Harjit Singh vs The State of Punjab

R.C. Kathuria, J.—This appeal is directecd against the judgment dated 11.1.1990 of the Additional Sessions Judge, Ferozepur convicting the appellant-accused u/s 376 of the Indian Penal Code (for short ''IPC'') and sentencing him to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs. 500/- and in default of payment of fine to undergo further rigorous imprisonment for three months and also convicting and sentencing the accused u/s 452 I.P.C. to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 100/- and in default of payment of fine to undergo further rigorous imprisonment for one month. Both the sentences were ordered to run concurrently.

The prosecution version as spelled out from the statement Ex. PE made by prosecutrix (named withheld) (PW-3) is that on 21.9.1989 at about 2.00 p.m., she was busy in washing clothes in the court yard of house located in Village Jhrur Khera. Her brother, father and mother were not present in the house as they had gone out in connection with labour work, Finding her along in the house, Harjit Singh alias Jit Singh, appellant-accused came there. He showed knife to her and asked her to go inside the house. He threatened her that if she raised alarm, she would be killed. Thereafter, he untied her Salwar and in the process tore it. Thereafter, he committed rape on her. The prosecutrix did not raise alarm because of the threat to kill her extended by the accused. Meanwhile, Rajinder Singh (PW-4), brother of the prosecutrix in the company of his uncle Sucha Singh came there. They witnessed this occurrence and tried to catch hold of the accused. Accused pushe them while showing knife of them and was successful in running away from the spot. When they were going to lodge the report. Boota Singh, father of Harjit Singh, accused came there and threatened them that if they proceeded to lodge the report, they would be killed. On the next day, the prosecutrix in the company of Sucha Singh and Mohinder Singh, Sarpanch proceeded to the Police Station to lodge the report. While they were present at the Bus Stop. Khuian Sarwa, Assistant Sub Inspector Onkar Singh (PW-5) met them. He recorded the statement of the prosecutrix Ex.PE and after making his endorsement it as Ex.PE/1 transmitted the same to the police station on the basis of which formal FIR Ex. PE/2 was recorded by ASI Ram Singh. ASI Onkar Singh took prosecutrix to Civil Hospital for medical examination. He moved application Ex. PA before the Medical Officer Dr. Sunil Alipuria (PW-1). The Medical Officer conducted the medical examination of the prosecutrix on 22.1.1989 at 2.00 p.m. and vide report Ex. PB noticed infected wound 3 cm x 0.5 cm x 0.5 cm deep on the outer aspect of left forearm 5.0 cm above the wrist. Vaginal Swab was taken and she along with clothes of the prosecutrix were handed over to ASI Onkar Singh vide recovery memo PC. Thereafter, ASI Onkar Singh went to the spot of occurrence and prepared rough site plan Ex. PH and recorded the statement of other witnesses. Accused Harjit Singh was arrested on 31.1.1989 while his co-accused Boota Singh was arrested on 3.2.1989 by the Investigating Officer. Medical Examination of accused was done on 1.2.1989 by Medical Officer Dr. Dalip Kumar (PW-2), who vide his report Ex. PD opined that there was nothing to suggest that he was incapable of doing sexual intercourse. On completion of investigation, police report was filed by SI Ram Singh. On these allegations charges under Sections 376 and 452 I.P.C. were framed against appellant-accused, Harjit Singh, while co-accused, Boota Singh, was charged u/s 506 I.P.C. Both the accused pleaded not guilty to the charges and claimed trial.

In order to link the accused with the crime, prosecution solicited the help of Dr. Sunil Alipuria (PW-1), Dr. Dalip Kumar (PW-2), prosecutrix (PW-3), Rajinder Singh (PW-4) and ASI Onkar Singh (PW-5). In addition, the prosecution tendered in evidence the affidavits of MHC Kewal Krishan and Constable Ajaib Singh, Exs. PF and PG respectively besides the report of Forensic Science Laboratory Ex. PK. When examined u/s 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Code''), the accused denied the prosecution allegation completely and furnished the reasons for his implication as under:-

"The case has been registered against me and may father at the influence of Mohinder Singh Sarpanch against whom my father had not got an enquiry order for misappropriating Rs. 2 lacs of the Panchayat fund and in that enquiry Mohinder Singh, Sarpanch was directed to deposit Rs. 50,000/- and the same was deposited. On that account the Sarpanch was inimical towards us. Earlier Jagtar Singh son of Darshan Singh had tried to molest the niece of Kikkar Singh in which my father sided with Kikkar Singh and also took the master to the Police. Jagtar Singh belongs to the party of the Sarpanch and on that account case also u/s 326 I.P.C. was registered against Darshan Singh and Jagtar Singh on one side and my father on the other side. It is false case at the instance of the Sarpanch."

