Punjab-Haryana High Court
Rajwinder Singh Alias Raju vs State Of Punjab on 30 September, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRA No.642-SB of 2003 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No.642-SB of 2003
Date of Decision:-30.9.2013
Rajwinder Singh alias Raju
...Appellant
Vs.
State of Punjab
...Respondent
CORAM:- HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Ms.Aditi Girdhar, Advocate (amicus curiae)
for the appellant.
Mr.Jaspreet Singh Sekhon, AAG Punjab for the State.
Mehinder Singh Sullar, J. (Oral)
The compendium of 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, is that the prosecutrix (name withheld) (PW4) minor girl aged about 13 years, daughter of Harbhajan Singh, was a student of 6th class. On 12.12.2000, complainant Palo Bai (PW3) (mother of prosecutrix) (for brevity "the complainant") was busy in the marriage of her relative. The prosecutrix and her younger sister Baljinder Kaur (PW8) (aged 11 years) had gone near Harijan colony (an abandoned place) at the outskirts of the village to answer the call of nature. As soon as, they were returning at about 3 P.M. after answering the call of nature and reached near Harijan colony, in the meantime, appellant-convict Rajwinder Singh alias Raju son of Kulwant Singh (for short "the appellant") met them on Arvind Kumar Sharma 2013.10.03 15:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.642-SB of 2003 2 the way (spot). He gripped the prosecutrix in his arms and forcibly took her in a house situated near Harijan colony, in spite of hue and cry raised by both the sisters. Thereafter, he committed forcible rape with her against her consent. Her younger sister Baljinder Kaur (PW8) rushed and narrated the entire episode to her mother (complainant). They went to the place of occurrence and noticed that the blood was oozing out of her (prosecutrix) private part and the appellant had already decamped from the spot. Although the matter was stated to have been reported, but the police did not take any action against the guilty. Then, the complainant moved a complaint dated 15.12.2000 (Ex.PD) to DSP, Sub Division, Baba Bakala. The influential persons of village put pressure on her (complainant) to compromise the matter. The appellant and his family members have also threatened them with dire consequences in case, they would take any action against him.
2. Leveling a variety of allegations and narrating the sequence of events, in all, according to the prosecution that the appellant had committed the forcible rape with the prosecutrix against her wishes. In the background of these allegations and in the wake of complaint (Ex.PD) of the complainant, the present criminal case was registered against the appellant, vide FIR No.169 dated 23.12.2000 (Ex.PD/2), on accusation of having committed an offence punishable u/s 376 IPC by the police of Police Station Kathunangal, District Amritsar in the manner depicted here-in-above.
3. After completion of the investigation, the final police report (challan) was submitted by the police against him to face the trial for the Arvind Kumar Sharma 2013.10.03 15:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.642-SB of 2003 3 pointed offence.
4. Having completed all the codal formalities, the appellant was accordingly charge-sheeted for the commission of indicated offence. As he did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution by the trial Judge.
5. Sequelly, the prosecution, in order to substantiate the charge framed against the appellant, examined PW4 prosecutrix (aged 13 years), who made the statement in the following terms:-
"Q. Where you have come today? Ans. I have come to court at Amritsar. Q. For what purpose you have come?
Ans. I have come to the court for the case in connection with bad act. Q. Why you have come to court?
Ans. I have come to the court to appear as a witness to tell the truth regarding what had happened with me. I know that it is sin to tell false and one is to tell the truth.
Before recording the examination of the witness, I have put certain questions to her with the idea to know that she understands the sanctity of truth and it has appeared that she is matured enough to understand the sanctity of truth. Accordingly, she is allowed to be examination on oath. (Name intentionally withheld) witness on S.A. I was student of Govt. High School Mattewal in 6th class. We are three sisters. I am the eldest. Baljinder Kaur is younger to me and Rajwinder Kaur is younger to her. On 12.12.2000, myself and my sister Baljinder Kaur had accompanied our mother Palo to attend the marriage of the daughter of Gulzar Singh, as she was my mother's sister. At about 3 p.m., myself and my sister Baljinder Kaur had gone towards Harijan colony to ease ourselves. Raju accused present in court, had met us there. Raju had caught hold of me from my arm and had forcibly taken me inside a room, which was lying vacant. Immediately then my sister had run away from that place. He forcibly removed my salwar and put me on the ground. He also removed his pants and then committed sexual rape with me forcibly and against my wishes. I raised hue and cry, but there was no body to hear me. Blood had come out of my private part. After some time, my mother along with some other 2-3 persons had reached there and on seeing them, the accused present in court had fled away Arvind Kumar Sharma 2013.10.03 15:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.642-SB of 2003 4 and they had seen him fleeing. I was still lying on the ground, but I had tied my salwar immediately then. I had told the entire story to my mother. My statement was recorded by police after the case was got registered by my parents after reporting the higher police authorities. I was also got medically examined."
