IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] Date of decision: 8th November, 2011 [ENTITY] Appellant Versus [ENTITY] Respondent CORAM: HON'BLE MR. JUSTICE [ENTITY] Present: Mr. [ENTITY], Advocate for the appellant. Mr. [ENTITY], Assistant Advocate General, Punjab for the State. [ENTITY], J.
[ENTITY]-present appellant was tried in a case arising out of FIR No.250 dated 19.07.2008 registered at Police Station Sadar Fazilka under [SECTION] and [SECTION] [ACT]. Vide impugned judgment dated 30th September, 2009 the Court of Sessions Judge, Ferozepur acquitted the appellant under [SECTION] [ACT], however, held him guilty of an offence punishable under [SECTION] [ACT]. Vide a separate order of even date, the appellant was sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.3,000/-, in default of payment of fine to further undergo rigorous imprisonment for three months.
Aggrieved against the judgment of conviction and order of sentence, present appeal has been filed.
Criminal proceedings were set into motion on the basis of a statement Ex.P5 made by the prosecutrix (name withheld to protect her identity). Formal FIR Ex.P5/B was registered on the basis of statement Ex.P5. In her statement the prosecutrix stated that she was a resident of village Chak Bannwala, Police Station Sadar Fazilka and was a student of 8th Class in Government High School, Bannwala. On 17th July, 2008 she had gone to purchase a notebook from the shop of one [ENTITY] where she received a telephone of [ENTITY] driver, present appellant. On telephone, the appellant had threatened the prosecutrix to kidnap her. However, the prosecutrix without disclosing the threat to her parents left for Fazilka. On 17th July, 2008 at about 5.00/5.30 p.m. when she was going towards the bus stand Fazilka, the appellant along with [ENTITY] son of [ENTITY] and [ENTITY] son of [ENTITY] met her standing near a jeep. The accused were already known to the prosecutrix. The appellant called the prosecutrix. He caught hold of her arm and asked her to sit in the jeep. On her refusal and enquiry as to why they had given threat to her, all the three accused i.e. the appellant, [ENTITY] and [ENTITY], forcibly lifted the prosecutrix, threw her into the jeep and drove it away. Appellant [ENTITY] was driving the jeep. Accused [ENTITY] threatened the prosecutrix that in case she raised hue and cry she would be done to death. Due to fear, the prosecutrix kept mum. The appellant took the jeep to village Sarrian in the Dhani (a house in the fields). There both [ENTITY] and [ENTITY] committed rape upon the prosecutrix against her wishes turn by turn. On the next day, on getting an opportunity the prosecutrix slipped away from the Dhani and reached her house at about 4.00 p.m. She narrated her tale of woes to her parents and in the morning a Panchayat was convened, however, the matter could not be resolved. Thereafter, father of the prosecutrix [ENTITY] took her to Fazilka and her medico legal examination was carried. A grievance was made by the prosecutrix that all the three accused forcibly lifted her and present appellant [ENTITY] and [ENTITY] committed rape upon her without her consent.
The above said FIR was investigated and a report under [SECTION] [ACT] was submitted. Co-accused [ENTITY] was declared as a proclaimed offender. On 10th April, 2009 the appellant was charged under [SECTION] and [SECTION] [ACT]. The first charge stated that the appellant along with his co-accused [ENTITY] and [ENTITY] (both not arrested) on 17th July, 2008 at about 5.00 p.m. had kidnapped the prosecutrix, a minor girl aged about 13/14 years, from the lawful guardianship of her father [ENTITY] and thereby committed an offence punishable under [SECTION] [ACT]. The second charge stated that on the same date and time, in the area of village Sarrian, the appellant along with his co-accused [ENTITY] committed rape upon the prosecutrix and thereby committed an offence punishable under [SECTION] [ACT]. The appellant pleaded not guilty and claimed trial.
In the present case, evidence led by the prosecution regarding age of prosecutrix, her medical evidence and her testimony regarding rape are important pieces of evidence which require due consideration.
