Harjit Singh vs State of Punjab

Kanwaljit Singh Ahluwalia, J.—The instant appeal has been instituted by Harjit Singh son of Amarjit Singh, against the judgment dated 29.4.2009 rendered by the Court of Additional Sessions Judge (Ad hoc), Fast Track Court, Gurdaspur, whereby he was found guilty of offence u/s 376 IPC and vide a separate order of even date, he was sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 2,000/-, in default whereof, to further undergo rigorous imprisonment for a period of six months.

The appellant was named as an accused in case FIR No. 35 dated 18.2.2006, registered at Police Station Sadar, Gurdaspur, u/s 376 IPC.

To recapitulate the brief facts, it will be necessary to refer to the contents of FIR Ex.PW.5/B:

On 18.2.2006, when PW.5 Ravinder Singh, Sub Inspector, along with his companion police officials, was present at Gurala bye-pass falling within the jurisdiction of Police Station Sadar, Gurdaspur, at about 10.25 P.M. the prosecutrix (name is withheld to protect her identity) along with her mother PW.1 Soma Devi and PW.2 Bachan Singh, Member Panchayat, appeared and made statement Ex.PW.3/A, on the basis of which FIR was recorded. The prosecutrix, in her statement stated that she was a resident of village Singhpura, Police Station Dhariwal and her parental house was in village Gurala. Her younger sister was to be married and for attending the same she had come to her parental village. At about 9.15 P.M. She had gone to neighbourers to invite them for ladies'' sangeet. When she was returning and reached near the house of Thomas Masih son of Rana Masih, then he and Harjit Singh son of Amar Singh, caste Mazbi, of her village had met her. Harjit Singh had gagged her mouth with his hands and both of them took the prosecutrix in the nearby fields. Thomas Masih removed her salwar. Firstly Thomas had committed sexual intercourse with her against her will, thereafter, Harjit Singh did so. At that time, one cow came running in the fields and on hearing the noise, both of them ran away out of fear. In the same condition, she came to her house and narrated the incident to her mother. Her mother Soma Devi called Bachan Singh, Member Panchayat, to their house and narrated the whole episode. Thereafter, the prosecutrix along with her mother and said Bachan Singh were going to Police Station when Ravinder Singh, Sub Inspector, had met them in the way. She prayed that legal action be taken against Thomas Masih and Harjit Singh.

The above said FIR was investigated and the report u/s 173 Cr.P.C. was submitted.

Accused Thomas Masih had claimed himself to be a juvenile and after an enquiry was held, he was sent up for trial before the Juvenile Justice Board.

The case along with the appellant was committed to the Court of Sessions and the same was entrusted to the Court of Additional Sessions Judge (Ad hoc), Fast Track Court, Gurdaspur, for trial.

The trial Court framed charge against the appellant on 28.7.2007 that on 18.2.2006at about 9.15 P.M., in the area of village Gharala, the appellant had committed rape with the prosecutrix against her wishes and thereby committed an offence punishable u/s 376 IPC. The appellant pleaded not guilty and claimed trial.

PW.8 Dr. Artinder Kaur Dhillon had medicolegally examined the prosecutrix on 19.2.2006 at about 11.35 A.M. The vagina of prosecutrix admitted two fingers. There was no mark of injury on any part of her body including face, breast, thighs, abdomen etc. As per the report of Chemical Examiner Ex.PX, spermatozoa was found on the swab taken from posterior fornix and from introitus. In cross-examination, this witness has stated that the possibility of artificial insemination of spermatozoa cannot be ruled out.

Since the doctor had opined that the possibility of rape with the prosecutrix cannot be ruled out, therefore, in answer to a question put in cross-examination, she stated that the presence of spermatozoa is only an indication regarding the possibility of rape and it is not a certain.

PW.10 Dr. Harbhajan Ram, on 20.2.2006, had medicolegally examined the appellant and his co-accused Thomas Masih. As per the report submitted by the doctor Ex.PW.5/F, there was nothing to suggest that the appellant was incapable of performing sexual intercourse.

