Sadhu Singh vs State of Punjab

R.L. Anand, J.

This is a criminal appeal and has been directed against the judgment and order dated 3.10.1986, passed by the court of Addl. District and Sessions Judge, Ferozepur, who convicted the appellant u/s 376, IPC, and sentenced him to undergo R.I. for a period of seven years. The appellant was further directed to pay a fine of Rs. 5,000/; in default of payment of fine, he was directed to undergo R.I. for one year. The trial court further declared that if the amount of fine was realized from the appellant, it shall go to the prosecutrix Balwinder Kaur.

The allegations against the appellant were that on 22.3.1986 in the area of Village Khosa Kotla, he allegedly committed rape upon Balwinder Kaur, a minor. Balwinder Kaur used to reside at the house of her mother''s sister''s husband Teja Singh in the month of March, 1986. On 22.3.1986, she in the company of her father Balbir Singh and mother''s sister''s husband Teja Singh, was going to village Galoti from Village Khosa Kotla on a cycle. When they came out of the village, accused, who was the resident of Village Khosa Kotla in the close vicinity of the house of Teja Singh came on a moped and when he reached near the prosectrix, her father Balbir Singh and Teja Singh, aforesaid, he stopped his moped and offered to give lift to the prosecutrix saying that it would be very difficult for all of them to go on cycle. Teja Singh and Balbir Singh, father of the prosecutrix, agreed to the offer of the accused and the prosecutrix was made to sit on the pillion of the moped of the appellant. After having covered some distance on the moped, the appellant stopped the moped and told Balwinder Kaur that the paddle of the moped had gone out of order and that she should bring a string from a nearby place. Resultantly, the prosecutrix got down from the moped and went towards a tubewell near the said place for bringing the string. The appellant followed her and after overpowering her, took her in his lap and started kissing her. The prosecutrix started weeping upon which the accused threatened to kill her in case she raised an alarm. He untied the string of the salwar of the prosecutrix and, then, committed rape upon her. Balwinder Kaur continued weeping and crying out of pain, whereupon, the appellant asked the prosecutrix not to weep and promised to give her Rs. 100/. In the meantime, the father of the prosecutrix and Teja Singh, aforesaid, came there. On seeing them the appellant ran away from the place of occurrence after leaving the moped. The prosecutrix was taken to Primary Health Centre, Kot Ise Khan by her father Balbir Singh and Teja Singh, PW. On finding that the Medical Officer was not available, she was brought to Village Cheema from where they took the tractor of Gurdev Singh and, thereafter, they brought her to Civil Hospital, Zira, where the porsecutrix was medically examined.

On receipt of a wireless message from the S.H.O., Police Station, Dharamkot, to the effect that Balwinder Kaur daughter of Balbir Singh had been admitted in Civil Hospital, Zira, while in injured condition, ASI Onkar Singh, who was posted in Police Post, Kot Ise Khan, came to Civil Hospital, Zira and submitted an application Ex. PB to enquire about the fitness of Balwinder Kaur to make her statement and after obtaining the opinion of the Medical Officer that the prosecutrix was fit to make the statement, he recorded the statement, Ex. PE, which was read over and explained to the prosecutrix, who signed the same in token of its correctness. Thereafter, the ASI made his endorsement Ex. PE/1, the statement was sent to the Police Station, Dharamkot, for registration of the case and formal F.I.R., Ex. PJ, was recorded by ASI Mal Singh. The Medical Officer handed over the clothes along with two other sealed parcels to the I.O., which were taken into possession vide recovery memo, Ex. PK. The spot was inspected and rough site plan, Ex. PL, was prepared by the ASI with correct marginal notes. The accused was arrested. He was medically examined and on the completion of the investigation of the case, the appellant was challaned u/ss 363, 366 and 376, IPC, in the Court of the Illaqa Magistrate to face trial who supplied the copies of the documents to the appellant and committed him to the court of Sessions. Charges u/ss 366 and 376, IPC were framed against the appellant. The same were read over and explained to the appellant to which he pleaded not guilty and claimed trial.

In order to prove the charges, the prosecution examined as many as seven witnesses, i.e., Dr. Renu Mangla, PW1, Dr. G.S. Dhaliwal, PW2, Prosecutrix Balwinder Kaur, PW3, Balbir Singh, father of the prosecutrix, PW4, Harbans Lal and Joel, Patwaris, PWs 5 and 6, respectively, and ASI Onkar Singh, I.O., PW7. The prosecution also tendered into evidence the report, Ex. PM, of the Chemical Examiner besides the affidavits of the formal witnesses.

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 him. Accused denied those circumstances and pleaded that he had been falsely implicated due to enmity.

