State of Punjab vs Jagjivan Ram

A.P. Chowdhri, J.

Jagjivan Ram (17) and Sukhvinder Singh alias Makhan (21) were tried by the Additional Sessions Judge, Hoshiarpur, for offences under Sections 363/366/376 of the Indian Penal Code and acquitted by judgment dated August 18, 1988. Aggrieved by the acquittal, the State has preferred this appeal.

Surjit KaurPW3, Prosecutrix in this case, who was aged a little more than 15 on the material date and was a student of 9th Class in the Government High School, was living with her father Mohinder SinghPW4 at village Kotla Naud Singh in Police Station, Hariana, district Hoshiarpur, Punjab. On February 21, 1988, at about 5 p.m. she left her house in order to go to the house of her uncle Sant Ram. As she failed to return, her father Mohinder Singh proceeded towards the house of his cousin Sant Ram and when on the way be passed near the house of Smt. Mindo wife of Harblas, he heard the weeping of someone. He went inside the house and called aloud as to who was there. Door of the room was open, Jagjivan Ram son of Harblas and Sukhvinder Singh alias Makhan, accused, ran away by scaling over the wall of the house. Mohinder Singh found his daughter Surjit Kaur in the room and she was weeping and she told her father that she had been raped by both Jagjivan Ram as well as Sukhvinder Singh alias Makhan. Mohinder Singh brought his daughter to his house. He then went to village Bhatrana and after taking his fatherinlaw Amar Singh with him proceeded to the Police Station. He met Assistant SubInspector Kulbir Singh at village Dadiana Kalan where his statement (Exhibit P.D.) was recorded by Assistant Sub Inspector Kulbir Singh at 6 p.m. on February 22, 1988. The statement was forwarded to Police Station, Hariana, where formal first information report was entered at 6.25/6.55 P.M. Copy of the Special Report was delivered to the Illaqa Magistrate at Hoshiarpur, 16/17 kilometres from the Police Station, at 7 a.m. on the next day, that is February 23, 1988. Assistant Sub Inspector Kulbir Singh PW8 went to the spot, prepared rough site plan. Mother of the prosecutrix produced salwar which the prosecutrix was wearing at the material time and it was made into a sealed parcel and taken into possession. It was produced as Exhibit P1. The Assistant Sub Inspector recorded statements of Surjit Kaur, her mother Gian Kaur and Amar Singh. On the next day, he got the prosecutrix medicolegally examined from Civil Hospital Hoshiarpur. Dr. Kuldip Kaur PW2 examined the prosecutrix on February 23, 1988 at 12 noon and in the medicolegal report she noted that the prosecutrix was moderately built and nourished. Axillary and public hair had developed. The breasts were moderlaty developed. According to the prosecutrix, the last menstrual period had occurred on February 1, 1988. On P/V examination, the lady doctor found that the vagina admitted one finger. It was tender, hymen was torn and inflamed. Cervix was healthy. She prepared one swab and two slides and sent the same to the Chemical Examiner. She also advised Xray to determine the age the prosecutrix. Vide report (Exhibit P.J.) the Chemical Examiner found semen present on slides. No spermatozoa was found on the swab. The accused were arrested on February 26, 1988 and they were got medically examined from Dr. Mohan Dev Saini PW1. Dr. Mohan Dev Saini PW1 found that both the accused bad normally developed penis, testes and scrotum and there was nothing to suggest that they were incapable of performing sexual intercourse. The police also took into possession birth entry (Exhibit P.E.) relating to the prosecutrix on April 4, 1988, giving the date of birth of the prosecutrix as November 9, 1972. On completion of investigation, the police presented a chargesheet against the accused for the offences already stated.

At the trial, the prosecution examined Dr. Mohan Dev SainiPW1, who had medically examined both the accused, and Dr. Kuldip Kaur PW2, who had medically examined the prosecutrix. The prosecutrix Surjit Kaur appeared as PW3, her father Mohinder Singh appeared as PW4. Ramesh Chander PW5, Clerk of the office of the Chief Medical Officer, Hoshiarpur, proved copy of the birth entry (Exhibit P.E.). Assistant Sub Inspector Kulbir Singh, who investigated the case, appeared as PW6. Constable Surjit Singh who had carried the Special report to the Judicial Magistrate and who had filed his affidavit, was crossexamined as PW7. The prosecutrix and her father Mohinder Singh supported the version set out above.

