Punjab-Haryana High Court
Baljit Singh vs State Of Haryana on 19 February, 2014
CRA-S-601-SB-2002 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
*****
CRA-S-601-SB-2002
Date of Decision : 19.02.2014
Baljit Singh ...Appellant
Versus
State of Haryana ... Respondent
CORAM : HON'BLE MR. JUSTICE MAHAVIR S. CHAUHAN
Present : Mr. R.N.Lohan, Advocate,
for the appellant.
Mr. Rajat Mor, Deputy Advocate General, Haryana,
for the respondent-State.
*****
1. Whether Reporters of local papers may be allowed to see the judgment?
Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
*****
MAHAVIR S. CHAUHAN, J.
Judgment of conviction dated 01.03.2002 and order of sentence dated 04.03.2002 passed by the Court of learned Sessions Judge, Jind (trial court, for short), in Sessions Case No.29 of 2000/Sessions Trial No.07 of 2001, convicting and sentencing appellant-Baljit Singh to rigorous imprisonment for a period of seven years, besides a fine of Rs.3,000/- and in default of payment of fine to undergo further rigorous imprisonment for one year for commission of an offence under Section 376 of the Indian Penal Code, 1860 (IPC, for Virendra singh adhikari 2014.03.06 18:54 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-S-601-SB-2002 -2- short), are under challenge in this appeal brought by the convict/appellant under sub-section (2) of Section 374 of the Criminal Procedure Code, 1973 (CrPC, for short).
State is contesting the appeal.
Fact situation resulting into this appeal indicates that at or around 01:00 p.m. on 23.05.2000, prosecutrix 'A' and her friend, prosecutrix 'S', while going towards the marketplace, when reached in the vicinity of house of Amrit Jat, appellant-Baljit Singh and Sudhir (since deceased and his appeal abated), who were standing there in the street, by force took them inside Dhan Kumar's house. When the two girls tried to make a clamour, the appellant and Sudhir gagged their mouths. Appellant forcibly unstringed "salwaar" of prosecutrix 'A'; made her to lie on a "takhat" (a wooden bed) lying there; and subjected her to sexual intercourse against her inclination and consent. Sudhir also tried, but failed to demolish chastity of the other prosecutrix. Cries raised by the girls attracted Balmat, Satyavan, Harikesh, Kehar Singh and others to the spot, who forced open the door and rescued the two girls from the clutches of the appellant and Sudhir and caught the appellant, who even received some injuries while being overpowered. Sudhir, nevertheless, was able to make good his escape.
Prosecutrix 'A' laid open this episode before ASI Sajjan Singh, the Investigating Officer, who reduced it into writing (Exhibit PN) whereupon a formal First Information Report (FIR, for short) (Exhibit PN/2) was recorded. Virendra singh adhikari 2014.03.06 18:54 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-S-601-SB-2002 -3- The matter was investigated into; the two boys and girls were medico-legally examined; and on completion of investigation, a report in terms of sub-section (2) of Section 173, CrPC, was presented before the learned Jurisdictional Magistrate, who complied with the provisions of Section 207, CrPC, and on perusal of the report and documents appended therewith, found offences of Sections 376 and 511, IPC, to be, prima facie, made out against the accused and, offence of Section 376, IPC, being triable exclusively by the Court of Session, committed the case to the Court of Session at Jind in terms of Section 209, CrPC.
Learned trial court, on hearing the prosecution and the defence and on perusal of the report and its annexures found ground to presume commission of an offence punishable under Section 376, IPC, by the appellant and an offence punishable under Section 376 read with Section 511, IPC, by Sudhir and charged them accordingly. The accused pleaded not guilt to the charge and claimed trial.
Prosecution examined PW1-Dr. Ashwani Kumar, PW2-HC Azad Singh, PW3-Constable Parkash Chand, PW4-Constable Dilbag Singh, PW5- Constable Gian Singh, PW6-Dr. Kuldeep Rana, PW7-Dr. Dhan Kumar, PW8- Dr. Malti Gupta, PW11-Inspector Yad Ram, PW12- ASI Sajjan Singh, the Investigating Officer and PW9 and PW10-Prosecutrix 'A' and 'S', respectively.