Soma Devi, mother of the prosecutrix, appeared as PW.1. She stated that the marriage of her younger daughter was to be solemnized. The prosecutrix, being her eldest daughter, had come to attend the marriage and she had gone to invite the neighbourers to participate in the ladies'' sangeet. She had not come back to the house as in the way the accused had caught her and taken somewhere in the fields of wheat crop and raped her. She corroborated as to what was stated by the prosecutrix. She further stated that she called Bachan Singh, Member Panchayat and, along with him, went to lodge the report. In cross-examination, this witness stated that her daughter was married at village Singhpura with Vicky, however, at the time of deposition, she was living as a wife of Mesha son of Santokh Singh as the marriage between her daughter and Vicky was dissolved by way of panchayati compromise. She further stated that Vicky, her son-in-law, had come to attend the marriage after the ladies'' sangeet. The prosecutrix had come 15 days before the marriage of her younger sister to her parental house. The house of the accused was at a distance of about 10-15 karams from her house. At the time of marriage, the prosecutrix was aged about 18/19 years. This witness admitted in cross-examination that there was no visible mark of injuries on the face and other parts of body of her daughter when she came back, however, her clothes were stained with dust. They had only produced a salwar before the police authorities. They reached Police Station at about 11.00 P.M. She further admitted in cross-examination that on 14.6.2008 on the last date of hearing, her daughter had sought to compromise the matter with the family of accused-appellant Harjit Singh. The uncle of the accused-appellant had sought date for compromise but the parents of accused-appellant had not approached her for compromise. Rather they quarreled with her daughter.

PW.2 Bachan Singh also supported the prosecution version and narrated as to what was told to him. This witness was to corroborate the testimony of prosecutrix.

The prosecutrix herself appeared as PW.3. She identified the present appellant, who was present in the Court. It was stated that she was known to him as he was the resident of the village. She reinstated as to what was stated in the FIR. She further submitted that her statement Ex.PW.3/A was recorded by the police. Thereafter, she had accompanied the police party to the spot in the wheat crop fields where the rape was committed with her. She had handed over the salwar which was taken into possession by the police party after preparing a parcel and memo Ex.PW.3/B. In cross-examination, she stated that she had come from village Singhpura where she has been residing as a wife of Vicky. She further stated that Mesha son of Santokh Singh was not known to her. She admitted that she had taken a divorce from Vicky six months ago. She stated that the divorce was effected due to the intervention of Panchayat. She further admitted that at the time of registration of the case, she was living with Mesha son of Santokh Singh. She further stated that her mother and other relatives used to invite women folk in the neighbourhood for ladies'' sangeet everyday. The invitation was also extended for next date after ladies'' sangeet was over. She further admitted that there was no visible injury on her face and other parts of her body and her shirt was smeared with mud.

PW.4 Sewa Singh, Head Constable, had taken the special reports to the Illaqa Magistrate and other officers. He stated that the special report was delivered at the instance of Illaqa Magistrate at 12.15 in the night.

PW.5 Ravinder Singh, Sub Inspector, who had recorded the statement of prosecutrix Ex.PW.3/A, had also investigated the case. He proved various facets of the investigation. This witness, in cross-examination, admitted that the prosecutrix, her mother Soma Devi and Bachan Singh, Member Panchayat, had not produced broken bangles, chunni, under shirt, underwear and shoes etc., of the prosecutrix before him in the area of Gharala bye-pass where the statement of prosecutrix was recorded.

PW.6 Ramesh Rai, retired Head Teacher, Government Primary School, Gharala, proved the date of birth of prosecutrix from the school record as 19.5.1987. This witness also stated that Harjit Singh, present appellant, had also studied in the same school.

PW.7 Joginder Pal, Head Constable, had attested recovery memo Ex.PW.3/B whereby salwar of the prosecutrix was recovered from the fields in the presence of the prosecutrix.

PW.9 Hazara Singh, Constable, had taken the swabs to the laboratory of Chemical Examiner.

PW.11 Parsin Singh, Sub Inspector, proved registration of formal FIR Ex.PW.5/B and sending of the report to the Illaqa Magistrate.

PW.12 Rajinder Singh, Moharrir Head Constable, proved deposition of salwar in the malkhana and sending of the same to the office of the Chemical Examiner.

PW.13 Raman Mahajan, Patwari, Halqa Dalla Goria, had prepared the scaled site plan Ex.PW.13/A.

