Jaspal Singh alias Palla vs U.T. Chandigarh

Virender Singh, J.—Jaspal Singh alias Palla son of Amar Singh stands convicted under Sections 376, 392 and 506 of the Indian Penal Code by learned Additional Sessions Judge, Chandigarh, vide impugned judgment dated 11.7.1989 and sentenced vide order dated 12.7.1989 to undergo RI for 7 years and to pay a fine of Rs. 500/- and in default of payment of fine, to further undergo RI for three months u/s 376 IPC; to undergo RI for five years and to pay a fine of Rs. 250/- and in default of payment of fine, to further undergo RI for two months u/s 392 IPC and to undergo RI for six months u/s 506 of the Indian Penal Code, respectively. All the sentences are, however, ordered to run concurrently.

Along with the present appellant, one Shammi Kapur alias Shammi son of Darshan lal, was also booked by the prosecution but he stands acquitted by the learned trial Court. However, no appeal has been preferred against his acquittal by the Union Territory of Chandigarh.

Raj Pati, aged 19 years, is the prosecutrix in this case, who is the wife of Ram Sajiwan. She was living with her husband in village Kishangarh. A female child was also born out of this wedlock.

The case of the prosecution is that on 31.8.1988 at about 1.00 P.M. she had left her house for the maize field to ease herself and had left her daughter asleep in the house. When she was moving towards the field, she found Jaspal Singh alias Palla (appellant herein) and Shammi Kapur alias Shammi (since acquitted) were following her. It is the case of the prosecution that when Raj Pati sat down to ease herself, both the above-said persons reached there and she got up out of shyness and started moving ahead. She could doubt the intentions of both of them and, as such, she raised raula, upon which accused Shammi Kapur ran away from the field but Jaspal Singh, the present appellant, allegedly caught hold of Raj Pati and dragged her into the maize field. She was made to fall on the ground and sexual intercourse was committed upon her without her consent. It is then the case of the prosecutrix that she made all efforts to get herself freed, but could not succeed. After committing rape with Raj Pati, the appellant then slapped her and forcibly removed nose pin from her nostril, a pair of silver Jhumka and one pair of silver Paijeb from her feet and while leaving the place, he also threatened her not to talk about this incident to anybody, otherwise she would be done to death. It is further the case of the prosecutrix that she came back to her house, informed her landlord Joginder Singh and co-tenant Pritam Singh. They waited for her husband Ram Sajiwan to come back and when her husband did not turn up for some time, she accompanied Joginder Singh and Pritam Singh to Police Station, Manimajra and lodged the FIR with the police. Raj Pati was thereafter taken to General Hospital, Sector 16, Chandigarh, where she was medically examined and who also took the vaginal swab. The Petticot of Raj Pati was also sealed and handed over the police. On 4.9.1988, the appellant was allegedly arrested. He was also medically examined on the same day. On 7.9.1988, he was interrogated by the police and in pursuance of his disclosure statement, he got recovered one pairs of silver Jhumka and Paijeb from near the boundary wall of the hospital and the same were thereafter identified by Raj Pati.

After the committal proceedings, the appellant was charged under Sections 376, 392 and 506 read with Section 120-B of the Indian Penal Code by the trial Court.

The prosecution case mainly hinges on the statements of Dr. (Mrs.) Jagdeep Riar (PW5) who medico legally examined Raj Pati on 31.8.1988 at 7.00 P.M. Dr. Sat Parkash Sharma (PW2) medico legally examined the appellant, Raj Pati - the prosecutrix (PW4), two Investigating Officers namely, S.I. Balram and S.I. Sukhdev Singh (PW6) and (PW7) respectively. Certain formal witnesses were also examined but their evidence is not the subject-matter of discussion in this case.

The stand of the appellant was that he has been falsely implicated in this case at the instance of one Babu Lal with whom his brother Hari Singh and other family members were having long standing criminal and civil litigation over the property in Manimajra.

On a consideration of the entire evidence, the appellant has been convicted and sentenced as stated above. Aggrieved by the impugned judgment of conviction and sentence, he has preferred the present appeal.

I have heard Shri Vinod Ghai, learned counsel for the appellant and Shri R.K. Handa, learned Standing Counsel for Chandigarh Administration at length and with their assistance, have gone through the relevant evidence on the file.

To start with the contentions on behalf of the appellant, the first and foremost argument advanced by Mr. Ghai is that the identify of Jaspal Singh alias Palla appellant in this case is not proved. Developing his argument on this count, he has referred to the statement of Raj Pati, in which she has stated that she did not know the accused earlier; so much so, she did not even know their names also. The learned counsel has further read out the relevant portion of the statement of the prosecutrix in which she has stated that when she reached the police station along with Pritam Singh and Joginder Singh, both the accused had come there and they had disclosed their names and addresses to the police and the report was got recorded by her to the police before the arrival of both the accused. From this evidence, Mr. Ghai has vehemently contended that once it has come in the statement of the prosecutrix (Raj Pati) that she was not aware of the names of the appellants prior to the lodging of the report then how the name of the appellant as jaspal Singh alias Palla, has come in her initial statement which formed the basis for recording of the FIR. Mr. Ghai further contended that even if she has identified the appellant in the Court at the time of trial, the said identification for the first time in Court, would be valueless and the same cannot be legally read against the appellant. Thus, the identity of the appellant in the present case is not established by the prosecution at all for the purposes of connecting him with the commission of alleged offence and according to Mr. Ghai, he deserves acquittal on this score alone.

Picking up the thread, Mr. Ghai however, contended that the other story of recovery of the silver Jhumkas and Paijebs allegedly recovered form the appellant on 7.9.1988 in pursuance of his disclosure statement also fails on the ground for a very simple reason that the specific case of the prosecutrix is tat the appellant along with his co-accused Shammi Kapur, had reached the police station on 31.8.1988 itself, immediately after the recording of her statement. Once the appellant was present in the police station on 11.8.1988 itself, his formal arrest allegedly shown on 4.9.1988 and thereafter the recovery of the ornaments on 7.9.1988 in pursuance of the disclosure statement is nothing but a crude padding by the prosecution agency in order to connect the appellant with the commission of the alleged offence. Thus, according to Mr. Ghai, the prosecution has not been able to prove the charge u/s 392 of the Indian Penal Code as well.

So far as the offence u/s 506 of the Indian Penal Code is concerned, the argument advanced by the learned counsel for the appellant is that these are bald allegations and can be levelled very comfortably.

On the other hand, Mr. R.K. Handa, learned standing counsel for Chandigarh Administration, strenuously opposing the arguments advanced by Mr. Ghai, has submitted that the prosecution case against the appellant is proved on all the counts. Developing the argument, Mr. Handa contended that there is no reason to disbelieve the case of the prosecutrix because she has specifically named the appellant in this case and, as such, the appellant has no escape. It is then contended by Mr. Handa that so far as the recovery of the ornaments at the instance of the appellant is concerned, it is also proved beyond any shadow of doubt and the conviction as recorded by the trial Court is liable to be maintained.

I am in agreement with the contention raised by learned counsel for the appellant. Raj Pati prosecutrix was of the age of 19 years. The case of the prosecutrix is that after she was subjected to sexual intercourse forcibly by the appellant and her certain ornaments were removed by the appellant with a threat of not disclosing this fact to anybody, she came back to her house and disclosed as to what had happened with her to her landlord (Joginder Singh) and co-tenant (Pritam Singh). It is also her case that she thereafter went with them to the Police Station, Manimajra to lodge the report. Surprisingly, the prosecution has not produced Joginder Singh and Pritam Singh to support the case of the prosecutrix on this aspect. They were the best witnesses to depose as t what was stated to them by the prosecutrix immediately after the occurrence. Admittedly, her husband Ram Sajiwan had not accompanied her. She has also deposed in the cross-examination in so many words that she did not know the appellant or Shammi Kapur alias Shammi earlier to the occurrence. In so much so, she was not even aware of their names earlier and that when she reached the police station and gave statement to the police, the appellant Jaspal Singh alias Palla and Shammi Kapur alias Shammi (since acquitted) had come to the police station and then they disclosed their names and addresses to the police. For reference, the relevant portion of her statement is reproduced hereunder:

" Cross-examination:

.....xx...xx..xx.....x."I did not know their name earlier" .....x.....x.....About five minutes after our reaching the police station, both the accused came there and they disclosed their names and addresses t the police. My report had been written before the accused arrived....xx.....xx....xx...