When witnesses on behalf of the prosecution had been examined, learned trial court questioned the accused generally on the evidence available Virendra singh adhikari 2014.03.06 18:54 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-S-601-SB-2002 -4- on record so as to afford them an opportunity to put-forth their explanation in respect of the incriminating circumstances brought on record in the evidence of the prosecution as required by Section 313, CrPC. The accused denied all the circumstances as false and incorrect and reiterated their plea of innocence and false implication. Appellant-Baljit Singh also came out with a plea that the prosecutrix 'A' used to write love letters to him, and on behalf of the other prosecutrix 'S', to Sudhir and would pressurize him to elope with her. In one of such letters, the prosecutrix 'A', according to the appellant, even suggested that the appellant should come near wall of the village at about 10:00 a.m. and she would accompany him from that place but he had refused to do so. However, when prosecutrix 'A' was coming to hand over a letter to him, this became known to her parents and other relatives, who approached him when he was on main Jind-Kaithal road, caught hold of him and caused injuries to him. On having come to know of it, his father brought him to Civil Hospital, Jind, and got him admitted there.
After taking the evidence for the prosecution, examining the accused and hearing prosecution and defence, the learned trial court did not consider it appropriate to acquit the accused in terms of Section 232, CrPC, and, therefore, called upon them to enter on their defence and adduce any evidence they might have in support thereof.
Appellant examined Yashpal Chand Jain, Handwriting and Finger Prints Expert as DW1, in his defence.
Virendra singh adhikari 2014.03.06 18:54 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-S-601-SB-2002 -5-
When examination of the witnesses for the defence was complete, the prosecutor summed up the case and the defence replied it. However, after hearing both the sides, the learned trial court came to a conclusion that the prosecution was able to prove guilt of the appellant punishable under Section 376, IPC, and that of Sudhir under Section 354, IPC, and, accordingly, vide judgment of conviction dated 01.03.2002 and order of sentence dated 04.03.2002, held them guilty, convicted them and sentenced the appellant to rigorous imprisonment for a term of seven years besides a fine amounting to Rs. 3000/- and in default of payment of fine to further rigorous imprisonment for a term of one year; and restrict award of punishment to Sudhir to the imprisonment already undergone by him during investigation and trial.
I have heard learned counsel for the appellant and learned Deputy Advocate General representing the respondent-State.
Learned counsel for the appellant impugns the correctness of the findings of conviction recorded by the learned trial court primarily on the grounds that the prosecutrix 'A' while appearing as PW9 has contradicted her statement (Exhibit PN) because in her statement (Exhibit PN), she had stated that appellant-Baljit Singh was produced before the police by her relatives but while appearing as PW9, she has not stated so; that from the letters (Exhibits DA, DB and DC), which according to the Handwriting and Finger Prints Expert, DW1-Yashpal Chand Jain, were written by the prosecutrix 'A', it is evident that she was in love with the appellant and, as such, was a consenting Virendra singh adhikari 2014.03.06 18:54 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-S-601-SB-2002 -6- party in the sex act; that non-availability of any injury on her private parts also supports appellant's plea that she was a consenting party; and that fact of the matter is that the appellant was caught by her parents and relatives while being handed over a letter by her and was given beatings for which he was taken to hospital by his father. According to the learned counsel for the appellant, a false story has been coined by the prosecution to implicate the appellant in the instant case.
Ad Finem, learned counsel for the appellant submits that the appellant has already suffered by way of a protracted trial; he is in custody for the last about 22 months; and, as such, deserves leniency even if this Court comes to the conclusion that case against him has been fully established.
Per Contra, the learned Deputy Advocate General, appearing on behalf of the respondent-State, submits that merely because the Handwriting and Finger Prints Expert, DW1-Yashpal Chand Jain has opined that writing of the letters (Exhibits DA, DB and DC) is similar to the handwriting of prosecutrix 'A', it cannot be presumed that she had consented to the untoward act and, even otherwise, this has never been the plea of the appellant before the learned trial court. As regards the allegation that the appellant was thrashed by parents and relatives of prosecutrix 'A', the learned Deputy Advocate General argues that this is an after-thought because were it so, the appellant would have lodged a report against the parents and the relatives, who, according to him, had thrashed him but making a report to the police apart, he did not even said so before PW1-Dr. Ashwani Kumar, by whom he was admitted in the hospital Virendra singh adhikari 2014.03.06 18:54 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-S-601-SB-2002 -7- and was treated.
