Punjab-Haryana High Court
Jasbir Singh & Anr vs State Of Punjab on 18 September, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRA No.1220-SB of 2003 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No.1220-SB of 2003
Date of Decision:-18.9.2013
Jasbir Singh & Anr. ...Appellants
Vs.
State of Punjab ...Respondent
CORAM:- HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.Sandeep Majithia, Advocate for the appellants.
Mr.K.S.Aulakh, AAG Punjab for the respondent-State.
Mehinder Singh Sullar, J. (Oral)
Tersely, the facts & evidence, unfolded during the course of trial, culminating in the commencement, relevant for deciding the instant appeal and emanating from the record, as claimed by the prosecution, are that the minor prosecutrix (name withheld) (PW1) aged about 13 years, was a poor labourer and belongs to scheduled caste. Appellant-convict Smt.Raj wife of Sheera alias Kashmir Singh (for brevity "the appellant") also belongs to scheduled caste and was residing in her neighbourhood. Initially, about 4/5 months prior to the present occurrence, she took the prosecutrix to the fields on the pretext of answering the call of nature. She falsely pretended her that she had some work in the Haveli of Kanty and they would just come back. Appellant-convict Jasbir Singh alias Neeku son of Pritam Singh was already present there. As soon as, the prosecutrix entered in the Haveli, in the meantime, he caught hold of her from his arms and forcibly took her inside the cattle's shed (room), whereas appellant Smt.Raj sat on the door. Appellant Jasbir Singh had Arvind Kumar Sharma 2013.09.24 12:51 I attest to the accuracy and integrity of this document Chandigarh CRA No.1220-SB of 2003 2 forcibly opened the string of her loose trousers (Salwar) and tried to rape her. She raised hue and cry, upon which, appellant Jasbir Singh threatened her not to raise noise, otherwise, she would be killed. Thereafter, he forcibly committed rape against her will and without her consent. The blood started striking/oozing out from her private part, which was cleaned by appellant Smt. Raj with a cloth. Both the appellants were stated to have threatened the prosecutrix with dire consequences in case she would disclose the incident to her parents and would not come there as per their dictate & desire. Consequently, the prosecutrix did not disclose the occurrence to her parents on account of fear and threat. According to prosecution, thereafter, whenever appellant Smt. Raj used to take her in the Haveli, then, appellant Jasbir Singh used to commit rape with her against her wishes.
2. The case of the prosecution further proceeds that on the fateful day (19.10.1999), when the prosecutrix was returning to her house after watching the festival of Dussehra, then, appellant Jasbir Singh caught hold of her from his arms and forcibly took her inside the cattle's shed (room) of Haveli. Some one reported the matter to her mother Kashmir Kaur (PW2), who also reached there. She started abusing Jasbir Singh, who was committing rape with her daughter after removing her loose trousers (Salwar). After seeing her mother, he slipped away from the place of occurrence. The prosecutrix became pregnant. The respectables of the locality tried to effect compromise between the parties, but in vain. Thereafter, the matter was reported to the police on 15.11.1999 in this regard.
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3. Leveling a variety of allegations and narrating the sequence of events, in all, the prosecution claimed that appellant Jasbir Singh had repeatedly committed the forcible rape with the prosecutrix against her wishes with the active connivance of appellant Smt.Raj. She became pregnant and was carrying pregnancy of 22 weeks. In the background of these allegations and in the wake of statement (Ex.PA) of the prosecutrix, the instant case was registered against the appellants, vide FIR No.348 dated 15.11.1999 (Ex.PA/2), on accusation of having committed the offences punishable u/ss 376, 506 and 120-B IPC by the police of Police Station Sadar, Amritsar in the manner depicted here-in-above.
4. After completion of the investigation, the final police report (challan) was submitted by the police against the appellants to face the trial for the indicated offences.
5. Having completed all the codal formalities, the appellants were charge-sheeted for the commission of offences punishable u/ss 120-B and 376 IPC. As they did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution by the trial Judge.
6. Sequelly, the prosecution, in order to substantiate the charges framed against the appellants, examined PW1 prosecutrix aged 13 years, who made the statement in the following terms:-
"I have got two brothers. I am illiterate. I am younger to my two brothers. I know accused Raj now present in the court. She resides at some distance from my house. Accused Raj used to take me outside for answering the calls of nature. I do not remember the time and date when she used to take me out. She used to get me raped by accused Jasbir Singh. He used to rape me in the cattle house of Canty. I identify accused Jasbir Singh present in the Arvind Kumar Sharma 2013.09.24 12:51 I attest to the accuracy and integrity of this document Chandigarh CRA No.1220-SB of 2003 4 court today. Both the accused took me to the cattles house of Canty. Accused Jasbir Singh committed rape upon me. Accused Raj used to sit on the door. Accused committed rape upon me against my consent. I raised alarm. Accused threatened to me to kill me. Blood started strickling from my private part. Accused Raj cleaned that blood. Accused threatened that if she disclosed these facts to her parents, she will be killed. It was Dushehara day when accused raped upon me. My mother is Kashmir Kaur. She also came to know about this fact. There was talk of compromise also. I became pregnant also, who was born dead. Police recorded my statement Ex.PA, which I thumb marked as a token of its correctness. I was also got medically examined."
