Harvinder Singh @ Binder Singh vs State
2022 Latest Caselaw 9437 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 52/1990

Harvinder Singh @ Binder Singh

----Appellant Versus State

----Respondent Connected With S.B. Criminal Appeal No. 53/1990 Ikbal Singh And Anr.

----Appellant Versus State

----Respondent

For Appellant(s) : Mr. Nishant Bora, Amicus Curiae Mr. A.R. Godara For Respondent(s) : Mr. Sumer Singh Rajpurohit, P.P.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 11/07/2022 Pronounced on 20/07/2022

1. These Criminal Appeals under Section 374 Cr.P.C. has been

preferred claiming the following reliefs:-

In S.B. Criminal Appeal No. 52/1990:-

"It is, therefore, respectfully prayed that this Appeal may kindly be accepted and the accused appellant may be acquitted of all the charges levelled against him and he be set at liberty."

In S.B. Criminal Appeal No. 53/1990:-

"It is therefore respectfully prayed that the appeal of the appellants may kindly be allowed and the conviction and sentence passed against the appellants by the learned Sessions Judge Sri Ganganagar may kindly be set aside and they may be acquitted of the charge levelled against them any other appropriate order may kindly be passed in the faver of the appellants"

2. The matter pertains to an incident which occurred in the year

1989, and the criminal appeal has been pending since the year

1990.

(2 of 7) [CRLA-52/1990]

3. Mr. Nishant Bora, learned counsel, at the outset, submitted

that he has no instructions from his client (appellant herein), for

quite a long time. He however, submitted that if the Court deems

it appropriate, Amicus Curiae may be appointed in this case to

represent the appellant.

3.1 On such submission, the Court asked Mr. Bora himself to

appear and argue this case on behalf of the appellant, as Amicus

Curiae.

3.2 Accordingly, Mr. Nishant Bora, Advocate is appointed as

Amicus Curiae to argue the matter on behalf of the accused-

appellant under the free legal aid scheme. His remuneration shall

be paid by the Rajasthan State Legal Services Authority as per the

rules.

4. Learned Public Prosecutor furnished before this Court the

death certificate of appellant-Harvinder Singh (in CRLA

No.52/1990) and submitted that on count of the death of the said

appellant on 24.12.2021 (as per the death certificate), present

SBCRLA No.52/1990 filed by him stands abated. Learned

Public Prosecutor also submitted before this Court a report dated

10.07.2022, which however, indicates that appellant no. 1 Ikbal

Singh s/o Balvant Singh and appellant no. 2 Sukhdev Singh @

Sukha Singh s/o Gulab Singh - in S.B. Criminal Appeal No.

53/1990 - both are alive and therefore the said appeal filed by

them survives. The aforementioned report dated 10.07.2022 and

the above-mentioned death certificate issued by the competent

authority on 24.01.2022, are taken on record.

5. The Criminal Appeal No.53/1990 has been preferred against

the judgment dated 18.01.1990 passed by the learned Sessions

(3 of 7) [CRLA-52/1990]

Court, Sri Ganganagar whereby the accused-appellants were

convicted for the offences under Section 376 (2) (g) and Section

366 I.P.C.; for the offence under Section 376(2)(g) IPC, the

appellants were awarded a sentence of 10 years R.I. along with a

fine of Rs. 500/- each, in default of payment of which, each of

them to further undergo 6 months R.I. and; for the offence under

Section 366 IPC, they were ordered to undergo five years R.I.

each, alongwith a fine of Rs.500/- each, in default of payment of

which, each of them were to undergo further 6 months R.I.

6. Learned counsel for the appellants further submitted that the

learned trial court has erred in believing the testimony of the

prosecturix, as it is rife with contradictions; she stated that the

appellants forced themselves upon her, but there are no injuries

on her private parts or her body, nor was there any bleeding from

her private parts. And that it was further alleged that her husband

was present when the offence of rape was committed upon her,

but this has been denied by her husband P.W. 6, Sohanlal.

7. Learned counsel for the appellants further submitted that

P.W. 1 Dr. K.N. Markandya has deposed in his statements that a

definite finding cannot be given stating that the prosecutrix was

raped.

8. Learned counsel for the appellants also submitted that there

are no independent witnesses to corroborate the version of the

prosecution.

9. Learned counsel for the appellants further submitted that the

sole basis for the conviction of the appellants herein is the

testimony of the prosecutrix, which itself is called into question

due to the contradictions and discrepancies, and that therefore the

(4 of 7) [CRLA-52/1990]

appellants must be given the benefit of the doubt and acquitted

from all the charges levelled against them.

