Punjab-Haryana High Court
Criminal Appeal No.1150-Sb Of 2002 vs State Of Punjab on 20 January, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
1. Criminal Appeal No.1150-SB of 2002
Ranjit Singh alias Sonu and others
... Appellants
Versus
State of Punjab
... Respondent
2. Criminal Appeal No.614-SB of 2004
Parminder Singh alias Chhantu
... Appellant
Versus
State of Punjab
... Respondent
Date of decision: 20th January, 2011
CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: None for the appellants
in CRA No.1150-SB of 2002.
Mr. Divjyot Singh Sandhu, Advocate for the appellant
in CRA No.614-SB of 2004.
Mr. Mehardeep Singh, Dy. Advocate General, Punjab
for the State.
KANWALJIT SINGH AHLUWALIA, J. (ORAL)
By this common judgment, Criminal Appeal No.1150-SB of 2002 preferred by Ranjit Singh alias Sonu, Parminder Singh alias Chhantu and Balbir Singh alias Kala, shall be decided along with Criminal Appeal No.614-SB of 2004, which is another appeal separately instituted by Parminder Singh alias Chhantu.
The appellants were tried in a case FIR No.91 dated 26.06.2000 registered at Police Station Bholath under Sections 386/376/506/458 IPC by the Court of Sessions Judge, Kapurthala, and vide its judgment dated 1st June, 2002, all the three appellants were held Criminal Appeals No.1150-SB of 2002 and 614-SB of 2004 2 guilty of offences punishable under Sections 386/458/376/506 IPC and vide a separate order of even date sentenced them as under:
"I) Under Section To undergo rigorous imprisonment for five years 386 IPC and to pay a fine of Rs.5000/- each, in default of payment of fine to further undergo R.I. for three months each.
II) Under Section To undergo rigorous imprisonment for four 458 IPC years and to pay a fine of Rs.5000/- each, in default of payment of fine to further undergo R.I. for three months each.
III) Under Section To undergo rigorous imprisonment for ten years 376 IPC and to pay a fine of Rs.5000/- each, in default of payment of fine to further undergo R.I. for three months each.
IV) Under Section To undergo rigorous imprisonment for six 506 IPC months each."
All the substantive sentences were ordered to run concurrently.
Counsel for the State has placed on record an affidavit dated 16th January, 2011 of Sikandar Singh, PPS, Superintendent of District Jail, Kapurthala, who has stated that appellant Ranjit Singh has undergone his entire sentence and has been released after his sentence was remitted. Similarly, appellant Balbir Singh alias Kala, as per the affidavit dated 17th January, 2011 filed by Prem Kumar Garg, PPS, Superintendent of Borstal Jail, Ludhiana; has also undergone his entire sentence and he was also released from jail after remissions were granted to him.
Learned counsel, who filed Criminal Appeal No.1150-SB of 2002 has been elevated to the Bench, therefore, service of actual date notice was effected upon the appellants. At this stage, Mr.Divjyot Singh Sandhu, Advocate appearing on behalf of the appellant in Criminal Criminal Appeals No.1150-SB of 2002 and 614-SB of 2004 3 Appeal No.614-SB of 2004 states that he has been instructed to appear on behalf of the appellants in Criminal Appeal No.1150-SB of 2002 also.