7. Likewise, PW2 Kashmir Kaur, mother of prosecutrix, has inter-alia, stated that the prosecutrix was 13 years of age at the time of commission of offences. She is illiterate. On the eve of Dussehra festival, the prosecutrix along with other children was returning after watching the festival, but she did not reach the home. The children told her that prosecutrix was taken away by accused Jasbir Singh to the cattle's house of Kanty. Then, she reached there. She noticed him committing rape upon her daughter. On seeing her, he ran away from the place of occurrence. The Salwar of her daughter was also removed and she was weeping. She brought her to their house. Her husband also reached the house. She narrated the entire incident to him. She also told that appellant Smt.Raj used to take her (prosecutrix) for answering the call of nature and used to get her raped from accused Jasbir Singh. The matter was reported to the police, where the statement (Ex.PA) of prosecutrix was recorded and she thumb marked the same in token of its correctness. Her (PW2) statement was also recorded by the police. The prosecutrix was got medico legally examined. She became pregnant and gave birth to a child, who later on had died.
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8. Now adverting to the medical evidence, PW3 Dr.Sandeep Kakar, medico legally examined appellant Jasbir Singh on 30.11.1999 aged about 22 years and observed that secondary sex characters were present and fully developed. Auxiliary and pubic hair were also present Penis was 7.5 cms long and 3 cms. in diameter. The doctor opined that Jasbir Singh was fit to have sexual intercourse in natural course, vide his report (Ex.PB). PW4 Dr.Jaswinder Kaur has medico legally examined the prosecutrix, aged 13 years, by way of MLR (Ex.PC) and observed as under:-
"The patient was conscious, cooperative, well oriented in time, space and person. There was no fresh external injury mark present on the body of Kinder. Secondary characters were defined. Auxiliary and pubic hairs were present, breast was developed, aureola was dark brown in colour. On per abdomen examination-Fundal height was 22 weeks of pregnancy. She was advised USG for confirmation of pregnancy and gestational age. On perviginal examination hymen was torn, margins healed and not bleeding. Vaginal swabs were taken from (1) lower vagina (2) upper vagina and sent to Chemical Examiner, Patiala for confirmation of spermatozoa. Vagina admitted one finger. X-ray was advised for bone age confirmation."
9. She (PW4) found pregnancy of 22 weeks, as per report (Ex.PG) of Chemical Examiner and maintained that prosecutrix was definitely subjected to sexual intercourse. PW5 Dr.Amarjit Singh Gill, radiologically examined the prosecutrix on 20.11.1999 and opined her age between 15 and 17 years, by virtue of report (Ex.PD).
10. The last to note is the testimony of PW6 ASI Balbir Singh (Investigating Officer), who has recorded the statement (Ex.PA) of prosecutrix, which was read over and explained to her and she thumb marked the same in token of its correctness. He attested, made Arvind Kumar Sharma 2013.09.24 12:51 I attest to the accuracy and integrity of this document Chandigarh CRA No.1220-SB of 2003 6 endorsement (Ex.PA/1) and sent it to the police station for registration of the case, on the basis of which, the formal FIR (Ex.PA/2) was recorded by SI Sarbjit Singh. He identified his signatures. Then, he went to the place of occurrence along with the prosecutrix. He prepared the site plan (Ex.PF) of the spot with its correct marginal notes. He has also recorded the statements of Kashmir Kaur, Mukhtiar Singh and 3-4 other witnesses. The prosecutrix was got medico legally examined. Accused Jasbir Singh surrendered before the Magistrate on 27.11.1999 and he was formally arrested on 29.11.1999. He (PW6) also arrested appellant Smt.Raj. On his return to the police post, a sealed container having swab collected by the Medical Officer was handed over to the MHC. According to him, after completion of the investigation, the final police report (challan) was submitted in the Court against the appellants by SHO Rachhpal Singh. He has testified his entire investigation as well.
