Om Parkash vs State of Haryana

R.L. Anand, J.

This is a criminal appeal and has been directed against the judgment dated 15.11.1995, passed by the court of Additional District and Sessions Judge, Kaithal, who convicted the appellant u/ss 376 and 376 read with section 511, IPC, and sentenced him vide order dated 16.11.1995 to undergo R.I. for a period of 10 years in the charge u/s 376 and the appellant was directed to pay a fine of Rs. 2,000/. The appellant was further directed to undergo R.I. for a period of three years u/s 376 read with section 511, IPC.

The allegations in this case are quite startling when Santosh Kumari, the real daughter of the appellant has stated before the police vide her statement, Ex.PA, that her father used to do the work of Paledar. He used to waste his entire earnings on liquor. Her mother Panmeshwari Devi used to work as Labourer in Mandi. She had four sisters and two brothers. She was married about four years back to Dharam Pal son of Thapu Ram, resident of Deora, Police Station, Kaithal. She had gone to the house of her inlaws for 7/8 times. Now, for the last about one month, she had come to her parental house. It has been alleged by Santosh that 20 days back when her mother and her brothers and sisters had gone to the Mandi for doing the labour work, on that day, the appellant at about noon time, finding her alone in the room forcibly caught hold of her and committed rape upon her. She started raising noise but her father threatened her that in case she raised a noise, she would be killed. Out of fear and shame she kept quiet. It has been further alleged by the prosecutrix that on 4.6.1993, when her mother and her brothers and sisters had gone to the Mandi for doing labour work in the morning, she was alone in the house. At about 5 PM, her father Om Parkash, appellant, by taking the advantage of her loneliness caught hold of her with the bad intention and forcibly started untying the string of her salwar and closed the door of the room from inside. He broke open the string of the salwar and even put pressure upon her and he wanted to commit sexual intercourse with her but her mother Panmeshwari and her younger sister Seena came at the spot. He mother knocked the door from outside upon which her father opened the door and ran away from the place of occurrence. She narrated the entire matter to her mother. She accompanied by her mother and sister were going to the police station to lodge the report, but on the way the police met her and she made her statement, Ex.PA, before the Thanedar. The thanedar made endorsement underneath the said statement and it was sent to the police station for the registration of case, on the basis of which, formal FIR, Ex. PN, was recorded. Who started the investigation of this case is no more in the world but the evidence on the record reveals that immediately after recording the statement of the prosecutrix, he also took into possession the salwar with a broken string vide separate recovery memo. He recorded the statements of the witnesses. The prosecutrix was medically examined by the doctor. The appellant was arrested on 5.6.1993 and he was also sent for medical examination.

On the completion of the investigation of the case, the appellant was challaned in the Court of the Illaqa Magistrate who supplied the copies of the documents to the accused and vide commitment order dated 11.9.1993, committed the accused to the court of sessions.

Vide order dated 28.9.1993, the learned Addl. Sessions Judge, Kaithal, framed charges u/ss 376 and 376/511, IPC, against the appellant by stating in the charge that in the mother of May, 1993, in the area of City Kaithal, the appellant allegedly committed rape upon Santosh and subsequently on 4.6.1993, he attempted to commit rape upon the prosecutrix and, thus, allegedly was guilty for the offence u/ss 376 and 376/511, IPC, respectively. The charges were read over and explained to the appellant, who pleaded not guilty and claimed trial.

In order to prove the charges, the prosecution examined Santosh, prosecutrix as PW1. Lady doctor Ranjana Jain, who medically examined Santosh, appeared as PW2. Panmeshwari, mother of the prosecutrix, before whom the prosecutrix narrated the incident on 4.6.1993, appeared as PW3. Mahesh Sharma was the person who prepared the scaled site plan, Ex. PC. Constable Kartar Singh, PW5, deposed and proved the writing of Jarnail Singh, who has since expired after the recording of the FIR. This witness has proved the documents such as Ex.PA, the statement of the prosecutrix, the rough site plan, Ex.PG, recovery memo, Ex.PH and other documents Exs. PJ and PK to PM. Finally, the prosecution tendered into evidence the report of the Forensic Science Laboratory, Ex. PO and closed the case.

On the closure of the prosecution evidence, the statement of the accused was recorded u/s 313, Cr.P.C., and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. Accused denied those circumstances and the plea of the appellant was as follows :

"It is a false case. I am innocent. My wife and my daughter Santosh wanted to run a brothel house in my house for which I objected. On this score, they in connivance with the police lodged he false case against me so that they could run the brothel house. My daughter who was married in village Diyora had eloped with some one and left the company of his husband because she is characterless lady. My wife has also eloped with some ex Military man and she gave birth to a girl eight months ago with that person."

When called upon to enter into defence, the accused examined Saroj Kumari, his other daughter, who deposed that her father has been falsely implicated at the instance of her mother and sister Santosh because her mother and sister wanted to run a brothel house and it was being objected to by the appellant.

