Criminal Appeal No.478-SB of 1993 1 Criminal Appeal No. 8-SB of 1994 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.478-SB of 1993 Date of Decision : September 29, 2008 1. Ganga Ram, s/o Dhuni Ram, r/o Village Pelpa Mandi, PS Tansen (Nepal), Conductor of Mewat Bus Service, Delhi. 2. Balwinder Singh, s/o Dharam Singh, r/o Kaharabad, District Amritsar. ...Appellants Versus The State of Haryana ....Respondent Criminal Appeal No. 8-SB of 1994 Vikram Singh alias Biram Singh, s/o Balbir Singh, age 21 years, r/o Rewari. ... Appellant The State of Haryana ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. Subhash Aggarwal, Advocate for the appellants, in Criminal Appeal No. 478-SB of 1993 Mr.R.D. Yadav, Advocate for the appellant, in Criminal Appeal No. 8-SB of 1994 Mr. A.K. Jindal, AAG Haryana for the respondent, in both the appeals. Criminal Appeal No.478-SB of 1993 2 Criminal Appeal No. 8-SB of 1994 SHAM SUNDER, J. This judgment shall dispose of Criminal Appeal No. 478-SB of 1993, filed by Ganga Ram and Balwinder Singh and Criminal Appeal No. 8-SB of 1994, filed by Vikram Singh alias Biram Singh, arising out of the judgment of conviction and the order of sentence, dated 02.12.1993, rendered by the Court of Additional Sessions Judge, Rewari, vide which it convicted Ganga Ram, Balwinder Singh and Vikram Singh for the offences punishable under Sections 366 and 376 read with Section 34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for a period of ten years each and to pay a fine of Rs. 250/- each, in default to undergo rigorous imprisonment for a period of two months each, for the offence punishable under Section 376 read with Section 34 of the Indian Penal Code, and further sentenced them to undergo rigorous imprisonment for a period of five years each, and to pay a fine of Rs. 250/- each, in default of payment of fine to further undergo rigorous imprisonment for a period of two months each, for the offence punishable under Section 366 read with Section 34 of Indian Penal Code. The Trial Court, however, acquitted Mahabir Singh, s/o Ami Lal, accused of all the offences. It also acquitted Ganga Ram, Balwinder Singh and Vikram Singh of the offence, punishable under Section 506 of the Indian Penal Code. 2. The facts, in brief, are that on 17.09.1992, the prosecutrix (name not being mentioned in view of the pronouncement of the Apex Court) lodged a report with the police that on 16.09.1992, she was present, at the bus stand of Sohna, for going to village Dola. It was further stated by her that since she did not get any conveyance, for going to village Dola, so she thought it fit to stay in some Dharamshala during the night at Rewari. At about 9.00 Criminal Appeal No.478-SB of 1993 3 Criminal Appeal No. 8-SB of 1994 PM, she boarded Mewat bus bearing No. DL-IP-0465 for Rewari. When the bus reached Rewari at about 10.15 PM, all the passengers, alighted therefrom, at the bus stand. When she was coming out of the bus, the driver thereof told her, that they were to take their food near Dharamshala. He also told her that they would drop her there. The driver of the bus took the same to a lonely place. There rape was committed with her, by Ganga Ram, Conductor of the bus. Balwinder Singh @ Bajinder, driver of the bus also committed rape with her by laying her on a seat thereof . Thereafter, they took her to the bus stand, in the bus. At the bus stand, she was handed over to Biram Singh, Khalasi of the bus, who took her to his room situated near the bus stand and also called Mahabir. Both of them took her away to a Chobara and committed rape with her. It was further stated by her that, in the morning, she was turned out of the Chobara. She was also threatened that she would be killed, in case, she narrated the incident to any one. On the basis of the statement of the prosecutrix, FIR was registered, against the accused. The prosecutrix was got medically examined, from a doctor. The site plan was prepared. The accused were arrested. After the completion of investigation, the accused were challaned. 3. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents relied upon by the prosecution. After the case was received by commitment, charge under Sections 366, 376 and 506 read with Section 34 of the Indian Penal Code was framed against them, to which they pleaded not guilty and claimed trial. 4. The prosecution, in support of its case, examined Dr. Bela Satija (PW-1), Dr. Ram Avtar Gupta (PW-2), Inspector Ram Singh (PW-3), Nand Lal, Draftsman (PW-4), Head Constable Ranvir Singh (PW-5), Vinay Rana, Criminal Appeal No.478-SB of 1993 4 Criminal Appeal No. 8-SB of 1994 Head Constable (PW-6), the prosecutrix (PW-7) and Ajit Singh, Sub Inspector (PW-8). Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 5. The statements of the accused under Sections 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. 