Punjab-Haryana High Court
Gurtej Singh vs State Of Punjab on 16 March, 2010
Criminal Appeal No. 867 SB of 2003(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 867 SB of 2003(O&M)
Date of decision: 16.03.2010
Gurtej Singh ..............Appellant
Versus
State of Punjab ................Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present: Mr. Harsh Aggarwal, Advocate, for the appellant
Mr. R.S.Rawat, Assistant Advocate General, Punjab
HARBANS LAL,J.
This appeal is directed against the judgment/order of sentence dated 22.3.2003 passed by the court of learned Sessions Judge, Sangrur whereby he convicted and sentenced the accused Gurtej Singh to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.5000/- under Section 376 of the Indian Penal Code and in default of payment of fine to further undergo rigorous imprisonment for one year.
Shortly put, the facts of the prosecution case are that Krishan Kumar father of the prosecutrix (to prevent social victimization, name of the prosecutrix/victim is not being indicated in view of Premiya alias Prem Prakash Vs. State of Rajasthan 2008(4) Recent Criminal Reports 539 (SC)) made statement before the police in the terms that on 27.7.2001 at about 1.00 P.M. he alongwith his cousin Telu Ram was present at the latter's Criminal Appeal No. 867 SB of 2003(O&M) 2 karyana shop. Meanwhile, they heard the shrieks of a girl. They rushed to the street and heard the cries emitting from the house of Gurnam Singh father of the accused. By scaling over the wall, they entered the house and noticed that the accused was committing rape on the prosecutrix, who was a minor. They both caught hold of the accused and rescued her. She narrated that when she was on her way back from the Government Girls School, Bhawanigarh and was passing in front of house of the accused, he capped her mouth with his hands and dragged her inside the house. He bolted the door from inside. He threatened to kill her and ravished her forcibly. She was removed to Civil Hospital, Sangrur by her mother Janki Rani and her brother Deep Kumar. When the accused was being taken to the Police Station by the villagers including Krishan Kumar (sic) they came across S.H.O. Ravinder Singh whom they handed over the person of the accused. On the basis of this statement, the case was registered. After completion of investigation, the charge-sheet was laid in the court of learned Additional Chief Judicial Magistrate, Sangrur who committed the case to the court of Sessions for trial of the accused.
The accused was charged under Section 376 of I.P.C. to which he did not plead guilty and claimed trial. In order to bring home guilt against the accused, the prosecution examined Dr. Rajiv Gupta PW-1, Dr. Narinder Singh Parwana PW-2, Santokh Singh PW-3, prosecutrix PW-4, Krishan Kumar PW-5, Nazir Singh Head Constable PW-6, Rajinder Singh Head Constable PW-7, ASI Narain Singh PW-8, Kanwar Pal Singh PW-9, SHO Ravinder Singh PW-10 and closed its evidence by giving up Pws Constable Jaspal Singh and S.I. Kirpal Singh being unnecessary. Criminal Appeal No. 867 SB of 2003(O&M) 3
When examined under Section 313 of Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. As a theory of his rival defence, he has put forth that "No such occurrence took place. On 30.7.2001, I was picked up by the police from my house and taken to Police Station, Bhawanigarh, where police gave me beatings. Police wanted to know the names of the boys who used to come to me. I did not tell the name of any boy. The police therefore, falsely implicated me in this case and next day sent to jail." In his defence, he examined Mehar Singh MHC as DW-1.
After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal.
I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.
