Punjab-Haryana High Court
Vijay Kumar vs State Of Punjab on 16 March, 2010
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Criminal Appeal No.1152-SB of 1999 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of Decision:- 16.3.2010
Vijay Kumar .....Appellant
Versus
State of Punjab .....Respondent
CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Argued by: S/Shri D.S.Pheruman & Surinder Thakur, Advocates for the
appellant.
Mr.Ajaib Singh, Additional Advocate General, Punjab,
for the respondent-State.
MEHINDER SINGH SULLAR, J.
Challenge in this appeal is to the impugned judgment of conviction and order of sentence dated 19.11.1999, vide which, appellant-convict Vijay Kumar (for brevity "the appellant") was convicted and sentenced by the trial Judge, to undergo rigorous imprisonment for a period of five years, to pay a fine of Rs.1000/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of three months, for the commission of offence punishable under Section 376 read with section 511 IPC and to undergo rigorous imprisonment for a period of six months, to pay a fine of Rs.500/- and in default of payment of fine, to undergo further rigorous imprisonment for one month, for the commission of offence punishable under section 342 IPC. However, both the sentences were ordered to run concurrently.
2. The matrix of the facts and evidence, unfolded during the trial, culminating in the commencement of, relevant for disposal of present appeal and emanating from the record, is that on 21.10.1996, PW2 (victim), a minor girl of 7 years, went out of her house to play in the street, but she did not return till 8 P.M. Her father PW3 complainant Ravinder Singh alongwith his wife PW6 Kuldip Kaur started searching for her. As soon as, they reached near the abandoned house of Kartar Chand, in the meantime, they heard the shrieks of their daughter. They went inside that house of Kartar Chand and noticed that their daughter was lying Criminal Appeal No.1152-SB of 1999 2 naked on the cot in a verandah and the appellant was also naked and was lying over her. On seeing them, the appellant lifted his trousers (pant) and fled away from there. On inquiry, the victim narrated the tale of woe to her parents that the appellant had lifted her from the street when she was playing and took her to the abandoned house of Kartar Chand. Then, he (appellant) removed his and her clothes, started doing something with her and she started crying. PW3 and PW6 witnessed the occurrence. In the wake of noise (raula), PWs Balwinder Singh and Kulwinder Singh also reached the spot and had seen the appellant running away from the place of occurrence. Thereafter, the matter was first reported to Sarpanch Kartar Chand at his residence and then to the police by PW3, vide his statement (Ex.PB). PW8 SI Shamsher Singh made his endorsement (Ex.PB/1) on it and sent the same to the police station, on the basis of which, the formal FIR (Ex.PB/2) was registered against the appellant under sections 376/511 and 342 IPC.
3. Levelling a variety of allegations in all, according to the prosecution, that on the night intervening 21/22.10.1996, the appellant wrongfully confined the victim- a minor girl of 7 years and attempted to commit rape on her. On the basis of aforesaid allegations and in the wake of statement (Ex.PB) of PW3, the present case was registered against him, vide FIR No.136 dated 22.10.1996 (Ex.PB/2), on accusation of having committed the offence punishable under Sections 376/511 and 342 IPC by the police of Police Station Dasuya, District Hoshiarpur, in the manner indicated here-in-above.
4. After the completion of the investigation, final police report/challan as envisaged under section 173 Cr.PC was submitted against the appellant, to face trial for the aforesaid offences. Since, the case was triable by the court of Session, so, it was committed for trial by the Sub Divisional Judicial Magistrate, vide his commitment order dated 24.1.1997. Consequently, he appeared before the Court of Session, in pursuance of commitment of the case.
5. Having completed all the codal formalities, the trial Judge framed the charges under Sections 342 and 376/511 IPC against the appellant, vide order dated 15.2.1997. As he did not plead guilty and claimed trial, therefore, the Criminal Appeal No.1152-SB of 1999 3 case was slated for evidence of the prosecution.
6. The prosecution, in order to substantiate the charges framed against the appellant, examined PW1 Surinder Kumar Draftsman, PW2 victim (name withheld by me), PW3 complainant Ravinder Singh, PW4 SI Ravinder Pal Singh, PW5 SI Gurbachan Singh, PW6 Kuldip Kaur, PW7 Constable Surjit Singh, PW8 SI Shamsher Singh and PW9 ASI Kashmir Singh in oral evidence, besides tendering into evidence certain documents and the same will be referred at the appropriate place in the subsequent part of the judgment in order to avoid the repetition.
