Harbans Singh alias Gaggar vs State of Punjab

Kanwaljit Singh Ahluwalia, J.—Present appeal preferred by Harbans Singh alias Gaggar is directed against the impugned judgment dated 8th May, 2006 rendered by Sessions Judge, Bathinda, whereby the appellant along with his co-accused Gurvinder Singh was held guilty of offence u/s 376(g) IPC and was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 2000/- each, in default of payment of fine to further undergo rigorous imprisonment for six months.

The appellant was named as accused in case FIR No. 59 dated 16.05.2005 registered at Police Station Dialpura along with his co-accused Gurvinder Singh. As per the report submitted by the Registry, Gurvinder Singh has not filed any appeal.

Brief facts of the case can be noticed from the FIR Ex.PD/2, which was registered on the basis of statement Ex.PD made by the prosecutrix (whose name has been withheld to protect her identity). Prosecutrix stated that she was a resident of village Machani Kalan. About 7/8 months ago she was married with Jagsir Singh son of Sardara Singh, caste Jat, resident of village Bhagta Bhai Ka. Her husband was employed in Haryana and used to visit the village after 15/20 days. She was residing along with her mother-in-law Karnail Kaur. Adjoining to the house of the prosecutrix was the house of Darshan Singh, name of whose eldest son was Gurvinder Singh. On 14th May, 2005 as a daily routine, after finishing meals, the prosecutrix slept in the courtyard along with her mother-in-law. At about 10.00 p.m., both of the accused, i.e. Gurvinder Singh son of Darshan Singh and Harbans Singh alias Gaggar son of Buta Singh entered the house. Gurvinder Singh gagged the mouth of the prosecutrix and Harbans Singh switched off the light. Both of them said that in case prosecutrix raised a noise, she will be killed. Gurvinder Singh caught hold of the arms of prosecutrix and Harbans Singh, without the consent of the prosecutrix, opened the string of her Salwar and forcibly committed sexual intercourse with her. Thereafter, Gurvinder Singh did the same and both went away after scaling the wall. Meanwhile, mother-in-law of the prosecutrix also reached at the spot. The entire incident was disclosed to her. The mother-in-law advised the prosecutrix to keep mum and her husband Jagsir Singh was called. Jagsir Singh reached and the entire incident was also narrated to him. He brought the prosecutrix to Civil Hospital, Bathinda, where a lady doctor examined her and her statement was recorded by the police.

In the present case, occurrence had taken place on 14th May, 2005 at about 10.00 p.m., whereas the prosecutrix got her statement recorded to SI Rajinder Kumar, In charge, Police Post, Bhagta on 16th May, 2005 at 5.00 p.m. at Civil Hospital, Bathinda.

The above said FIR was investigated and report u/s 173 Cr.P.C. was submitted. Case and the accused were committed to the Court of Sessions Judge, Bathinda. The Sessions Judge, Bathinda on 2nd September, 2005 charged the appellant along with his co-accused Gurvinder Singh for offence punishable u/s 376(g) IPC. The charge stated that both the accused on 14th May, 2005 at about 10.00 p.m. in the area of Bhagta Bhai Ka, District Bathinda committed rape upon the prosecutrix without her consent. The accused pleaded not guilty and claimed trial.

Dr. Navdeep Kaur PW-1 deposed that on 16th May, 2005 she medico legally examined the prosecutrix at 1.55 p.m. The medical examination and the observations made by the doctor read as under:

On examination: Auxiliary and pubic hair were well developed. Breasts are well developed. No mark of any injury on breasts. No mark of any injury on any other part of the body.

On local examination: Vulva well developed. No mark of any injury. No oedoma, no la-ceration. No bleeding found. Hymen is absent.

On vaginal examination: Vagina admits two fingers without discomfort. Uterus is retroverted normal size. No tenderness. No bleeding was present. Two vaginal swabs were taken and sent for examination, Sperm and spermatozoa after seal. Clothes are not sealed as she has already changed them according to her.

