Punjab-Haryana High Court
Laddoo Singh Alias Harjit Singh vs State Of Punjab on 26 February, 2008
Equivalent citations: 2008CRILJ2885
Author: A.N. Jindal
Bench: Uma Nath Singh, A.N. Jindal
JUDGMENT A.N. Jindal, J.
1. An young girl aged about 14 years allegedly fell prey in the hands of the accused-appellant Laddoo alias Harjit Singh (hereinafter referred to as 'the accused'), who was made to drink some intoxicant and subsequently subject of lust for sex, which invited his prosecution. Ultimately, he was convicted vide judgment dated 8-7-2004 passed by the learned Additional Sessions Judge, Mansa and sentenced as under:
Under Section 376, IPC : To undergo imprisonment for life and to pay fine of Rs. 5000/-.
Under Section 363, IPC : To undergo rigorous imprisonment for three years and to fine of Rs. 1000/-.
Under Section 366, IPC : To undergo rigorous imprisonment for three years and to fine of Rs. 1000/-.
Under Section 342, IPC : To undergo rigorous imprisonment for one year.
Under Section 323, IPC : To undergo rigorous imprisonment for one year.
2. However, all the substantive sentences were ordered to run concurrently.
3. The prosecutrix (name not disclosed) hailed from village Sardulgarh. She having lost her father was residing with her mother at her maternal uncle Jagir Singh's house at Sardulgarh. Her mother Baljeet Kaur was working as Sweeper, whereas, her maternal uncle was a labourer.
4. On 25-5-2002, at about 7.30 a.m. she went to Government Senior Secondary School for Girls where she was studying in 7th class, but due to holiday in the school, she came back. At about 8.00 a.m. when she was returning, the accused being her neighbourer came along with jeep and incited her to have a lift up to his house. After she boarded the jeep, the accused started driving it at a fast speed. When she objected as to why he was taking the jeep on the opposite side, he stopped the jeep and served her some intoxicant. Resultantly she became unconscious which she regained at about 1.30 p.m. and found herself on a cot in a room. The accused committed rape upon her as a result of which her salwar became stained with blood and there was bleeding from her private part. She tried to escape but the accused caught her and dragged her due to which she received abrasions on her left shoulder, left knee and finger of her right foot and her clothes were also torn. In the evening at about 5.00 p.m. the accused took her and dropped her near her house. After arriving at the house, she disclosed about the occurrence to her mother Baljeet Kaur (P.W. 4). At about 9.00 p.m., when Jagir Singh returned the house, she vomited the whole story to him. Consequently, Baljeet Kaur and Jagir Singh took the prosecutrix to Civil Hospital Sardulgarh for medical examination but she was referred to Civil Hospital, Manda. Ultimately, she was medico-legally examined there. On the aforesaid statement Ex. PD. recorded by ASI Lalinder Singh, FIR Ex. PD/2 was registered by ASI Joginder Singh. Dr. Asha Kiran (P.W. 1) who had medico-legally examined the prosecutrix produced the parcel containing clothes of the prosecutrix which were taken into possession by him. On 30-5-2002, SI Malkiat Singh inspected the place of incident, prepared the rough site plan Ex. PN; arrested the accused Laddoo alias Harjit Singh from bus stand of village Ahlupur vide arrest memo Ex. PO. On the disclosure statement made by the accused on 1-6-2002, jeep No. AME-3612 was recovered. He also got recovered the registration certificate Ex. P4. Accused was also got medico-legally examined. On completion of the investigation, challan was presented in the Court.
5. On commitment, the accused was charged under Sections 363, 366, 376, 342, 323, IPC to which he pleaded not guilty and opted for trial.
6. In order to substantiate the charge, the prosecution examined Dr. Asha Kiran Medical Officer, Civil Hospital Mansa (P.W. 1), Ashok Kumar, Clerk of SDM Sardulgarh (P.W. 2), Prosecutrix (P.W. 3). Baljit Kaur, mother of the prosecutrix (P.W. 4), H.C. Prem Kumar (P.W. 5), ASI Lalinder Singh Investigating Officer (P.W. 6), C. Paramjit Singh (P.W. 7), Avtar Singh Patwari (P.W. 8), SI Malkiat Singh SHO, Investigating Officer (P.W. 9) and Ram Lal, Jr. Assistant, Government Girls Senior Secondary School, Sardulgarh (P.W. 10).
7. When examined under Section 313, Cr.P.C. the accused denied all the allegations and pleaded his false implication in the case. He further added that there was a dispute between his father on one side and the maternal uncle of the prosecutrix on the other side on account of installation of electric transformer in front of the shop of the complainant party and their shop.
