Punjab-Haryana High Court
Bhole Swami vs State Of Punjab on 1 November, 2010
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
CRA No.239-SB of 2001 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.239-SB of 2001
Date of Decision : November 01, 2010
Bhole Swami
.......Appellant
Versus
State of Punjab
.......Respondent
CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN
Present: Ms. Neha Mann, Advocate as Amicus Curiae,
for the appellant.
Mr. J S Bhullar, AAG, Punjab.
****
JITENDRA CHAUHAN, J.
1. The present appeal is directed against the judgment and order dated 03.11.2000 (hereinafter referred to as 'impugned judgment') whereby the accused-appellant has been convicted for the commission of offence punishable under Sections 376, 366, 363 and 324 of the Indian Penal Code (for short, 'the Code') and has been awarded sentence as under:-
Under Section RI for 8 years and a fine of `1,000/-, in default, RI 376 IPC for six months.
Under Section RI for 4 years and a fine of `500/-, in default, RI for 366 IPC 3 months Under Section RI for 3 years and a fine of `500/-, in default, RI for 363 IPC three months Under Section RI for 6 months 342 IPC CRA No.239-SB of 2001 2 However, all the substantive sentences were ordered to run concurrently.
2. Brief facts of the case which need necessary mention for just decision in the case are that on 11.2.2000, complainant-Sukhdev Singh, made a statement before SI Tej Pal Singh, Police Station Sadar, Hoshiarpur, to the effect that on 09.02.2000, while he was on his way to his home, along with his wife, Bimla, and daughter (the prosecutrix), from his land situated at Banjar Bagh, and reached near the Bhangi choe, the prosecutrix went to answer the call of nature whereas the complainant and his wife returned back to their house.
When the prosecutrix did not return to the house till 8.00 p.m., the complainant tried to search her but in vain. On 10.2.2000 also, the complainant continued to search the prosecutrix at his relatives' place, but she could not be found.
3. The complainant was having full faith in a temple, namely, Baurian Mandir, and on 11.2.2000 at about 5.30 p.m., he along with one Ram Dass, visited the temple to pay obeisance. At that time, the prosecutrix saw the complainant from the ventilator of the room situated in the temple premises, and said in a loud voice that she had been kidnapped by the accused-appellant, Bhole Swami, Pujari of the temple, on 9.2.2000 and illegally confined in the room which was locked from outside by him. She also told the complainant that she was raped by the appellant forcibly on Wednesday and Thursday, and she be rescued.
CRA No.239-SB of 2001 3
4. Thereafter, the complainant went to the Police and made a statement, Ex.PC, on the basis of which, formal FIR, Ex.PC/2, was registered. SI Tej Pal Singh visited the spot and broke open the lock of the room and the prosecutrix was recovered. The site plan, Ex.PK, of the place of occurrence was prepared and the medico-legal examination of the prosecutrix was got conducted.
5. On completion of the investigation, final report under Section 173 Cr.P.C. was submitted and the case was committed to the Court of Sessions.
6. The accused was charge-sheeted for the commission of offence punishable under Sections 363, 366-A, 376 and 342 of the Code, to which he pleaded not guilty and claimed trial.
7. In order to substantiate its case against the accused, the prosecution examined as many as 11 witnesses, namely, Dr. Jagdish Singh Saini as PW1; Dr. Jagmohan Singh as PW2; Sukhdev Singh, complainant, as PW3; Gurdev Singh as PW4; MHC Surinder Kumar as PW5; Constable Jiwan Kumar as PW6; the prosecutrix as PW7; Sheela Devi as PW8; Roshan Lal as PW9; Gurbachan Dass as PW10; and SI Tej Pal Singh as PW11.
8. When examined under Section 313 Cr.P.C., the accused denied the allegations appearing against him in the prosecution case and pleaded his false implication. In his defence, the accused examined Constable-I Sanjeev Kumar as DW1.
9. After hearing learned counsel for the parties and appreciating the material evidence on record, the learned trial Court CRA No.239-SB of 2001 4 convicted and sentenced the accused-appellant for the offence and term as indicated at the outset of this judgment.
10. Learned counsel for the appellant has submitted that the prosecutrix has been used as a tool to implicate the appellant at the behest of Ram Kumar Mayar, Sarwan Singh and some other persons who wanted to evict the appellant from the temple where he was performing the duty as Priest. She has argued that the prosecutrix comes from a very poor family who, along with her father, were used as an instrument to forcibly grab the temple maintained by the appellant after foisting a false case against him.
11. Learned counsel has further submitted that the prosecutrix is a girl of easy virtues and was used to sexual intercourse. Therefore, she has argued that this is an added circumstance to employ her in this case as a false witness at the instance of her father.
12. Learned counsel has further contended that the conviction cannot be sustained solely on the basis of the statement of the prosecutrix without any corroboration. She has further submitted that no external mark of injury on any part of the body of the prosecutrix was noticed at the time of her medico-legal examination. She has further submitted that in the testimony of Dr. Jagdish Singh Saini, PW1, it has been specifically pointed out that the possibility of having used to sexual intercourse cannot be ruled out.
13. On the other hand, learned counsel for the State has submitted that the prosecutrix was about 12 years of age at the time of occurrence and had been illegally confined by the accused for two nights. She was recovered from the temple where the appellant had CRA No.239-SB of 2001 5 been performing the duties of the priest. Learned counsel has further stated that this fact is fully corroborated from the statement of the prosecutrix, PW7, her father, the complainant, Sukhdev, PW3, and SI Tej Pal, I.O., PW11.