11. After the close of the prosecution evidence, the statements of the appellants were recorded. The entire incriminating material/evidence was put to enable them to explain any circumstance appearing against them therein, as contemplated under section 313 Cr.PC. However, appellant Jasbir Singh has denied the prosecution evidence in its entirety and pleaded false implication and averred that Dharmo, the President of the ladies of the village and friend of mother of prosecutrix (PW2) wanted to construct a marriage palace (Janj Ghar) in front of his (Jasbir Singh's) house. Since, he did not allow her to raise the construction of marriage palace, so, the appellants were falsely implicated by the prosecutrix at the instance of her mother and Dharmo.
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12. Similarly, the other appellant has also adopted the same line of defence. They, in order to prove their plea of defence, have examined DW1 Amrik Singh alias Kanti s/o Bakshish Singh, who has stated that his Haveli meant for cattle is situated at a distance of 50 yards from village Mustafabad Hawelia. Accused Jasbir Singh & Smt.Raj never took the prosecutrix in their Haveli at any time. Dharmo is President of ladies of village. She wanted to construct a marriage palace opposite the house of accused Jasbir Singh. They did not allow Dharmo to construct a marriage palace. The prosecutrix and her father are related to Dharmo. They have falsely implicated the appellants. This is the total oral as well as documentary evidence brought on record by the parties.
13. Taking into consideration the entire evidence on record, appellant Jasbir Singh was substantively convicted & sentenced to undergo rigorous imprisonment (for short "RI") for a period of seven years, to pay a fine of Rs.2000/- and in default thereof, to further undergo RI for a period of three months, for the commission of an offence punishable u/s 376 IPC. The appellants were further convicted & sentenced to undergo RI for a period of seven years, to pay a fine of Rs.1000/- each and in default thereof, to further undergo RI for a period of three months each u/s 120-B IPC. However, all the sentences were ordered to run concurrently, by means of impugned judgment of conviction and order of sentence dated 26.4.2003 by the trial Court of Addl. Sessions Judge.
14. Aggrieved thereby, the appellants have preferred the instant appeal. That is how I am seized of the matter.
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15. Assailing the impugned judgment of conviction & order of sentence, the learned counsel for appellants has contended with some amount of vehemence that the story of prosecution is highly improbable. There is a considerable delay of 27 days in reporting the matter to the police. The argument is that the self serving and contradictory statements of prosecutrix (PW1) and her mother Kashmir Kaur (PW2) are not sufficient to convict the appellants in the absence of any independent corroboration. The argument further proceeds that since the appellants were falsely implicated by the prosecutrix, so, the trial Court erred in convicting them. In support of his contention, he has placed reliance on the judgments of Hon'ble Apex Court in cases Rajesh Patel v. State of Jharkhand, 2013 (2) R.C.R. (Criminal) 346; State of Rajasthan v. Teja Singh and others, AIR 2001 Supreme Court 990 and of this Court in cases Angoor v. State of Haryana 2000 (1) R.C.R. (Criminal) 117 and Harphool Singh v. State of Punjab 2000 (1) R.C.R. (Criminal) 491.
16. Hailing the prosecution evidence, on the contrary, the learned State counsel has vehemently urged that the story of prosecution is very natural. The delay occurred on account of intervention of panchayat to amicably settle the matter in the village. As the prosecution has brought on record the sufficient oral and medical evidence against the appellants, therefore, no interference is warranted in this respect. He has also placed reliance on the judgments of Hon'ble Supreme Court in case Vishnu @ Undrya v. State of Maharashtra 2006 (1) R.C.R. (Criminal) 201 and of this Court in case Om Parkash v. State of Haryana and another 2013 (1) R.C.R. (Criminal) 137.
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17. At the very outset, possibly, no one can dispute with regard to the observations of Hon'ble Apex Court in Rajesh Patel, Teja Singh & others and of this Court in Angoor & Harphool Singh's cases (supra) that the delay in reporting the matter to the police should be explained, it was the duty of the prosecution to prove the age of the prosecutrix and if the rape was committed with consent the accused is liable to be acquitted. There can hardly be any dispute with regard to the aforesaid observations but, to me, the same are not at all applicable, as the facts of those cases were entirely different and would not come to the rescue of the appellants in the present case, having different scenario. Moreover, the principle of law in a previous criminal decision has to be considered in the background of factual scenario. In criminal cases, the question of precedent relating to the appreciation of evidence is indeed of no consequences. Every criminal case has to be decided keeping its real factual matrix, peculiar facts and special circumstances emitting from the evidence on record, into focus.
18. Having heard the learned counsel for the parties at length, having gone through the evidence on record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the present appeal in this context.