Thereafter, the prosecution had closed its evidence.

The statement of accused was recorded u/s 313 Cr.P.C. He denied all the incriminating circumstances and pleaded false implication due to party faction. The accused stated that he belonged to a faction which was politically opposing PW.2 Bachan Singh.

DW.1 Dalbir Singh stated that he knew Soma Devi and the prosecutrix. The prosecutrix was having three children and on the fateful day, no occurrence had taken place.

DW.2 Pal Singh stated that Harjit Singh was his son. This witness was examined to assail the assertion of the prosecutrix. This witness further stated that they were not on visiting terms with the family of the prosecutrix, therefore, inviting the family of his son was ruled out.

DW.3 Amrik Singh stated that Harjit Singh and his family members were his staunch supporters and he was opposing Sat Pal, Ex-Sarpanch and Bachan Singh, Ex-Member Panchayat.

I have heard Mr. R.S. Malhotra, Advocate, appearing for the appellant and Mr. Mehardeep Singh, Deputy Advocate General, Punjab, appearing for the State.

Learned Counsel for the appellant has laid much emphasis on the fact that there was no injury on the body of prosecutrix. Therefore, it is urged that the prosecutrix was the consenting party. To fortify this submission, reliance has been placed upon a judgment rendered in Kuldeep K Mahato v. State of Bihar 1998 (3) RCR 493. It was further submitted that the prosecutrix had not resisted to, otherwise, there had to be signs of struggle, scratches and bruises on her body. Since as per medical evidence, there was neither any injury on her external part of her body nor on her private parts, therefore, story of the rape being improbable is to be discarded. To support this contention, a reliance has been placed upon the judgment rendered in Kamaljit Singh v. State of Punjab 2007 (4) RCR 178. It has been further contended that the vagina of the prosecutrix admitted two fingers easily, therefore, she was habitual of sexual intercourse and absence of external or internal marks of injuries belies prosecution version. To support this contention, a reliance has been placed upon the judgments rendered in Motha Singh and Anr. v. State of Punjab 2008(2) RCR 160, Om Pal v. State of Haryana 2008(2) RCR 411, and Raja alias Dharamraj v. State of Haryana Recent Criminal Reports 183.

I am not impressed by the arguments advanced by learned Counsel for the appellant. In the present case, the occurrence had taken place on 18.2.2006 at about 9.15 P.M. On the same day at about 10.35 P.M., statement of the prosecutrix Ex.PW.3/A was recorded by PW.5 Ravinder Singh, Sub Inspector, on the basis of which formal FIR Ex.PW.5/B was registered at Police Station Sadar, Gurdaspur, at about 11.00 P.M. The special report, as per PW.4 Sewa Singh, Head Constable, had reached the Illaqa Magistrate at about 12.15 A.M. It was one of the most prompt FIR. In the present case, FIR was not only promptly recorded but the special report had also reached the Illaqa Magistrate within three hours of the occurrence. This Court cannot loose sight of the fact that the prosecutrix was raped by two persons. Her mouth was gagged., She was taken to the fields in the month of February, whereas wheat crop is to be harvested in the month of April. The prosecutrix was laid forcibly upon the wheat crop. The possibility of the injuries on her body parts is rare. The version projected by the accused-appellant that due to party faction, he was prosecuted in the present case especially at the instance of PW.2 Bachan Singh, is to be rejected outrightly.

The prosecutrix is a married lady. The fact that her vagina admitted two fingers loosely will not impeach her credentials.

The Hon''ble Apex Court in State of Maharashtra Vs. Chandraprakash Kewalchand Jain, has 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.

The observation of the Hon''ble Apex Court has been followed by this Court in Taqdir Singh v. State of Haryana (Criminal Appeal No. 691-SB of 1998 decided on 23.2.2010). This Court can also not ignore of the fact that on the swabs sent to the Chemical Examiner, spermatozoa was found. The version of the prosecutrix is not only corroborated by the report of Chemical Examiner Ex.PX but also by PW.1 Soma Devi and PW.2 Bachan Singh.

Therefore, taking into consideration the entire conspectus of the case and the observation of the Hon''ble Apex Court, this Court is of the view that there is no merit in the present appeal and the same is hereby dismissed.