14. I have heard learned counsel for the parties and perused the record.
15. Admittedly, the prosecutrix was minor on the day of occurrence. It has come in the statement of the complainant-Sukhdev Singh, PW3, the father of the prosecutrix, that on 9.2.2000, while they were returning from their fields in the area of Bhangi choe, the prosecutrix stayed in the Bhangi choe in order to answer the call of nature and both the parents left for home. The prosecutrix did not reach home. The complainant kept searching for her. On 11.2.2000, he along with Ram Dass, went to the temple to pay obeisance. They were seen by the prosecutrix through the ventilator of the room in the temple premises where she had been illegally confined by the appellant. After seeing the prosecutrix, the complainant left Ram Dass at the spot and went to the Police Station. He lodged a report, Ex.PC. SI Tej Pal Singh came to the spot, broke open the lock of the room and rescued the prosecutrix. The accused was arrested by the Police.
16. The prosecutrix was medico-legally examined by Dr. Jagdish Singh Saini, PW1, who has given a very categorical opinion that the prosecutrix was subject to intercourse, which is corroborated from the statement of the prosecutrix. The statement of the prosecutrix, who was of a tender age of 12 years, is very categorical to CRA No.239-SB of 2001 6 the effect that the accused detained her illegally and repeatedly raped her. The Statement of the prosecutrix alone is sufficient to convict the accused and no corroboration is required. However, the case of the prosecution is further strengthened by the statement of Sukhdev Singh, complainant and SI Tej Pal, Investigating Officer, that the prosecutrix was recovered from the temple after breaking open the lock. It has also come in the testimony of Gurbachan Dass, PW10, that the prosecutrix was seen in the company of the accused on 09.2.2000.
17. From the statement of Sheela Devi, Head Teacher, (Retd.), PW8, it is evident that as per the School Leaving Certificate, Ex.PG, the date of birth of the prosecutrix is 14.5.1988. However, as per the birth certificate, Ex.PT, produced in the Court, the date of birth of the prosecutrix has been recorded as 27.6.1986. Dr. Jagmohan Singh, PW2, was examined by the prosecution, who has opined that on 15.2.2000, the day X-ray of the prosecutrix was taken, her age was between 12-15 years. Though, there is variation in the date of birth as stated by Sheela Devi, PW8, and as recorded in the Date of Birth Certificate, Ex.PT, but the fact remains that the prosecutrix was minor on the date of occurrence. On 9.2.2000, the day on which the appellant committed rape upon the prosecutrix, she was admittedly below 16 years of age. There is nothing on record to suggest that the prosecutrix was major or that she ever gave consent to elope with the accused or to commit rape upon her.
18. From the facts on record, it is established that the accused kept the prosecutrix in his room for two nights. She was rescued by CRA No.239-SB of 2001 7 the Police. Thereafter, Dr. Jagdish Singh Saini, PW1, conducted medico-legal examination of the prosecutrix. As per the report of the Chemical Examiner, semen was found on the slide swab, pad, salwar and kamiz of the prosecutrix. The factum of illegal confinement of the prosecutrix by the accused for two nights is proved on record. Therefore, it cannot be said that the prosecutrix had been indulging in sexual intercourse with some other person during those days and the rape was not committed upon her by the accused. No benefit can be given to the accused on the ground that no external mark of injury on any part of the body was noticed by the prosecutrix and the possibility of having used to sexual intercourse cannot be ruled out.
19. Unfortunately, the father of the prosecutrix did not support the case of the prosecution when he was cross-examined, however, the prosecutrix has fully supported the case. She has given the complete details of her ravishment by the appellant. It is also proved from the statement of the prosecutrix that the appellant was taken into custody from the spot, though, it has come in the statement of SI Tej Pal that he arrested the accused on 11.2.2000 from Tanda Byepass. Constable-I, Sanjeev Kumar, appeared as DW1 and deposed that FIR No.83 dated 16.7.1994 was lodged by Swaran Singh s/o Darshan Singh under Sections 323 and 324 IPC against Bholey Swami chela Bimla Nand Saraswati, however this does not help the accused as Sukhdev Singh is not a party to this litigation. In the face of the statement of the prosecutrix, the medical evidence on record and the fact of recovery of the prosectrix from the temple premises, it cannot be said that the prosecutrix was not raped by the appellant. The CRA No.239-SB of 2001 8 prosecutrix has fully supported the case of the prosecution. It is painful to note that her father and the police officials, to some extent, tried to rescue the appellant.
20. In view of the unblemished testimony of the prosecutrix, which is fully corroborated from the medical evidence, no further corroboration is required. The statement of the prosecutrix is truthful and nothing has been pointed out by the learned counsel for the appellant, on the basis of which, the same can be discarded. While dealing with a similar question, Hon'ble the Apex Court, in case titled as State of M.P. V. Dayal Sahu, 2005 AIR 3570, has held as under:-
"In the case of State of Punjab vs. Gurmit Singh, (1996) 2 SCC 384, it has been held that a conviction can be founded on the testimony of prosecutrix alone unless there are compelling reasons for seeking corroboration. It is further held that her evidence is more reliable than that of an injured witness. It was pointed out in paragraph 8 at scc pp.395-396 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 CRA No.239-SB of 2001 9 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 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 CRA No.239-SB of 2001 10 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 CRA No.239-SB of 2001 11 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 a probable".
21. Resultantly, the present appeal is dismissed. The judgment and order passed by the learned trial Court is upheld. The appellant is stated to be on bail. His bail bonds shall stand cancelled. He be taken into custody forthwith to suffer the remaining part of the sentence.
01.11.2010 ( JITENDRA CHAUHAN ) atulsethi JUDGE