Criminal Appeal No. 324-SB of 1996 1 Criminal Appeal No. 338-SB of 1996 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 324-SB of 1996 Date of Decision: 27.03.2009 1. Heena alias Babita wife of Sandeep daughter of Navneet Rai Bajaj, resident of H. No. 20/244, Dakshin Puri, New Delhi. 2. Hardevi wife of Navneet Bajaj, resident of H. No. 20/244, Dakshin Puri, New Delhi. ... Appellants Versus The State of Haryana. ...Respondent Criminal Appeal No. 338-SB of 1996 Date of Decision: 27.03.2009 1. Sandeep son of Ved Parkash Sharma, resident of H. No. 2803, Chandni Chowk, New Delhi. 2. Dheeraj son of Navneet Rai, caste Bajaj, resident of H. No. 20/244, New Delhi. 3. Krishan Kumar Malik son of Sain Ditta, caste Khatri, resident of H. No. 1044/11, Model Town Dhand Road, Kaithal. 4. Vijay Kumar son of Gurdayal Singh, caste Khatri, resident of H. No. 1462, Partap Gate, Kaithal. 5. Krishan Kumar Takkar son of Inder Dass Khatri, resident of H. No. 247/8, Mohalla Santpura, Kaithal. Criminal Appeal No. 324-SB of 1996 2 Criminal Appeal No. 338-SB of 1996 6. Krishan alias Kaka son of Chaudhary Lal Khatri, resident of H. No. 63-64, Siwan Gate, Kaithal. ... Appellants Versus The State of Haryana. ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Bipan Ghai, Senior Advocate, with Mr. Deepak Garg, Advocate, for the appellants in both the appeals. Mr. P.S. Sullar, Deputy Advocate General , Haryana, for the respondent. Mr. Rajinder Goyal, Advocate, for the complainant. SHAM SUNDER, J. This judgement, shall dispose of Criminal Appeal No. 324- SB of 1996, filed by Heena alias Babita wife of Sandeep, and Hardevi wife of Navneet Bajaj, and Criminal Appeal No. 338-SB of 1996, filed by Sandeep son of Ved Parkash Sharma, Dheeraj son of Navneet Rai, Krishan Kumar Malik son of Sain Ditta, Vijay Kumar son of Gurdayal Singh, Krishan Kumar Takkar son of Inder Dass Khatri, and Krishan alias Kaka son of Chaudhary Lal, accused (now appellants), against the judgement of conviction and the order of sentence, dated 24.04.96, rendered by the Court of Additional Sessions Judge, Kurukshetra, vide which, it convicted and sentenced them, as under:- Criminal Appeal No. 324-SB of 1996 3 Criminal Appeal No. 338-SB of 1996 Name of the accused (now appellants) Offence for which convicted Sentence awarded 1 2 3 i ii Heena alias Babita Hardevi (a) Under Section 366 of the Indian Penal Code. To undergo rigorous imprisonment for a period of three years each and to pay a fine of Rs. 1000/- , each, in default thereof, to further undergo rigorous imprisonment for a period of six months each. iii iv Sandeep Dheeraj (b) Under Section 366 of the Indian Penal Code. To undergo rigorous imprisonment for a period of five years each and to pay a fine of Rs. 1000/- , each, in default thereof, to further undergo rigorous imprisonment for a period of six months each. Criminal Appeal No. 324-SB of 1996 4 Criminal Appeal No. 338-SB of 1996 Name of the accused (now appellants) Offence for which convicted Sentence awarded v vi vii viii Krishan Kumar Malik Vijay Kumar Krishan Kumar Takkar Krishan alias Kaka (c) Under Section 366 of the Indian Penal Code. To undergo rigorous imprisonment for a period of five years each and to pay a fine of Rs. 1000/- , each, in default thereof, to further undergo rigorous imprisonment for a period of six months each. (d) Under Section 376(2)(g) of the Indian Penal Code. To undergo rigorous imprisonment for a period of ten years each and to pay a fine of Rs. 2,000/-, each, in default thereof, to further undergo rigorous imprisonment for a period of one year each. All the substantive sentences were ordered to run concurrently. 2. The prosecution case, proceeded in the manner, that the prosecutrix aged about 17 years, resident of Sarswati Road, Pehowa, had passed 10th class. Her father died about 12 years earlier to 23.06.94. She had got two sisters namely Sangeeta, and Ritu. Ritu was 8 years old, at the relevant time. The prosecutrix, her mother Narayani Devi, and younger sister Sangeeta, were running a book seller shop. There were vacations in the school. She alongwith her mother and three Criminal Appeal No. 324-SB of 1996 5 Criminal Appeal No. 338-SB of 1996 sisters after closing the book shop, came to Darra Khera, in Thanesar, to meet her mother's sister (Mausi), about 15 days before 23.06.94. They were residing with her mother's sister (Mausi). On 23.06.94, at about 1.00 PM, the