Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --1-- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1 Crl. Appeal No. 823-SB of 1996 Date of Decision : 15.05.2009 Arun Kumar alias Happy son of Manohar Lal, resident of Mohalla Islamabad, Gita Bhawan Road Gurdaspur, District Gurdaspur. .... Appellant. Versus The State of Punjab .... Respondent 2. Criminal Appeal No. 38-SB of 1997 Date of Decision: 15.05.2009 Paramjit Singh son of Bishan Singh, resident of Mustabad Saidan, Police Station Sadar Gurdaspur, District Gurdaspur. .... Appellant Versus The State of Punjab .... Respondent --- CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr.H.S. Bakshi, Advocate for the appellants, in both the criminal appeals. Ms. Manjari Nehru Kaul, DAG, Punjab for the respondent-State. Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --2-- SHAM SUNDER, J. This judgment shall dispose of Criminal Appeal No. 823-SB of 1996, filed by Arun Kumar alias Happy and Criminal Appeal No. 38-SB of 1997, filed by Paramjit Singh, accused, (now appellants),arising out of the judgment of conviction, and the order of sentence dated 22.11.1996, rendered by the Court of Additional Sessions Judge, Gurdaspur, vide which it convicted them, as also one more accused (non-appellant) and sentenced as under:- Names of the accused (now appellants) The offences for which conviction was recorded. Sentence awarded Arun Kumar alias Happy and Paramjit Singh. U/S.363 IPC Rigorous imprisonment for 1-½ years each. Fine of Rs.200/-each. In default of payment of fine to undergo rigorous imprisonment for two months each. Arun Kumar alias Happy and Paramjit Singh U/S 366 IPC Rigorous imprisonment for three years each. Fine of Rs.300/- each. In default of payment of fine to undergo rigorous imprisonment for three months each. Arun Kumar @ Happy and Paramjit Singh. U/S 376 IPC Rigorous imprisonment for seven years each. Fine of Rs.500/- each. In default of payment of fine to undergo rigorous imprisonment for five months. Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --3-- The substantive sentences of the accused were ordered to run concurrently. 2. The facts,in brief,are that, Bachan Lal son of Sain Dass, Ramdasia by caste, was working as Superintendent, in the office of the District & Sessions Judge, Ferozepur. His family was residing in quarter No.5, Canal Colony, Jail Road, Gurdaspur. His wife namely Harbans Kaur was working as Senior Clerk, in Upper Bari Doab Canal, Madhopur Division, Gurdaspur. Bachan Lal had three issues. The eldest one was Parminder Kumar, aged about 15 years, the second one, the prosecutrix, aged about 13/14 years, studying in 7th Class in Happy School, Jail Road, Gurdaspur, and the youngest one namely Harminder Kumar, a student of 6th Class in Happy High School, Gurdaspur. On 22.02.1992 Harbans Kaur rang up Bachan Lal that the prosecutrix had been missing from the house since 21.02.1992. On 23.02.1992 Bachan Lal came to Gurdaspur and continued searching his daughter, but no clue could be found. On 26.02.1992, Joginder Singh, Sub Inspector and other officials were present near District Jail, Gurdaspur. At about 6.30 PM, Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --4-- Bachan Lal made a statement (Ex.PD) before the Police, narrating the aforesaid facts, on the basis whereof, the FIR was registered. Bachan Lal learnt that Arun Kumar alias Happy son of Manohar Lal, Paramjit Singh alias Pamma son of Bishan Singh and Kaka son of Charan (non- appellant), accused were working at the workshop, known as M/s Sukhdev Works LML Vespa Agency, situated opposite Canal Colony, Gurdaspur. According to him, they had enticed his daughter. Bhatta resident of Umri also told him that he had seen the accused and the prosecutrix at bus stand, Dina Nagar. The prosecutrix was recovered from bus stand, Gurdaspur on 02.03.1992. She was got medicolegally examined from Dr.Gurdeep Kaur. She was produced before Shri S.C. Arora, the then Judicial Magistrate Ist Class, Gurdaspur, for recording her statement, under Section 164 of the Code of Criminal Procedure, wherein she stated that on 21.02.1992 her mother had gone to her office and her father was at Ferozepur. At about 10.00 AM, Happy, Pamma and Kaka (non-appellant) came to their house. Happy was having a knife in his hand. They held out threats to her, that she should not raise alarm. She became unconscious. Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --5-- Thereafter, she was taken away. When she regained consciousness, she found herself confined in a room. Thereafter, all the accused committed sexual intercourse with her. She became unconscious. She was not allowed to go out of the room. On 22.02.1992 she was again subjected to sexual intercourse by the accused. It was further stated by her, that every day, the accused were having sexual intercourse with her. One day, she was left at the Railway Station, from where she was recovered by the Police. On the basis of the statement, made by the prosecutrix, offence punishable under Section 376 of the Indian Penal Code was also added. The accused were arrested. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Committing Court,the accused were supplied the copies of all the documents,relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Sections 363, 366 and 376 of the Indian Penal Code, was framed against the accused, to which they pleaded not guilty, and claimed judicial trial. Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --6-- 4. The prosecution, in support of its case, examined Dr. Gurdeep Kaur, Medical Officer, Civil Hospital, Gurdaspur,(PW-1), Dr. H.S. Bajwa, Medical Officer,(PW-2), the prosecutrix,(PW-3), Bachan Lal, complainant,(PW-4), Ram Singh,(PW-5), Ram Ditta, (PW-6), Harbans Singh, (PW-7), Sukhchain Singh, Master, (PW-8), Janak Singh, Draftsman,(PW-9), Sowinder Singh, Constable, (PW-10), Bhagirath Lal, Computer operator, Office of the Municipal Committee,(PW-11), and Prem Parkash, SMO, Civil Hospital, (PW-12). Thereafter, the Additional Public Prosecutor for the State tendered into evidence, affidavits of Lakhwinder Singh, Moharrir Head Constable, and Joginder Singh, Constable, Ex.PJ and Ex.PK respectively. Thereafter, he closed the prosecution evidence. 