The plea of Jagjivan Ram accused in his statement under Section 313 of the Code of Criminal Procedure was that the prosecutrix Surjit Kaur was his next door neighbour. She was studying in the same school in which he was studying and she was friendly with him as well as one Satnam Singh alias Satta. He and the prosecutrix wanted to marry each other but the father of the prosecutrix was opposed to the marriage and it is on this account that he had been falsely implicated in this case. The plea of Sukhvinder Singh alias Makhan in his statement under Section 313, Criminal Procedure Code, was that he originally belonged to village Katha Adhkare. Jagir Singh, Lambardar of village Kotla Naud Singh was his uncle being husband of his father''s sister. He further stated that the Sarpanch of village Kotla Naud Singh was inimical towards Jagir Singh aforesaid and at the instance of said Sarpanch the accused had been falsely implicated in this case. The accused produced no evidence in defence.

On an evaluation of the evidence the learned Additional Sessions Judge, Hoshiarpur, held that there was no evidence to connect the prosecutrix with the birth entry (Exhibit P.E.) with the result that the prosecution failed to prove that the prosecutrix was below 16 years of age on the material date. Even otherwise, it was held that this was a case of consent and, therefore, there was no question of rape. The learned trial Court referred to delay in lodging the first information report which had not been satisfactorily explained also pointed out certain discrepancies in he evidence of the material witnesses which rendered their testimony infirm and unreliable. It was also held that in the absence of definite medical evidence with regard to the age of tear of the hymen, it could not be said as to when the alleged intercourse had taken place and, therefore, the rape itself was not proved. Thus, as a result of these findings both the accused were acquitted. Hence this appeal.

The contention of Mr. S.S. Dhaliwal, learned Deputy Advocate General, Punjab, for the appellant State is that there is adequate material on record to prove the age of the prosecutrix to be below 16 on the relevant date. In the alternative, Mr. Dhaliwal submitted that facts and circumstances brought on record clearly showed that this was not a case of consent and, on the contrary, it was a case of gang rape and the learned trial Court fell into a grave error in failing to take notice of the provisions of Section 114A of the Evidence Act in raising an initial presumption against the accused as the prosecutrix categorically stated that she had been subjected to rape by the two accused, one after the other, on the day of occurrence. It was also submitted by Mr. Dhaliwal that the commission of rape had been duly established on the record and in this connection he highlighted the finding of Dr. Kuldip Kaur PW2 that the hymen of the prosecutrix at the time of medical examination was tender, torn and inflamed. According to Mr. Dhaliwal these telitale symptoms clearly indicated that the rape to which the prosecutrix had been subjected was recent one. Mr. Dhaliwal, therefore, submitted that in the context it was of no consequence that age of the tear could not be determined with and any precision. Mr. Dhaliwal also emphasised the fact that this was not a case relating to a female who is used to sexual intercourse and he sought to distinguish the case of the prosecutrix from the case of such females. This fact, according to Mr. Dhaliwal, went a long way to show that the prosecutrix was subjected to forcible intercourse by the two accused. With regard to nonproduction of the report of the Xray of the prosecutrix in order to determine her age, Mr. Dhaliwal submitted that it is the settled law that ossification test does not help in determining the age precisely and there is a leeway of two/three years in the age which is calculated according to the relevant tables. When the prosecution found the birth entry which is a reliable evidence of age of a person, it was not considered necessary to place the report of the Xray on record. Mr. Dhaliwal further pointed out that there was no reason for the prosecutrix or her father to falsely implicate the accused persons and the suggestions made in this behalf were only to be stated to be rejected. Lastly, it was submitted that the discrepancies to which reference has been made by the learned trial Court were of a minor nature and did not relate to any material fact going to the root of the matter.

