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Rape by Police in Custody – absence of medical examination about the Rape is not fatal to the prosecution as they made efforts to get medically examined through petition, through complaint but the Doctors refused =the complainant and one Kamaljit Kaur, who were working as ‘dai’ and nurse respectively, and brought them to the Police Station. On the intervention of Maha Singh, President of the Para Medical Union, Kamaljit Kaur, was released, but the complainant was not released.- in the night of 09.02.1989, the appellants tortured her with patta, made her senseless and had intercourse with her and released her on the morning of 10.02.1989 on the intervention of the Panchayats of Villages Paili, Otal Majarh and Unaramour. when she was released on 10.02.1989, she was in a bad shape and she told them about the torture and sexual intercourse that was forced upon her by the appellants on the night of 09.02.1989. – The appellants in their statements under Section 313 Cr.P.C. before the trial court, on the other hand, took the defence that the complainant (PW-3) along with Kamaljit Kaur were actually released on 09.02.1989 at 6.00 p.m. = the trial court and the High Court have recorded the findings of rape committed by the appellants on PW-3 because of her consistent version in her petition dated 13.02.1989 (Ext.P3/A) to the Governor made within a few days of her release from Police Station on 09.02.1989, her complaint dated 25.07.1989 and her evidence in Court. PW- 1, PW-2 and PW-3 have deposed that an attempt was made for a medical examination in the Civil Hospital, Balachaur, and the hospital at Saroa but the doctors refused to conduct the medical examination on account of the pressure from the appellant-Radha Krishan, but DW-11 and DW-12, the doctors in the hospital, have denied that they had refused to conduct the medical examination. The result is that there is no medical evidence to support the allegation of rape made by PW-3 against the appellants. The High Court, however, has held that as PW-3 was not a young woman, medical examination was not significant and absence of medical examination may not be sufficient to disbelieve PW-3 if her story stands on its own. The High Court has found that she has consistently stated in her petition dated 13.02.1989 to the Governor of Punjab, in her complaint dated 25.07.1989 before the Magistrate and in her deposition in Court that she was detained in the night and raped by the appellants and both the trial court and the High Court have found that soon after she was released from the Police Station on 10.02.1989, she stated before her husband (PW-1) and the neighbour (PW-2) that she had been raped by the appellants and that she was bleeding profusely. The trial court and the High Court, therefore, have come to the finding of guilt of rape against the appellants relying on the evidence of PW-3 as corroborated by the evidence of PW-1, PW-2 under Section 157 of the Indian Evidence Act.= Thus, the trial court and the High Court have recorded concurrent findings of facts holding the appellants guilty of the offences under Sections 323/34, 504/34, 376(2)(a) and 376(2)(g) IPC and the appellant- Radha Krishan guilty of the offence under Section 342 IPC also. = It has been repeatedly held by this Court that even though the powers of this Court under Article 136 of the Constitution are very wide, in criminal appeals this Court does not interfere with the concurrent findings of facts, save in exceptional circumstances where there has been grave miscarriage of justice

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40523

Reportable

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 232 of 2007
Charanjit & Ors. ……
Appellants

Versus

State of Punjab & Anr. ….. Respondents

 

 

 

J U D G M E N T

A. K. PATNAIK, J.

This is an appeal by way of special leave under Article 136 of the
Constitution against the judgment of the Punjab & Haryana High Court in
Criminal Appeal Nos. 768-SB of 1997 & 769-SB of 1997 arising out of a
complaint case.
Facts of the case:

