CRA No.218-SB of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CRA No.218-SB of 2001 Date of Decision:-15.7.2013 [ENTITY] Appellant Versus [ENTITY] Respondent CORAM:- HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.[ENTITY], Advocate for the appellant. Mr.[ENTITY], AAG Haryana for the State. [ENTITY], J.
Assailing the prosecution version and its evidence in entirety, appellant-convict [ENTITY] son of [ENTITY] (for brevity "the appellant") has preferred the instant appeal to challenge the impugned judgment of conviction dated 20.1.2001 and order of sentence dated 22.1.2001, by means of which, he was convicted and sentenced to undergo rigorous imprisonment (for short "RI") for a period of three months for the commission of offence punishable u/[SECTION] [ACT], to undergo RI for a period of seven years, to pay a fine of ` 2000/- and in default thereof to further undergo RI for a period of six months u/[SECTION] [ACT] and to undergo RI for a period of six months u/[SECTION] [ACT]. However, all the sentences were ordered to run concurrently by the trial Court of Addl. Sessions Judge.
2. The epitome of the facts and evidence, unfolded during the course of trial, culminating in the commencement, relevant for disposal of the present appeal and emanating from the record, as claimed by the prosecution, is that on 10.3.1999 at about 2 PM, the [ENTITY] (PW5) (name withheld) had gone to answer the call of nature. As soon as, she reached near the house of [ENTITY] (DW2), in the meantime, the appellant came there. He gagged her mouth with hand and forcibly took her to the house of one [ENTITY]. He bolted the room from inside and asked her to take off her clothes at knife point. Thereafter, he committed rape against her will and without consent. She raised hue and cry, which attracted her father [ENTITY] (PW4), [ENTITY] son of [ENTITY] (PW8) & [ENTITY], who reached there and heard the shrieks of his daughter. PW4 knocked the door. The appellant suddenly opened the door. He was having a knife in his hand and fled away from the place of occurrence. The [ENTITY] narrated her tale of woe to her father and subsequently reported the matter to the police.
3. Leveling a variety of allegations and narrating the sequence of events, in all, the prosecution claimed that on 10.3.1999, the appellant had committed forcible rape on the person of [ENTITY] without her consent and will. In the background of these allegations and in the wake of statement (Ex.[ACT]) of [ENTITY], a criminal case was registered against the appellant, vide FIR No.166 dated 10.3.1999 (Ex.[ACT]/2), on accusation of having committed the offences punishable u/[SECTION], [SECTION] and [SECTION] [ACT] by the police of Police Station NIT Faridabad as depicted here-in-above.
4. After completion of the investigation, the final police report (challan) was submitted by the police against the appellant to face the trial for the pointed offences.
5. Having completed all the codal formalities, the appellant was charged by the trial Judge for having committed the offences punishable under [SECTION], [SECTION] and [SECTION] [ACT], by way of charge sheet dated 1.7.1999. As he did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution.
6. The prosecution, in order to substantiate the charges framed against the appellant, examined Dr.[ENTITY] as PW1, who medico legally examined the [ENTITY], aged 15 years, vide MLR (Ex.PA), Dr. [ENTITY] as PW11, who medico legally examined the appellant, vide MLR (Ex.PK). PW2 [ENTITY], Headmistress produced the birth certificate (Ex.PB), wherein the date of birth of [ENTITY] is mentioned as 7.8.1984. PW3 constable [ENTITY] handed over the special report to the higher officials.
7. The next to note is the testimony of [ENTITY] (PW5), who has deposed in the following manner:-
"On 10.3.99, at about 2 P.M. I had gone to ease myself near the boundary wall of cremation ground. In the meantime, as soon as I reached near the house of [ENTITY], then [ENTITY] accused came across to me. He shut my mouth with a hand and then took me to the house of [ENTITY]. He bolted the room from inside and asked me to take off clothes at the point of knife. Thereafter, I being frightened, had to put off my clothes and then the accused committed rape on me against my will and without my consent. However I had been sobbing during the commission of rape. Thus, he committed rape twice on me. In the meantime, I raised hue and cry after hearing the voice of my father in a street. Accused unbolted the door and fled away having shown knife to my father. After a while, [ENTITY] and [ENTITY] also reached there. [ENTITY] chased the accused but he had already managed to escape. Thereafter, I was brought to my house. The matter was lodged with the police. I was got medico legally examined in B.K.Hospital. Report Ex.[ACT] bears my signatures. The accused is present in court."