Mr. Harsh Aggarwal, Advocate, appearing on behalf of the appellant eloquently urged that it is in the cross-examination of PW-4 the prosecutrix that " I was having books with me on that day. There might be 4 or 5 books with me. Those were in a bag." These books having not been produced at the trial, an adverse inference ought to be drawn to the effect that genesis of the prosecution case has been suppressed. This contention cuts no ice. In her further cross-examination, the prosecutrix has testified that "Subsequently, my mother might have taken that bag to the house. She came 2/3 minutes after the raulla. I do not remember, if the said bag was Criminal Appeal No. 867 SB of 2003(O&M) 4 produced before the police or not." Of course, Ravinder Singh Sub Inspector PW-10, the Investigator has solemnly affirmed in his cross- examination that " I did not take the books of (referring to the prosecutrix) into custody." but non-seizure of the books ipso facto is not enough to look upon the prosecution version with suspicion. In Karnel Singh Vs. State of Madhya Pradesh A.I.R. 1995 S.C. 2472 it has been observed as under:-
"5.Notwithstanding our happiness regarding the nature of investigation, we have to consider whether the evidence on record, even on strict scrutiny, establishes the guilt. In cases of defective investigation the Court has to be circumspect in evaluating the evidence but it would not be right in acquitting the accused person solely on account of the defect; to do so would tantamount to playing into the hands of Investigating Officer if the investigation is designedly defective. Any Investigating Officer, in fairness to the prosecutrix as well as the accused, would have recorded the statements of the two witnesses and would have drawn up a proper seizure memo in regard to the 'chhadi'. That is the reason why we have said that the investigation was slip shod and defective.
6. We must admit that the defective investigation gave us some anxious moments and we were at first blush inclined to think that the accused was prejudiced. But on closer scrutiny we have reason to think that the loopholes in the investigation were left to help the accused at the cost of the poor prosecutrix, a labourer. To acquit solely on that ground would be adding Criminal Appeal No. 867 SB of 2003(O&M) 5 insult to the injury."
In State of Punjab Versus Gurmit Singh 1996(1) Recent Criminal Reports(Criminal) 533, it has been held by the Supreme Court that "even if Investigating Officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony. The prosecutrix had no control over the Investigating Agency and negligence of Investigating Officer could not affect the credibility of the statement of the prosecutrix." Adverting to the case in hand, it was for the Investigator to collect the books of the prosecutrix either from the house of the accused or her mother, if she had removed the same from the place of occurrence. The negligence on his part in this behalf hardly affect the credibility of the prosecutrix's statement.
The next attack on the prosecution edifice is that the prosecutrix in her evidence has admitted that she has made statements on 6.9.2001 as also on 28.7.2001 as certain things were omitted in her earlier statement. This brings out the material improvement introduced by her in her subsequent statement. He has further submitted that in the earlier statement she had stated that the appellant-accused had completed the intercourse, whereas while appearing in the court she has deposed that he was committing rape when her father and uncle came. This contention merits rejection. It is in the cross-examination of the prosecutrix that " I had stated in my statement dated 6.9.2001 that accused had completed intercourse as I was perplexed at that time. My today's statement is correct. I had stated in my statement dated 6.9.2001 that I had made statement on Criminal Appeal No. 867 SB of 2003(O&M) 6 28.7.2001 as I was perplexed and certain things were omitted and not that my subsequent statement was correct." In her examination-in-chief, she has deposed that "At that time, the accused was forcibly raping me when my father and uncle reached." The learned counsel for the appellant has made an endeavour in vain to demonstrate that in her statement dated 6.9.2001 the prosecutrix had stated that the accused had completed the intercourse whereas in the court she has deposed that the accused was in the process of raping her when her father and uncle came at the place of occurrence. To my mind, if it is presumed that she had stated in her statement dated 6.9.2001 that the accused had completed intercourse and in the court she has stated in the above referred terms, it hardly demolishes the prosecution case or extenuate the commission of crime. She being merely a student at the material time, would have certainly undergone trauma when she was subjected to sexual intercourse.
