Punjab-Haryana High Court
Rama And Another vs State Of Punjab on 8 October, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
CRA No.900-SB of 2001 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No.900-SB of 2001
Date of Decision:-8.10.2013
Rama and another
...Appellants
Vs.
State of Punjab
...Respondent
CORAM:- HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR
Present:- Mr.Rahul Vats, Advocate for the appellants.
Mr.K.S.Aulakh, AAG Punjab for the State.
Mehinder Singh Sullar, J. (Oral)
Concisely, the facts & evidence, unfolded during the course of trial, culminating in the commencement, relevant for deciding the instant appeal and emanating from the record, as claimed by the prosecution, are that the marriage of prosecutrix (PW5), aged 45 years (named intentionally withheld) was solemnized with Assa Ram, resident of village Bhagu, 25 years prior to the present occurrence. Six children were born out of their wedlock. On 30.3.1996, Assa Ram had gone to village Alamgarh, whereas she was present along with her children in her house. At about 11.00 PM, she suddenly heard the noise of knocking at the door of the room, where she was sleeping along with her daughter Pammi (PW10). Appellants-convicts Rama son of Nand Ram and Om Parkash son of Atma Ram (for brevity 'the appellants') asked her to open the door, but she resisted. Ultimately, they were stated to have forcibly Arvind Kumar Sharma 2013.10.09 17:21 I attest to the accuracy and integrity of this document Chandigarh CRA No.900-SB of 2001 2 opened the door and immediately entered the house. Om Parkash (appellant) caught hold of her arms and threatened with dire consequences if she raised any hue & cry, whereas Rama (appellant) forcibly broke open the string of her loose trousers (Salwar) and committed the rape, without her consent. She raised noise, which attracted her daughter Pammi (PW10), who was sleeping on the bed in the same room. She has also started raising noise. Thereafter, both the appellants fled away from her house. On the next morning, she went to village Alamgarh, where her husband had gone one day prior to the present occurrence and narrated the entire episode to him. As soon as, she along with her husband was going to Police Post, Bahaw Wala for reporting the matter, in the meantime, ASI Gurjant Singh (PW11) met them on the way. She reported the matter, made her statement (Ex.P6) to him and thumb marked the same in token of its correctness.
2. Leveling a variety of allegations and narrating the sequence of events, in all, the prosecutrix claimed that on the night intervening 30/31.03.1996, Om Parkash (appellant) caught hold by her arms and Rama (appellant) committed rape without her consent in her house. In the background of these allegations and in the wake of statement (Ex.P6) of the prosecutrix, the instant criminal case was registered against the appellants, vide FIR No.33 dated 31.03.1996 (Ex.P12), on accusation of having committed the offences punishable u/ss 452, 376(g) and 506 IPC, by the police of Police Station Sadar Abohar, District Ferozepur, in the manner depicted here-in-above.
3. After completion of the investigation, the final police report Arvind Kumar Sharma 2013.10.09 17:21 I attest to the accuracy and integrity of this document Chandigarh CRA No.900-SB of 2001 3 (challan) was submitted by the police against them to face the trial for the pointed offences.
4. Having completed all the codal formalities, the appellants were accordingly charge-sheeted for the commission of indicated offences. As they 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 crime against the appellants, has examined PW5 prosecutrix (aged 45 years), who has deposed in the following terms:-
"About 25 years back I was married to Assa Ram resident of Alamgarh. I have four sons and two daughters from Assa Ram. Elder daughters Rani is married one. Pammi is the youngest daughter to the married daughter. After marriage I started residing with Assa Ram at village Bhagu. About three years back my husband had gone to village Alamgarh. I alongwith Pammi was present in the house. No other family member was present in the house. My elder son had gone to watch Television. It was 11-00 PM Ramma and Om Parkash accused now present in court came and they called and requested to open the door. I replied that in case there is work, they should tell her otherwise she is not to open the door as my husband is out of house. Then the accused open the door forcibly by giving push. Both the accused came inside in my house and had caught hold from my hands. Om Parkash threatened to eliminate me if raised an alarm. Rama had forcibly broken the string of my Salwar and raped me forcibly against my wish. I raised raula. My daughter Pammi woke up. Then both the accused after leaving me there had fled away from the spot. Out of fear I did not come out side the house. On the next date in the morning I had gone to village Alamgarh and narrated about the occurrence/incident to my husband. Then I alongwith my husband was going towards police station to lodge the report. On the way, Amarpura police party met us near the bus stand of V. Amarpura where my statement was recorded. I had thumb my statement in token of its correctness. Ex.P6 is the statement. Then I was taken to civil hospital Abohar by police where I was medically examined. I was with the police party when the place of occurrence was inspected by the police."
