Punjab-Haryana High Court
Deepak Gulati vs State Of Haryana on 28 January, 2010
Author: Sabina
Bench: Sabina
CRA No.960-SB of 1998 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
CRA No.960-SB of 1998 (O&M)
Date of decision: 28.1.2010
Deepak Gulati
......Appellant
Versus
State of Haryana
.......Respondent
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Ms.Kamalpreet, Advocate,
for the appellant.
Mr.H.S.Beniwal, DAG, Haryana.
***
SABINA, J.
The appellant was convicted for an offence under Sections 365 and 376 of the Indian Penal Code ("IPC"- for short) vide judgment dated 13.11.1998 by the Additional Sessions Judge, Karnal. Vide order of the even date, the appellant was sentenced to CRA No.960-SB of 1998 (O&M) 2 undergo rigorous imprisonment for a period of three years and a fine of Rs.2,000/- under Section 365 IPC and rigorous imprisonment for a period of seven years and a fine of Rs.5,000/- under Section 376 IPC. Both the sentences were ordered to run concurrently. Hence, the present appeal.
Prosecution case, as noticed by the trial Court in para Nos. 2 and 3 of its judgment, is reproduced herein below:-
"Baldev Raj Soni son of Shri Jagan Nath resident of 166- R Model Town, Karnal was practising as Registered Medical Practitioner at village Nagla Farm. His daughter i.e. the prosecutrix was studying in 10+1 class in Government Girls Senior Secondary School, Karnal. On 10.5.1995 at about 12 noon she had gone to the school for collecting her School Leaving Certificate but she did not return home. Efforts to trace her were made but she was not found. After frantic enquiries it was revealed that one girl namely Rajni daughter of Shri Charanjit Uppal resident of 145-R, Model Town, Karnal and Deepak Gulati son of Shri Om Parkash, resident of New Colony, Khadi Asharam Railway Road Kurukshetra i.e. accused and one Naresh Kumar resident of Prem Nagar, Karnal had enticed away the prosecutrix and she was being kept at some unknown place. On the basis of this complaint, an endorsement was made and formal FIR Ex.PG/1 was CRA No.960-SB of 1998 (O&M) 3 registered against the accused. Investigations of this case were taken up by PW 12 Bhagwan Dass Assistant Sub Inspector. Statements of parents of the prosecutrix were recorded. On 17.5.1995 the father of prosecutrix Baldev Raj PW-8 was taken to Kurukshetra for searching her. On the same day, the prosecutrix along with accused were seen at old bus stand Kurukshetra. The accused was arrested. Statement of the prosecutrix was recorded. She submitted certificate Ex.PD and bill of telephone Ex.PM which were taken into possession by the police. The prosecutrix was got medicolegally examined by PW 11 Dr.Amrjit Wadhwa on an application Ex.PL/1 moved in this regard. A medicolegal report Ex.PL was obtained. On the next day the accused was got medicolegally examined from PW1 Dr.R.S.Chaudhary, who gave his report Ex.PA. On 20.5.1995 PW-12 Bhagwan Dass Assistant Sub Inspector produced the prosecutrix before the then learned Chief Judicial Magistrate, Karnal by moving an application Ex.PH and upon that her statement Ex.PJ under Section 164 Cr.P.C. was recorded. She was also radiologically examined by PW-2 Dr.G.S.Arora and who gave his report Ex.PB. A site plan of the place of occurrence at the CRA No.960-SB of 1998 (O&M) 4 instance of the prosecutrix Ex.PQ was prepared. Statements of the witnesses were recorded. After ususal investigations the police found sufficient grounds to proceed against the accused and as such a challan was filed against him in the court and which was received on commitment for trial.
3. Vide order dated 3.2.1996 passed by Sh.B.M.Bajaj, learned Additional Sessions Judge, Karnal, the accused was charged for the commission of offence punishable under Sections 365 and 376 of Indian Penal Code, to which he pleaded not guilty and claimed trial."
Learned counsel for the appellant has submitted that there was no evidence that the appellant was guilty of commission of offence of rape. In fact, initially three persons were allegedly involved in this case but ultimately only the appellant was put to trial and has been convicted by the trial Court on erroneous considerations. The medical evidence did not suggest that the prosecutrix had been raped. There was delay in lodging of the FIR.