The next argument having been raised on behalf of the appellant is that as per evidence tendered by Krishan Kumar PW-5, the appellant-accused was apprehended at the spot and was handed over to the police same day, though as per police record, he was arrested on 30.7.2001. It clearly indicates that the accused was kept under wrongful confinement for three days and ultimately a false case was planted upon him. I am unable to persuade myself to agree with this submission. Krishan Kumar (sic) has deposed that "We took the accused to Bhawanigarh Police Station. The police met us before we reached the Police Station. We handed over the accused to the police." It is in the evidence of Ravinder Singh PW-10 Investigator that "it is correct that procession was taken out by the public in Criminal Appeal No. 867 SB of 2003(O&M) 7 Bhawanigarh and "gherao" was held because the facts of the case were like that." Krishan Kumar(sic) has also stated that "It is correct that "Hangama" was there. It is correct that a procession was taken out in Bhawanigarh in this respect. Volunteered that was taken out after some police officials allowed the accused to run away from the Police Station." On considering this evidence, it emerges out that the police had made the accused to abscond from the Police Station when procession was taken out by the public, the police officials felt scared and showed arrest of the accused on 30.7.2001. This invites skepticism against the erring police officials. This presents a glaring instance of sloppiness of the police. The Police Station is for civil society, one of the most dreaded places to go to. When the accused- appellant was made to run away from the Police Station by the concerned police officials for the reasons best known to them that Police Station became virtually synonymous with apathy to the basic human rights of the victim as well as her father. Krishan Kumar as well as the prosecutrix are in unison on the point that the accused was apprehended at the spot and was produced before Ravinder Singh (sic), who went on to say that accused was produced before him on 30.7.2001 by Naresh Pal Goel of Bhawanigarh. It appears that the police had behaved in an irresponsible manner. Krishan Kumar as well as the prosecutrix could not be shattered or shaken in any manner during their cross-examination with regards to the apprehension of the accused-appellant at the spot and handing over his person to the police. It is unfortunate that it is not understood that such a situation, where keepers of law become breakers of law and makers of law become insensitive to the miseries and problems of people, cannot last for long. It is most Criminal Appeal No. 867 SB of 2003(O&M) 8 unfortunate that police men are apathetic to the trauma undergone by the rape victim. When the police officer does not take the desired action or action warranted by law in such matters, the confidence of the public in the police is shaken.
Mr. Aggarwal stressing his every nerve maintained that there being no serious injury on the person of the prosecutrix, it can be considered to be a case of consent and not of rape. Furthermore, as per the school register, the date of birth of the prosecutrix is 2.1.1984. Thus, she was of 17 years 6 months and 25 days at the time of commission of the alleged rape. These contentions do not find favour with me. It is in the evidence of Dr. Rajiv Gupta PW-1 that there was nothing to suggest that the accused was incapable of committing sexual intercourse. Dr. Narinder Singh Parwana PW-2 has stated in the following terms:-
"On 27.7.2001 I was posted as Medical Officer in Civil Hospital, Sangrur. On that day on police request Ex.PB was marked to me by S.M.O. Dr. Anup Kad vide his endorsement ExPB/1 and upon that I conducted the medico legal examination of (referring to the prosecutrix) daughter of Krishan Kumar about 15-16 years of age student resident of Bald Kalan at 10.45 p.m. on 27.7.2001. She was brought by the police and Janak Rani mother was accompanying her. I found the following on examination:-
She was conscious, cooperative well oriented to time and place. I found following injuries:-
1. Multiple reddish brown abrasion on the upper part of Criminal Appeal No. 867 SB of 2003(O&M) 9 back.
2. 2 ½ cm X 2 ½ cm reddish brown abrasion on the middle of back of left arm just above the elbow joint.
3. 5cm x 3cm reddish brown abrasion on the middle back of left leg. 7Cm below the knee, joint.
4. Hymen perforated showing recent swollen tears.
5. Posterior fourchette ruptured, clotted blood was present.
6. Pubic hair shaved and sealed.
7. Vaginal swab and vaginal scrapping taken and sealed.
8. Salwar, kameej, brasser and long undershirt sealed.
The injuries no.1,2 and 3 were simple and probable duration of injuries 1, 2 and 3 was within 24 hours.
Weapon used for these was blunt. I had handed over to the police the copy of the M.L.R., request for chemical examination, a sealed packet containing pubic hair, vaginal swab and vaginal scrappings, a sealed parcel containing shirt, long under shirt, salwar and brasser. I obtained the signatures of (referring to the prosecutrix) on M.L.R. Today I have brought the original M.L.R. Ex.PC is the correct carbon copy of the same process as the original and signed by me. Ex.PC/1 is the pictorial diagram showing seats of injuries. Ex.PD is the police request and Ex.PD/1 is my endorsement. On the basis of the report of Chemical Examiner Ex.PE is my opinion and on the basis of the M.L.R. Conducted by me, I opined that Miss (referring to the prosecutrix) was Criminal Appeal No. 867 SB of 2003(O&M) 10 subjected to sexual intercourse."
