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MANOHAR LAL versus STATE OF PUNJAB

High Court of Punjab and Haryana, Chandigarh

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Manohar Lal v. State of Punjab - CRA-113.sb-1989 [2006] RD-P&H 3214 (16 May 2006)

Crl.Appeal No.113.SB of 1989 -:1:-

IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH DATE OF DECISION : 24.8.2005.

Manohar Lal versus State of Punjab

QUORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA.

Present : Mr.K.S.Nalwa, Advocate,

for the appellant.

Mr.Satinder.S.Randhawa, AAG, Punjab.

******

RAJIVE BHALLA,J

Manohar Lal, appellant, has filed the present Appeal against the judgment and order dated 8.2.1989, passed by the Additional Sessions Judge, Gurdaspur, whereby he has been convicted under Sections 366 and 376 of the Indian Penal Code and sentenced to undergo RI for five years and to pay a fine of Rs.500/- u/s 366 IPC, in default of payment of fine, to undergo further RI for three months, to undergo RI for seven years and fine of Rs.500/- u/s 376 IPC, in default of payment of fine, to undergo further RI for three months. Both the substantive sentences were ordered to run concurrently.

Briefly stated, the facts of the present case are that on 12.12.1987, FIR No.272, (Ex.PH/1) was lodged at Police Station City Pathankot by one Crl.Appeal No.113.SB of 1989 -:2:-

Krishan Lal son of Durga Dass, pursuant to his statement Ex.PH, recorded at 4 am on 12.12.1987. The complainant, an old man aged about 70/72 years, resident of House No.312, Gali No.9, Refugee Camp, Batala, stated that on 9.12.1987, he and his daughter Raj Rani, aged about 14-15 years, after paying obeisance at Mata Jawala Ji Shrine in Kangra (Himachal Pradesh), were on their way to Batala. They arrived at the Railway Station, Pathankot at 7.30 pm on 11.12.1987. After some time, he left his daughter at the railway platform and went to arrange for meals.

On his return, he was informed by his daughter that three young boys inquired of her as to why she was sitting alone and told her to accompany them. Fearful of the boys' behaviour, they left the railway station at 8.45 pm, hired a rickshaw for the bus stand, Pathankot to proceed to the house of a friend, namely, Karnail Singh so as to spend the night with him. Three boys followed them on a three wheeler tempo. When they reached at the Central Gate of the Bus Stand, these three boys alongwith two others kidnapped his daughter Raj Rani and took her away in the tempo despite protest and raising of alarm. On the basis of the aforementioned statement, formal FIR Ex.PH/1 was registered by Inspector Pritam Singh SHO.

Rough site plan Ex.PM was prepared and Inspector Pritam took up the investigation. On 14.12.1987, one Ram Lal (PW8), father and mother of the prosecutrix (now referred to as Krishna d/o Ram Lal) accompanied the police and while proceeding towards Mamoon Chowk saw Krishna being taken in an auto rickshaw. She noticed her parents and the police and raised an alarm. The auto Crl.Appeal No.113.SB of 1989 -:3:-

rickshaw was stopped by the Inspector. Naresh Kumar-accused, who was driving the auto rickshaw, ran away, while Manohar Lal-accused-appellant was apprehended at the spot and Krishna rescued. She led the police party to a place where she alleged that she had been raped by the accused. At her behest, Narinder Kumar and Naresh Kumar were arrested on 1.1.1988. Accused-Darshan Kumar was arrested on 4.1.1988 and brought to trial. The accused were charged under Sections 363/366/376 IPC.

The prosecution examined Dr. Indu Mahajan (PW1), Dr. Arvind Gautam (PW2), Dr. Jaswant Singh (PW4), prosecutrix-Krishna (PW4), and other formal witnesses. Complainant-Krishan Lal, at whose behest the FIR was lodged, was not examined. In their statements, under Section 313 of the Cr.P.C, the accused denied the allegations, they stated that they had been falsely implicated on account of an altercation with three Constables of Police Station City Pathankot who wanted them to vacate their seats in a bus. As they did not oblige, a quarrel ensued. They were taken to the police station City Pathankot and falsely implicated in the present case.

The Additional Sessions Judge, Gurdaspur, vide the impugned judgment and order, acquitted all the accused, except the present appellant- Manohar Lal who was convicted and sentenced as noticed herein before.

Counsel for the appellant contends that the judgment, rendered by the trial Court, is seriously flawed, the appellant has been convicted on mere Crl.Appeal No.113.SB of 1989 -:4:-

conjectures and surmises. The prosecution has miserably failed to establish its case beyond reasonable doubt and, therefore, the appellant should have been acquitted.

