Mohinder vs State of Haryana

R.L. Anand, J. (Oral)

Shri Mohinder son of Shri Sultan, caste Gujjar, resident of village Bapoli, district Karnal has filed the present criminal appeal and it has been directed against the judgment and order dated 8.4.1987 passed by the Court of Additional Sessions Judge, Karnal, who convicted the appellant under Section 376 IPC and sentenced him to undergo RI for a period of 7 years and to pay a fine of Rs. 200/; in default of payment of fine to further undergo RI for 6 months.

The brief facts of the case are that PW3 Smt. Bala Devi was residing at village Bapoli along with her husband Pala. She is Harijan by caste and her husband is a labourer. The fatherinlaw and motherinlaw of Smt. Bala Devi were living separately from her along with their another son Jai Narain. The field of Khilla is situated at a distance of 1 KM. from the village and the field of the accused is situated near the field of Khilla. The accused during the days of occurrence had sown Jawar in his field. On 30.9.1986 Pala Ram, husband of Smt. Bala Devi, had gone out of the village to meet his inlaws. At about 10.00 a.m. Smt. Bala Devi prosecutrix left the house for bringing grass from the field of Khilla as she had kept a cow. PW4 Nirmla wife of her husband''s brother Jai Narain and her sisterinlaw (Nanad) Smt. Kamla had already left the house to cut grass from the field of Pitma Gujjar. PW3 Smt. Bala Devi started cutting the grass from the field of Khilla and at that time the accused was cutting jawar from his field at a distance of about one killa from the prosecutrix. At about 12.00 noon the appellant called the prosecutrix and asked her to help him in lifting the bundle of jawar. Smt. Bala Devi accordingly went to him and helped him in lifting the bundle of jawar and returned to the field of Khilla and started cuttings grass. After about 510 minutes, the appellant again called her to help him in lifting another bundle of jawar. She again went to the field of the appellant to help him in lifting the bundle of jawar and when she bent a little bit in order to help the appellant in lifting the bundle, the appellant forcibly caught hold of her. He closed the mouth of the prosecutrix with his left hand and gave fist blows on her cheeks, lips and breast including nail scratches and made her to fall on the jawar crop with her face downward. The appellant continued to keep her mouth closed with his left hand while he removed his pajama with his right hand and placed it nearby. He then opened the string of the salwar of the prosecutrix and removed the salwar upto her knees and started committing sexual intercourse with her against her consent and in the process the left hand of the appellant slipped from the mouth of the prosecutrix enabling her to make raula. On hearing that raula, PW4 Nirmla and Kamla, who were going to the village along with their bundles of grass and were passing from the nearby dol of the fields heard her raula and reached the spot. On seeing them coming, the appellant picked up his pajama and ran away towards village Shimla. Smt. Bala Devi told the whole occurrence to them and they took her to the house. Pala husband of the prosecutrix returned in the village at about 8.00 p.m. and the prosecutrix told the whole occurrence to him. Then she along with her husband went to the police station Sadar Panipat where she made statement to the police which was recorded in the shape of formal FIR Ex.PE at about 10.00 p.m. On 1.10.1986 PW3 Smt. Bala Devi was got medicolegally examined by PW2 Dr. Rosy Aneja, who found the following injuries on her person :

Diffused swelling of upper lip.

An abrasion of 3 x 1 cms over right forehead just above right eyebrow. Reddish in colour.

An abrasion of 2 x 2 cms. over right cheek about 4 cms. below and posterior to right angle of mouth. Reddish in colour.

An abrasion 2 x 1 cm. over the left cheek. 4 cms. below and posterior to left angle of mouth. Reddish in colour.

An abrasion of 11/2 x 1/2 cm over left upper middle quardrant of breast. Reddish in colour.

The doctor further opined that the injuries on the person of Smt. Bala Devi were caused within a duration of 24 hours. She next stated that injuries No. 1 and 5 could be the result of fist blows and injuries No. 3 and 4 could be caused by nails. She also opined that the possibility of Smt. Bala Devi subjected to rape could not be ruled out. Dr. Rosy Aneja handed over one sealed parcel containing swabs and slides of Smt. Bala Devi and another sealed parcel containing clothes and the same were taken into possession by PW8 SI Waryam Chand vide memo Ex.PG. This Investigating Officer went to the spot and prepared rough site plan Ex.PH with correct marginal notes. The appellant was arrested on 9.10.1986 when he was produced by Ramesh Sarpanch and Jai Pal. He was medicolegally examined from PW1 Dr. R.M. Singh, who stated that the appellant was fit to perform sexual intercourse. After the completion of the investigation, the appellant was challaned in the Court of Illaqa Magistrate, who supplied the copies of the documents to the appellant and vide commitment order dated 5.1.1987 committed the appellant to the Court of Session under Section 376 IPC in order to face the trial.

