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Saturday, July 20, 2013

Rape by Police in Custody - absence of medical examination about the Rape is not fatal to the prosecution as they made efforts to get medically examined through petition, through complaint but the Doctors refused =the complainant and one Kamaljit Kaur, who were working as ‘dai’ and nurse respectively, and brought them to the Police Station. On the intervention of Maha Singh, President of the Para Medical Union, Kamaljit Kaur, was released, but the complainant was not released.- in the night of 09.02.1989, the appellants tortured her with patta, made her senseless and had intercourse with her and released her on the morning of 10.02.1989 on the intervention of the Panchayats of Villages Paili, Otal Majarh and Unaramour. when she was released on 10.02.1989, she was in a bad shape and she told them about the torture and sexual intercourse that was forced upon her by the appellants on the night of 09.02.1989. - The appellants in their statements under Section 313 Cr.P.C. before the trial court, on the other hand, took the defence that the complainant (PW-3) along with Kamaljit Kaur were actually released on 09.02.1989 at 6.00 p.m. = the trial court and the High Court have recorded the findings of rape committed by the appellants on PW-3 because of her consistent version in her petition dated 13.02.1989 (Ext.P3/A) to the Governor made within a few days of her release from Police Station on 09.02.1989, her complaint dated 25.07.1989 and her evidence in Court. PW- 1, PW-2 and PW-3 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 DW-11 and DW-12, 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 PW-3 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 PW-3 if her story stands on its own. The High Court has found that she has consistently stated in her petition dated 13.02.1989 to the Governor of Punjab, in her complaint dated 25.07.1989 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 10.02.1989, she stated before her husband (PW-1) and the neighbour (PW-2) 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 PW-3 as corroborated by the evidence of PW-1, PW-2 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

published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40523
Reportable

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL No. 232 of 2007


Charanjit & Ors.                                               ……
Appellants

                                   Versus

State of Punjab & Anr.                                   ….. Respondents







                               J U D G M E N T

A. K. PATNAIK, J.

      This is an appeal by way of special leave under  Article  136  of  the
Constitution against the judgment of the Punjab  &  Haryana  High  Court  in
Criminal Appeal Nos. 768-SB of 1997 &  769-SB  of  1997  arising  out  of  a
complaint case.


Facts of the case:

2.    The facts very briefly are that  on  09.02.1989  at  about  5.00  a.m.
Shankar Dass, who was the  Principal  of  D.A.V.  Higher  Secondary  School,
Balachaur, was shot  dead  by  terrorists  and  Ramesh  Kumar,  son  of  the
deceased Shankar Dass lodged FIR No. 13 on  09.02.1989  in  Police  Station,
Balachaur.
Thirty two persons of village Paili filed a petition before  the
SHO, Police Station, Balachaur, alleging that terrorists frequent the  house of the complainant in Village Paili.  
The  appellants  who  were  posted  in
Police Station, Balachaur went to the house of the  complainant  and  picked up the complainant and one Kamaljit Kaur, who  were  working  as  ‘dai’  and nurse respectively, and brought them to the Police Station.  
On  13.02.1989,
the complainant sent a petition to the Governor of Punjab  by  a  registered
letter alleging that she along with Kamaljit Kaur were taken to  the  Police
Station on 09.02.1989 at 7.00 a.m. and were  asked  whether  the  extremists
were frequenting their house and when they  replied  in  the  negative  they
were tortured at the Police Station.
On the  intervention  of  Maha  Singh,
President of the Para Medical Union, Kamaljit Kaur, was  released,  but  the complainant was not  released.   
The  complainant  further  alleged  in  her
petition to the Governor of Punjab that in  the  night  of  09.02.1989,  the appellants tortured her with patta, made her senseless and  had  intercourse with her and released her on the morning of 10.02.1989 on  the  intervention of the Panchayats of Villages Paili, Otal Majarh and Unaramour.
Soon  after
the release, the complainant disclosed to the members of Panchayat what  had happened to her in the  night  of  09.02.1989.  
 In  this  petition  to  the Governor of Punjab, the complainant made a request for an enquiry.