During defence, the accused examined SI Balwinder Singh (D.W. 1) in order to prove enquiry report dated 25-10-2002 Ex. D-1 and 13-9-2002 Ex. D-2. Accused also examined Anil Kumar Ahlmad (D.W. 2) in order to prove the cancellation report Ex. D-3 and order dated 12-5-2003 of Senior Superintendent of Police, Mansa Ex. D-4 and endorsement of District Attorney (Legal) Ex. D-5. Certified copy of the order passed by Chief Judicial Magistrate, Mansa on 27-1-2003 and Ex. D-6 certified copy of judicial remand paper of the prosecutrix, copy of the statement of Baljeet Kaur Ex. D-7 made before the Court of Smt. Gurdarshan Kaur, Judicial Magistrate 1st Class, Mansa dated 7-8-2003 and Ex. D-8 copy of the statement of the prosecutrix dated 28-1-2003 made before the Chief Judicial Magistrate, Mansa.
8. Ultimately the trial ended in conviction. Hence this appeal.
9. Arguments heard. Record perused.
10. As regards the delay in lodging the FIR, we see no such inordinate delay which could contribute in concoction, embellishment or exaggeration. The accused was the neighbourer of the prosecutrix. No previous enmity has been established so as to involve him falsely in this case. The petty quarrel regarding installation of transformer as alleged by the accused has neither been proved nor the same could be a sufficient motive for falsely implicating the accused at the cost repute of their minor girl. The prosecutrix being unmarried hailing from the respectable family would be the last person to throw her reputation to peril. The occurrence in this case took place during the day of 25-5-2002. She was left at her house in the evening. Due to the illiteracy in the family and the mother being sweeper not acquainted with legal procedure was obviously to wait for her brother as her husband was no more in the world. Jagir Singh maternal uncle of the prosecutrix reached at around 9.00 p.m. and then they without wasting any further time took her to Civil Hospital Sardulgarh but the doctor at Sardulgarh referred her to Civil Hospital, Manda, where she was medically examined by Dr. Asha Kiran at about 1/15 a.m. on 26-5-2002. ASI Lalinder Singh (P.W. 9) reached the hospital on the QST wireless message from SHO, Police Station City, Mansa, pursuant to the ruqa sent by the doctor Civil Hospital, Mansa. Thus, after calculating the whole time consumed in the ordinary course we are unable to hold if there was any such delay which could have been used to manufacture the prosecution version. In any case, since in the cases where the reputation of the family is at peril and the life of the victim of the rape is at stake, the people in the countryside are reluctant to approach the police. The factum that the victim had dared to step in the witness box and to tear out her abdomen by making clean breast of the facts leading to the occurrence which stand corroborated by the medical evidence and the report made by the Forensic Science Laboratory Ex. PB, impel us to conclude that little delay in lodging the FIR pales into insignificance.
11. The next crucial argument put forward by the learned Counsel for the appellant is regarding the age of the prosecutrix. According to him, age of the prosecutrix as proved by the teacher of the Government Girls Senior Secondary School, Sardulgarh her date of birth is 28-1-1988 which is of no consequence having been recorded at the instance of the parents without any basis and in the absence of any cogent evidence, the benefit should go to the accused and the prosecutrix must be termed as more than 16 years of age.
12. Having deliberated over the matter for some time, we are unable to persuade ourselves with the contention. The documentary evidence over which the prosecution has banked upon is the school leaving certificate Ex. PQ as proved by Ram Lal (P.W. 10), Junior Assistant, Government Girls Senior Secondary School, Sardulgarh, which proves that the prosecutrix was born on 28-1-1988. It is the first hand information given by the parents of the fact, having special knowledge of it. In the absence of any other evidence, it could not be ignored. A question was raised that the said certificate does not bear the correct name of the mother i.e. Baljeet Kaur but it bears the name of Parkash Kaur as mother, therefore, the same cannot be connected with the prosecutrix. We are Unable to convince ourselves with this argument. Father's name is correctly recorded in the school records as Om Parkash and no challenge has been made to it. Ram Lal (P.W. 10) has directly related this document with the prosecutrix. However, to our experience, in this part of the country, illiterate, rustic people normally commit some mistakes as to their names. Some times they carry two names one on parental side and another on in-laws' side. It also cannot be disputed that the mother of the prosecutrix was illiterate and rustic lady. SHe may have given name of her paternal side. The basic unchallenged factors are that the prosecutrix was studying in 7th class and that according to iher mother Baljeet Kaur (P.W. 4) the prosecutrix has started menstruating one year prior to the occurrence need no further proof except that she was about 14 years of age because as per medical evidence, the female normally start menstruating at the age of 10 to 14 years. The factors which lend further corroboration to this fact are that the prosecutrix when appeared in the witness box gave her age as 15 years which also synchronizes with the fact that she was about 14 years of age at the time of occurrence. Even before Dr. Asha Kiran (P.W. 1), the prosecutrix disclosed her age as 14 years. Thus, the evidence while taken as a whole leads us to one conclusion that the prosecutrix was not above 16 years of age.