It is contended that the FIR, which set the entire prosecution into motion, was lodged by complainant-Krishan Lal, pursuant to his statement Ex.PH.

A perusal of the said statement, which forms the basis of the FIR, Ex.PH/1, reveals that the complainant alleges abduction/kidnapping of his daughter "Raj Rani", aged 14-15 years. The statement clearly records that the complainant and his daughter were returning from Jawalaji, after pilgrimage. The prosecutrix, produced by the police in Court, is a woman, named, Krishana, aged 20 years, d/o Ram Lal, a twice married lady, who is the mother of a child. As per her deposition in the Court, she left her parents' house at Sarna on 11.12.1987 for her in-laws house at Batala. These facts, namely, the age of the prosecutrix, the name of the prosecutrix, her parentage, her marital status, and the place from which the prosecutrix was coming are by themselves so inherently contradictory as to suggest false implication. These inherent discrepancies have not been explained by the prosecution in any manner, whatsoever. Faced with these discrepancies, the prosecution with-held complainant-Krishan Lal, on a specious plea that his whereabouts were not known as the address, supplied by him, was found to be incorrect. The above discrepancies not only show the hollowness of the claim, put-forth by the prosecution but also lend credence to the statement, made by the Crl.Appeal No.113.SB of 1989 -:5:-

appellant, under Section 313 of the Cr.P.C, namely, his false implication on account of an altercation with three police Constables, while boarding a bus for Amritsar.

It is further argued that during the course of trial and during recording of evidence, the prosecutrix-Krishna (PW-4) did not depose that she was also known as "Raj Rani". The only witness, who could have deposed as to whether the prosecutrix-Krishna d/o Ram Lal was also known as "Raj Rani" was the prosecutrix herself or her father Ram Lal (PW-6). He also failed to depose that she was known as "Raj Rani". For the first time, in the statement of PW9- Inspector Pritam Singh, the prosecution, being conscious of this grave and serious discrepancy, described the prosecutrix as Raj Rani @ Krishna. A similar assertion was made by PW10-Ajit Singh, SI . It is, thus, apparent that the identity of the prosecutrix remains a mystery and has not been explained by the prosecution.

Counsel for the appellant further contends that the prosecutrix's statement, Ex.PH, with respect to rape is uncorroborated. The medical evidence, which, in rape cases, is a corroborative evidence, does not support the prosecution. The opinion of the doctor is that from a medical examination of the prosecutrix, no injuries were found on any part, no spermatozoa was found on the swab sent for chemical analysis, no bleeding was present and, therefore, it could not be said as to whether the prosecutrix had been raped. In the absence of any corroborative evidence, namely, a conclusive proof of the prosecutrix having been Crl.Appeal No.113.SB of 1989 -:6:-

raped, the trial Court committed a serious illegality, while accepting the case, set up by the prosecution and convicting the appellant on the sole ground that the prosecutrix was rescued, while in the appellant's custody.

Another circumstance, pressed into service by counsel for the appellant, while pleading innocence of the appellant, is that the prosecutrix claims to have been abducted on 12.12.1987 and recovered on 14.12.1987. However, in cross examination, she admitted that on 13.12.1987, she appeared before the S.D.M, Batala in response to production warrants, issued under Section 100 of the Cr.P.C, which warrants had been taken out, at the instance of her husband. No explanation, whatsoever, is forth-coming from the prosecution as to how a person kidnapped/abducted on 12.12.1987, subjected to rape, kept in confinement by the appellant and his co-accused upto 14.12.1987, appeared before the S.D.M Batala on 13.12.1987, got recorded a statement and then went back to her abductors so that she could be recovered on 14.12.1987. These facts are sufficient to cast a serious doubt upon the story set up by the prosecution and to shatter the very veracity thereof. The trial Court accepted the fact that the statement of the prosecutrix was recorded by the Sub Divisional Magistrate, Batala on 13.12.1987 but went on to hold that as the copy of the statement was not produced, it could not be said that the statement had actually been recorded, as prosecutrix was an illiterate lady.