7. After the close of the prosecution case, statement of the appellant was recorded. The entire incriminating evidence was put to enable him to explain any circumstances appearing against him in the prosecution evidence as contemplated under Section 313 Cr.P.C. He denied the prosecution evidence in its totality and pleaded false implication. The appellant set up the following defence plea:-
"I am innocent. I have been falsely implicated in this case. In fact on that day Kartar Chand Sarpanch and the complainant had attacked me and my brother and caused injuries to us. The matter was reported to the police after our medical examination at Civil Hospital, Dasuya. On the said date, later on at the behest of the Sarpanch and the complainant, a false case was registered against me late in the night by the complainant party after concocted false version."
8. The appellant, in order to substantiate his defence plea, examined DW1 Dr.R.K.Bagga, who has conducted the medico legal examination of the appellant on 22.10.1996 at 2.30 P.M. and found lacerated wound, reddish contusions, complaining of pain and superficial abrasions, vide MLR (Ex.DB). Similarly, DW3 Dr.Didar Singh examined Suresh Kumar and found one lacerated wound. He has stated that after receipt of x-ray report, fracture of skull was found and injury was declared grievous.
9. Similarly, DW2 Suresh Kumar, brother of the appellant, tried to create a defence that there were two parties of Akali Dal and Congress. They were supporters of Congress Party, while PW3 and Kartar Singh Sarpanch Criminal Appeal No.1152-SB of 1999 4 belonged to Akali Party. There was a party faction on this score in the village. According to DW2 that on 21.10.1996 at about 8/8.30 P.M., PW3 alongwith PWs Balwinder Singh, Dalwinder Singh, Kartar Singh Sarpanch, Parkash Kaur and wife of Ravinder Singh came to their house. They called them outside the house and started talking election for supporting the congress party and then they all started assaulting him and his brother Vijay Kumar and caused injuries to them. DW2 stated that Vijay Kumar accused did not molest the victim and the police only initiated the security proceedings against the complainant party. In cross- examination, DW2 has denied that on 21.10.1996, Vijay Kumar tried to rape the victim, on which, the people had collected there and locked Vijay Kumar accused in the house. Then, they informed the police or that he (DW2) broke open the lock of the house and took out Vijay Kumar, upon which, the villagers became furious and hurled brick bats on them. The appellant has also tendered the statement of Kuldip Kaur (Ex.DA), his MLR (Ex.DB), complaint under sections 323 IPC etc. (Ex.DC), copy of MLR of Suresh Kumar (Ex.DD) and supplementary injury report (Ex.DE) in documentary evidence.
10. The trial Judge, after taking into consideration the evidence on record, convicted and sentenced the appellant, as described here-in-above.
11. The appellant did not feel satisfied with the impugned judgment of conviction and order of sentence and filed the present appeal. That is how, I am seized of the matter.
12. Impugning the judgment of conviction, the learned counsel for the appellant has vehemently argued that the story of the prosecution is highly improbable and there is a delay in lodging the FIR. The argument further proceeds that there is no independent corroboration and the evidence brought on record by the prosecution falls short, discrepant and un-trustworthy. Thus, he prayed for acceptance of the appeal.
13. Hailing the impugned judgment of conviction, on the contrary, the learned State counsel has submitted that it stands proved on record by cogent and reliable evidence that the appellant attempted to rape a minor girl child of seven years and he committed a heinous crime. Hence, no interference is Criminal Appeal No.1152-SB of 1999 5 warranted, in this regard.
14. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable help and after considering the matter deeply, to my mind, it would be expedient to have a brief resume of the evidence on record, in order to decide the real controversy between the parties and points involved in this appeal.
15. First to note is the testimony of complainant PW3 Ravinder Singh, who is father of the victim and has stated in the following manner:-
"I have two daughters, namely vicim (name withheld by me) and Sarabjit Kaur. Victim (name withheld) is about 8 year of age. On 21.10.1996, vicim (name withheld) had gone to play and she did not return upto 8.00 P.M. I alongwith my wife started searching her. From the house of Kartar Singh, which is abandoned and is near our house, we heard the shrieks of victim (name withheld). We saw that victim (name withheld) was lying naked in the verandah on a cot. Vijay Kumar accused present in the court was lying over her. Vijay Kumar lifted his pant and after pushing me he ran away. Then I asked my daughter and she told that the accused had lifted her from the street when she was playing and had got her to the place of occurrence. Then the accused removed his clothes and then her clothes and then started something doing with her. Then she told that she started crying. Talwinder Singh and Balwinder Singh came on the scene of hearing our raula and they had seen the accused running away. Then the matter was reported to Kartar Chand Sarpanch at his residence. I then went to the police station and made my statement (Ex.PB) which was read over to me and I had signed the same after admitting it to be correct. My statement was recorded near the court premises opposite the bus stand. I had shown the place of occurrence to the police."