6. After hearing the Public Prosecutor for the state, the Counsel for the accused and, on going through evidence, on the record, the Trial Court convicted and sentenced Vikram Singh, Balwinder Singh alias Bajinder and Ganga Ram, accused, as stated above, and acquitted Mahabir Singh, accused. 7. Feeling aggrieved, the aforesaid appeals, were filed by the appellants. 8. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for the appellants, submitted that since the accused were not known earlier to the prosecutrix, in the absence of any identification parade, having been held by the Investigation Officer, during the course of investigation, their identity, as the alleged perpetrators of crime, did not stand established. He further submitted that, as such, the accused were not connected with the instant case. It is, no doubt, true that the accused were not earlier known to the prosecutrix. However, this fact alone could not be said to be sufficient, to hold that she was unable to identify the accused, as the perpetrators of crime. The prosecutrix, while appearing as, PW-7, identified the accused one by one, in the Court. It was not that the prosecutrix had only a fleeting glimpse of the accused, and, therefore, was unable to properly identify them. In the first instance, she sat in the bus, the Criminal Appeal No.478-SB of 1993 5 Criminal Appeal No. 8-SB of 1994 driver whereof was Bajinder Singh, whereas, Ganga Ram, accused, was the conductor thereof. Vikram Singh was the Khalasi of the bus. The bus must have taken sufficient time to reach Rewari. On that occasion, the prosecutrix was able to identify the driver and the conductor of the bus. Not only this, the driver of the bus, took the bus to a lonely place. There he and Ganga Ram committed rape with the prosecutrix, in the bus itself. Thereafter, they took her to the bus stand, and handed her over to Vikram Singh, Khalasi, who took her to a Chobara and committed rape with her at night. Under these circumstances, the prosecutrix had sufficient time and opportunity, to properly identify all the accused. The accused committed rape with the prosecutrix, for a considerable time. How could she forget the perpetrators of crime, who ravished her. Their features must have been imprinted indelibly, in her mind. Under these circumstances, to say that the prosecutrix, could not identify the accused, being the perpetrators of crime, cannot be considered to be true. The trial Court was, thus, right in holding that the prosecutrix identified the accused, at the time of commission of crime correctly. The trial Court was also right, in holding that she too identified them correctly, in her statement, while appearing as, PW-7, in the Court. The prosecutrix could not be shaken, during the course of her cross- examination, with regard to the identification of the accused, as the perpetrators of crime. In these circumstances, non-holding of identification parade, during the course of investigation, did not at all affect the merits of the case, as the identity of the accused, was already known to the prosecutrix. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 10. It was next submitted by the Counsel for the appellants, that it was Criminal Appeal No.478-SB of 1993 6 Criminal Appeal No. 8-SB of 1994 not established beyond doubt, from the evidence, on record, that actually rape was committed with the prosecutrix, by the accused. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. However, 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 offence. Is it essential that the evidence of the prosecutrix should be corroborated in material particulars, before the Court before it 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) in Section 114, which lays down a rule of practice, says that the Court may Criminal Appeal No.478-SB of 1993 7 Criminal Appeal No. 8-SB of 1994 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 mater of practice do so, and look for corroboration, in material particulars. This is the conjoint effect of Sections 133 and 114, illustration (b) of the Evidence Act. 11. Keeping this in view, the evidence of the prosecutrix, is required to be scrutinized. The prosecutrix, while appearing as, PW-7, gave a vivid detail, with regard to the date, time and place of occurrence. She, in clear cut terms, stated that at a lonely place at Rewari, Bijender, driver of the bus, and Ganga Ram, conductor thereof, committed rape with her, as they took her there, on the pretext that they will drop her at Dharamshala, but they did not do so. She also, in clear cut, terms stated that thereafter they brought her to the bus stand of Rewari, where they handed her over to Vikram Singh, khalasi of the bus, who took her to a Chobara and committed rape with her, at night, and, in the morning, she was thrown out of that Chobara and threatened that, in case, she narrated the occurrence to anybody, she would be