Punjab-Haryana High Court
Sukhi Ram S/O Ram Sarup vs The State Of Haryana on 4 November, 2008
Crl. Appeal No.459-SB of 1991 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.459-SB of 1991
Date of Decision : 4.11.2008
Sukhi Ram S/o Ram Sarup, ...Appellant
R/o Village Shahpur Khurd,
P.S.Sadar, Ballabgarh,
District Faridabad.
Versus
The State of Haryana ....Respondent
CORAM:HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. J.S.Bedi, Advocate,
for the appellant.
Mr. A.K.Jindal, AAG, Haryana,
for the respondent.
SHAM SUNDER, J.
This appeal is directed against the judgment of conviction, and the order of sentence dated 6.12.1991, rendered by the Court of Addl. Sessions Judge, Faridabad, vide which it convicted the accused (now appellant), for the offence, punishable under Sections 376 and 342 of the IPC, and sentenced him to undergo rigorous imprisonment for a period of three years, and to pay a fine of Rs.2500/-, and in default of payment of the same, to undergo rigorous imprisonment for another period of one year, for the offence, punishable under Section 376 IPC, and further sentenced to undergo rigorous imprisonment for a period of one year, for the offence, punishable under Section 342 IPC. However, both the substantive sentences, were ordered to run concurrently.
2. The facts, in brief, are that Hargian, father of the prosecutrix, Crl. Appeal No.459-SB of 1991 2 was running a petty shop of merchandise in village Shahpur Khurd. He was earlier employed in a factory, at Faridabad, but his services were dispensed with. On 16.2.1990, Hargian, had gone to Ballabgarh, to make purchases for the shop. He returned in the evening. After he had returned from Shahpur Khurd, the prosecutrix aged about 14/15 years, as per the instructions of her mother, took the evening meals, for her father, at the shop. The prosecutrix was suffering from dysentry. She went to the nearby field, where wheat crop was standing, to ease herself. After she had eased herself, and got up, to tie the string of her trouser (salwar), Sukhi Ram, accused, resident of the same village, emerged from behind, and dragged her to a nearby room (kotha), of a tubewell. He bolted the shutter of the room (kotha) from inside, and committed rape with the prosecutrix. The prosecutrix raised shrieks, which attracted her brother Gobind Ram. When Gobind Ram, brother of the prosecutrix, failed to secure the release of the prosecutrix, from the room (kotha), he rushed to inform his father Hargian, whereupon, Hargian accompanied by other villagers, reached the room (kotha), and forced the shutter open. Sukhi Ram, accused, then fled. The prosecutrix was found in a naked and helpless condition. After she put on the clothes, she was moved out. On the basis of the statement, made by Hargian, FIR was registered, against the accused.
3. Niadar Singh, SI, the then SHO of the Police Station, rushed to the spot, and prepared the site plan, Ex.PK. The prosecutrix was sent to the Government Hospital, Ballabgarh, for medical examination. The Doctor medico-legally examined her, and took into possession her under- wear, samples of vaginal swabs, and pubic hair. These were sent to the Crl. Appeal No.459-SB of 1991 3 Forensic Science Laboratory. The test established the presence of human semen on swabs, salwar, and under-wear. The accused was arrested. He was also medico-legally examined. The statements of the witnesses, were recorded. After the completion of investigation, the accused was challaned.
3. On his appearance, in the Court of the Committing Magistrate, the copies of documents, relied upon by the prosecution, were supplied to the accused. After the case was received by commitment, in the Court of Sessions, charge under Sections 342 and 376 of the IPC, was framed against the accused, to which he pleaded not guilty and claimed trial.
4. The prosecution, in support of its case, examined Dr. (Mrs.) Neeru Kalra (PW-1), Dr. Anil Gautam (PW-2), Rehmat Khan, (PW-3), Tej Singh, Constable (PW-4), Ram Karan, HC, (PW-5), Kamla Rani, Headmistress (PW-6), Hoshiar Singh, ASI (PW-7), the prosecutrix, (PW-
8), Hargain, father of the prosecutrix (PW-9), Gobind Ram, brother of the prosecutrix (PW-10), and Niadar Singh, SI, the Investigating Officer, (PW-11). Thereafter, the Public Prosecutor, for the State, closed the prosecution evidence.
