Punjab-Haryana High Court
Devinder Alias Lala vs State Of Haryana on 31 January, 2014
Author: Surinder Gupta
Bench: Surinder Gupta
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl. Appeal No. S-674-SB of 2002
Date of decision: January 31, 2014
Devinder alias Lala
.. Appellant
Vs.
State of Haryana
.. Respondent
Coram: Hon'ble Mr. Justice Surinder Gupta
Present: Mr. Abhimanyu Singh, Advocate for
Mr. Raj Mohan Singh, Advocate
for the appellant.
Mr. Gurvinder S. Sandhu, AAG, Haryana.
Surinder Gupta, J
This appeal is directed against the judgment dated
8.4.2002/9.4.2002 passed by the Additional Sessions Judge, Faridabad convicting and sentencing the appellant for offence punishable under Section 376 and 506 IPC.
FIR No.874 dated 24.11.1997 was registered at Police Station City Palwal for offence under Sections 376/506 IPC, on the statement of the prosecutrix (name withheld) wherein she had stated that on 23.11.1997, she along with her eldest daughter had gone to Palwal to consult the doctor for severe pain in her tooth. At about 7.00 p.m. after taking medicine she was returning home and reached ahead of Delhi bye-pass, on 'Kacha path' by the side of the road. The appellant came there on a scooter and told the prosecutrix that he was waiting for her. He addressed the prosecutrix as 'Aunty' but exhibited his bad intention, at which the prosecutrix started running with her daughter. The appellant caught and put her on the ground and took out knife from his pocket. He broke open the string of her Salwar. Kumar Deepak 2014.02.20 10:46 I attest to the accuracy and integrity of this document Crl. Appeal No. S-674-SB of 2002 -2- She raised 'raula' but due to night time and forest area, no body came there. The appellant committed rape on her despite resistance by the prosecutrix. She gave tooth bite on the face of the appellant. The daughter of the prosecutrix kept on weeping. After committing rape, the appellant went away giving threat that in case the matter was reported, he will kill the prosecutrix.
On return to her house, the prosecutrix narrated the entire incident to her mother-in-law, as her husband was not at home. The mother- in-law of the prosecutrix took the prosecutrix to the house of the appellant to register protest where the elder brother of the appellant and his mother started quarreling with them. It was night time, as such, they came back and reported the matter to the police on the next day, vide statement of the prosecutrix Ex.PA, whereupon FIR Ex.PA/2 was registered.
The appellant was arrested and after completion of the investigation, challan was presented against him in the Court of Judicial Magistrate First Class, Palwal, who committed the same to the Court of Sessions for trial.
Charge for offence under Sections 376/506 IPC was framed against the appellant and after completion of the trial, the appellant was convicted and sentenced to undergo rigorous imprisonment for seven years and to pay fine of `4000/- under Section 376 IPC, in default of payment of fine to further undergo rigorous imprisonment for four months. The appellant was further sentenced to undergo rigorous imprisonment for one year and to pay fine of `1000/- for offence under Section 506 IPC and in default of payment of fine to further undergo rigorous imprisonment for one month.
Kumar Deepak2014.02.20 10:46 I attest to the accuracy and integrity of this document Crl. Appeal No. S-674-SB of 2002 -3-
I have heard learned counsel for the appellant, learned State counsel and have gone through the record with their assistance.
Learned counsel for the appellant has argued that the police recorded the statement of the prosecutrix on 24.11.1997 at 10.30 a.m. The occurrence had taken place on 23.11.1997 at about 7.00 p.m. The delay of 15 hours in reporting the matter to the police has not been explained.
The main prosecution witness, namely, the prosecutrix who appeared in the witness box as PW-2 and her daughter (PW-3) are discrepant on material points as follows :-
(i) The prosecutrix has stated that her clothes did not get torn during the occurrence while her daughter has stated that all the clothes of her mother were torn.
(ii) As per prosecutrix, the appellant stayed with her for about 10-15 minutes while her daughter has stated that she remained on the road for about one hour while during this period, the appellant and her mother remained in the bushes.
(iii) The prosecutrix has stated that she was not having prescription slip while her daughter has stated that the prescription slip was given by the doctor in writing.
