Punjab-Haryana High Court
Crl. Appeal No.817-Sb Of 2 vs State Of Haryana on 24 February, 2011
Author: Kanwaljit Singh Ahluwalia
Bench: Kanwaljit Singh Ahluwalia
Crl. Appeal No.817-SB of 2000 &
Crl. Revision No.63 of 2001 -: 1 :-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
1. Crl. Appeal No.817-SB of 2000
Krishan Kumar and another
...Appellant(s)
v.
State of Haryana
...Respondent(s)
2. Crl. Revision No.63 of 2001
Sheela Devi
...Petitioner
v.
State of Haryana & Ors.
...Respondent(s)
Date of decision: February 24, 2011.
CORAM:
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Present: Shri J.C. Malik, Advocate, for the appellants.
Shri Sanjeev Sheokand, Advocate for the revision petitioner.
Shri Anoop Sharma, Assistant Advocate General, Haryana
for the respondent-State.
Kanwaljit Singh Ahluwalia, J. (Oral):
By this common order, Crl. Appeal No.817-SB of 2000 (preferred by Krishan Kumar and Surender Kumar alias Salender), and Crl. Revision No.63 of 2001 (preferred by Sheela Devi - complainant), shall be decided together.
Crl. Appeal No.817-SB of 2000 & Crl. Revision No.63 of 2001 -: 2 :- Present appellants, Krishan Kumar son of Om Parkash and Surender Kumar alias Salender son of Pirthi Ram were nominated as accused in case FIR No.109 dated 26.3.1999, registered at Police Station Safidon, under Section 376 IPC. The court of Additional Sessions Judge (I), Jind vide the impugned judgment dated 27.7.2000 held the appellants guilty of offence under Section 376(2)(g) IPC and vide order dated 28.7.2000 sentenced each of the accused to undergo RI for a period of ten years and to pay a fine of Rs.2,000/-, and in default of payment of fine, to undergo further RI for six months.
The prosecutrix, aged 13 years (name withheld to protect her identity), made statement Ex.PH on 26.3.1999 to ASI Chhotu Ram PW16, In-charge Police Post Mandi Safido. The Investigating Officer made endorsement Ex.PH/1 and sent the same to Police Station Safido and thereafter formal FIR Ex.PC was recorded.
The prosecutrix in her statement Ex.PH stated that she was resident of village Karkhana and had undertaken examination of 7th class. On 22.3.1999, her father Ishwar Singh, mother Omi Devi and brother Ram Niwas had gone to Bhanbhori Mela to worship Devi Mata. On 23.3.1999, she accompanied by Suman daughter of her Chacha (uncle) Balbir had gone to their fields Chatha Wala at about 2/3 p.m. for taking barsin (fodder). After cutting the barsin, the same was tied into a gathri. The prosecutrix called Salender, a neighbour, to help her to pick up the gathri. At that time, Krishan Kumar son of Om Parkash also came along with Salender. When Salender was helping the prosecutrix to pick up the gathri of barsin, Krishan caught hold of her from behind and made her lie on the ground. Then both the accused dragged her from barsin field to the wheat field of the Crl. Appeal No.817-SB of 2000 & Crl. Revision No.63 of 2001 -: 3 :- prosecutrix. There Krishan untied his pants and underwear, Salender forcibly broke open the string of the salwar. The prosecutrix raised q noise but Salender gagged her mouth. Then Krishan forcibly committed rape upon her. Thereafter, Salender committed rape. Suman, daughter of her uncle, ran away due to fear. After some time, Ram Ratti, aunt of the prosecutrix, came; on seeing her, both the accused fled away from the spot. Then Ram Ratti brought the prosecutrix to her house. On the next day, i.e., 24.3.1999, her brother Ram Niwas returned from the Mela. The prosecutrix narrated the whole occurrence to him. He took the prosecutrix for treatment to a private hospital. On return of her parents, a panchayat was convened on 25.3.1999 but the panchayat could not dispense any justice, therefore, on 26.3.1999, the prosecutrix accompanied by her parents went to report the matter to the police, then the IO met her and recorded her statement. The above stated FIR was investigated; report under Section 173 Cr.P.C. was submitted and the case was committed to the Court of Additional Sessions Judge at Jind.
