IMPORTANT POINT
Wrongful restraint and gang rape – Accused cannot be convicted where prosecution evidence is shaky on all counts.

JUDGMENT :

(Rajesh Bindal, J.)

1. The judgment dated February 10, 2010 passed by the High Court of Punjab & Haryana in Criminal Appeal No.386 of 1999 has been impugned in the present appeal. The appellants were convicted and sentenced under Section 342 and 376(2)(g) of the Indian Penal Code [hereinafter ‘IPC’]. The third accused, Gian Singh was acquitted by the trial court itself.

2. Briefly noticing, the facts of the case are that FIR No. 102 of 1996 was registered at Police Station Hariana, District Hoshiarpur, under Sections 366, 376, 342, 506 and 34 IPC ¹[Indian Penal Code, 1860], against the appellants i.e. Avtar Singh, Sohan Lal and the acquitted accused, Gian Singh by the complainant, prosecutrix herself i.e., XYZ [name withheld].

3. Briefly as stated by the prosecutrix in the complaint, on the basis whereof the FIR was registered, that on 22.07.1996 at about 08.30 PM she went to ease herself in the ‘Maize’ crop field close to her haveli. When she had just entered the ‘Maize’ crop field, appellant no. 1, Avtar Singh came there. He put his hand on her mouth and took her to the ‘Maize’ crop field. He made her sniff something. She became unconscious. When she regained consciousness, she found herself on the floor of a room. At that time, Avtar Singh was lying with her and her ‘Salwar’ had been removed. She was feeling pain in her vagina. When she tried to get up, she was threatened by Avtar Singh with a knife that if she raised alarm, she would be killed. Again, early in the morning also, Avtar Singh committed rape on her by showing her a knife. Next morning on 23.07.1996, at about 06.00 AM, Gian Singh, Panch of the village, came there and opened the room. (Pertinently, he was acquitted by the Trial Court). At that time, she came to know that the room in which she was detained, was part of the haveli of Gian Singh. Thereafter, Avtar Singh went out and bolted the door from the outside. After this, Gian Singh committed rape on her. The prosecutrix remained with Gian Singh throughout the day. In the evening, Avtar Singh and Sohan Lal came to the room and Gian Singh went away. During the night, both Avtar Singh and Sohan Lal committed rape on her, turn by turn. In the morning on 24.07.1996, Avtar Singh and Sohan Lal took the prosecutrix to the ‘Bajra’ field behind the haveli of Gian Singh and again committed rape on her, turn by turn, against her consent. She was detained in the Bajra field throughout the day. In the evening, when Avtar Singh and Sohal Lal were taking her to some other place, she ran away and reached her house. The prosecutrix narrated the entire incident to her mother in the evening on 24.07.1996.

4. The FIR was got registered on the next day i.e., 25.07.1996, against the accused persons by the prosecutrix who came along with her mother and uncle Basant Singh to the Police Station.

5. The prosecution examined 13 witnesses, which included the prosecutrix herself and her mother. All the other prosecution witnesses were officials. The defence examined 4 witnesses which included a former sarpanch and the sarpanch of the village at time when the alleged incident had taken place. Further, defence witnesses includes Adda in-charge of the Union where appellant no. 1 namely, Avtar Singh was employed & lastly, the document and handwriting expert.

6. The chargesheet was filed against Avtar Singh and Sohan Lal and Gian Singh was placed in column no. 2. Charges were framed against Avtar Singh, Sohan Lal and Gian Singh vide order dated January 08, 1997. On appreciating the evidence produced by the parties, vide judgment dated February 27, 1999, the trial court convicted Avtar Singh under Sections 366, 376(2)(g), 342, 506 IPC & Sohan Lal under Section 342 and 376(2)(g) IPC and sentenced them to undergone imprisonment for a period of 10 years, respectively, whereas the accused, Gian Singh was acquitted.

7. Ms. E.R. Sumathy, learned counsel for the appellant submitted that the story as projected by the prosecution, was not be