Criminal Appeal No.710-SB of 1986 1 Criminal Appeal No. 824-SB of 1986 Criminal Appeal No. 825-SB of 1986 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.710-SB of 1986 Date of Decision : September 30, 2008 Sushil Kumar, s/o Pat Ram, r/o Jhupa Kalan. ...Appellant Versus State of Haryana. ....Respondent Criminal Appeal No. 824-SB of 1986 1. Sukhdev, s/o Ram Parshad, r/o Village Jhupa Kalan. 2. Balbir, s/o Chandgi, r/o Village Jhupa Kalan. ... Appellants State of Haryana. ...Respondent Criminal Appeal No. 825-SB of 1986 Tara Chand, s/o Pirdha Ram, r/o Jhupa Kalan. ... Appellant State of Haryana. ...Respondent Criminal Appeal No.710-SB of 1986 2 Criminal Appeal No. 824-SB of 1986 Criminal Appeal No. 825-SB of 1986 CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Bipan Ghai, Senior Advocate, with Mr. Deepak Garg, Advocate, for the appellant, in Criminal Appeal No. 710-SB of 1986. Mr. H.S. Gill, Senior Advocate, with Mr. Vivek Goyal, Advocate, for the appellants, in Criminal Appeal No. 824-SB of 1986. Mr. Vivek Goyal, Advocate, Amicus Curiae, for the appellant, in Criminal Appeal No. 825-SB of 1986. Mr. A.K. Jindal, AAG Haryana, for the respondent-State, in all the appeals. * * * * SHAM SUNDER, J. This judgment shall dispose of Criminal Appeal No. 710-SB of 1986, filed by Sushil Kumar s/o Pat Ram, Criminal Appeal No. 824-SB of 1986, filed by Sukhdev s/o Ram Parshad & Balbir s/o Chandgi and Criminal Appeal No. 825-SB of 1986, filed by Tara Chand s/o Pirdha Ram, accused (now appellants) against the judgement of conviction and the order of sentence, dated 30.10.1986, rendered by the Court of Additional Sessions Judge, Bhiwani, vide which, they were sentenced to undergo rigorous imprisonment for a period of ten years each, and to pay a fine of Rs. 200/- each, in default, to undergo rigorous imprisonment for a period of two months each, for the offence punishable under Sections 376(2)(g) of Indian Penal Code; further sentenced them to undergo rigorous imprisonment for a period of 84 days each, for the offence, punishable under Section 323 read with Section 34 of Indian Penal Code; further sentenced them to undergo Criminal Appeal No.710-SB of 1986 3 Criminal Appeal No. 824-SB of 1986 Criminal Appeal No. 825-SB of 1986 rigorous imprisonment for a period of 84 days each, for the offence punishable under Section 357 read with Section 34 of Indian Penal Code and further sentenced them to undergo rigorous imprisonment for a period of 84 days each, for the offence punishable under Section 342 read with Section 34 of Indian Penal Code. The substantive sentences were, however, ordered to run concurrently. Asha Ram and Hari Singh, accused, were convicted and sentenced to undergo rigorous imprisonment for a period of 84 days on each count, for the offences punishable under Section 357 read with Section 34 of Indian Penal Code, 342 read with Section 34 of Indian Penal Code and 323 read with Section 34 of Indian Penal Code, but, they were acquitted for the offence punishable under Section 376(2)(g) of Indian Penal Code. The seventh accused, namely, Madan Lal, being Juvenile, his case was separated, and sent to the Juvenile Justice Board for enquiry. 2. The facts, in brief, are that the prosecutrix (name not being mentioned, in view of the pronouncement of the Apex Court) and Mr. Axel, citizens of West Germany, came to India, as tourists. On 06.08.1986, they were coming from Jaipur, on a motorcycle, for going to Chandigarh, but on their way, they stopped for a while, near truck stand Jhupa, for taking snacks and fruits at about 7.30 P.M. Thereafter, they proceeded ahead and when had covered a distance of about 3 kms, they stayed for a while, by the side of the road for taking fruits etc. Since they were feeling tired and the sun had already set, they thought that it would be proper to pass the night, at that very place, situated at a distance of about 100 meters, from the main road. They were taking rest, on a blanket, which had been spread by them, on the ground. After a short-while, they heard voices of certain persons. Criminal Appeal No.710-SB of 1986 4 Criminal Appeal No. 824-SB of 1986 Criminal Appeal No. 825-SB of 1986 Two persons, in the first instance, and four-five more persons, thereafter, came there. When Mr. Axel went towards them, he was having a pocket knife and a torch with him. Mr. Axel enquired of them, what for they had come, and what they wanted. They started beating him with sticks, due to which the torch and the pocket knife, being carried by him, fell on the ground. Those persons then encircled Mr. Axel and gave him beatings. Mr. Axel then fell down on the ground. He asked those persons to remain calm, by using the word 'Shanti'. The prosecutrix also