3.    When no action was  taken  against  the  appellants,  the  complainant
filed a criminal complaint before the Chief Judicial Magistrate,  Hoshiarpur
on  25.07.1989  making  substantially  the  same  allegations  against   the
appellants.  
The  Magistrate  recorded  the  preliminary  evidence  of  the
complainant and took cognizance of the offences under Sections 323  and  504
read with Section 34 of the Indian Penal Code (for short ‘IPC’)  and  issued
summons to the appellants.
The  complainant  then  filed  a  petition  under
Section 482 of the Criminal Procedure Code (for short “Cr.P.C.”)  contending
that the appellants should be summoned for standing trial for  the  offences
under Sections 366/342/376/506 read with Section  34  IPC.  
The  appellants
also filed a petition under Section 482 Cr.P.C. for quashing  the  complaint
as well as the order of  the  Magistrate  summoning  the  appellants.  
Both
these petitions  were  disposed  of  by  order  dated  29.07.1991  with  the
direction to the Magistrate to hold an enquiry in respect  of  the  offences
described in the complaint.
The complaint  was  thereafter  transferred  to
the court of the Chief Judicial Magistrate, Chandigarh, by the  High  Court.
Thereafter, the  Magistrate  took  cognizance  of  offences  under  Sections 323/342/366/506 read with Section 34 IPC and  summoned  the  appellants  and Hussan  Lal.   
The  case  was  committed  to  the  Sessions  Court  and  the
Additional Sessions Judge, Chandigarh, was entrusted  with  the  case.  
The
Additional  Sessions  Judge  initially   framed   charges   under   Sections
366/504/342 and 323 IPC to which the  appellants  pleaded  not  guilty,  but
thereafter by order dated 16.02.1995 the High Court directed the  Additional
Sessions Judge to reconsider the framing of charges against  the  appellants
in the light of the allegations made in the complaint  and  the  preliminary
evidence recorded in respect  of  the  complaint.  
The  learned  Additional
Sessions Judge reframed the charges under Section 376 (2) (g) IPC  to  which the appellants pleaded not guilty and the appellants were tried.

4.    At the trial, the complainant was examined as PW-3 and she  reiterated
in the witness box her  version  in  the  complaint.   The  husband  of  the
complainant, Gurmail Singh, was examined  as  PW-1  and,  the  neighbour  of
Gurmail Singh, Harbans Singh was examined as PW-2 and  both  PW-1  and  PW-2
stated before the trial court that the complainant (PW-3) was  not  released
on the evening  of  09.02.1989  and  was  released  only  at  4.30  p.m.  on
10.02.1989 and
when she was released on 10.02.1989, she was in a  bad  shape
and she told them about the torture and sexual intercourse that  was  forced upon her by the appellants on the night of 09.02.1989.  
The  appellants  in
their statements under Section 313 Cr.P.C. before the trial  court,  on  the other hand,  took  the  defence  that  the  complainant  (PW-3)  along  with Kamaljit Kaur were actually released on 09.02.1989 at  6.00  p.m.  and  they were handed over to the people of Panchayat to ensure that  the  complainant
would not do anything wrong in future and they  denied  that  they  had  any sexual intercourse with the complainant and also stated  that  she  was  not detained in the evening or the night of 09.02.1989 at the Police Station  as alleged by her. 
 In  support  of  their  defence,  the  appellants  examined
witnesses and produced two documents Ex. DW-1A and Ex. DW-1B.

5.    The trial court, however, rejected the defence of the  appellants  and
instead held that the testimony of PW-3 as corroborated by the  evidence  of
PW-1 and PW-2 who were  present  at  the  gathering  immediately  after  the
release of PW-3 clearly establishes that PW-3  was  released  on  10.02.1989
and at the time of her release she was in a bad shape and  in  torn  clothes
and was bleeding and that she had told her tale of  sufferings  before  PW-1
and PW-2 by giving details of the incident of  rape  at  the  hands  of  the
appellants.  The trial court  accordingly  convicted  the  appellants  under
Sections 323/34, 504/34, 376(2)(a) and 376(2)(g) IPC and sentenced  them  to
rigorous imprisonment for various periods which were  to  run  concurrently,
the maximum being 10 years for the offences  under  Sections  376(2)(a)  and
376(2)(g) IPC.  Aggrieved, the appellants, Charanjit and Kashmiri Lal  filed
Criminal Appeal No. 768-SB of 1997 and Radha Krishan filed  Criminal  Appeal
No. 769-SB of 1997, but by the impugned common judgment, the High Court  has
dismissed their appeals.
Contentions of the learned Counsel for the parties:

6.    Mr. P. H. Parekh, learned counsel for the appellants,  submitted  that
the finding of the trial court as well as the High Court that PW-3  was  not
released on 09.02.1989 at 6 p.m. and was detained in the Police  Station  on
the night of 09.02.1989 and raped by the police is not at all  correct.   He
submitted that this finding is based on the evidence of PW-3 but PW-3  ought
not to have been believed because she had close links  with  the  terrorists
who had pressurized her to implicate the appellants falsely in the case  and
therefore it was unsafe to rely on her evidence.   In  this  connection,  he
submitted that one of the terrorists Hazura Singh was  a  relative  of  PW-3
and PW-3 used to give shelter to him  and  this  would  be  clear  from  the
letter dated 09.02.1989 of the villagers marked as Ex.DW1/B.   He  submitted
that PW-3 had herself given an earlier statement in an enquiry conducted  by
the Superintendent of Police Mr. Harbhajan Singh Bajwa  that  she  had  made
the complaint against the appellants on someone’s instigation and  she  does
not want any action to be taken on her complaint.

7.    Mr. Parekh next submitted that the trial  court  and  the  High  Court
have held that the evidence of PW-3 has been corroborated  by  the  evidence
of PW-1 and PW-2  who  claimed  to  have  gone  to  the  Police  Station  on
10.02.1989 at 5.30 p.m. when PW-3 was released but  in  her  petition  dated
13.02.1989 to the Governor (Ex.PW-3/A) she has not mentioned that  PW-1  and
PW-2 were  present  when  she  was  released  at  the  intervention  of  the
Panchayat of village Paili, Otal Majarh and  Unaramour  on  10.02.1989.   He
submitted that the trial court and the High  Court,  therefore,  should  not
have relied on the corroboration of PW-1 and PW-2.

8.    Mr. Parekh next submitted that the trial  court  and  the  High  Court
ought to have considered the evidence led on  behalf  of  the  defence.   He
referred to the evidence of DW-2 as well as Ex.DW1/A  to  submit  that  PW-3
was released on 09.02.1989 itself.  He also referred to the evidence of  DW-
10, who has stated that PW-3 had returned home on 09.02.1989 at  about  9.00
p.m.  He submitted that the case of the prosecution is  that  PW-3  went  to
the civil hospital at Balachaur for her medical examination  and  thereafter
to the hospital at Saroa but the  doctors  of  the  two  hospitals  did  not
conduct the medical examination to avoid a conflict  with  the  police,  and
therefore the appellants examined the doctors of  the  two  hospitals  DW-11
and DW-12, and both DW-11 and DW-12 have denied that  PW-3  approached  them
for her medical examination.  Mr. Parekh vehemently submitted that there  is
thus no medical evidence to support the allegation of  rape  and  the  trial
court and the High Court could not have held the appellants  guilty  of  the
offence of rape.

9.    Mr. Parekh submitted that the main reason why the trial court and  the
High Court disbelieved the defence version  was  that  the  records  of  the
Police Station relating to the arrest of  PW-3  were  not  produced  by  the
appellants before the Court.  He submitted that in the  present  case  there
was no arrest of PW-3 at all and she was picked up  only  for  interrogation
and for this reason no records were maintained by the  Police  Station.   He
vehemently argued that the prosecution has not been able  to  establish  the
guilt of the appellants beyond reasonable doubt and hence they are  entitled
to acquittal.

10.   Learned counsel for the State Mr. Kuldip Singh submitted  that  it  is
not believable that PW-1, husband of PW-3 did not  accompany  the  Panchayat
to the Police Station for release of PW-3 on 10.02.1989.  He submitted  that
Ex. DW-1/A dated 09.02.1989 on which the  appellants  relied  on  for  their
case that PW-3 was released on 09.02.1989 itself has not been signed by  PW-
1, the husband of PW-3.  He referred to the evidence of  PW-3  to  show  how
she was tortured and raped  by  the  appellants  one  after  the  other  and
submitted that the evidence of PW-3 is believable.  He submitted that  PW-1,
the husband of PW-3  as  well  as  PW-2,  the  neighbour  of  PW-1  who  had
accompanied PW-1 to the Police Station  on  10.02.1989,  have  also  deposed
that soon after PW-3 was released from the Police Station she told them  how
she was humiliated and raped by the appellants  against  her  consent  after
taking liquor.  He submitted that the evidence of PW-3  as  corroborated  by
the evidence of PW-1 and PW-2 was sufficient for the  trial  court  and  the
High Court to hold the appellants guilty  of  the  offences  under  Sections
323/34, 504/34 and 376 2(a) and 2(g), IPC and to hold  the  appellant  Radha
Krishan guilty also of the offence under Section 342, IPC.