Boota Singh, co-accused in his statement u/s 313 of the Code refuted the prosecution allegation and further took the stand that this case had been foisted on him and his son at the instance of Mohinder Singh, Sarpanch against whom, he had made a complaint for misappropriation of Rs. 2 lacs of the panchayat fund which had resulted in inquiry against him and said Sarpanch was made to deposit Rs. 50,000/- and for that reason he was inimical towards him. In support of the stand taken by him, he examined Iqbal Singh, Block Development Officer, Abohar (DW-1), who stated that the record of the inquiry conducted by the Additional Director, Panchayat, Chandigarh against Mohinder Singh, Sarpanch of Village Jhrur Khera was with the Additional Director, Panchayat. Amarjit Singh, Clerk in the office of Director, Rural Development and Panchayat, Punjab at Chandigarh (DW-2) produced the copy of the complaint made by Boota Singh against Mohinder Singh, Sarpanch, copy of which is Ex. DA and the inquiry report, Ex.DB.

On appraisal of the evidence led on record, the trial court came to the conclusion that possibility of false involvement of Boota Singh due to enmity with Mohinder Singh, Sarpanch could not be ruled out and for that reason giving him benefit of doubt acquitted him. At the same time, the trial Court accepted the prosecution evidence with regard to the involvement of the appellant-accused in commission of the crime and while rejecting his defence version convicted and sentenced him as stated above. Hence, this appeal.

I heard counsel for the appellant-accused as well as the State counsel at length.

Learned counsel representing the appellant- accused assailed the reliability of the prosecution evidence on several grounds. In the forefront, it was urged by him that the prosecutrix was aged about 20 years and the medical evidence led on record reveals that no vaginal injury or any other injury suggestive of forced sexual intercourse with her had been noticed by the Medical Officer which would indicate the case to be of consent. It was also submitted by him that the hymen of the prosecutrix was not intact which shows that the prosecutrix was used to sexual intercourse despite being unmarried which fact had not been taken into consideration by the trial court. It was also highlighted by him that no explanation for delay in lodging the report had been rendered by the prosecution which affected the credibility of the version rendered. Lastly, it was contended that because of the enmity of the father of the appellant with Sarpanch Mohinder Singh, the accused had been falsely implicated in this case. These submissions had been countered on behalf of the prosecution for the reasons recorded in the judgment of the trial Court.

The evidence on record clearly brings out that the prosecutrix belongs to socially weaker section of society. Rajinder Singh, brother of the prosecutrix had stated that he belongs to Mehra caste while Harjit Singh, accused is Jat by caste. He had been earning his livelihood by doing labour work and for that reason he had gone to clean utensils of Surat Singh, Panch. He had been getting daily wages for the services rendered by him. On the date of occurrence, his mother had also gone to clean utensils in the village on the date of occurrence. It had come in his statement that he had one brother and three sisters out of which two sisters reside in the village. His elder sister is married in Village Jeowala.

On the date of occurrence, according to the prosecutrix, her father and brother had gone to do labour work in the village while her mother had gone to attend to the marriage work and to distribute Patasha in the village. She explained that her brother and father used to return to the house occasionally during the noon time for taking rest for two hours. It is also brought out in the statement of the prosecutrix that her house in which she has been residing with her parents and brother is located in the Abadi. The house of Sain Dass is located on one side while three other houses are situated at a distance of 30-35 Karams from their house. She had explained in her deposition that house of Harjit Singh, accused is situated at a distance of 5/7 Killas away from the outskirts of the village while that of Sucha Singh is about 5/7 houses away in the same street from their house. Therefore, Harjit Singh was fully aware about the engagement of the family members of the prosecutrix. There is nothing improbable in his conduct when he had chosen to satisfy his lust by going to the house of the prosecutrix at about 2.00 p.m. where she was present all alone.

The prosecutrix during her testimony in Court had given her age as 17 years while the Medical Officer, Dr. Sunil Alipuria, on 22.1.1989 the date of medico-legal examination of the prosecutrix had mentioned her age as 20 years. The prosecutrix during the course of her statement had given an account as to the manner in which she was raped by the accused under the threat of killing her by showing a knife to her and explained that she did not raise alarm when she was taken to the room and her Salwar was untied and torn by the accused and also during the period he committed sexual intercourse with her because of the fear generated in her mind on account of threat given by the accused. She claimed that she had tried to catch hold of the accused and had given pushes to him in the process of rape committed by the accused, which lasted for 5-6 minutes. The accused had also pushed her down by force and in the scuffle her shirt was torn. She claimed that a tooth bite was given by the accused on her breast but it had left no mark. She also stated that she had suffered scratches on her back. It had also come in her statement that Rajinder Singh and her uncle Sucha Singh had reached the spot and tried to catch hold of the accused. However, accused showed knife to them and managed to run away from there.