13. Now coming to the other factor, whether there is evidence of rape or not, we are to look upon the medical evidence. Dr. Asha Kiran (P.W. 1) who medico-legally examined the prosecutrix on 26-5-2002 observed as under:
1. An abrasion of size 12 cms x 6 cms on left shoulder extending from tip of shoulder to backwards for 12 cms. Reddish pink in colour. No fresh bleeding.
2. Ab abrasion of size 4 cms x 3 cms on left knee extending from upper border of patella upwards for 4 cms. Reddish pink in colour. No fresh bleeding.
3. Multiple abrasion of size 1 cm diameter on all the five toes. On distal phalanx one on each phalanx reddish pink in colour. No fresh bleeding.
14. Breast was well developed. Nipples and areolae were well developed and light brown in colour. Axillary hair were well developed. No sqratch mark on breast. Examination of external genitalia: Well developed. Pubic hair already cut and shaved. No scratch mark thigh etc. No P/V bleeding. Hymen was torn. Red in colour, did not bleed on touch. Vaginal orifice admitted one finger. Vaginal swab taken and sent for chemical examination. No fresh injury to perineum or urethra. She proved the MLR Ex. PA and handed over carbon copy of MLR, two sealed vials containing vaginal Swab. 3 packet containing clothes of victim i.e. white salwar and white kamiz and white bra and white dupatta, bearing five seals, sample seal with mark AKG, sealed envelope containing carbon copy of MLR, request letter and sample seal.
15. On the basis of report of chemical examiner Ex. PB, given by the Chemical Examiner which disclosed that semen was found on vaginal swab and salwar, she opined that sexual intercourse was conducted on the body of the prosecutrix. She proved her opinion as Ex. PC/1 on police request Ex. PC.
16. The testimony of Dr. Asha Kiran (P.W. 1) further transpires that the prosecutrix was not habitual to intercourse. The injury on her private part may not be present due to the fact that she was made to consume some intoxicant. However, the medical evidence clearly lends corroboration to the evidence of the prosecutrix. She suffered three injuries on her body which may be result of scuffle with the accused when she tried to escape or in the process of rape. In the instant case, from the testimony of the prosecutrix (P.W. 3), her mother Baljeet Kaur (P.W. 4) as well from the statement of the doctor and the documents proved on file by the prosecution, it is abundantly proved that the prosecutrix being below 16 years of age was illegally and forcibly taken away by the accused and raped. The prosecutrix while appearing in the witness box as P.W. 3 deposed on oath as per the stand taken by her before the police when her statement was recorded. It has also come in evidence that the prosecutrix was minor and she became unconscious and in that situation, she cannot be expected to make so much resistance and give photographic version by giving minute details. If medical evidence showed commission of offence, minor discrepancies in the statement of the prosecutrix are not fatal. Similar observations were made by this Court in case Dharamvir v. State of Haryana 2003 (2) RCR (Cri) 667.
17. Learned Counsel for the appellant submitted that the case is based on the solitary statement of the prosecutrix (P.W. 3) without any independent corroboration. The story as put forward by the prosecution is unnatural, improbable and rules out the possibility of the accused having committed rape on the prosecutrix. It has come in evidence that the prosecutrix got her pubic hair cut shaved though she was school going girl. It was further urged that the allegations made by the prosecutrix that she was made to sit in an open jeep and was taken forcibly at the place where the alleged rape was committed, are not correct because she could raise hue and cry on the way to attract people. It appears very strange that she was made to drink some intoxicant and she became unconscious and while she was lying unconscious she was raped by the accused. Again she was voluntarily dropped near the cremation ground to go to her house. She has stated that the room where she was raped was not having any door or window. The learned Counsel has further urged that in the month of May, when the alleged rape was committed, early in the morning farmers and other persons start going to the fields and question of committing rape when the cremation ground is surrounded by a large number of houses, does not appeal to the reason. She admitted that she suffered scratch marks on her back, however, when she was examined by the doctor, scrktch marks were not found on her back by the doctor. As regards the testimony of the prosecutrix, she has unfolded the chain of sequences leading to the commission of crime in a descriptive manner. She being minor, of tender age, could be expected to fumble on some minor points during the lengthy cross-examination made over her at the hands of the expert, seasoned and experienced defence counsel. The tearing of hymen and the presence of the injuries are indicative of the proof of rape upon her.