On 9.8.1999, both the appellants were charged for committing rape. The charge stated that on 23.3.1999 at about 2/3 P.M. in the area of village Karkhana, they had committed rape upon the prosecutrix. Both the appellants pleaded not guilty and claimed trial.
Dr. Renu Aggarwal PW12, on 26.3.1999 at 10.30 a.m., medico- legally examined the prosecutrix, where her mother stated her age as 13 years. The doctor opined that on local examination, there were no external mark of injury. On external genitalia, there was blackish blood present on the vaginal orifice, may be menstrual blood. There were no external mark of injury on external genitalia. Hymen was partially ruptured. There was Crl. Appeal No.817-SB of 2000 & Crl. Revision No.63 of 2001 -: 4 :- no fresh bleeding present. Vagina admitted two fingers easily.
Counsel for the appellants has contended that in the medico- legally repot Ex.PK, the word "easily" is not mentioned, rather the words "admits two fingers with difficulty" find mention. PW13 Dr. Kuldip Singh Rana medico-legally examined Krishan and Salender, appellants and he stated that nothing was found to suggest that the appellants were unable to perform sexual act. However, this witness stated no struggle or nail marks were present on the body of the accused.
Prosecutrix herself appeared as PW8. She stated that she is a student of 8th class. On 22.3.1999, her parents, brother and other family members had gone to village Bhanbhori in connection with Mela of Devi known as Bhanbhori Devi. She along with her sister, Suman, on 23.3.1999, had gone to Chathewala field for bringing barsin (fodder). When they cut the barsin and tied the same in a gathri, help of appellant Salender was sought. Salender came along with accused Krishan. When Salender was helping in lifting the gathri of barsin, Krishan caught her from back side and made her to lie on the ground. Thereafter both the accused took her to a nearby wheat field of her uncle by lifting her. She was made to lie on the ground. When she attempted to raise a noise, accused Salender had gagged her mouth and also caught hold of the prosecutrix. Krishan undressed himself and committed sexual intercourse. Thereafter, accused Krishan had pulled his hand on the mouth of the prosecutrix and Salender had committed forcible sexual intercourse. Suman had left the place out of fear. On 24.3.1999, her brother Ram Niwas came from the Mela (fair). Entire occurrence was narrated to him. He took her to private hospital. On 25.3.1999, a panchayat was convened but the grievance of the appellant Crl. Appeal No.817-SB of 2000 & Crl. Revision No.63 of 2001 -: 5 :- could not be redressed. On 26.3.1999, they lodged the report. She also proved salwar Ex.P7 which she wore at the time of occurrence. She was confronted with her previous statement wherein she had not stated that she was lifted by both the accused and taken to the wheat field. In cross examination, she further stated that distance of the field from her house was one kilometer. She further admitted that she had not received any injury on her back, hands or legs. To impeach the credibility of the witness, she had been confronted with her previous statement.
Suman, who had accompanied the prosecutrix, to the field appeared as PW9. She corroborated the testimony of the prosecutrix. Ishwar Singh, father of the prosecutrix, appeared as PW10. He stated that on 25.3.19999, he had convened the panchayat; accused were summoned but they did not turn up. On 26.3.1999, he accompanied by his daughter was going to Police Station that the Investigating Officer met him and he recorded the statement. PW1 Ram Phal, Statistical Assistant in the office of the Additional Registrar, Births and Deaths, Jind proved from the record the date of birth of the prosecutrix and stated that as per their register, the date of birth of the prosecutrix is 16.6.1983 and the same is recorded at Sr. No.29 dated 27.6.1983. PW2 Ramdia, Patwari had prepared scaled site plan Ex.PB. PW3 Constable Ram Karan had carried the special report to the Ilaqa Magistrate. He stated that he delivered the special report to the Magistrate at 11.45 a.m. PW4 HC Dhanpat Singh, PW5 Constable Ram Phal and PW6 Constable Jagdish Chander had tendered their affidavits Ex.PD, PE and PF to prove the link evidence. PW7 SI Surinder Singh stated that he received a message that the offence of rape has been committed. He proceeded to the spot and when he reached there, he found Crl. Appeal No.817-SB of 2000 & Crl. Revision No.63 of 2001 -: 6 :- that ASI Chhotu Ram had already reached there and recorded the statement of the complainant. He further stated tat on 28.3.1999, he had arrested both the accused and got their medical examination conducted on 29.3.1999. PW11 Rajinder Singh proved photographs of the spot as Ex.P1 to P3 and negatives Ex.P4 to P6. PW14 ASI Hawa Singh had recorded the formal FIR on the basis of ruqa Ex.PH. PW15 Constable Devinder Singh stated that he got conducted medico-legal examination of the accused. PW16ASI Chhotu Ram stated about various facets of the investigation.