killed. The statement of the prosecutrix is corroborated by Dr. Bela Satija, Medical Officer, Government Hospital, Rewari, who appeared as, PW-1. She medico-legally examined the prosecutrix on 17.09.1992 at 10.30 A.M. She, in clear cut terms, stated that the possibility of rape with the prosecutrix could not ruled out. She also took swabs and converted the same into a parcel. The clothes of the prosecutrix were also converted into a parcel. The parcels were sent to the Forensic Science Laboratory. Exhibit PB is the report of the Forensic Science Laboratory. Human semen was Criminal Appeal No.478-SB of 1993 8 Criminal Appeal No. 8-SB of 1994 detected on pettikot and the vaginal swabs of the prosecutrix. Exhibit PB, report of the Forensic Science Laboratory, therefore, furnished due corroboration to the ocular evidence of the prosecutrix, who appeared as PW-7. Dr. Ram Avtar Gupta, PW-2, medico-legally examined Ganga Ram, Vikram Singh and Balwinder Singh alias Bajinder. He after medical examination opined that all of them were capable of committing sexual intercourse. From the evidence of the prosecutrix, duly corroborated through the medical evidence, as also the report exhibit PB of the Forensic Science Laboratory, it was proved, beyond doubt, that the accused committed sexual intercourse, with her, without her consent and against her will. The submission of the Counsel for the appellants, in this regard, being without merit, must fail, and the same stands rejected. 12. It is, no doubt, true that no injury was found on the person of the prosecutrix, when she was medico-legally examined by Dr. Bela Satija, PW-1. Mere absence of injuries, on the person of the prosecutrix, did not go to prove that rape was not committed with her, by the accused. She, of course, was a married lady, having three children. The circumstances of the case, are required to be recapitulated, so as to arrive at a conclusion, as to why the injuries were not found on the person of the prosecutrix, though she was ravished by as many as three accused. As stated above, she was taken to a lonely place, in the bus, at late night, where rape was committed with her, on a seat of the bus, by Bajinder Singh and Ganga Ram, accused. Thereafter, she was handed over to Vikram Singh, accused, Khalasi of the bus, who took her to a Chobara and committed rape with her. The prosecutrix, being a weak, meek and hapless victim, could not possibly resist the onslaught of well built persons, in the name of Bajinder Singh, Criminal Appeal No.478-SB of 1993 9 Criminal Appeal No. 8-SB of 1994 Ganga Ram and Vikram Singh, accused. It was, under these circumstances, that the question of any injury, on her private parts, or on other parts of her body, did not at all arise. The evidence of the prosecutrix, has been found to be cogent, convincing, reliable and trustworthy. As stated above, it finds corroboration through the medical evidence and the report of the Forensic Science Laboratory, exhibit PB. There was no reason, on the part of the prosecutrix, to implicate the accused, in the instant case, had they not committed rape with her. She had no ill will, grudge or enmity, against the accused, to falsely involve them, in the instant case. She very well knew that, in case, false allegations were levelled against the accused, and the same were not proved, in the Court, she would be looked down upon, in the society, and in the eyes of her husband, as also her relations. No lady can stake her honour, just to falsely implicate the accused, in a case, like the one, in hand. Had she been not ravished by the accused, she would have been the last lady, to lodge a report, against them, and depose, in the Court, as a witness, against them. Mere absence of injury, on any part of her body, on account of the aforesaid reasons, did not belie the statement of the prosecutrix. In this view of the matter, the statement of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 13. It was next submitted by the Counsel for the appellants, that the statement of the prosecutrix, is contradictory to her statement exhibit PE, made by her, first in point of time, on the basis whereof, the FIR was registered. The Counsel for the appellants, submitted that the prosecutrix had stated that she had gone to the police at 12.00 at night and her statement had been recorded at 4.00/5.00 A.M., whereas, Azad Singh, Sub Inspector, stated that the prosecutrix met him, in the morning, and her statement was Criminal Appeal No.478-SB of 1993 10 Criminal Appeal No. 8-SB of 1994 recorded at 7.15 A.M. In exhibit PE, her statement, on the basis whereof, the FIR was recorded she stated that there were five persons, whereas, while appearing as, PW-7, she stated that there were four persons. In exhibit PE, she disclosed the name of Vikram as Khalasi, but when she appeared as, PW-7, she disclosed the name of the accused, as