Criminal Appeal No. 701-SB of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 701-SB of 1995 Date of Decision: 12.05.2009 Balwan son of Raghbir, Caste Saini, aged 31 years, agriculturist, resident of Dhani Peerawali (Hisar). ... Appellant Versus State of Haryana ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Surinder Singh, Advocate, (Amicus-Curiae), for the appellant, with Jitender Sharma, Advocate. Mr. P.S. Sullar, Deputy Advocate General, Haryana, for the respondent – State. SHAM SUNDER, J. This appeal is directed against the judgement of conviction, and the order of sentence dated 09.11.95, rendered by the Court of Additional Sessions Judge, Hisar, vide which, it convicted the accused, for the offence, punishable under Section 376 of the Indian Penal Code, and sentenced him, to undergo rigorous imprisonment, for a period of five years, and to pay a fine of Rs. 1000/-, and in default thereof, to further undergo imprisonment, for a period of six months. 2. The case of the prosecution was that, the prosecutrix (name not being mentioned, in view of the pronouncement of the Apex Criminal Appeal No. 701-SB of 1995 2 Court), was married to Prem Singh of village Dhani Peerawali, about 21/2 years before the occurrence. Out of that wedlock, a daughter was born to her, who was about one month old, at the relevant time. Since there was no hand pump, in the house of the prosecutrix, she used to go to the nearby house of Ram Chander for fetching water, from the hand- pump. On 06.11.1993 when the sun was about to set, she went to the house of Ram Chander to fetch water, from the hand-pump. No family member of Ram Chander was present, in the house, and the residential rooms thereof, were locked. When the prosecutrix went there, in the second round, for bringing water, she found that Balwan, accused was already present in the house of Ram Chander. When she entered the house of Ram Chander, Balwan, accused bolted the door of the house from inside. He gagged her mouth, with his right hand, and took her to the bath-room by lifting her forcibly. The prosecutrix raised alarm 'save save'. Balwan, accused, made the prosecutrix lie, on the floor of the bath- room, opened the string of her trouser (Salwar) and committed sexual intercourse with her against her will and without her consent. The prosecutrix went on crying and weeping, but the accused did not stop. On hearing the cries of the prosecutrix, Jai Singh son of Surja Ram and Mahabir son of Moman, knocked at the door of the house. Balwan, accused, opened the door, and ran away therefrom. The prosecutrix continued weeping. She was taken, from the spot, to her house, by her mother-in-law Parti. The prosecutrix accompanied by her husband Prem Singh and Mahabir, went to the Police Station and lodged the report of the occurrence exhibit P4. Criminal Appeal No. 701-SB of 1995 3 3. The investigation commenced. The prosecutrix was got medically examined. Her salwar and under-wear were converted into a parcel and handed over by the doctor, to the Police. The same were sent to the Forensic Science Laboratory. As per the report of the Forensic Science Laboratory, exhibit PC, human semen was detected on the salwar and under-wear of the prosecutrix. The accused was arrested on 09.11.1993. He was also got medically examined. The scaled plan of the place of occurrence, was got prepared from Shamsher Singh, Draftsman. After the completion of investigation, the accused was challaned. 4. On his appearance, in the Court of the Committing Magistrate, the accused was supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Section 376 of the Indian Penal Code, was framed against the accused, to which he pleaded not guilty and claimed judicial trial. 5. The prosecution, in support of its case, examined Dr. Mrs. Urmila Dhattarwal (PW1), who medico-legally examined the prosecutrix. She deposed that, on the basis of the report of the Forensic Science Laboratory exhibit PC, the prosecutrix was subjected to sexual intercourse. 6. Dr. Surender Singh (PW2), medico-legally examined Balwan Singh, accused, and found him fit to perform sexual intercourse. 7. Shamsher Singh, draftsman (PW3), prepared the scaled site Criminal Appeal No. 701-SB of 1995 4 plan PF. 8. Constable Dharambir (PW4), tendered into evidence his affidavit PG. 9. The prosecutrix while appearing as (PW5), gave a vivid detail, with regard to the mode and manner, in which, the occurrence took place. 10. Mahabir (PW6), also supported the case of the prosecution. 11. Sub Inspector Dharampal (PW7), the Investigating Officer, investigated the case. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 12. The statement of the accused under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He stated that there was rivalry, in the village, between Kumhars and Sainis, and, on account of that reason, he was implicated, in the instant case. He examined Sadhu Ram, Naib Tehsildar (DW1), tendered into evidence D2, certified copy of order, and photocopy of the order mark A. Thereafter, he closed the defence evidence. 13. After hearing the Counsel for the parties, and, on going through evidence, on record, the trial Court convicted and sentenced the accused, as stated above. 14. Feeling aggrieved, the instant appeal, was filed by the appellant. 15. I have heard the Counsel for the parties, and have gone Criminal Appeal No. 701-SB of 1995 5 through the evidence and record of the case carefully. 16. 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 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. 17. 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 Criminal Appeal No. 701-SB of 1995 6 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 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 Criminal Appeal No. 701-SB of 1995 7 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). 