Case: State of Punjab Vs. Gurmit Singh and Others

alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.There has been lately, lot of criticism of the treatment of the victims of sexual assault in the court during their cross-examination. The provisions of Evidence Act regarding relevancy of facts notwithstanding, some defence counsel adopt the strategy of continual questioning of the prosecutrix as to the details of the rape. The victim is required to repeat again and again the details of the rape incident not so much as to bring out the facts on record or to test her credibility but to test her story for inconsistencies with a view to attempt to twist the interpretation of events given by her so as to make them appear inconsistent with her allegations. The Court, therefore, should not sit as a silent spectator while the victim of crime i being cross-examined by the defence. It must effectively control the recording of evidence in the Court. While every latitude should be given to the accused to test the veracity of the prosecutrix and the credibility of her version through cross-examination, the court must also ensure that cross-examination is not made a means of harassment or causing humiliation to the victim of crime. A victim of rape, it must be remembered, has already undergone a traumatic experience and if she is made to repeat again and again, in unfamiliar surroundings, what she had been subjected to, she may be too ashamed and even nervous or confused to speak and her silence or a confused stray sentence may be wrongly interpreted as "discrepancies and contradictions" in her evidence. 20. The alarming frequency of crime against women led the Parliament to enact Criminal Law (Amendment) Act, 1983 [Act 43 of 1983] to make the law of rape more realistic. By the Amendment Act, Sections 375 and 376 were amended and certain more penal provisions were incorporated for punishing such custodians who molest a women under their custody or care. Section 114-A was also added in the Evidence Act for drawing a conclusive presumption as to the absence of consent in certain prosecutions for rape, involving such custodians. Section 327 of the Code of Criminal Procedure which deals with the right of an accused to an open trial was also amended by addition of sub-sections 2 and 3 after re-numbering the old Section as sub-section (1). Sub-sections 2 and 3 of Section 327 Cr. P.C. provide as follows:Section 327. Court to be open - (2) Notwithstanding anything contained in sub-section (1), the inquiry into and trial of rape or an offence under Section 376, Section 376-A, Section 376- B, Section 376-C or Section 376-D of the Indian Penal Code shall be conducted in camera: 21. Provided that the presiding judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or buildingused by the Court. (3) Where any proceedings are held under sub-section (2), it shall not be lawful for any person to print or publish any matter in relation to any such proceedings, except with the previous permission of the Court." 22. These two provisions are in the nature of exception to the general rule of an open trial. Inspite of the amendment, however, it is seen that the trial courts either are not conscious of the amendment or do not realise its importance for hardly does one come across a case where the enquiry and trial of a rape case has been conducted by the court in camera. The expression that the inquiry into and trial of rape "shall be conducted in camera" as occurring in sub-section (2) of Section 327 Cr. P.C. is not only significant but very important. It casts a duty on the Court to conduct the trial of rape cases etc. invariably "in camera". The Courts are obliged to act in furtherance of the intention expressed by the Legislature and not to ignore its mandate and must invariably take recourse to the provisions of Section 327 (2) and (3) Cr. P.C. and hold the trial of rape cases in camera. It would enable the victim of crime to be a little comfortable and answer the questions with greater ease in not too familiar a surroundings. Trial in camera would not only be in keeping with the self-respect of the victim of crime and in tune with the legislative intent but is also likely to improve the quality of the evidence of a prosecutrix because s he would not be so hesitant or bashful to depose frankly as she may be in an open court, under the gaze of public. The improved quality of her evidence would assist the courts in arriving at the truth and sifting truth from falsehood. The High Courts would therefore be well advised to draw the attention of the trial courts to the amended provisions of Section 327 Cr. P.C. When trials are held in camera, it would not be lawful for any person to print or publish any matter in relation to t he proceedings in the case, except with the previous permission of the Court as envisaged by Section 327 (3) Cr. P.C. This would save any further embarrassment being caused to the victim of sex crime. Wherever possible it may also be worth considering whether it would not be more desirable that the cases of sexual assaults on the females are tried by lady Judges, wherever available, so that the prosecutrix can make her statement with greater ease and assist the Courts to properly discharge their duties, without allowing the truth to be sacrificed at the altar of rigid technicalities while appreciating evidence in such cases. The Courts should, as far as possible, avoid disclosing the name of the prosecutrix in their orders to save further embarrassment to the victim of sex crime. The anonymity of the victim of the crime must be maintained as far as possible throughout.