Learned Counsel has placed reliance on the decision of the Apex Court in State of Karnatka vs. Sureshbabu Puk Raj Porral 1994 (1) RCR (Criminal) 271, wherein in para 7, it was held as under:-
" Now coming to the evidence of PW-7, she deposed that CRA No.960-SB of 1998 (O&M) 5 she went along with the sister of the accused to the bus stand and got into the bus and went to several places and stayed with the accused in lodges and that the accused had intercourse with her. She however, added that the accused was having intercourse against her will. She was cross-examined at length and we find several omissions in her previous statement. In the cross examination the defence tried to elicit from her as to what exactly the accused did to her in those places during night. She went on saying that the accused did something to her which he ought not to have done. She admitted that her statement was the same before the police also. The learned Single Judge of the High Court especially pointed out this aspect and observed that it is very difficult to infer that the accused had intercourse with her. Therefore in the absence of some other evidnece to support the prosecution case that the accused had intercourse with her, in our view, the High Court was not wrong in holding that the offence under Section 376 IPC is not made out. Now, coming to the offence of kidnapping punishable under Section 366 IPC, again her age is doubtful. That apart, PW 7's evidence shows that she went with the accused voluntarily. When the age is in doubt, then the question of taking her away from lawful CRA No.960-SB of 1998 (O&M) 6 guardianship does not arise. However, the second requirement that taking or enticing away a minor out of the keeping of the lawful guardian is an essential ingredient of the offence of kidnapping. In the instant case, we are not concerned with enticement. But what we have to find out is whether the part played by the accused amounts to taking out of the keeping of the lawful guardian. From the evidence of PW 7, it is clear that she was also anxious to go with the accused to see places. In such a case, it is difficult to hold that the accused had taken her away from the keeping of her lawful guardian and something more has to be shown in a case of this nature like inducement."
Learned Counsel has further placed reliance on the decision of the Apex Court in Naravan @ Naran vs. State of Rajasthan 2007 (2) RCR (Criminal) 586, wherein in para 11, it was held as under:-
" In the cross-examination the prosecutrix (PW-3) stated that she borarded in the trolley at about 5'0 clock in the evening and even by 7'0 clock they reached Singhpur village. There were number of villages between Singhpur and Akodiya. It is also required to appreciate that she stated in her evidence that even after the accused committed rape on her she sat in the tractor happily. It is CRA No.960-SB of 1998 (O&M) 7 not stated by her in her evidence that she raised any hue and cry even while passing through the number of villages. In the first information report (Ex.P-5) she stated that the accused committed rape on her thrice but in the evidence she stated that the accused committed rape on her only twice and not thrice. According to her the rape was committed on her on Kankar (rough way). She did not state that she offered any resistance though she was physically very strong. Medical report (Ex.P-1) says that there were no injuries on the body of the prosecutrix (PW-
3). There were no injuries on her private part. It is ultimately opined that 'no definite opinion can be given ragarding rape, however, she is habitual to sexual intercourse." In the circumstances, is it possible to believe that the prosecutrix (PW-3) has been subjected to rape twice by the accused as alleged? In the First Information Report (Ex.P-5) it is stated that the prosecutrix (PW-3) has been subjected to rape by the accused thrice but in her evidence she stated that she had been subjected to rape only twice. The accused even according to the prosecutrix (PW-3) was driving the tractor from Singhpur to Bharkiya crossing through the number of villages. It is not stated by the prosecutrix (PW-3) that she made any attempt to get down from the CRA No.960-SB of 1998 (O&M) 8 tractor at any point of time. On the other hand, it is stated by her that she sat in the tractor happily."
Learned Counsel has next placed reliance on the decision of the Apex Court in Ram Kumar vs. State of Haryana 2007 (2) RCR (Criminal) 305, wherein in para 3, it was held as under:-
"The appellant, aggrieved by the order passed by the High Court has filed the above appeal by way of appeal. We have been taken through the statement and evidence recorded by the Court. Our attention was also drawn to the judgment passed by both the Sessions Court as well as the judgment passed by the High Court. The learned counsel for the appellant drew our attention to the statement of the girl Bimla (PW-5) and also drew our attention to the evidence of the doctor. We have carefully analysed the evidence tendered by the prosecution. In our opinion, sufficient evidence was tendered by the prosecution to prove the guilt of the accused. However, at the time of hearing, it is brought to our notice that the girl has now got married and living with her husband. The said statement is also ratified by the evidence of the father of the girl. Having regard to the peculiar facts and circumstances of the case, we are of the view that the sentence imposed by the Sessions Court and as affirmed by the High Court under Sections 366 and 376 of the CRA No.960-SB of 1998 (O&M) 9 Indian Penal Code is on the high side. In our opinion, ends of justice would be amply met if we reduce the sentence to three years . We do so accordingly."