Prosecutrix (name withheld to protect her identity) PW-4 made a statement Ex.PG, on the basis of which formal FIR Ex.PG/2 was recorded. She stated that she was aged 28 years and was having a son and a daughter aged 8 and 6 years respectively. Her husband was residing in France for the last five years. She was residing along with her children in her house. On the night intervening 22nd and 23rd June, 2000, when she was sleeping in the courtyard of her house, at about midnight three persons entered into the courtyard of her house after scaling the wall. They gagged her mouth and took her inside the room. She switched on the light and found that all the three persons had muffled their faces with handkerchiefs. One person was identified by the prosecutrix as Ranjit Singh alias Sonu son of Charan Singh. They immediately switched off the light and one person switched on the torch, which he was carrying in his hand. All the three persons were armed with knifes. They asked the prosecutrix to give Rs.50,000/-, otherwise she would be killed. The prosecutrix disclosed that she did not have any cash but she had gold jewellery. She brought her gold jewellery, which consisted of one necklace of gold weighing 2 ½ tola, one pair of gold earrings one tola, two gold bangles weighing 1 ½ tola, one gold ring of ½ tola and one pair of tops ½ tola. These gold ornaments were put in the pockets by the accused, who were stoutly built. Another boy, who was thinly built, asked the prosecutrix to bring whatever she was having in her possession. Under the fear, the prosecutrix brought Rs.5,000/- from a trunk and handed it over to them. All the three persons, after putting the prosecutrix under fear, committed rape with her turn by turn. While returning, they threatened that in case anything is disclosed to anybody she and her children would be put to death. Due to fear, the prosecutrix had not Criminal Appeals No.1150-SB of 2002 and 614-SB of 2004 4 disclosed the incident to anybody, but narrated the incident to one Sulakhan Singh, member Panchayat of the village, who advised here to inform her relations. She made a telephonic call to her relations that a theft had been committed and when the relations came to her matrimonial home, she narrated the entire story to them. After taking along Sucha Singh brother of her father-in-law and Baldev Singh husband of her sister- in-law, she was going to the Police Station to lodge a report, when the SHO Balkar Singh met her in the way and she reported the matter.
Incident, in the present case, had taken place on the midnight of 22nd and 23rd June, 2000. The information was relayed by the prosecutrix to Balkar Singh SHO Police Station Bholath on 26th June, 2000 at about 1.45 p.m. The special report reached Illaqua Magistrate on the same day at about 7.30 p.m. Prosecutrix was medico legally examined by Dr.Asha Rani PW-3 on 28th June, 2000 at about 11.45 a.m. No visible mark of external injury was found. However, it was recorded by the doctor that the prosecutrix had changed her clothes and had taken a bath after the incident. Swabs were taken and sent for medical examination. Vagina admitted two fingers. The doctor further stated that possibility of sexual intercourse in the case of prosecutrix cannot be ruled out. However, in cross-examination, she stated that since there was no mark of injury on the person of prosecutrix, there were no fresh signs of sexual intercourse committed upon the prosecutrix.
Chemical Examiner submitted his report vide Ex.PF and opined that spermatozoa were found on the swabs sent for analysis.
Dr.Naresh Kumar, SMO Primary Health Centre, Bholath appeared as PW-1. He had medico legally examined Ranjit Singh alias Sonu, Parminder Singh and Balbir Singh; and had opined that there was Criminal Appeals No.1150-SB of 2002 and 614-SB of 2004 5 nothing to suggest that the accused were incapable of performing sexual intercourse.
Dr.Narinder Singh PW-2 had referred the prosecutrix to Civil Hospital, Kapurthala, where she was medico legally examined by Dr.Asha Rani PW-3.
Prosecutrix herself appeared as PW-4 and reiterated as to what was stated in the FIR.
Mr.Divjyot Singh Sandhu, Advocate appearing on behalf of the appellants, has referred to the following portion of the cross- examination of prosecutrix:
"... ... ... I met Sucha Singh on the next day. I asked him to accompany me to the Police Station. He accompanied me on 26.6.2000 to the Police Station. Earlier also he was willing to accompany me to the Police Station. We went to the Police Station on 23.6.2000, again said I did not approach the police before 26.6.2000. I had a talk with Sucha Singh and other relations on 23.6.2000 about this occurrence. They advised me to wait for some time and to consult his other relations. Volunteered as the case was of heinous crime and my husband was away and my father-in- law is dead, we had been consulting with each other on 23, 24 and 25.6.2000. I did not name any one except one of the culprit and it was only he who named the other two culprits. Ranjit Singh was arrested on the next morning of the occurrence. He was given beatings by the police and it was only thereafter, he named the other culprits. He named the other accused on 24.6.2000. They were arrested on 26.6.2000. I came to know about the names of other persons from the police on 26.6.2000. The doors of the rooms were not locked from outside."
Prosecutrix was further confronted with her statement Ex.PG, where it was not mentioned that the culprits had switched on the light. Prosecutrix further stated that she had not stated the name of Parminder Criminal Appeals No.1150-SB of 2002 and 614-SB of 2004 6 Singh alias Sonu in her statement to the police. She further stated that she had not met Mohinder Singh Ex-Sarpanch from 23rd to 26th June, 2000. She further stated that her statement was recorded by the police in the Police Station and one of the culprits Ranjit Singh was present in the Police Station when she went to lodge the report.
SI Gian Singh PW-5 had effected arrest of the accused and during interrogation the accused are said to have made a disclosure statement and got recovered the gold ornaments of the prosecutrix taken away by them. This witness stated in cross-examination that gold ornaments recovered were not turned into parcels.
Inspector Balkar Singh PW-6 had carried the investigation. In cross-examination, he stated that he did not mention any mark of identification in the recovery memo regarding recovery of gold ornaments and no mark of identification was disclosed by prosecutrix and that he had not sealed the ornaments into a separate parcel.
Thereafter, prosecution closed its evidence and statements of the accused appellants were recorded under Section 313 Cr.P.C. All incriminating material was put to them and they pleaded innocence and stated that no gold ornaments were recovered from them and the recovery has been planted upon them. They further stated that the gold ornaments, which were purported to have been recovered, belonged to their family.
No witness was examined in defence.
Mr. Sandhu has stated that the prosecutrix is a solitary witness. Sucha Singh, elder brother of her father-in-law, who had accompanied her to the Police Station, has not come forward to lend corroboration to the testimony of the prosecutrix. It is further stated that Sulakhan Singh, to whom the incident was narrated on the very first day, has also been withheld from the Court. Furthermore, Mohinder Singh, Criminal Appeals No.1150-SB of 2002 and 614-SB of 2004 7 who was consulted by the prosecutrix, has not been examined. Learned counsel has further contended that the gold ornaments belong to the family of the accused and the pleading that these ornaments were recovered from the accused, is nothing but padding and their recovery has been planted upon the appellants. In fact, from the sequence of events, it is not proved that these gold ornaments belong to the prosecutrix. It is stated that when the alleged recovery was effected, the ornaments were not sealed in a parcel. No identification of these ornaments was got conducted and they were not mixed with the other gold ornaments of similar nature. Furthermore, the prosecutrix was not called upon to identify them. Thus, Mr.Sandhu has vehemently urged that no corroboration is coming forward from any source, to the testimony of the prosecutrix. To fortify this submission, counsel has stated that this Court cannot become oblivious of the fact that the complaint was lodged to the police after three days of the occurrence. Furthermore, even though the accused belong to the village of the prosecutrix, their names were not given in the FIR. Counsel has stated that it has come in the cross-examination of the prosecutrix that she had gone to the Police Station and one of the accused, Ranjit Singh was in custody of the police and he had disclosed the names of the other two co-accused. Mr.Sandhu has further stated that the prosecution has miserably failed to establish the identity of the accused. No identification parade was held. It is further canvassed before me that the medical examination of the prosecutrix assumes importance. Counsel has stated that it is improbable that if three well built persons have committed rape upon the prosecutrix, she would not have suffered any injury. It is urged that in a case of forcible sexual assault by the three accused, scuffle is bound to happen and the prosecutrix must suffer abrasion, laceration, bruises or swelling. Counsel has stated that these all indicators of forcible sexual intercourse have not Criminal Appeals No.1150-SB of 2002 and 614-SB of 2004 8 been noticed while the prosecutrix was medico legally examined. Mr.Sandhu has laid much emphasis on the cross-examination of Dr.Asha Rani PW-3, who stated that since there was no external mark of injury on the person of the prosecutrix, there were no fresh signs of sexual intercourse having been committed with the prosecutrix.