Thereafter, statement of the accused was recorded under Section 313 Cr.P.C. All incriminating evidence was put to them. Accused Krishan denied the same and gave the following version:-
"My uncle Hawa Singh contested election from the post of Sarpanch against Satish PW. Satish was elected as Sarpanch of the village and the complainant party were/are supporters of Satish and they in collusion with Satish with the consultation of Sh. Zile Singh, Advocate, Karnal, who is uncle of Satish PW, falsely involved in this case. I am innocent."
Similarly accused Salender gave the following version:-
"I am innocent and have been falsely involved in this case. The field of my father near about eight acres are adjacent to the fields of the father of the prosecutrix namely Ishwar Singh and the level of our fields is low than the fields of Ishwar Singh.
There is a tubewell in the field of Ishwar Singh and his brother near a katcha rasta and the direction of the delivery of the tubewell of Ishwar Singh is towards our fields. In the night of 25.3.99 when Ishwar Singh operated his tubewell for giving Crl. Appeal No.817-SB of 2000 & Crl. Revision No.63 of 2001 -: 7 :- water in his fields, the water of the tubewell came to our fields and spoiled the wheat crop of our fields and in the morning of 26.3.99 when I saw my wheat crop spoiled, an altercation took place between me and the father of the prosecutrix. Due to that reason at the instance of Satish Sarpanch of our village, the aforesaid false case was concocted and manipulated against me."
Shri J.C. Malik, Counsel appearing for the appellants, has stated in the first statement Ex.PH made by the prosecutrix, she had stated that she was dragged from the barsin field to the wheat field. Counsel states that the dragging will necessarily result into scratches, abrasion, contusion or laceration on the body of the prosecutrix. Counsel submits that in the medico-legal examination, no such injury was found on the body of the prosecutrix. Counsel has submitted that later wisdom dawned upon the prosecutrix and to overcome this discrepancy, she stated that both the accused had lifted her from the barsin field to the wheat field. Counsel has canvassed that with this blemish the prosecutrix was duly confronted with her previous statement Ex.PH. He further stated that the occurrence in the present case has taken place on 23.3.1999 whereas the special report reached the Magistrate on 26.3.1999 and thus, there was delay of 3 days and the delay has been utilized for deliberations and consultations to concoct a false version. Counsel has further referred to the statement of accused Krishan recorded under Section 313 Cr.P.C. to submit that they have been falsely implicated due to party faction in the village.
Shri Malik further canvassed before me that no reliance can be placed upon the birth entry made in the register at Sr. No.29 as it has not Crl. Appeal No.817-SB of 2000 & Crl. Revision No.63 of 2001 -: 8 :- come in the record that as to who disclosed the age of the prosecutrix. Counsel states that birth certificate Ex.PA is to be excluded out of consideration. Counsel submits that the prosecution has not complied with the provisions of section 35 of the Indian Evidence Act as the person who had divulged the information regarding date of birth of the prosecutrix has not been examined. Counsel has submitted that in fact the prosecutrix was little less than 16 years and no ossification test was conducted.
Counsel for the appellants has further submitted that Ram Niwas, brother of the prosecutrix, who had taken her to the private hospital at Panipat, has been withheld from the court. Counsel further states that prescription slip given by the private doctor has not been proved on the record and the same has been assigned Mark 'A'. Counsel states that it was incumbent upon the prosecution to bring on record the first medico-legal report so that the court could have an overall view to assess whether the prosecutrix was subjected to sexual intercourse or not. Counsel for the appellants has further submitted that the prosecutrix stated that on 27.9.1999, she had gone to the house of her maternal uncle whereas PW7, the Investigating Officer, has stated on 27.9.1999, prosecutrix was present when 100 odd people had gathered at the canal bridge of the village. Counsel states that, therefore, the prosecutrix has made a statement which is contradictory to the deposition of PW7 Surinder Singh Investigating Officer. Thus, no reliance should be placed upon the testimony of the prosecutrix. Counsel has pointed out various discrepancies. This Court need not to notice them as with the passage of time, they are bound to occur in the deposition of the witnesses.