As regards the contradiction/variation in the statement of prosecutrix 'A' as PW9, the learned Deputy Advocate General submits that this hardly can be said to be a contradiction and, even otherwise, merely on the basis of omission of prosecutrix 'A', while appearing as PW9, to say that appellant was produced by her parents and relatives before the police, findings of conviction recorded by the learned trial court cannot be set aside as these are based on the statement of prosecutrix 'A' and are corroborated by medical evidence and other evidence.
Nothing more has been urged on either side.
Prosecutrix 'A' appeared before the learned trial Court as PW9 and reiterated on solemn affirmation that on the fateful day, at or around 01:00 p.m., she and the other prosecutrix were caught by the appellant and Sudhir; were taken to house of Dhan Kumar where the appellant made her to lie on a takhat lying there, unstringed her salwaar and subjected her to forced coitus; when she cried for help, Balmat, Satyavan, Harikesh, Kehar Singh and a few others were attracted to the spot, who overpowered the appellant and rescued her; and in the process, appellant also received some injuries. She has also admitted to have made statement (Exhibit PN) before the police and has identified her signatures thereon, besides identifying her salwaar (Exhibit P8), which she was wearing at the time of the occurrence. She has been able to survive the grueling test of a very extensive and backbreaking cross- Virendra singh adhikari 2014.03.06 18:54 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-S-601-SB-2002 -8- examination, except for a few trifling variations here and there.
As observed in Bhupinder Sharma V. State of H.P., AIR 2003 SC 4684, 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 inbuilt assurance that the charge is genuine rather than fabricated. Just as a witness who has sustained an injury, which is not shown or believed to be self-inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case.
Similarly in Ranjit Hazarika vs. State of Assam, (1998) 8 SCC 635, it has been held as under:
"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 overlook. The Virendra singh adhikari 2014.03.06 18:54 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-S-601-SB-2002 -9- testimony of the victim in 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 leveled 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 on a 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 testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person'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 Virendra singh adhikari 2014.03.06 18:54 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-S-601-SB-2002 -10- 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."
A perusal of the cited judgments though indicates that statement of a prosecutrix that she has been sexually ravished by the accused in itself is sufficient to support a finding of conviction against the accused and no corroboration can be insisted upon yet in the case on hand corroboration is existing aplenty.
PW1-Dr. Ashwani Kumar had examined the appellant. He has proved medico-legal report (Exhibit PA), according to which some injuries were found on the person of the appellant. He has also stated that on medico- legal examination of the appellant, he found him fit to commit sexual intercourse, his primary and secondary sex characters to be developed and found nothing to suggest that he could not perform the sex act in conscious state. While cross-examining the witness, the appellant did not dispute the correctness of the finding as referred to above with regard to his potency.
Dr. Malti Gupta, Medical Officer, General Hospital, Jind, while appearing as PW8, has stated that on 23.05.2000, she examined prosecutrix 'A' and found that while no external marks of injury were there on her body, her hymen was completely torn and vagina admitted two fingers. She took swabs from cervix and vagina and sent the same for forensic examination. She has also proved medico-legal report pertaining to prosecutrix 'A' as Exhibit PK and has also identified the salwaar which prosecutrix 'A' was wearing at the time of Virendra singh adhikari 2014.03.06 18:54 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-S-601-SB-2002 -11- occurrence.
Report of Forensic Science Laboratory, Exhibit PG, reveals that semen was detected on pants of the accused and in the swabs.
Not only this, the other prosecutrix, named 'S', while appearing as PW10, has also corroborated deposition of prosecutrix 'A', by stating that the appellant and Sudhir took both of them inside a house where appellant sexually assaulted prosecutrix 'A' but Sudhir did not succeed in his attempt to rape her. She has also passed the litmus test of cross examination successfully.