The perusal of the above statement of the prosecutrix leaves no room for doubt to conclude that she was certainly not aware of the names of the appellant or his co-accused Shammi Kapur alias Shammi prior to the present occurrence. Who has disclosed these names to the police is a mystery, which the prosecution has not been able to solve? Withholding the evidence of Joginder Singh and Pritam Singh in this context, certainly assumes great importance and significance. Consequently, an adverse inference has to be drawn against the prosecution. No doubt, the conviction can be based on the solidary statement of the prosecutrix without any corroboration, provided it is trustworthy and inspires confidence. Once the identify of the appellant is shrouded under the clouds of doubt, the Court is left with no option, but to extent the benefit of doubt of him.

The so-called recovery of ornaments (i.e. Jhumkas and Paijebs), in my view, is also farce. The appellant, as per the statement of the prosecution, was very much present in the police station on the alleged day of occurrence, i.e. 31.8.1988. The arrest of the appellant is shown on 4.9.1988 whereas the recovery of the ornaments is shown on 7.9.1988 in pursuance of the disclosure statement. S.I. Sukhdev Singh (PW7) in order to cover the delay occurred in between 4th September, 1988 and 7th September, 1988, has very cleverly deposed before the trial Court that he could not interrogate the appellant before 7th September, 1988, although he (appellant) had made a disclosure statement on 5.9.1988 and as the recovery was not got effected by him in pursuance of the disclosure statement of that date, the same was not attached with the judicial file. This move has been done intentionally only for the reason that there is one disclosure statement only and the same is dated 7th September, 1988. For reference, relevant portion of the statement of SI Sukhdev Singh (PW7) is reproduced as under:

Cross-examination:

"Investigations of this case were entrusted to me at 3.00 p.m. on 31.8.1988. The accused Jaspal Singh could not be interrogated by me earlier than 7.9.1988. He has however, made a disclosure statement on 5.9.1988. Since the recovery was not got effected by him, that disclosure statement was not attached wit the judicial file.".....

Be that as it may, that fact remains and as is clear from the statement of Raj Pati prosecutrix that the appellant was in the police station on 31.8.1988 and, as such, it cannot possibly be believed that he was not taken into custody on the same day by the police. If it is true, ten the recovery in pursuance of the disclosure statement is nothing, but an outcome of crude padding by SI Sukhdev Singh (PW7) and has to be rejected in toto. Consequently, the charge u/s 392 of the Indian Penal Code against the appellant fails.

I also cannot refrain myself from commenting upon the statement of the prosecutrix in the light of the facts and circumstances of the present case and the same if tested on the touch stone of human probabilities, would not inspire any confidence at all. It would not appeal to the judicial conscious that after the appellant had committed sexual intercourse wit Raj Pati against her wishes, he would also go to the extent of removing forcibly the nose pin from her nostril, pair of silver Jhumkas and one pair of silver Paijebs from her feet and then while leaving the place, he would threaten her not to talk about the incident to anybody, otherwise she would be done to death. It smacks of untruthfulness on the part of the prosecutrix. No doubt, there are small abrasions on the left joint and some scratches are also there on the waist of the prosecutrix, but this fact by itself would not be an indication towards forcible sexual intercourse. During local examination of the prosecutrix, Dr. (Mrs.) Jagdeep Riar (PW5) noticed that there was no mark of violence on her abdomen, vulva or thigh etc. As per the FSL report, semen was found on the Pettikot Ex.P2 and no spermatozoa was found at the vaginal swab Ex.P1. Presence of semen on the Pettikot of the prosecutrix would not be a pointer towards the involvement of the present appellant. My view is strengthened by the observations of this Court rendered in Subhash Chander v. State of Haryana 1983 (1) R.C.R. 283. Otherwise also, the prosecutrix is a married woman staying with her husband. Possibility of her enjoying sexual relationship with her husband on prior night cannot be ruled out. I do not want to comment further as, in my view, the prosecutrix has rendered herself most unreliable.

In the totality of the facts and circumstances of the present case as detailed above, it can be safely concluded that the prosecution has miserably failed to bring home the guilt to the accused on any of the charges framed against the appellant. He, thus, deserves acquittal.

No other point has been urged before me.

Resultantly, the appeal succeeds and is allowed. The appellant stands acquitted of the charges framed against him. His substantive sentence already stands suspended by the order of this Court till the final disposal of the present appeal. He, therefore, now stands discharged of his bail bonds and surety bonds forthwith.