Crl. Appeal No.46-SB of 1997 Crl. Revision No.270 of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.46-SB of 1997 Date of Decision : March 25, 2008 Rajesh @ Nittu S/o Jagdish Chand, ....Appellant R/o Ambala Cantt. Versus The State of Haryana ....Respondent Crl. Revision No.270 of 1997 Sushma D/o Umed Singh, ...Petitioner R/o House No.59, Anand Nagar, Near baba balak Nath Mandir, Dalipgarh, Near Babyal, Tehsil and Distt. Ambala Versus 1. The State of Haryana. ...Respondents 2. Rajesh @ Nittu, S/o Jagdish Chand. 3. Rakesh Kumar S/o Visheshar Nath. 4. Smt. Saroj Devi W/o Jagdish Chand. 5. Kanwal Kumar @ Dimple S/o Krishan Kumar. 6. Rajesh Kumar @ Billa S/o Gian Chand. CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: None for the appellant. Mr. Raghubir Tejpal, Advocate for the revision-petitioner. Mr. Kartar Singh, AAG, Haryana, for respondent No.1. SHAM SUNDER, J. This judgement shall dispose of Crimnal Appeal No.46-SB of 1997 filed by Rajesh @ Nittu, against the judgment of conviction and the order of sentence dated 25.10.1995, rendered by the Court of Addl. Sessions Judge, Ambala, vide which it convicted him, for the offence, punishable under Section 376 of the IPC, and sentenced him, to undergo R.I. for a period of 7 years, and to pay a fine of Rs.5000/-, and, in default of payment of the same, to undergo rigorous imprisonment for another period of one year, and the Criminal Revision Petition No.270 of 1997, filed by the complainant, against the Crl. Appeal No.46-SB of 1997 Crl. Revision No.270 of 1997 2 aforesaid judgment, vide which Rakesh Kumar, Smt. Saroj Devi, Kanwal Kumar @ Dimple, and Rajesh Kumar @ Billa, accused, were acquitted. 2. The facts, in brief, are that the prosecutrix ( her name was mentioned by the trial Court in its judgment, but is not being recorded in this judgment, in view of the law, laid down by the Apex Court and she is being referred to as prosecutrix ) is the daughter of Umed Singh , and was aged about 20 years, at the time of occurrence. On 20.5.1995, at about 11.00 AM, the prosecutrix started from her house, for meeting her friend Renuka, who was residing in House No.1, Dayal Bagh, Golden Park, Mahesh Nagar, Ambala Cantt, on a rickshaw, and alighted therefrom, near octroi post at Dayal Bagh. She was going, on foot, to the house of her friend, and when she covered a distance of about 30-40 yards, accused Dimple, who was known to her earlier, because he was a near relation of her another friend Payal, met her. Dimple told the prosecutrix that her brother Jitender was lying, in an unconscious state, in the house of Rakesh Kumar, situated near Tangri river. Since Jitender had been operated upon twice, in the past, the prosecutrix believed the representation of Dimple, accused, to be true, and accompanied him. She reached the house of accused Rakesh Kumar, at about 12.00 Noon, where she found Saroj Bala, accused, sitting. Saroj Bala and her family were residing in the neighbourhood of the prosecutrix. However, the relations between the two families, were strained. There were two rooms, and a verandah, in that house. When the prosecutrix enquired of Dimple, about her brother, he told her that he was availble in the other room. When the prosecutrix proceeded towards the second room, she observed a mysterious smile, on the face of Saroj Bala. When the prosecutrix entered the second room, she found Rajesh @ Nittu, accused, sitting in the same room. Since Jitender was not available there, the prosecutrix enquired about him, upon which Dimple told that he had been removed to the hospital. Thereafter, Dimple went out of the room, stating that Crl. Appeal No.46-SB of 1997 Crl. Revision No.270 of 1997 3 he was bringing her brother, as well as cold drinks. While going Dimple bolted the door of the room from outside. When the prosecutrix tried to go out of the room accused Rajesh @ Nittu, held her of her arm, pulled her, and closed the door from inside. When the prosecutrix tried to raise alarm, accused, Rajesh gagged her mouth, placed a knife on her neck and threatened her with death. He also threatened that he was having a pistol, and if, she raised noise, she would be done to death. 3. Thereafter, accused Rajesh, forced the prosecutrix to take four intoxicating pills, due to which she became helpless and could not resist. Accused Rajesh @ Nittu committed rape with her by removing her clothes. The prosecutrix lost her consciousness. When she regained her consciousness, she could not raise alarm, due to the effect of intoxicating pills. When she regained consciousness, accused Rajesh, again committed rape with her. When she was unconscious one more person also committed rape with her. Rajesh @ Nittu, accused, committed rape with her thrice. When accused Rajesh @ Nittu, committed rape with her, accused Dimple and Rajesh @ Raju, took their photographs, with a camera. The prosecutrix was left by accused Rajesh @ Nittu, at about 6.00 PM. In the meanwhile, Rakesh Kumar, owner of the house also came and enquired of Rajesh @ Nittu, while laughing, whether he was happy and whether he was satisfied, upon which, he (accused Rajesh @ Nittu) remarked that he would call her again and again, on the basis of photographs. Accused Rajesh @ Nittu, Dimple, Rajesh @ Raju, and Rakesh Kumar, jointly