It will be necessary to notice the medical evidence first. Dr.[ENTITY] PW-1 stated that on 19th July, 2008 at about 12.10 p.m. she examined the prosecutrix aged about 14 years. It was disclosed to the doctor that the prosecutrix was subjected to rape on 17th July, 2008. No external injury was found on the person of prosecutrix. Similarly on internal examination, no injury or tear was found. Vagina of the prosecutrix admitted one finger. Two swabs were taken from the vagina and sent for chemical examination. As per the report of Chemical Examiner Ex.P3 on the vaginal swabs spermatozoa was detected. The doctor found that positive report of the Chemical Examiner is suggestive of the fact that the prosecutrix was subjected to sexual intercourse. In cross-examination, the doctor admitted that she had advised ossification test to determine age of the prosecutrix but she had received no report with regard to the same.
Prosecutrix herself appeared as PW-3 and stated her age as 14 years. She further stated that she was a student of 8th Class in Government High School, Chak Bannwala. She narrated the version given by her in her statement Ex.P5, on the basis of which formal FIR Ex.P5/B was registered. In cross-examination the prosecutrix stated that she had passed 8th Class one month prior to the instant occurrence. She further stated that in the application submitted to Punjab School Education Board, her date of birth recorded is 10th July, 1992. She further stated that at the time of admission, her mother had furnished birth certificate.
[ENTITY], father of the prosecutrix, appeared as PW-6 and corroborated the testimony of prosecutrix. He stated that he along with his wife had gone to his relations and when he returned his daughter was missing. He further stated that his daughter returned only on the next day at about 4.00 p.m. and disclosed that she was kidnapped by the present appellant [ENTITY], [ENTITY] and [ENTITY], and furthermore, that she was subjected to rape by them.
[ENTITY] PW-2 had prepared scaled site plan Ex.P4 of the spot. [ENTITY] PW-4 and [ENTITY] PW-7 tendered their affidavits Ex.P6 and Ex.P11 respectively to prove link evidence. ASI [ENTITY] PW-5 had recorded statement Ex.P5 of the prosecutrix, on the basis whereof formal FIR Ex.P5/B was registered. He also proved various facets of the investigation including arrest of the accused.
Thereafter, prosecution closed its evidence and a statement of the accused appellant was recorded under [SECTION] [ACT] All the incriminating circumstances were put to him. He denied the same and pleaded false implication.
No witness was examined in defence.
Mr. [ENTITY], Advocate for the appellant, has made following submissions to assail the judgment of conviction and order of sentence:
(a) That the prosecution has failed to prove age of the prosecutrix. Except oral bald assertion of the prosecutrix PW-3 and her father [ENTITY] PW-6, no evidence has been led by the prosecution to prove age of the prosecutrix. It is stated that though the doctor had advised ossification test, yet either the test was not conducted or the report has been withheld from the Court. Furthermore, the prosecutrix has stated that she had passed 8th Class. Neither the certificate of middle standard examination nor the school leaving certificate has been proved on record.
Learned counsel has further drawn my attention to the statement of the prosecutrix where she stated that at the time of admission in school she was accompanied by her mother and the birth certificate was also submitted. It is stated that nobody from the office of Registrar, Births and Deaths has been examined.
Thus, according to the counsel, this Court should assume that the prosecutrix was more than 16 years of age.
(b) That no internal or external mark of injury was found on the person of prosecutrix, hence, it should be inferred that the prosecutrix had offered no resistance and was a consenting party to the sexual intercourse.
(c) That according to the prosecutrix, she was kidnapped on 17th July, 2008 at about 5.00 p.m. She escaped from the house of accused-appellant on the next day at about 4.00 p.m. and yet the report was made to the police on the next day i.e. 19th July, 2008 at about 7.30 p.m. Thus, the delay in itself is sufficient to discard the testimony of the prosecutrix.
(d) It is next contended that two of the accused, namely [ENTITY] and [ENTITY] were not arrested and were not put to trial.