19. As indicated here-in-above, the prosecution claimed that initially, appellant Jasbir Singh had hatched a criminal conspiracy with appellant Smt.Raj. They enticed and allured the minor prosecutrix of 13 years of age. Appellant Smt.Raj used to take her to Haveli of Kanty, where appellant Jasbir Singh forcibly continued and repeatedly Arvind Kumar Sharma 2013.09.24 12:51 I attest to the accuracy and integrity of this document Chandigarh CRA No.1220-SB of 2003 10 committed the sexual intercourse against her will and consent. The appellants have also threatened her with dire consequences, in case she would disclose the incident to her parents and would not come there as per their dictate and desire. The prosecutrix did not disclose the occurrence to her parents on account of fear and threat. She became pregnant and was carrying pregnancy of 22 weeks. On 19.10.1999, on the eve of festival of Dussehra, appellant Jasbir Singh has again forcibly committed intercourse with her as well in the pointed manner. Then, some children have informed her mother Kashmir Kaur (PW2). She reached the place of occurrence and found appellant Jasbir Singh committing rape on her daughter after removing her loose trousers (Salwar). She was weeping. On seeing PW2, he fled away from the spot.
20. Such thus being the position of evidence on record and from very lengthy submissions of learned counsel for the parties, now the core controversies, which invite an immediate attention of this Court and arise for determination in this appeal is, as to whether the story of prosecution is improbable, statements of prosecutrix (PW1) and her mother (PW2) can be relied upon without any independent corroboration or not, whether the indicated delay in reporting the matter to the police remained unexplained or not and what is its effect on the prosecution version ?
21. The learned counsel has argued that the story of the prosecution is highly improbable, insofar as it is difficult to believe that appellant Jasbir Singh would continue committing sexual intercourse with the prosecutrix against her will for about 4/5 months prior to the present occurrence and that he would commit forcible rape on 19.10.1999 Arvind Kumar Sharma 2013.09.24 12:51 I attest to the accuracy and integrity of this document Chandigarh CRA No.1220-SB of 2003 11 on the eve of Dussehra festival as well without her consent. The next contention is that the prosecutrix in her cross-examination, has stated that her younger brother is 22/23 years of age and they are younger to each other by one year. Hence, she was major at that time. These submissions at the first instance appeared somewhat attractive, but when scrutinized in relation to the evidence on record, then, I cannot help observing that the same are not only devoid of merit but misplaced as well.
22. No doubt, the prosecutrix has very vaguely mentioned in her cross examination by guess, that the age of her younger brother is 22/23 years (on 4.9.2001 when her statement was recorded in the Court). This appears to be a general observation based on guess of minor illiterate 'Harijan' girl. This solitary line in cross examination would not entail any benefit to the appellants, particularly when her mother Kashmir Kaur (PW2) has duly explained that her marriage was solemnized at the age of 15/16 years. The first child was born after 2/3 years of the marriage and there was a gap of 2 years in the birth of her children. She has further reiterated that she had four children, one daughter had died and the prosecutrix is youngest amongst her three living children. Thus, calculated, in this manner, the age of the prosecutrix comes to be less than 16 years at the relevant time.
23. Possibly, no one can dispute that the trial Court has very vaguely observed that the prosecutrix was more than 16 years of age at the time of the occurrence. The main ground, which appears to have been weighed with the trial Court to determine the age of the prosecutrix, was the vague report of ossification test (Ex.PD). Here, the trial Court appears Arvind Kumar Sharma 2013.09.24 12:51 I attest to the accuracy and integrity of this document Chandigarh CRA No.1220-SB of 2003 12 to have slipped into a deep legal error in this respect, specially, when there is a positive evidence on record.