16. Sequelly, PW6 Kuldip Kaur, mother of the victim, inter-alia, deposed that when their daughter did not return to home then they reached near the house of Kartar Chand Sarpanch and they heard the shrieks of their daughter. They went inside the house and saw that the victim had been made to lie on the cot in a naked condition and the accused had bent upon her. After noticing them, the accused lifted his clothes and ran away. Instead of Criminal Appeal No.1152-SB of 1999 6 reproducing the statement of PW6 in toto and in order to avoid the repetition, suffice it to say that she has fully corroborated the statement of PW3, on all vital counts.
17. The trial Judge, before recording the statement of victim, put her general questions and after satisfying himself that she was a competent witness and may testify, recorded her statement as PW2, wherein, she has maintained that on the fateful day, she was playing in front of her house. Accused Vijay Kumar (present in Court) lifted her and took her to a house opposite to their house. First, he removed his clothes and then removed her clothes. After removing the clothes, he tried to do something with her. She started weeping and crying loudly. Her parents came there and the accused ran away from the place of occurrence. She narrated the whole incident to her parents.
18. PW1 prepared the scaled site plan (Ex.PA) of the place of occurrence on 19.12.1996, with its correct marginal notes. PW4 had verified the investigation and prepared the challan/final report on 6.11.1996, while PW5 formally arrested the accused and recorded the statements of Surjit Singh Constable and Surinder Kumar Draftsman. PW7 is the formal witness, who has only tendered into evidence his affidavit Ex.PC.
19. Statement of PW8 SI Shamsher Singh is to the effect that on 22.10.1996, the complainant came to him and made his statement (Ex.PB). He (PW8) made his endorsement (Ex.PB/1) on it and sent the same to the police station, on the basis of which, formal FIR (Ex.PB/2) was recorded against the appellant by PW9 ASI Kashmir Singh.
20. The last to note is the testimony of PW9 ASI Kashmir Singh, who has, inter-alia, claimed that on 22.10.1996, he inspected the spot and prepared the rough site plan (Ex.PD), recorded the statements of the witnesses and collected two pairs of chappals (Ex.P1 and Ex.P2) from the spot, one broken lock (Ex.P3), broken Kunda (Ex.P4) and two pieces of rods (Ex.P5 and Ex.P6) and took into possession, vide recovery memo (Ex.PE). After completion of the investigation, the challan was presented by PW4. This is the entire evidence brought on record by the parties.
Criminal Appeal No.1152-SB of 1999 7
21. At the very outset, the well settled/basic principles of law relating to sexual offences have to be kept in focus, while deciding such criminal case. Some of these are that the testimony of victim in cases of sexual offences is vital and the Court should find no difficulty to act on the testimony of a victim of sexual assault alone to convict the accused. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. The Court while appreciating the evidence of the victim may look for some assurance of her statement to satisfy its judicial conscience, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. She stands at a higher pedestal than an injured witness.
22. Equally, it is now well settled that in case of sexual offences, delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident, which concerns the reputation of the victim in particular and honour of her family in general. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. Sequelly, even if there is some delay in lodging FIR in such cases, if it is properly explained and the explanation is natural in the facts and circumstances of the case, such delay would not matter in any manner. Likewise, the negligence of the Investigating Officer could not affect the credibility of their evidence and failure or inefficiency on the part of the investigating agency cannot be a ground to discredit the testimonies of the victim and her family members as they have no control over the investigating agency.