5. The statement of the accused under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. It was admitted by him, that he was medico-legally examined by the Doctor. It was further stated by him, that, on account of the party faction, in the village, he was falsely involved, in this case. He, however, did not lead any evidence, in his defence.
6. After hearing the Public Prosecutor for the State, the Counsel Crl. Appeal No.459-SB of 1991 4 for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore.
7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by the appellant.
8. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully.
9. It is settled principle of Criminal jurisprudence, that the prosecution, is required to prove its case, against the accused, beyond a reasonable doubt. The Court is not required to act on mere suspicion, conjectures or surmises or suspicious circumstances, to bring home the guilt to the accused. Reasonable doubt should not be stretched too far, to suspect everything, so as to defeat the ends of justice. In Gurbachan Singh vs. Sat Pal AIR 1990 Supreme Court 209, the principle of law, laid down, was to the effect, that reasonable doubt, is simply that degree of doubt, which could permit a reasonable and just man to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of offence to be investigated. Exaggerated devotion to the rule of benefit of doubt, must not nurture fanciful doubts, and lingering suspicions and thereby destroy social defence. Justice cannot be made sterile, on the plea, that it is better to let hundred guilty escape, than punish an innocent. Letting guilty escape is not doing justice according to law. In State of Uttar Pradesh vs. Anil Singh, AIR 1988 Supreme Court 1998, the principle of law, laid down, was to the effect, that it is necessary to remember that a judge does not preside over a criminal trial Crl. Appeal No.459-SB of 1991 5 merely to see, that no innocent man is punished. A Judge also presides to see that guilty man does not escape. One is as important, as the other. Both are public duties, which the Judge has to perform.
10. Before touching the merits of the case, in the light of the evidence, on record, in the first instance, it must be stated, as to what approach, the Court should adopt, while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex related offence. Is it essential that the evidence of the prosecutrix should be corroborated, in material particulars, before the Court bases a conviction on her testimony? Does the rule of prudence demand that, in all cases, save the rarest of rare, the Court should look for corroboration before acting on the evidence of the prosecutrix? Let us see, if the Evidence Act, provides the clue to this riddle. Under the Evidence Act, evidence means and includes all statements, which the Court permits or requires to be made before it, by the witnesses, in relation to the matters of fact, under inquiry. Under Section 59 of the Evidence Act, all facts, except the contents of documents, may be proved by oral evidence. Section 118 then illustrates, as to who may give oral evidence. According to that Section, all persons are competent to testify, unless the Court considers that they are prevented from understanding the questions, put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Even, in the case of an accomplice, Section 133 provides that he/she shall be a competent witness, against an accused person, and the conviction is not illegal, merely because it proceeds upon the uncorroborated testimony of an accomplice. However, illustration (b) to Crl. Appeal No.459-SB of 1991 6 Section 114, which lays down a rule of practice, says that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated, in material particulars. Thus, under Section 133, which lays down a rule of law, an accomplice is a competent witness, and the conviction based solely on his uncorroborated evidence, is not illegal, although in view of Section 114 illustration (b), the Courts do not, as a matter of practice, do so, and look for corroboration, in material particulars. This is the conjoint effect of Sections 133 and 114 illustration
(b).
10-A. In State of Maharashtra vs. Chandraprakash Kewalchand Jain with Stree Atyachar Virodhi Parishad vs. Chandraprakash Kewalchand Jain & Anr. 1990(2) Chandigarh, Law Reporter 228 (SC), it was held as under:-
"A prosecutrix of a sex-offence cannot be on par with an accomplice. She is in fact a victim of the crime. The evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as it attached to an injured in cases of physical violence. The same degree of care and caution must atach in the evaluation of her evidence, as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the Crl. Appeal No.459-SB of 1991 7 evidence of a person, who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act, similar to illustration (b) to Section 114 which required it to look for corroboration. If for the same reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix, it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation, in accepting her evidence. We have, therefore, no doubt, in our minds, that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof Crl. Appeal No.459-SB of 1991 8 required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage:-
"It is only, in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy truthful and reliable that other corroboration may not be necessary."
