LexUJJAGAR SINGH versus STATE OF PUNJAB
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UJJAGAR SINGH A v. STATE OF PUNJAB DECEMBER 13, 2007 B [S.B. SINHA AND HARJIT SINGH BEDI, JJ.] Penal Code, I 860: ss.376, 302-Rape and murder-Deceased, niece of appellant C staying with him after strained relations with in-laws-Found dead with gun shot injury-Appellant also with gun shot injury lying unconscious in ac,fjoining room-Trial Court relying on circumstances convicted appellant under s.302 and awarded death penalty and also convicted him under s.376 and sentenced to JO years R.1.-High Court D maintained convictions and sentences-Challenge against-Held: There were no injuries on person of deceased to indicate attempt or commission of rape though vaginal swabs and clothes taken from dead body indicated presence of semen-Hence even assuming that sexual intercourse between the two had taken place it cannot be said that it E was without consent or against wishes of deceased-Two spent cartridge recovered were fired from gun belonging to appellant- Appellant himself suffered only minor shot injury, which was fired from below going upwards, which showed that weapon had been fired by appellant from close range-Hence, story of unkt,awn assailants causing murder of deceased ruled out and prosecution story that it was F appellant who had first shot deceased and then attempted to commit suicide, stands proved-Case of rape not made out-Accordingly appellant acquitted of charge under s.376 but conviction for other offences maintained-Death sentence commuted to life-Evidence- Circumstantial evidence. G Prosecution case was that the deceased was niece of the appellant-accused. After strained relations with her in-laws, she came to stay with appellant in his house. On 10.11.2002, she was found 653 ·H 654 SUPREME COURT REPORTS [2007] 13 (Addl.) S ' A lying dead with a gun shot injury. The appellant also with a gun she. injury was lying unconscious on the ground in the adjoining room. Trial Court relying on the circumstances available convicted the appellant under s.302 IPC and awarded death penalty. In addition, B he was convicted under s.376 IPC and awarded 10 years rigorous imprisonment and one year simple imprisonment under s.309 IPC. High Court maintained the ccnYictions and sentences. Hence the present appeal. Dismissing the appeal, the Court c HELD: 1.1. It was found from the medical evidence and from the Chemical Examiner's reports that the vaginal swab and clothes taken from the dead body did indicate the presence of semen. However even presuming that sexual intercourse had indeed taken place, there is absolutely no evidence that it had been performed D without the consent of deceased or against her will. Some suspicions of rape could perhaps have been raised had some tell tale injuries been detected on the person of deceased but the two injuries other than the gun shot wounds do not indicate any attempt to rape or the commission ofrape. It is also significant that the investigators had E made no attempt whatsoever to have the appellant medically examined to ascertain his capacity to perform sexual intercourse. [Para 8] [662-D-F] 1.2. It was correct to say that an examination could not have F been carried out immediately but there is no justification in the omission of the prosecution to have him examined after he had recovered his health and been discharged from hospital. Even assuming for a moment that sexual intercourse between the two had indeed taken place it cannot be said from the evidence that it was G without the consent or against the wishes of deceased. Therefore, appellant's conviction under s.376 IPC cannot be sustained. [Para 8] (662-G, H; 663-A] 2.1. The fact that the alleged murder weapon is the licensed DBBL gun of appellant is proved on record. The evidence also H reveals that the appellant was living in the premises along with his ) UJJAGARSINGHv. STATE 655 wife, mother and son, and two daughters, who were studying outside A the village, were frequent visitors, but it is the admitted position that nobody but the appellant and the deceased were present atthe time of incident. It is also .clear from the evidence that the two spent cartridge cases recovered, one from near dead body, and the second from the right barrel of the.gun lying near the appellant had been B sent to the Forensic Science Laboratory which opined that one of the cartridges had been fired from the gun and the other could have been fired therefrom. [Pa
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