prosecutrix alongwith her sister Ritu, came to Sector 13, Kurukshetra, to meet their aunt, wife of Des Raj. She was talking to her aunt. At about 2.00 PM, Hardevi, her god-father's sister (Bua), accompanied by her daughter Heeena, Heena's husband Sonu, and Heena's brother Dheeraj, residents of Dakshinpuri near Virat Cinema, Flat No. 244, Block No. 20, near New Madangir, Delhi, accompanied by six boys, whose names, the prosecutrix did not know, but could identify them, if shown to her, came to the house of her aunt aforesaid. Thereafter, she was forcibly put in a blue Maruti van and was taken near a bridge in a vacant bungalow (kothi). It was further stated that in that bungalow (kothi), she was subjected to sexual intercourse forcibly by one hefty man, who was being called as Kaka, and by another man, who was short statured (geetha), having a beard after removing her clothes. It was further stated that the family of the god- sister of her father was sitting in another room in that bungalow. It was further stated that the remaining six persons were in the same room, who were fondling her. Some of them inserted finger in her anus. Some of them gave tooth bite on her face. Thereafter, all of them, took her forcibly in a Maruti van to Radaur, to the house of the in-laws of her father's sister Hardevi. Thereafter, her father's sister Hardevi, cut her hair and gave her beatings with shoes. It was further stated that after Criminal Appeal No. 324-SB of 1996 6 Criminal Appeal No. 338-SB of 1996 getting an opportunity, she boarded the bus and came to Kurukshetra. Thereafter, she accompanied by her mother and younger sister, went to the Police Station on 23.06.94, and made a statement exhibit PE, containing the aforesaid facts, which was recorded by the Police. It was read-over and explained to her, and after admitting the same to be correct, she signed it. Endorsement PE/1, was appended on the said statement and the same was sent to the Police Station, on the basis whereof, the first information report PE/2, was registered. 3. During the course of investigation of a case under the Immoral Traffic Act, Hardevi and Heena, were arrested, on 27.06.94, in the instant case. Sandeep and Dheeraj, accused, surrendered before the Police, on 27.06.94. On 27.06.94, the statement of the prosecutrix, under Section 164 of the Code of Criminal Procedure, was got recorded from the Magistrate. In that statement, the prosecutrix named the remaining four accused instead of six accused. In that statement, she also stated that one boy who was being named as Krishan alias Kaka son of Chaudhary Lal, and another boy, who was being named as Krishan Kumar Malik son of Sain Ditta, committed sexual intercourse with her forcibly. 4. On 28.06.94, one Ramesh Miglani, produced accused Krishan alias Kaka son of Chaudhary Lal, Vijay Dua son of Gurdayal Singh, Krishan Kumar Malik son of Sain Ditta, and Krishan Kumar Takkar son of Inder Dass Khatri. On 28.06.94, the prosecutrix came to the Police Station and made supplementary statement. In that statement, Criminal Appeal No. 324-SB of 1996 7 Criminal Appeal No. 338-SB of 1996 she named all the accused with their parentages etc. The statements of the witnesses were recorded. After the completion of investigation, the accused were challaned. 5. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, charge under Sections 366 and 376 (2) (g) of the Indian Penal Code, was framed against the accused, which was read-over and explained to them, to which they pleaded not guilty, and claimed judicial trial. 6. The prosecution, in support of its case, examined as many as 14 witnesses. Krishan Singh, Head Constable (PW1), tendered his affidavit PA, with regard to the handling of the clothes etc. of the prosecutrix. 7. Ram Kumar, who was the Moharrir Head Constable, in the Police Station, at the relevant time, appeared as (PW2), and tendered his affidavit PB. Constable Ved Parkash (PW3), tendered his affidavit PC. He took the parcels of clothes to the office of the Forensic Science Laboratory. 8. Mukesh Kumar, Draftsman (PW4), prepared the scaled site plan PD of H.No. 196/13, Housing Board, Kurukshetra, belonging to Bimla Devi and her husband Des Raj, on the pointing out of Bimla Devi and Des Raj. Assistant Sub Inspector Jagdish Singh (PW5), recorded the formal first information report exhibit PE/1. 