STATE OF PUNJAB Vs. GURMITSINGH

JUDGEMENT

(1.) This appeal under Section 14 of the Terrorist Affected Areas (Special Courts) Act, 1984 is directed against the judgment and order of Additional Judge, Special Court, Ludhiana dated 1-6-1985 by which the respondents were acquitted of the charge of abduction and rape. For what follows, the judgment impugned in this appeal, presents a rather disquietening and a disturbing feature. It demonstrates lack of sensitivity on the part of the Court by casting unjustified stigmas on a prosecutrix aged below 16 years in a rape case, by overlooking human psychology and behavioural probabilities. An intrinsically wrong approach while appreciating the testimonial potency of the evidence of the prosecutrix has resulted in miscarriage of Justice. First a brief reference to the prosecution case.

(2.) During the course of investigation, the police took into possession a sealed parcel handed over by the lady doctor containing the salwar of the prosecutrix along with 5 slides of vaginal smears and one sealed phial containing pubic hair of the prosecutrix, vide memo Ex. PK. On the pointing out of the prosecutrix, the Investigating Officer prepared the rough site plan Ex. PF, of the place from where she had been abducted. The prosecutrix also led the Investigating Officer to the tubewell kotha of Ranjit Singh where she had been wrongfully confined and raped. The Investigating Officer prepared a rough site plan of the Kotha Ex. PM. A search was made for the accused on 2-4-1984 but they were not found. They were also not traceable on 3-4-1984, in spite of a raid being conducted at their houses by the ASI. On 5-4-1984 Jagjit Singh alias Bawa and Ranjit Singh were produced before the Investigating Officer by Gurbanchan Singh PW8 and were placed under arrest. Both Ranjit Singh and Jagjit Singh on the same day were produced before Dr. B. L. Bansal PW3 for medical examination. The doctor opined that both the accused were fit to perform sexual intercourse. Gurmit Singh respondent was arrested on 9-4-1984 by SI Malkiat Singh. He was also got medically examined on 9-4-1984 from Dr. B. L. Bansal PW3 who opined that Gurmit Singh was also fit to perform sexual intercourse. The sealed parcels containing the slides of vaginal smears, the pubic hair and the salwar of the prosecutrix, were sent to the chemical examiner. The report of the chemical examiner revealed that semen was found on the slides of vaginal smear though no spermatozoa was found either on the pubic hair or the salwar of the prosecutrix. On completion of the investigation, respondents were challaned and were charged for offences under Section 363, 366, 368, and 376 I. P. C

(3.) With a view to connect the respondents with the crime, the prosecution examined Dr. Sukhwinder Kaur. PW1 ; Prosecutrix,PW2; Dr. B. L. Bansal, PW3; Tirlok Singh, father of the prosecutrix, PW6 ; Gurdev Kaur, mother of the prosecutrix, PW7; Gurbachan Singh PW8; Malkit Singh, PW9 and SI Raghubir Chand PW10, besides, some formal witnesses like the draftsman etc, The prosecution tendered in evidence affidavits of some of the constables, whose evidence was of a formal nature as also the report of the chemical examiner, Ex. PM. In their statements recorded under Section 313 Cr. P. C. the respondents denied the prosecution allegations against them, Jagjit Singh respondent stated that it was a false case foisted on him on account of his enmity with the Sarpanch of village Pakhowal. He stated that he had married a Canadian girl in the village Gurdawara, which was not liked to by the sarpanch and therefore the sarpanch was hostile to him and had got him falsely implicated in this case. Gurmit Singh - respondent took the stand that he had been falsely implicated in the case on account of enmity between his father and Tirlok Singh, PW6, father of the prosecutrix. He stated that there was long standing litigation going on between his father and the father of the prosecutrix and their family members were not even on speaking terms with each other. He went on to add that on 1-4-1984 he was given beating by Tirlok Singh PW6 on grounds of suspicion that he might have instigated some persons to abduct his daughter and in retaliation he and his elder brother on the next day had given beating to Tirlok Singh, PW6 and also abused him and on that account Tirlok Singh PW6, in consultation with the police had got him falsely implicated in the case. Ranjit Singh respondent also alleged false implication but gave no reason for having been falsely implicated. Jagjit Singh alias Bawa produced DW- 1 Kuldip Singh and SW 2 MHC, Amarjit Singh in defence and tendered in evidence Ex. DC ,a photostat copy of his passport and Ex. DD copy of a certificate of his marriage with the Canadian girl. He also tendered into evidence photographs marked 'C' and 'D' evidencing his marriage with the Canadian Girl. The other two accused however did not lead any defence evidence.