5. The statements of the accused, under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --7-- 6. In their defence, the accused examined Sulakhan Singh, Head Constable, as DW-1, who proved Ex.D1 and Ex.D2, the copies of the daily diary report nos. 19 and 20 dated 26.02.1992. Thereafter, they closed their defence evidence. 6. After hearing the Additional Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 8. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeals, were filed by Arun Kumar alias Happy and Parminder Singh, appellants. 9. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. It is settled principle of Criminal Jurisprudence, that the prosecution, is required to prove its case, against the accused, beyond a reasonable doubt. Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --8-- 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 Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --9-- 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. 11. 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 Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --10-- 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 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 Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --11-- 114 illustration (b). 11-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 attach in the evaluation of her evidence, as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --12-- 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 Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --13-- 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 Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --14-- 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 Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --15-- 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 realize that ordinarily woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity. It is time to recall the observation of this Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --16-- 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 torelentless and remorseless cross- examination. And we must do so with a logical, and not an opinionated eye in the light of probabilities with our Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --17-- 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. Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --18-- Further this Court said; Without the fear of making two wide a statement or of over-stating the case it can be said that rarely will a girl or a woman in India 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 Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --19-- that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized 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 Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --20-- 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.(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 Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --21-- on the family name and family honour. (11) The fear of the victim herself being considered to be 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. 12. Keeping in view the principle of law, laid down in the aforesaid cases, now let us see, as to whether, the prosecution was able to prove its case, beyond a reasonable doubt. To determine, this question, the brief narration of the evidence, is required to be made. The prosecutrix, when appeared as, PW-3, in clear-cut terms stated that on 21.02.1992 at about 10 AM Happy, Kaka and Pamma, accused came to their house. Happy was armed with a knife. She further stated that Happy accused threatened that in case, she raised alarm, she Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --22-- would be killed. She further stated that she became unconscious. It was further stated by her that the accused lifted her from her house and took her away. It was further stated by her that when she regained consciousness, she found herself confined in one room. It was further stated by her that all the accused, committed sexual intercourse with her. It was further stated by her that she again became unconscious. All the accused continued committing sexual intercourse turn by turn for 5/6 days with her and ultimately she was left at the Railway Station. The statement of the prosecutrix was duly corroborated through the medical evidence of Dr. Gurdeep Kaur, Medical Officer, Civil Hospital, Gurdaspur, (PW-1). She on local examination, found her pubic hair were present, and multiple lacerated wounds were present in the hymen as follows:- “1. 0.5 cm x 0.5 cm lacerated wound present in the posterior surface of hymen. No fresh bleeding was present from the edges of the wounds. 2. 0.5 cm x 0.5 cm lacerated wound present in the lateral surface of hymen. No fresh bleeding present from the edges. Crl. Appeal No. 823-SB of 1996 & Crl. Appeal No. 38- SB of 1997 --23-- 3.No tear was present in both lateral, anterior or posterior surface of vagina. 4. No tear was present in the posterior fornix of serbix.” The doctor also opined that she was of the opinion that the prosecutrix was subjected to sexual intercourse. Still further corroboration to the ocular evidence was provided through Ex.PD, report of the Chemical Examiner. According to report, Ex.PD, semen was found on salwar, shirt and underwear of the prosecutrix. She was thoroughly cross-examined. During the course of cross- examination, nothing of consequence could be got elicited from her mouth, which may go to discredit her evidence, with regard to the commission of rape, with her by the accused. She stood the test of touch-stone of all probabilities, during the course of cross-examination. She in clear-cut terms, stated that she was kept in confinement by the accused