threatened the prosecutrix, that if she disclosed the incident to anybody, or made a complaint to the police, then they would commit murder of her three brothers, and father. They also told her, that they would defame her by showing her photographs, in whole of the area. The prosecutrix got scared and returned to her house at about 7.00 PM. 4. It was further that the prosecutrix remained lying, on the bed, for Crl. Appeal No.46-SB of 1997 Crl. Revision No.270 of 1997 4 two days, and did not narrate the incident to anybody, due to fear of the accused. On 24.5.1995, when the parents and brothers of the prosecutrix insisted her for telling the reason of change in her behaviour, she narrated the whole occurrence to them. Thereafter, the prosecutrix made a complaint Ex.PD, to the Superintendent of Police, Ambala, which was sent to the SHO Police Station, Mahesh Nagar, for the registration of a case, on the basis whereof, an FIR was registered. The prosecutrix was sent for medicolegal examination at Civil Hospital, Ambala Cantt. The Medical Officer after medical examination, handed over four parcels, to the Police, which were taken into possession. Devi Chand, SI, recorded the statements of the witnesses. The place of occurrence was inspected by him, and he prepared the rough site plan. On 29.5.1995, accused Kanwal @ Dimple, Rajesh @ Nittu and Saroj Bala, were arrested. 5. Accused Rajesh @ Nittu, on interrogation, made a disclosure statement Ex.PM, that he had concealed the underwear worn by him, at the time of rape, near a hand pump, adjoining the eastern wall beneath the bricks, which he could get recovered. Thereafter, he got recovered the underwear, which was converted into a parcel, and taken into possession. Rough site plan of the place of recovery, was prepared. On 30.5.1995, accused Rajesh @ Nittu, was got medicolegally examined, from Civil Hospital, Ambala Cantt. Accused Rajesh @ Billa, surrendered in the Court on 30.5.1995, and he was arrested in this case, with the permission of the Court. 6. On 1.6.1995, accused Rajesh @ Billa was interrogated, and he made a disclosure statement Ex.PB, that he had concealed a camera and the photographs, in a rack of his shop, which he could get recovered. Thereafter, he got recovered one camera and an exposed reel, in which nothing was visible. The same were taken into possession. Rough site plan of the place of recovery was prepared. The statements of the witnesses were recorded. On 28.6.1995, Crl. Appeal No.46-SB of 1997 Crl. Revision No.270 of 1997 5 accused Rakesh Kumar was arrested. After the completion of investigation, the accused were challaned. 7. On their appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to the accused. Charge under Sections 120-B, 376 (G) and 506 of the IPC, was framed against them, to which they pleaded not guilty and claimed trial. 8. The prosecution, in support of its case, examined Ram Chander, SI, (PW-1), who submitted the final report under Section 173 Cr.P.C., Manohar Lal, Constable (PW-2), who prepared the scaled site plan, Raghubir Singh, SI (PW-3), who recorded the statement under Section 161 Cr.P.C. of Manohar Lal, draftsman, Amar Singh (PW-4), the prosecutrix (PW-5), whose statement shall be discussed, in the subsequent paragraphs, Nand Lal, HC (PW-6), Raghubir Singh, Constable (PW-7), Surjit Singh, Constable (PW-8), Mahender Singh, Constable (PW-9), Umed Singh, father of the prosecutrix, (PW-10), Dr. Shashi Tripathi, (PW-11), who medicolegally examined the prosecutrix on 24.5.1995, and opined that she (prosecutrix) was subjected to sexual intercourse, as also handed over four parcels to the police, containing the clothes of the prosecutrix, sample seals, forwarding letter, and vaginal swabs, Hukam Singh, Constable (PW-12), a witness to the disclosure statement, Ex.PN, vide which accused Rajesh @ Nittu made a disclosure statement, in regard to the concealment of underwear, and Ex.PO, vide which the underwear, was taken into possession, Dr.Rajesh Raju (PW-13), who medicolegally examined Rajesh @ Nittu, and opined that there was nothing to suggest that he was incapable of performing sexual intercourse, Devi Chand (PW-14), the Investigating Officer of the case, who conducted the investigation. Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 9. The statements of the accused under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing Crl. Appeal No.46-SB of 1997 Crl. Revision No.270 of 1997 6 against them, in the prosecution evidence. They pleaded false implication. It was stated by accused Rajesh @ Nittu, that he was having an affair with the prosecutrix for the last 3-4 years, was turned out of his house, in the second week of May 1995, because of that affair. He further stated that he started residing at the house of Rakesh Kumar, as a tenant, and the prosecutrix had been visiting that house even after that. He further stated that, on 22.5.1995, when his mother came to know, that the prosecutrix was still visiting him, she got agitated and visited the house of her parents, and made a complaint to them. He also stated that the relations between the two families were strained because of the affair, but nothing had happened on 20.5.1995, as narrated by the prosecutrix. 