The place of occurrence was a very busy road. As per prosecutrix and her daughter, they had raised alarm and it is quite strange that no body came to the spot. The site of occurrence was Delhi bye-pass road where a lot of traffic keep on passing and this makes the version as given by the prosecutrix doubtful. Learned counsel for the appellant has Kumar Deepak 2014.02.20 10:46 I attest to the accuracy and integrity of this document Crl. Appeal No. S-674-SB of 2002 -4- further argued that even if any such occurrence took place, in that event, it was a consent case. The appellant is living at the back of the house of the prosecutrix. As per the daughter of the prosecutrix, both had remained in the bushes for about one hour while she was standing on the road during this period. The clothes of the prosecutrix were not got torn during the scuffle as alleged by her. All these facts when taken together are indicative of the consensual act of the parties.
The learned State counsel has argued that it is a case where the commission of rape by the appellant is proved beyond shadow of doubt. The prosecutrix has not only resisted the assault on her but had also given tooth bite on the face of the appellant, which was found at the time of his medical examination. The signs of violence and abrasion injuries on the leg of the prosecutrix were found during her medical examination.
The arguments advanced by learned counsel for appellant give rise to following points for determination in this appeal :-
1. Delay in reporting the matter to the police.
2. Effect of contradictions in the testimony of the prosecutrix and her daughter.
3. Effect of absence of independent corroboration to the statement of prosecutrix.
4. Whether it was a consensual act.
Delay in reporting the matter to police The matter was reported to the police after about 15 hours of the occurrence which took place at about 7.00 p.m. on 23.11.1997. It gets dark by 7.00 p.m. in the month of November. The occurrence had taken place at a secluded place by the side of the road. After the occurrence the Kumar Deepak 2014.02.20 10:46 I attest to the accuracy and integrity of this document Crl. Appeal No. S-674-SB of 2002 -5- priority of the prosecutrix was to reach home with her minor daughter. She has stated that on reaching home, she narrated the entire incident to her mother-in-law as her husband was not there. It was only on the next morning, she along with her brother-in-law (younger brother of her husband) approached the police and got the FIR registered. She in this manner has duly explained the delay. Even otherwise, in the facts and circumstances of the case, the delay in reporting the matter to the police is not fatal to the case of the prosecution in any manner. The Supreme Court in the case of Ravinder Kumar vs. State of Punjab AIR 2001 SC 3570 observed as follows :-
"14. When there in criticism on the ground that FIR in a case was delayed the court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people might be ignorant of the need for informing the police of a crime without any lapse of time. This kind of unconversantness is not too uncommon among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack to adequate transport facilities for the informers to reach the police station. The third, which is a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet another cause is, the persons who are supposed to give Kumar Deepak 2014.02.20 10:46 such information them-selves could be so physically impaired I attest to the accuracy and integrity of this document Crl. Appeal No. S-674-SB of 2002 -6- that the police had to reach them on getting some nebulous information about the incident.
15. We are not providing an exhausting catalogue of instances which could cause delay in lodging the FIR. Our effort is to try to point out that the stale demand made in the Criminal Courts to treat the FIR vitiated merely on the ground of delay in its lodgment cannot be approved as a legal corollary. In any case, where there is delay in making the FIR the Court is to look at the causes for it and if such causes are not attributable to any effort to concoct a version no consequence shall be attached to the mere delay in lodging the FIR. [Vide Zahoor vs State of U.P. (1991 Suppl. (1) SCC 372, Tara Singh vs. State of Punjab, 1991 Suppl. (1) SCC 536; Jamna vs. State of U.P. 1994 (1) SCC 185. In Tara Singh (Supra) the Court made the following observations:
"It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. Kumar Deepak 2014.02.20 10:46 After all it is but natural in these circumstances for them I attest to the accuracy and integrity of this document Crl. Appeal No. S-674-SB of 2002 -7- to take some time to go to the police station for giving the report."
In the case of State of Punjab vs. Gurmit Singh (1996) 2 SCC 384 the Supreme Court while dealing with the point of delay in reporting the matter of sexual offences to the police, observed as follows :-
"8............... The courts cannot over-look the fact that in sexual offences delay in the 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 reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged....."
In the present case, the prosecutrix immediately narrated the incident to her mother-in-law on reaching home. Her husband was not at home as he worked at Okhla Mandi, Delhi. It was night hours and instead of venturing out during night, she reported the matter to police the next day. The appellant has not made out any reason or motive for his false implication, except giving a bald suggestion to the prosecutrix that the entire version has been concocted, due to strained relations of family of prosecutrix and family of appellant without further elaborating this plea.