8. [ENTITY], PW4 [ENTITY] has, inter-alia, stated that [ENTITY], her daughter, was 15 years of age. On the fateful day, she had gone to answer the call of nature, but did not return to home. After waiting for some time, he searched for her. He reached near the house of [ENTITY], then, he heard the noise of crying of his daughter from the house of [ENTITY], which adjoins the house of [ENTITY]. After hearing the noise, he reached near the door of house of [ENTITY] and then he again heard the screams of his daughter. He started to knock the door of house of [ENTITY]. PW8 [ENTITY] and [ENTITY] also reached there. The appellant was having a knife in his hand, opened the door and ran away from the place of occurrence. PW8 [ENTITY] tried to chase him, but in vain. He (PW4) entered the room of house of [ENTITY] and his daughter narrated the entire tale of woe of rape at knife point by the appellant. He brought his daughter to the house and thereafter reported the matter to the police.
9. Likewise, PW8 [ENTITY] has maintained, on oath, that on 10.3.1999, [ENTITY], father of [ENTITY], was standing on the door of house of [ENTITY]. In the meantime, the appellant came out of the house by opening the door and projected the knife towards [ENTITY] and ran away from the place of occurrence. He tried to chase him, but in vain.
10. Similarly, PW6 ASI [ENTITY] deposed that he arrested the appellant on 11.3.1999. He was medico legally examined by the doctor. The appellant made a disclosure statement (Ex.PD), which bears his signatures and was attested by PWs [ENTITY] and [ENTITY]. In pursuance thereof, the knife was recovered from the possession of the appellant, which was taken into possession, vide recovery memo (Ex.PE). He prepared the rough sketch (Ex.PF) of the knife. The sealed parcel handed over to him by the doctor was also taken into possession, vide recovery memo (Ex.PG). He prepared the rough site plan (Ex.PH) of the place of recovery. PW7 constable [ENTITY] prepared the scaled site plan (Ex.PI) of place of occurrence with its correct marginal notes. PW9 [ENTITY] Inspector after completing the investigation, prepared the final police report u/[SECTION] [ACT].
11. The last to note is the testimony of PW10 ASI [ENTITY] Investigating Officer, who has, inter-alia, maintained that on 10.3.1999, the [ENTITY] lodged the report and her statement (Ex.[ACT]) was recorded by him. He made his endorsement (Ex.[ACT]/1) on it and sent the same to the police station, which formed the basis of FIR (Ex.[ACT]/2) recorded by [ENTITY] ASI. He went to the spot and prepared rough site plan (Ex.PJ) of place of occurrence. He got medico legally examined the [ENTITY] from the doctor and recorded the statements of witnesses u/[SECTION] [ACT]. This is the entire evidence brought on record by the prosecution.
12. After the close of the prosecution evidence, the statement of the appellant was recorded. The entire incriminating material/evidence was put to enable him to explain any circumstance appearing against him therein, as contemplated under [SECTION] [ACT]. However, he has denied the prosecution evidence in its entirety and pleaded false implication due to party faction. The appellant, in order to prove the line of defence, has examined DW1 [ENTITY] w/o [ENTITY] and DW2 [ENTITY] s/o [ENTITY].
13. The trial Judge, after taking into consideration the entire oral as well as documentary evidence brought on record by the prosecution, convicted and sentenced the appellant, by virtue of impugned judgment of conviction & order of sentence in the manner described here-in-above.
14. The appellant did not feel satisfied and preferred the present appeal to challenge the impugned judgment of conviction & order of sentence. That is how I am seized of the matter.