9-A. Kanwal Kumar @ Dimple, accused, in his statement stated that his mother was murdered and Umed Singh, father of the prosecutrix was interrogated by the police, and the army authorities, due to which he was inimical towards him. He also stated that he was falsely implicated by the prosecutrix, at the instance of her father. He denied that he took any snap of the prosecutrix or visited the house of accused Rakesh Kumar. 9-B. Rajesh @ Billa, accused, also pleaded that accused Rajesh @ Nittu had an affair with the prosecutrix and once the prosecutrix had asked him to arrange a meeting with Rajesh @ Nittu. He also stated that once on the asking of Rajesh and the prosecutrix, he had taken their two photographs. 9-C. Accused Rakesh Kumar, stated that he was the owner of the house, which was rented out to Rajesh @ Nittu, but he was falsely involved. 9-D. Accused Saroj Devi, took up the same plea, as was taken up by her son Rajesh @ Nittu. In her statement, she also stated that, when she came to know that the prosecutrix was still visiting her son, she visited the house of the prosecutrix on 22.5.1995, and made a complaint to her parents. 9-E. The accused, in their defence, also examined Hem Raj Sharma Crl. Appeal No.46-SB of 1997 Crl. Revision No.270 of 1997 7 (DW-1), and, thereafter, closed their defence evidence. 10. 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 accused Rajesh @ Nittu, whereas, acquitted Rakesh Kumar, Smt. Saroj Devi, Kanwal Kumar @ Dimple, and Rajesh Kumar @ Billa. 11. Feeling aggrieved, against the aforesaid judgment of conviction, and the order of sentence, rendered by the trial Court, the aforesaid appeal, was filed by accused/appellant Rajesh @ Nittu, whereas the aforesaid Revision Petition was filed by the complainant, against the judgment of acquittal of four accused. 12. It may be stated here that the appeal was filed by Mr. Kanwaljit Singh, Sr. Advocate. He had a due notice, that the appeal was fixed for regular hearing. He, however, did not appear, and was sent a message to appear, in this appeal. He came and made a statement, at bar, that later on the appellant engaged Mr. S.S.Bahl, Advocate, in his place. The presence of Mr. S.S.Bahl, Advocate, had also been marked, on behalf of the appellant, in the order dated 24.1.2001. He had also filed his vakalatnama, on behalf of the appellant. On 10.3.2008, when the appeal was fixed for regular hearing, Mr. S.S.Bahl, Advocate, came present, and stated that he only appeared on behalf of the appellant, for addressing arguments, in the bail application, which was filed by him. He, therefore, expressed his inability to address arguments, in this appeal, on account of the aforesaid reason. In these circumstances, it is to be determined, as to whether, the Court can decide the appeal, in the absence of the appellant or his Counsel, who had due notice that the same was fixed for regular hearing. In Dharmpal Vs. State of U.P. 2008 (1) Law Herald (SC) 225, in similar circumstances, when the appeal against the judgment of conviction and the order of sentence, for the offence punishable under Section Crl. Appeal No.46-SB of 1997 Crl. Revision No.270 of 1997 8 302 IPC, was fixed for regular hearing, before the Allahabad High Court, neither the appellant, nor his Counsel put in appearance. In these circumstances, the appeal was decided by the High Court, after perusing the records, on merits. It was held by the Apex Court, that the High Court, in such an event, could look into the records, and the other material placed thereon, including the judgment of the trial Court, and thereafter decide the appeal on merits, which would be due compliance of the provisions of Sections 385 and 386 of the Code of Criminal Procedure, in disposing of criminal appeals. However, it was further held, in the said authority, that the Appellate Court, cannot dismiss the appeal, in default. Similar, principle of law was laid down, in Bani Singh Vs. State of U.P. 1996 (4) SCC 720. Relying upon the principle of law, laid down, in these authorities, this appeal is being decided on merits. 13. I have heard the learned Counsel for the respondent, in the appeal, learned Counsel for the revision-petitioner, in the revision petition and, have carefully perused the records, evidence, and the impugned judgment. 14. 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, Crl. Appeal No.46-SB of 1997 Crl. Revision No.270 of 1997 9 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. 15. 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, against an accused person, and the conviction is not illegal, merely because it proceeds upon the uncorroborated testimony of an accomplice. Crl. Appeal No.46-SB of 1997 Crl. Revision No.270 of 1997 10 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). 15-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 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 Crl. Appeal No.46-SB of 1997 Crl. Revision No.270 of 1997 11 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 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 Crl. Appeal No.46-SB of 1997 Crl. Revision No.270 of 1997 12 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 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 Crl. Appeal No.46-SB of 1997 Crl. Revision No.270 of 1997 13 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