6. Likewise, PW10 Pammi, daughter of the prosecutrix, has Arvind Kumar Sharma 2013.10.09 17:21 I attest to the accuracy and integrity of this document Chandigarh CRA No.900-SB of 2001 4 tried to support the prosecution case. Instead of reproducing her entire statement and in order to avoid the repetition, suffice it to say that she has attempted to corroborate the statement of her mother (PW5) on all vital counts and maintained that Om Parkash (appellant) had caught hold her mother and Rama (appellant) has committed rape with her mother, who was lying naked. Both the appellants fled away from their house, leaving her mother in naked condition. PW6 Assa Ram, husband of the prosecutrix, has also testified that on 31.03.1996, his wife came to village Alamgarh and disclosed about the entire incident. The matter was reported to the police. Thereafter, the police inspected the spot and has taken into possession the broken bangles and kerosene, by means of recovery memo (Ex.P7) attested by him. His statement was recorded by the police.
7. Now adverting to the medical evidence, PW1 Dr. Poonam Basin has medico-legally examined the prosecutrix on 31.03.1996 at about 2.30 PM, by way of MLR (Ex.P1) on police request (Ex.P2). She did not find any injuries on her person, except one reddish contusion 5 cm x 2 cm on the back side of elbow joint. She did not notice any injury on external genital area as well. She sent two vaginal swabs to the Chemical Examiner, Patiala for confirmation of spermatozoa in a vial. She handed over a bottle containing two vaginal swabs, a packet containing salwar of the prosecutrix, envelope containing copy of the MLR, request letter to the Chemical Examiner and original request from the police for medico legal examination. In cross-examination, she (PW1) acknowledged that there was no swelling or injury on the private parts of Arvind Kumar Sharma 2013.10.09 17:21 I attest to the accuracy and integrity of this document Chandigarh CRA No.900-SB of 2001 5 the prosecutrix.
8. PW2 Dr.R.S.Atwal, medico-legally examined Rama (appellant) on 04.04.1996, by virtue of MLR (Ex.P2). On the same day, he has also medico-legally examined Om Parkash (appellant), vide MLR (Ex.P4). He opined that there was nothing to suggest that they were unable to perform sexual intercourse. He did not notice any visible injury on their persons. PW3 Jaspaul Singh, Patwari, has prepared the scaled site plan (Ex.P5) of the place of occurrence on 16.04.1996 with its correct marginal notes.
9. Now coming to the evidence of the police officers, PW4 constable Malkiat Singh has deposited the parcel containing clothes and swabs in the office of the Chemical Examiner, Patiala on 30.04.1996. PW7 HC Darshan Singh and PW8 Constable Ravinder Singh are the formal witnesses, who have tendered their respective affidavits (Ex.P-8 & Ex.P-9) to complete the chain of link evidence. PW9 ASI Balkar Singh has stated that on 04.04.1996, Subhash Chander, resident of village Bhagsar has produced and he formally arrested the accused. He got medico legally examined them, by way of request (Ex.P10) from the doctor. He also recorded the statements of the witnesses.
10. The last to note is that the testimonies of Investigating Officers PW11 ASI Gurjant Singh and PW12 Inspector Budh Singh. According to PW11, he has correctly recorded the statement (Ex.P6) of the prosecutrix. She thumb marked the same in token of its correctness. He made endorsement (Ex.P11) and sent it to the police station for registration of the case, on the basis of which, formal FIR (Ex.P12) was Arvind Kumar Sharma 2013.10.09 17:21 I attest to the accuracy and integrity of this document Chandigarh CRA No.900-SB of 2001 6 recorded by Inspector Budh Singh (PW12). Then, he visited, inspected and prepared the rough site plan (Ex.P13) of place of occurrence as per instructions of the prosecutrix. He took into possession iron lamp and pieces of broken bangles, by means of recovery memo (Ex.P-7), which was attested by the witnesses. Thereafter, the recovered articles were handed over to SHO Budh Singh. The prosecutrix was got medico-legally examined, vide police request (Ex.P2). The envelope, containing swabs, clothes and other documents, were taken into possession by PW12, vide recovery memo (Ex.P14). On receipt of report (Ex.P15) of Chemical Examiner, PW12 Inspector Budh Singh prepared and submitted the final police report in the Court. This is the total oral as well as documentary evidence brought on record by the prosecution.
