Sukhminder Singh and another vs State of Punjab

Paramjeet Singh, J.—Appellants have filed this appeal against judgment and order dated 05.04.2003 passed by learned Additional Sessions Judge (Ad hoc), Fast Track Court, Ludhiana, vide which they were convicted for commission of offences punishable under Sections 366/376/379/506 IPC. Both the appellants have been awarded sentence as under;

Appellant � Sukhminder Singh:

a)

U/s.366 IPC

Rigorous Imprisonment for seven years

and fine Rs. 1000/- and in default of

payment of fine, further R.I. for three

months.

b)

U/s 376 IPC

Rigorous Imprisonment for ten years

and fine Rs.1000/- and in default of payment of fine, further R.I. for three

months;

c)

U/s 379 IPC

Rigorous Imprisonment for one year.

d)

U/s 506 IPC

Rigorous Imprisonment for one year.

Appellant � Gurchet Singh:

a)

U/s.366 IPC

Rigorous Imprisonment for seven years

and fine Rs. 1000/- and in default of

payment of fine, further R.I. for three

months.

b)

U/s 376 IPC

Rigorous Imprisonment for ten years

and fine Rs.1000/- and in default of

payment of fine, further R.I. for three

months;

c)

U/s 379 IPC

Rigorous Imprisonment for one year.

d)

U/s 506 IPC

Rigorous Imprisonment for one year.

Facts and circumstances giving rise to this appeal are that on 30.11.2000, complainant-prosecutrix moved an application before the Senior Superintendent of Police, Jagraon, stating that she is resident of Village Sohian. On 11.11.2000, she was present at the Sem Nala (water logging drainage) to take Tempo to go Gurudwara Tahli Sahib, Raikot. She was having a pot in her hand in which she had put `Parshad'' to present at Gurudwara Tahli Sahib. At about 10 A.M. the accused came in a Maruti Car which was being driven by Sukha @ Sukhminder Singh and Gurchet Singh was sitting along side him. The accused-appellants stopped the car near her and asked her where she had to go. She was just to reply when Gurchet Singh accused took out a handkerchief from his pocket and put it on her mouth and she became unconscious. The accused put the prosecutrix on the back seat of the car. When the prosecutrix regained consciousness, she found herself lying on the cot in the room of the motor at Village Sidhwan Kalan. Her clothes were torn at that time. She agitated but the accused forcibly tore her cloths. Both the accused were having knives in their hands and they threatened her with dire consequences. Both the accused committed rape with her against her consent. The appellants-accused snatched the ear rings of the prosecutrix and also took Rs.60/-from her which she was having for bus fare and also ate the Parshad. The prosecutrix was kept at the motor for whole of the day and her modesty was outraged. Thereafter, at night the prosecutrix was taken at the motor of Gurchet Singh, where also the accused committed rape with her and kept her there for whole night. On the next day, they dropped her at the same place from where she was abducted. She did not tell this incident to anyone as the accused threatened her with dire consequences. After some days, she told about this incident to her husband Kewal Singh, who along with his other relations reported the matter to Sukhdev Singh, Sarpanch of the village. The Sarpanch called the accused in the Panchayat many a times, but they did not bother to come. Thereafter, the matter was reported to the police. The police registered the FIR and sent the prosecutrix to the hospital for medical examination. Dr. Parveen Bala Aggarwal had medico legally examined the prosecutrix. Thereafter, the accused were arrested and they were medico legally examined by Dr. H.S. Sidhu. After completion of the investigation, the police filed a charge-sheet against the appellants. The appellants denied the charges, refuted the prosecution story and pleaded not guilty and faced trial.

The Trial Court after concluding the proceedings, vide judgment and order dated 05.04.2003 convicted both the appellants for committing gang rape and sentenced as aforementioned.