Rajinder Singh had fully corroborated the testimony of the prosecutrix. He too maintained in his deposition that at about 1.45 p.m. his uncle told him that they should go to his house to enquire about the health of Surjan Singh. On reaching near the Chowka at about 2.00 p.m., they saw Harjit Singh committing sexual intercourse with the prosecutrix. Both Rajinder Singh and Sucha Singh tried to catch hold of the accused but after showing knife and giving pushes to them, he ran away from there. Thereafter, the prosecutrix narrated the incident to them in detail that while she was washing clothes, the accused came and kept the knife on her neck and thereafter she was taken inside the room and after opening the string of the Salwar, the accused committed sexual intercourse with her forcibly. He had stated that he had noticed scratches on the face and other parts of the body of his sister.

By now it is well settled that the prosecutrix, who is the victim of offence of rape is not an accomplice of the crime. Her testimony can be accepted without corroboration unless the Court finds on the basis of evidence on record that it suffers from such infirmities that it would render it unsafe to place reliance on it and is unworthy of acceptance. It is for that reason it has been observed by the Apex Court in State of Punjab v. Gurmit singh and Ors. 1966 S.C.C. 316 that "a murderer destroys the physical body of his victim, a rapist degrades the very soul of helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on the charge of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions and insignificant discrepancies in the statements of the prosecutrix, which are not of a fatal nature, to throw out and otherwise reliable prosecution case."

The learned counsel for the appellant-accused strenuously urged that as no injuries'' were found on the person of the prosecutrix during the course of medical examination by the Medical Officer and rather, according to the finding of the Medical Officer her hymen was not found infact, it has to be construed that she was used to sexual intercourse and these circumstances justify a conclusion that she had put up a false story in order to rope in the accused in this case. Alternatively, he contended that it should be construed as a case of consent. Additional plea raised by him was that it is totally inconceivable that at the day time at about 2.00 p.m., the accused would venture to go to the house of the prosecutrix in order to commit rape knowing fully well that he would be noticed by the neighbourers whose houses are located nearby the house of the prosecutrix which is located in the Abadi of the village. There is absolutely no merit in the stand taken on behalf of the accused in this regard. It is difficult to predict what works in the perverted mind at a particular point of time. In this case, the statement of the prosecutrix had amply brought on record that at the time when the accused went to the house she was all alone and at that time the accused put knife on her neck and threatened her that if she made any noise, she would be killed. She was taken to the adjoining room and raped. Her statement is fully corroborated by Rajinder Singh. She had also informed her brother about the incident which had taken place with her which is admissible as evidence of her conduct.

Coming to the findings of Medical Officer, Dr. Sunil Alipuria, who had conducted medical examination of the prosecutrix on 22.1.1989 at about 2.00 p.m. and had noticed infected wound dimension of which had been stated earlier, according to her "there was no vaginal injury. Hymen was not intact. Vagina was loose. Examining fingers blood stained. Probable duration of injury was more than 36 hours." It is further stated by her that "it is possible that the prosecutrix was habitual to sexual intercourse since her hymen was not intact and vagina was loose." The vaginal swab was blood stained which was taken into possession and was handed over to the Police along with Salwar Ex. P.1 and shirt Ex. P.2 and proved his attestation on recovery memo Ex. PC. No doubt, with regard to the incised wound, the duration of this injury had been given as more than 36 hours which means that it was not co-relatable to the time of occurrence. The Medical Officer had not noticed any other injury on her person.