requested those persons, not to beat Mr. Axel, and on her request, the two old men calmed down. They tried to persuade the other persons, to remain calm. Mr. Axel and the prosecutrix came to the place, where the blanket had been spread, on the ground. Those persons also sat on the blanket. They started smoking cigarettes. All the persons started touching the parts of the body of the prosecutrix. Out of them, one old man went to bring milk and he came back. In his absence, the other old man, persuaded the prosecutrix to accompany them. The prosecutrix and Mr. Axel convinced both the old men, who asked the other persons, to go away. Thereafter, the old men left the place. When both the old men were out of sight, the remaining persons, came there, and dragged the prosecutrix to a distance of about 10 feet. When Mr. Axel tried to intervene, he was given beatings. The prosecutrix was forced to lie, on the ground, and the little boy was holding her head and kissing her in a childish manner. Out of the remaining four persons, two guarded Mr. Axel, and the other persons committed rape with the prosecutrix one by one. It was further stated that thereafter two persons, who had committed rape with the prosecutrix, started guarding Mr. Axel. Thereafter, the other two Criminal Appeal No.710-SB of 1986 5 Criminal Appeal No. 824-SB of 1986 Criminal Appeal No. 825-SB of 1986 persons, committed rape with the prosecutrix one by one. One person again committed rape with the prosecutrix. Thereafter, the prosecutrix and Mr. Axel picked up their belongings and left the place. They reached Police Station, Siwani, at about, 11.30/12.00 night. A written complaint was made by them, to the Police, on the morning of 07.08.1986, on the basis whereof, the FIR was registered. 3. The prosecutrix was got medically examined. The accused were arrested. Identification parade, during the course of investigation, was held. The prosecutrix was successful, in identifying the accused, as the perpetrators of crime. After the completion of investigation, the accused were challaned. 4. 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, in the Court of Sessions, charge under Sections 323 read with Section 34, 342 read with Section 34, 357 read with Section 34 and 376(2)(g) of the Indian Penal Code was framed against the accused, to which they pleaded not guilty and claimed judicial trial. 5. The prosecution, in support of its case, examined the prosecutrix (PW-1), who made a consistent statement with regard to the date, time and place of occurrence and identification of the perpetrators of crime, Mr. Axel Bernd Achalz (PW-2), who was given beatings, during the course of occurrence, and who witnessed the rape, having been committed by the accused, with the prosecutrix, corroborated the statement of the prosecutrix, in all the material particulars, Dr. Shyama Arora (PW-3), who Criminal Appeal No.710-SB of 1986 6 Criminal Appeal No. 824-SB of 1986 Criminal Appeal No. 825-SB of 1986 medically examined the prosecutrix, and, opined that the possibility of sexual intercourse having been committed with her, could not ruled out, Dr. Vinod Arora, Medical Officer, General Hospital, Narnaul (PW-4), who medically examined Mr. Axel Bernd Achalz and found as many as four injuries, on his person, and he also examined Tara Chand, Sushil Kumar, Sukhdev and Balbir and opined that they were fit to perform sexual intercourse, Dharam Chand Patwari, Halqa Jhupa Kalan (PW-5), who prepared PM site plan of the place of occurrence, Shish Pal (PW-6), in whose presence, Tara Chand, accused, got recovered a necklace of a lady, which was identified by the prosecutrix, belonging to her, Dalip Kumar, photographer (PW-7), who took the photographs P4 to P19, at the instance of the Police, of the place of occurrence, the negatives, whereof are P-20 to P-25, which were handed over by him, to the Police, and taken into possession, Raj Roop Fulia, Additional Deputy Commissioner, Faridabad (PW-8), who at the relevant time as Sub Divisional Magistrate, Siwani, recorded the statements under Section 164 of Cr.P.C., DA and DB of Mr. Axel and the prosecutrix, respectively, and also conducted the identification parade, whereon the accused, as the perpetrators of crime, were identified by the prosecutrix, ASI Ram Singh Yadav (PW-9), who recorded the FIR, PA/1, on the basis of complainant PA, made by the prosecutrix and Mr. Axel and partly investigated the case, and Som Nath, SI (PW-10), who also partly investigated the case. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 6. The statements of the accused under Sections 313 Cr. P.C., were recorded, and they were put all the incriminating circumstances, Criminal Appeal No.710-SB of 1986 7 Criminal Appeal No. 824-SB of 1986 Criminal Appeal No. 825-SB of 1986 appearing against them, in the prosecution evidence. They pleaded false implication. 