CRA No.1009-SB of 2000, CRA No.1080-SB of 2000, 1 CRA No.999-SB of 2000, CRA No.1031-SB of 2000 and CRA No.1073-SB of 2000 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) Criminal Appeal No.1009-SB of 2000 Date of Decision: December 03, 2010 Mohan Lal .......Appellant Versus State of Punjab .......Respondent (2) Criminal Appeal No.1080-SB of 2000 Balbir Singh .......Appellant Versus State of Punjab .......Respondent (3) Criminal Appeal No.999-SB of 2000 Jasbir Kaur .......Appellant Versus State of Punjab .......Respondent (4) Criminal Appeal No.1031-SB of 2000 Amarjit Singh .......Appellant Versus State of Punjab .......Respondent (5) Criminal Appeal No.1073-SB of 2000 Ranjit Singh .......Appellant Versus State of Punjab .......Respondent CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN CRA No.1009-SB of 2000, CRA No.1080-SB of 2000, 2 CRA No.999-SB of 2000, CRA No.1031-SB of 2000 and CRA No.1073-SB of 2000 Present: Mr. Bipan Ghai, Sr. Advocate, With Mr. Sandeep Gehlawat, Advocate, for the appellant (in CRA Nos.1009-SB and 1031-SB of 2000). Ms. Baljit K. Mann, Advocate, for the appellant (in CRA No.1073-SB of 2000). Mr. J S Brar, Advocate, for the appellant (in CRA No.1080-SB of 2000). Mr. A S Virk, Advocate, for the appellant (in CRA No.999-SB of 2000). Mr. Mehardeep Singh, DAG, Punjab. **** JITENDRA CHAUHAN, J. (ORAL) 1. This judgment of mine shall dispose of five appeals, namely, CRA Nos.1009-SB, 1080-SB, 999-SB, 1031-SB and 1073-SB of 2000, the same having arisen out of the same incident. However, the facts are being derived from CRA No.1009-SB of 2000. 2. The present appeal has been directed against the judgment and order dated 25.09.2000 (hereinafter referred to as ‘impugned judgment’) passed by the learned Additional Sessions Judge, Fatehgarh Sahib (hereinafter referred to as ‘trial Court’), whereby the accused-appellants have been convicted for the commission of offence punishable under Section 376(2)(g) IPC and Section 366 read with Section 34 IPC. The learned trial Court sentenced the appellants to undergo rigorous imprisonment for a CRA No.1009-SB of 2000, CRA No.1080-SB of 2000, 3 CRA No.999-SB of 2000, CRA No.1031-SB of 2000 and CRA No.1073-SB of 2000 period of three years and to pay a fine of Rs.2,000/- and in default thereof, to further undergo rigorous imprisonment for a period of six months under Section 366 IPC. The accused-appellants have further been sentenced to undergo rigorous imprisonment under Section 376 (2)(g) for a period of ten years and to pay a fine of Rs.3,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of one year. However, all the sentences were ordered to run concurrently. 3. Briefly stated, facts of the present case, as emanating from the record, are that on 2.11.1994, the prosecutrix (the name of the victim not indicated in this judgment in view of Bhupinder Sharma Vs. State of HP, AIR 2003 SC 4684) moved an application, Ex.PA, before ASI Sadhu Ram, stating that Balbir Singh, accused, is the D.P.E. in Government High School, Madhopur, where the prosecutrix was studying. She had never participated in the games but Balbir Singh, accused, added her name in the sports team by prevailing upon her to participate in the games. On 24.10.1994, a sports meet was to take place at Fatehgarh Sahib and all the accused compelled the prosecutrix to accompany them along with 15-16 other girls for participating in the games. At about 10.00 a.m., when she reached the Village Cremation Ground along with other girls, accused-Balbir Singh, D.P.E., asked the prosecutrix to take lift on the scooter driven by accused-Mohan Lal Verma. When the prosecutrix showed reluctance, she was threatened to be slapped and forced to sit CRA No.1009-SB of 2000, CRA No.1080-SB of 2000, 4 CRA No.999-SB of 2000, CRA No.1031-SB of 2000 and CRA No.1073-SB of 2000 on the scooter. When Mohan Lal Verma, accused, reached near the petrol pump of Machlian, he stopped his scooter on the pretext of repairing the same. In the meantime, accused Ranjit Singh, came there and accused-Mohan Lal directed the prosecutrix to accompany Ranjit Singh on his cycle. On refusal, she was again threatened to be slapped and forcibly made to sit on the cycle and when they reached on the turning of Gurdwara Jyoti Sarup, Fatehgarh Sahib, the accused asked the prosecutrix to accompany him to the house of his sister. Despite refusal, accused-Ranjit Singh took her to the house of accused-Jasbir Kaur. Jasbir Kaur