Crl. Appeal No. 318-SB of 1997 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 318-SB of 1997 Date of Decision : 12.05.2009 Joginder Singh son of Kabool Singh, resident of Chanchak Sherpur, Police Station Biharigarh, District Saharanpur (UP). .... Appellant. Versus The State of Haryana .... Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. P.C. Chaudhary, Advocate for the appellant. Mr. P.S. Sullar, DAG, Haryana for the respondent-State. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, and the order of sentence dated 02.08.1996, rendered by the Court of Sessions Judge, Kurukshetra, Crl. Appeal No. 318-SB of 1997 --2-- vide which it convicted Joginder Singh son of Kabool Singh, accused, (now appellant ), as under:- Name of the accused (now appellant) The offence for which conviction was recorded. Sentence awarded Joginder Singh U/S.363 IPC Rigorous imprisonment for three years. Fine of Rs.250/-. In default of payment of fine to undergo rigorous imprisonment for one month. Joginder Singh U/S 366 IPC Rigorous imprisonment for five years. Fine of Rs.500/-. In default of payment of fine to undergo rigorous imprisonment for two months. Joginder Singh U/S 376 IPC Rigorous imprisonment for seven years. Fine of Rs.750/-. In default of payment of fine to undergo rigorous imprisonment for three months. The substantive sentences of the accused were ordered to run concurrently. 2. The facts,in brief,are that, Banarsi Dass (PW-4), belonging to Indri, was residing alongwith his family members, in a rented accommodation of Parmod Kumar Crl. Appeal No. 318-SB of 1997 --3-- son of Kailash Chand, in Ward No.6, at Ladwa, and was employed as a Teacher in Government Primary School, Buddanpur Banger, Police Station Indri. His daughter, the prosecutrix, aged about 14 years (the name is not being mentioned in view of the pronouncement of the Apex Court),left her house at about 8.00 a.m. on 31.07.1995, for going to her maternal uncle Tilak Raj, resident of Ladwa, but she did not come back in the evening. The complainant made inquiries from the house of Tilak Raj, who informed that she never visited his house on 31.07.1995. He made search of the prosecutrix in relations, but could not find any clue. He then entertained a suspicion that his daughter had been enticed and taken away by Joginder Singh son of Kabool Singh, resident of Chanchak Sherpur, who had been residing in a rented house, belonging to Jai Parkash Sharma, near the house of his brother-in-law Tilak Raj. When the prosecutrix could not be Crl. Appeal No. 318-SB of 1997 --4-- found, he went to the Police Station, and made a statement, narrating the aforesaid facts, which formed the basis of FIR. During the course of investigation, the accused was arrested. The prosecutrix was recovered. The statements of the witnesses were recorded. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Committing Court,the accused was supplied the copies of all the documents,relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Sections 363, 366 and 376 of the Indian Penal Code, was framed against the accused, to which he pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined Dr. M.P. Singh, Medical Officer, Primary Health Centre, Dhurala, (PW-1), Dr. (Smt.) Geeta Suri, Medical Officer,(PW-2), Mukesh Kumar, Crl. Appeal No. 318-SB of 1997 --5-- Draftsman, (PW-3), Banarsi Dass, (PW-4), Madhu Sharma,(PW-5), and Ranbir Singh, Assistant Sub Inspector, (PW-6). Thereafter, the Public Prosecutor for the State tendered into evidence, affidavits of Kali Ram, Moharrir Head Constable and Virender Singh, Constable, Ex.PE and Ex.PF respectively, as also the report Ex.PV of the Forensic Science Laboratory. Thereafter, he closed the prosecution evidence. 5. The statement of the accused, under Section 313 Cr.P.C., was recorded, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He, however, did not lead any evidence, in his defence. 6. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced Joginder Singh, Crl. Appeal No. 318-SB of 1997 --6-- accused,(now appellant), as stated hereinbefore. 7. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by Joginder Singh, appellant. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. It is settled principle of Criminal Jurisprudence, that the prosecution, is required to prove its case, against the accused, beyond a reasonable doubt. The Court is not required to act on mere suspicion, conjectures or surmises or suspicious circumstances, to bring home the guilt to the accused. Reasonable doubt should not be stretched too far, to suspect everything, so as to defeat the ends of justice. In Gurbachan Singh vs. Sat Pal AIR 1990 Supreme Court 209, the principle of law, laid down, was to the effect, that Crl. Appeal No. 318-SB of 1997 --7-- reasonable doubt, is simply that degree of doubt, which could permit a reasonable and just man, to come to a conclusion. Reasonableness of the doubt must be commensurate with the nature of offence, to be investigated. Exaggerated devotion to the rule of benefit of doubt, must not nurture fanciful doubts, and lingering suspicions, and thereby destroy social defence. Justice cannot be made sterile, on the plea, that it is better to let hundred guilty escape, than punish an innocent. Letting guilty escape, is not doing justice, according to law. In State of Uttar Pradesh vs. Anil Singh, AIR 1988 Supreme Court 1998, the principle of law, laid down, was to the effect, that it is necessary to remember that a judge does not preside over a criminal trial, merely to see, that no innocent man is punished. A Judge also presides to see that guilty man does not escape. One is as important, as the other. Both are public duties, which Crl. Appeal No. 318-SB of 1997 --8-- the Judge has to perform. 