11. After the close of the prosecution evidence, the statements of the appellants were recorded. The entire incriminating material/evidence was put to enable them to explain any circumstance appearing against them therein, as contemplated under section 313 Cr.PC. However, they have stoutly denied the prosecution evidence in its entirety and pleaded that the prosecutrix is of a bad character and they have been falsely implicated by her in order to grab money. They did not prefer to produce any evidence in defence despite adequate opportunities.
12. Taking into consideration the entire evidence on record, the appellants were convicted and sentenced to undergo rigorous imprisonment (in short "RI") for a period of ten years, to pay a fine of ` 4,000/- each or in default thereof, to further undergo RI for a period of one year each, for the commission of an offence punishable u/s 376(g) Arvind Kumar Sharma 2013.10.09 17:21 I attest to the accuracy and integrity of this document Chandigarh CRA No.900-SB of 2001 7 IPC. They were also sentenced to undergo RI for a period of one year, to pay a fine of ` 500/- each or in default thereof, to further undergo RI for a period of one month each u/s 452 IPC. They were further sentenced to undergo RI for a period of one year each, under Section 506 IPC. However, all the substantive sentences of imprisonment were ordered to run concurrently, by virtue of impugned judgment of conviction dated 08.05.2001 and order of sentence dated 09.05.2001, by the trial Judge.
13. Aggrieved thereby, the appellants have preferred the instant appeal. That is how I am seized of the matter.
14. After hearing the learned counsel for the parties at quite some length, going through the evidence on record with their valuable assistance and after considering the entire matter deeply, to my mind, the present appeal deserves to be accepted in this context.
15. At the very outset, it cannot possibly be disputed here is that the legal proposition with regard to burden of proof in criminal (rape) cases was considered by the Hon'ble Apex Court in case Narender Kumar v. State (NCT of Delhi) 2012 (3) RCR (Criminal) 66. Having considered the provisions of Section 376 IPC, Sections 53 & 54 of the Indian Evidence Act and a line of previous judgments, it was observed that once the statement of the prosecutrix inspires confidence and is accepted by the court as such, conviction can be based only on her solitary evidence and no corroboration would be required unless there are compelling reasons in this respect. At the same time, it was ruled as under (para 23):-
"However, even in a case of rape, the onus is always on the prosecution to prove, affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to Arvind Kumar Sharma 2013.10.09 17:21 I attest to the accuracy and integrity of this document Chandigarh CRA No.900-SB of 2001 8 how and why in a rape case the victim and other witness have falsely implicated the accused. Prosecution case has to stand on its own legs and cannot take support from the weakness of the case of defence. However great the suspicion against the accused and however strong the moral belief and conviction of the court, unless the offence of the accused is established beyond reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring home the offence against the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. (Vide: Tukaram & Anr. v. The State of Maharashtra,, AIR 1979 SC 185; and Uday v. State of Karnataka, 2003(2) R.C.R. (Criminal) 99 : 2004(1) Apex Criminal 13 : AIR 2003 Supreme Court 1639)."
16. Above being the legal position and evidence on record, now the core controversy, which invites an immediate attention of this Court and arises for determination in this appeal is, as to whether the prosecution was able to prove the charge of rape against the appellants or not?
17. Having regard to the rival contentions of learned counsel for the parties, to me, the answer must obviously be in the negative, as the prosecution has utterly failed in this respect.
18. As is evident from the initial statement (Ex.P6), which formed the basis of FIR (Ex.P12) that the prosecutrix was 45 years of age having six children at the relevant time of commission of the indicated offences. She was experienced and was capable of understanding the things. On 30.3.1996, she was sleeping along with her daughter Pammi (PW10) aged 20/21 years on the bed in the same room. The prosecutrix claimed that at about 11 P.M., the appellants came there. They called and asked her to open the door. She replied that in case, there was any work, Arvind Kumar Sharma 2013.10.09 17:21 I attest to the accuracy and integrity of this document Chandigarh CRA No.900-SB of 2001 9 they should tell her, otherwise, she would not open the door as her husband was out of the house. Thereafter, they forcibly opened the door by giving push and came inside the house. Appellant Om Parkash caught hold of her hands and threatened to kill her if she raised an alarm. Then, Rama (appellant) had forcibly broken the string of her loose trousers (Salwar) and raped her against her wishes. She raised Raula. Her daughter Pammi (PW10) woke up. The prosecutrix has categorically acknowledged in her cross-examination that the rape was committed on cotton matress (Gadela) lying on the floor/ground. She had shown the matress to the police.