18. We are not inconsonance with the argument raised by the learned Counsel for the appellant that since the prosecutrix remained in custody of the accused for 8 hours, then consent on her behalf could be assumed. We do not find ourselves persuaded by the aforesaid marathon argument. Consent simply means an act of reason accompanied with deliberations, the mind weighing, as in a balance, the good or evil on either side. Consent supposes three things:
(i) a physical power;
(ii) a mental power; and
(iii) a free and serious use of them.
19. If implies that a consent if obtained by intimidation, force, meditated imposition, circumvention, surprise, or undue influence is to be treated as a delusion. The "words contained in Indian Penal Code "without her consent" also connote a consent given under a mistaken belief; under false promise to marry which certainly exclude the offence of rape but the same; may also amount to rape. While further elaborating, the definition of consent does not find mention under the Indian Penal Code, but it finds its place in Section 90 of the Code which reads as under:
90. Consent known to be given under fear or misconception - A consent is not such a consent as is intended by any Section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent as given in consequence of such fear or misconception; or Consent of insane person - If the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child - Unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.
20. From bare perusal of the section, it transpires that the factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too have the knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. The second part, thus, lays emphasis on the knowledge or reasonable belief of the person who obtained the tainted consent. The requirements of both the parts should be cumulatively satisfied in order to reach the conclusion that the person doing the act i.e. the alleged offender is conscious of the fact or should have reason to think that but for the fear or misconception, the consept would not have been given. While concluding, the scheme of Section 90 is couched in negative terminology. Again criminal jurisprudence further creates a distinction between the consent and submission. A consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Similar observations were made in case Rao Harnarain Singh Sheqjl Singh v. State , where Hon'ble Mir. Justice Tek Chand, while giving fine expression of consent elaborated as under:
There is a difference between consent and submission and every consent involves a submission but the converse does not follow and a mere act of submission does not Involve consent.
21. In other words, if there was no voluntary participation in the sexual act, it would not amount to consent but would fall more appropriately within Clause I of Section 375, IPC. Voluntary participation involves the exercise of intelligence based on the knowledge of its significance and moral quality of the act. Again exercise of intelligence is the exercise of choice between resistance and assent. As per Chambers 21st Century Dictionary, consent is: to give one's permission for it; to agree to it; to agree to do something, agreement, asset, permission. Again there is difference between consenting minor and consenting adult. The consenting adult is that who is over the age of 16 years who consents to do something especially sexual relationship as per Indian Penal Code. However, the consent is immaterial when it is against her will or when the prosecutrix is under 16 years of age. This fact has been defined in Section 375 of the Code which reads as under:
Section 375. A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:
First - Against her will.
Secondly - Without her consent.
Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly - With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly - With or without her consent, when she is under sixteen years of age.
Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age is not rape.
22. A woman can be said to have consented to the act only when:
(i) she has submitted herself wilfully and freely, while in a free possession of her physical or moral power to act in a manner she wanted;
(ii) she complied or approved of what is done or proposed by another;
(iii) her action implies exercise of free and intermingled right to overbid or withhold, what is being consented to;.
(iv) it must involve voluntary act and conscious acceptance of what is proposed to be done by another;
(v) the circumstances may indicate their agreement or feeling of unanimity or committed to feeling and opinion;
(vi) her silence over the submission of the body and permitting overt act without any resistance may be another circumstance for drawing such inference;
(vii) it involves no denial, no resistance and willing or agreed to do something.
23. Consent cannot be equated to inability to resist or helplessness. For example:
(i) if a rape is committed over a minor, of low or of no understanding, a blind or handicapped girl or a girl having no carnal knowledge of a woman;
(ii) no inference of consent could be drawn if helpless surrender due to sheer timidity, fear or terror is made.
(iii) No consent could be drawn objectively from the marks of violence over the body much less private parts of the prosecutrix and also from the medical examination of the accused preferably conducted within a short span of the act committed.
24. There may be cases where the credibility of the prosecutrix with regard to sexual offences could be made subject of question mark. Few of them may be as under:
(i) where the testimony of the prosecutrix does not inspire confidence of the Court;
(ii) her testimony smells of circumstances showing animus against the accused on the part of the prosecutrix;
(iii) where question of want of consent is material, the circumstances tending to show consent i.e. her conduct coupled with absence of material showing any attempt of resistance; absence of mark of struggle and chemical examiner's report negativing the oral version.
