Punjab-Haryana High Court
Sunil Kumar vs State Of Haryana on 23 August, 2011
Author: A.N. Jindal
Bench: A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Appeal No. 831-SB of 2003
Date of decision: August 23, 2011
Sunil Kumar
.. Appellant
Vs.
State of Haryana
.. Respondent
Coram: Hon'ble Mr. Justice A.N. Jindal
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. Jitender Dhanda, Advocate for the appellant.
Mr. Amit Rana, DAG, Haryana.
A.N. Jindal, J
The prosecutrix, aged about 12 years (name not disclosed) fell
prey into the hands of the accused-appellant (herein referred as, 'the
accused'), who in order to satisfy his sexual lust, took her into the field and
raped her. Consequently, he was prosecuted, tried, convicted vide judgment
dated 7.4.2003 passed by the learned Additional Sessions Judge, Hisar and
sentenced to undergo rigorous imprisonment for seven years and to pay fine
of `1000/- under Section 376 IPC. He was further sentenced to undergo
rigorous imprisonment for one year under Section 506 IPC.
On 17.9.2000, at about 6/7.00 p.m. when the prosecutrix, a
student of 5th class, was going to take clothes from the wife of Rohtas and
reached near the house of Harish Chander, the accused came; caught hold of
her; gagged her mouth forcibly and took her to the field of Jang Bahadur,
where he after breaking open the string of her salwar, committed rape upon
her. He also threatened to kill her. On raising hue and cry, Karambir came
there. On seeing him, the accused ran away.
On the aforesaid statement Ex.PH, made by her before ASI
Balbir Singh, on 18.9.2000, at about 3.15 p.m., FIR Ex.PH/1 was registered
against the accused. The prosecutrix was got medico-legally examined on
the same day. The Investigating Officer prepared the rough site plan Ex.PL;
recorded statements of the witnesses; collected the school leaving certificate
Criminal Appeal No. 831-SB of 2003 -2-
***
Ex.PK of the prosecutrix in order to prove her age; the accused was arrested and on completion of the investigation, challan was presented against the accused.
On commitment, the accused was charged under Sections 376/506 IPC, to which he pleaded not guilty and claimed trial.
In order to substantiate the charges, the prosecution examined Dr. Himani Gupta (PW1), Dr. Daya Nand (PW2), Mangat Ram Patwari (PW3), HC Amar Singh (PW4), C. Bhup Singh (PW5), Inspector Sukhraj Singh (PW6), SI Harbans Lal (PW7), Prosecutrix (PW8), Sharda (PW9), Prem (PW10) and Balbir Singh (PW11).
When examined under Section 313 Cr.P.C. the accused denied all the allegations and pleaded his false implication in the case. However, he did not lead any evidence in defence.
The trial resulted into conviction.
Arguments heard. Record perused.
The first contention raised by the learned counsel for the appellant is that the prosecutrix is not proved to be 12 years of age, but she was more than 12 years of age, and in the absence of any injuries on the private parts of the prosecutrix, no offence of rape stands proved.
In this regard it may be observed that though, the parents of the prosecutrix appeared in the witness box yet they due to illiteracy, could not give exact date of birth of the prosecutrix. However, the mother of the prosecutrix (who was 30 years old at the time of making the statement) has specifically stated that she was married about 20 years back and first child was born about one year after the marriage, which indicates her illiteracy about the date of birth of the prosecutrix. If we go through the statement of Prem (PW10), father of the prosecutrix, he has rightly given her age as 12 years. He has stated that he was married in the year 1978. The first child was born after five years of the marriage and the prosecutrix was born 6-7 years after the birth of the first child i.e. Anil. Thus, if we calculate, the age of the prosecutrix on the aforesaid parameters then it comes out that the prosecutrix was born in the year 1989 or 1990. Thus, she is proved to be about 11-12 years of age at the time of occurrence.
Criminal Appeal No. 831-SB of 2003 -3-*** The prosecutrix while appearing in the witness box as (PW8) has also given her age as 14 years on the day of examination i.e. On 7.9.2001. Similarly, Dr. Hemani Gupta, who had medico-legally examined the prosecutrix disclosed that she represented herself to be 13 years old. She also gave her age as 13 years before the police at the time of recording her statement. As such, I have no reasons to doubt that the prosecutrix being a student of 5th class was not more than 12-13 years of age at the time of occurrence.