6. Likewise, PW3 complainant Palo (mother) and PW8 Baljinder Kaur alias Kaku (sister of prosecutrix) have supported the prosecution case. Instead of reproducing their entire statements and in order to avoid the repetition, suffice it to say that they have fully corroborated the initial version contained in the complaint (Ex.PD) on all vital counts.
7. Now adverting to the medical evidence, PW1 Dr.Guneet has medico legally examined the prosecutrix, aged 14 years, student of 6th standard, on 25.12.2000 at 1.20 p.m., by virtue of MLR (Ex.PA) and did not find any injury on her person. There was no bleeding from vagina or uterus. Posterior commissure was intact and was not painful. Hymen margins were regular. They were not bleeding. Two vaginal swabs were taken, one from lower vagina and two from upper vagina. The vagina admitted one finger easily. He confirmed that the semen was found on both the swabs taken from the vagina of prosecutrix as per the report (Ex.PB) of Chemical Examiner. PW2 Gurdev Singh, Headmaster, has maintained that as per entry No.2252 dated 8.4.2000, the prosecutrix was admitted in 6th class in the school and her date of birth was recorded as 13.2.1989. He proved her birth certificate (Ex.PC).
8. Similarly, PW5 C.Wassan Singh and PW9 HC Baljit Singh are the formal witnesses, who have tendered their respective affidavits (Ex.PE and Ex.PF) to complete the chain of link evidence. PW6 SI Arvind Kumar Sharma 2013.10.03 15:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.642-SB of 2003 5 Bikramjit Singh partly investigated the case and stated that on 27.12.2000, Baljit Singh, Sarpanch of village Kidhowali, has produced and he arrested accused Rajwinder Singh. He was produced before the Magistrate. PW6 has also recorded the statements of witnesses and handed over further investigation to ASI Sawinderpal Singh (PW7).
9. The last to note is the testimony of PW7 ASI Sawinderpal Singh, who is main Investigating Officer in this case. He has deposed that on 23.12.2000, on receipt of complaint (Ex.PD), he made his endorsement (Ex.PD/1) and sent it to the police station for registration of the case, on the basis of which, formal FIR (Ex.PD/2) was recorded by ASI Kans Raj. Thereafter, he went, inspected and prepared the rough site plan (Ex.PF) of place of occurrence at the instance of complainant with its correct marginal notes. The accused was arrested on 27.12.2000 by SI Bikramjit Singh. The prosecutrix was got medico legally examined from Civil Hospital, Amritsar by him. He recorded the statements of witnesses and procured the school certificate (Ex.PC) about her age. After completion of the investigation, the final police report (challan) was prepared by Inspector Jarnail Singh. This is the total oral as well as documentary evidence brought on record by the prosecution.
10. After the close of the prosecution evidence, the statement of the appellant was recorded. The entire incriminating material/evidence was put to enable him to explain any circumstance appearing against him therein, as contemplated under section 313 Cr.PC. However, he has denied the prosecution evidence in its entirety and pleaded false implication due to party faction in the village. Although he opted for Arvind Kumar Sharma 2013.10.03 15:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.642-SB of 2003 6 defence, but did not lead any defence evidence despite adequate opportunities.
11. Taking into consideration the entire evidence on record, the appellant was convicted and sentenced to undergo rigorous imprisonment (in short "RI") for a period of ten years, to pay a fine of ` 10,000/- or in default thereof, to further undergo RI for a period of six months for the commission of an offence punishable u/s 376 IPC, by means of impugned judgment of conviction and order of sentence dated 5.2.2003 by the trial Court of Addl. Sessions Judge.