(iv) where the prosecutrix has made improvements or exaggerations in the version as set up by the prosecution;
(v) where appreciation of evidence speaks of element of artificiality and unnaturalness in the story as set up by the prosecution;
(vi) non-disclosure of the crime by the prosecutrix at the earliest opportunity could also contribute a circumstance against the nposecution.
25. The Apex Court in case State of Madhya Pradesh v. Babulal 2008 (1) RCC 145 : 2008 Cri LJ 714, also observed that in the western society false accusation regarding sexual molestation against male could be made for the following reasons:
1. The female may be a 'good digger' and may well have an economic motive to extract money by holding out the gun of prosecution or public exposure.
2. She may be suffering from psycho logical neurosis and may seek an escape from the neurotic prison by fantasizing or imagining a situation where she is desired, wanted, and chased by males.
3. She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general and may have the design to square the account.
4. She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta.
5. She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self-importance in the context of her inferiority complex.
6. She may do so on account of jealousy.
7. She may do so to win sympathy of others.
8. She may do so upon being repulsed.
26. As a matter of fact, in order to find ' out whether it was a case of consent or no consent, the decision over the factum was left to the wisdom of the Courts to make out the same from the facts and appreciation of the evidence prevailing over the case, while deciding the issue elaborately in case Pradeep Kumar v. State of Bihar 2007 (4) RCR 51 : 2007 Cri LJ 4333. The Apex Court approved the observations made in Rao Harnarain Singh Sheoji Singh's case 1958 Cri LJ 563 (supra) and observed that the consent could only be ascertained on careful study of all the relevant facts and circumstances of the case.
27. Taking conspectus of the entire evidence on record, we need to delineate that here in this case, the girl was picked up by the accused in his jeep on the pretext that she was to be left at her house and she believing him, being her neighbourer, agreed to his offer. While betraying the confidence, he took her to different side; administered some intoxicant; raped her; kept her confined and left her near her house. She being below 16 years of age was also not in a position to consent.
28. We are also not convinced with the argument that testimony of the prosecutrix alone is not sufficient to base the conviction. As a matter of fact, it depends on the subjective satisfaction of the Court and if it finds her testimony free from any blemish and having passed the test of cross-examination, then it should not look for any further corroboration and requiring corroboration would amount to an insult to the injury, because the prosecutrix would be the last person to throw dust over herself so as upon the accused for nothing. She would not put her own reputation at peril even if she or her family were developing any vendetta against the accused. In any case, not to bank upon the creditworthy testimony of the prosecutrix and to ask.for the corroboration of 14 years old prosecutrix who had to courage to depose against the accused while appearing in the witness box and withstanding the test of cross-examination would amount to making a challenge to the modesty and integrity of the womanhood. The Court has to go by the quality of evidence and not by the quantity. The accused in all normal circumstances would take all such precautions and choose a safe1 place for raping the minor. No witness was supposed to be present at the time of rape particularly when she was taken in a lonely room, served some intoxicant and thereafter raped. The question with regard to evaluation of solitary testimony of the prosecutrix arose before the Apex Court in case Rafiq v. State of Uttar Pradesh 1980 Cri LJ 1344, wherein Hon'ble Mr. Justice Krishna Iyer observed as under:
When no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her, he cannot cling to a fossil formula and insist on corroborative testimony, even if, taken as a whole, the case spoken to by the victim strikes a judicial mind as probable.... When a woman is ravished what is inflicted is not merely physical injury but the deep sense of some death less shame.... Judicial response to human rights cannot be blunted by legal bigotry.
29. Similarly, in Bharwada Bhoginbhai Hfrajibai v. State of Gujarat 1983 Cri LJ 1096, Thakkar, J. of Supreme Court observed as under:
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 adding insult to injury.... 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. She would be conscious of the danger of being ostracized by the society.... And when in the face of these factors the crime is brought to light there is a built in assurance that the charge is genuine rather than fabricated....
30. The prosecutrix in this case was of tender age. The case is not based on the testimony of the prosecutrix alone but the same find corroboration from her mother Baljeet Kaur (P.W. 4), the report Ex. PB given by the Chemical Examiner, the consensus opinion is that there is no reason to discard the prosecution version.
31. No other argument has been raised arid no law has been cited.
32. As an upshot of the, above discussions, we do not stand to differ with the observations made by the trial Court and maintain the conviction and sentence awarded against him.
33. Consequently, finding no merits in the appeal, the same is hereby dismissed.