24. In this regard, the prosecutrix in her initial statement (Ex.PA), which formed the basis of FIR (Ex.PA/2), gave her age as 13 years and maintained that she is youngest to her brothers. She was medico legally examined on 16.11.1999 by PW4 Dr. Jaswinder Kaur, who has also mentioned her age as 13 years. It is also so depicted in MLR (Ex.PC). Not only that, her mother Kashmir Kaur (PW2) has also so deposed, on oath, that her daughter (prosecutrix) is youngest to her sons and was 13 years old at that time. Her one daughter had died. Her children are illiterate. That means, there was sufficient and acceptable evidence on record with regard to the age (minority) of the prosecutrix. Strange enough, the trial Court has just ignored their evidence with impunity and determined her age only on the basis of vague ossification test. Such report, invariably is not correct. There are always major variations in it. It has been observed by Hon'ble Supreme Court in case Vishnu @ Undrya's case (supra), that such medical evidence is of advisory in nature and the evidence of parents is best evidence to prove the age of the prosecutrix. The ossification test is not conclusive evidence and age mentioned in it cannot be accepted as a gospel truth, particularly when the pointed accepted evidence of her age is available on the record. Thus, no implicit reliance can be placed on such report (Ex.PD) of Ossification test, if other reliable evidence is otherwise available on record. In this manner, neither the unfounded reasons recorded by the trial Court nor the contrary contentions of learned counsel for the Arvind Kumar Sharma 2013.09.24 12:51 I attest to the accuracy and integrity of this document Chandigarh CRA No.1220-SB of 2003 13 appellants that the prosecutrix was more than 16 years of age at the relevant time, cannot legally be accepted, deserve to be and are hereby repelled. Consequently, completely disagreeing with the submissions of the learned counsel, the reasoning of the trial Court and having placed reliance on the indicated relevant evidence of PW1, PW2, PW4 and MLR (Ex.PC), it is hereby held that the prosecutrix was less than 16 years of age, at the time of occurrence. Once, it is so held, then the question of her consent of rape becomes wholly irrelevant and, otherwise, did not arise at all, under the present set of circumstances.
25. This is not the end of the matter. The prosecutrix is a labourer and poor Harijan minor girl of 13 years old. In her initial statement (Ex.PA), she has inter-alia specifically mentioned that as soon as, she entered in the Haveli, in the meantime, appellant Jasbir Singh forcibly took her in the cattle shed, whereas appellant Smt. Raj sat on the door to guard. When appellant Jasbir Singh started committing rape against her consent, then she raised noise. Thereafter, both the appellants have threatened her with dire consequences to eliminate and then appellant Jasbir Singh forcibly committed intercourse with her. Not only that, it has also specifically been mentioned that they have further threatened to kill her if she would disclose the matter to any body and did not follow their dictates. Appellant Jasbir Singh continued raping her and she did not disclose this fact to any body on account of fear and threat of elimination. The prosecutrix has also, inter-alia, so stated in her statement in the Court that the appellants had threatened her with dire consequences of elimination.
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26. Finally, on 19.10.1999, appellant Jasbir Singh again committed rape on her and he was caught red handed by her mother Kashmir Kaur (PW2). She brought the prosecutrix to her house, where she narrated the entire tale of woe to her mother regarding the repeated commission of rape by appellant Jasbir Singh with the active connivance of appellant Smt.Raj. Meaning thereby, the conduct of prosecutrix was very natural and probable. In that eventuality, it cannot possibly be saith that the prosecutrix was a consenting party to the heinous crime in question, as contrary urged on behalf of the appellants.
27. Now adverting to the question of delay in lodging the FIR, it cannot possibly be disputed, as termed by the prosecution, here is that appellant Jasbir Singh continued and forcibly committed the rape with the prosecutrix for the last 4/5 months prior to the present occurrence. The definite case of prosecution is that on 19.10.1999 on the eve of festival of Dussehra, he again committed forcible rape in the manner narrated here-in-above. It has been specifically mentioned in the initial statement (Ex.PA) and it is also so stated by the prosecutrix (PW1) and her mother (PW2) in the Court that there was a talk of compromise, which failed. Thereafter, she made her statement (Ex.PA) on 15.11.1999, which formed the basis of FIR (Ex.PA/2). In this manner, no doubt, there is a delay of 27 days in reporting the matter to the police, but it was duly explained by the prosecution. The reasons to explain the delay put forth by the prosecution are natural, probable and have got no adverse affect on its version, which is otherwise proved by the pointed cogent evidence.
28. Moreover, in sexual offences, such delay in lodging of the Arvind Kumar Sharma 2013.09.24 12:51 I attest to the accuracy and integrity of this document Chandigarh CRA No.1220-SB of 2003 15 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 honour of the family in general and reputation of the prosecutrix in particular. In that eventuality, only either God or the prosecutrix or her parents could know about the initial tension, traumatic pain, suffering, confusion and lot of grief suffered by them in this regard. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged by the victim. In the instant case, it is proved on record that appellant Jasbir Singh had been repeatedly committing the forcible rape with the prosecutrix for the last about 4/5 months prior to the present occurrence. As soon as, PW2 mother of prosecutrix, came to know about the repeated rape and negotiations for amicable settlement finally failed, then, the matter was promptly reported to the police. Such versions are natural, probable and believable in such cases of forcible rape, in view of the observations of this Court in case Akhtar v. State of Haryana 2002(2) RCR (Criminal) 91.