With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily, the evidence of prosecutrix, must carry the same weight as is attached to an injured person, who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony, if there is independent evidence lending assurance to her accusation.
We think it proper, having regard to the increase in the number of sex-violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars, except in the rarest of rare Crl. Appeal No.459-SB of 1991 9 cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe would not be believed unless it is corroborated in material particulars in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the Western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, evident that respect for womanhood, in our country is on active and cases of molestation and rape are steadily growing. Indian woman is now required to suffer indignities in different forms.
From lewd remarks to eve-teasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if we deal strictly with those, who violate the social norms. The standard of proof to be required by the Court in such cases, must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily woman, more so a young girl, will Crl. Appeal No.459-SB of 1991 10 not stake her reputation by levelling a false charge concerning her chastity.
It is time to recall the observation of this Court made not so far back in Bhaiwaca Bhognibhai Hirjinbhai:-
In the Indian setting refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is a doing insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion?
To do so is to justify the charge of male chauvinism in a male dominated society. We must analyse the argument in support of the need for corroboration and subject it to relentless and remorseless cross-
examination. And we must do so with a logical, and not an opinionated eye in the light of probabilities with our feet firmly planted on the soil of India and with Crl. Appeal No.459-SB of 1991 11 our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach, made in the Western world which has its own social milieu , its own permissive values, and its own code of life.
Corroboration may, be considered essential to establish a sexual offence in the backdrop of the social ecology of the Western World. It is wholly unnecessary to import the said concept on a turn-Key basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian Society and its profile. The identities of the two worlds are different. The solution of problems therefore, cannot be identical.
Further this Court said;
Without the fear of making two wide a statement or of over-stating the case it can be said that rarely will a girl or a woman in India false allegations of sexual assault.... The Crl. Appeal No.459-SB of 1991 12 statement is generally true in the context of the urban as also rural society. It is also by the and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or to and that too possibly from amongst the urban elites. Because (1). A girl or a woman in the tradition bound non-
permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised by the society or being looked down by the society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would have to brave the whole world. (4) she would face the risk of losing the love and respect of her own husband and near Crl. Appeal No.459-SB of 1991 13 relatives, and of her matrimonial home and happiness being shattered.
(5) If she is unmarried she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society whereby and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman would also more often than not, want Crl. Appeal No.459-SB of 1991 14 to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to the promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by investigating agency, to face the Court to face the cross-examination, by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent.
11. In the light of the principle of law, laid down, in the aforesaid authorities, it is to be seen, as to whether, the prosecution was able to prove its case, against the accused. To determine this question, the brief narration of the evidence, is required to be made. The prosecutrix appeared, as PW-8, and gave a vivid detail of the occurrence. According to the prosecutrix, on the relevant day, one of her brothers, in the name of Surinder, had gone to the Temple of Santoshi Mata, at Delhi. Wife of Surinder also accompanied him. One Shyam, brother of the accused, had also gone alongwith Surinder. She further stated that when they did not return from Santoshi Mata Temple, by 6.00 PM, her mother asked her, to find out, from the house of Sukhi Ram, accused, as to why they had not returned. It was further stated by her that, on account of that reason, she went to the house of the accused, but she did not enter the same. It was