offered tea to Ranjit Singh as well as the prosecutrix but the latter refused to take the same. Thereafter, Jasbir Kaur asked the prosecutrix to come inside the room where accused-Ranjit Singh was sitting. The prosecutrix refused to do so but Jasbir Kaur pushed her inside the room and bolted the door from outside. Accused-Balbir Singh, Amarjit Singh and Mohan Lal Verma were also present along with Ranjit Singh in the said room and Ranjit Singh started assaulting the prosecutix. When she raised alarm, Balbir Singh gagged her mouth whereas Mohan Lal and Amarjit Singh tied her arms. Ranjit Singh removed her ‘Salwar’ and committed rape upon her. Resultantly, she became unconscious and did not know what happened thereafter. 4. On gaining consciousness, accused-Ranjit Singh took her on his cycle and dropped her at the place where the other girls were going. On the way, he also threatened the prosecutrix not to disclose to anyone about the incident. Thereafter, she reached home and CRA No.1009-SB of 2000, CRA No.1080-SB of 2000, 5 CRA No.999-SB of 2000, CRA No.1031-SB of 2000 and CRA No.1073-SB of 2000 narrated the entire incident to her mother. Since the father of the prosecutrix was away to Nepal in connection with his job, he was informed about the incident via telegram whereupon, he reached home on 2.11.1994 and the matter was reported to the Police. 5. On the basis of aforesaid statement of the prosecutrix, FIR, Ex.PA/3 was registered on 02.11.1994 at Police Station, Sirhind, investigations were conducted and upon presentation of the challan against the accused-appellants, the case was committed to the Court of Sessions. 6. The accused were charge-sheeted for commission of offence punishable under Sections 366/34 and 376(2)(g) IPC, to which they pleaded not guilty and claimed trial. 7. In order to substantiate its case against the accused, the prosecution examined as many as 16 witnesses, namely, the prosecutrix as PW1; Jaswant Kaur, mother of the prosecutrix, as PW2; Darbara Singh, father of the prosecutrix, as PW3; Dr. Parbhat Shobha, Medical Officer, Civil Hospital, Fatehgarh Sahib, who conducted the medico-legal examination of the prosecutrix, as PW4; Dr. Ashwani Sharma, who conducted the medico-legal examination of accused- Ranjit Singh, as PW5; Sukhwinder Singh, Draftsman, who prepared the scaled site plan, Ex.PW6/A, of the place of occurrence, as PW6; MHC-Gurpinder Pal Singh as PW7; Major Singh, Line Officer, as PW8; ASI Sashu Ram, Investigating Officer, as PW9; S.I. Kehar Singh as PW10; H.C. Ashok Kumar as PW11; Parveen Sharma, CRA No.1009-SB of 2000, CRA No.1080-SB of 2000, 6 CRA No.999-SB of 2000, CRA No.1031-SB of 2000 and CRA No.1073-SB of 2000 Science Mistress, Government High School, Doodan Sadan, as PW12; Shri B.C. Gupta, CJM, Chandigarh, as PW13; Charanjit Singh, SPO as PW14; Jaswant Singh, Punjabi teacher, as PW15; and Govinder Kaur, Headmistress of the School, as PW16. 8. The accused were examined under Section 313 Cr.P.C. wherein all the incriminating circumstances and evidence appearing against them, were put to them which the accused denied and pleaded false implication. No evidence was led by them in their defence. 9. After hearing learned counsel for both the parties and considering the material/evidence on record, the learned trial Court convicted and sentenced the appellants for the offence and term as indicated at the outset of this judgment. 10. Learned counsel for the appellants has submitted that there is an inordinate and unexplained delay of 7 days in lodging the FIR. The occurrence took place on 24.10.1994. The FIR in the instant case was registered on 2.11.1994. There is no plausible explanation for the said delay and the same has been utilized to manufacture and fashion the case of the prosecution in a manner so as to secure the conviction of the appellants. 11. Learned counsel has further contended that the entire version, as projected by the prosecution, is highly improbable. As per the case of the prosecution, the school was to participate in a sports meet at the school of the adjoining Village, Mullanpur. The lady teacher, Kaushalya Devi, was to accompany the squad of players. The CRA No.1009-SB of 2000, CRA No.1080-SB of 2000, 7 CRA No.999-SB of 2000, CRA No.1031-SB of 2000 and CRA No.1073-SB of 2000 prosecutrix has admitted that she did not go to the school at Mullanpur; however, she went on the subsequent day. The allegations made against the appellants are that Mohan Lal Verma took the prosecutrix on his scooter and on the way, Ranjit Singh met them who was on a bicycle. The prosecutrix was instructed to accompany Ranjit Singh. Finally, the prosecutrix was taken to the residence of Jasbir Kaur, the sister of Ranjit Singh. Thus, learned counsel has raised an argument that it is highly improbable that a brother would take the prosecutrix to the house of his sister, along with other co-accused. 