I have seen carbon copy of MLR Ex.PA. It is correct as per record brought by me today in the Court. It is signed by me and is correct. An intimation Ex.PB was sent to the SHO PS Civil Lines, Bathinda regarding arrival of prosecutrix (name withheld). On receipt of the report from Chemical Examiner Pb. Ex.PC, I gave my opinion Ex.PC/1 and sent the same to SHO PS Dialpura & Bathinda. In my opinion possibility of sexual intercourse cannot be ruled out. I have seen prosecutrix in the Court. She is the same girl to which I medico legally examined.

The report of the Chemical Examiner was brought on record as Ex.PC. It was opined that the vaginal swabs contained spermatozoa. In cross-examination, this witness stated that there was no mark of injury or any sign, which could prove resistance on the part of the prosecutrix.

Dr. Amarjit Singh PW-3 examined both the accused and stated that there was nothing to suggest that the accused were not able to perform sexual intercourse.

The prosecutrix herself appeared as PW-2 and reiterated as to what was stated in the FIR. She stated that she was sleeping in the courtyard, whereas her mother-in-law was sleeping on the roof of the house. She had completely slept when both the accused came. She further stated that the accused Gurvinder Singh was her neighbour, whereas Harbans Singh was residing in front of her house. In cross examination, she denied the suggestion that in the month of Vaisakh, she had gone to her in-laws house. She also denied the suggestion that she was not present in her matrimonial house on 14th May, 2005. She further admitted that nobody caught hold of her from her legs. She stated that when Harbans Singh committed rape upon her, she tried to resist by giving kick blows. She denied the suggestion that she was calling both the accused to her house previously.

SI Mohan Singh PW-4 stated that on 26th May, 2005 he was posted at Police Station Dialpura. Both the accused had surrendered in the Court of Illaqua Magistrate, Bathinda and their formal arrest was effected.

Constable Gurcharan Singh PW-5 and MHC Partap Singh PW-6 tendered their affidavits Ex.PJ and Ex.PK respectively, to prove link evidence.

SI Rajinder Kumar PW-7 proved recording of statement Ex.PD and registration of the case and formal FIR Ex.PD/2. This witness further stated that on 19th May, 2005, he had inspected the spot and had recorded statement of Karnail Kaur, mother-in-law of the prosecutrix. In cross-examination, this witness admitted that the house of the prosecutrix was surrounded by various residential houses and the house of the prosecutrix was at a distance of 50/60 karams from the police post. The boundary wall of the house of the prosecutrix was 10/12 feet in height and there was only one gate, which was made of iron. However, this witness further admitted that a wall of the house of Gurvinder Singh is common with that of the prosecutrix.

Thereafter prosecution closed its evidence and statements of the accused u/s 313 Cr.P.C. were recorded and all incriminating circumstances were put to them. They denied the same and pleaded false implication. The appellant Harbans Singh gave his version as under:

I am innocent. I have been falsely implicated in this case, as I used to help my co-accused regarding his dispute with Jagsir Singh, husband of the prosecutrix. I am a married person having children. Prosecutrix is a lady of immoral character and whole of the village Panchayat as well as the respectables have the knowledge about the said fact.

In defence, the accused examined Harvel Singh DW-1. This witness stated that he had remained a member of the Panchayat of the village for 32 years. He had also remained a member of the Market Committee. He stated that the prosecutrix was married to Jagsir Singh about one year before the occurrence. Jagsir Singh used to come to the village after a spell of 3/4 months. Prosecutrix was turned out of her house by her mother-in-law and husband due to her immoral activities and after a spell of 2/3 months, on the request made by the parents of the prosecutrix, she was rehabilitated in her matrimonial house. About 12 months before the deposition, mother-in-law Karnail Kaur came to the house of this witness and stated that she found Gurvinder Singh and the prosecutrix in a compromising position. This witness confronted the prosecutrix, who disclosed that since her husband used to remain away from the house, therefore, she used to call Gurvinder Singh. This witness advised Karnail Kaur to call the husband of the prosecutrix. The police came on the third day and a case was registered. This witness further stated that the house of prosecutrix had a big boundary wall and an iron gate was also affixed. However, in cross examination, he stated that after registration of the case and arrest of the accused, he had not submitted any application before any authority.