23. Proceeding on these premises, the main argument of the learned counsel for the appellant that the story of the prosecution is highly improbable and the evidence brought on record by the prosecution is not sufficient to convict the appellant, is not only devoid of merit but mis-placed as well. As is evident from the evidence on record, the story of the prosecution is probable and most natural as projected by PW2, PW3 and PW6. The crux of the statements of Criminal Appeal No.1152-SB of 1999 8 these witnesses is that on 21.10.1996, the victim had gone out of her house to play in the street. She did not return to her house till 8 P.M. Then her parents (PW3 and PW6) started searching for her. As soon as, they reached near the abandoned house of Kartar Chand, in the meantime, they heard the screams of their daughter. They went towards the house of Kartar Chand and noticed that victim was lying naked on the cot and the appellant was lying on her after removing his clothes. There is no ambiguity whatsoever in their statements. Instead of again reproducing their statements in toto and in order to avoid the repetition, suffice it to say that PW2, PW3 and PW6 have corroborated the prosecution version, on all vital counts. They gave the consistent, cogent and vivid version of the prosecution story. They were cross-examined at length, but no substantial material could be elicited in the cross examinations to dislodge their testimony and to impeach their credibility. Their evidence is reliable, natural and trustworthy, which cannot possibly be doubted in any manner. Therefore, the contrary arguments of the learned counsel for the appellant have no force, in this relevant connection.
24. The mere fact that the prosecution did not examine PWs Balwinder Singh and Kulwinder Singh, alone is not sufficient to disbelieve the prosecution story, which is otherwise, proved by reliable ocular evidence. It is no body's case that PWs Balwinder Singh and Kulwinder Singh had witnessed the actual occurrence, but the case of the prosecution is that subsequently they reached the spot after hearing the noise and had seen the appellant, running away from the place of occurrence. It means, their evidence was not so material, as regards the actual occurrence is concerned. Moreover, the prosecution is not required to examine each and every witness of the occurrence, in view of section 134 of the Indian Evidence Act, 1872, which postulates that "no particular number of witnesses shall in any case be required for the proof of any fact."
25. The other feeble argument of the learned counsel for the appellant that there is a delay in lodging the FIR (Ex.PB/2), is again not tenable. The bare perusal of the record would reveal that in the instant case, the occurrence had taken place at about 8 P.M. on 21.10.1996. It has come in the statement of Criminal Appeal No.1152-SB of 1999 9 complainant PW3 that after the incident, the matter was reported to Kartar Chand Sarpanch at his residence. Thereafter, he went to police station and made his statement (Ex.PB). PW8 made his endorsement (Ex.PB/1) on it at 12.30 A.M. and on the basis of which, formal FIR (Ex.PB/2) was recorded (about midnight), vide DDR No.27 at 12.40 A.M. on 22.10.1996. The special report reached the Magistrate at 10.45 A.M. on the same day. Thus, it would be seen that PW3 first informed the Sarpanch of the village and then promptly reported the matter to the police at 12.30 A.M. on the night intervening 21/22.10.1996. Since the delay stood duly explained, so, the question of any delay did not arise at all, in this context.
26. The mere denial of the actual occurrence and plea of false implication on account of political party faction, outrightly deserves to be ignored for more than one reason. The defence plea as projected by DW2, brother of the appellant, does not inspire any confidence. DW2 has very vaguely stated that on 21.10.1996, PW3 and PWs Balwinder Singh, Dalwinder Singh, Kartar Singh Sarpanch, Parkash Kaur and wife of PW3 assaulted them and caused injuries on account of party faction and differences in ideology, but no implicit reliance can be placed on the solitary statement of DW2, who is none else but real brother of the appellant, in the absence of any cogent material on record, in this respect. No doubt, DW1 found lacerated wound, reddish contusions, complain of pain and superficial abrasions on the person of the appellant and DW3 found one lacerated wound in the frontal hair line of DW2, but it has come in the evidence that after the occurrence, many persons had collected there and DW2 tried to rescue his brother and to escape the legal consequences. It has come in the statement of PW6 that immediately after the occurrence, the accused fled away from the spot after pushing them and the accused was then locked from outside in his own house by the Sarpanch and other villagers. DW2 broke open the lock and took the accused from the house and after coming out, the accused abused the Sarpanch. When the villagers tried to capture him, then he and his brother, who were carrying iron rods, chappals, threw the same and even ran away from their own house. PW9 has taken into possession pairs of chappals Criminal Appeal No.1152-SB of 1999 10 (Ex.P1 and Ex.P2), broken lock (Ex.P3), broken kunda (Ex.P4) and two pieces of rods (Ex.P5 and Ex.P6), vide recovery memo (Ex.PE). Therefore, the possibility of subsequently receipt of injuries by the appellant and DW2 in that melee of escaping from their house, at the hands of the village gathering, cannot be ruled out. Be that as it may, subsequent defence story as projected by DW2 has got no direct bearing on the actual occurrence of attempt to commit rape emanating from the prosecution story, which is otherwise proved by reliable and cogent evidence, as discussed here-in-above.