12. Learned counsel has further submitted that the FSL report in the instant case cannot be relied upon. He has argued that even as per the case of the prosecution, the prosecutix had been taking bath and the presence of semen after 7 days of the occurrence is not possible. Learned counsel has further submitted that in the statement of Dr. Prabhat Shobha, PW4, it has been recorded that no injury marks were found on the person of the victim. He has also referred to the statement of Kaushalya Devi, Acting Principal, that at the relevant time, no complaint was raised either by the prosecutrix or her mother with regard to the incident. 13. The learned counsel has further submitted that the prosecutrix as well as her mother resiled from their statements and were declared hostile. Therefore, the conviction cannot be upheld on the basis of the statements of unreliable witnesses. CRA No.1009-SB of 2000, CRA No.1080-SB of 2000, 8 CRA No.999-SB of 2000, CRA No.1031-SB of 2000 and CRA No.1073-SB of 2000 14. Learned counsel has further argued that the appellant- Jasbir Kaur, being a female, cannot be convicted under Section 376(2) (g) of the Indian Penal Code. 15. Learned counsel for appellant-Ranjit Singh, has argued that the presence of semen after a lapse of 7 days, particularly when the prosecutrix had been taking bath, goes to establish that something fishy had taken place. She has further prayed that the appellants have lost their jobs and are ready and willing to compensate the prosecutrix. It has been further pointed out that the prosecutrix, after her marriage is leading a happy matrimonial life. 16. On the other hand, learned counsel for the State has submitted that the victim comes from the poorest strata of the society. The parents of the victim are illiterate. There is no motive or enmity between the parties which could have prompted the victim to level such an allegation. Learned counsel has further submitted that no official from the school moved any communication to the higher authorities pleading false implication of its staff members at the behest of the complainant or somebody else. He has further referred to the medical evidence wherein it has been specifically noticed that the vagina accepted only one finger which is suggestive of the fact that the victim was not habitual to sexual intercourse. Therefore, he has prayed for maintaining the judgment and order passed by the learned trial Court. CRA No.1009-SB of 2000, CRA No.1080-SB of 2000, 9 CRA No.999-SB of 2000, CRA No.1031-SB of 2000 and CRA No.1073-SB of 2000 17. I have heard learned counsel for the parties and perused the record. 18. The appellants, in the instant case, are the teachers and the victim is their student. She was a student of 10th standard. The occurrence took place on 24.10.1994. The father of the victim was serving as a Bulldozer driver in Nepal. A telegram was sent to him about the incident. On receipt of the telegram, he joined his family on 2.11.1994 and the matter was reported to the police on the same day. In such like matters, the decision whether to report the matter to the Police is invariably taken by the head of the family. The father joined the prosecutrix on 2.11.1994. The very fact that a telegram was sent to the father of the prosecutrix who came all the way from Nepal on being informed about the rape of his daughter, prima facie shows that the incident as alleged by the prosecutrix, did occur or else the father of the prosecutrix would not have come from Nepal only to submit a false complaint against the appellants. Even otherwise, these kinds of incidents attach stigma not only to the prosecutrix but to the entire family. The victim is always hesitant to report the matter promptly. In the instant case, the state of mind of the prosecutrix can be well imagined, having been raped by her own teachers who are otherwise, in our social set up, put on a pedestal which accords them an even higher status, respect and position than what is attached to one’s own parents. In fact, the prosecutrix exhibited a lot of courage in coming out with the incident of rape. Keeping in mind the age of the CRA No.1009-SB of 2000, CRA No.1080-SB of 2000, 10 CRA No.999-SB of 2000, CRA No.1031-SB of 2000 and CRA No.1073-SB of 2000 prosecutrix, her social status, the position of the accused and her mental state, there can hardly be any doubt regarding the truth of the allegations levelled by her simply because she took some time to report the matter to the Police. This Court can appreciate the effort which the prosecutrix must have put in to firstly deal with the physical and mental trauma to which she was subjected to by the appellants and then gathering herself to report the matter to the Police. Hon’ble the Supreme Court in State of Punjab Vs. Gurnit Singh 1996 (1) RCR (Criminal) 533 observed as under:- “8. ...In our opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but in the facts and circumstances of the case was also natural. The courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complaint about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offences is generally lodged. The prosecution has explained that as soon as Trilok Singh PW6, father of the prosecutrix came to know from his wife, PW7 about the CRA No.1009-SB of 2000, CRA No.1080-SB of 2000, 11 CRA No.999-SB of 2000, CRA No.1031-SB of 2000 and CRA No.1073-SB of 2000 incident he went to the village sarpanch and complained to him. The sarpanch of the village also got in touch with the sarpanch of village Pakhowal, wherein the tubewell kotha of Ranjit Singh rape was committed, and an effort was made by the panchayats of the two villages to sit together and settle the matter. It was only when the Panchayats failed to provide any relief or render any justice to the prosecutrix, that she and her family decided to report the matter to the police and before doing that naturally the father and mother of the prosecutrix discussed whether or not to lodge a report with the police in view of the repercussions it might have on the reputation and future prospects of the marriage etc. of their daughter. Trilok Singh PW6 truthfully admitted that he entered into consultation with his wife as to whether to lodge a report or not and the trial Court appears to have misunderstood the reason and justification for the consultation between Trilok Singh and his wife when it found that the said circumstances had rendered the version of the prosecutrix doubtful…” Therefore, the delay in the instant case was on account of practical reasons beyond the control of the victim and, thus, not fatal in the instant case. CRA No.1009-SB of 2000, CRA No.1080-SB of 2000, 12 CRA No.999-SB of 2000, CRA No.1031-SB of 2000 and CRA No.1073-SB of 2000 19. The prosecutrix has given the details and the manner in which she was assaulted/raped by the appellants. The victim being a student of the appellants was in their constructive custody. She has given unblemished narration of the incident of rape while she appeared before the learned trial Court on different dates. However, this fact also cannot be denied that the victim as well as her mother ultimately resiled and were declared hostile. However, this conduct of the victim and her mother is understandable in the given set of facts and circumstances. 20. The FIR could not be lodged immediately after the incident as there was nobody in the family to support their cause. However, the mother sent a telegram to her husband (complainant) i.e. the father of the prosecutrix. It was after he joined the family, the FIR was registered. The victim was examined on several dates within a period of about two years and she was consistent throughout that rape had been committed upon her. However, unfortunately, the father of the prosecutrix died during the trial before he could be cross- examined. His death, in all probability, was the proximate and immediate cause of the resiling of the prosecutrix and her mother from the prosecution case. The protective shield of father having withered away, the prosecutrix and her mother, in all probability, came under immense pressure from the appellants. It was only after the death of her father, the victim and her mother, resiled and were declared hostile. At this juncture, this Court would also like to point out that CRA No.1009-SB of 2000, CRA No.1080-SB of 2000, 13 CRA No.999-SB of 2000, CRA No.1031-SB of 2000 and CRA No.1073-SB of 2000 the learned trial Court has in detailed