I have heard counsel for the parties.

Mr.S.S. Chahal, Advocate appearing for the appellant, has advanced following four arguments:

(a) Firstly, it is stated that the occurrence, in the present case, allegedly took place on 14th May, 2005 at about 10.00 p.m., whereas statement of the prosecutrix was recorded on 16th May, 2005 at 5.00 p.m., the case was registered on the same day and the special report also reached Illaqua Magistrate on the same day at 8.15 p.m. It is submitted that there is a delay of two days in lodging of the report and the same was used for consultations and deliberations to concoct a false version.

(b) Secondly, it is submitted that no injury had been found on the person of the prosecutrix, therefore, it should be assumed that she was a consenting party. It is stated that there was no abrasion, bruise, contusion or scratch on the body of the prosecutrix, therefore, no resistance was offered by the prosecutrix as there are no signs of struggle.

(c) Thirdly, it is submitted that the prosecutrix was not having a good character, therefore, the present appellant has been falsely implicated. Once Karnail Kaur, mother-in-law of the prosecutrix also found her in a compromising position with Gurvinder Singh co-accused of the appellant.

(d) Lastly, learned Counsel has submitted that non-examination of Jagsir Singh husband and Karnail Kaur mother-in-law of the prosecutrix should be considered adverse to the prosecution, as not only corroboration is lacking to the testimony of the prosecutrix but the material witnesses have also been withheld from this Court.

Mr. Mehardeep Singh, Deputy Advocate General, Punjab, appearing for the State, has submitted that the testimony of the prosecutrix PW-2 aspires confidence and can be relied upon without any corroboration.

I have given my thoughtful consideration to the rival submissions made by counsel for the parties.

The Hon''ble Apex Court, in State of Maharashtra Vs. Chandraprakash Kewalchand Jain, , observed as under:

It is necessary at the outset to state what the approach of the court should be while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex 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. Under the said statute ''Evidence'' means and includes all statements which the court permits or requires to be made before it by witnesses, in relation to the matters of fact under inquiry. u/s 59 all facts, except the contents of documents, may be proved by oral evidence. Section 118 then tells us 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 shall be a competent witness against an accused person; and a 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 u/s 133, which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence is not illegal although in view of Section 114, illustration (b), 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).

A prosecutrix of a sex offence cannot be put 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 u/s 118 and her evidence must receive the same weight as is 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 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 requires it to look for corroboration. If for some 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 required 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 a 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.

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 a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as 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, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing. An 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 societal norms. The standard of proof to be expected 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 a woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity.

In the light of the observations made by the Hon''ble Apex Court above, due credence ought to be given to the testimony of the prosecutrix. It is common knowledge that an Indian woman waits for arrival of her husband and does not come out of her house to lodge an FIR until a decision to this effect is taken by her husband. This Court cannot ignore the observations made by Hon''ble Apex Court in Chandraprakash Kewalchand Jain''s case (supra) that since reputation of the lady and her family is involved, prosecutrix is hesitant to come forward to lodge a report.

In Gita Ram Vs. State of Himachal Pradesh, , Himachal Pradesh High Court has held that the delay in lodging of the report is of no consequence in a case of rape. In Gita Ram''s case (supra), reliance has been placed upon a judgment of Hon''ble Apex Court rendered in State of Punjab Vs. Gurmit Singh and Others, . Furthermore, when two persons commit gang-rape the prosecutrix is immobilized and the possibility of receiving any injury on any internal or external part of her body is not necessary.

In ''Karnel Singh v. State of M.P.'' 1995 (3) RCR (Criminal) 526, it was observed as under:

...The submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false. The reluctance to go to the police is because of society''s attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathize with her. Therefore, delay in lodging complaints in such cases does not necessarily indicate that her version is false.

In these circumstances, the arguments advanced by counsel for the appellant will not cut much eyes. Non-examination of Jagsir Singh husband and Karnail Kaur mother-in-law of the prosecutrix is not sufficient to brush aside the testimony of the prosecutrix, which aspires confidence.

Hence, there is no merit in the present appeal and the same is hereby dismissed.