Learned State counsel, on the other hand, has submitted that the prosecution had been successful in proving its case. The prosecutrix had duly supported the prosecution case and the medical evidence duly corroborated the ocular version.
It has been held by the Apex Court in State of Punjab v. Gurmit Singh and others AIR 1996, Supreme Court 1393 as under:-
"Where the prosecutrix was rape, but the investigating agency failed to trace the car or its driver, the failure of the investigating agency cannot be a ground to discredit the testimony of the prosecutrix, The prosecutrix had no control over the investigating agency and the negligence of an investigating Officer could not affect the credibility of the Statement of the prosecutrix. "
"In sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. Even if there is some CRA No.960-SB of 1998 (O&M) 10 delay in lodging FIR in respect of offence of rape, if it is properly explained and the explanation is natural in the facts and circumstances of the case, such delay would not matter."
"The testimony of victim in cases of sexual offences 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 and 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 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 on an injured witness and to an extent is even more reliable. Just as a CRA No.960-SB of 1998 (O&M) 11 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 fossil formual 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. "CRA No.960-SB of 1998 (O&M) 12
After hearing learned counsel for the parties, I am of the opinion that this petition deserves to be dismissed.
The prosecutrix had gone to her school to get her School Leaving Certificate. The appellant instigated her that she should accompany him and they would get married at Kurukshetra. Prosecutrix under the said inducement went with the appellant to Kurukshetra, from where the appellant took her to his materal uncle's house. However, the appellant did not perform marriage with the prosecutrix on one pretext or the other and committed rape on her person at the house of his maternal uncle. Before that also the appellant had committed rape on the person of the prosecutrix in the bushes of Karan Lake. After keeping the prosecutrix for two days in the house of his maternal uncle, the appellant turned her out of the said house. Thereafter, the prosecutrix returned back to the hostel and on enquiry made by the Wardon, she went to bus stop, Kurukshetra where her father along with police met her. The statement of the prosecutrix was also got recorded before a Magistrate at Karnal.
The Medical Officer, who medico legally examined the prosecutrix, proved the medico legal report Ex.PL. As per Medical Officer PW-11, Dr.Amrjit Wadhwa, Hymen was absent and on PV- admitted two fingers easily. Thus, the ocular version is duly corroborated by the medical evidence. Merely because the Wardon has not supported the prosecution case would not lead to the CRA No.960-SB of 1998 (O&M) 13 inference that the prosecutrix was not telling the truth.
The Courts cannot overlook the fact that in sexual offences, delay in lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of the family. In these circumstances, the prosecution case, which is duly proved from the testimony of the prosecutrix, cannot be brushed aside merely because the FIR had been lodged after a delay of five days. The prosecutrix has deposed in a most natural manner. There is no reason to dis-believe the testimony of the prosecutrix regarding the alleged crime. There was no reason for the prosecutrix to have falsely involved the appellant in this case. Rather the testimony of the prosecutrix inspires confidence. The judgments relied upon by learned counsel for the appellant fail to advance the case of the appellant as these are based on different facts.
In the present case, the prosecutrix was more than 18 years of age but had gone with the appellant on his inducement that he would perform marriage with her. The appellant, on the other hand, had thrown her out of the house of his uncle after commission of rape on the prosecutrix. Since the prosecutrix had gone with the appellant on inducement of marriage, there was no mark of violence or injury on her person. Learned counsel for the appellant has failed to point out any major discrepancy in the testimony of the CRA No.960-SB of 1998 (O&M) 14 prosecution witnesses, which could be fatal to the prosecution case.
In the facts and circumstances of the present case, learned trial Court had rightly convicted and sentenced the appellant under Sections 365/ 376 IPC. No ground for interference is made out.
Accordingly, this appeal is dismissed.
(SABINA) JUDGE January 28, 2010 anita