It emanates from this evidence that number of injuries were found on the body of the prosecutrix. Doubtless that as per the evidence tendered by Kanwar Pal Singh PW-9 from the official record being maintained in the regular course of business in the school, the prosecutrix was born on 2.1.1984, but merely because of her being more than 16 years of age cannot be ground to hold that she was a consenting party. The record is quite barren to show that such consent was there. In State of U.P. Vs. Manoj Kumar Pandey 2009(1) Recent Criminal Reports 238, the trial Court had concluded that since the girl was more than 16 years of age, consent has to be presumed. The High Court concurred with the view and disposed of the appeal. The Supreme Court held that the approach of the trial Court and the High Court is clearly unsustainable. Merely because the victim was more than 16 years of age as held by the trial Court that cannot be a ground to hold that she was a consenting party. No evidence was led to show such consent. Adverting to the instant one, the prosecutrix was returning from school at about 1.00 P.M. When she was passing infront of the house of the accused-appellant, he placed his hands on her mouth and dragged her inside his house and committed rape upon her. She has stated in categoric terms that " I cried and obstructed but I was helpless." Had she been a consenting party she would not have shrieked. It was her hue and cry which attracted her father as well as uncle Telu Ram to the place of occurrence. The offence of rape affects the human body and in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will'. 'Rape' or Criminal Appeal No. 867 SB of 2003(O&M) 11 'Raptus' is when a man hath carnal knowledge of a woman by force and against her will. 'Carnal knowledge' means the penetration to any the slightest degree of the organ alleged to have been carnally known by the male organ of generation. "Even slight penetration is sufficient and emission is unnecessary." as ruled by the Supreme Court in Arjan Singh Vs. State of Himachal Pradesh 2009 (1) Recent Criminal Reports (Criminal) 969 SC.
In Gurmit Singh's case(supra) it has been held as under:-
" Minor contradictions or insignificant discrepancies are not fatal. Court not to get swayed away. If evidence of prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars."
Harking back to the present one there is nothing on the record to show that the injuries found on the person of the prosecutrix were self inflicted. That being so, her evidence is entitled to great weightage. In Sat Pal Vs. State of Punjab 1997(1) Recent Criminal Reports (Criminal) 92, it has been held that in the absence of injuries on external as well as internal parts of body of the prosecutrix, it cannot be held that prosecutrix gave her consent. As ruled in Karnel Singh's case(supra) "the evidence of the prosecutrix need not be tested with same amount of suspicion as that of accomplice." The victim of rape cannot lead a normal life because the traumatic past always haunts her. She feels withdrawn and helpless and haunted by night mare. Over the years rape has become India's fastest growing crime. Societal stigma continues to haunt the victim. In the instant one, there being no apparent reason for the prosecutrix to falsely implicate Criminal Appeal No. 867 SB of 2003(O&M) 12 the accused, her testimony cannot be disbelieved. As ruled in Moti Lal Vs. State of Madhya Pradesh 2008(3) Recent Criminal Reports (Criminal) 796 (SC) if the case discloses 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. In the Indian setting refusal refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to the injury. 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. Prosecutrix is a competent witness under Section 118 of the Evidence Act and her evidence must receive the same weightage as is attached to an injured in a case of physical violence. Physical scar on a rape victim may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury, but the deep sense of some deathless shame." As observed in State of Karnataka Vs. Bantara Sudhakara alias Sudha and Another 2008(3)Recent Criminal Reports(Criminal) 923(SC), "The question of consent is really a matter of defence by the accused and it was for him to place materials to show that there was consent. It is significant to note that during cross- examination and the statement recorded under Section 313 of Cr.P.C. plea of consent was not taken or pleaded. In fact in the statement under Section 313 of Cr.P.C. the plea was complete denial and false implication." In the case at hand, the appellant during cross-examination of the prosecution witensses or in his statement recorded under Section 313 of Cr.P.C. did not take the plea that the prosecutrix was a consenting party. He has also not produced any evidence showing that it was a consentedact.The appellant has Criminal Appeal No. 867 SB of 2003(O&M) 13 come up with the plea that the police wanted to know the names of the boys who used to come to him and he did not disclose their names and for this reason he was whisked away from his house and was falsely implicated in this case. He has not disclosed in which case those boys were wanted by the police or what was their connection with this occurrence. This plea seems to be alien to the prosecution version. Mehar Singh DW-1 has proved Ex.DB. This document has no relevancy with the facts of the case nor in any manner advances the cause of the appellant. It is in the cross- examination of this witness that "At the time when Gurtej Singh (referring to the accused-appellant) fled/managed to escape from Police Station I was posted in the Police Station." It is unbelievable that the accused would have run away from the Police Station. May be that to sabotage the prosecution story and in order to protect him, he would have been made to run away. In Jaswant Singh and Others Vs. State of Punjab 2010(1) Recent Criminal Reports(Criminal) 117, the rape was committed on a minor girl aged 16 years by four accused persons. The case was registered after 15 days when a complaint was sent to S.S.P. A panchnama was produced in defence. Prosecutrix stated that her signatures were obtained by giving her beatings. It was held by the Supreme Court that " It was neither surprising nor shocking as such instances are galore in this country where the police, instead of protecting law, take the law into their own hands for extraneous considerations." In the instant one too extraneous consideration may be the reason for making the accused-appellant to escape from the Police Station.