Now coming to the evidence, though, there is no witness to the act of rape by the accused, yet, it would not be inappropriate to bank upon the testimony of the prosecutrix, though Karambir Singh the other witness has resiled from the statement, yet, the question to be determined in the case is, "whether any credibility could be attached to the solitary statement of the prosecutrix?" The prosecutrix is very clear in her testimony while stating that on the day of occurrence, at about 7.15 p.m. when she had gone to collect the clothes from the wife of Rohtas and reached near the house of Harish Chander, the accused came there, gagged her mouth and forcibly took her to the field of Jang Bahadur, then after breaking open the string of her salwar, inserted his male organ in her private part and committed rape upon her. She tried to raise alarm but he threatened to kill her. Her mother and father came on the next day from Tohana and on their arrival, she disclosed her mother about the occurrence, consequently, the FIR was recorded on 18.9.2000 at about 3.15 p.m. She was medico-legally examined at about 5.20 p.m. She has withstood the test of cross examination. Though she was confronted with her statement as for not recording the manner of commission of crime, but the witness was not supposed to record the manner with regard to commission of crime in the FIR as the FIR is not the encyclopedia of the prosecution case but broad spectrum of the case is sufficient to be recorded. The FIR, if it is too short also cannot be thrown away merely for the reason that no elaborate facts were given. Her testimony finds corroboration from the medical evidence, the relevant extract of which reads as under :-
Criminal Appeal No. 831-SB of 2003 -4-*** ".... On local examination, after separating the labia majora no injury was seen. There was redness present near posterior fouchette which was tender and slight ooz of blood was present after touching it. Hymen was torn and tenderness was present near hymen. Per-vaginal examination was not possible due to tenderness...."
The doctor proved the MLR Ex.PB and further opined that the prosecutrix was subjected to sexual intercourse. The factum of rape further stands proved from the report of the Forensic Science Laboratory, Madhuban Karnal Ex.PO which indicates as under :-
"Human semen was detected on exhibit-1 (Salwar of victim) and exhibit-2 (Kachha of accused). However, Semen could not be detected on exhibit-3 (Vaginal swab).
There is no reason for non presence of semen on the vaginal swab as the swab was taken with the delay of one day. The occurrence took place on 17.9.2000, whereas, she was produced before Dr. Hemani Gupta (PW1) for medicolegal examination on 18.9.2000 at about 5.20 p.m. Obviously semen must have disappeared due to washing of the vagina at the time when she had gone to the latrine or had taken bath. Thus, mere absence of semen on the swab in the presence of semen on the salwar of the prosecutrix, aged about 12 years a student of 5th class proves the commission of the crime.
It may further be observed that though Karamjit Singh who had come across the prosecutrix immediately after the act of rape, did not support the prosecution case yet, the evidence of the prosecutrix in this case stands corroborated by the medical evidence as well as the report of the Forensic Science Laboratory, Madhuban, Karnal. It would also be significant to mention here that poor, rural, rustic girl, having faced trauma of such an illegal act on the part of the accused, therefore, on rain of questions to be asked from her during cross-examination at the hands of the legal experts, she cannot be expected to give verbatim version and if the Criminal Appeal No. 831-SB of 2003 -5- *** testimony given by such victim satisfies the conscience of the court to be truthful, then there is no reason to disbelieve her on the ground of minor contradictions and discrepancies in her statement.
The Apex Court has attached sanctity to the testimonies of such immature girls even though they might not have fully cleared the test of cross-examination at the hands of intelligent, mature, senior and experienced advocates. It has also been settled time and again that some contradictions are bound to occur in the statements of the prosecution witnesses yet the same are not sufficient to disbelieve their testimonies unless the same affect substratum of the case and attack the testimony at its root. However, having examined the testimony of the prosecutrix, I am of the confirmed opinion that she has withstood the test of reliability and credibility. She has disclosed whatever happened with her. It is also settled by now that the testimony of the prosecutrix if it is found credible and reliable and to ask for her corroboration would add insult to the injury. The prosecutrix had no reason to implicate the accused falsely in the case. Even father and mother of the prosecutrix had no such enmity for involving the accused in a false case. No father would like to sacrifice the repute and modesty of his daughter for petty motives. As regards the valuation of testimony of the prosecutrix, it has been observed in case State of Punjab versus Gurmit Singh and others 1996 (1) R.C.R. (Criminal) 533 as under:-
"The 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 Criminal Appeal No. 831-SB of 2003 -6- *** 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 greater 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 subject 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 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."
It has been further observed in case State of Himachal Pardesh . versus Lekh Raj 2000 (1) R.C.R. (Criminal) 10 as under:-
"Hyper-technicalities or figment of imagination should not be allowed to divest the Court of its responsibility of sifting and Criminal Appeal No. 831-SB of 2003 -7- *** weighing the evidence of the prosecution to arrive at the conclusion regarding the existence or otherwise of a particular circumstance keeping in view the peculiar facts of each case, the social position of the victim and the accused, the larger interest of the society particularly the law and order problem and degrading values of life inherent in the prevalent system. The realities of the life have to be kept in mind while appreciating the evidence for arriving at the truth."
Thus, from the discussions made above and evaluating the evidence by putting the same on the parameters as set out by the Apex Court, the testimony of the prosecutrix as corroborated by the medical evidence as well as the report of the Forensic Science Laboratory, is bound to be believed, particularly because of no enmity of the family of the prosecutrix with the accused. The FIR cannot be said to be delayed one as Sharda (PW9), mother of the prosecutrix, had gone to Tohana to see her husband and as soon as she arrived, she took her to the police station. Prem (PW10) was also serving in the telephone department in Railway at Tohana. Since he was also not present in the house, therefore, the FIR could be lodged only on the arrival of her parents. As such, delay in lodging the FIR stands duly explained.
No other argument has been advanced.
No merits.
Dismissed.
August 23, 2011 (A.N. Jindal) deepak Judge