12. Aggrieved thereby, the appellant has preferred the instant appeal. That is how I am seized of the matter.
13. After hearing the learned counsel for the parties, going through the record with their valuable assistance and after deep consideration of the entire matter, to my mind, there is no merit in the present appeal as regards the conviction of the appellant is concerned.
14. As is evident from the record, that the prosecutrix claimed that on 12.12.2000, appellant has committed the forcible rape without her consent, in the manner described here-in-above. The cosmetic contention of learned counsel that the story of the prosecution is highly improbable as the appellant would not commit sexual intercourse with the prosecutrix in the presence of her younger sister, is not only devoid of merit but misplaced as well. It has come in the evidence that the prosecutrix and her younger sister had gone to answer the call of the nature in an abandoned place near Harijan colony at the outskirts of the village. As soon as, they were returning at about 3.00 PM after answering the call of Arvind Kumar Sharma 2013.10.03 15:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.642-SB of 2003 7 nature, in the meantime, appellant forcibly gripped and took her inside the room, which was lying vacant and committed the sexual intercourse against her wishes. Finding no alternative, her younger sister Baljinder Kaur (PW8) had rushed and informed the entire incident to her mother Palo Bai (PW3). The moment she reached the spot, then the appellant decamped from the place of occurrence. Therefore, the story of the prosecution is not only probable but natural as well.
15. Now adverting to the age of the prosecutrix, PW2 Gurdev Singh, Headmaster, has duly proved her birth certificate (Ex.PC) indicating her date of birth as 13.02.1989 as per entry No. 2252 dated 8.4.2000 in the relevant school record. PW3 has also stated that the prosecutrix has studied in 6th class and was about 10/12 years. She (prosecutrix) has also given her age 13 years while appearing as PW4. In this manner, the statements of PW3, PW4 and PW8 corroborates the date of birth mentioned in the certificate (Ex.PC). That means, there is sufficient evidence on record with regard to the age (minority) of the prosecutrix. It was observed by Hon'ble Apex Court in case Vishnu @ Undrya v. State of Maharashtra 2006(1) R.C.R. (Criminal) 201, that evidence given by parents is best evidence to prove the age of the prosecutrix. Thus, the absence of ossification test has got no direct bearing on merits of the case, as contrary urged on behalf of the appellant, particularly when it stands proved on record by pointed acceptable evidence that the prosecutrix was about 13 years of age at the time of occurrence.
16. As regards, the delay in lodging the FIR is concerned, no Arvind Kumar Sharma 2013.10.03 15:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.642-SB of 2003 8 doubt, there is a delay of 11 days in reporting the matter to the police, but it is duly explained. The complainant (PW3) and prosecutrix (PW4) are rustic household ladies. PW3 has categorically maintained that initially, they did not report the matter to the police in order to save the prestige of her daughter and family members. Subsequently, although they reported the matter, but it (police) did not take any immediate action against the appellant and ultimately a complaint (Ex.PD) was moved to the Deputy Superintendent of Police, on the basis of which, the instant criminal case was registered against him. In that eventuality, neither the complainant nor the prosecutrix can be blamed in this regard. Moreover, PW3 has also claimed that the influential persons of the village put pressure on her to compromise the matter.
17. Above all, in sexual offences, such delay in lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident, which concerns the 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 respect. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged by the victim. In the present case, when the police did not take any action and compelled the complainant to compromise the matter, then she moved a complaint to the DSP and the instant criminal case was registered. Hence, the prosecution version is natural, probable and believable in such case of forcible rape. Arvind Kumar Sharma 2013.10.03 15:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.642-SB of 2003 9
18. An identical question came to be decided by Hon'ble Supreme 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,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 Arvind Kumar Sharma 2013.10.03 15:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.642-SB of 2003 10 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."
19. Therefore, the ratio of law laid down in the aforesaid judgments "mutatis mutandis" is applicable to the facts of this case and is 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 and has got no adverse bearing on the prosecution version which is otherwise proved on record by indicated cogent evidence.
