IMPORTANT POINT
Conviction based on conjectures and surmises cannot be sustained.

JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.

1. This appeal arises out of the judgment and order dated 17.07.2015 passed by the High Court of Punjab and Haryana at Chandigarh in CRA-S-1648-SB of 2011, whereby the High Court dismissed the appeal filed by the convicted accused, namely Jai Singh and Sham Singh.

Since the first accused – Jai Singh has undergone the sentence imposed upon him by the Courts below, he is stated to have been released. However, the accusedSham Singh, appellant herein, is serving the remainder of his sentence.

2. The case of the prosecution in brief is that on the night of 22.08.2001, the minor victim girl (PW7), who was staying in the house of her paternal uncle Om Prakash and Aunt Laxmi (PW10), stepped out of the house to urinate, then she was approached by the two accused, namely Jai Singh and Sham Singh. Both of the accused are brothers inter se. The accused and the victim are cousins. The accused forcibly took the victim into their house and tied her hands on a cot with rope and committed rape on her. The mother of the accused, having learnt about the incident, told the victim to forget about the incident and threatened to wipe out her family in case she disclosed about the incident to anybody. She further made the victim consume some liquid, which resulted in loss of consciousness of the victim. On the next day, at about 5:00 a.m., the milkman Mahavir (not examined by the Trial Court) informed the Aunt (PW10) of the victim about the victim lying unconscious in front of a neighbouring house.

3. Based on the aforesaid allegations, the first information came to be lodged, which was registered in City Police Station at Palwal, Faridabad District, Haryana in FIR No. 653 dated 25.08.2001. Investigation was made and charge sheet came to be filed in the Sessions Court, Faridabad. The Additional Sessions Court framed charges against both the accused, namely Jai Singh and Sham Singh, for the offences punishable under Sections 376 (2)(g), 342 and 506 of the Indian Penal Code, and against the mother of the accused, namely Memwati, under Sections 342 and 506 of the IPC.

4. The Additional Sessions Judge (Ad-hoc), Fast Track Court No.II, Faridabad, after appreciating the materials on record, acquitted the accused by its judgment and order dated 29.03.2003. Thereafter, the victim preferred an appeal before the High Court, which came to be allowed, and set aside the judgment of acquittal passed by the Trial Court. The High Court remitted the matter back to the Trial Court for fresh consideration. The Trial Court on re-consideration of the materials on record, convicted the accused by its judgment dated 4.6.2011. Against this conviction, the accused preferred appeal before the High Court, and the High Court while confirming the judgment of conviction against the accused Jai Singh and Sham Singh, has acquitted the accused mother – Memwati from the charges levelled against her. As mentioned supra, the accused Jai Singh has served out the sentence imposed upon him and hence this appeal is only by the accused – Sham Singh, who is still serving the remainder of his sentence.

5. Learned counsel for the appellant taking us to the materials on record contended that the High Court is not justified in assuming that the injuries sustained by the victim may have healed at the time of medico-legal examination and the FSL report (Annexure P13) states that semen was not found on the vaginal swab of the victim as well as on the salwar. That the accused were relatives of the prosecutrix, however there was an ill will between the two families and in view of the same, the accused persons are falsely implicated. The evidence of Aunt/ Laxmi (PW10) and Medical Officer, Dr. Rekha Singh (PW6) do not establish the offence of rape against the accused. The Courts below have ignored the fact that the accused could not have committed rape in his own house, particularly when the other family members were present in the house. It was also argued that the