Vide orders dated 15.1.1987 the appellant was chargesheeted under Section 376 IPC on the allegations that on 30.9.1986 at about noon time in the field of Khilla Gujjar situated in the area of village Bapoli he committed rape upon Smt. Bala Devi wife of Pala Ram and thereby allegedly committed an offence punishable under Section 376 IPC. The charge was read over and explained to the appellant to which he pleaded not guilty and claimed a trial.

In order to prove the charge, the prosecution examined Dr. R.M. Singh, Medical Officer, Civil Hospital, Panipat as PW1, who examined Mohinder appellant on 9.10.1986 and vide report Ex.PA declared that the appellant was fit to perform sexual intercourse. At that time there was no mark of injury over the person of the appellant and no foreign body was present around the genitalias. Smegma was found absent. Dr. Rosy Aneja PW2 medicolegally examined the prosecutrix on 1.10.1986 and found five injuries which I have already stated above. On the application of the police Ex.PC this doctor opined that the injuries on the person of Smt. Bala Devi were caused within a duration of 24 hours and could be the result of fist blows. It has been further opined by this doctor that injuries No. 3 and 4 of Smt. Bala Devi could be caused by scratching of nails. This doctor also took into possession salwar Ex.P1, Dupatta Ex.P2 and shirt Ex.P3 of the prosecutrix. Finally after the receipt of the report of the Chemical Examiner Ex.PD she opined that possibility of Smt. Bala Devi subject to rape cannot be ruled out.

Smt. Bala Devi prosecutrix appeared as her own witness as PW3 and stated that on the date of occurrence at about 10.00 a.m. she left her house in order to take grass from the field of Khilla. Her sisterinlaw Nirmla and her Nanad Kamla were also cutting grass at a distance of 34 killas. The appellant was cutting jawar in his fields at a distance of one killa from her. At about 11/12 a.m. the appellant asked her to help him in lifting the bundle of jawar. She went to the appellant and helped him in lifting the bundle of jawar. She again returned to her place and started cutting grass. After some time the appellant called her and told her to help him in lifting another bundle. Then she again went to him and when she bent a little to help the appellant in lifting the bundle, the appellant forcibly caught hold of her. He closed her mouth with his left hand and he started giving her fist blows on her cheeks, lips and breasts and made her to fall in the jawar crop. According to the prosecutrix, the appellant opened the string of her salwar with his right hand while he kept closed her mouth with left hand and then made her to fall on the ground with her face downward and then raped. In the meanwhile, the left hand of the appellant was slipped from her mouth and she made raula "Chhatwao, Chhatwao", upon which Kamla and Nirmla, who were going to the village along with grass heard her voice and they reached near the dol of the jawar crop. On seeing them the appellant picked up his pajama and ran away towards village Shimla. She narrated the whole occurrence to Kamla and Nirmla. Then the said two ladies took her to the house. Her husband on that date was not present at the house and had gone to the house of his inlaws. On his return she narrated the whole occurrence to him. Then her husband took her to the police station where she lodged the report. It has also been started by this witness that the appellant gagged her mouth and gave her fist blows on her cheek and mouth and she also received his nail scratches. The statement of this prosecutrix has been supported by PW4 Smt. Nirmla, who deposed that on the day of occurrence she along with Kamla had gone to the field of Pitma in order to cut the grass and when they were returning to the village after taking the bundles of grass and reached near the corner of the jawar field of the appellant, they heard the prosecutrix crying. After throwing the bundles of grass they proceeded towards the side from which Bala prosecutrix was crying. It has also been stated by Smt. Nirmla that she found that the appellant had Bala Devi to lie on the ground with her face downwards and was committing rape with her. Upon seeing her and Kamla, the appellant ran away from the place of occurrence after lifting his pajama. When she enquired the matter from Bala Devi, she told the whole occurrence to her and Kamla. It has also been deposed by Smt. Nirmla that on return to her house, Bala narrated the whole occurrence to her husband Pala. PW5 is Inspector Kali Ram, who arrested the appellant on 9.10.1986. PW6 Lal Singh simply prepared the site plan Ex.PF. PW7 ASI Krishan Chander recorded the statements of the Patwari and two formal witnesses. PW8 SI Waryam Chand recorded the formal FIR at the instance of Smt. Bala Devi. This witness got Smt. Bala Devi medico legally examined from the lady doctor. He also visited the place of occurrence and prepared rough site plan Ex.PH. Finally, the prosecution tendered into evidence the report of the Director, FSL Ex.PD, who found human semen on the Salwar, shirt, slides and vaginal swabs. Semen, however, could not be detected on the Dupatta of the prosecutrix.

On the closure of the prosecution evidence, statement of the appellant was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to him. The appellant denied those circumstances and stated that he was innocent. In defence, he examined Shri Pitma as DW1.

The learned trial Court relied upon the story of the prosecution as unfolded by Smt. Bala Devi and Smt. Nirmala besides the medical evidence and convicted and sentenced the appellant in the manner stated above and aggrieved by his conviction and sentence the present appeal.