I have given my thoughtful consideration to the arguments advanced by counsel for the appellants. At first instance, these arguments may carry some weight but on closer scrutiny, they are required to be rejected. The argument that no external injury on the person of prosecutrix was found in the medical evidence, therefore this Court should infer that she had not offered any resistance and that there is a delay of three days in lodging the report to the police, thus, it should be concluded that the version propounded by the prosecutrix is false; cannot be accepted.
The Hon'ble Apex Court, in 'State of Maharasthra v. Chandraprakash Kewalchand Jain' (1990) 1 SCC 550, observed as under:
"15. It is necessary at the outset to state what the approach of the court should be while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex offences. 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. Under the said statute 'Evidence' means and includes all statements which the court permits or requires to be made before it by witnesses, in relation to the matters of fact under inquiry. Under Section 59 all facts, except the contents of documents, may be proved by oral evidence. Section 118 Criminal Appeals No.1150-SB of 2002 and 614-SB of 2004 9 then tells us 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 shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, illustration (b) to 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 a conviction based solely on his uncorroborated evidence is not illegal although in view of Section 114, illustration (b), 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).
16. A prosecutrix of a sex offence cannot be put 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 is attached to an injured in cases of physical violence. The same degree of care and caution must attach 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 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 requires it to look for corroboration. If for some reason Criminal Appeals No.1150-SB of 2002 and 614-SB of 2004 10 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 required 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 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 a 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.
17. 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 Criminal Appeals No.1150-SB of 2002 and 614-SB of 2004 11 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 a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as 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, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An 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 societal norms. The standard of proof to be expected 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 a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity."
In the light of the observations made by Hon'ble the Apex Court, which have been reproduced above, this Court cannot ignore that three persons, armed with knives, in the late of the night had arrived in the house of the prosecutrix, where she was sleeping in the courtyard along with her children. Human reaction can be well perceived. The prosecutrix was put under fear. Her children were also sleeping there. She was nothing but a lame duck before the three accused, who had reached at her house. For her own safety and for the safety of her children, she had to succumb to the command of the accused. Criminal Appeals No.1150-SB of 2002 and 614-SB of 2004 12 In 'Gita Ram v. State of H.P.' 2002 Cri.L.J.3832, it was held that the delay in lodging of the report is of no consequence, as the victim of sexual assault face a lot of difficulty to come forward to depose against the accused, as the reputation of family of the prosecutrix is at stake. Relying upon the judgment rendered in 'State of Punjab v. Gurmit Singh' (1996) 2 SCC 384, in Gita Ram's case (supra) it was observed as under:
"22. In State of Punjab v. Gurmit Singh , (1996) 2 SCC 384 : (1996 Cri LJ 1728), their Lordships took note of the existing rate of crime against women and held : (SCC p 403, para 21) : (at Pp 1739-40, Para 20 of Cri LJ).
'21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violate the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it different to place implicit reliance on Criminal Appeals No.1150-SB of 2002 and 614-SB of 2004 13 her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.' Referring to an earlier judgment in State of Maharashtra v. Chandraprakash Kewalchand Jain (1990) 1 SCC 550 : (1990 Cri LJ 889), the Supreme Court in Gurmit Singh case (1996 (2) SCC 384 : 1996 Cri LJ 1728) held :
(SCC Pp 395-97, paras 8-9) : (at p 1735, Para 7 of Cri LJ).
'The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or Criminal Appeals No.1150-SB of 2002 and 614-SB of 2004 14 suspicion ? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, 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 on a par with the evidence of a 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, as 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, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked 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. Interference have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even, if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as deprobable. In State of Maharashtra v. Chandraprakash Kewalchand Jain (1990 (1) SCC 550 : 1990 Cri LJ 889), Ahmadi, J. (as the Lord Chief Justice then was) speaking for the Bench summarised the Criminal Appeals No.1150-SB of 2002 and 614-SB of 2004 15 position in the following words : (SCC p 559, para 16 : (at Pp 894-95, Para 16 of Cri LJ).