In defence, the accused did not lead any evidence and closed the case.

The trial court relied the story of the prosecution 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, which I am disposing of with the assistance rendered by Mr. Gulshan Sharma, counsel for the appellant and Mr. J.S. Brar, DAG, Punjab, appearing on behalf of the State, and with their assistance have gone through the record of this case.

No serious effort was made by the counsel for the appellant to attack the testimony of the prosecutrix Balwinder Kaur and her father Balbir Singh, PWs 3 and 4, respectively. The statement of the prosecutrix in such like cases has to be treated like that of an injured witness and conviction can be based even on the uncorroborated statement of a prosecutrix as held by the Hon''ble Supreme Court in State of Punjab v. Gurmit Singh and others, 1996(1) RCR(Crl.) 533 : AIR 1996 SC 1393, wherein, it was held 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. Whey 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 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 read 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 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 para20 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 as were 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 toward 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 prosectrix 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 life styles 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 prosecutrix 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 to 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 would be adding insult to injury if the law courts insist upon the prosecution to give corroboration.

Balwinder Kaur, prosecutrix, who appeared as PW3, categorically stated that it was the accused who committed rape upon her. The statement of the prosecutrix can be quoted in the following manner :

"He took me in his lap and started kissing me. Thereafter he untied the string of my salwar. I started weeping, whereupon, he said that he would kill me in case I raised any alarm. Thereafter, he committed rape, I started crying due to pain. The accused said to me that he would gave me one hundred rupees and that I should not cry. My father Balbir Singh and Teja Singh (PW) came there and on seeing them the accused ran away."

The statement of the prosecutrix has been corroborated by her father Balbir Singh, PW4. According to this witness, the appellant stopped his moped near them and asked Teja Singh that it was not possible for him to carry me and my daughter on a cycle and that he was prepared to give lift to Balwinder Kaur to which we agreed. Thereafter, Balwinder Kaur sat on the pillion of the moped. Thereafter, we came about 13/4 kilometers from that place on the cycle and when we reached near a wheat crop field, we heard shrieks of Balwinder Kaur; whereupon we want towards that place and found that the moped of the accused had been parked there. On seeing us the accused made good his escape. Balwinder Kaur was crying and weeping. She was not wearing any salwar at that time. Her private part was bleeding profusely. We took her to Primary Health Centre Kot Ise Khan where the doctor was not available. Thereafter, we brought her to village Cheema from where I took the tractor of Gurdev Singh. Thereafter, we brought Balwinder Kaur to Civil Hospital, Zira, where she was medicolegally examined." Thus, a full corroboration has been given to the statement of Balwinder Kaur by Balbir Singh.

Practically, there is no crossexamination to the statement of Balbir Singh by the accused in the trial court. It is not believable that Balbir Singh, PW4, would try to tear the abdomen of his daughter by making false allegations against the appellant. Balwinder Kaur at the time when she made her statement before the court on 3.10.1986 was hardly a girl of nine years. She was a student of 5th class. The statement of Balwinder Kaur is also fully corroborated by the medical evidence. Dr. Renu Mangla, appeared as PW1. According to the medical opinion of this doctor, the prosecutrix was aged about nine years and at the time of her examination, she was bleeding per vaginan. Her secondary sex characters were not developed. External genitals were not developed. The doctor also found fused as well as dried blood was present on the genital organs and inner side of thigh. Dried blood was scrapped and wrapped in a gauze piece. Bruising and laceration of external genitals were present. There was swelling and redness on the private parts of the prosecutrix. Vaginal orifice admitted little finger with difficulty and finally the doctor opined that hymen was lacerated and partially torn. The above opinion of the doctor clearly indicates that the prosecutrix was subjected to rape. As per Dr. G.S. Dhaliwal, PW2, the accused was sexually potent and was capable to perform the intercourse.

Faced with this difficulty, the learned counsel for the appellant then submitted that in the matter of sentence, the appellant may be visited with leniency. He submitted that adequate and special reasons are made out so as to award lesser sentence to the appellant than the one awarded by the trial court. The counsel, unfolding his submission, submitted that it is just possible that the appellant, who was in youth, might have committed the sexual offence under lust. Otherwise, there was no previous enmity between the appellant and the prosecutrix so that it can be inferred that the appellant was bent upon taking revenge upon an innocent girl.

Keeping in view the fact that the appellant was a young boy at the time of the alleged commission of the offence and he might have committed the offence in order to satisfy his lust, I am of the opinion that the ends of justice would suffice if the sentence of the appellant is reduced from 7 years to 6 years. There is no interference in the fine imposed upon the appellant.

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