Crl. Appeal No.459-SB of 1991 15 further stated by her that she stood outside. The wife of the brother of the accused, told her that Surinder and Shyam, had not returned. Thereafter, the prosecutrix, had left for her house, and informed her mother. The mother of the prosecutrix waited for the return of Surinder, for one hour more. After a short while, the brother of the prosecutrix returned. She further stated that, thereafter, she was asked by her mother, to take the meals for her father, at his shop. It was further stated by her, that she was suffering from blood dycentry. She further stated that she sat down at a secluded place, to ease herself. She further stated that wheat crop was standing, in that field. She further stated that after she eased herself, she stood up to tie the string of her trouser (salwar), when Sukhi Ram, accused, came from behind, gagged her mouth, and dragged her away to a room (kotha), which is near to a Poultry Farm, and shut the door thereof, from inside. It was further stated by her that thereafter, the accused forcibly committed rape with her. It was further stated by her that her brother Gobind Ram, reached there, on hearing her cries. He shouted from outside, asking for opening the door. He also knocked at the shutter. The accused did not open the door himself, nor allowed her to open the same. She further stated that her brother returned to home. He then took his father, to that room (kotha). Thereafter, the door of that room was broken open. A number of persons, in the meanwhile, collected there, and the accused, was thrashed. She further stated that the accused threw a brick bat, from inside the room (kotha), which hit Ramesh on his forehead. Thereafter, the report was lodged. The statement of the prosecutrix, was duly corroborated by Hargian, her father (PW-9), and Gobind Ram, her brother (PW-10). Fruther corroboration to Crl. Appeal No.459-SB of 1991 16 the ocular version was provided by Dr. (Mrs.) Neeru Kalra (PW-1). In her statement, it was stated by her, that the possibility of rape, could not be ruled out. Still further corroboration to the ocular version, is proved by Ex.PH, report of the Forensic Science Labortory. As per the report of the Forensic Science Laboratory, human semen was detected on swabs, trouser (salwar), under-wear and on cotton wool swab, with which white piece of cloth was attached, and which was having dirty stains. The prosecutrix, Hargian, her father, and Gobind Ram, her brother, were thoroughly cross-examined, but nothing of consequence could be got elicited from their mouth, which may go to discredit their evidence. They stood the test of touch-stone of all probabilities, during the course of their cross-examination. No doubt, some minor discrepancies and contradictions, occurred in their statements, but the same did not affect the merits of the case, as they in one voice deposed with regard to the occurrence. The FIR was lodged, in the instant case promptly. The occurrence took place on 16.2.1990. The FIR was lodged, on the same day, at about 11.15 PM, in the Police Station, at a distance of 8 Kms.
from the place of occurrence. The prompt lodging of the FIR also established the truthfulness of the prosecution version, and ruled out the possibility of concoction of story, false implication of the accused, and introduction of false witnesses. Even otherwise, there was no reason, on the part of the prosecutrix, her father, as also her brother to depose falsely. The prosecutrix, at the relevant time, was below 16 years of age, as would be discussed in the subsequent paragraphs. Before lodging the report, she and her parents, must have thought 100 times, as the honour of an unmarried minor girl was involved. They must have thought that, if Crl. Appeal No.459-SB of 1991 17 the allegations, were proved to be false, then the prosecutrix, as also her entire family, shall be looked down upon, in the society. They must have thought that, in that event, they will be ostracized from the society. They must have also given a thought to the factum, that, in case, the allegations were found to be untrue, then the chances of the marriage of the prosecutrix, would become very bleak. No minor unmarried girl, would stake her honour, by making false allegations, against the accused, that he committed rape with her. The evidence of the prosecutrix, duly corroborated by Hargian, her father, Gobind Ram, her brother, and Dr. Neeru Kalra, as also the report of the Forensic Science Laboratory, was rightly held to be cogent, convincing, reliable, and trustworthy, by the trial Court. On indepth scrutiny of the evidence of the prosecution witnesses, this Court also comes to the same conclusion. The trial Court was, thus, right in coming to the conclusion, that the accused committed rape with the prosecutrix, and also illegally confined her.