2. The facts very briefly are that on 09.02.1989 at about 5.00 a.m.
Shankar Dass, who was the Principal of D.A.V. Higher Secondary School,
Balachaur, was shot dead by terrorists and Ramesh Kumar, son of the
deceased Shankar Dass lodged FIR No. 13 on 09.02.1989 in Police Station,
Balachaur. Thirty two persons of village Paili filed a petition before the
SHO, Police Station, Balachaur, alleging that terrorists frequent the house
of the complainant in Village Paili. The appellants who were posted in
Police Station, Balachaur went to the house of the complainant and picked
up the complainant and one Kamaljit Kaur, who were working as ‘dai’ and
nurse respectively, and brought them to the Police Station. On 13.02.1989,
the complainant sent a petition to the Governor of Punjab by a registered
letter alleging that she along with Kamaljit Kaur were taken to the Police
Station on 09.02.1989 at 7.00 a.m. and were asked whether the extremists
were frequenting their house and when they replied in the negative they
were tortured at the Police Station. On the intervention of Maha Singh,
President of the Para Medical Union, Kamaljit Kaur, was released, but the
complainant was not released. The complainant further alleged in her
petition to the Governor of Punjab that in the night of 09.02.1989, the
appellants tortured her with patta, made her senseless and had intercourse
with her and released her on the morning of 10.02.1989 on the intervention
of the Panchayats of Villages Paili, Otal Majarh and Unaramour. Soon after
the release, the complainant disclosed to the members of Panchayat what had
happened to her in the night of 09.02.1989. In this petition to the
Governor of Punjab, the complainant made a request for an enquiry.

3. When no action was taken against the appellants, the complainant
filed a criminal complaint before the Chief Judicial Magistrate, Hoshiarpur
on 25.07.1989 making substantially the same allegations against the
appellants. The Magistrate recorded the preliminary evidence of the
complainant and took cognizance of the offences under Sections 323 and 504
read with Section 34 of the Indian Penal Code (for short ‘IPC’) and issued
summons to the appellants. The complainant then filed a petition under
Section 482 of the Criminal Procedure Code (for short “Cr.P.C.”) contending
that the appellants should be summoned for standing trial for the offences
under Sections 366/342/376/506 read with Section 34 IPC. The appellants
also filed a petition under Section 482 Cr.P.C. for quashing the complaint
as well as the order of the Magistrate summoning the appellants. Both
these petitions were disposed of by order dated 29.07.1991 with the
direction to the Magistrate to hold an enquiry in respect of the offences
described in the complaint. The complaint was thereafter transferred to
the court of the Chief Judicial Magistrate, Chandigarh, by the High Court.
Thereafter, the Magistrate took cognizance of offences under Sections
323/342/366/506 read with Section 34 IPC and summoned the appellants and
Hussan Lal. The case was committed to the Sessions Court and the
Additional Sessions Judge, Chandigarh, was entrusted with the case. The
Additional Sessions Judge initially framed charges under Sections
366/504/342 and 323 IPC to which the appellants pleaded not guilty, but
thereafter by order dated 16.02.1995 the High Court directed the Additional
Sessions Judge to reconsider the framing of charges against the appellants
in the light of the allegations made in the complaint and the preliminary
evidence recorded in respect of the complaint. The learned Additional
Sessions Judge reframed the charges under Section 376 (2) (g) IPC to which
the appellants pleaded not guilty and the appellants were tried.

4. At the trial, the complainant was examined as PW-3 and she reiterated
in the witness box her version in the complaint. The husband of the
complainant, Gurmail Singh, was examined as PW-1 and, the neighbour of
Gurmail Singh, Harbans Singh was examined as PW-2 and both PW-1 and PW-2
stated before the trial court that the complainant (PW-3) was not released
on the evening of 09.02.1989 and was released only at 4.30 p.m. on
10.02.1989 and when she was released on 10.02.1989, she was in a bad shape
and she told them about the torture and sexual intercourse that was forced
upon her by the appellants on the night of 09.02.1989. The appellants in
their statements under Section 313 Cr.P.C. before the trial court, on the
other hand, took the defence that the complainant (PW-3) along with
Kamaljit Kaur were actually released on 09.02.1989 at 6.00 p.m. and they
were handed over to the people of Panchayat to ensure that the complainant
would not do anything wrong in future and they denied that they had any
sexual intercourse with the complainant and also stated that she was not
detained in the evening or the night of 09.02.1989 at the Police Station as
alleged by her. In support of their defence, the appellants examined
witnesses and produced two documents Ex. DW-1A and Ex. DW-1B.

