Harpal Singh vs State of Haryana

R.L. Anand, J. (Oral)

The graver is the allegation the stricter is the proof, is the basic law of this land. Though the allegations of the prosecution are very shocking but if these allegations are proved beyond reasonable doubt, definitely the appellants do no deserve any sympathy either on the premises of law or on the premises of equity for committing a gang rape upon a woman who had come innocently to Ambala Cantt. to join her husband from Bihar. On moral consideration or for the fanciful story the liberty of a person cannot be curtailed. If the investigation in this case is totally defunct and it has not collected sufficient evidence nor it fixed the identity of the culprits, in that eventuality the prosecution must suffer. The benefit of all reasonable doubt is to go to the accused and not to the prosecution. If this Court gets a smell that a genuine culprit was allowed to go scot free by the police, in that eventuality the liability cannot be fastened upon the accused person. This impression I have been able to gather after going through the evidence of the case.

By this judgment I will dispose of two Criminal Appeal Nos. 109/SB of 1998 titled Harpal Singh v. State of Haryana and Crl. Appeal No. 220/SB of 1998 titled Ashok Kumar and others v. State of Haryana as both the appeals have arisen from the judgment and order dated 23.1.1998 passed by the Court of Addl. Sessions Judge, Ambala who convicted the appellants under Section 376(2)(g) I.P.C., and vide order dated 28.1.1998 sentenced each of the appellants to undergo R.I. for a period of ten years and to pay a fine of Rs. 1000/ each. Each one of the appellants was directed to undergo further R.I. for a period of six months in case they do not deposit the fine. The story of the prosecution which has been stated at the trial is as follows :

Smt. Subhawati PW8 (prosecutrix) is the wife of Lal Babu PW 13. Lal Babu used to sell vegetables in the railway colony on a cart and used to reside with his brotherinlaw (sister''s husband) Bhim Sain in Himatpura (Ambala). The prosecutrix used to reside in Rattanpura District Siwan (Bihar). On 17.2.1996, the prosecutrix started on a train from her village to meet her husband at Ambala Cantt. On 18.2.1996 at about 8/8.30 PM the prosecutrix reached at Railway Station Ambala Cantt. Since the prosecutrix had visited Ambala Cantt. for the first time and it was night time and she did not know the passage leading to the house of her husband, she enquired about the address of her husband from own Sikh gentlemen (Harpal Singh Bhatia) who said the Himatpura was situated at a great distance and assured Subhawati that he would make arrangement for her taking rest during the night. Shri S.K. Bhatia talked with two other persons. One of those persons escorted her to one Kotha situated near Railway Station. He asked the prosecutrix to sit on one cot. Two other cots were also lying there and thereafter locked the door from outside. It is alleged that on the night intervening 18/19.2.1996 at about 11.00 P.M. that Sikh Gentleman (Harpal Singh Bhatia) came in that room and he committed rape on the prosecutrix. Mr. Bhatia was in possession of a knife and administered a threat to the prosecutrix that he would eliminate the whole of her family. Thereafter, the four other appellants namely Ashok, Munish Kumar, Arjan and Jagdish came in that Kotha and committed rape upon her turn by turn. Since the prosecutrix was alone and it was night time, she did not say anything out of fear. In the morning she was left at Railway Station. Her ornaments, clothes and cash were also snatched on the point of knife by the accused. One Ram Raj, Porter, PW 9 met the prosecutrix and he took her to the house of her husband Lal Babu on the morning of 19.2.1996. The prosecutrix did not narrate the occurrence to her husband immediately on that date. In the morning of 20.2.1996, she narrated the occurrence to her husband and Bhim Sain who is the husband of sister of Lal Babu and Bhim Sain then made enquiries about the possible culprits and they came to know that accused Arjun, Ashok Kumar, Mukesh, Jagdish and H.S. Bhatia, Station Master, had committed rape upon Subhawati and they have snatched her cash, clothes and ornaments.