Findings of the Court
11.   We have considered the contention of  Mr.  Parekh  on  behalf  of  the
appellants that PW-3 has sought  to  falsely  implicate  the  appellants  on
account of her close links  with  the  terrorists  and  on  account  of  the
pressure from the terrorists, but no  evidence  as  such  has  been  led  on
behalf of the defence to show that PW-3 has implicated the appellants  under
the influence of the terrorists.  Mr.  Parekh  relied  on  Ext.DW-1/B  dated
09.02.1989 said to have been signed by 32 villagers in which  it  is  stated
that the villagers believe that terrorists were frequenting the house of PW-
3 and staying in her house and  taking  their  meals  and,  therefore,  PW-3
should be brought and interrogated about those  terrorists,  but  Ext.DW-1/B
is no proof of the fact that PW-3 has made the allegations of  rape  against
the appellants on the pressure of the terrorists.  We have  also  considered
the submission of Mr. Parekh that PW-3 had herself given a statement in  the
inquiry conducted by the  Superintendent  of  Police,  Mr.  Harbhajan  Singh
Bajwa, that she had made the complaint against the appellants  at  someone’s
instigation and she does not want any action to be taken on  her  complaint.
 This statement of PW-3 is not substantive evidence before the Court and  at
best can be treated as a previous statement to  contradict  the  substantive
evidence of PW-3 given in Court.  Section 145 of  the  Indian  Evidence  Act
states that a witness may be cross-examined as to previous  statements  made
by him in writing or  reduced  into  writing,  and  if  it  is  intended  to
contradict him by the writing, his attention must, before  the  writing  can
be proved, be called to those parts of it which  are  to  be  used  for  the
purpose of contradicting him.  In the cross-examination of PW-3, a  question
was put whether S.P. Mr. Harbhajan Singh Bajwa  conducted  the  inquiry  and
recorded her statement and she has stated that he  did  conduct  an  inquiry
but she does not know what he had recorded.  She  has  further  stated  that
her signatures were obtained on the statement  but  she  knew  only  how  to
write her name and  cannot  read  or  write  Punjabi  except  appending  her
signatures.  In view of the aforesaid statement made by PW-3 in  her  cross-
examination, her statement recorded in the inquiry  conducted  by  S.P.  Mr.
Harbhajan Singh Bajwa cannot be used to  contradict  the  evidence  of  PW-3
given in Court.

12.   We have also considered the submission  of  Mr.  Parekh  that  in  the
petition  dated  13.02.1989  to  the  Governor  (Ex.PW-3/A),  PW-3  had  not
mentioned that PW-1 and PW-2 were present  when  she  was  released  at  the
intervention of the Panchayat of village Paili, Otal  Majarh  and  Unaramour
on 10.02.1989.  This statement of PW-3 in the petition dated  13.02.1989  is
not substantive evidence before the Court and  can  only  be  treated  as  a
previous statement to contradict the substantive evidence of PW-3  given  in
Court by putting a question to  PW-3  in  course  of  her  cross-examination
under Section 145 of the Indian Evidence Act.  If such a  question  was  put
in the cross-examination, PW-3 would have got an opportunity to explain  why
she had not specifically stated in the  petition  dated  13.02.1989  to  the
Governor (Ex.PW-3/A) that her husband (PW-1) and the neighbour  (PW-2)  were
also present when she was released at the intervention of the  Panchayat  of
village Paili, Otal Majarh and Unaramour on 10.02.1989.  In absence  of  any
such question put to PW-3 in her  cross-examination,  the  omission  of  the
names of PW-1 and PW-2 in the petition  dated  13.02.1989  to  the  Governor
(Ex.PW-3/A) cannot be taken  as  contradictory  to  the  evidence  of  PW-3.
Hence, the evidence of PW-3 as well  as  that  of  PW-1  and  PW-2  that  on
10.02.1982, PW-1 and PW-2 were present when PW-3 was released at  4.30  p.m.
could not have been disbelieved by the Court.