5. The trial court, however, rejected the defence of the appellants and
instead held that the testimony of PW-3 as corroborated by the evidence of
PW-1 and PW-2 who were present at the gathering immediately after the
release of PW-3 clearly establishes that PW-3 was released on 10.02.1989
and at the time of her release she was in a bad shape and in torn clothes
and was bleeding and that she had told her tale of sufferings before PW-1
and PW-2 by giving details of the incident of rape at the hands of the
appellants. The trial court accordingly convicted the appellants under
Sections 323/34, 504/34, 376(2)(a) and 376(2)(g) IPC and sentenced them to
rigorous imprisonment for various periods which were to run concurrently,
the maximum being 10 years for the offences under Sections 376(2)(a) and
376(2)(g) IPC. Aggrieved, the appellants, Charanjit and Kashmiri Lal filed
Criminal Appeal No. 768-SB of 1997 and Radha Krishan filed Criminal Appeal
No. 769-SB of 1997, but by the impugned common judgment, the High Court has
dismissed their appeals.
Contentions of the learned Counsel for the parties:

6. Mr. P. H. Parekh, learned counsel for the appellants, submitted that
the finding of the trial court as well as the High Court that PW-3 was not
released on 09.02.1989 at 6 p.m. and was detained in the Police Station on
the night of 09.02.1989 and raped by the police is not at all correct. He
submitted that this finding is based on the evidence of PW-3 but PW-3 ought
not to have been believed because she had close links with the terrorists
who had pressurized her to implicate the appellants falsely in the case and
therefore it was unsafe to rely on her evidence. In this connection, he
submitted that one of the terrorists Hazura Singh was a relative of PW-3
and PW-3 used to give shelter to him and this would be clear from the
letter dated 09.02.1989 of the villagers marked as Ex.DW1/B. He submitted
that PW-3 had herself given an earlier statement in an enquiry conducted by
the Superintendent of Police Mr. Harbhajan Singh Bajwa that she had made
the complaint against the appellants on someone’s instigation and she does
not want any action to be taken on her complaint.

7. Mr. Parekh next submitted that the trial court and the High Court
have held that the evidence of PW-3 has been corroborated by the evidence
of PW-1 and PW-2 who claimed to have gone to the Police Station on
10.02.1989 at 5.30 p.m. when PW-3 was released but in her petition dated
13.02.1989 to the Governor (Ex.PW-3/A) she has not mentioned that PW-1 and
PW-2 were present when she was released at the intervention of the
Panchayat of village Paili, Otal Majarh and Unaramour on 10.02.1989. He
submitted that the trial court and the High Court, therefore, should not
have relied on the corroboration of PW-1 and PW-2.

8. Mr. Parekh next submitted that the trial court and the High Court
ought to have considered the evidence led on behalf of the defence. He
referred to the evidence of DW-2 as well as Ex.DW1/A to submit that PW-3
was released on 09.02.1989 itself. He also referred to the evidence of DW-
10, who has stated that PW-3 had returned home on 09.02.1989 at about 9.00
p.m. He submitted that the case of the prosecution is that PW-3 went to
the civil hospital at Balachaur for her medical examination and thereafter
to the hospital at Saroa but the doctors of the two hospitals did not
conduct the medical examination to avoid a conflict with the police, and
therefore the appellants examined the doctors of the two hospitals DW-11
and DW-12, and both DW-11 and DW-12 have denied that PW-3 approached them
for her medical examination. Mr. Parekh vehemently submitted that there is
thus no medical evidence to support the allegation of rape and the trial
court and the High Court could not have held the appellants guilty of the
offence of rape.

9. Mr. Parekh submitted that the main reason why the trial court and the
High Court disbelieved the defence version was that the records of the
Police Station relating to the arrest of PW-3 were not produced by the
appellants before the Court. He submitted that in the present case there
was no arrest of PW-3 at all and she was picked up only for interrogation
and for this reason no records were maintained by the Police Station. He
vehemently argued that the prosecution has not been able to establish the
guilt of the appellants beyond reasonable doubt and hence they are entitled
to acquittal.