20. Thus, it would be seen that the story of the prosecution is highly probable and natural. The statement of minor prosecutrix finds corroboration from the statements of her mother Palo Bai complainant (PW3) and her younger sister Baljinder Kaur (PW8). As per report (Ex.PB) of Chemical Examiner, the semen was found on both the swabs taken from vagina of the prosecutrix. The ocular version of the prosecution is duly corroborated by medical evidence. The evidence of the prosecution is convincing and acceptable. The prosecutrix has given the natural narration of facts. It is now well settled principle of law that the evidence of victim of sexual assault stands almost at pat with the evidence of an injured witness and to an extent is even more reliable. There is no impediment in accepting her statement.
21. Not only that, the statement of prosecutrix is duly corroborated by her mother Palo Bai (PW3) and sister Baljinder Kaur (PW8) on all vital aspects. There are no contradictions in their statements, which could adversely affect the case of the prosecution. These witnesses Arvind Kumar Sharma 2013.10.03 15:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.642-SB of 2003 11 have given the details of the incident without any material variation. They were cross-examined at length by the appellant in the trial Court, but nothing material has come on record, which would persuade the court to disbelieve these witnesses. They gave a vivid and consistent version of the occurrence and supported the prosecution story on all vital counts.
22. At the same time, the mere routine denial by the appellant that he has been falsely implicated due to party fiction in the village, outrightly deserves to be rejected in the absence of any cogent material on record in this relevant connection. The line of defence adopted by him 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 even to suggest remotely that the appellant was falsely implicated on account of party fiction in the village. Above-all, it is highly improbable to believe that mother would play a dirty game and level such serious allegations of 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. Hence, the contrary arguments of learned counsel for the appellant "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances.
23. Faced with the situation, the learned counsel has fairly acknowledged that in view of cogent, oral as well as documentary & medical further evidence, she will not be in a position to contest the conviction of the appellant any more. He has no argument/material/ground, much less cogent, to assail the prosecution Arvind Kumar Sharma 2013.10.03 15:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.642-SB of 2003 12 version. In this manner, as no other legal infirmity has been pointed out by the learned counsel for appellant, therefore, the impugned judgment of conviction and order of sentence of fine are hereby maintained as such.
24. Be that as it may, however, the submission of learned counsel that since the appellant was 18 years of age at the time of occurrence and is not a previous convict, so, there are sufficient grounds to award lesser sentence and there is large scope of reduction in the period of sentence of imprisonment, has considerable force. This factual position is duly acknowledged by the learned State counsel.
25. Having regard to the rival contentions of learned counsel for parties, to me, it would be in the interest and justice would be sub-served if the sentence of imprisonment imposed on the appellant by the trial Court is reduced, inter-alia, on the following grounds:-
i) The occurrence in this case was of 12.12.2000 and he has already faced the pangs and suffered the agony of protracted trial & appeal for the last more than 12¾ years.
ii) He was 18 years of age at the time of incident.
iii) As per custody certificate, the appellant has already undergone the period of his substantive sentence of 5 years, 1 month and 16 days, out of the total awarded maximum sentence of imprisonment of ten years.
iv) He is a first offender and is not a previous convict.
v) He is the only son of his widowed mother and there is none to look after her.
26. In the light of aforesaid reasons, as there is no merit, therefore, the appeal filed by the appellant is hereby dismissed and the impugned judgment of conviction and order of sentence of fine imposed on the appellant are maintained. However, taking into consideration the Arvind Kumar Sharma 2013.10.03 15:26 I attest to the accuracy and integrity of this document Chandigarh CRA No.642-SB of 2003 13 totality of the indicated facts & circumstances, emanating from the record, as discussed here-in-above, the sentence of imprisonment is reduced to the period (5 years 1 month and 16 days) already undergone by him, in the obtaining circumstances of the instant case. Accordingly, the impugned order of sentence is modified to the extent and in the manner depicted here-in-before.
Needless to say that necessary consequences & compliance will naturally follow accordingly.
Sd/-
30.9.2013 (Mehinder Singh Sullar)
AS Judge
Whether to be referred to reporter ? Yes/No
Arvind Kumar Sharma
2013.10.03 15:26
I attest to the accuracy and
integrity of this document
Chandigarh