It is further argued that the trial Court, on the other hand, by a Crl.Appeal No.113.SB of 1989 -:7:-

laboured process of reasoning, has provided explanations for these serious lapses when no such explanation was put-forth by the prosecution. The trial Court, while discussing the discrepancies in the FIR vis.a.vis the name, the age, the parentage etc. of the prosecutrix, has propounded a new version alien to the case in hand by holding that the old man, who recorded the statement Ex.PH, has referred to the girl, named in the statement Ex.PH, as his daughter out of his zeal. The trial Court has placed reliance upon the statement of the prosecutrix and despite noting the fact that the doctor was unable to certify the factum of rape held that as the hymen was ruptured at many places, the said fact, coupled with her statement, would be sufficient to conclude that she had been raped. The trial Court ignored the fact that the prosecutrix was a married lady, a mother of a child and, therefore, the hymen was bound to be ruptured. The trial Court simply ignored the absence of any injury, whatsoever, on any part of the body and, thus, arrived at an erroneous conclusion of rape.

The sole circumstance that appears to have impressed the trial Court, is the fact that the appellant was arrested by the police alongwith the prosecutrix.

This, coupled with the statement of the prosecutrix, appears to have led the trial Court. to return a finding of rape. The approach, adopted by the trial Court, is incorrect, unknown to law and, therefore, the present appeal merits acceptance.

Counsel for the respondent, on the other hand, contends that the judgment and order of the trial Court does not suffer from any infirmity either of Crl.Appeal No.113.SB of 1989 -:8:-

fact or of law. The statement of the prosecutrix is clear and categoric as to her kidnapping and subsequent rape. The appellant has miserably failed to urge any circumstances to rebut the core issue, namely, the kidnapping and the rape. The identity of the prosecutrix has been satisfactorily explained by the prosecution.

The discrepancies in the statement, Ex.PH and the statement of the prosecutrix are immaterial, as the offence of kidnapping and rape stands established. The non examination of the complainant-Krishan Lal, in the circumstances, was beyond the control of the prosecution, as the address, provided, was found to be fake. The prosecution made attempts to trace the complainant but failed. These circumstance cannot detract from the statement of the prosecutrix so as to enable the appellant to plead innocence, as the appellant was apprehended in an auto-rickshaw alongwith the accused.

It is further contended that the mere fact that the trial Court has given the benefit of doubt to three co-accused on the question of their identity, disentitles the appellant to any benefit. The appellant was arrested by the police, while sitting in the three wheeler tempo alongwith the prosecutrix and, therefore, his identity stood established. All other ingredients of the offence have been established, the trial Court rightly convicted and sentenced the appellant. It is further contended that it was for the defence to establish that once the prosecutrix had admitted that she appeared before the Sub Divisional Magistrate, Batala on 13.12.1987, as to whether any statement was recorded and in what circumstance Crl.Appeal No.113.SB of 1989 -:9:-

she appeared. For mere admission would be of no benefit to the appellant. The offence, having been established in all its ramifications, the judgment of the trial Court is liable to be upheld and the present appeal deserves to be dismissed.

I have heard learned counsel for the parties and perused the record.

The facts of the present case have been noticed herein before and do not merit recapitulation except and in so far as they are relevant.

On 12.12.1987, one Krishan Lal son of Durga Dass, lodged a complaint Ex.PH at Police Station City Pathankot that he and his daughter Raj Rani, aged 14 to 15 years, were on their way back to Batala after paying obeisance at Mata Jawalaji Shrine in Kangra (Himachal Pradesh). After arrival at the Pathankot Railway Station, he went to arrange for some meals. On his return, his daughter informed him that three young boys had been harassing her. Fearfull of the boys, they decided to hire a rickshaw to go to the house of a friend, named, Karnail Singh so as to spend a night with him. When they arrived at the Central Gate of the Bus Stand, three boys, who earlier harassed his daughter, accompanied by two others, kidnapped Raj Rani and escaped in a tempo. Pursuant to the aforementioned statement, FIR Ex.PH/1 was recorded on 12.12.1987, regarding the kidnapping/abduction of a girl, Raj Rani, daughter of Krishan Lal, aged 14 to 15 years, resident of Batala. As per facts, set out in the present case, on 14.12.1987, the abducted girl was being taken by the accused including the appellant in an auto rickshaw, when she spotted her parents and raised an alram Crl.Appeal No.113.SB of 1989 -:10:-

leading to her rescue. The appellant was arrested at the spot, whereas the others escaped. As the recovered girl alleged that she had been raped by the appellant and one Naresh Kumar, she was sent for medical examination. She was medico legally examined on 14.12.1987 by Dr. Indu Mahajan, PW1, who conducted a thorough medical examination and took vaginal swabs, which was sent for chemical examination.