10. Learned counsel for the State Mr. Kuldip Singh submitted that it is
not believable that PW-1, husband of PW-3 did not accompany the Panchayat
to the Police Station for release of PW-3 on 10.02.1989. He submitted that
Ex. DW-1/A dated 09.02.1989 on which the appellants relied on for their
case that PW-3 was released on 09.02.1989 itself has not been signed by PW-
1, the husband of PW-3. He referred to the evidence of PW-3 to show how
she was tortured and raped by the appellants one after the other and
submitted that the evidence of PW-3 is believable. He submitted that PW-1,
the husband of PW-3 as well as PW-2, the neighbour of PW-1 who had
accompanied PW-1 to the Police Station on 10.02.1989, have also deposed
that soon after PW-3 was released from the Police Station she told them how
she was humiliated and raped by the appellants against her consent after
taking liquor. He submitted that the evidence of PW-3 as corroborated by
the evidence of PW-1 and PW-2 was sufficient for the trial court and the
High Court to hold the appellants guilty of the offences under Sections
323/34, 504/34 and 376 2(a) and 2(g), IPC and to hold the appellant Radha
Krishan guilty also of the offence under Section 342, IPC.
Findings of the Court
11. We have considered the contention of Mr. Parekh on behalf of the
appellants that PW-3 has sought to falsely implicate the appellants on
account of her close links with the terrorists and on account of the
pressure from the terrorists, but no evidence as such has been led on
behalf of the defence to show that PW-3 has implicated the appellants under
the influence of the terrorists. Mr. Parekh relied on Ext.DW-1/B dated
09.02.1989 said to have been signed by 32 villagers in which it is stated
that the villagers believe that terrorists were frequenting the house of PW-
3 and staying in her house and taking their meals and, therefore, PW-3
should be brought and interrogated about those terrorists, but Ext.DW-1/B
is no proof of the fact that PW-3 has made the allegations of rape against
the appellants on the pressure of the terrorists. We have also considered
the submission of Mr. Parekh that PW-3 had herself given a statement in the
inquiry conducted by the Superintendent of Police, Mr. Harbhajan Singh
Bajwa, that she had made the complaint against the appellants at someone’s
instigation and she does not want any action to be taken on her complaint.
This statement of PW-3 is not substantive evidence before the Court and at
best can be treated as a previous statement to contradict the substantive
evidence of PW-3 given in Court. Section 145 of the Indian Evidence Act
states that a witness may be cross-examined as to previous statements made
by him in writing or reduced into writing, and if it is intended to
contradict him by the writing, his attention must, before the writing can
be proved, be called to those parts of it which are to be used for the
purpose of contradicting him. In the cross-examination of PW-3, a question
was put whether S.P. Mr. Harbhajan Singh Bajwa conducted the inquiry and
recorded her statement and she has stated that he did conduct an inquiry
but she does not know what he had recorded. She has further stated that
her signatures were obtained on the statement but she knew only how to
write her name and cannot read or write Punjabi except appending her
signatures. In view of the aforesaid statement made by PW-3 in her cross-
examination, her statement recorded in the inquiry conducted by S.P. Mr.
Harbhajan Singh Bajwa cannot be used to contradict the evidence of PW-3
given in Court.

12. We have also considered the submission of Mr. Parekh that in the
petition dated 13.02.1989 to the Governor (Ex.PW-3/A), PW-3 had not
mentioned that PW-1 and PW-2 were present when she was released at the
intervention of the Panchayat of village Paili, Otal Majarh and Unaramour
on 10.02.1989. This statement of PW-3 in the petition dated 13.02.1989 is
not substantive evidence before the Court and can only be treated as a
previous statement to contradict the substantive evidence of PW-3 given in
Court by putting a question to PW-3 in course of her cross-examination
under Section 145 of the Indian Evidence Act. If such a question was put
in the cross-examination, PW-3 would have got an opportunity to explain why
she had not specifically stated in the petition dated 13.02.1989 to the
Governor (Ex.PW-3/A) that her husband (PW-1) and the neighbour (PW-2) were
also present when she was released at the intervention of the Panchayat of
village Paili, Otal Majarh and Unaramour on 10.02.1989. In absence of any
such question put to PW-3 in her cross-examination, the omission of the
names of PW-1 and PW-2 in the petition dated 13.02.1989 to the Governor
(Ex.PW-3/A) cannot be taken as contradictory to the evidence of PW-3.
Hence, the evidence of PW-3 as well as that of PW-1 and PW-2 that on
10.02.1982, PW-1 and PW-2 were present when PW-3 was released at 4.30 p.m.
could not have been disbelieved by the Court.