Certainly consent is no defence if the victim has been proved to be under 16 years of age. If she be of 16 years of age or above, her consent cannot be presumed; and an inference as to consent can be drawn only from the evidence or probabilities of the case. The victim of rape stating on oath that she was forcibly subjected to sexual intercourse or that the act was done without her consent, has to be believed and accepted like any other testimony unless there is material available to draw an inference as to her consent or else the testimony of prosecutrix is such as would be inherently improbable. It may be apposite to refer here to a judgment rendered by Hon'ble Supreme Court of India on January 15, 2014, in the case of State of Rajasthan versus Roshan Khan, (2014)2 SCC 476: 2014(1) SCALE 329 wherein it has been held as under:
"15. We cannot accept the submission of Mr. Siddharth Dave, learned amicus curiae for Respondent No. 5 that the finding given by the High Court that the prosecutrix may have gone with the accused persons on her own is a Virendra singh adhikari 2014.03.06 18:54 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-S-601-SB-2002 -12- plausible one and should not be interfered with under Article 136 of the Constitution. As we have already noticed, the prosecutrix (PW-2) has deposed categorically that all the six persons had raped her without her consent and forcibly. Section 114Aof the Indian Evidence Act, 1872 clearly provides that in a prosecution for rape under Clause (g) of Sub-section (2) of Section 376, Indian Penal Code, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent. Since the prosecutrix (PW-2) has categorically said that sexual intercourse was committed by the accused without her consent and forcibly, the Court has to draw the presumption that she did not give consent to the sexual intercourse committed on her by the accused persons. The defence has not led any evidence to rebut this presumption. In our considered opinion, the High Court could not have, therefore, held that there were circumstances to show that PW-2 had gone on her own and on this ground acquitted the Respondents."
The plea of the appellant that Handwriting and Finger Prints Expert, DW1-Yashpal Chand Jain, having opined that letters (Exhibits DA, DB and DC) were written by prosecutrix 'A', and there being no injury marks on her body, she was a consenting party to the sex act, has to be discarded, firstly, because prosecutrix 'A', while appearing as PW9, has denied having written these letters to the appellant, secondly, because even if these letters are taken to have been written by her, this can not mean to amount to her consent for the sex act, more so, when responding to a pointed question put to the appellant in his statement under Section 313, CrPC, whether he sexually assaulted her, the appellant did not take the plea of consent and, instead, opted to deny the circumstance as incorrect. Not only this, prosecutrix 'A' was not confronted Virendra singh adhikari 2014.03.06 18:54 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-S-601-SB-2002 -13- with a suggestion this in her cross-examination that she had consented for the sex act. There are no other circumstances from which consent of the prosecutrix could be inferred.
Non-availability of injury marks on the private parts and other parts of body of prosecutrix 'A' is hardly a circumstance to negative the positive assertion made by her while appearing as PW9 that she was sexually assaulted by the appellant. In Parikh's Textbook of Medical Jurisprudence and Toxicology, the following passage is found:
"Sexual intercourse. - In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
In Encyclopedia of Crime and Justice (Vol.4) at page 1356, it is stated:
"..... even slight penetration is sufficient and emission is unnecessary". Therefore, the absence of injuries on the private parts of a victim specially a married lady cannot, ipso facto, lead to an inference that no rape has been committed."
Kerala High Court expounded the meaning of word "rape" in State of Kerala v. Kundumkara Govindan, 1969 Cri LJ 818 : 1968 Ker LJ 485, as under:
"The crux of the offence under Section 376 IPC is rape and it postulates a sexual intercourse. The word "intercourse"
means sexual connection. It may be defined as mutual frequent action by members of independent organisation. By a metaphor the word "intercourse" like the word "commerce" is applied to the relation of sexes. In intercourse there is temporary visitation of one Virendra singh adhikari 2014.03.06 18:54 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-S-601-SB-2002 -14- organisation by a member of the other organisation for certain clearly defined and limited objects. The primary object of the visiting organisation is to obtain euphoria by means of a detent of the nerves consequent on the sexual crisis. There is no intercourse unless the visiting member is enveloped at least partially by the visited organisation, for intercourse connotes reciprocity. In intercourse between thighs the visiting male organ is enveloped at least partially by the organism visited, the thighs; the thighs are kept together and tight."