In view of the facts and circumstances as discussed above, the first contention of the learned counsel for the appellant has no merits.
Contradictions in the statements of prosecutrix and her daughter I have carefully gone through the contradictions in the statements of the prosecutrix and her daughter, as pointed out by the learned Kumar Deepak 2014.02.20 10:46 I attest to the accuracy and integrity of this document Crl. Appeal No. S-674-SB of 2002 -8- counsel for the appellant. These contradictions are not material because of the fact that, firstly, daughter of the prosecutrix was a child of 11 years at the time of occurrence and she deposed in the court after about 13 or 14 months of the occurrence. Both these witnesses have deposed regarding rape on the prosecutrix. As to whether the incident took place in about 15 minutes or one hour or clothes of the prosecutrix were torn or not, is not a matter which goes to the root of the case or in any manner shatter the case of the prosecution. The discrepancies has to be distinguished from the contradictions. In case State of Himachal Pradesh vs. Lekh Raj (2000) 1 SCC 247, the Hon'ble Supreme Court has observed as follows :-
5. In support of the impugned judgment the learned counsel appearing for the respondents vainly attempted to point out some discrepancies in the statement of the prosecutrix and other witnesses for discrediting the prosecution version.
Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incidence there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is Kumar Deepak 2014.02.20 10:46 required to be had to the circumstances of the case by keeping I attest to the accuracy and integrity of this document Crl. Appeal No. S-674-SB of 2002 -9- in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala, [1974] 3 SCC 767, held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagdish v. State of Madhya Pradesh, [1981] SCC (Crl.) 676, this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v, Kalki & Anr., [1981] 2 SCC 752 held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
6. Referring to and relying upon the earlier judgments of this Court in State of U.P. v, M.K. Anthony, AIR (1985) SC 48, Tehsildar Singh and Anr. v State of U.P., AIR (1959) SC 1012; Appabhai and Anr. v. State of Gujarat, JT 1988) 1 SC 249; Rami alias Rameshwar v. State of Madhya Pradesh, JT (1999) 7 SC 247 and Bhura alias Sajjan Kumar v. State of Madhya Pradesh, JT (1999) 7 SC 247, this Court in a recent case Leela Kumar Deepak 2014.02.20 10:46 Ham v. State of Haryana and Anr., JT(1999)8SC 274 held: I attest to the accuracy and integrity of this document Crl. Appeal No. S-674-SB of 2002 -10-
"There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embelishment, there may be, but variations by reason therefore should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence...........
The Court shall have to bear in mind that different witnesses react differently under different situations :
whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise."
This argument of the learned counsel for the appellant, as such, carries no weight and is repelled.
Kumar Deepak 2014.02.20 10:46 I attest to the accuracy and integrity of this document Crl. Appeal No. S-674-SB of 2002 -11-
Absence of independent corroboration to the testimony of prosecutrix.
The appellant has been convicted for committing rape on the prosecutrix. It is such an offence which is not committed in open or can have any eye witness. Corroboration is not the sine qua non for a conviction in a rape case. In the case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, AIR 1983 SC 753, Hon'ble Supreme Court has discussed in detail the plight of the victim of sexual assault and has observed that refusal to act on the testimony of the prosecutrix, in the absence of any corroboration as a rule add insult to the injury.
In Gurmit Singh's case (supra), Hon'ble Supreme Court while evaluating the the statement of the prosecutrix has observed as follows :-
"...... 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 over-look. The testimony of the victim in Kumar Deepak 2014.02.20 10:46 I attest to the accuracy and integrity of this document Crl. Appeal No. S-674-SB of 2002 -12- 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 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 at par with the evidence of an 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, is 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 Kumar Deepak 2014.02.20 10:46 testimony of the prosecutrix is not a requirement of law but a I attest to the accuracy and integrity of this document Crl. Appeal No. S-674-SB of 2002 -13- guidance of prudence under given circumstances. It must not be over-looked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another persons'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. Inferences 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 probable."
In para 21 of the aforesaid judgment, the Hon'ble Supreme Court has observed as follows :-
"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 violates 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 Kumar Deepak 2014.02.20 10:46 I attest to the accuracy and integrity of this document Crl. Appeal No. S-674-SB of 2002 -14- 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 inspirers confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on 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."