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The grounds on which the trial court disbelieved the version of the prosecutrix are not at all sound. The findings recorded by the trial court rebel against realism and lose their sanctity and credibility. The court lost sight of the fact that the prosecutrix is a village girl.She was a student of Xth Class. It was wholly irrelevant and immaterial whether she was ignorant of the difference between a Fiat, an Ambassador or a Master car. Again, the statement of the prosecutrix at the trial that she did not remember the colour of the car, though she had given the colour of the car in the FIR was of no material effect on the reliability of her testimony. No fault could also be found with the prosecution version on the ground that the prosecutrix had not raised an alarm while being abducted.are in respectful agreement with the above exposition of law. In the instant case our careful analysis of the statement of the prosecutrix has created an impression on our minds that she is a reliable and truthful witness. Her testimony suffers from no infirmity or blemish whatsoever. We have no hesitation in acting upon her testimony alone withoutlooking for any `corroboration. However, in this case there is ample corroboration available on the record to lend further credence to the testimony of themedical evidence has lent full corroboration to the testimony o f the prosecutrix. According to PW1 lady Doctor Sukhvinder Kaur she had examined the prosecutrix on 2.4.84 at about 7.45 p.m. at the Primary Health Center, Pakhowal, and had found that "her hymen was lacerated with fine rediate tears, swollen and painful". The pubic hair were also found mated. She opined thatintercourse with the prosecutrix could be "one of the reasonfor the laceration of the hymen" of the prosecutrix. She also opined that the "possibility cannot be ruled out t hat (prosecutrix) was not habitual ofearlier to her examination by her on 2.4.84". During herthe lady doctor admitted that she had not inserted her fingers inside the vagina of the prosecutrix during theexamination but that she had put a vaginal speculum for taking the swabs from the posterior vaginal fornix for preparing the slides. She disclosed that the size of the speculum was about two fingers and agreed with the suggestion made to her during herthat "if the hymen of a girl admits two fingers easily, the possibility that such a girl was habitual to sexualcannot be ruled out". However, no direct and specific question was put by the defence to the lady doctor whether the prosecutrix in the present case could be said to be habituated to sexual intercourse and there was no challenge to her statement that the prosecutrix `may not have been subjected to sexual intercourse earlier. No enquiry was made from the lady doctor about the tear of the hymen being old. Yet, the trial court interpreted the statement of PW1 Dr.Sukhwinder Kaur to hold that the prosecutrix was habituated to sexualsince the speculum could enter her vagina easily and as such she was "a girl of loose character". There was no warrant for such a finding and the finding if we may say so with respect, is a wholly irresponsible finding. In the face of the evidence of PW1, the trial court wrongly concluded that the medical evidence had not supported the version of the prosecutrix.The trial court totally ignored the report of the Chemical Examiner Ex. PM, according to which semen had been found on the slides which had been prepared by the lady doctor from the vaginal secretions from the posterior of the vaginal fornix of the prosecutrix. The presence of semen on the slides lent authentic corroboration to the testimony of the prosecutrix. This vital evidence was foresaken by the trial court and as a result wholly erroneous conclusions were arrived at. Thus, even though no corroboration is necessary to rely upon the testimony of the prosecutrix, yet sufficient corroboration from the medical evidence and the report of the chemical examiner is available on theher statement has been fully supported by the evidence of her father, Tirlok Singh, PW6 and her mother Gurdev Kaur, PW7, to whom she had narrated the occurrence soon after her arrival at her house. Moreover, the unchallanged fact that it was the prosecutrix who had led the investigating officer to the Kotha of the tubewell of Ranjit Singh, where she had been raped, lent aassurance that the charge levied by her was "genuine" rather than "fabricated" because