19. Therefore, the story of prosecution appears to be highly improbable and unnatural. It is very difficult to believe that the daughter (PW10) of prosecutrix would not awake after hearing the call/noise, knock at the door, pointed conversation between the appellants & prosecutrix and their forcible entry in the house by breaking open the gate. Moreover, the prosecutrix was sleeping on the same bed with her daughter in the same room. It is not a matter of dispute that rather admitted by the prosecutrix that Rama (appellant) committed rape on the mattress lying on the floor/ground. It remained an unfolded mystery that how and in what manner, she came on the mattress lying on the ground from her bed at the time of commission of crime. The police did not take into possession the cotton mattress. There was no blood on her loose trousers (Salwar). The recovery of bangles from the place of occurrence appears to be made up story by the police as it is no body's case that during the process of pointed offence, the bangles of prosecutrix were Arvind Kumar Sharma 2013.10.09 17:21 I attest to the accuracy and integrity of this document Chandigarh CRA No.900-SB of 2001 10 broken.
20. Not only that, Pammi (PW10) has specifically stated, on oath, that her mother (prosecutrix) was lying naked. When she woke up, both the accused fled away from there leaving her mother in a naked condition. It does not appeal to reason that in case of forcible rape, the prosecutrix would remove her entire clothes, which clearly suggest that she was a consenting party. It has also come in the evidence that the prosecutrix is a resident of village Bhago. Her all uncles having 5-5/6-6 children each were still residing in village Bhago, whereas the prosecutrix along with her children was residing in a colony at a distance of two acres from the village abadi. There are about 100/150 houses of persons belonging to different communities in the colony surrounding the house of prosecutrix. She stated that none from the adjoining houses attracted to the scene of occurrence. She did not tell about the incident to any respectable of that locality either on the same night or on the next morning. She also did not disclose the occurrence to her own son, who was residing in her house or uncles or other relatives residing in the same village. Even PW10 has admitted that she did not disclose the incident either to her maternal grand father or his brother or to her brothers. Till the police came, none was having any knowledge about the occurrence either in the village or in the colony. If the commission of crime was actually committed by the appellants in the manner as projected by the prosecutrix, in that eventuality, she would have and indeed ought to have narrated the entire incident at least to her own son, uncles and other relatives, who were residing in the same village. She did not disclose the Arvind Kumar Sharma 2013.10.09 17:21 I attest to the accuracy and integrity of this document Chandigarh CRA No.900-SB of 2001 11 occurrence to any body for the reasons best known to her, which rendered the prosecution version as highly doubtful.
21. This is not the end of the matter. Although the prosecutrix has conceded that she had received injury marks on her cheeks, breasts, thighs & vagina and did not receive any bruises at her back. PW10 has also acknowledged that there were injury marks on the cheeks and breasts of her mother. On the contrary, PW1 Dr.Poonam Basin has categorically maintained that the vagina of prosecutrix admitted three fingers. There was no mark of injury on external genital area or any other parts of the body except reddish contusion on her left elbow joint. Similarly, PW2 Dr.R.S.Atwal did not find any injury on the persons of the appellants. Meaning thereby, the ocular version of prosecution is totally contradicted by the medical evidence as well.