13. We have perused the depositions of PW-1, PW-2 and PW-3 and we find
that the depositions of these three witnesses support the findings of the
trial court and the High Court that PW-3 was not released at 6.00 p.m. on
09.02.1989 but 4.30 p.m. on 10.02.1989. As against the evidence of PW-1,
PW-2 and PW-3, the appellants examined DW-1, the Head Constable, who
produced the record of Police Station, Balachaur relating to FIR No.13
dated 09.02.1989 and he has stated that the investigation of the case was
conducted by the appellant-Radha Krishan, the then SHO of Police Station,
Balachaur, and PW-3 was interrogated by him and PW-3 was handed over to
Shanker Singh, Maha Singh, Dhanpat, Sarpanch of village Pillai and others
as per the document Ext.DW1/A dated 09.02.1989, but he has admitted in his
cross-examination that he has no personal knowledge of the investigation
and he did not know PW-3 and had just produced the record. The appellants
have also examined DW-2 and he has stated in his examination-in-chief that
he along with others who had been to the Police Station requested the
appellant-Radha Krishan to release the two ladies in case they were no
longer required for interrogation and the two ladies, PW-3 and Kamaljit
Kaur, were released at 6.00 p.m. on 09.02.1989 after getting a writing from
them (Ext.DW1/A) to the effect that they will produce them before the
police if need be at a future date. In cross-examination, however, DW-2
admitted that he did not know whether any entry was recorded at the Police
Station for calling the two ladies to the Police Station, Balachaur and
whether any entry was recorded regarding their release and he was also not
aware whether Ext.DW1/A was recorded in the Daily Diary Register of the
Police Station, Balachaur. Additional M.H.C. Harminder Singh of Police
Station, Balachaur was examined as DW-4 and he produced the FIR Register
containing the FIR No.13 dated 09.02.1989 of Police Station, Balachaur
under Section 302/34, IPC and others and has admitted that there was no
jimni specifically incorporating the facts of execution of Ext.DW1/A. The
Head Constable Gurdev Dass of Police Station, Balachaur was examined as DW-
9 and he has stated that he was posted in Police Station, Balachaur from
20.11.1988 to April, 1991 and his duty hours on 09.02.1989 and 10.02.1989
were from 8.00 p.m. to 8.00 a.m. and no lady by the name of PW-3 was
confined in the police lock up, but he has stated that he has not brought
any record of Police Station, Balachaur and he has made the statement from
his memory only. He has, however, admitted that entries were to be made in
Daily Diary Register kept in the Police Station as and when any police
official leaves the Police Station or returns to the Police Station and
similarly, if anybody other than police officials enters or departs from
the Police Station. Thus, except the document Ext.DW1/A, the relevant
records of Police Station, Balachaur such as the Daily Diary Register were
not produced to support the defence case that PW-3 was picked up for
interrogation on the morning of 09.02.1989 and was released at 6.00 p.m. on
09.02.1989 and for this reason both the trial court and the High Court
rejected the defence case and instead believed the evidence of PW-1, PW-2
and PW-3 that PW-3 was not released at 6.00 p.m. on 09.02.1989, but was
detained during the night of 09.02.1989 and was released only on the next
day in the evening on 10.02.1989.

14. The aforesaid discussion would show that the prosecution adduced
evidence through PW-1, PW-2 and PW-3 that PW-3 was not released from the
Police Station on 09.02.1989 at 6.00 p.m., but was actually released on
10.02.1989 at 4.30 p.m. This evidence could be discarded by the Court only
if reliable evidence was produced by the defence to establish that PW-3 was
actually released from the Police Station at 6.00 p.m. on 09.02.1989. The
most relevant evidence to establish this defence of the appellants would
have been the records of the Police Station. As has been provided in
Section 35 of the Indian Evidence Act, an entry in any public or other
official book, register or record or an electronic record, stating a fact
in issue or relevant fact, and made by a public servant in the discharge of
his official duty, is itself a relevant fact. The Punjab Police Rules
provides that Register No. II shall be maintained in the Police Station and
Rule 22.49 in Chapter 22 enumerates the matters to be entered in Register
No. II. These include the following matters in clauses (c) and (h) of Rule
22.49, which are extracted hereinbelow:

“(c) The hour of arrival and departure on duty at or from a
police station of all enrolled police officers of whatever rank,
whether posted at the police station or elsewhere, with a
statement of the nature of their duty. This entry shall be made
immediately on arrival or prior to the departure of the officer
concerned and shall be attested by the latter personally by
signature or seal.
Note. – The term Police Station will include all places such as
Police Lines and Police Posts where Register No. II is
maintained.”