No other material point has been urged or agitated by either counsel. Sequelly, the conviction is maintained.
Criminal Appeal No. 867 SB of 2003(O&M) 14
The learned counsel for the appellant submitted that the sentence of the appellant may be reduced to the already undergone. In State of Madhya Pradesh Vs. Sheikh Shahid 2010(1) Recent Criminal Reports (Criminal) 220 (SC), the respondent accused Sheikh Shahid was sentenced to rigorous imprisonment for a period of seven years with a fine of Rs.1000/- with default stipulation under Section 376 of the Indian Penal Code. The High Court had reduced the sentence to the already undergone (six months) on the ground that the accused belonged to rural areas. The order of the High Court was set aside by the Supreme Court by holding as under:-
"(1) Court can reduce the sentence for adequate and special reasons. The fact that accused belonged to rural areas cannot be considered either adequate or special.
(2) By imposing meager sentence or taking too sympathetic a view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run."
It was further held as under:-
"(1) The aggravating and mitigating factors and circumstances in which a crime has been committed are to be delicately balanced on the basis of really relevant circumstances in a dispassionate manner by the Court. Such act of balancing is indeed a difficult task.
(2) The social impact of crime e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of Criminal Appeal No. 867 SB of 2003(O&M) 15 public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order and public interest cannot be lost sight. (3) Any liberal attitude by imposing meager sentences or taking too sympathetic a view merely on account of lapse of time in respect of such offences will be result wise counter productive in the long run."
It was also held that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. Reverting back to the present one the prosecutrix was a student. She was returning from the school, when she fell prey to the sexual lust of the accused-appellant. It will be a mockery of justice to reduce the sentence in this case. The accused-appellant was got arrested by launching tirade against the police. The imposition of appropriate punishment is the manner in which the courts responds to the society's cry for justice against the criminal. Justice demands that court should impose punishment befitting the crime so that the Courts reflect public abhorrence of the crime as ruled in Dhananjoy Chatterjee Vs. State of West Bengal 1994(1) Recent Criminal Reports(Criminal) 429. The Court will be failing in its duty if appropriate punishment is not awarded for crime which has been committed not only against the individual victim, but also against the society to which the criminal and victim belong as held in Ravji Vs. State of Rajasthan 1996(2) Supreme Court Cases 175. In the instant case, the conscience of the rape victim, her parents relatives and co-villagers Criminal Appeal No. 867 SB of 2003(O&M) 16 would be shocked, if the sentence is reduced to the already undergone. The doctrine of proportionality contemplates that the sentence must commensurate with the gravity of offence. Thus, the submission made by the learned counsel for the appellant is turned down.
As a sequel of the above discussion, this appeal is dismissed. Vide order dated 17.3.2005 passed by this Court in Criminal Misc. No. 13585 of 2005 the accused-appellant was released on bail. The Registry is directed to send a copy of this judgment to the learned trial Court as well as the learned Chief Chief Judicial Magistrate Sangrur for taking necessary steps to send the accused-appellant to the prison for serving the unexpired portion of his sentence.
Since the appeal has been decided, all pending Criminal Miscellaneous,if any, also stand disposed of.
(HARBANS LAL) JUDGE March 16, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes