2013 Supreme(SC) 592

IN THE SUPREME COURT OF INDIA
A. K. Patnaik, Gyan Sudha Misra, JJ.
Charanjit & Ors. ……Appellants
Versus
State of Punjab & Anr. ….. Respondents
CRIMINAL APPEAL No. 232 of 2007
Decided on : July 04, 2013.

Headnote:Indian Penal Code, 1860—Sections 323/34, 504/34, 376(2)(a) and 376(2)(g) —Evidence Act, 1872—Sections 35 and 145—Gang rape in police custody—On 9.2.1989 at about 5 a.m., a Principal of a school was shot dead by terrorists—32 persons of that village filed a petition before the police alleging that terrorits frequent the house of the complainant—Appellants posted in that police station went to the house of complainant and picked up the complainant and a nurse and brought them to the police station on 9.2.1989 at 7 a.m. —On intervention of para Medical Union, nurse was released—Prosecution case that complainant was tortured and made senseless by appellants and then they had intercourse with her and released her on the morning of 10.2.1989

       Held: We have perused the de positions of PWl, PW 2 and PW3 and we find that the depositions of these three witnesses support the findings of the trial court and the High Court that PW3 was not released at 6.00 p.m. on 9.2.1989 but 4.30 p.m. on 10.2.1989. As against the evidence of PWl, PW2 and PW3, the appellants examined DW1, the Head Constable, who produced the record of Police Station, Balachaur relating to FIR No.13 dated 9.2.1989 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. OW1/ 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, PW3 and Kamaljit Kaur, were released at 6.00 p.m. on 9.2.1989 after getting a writing from them (Ex. DW1A) to the effect that they will produce them before the police if need be at a future date. In cross-examination, however, DW2 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 Ex. DW1A 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 DW4 and he produced the FIR Register containing the FIR No.13 dated 9.2.1989 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 Ex. DW1A. The Head Constable Gurdev Dass of Police Station, Balachaur was examined as DW9 and he has stated that he was posted in Police Station, Balachaur from 20.11.1988 to April, 1991 and his duty hours on 9.2.1989 and 10.2.1989 were from 8.00 p.m. to 8.00 a.m. and no lady by the name of PW3 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 Ex.DW1A, the relevant records of Police Station, Balachaur such as the Daily Diary Register were not produced to support the defence case that PW3 was picked up for interrogation on the morning of 9.2.1989 and was released at 6.00 p.m. on 9.2.1989 and for this reason both the trial court and the High Court rejected the defence case and instead believed the evidence of PWl, PW2 and PW3 that PW3 was not released at 6.00 p.m. on 9.2.1989, but was detained during the night of 9.2.1989 and was released only on the next day in the evening on 10.2.1989.

       The aforesaid discussion would show that the prosecution adduced evidence through PWl, PW2 and PW3 that PW3 was not released from the Police Station on 9.2.1989 at 6.00 p.m., but was actually released on 10.2.1989 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 PW3 was actually released from the Police Station at 6.00 p.m. on 9.2.1989. 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.11.

       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 PWl, PW2 and PW3 that PW3 was released only on 10.2.1989 at 4.30 p.m.

       We further find that the trial court and the High Court have recorded the findings of rape committed by the appellants on PW3 because of her consistent version in her petition dated 13.2.1989 (Ex.P3A) to the Governor made within a few days of her release from Police Station on 9.2.1989, her complaint dated 25.7.1989 and her evidence in Court. PW1, PW2 and PW3 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 DW11 and DW12, 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 PW3 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 PW3 if her story stands on its own. The High Court has found that she has consistently stated in her petition dated 13.2.1989 to the Governor of Punjab, in her complaint dated 25.7.1989 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 10.2.1989, she stated before her husband (PWl) and the neighbour (PW2) 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 PW3 as corroborated by the evidence of PWl, PW2 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 (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.

       Result: Appeal dismissed.