22. What cannot possibly be disputed here is that the prosecutrix did not raise any resistance when the appellants removed her clothes. The door of her house was opened. Her house was surrounded by 100/150 houses, but she did not avail the opportunity of running or her daughter Pammi did not inform any body about the incident. Moreover, if the appellants had committed forcible rape, then, she would have suffered injuries on her person. No explanation whatsoever, muchless cogent, is forth coming on record even to suggest remotely that she offered any kind of resistance. It appears to be somewhat unnatural that a young woman of 45 years of age would submit herself to forcible intercourse without struggle, whereas her young daughter was also present in the same room, particularly when it is not the case of prosecutrix that Arvind Kumar Sharma 2013.10.09 17:21 I attest to the accuracy and integrity of this document Chandigarh CRA No.900-SB of 2001 12 appellants were having any sort of weapon to scare them. Had she struggled, there would have been some scratches on the face, the hands and the arms of the appellants as well as on her body. Indeed, if this was so, then it was expected the stiffest possible resistance from her resulting in injury over the penis or scrotum of the accused or abrasions over other parts of the body caused by the nails of the prosecutrix. This is rather an important circumstance, which negates the allegations of rape. The complete absence of any injury or scratches on the persons of appellants and the prosecutrix in a very clear term would suggest that the intercourse was not forcible, rather she was a consenting party. It appears from the evidence on record that prosecutrix was a consenting party and during the course of intercourse, her young daughter got up and created the entire trouble. Thereafter, under the compelling circumstances, the matter was reported to the police.
23. An identical matter came to be decided by the Hon'ble Supreme Court in case Pratap Misra and others vs. State of Orissa, 1977 AIR (SC) 1307. The following observations of Taylor, in the Principles and Practice of Medical Jurisprudence, Vol. II were considered:-
"Unless under the influence of drink or drugs or asleep or ill, a fully grown girl or adult woman should be able to resist a sex assault. We should expect to find evidence of struggle to avoid sexual contact or penetration, and may well feel uncertainty about the real nature of an alleged assault in its absence.
A false accusation of rape may sometimes be exposed by marks of violence being wholly inadequate or absent....
Bruises upon the arms or the neck may be considered to constitute some evidence of struggle; and impressions of finger nails are also significant. Bruises or scratches about the inner side of the thighs and knees may be inflicted during attempts to abduct the legs forcibly, and care must also be Arvind Kumar Sharma 2013.10.09 17:21 I attest to the accuracy and integrity of this document Chandigarh CRA No.900-SB of 2001 13 taken to examine the back, for the victim may have been pinned against the wall or floor. It is important to record these in detail, and to say, if possible, how fresh they are. The ageing of bruises is, as was indicated in Volume I, a matter of some uncertainty in the absence of microscopy.
Strong corroborative evidence of a struggle might be obtained from an examination of the accused for similar marks of bruises or scratches about the arms or face, and possibly even about his penis, though this is less likely.
Though injury is most unlikely to the penis, a man may have had his face scratched or have been bitten during a sex assault. The clothing may bear some contact traces of the woman-hairs, vaginal secretion or blood, and, though of less significance, seminal stains.
Nevertheless, it is most likely that when there has been some real resistance, local injury will be apparent and probably also marks of violence on the body and limbs."
24. Having considered the indicated findings in a similar matter, it was held that in the absence of such injury on the persons of prosecutrix or the accused, the legal inference can be drawn that she was a consenting party. The ratio of law laid down in the aforesaid judgments 'mutatis mutandis' is fully applicable to the facts of this case and is the complete answer to the problem in hand. In this manner, once it is held that the prosecutrix was a consenting party and no offence of rape is made out, in that eventuality, the question of commission of offences punishable u/ss 452 and 506 IPC by the appellants did not arise at all as well.
25. Therefore, if the fact of highly improbable version of the prosecution, conduct & ages of prosecutrix & her daughter, complete absence of injuries, above-all pointed consent of the prosecutrix and totality of peculiar facts and special circumstances oozing out from the evidence on record, as discussed here-in-above are put together, then, to my mind, the conclusion is inescapable and irresistible that the prosecutrix was a consenting party and the evidence brought on record by Arvind Kumar Sharma 2013.10.09 17:21 I attest to the accuracy and integrity of this document Chandigarh CRA No.900-SB of 2001 14 the prosecution falls short as is required to prove the charge of rape etc., which entails the benefit of doubt to and acquittal of the appellants in the obtaining circumstances of the case.
26. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
27. In the light of aforesaid reasons, the instant appeal is hereby accepted. Consequently, the impugned judgment of conviction & order of sentence are set aside. Having extended the benefit of doubt, the appellants are acquitted of the charges framed against them.
Needless to mention that the necessary compliance and procedural consequences would naturally follow.
Sd/-
8.10.2013 (Mehinder Singh Sullar)
AS Judge
Whether to be referred to reporter? Yes/No
Arvind Kumar Sharma
2013.10.09 17:21
I attest to the accuracy and
integrity of this document
Chandigarh