13.    We have perused the depositions of PW-1, PW-2 and PW-3  and  we  find
that the depositions of these three witnesses support the  findings  of  the
trial court and the High Court that PW-3 was not released at  6.00  p.m.  on
09.02.1989 but 4.30 p.m. on 10.02.1989.  As against the  evidence  of  PW-1,
PW-2 and PW-3, the appellants  examined    DW-1,  the  Head  Constable,  who
produced the record of Police  Station,  Balachaur  relating  to  FIR  No.13
dated 09.02.1989 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.DW1/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,  PW-3  and  Kamaljit
Kaur, were released at 6.00 p.m. on 09.02.1989 after getting a writing  from
them (Ext.DW1/A) to the effect  that  they  will  produce  them  before  the
police if need be at a future date.   In  cross-examination,  however,  DW-2
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 Ext.DW1/A 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 DW-4 and he  produced  the  FIR  Register
containing the FIR No.13  dated  09.02.1989  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 Ext.DW1/A.    The
Head Constable Gurdev Dass of Police Station, Balachaur was examined as  DW-
9 and he has stated that he was posted in  Police  Station,  Balachaur  from
20.11.1988 to April, 1991 and his duty hours on  09.02.1989  and  10.02.1989
were from 8.00 p.m. to 8.00 a.m. and  no  lady  by  the  name  of  PW-3  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  Ext.DW1/A,  the  relevant
records of Police Station, Balachaur such as the Daily Diary  Register  were
not produced to support the  defence  case  that  PW-3  was  picked  up  for
interrogation on the morning of 09.02.1989 and was released at 6.00 p.m.  on
09.02.1989 and for this reason both the  trial  court  and  the  High  Court
rejected the defence case and instead believed the evidence  of  PW-1,  PW-2
and PW-3 that PW-3 was not released at 6.00  p.m.  on  09.02.1989,  but  was
detained during the night of 09.02.1989 and was released only  on  the  next
day in the evening on 10.02.1989.

14.   The aforesaid discussion  would  show  that  the  prosecution  adduced
evidence through PW-1, PW-2 and PW-3 that PW-3 was  not  released  from  the
Police Station on 09.02.1989 at 6.00 p.m.,  but  was  actually  released  on
10.02.1989 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 PW-3  was
actually released from the Police Station at 6.00 p.m. on  09.02.1989.   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. II. These include the following matters in clauses (c) and (h)  of  Rule
22.49, which are extracted hereinbelow:

           “(c) The hour of arrival and departure on  duty  at  or  from  a
           police station of all enrolled police officers of whatever rank,
           whether posted at  the  police  station  or  elsewhere,  with  a
           statement of the nature of their duty. This entry shall be  made
           immediately on arrival or prior to the departure of the  officer
           concerned and shall be attested  by  the  latter  personally  by
           signature or seal.


           Note. - The term Police Station will include all places such  as
           Police  Lines  and  Police  Posts  where  Register  No.  II   is
           maintained.”




           “(h) All arrivals at, and dispatches from, the police station of
           persons in custody, and all admissions to,  and  removals  from,
           the police station lock-ups, whether temporary or otherwise, the
           exact hour being given in every case.”


That the aforesaid matters are required to be maintained in the Daily  Diary
Register kept in the Police  Station  has  been  admitted  by  DW-9  in  his
evidence.  Thus, even if PW-3 was not arrested as contended by  Mr.  Parekh,
records were required to be maintained in  Police  Station,  Balachaur  with
regard to both the arrivals of the appellants and PW-3 and  their  departure
giving the exact hour of arrival and departure.  Moreover, if  Ex.DW1/A  was
to be treated as a genuine document, records of Police  Station,  Balachaur,
containing relevant entries ought to have been produced  by  the  appellants
to show that Ex.DW1/A was contemporaneously created  on  09.02.1989.   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  PW-1,  PW-2
and PW-3 that PW-3 was released only on 10.02.1989 at 4.30 p.m.

15.   We further find that the trial court and the High Court have  recorded the findings of rape committed by the appellants  on  PW-3  because  of  her consistent version in  her  petition  dated  13.02.1989  (Ext.P3/A)  to  the Governor made within a few days  of  her  release  from  Police  Station  on 09.02.1989, her complaint dated 25.07.1989 and her evidence in  Court.   

PW- 1, PW-2 and PW-3 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 DW-11 and DW-12, 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  PW-3  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 PW-3 if her story stands on its own.   
The  High
Court has found that she has  consistently  stated  in  her  petition  dated 13.02.1989 to the Governor of Punjab,  in  her  complaint  dated  25.07.1989 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  10.02.1989,  she  stated  before  her  husband  (PW-1)  and  the neighbour   (PW-2) 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 PW-3 as corroborated by the evidence  of  PW-1,  PW-2  under Section 157 of the Indian Evidence Act.

16.   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.


                                                               .……………………….J.
                                                               (A. K.
Patnaik)



                                                               ………………………..J.
                                                               (Gyan Sudha
Misra)
New Delhi,
July 04, 2013.


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