In this case, it is not only the testimony of the daughter of the prosecutrix which support the statement of the prosecutrix but the medical evidence further corroborates it. The prosecutrix has stated that when the appellant caught her, a lot of scuffle ensued. She gave tooth bite on his face and also pulled his hairs.
The medical examination of the appellant was conducted by Dr. Ramesh Kumar (PW6). He had found the injury on the face of the appellant. The colour of the injury was reddish. He has described the Kumar Deepak 2014.02.20 10:46 I attest to the accuracy and integrity of this document Crl. Appeal No. S-674-SB of 2002 -15- aforesaid injury, in his statement, as follows :-
"The healing has taken place. Colour is reddish. Can be cut by teeth. Size upper 0.75x0.25 cm. Convexing down wards. Size lower 0.75 x 0.25 cm convexing upwards."
No suggestion was given to the appellant that this injury found on the face of the appellant could be caused in any other manner than as stated by the prosecutrix.
The prosecutrix was medically examined by Dr. (Mrs.) Shashi Bala (PW8). She could not opine about the performance of rape on the prosecutrix as she was a married woman and having three children. However, she observed signs of violence present and traces of semen were found on the vaginal swab and clothes of the prosecutrix. There was abrasion injury on the right leg and pain in both the shoulders of the prosecutrix which suggest of violence and scuffle that had taken place at the time of sexual assault on her. All this evidence is sufficient to make the testimony of the prosecutrix believable and reliable.
It has been argued that place of occurrence was Delhi bye-pass having a lot of traffic as such it was not possible that when the prosecutrix and her daughter were crying, no vehicle or passer-by had stopped there. This contention of learned counsel for the appellant has no substance. A reference to the site plan Ex.PB show that the place of occurrence was on the passage leading to the village of the prosecutrix. It is far away from the Delhi bye-pass. In the site plan (Ex.PD) prepared by the Investigating Officer, the place of occurrence had been shown at a distance from Delhi bye-pass. It is quite possible that at night time there was no traffic on this kacha passage. In view of the evidence that has come on file this contention Kumar Deepak 2014.02.20 10:46 I attest to the accuracy and integrity of this document Crl. Appeal No. S-674-SB of 2002 -16- of the learned counsel for the appellant that the statement of the prosecutrix should not be relied upon in the absence of any independent corroboration is rejected.
Plea of consensual act This is a new argument raised by the learned counsel for appellant. The appellant has never raised the plea of consensual intercourse with the prosecutrix. This fact was also never suggested to the prosecutrix when she appeared to make statement. Even in his statement under Section 313 Cr.P.C. the appellant had taken the defence as follows :-
"I have been falsely implicated in this case and am innocent. I never committed rape upon the prosecutrix. I have been falsely involved in this case due to strained relations between my family and the family of the prosecutrix."
In the absence of any plea, this argument of the learned counsel for the appellant cannot be given any weight.
As a result of aforesaid, I find that the prosecution has proved the charge framed against the accused beyond any shadow of doubt and he has been rightly convicted and sentenced by the trial court. No ground for interference in the judgment of trial court is made out. The conviction of the appellant and sentence awarded for offence under Sections 376 and 506 IPC is maintained.
The appeal has no merits and is dismissed.
The appellant is directed to surrender in the court of the Chief Judicial Magistrate, Faridabad for serving remaining part of the sentence. In the event of his failure of surrender within four weeks, the Chief Judicial Magistrate, Faridabad shall initiate steps to procure his custody and send to Kumar Deepak 2014.02.20 10:46 I attest to the accuracy and integrity of this document Crl. Appeal No. S-674-SB of 2002 -17- jail to undergo remaining part of the sentence.
Before parting the trial courts are reminded of the observations of the Hon'ble Supreme Court in Gurmit Singh's case (supra) which are as follows :-
"24....... In the present case, the trial Court has repeatedly used the name of the victim in its order under appeal, when it could have just referred to her as the prosecutrix. We need say no more on this aspect and hope that the trial Courts would take recourse to the provisions of Sections 327 (2) and (3) Criminal Procedure Code liberally......"
In the instant case, the trial court has repeatedly discussed the name of the prosecutrix which could be avoided while dealing with the case of sexual assault at on woman/girl/minor child.
January 31, 2014 (Surinder Gupta)
deepak Judge
Kumar Deepak
2014.02.20 10:46
I attest to the accuracy and
integrity of this document