Punjab-Haryana High Court
Bhagwani And Another vs State Of Haryana on 19 August, 2008
Author: Sabina
Bench: Sabina
Criminal Appeal No. 759 SB of 1996 { 1 }
In the High Court of Punjab and Haryana at Chandigarh
Criminal Appeal No. 759 SB of 1996
Date of decision: 19.8.2008
Bhagwani and another
.....Appellants
Versus
State of Haryana
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.P.C.Chaudhary, Advocate,
for the appellants.
Mr.Sidharth Sarup, AAG, Haryana.
****
JUDGMENT
SABINA, J.
Prosecution story, in brief, is that on the night of 22.5.1995 complainant along with his wife had gone to sleep on the roof of the kitchen after taking meals. Children of the complainant were sleeping in the courtyard of the house. Prosecutrix, daughter of the complainant, was sleeping on one cot with her younger brother Narender. At about 4.00 a.m. complainant and his wife Mahendro woke up for giving fodder to their cattle. They saw that their daughter was missing from the cot. They searched for her in the house, Criminal Appeal No. 759 SB of 1996 { 2 } but she was not found present. Complainant informed his younger brother Krishan and maternal uncle Kharati Lal, who were residing in the adjacent house regarding the fact that his daughter was missing. They all started searching for the prosecutrix. When they reached near railway track, they saw that two boys, who seemed to be from Bihar, were present at a distance of about 1 ½ killa. One of the boys, who was shorter in height, had lifted the prosecutrix in his lap and was kissing her. The other one, who was comparatively taller, was standing at some distance. Both the boys on seeing them ran away towards the fields of sunflower crop after leaving the prosecutrix on the railway track. On their asking prosecutrix told them that the boy who was shorter in height had picked her up from the cot and put a cloth in her mouth. The other Bihari boy was present on the road. They had taken her towards the fields of sunflower. On the basis of the statement of the complainant formal FIR No.221 dated 23.5.1995 was registered under Sections 363, 354 and 34 IPC by the police of Police Station Sadar Thanesar. Later on offence under Section 376 IPC was added.
After completion of investigation and necessary formalities, the accused were sent up for trial. Charge was framed against them under Section 363, 366 and 376 (2) (g) IPC, on 28.9.1995.
The material witnesses examined by the prosecution at the trial were Dr.Anupam Singh (PW-1), Hakam Singh (PW-6), Om Criminal Appeal No. 759 SB of 1996 { 3 } Parkash (PW-8), Mahendro (PW-9), prosecutrix (PW-10), Krishan Lal (PW-11) and ASI Pawan Kumar (PW-13). After close of prosecution evidence, the accused when examined under Section, 313 Cr.P.C. prayed that they were innocent and had been falsely involved in this case.
Learned trial Judge believed the prosecution version and convicted the accused under Section 363, 366 and 376 (2) (g) IPC and sentenced them to undergo rigorous imprisonment for ten years and fine of Rs.200/- under Section 376 (2) (g) IPC; rigorous imprisonment for three years and fine of Rs. 100/- under Section 366 IPC and rigorous imprisonment for one year under Section 363 IPC. Hence, the present appeal.
Learned counsel for the appellants has argued that the prosecution has failed to prove its case. The prosecutrix was not a competent witness to depose and, as such, her statement could not be relied upon. The identity of the accused was also not duly established in this case. Hence, the appellants were entitled for acquittal.
Learned State counsel has argued that the prosecutrix, who was a young girl aged about 10 years, had been kidnapped by the accused and had been subjected to rape. Prosecution case was duly proved from the ocular as well as medical evidence and the prosecutrix was found to be a competent witness by the learned trial Judge.
Criminal Appeal No. 759 SB of 1996 { 4 } The first question that requires consideration is as to what was the age of the prosecutrix at the time of commission of the offence. In this regard Hakam Singh (PW-6) has proved Exhibit PJ, the date of birth certificate of the prosecutrix, as per which her date of birth was 19.8.1985. Thus, the prosecutrix was about 10 years old at the time of occurrence.
As per Section 375 IPC, one of the conditions is that a man is said to commit rape, if he has sexual intercourse with a woman, with or without her consent, when she is under 16 years of age. Section 376 (2) (g) IPC deals with punishment for commission of gang rape.