9. Dr. Sushma Saini, Medical Officer (PW6), examined the Criminal Appeal No. 324-SB of 1996 8 Criminal Appeal No. 338-SB of 1996 prosecutrix on 24.06.94, at 3.30 AM, and observed, as under:- (i) She was fully conscious co-operative girl of average built, wearing brown printed salwar kameej. The shirt was torn from front. Salwar and Kameej were removed and sent for chemical examination. There were multiple linear abrasions in front of left fore-arm and palm on lateral and front side. (ii) A round interrupted abrasion on left cheek which was reddish blue in colour. She was complaining pain in head and neck and gave a history of cutting of hair. She was wearing brown under-wear which was also removed and sent for chemical examination. According to the doctor, there was no mark of injury on the breasts. The same were hemispherical and developed. On local examination, white discharge was found in and around vulva. Two swabs were taken and sent for chemical analysis. Labia majora and labia minora were healthy and had no mark of injury on them. There was redness at intoritus. Hymen had old-healed tear at 2O, 5O and 10O clock position. The tears were not red hot or tender and they did not bleed on touching. The vagina admitted two fingers easily. Cervices were backward. Uterus was ante-verted nulliparus size fornices were free. Two slides were prepared from the posterior vaginal secretion and sent for chemical examination. Trouser (salwar), shirt (kameej), and under-wear of the prosecutrix, duly sealed, and a card-board box containing two swabs and two slides, duly sealed, as well as sealed envelope containing an MLR and letter to the Director, Forensic Science Laboratory, Madhuban, alongwith sample of the seal, used were handed over to the Investigating Officer. 10. Brij Mohan, Assistant Sub Inspector (PW7), stated that Krishan alias Kaka, son of Chaudhary Lal, accused, produced one Maruti van No. DL-5C-6467, which was taken into possession by Inspector Sohan Singh, vide memo exhibit PH. 11. Baldev Kumar (PW8), was the registered owner of the van aforesaid. He produced the registration certificate PJ, before the Police. 12. The prosecutrix appeared as (PW9), and broadly supported Criminal Appeal No. 324-SB of 1996 9 Criminal Appeal No. 338-SB of 1996 the case of the prosecution. Her statement in detail shall be discussed in the subsequent paragraphs. 13. Dr. M.P. Singh (PW10), examined the accused namely Krishan Kumar Malik son of Sain Ditta Mal, Krishan Kumar Takkar son of Inder Dass Khatri, Krishan alias Kaka son of Chaudhary Lal Khatri, and Vijay Kumar son of Gurdayal Singh. He did not find any injury on the person of these accused. He, however, opined that there was nothing suggestive of the fact that any of them was not fit to commit sexual intercourse. 14. Sohan Singh, Inspector/Station House Officer (PW11), investigated the case on 25.06.94. He verified the facts when Ramji Lal, Sub Inspector, was conducting the investigation of the case. Thereafter, he took over the investigation himself. 15. Sh. Jagdeep Jain, Judicial Magistrate 1st Class, Kurukshetra, (PW12), recorded the statement exhibit PR of the prosecutrix, under Section 164 of the Code of Criminal Procedure. 16. Ramji Lal, Sub Inspector (PW13), initially recorded the statement of the prosecutrix, forming the basis of the first information report and, thus, partly investigated the case. 17. Constable Amar Nath (PW14), took the special report to the Illaqa Magistrate. 18. Des Raj and Bimla Devi, prosecution witnesses, were given up, as won-over by the accused. Raj Pal, Clerk of the Municipal Committee, Pehowa, Constable Jagdish Chand, Dr. Sudha Parihar, Criminal Appeal No. 324-SB of 1996 10 Criminal Appeal No. 338-SB of 1996 Subhash Chand, Naraini Devi, Assistant Sub Inspector Raj Kumar, and Kasturi Lal, prosecution witnesses, were given up as unnecessary. Thereafter, the Public Prosecutor, for the State, closed the prosecution evidence. 19. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Accused Sandeep, in his statement, under Section 313 of the Code of Criminal Procedure, stated that he was innocent. It was further stated by him, that, as a matter of fact, after the death of her father, the prosecutrix joined musical group of Heena on salary basis. It was further stated by him, that during her tenure of service with them, she developed relations with his brother- in-law namely Dheeraj and once she enticed him away without their knowledge and consent and then his mother-in-law Hardevi moved an application to the Police of Delhi. It was further stated by him that the prosecutrix also started playing mischief, in their business. As a result of these circumstances, they had to remove her, from the musical group and thereafter she had been nursing grievance and grudge, against him and his family. It was further stated by him that on 23.06.94, they had come to attend Satsang at the house of sister of his mother-in-law at Pehowa, where the prosecutrix also came and demanded Rs. 20,000/-, from them, as arrears of her wages, upon which, he retorted that she had already bungled a huge amount, from their business, and then there Criminal Appeal No. 324-SB of 1996 11 Criminal Appeal No. 338-SB of 1996 ensued exchange of hot words. On the morning of 24.06.94, they left for Haridawar, and as soon as, they reached at the reception of hotel at Haridawar, the prosecutrix accompanied by Police party arrived there and, in that position, he, his mother-in-law, wife Heena, and brother-in- law Dheeraj, were forcibly brought to Kurukshetra. It was further stated by him that thereafter he was falsely implicated, in the instant case, at the instance of the prosecutrix, who was thick with the Police of Kurukshetra. 20. Accused Heena, Dheeraj, and Hardevi, also took up the same plea, as was taken up by Sandeep, accused, in his statement, under Section 313 of the Code of Criminal Procedure. 21. Accused Krishan alias Kaka son of Chaudhary Lal, Krishan Kumar Malik son of Sai Ditta, Krishan Kumar Takkar son of Inder Dass, and Vijay Kumar son of Gurdial Singh, denied the allegations, in their statements, under Section 313 of the Code of Criminal Procedure. They further stated that they never came to Kurukshetra, on that day. Vijay Kumar, accused, further stated that he was in service, and was present, in his office, on that day. It was further stated by him, that he never came to Kurukshetra, on that day, and was falsely involved. 22. In their defence, the accused examined Bimla Devi wife of Des Raj (DW1), from whose house, the prosecutrix was allegedly abducted, Ujjagar Singh, Duty Inspector, Haryana Roadways, Kurukshetra (DW2), Nasib Singh, Senior Assistant, United India Insurance Corporation, Kaithal (DW3), Jit Ram, Deputy Criminal Appeal No. 324-SB of 1996 12 Criminal Appeal No. 338-SB of 1996 Superintendent, Civil Surgeon Office, Kurukshetra (DW4), and Dev Raj, Chief Inspector, working as Duty Inspector, Haryana Roadways, Kurukshetra (DW5). Hardevi, accused, also tendered birth certificate of the prosecutrix as DB. As per the said certificate, she was born on 23.04.76 and, as such, was more than 18 years of age, at the time of commission of the alleged offences. Thereafter, the accused closed the defence evidence. 23. After hearing Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above. 24. Feeling aggrieved, the aforesaid appeals, were filed by the appellants. 25. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 26. 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 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 Criminal Appeal No. 324-SB of 1996 13 Criminal Appeal No. 338-SB of 1996 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 the Judge has to perform. 27. 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 offence. 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 Criminal Appeal No. 324-SB of 1996 14 Criminal Appeal No. 338-SB of 1996 matters of fact, under inquiry. Under 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. Thus, under Section 133, which lays down a rule of law, 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). 27-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:- Criminal Appeal No. 324-SB of 1996 15 Criminal Appeal No. 338-SB of 1996 “A prosecutrix of a sex-offence cannot be treated at 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 competent witness under Section 118 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 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 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, 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 Criminal Appeal No. 324-SB of 1996 16 Criminal Appeal No. 338-SB of 1996 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 the 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. We think it proper, having regard to the increase in the number of sex-violation cases in the