10. Learned counsel for the appellants also submitted that the

appellants have undergone about 6 months in custody out of the

total sentence awarded to them by the learned trial court.

11. Learned counsel for the appellants however, submitted that

the sentence so awarded to the present appellants, namely Ikbal

Singh and Sukhdev @ Sukha Singh was suspended by this Hon'ble

Court vide order dated 24.07.1990 in S.B. Criminal Misc. Bail

Application No. 65/1990.

12. On the other hand, learned Public Prosecutor opposed the

submissions made on behalf of the appellants and submitted that

the learned Court below has rightly passed the impugned

judgment, after looking into the overall facts and circumstances of

the case, and the evidences placed on record before it.

13. Heard learned counsel for the parties, and perused the

record of the case.

14. This Court observes that P.W. 6, Sohanlal - husband of the

prosecutrix- has not extended any substantial support,

whatsoever, to the version of the prosecution. And therefore, the

sole basis for the conviction of the accused is the testimony of the

prosecutrix.

15. This Court further observes that the deposition of the

prosecutrix, before the learned trial court, does not seem to be

believable, on count of the same being full of contradictions and

discrepancies.

16. This Court, arrives at such a conclusion, while making such

observations:

(5 of 7) [CRLA-52/1990]

16.1 It is an admitted position in the present case that the

prosecutrix and her husband were in the fields to cut grass, on the

day on which the incident in question occurred and that, owing to

ill health, the prosecutrix stayed back; while her husband

proceeded further, she remained there and laid down to rest.

16.2 The prosecutrix stated that she laid down in the field, which

at the time had a crop of narma which was about 4 feet in height,

amidst which she laid down.

16.3 The prosecutrix further stated that the accused herein

suddenly appeared and taking turns, gang raped her. After which,

her husband returned to the scene and then asked the accused

persons as to why had they had gang raped her. And that, he

subsequently left her there to call the other villagers.

16.4 However, a perusal of the testimony of the husband, P.W. 6

Sohanlal reveals that when he returned after cutting grass, to the

location at which he had left his wife, he could not find her.

16.5 Furthermore, the prosecutrix, in her testimony, also deposed

that she did not meet her husband until the next day of the

incident in question, and that he had then asked her where she

had been.

16.6 Additionally, the husband, when he lodged the F.I.R. against

the accused herein, did not make any mention of finding at the

spot, the broken bangles of his wife, whereas the same is stated

in his testimony.

16.7 The prosecutrix also stated that when the incident in

question occurred, and she was sexually assaulted, she was

threatened to stay silent, which is why she did not wail or make

(6 of 7) [CRLA-52/1990]

any noise, however, she also stated the exact opposite in her

testimony.

16.8 The aforementioned contradictory versions of the prosecutrix

and her husband also cast a serious doubt upon the case of the

prosecution and points towards false implication of the accused-

appellants in the present case.

16.9 There is also a delay of about 2 days in filing the F.I.R. the

explanation for which, as provided by the prosecutrix in her

testimony, does not seem probable.

16.10 Additionally, the testimony of P.W. 1 Dr. K.N. Markandya

reveals that an opinion could not be formed as whether the

offence of rape had been committed upon the prosecutrix, since

there were no injuries around the genital area of the prosecutrix

either. Also, there is no clinching medical evidence which points to

the culpability of the accused either, there is no evidence to

corroborate the version as put forth by the prosecutrix.

17. In light of the above made observations, this Court finds that

the impugned judgment of conviction and order of sentence

passed against the appellants herein deserves to be quashed and

set aside.

18. Resultantly, the appeal No.53/1990 preferred by the

appellants-Ikbal Singh and Sukhdeo Singh is allowed and

accordingly, the impugned judgment of conviction and order of

sentence passed by the learned trial court is quashed and set

aside; the said appellants are acquitted of all charges levelled

against them. They are on bail, in pursuance of the order passed

by this Hon'ble Court on 24.07.1990 in S.B. Criminal Misc. Bail

Application No. 65/1990, whereby the sentenced awarded to them

(7 of 7) [CRLA-52/1990]

was suspended. They need not surrender. Their bail bonds stand

discharged. However, appeal No.52/1990 preferred by

appellant-Harvinder Singh @ Binder Singh is dismissed, as

having abated, on count of his death. All pending applications

stand disposed of. Record of the learned below be sent back

forthwith.

(DR.PUSHPENDRA SINGH BHATI), J.

13-suraj/-

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