As noticed above, the girl, allegedly abducted/kidnapped on 12.12.1987, was Raj Rani, d/o Krishan Lal, aged 14 to 15 years, a resident of Batala and was on the way back to Batala, after paying obeisance at Mata Jawalaji Shrine in Kangra (Himachal Pradesh). However, the girl, recovered by the police on 14.12.1987, strangely enough, goes by the name Krishna, d/o Ram Lal, aged 20, has been married twice, is the mother of a child, and was returning from Sarna in Punjab enroute to Batala. These startling departures as to the name, her parentage, age and marital status of the girl, allegedly abducted/kidnapped on 12.12.1987, and the girl, recovered by the police, on 14.12.1987, remain unexplain.

The persons, who could have shed light upon these glaring contradictions were the prosecutrix-PW4, the complainant Krishan Lal and the father of the prosecutrix, Ram Lal-PW.6 Neiher Raj Rani nor her father Ram Lal, while deposing as PW4 and PW6 respectively, uttered a word to clarify these facts. However, a clumsy attempt was made by PW-9 Inspector Pritam Singh, who recorded the FIR, and PW10-Ajit Singh, the Investigating Officer to cover up Crl.Appeal No.113.SB of 1989 -:11:-

these discrepancies. These witnesses, referred to the prosecutrix as Raj Rani @ Krishna but failed to explain the discrepancies regarding age, parentage, marital status, and the fact that the girl, referred to in the FIR, was returning from Mata Jawalaji Shrine in Kangra (Himachal Pradesh), whereas the prosecutrix, produced in Court, was returning from Sarna in Punjab.

The trial Court, noticed these contradictions, but attempted to explain only the difference in parentage by observing that Krishan Lal, the complainant, referred to the abducted girl as his daughter, as her inlaws were from Batala. This explanation, in my opinion, was unwarranted as no explanation, whatsoever, was forthcoming from the prosecutrix-PW4 or her father PW6-Ram Lal. Further-more, the complainant-Krishan Lal was not produced by the prosecution, on the plea that the address, supplied by him, was found to be incorrect. In addition, the trial Court sought to address these discrepancies by relying upon the appellant's identification, by the prosecutrix, during her deposition in Court. This fact could not have been pressed into service, as the trial Court, while acquitting the co-accused, doubted the correctness of the identification, made in Court, as the prosecutrix admitted in her cross-examination that the accused had been shown to her by the police, prior to her deposition.

Even otherwise, it was no part of the trial Court's duty to furnish explanations for the prosecution's failure to explain these contradictions, when no such explanation was forthcoming. The onus to explain glaring and material discrepancies lies Crl.Appeal No.113.SB of 1989 -:12:-

upon the prosecution. Failure to discharge such an onus would impinge upon the credibility of the prosecution version and enure to the benefit of the accused. A considered examination of these unexplained discrepancies, casts a shadow on the veracity of the prosecution story.

Another circumstance that lends sustenance to the above conclusion is the failure of the prosecution to examine Krishan Lal. He was the first informant and the best witness to depose as to the identity of the abducted girl. He was given up by the prosecution on the plea that the address, provided by him, was found to be incorrect. I am of the considered opinion, Krishan Lal was intentionally withheld by the prosecution lest he disclose the truth. The trial Court should have exercised more care and made an attempt to secure his presence. No such attempt was made by the trial Court.

Apart from the discrepancies, detailed in the preceding paragraphs, another glaring fact that flies in the face of the prosecution story is that in her cross-examination as PW4, the prosecutrix admitted that on 13.12.1987, the date on which, as per the prosecution case, she was in the illegal custody of the accused, she appeared before the Sub Divisional Magistrate, Batala in response to a production warrant taken out by her husband, under Section 100 Cr.P.C. She also admits to have made a statement before the said Court on 13.12.1987. The prosecution case is that she was abducted on 12.12.1987, raped, kept in his custody by the appellant and his co-accused and only recovered on 14.12.1987. It Crl.Appeal No.113.SB of 1989 -:13:-

belies comprehension as to how, while in the illegal custody of the appellant, the prosecutrix suddenly appeared before the Sub Divisional Magistrate, Batala on 13.12.1987 in response to a production warrant, taken out by her husband, made a statement before the Court, and then quitely returned to the illegal custody of the appellant and his co-accused, only to be recovered by the police on 14.12.1987.

The trial Court, however, while taking note of the aforementioned admission, brushed it aside by holding that the prosecutrix was illiterate and it could not be said as to what statement was actually recorded, as a copy of the statement was not produced. As the prosecution did not explain this strange admission, the trial Court, therefore, should not have discarded this significant admission.