I have heard Shri R.S. Sihota, Advocate appearing on behalf of the appellant, Shri Sanjiv Sheoran, Advocate, who appeared on behalf of the State and with their assistance I have gone through the records of this case.

The learned counsel for the appellant has tried to make out a case of consent on the part of the prosecutrix for the obvious reason that the prosecutrix was a married woman and was more than 16 years of age. He submitted that on the day of occurrence admittedly the husband of the prosecutrix was not in the village. He had gone to the house of his inlaws. The prosecutrix was a young woman and perhaps went to the fields in order to enjoy sex with the appellant and while enjoying sex she might have been found by some strangers and thereafter a shape has been given to the story. I am totally not convinced with the submissions raised by the learned counsel for the appellant in view of the fact that in such a situation I would not expect any injury on the person of the prosecutrix. On the contrary, the prosecutrix has five injuries on her person. The doctor has opined that these injuries could be the result of fist blows and due to the scratching of the nails. It is the case of the prosecutrix herself that before the commission of the occurrence of rape the appellant gave her fist blows on her cheeks, breasts etc. It is also not appealable nor it touches the human probabilities that a young woman will try to submit herself in the open fully realising that during day time the people are busy in doing their agricultural work in their respective fields and anybody can be attracted if she indulges in such type of acts. Rather the story of the prosecution is more sound and probable. The prosecutrix approached the appellant on two occasions. At the first instance the appellant called the prosecutrix to assist him in picking up a bundle. We all know that on the village side while performing the agricultural pursuits not only the men but also the women help their covillagers. Smt. Bala in her all ignorance and without realising what could be the possible intention on the part of the appellant offered her services at the first instance and helped him to prepare the bundle of jawar. Thereafter she again became busy in cutting the grass from the field of Khilla. The intention of the appellant became bad and he again called Smt. Bala to his fields in order to commit rape upon her. There was resistance on the part of the prosecutrix. Her conduct in giving resistance was natural. The appellant was bent upon in committing rape upon the prosecutrix. He used force. He gagged the mouth of the prosecutrix. He put off his own pajama as well as the Salwar of the prosecutrix and committed rape upon her. In the process of struggle the left hand of the appellant slipped away from the mouth of the prosecutrix, as a result of which she could raise raula attracting Nirmla and Kamla, who by that time were returning to the house after collecting the grass. The appellant even might have taken the benefit of loneliness of Smt. Bala who remained alone in the field of Khilla after the return of Nirmla and Kamla from the fields. It was a natural conduct on the part of Smt. Bala to raise the alarm. She even narrated the entire occurrence to Nirmla and Kamla. Again she narrated the entire occurrence to her husband who returned to the village at 8.00 p.m. This evidence of res gesta is a sufficient corroboration to the testimony of the prosecutrix.

The counsel for the appellant then submitted that the nonexamination of Smt. Kamla is fatal to the prosecution. But I am not convinced with this argument. In order to prove the charge, the prosecution is to produce cogent and reliable evidence. The law courts are supposed to weigh the evidence and not to count the witnesses. The statement of a prosecutrix is more than that of an injured witness. She is not an accomplice. To seek always corroboration to the testimony of a prosecutrix would amount that the law courts are adding injury to the victim. This is not the intention of the law. Rather the position of the law is that even on uncorroborated statement of a prosecutrix conviction can be based, provided her statement inspires confidence. The learned counsel for the appellant has not been able to explain any circumstance on the record from which I may be able to gather this impression that Smt. Bala is deposing falsely against the appellant. The testimony of the prosecutrix finds full corroboration from the statement of Dr. Rozy Aneja. In State of Punjab v. Gurmit Singh and others, 1996(1) RCR (Crl.) 533 : 1996 Supreme Court Cases (Cri) 316, the Hon''ble Supreme Court has held in para No. 8 of the judgment as follows :

"The testimony of the victim of sexual assault is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion ? The court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be selfinflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prodence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person''s lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."

Again in para No. 21 of the judgment the Hon''ble Supreme Court was pleased to observe as under :

"Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman''s rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victim of sex crime. A rapist not only violates the victim''s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The courts, therefore, shoulder a great responsibility while trying an accused on charges 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 or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."

I have to see the broad probabilities of the case and need not go to the minor contradictions here and there. I am totally convinced with the inspiring statement of the prosecutrix that she was subjected to rape by the appellant who used force during the course of occurrence.

It was lastly submitted by the learned counsel for the appellant that the sentence of the appellant may be reduced in view of the fact that the occurrence had taken place in the year 1986 and that the appellant is facing the mental tension of the criminal proceedings for the last more than 13 years. As per Section 376 IPC for sufficient and good reasons the court has the power to award lesser sentence than the minimum. On account of the long interval I am inclined to reduce the substantive sentence of the appellant from 7 years to 4 years. JUDGMENT accordingly.

The net results that this appeal fails. The only relief which has been given to the appellant is in the reduction of sentence. He will serve 4 years of sentence instead of 7 years. With the above modification in the matter of sentence the appeal fails and is hereby dismissed.