Mr. H.S. Gill, learned Counsel for the accused, strongly defended the judgment of the trial Court. He contended that there was nothing to connect the birth entry (Exhibit P.E.) with the prosecutrix, that it was rightly held by the trial Court that it was a case of consent. He also emphasised that rape itself had not been proved in the instant case and vehemently submitted that where the trial Court had taken in view which was reasonably possible, this Court cannot interference with an order of acquittal.

We have given our deep and anxious consideration to the respective submissions of the learned Counsel for both the parties.

We may first deal with the question of delay. The occurrence took place at bout 5 p.m. on February 21, 1988. Statement of Mohinder Singh PW4, father of the prosecutrix, was recorded by Assistant Sub Inspector Kulbir Singh PW6 at 6 p.m. on February 2, 1988. Formal first information report was entered at the Police Station at 6.55 p.m. on February 22, 1988 and Special Report delivered to the Judicial Magistrate at 7 a.m. on February 23, 1988, at Hoshiarpur about 17 kilometres away. The explanation for delay given by Mohinder Singh is that after the occurrence he went to village Bhatrana and informed his fatherinlaw about the occurrence and along with him he was going towards the Police Station when he met the police at village Dadiana Kalan. The fact that Assistant Sub Inspector Kulbir Singh PW6 noted that Amar Singh, fatherinlaw of Mohinder Singh, accompanied him when he made the statement (Exhibit P.D.) goes to support the above explanation. In any case, it is settled law that delay by itself is in law not sufficient to dispute prosecution case on that score. The delay puts the Court on guard to scrutinise the evidence with more than usual care. In a case involving the honour of womenfolk, in our country the family has to think many times before informing the police. The entire life of the female concerned is at stake. We are, therefore, of the view that in the facts and circumstances on the case there was no unexplained or undue delay in lodging the first information report.

Assuming for the sake of argument that there is no evidence to connect the prosecutrix with the birth entry (Exhibit P.E.) the significant question remains whether in the facts and circumstances brought on record the sexual intercourse with the prosecutrix took place against her will and consent attracting the application of clause First to Section 375 of the Indian Penal Code. The P/V examination of the vagina of the prosecutrix carried out by Dr. Kuldip KaurPW2 showed that the prosecutrix was not used to sexual intercourse. The further fact that the vagina was tender and inflamed and the hymen was torn further indicated that penetration had been done some time before the medical examination on February 23, 1988 at 1 noon. These findings have to be borne in mind while evaluating the totality of facts and circumstances of her case. The prosecutrix was going to the house of her uncle when Jagjivan Ram accused, who claims to be class fellow of the prosecutrix, called her inside his house on the pretext that his mother was calling her. The prosecutrix accepted his word and like a simple credulous girl, that she is, she entered the house. Her mouth was gagged and she was forcibly taken inside the room. She must have been forcibly taken there and not dragged, as she explained in her own statement. In the room she was raped both by Jagjivan Ram as well as Sukhvinder Singh alias Makhan, accused. There is absolutely no reason why Surjit Kaur would falsely implicate the accused or any of them. Her father was attracted to the place of occurrence as he went out in search of his daughter, who had to return from the house of her uncle. It is not disputed that the house of Jagjivan Ram adjoins that of the house of the prosecutrix and falls on way from the house of the prosecutrix to the house of her uncle Sant Ram. She narrated the material part of the occurrence to her father and she was taken to her house. Her statement is fully corroborated by the testimony of her father Mohinder Singh PW4. It also finds valuable corroboration by the Medical evidence of Dr. Kuldip KaurPW2 and the report of the Chemical Examiner finding presence of Semen on the slides prepared at the time of medical examination of the prosecutrix. The suggestions made on behalf of the accused namely, that the prosecutrix and Jagjivan Ram accused wanted to marry each other and father of the prosecutrix was opposed to the marriage and that is why he has falsely implicated Jagjivan Ram accused, do not deserve any serious consideration for the simple reason that if the parents of a girl are not agreeable to marriage with a certain person, they would not go out to implicate the boy in a case of rape and thereby jeopardise the entire life of the girl. It is also inconsistent with the fact that not only Jagjivan Ram but coaccused Sukhvinder Singh alias Makhan also committed rape on the prosecutrix in the same room and in the same transaction. If Jagjivan Ram had even a remote affinity with the prosecutrix and was contemplating to marry her, it is unthinkable that he would let Sukhvinder Singh alias Makhan commit rape on her in his own house. The suggestion on behalf of Sukhvinder Singh alias Makhan that he had been falsely implicated at the instance of the Sarpanch of the village, who was inimical towards his uncle Jagir Singh, Lambardar of village Kotla Naud Singh, is equally ridiculous Kotla Naud Singh appears to be a small village where the inhabitants must be known to each other. Admittedly Sukhvinder Singh alias Makhan had been residing with his uncle at that village. Beyond this suggestion, there is no material on record to show that the Sarpanch of the village was inimically disposed towards Jagir Singh, Lambardar, uncle of Sukhvinder Singh alias Makhan. It will be altogether rash to believe that the said accused had been implicated at the instance of Sarpanch of the village. Mohinder Singh, father of the prosecutrix, belongs to weaker section of the society and even though he had a few relatives in the village, it appears that he did not find any one to support his cause and, therefore, he went to another village Bhatrana and approached his fatherinlaw Amar Singh, with whom he went to the Police Station to lodge the report. In this background, it is totally unacceptable that Sukhvinder Singh alias Makhan would be falsely implicated at the instance of the Sarpanch of the village. According to Explanation 1 to subsection (2) Section 376 of the Indian Penal Code where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of the said subsection. In the facts of the present case, both Jagjivan Ram as well as Sukhvinder Singh alias Makhan committed rape on the prosecutrix one after the other in one transaction. It amounted to gang rape and the case, thus, would clearly fall in clause (g) of subsection (2) of Section 376, Indian Penal Code. The question is whether the rape was with or without the consent of the woman alleged to have been raped. Under Section 114A of the Evidence Act as inserted by Amending Act 43 of 1983 where the case inter alia falls in clause (g) of subsection (2) of Section 376, Indian Penal Code, and sexual intercourse by the accused is proved and the question is whether it was with or without the consent of the woman alleged to have been raped and she stated in her evidence before the Court that she did not consent. The learned trial Court completely lost sight of this significant provision which had the effect of vitiating the entire evaluation of the evidence on record. In the facts and circumstances of the case and for the foregoing reasons, we are clearly of the view that the rape was committed on the prosecutrix by the two accused without her consent and against her will.