18. The Counsel for the appellant, submitted that the prosecution failed to produce credible evidence, to prove that the accused committed rape with the prosecutrix. He further submitted that the sole statement of the prosecutrix, was not sufficient to prove the case of the prosecution. He further submitted that there were no injuries on the person of the prosecutrix. He further submitted that had the rape been committed with the prosecutrix, she would have certainly sustained a number of injuries. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. As stated above, there is no rule of law, that the statement of the prosecutrix, could not be believed without corroboration. In the instant case, the prosecutrix while appearing as, PW5, in clear-cut terms, stated that when she went in the second round, for taking water, from the hand pump, installed in the house of Ram Chander Saini, the accused was already present there. The accused closed the door of the house from inside. Her mouth was pressed by the accused with his hands. He over-powered her, and took her to the bath room, where she was made to lie, on the ground. Thereafter, she was subjected to sexual intercourse, by the accused against her will and without her consent. She also deposed that she could not hit the accused with brick or any other article or made an Criminal Appeal No. 701-SB of 1995 8 attempt to bite his hand because he was physically much stronger than her. During the course of her cross-examination, she stated that she could not push the accused with her legs, because he had pressed her legs and the remaining part of her body stoutly. During the course of her cross-examination, she stood the test of touchstone of all probabilities. Nothing of consequence, could be got elicited, from her mouth, which may go to discredit her evidence. There was absolutely no reason, on the part of the prosecutrix, to depose falsely, against the accused. No doubt, she was a married lady of 23 years. She knew that in case, allegations of rape were proved to be false, then she will be looked down upon, in the society, in the eyes of her friends and relations. She also knew that if the allegations of rape were found to be false, then her reputation and the reputation of her family shall be harmed to a great extent. She could not put up the stiffest resistance, as the accused, was a person of well built body, and physically much stronger than her. He over-powered her like a vulture, and indulged into beastly act of committing rape with her. The statement of the prosecutrix, was duly corroborated by Mahabir, PW6, to the extent that he knocked at the door, on hearing her cries. At that time, the accused opened the door and came out of the house of Ram Chander. The evidence of Mahabir, PW6, therefore, clearly proved the presence of the accused, in the bath room of the house of Ram Chander. In that very bath room, the prosecutrix was found present immediately after the accused ran away therefrom. Further corroboration to the evidence of the prosecutrix was provided through the medical evidence of Dr. Criminal Appeal No. 701-SB of 1995 9 Mrs. Urmila Dhattarwal, PW1. She found the following injuries on the person of the prosecutrix:- (i) There was superficial abrasion red coloured on the right elbow joint .5 x 1 cm in diameter. (ii) There were multiple red abrasions on the left leg on the lower one third on front and lateral aspect of varying sizes from .5 x 1 cm and .2 x 8 cm. She further stated that injury No. 2 on the person of the prosecutrix could be possible by a fall from the higher surface, during the course of resistance while being subjected to sexual assault. She also stated that the prosecutrix was subjected to sexual intercourse. Still further corroboration to the ocular version, was provided through exhibit PC, report of the Forensic Science Laboratory, which found human semen on the salwar and underwear of the prosecutrix, which were sent to the said Laboratory for examination. It was, thus, proved from the cogent, convincing, reliable and trustworthy evidence of the prosecutrix, duly corroborated through the evidence of Mahabir, PW6, medical evidence, and the report of the Forensic Science Laboratory, that she was subjected to sexual intercourse, without her consent, and against her will, by the accused. The submission of the Counsel for the appellant, that no credible evidence was produced to prove the case, being without merit, must fail and is rejected. 19. It was next submitted by the Counsel for the appellant, that the accused was falsely implicated, in the instant case, due to enmity between two communities i.e. Kumhars and Sainis in the village. It was further submitted by him that the accused belongs to Saini caste, Criminal Appeal No. 701-SB of 1995 10 whereas the prosecutrix belongs to Kumhar caste. It was merely a plea, which was taken up by the accused, in his statement, under Section 313 of the Code of Criminal Procedure. No evidence was produced by the accused that there was specific enmity between him and his family on the one side and the prosecutrix and her family on the other side. From exhibit D2, an order passed by the Commissioner, Hisar Division, in Executive Appeal No. 269 of 1993-94, titled as Smt. Mam Kaur Vs. Jai Singh, it was sought to be urged by the defence Counsel, that Jai Singh is actually a respectable member of Kumhar community, and on his persuasion the prosecutrix implicated the accused, for taking revenge from his family. Jai Singh, is not nearly related to the prosecutrix. He is a distant collateral of the prosecutrix. Balwan Singh, accused, is not a very respectable community member of Sainis. Since there was no enmity between the accused and his family, on one side, and the prosecutrix and her family on the other side, it does not appeal to reason, that just to oblige a distant collateral, the prosecutrix could go to the extent of making false allegations of rape, with her, by the accused. The prosecutrix, a married lady having a child, could not be expected to level false allegations, against the accused, by staking her own reputation and honour. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 20. The Counsel for the appellant placed reliance on D1, affidavit of Ram Chander, owner of the house, where the occurrence took place. Ram Chander, stated in the affidavit that occurrence of rape Criminal Appeal No. 701-SB of 1995 11 did not take place in his house, nor he saw such occurrence in his house. This affidavit was attested by Sadhu Ram, Naib Tehsildar, DW1. The affidavit D1 was not duly proved. Sadhu Ram, Naib Tehsildar, DW1, stated that the deponent was not known to him personally. He also stated that he could not identify the signatures of the advocate, who identified the deponent. When the deponent was not known to the Naib Tehsildar, nor could he identify the signatures of the advocate, who identified the deponent, no evidentiary value could be attached to the said affidavit. Ram Chander, deponent of the affidavit was summoned, as a witness, by the accused, but he was given up. This clearly goes to show that Ram Chander, was not ready to support the version, allegedly given by him, in the affidavit D1. No help, therefore, could be drawn, on the basis of the affidavit D1, by the Counsel for the appellant. In the face of the cogent and convincing evidence of the prosecutrix, duly corroborated by Mahabir, PW6, medical evidence of Dr. Mrs. Urmila Dhattarwal, PW1, as also the report of the Forensic Science Laboratory, the evidence of Naib Tehsildar, DW1, pales into insignificance. The affidavit, on account of the aforesaid reasons, became meaningless. This did not advance the case of the appellant. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 21. Last of all, the Counsel for the appellant, submitted that even if, it is assumed, that the accused committed sexual intercourse with the prosecutrix, it was a case of consent. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. Criminal Appeal No. 701-SB of 1995 12 The injuries were found on the person of the prosecutrix, as described above. Since the prosecutrix is a week and meek lady, it was not possible for her to put up the stiffest resistance, to the beastly act of rape committed with her, by the accused. She in clear-cut terms, stated that the accused took her, in such a stout grip, that she was unable to put up the stiffest resistance. When the prosecutrix stated that sexual intercourse was committed with her, without her consent, and against her will, the question of her consent, to such an act, did not at all arise. Even Section 114-A deals with the presumption, as to the absence of consent in prosecution for rape. Section 114-A of the Indian Evidence Act, 1872, reads as under : “114-A Presumption as to absence of consent in certain prosecutions for rape - In a prosecution for rape under Clause (a) or Clause (b) or Clause (c) or Clause (d) or Clause (e) or Clause (g) or sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860) where sexual intercourse by the accused is proved and the question is whether it was found the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.” 21-A A plain reading of the provisions of Section 114-A, leaves no manner of doubt, that where sexual intercourse, by the accused with the prosecutrix is proved, and the question, whether it was without the consent of the woman, alleged to have been raped, and she states, in her evidence, before the Court, that she did not consent, the Court shall presume that she did not consent. No doubt, such a presumption is Criminal Appeal No. 701-SB of 1995 13 rebuttable. In the instant case, it has already been discussed above, that the sexual intercourse with the prosecutrix was committed forcibly. The presumption, arising in favour of the prosecution, under Section 114-A of the Indian Evidence Act, could not be successfully rebutted by the accused. The trial Court, was, thus, right, in coming to the conclusion, that the accused committed sexual intercourse, with the prosecutrix, without her consent, and against her will. The submission of the Counsel for the appellant, to the extent, referred to above, being without merit, is rejected. 22. No other point, was urged, by the Counsel for the parties. 23. In view of the above discussion, it is held that the judgement of conviction and the order of the sentence, rendered by the trial Court, are based on the correct appreciation of evidence and law, on the point. The same do not suffer from any illegality or infirmity and deserve to be upheld. 24. For the reasons recorded above, the appeal, being devoid of merit, is dismissed. The judgment of conviction, and the order of sentence, rendered by the trial Court, are upheld. If the appellant is on bail, his bail bonds, shall stand cancelled. 25. The Chief Judicial Magistrate, shall take necessary steps to comply with the judgment with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and submit compliance report, within 02 months. 26. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the Criminal Appeal No. 701-SB of 1995 14 compliance report is sent within the time frame, to this Court. 27. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not, for further action. 12.05.2009 (SHAM SUNDER) AMODH JUDGE