 
“(h) All arrivals at, and dispatches from, the police station of
persons in custody, and all admissions to, and removals from,
the police station lock-ups, whether temporary or otherwise, the
exact hour being given in every case.”
That the aforesaid matters are required to be maintained in the Daily Diary
Register kept in the Police Station has been admitted by DW-9 in his
evidence. Thus, even if PW-3 was not arrested as contended by Mr. Parekh,
records were required to be maintained in Police Station, Balachaur with
regard to both the arrivals of the appellants and PW-3 and their departure
giving the exact hour of arrival and departure. Moreover, if Ex.DW1/A was
to be treated as a genuine document, records of Police Station, Balachaur,
containing relevant entries ought to have been produced by the appellants
to show that Ex.DW1/A was contemporaneously created on 09.02.1989. Since
the appellants did not produce the aforesaid records in their defence, the
trial court and the High Court acted within their powers to reject the
defence of the appellants and instead believe the evidence of PW-1, PW-2
and PW-3 that PW-3 was released only on 10.02.1989 at 4.30 p.m.

15. We further find that the trial court and the High Court have recorded
the findings of rape committed by the appellants on PW-3 because of her
consistent version in her petition dated 13.02.1989 (Ext.P3/A) to the
Governor made within a few days of her release from Police Station on
09.02.1989, her complaint dated 25.07.1989 and her evidence in Court. PW-
1, PW-2 and PW-3 have deposed that an attempt was made for a medical
examination in the Civil Hospital, Balachaur, and the hospital at Saroa but
the doctors refused to conduct the medical examination on account of the
pressure from the appellant-Radha Krishan, but DW-11 and DW-12, the doctors
in the hospital, have denied that they had refused to conduct the medical
examination. The result is that there is no medical evidence to support
the allegation of rape made by PW-3 against the appellants. The High
Court, however, has held that as PW-3 was not a young woman, medical
examination was not significant and absence of medical examination may not
be sufficient to disbelieve PW-3 if her story stands on its own. The High
Court has found that she has consistently stated in her petition dated
13.02.1989 to the Governor of Punjab, in her complaint dated 25.07.1989
before the Magistrate and in her deposition in Court that she was detained
in the night and raped by the appellants and both the trial court and the
High Court have found that soon after she was released from the Police
Station on 10.02.1989, she stated before her husband (PW-1) and the
neighbour (PW-2) that she had been raped by the appellants and that she
was bleeding profusely. The trial court and the High Court, therefore,
have come to the finding of guilt of rape against the appellants relying on
the evidence of PW-3 as corroborated by the evidence of PW-1, PW-2 under
Section 157 of the Indian Evidence Act.

16. Thus, the trial court and the High Court have recorded concurrent
findings of facts holding the appellants guilty of the offences under
Sections 323/34, 504/34, 376(2)(a) and 376(2)(g) IPC and the appellant-
Radha Krishan guilty of the offence under Section 342 IPC also. It has
been repeatedly held by this Court that even though the powers of this
Court under Article 136 of the Constitution are very wide, in criminal
appeals this Court does not interfere with the concurrent findings of
facts, save in exceptional circumstances where there has been grave
miscarriage of justice (Sri Sambhu Das and Another v. State of Assam
[(2010) 10 SCC 374]. As we have found that the concurrent findings of
facts recorded by the trial court and the High Court in this case are based
on legal evidence and there is no miscarriage of justice as such by the two
courts while arriving at said findings, we are not inclined to disturb the
impugned judgment of the High Court in exercise of our discretion under
Article 136 of the Constitution and we accordingly dismiss the appeal.
.……………………….J.
(A. K.
Patnaik)

 

………………………..J.
(Gyan Sudha
Misra)
New Delhi,
July 04, 2013.

 

 

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