7. Tara Chand, accused, in his statement, under Section 313 Cr.P.C., stated that the case was based on suspicion and he was falsely implicated, at the instance, of the inimical persons like Mohinder and Gopal, gang-men, having strained relations with him, being in the same department. It was further stated by him, that he was shown to the witnesses before the identification parade. He further stated that the Police illegally detained him and showed his arrest on 08.08.1986. He further stated that the identification parade was a farce. 8. Sukhdev, accused, also took up the same plea, as was taken up by Tara Chand, in his statement under Section 313 Cr.P.C. 9. Asha Ram, accused, in his statement under Section 313 Cr.P.C. stated that it was a false case based on suspicion. It was further stated by him that he was falsely implicated by the inimical persons. It was further stated by him that the boy (Mr. Axel) misbehaved and was given beating by unidentified assailants. It was further stated by him, that he exaggerated the version and lodged a false report. It was further stated by him, that he did so believing the Police and had wrongly identified him, as he had been shown to the prosecution witnesses, before the identification parade. He further stated that the identification parade was a farce. He further stated that he did not make any disclosure statement, nor anything was got recovered by him. 10. Hari Singh, Sushil Kumar and Balbir, accused, also took up the same pleas, as were taken up by accused namely Tara Chand, Sukhdev and Asha Ram. Criminal Appeal No.710-SB of 1986 8 Criminal Appeal No. 824-SB of 1986 Criminal Appeal No. 825-SB of 1986 11. The accused, in their defence, examined Chander Parkash (DW-1) and Krishan Kumar (DW-2). Thereafter, the accused, closed their defence evidence. 12. 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. 13. Feeling aggrieved, Sushil Kumar, Sukhdev, Balbir and Tara Chand, accused, filed the instant appeals. 14. I have heard the Counsel for the parties, and have gone through the evidence and record of the case carefully. 15. 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, Criminal Appeal No.710-SB of 1986 9 Criminal Appeal No. 824-SB of 1986 Criminal Appeal No. 825-SB of 1986 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. 16. 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 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, Criminal Appeal No.710-SB of 1986 10 Criminal Appeal No. 824-SB of 1986 Criminal Appeal No. 825-SB of 1986 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 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). 16-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 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 Criminal Appeal No.710-SB of 1986 11 Criminal Appeal No. 824-SB of 1986 Criminal Appeal No. 825-SB of 1986 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 Criminal Appeal No.710-SB of 1986 12 Criminal Appeal No. 824-SB of 1986 Criminal Appeal No. 825-SB of 1986 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 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 Criminal Appeal No.710-SB of 1986 13 Criminal Appeal No. 824-SB of 1986 Criminal Appeal No. 825-SB of 1986 equate a woman who is a victim of the lust of another with an accomplice to crime and thereby insult womanhood. It would be 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 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 realise that ordinarily woman, more so a young girl, will not stake her reputation by levelling a false charge concerning Criminal Appeal No.710-SB of 1986 14 Criminal Appeal No. 824-SB of 1986 Criminal Appeal No. 825-SB of 1986 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 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 to relentless 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 swept off the Criminal Appeal No.710-SB of 1986 15 Criminal Appeal No. 824-SB of 1986 Criminal Appeal No. 825-SB of 1986 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 problems therefore, cannot be identical. Further this Court said; Without the fear of making too wide a statement or of over-stating the case it can be said that rarely will a girl or a woman in India make 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 the urban elites. Because (1). A girl or a woman in the tradition bound non-permissive society of India would be Criminal Appeal No.710-SB of 1986 16 Criminal Appeal No. 824-SB of 1986 Criminal Appeal No. 825-SB of 1986 extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious