Alagiri vs State of Punjab

Ujagar Singh, J.

The appellant was convicted under section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment I for four years by the Sessions Judge, Jalandhar.

The facts leading to the conviction and sentence are that Shrimati Magga Devi (PW 1) was sleeping in her house on 23 8,1984 and her husband had gone out on some business. At about 2.30 P.M. Alagiri appellant came in the house and gagged her with a piece of cloth and raped her. The appellant was under the influence of liquor and Magha Devi felt herself to the helpless. Her husband came in the house all of a sudden. The appellant tried to escape, but, in the meantime, Smt. Magha Devi raised her voice to attract the neighbours who came and overpowered the appellant. After investigation, report under section 173 of the Code of Criminal Procedure was presented and the appellant was committed for trial before the Sessions Judge.

The prosecution has examined Magha Devi (PW 1), Suresh Kumar (PW2), Inspector Amar Singh, Station House Officer, Police Station Division No. 4, Jalandhar (PW3), Sub Inspector Karnail Singh (since retired), PW4), Dr. Surinder Kaur (PW5) and Dr. S. D. Goel (PW8). Affidavits of MCH Surinder Singh and Constable Tarlochan Singh exhibited PW6 and PW 7 respectively were tendered into evidence.

The defence of the appellant was that Suresh Kumar (PW2) had a dispute with him for payment of money for the balloons which he has sold to the former. He was given beating and falsely implicated in this case with the connivance of the local Police.

The judgment of the Court below shows that the appellant remained in detention during investigation and enquiry from 23.8.1984 to 31 8 1984 and during trial from 9.10.1985 till 2. 12. 1985 when he was convicted and sentenced. In this appeal, the appellant was released on bail only vide order dated 21.5.1986 and as he could not furnish bail and surety to the satisfaction of the Chief Judicial Magistrate, Jalandhar, be was not released and is still in custody in Central Jail, Jalandhar.

The learned counsel for the appellant has challenged the conviction and sentence on the ground that, as a matter of fact, the appellant was given beating by Suresh Kumar (PW 2) and this cease was concocted in connivance with the Police to falsely implicate him so as to save the skin of Suresh Kumar.

I have heard the learned counsel in detail and also gone through the file, including the statement of the prosecution witnesses and the documents proved by the prosecution. In her statement, Smt. Magga Devi (P.W.) admitted that she went to the Police Station and gave a written complaint Ex. PA which was got scribed by her husband and she had thumb marked the same in token of its correctness. In crossexamination, she stated that she got complaint Ex. P.A scribed with the help of her husband from an old man, but she did not remember the name of that old man who lived in another Mohali, i.e. Qazi Mohalla. According to Suresh Kumar (PW2), he got complaint Ex. P. A scribed from an old person of their Mohalla and that person was not now residing in their Mohalla. Karnail Singh (PW4), in crossexamination, admitted that Magga Devi and Suresh Kumar met him for the first time on 23.8.1984 at about 6 p.m. and that complaint Ex. PA was drafted and scribed by R. Mani which shows that this complaint was scribed in the presence of this witness. He further stated that he asked Magga Devi to accompany him to Civil Hospital, Jalandhar for medical examination, but she and her husband insisted that they would themselves get her medical examination conducted. A reference to medicolegal report of Magga Devi shows that she was medically examined by Dr. Surinder Kaur at 7.30 p.m. and it was treated as a private case. Ex. PG is her medicolegal report. It is not understood as to why Magga Devi and Suresh Kumar did not get her medically examined at the instance of the Police. Ex. PA was sent for registration of the case after an endorsement was made by SI Karnail Singh (PW4) and First Information Report ExPA/2, recorded on the basis of Ex.PA, shows that the case was registered vide No. 165 of 1984, at 6.45 p.m. and this FIR was treated as a special report. It is surprising that the FIR reached the Ilaqa Magistrate at 10 a.m. on 24 8.1984. This delay of about. 15 hours is not explained at all, especially when the occurrence took place near Qazi Mandi, Jalandhar and the Court of the Magistrate was also located in that very city. These circumstances give an indication that the occurrence did not take place, as stated by Magga Devi and Suresh Kumar. Although these two witness are stated to have gone to the Police Station and given this information to SI Karnail Singh, that this fact becomes doubtful when statement of Murgesh (DW 1) is taken into consideration. The presence of this witness is admitted by Suresh Kumar (PW 2). According to this witness, Hari father of Suresh PW went to the Police and he being the police tout, falsely implicated the appellant in this case and the appellant was produced before the Police at Police Station Division No. 3, Jalandhar that day. SI Karnail Singh has gone to the extent of saying that these prosecution witnesses insisted that they would themselves go and get Magga Devi examined by the doctor and they were allowed separately to go to Hospital, Jalandhar. Magga Devi (PW 1) states that Written complaint Ex. PA Was got scribed by her husband and she had thumb marked the same in token of its correctness Suresh Kumar (PW2) asserted that complaint Ex.PA was scribed by an old man from their Mohalla and that person was not now residing there SI. Karnail Singh contradicted the said witness by saying that Ex. PA was drafted and scribed by R. Mani and his statement, read in sequence, shows that this complaint Ex PA come into existence after Magga Devi and Suresh Kumar met him for the first time on 23.8.1984 at about 6 p.m.