An offence of rape, by its very nature, is reprehensible. However, that does not absolve a Court of its bounden duty to dispassionately assess and evaluate the evidence. On the one hand is a belief that a physically violated woman would not falsely implicate any one and on the other is a fact that cases of false implication are not unknown. In cases of rape, it is rare to come across ocular corroboration. The statement of the prosecutrix is accorded a degree of primacy. But where the statement, and the surrounding circumstances are inherently contradictory or discrepant, the medical evidence is a piece of evidence that can be safely relied upon for corroboration.

In the present case, the prosecutrix alleges that she was abducted on Crl.Appeal No.113.SB of 1989 -:14:-

12.12.1987, raped by Manohar Lal-appellant and his co-accused Naresh Kumar on the night of 12.12.1987 and was thereafter recovered by the police on 14.12.1987. On 14.12.1987, she was medically examined by Dr. Indu Mahajan, Medical Officer, Civil Hospital, Pathankot, who prepared the MLR Ex.PB. The doctor did not find any bleeding whether on the vagina or the hymen. Infact, no injuries were found on any part of the prosecutrix's body. The swab, taken from the vagina, was sent for chemical examination. As per report, Ex.PA, dated 28.1.1988, no spermatozoa was discovered. In her medical opinion, Dr. Indu Mahajan-PW1, specifically opined that it was difficult for her to return an opinion regarding rape. The medical evidence, thus, does not corroborate the allegations of rape.

The trial Court, however, returned a finding of rape, basing its conclusion on two circumstances, namely, the hymen being ruptured in a radiate manner at various places, and the arrest of the appellant, when the prosecutrix was recovered. The trial Court in its apparent zeal to convict the appellant, ignored the entire medical evidence and relied upon an isolated circumstance to return a finding of rape. It ignored the MLR, the report of the Chemical Examiner, the opinion of the doctor, as also her deposition. The MLR did not reveal any injury to any part of the prosecutrix's body. The Chemical Examiner's report did not disclose the presence of spermatozoa on the swabs and the doctor's opinion did not support the allegation of rape. The trial Court ignored the fact that the prosecutrix Crl.Appeal No.113.SB of 1989 -:15:-

was a twice married women, a mother and, therefore, the hymen was bound to be ruptured in a radiate manner. This isolated circumstance extracted from the medical examination of the prosecutrix, in my opinion, was insufficient to return a finding of rape.

The second circumstance, namely, the appellant's arrest at the time of the prosecutrix's recovery, had to be examined in the light of the serious contradictions and discrepancies that pervade the prosecution case. The trial Court had acquitted the co-accused by discarding their identification, made by the prosecutrix in Court.

As noticed herein before, the abducted girl was stated to be one Raj Rani d/o Krishan Lal, aged 14-15 years, on her way back from Mata Jawalaji Shrine in Kangra (Himachal Pradesh). The prosecutrix, allegedly recovered and produced in evidence, is Krishna d/o Ram Lal, aged 20 years, a twice married women, the mother of a child, on her way back from Sarna in Punjab. The prosecutrix, while in the alleged custody of the appellant and his co-accused, claims to have appeared before the Sub Divisional Magistrate, Batala on 13.12.1987, no explanation, whatsoever, is forthcoming from the prosecution for this material discrepancy. The complainant- Krishan Lal has been withheld from the Court. The medical evidence does not corroborate the factum of rape. In view of the facts, noticed herein before, in my opinion, it would be unsafe to return a finding of kidnapping/abduction and rape on this discrepant and uncorroborated Crl.Appeal No.113.SB of 1989 -:16:-

evidence, adduced by the prosecution. The prosecution was duty bound to have explained these material discrepancies but failed in the discharge of its obligation.

The present is a case, which clearly reveals the manner in which the prosecution has conducted and difficulty, which has been faced by the trial Court, while considering the evidence. Even otherwise, to convict the appellant on this uncorroborated testimony of the prosecutrix, in the face of the inherent contradictions and material discrepancies, would be a travesty of justice. The entire evidence smacks of an attempt to falsely implicate the appellant and lends credence of his statement, made under Section 313 Cr.P.C that he was falsely implicated, as he and his co-accused were involved in an altercation with a few police men, while they were boarding a bus for Amritsar and were thereafter taken to the Police Station and falsely implicated.

In view of the aforementioned facts and conclusions, the trial Court committed a serious error, while convicting and sentencing the appellant.

Consequently, the present appeal is allowed, the judgment and the order, passed by the trial Court, convicting and sentencing the appellant, are set aside and the appellant is acquitted of the charges levelled against him.

( RAJIVE BHALLA )

August , 2005. JUDGE

`kk'

Crl.Appeal No.113.SB of 1989 -:17:-


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