12. The Counsel for the appellant, however, submitted that the Court below, gave a conclusive finding, to the effect, that the age of the prosecutrix was above 16 years, at the time of the alleged occurrence. He further submitted that since that finding has become final, as no appeal against the same, has been filed, by the prosecution, this Court while sitting in appeal, cannot reverse that finding. The submission of the Counsel for the appellant, in this regard, is misconceived. Section 386 of the Cr.P.C., confers wide powers on the Appellate Court, to decide the appeal, as a whole. If any adverse finding was given against the prosecution, and, ultimately, the accused is convicted, the prosecution is not required to file a cross-appeal. The Appellate Court, can decide the Crl. Appeal No.459-SB of 1991 18 appeal, as a whole, and if the adverse finding, on a certain issue, is recorded by the trial Court, against the prosecution, and the same is found to be not based on record, the same can be set aside, by the Appellate Court. I am of the considered opinion, that the trial Court was wrong in coming to the conclusion, that the prosecutrix was above 16 years of age. Ex.PE, is the copy of the School Leaving Certificate, of the prosecutrix. Kamla Rani, Headmistress, Government Primary School, Shahpur Khurd, (PW-6), where the prosecutrix was studying, brought the summoned record, about the admission of the prosecutrix. She stated that the date of birth of the prosecutrix, according to the school record, was 15.8.1978. She further stated that the prosecutrix left the school in 5th class. In other words, she could not pass 5th class examination. She proved Ex.PE, photocopy of the School Leaving Certificate of the prosecutrix. Even, the prosecutrix gave her age as on 22.7.1991, as 15/16 years. It means, that on the date of occurrence, she was certainly below 16 years of age. Hargian, father of the prosecutrix, when appeared as, PW-9, stated that the prosecutrix was aged about 12/13 years. Since, the School Leaving Certificate was prepared, on the basis of the admission register, which was maintained in the regular course of business, in due discharge of the official duties, by an official, a presumption of correctness, was attached thereto, until the same was rebutted. No evidence was led to rebut the presumption of correctness, attached to this document. Since, the prosecutrix was born on 15.8.1978, on the date of occurrence i.e. 16.2.1990, she was even below 12 years of age. It is not known, as to under what circumstances, the trial Court, discarded this document. The finding recorded by the trial Court, discarding this document, being Crl. Appeal No.459-SB of 1991 19 illegal, is set aside.
13. The Counsel for the appellant, further submitted that according to the evidence of Dr. Neeru Kalra, (PW-1), the prosecutrix was habitual to sexual intercourse. He further submitted that, from this factum, it could certainly be inferred, that it was a case of consent. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The mere fact that Dr. Neeru Kalra (PW-1), stated that the prosecutrix was habitual to sexual intercourse, did not mean that everybody had got a licence to ravish her. The mere fact that two fingers could easily enter her vagina, did not mean that she was habitual to intercourse. Rupture of vagina can be due to a variety of reasons. Even if, no injury was found on the person of the prosecutrix, that did not mean, that rape was not committed with her. Since, the prosecutrix has been held to be even below 12 years of age, at the time of the occurrence, the question of her consent or no consent, was hardly of any significance. It is settled principle of law, that consent of minor is no consent. The submission of the Counsel for the appellant, therefore, being without merit, must fail, and the same stands rejected.
14. It was next submitted by the Counsel for the appellant, that no drag marks, were found, at the place of occurrence. He further submitted that since, it was the positive case of the prosecutrix, that she was dragged to a room, had rape been committed with her, such drag marks would have been found, at the spot. He further submitted that, on account of non-existence of drag marks, it could be said that no rape was committed with the prosecutrix, but the accused was falsely implicated. The submission of the Counsel for the appellant, in this regard, does not Crl. Appeal No.459-SB of 1991 20 appear to be correct. It may be stated here, that crops were standing in the fields. When she was dragged to the room, the question of existence of drag marks on the earth, did not at all arise, as it was not a freshly ploughed land. Even otheriwse, a number of persons, collected at the spot, when the accused was asked to open the door, from inside, and, ultimately, when the shutter thereof was broken open. On account of existence of a number of persons, who must have passed through that land, the drag marks, if any, must have been destroyed from the spot. It was, under these circumstances, that no drag marks were found, at the spot. The submission of the Counsel for the appellant, being without merit, must fail, and is rejected.