29. An identical question came to be decided by Hon'ble Apex Court in case State of Himachal Pradesh v. Gian Chand 2001(2) RCR (Criminal) 666, wherein, it was ruled as under (para 12):-
"Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, Arvind Kumar Sharma 2013.09.24 12:51 I attest to the accuracy and integrity of this document Chandigarh CRA No.1220-SB of 2003 16 the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case. In the present case, PW1 - the mother of the prosecutrix is a widow. The accused is a close relation of brother of husband of PW1. PW1 obviously needed her family members consisting of her in-laws to accompany her or at least help her in lodging the first information report at the police station. The incident having occurred in a village, the approach of the in-laws of PW1 displayed rusticity in first calling upon the father of the accused and complaining to him of what his son had done. It remained an unpleasant family affair on the next day of the incident which was tried to be settled, if it could be, within the walls of family. That failed. It is thereafter only that the complainant, the widow woman, left all by herself and having no male family member willing to accompany her, proceeded alone to police station. She has lent moral support by Ruldu Ram, the village Panch, whereupon the report of the incident was lodged. The sequence of events soon following the crime and as described by the prosecution witnesses sounds quite natural and provides a satisfactory explanation for the delay. It was found to be so by the learned Sessions Judge. The High Court has not looked into the explanation offered and very superficially recorded a finding of the delay having remained "unexplained" and hence fatal to the prosecution case. It is common knowledge and also judicially noted fact that incidents like rape, more so when the perpetrator of the crime happens to be a member of the family or related therewith, involve the house of the family and therefore, there is a reluctance on the part of the family of the victim to report the matter to the police and carry the same to the court. A cool thought may precede lodging of the FIR. Such are the observations found to have been made by this Court in State of Punjab v. Gurmit Singh and others., 1996 (2) SCC 384 and also in the case of Harpal Singh 1981 SCC Crl. 208. We are satisfied that the delay in making the FIR has been satisfactorily explained and, therefore, does not cause any dent in the prosecution case."
30. Sequelly, a Division Bench of this Court in Om Parkash's case (supra) has held that if the prosecutrix discloses the fact of rape to her mother after 5/6 months when she became pregnant and the FIR was lodged, then, the delay of 5/6 months in reporting the matter was held to be natural. Therefore, the ratio of law laid down in the aforesaid judgments "mutatis mutandis" is applicable to the facts of this case and is Arvind Kumar Sharma 2013.09.24 12:51 I attest to the accuracy and integrity of this document Chandigarh CRA No.1220-SB of 2003 17 the complete answer to the problem in hand. Hence, it is held that in the present case, the delay in lodging of the FIR with the police is duly and reasonably explained. The projected delay pales into insignificance and has no adverse affect on the prosecution version.
31. Faced with the situation, the learned counsel for appellants has pointed out certain discrepancies in the statements of PW1 and PW2, such as (i) according to them, the police recorded their statements on 19.10.1999, whereas PW6 ASI Balbir Singh has admitted in his cross- examination that their statements were recorded on 15.11.1999 for the first time, (ii) the fact of pregnancy of the prosecution was earlier known to her mother and she took her to doctor, whereas according to PW2, her daughter narrated the entire incident to her on 19.10.1999 and (iii) PW2 neither disclosed the names of children (informants), who had informed her about the commission of rape by appellant Jasbir Singh on the fateful day nor were examined as witnesses by the prosecution. Inviting the attention of the Court towards these discrepancies in the statements of PW1 and PW2, learned counsel for appellants, sought to blow the matter out of proportion & urged that no implicit reliance can be placed on their evidence. This argument again, sans merit as well. Such discrepancies are bound to occur even in the statements of truthful witnesses after a lapse of such time. The evidence on record would reveal that an attempt was made by PW1 and PW2 to report the matter on the same very day, but the police did not record their statements, perhaps for the reasons and hope of amicable settlement between the parties within four walls of their houses. It did not take any prompt action against the guilty in such a Arvind Kumar Sharma 2013.09.24 12:51 I attest to the accuracy and integrity of this document Chandigarh CRA No.1220-SB of 2003 18 cognizable case and heinous crime of rape. It was a pathetic situation for the prosecutrix and the role of the police is not only suspicious, but appears to help the accused. The investigating officer has neither cared to ascertain the correct age nor collected her birth certificate from the hospital/office of Sub-Registrar. The investigation appears to be tainted and the prosecutrix cannot possibly be blamed in this relevant connection.