(e) Furthermore, as per the prosecutrix, present appellant and his co-accused [ENTITY] had committed rape upon her; whereas her father [ENTITY] stated that all the three accused had raped the prosecutrix. Thus, there is a serious infirmity in the prosecution case which is sufficient to discard the testimony of the prosecutrix.
I have perused the evidence brought on record as well as given my thoughtful consideration to the above said submissions made by counsel for the appellant. I am not impressed with the same and all the arguments advanced before me are liable to be rejected at the outset.
In the present case, determination of age will be of no consequence as the prosecutrix in categoric terms has stated that she was subjected to forcible sexual intercourse by the appellant and other co-accused. The age will be material only if the defence is able to lay a sufficient foundation for the consent. In the present case, deposition of the prosecutrix in Court makes it amply clear that she was forcibly lifted and bundled in the jeep, and thereafter she was taken away to the farmhouse of the appellant and there she was raped against her wishes. Secondly, simply because there was no external or internal mark of injury on the body of prosecutrix, is not sufficient to infer that she was a consenting party and had not resisted the act of rape committed upon her. It has come in the evidence that three persons, i.e. present appellant, [ENTITY] and [ENTITY], had held a threat to liquidate the prosecutrix and thus, in the presence of three accused the prosecutrix was a helpless victim. As stated earlier, the prosecutrix was abducted on 17th July, 2008 at about 5.30 p.m. She escaped from the custody of the accused on the next day i.e. 18th July, 2008 at about 4.00 p.m. It has also come in evidence that thereafter, a panchayat was convened to resolve the matter. This Court cannot become oblivious of the fact that in the Indian conservative families, till last an effort is made that offence of rape is not brought to the notice of whole world. Humiliation and ignominy being the consequences, always an effort is made, especially in case of girls who are to be married, that such an incident is not brought to the light and their image is not tarnished. In this regard, the following observations made by Hon'ble the Apex Court, in '[PRECEDENT], assume importance:
"15. It is necessary at the outset to state what the approach of the court should be while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex offences. Is it essential that the evidence of the prosecutrix should be corroborated in material particulars before the court bases a conviction on her testimony? Does the rule of prudence demand that in all cases save the rarest of rare the court should look for corroboration before acting on the evidence of the prosecutrix? Let us see if the [ACT] provides the clue. Under the said statute 'Evidence' means and includes all statements which the court permits or requires to be made before it by witnesses, in relation to the matters of fact under inquiry. Under [SECTION] all facts, except the contents of documents, may be proved by oral evidence. [SECTION] then tells us who may give oral evidence. According to that section all persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Even in the case of an accomplice [SECTION] provides that he shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. However, [SECTION] to [SECTION], which lays down a rule of practice, says that the court 'may' presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus under [SECTION], which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not illegal although in view of [SECTION], [SECTION], courts do not as a matter of practice do so and look for corroboration in material particulars. This is the conjoint effect of [SECTION] and [SECTION], [SECTION].
16. A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The [ACT] nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under [SECTION] and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the [ACT] similar to [SECTION] to [SECTION] which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose 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. We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accepted. The degree of proof required must not be higher than is expected of an injured witness. For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage:
'It is only in the rarest of rare cases if the court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary.' With respect, the law is not correctly stated. If we may say so, it is just the reverse. Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation.
17. We think it proper, having regard to the increase in the number of sex violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the western and European countries.
Our standard of decency and morality in public life is not the same as in those countries. It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An Indian woman is now required to suffer indignities in different forms, from lewd remarks to eve-teasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms. The standard of proof to be expected by the court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity."
In '[PRECEDENT], Himachal Pradesh High Court has held that the delay in lodging of the report is of no consequence as victim of sexual assault face a lot of difficulty to come forward to depose against the accused, as the reputation of family of the prosecutrix is at stake. Relying upon the judgment rendered in '[ENTITY] v. Gurmit Singh' (1996) 2 SCC 384, Himachal Pradesh High Court observed as under:
"22. In [ENTITY] v. Gurmit Singh , (1996) 2 SCC 384 : (1996 Cri LJ 1728), their Lordships took note of the existing rate of crime against women and held : (SCC p 403, para 21) : (at Pp 1739-40, Para 20 of Cri LJ).
'21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violate the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it different to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.' Referring to an earlier judgment in [PRECEDENT], the Supreme Court in Gurmit Singh case (1996 (2) SCC 384 : 1996 Cri LJ 1728) held :
(SCC Pp 395-97, paras 8-9) : (at p 1735, Para 7 of Cri LJ).
'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 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 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 on a par with the evidence of a 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, as 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. Interference 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 deprobable. In [PRECEDENT], [ENTITY], J. (as the Lord Chief Justice then was) speaking for the Bench summarised the position in the following words : (SCC p 559, para 16 : (at Pp 894-95, Para 16 of Cri LJ).
'A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The [ACT] nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under [SECTION] and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care of and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the [ACT] similar to [SECTION] which required it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose 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.' We are in respectful agreement with the above exposition of law. In the instant case our careful analysis of the statement of the prosecutrix has created an impression on our minds that she is a reliable and truthful witness. Her testimony suffers from no infirmity or blemish whatsoever. We have no hesitation in acting upon her testimony alone without looking for any corroboration. However, in this case there is ample corroboration available on the record to lend further credence to the testimony of the prosecutrix.
23. In the light of the above said ratio of the decision of the Apex Court, I find that in the case on hand the testimony of the prosecutrix discussed hereinabove suffers from no infirmity and she is a reliable and truthful witness. There is ample corroboration available on the record to lend further credence to the testimony of the prosecutrix in the form of the deposition of PW 2 to whom the prosecutrix had narrated the incident in the evening on the same day and she disclosed the occurrence to her husband immediately after he returned from attending the fair. Medical evidence is not of much relevance for the reason that prosecutrix was examined by Dr. [ENTITY] after about 24 days from the alleged day of occurrence and further because she is a married woman and was habitual of sexual inter course."
Holding that the delay in itself is not a ground to discard the testimony of the prosecutrix, Hon'ble the Apex Court in 'Karnel Singh v. State of M.P.' 1995(3) RCR (Criminal) 526, observed as under:
"7. The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society's attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathize with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false."
So far as the argument for not putting the co-accused [ENTITY] and [ENTITY] to the trial is concerned, the trial Court on 10th April, 2009 had disposed of the application filed under [SECTION] [ACT] holding that they have not been declared innocent, rather it was held that they have not been put to trial as prosecution has failed to arrest them. Therefore, no dent has been caused in the prosecution story and it is wrong to say that [ENTITY] and [ENTITY] were declared innocent and prosecution version qua them was not believed by the investigating agency. It will be apposite here to reproduce relevant portion of the order dated 10th April, 2009 passed by the trial Court, which reads as under:
" Heard regarding application under [SECTION] [ACT] moved by the prosecution for summoning [ENTITY] and [ENTITY] as additional accused to stand trial with [ENTITY] in case FIR No.250, dated 19.7.2008, under Sections [SECTION] [ACT], Police Station Sadar Fazilka.
A close scrutiny of the file transpires that neither [ENTITY] nor [ENTITY] (sic) have been declared innocent; rather report under [SECTION] [ACT] reveals that they are still to be arrested and after their arrest challan against them shall be presented in the Court. The name of either of these persons, who have been sought to be summoned under [SECTION] [ACT], do not figure in coloum No.2 of report under [SECTION] [ACT], which has been submitted only against [ENTITY]. As such, instant application is not maintainable and the same is dismissed."
Taking totality of circumstances into consideration, testimony of the prosecutrix aspires confidence and thus, this Court will place implicit reliance upon the same to uphold the conviction and maintain the sentence awarded to the appellant.
Hence, there is no merit in the present appeal and the same is dismissed.
[[ENTITY]] JUDGE November 8, 2011 rps