On 4.3.1996 Lal Babu, husband of the prosecutrix submitted application Ex.PK before Veer Bhan PW 17, Incharge, Police Post Parao, Ambala Cantt., on the basis of which FIR Ex.PK/1 was registered. The prosecutrix was sent to Civil Hospital, Ambala Cantt, where she was medicolegally examined. SI Veer Bhan visited the scene of occurrence and prepared rough site plan Ex.PP. He recorded the statement under Section 161 Cr.P.C. of the prosecutrix and Bhim Sain. Accused Arjun, Ashok Kumar and Mukesh were arrested and were got medically examined. Thereafter the investigation was entrusted to S.I. Shingara Singh PW14 who arrested the accused Jagdish on 26.3.1996 and accused Harpal Singh Bhatia on 31.3.1996. They were also medically examined. After completion of the investigation and other usual formalities a challan was presented and all the five accused were challaned in the Court of Illaqa Magistrate and vide committing order dated 14.8.1996, it committed the accused to the Court of Sessions. Vide orders dated 20.9.1996, charges under sections 376(g), 395 and 313 IPC were framed against the accused to which they pleaded not guilty and claimed trial.

In order to prove the charges, the prosecution examined Dr. R.S. Bugalia who had conducted ultra sound examination of the prosecutrix and noticed a single foetus and issued his report Ex.PA. Shri D.K. Singh, Station Master, proved the duties regarding the accused on the relevant night. Dr. Beenu Gupta, PW 3, medically examined the prosecutrix. On 4.3.1996 she advised ultra sound. The prosecutrix could not give proper history of the incident because of language problem. She was not wearing the same clothes. She was well built, well nourished female, breasts well developed, nipple well developed and her vagina admitted 2 fingers. The uterus was 16 weeks'' size. She was advised ultra sound for age of pregnancy and confirmation as patient was not giving any history nor she was willing to accept the pregnancy. The doctor stated that there was no mark of injury on the body of the prosecutrix. Further it was noted by the doctor that she was habitual to sexual intercourse. She brought Ex.PC, the medicolegal report. Dr. S.K. Gupta, PW 4, medically examined Mukesh Kumar, appellant and had proved the report Ex.PD and stated that he was fit to perform sexual intercourse. Dr. B.K. Gupta certified that Jagdish Singh was fit to perform sexual intercourse vide Ex.PE. Head Constable Malkiat Singh deposed that on 4.3.1996 when he was present in Police Post Parao, Shri Lal Babu accompanied by his wife came there and they told me that rape has been committed upon Subhawati. He accompanied S.I. Vir Bhan to Kotha at Railway Colony, Ambala Cantt. wherefrom accused Arjun was arrested. Thereafter they went to the house of Ashok Kumar from where he was arrested. Head Constable Mahabir Prashad, PW7, simply stated that he recorded supplementary statement of Lal Babu, husband of Subhawati. Prosecutrix appeared as PW8 and I will discuss her relevant portion of the statement in the subsequent portion of the judgment. Ram Raj, PW9, is a person who took the prosecutrix to the house of Lal Babu and his statement shall also be discussed in the later part of the judgment. Dr. L.N. Garg, PW10, medically examined Arjun and in the opinion of this Doctor, he was fit to perform sexual intercourse. Constable Manoj Kumar, PW11, prepared the site plan Ex.PH S.K. Sharma, PW 12 proved the posting of some of the accused. Lal Babu, PW13, is the husband of the prosecutrix and his statement shall also be considered by me in the subsequent portion of this order. Shingara Singh, SI, appeared as PW 14. Dr. Gajender Yadav, PW 15 medically examined Harpal Singh Bhatia and declared him fit to perform sexual intercourse. Shri Prem Sagar, PW16, submitted the report under Section 173 Cr.P.C. S.I. Bir Singh is also another Investigating Officer who partly investigated this case. Bhim Sain, sister''s husband of Lal Babu has been given up as unnecessary. On the closure of the prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. The accused denied those circumstances and pleaded that it is a false case.