The learned trial court believed the prosecution story and rejected the defence version and convicted and sentenced the appellant in the manner stated above and aggrieved by his conviction and sentence, the present appeal.

I have heard Mr. P.C. Chaudhary, Advocate, on behalf of the appellant and Mr. Shailender Singh, DAG, Haryana, on behalf of the respondent and with their assistance have gone through the record of this case.

Before I deal with the submissions of the learned counsel for the appellant, I would like to refer with approval, the observations of the Hon''ble Supreme Court in State of Punjab v. Gurmeet Singh, 1996(1) RCR (Crl.) 533 : A.I.R. 1996 SC 1393 , in which it was held as under :

"In sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complaint about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. Even if there is some delay in lodging FIR in respect of offence of rape, if it is properly explained and the explanation is natural in the facts and circumstances of the case, such delay would not matter."

It was further held as under :

"The testimony of victim in cases of sexual offence is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act 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 at par with the evidence of an injured witness and to an extent is even more reliable. Jut 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 prudence 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 strike the judicial mind as probable."

The Hon''ble Supreme Court has also laid down the guidelines for the subordinate courts how to appreciate the evidence of a rape victim and the relevant observations are contained in para20 of the said judgment, which reads as under :

"Of late, crime against women is general and rape is particular is on the increase. It is an irony that while we are celebrating women''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 victims of sex crimes. We must remember that 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."

Thus, it was observed by the Supreme Court that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It was further observed by their Lorships that it is only after giving it a cool thought that a complaint of sexual offence is generally lodged. Further it was observed that the courts can always base conviction even on the uncorroborative testimony of the prosecutrix if it inspires confidence as the statement of the prosecutrix has to be appreciated and assessed like that of an injured witness. It was further observed that to call the prosecution to always give corroboration in sexual offences would amount to adding insult to the injury of the prosecutrix.

Keeping in view the above guidelines, now I would like to refer to the evidence, which has been led by the prosecution in the present case.

Santosh, while appearing as PW1, has categorically stated that earlier, her father committed rape upon her and on the date of the occurrence, i.e. on 4.6.1993, he tried to commit rape. So much so, the appellant had torn her clothes, given her beatings and when she tried to raise alarm, her mouth was gagged. She further stated that immediately after the occurrence, her younger sister and her mother came on the spot and she narrated the entire occurrence to her mother. The testimony of Santosh has been corroborated by her mother Panmeshwari in all material particulars. According to this witness, she was informed by her daughter Santosh that 20 days prior to 4.6.1993, she was subjected to rape by her father and that she did not disclose the occurrence to any one out of fear and shame. Further it has been stated by this witness that on that day, she saw the appellant going out from the room and he fled away from the place of occurrence. Her daughter Santosh told her that she had been raped by the appellant. She also told her that about 20 days earlier to that, the appellant had raped her but she did not disclose that fact to anyone out of shame and fear.

I need not discuss the medical evidence in this case because of the fact that Santosh was married lady on 4.6.1993 when she was medically examined by Dr. Ranjana Jain. There was no allegation with regard to the complete act of rape. Nevertheless, the findings of the doctor as contained in Ex.PB, the Medicolegal report are that Santosh was a young girl of 17 years. Hymen was absent. There was no mark of injury on her person. Finally, the doctor stated "possibility of sexual intercourse cannot be ruled out with the prosecutrix."

The point for determination, in these circumstances, would be whether to place reliance upon the testimony of Santosh and her mother.

The learned counsel for the appellant though made an endeavour to convince me that the story as put forth by the appellant before the trial should not be believed in the light of the testimony of Saroj, DW1, when this witness deposed that the present case has been foisted upon her father by her mother on account of the fact that her mother and her sister Santosh wanted to run a brothel house which was being objected to by her father, yet I am not convinced with the submission raised by the counsel for the appellant. Santosh, who is a married girl would be the last lady to implicate her father. Similarly, Panmeshwari would think 100 times before making such startling allegations. The delay in lodging the FIR with regard to the earlier act of rape has been properly explained by Santosh because she was a married girl and narration of a stigma upon herself could destroy her marital life in the house of her inlaws. She swallowed the bitter pill rightly on account of shame and fear. How long she could tolerate the alleged insult given by none else but her own father, who, perhaps, by taking the liberty of his previous act, wanted to commit rape on 4.6.1993 but this time he could not fulfil his intention on account of the timely intervention and arrival of Panmeshwari as a result of which, the appellant had to run away. I am inclined to attach extra weight to the testimony of Santosh and her mother Panmeshwari. The possibility cannot be ruled out that Saroj, DW1, might have deposed under the influence of her father so as to save his skin from legal punishment.

Resultantly, I affirm the findings of the trial court by maintaining the order of conviction and sentence. Finding no merit in this appeal, the same is hereby dismissed with no leniency in the matter of sentence also.