27. Faced with this situation, learned counsel for the appellant has fairly acknowledged that he will not be in a position to base conviction of the appellant any more, in view of acceptable evidence on record, but he urged that assuming for the sake of argument, if the evidence of the prosecution is believed as such, even then, no offence under sections 376/511 IPC is not made out and in any case, the appellant can be held guilty only under section 354 IPC in this connection. In order to buttress the arguments, he has placed reliance on the judgments of Hon'ble Supreme Court in case Aman Kumar and Anr. v. State of Haryana JT 2004 (2) SC 274 and this Court in case Sarup Singh v. State of Punjab 2005 (4) RCR (Criminal) 327.
28. As per contra, learned State counsel submitted that the evidence on record shows not only that the intention to commit the rape was clear but the appellant has further attempted to commit the said offence. Therefore, the offence under section 376 read with section 511 IPC is complete.
29. Having regard to the rival contentions of the learned counsel for the parties, the evidence on record and after bestowal of thoughts over the entire matter, to my mind, neither this argument of learned counsel for the appellant is tenable nor the aforesaid judgments are at all applicable to the present controversy.
30. In Aman Kumar's case (supra), there was no material to show that the accused were determined to have sexual intercourse in all events. There were certain irreconcilable discrepancies with regard to actual commission of rape, which was at variance from what was recorded by the police during Criminal Appeal No.1152-SB of 1999 11 evidence.
31. Likewise, in Sarup Singh's case (supra), the prosecutrix had gone to answer the call of nature at a place meant for women folk, whereas her husband went at a place meant for men in the village. After being free, the prosecutrix started coming back towards her house. At that very moment, the accused caught hold of her from neck and also gagged her mouth. Thereupon she grappled with him and during scuffle, she sustained injuries on her right cheek and right leg. When the accused further attempted to assault, then she raised an alarm, which attracted her husband Ram Pal to the spot, but the accused escaped from the place of occurrence. On the peculiar facts and in the circumstances of those cases, it was held that only offence under section 354 IPC is made out.
32. Possibly, no one can dispute about the observations in the aforesaid judgments, but the same would not come to the rescue of the appellant. In the instant case, the bare perusal of the evidence as discussed here-in-above, would reveal, not only that the appellant first intended to commit the rape, lifted and took the victim to the abandoned house of Sarpanch Kartar Chand, he further removed her as well as his clothes. He made the victim lie on the cot in a naked condition. Thereafter, he lied naked over her. If the parents of the victim had not timely reached the spot and save the victim from the clutches of the appellant, then he would have completed and committed a more heinous crime of rape with her. Therefore, there is a positive reliable evidence on record that the appellant actually attempted to commit rape on the victim of minor girl of seven years. Thus, all the essential ingredients of section 511 IPC are complete. Hence, the contrary arguments of learned counsel for the appellant "stricto sensu" deserve to be and are hereby repelled, under the present set of circumstances.
33. Thus, it would be seen that if the fact of probable and natural prosecution story, production of reliable and trustworthy evidence brought on record by the prosecution and coupled with the totality of other facts and circumstances, emanating from the evidence on record, as discussed here-in- Criminal Appeal No.1152-SB of 1999 12 above are put together, then irresistible and inescapable conclusion is that it was the appellant, who committed the heinous crime in the manner as projected by the prosecution witnesses and the prosecution has duly established his guilt. The trial Court has rightly convicted and sentenced him, in the obtaining circumstances of the case. Keeping in view the heinous crime committed by the appellant on a victim child of seven years, to my mind, even there is no scope for reduction of sentence in this case, as urged by his counsel.
34. No other legal infirmity has been pointed out by the learned counsel for the appellant in the impugned judgment of conviction and order of sentence. Therefore, the same deserve to be maintained, in this relevant connection.
35. In the light of and for the reasons recorded here-in-above, the appeal is hereby dismissed and the impugned judgment of conviction and order of sentence are maintained.
36. Needless to say, that the compliance and procedural consequences will follow accordingly.
16.3.2010 (MEHINDER SINGH SULLAR)
AS JUDGE
Whether to be referred to reporter?Yes/No