The prosecutrix, when she appeared in the witness box, deposed that a year back on a summer night she was sleeping on a cot with her brother in the courtyard. Her parents were sleeping on the roof of a kitchen. At about 4.00 a.m. accused Chhota (identified accused Bhagwani as Chhota) had lifted her by putting khesh (thick cotton sheet) on her with which she had covered her body. Another accused (also identified by the prosecutrix) was standing on the road. Thereafter, she was taken near the railway track. The khesh was placed on the ground and accused Chhota took off her salwar and raped her. The other accused Badda also raped her and she started bleeding. With the help of khesh accused chhota removed blood from her body. Thereafter, accused Chhota started kissing her. In the meantime, her parents were seen coming at the spot and on Criminal Appeal No. 759 SB of 1996 { 5 } seeing them the accused fled away from the spot in the nearby fields of sunflower crop. She described the entire occurrence to her mother and did not narrate the same to her father due to shyness. She was taken to the hospital by the police where she was medically examined. The accused were calling each other as Bhagwani and Jai Ram. However, she could not identify them by their names. At their instance, accused were apprehended by the police, while they were sitting on a bench at the railway station.
Complainant-Om Parkash, while appearing in the witness box as PW-8, has deposed as per his statement made before the police. He further deposed that the names of the accused were disclosed to them by the prosecutrix later on as Bhagwani and Jai Ram. The witness also pointed out towards Bhagwani and stated that he was holding his daughter and was kissing her when they reached the spot, whereas, the other accused was standing at a distance of about 3-4 feet. His statement is duly corroborated by Mahendro (PW-9) and Krishan Lal (PW-11).
Pawan Kumar, ASI (PW-13) has deposed that on the basis of the statement of Om Parkash-complainant formal FIR was registered. He inspected the spot and recovered the khesh, which was stained with blood. One V-shape chappal and one Atlas cycle of green colour were also recovered from nearby bushes and were taken in possession. He recorded the statements of the prosecutrix and her mother and offence under Section 452/376 IPC was added.
Criminal Appeal No. 759 SB of 1996 { 6 } The prosecutrix was got medically examined. On 25.5.1995, on the basis of a secret information, the accused were apprehended, while they were sitting on a bench at the railway station. They were identified by the prosecutrix and other PWs. They were formally arrested and got medically examined.
Dr.Anupam Singh (PW-1) has deposed that he examined the prosecutrix on 23.5.1995 and after her examination he was of the opinion that the prosecutrix, who was 9 years of age, had been subjected to sexual intercourse.
It has been held in State of Punjab v. Gurmit Singh and others AIR 1996, Supreme Court 1393 as under:-
"The testimony of victim in cases of sexual offences is vital and unless there are compelling reasons whichnecessitate 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 Criminal Appeal No. 759 SB of 1996 { 7 } her statement to satisfy its judicial conscience, since she is witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence is 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 Criminal Appeal No. 759 SB of 1996 { 8 } 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, sex crime strikes the judicial mind as probable."
Thus, in the present case, from the testimony of the prosecutrix and other PWs offence of rape and kidnapping are duly made out against the appellants. The prosecutrix, who was aged less than 10 years, has deposed that after being kidnapped by the accused, she had been raped by both of them. She is a competent witness and has withstood the test of cross-examination. The parents of the prosecutrix and PW-11 also saw the accused with the prosecutrix and on seeing them, both the accused fled away from the spot. The accused were arrested by the Investigating Officer after they were duly identified by the prosecutrix and the other PWs. In these circumstances, it can not be said that the accused have been falsely involved in this case.
After going through the entire evidence on record, I am of the opinion that the prosecution had been successful in proving its case against the accused for kidnapping and gang rape. Offence under Section 366 IPC is an aggravated form of offence under Section 363 IPC. Conviction of the appellants is liable to be upheld Criminal Appeal No. 759 SB of 1996 { 9 } under Section 366 and 376 (2) (g) IPC. Since the appellants have been convicted under Section 366 IPC, no separate conviction is necessary under Section 363 IPC.
Accordingly, this appeal is dismissed. The impugned judgment of the trial Court with regard to conviction and sentence of the appellants under Section 366 and 376 (2) (g) IPC is upheld and the conviction and sentence of the appellants under Section 363 IPC is set aside being unnecessary. The appellants, who are on bail, be taken in custody for undergoing the remaining sentence.
(SABINA) JUDGE August 19, 2008 anita