The plea of S/Shri Arjun and Ashok Kumar before the trial Court is that they are innocent. Harpal Singh deposed as follows :

"It is a false case made out against me at the instance of Railway Workers Union, Ambala who are annoyed with him due to strict supervision on them. Lal Bahadur PW had relations in the Railway Workers Union and for this reason he had lodged a false report against me. I was married about 30 years back. I am Station Master for the last about 28 years. I have children who are married. This false case has been made against me in order to damage my service and my reputation. I had seen the prosecutrix for the first time in the Court."

Mukesh Kumar also stated in his statement under Section 313 Cr.P.C. that he was innocent like his coaccused. Jagdish Singh when called upon to enter into defence, the accused did not lead any evidence.

Learned trial Court formulated the following points for consideration :

i. Whether accused Ashok Kumar, Harpal Singh, Mukesh Kumar, Arjun and Jagdish were the same persons who committed gang rape upon the prosecutrix on the night intervening 18/19.2.1996 ?

ii. Whether accused persons committed dacoity by snatching the amount and ornaments on the point of knife, from the prosecutrix ?

iii. Whether the accused person caused miscarriage of prosecutrix without her consent ?

The learned trial Judge held while deciding point No. 1 that the accused persons had committed gang rape. The trial Judge further held that no dacoity has been committed nor any miscarriage of the foetus had taken place. Under these circumstances, the trial Court only convicted the appellants under Section 376(2)(g) of the I.P.C. Aggrieved by their conviction and sentence, the present two appeals have been filed which are being disposed of with the assistance of Shri R.S. Ghai, Sr Advocate with Shri Bipan Ghai, Advocate for the appellants and Shri Sanjeev Sheoran, Advocate appearing on behalf of the State and with their assistance, I had gone through the records of the case.

I had stated at the outset of this judgement that when the prosecution is called upon to prove a grave offence, the proof should also be stricter. The story of the prosecution case is that on the night of 18.2.1996 Smt. Subhawati came to the Railway Station, Ambala Cantt. Since she was not aware about the location of the house of her husband, she allegedly took the assistance of a stranger and Mr. H.S. Bhatia was the first person who contacted that lady. He handed over that lady to two more persons who took her to a kotha and on the night of 18/19.2.1996 the five persons allegedly committed rape upon Smt. Subhawati who on the morning of 19.2.1996 contacted Shri Ram Raj, PW 9. What should be the natural conduct in these circumstances if all the five persons committed rape upon a lady having a pregnancy of 16 weeks, and what should be the plight of such a woman ? Under these circumstances, the expectation of the Court is that such a lady will be in a total shaking condition. She should have some sort of injuries on her person. She would be the first person to narrate in detail about the incident with which she was allegedly confronted. Assuming for the sake of arguments that Ram Raj was a stranger and Subhawati did not want to convey anything about the incident with which she was confronted but what should be her natural conduct when she met her husband Lal Babu and Bhim Sain, the husband of sister of his husband. In this regard, the testimony of Lal Babu and Bhim Sain would become more relevant. Why Bhim Sain has been given up by the prosecution on the plea that his examination is unnecessary, has not been satisfactorily explained by the prosecution in this case. Be that as it may, now we have to see whether the testimony of Ram Raj, Lal Babu and that of Subhawati is relevant so as to sustain the conviction.

So far as the point of law is concerned, the testimony of the prosecutrix is to be considered like that of injured witness. Her statement does not require any corroboration. If this Court comes to the conclusion that her statement inspires confidence in the mind of the Court, the touchstone is that evidence may enthuse in the mind of the Court about the genuineness of the crime. If Subhawait has been confronted with a circumstance at the influence of a third party, then the liability will be switched over to the present complainant who hailed from Bihar. She came for the first time to Ambala to join her husband. On the night of 18/19.2.1996 she was allegedly raped by strangers. In these circumstances was it not obligatory on the part of the prosecution and the investigating agency to arrange identification parade of the accused from the prosecutrix as soon as they are arrested ? The safe conclusion is in affirmative. If the Investigating Agency did not arrange or bother to arrange identification parade of the accused, the identity of the accused for the first time in the Court becomes meaningless though this part of the evidence may be admissible. Even the case of the prosecution is that Smt. Subhawati did not narrate the occurrence to her husband and to Shri Bhim Sain on 19.2.1996. She narrated the occurrence for the first time on the night of 20.2.1996, meaning thereby after 24 hours of the alleged incident. What was the reason on the part of Subhawati to remain silent for such a long period and the only answer is that the identity of the culprits was not known even to Subhawati or anybody else. It is also the case of the prosecution that investigation came into action on 4.3.1996 after 14 days of the occurrence and by that time much water had already flown under the bridge in order to give a shape to the story.

Be that as it may, we have now to assess the testimony of each witness so as to find out whether there is a credible evidence on the record from which the conviction can be maintained. After contacting Ram Raj, the prosecutrix contacted Lal Babu and Bhim Sain. At the cost of repetition, I may say that Bhim Sain has not been examined. Ram Raj appeared as PW 9. He stated as follows :

"On 19.2.1996 at about 6.00 a.m. prosecutrix whose name I do not know had met me in Ladies Waiting Room. She was weeping at that time. On my enquiry she told me that her husband was working as a vegetable seller at Himmatpura and her brotherinlaw Bhim was working as a Porter. I escorted her to the house of her husband. The prosecutrix had told the name of her husband to be Lal Babu. She did not tell any other thing to me."

Thus from the testimony of Ram Raj it becomes clear that Subhawati had not narrated the alleged story of rape to Ram Raj when he was contacted on the morning of 19.2.1996. Then I switch over to the testimony of Lal Babu, husband of the prosecutrix who appeared as PW 13. Relevant portion of statement of Lal Babu can be quoted as follows :

"When my wife came in the morning of 19th day of that month she was not having any injury on her face but her face was red at that time. Her clothes were not torn. I did not observe any injury on her person. I had enquired from my wife as to why her cheeks were red and she had told me that those persons had kissed her cheeks. This fact was disclosed by her after onetwo days of her arrival in my residence. On my enquiry my wife had told that since she was coming to me, therefore, she had brought all her ornaments with her."

In the application Ex.PK which has been drafted in English and upon which Shri Lal Babu had signed in Hindi, the names of the present appellants find mention but Shri Lal Babu has not been able to make a mention how he came to know that the present appellants were allegedly responsible for the commission of the offence of rape. Subhawati appeared as PW. 8. She took the cat out of the bag. From her statement it appears that Bhim Sain is the mischief mind of the entire show. He was not having healthy relations with Mr. H.S. Bhatia. According to the prosecutrix, Bhim Sain had collected all the Porters at the Railway Station and narrated the occurrence and the accused pointed out towards one of the accused stating that he was that Sikh gentleman (in enquiry the accused told his came as H.S. Bhatia). Further it has been stated by Subhawati as follows :

"When I alongwith my husband and Bhim Sain went to the police post for the first time, we were not aware of the names of the accused persons. On enquiry by the police I had told about the physical features of the accused persons. Ram Raj Luggage Porter had also accompanied us to the police post. I had told the police that I could identify those culprits who had committed rape upon me. It is correct that Ram Raj had named Shibbu as one of the culprits. Ram Raj had also told the names of 34 other persons to the police. Police had called Shibbu in the police post but I had not seen him. Shibbu had not talked anything with me.''