'A prosecutrix of a sex offence cannot be put on a 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 is attached to an injured in cases of physical violence. The same degree of care of and caution must attach 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 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 some 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 required 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 Criminal Appeals No.1150-SB of 2002 and 614-SB of 2004 16 a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence.' We are in respectful agreement with the above exposition of law. In the instant case our careful analysis of the statement of the prosecutrix has created an impression on our minds that she is a reliable and truthful witness. Her testimony suffers from no infirmity or blemish whatsoever. We have no hesitation in acting upon her testimony alone without looking for any corroboration. However, in this case there is ample corroboration available on the record to lend further credence to the testimony of the prosecutrix.
23. In the light of the above said ratio of the decision of the Apex Court, I find that in the case on hand the testimony of the prosecutrix discussed hereinabove suffers from no infirmity and she is a reliable and truthful witness. There is ample corroboration available on the record to lend further credence to the testimony of the prosecutrix in the form of the deposition of PW 2 to whom the prosecutrix had narrated the incident in the evening on the same day and she disclosed the occurrence to her husband immediately after he returned from attending the fair. Medical evidence is not of much relevance for the reason that prosecutrix was examined by Dr. Shyam after about 24 days from the alleged day of occurrence and further because she is a married woman and was habitual of sexual inter course."
In the present case, the prosecutrix was medico legally examined on 28th June, 2000, i.e. after five days of the occurrence. She had taken a bath and changed the clothes also. After five days, detection of semen is not possible. Therefore, rightly no spermatozoa were found in the report of Chemical Examiner. This circumstance cannot be construed against the prosecution.
Much ado has been made regarding identity of the accused. Prosecutrix, who was a victim of sexual assault, while standing in the Criminal Appeals No.1150-SB of 2002 and 614-SB of 2004 17 dock, was subjected to a lengthy searching cross-examination. A stray line in her cross-examination cannot be relied to the advantage of the accused. She had clarified that she had not visited the Police Station before 26th June, 2000. The counsel has made much premium on the admission made by the prosecutrix that she was consulting with her relations on 23rd, 24th and 25th June, 2000, as to what should be done. Her relations had advised her to wait for some time and consult the other relations. This consultation was necessary, as the prosecutrix had to muster courage, whether her disclosing the fact that she has been raped by three persons, may not cause ignominy to her in the society. The prosecutrix was a married woman. She was mother of a daughter. It was well justified for her to consult her relations and examine pros and cons of reporting the matter to the police.
Counsel has further referred to the testimony of the prosecutrix, where she stated that Mohinder Singh, Sarpanch had brought Parminder Singh alias Sonu and Balbir Singh alias Kala to the house of prosecutrix and asked her to make compromise with them. She stated that when Mohinder Singh Sarpanch brought these persons before her, she had identified them as assailants. The prosecutrix had disclosed to her relations that she was raped by three persons and those persons belong to her village. She had narrated the name of Ranjit Singh. Therefore, being a public man, the Sarpanch acted as an intervener to pacify the matter to the advantage of the accused Parminder Singh alias Sonu and Balbir Singh alias Kala. Only a bald suggestion has been given that accused were implicated at the instance of Mohinder Singh Sarpanch. No witness has been examined in defence to say that accused were having any enmity or inimical relations with Mohinder Singh, so that the witness so examined could be made a subject matter of cross- examination by the prosecutrix.
Criminal Appeals No.1150-SB of 2002 and 614-SB of 2004 18 It has been held by the courts that the test identification parade is not a substantive piece of evidence and the same has only a corroborative value. Taking totality of circumstances into consideration and for the reasons stated above, there is no merit in both the present appeals and the same are hereby dismissed.
[KANWALJIT SINGH AHLUWALIA] JUDGE January 20, 2011 rps