SI Karnail Singh arrested the appellant and got him medically examined by sending a request Ex. PD and medical examination of the appellant was conducted at 8.50 p.m. vide Ex. PD/1. Ex.PD shows that this request for medical examination was made with a view to have medical opinion about rape having been committed by the appellant with Magga Devi. Dr S.D. Goel (PW8) examined the appellant on 23.8.1984 and found the following injuries on his person:

A lacerated wound 2. 5 x 0. 5 cm on the right side of scalp. It was skin deep. Aparallel incised wound 2.5 cm x 0.5 cm was also found. It was skin deep.

A lacerated wound shaped measuring 2.6 cm x.0.05 cm and 1.5 cm x.05 skin deep on the posterior side of parietal bone.

A lacerated wound 1.5 cm x .05 cm, on the anterior pariental region.

He further noted that there was no semen present under the prepuce (loose skin covering end of penis). According to the prosecution story, the appellant was caught red handed by Suresh Kumar (PW2) when rape was being committed or immediately after rape had been committed and Dhanda blow were given on the body of the appellant by Suresh Kumar. The appellant was immediately secured with the help of neighbours. In this situation, absence of semen under the prepuce require explanation. In any case, Dr. S.D. Goel (PW8) has not indicated in his statement about the possibility of rape having been committed by the appellant at about 2.30 p.m.

Dr. S. D. Goel either in medicolegal report or his statement as PW8 is silent about any Kuchha (underwear) belonging to the appellant having been taken from the appellant and the same having been taken from handed over to the Police. Although SI Karnail Singh (PW4) specifically stated that underwear P2 which Alagri accused was wearing was got removed from his person and he was got medically examined by the said doctor and the said underwear was handed over to me and it was duly sealed and taken into possession vide memo Ex. P.C. a reading of memo Ex. PC shows that it was prepared in Civil Hospital where Kuchha Ex. P2 of the appellant was taken into possession. The memo is attested by Suresh Kumar himself. In the absence of any statement of Dr. S.D. Goel (PW8) about this Kuchha, the whole thing becomes doubtful and it is difficult to rely upon the semen found on Kuchha Ex. P 2 by he Chemical examiner. Apart from that the appellant is a married man and possibility of semen already being on Kuchha Ex.P2 cannot be excluded.