Thus from the testimony of Subhawati it appears that shoe was on a wrong foot. Ram Raj was the first person who contacted the lady. I have already reproduced the substantive statement of Ram Raj in this judgment. According to Ram Raj, Subhawati did not narrate to him about the occurrence. In the Court, Subhawati had deposed that as per information from Ram Raj, Shibbu and 3/4 more persons were allegedly responsible for the commission of the offence. It is also not clear why Mr. Bhatia would commit the offence of rape upon Subhawati during that night in the Railway Station and when Mr. Bhatia met the prosecutrix is also a mystery. Why Mr. Bhatia will inspire confidence in the coaccused in committing rape is also not properly explained. It is not the case of the prosecution that all the five accused confronted the prosecutrix at the railway station. If the intention of Mr. Bhatia or any of the accused was bad, the natural conduct of the victim Subhawati on seeing them at the Railway Station in that eventuality was to raise hue and cry so that the culprits may not become successful in their design. Further Smt. Subhawati stated in the Court as follows :

"In the morning the police had also shown four accused persons outside the Court Room. I came to know the names of accused persons in the police station."

It means that on the basis of enmity between Mr. Bhatia and Mr. Bhim Sain who was Porter, the said story was manipulated to implicate Mr. Bhatia. The other four appellants are also railway employees and only to settle his own personal score, Shri Bhim Sain had put the wife of his brotherinlaw with the story to implicate the present appellants.

The learned trial Court dealt with the point of identity in the following manner :

Though the trial Court was cognizant of the fact that identity of the accused for the first time in the Court is meaningless yet the trial Court held that identity in this case stands fully proved. I have gone through the reasons advanced by the learned trial Court and am of the considered view that trial Court has been swayed perhaps on moral considerations keeping in view the graveness of the allegations but while sitting in a Court of law, we have to go by legal evidence. The trial Court has held as follows :

"No doubt in view of the law laid down in Kanan and others v. State of Kerala, AIR 1979 SC 1127 and Mohan Lal Gangaram Gehani v. State Maharashtra, 1982 SCC (Crl.) 334 cited by the learned counsel for the accused that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his power of observations."

However, in the instant case, the facts are entirely different. The accused remained with the prosecutrix for almost whole of the night between 18/19.2.1996. H.S. Bhatia offered her eatable and thereafter the rape was committed by all the accused persons upon her turn by turn. The prosecution had ample time to prove the identity of the accused persons. If this was the position, the prosecutrix was in a position to identify the accused without any difficulty. Why the police did not arrange for the identification parade of the accused so that they could be identified in the presence of some Executive Magistrate or Judicial Magistrate by the prosecutrix ? The story of the prosecution indicates that accused were shown to her only on the date of her examination outside the court room. Accused were not even shown in the Police Station. In these circumstances, it was difficult to hold that identity of the accused persons stands proved. Thus it remains a doubtful affair. For the lapse of the investigation the benefit is to go to the present appellants.

The prosecutrix in this case has already been disbelieved to some extent when her allegation with regard to snatching of gold ornaments, cash, cloths has not been proved. She even does not narrate about the occurrence. She even wanted to conceal about her pregnancy from the Medical Officer. Upon such witness implicit reliance cannot be placed. No injury has been noticed on the body of the prosecutrix on the morning of 19.2.1996.

Thus from the above discussion, I conclude as follows :

That evidence of the lady complainant remains unproved. Bhim Sain is the person who can create the entire show by taking advantage of the wife of his brotherinlaw. Identification of the accused for the first time in the Court is no identity in the eyes of law and such an identification is meaningless and useless and does carry any evidentiary value.

Resultantly, I allow both the appeals. The judgment of the learned trial Court is set aside. The appellants are acquitted of the surviving charge. The fine if realised shall be refunded to them. All the five appellants are in custody. Let an intimation about the acceptance of these appeals be sent to Superintendent, Central Jail, Ambala so that appellants may be released forthwith if not wanted or arrested in any other case.

Appeals allowed.