms on both infra scapular region containing multiple reddish colour contusion. Advised X- ray.

An area of approximately 20 Cms x 9 Cms on both inter scapular region containing multiple reddish colour contusions. Advised X-ray.

A reddish colour contusion measuring 10 Cms x 4.5 Cms situated 10.5 Cms below shoulder on lateral aspect of right arm.

The doctor further stated that the police had come to the hospital. Both the respondents remained admitted in the Hospital for about seven days. The prosecution has failed to show anything as to how and who had caused those injuries to the respondents. By reading statements of PW3 and PW4 and other prosecution witnesses, it is apparent that an attempt has been made to conceal true genesis of the occurrence.

We have also noticed further lacuna in the prosecution case, as per contents of the FIR, the complainant and Rani had gone in the cluster of eucalyptus trees to ease themselves. All the five accused came there. It was a secluded place, away from the village. The accused did not commit rape upon them at that place. Rather they brought both of them to shop of Makhan Lal, which is situated in thickly populated area. It was only 9 PM. As per evidence on record, residents of the village were still roaming in the street. If that was so, story given by the prosecution does not appear to be plausible. The trial Court has noticed above said discrepancies / weaknesses in the case of the prosecution and has rightly exonerated the respondents of the charges levelled against them. Judgment passed by the trial Court is perfectly justified and is in consonance with the facts of the case. State counsel has failed to indicate any error in law or on facts, which may necessitate any interference by us in judgment of acquittal.

It is a case where in view of evidence on record, it can safely be said that the prosecution has failed to prove guilt of the accused. Even in cases where two views are possible, after acquittal, in appeal benefit will go to the accused.

Their Lordships of the Supreme Court in Allarakha K. Mansuri v. State of Gujarat 2002 (1) RCR 748, held that where, in a case, two views are possible, the one which favours the accused has to be adopted by the Court.

A Division Bench of this Court in State of Punjab v. Hansa Singh 2001(1) RCR 775, while dealing with an appeal against acquittal, has opined as under:

We are of the opinion that the matter would have to be examined in the light of the observations of the Hon''ble Supreme Court in Ashok Kumar Vs. State of Rajasthan, , which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference.

For the reasons, mentioned above, this appeal fails and the same is accordingly dismissed.