15. At the very outset, the learned counsel for appellant has contended with some amount of vehemence that the story of the prosecution is highly improbable. There is a delay of four hours in reporting the matter to the police, which casts a shadow of doubt on the prosecution version. The argument is that since the statement of [ENTITY] and other prosecution witnesses do not inspire confidence, so, the appellant is liable to be acquitted.
16. Hailing the impugned judgment of conviction & order of sentence, on the contrary, the learned State counsel vehemently urged that the story of the prosecution is natural and the matter was promptly reported to the police. The contention is that the [ENTITY] has duly supported the prosecution version, which further finds corroboration from the statements of her father [ENTITY] (PW4) and independent witness [ENTITY] (PW8). According to learned State counsel, the trial Court has rightly convicted and sentenced the appellant and no interference is warranted in this regard.
17. Having heard the learned counsel for the parties at quite some length, having gone through the evidence on record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the instant appeal.
18. As regards the question of delay is concerned, as indicated here-in-above, the occurrence in this case had taken place at about 2 PM on 10.3.1999, whereas the statement (Ex.[ACT]) of the [ENTITY] was recorded at 6.05 PM, which formed the basis of formal FIR (Ex.[ACT]/2) recorded at 6.30 PM on the same very day. It has come in the statement of [ENTITY] (PW4) that after the occurrence, he brought his daughter ([ENTITY]) to his house. Thereafter, the matter was reported to the police. It was also so stated by the [ENTITY] in her statement (PW5). Moreover, in sexual offences, such minor delay in lodging of the FIR can be due to variety of reasons particularly the reluctance of the [ENTITY] or her family members to go to the police and complain about the incident, which concerns the honour of the family in general and reputation of the [ENTITY] in particular. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged by the victim. In this manner, in the present case, the matter was promptly reported to the police and there is no delay in lodging the FIR (Ex.[ACT]/2), as contrary urged on behalf of the appellant.
19. Now adverting to the prosecution evidence, as discussed earlier, the [ENTITY] (PW5) has, inter-alia, categorically stated that the appellant had twice committed rape on her without her consent at knife point. She raised hue and cry and after hearing her shrieks, her father came in the street. The appellant opened the door and fled away after showing the knife to her father. She admitted that PW8 [ENTITY] and [ENTITY] also reached there. The statement of [ENTITY] further finds corroboration from the statements of her father [ENTITY] (PW4) and [ENTITY] (PW8). The [ENTITY] has given a consistent version and cogently narrated the manner of her tale of woe of rape committed by the appellant. Ex facie, the routine submission of learned counsel that it is highly improbable to believe that appellant would commit rape in the house of [ENTITY] in the presence of his family members, is neither tenable nor the observations of Hon'ble Apex Court in case [PRECEDENT] are at all applicable to the facts of the instant case, wherein according to the [ENTITY], the appellant (therein) met her near Ganda Nala, he caught hold of her hand and dragged her towards the bushes on the edge of the road and committed rape on her. She could not raise the noise due to fear. On the peculiar facts and in the special circumstances of that case, it was observed that the statement of [ENTITY] did not inspire confidence. Possibly, no one can dispute with regard to the aforesaid observations, but to me, the same would not come to the rescue of the appellant in this respect as in the present case, the appellant has committed rape in a bolted room of the house of [ENTITY].
20. Not only that, it has come in the evidence of PW4 [ENTITY] that the house of [ENTITY] was lying vacant at the relevant time as he ([ENTITY]) used to go to attend his duties and come back in the evening. However, the key of his house used to remain with the appellant. He feigned ignorance as to where his family members reside. Even no suggestion was either put to PW4 or PW5 that any family member of [ENTITY] was present in the house at the time of occurrence. Therefore, the [ENTITY] has given a natural version of the incident and no fault could possibly be traced in her statement, which is cogent, consistent and trustworthy as regards the commission of actual offence of rape is concerned. To my mind, the testimony of [ENTITY] is plausible, convincing, true and credible. There is no legal impediment or difficulty to act on the testimony of victim of sexual assault, which inspires confidence and is found to be reliable. It is now well settled principle of law that 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 as well. Even conviction of the appellant can be based on the solitary evidence of [ENTITY]. It cannot possibly be denied 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. Reliance in this connection can be placed on the celebrated judgments of Hon'ble Supreme Court in cases [PRECEDENT] and [PRECEDENT], which have been subsequently followed in many recent judgments.
