Criminal Appeal No. 380-SB of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 380-SB of 1997 Date of Decision : 02.02.2010 1. Balak Ram son of Phool Chand, aged 20 years, Labourer, r/o village Binjalpur, Distt. Ambala (Died). 2. Amarjit Singh @ Suresh @ Kukku s/o Sh. Bhagat Ram, aged 26 years, Labourer, r/o village Binjalpur, Distt. Ambala. …Appellants Versus The State of Haryana. …Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Balak Ram, appellant No. 1, has since demised. Mr. Mahavir Sandhu, Advocate, for appellant No. 2. Mr. Sandeep Mann, Senior Deputy Advocate General, Haryana, for the respondent – State. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, dated 10.03.97, and the order of sentence, dated 11.03.97, rendered by the Court of Additional Sessions Judge, Ambala, vide which, it convicted the accused (now appellants), and sentenced them, as under:- Criminal Appeal No. 380-SB of 1997 2 Name of the accused (now appellants) Offence for which convicted Sentence awarded 1 2 3 (i) (ii) Balak Ram Amarjit Singh @ Suresh @ Kukku (a) 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. 5,000/- each, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of one year each. (i) (ii) Balak Ram Amarjit Singh @ Suresh @ Kukku (b) Under Section 366 of the Indian Penal Code. To undergo rigorous imprisonment, for a period of four years each, and to pay a fine of Rs. 2,000/- each, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of nine months each. Criminal Appeal No. 380-SB of 1997 3 (i) (ii) Balak Ram Amarjit Singh @ Suresh @ Kukku (c) Under Section 363 of the Indian Penal Code. To undergo rigorous imprisonment, for a period of three years each, and to pay a fine of Rs. 1,000/- each, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of six months each. The substantive sentences, were, however, ordered to run concurrently. 2. On 30.03.94, the wife of Raj Kumar, complainant, left for her parental home. On 31.03.94, Raj Kumar, left the prosecutrix (name not being disclosed, in view of the judgement of the Apex Court, in case titled as, 'State of Punjab Vs. Gurmeet Singh and others, AIR 1996 (SC), 1393), aged about 13 years, and his younger sons, at his residence, and went for doing the labour job. In the afternoon, when he came back, to his house, to take lunch, he found, that the door of his house was closed. His sons, had gone to School. The prosecutrix, was not found, in the house. He made a search, for the prosecutrix, in the village, and in the nearby area, but could not trace her. Balak Ram, accused (now deceased), was also not found, at his residence. Raj Kumar, father of the prosecutrix, had a suspicion, that Balak Ram, in connivance with Amarjit Singh, accused, had kidnapped his daughter. Raj Kumar, made a statement PG, on 01.04.94, on the basis whereof, Criminal Appeal No. 380-SB of 1997 4 the first information report, was registered. Search of the accused and the prosecutrix was made, but to no avail. 3. On 03.04.94, Raj Kumar, complainant, went to the Police Station, and told Mool Chand, Assistant Sub Inspector, that the prosecutrix, was spotted near Jagadhri. Mool Chand, Assistant Sub Inspector, reached Bilaspur Chowk, Jagadhri, when Kanwar Bhan, Sarpanch of Jarodi, met him, and told that a girl of Binjalpur, was staying at the house of Lachman Dass. Then the Police party, reached village Jarodi, where Lachman Dass, produced the prosecutrix, before Mool Chand, Assistant Sub Inspector. Recovery memo PH was prepared. 4. The prosecutrix, was sent for medico-legal examination, to CHC, Mullana. The prosecutrix, after medico-legal examination, was handed over, to her father, vide memo PJ. The sealed packets, given by the doctor, after examination of the prosecutrix, were taken into possession, vide memo PN. 5. On 07.04.94, Balak Ram, accused, was produced, by his father, before the Police, and was arrested. He was got medico-legally examined, at CHC, Mullana. The sealed packets, handed over, by the doctor, were taken into possession, vide memo PH. 6. The prosecutrix, was produced, before the Magistrate, on 16.04.94, and her statement, under Section 164 of the Code of Criminal Procedure, was recorded. She also named Amarjit Singh @ Suresh @ Kukku, accused, who connived with Balak Ram, accused, in her Criminal Appeal No. 380-SB of 1997 5 kidnapping. She also stated that, both the accused committed rape with her. After the completion of investigation, challan was presented, against Balak Ram, accused. The name of Amarjit Singh @ Suresh @ Kukku, accused, was kept, in column No.2 of the report, under Section 173 of the Code of Criminal Procedure. 7. On his appearance, in the Court of the Committing Magistrate, the accused, was supplied the copies of documents, relied upon by the prosecution. 8. After the case, was received by commitment, in the Court of Sessions, charge under Sections 376, 363, and, 366, was framed against Balak Ram, accused, which was read over and explained to him, to which he pleaded not guilty, and claimed judicial trial. 9. After some evidence, was recorded, an application, under Section 319 of the Code of Criminal Procedure, was moved, by the Public Prosecutor, for the State, for summoning Amarjit Singh @ Suresh @ Kukku, accused. He was, accordingly ordered to be summoned, as an accused, to face trial, vide order dated 11.01.95. 10. After the appearance of Amarjit Singh @ Suresh @ Kukku, accused, fresh charge, was framed, against both the accused, for the offences, punishable under Sections 376(2)(g), 363, and, 366 of the Indian Penal Code, which was read over and explained to them, to which, they pleaded not guilty and claimed judicial trial. Criminal Appeal No. 380-SB of 1997 6 11. The prosecution, in support of its case, examined Dr. Usha Kumari, Medical Officer, PHC, Mullana (PW1), who medico-legally examined the prosecutrix, aged 13 years, female. She found her hymen ruptured. She complained of pain around her vagina. Hymen admitted one finger. She opined, that the prosecutrix, was subjected to intercourse, and the probable duration of intercourse, was 4 to 7 days. The swabs were taken and converted into parcels. The clothes of the prosecutrix, were also taken into possession, and handed over to the Police. 