discussed the conduct of the accused in so far as their role in delaying the cross examination of the prosecutrix is concerned. The learned trial Court has held in no uncertain terms that the accused purposely delayed and dragged the cross examination of the prosecutrix and finally succeeded in their nefarious objective when the father of the prosecutrix unfortunately died and thereafter, the prosecutrix resiled on the last date of her cross examination. The ld. trial Court has fortified his finding on this aspect by referring to the zimni orders and in the opinion of this Court there is no reason to arrive at a conclusion which is different from the ld. trial court, on this aspect. 21. From the record, it is made out that the victim comes from the poorest strata of the society. The appellants are well placed and, therefore, the change in the statement of the victim and her mother, was certainly made under duress which is very evident and which subsequently resulted in some sort of a compromise between the parties. At the cost of repetition, I have no hesitation in recording the fact that the alleged compromise is a manifestation of subjugation on account of the unequal placement of the parties at social and economic pedestal. The testimony of the prosecutrix was consistent till the time her father was alive. The subsequent events i.e. after the death of the complainant, in the opinion of this Court are to be ignored being a result of duress and undue influence, as already discussed above. Moreover, it has been time and gain held by the Apex Court CRA No.1009-SB of 2000, CRA No.1080-SB of 2000, 14 CRA No.999-SB of 2000, CRA No.1031-SB of 2000 and CRA No.1073-SB of 2000 that the statement of prosecutrix, if consistent and worthy of credence, is alone sufficient to record a finding of guilt against the accused. Hon’ble the Supreme Court in Wahid Khan Vs. State of Madhya Pradesh, 2010 (1) RCR (Criminal) 151 has held as under:- “19. The law on the point is now too well settled. No doubt, it is true that Dr. B. Biswas, who had initially conducted the medical examination of the prosecutrix, has not appeared on behalf of the prosecution to depose. But, that alone is not sufficient to discard the prosecution story. Corroboration is not the sine qua non for conviction in a rape case. 21. It is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of CRA No.1009-SB of 2000, CRA No.1080-SB of 2000, 15 CRA No.999-SB of 2000, CRA No.1031-SB of 2000 and CRA No.1073-SB of 2000 course, not as forward looking as the western countries are. 22. Thus, in a case of rape, testimony of a prosecutrix stands at par with that of an injured witness. It is really not necessary to insist for corroboration if the evidence of the prosecutrix inspires confidence and appears to be credible. Moreover, the gravity of the offence leaves no scope at all for taking a lenient view. In this regard, reliance is placed on 2008 (1) RCR (CRIMINAL) 213 titled as State of Madhya Pradesh Vs. Babulal wherein, Hon’ble the Apex Court has observed as under:- “25. Sexual violence apart from being a dehumanizing act is also an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity. It degrades and humiliates the victim and leaves behind a traumatic experience. It has been rightly said that whereas a murderer destroys the physical frame of a victim, a rapist degrades and defiles the soul of a helpless female. The courts are, therefore, expected to try and decide cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitized Judge is a CRA No.1009-SB of 2000, CRA No.1080-SB of 2000, 16 CRA No.999-SB of 2000, CRA No.1031-SB of 2000 and CRA No.1073-SB of 2000 better armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and complicated provisos. 26. Once a person is convicted for an offence of rape, he should be treated with a heavy hand. An undeserved indulgence or liberal attitude in not awarding adequate sentence in such cases would amount to allowing or even to encouraging 'potential criminals'. The society can no longer endure under such serious threats. Courts must hear the loud cry for justice by society in cases of heinous crime of rape and impose adequate sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court [Dinesh v. State of Rajasthan, (2006) 3 SCC 771].” 22. As regards the fact that no injury marks were noticed on the person of the victim, in my considered opinion, this rather proves the case of the prosecution. If the honour of