32. As soon as, the chances of compromise finally failed, then, the prosecutrix promptly reported the matter and made her statement (Ex.PA) to the police on 15.11.1999, which formed the basis of FIR (Ex.PA/2). In the same sequence, the mere fact that the pregnancy of prosecutrix was earlier known to her mother and still, she did not report the matter to the police, is devoid of merit as well. Perhaps, no one can lose sight of the fact that the prosecutrix was minor illiterate labourer and belongs to the scheduled caste community. In such traditional families and non-permissive bounds of society of India, either the victim or her parents are reluctant to disclose such facts to any person and even to report the matter to the police, in order to save the reputation of the family in general and honour of the prosecutrix in particular. Similarly, it was also not at all necessary for PW2 to mention the particular names of children (informants), who had informed her about the commission of rape, as contrary urged on behalf of the appellants.
33. Above all, the individual observations of different persons of the same fact, vary from person to person. Every person used to observe and react differently in the manner of narration of the same facts at Arvind Kumar Sharma 2013.09.24 12:51 I attest to the accuracy and integrity of this document Chandigarh CRA No.1220-SB of 2003 19 different places and in different situations. Such discrepancies are very minor in nature and have got no direct bearing on the actual incident of rape. It is well-known principle of law that such so-called (minor) discrepancies, which have no adverse affect on the actual occurrence, have to be outrightly ignored. It is not that every discrepancy or contradiction would matter much in assessing the reliability and credibility of the witnesses or truthfulness of the prosecution version, unless the discrepancies and contradictions are so material & substantial and that too are in respect of vitally relevant aspects of the facts deposed. At the same time, the evidence of truthful witnesses cannot be straightway condemned or discarded in its entirety in such case of rape.
34. Sequelly, the mere fact that the prosecution did not examine any other persons gathered at the spot, ipso facto, is not a ground, muchless cogent, to throw its version. Section 134 of the Indian Evidence Act, postulates that "no particular number of witnesses shall in any case be required for the proof of any fact." It is well known principle of law that reliance can be placed on the solitary statement of a witness if the court comes to the conclusion that the said statement is true and the version of the prosecution is correct. The courts are concerned with the merit of the statement of a particular witness and they are not concerned with the number of witnesses examined by the prosecution. It is the quality and not the quantity of the evidence which is required to be judged by the Court to place credence on the statements of witnesses. The law of evidence does not require any particular number of witnesses to be examined in proof of a given fact. In the present case, it is no body's case Arvind Kumar Sharma 2013.09.24 12:51 I attest to the accuracy and integrity of this document Chandigarh CRA No.1220-SB of 2003 20 that any other person except PW2 had actually witnessed the occurrence. The prosecution has examined the prosecutrix and her mother PW2, who had seen appellant Jasbir Singh committing rape on the prosecutrix (PW1).
35. Moreover, it is now well settled principle of law that 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. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit. The evidence of a victim of a sexual offence is entitled to great weight as well. Even conviction of the appellants can be based on the solitary evidence of prosecutrix. It cannot possibly be denied that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a Victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Not only that, the statement of prosecutrix is duly corroborated by her mother PW2 on all vital aspects. Their evidence deserves to be accepted in view of ratio of law laid down by the Hon'ble Supreme Court in celebrated cases of State of Maharashtra v. Chandraprakash Kewalchand Jain (1990) (1) SCC 550 and State of Punjab v. Gurmit Singh and others AIR 1996 Supreme Court 1393(1), which have been subsequently followed in many recent judgments. The learned counsel for appellants did not point out any other legal infirmity or major contradictions and inherent improbabilities, muchless cogent, to Arvind Kumar Sharma 2013.09.24 12:51 I attest to the accuracy and integrity of this document Chandigarh CRA No.1220-SB of 2003 21 dislodge the prosecution version, which is otherwise duly proved by the ocular, medical and documentary evidence as depicted here-in-above. No animus could possibly be attributed to PW1 and PW2 as to why they would falsely implicate the appellants in a case where the honour of the family in general and career and reputation of the victim in particular, were involved.
36. A feeble attempt has also been made to urge that since appellant Smt.Raj was not connected with the actual offence of rape, so, she cannot be held guilty for the offence of criminal conspiracy. It is not a matter of dispute that the offence of criminal conspiracy punishable under Section 120-B IPC is an independent offence and some general evidence pertaining to the conspiracy would be sufficient. As a matter of fact, some connecting link or factor somewhere here and there in the evidence would be good enough to hold the accused guilty. There is a very less possibility of direct evidence and the evidence of hatching such criminal conspiracy has to be gathered from variety of facts, situations and circumstances, emitting from the evidence brought on record by the prosecution, in view of law laid down by the Hon'ble Apex Court in case Hardeo Singh v. State of Bihar and others, AIR 2000 Supreme Court 2245.