If viewed from the point of view as expressed in the above-cited judgment also, receipt of injuries by the victim of sexual offence is very rare or say it may occur in cases where the victim is able to offer stiff resistance.
An argument based on absence of injuries on the person of the victim was repelled by the Hon'ble Supreme Court in State of Uttar Pradesh v. Chhotey Lal, (2011) 2 SCC 550, in the following manner:
"Although the lady doctor, PW 5 did not find any injury on the external or internal part of the body of the prosecutrix and opined that the prosecutrix was habitual to sexual intercourse, we are afraid that does not make the testimony of the prosecutrix unreliable. The fact of the matter is that the prosecutrix was recovered almost after three weeks. Obviously the sign of forcible intercourse would not persist for that long a period. It is wrong to assume that in all cases of intercourse with the women against will or without consent, there would be some injury on the external or internal parts of the victim. The prosecutrix has clearly deposed that she was not in a position to put up any struggle as she was taken away from her village by two adult males. The absence of injuries on the person of the prosecutrix is not sufficient to discredit her evidence; she was a helpless victim. She did not and could not inform the neighbours where she was kept due to fear."
A lot has been said on behalf of the appellant to suggest that he, in Virendra singh adhikari 2014.03.06 18:54 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-S-601-SB-2002 -15- fact, was caught by the parents and relatives of prosecutrix 'A' while being delivered a letter by her, and was thrashed and has been falsely implicated in the present case for that reason. However, the story, in my considered opinion, is a concoction and after-thought, because were it true that the appellant was so thrashed and given injuries by parents and relatives of prosecutrix 'A', he would have lodged a report with the police or at least would have disclosed this before PW1-Dr. Ashwani Kumar, who admitted him in the hospital and treated him but neither the matter is shown to have been reported to the police nor was it revealed before PW1-Dr. Ashwani Kumar. In the circumstances, the plea cannot succeed.
In view of what has been said and discussed above, the findings recorded by the learned Sessions Judge, Jind, are found to be calling for no interference as regards conviction of the appellant.
As regards the plea for leniency suffice it to refer to a few judgments.
"Leniency in matters involving sexual offences is not only undesirable but also against public interest. Such types of offences are to be dealt with severity and with iron hands. Showing leniency in such matters would be really a case of misplaced sympathy.", remarked the Hon'ble Apex Court in State of Karnataka V. Puttaraja, AIR 2004 SC 433.
In State of Punjab V. Ramdev, AIR 2004 SC 1290 noted that "...
....a rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation Virendra singh adhikari 2014.03.06 18:54 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-S-601-SB-2002 -16- and not the least, her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by this Court in Shri Bodhisattwa Gautam V. Miss Subhra Chakraborty, AIR 1996 SC 922, the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights and is also violative of the victim's most cherished of the fundamental rights, namely, the Right to Life contained in article 21 of the Constitution of India, 1950."
"Sexual violence apart from being a dehumanizing act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity-it degrades and humiliates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. The Courts are, therefore, expected to deal with cases of sexual crime against woman with utmost sensitivity.", was the view of the Hon'ble Highest Court of the land in State of Karnatka V. Krishnappa, AIR 2000 SC 1470.
In view of the above, the appellant is not entitled to any leniency in the matter of sentence beyond the leniency shown by the learned trial court.
Rather, going by the circumstances of the case, the learned trial court is found to have erred towards leniency as regards award of sentence to the appellant.
In the consequence, the impugned judgment and order are affirmed, and the appeal is found to be devoid of substance and is dismissed.
The appellant is on bail. His bail/surety bonds are discharged. He Virendra singh adhikari 2014.03.06 18:54 I attest to the accuracy and integrity of this document High Court Chandigarh CRA-S-601-SB-2002 -17- shall immediately surrender before learned Chief Judicial Magistrate, Jind failing which the learned Chief Judicial Magistrate shall cause the appellant to be arrested and commit him to custody to serve the unexpired portion of sentence awarded to him by the learned trial court.
(MAHAVIR S. CHAUHAN) JUDGE 19.02.2014 adhikari Virendra singh adhikari 2014.03.06 18:54 I attest to the accuracy and integrity of this document High Court Chandigarh