The prosecution placed on record, birth entry (Exhibit P.E.). According to this entry, a female child Guddi was born to Mohinder Singh and Smt. Giano on November 9, 1972 at village Kotla Naud Singh. Mohinder Singh PW4 stated that the prosecutrix was known as Guddi. His omission to have mentioned this alias in his statement (Exhibit P.D.) made before the police is not sufficient to discard his evidence. The statement made before the police is not required to be and cannot, in the nature of things, be exhaustive. The failure to mention the fact that the prosecutrix was known as Guddi is at the most an omission and not a contradiction. The age of the prosecutrix if calculated on the basis of the date of birth mentioned in Exhibit P.E. coincides with the age noted by Dr. Kuldip KaurPW2 in the medicolegal report and the age given by the prosecutrix herself as also the fact that she was a student of 9th class in the school. The birth entry from the register of births is conclusive evidence regarding the age (see Sidheswar Ganguly v. State of West Bengal, AIR 1958 Supreme Court 143).

We agree with Mr. Dhaliwal, learned Deputy Advocate General, that the discrepancies noted by the learned trial Court are not material and do not, therefore, affect the credibility of the prosecution witnesses.

In our considered view, the acquittal of the accused in this case has resulted in gross miscarriage of justice. For these reasons, we accept the appeal, set aside the acquittal of the accused and convict Jagjivan Ram accused under Sections 376 and 378, Indian Penal Code. We further convict Sukhvinder Singh alias Makhan accused under Section 376, Indian Penal Code, and having regard to the facts and circumstances of the case, sentence both the accused to seven years'' rigorous imprisonment. In the case of Jagjivan Ram the above sentence is awarded under each count and sentence of imprisonment in his case under the two counts shall run concurrently. The accused shall be got arrested to serve out the above sentences.

JUDGMENT accordingly.