15. It was next submitted by the Counsel for the appellant, that so many contradictions, occurred in the statements of the prosecution witnesses, which made the case of the prosecution doubtful. He submitted that according to Hargian, father of the prosecutrix (PW-9), it was the police, who got opened the door, whereas, Gobind Ram, brother of the prosecutrix (PW-10), stated that he, his father, and other villagers, who had collected at the spot, broke open the door of the room. The prosecutrix stated that her father broke open the door. It may be stated here, that the aforesaid contradiction, which has appeared, in the statements of the aforesaid witnesses, could not be said to be so vital, as to affect the very fabric of the case. The evidence of the prosecution witnesses i.e. the prosecutrix, her father, and her brother, with regard to the occurrence, is trustworthy. If due to lapse of time, the contradiction referred to above, occurred in their statements, that did not, in any way, affect the merits of the case. The submission of the Counsel for the Crl. Appeal No.459-SB of 1991 21 appellant, being without merit, must fail, and the same stands rejected.
16. It was next submitted that a number of improvements were made by the prosecutrix, in her statement, in the Court vis-a-vis her previous statement, which clearly showed that her evidence was not reliable. During the course of her cross-examination, it was deposed to by her that she had stated before the Police, that she had gone to the house of the brother of the accused, to enquire about the return of her brother, at the asking of her mother. She further deposed that she told the police that she stood outside the house of the brother of the accused. She further deposed that she also told the police that, on return, she informed her mother that her brother had not returned. She also deposed that she stated before the police that her mother waited for about one hour, when her brother returned. When she was confronted with her previous statement, Ex.DA, these facts, were not found recorded therein. She further stated, during the course of the cross-examination, that whatever deposition she had made in the Court was correct. The aforesaid improvements, did not affect the very fabric of the prosecution case. The aforesaid improvements relate to the minor details of the case, not affecting the subtratum of the prosecution story. Such like improvements, are bound to occur, in the statement of a truthful witness, on account of the lapse of time. In this view of the matter, these improvements, being minor, in nature, do not affect the merits of the case. The trial Court was right, in ignoring the same.
17. Last of all, the Counsel for the appellant, submitted that the sentence awarded to the appellant, be reduced. He placed reliance, on Islam Vs. State of Haryana 2004(1) RCR (Criminal) 895 and Sanjiv Crl. Appeal No.459-SB of 1991 22 Kumar Vs. State of Punjab 2005(2) RCR (Criminal) 146, in support of his contention. The aforesaid cases were decided, on the peculiar facts and circumstances, prevailing therein. It may be stated here, that though the minimum sentence, provided for the offence, punishable under Section 376 IPC, is 7 years, yet the trial Court taking into consideration, the totality of facts and circumstances of the case, came to the conclusion, that the proviso engrafted to the same, could be invoked, for awarding less than the minimum sentence. It was, under these circumstances, that the trial Court awarded R.I. for 3 years, to the accused, for the offence, punishable under Section 376 IPC. This Court, in the first instance, was inclined to issue notice to the appellant, as to why, the sentence awarded to him, be not enhanced, yet taking into consideration the factum, that the occurrence took place in February 1990, this appeal has been pending since 1991, and, as such, a period of more than 18 years, from the date of occurrence, and more than 17 years, from the date of filing the appeal had lapsed, it was decided not to issue notice for enhancement of sentence to the appellant. The trial Court has already taken a very lenient view, in awarding the substantive sentence, to the appellant, for the offence, punishable under Section 376 IPC. No ground, whatsoever, is made out for further reduction of the sentnece, awarded to the appellant. No help, therefore, can be drawn, by the Counsel for the appellant, from the aforesaid authorities. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
18. No other point, was urged, by the Counsel for the parties.
19. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, rendered by the trial Court, are Crl. Appeal No.459-SB of 1991 23 based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference, and are liable to be upheld.
20. For the reasons recorded, hereinbefore, the appeal is dismissed. The judgment of conviction, and the order of sentence dated 6.12.1991, are upheld. If the appellant is on bail, his bail bonds, shall stand cancelled. The Chief Judicial Magistrate, Faridabad, shall take necessary steps, to comply with the judgment, with due promptitude, and compliance report be sent to this Court, within a period of one month, from the date of receipt of a copy thereof.
4.11.2008 (SHAM SUNDER) Vimal JUDGE