From the arguments raised by Counsel for the appellants that Crl. Appeal No.817-SB of 2000 & Crl. Revision No.63 of 2001 -: 9 :- there is delay in lodging the report, is of no consequence as it has come in the deposition of the prosecutrix that on the fateful day of occurrence, her father, mother and brother had gone to the Mela and they only returned on 24.3.1999. On 25.3.1999, a panchayat was convened. Since the grievance of the complainant was not redressed by the panchayat, on the next day, i.e., 26.3.1999, they had gone to lodge the report.
In 'Gita Ram v. State of H.P.' 2002 Cri.L.J.3832, Himachal Pradesh High Court has held that the delay in lodging of the report is of no consequence as victim of sexual assault face a lot of difficulty to come forward to depose against the accused, as the reputation of family of the prosecutrix is at stake. In 'State of Punjab v. Gurmit Singh' (1996) 2 SCC 384, it was held as under:
"21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violate the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the Crl. Appeal No.817-SB of 2000 & Crl. Revision No.63 of 2001 -: 10 :- prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it different to place implicit reliance on 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.' Prosecutrix was aged less than 16 years. It was but natural for her to wait for her parents. The Hon'ble Apex Court, in 'State of Maharasthra v. Chandraprakash Kewalchand Jain' (1990) 1 SCC 550, observed as under:
"15. It is necessary at the outset to state what the approach of the court should be while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex offences. Is it essential that the evidence of the prosecutrix should be corroborated in material particulars before the court bases a conviction on her testimony ? Does the rule of prudence demand that in all cases save the rarest of rare the court should look for corroboration before acting on the evidence of the prosecutrix ? Let us see if the Evidence Act provides the clue. Under the said statute 'Evidence' means and includes all statements which the court permits or requires to be made before it by witnesses, in relation to the matters of fact under inquiry. Under Section 59 all facts, except the contents of documents, may be proved by oral evidence. Section 118 then tells us who may give oral evidence. According to that section all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Even in the case of Crl. Appeal No.817-SB of 2000 & Crl. Revision No.63 of 2001 -: 11 :- an accomplice Section 133 provides that he shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, illustration (b) to Section 114, which lays down a rule of practice, says that the court 'may' presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus under Section 133, which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not illegal although in view of Section 114, illustration (b), courts do not as a matter of practice do so and look for corroboration in material particulars. This is the conjoint effect of Sections 133 and 114, illustration (b).
16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the Crl. Appeal No.817-SB of 2000 & Crl. Revision No.63 of 2001 -: 12 :- facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage:
"It is only in the rarest of rare cases if the court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary."
With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation.
17. We think it proper, having regard to the increase in the number of sex violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material Crl. Appeal No.817-SB of 2000 & Crl. Revision No.63 of 2001 -: 13 :- particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the western and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eve- teasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. The standard of proof to be expected by the court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity."
In the present case, the prosecutrix has explained in the court that the accused had made her to lie on the barsin field. Thereafter, she was lifted to wheat field. This Court cannot become oblivious of the fact that two hale and hearty persons had overpowered a woman of tender age and had committed sexual intercourse. Therefore, it is not necessary that there should have been scratches, abrasions or contusions on the body of the prosecutrix. A perusal of the statement of the prosecutrix inspires confidence which has been duly corroborated by Suman PW9 and her father Ishwar PW10. Thus, this Court cannot come to the rescue of the appellants. There is no merit in the appeal. Hence, the same is dismissed.
The appeal filed by the appellants has been dismissed and sentence has been upheld, therefore, no interference is warranted in the Crl. Appeal No.817-SB of 2000 & Crl. Revision No.63 of 2001 -: 14 :- present revision petition for enhancement of the sentence of fine and the same is also dismissed.
[Kanwaljit Singh Ahluwalia] February 24, 2011. Judge kadyan