it is no ones case that she knew Ranjit Singh earlier or had ever seen or visited the kotha at his tubewell. The trial court completely overlooked this aspect. The trial court did not disbelieve that the prosecutrix had been subjected to sexual intercourse but without any sound basis, observed that the prosecutrix might have spent the "night" in the company of some "persons" and concocted the story on being asked by her mother as to where she had spent the night after her maternal uncle, Darshan Singh, came toto enquire about the prosecutrix. There is no basis for the finding that the prosecutrix had spent the nig ht in the company of "some persons" and had indulged in sexual intercourse with them of her own free will. The observations were made on surmises and conjecturesthe prosecutrix was condemned unheard.The trial court was of the opinion that it was a `false case and that the accused had been implicated on account of enemity. In that connection it observed that since Trilok Singh PW6 had given beating to Gurmit Singh on 1.4.84 suspecting his hand in the abduction of his daughter and Gurmit Singh accused and his elder brother had abused Trilok Singh and given beating to Tirlok Singh PW6 on 2.4.84, "it was very easy on the part of Trilok Singh to persuade his daughter to name Gurmit Singh so as to take revenge". The trial court also found that the relations between the family of Gurmit Singh and of the prosecutrix were strained on account of civil litigation pending between the parties for 7/8 years prior to the date of occurrence and that was also the `reason to falsely implicate Gurmit Singh. Indeed, Gurmit Singh accused in his statement under Section 313 Cr. P.C. did raise such a plea but that plea has remained unsubstantiated. Trilok Singh PW6 categorically denied that he had any litigation with the father of Gurmit Singh at all and went on to say that no litigation had ever taken place between him and Mukand Singh father of Gurmit singh over a piece of land or otherwise. To the similar effect is the statement of Gurdev Kaur PW7 who also categorically stated that there had been no litigation between her husband and Mukand Singh father of Gurmit Singh.The trial court ignored this evidence and found support for the plea of the accused from the statement of t he prosecutrix in which during the first sentence of hershe admitted that litigation was going on between Mukund Singh father of Gurmit Singh and her father for the last 8/9 years over a piece of land. In what context the statement was made is not clear. Moreover, the positive evidence of PW6 and PW7 that there was no litigation pending between PW6 and PW7 that there was no litigation pending between PW6 and the father of Gurmit Singh completely belied the plea of the acc used. If there was any civil litigation pending between the parties as alleged by Gurmit Singh he could have produced some documentary proof in support thereof but none was produced. Even Mukand Singh, father of Gurmit Singh did not appear in the witness box to support the plea taken by Gurmit Singh. The allegation regarding any beating given to Gurmit Singh by PW6 and to PW6 by Gurmit Singh and his brother was denied by PW6 and no material was brought forth in support of that plea either and yet the trial court for undisclosed reasons assumed that the story regarding the beating was correct. Some stray sentences in the statement of the proseuctrix appear to have been unnecessarily blown out of all proportion to hold t hat "admittedly" PW6 had been given given beating by Gurmit Singh accused and that there was civil litigation pending between the father of the prosecutrix and the father of Gurmit Singh to show that the relations between the parties were enemical. There is no acceptable material on the record to hold that there was any such civil litigation pending between the parties. Even if it be assumed for the sake of argument that there was some such litigation, it could hardly be a ground f or a father to put forth his daughter to make a wild allegation of rape against the son of the opposite party, with a view to take revenge. It defies human probabilities. No father could stoop so low as to bring forth a false charge of rape on his unmarried minor daughter with a view to take revenge from the father of an accused on account of pending civil litigation. Again, if the accused could be falsely involved on account of that enemity, it was equally possible that the accused could have sexually assaulted the prosecutrix to take revenge from her father, for after all, enemity is a double edged weapon, which may be used for false implication as well as to take revenge. In any case, there is no proof of the existence of such enemity between PW6 and the father of Gurmit Singh which could have prompted PW6 to put up his daughter to falsely implicate Gurmit Singh on a charge of rape. The trial court was in error to hold that Gurmit Singh had been implicated on account of enemity between the two families and for the beating given by Gurmit Singh and his brother