12. Mange Ram, Sub Inspector, Police Station Sadar, Ambala (PW2), partly investigated this case. 13. Ram Saran, Constable (PW3), prepared the site plan PC. 14. Raj Kumar, complainant (PW4), deposed in terms of the prosecution version, as stated above. 15. Ram Pal, (PW5), found the prosecutrix, in the house of Balak Ram, on 31.03.94. He further stated that the prosecutrix, told him, that both the accused, namely Balak Ram and Amarjit Singh @ Suresh @ Kukku, had committed sexual intercourse with her forcibly. He further stated that, on 27.04.04, he handed over the School Leaving Certificate of the prosecutrix, to the Police, which was taken into possession, vide memo PA. 16. Dr. Devinder Singh, Medical Officer, CHC, Ganaur (PW6), medico-legally examined Balak Ram son of Phool Chand, and opined, Criminal Appeal No. 380-SB of 1997 7 that there was nothing, to suggest that, he was not capable of performing sexual intercourse. 17. Ram Kumar, Head Constable (PW7), stated that after the medical-examination of the prosecutrix, sealed parcels, were produced before him, by her, and the same, were taken into possession, vide memo PN. 18. Karan Singh, Constable (PW8), went to Civil Hospital, alongwith Phool Chand, and got medico-legally examined Balak Ram, accused. 19. Lachman Dass (PW9), stated that, he was present, in his house, at village Jarodi. A girl came to his house all alone. He further stated that he kept the girl, at his house, on humanitarian grounds, and informed the Police. During the course of cross-examination, he identified the girl, as the prosecutrix. 20. R.K. Sharma, Judicial Magistrate 1st Class, Gurgaon (PW10), recorded PR, the statement, under Section 164 of the Code of Criminal Procedure of the prosecutrix, on which, he gave his certificate PR/1. 21. The prosecutrix, was examined as (PW11). Her statement, shall be discussed, in detail, at the appropriate time. 22. Mool Chand, Assistant Sub Inspector (PW12), is the Investigating Officer. Criminal Appeal No. 380-SB of 1997 8 23. Gian Singh, JBT Teacher (PW13), brought the admission register of Government High School, Binjalpur. He stated that, as per entry at serial No. 1712, dated 17.04.87, the daughter of Raj Kumar (prosecutrix), was admitted, in the said School, on that date, and her date of birth, was recorded, as 02.01.81. Thereafter, the Public Prosecutor, for the State, closed the prosecution evidence. 24. 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. They, however, did not lead any evidence, in their defence. 25. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court convicted and sentenced the accused, as stated above. 26. Feeling aggrieved, the instant appeal, has been filed by the accused/appellants. 27. During the pendency of appeal, Balak Ram, appellant No. 1, died. Since the sentence of fine, had also been imposed upon him, the appeal, as a whole, could not abate, in view of the provisions of Section 394(2) of the Code of Criminal Procedure. Under these circumstances, the Counsel for the appellant, submitted that, he will address arguments, on his behalf also, on merits. Criminal Appeal No. 380-SB of 1997 9 28. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 29. 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. Criminal Appeal No. 380-SB of 1997 10 30. 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. However, illustration (b) to Section 114, which lays down a rule of practice, says that the Court may presume, that an Criminal Appeal No. 380-SB of 1997 11 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). 30-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 Act, similar to illustration (b) to Section 114 which required it to look for corroboration. If for the same reason the Criminal Appeal No. 380-SB of 1997 12 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 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. Criminal Appeal No. 380-SB of 1997 13 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 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 her chastity. Criminal Appeal No. 380-SB of 1997 14 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 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; Criminal Appeal No. 380-SB of 1997 15 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 extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised by the society or being looked down by the society including by her own family members, relatives, friends and neighbours. (3) She would have to brave the whole world. (4) She would have to brave the whole world. (4) she would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society whereby and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. Criminal Appeal No. 380-SB of 1997 16 (10) The parents of an unmarried girl as also the husband and members of the husband's family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to the promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by investigating agency, to face the Court to face the cross-examination, by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent. 31. In the light of the principle of law, laid down, in the aforesaid cases by the Apex Court, it is to be determined, as to whether, the prosecution produced cogent and convincing evidence, to prove its case, or not. The prosecutrix, appeared as PW11, and gave a vivid detail, with regard to the mode and manner, in which, the occurrence took place. She stated that, on 30.03.94, she was present, in the house of her parents, in village Binjalpur. Her father, was out, in the fields. Her mother, had gone, to her maternal grand-parents. It was stated by her, that all of a sudden, she got pain, in her stomach. She went out of her house, in the nearby fields, to ease herself. Balak Ram and Amarjit Singh @ Suresh @ Kukku, accused, met her. They were residing in their neighbourhood. Amarjit Singh @ Suresh @ Kukku, accused asked her, that she should accompany them. She, however, refused. After that, Amarjit Singh @