21. In so far as the age of the [ENTITY] is concerned, as is evident from the record that the date of birth of [ENTITY] is mentioned as 7.8.1984 in the school certificate (Ex.PB) proved by PW2 [ENTITY]. PW4 and PW5 maintained that she ([ENTITY]) was minor and 15 years of age at the relevant time of occurrence. It is also so recorded in her MLR (Ex.PA) that she was minor of 15 years of age at the time of her medico legal examination. Therefore, it is proved on record that she was minor and less than 15 years of age at the relevant time of occurrence. The ocular version of [ENTITY] finds corroboration from the medical evidence of Dr.[ENTITY] (PW1). No doubt, the appellant has examined DW1 [ENTITY] wife of [ENTITY], who has stated that on 10.3.1999, she remained in her house throughout the day and according to DW1 [ENTITY] and DW2 [ENTITY], he (appellant) did not commit rape on the [ENTITY], but no implicit reliance can be placed on their statements as there is a cogent and positive acceptable evidence of PW4 & PW5 that the house of [ENTITY] was locked. PW4 deposed that he used to go to his job, no body was present in his house at the relevant time and key of the house used to remain with the appellant throughout the day. They did not report the matter to any authority in this relevant direction that he (appellant) was falsely implicated by the police. There could be no difficulty subsequently to procure such witnesses by the accused person. The appellant has not specifically suggested to any of the prosecution witnesses that any body was present in the house at the time of occurrence. Above-all, he has suggested to the [ENTITY] that he was falsely implicated on account of litigation with her father, whereas in his statement u/[SECTION] [ACT], he adopted a contrary defence and pleaded that he was falsely implicated due to party faction.
22. Therefore, the prosecution has produced more than sufficient, ocular, medical & documentary evidence on record against the appellant. All the prosecution witnesses were cross-examined at length, but no substantial material could be elicited in their cross examination to dislodge the prosecution case, which is otherwise duly proved by cogent, oral as well as medical & documentary evidence brought on record by the prosecution as discussed here-in-above. No animus could possibly be attributed to PW4, PW5 and PW8 as to why they would falsely implicate the appellant in a case where the honour of the family in general and career and reputation of the victim in particular, were involved.
23. Thus, it would be seen that if the ocular evidence of the prosecution, coupled with medical and documentary evidence and totality of the other facts and circumstances, emanating from the evidence on record, as described here-in-above, are put together, then to me, the conclusion is inevitable that it is duly established on record that the appellant had forcibly committed the rape with the victim on knife point in the same manner, as suggested by the prosecution. It is also proved on record that he threatened her with dire consequences, in case she disclosed the incident to any body. Hence, the guilt of the appellant is duly proved. Therefore, to my mind, the trial Judge has rightly convicted & sentenced him in the manner indicated here-in-above. The learned counsel for the appellant did not point out any other legal infirmity or major contradictions and inherent improbabilities, much less cogent, to discard the reliable and trustworthy evidence of the prosecution. In this manner, the contrary arguments of learned counsel for appellant "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances.
24. No other legal point, worth consideration, has either been urged or pressed by the counsel for the parties.
25. In the light of aforesaid reasons, as there is no merit, therefore, the instant appeal is hereby dismissed as such. Consequently, the impugned judgment of conviction & order of sentence are maintained, in the obtaining circumstances of the case. At the same time, the Chief Judicial Magistrate is directed to secure the presence of the appellant forthwith and commit him to jail to serve out the remaining portion of his sentence.
15.7.2013 ([ENTITY]) AS Judge Whether to be referred to reporter?Yes/No