Rajinder vs State of Haryana

R.L. Anand, J.

This is a criminal appeal and has been directed against the judgment dated 20.1.1997 and order dated 22.1.1997, passed by the court of Addl. District and Sessions Judge, Rohtak, who convicted the appellant u/ss 366A and 376, IPC, and sentenced him to undergo RI for a period of 10 years u/s 376, IPC. The appellant was further directed to pay a fine of Rs. 1,000/; in default of payment of fine, he was directed to undergo RI for six months. Appellant was also directed to undergo RI for a period of 5 years and to pay a fine of Rs. 1,000/ u/s 366A, IPC. In default of payment of fine, he was further directed to undergo RI for six months. Both the sentenced were ordered to run concurrently.

The brief facts of the case are that on 25.1.1996, the prosecutrix Poonam, aged about 13 years, daughter of the complainant, had gone to Jot Ram Jain Middle School, Babra Mohallah, Rohtak, along with her younger sister Rekha and two brothers at about 8.30 a.m. as usual. The complainant, who is the original resident of Jhajjar used to reside in a rented house at Rohtak during those days. The prosecutrix Poonam was a student of 5th class. At about 9.30 a.m., Rekha returned home from school and told her parents that Poonam, who had gone to school with them kept her school bag in the school came out and, thereafter, she had not reached the school. The complainant along with Rekha went to the school and learnt that Poonam had disappeared somewhere after going to the school in the morning. The complainant searched for his daughter Poonam but could not trace her. In the evening, he lodged report with the police by making statement, Ex. PC, mentioning that some unknown person appeared to have kidnapped Poonam. On the basis of this statement, FIR, Ex. PC/1, was recorded and the investigation started by ASI Ram Bhaj. On 29.2.1996, ASI Ram Bhaj along with HC Lekh Ram and other police officials and the complainant Ishwar Singh and his brotherinlaw Subhash were present at the Bus Stand, Rohtak. At the time, the prosecutrix Poonam along with the present appellant and his wife Santosh alias Shanti appeared there. The complainant identified his daughter and the appellant and his wife, who used to reside in a rented house in the neighbourhood of the complainant. The police apprehended the appellant and his wife and recovered the girl from their custody. Recovery memo, Ex. PF, was prepared in this regard. The statement of the prosecutrix was recorded, who implicated the appellant and his wife of kidnaping her. The prosecutrix further implicated the present appellant by alleging that he had been committing sexual intercourse with her by detaining her custody inside a room from 25.1.1996 onwards. The statement of the prosecutrix was also recorded u/s 164, Cr.P.C., in the court of the CJM, Rohtak. It was also stated by the prosecutrix that even prior to 25.1.1996, the appellant Rajinder used to call her at his house on the pretext of showing films and used to have sexual intercourse with her. Rough site plan, Ex. PQ, of the place of occurrence was also prepared by the I.O.

The prosecutrix was got medicolegally examined from the doctor and her vagina admitted two fingers very easily. In the opinion of the doctor, the possibility of intercourse being done with Poonam could not be ruled out. The doctor also handed over the sealed parcels of the clothes of the prosecutrix to the police. He also handed over the sealed parcel of the pubic hair and swabs to the police, which were taken into possession vide recovery memo, Ex. PG. Appellant Rajinder was also medicolegally examined by the doctor who opined that he was fit to perform sexual intercourse. The clothes and the pubic hair of the appellant were also taken into possession during the course of investigation.

The copy of the birth entry, Ex. PD, of the prosecutrix showed that the Date of Birth of the prosecutrix was 23.10.1991 and this documentary evidence was taken into possession by the I.O. According to the report of the Chemical Examiner, semen was detected on the underwear of the prosecutrix and also on the underwear of the appellant.

On the completion of the investigation of the case, the appellant and his wife Santosh alias Shanti were sent to the Court of the Illaqa Magistrate to face trial u/ss 363, 366A and 376, IPC.

In order to prove the charges, the prosecution examined as many as nine witnesses, including the prosecutrix and the doctor.

On the closure of the prosecution evidence, the statements of the accused were recorded u/s 313, Cr.P.C., and all the incriminating circumstances appearing in the prosecution evidence were put to them. Accused denied those circumstances and their plea was they have been falsely implicated.

The learned trial court gave the benefit of doubt to Santosh alias Shanti, wife of the appellant, and acquitted her. However, the present appellant was convicted and sentenced u/ss 366A, 376, IPC. Keeping in view the fact that the appellant was sentenced u/s 366A, no separate sentence was passed u/s 363, IPC.

Aggrieved by his conviction and sentence, the present appeal, which I am disposing of with the assistance rendered by Mr. Ashwani Talwar, counsel for the appellant and Mr. Shailender Singh, DAG, Haryana, appearing on behalf of the State.

The learned counsel for the appellant submitted that the statement of the prosecutrix could not be banked upon especially in view of the fact that Santosh alias Shanti has been acquitted by the trial court.