to PW6, in retaliation of the beating given by PW6 to Gurmit Singh on 1.4.1984. Similarly, so far as Jagjit Singh respondent is concerned, the tri al court opined that he could have been got implicated at the instance of the Sarpanch of village Pakhowal, who was hostile to Jagjit Singh. The ground of hostility as given by Jagjit Singh against the Sarpanch of village Pakhowal stems out of t he fact that the sarpanch was annoyed with him for marrying a Canadian girl in the village Gurdwara. There is no evidence whatsoever on the record to show that the Sarpanch of village Pakhowal had any relationship of connection with the pro secutrix or her father or was in any way in a apposition to exhert so much of incluence on the prosecutrix or her family, that to settle his score Trilok Singh PW6 would put forward his daughter to make a false allegation of rape and thereby jeopardise her own honour and future prospects of her marriage etc. The plea of Jagjit Singh alias Bawa like that of Gurmit Singh did not merit acceptance and the trial court erroneously accepted the same without any basis. The Plea of the accused was a plea of despair not worthy of any credence. Ranjit Singh, apart from stating that he had beenfalsely implicated in the case did not offer any reasons for his false implication. It was at his tubewell kothe that rape had been committed on the prosecutrix. She had pointed out that kotha to the police during investigation. No ostensible rason has been suggested as to why the prosecutrix would falsely involve Ranjit Singh for the commission of such a heinous c rime and nominate his kotha as the place where she had been subjected to sexual molestation by the respondents. The trial court ignored that it is almost inconceivable that an unmarried girl and her parents would go to the extent of staking their reputation and future in order to falsely set up a case of rape to settle petty scores as alleged by Jagjit Singh and Gurmit Singh respondents.From the statement of the prosecutrix, it clearly emerges that she was abducted and forc ibly subjected to sexual intercourse by the three respondents without her consent and against her will. In this fact situation the question of age of the prosecutrix would pale into insignificance. However, in the present case, there is evidence on the record to establish that on the date of the occurrence, the prosecutrix was below 16 years of age. The prosecutrix herself and her parents deposed at the trial that her age was less than 16 years on the date of the occu rrence. Their evidence is supported by the birth certificate Ex. PJ. Both Tirlok Singh PW6 and Gurdev Kaur PW7, the father and mother of the prosecutrix respectively, explained that initially they had named their daughter, the prosecutrix, as Mahinder Kaur but her name was changed to .... (name omitted), as according to The holy Guru Granth Sahib her name was required to start with the word "chhachha" and therefore in the school leaving certificate her name was correctly given. There was nothing to disbelieve the explanation given by Trilok Singh and Gurdev Kaur in that behalf. The trial court ignored the explanation given by the parents observing that "it could not be swallowed being a belated one". The trial court was in error. The first occasion for inquiring from Trilok Singh PW6 about the change of the name of the prosecutrix was only at the trial when he was asked about Ex. PJ and there had been no earlier occasion for him to have made any such statement. It was, therefore, not a belatedapart, even according to the lady doctor PW1, the clinical examination of the prosecutrix established that she was less than 16 years of age on the date of the occurrence. The birth certificate Ex. PJ was not only supported by the oral testimony of Trilok Singh PW6 and Gurdev Kaur PW7 but also by that of the school leaving certificate mark `B. With a view to do complete justice, the trial court could have summoned the concerned official from the school to prove various entries in the school leaving certificate.From the material on the record, we have come to an unhesitating conclusion that the prosecutrix was less than 16 years of age when she was made a victim of the lust of the respondents in the manner deposed to by her against her will and without her consent. The trial court did not return any positive finding as to whether or not the prosecutrix was below 16 years of age on 30th M arch 1984 and instead went on to observe that `even assuming for the sake of argument that the prosecutrix was less than 16 years of age on 30th March 1984, it could still not help the case as she was not a reliable witness and was attempting to shield her own conduct by indulging in falsehood to implicate the respondents. The entire approach of the trial court in appreciating the prosecution evidence and drawing inferences therefrom was erroneous.The trial court not only erroneously disbelieved the prosecutrix, but quite uncharitably and unjustifiably even characterised her as a girl "of loose morals" or "such type of a girl".