The prosecutrix no doubt had stated in her statement that in the scuffle, she had suffered some scratches on her back. No further information was sought from her as to whether by the time she appeared before the Medical Officer, those scratches were visible to the naked eye or not. Even the Medical Officer was not specifically asked whether he had noticed any scratches or any other injuries on other parts of her body. No further information was sought from the prosecutrix on behalf of the accused that the room where she was laid down had rough floor or smooth floor, Therefore, no conclusion can be drawn from the statement of the prosecutrix that scratches suffered by her were skin deep so as to have a lasting effect upto the time when she was examined by the Medical Officer. Even the statement of prosecutrix that teeth bite was given by the accused on her breast did not leave any mark had not been challenged during the course of her testimony. Even no information in this regard was sought from the Medical Officer. Under the circumstances of the case, it cannot be said that because other injuries were not found on her body by the Medical Officer at the time of her medical examination that would negate the prosecution case. In the present case, it is further brought out in the statement of the prosecutrix that at the time when she was subjected to rape by the accused, she caught hold of him and tried to give pushes to him despite the fact that the accused had extended threat of killing her by knife. Therefore, presumption in terms of the requirement of Section 114-A of the Indian Evidence Act has to be raised apart from the factual position brought on record in the statement of the prosecutrix. Further merely because the Medical Officer had stated that the prosecutrix was habitual to sexual intercourse on the basis of finding that hymen was not found intact and vagina was loose would not justify, in any manner. Conclusion that the prosecutrix had consented to the sexual intercourse committed on her by the appellant-accused as sought to be contended on behalf of the accused. Merely, because a girl or woman is used to sexual intercourse does not permit anyone to make her an object of prey for sexually assaulting her. It is not a case where any information was sought from the prosecutrix in this regard. It has already been noticed that she had resisted the accused when rape was being committed on her by the accused. One cannot ignore her version. The report Ex. PK of the Forensic Science Laboratory had also been placed on record which revealed that Salwar mark ''a-1'' and Kameej mark ''a-2'' in parcel ''A'' were stained with human blood though the vaginal swab of the prosecutrix mark ''b-1'' and ''b-2'', two cotton swabs besides the Salwar and Kameej did not contain seminal stains. It has been authoritatively laid down in State of H.P. v. Gian Chand 2001 SCC 980 that discovery of spermatozoa in the private part of the victim is not necessary to establish penetration because there are several factors which make the non-presence of spermatozoa as had been laid down in Narayanamma v. State of Karnataka 1994 SCC 1573. In the face of the testimony of prosecutrix coupled with the statement of her brother, Rajinder Singh, whose presence at the spot is fully established, it has to be accepted that the appellant-accused had committed rape on her.

Coming to the other submissions made with regard to the delay in lodging the report, it cannot be ignored that the incident had taken place on 21.1.1989. Though her father had returned to the house at 3.00 p.m. but the report was lodged by the prosecutrix with ASI Onkar Singh at 1.00 p.m. on 22.1.1989 at the Bus Stop, Khuian Sarwar. The explanation which had been rendered for the delayed lodging of report given by the prosecutrix is that Boota Singh, father of the accused had come to their house and had threatened to kill them if they lodged the report against his son. The threat extended by Boota Singh had deterred them from immediately lodging the report. It was only the next day when the prosecutrix galvanised some strength, she along with Sucha Singh and Mohinder Singh, Sarpanch, proceeded to lodge the report with the Police.

The trial court had not accepted this explanation for the simple reason that Mohinder Singh, Sarpanch was inimical to Boota Singh, as complainant Ex. DA was made by Boota Singh against him which had been proved by Amarjit Singh (DW-2) and indictment of Mohinder Singh as is evident from the inquiry report Ex. DB. The trial Court also observed that time had been utilised by Mohinder Singh, Sarpanch to give a coloured version with regard to the involvement of Boota Singh. No doubt Boota Singh had been acquitted in respect of the offence u/s 506 I.P.C. but that circumstance would not have any effect with regard to the genuineness of the version of rape rendered by the prosecutrix and her brother-Rajinder Singh. Moreover, delay in lodging the report cannot be used as an inflexible rule in doubting the case of the prosecution and discarding the same. The only effect of delay in lodging the report is that the Court has to be on guard to find out whether the explanation offered by the prosecution is satisfactory and whether it had led to the embellishment in the prosecution version. In the present case the fact that version of the prosecutrix with regard to the threat given by Boota Singh had not been accepted by the trial Court cannot be taken as a ground to discard the entire incident of rape. Even otherwise the maximum "falsus in uno and falsus in omnibus" has no application in India. If such principle is adopted, it would render the administration of criminal justice non-functional. Thus, there is no merit int he stand taken on behalf of the appellant-accused in this regard.

As regards the defence version, no doubt both accused, Harjit Singh and his father Boota Singh had taken the plea that they had been involved in this case by the prosecutrix at the instance of Mohinder Singh, Sarpanch. It is totally inconceivable that father and brother of prosecutrix would level a false case against the appellant-accused with the help of prosecutrix with story of sexual intercourse and risk the reputation of the prosecutrix and future prospects of her marriage which would not only bring disgrace and dishonour to her but also to the entire family. The defence version as such carry no conviction at all and has to be rejected.

As regards the sentence, it is spelled out on record that the prosecutrix was aged about 20 years according to the Medical Officer on the date of commission of crime while the appellant-accused was aged about 19 years. He by his beastly act had not only violated the body of helpless girl but had left a permanent stigma on her which would remain with her throughout her life. Therefore, while upholding the order of conviction and sentence awarded by the trial Judge, the appeal filed by the appellant is dismissed. The appellant-accused shall be taken into custody to undergo the sentence awarded to him.