I do not subscribe to the argument raised by the counsel for the appellant. `Falses in uno is not falses in omni bus'' is the recognised principle of law, which is applicable to the criminal courts in our country. The acquittal of Santosh alias Shanti is not a valid premise to conclude that the entire case of the prosecution has to be thrown away. If the trial court has seen one improbability in the story of the prosecution, the benefit of doubt has been rightly given to the wife of the appellant. At the most, I can scrutinise the statement of the prosecutrix with care and caution and would look towards corroboration. There is ample evidence on the record that the Date of Birth of the prosecutrix was 23.10.1981. The occurrence of kidnaping had taken place on 25.1.1996. As per the complainant, his daughter was a student of 5th class. Even Poonam, while appearing as PW8, had stated that she had studied upto 5th class. In this view of the matter, it can be safely concluded that the prosecutrix was less than 16 years of age on the date of her alleged kidnaping. With regard to the allegation of rape qua the appellant, it has been categorically stated by the prosecutrix that she was subjected to sexual intercourse against her will and consent by the appellant. So far as the position of law is concerned, the statement of the prosecutrix has to be read like that of an injured witness. The Hon''ble Supreme Court has held in the case of State of Punjab v. Gurmit Singh and others, 1996(1) RCR (Crl.) 533 : AIR 1996 SC 1393, that even on the uncorroborated statement of the prosecutrix, conviction can be safely recorded. For the sake of convenience, I would like to quote the observations of the Supreme Court, as these are very relevant and apt for the disposal of the present case. The same read as under :

"The testimony of victim in cases of sexual offences 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. 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 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 introduced though 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."

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 para 20 of the said judgment, which reads 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 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."

In Rafiq v. State of Uttar Pradesh, AIR 1981 SC 96, the Hon''ble Supreme Court laid down as follows :

"Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances. Indeed, from place to place, from, age to age, from varying lifestyles and behavioural complexes, inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of rule of law in this area be introduced through a new type of precedential tyranny. The same observation holds good regarding the presence or absence of injuries on the person of the aggressor or the aggressed."

The findings of the Hon''ble Supreme Court have also been followed in various judgments given by this court and in this regard I can rely upon my own judgment which was given in Kishen alias Kishni v. State of Haryana, 1997(4) RCR(Criminal) 73, wherein it was held as under :

"So far as the evidentiary value of the prosecutrix is concerned it has been held that the prosecutrix cannot be considered to be accomplice. As a rule of prudence, however, it has been emphasised that courts should normally look for some corroboration of her testimony in order to satisfy itself that the prosecurtix is telling the truth and that a person accused of abduction or rape, has not been falsely implicated. The view that as a matter of caution no conviction without corroboration was possible has not been accepted. Only rule of law is the rule of prudence namely the advisability of corroboration should be present in the mind of the judge or the jury as the case may be. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand. As to what type of corroboration may be required when the Court is of the opinion that it is not safe to dispense with that requirement. It has also been laid down that type of corroboration required must necessarily vary from circumstances of each case and also according to particular circumstances of the offence with which a person is charged. In this regard the observations made in AIR 1973 Supreme Court 469 Madho Ram v. The State of U.P., are relevant.

In Satbir Singh v. State of Haryana, 1997(2) Recent CR 509, it was held by a learned Single Judge of this Court that the evidence of a victim of sexual assault stands at par with evidence of injured witness and is entitled to great weight. His Lordship was further pleased to hold that corroboration is often not forthcoming except for medical evidence and it will be adding insult to injury if the law courts insist upon the prosecution to give corroboration. Besides that, it was also held that in sexual offences, the delay is bound to be there and if the husband of the prosecutrix tries to collect brotherhood to settle the matter but fails, it is a reasonable explanation for delay.

The statement of the prosecutrix is corroborated by the statement of her father as well as the medical evidence, clearly indicating that she was subjected to sexual intercourse. There is no ground to disbelieve the statement of the father of the prosecutrix, who would be the last man to implicate the present appellant. No illegality has been found in the impugned judgment of the trial court convicting the appellant u/s 366A, 376, IPC.

The learned counsel for the appellants then submitted that if none of his contentions prevails upon the mind of the court with regard to acquittal of the appellant, in the matter of sentence, this court should look with leniency.

No doubt the sexual offence has been committed against a minor child, who is the future of this country. Sexual offences have to be curbed with an iron hand. Such like accused do not deserve any sympathy of the court. But, keeping in view the fact that the story of the prosecution has been partly disbelieved by the trial court, I am of the opinion that the ends of justice would suffice if the sentence of the appellant is reduced from 10 years to 7 years u/s 376, IPC. The other sentence awarded to the appellant u/s 366A, IPC, shall remained affirmed. There is no interference in the fine imposed upon the appellant. Both the sentences shall run concurrently.

With the above modification in the matter of sentence, the appeal is hereby dismissed.