Vikram correctly. They further submitted that in exhibit PE, there was no mention of force, but when she appeared as, PW-7, she stated that knife was used by Mahabir, accused who has since been acquitted. In her statement exhibit PE, made by the prosecutrix, on the basis whereof, the FIR was registered, she in clear cut terms, stated that Bajinder Singh, accused, after stopping the bus, came to her, and told her that, in case, she raised alarm, it would not be in her interest, and thereafter, he forcibly committed rape with her, in the bus itself. She also stated that Ganga Ram, accused too committed rape with her forcibly. She also stated in exhibit PE, that Vikram Singh, Khalasi, committed rape with her in a room and also threatened her, while she was turned out, in the morning, that in case she narrated the incident to anybody, she would be killed. When the statement exhibit PE, is read as a whole, and not by tearing the same into pieces, only one and one conclusion, that can be arrived at, is that, the prosecutrix was raped under threat forcibly. The prosecutrix, being an uneducated lady, it could not be expected of her, to give the exact time, when she lodged the report. She might have reported the matter to the Police orally earlier, but her statement was recorded at 7.15 A.M. Such like minor discrepancies, do not erode the credibility of the prosecutrix. On the other hand, such like minor discrepancies, are bound to occur in the statements of truthful witnesses. A witness cannot be expected to make a parrot-like statement. After the lapse of time, the human memory Criminal Appeal No.478-SB of 1993 11 Criminal Appeal No. 8-SB of 1994 fades, and, therefore, the incident cannot be narrated correctly, in minute details. These discrepancies or contradictions did not affect the fabric of the prosecution case. The statement of the prosecutrix, conforms to the substratum of the case. In Ugar Ahir and others V/s State of Bihar, AIR 1965 (SC),277, it was held that hardly one comes across a witness, whose evidence does not contain a grain of untruth, or, at any rate, exaggerations, embroideries or embellishments. It is, therefore, the duty of the Court to scrutinise the evidence carefully and, in terms of the felicitous metaphor, separate the grain from the chaff. In The State of Punjab V/s Hari Singh and another, AIR, 1974, Supreme Court, 1063, it was held that, it was difficult to find a witness, whose evidence is so flawless, that it has to be wholly, completely and unqualifiedly accepted. In Tehsildar Singh and another V/s State of UP, AIR 1959 Supreme Court 1012, it was held that it is indeed necessary that hardly one comes across a witness, whose evidence does not contain some exaggeration, or embellishments-sometimes, there could even be a deliberate attempt to offer embellishment and sometimes, in their over-anxiety, they may give slightly exaggerated account. The Court can sift the chaff, from the corn, and find out the truth, from the testimony of the witnesses. Total repulsion of the evidence, is unnecessary. The evidence is to be considered, from the point of view of trustworthiness. If this element is satisfied, they ought to inspire confidence, in the mind of the Court, to accept the stated evidence, though not, however, in the absence of the same. In the instant case, as stated above, the evidence of the prosecutrix, on careful and cautious scrutiny, has been found to be cogent, convincing, reliable and trustworthy. Under these circumstances, the aforesaid contradictions, if any, were rightly ignored by the Trial Court. The Criminal Appeal No.478-SB of 1993 12 Criminal Appeal No. 8-SB of 1994 submission of the Counsel for the appellants, being without merit, must fail and the same stands rejected. 14. No other point, was urged, by the Counsel for the parties. 15. In view of the above discussion, it is held that the judgment of conviction and the order of sentence, are based on the correct appreciation of evidence, and, law on the point. The same do not warrant any interference and are liable to be upheld, except the modification, that the substantive sentences, shall run concurrently. 16. For the reasons recorded above, Criminal Appeal No. 478-SB of 1993 filed by Ganga Ram and Balwinder Singh alias Bajinder Singh, and Criminal Appeal No. 8-SB of 1994, filed by Vikram Singh alias Biram Singh, are dismissed, with the modification, aforesaid, that the substantive sentences awarded to the appellants, shall run concurrently. The judgment of conviction and the order of sentence are upheld. If the appellants are on bail, their bail bonds shall stand cancelled. The Chief Judicial Magistrate, Rewari, shall take necessary steps to comply with the judgment, with due promptitude, keeping in view the applicability of the provisions of Section 428 of Code of Criminal Procedure. September 29, 2008. (SHAM SUNDER) AMODH JUDGE