10. Before touching the merits of the case, in the light of the evidence, on record, in the first instance, it must be stated, as to what approach, the Court should adopt, while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex related 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 Evidence Act, provides the clue to this riddle. Under the Evidence Act, evidence means and includes all statements, which the Court permits or requires to be made before it, by the witnesses, in relation to the matters of fact, under inquiry. Under Crl. Appeal No. 318-SB of 1997 --9-- Section 59 of the Evidence Act, all facts, except the contents of documents, may be proved by oral evidence. Section 118 then illustrates, as to 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 133 provides that he/she shall be a competent witness, against an accused person, and the conviction is not illegal, merely because it proceeds upon the uncorroborated testimony of an accomplice. However, illustration (b) to Section 114, 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. Crl. Appeal No. 318-SB of 1997 --10-- Thus, under Section 133, which lays down a rule of law that, an accomplice is a competent witness, and the conviction based solely on his uncorroborated evidence, is not illegal, although in view of Section 114 illustration (b), the Courts do not, as a matter of practice, do so, and look for corroboration, in material particulars. This is the conjoint effect of Sections 133 and 114 illustration (b). 10-A. In State of Maharashtra vs. Chandraprakash Kewalchand Jain with Stree Atyachar Virodhi Parishad vs. Chandraprakash Kewalchand Jain & Anr. 1990 (2) Chandigarh, Law Reporter 228 (SC), it was held as under:- “A prosecutrix of a sex-offence cannot be on par with an accomplice. She is in fact a victim of the crime. The evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a Crl. Appeal No. 318-SB of 1997 --11-- competent witness under Section 118 and her evidence must receive the same weight as it attached to an injured in cases of physical violence. The same degree of care and caution must atach 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 Evidence Act, similar to illustration (b) to Section 114 which required it to look for corroboration. If for the same reason the Court is hesitant to Crl. Appeal No. 318-SB of 1997 --12-- 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 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, Crl. Appeal No. 318-SB of 1997 --13-- 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 prosecutrix, must carry the same weight as is attached to an injured person, who is a Crl. Appeal No. 318-SB of 1997 --14-- 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. 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 crime and thereby insult womanhood. It would be Crl. Appeal No. 318-SB of 1997 --15-- adding insult to injury to tell a woman that her story of woe would not be believed unless it is corroborated in material particulars 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, evident that respect for womanhood, in our country is on active and cases of molestation and rape are steadily growing. 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 Crl. Appeal No. 318-SB of 1997 --16-- the social norms. The standard of proof to be required 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 realize that ordinarily woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity. It is time to recall the observation of this Court made not so far back in Bhaiwaca Bhognibhai Hirjinbhai:- In the Indian setting refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is a doing insult to injury. Why should the Crl. Appeal No. 318-SB of 1997 --17-- evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyse the argument in support of the need for corroboration and subject it torelentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be Crl. Appeal No. 318-SB of 1997 --18-- swept off the feet by the approach, made in the Western world which has its own social milieu , its own permissive values, and its own code of life. Corroboration may, be considered essential to establish a sexual offence in the backdrop of the social ecology of the Western World. It is wholly unnecessary to import the said concept on a turn-Key basis and to transplant it on the Indian soil regardless of the altogether different atmosphere, attitudes, mores, responses of the Indian Society and its profile. The identities of the two worlds are different. The solution of Crl. Appeal No. 318-SB of 1997 --19-- problems therefore, cannot be identical. Further this Court said; Without the fear of making two wide a statement or of over-stating the case it can be said that rarely will a girl or a woman in India false allegations of sexual assault.... The statement is generally true in the context of the urban as also rural society. It is also by the and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or to and that too possibly from amongst Crl. Appeal No. 318-SB of 1997 --20-- the urban elites. Because (1). A girl or a woman in the tradition bound non- permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would have to brave the whole world. (4) she would face the risk of losing the love Crl. Appeal No. 318-SB of 1997 --21-- and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being over powered by a Crl. Appeal No. 318-SB of 1997 --22-- feeling of shame on account of the upbringing in a tradition bound society whereby and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy.(10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being Crl. Appeal No. 318-SB of 1997 --23-- considered to the promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by investigating agency, to face the Court to face the cross-examination, by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent. 11. In the light of the principle of law, laid down, in the aforesaid cases, by the Apex Court, it is to be determined, as to whether the prosecution was able to prove its case, beyond a reasonable doubt, against the accused. To determine, this question, the brief narration of the evidence, is required to be made. The prosecutrix, when appeared as, PW-5, Crl. Appeal No. 318-SB of 1997 --24-- stated that on 31.07.1995 at about 8.00 a.m. she left her house for going to the house of her maternal uncle, Tilak Raj, at Ladwa. Her evidence was further to the effect that when she was near the house of her maternal uncle, Joginder Singh, accused called her. He held out a threat to her by showing a knife that in case, she raised an alarm, she would be done to death. It was further stated by the prosecutrix that he took her inside his room where he committed rape with her. She further stated that she was kept confined in that room till 8.00 PM. At that time, there was no light. She was then taken to Indri Chowk. After waiting for five minutes, a bus arrived and then she was taken in that bus to Yamuna Nagar. It was further stated by her that from Yamuna Nagar, he took her to Saharanpur and from Saharanpur, she was taken to Delhi in the train. She further stated that she was confined there for five Crl. Appeal No. 318-SB of 1997 --25-- days. On one day at Delhi, the accused also committed rape with her. She further stated that the accused used to threaten her as and when she was taken out of the hut, where she was kept, in Delhi, for five days. She further stated that the accused also used to threaten her that she will be finished, in case, she raised alarm. The accused fell short of money on 06.08.1995. She further stated that the accused told her that he will take money from his brothers, and then he brought her back from Delhi to Saharanpur and then from Saharanpur to Yamuna Nagar and from Yamuna Nagar to Bursami bus stand. At Bursami Bus Stand, she and the accused were standing when a white coloured maruti van came there. When the accused was going to board a bus, the Police alongwith her father Banarsi Dass came there. The accused was arrested and she was recovered from his custody. She was thoroughly cross-examined. During the course of Crl. Appeal No. 318-SB of 1997 --26-- cross-examination, nothing of consequence could be got elicited from her mouth, which may go to discredit her evidence, with regard to the commission of rape, with her by Joginder Singh. She stood the test of touch-stone of all probabilities, during the course of cross-examination. She in clear-cut terms, stated that she was kept in confinement by the accused by threatening her at the point of knife. There was no reason, on the part of the prosecutrix, to falsely implicate the accused, in the instant case. She had no ill-will, or grudge against the accused, to depose falsely against him. She very well knew that, if the allegations of rape, levelled by her, against the accused, were found to be false, she would be looked down upon in the society and reputation of her family shall also be harmed. At least, it could not be expected of a girl, aged about 14 years, to raise false allegation of rape, against Crl. Appeal No. 318-SB of 1997 --27-- the accused. Corroboration to the statement of the prosecutrix was provided through the evidence of Dr. Geeta Suri, Medical Officer, (PW-2), who medicolegally examined her. She found that hymen of the prosecutrix was torn. One finger could easily pass through her vagina. She further stated that the possibility of rape with the prosecutrix, could not be ruled out. The evidence of the prosecutrix duly corroborated by the medical evidence, in my opinion, was sufficient to bring home the guilt to the accused. The trial Court was also right in acting upon the statement of the prosecutrix, duly corroborated by the medical evidence, to come to the conclusion that the accused committed the offences, punishable under Sections 363, 366 and 376 of the Indian Penal Code. The finding of the trial Court that the accused committed the offences, aforesaid, being based on the correct appreciation of Crl. Appeal No. 318-SB of 1997 --28-- evidence and law, on the point, is endorsed. 12. The Counsel for the appellant, however, submitted that the prosecution failed to prove that the prosecutrix was below 16 years of age, on the date of the alleged occurrence. He further submitted that the prosecution placed reliance on Ex.PN, the Middle Standard Examination Certificate of the Board of School Education, Haryana, of the prosecutrix, which was not conclusive, to determine her age. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Banarsi Dass, father of the prosecutrix,appeared as PW-4, and stated that the prosecutrix was born on 12.03.1981. He brought the original admission form, copy whereof is Ex.PL. He further stated that he got admitted the prosecutrix in Government Primary School, Budanpur on 17.12.1987. Ram Parkash was the Headmaster in that school, at that Crl. Appeal No. 318-SB of 1997 --29-- time. At the time of evidence, he (Banarsi Dass) was the Head-master of Government Primary School, Budanpur. He further stated that the prosecutrix was admitted in that school against admission No. 272. The date of birth of the prosecutrix, in that entry, was recorded as 12.03.1981. He further stated that he produced the certificate, photocopy of which is Ex.PN of the prosecutrix before the Police, which was taken into possession. Ex.PK is the certificate, issued by the Headmaster of government Primary School, Budanpur, showing that the prosecutrix passed the 5th standard examination. In this document too, the