37. As is evident from the record that there is a positive evidence on record that initially, appellant Smt.Raj had taken the prosecutrix on the pretext of answering the call of nature, then she pretended her that she had some work and took her in the Haveli of Kenty, where appellant Jasbir Singh repeatedly committed the rape on her against her wishes. It Arvind Kumar Sharma 2013.09.24 12:51 I attest to the accuracy and integrity of this document Chandigarh CRA No.1220-SB of 2003 22 has also come in the evidence that when the prosecutrix raised the noise, then both the appellants have threatened her with dire consequences to kill her, in case she would disclose the incident to any one and did not follow their dictate and desire. PW1 has categorically stated that while appellant Jasbir Singh was committing the rape, then, blood oozed out from her private part and appellant Smt.Raj had cleaned it with the cloth. She used to sat on the gate to guard the commission of offence of rape by appellant Jasbir Singh. Thus, there is an ample evidence on record that she conspired with main accused and he repeatedly committed rape on the prosecutrix. Therefore, her complicity in the crime is clearly borne out from the record and she cannot escape her liability in this respect.
38. At the same time, the mere routine denial by the appellants that they were innocent and have been falsely implicated at the instance of Dharmo, leader of ladies of village, outrightly deserves to be rejected in the absence of any cogent material on record in this relevant connection. DW1 has very vaguely deposed that appellant Smt.Raj did not take the prosecutrix to the Haveli and the appellants have been falsely implicated on account of previous enmity with Dharmo. There could be no difficulty for the appellants to procure such witness in order to screen them from legal punishment. The line of defence adopted by them is ridiculous and is liable to be ignored for more than one reason. At the first instance, there is not an iota of evidence on record to suggest that Dharmo was the leader of the ladies of the village or that she wanted to construct a marriage palace in front of house of appellant Jasbir Singh. Secondly, it is not proved that she was in any way connected/related to Arvind Kumar Sharma 2013.09.24 12:51 I attest to the accuracy and integrity of this document Chandigarh CRA No.1220-SB of 2003 23 the mother of prosecutrix (PW2). Above-all, it is highly improbable to believe that mother would play a dirty game and level such serious allegations of repeated rape to ruin the future of her minor daughter. No girl or woman of self respect and dignity would depose falsely implicating somebody of ravishing her chastity by sacrificing and jeopardizing her future prospect of getting married and having family life. On the contrary, the narration given by PW1, PW2 and PW4 is natural and genuine. In this manner, the contrary arguments of learned counsel for appellants "stricto sensu" deserve to be and are hereby repelled.
39. Thus, it would be seen that the story of prosecution is very natural and probable. The crime committed by appellants was cogently proved by the prosecutrix (PW1) and her mother (PW2). The ocular version finds corroboration from the medical evidence. The chain of link evidence is complete. The investigating officer has testified his investigation. The evidence of PW1 & PW2 is cogent and reliable, coupled with the medical evidence. They were cross-examined at length, but no substantial material could be elicited in their searching cross examination to dislodge their testimony and impeach their credibility. They gave a vivid and consistent version of the occurrence and supported the prosecution story on all vital counts. No fault could possibly be traced in their statements. Their evidence is cogent, consistent and trustworthy as regards the commission of actual rape is concerned. To me, the evidence of the prosecution is plausible, convincing and credible. There is no legal impediment or difficulty to act on the testimony of victim of Arvind Kumar Sharma 2013.09.24 12:51 I attest to the accuracy and integrity of this document Chandigarh CRA No.1220-SB of 2003 24 sexual assault, which inspires confidence and is found to be reliable. Therefore, if the ocular evidence of prosecution coupled with the medical evidence and totality of peculiar facts and special circumstances, emanating from the record, as discussed here-in-above, are put together, then to my mind, the conclusion is inescapable and irresistible that it is duly established on record that appellant Jasbir Singh had forcibly repeatedly committed the rape with the minor prosecutrix with the active connivance of appellant Smt.Raj, in the same manner, as projected/suggested by the prosecution and not otherwise. Thus, the guilt of the appellants is duly proved and the trial Judge has rightly convicted & sentenced them in the manner indicated here-in-above.
40. No other legal point, worth consideration, has either been urged or pressed by the counsel for the parties.
41. In the light of aforesaid reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. Consequently, the impugned judgment of conviction & order of sentence are maintained, in the obtaining circumstances of the case.
42. At the same time, the Chief Judicial Magistrate is directed to secure the presence of the appellants forthwith and commit them to jail to serve out the remaining portion of their sentence.
Sd/-
18.9.2013 (Mehinder Singh Sullar)
AS Judge
Whether to be referred to reporter?Yes/No
Arvind Kumar Sharma
2013.09.24 12:51
I attest to the accuracy and
integrity of this document
Chandigarh