Suresh Kumar (PW2), when crossexamined, admitted that Murgesh and Dur Swami had also come to the spot after the occurrence while he was giving beating to the appellant. In view of this statement of Suresh Kumar (PW2), there is no reason to disbelieve Murgesh who has appeared as DW Murgeh (DWI) gives a total lie to the prosecution story. He stated that on 23.8 1984 the appellant went to Suresh PW to ask for the money which Was due to him from Suresh. He accompanied the appellant. He further stated that Suresh Kumar (PW2) refused to pay the money and the appellant insisted that Suresh PW should pay him the amount. At this stage, according to him, Suresh caught hold of the appellant who got himself released and thereafter Suresh PW picked up a Danda and gave three blows on his head. He further stated that Hari father of Suresh PW went to the Police and Hari being police tout. falsely implicated the accused appellant in this case. The trial Court has not given sound reasons, to disbelieve presence of Murgesh and his statement mentioned above.

Although an attempt has been made to show that fatherinlaw of Magga Devi had gone away earlier in the morning, but, under pressure of cross examination, she admitted that her fatherinlaw left for Kangra after the occurrence and she herself, alongwith her husband, her motherinlaw and fatherinlaw had gone to the Police Station on that day, St Karnail Singh (PW4) states that Magga Devi, accompanied by her husband only and some other persons, met him near Qazi Mandi, Jalandhar.

Suresh Kumar (PW2) his admitted in crossexamination that a case for recovery of Charas relating to this save Police Station was registered and pending against him. Statements of Magga Devi and Suresh Kumar have not been corroborated by examining any independent person from the neighhbours said to have gathered immediately after the occurrence. Some independent person, if examined, could vouchsafe the narration of events as to how and under what circumstances, the appellant was detained by the neighbours and especially, in view of the statement of Murgesh (DW 1).

In the medicolegal report in respect of Magga Devi, no visible mark of injury on her external genitals was found and she, being a married lady and having given birth to child, there could possibly be no evidence of rape and Dr. Surinder Kaur (PW5), therefore stated that no definite opinion could be given about the alleged rape and Magga Devi was habitual to sexual inter course. The only evidence to show rape is the report of Ex. PA given by the Chemical Examiner to Punjab Government, Patiala to the effect that semen was found on Ex.P 1 and P2, i.e. the slides and swabs. The presence of semen thereon cannot be definitely attributed to the appellant, because Magga Devi was residing in the house with her husband Suresh Kumar and possibility of presence of semen on the said exhibit from the coitus between the two cannot be ruled out.

In such circumstances, there is no evidence to prove the allegation of the appellant to have committed rape on Magga Devi. On the other hand, the version Of the appellant that some amount was due to him from Suresh Kumar and he had gone to the house of the latter to demand the amount, he was manhandled and given beating, by Suresh Kumar (PW 2) cannot be brushed aside. The burden on the defence is not that heavy and if the circumstances make it probable, the defence can be believed and this is that type of case where the defence version is most probable, especially, in view of, the time of the alleged rape being 2.30 p.m. in a locality where there are residential houses and as admitted by the prosecution, so many neighbours had gathered there. The appellant was arrested on. 2181984 and remained under detention till 31.8.1984. During trial the appellant remained in custody from 9. 10.1985 till 2.12.1985 when he was convicted and sentenced by the trial Court. From 2.12.1985 the appellant is in Central Jail Jalandhar inspite of the fact that he was directed to be released on bail vide this Court''s order dated 21.5.1986. The circumstances fully prove that the appellant is not a man of means and he was living a peaceful life when he was dislodged by registration of this case.

In view of the foregoing observations, this appeal is accepted; order of conviction and sentenced is set aside and the appellant is acquitted of the charges. He is directed to be released forthwith.

Before parting with this judgment, after recording the verdict of acquittal, I think it will meet the ends of justice if the State Government be directed to make provision for some compensation, as a token of measure of restitutive justice to the appellant and I, therefore, quantify a sum of Rs. 3,000/ as token amount payable by the State Government to the appellant within one and a half months from his release. For the issue of his direction, I rely upon this Court''s inherent power available under section 482 of the Code of Criminal Procedure.