The prosecution in order to prove its case, examined PW1 Dr. Parveen Bala Aggarwal, who had medico legally examined the prosecutrix on 01.12.2000 at 4.30 PM and she proved on record Ex.PA copy of medico legal report of prosecutrix. Dr. Parveen Bala Aggarwal was also examined as PW12 in order to prove the medico legal reports of the accused (Ex.PW10/I and Ex.PW10/J), since the doctor who medically examined the accused, was reported to have gone abroad. The prosecutrix appeared as PW2 and deposed on oath the entire prosecution version including the facts and circumstances under which she was abducted and her honour was ravished by the appellants against her consent and appellants committed snatching of her ear rings and Rs.60/-from her and thereafter, she has proved on record her statement Ex.PB given to the police and application (Ex.PC) given by the prosecutrix to the Sarpanch of the village and parcel of clothes taken into possession by police as Ex.PD. The prosecutrix also identified her clothes (Ex.P1 to P3) and Steel Jar (Dolu) (small container with handle) as Ex.P4. The prosecution also examined PW3 - Harbhajan Singh, who deposed that on 17.11.2000, he was called by Kewal Singh, husband of the prosecutrix, and on his arrival to the village, he came to know about the facts of abduction of the prosecutrix and rape committed upon her by the appellants and after consultation with his relations, the prosecutrix was asked to give application (Ex.PC) to the Sarpanch of the Village. The sarpanch called the appellants but they failed to turn up. PW4 constable Gurdeep Singh deposed on oath that on 1.12.2000 at 1 p.m. he had delivered the special report of this case to Illaqa Magistrate. PW5 - Baldev Raj, Clerk S.D.M. Office, Jagraon has proved on record the registration certificate of the car bearing No.PCS-8304 and deposed that it is registered in the name of Sukhminder Singh (appellant No.1). PW6 - Kewal Singh, husband of the prosecutrix, deposed that the prosecutrix after she came back, did not disclose the fact of her abduction and rape committed upon her and after 2-3 days, she narrated the whole story to him and that after making consultation with other family members, an application was given to the Sarpanch of the village, who called the appellants, but they did not turn up. PW7 - Sukhdev Singh, Sarpanch of village Sohian proved the application (Ex.PC) moved by the prosecutrix and also deposed that in spite of his repeated calls, the appellants did not turn up and he further deposed that the prosecutrix was advised to move to the higher police authorities. PW9 - HC Davinder Singh deposed that on receipt of Ex.PB, which was endorsed by Inspector Baldev Singh as Ex.PB/1, a formal FIR (Ex.PB/2) was recorded by him. He also deposed that ASI Surjit Singh deposited the case property with him on 07.12.2000 which included one pair of ear rings, one steel jar (Dolu), Maruti Car and torn clothes of the prosecutrix. PW10 Inspector Baldev Singh, who acted as Investigating Officer, has deposed that on 01.12.2000 on receipt of application (Ex.PB), he made his endorsement over it and signed at point Ex.PW10/A and on the basis of the same, formal FIR (Ex.PB/2) was recorded. He also deposed that at the instance of the prosecutrix, he prepared the rough site plans of the places of the occurrence (Ex.PW10/B, Ex.PW10/C and Ex.PW10/D). The said witness further deposed that the prosecutrix was sent for medical examination and proved an application (Ex.PW10/E) moved for her examination. He further deposed that on 05.12.2000, Jagdish Singh, Member Panch produced before him the appellants. Accordingly, they were informed about the grounds of arrest vide memos Ex.PW10/F and Ex.PW10/G. Personal search memo of the case was proved on record as Ex.PW10/H. The said witness further deposed that on 06.12.2000, he filed an application for medical examination of the accused and the concerned doctor declared both the accused fit to perform sexual intercourse. ASI Surjit Singh was examined as PW11, who deposed that on 07.12.2000 during investigation, the accused Gurchet Singh and Sukhminder Singh suffered disclosure statements (Ex.PW11/A and Ex.PW11/B respectively). In pursuance of those disclosure statements, accused Gurchet Singh got recovered one pair of ear rings and steel jar (Dolu), which were taken into possession vide recovery memo Ex.PW11/C and in pursuance of disclosure statement of Sukhminder Singh got one Maruti car was recovered which was taken into possession vide recovery memo (Ex.PW11/D). He further proved on record Ex.PW11/E and Ex.PW11/F site plans of the places of recovery, PW11/G recovery memo of registration certificate of the car. He has also identified Steel Jar (Dolu) (Ex.P4) and pair of ear rings (Ex.P5).

After recording of the prosecution evidence, statements u/s 313 Cr.P.C. of the appellants were recorded. The appellants denied the entire incriminating evidence and pleaded their false implication.

The appellants in their defence examined DW1 Jagjit Singh, who deposed that prosecutrix is a lady of bad character and for this reason, her husband and her in laws had been picking up quarrels with her. He further deposed that the prosecutrix is in the habit of leaving her matrimonial house and once she also tried to commit suicide. However, the matter was compromised. It is also deposed by DW1 that there was a dispute between the accused and Kewal Singh, husband of the prosecutrix regarding the loan of Rs.24,000-25,000/-. DW2 - Gurdev Singh deposed that he is Ex-Sarpanch of Village Sohian and the place from where the prosecution was alleged to have been abducted, is a thorough-fare. He further deposed that many persons including ladies remain present at the spot. There is a bus stand, medicine shop, milk dairy and liquor vend near the place of alleged occurrence. DW3 - Baldev Singh and DW4 Kaka Singh have also deposed on similar lines.

The learned Trial Court after appraisal of evidence on record, came to a conclusion that guilt of the appellants stood proved on record and accordingly, they have been convicted and sentenced as referred to herein above. Hence, this appeal.

Sh. D.S. Gurna, learned counsel, appearing on behalf of the appellants, has contended that there is a delay of 20 days in lodging the FIR. He further contended that the conviction cannot be passed on sole deposition of the prosecutrix. There is no other evidence to corroborate her version. The statement of the prosecutrix suffers from material discrepancies. On the date of examination of the prosecutrix, no physical injury was found on her person or her private parts. The prosecutrix had given most improbable and unacceptable version of events that she was kidnapped from a heavily inhabited place where the shops, bus stand, liquor vend and a thoroughfare exist. Learned counsel for the appellants further contended that the appellants continued to rape the prosecutrix for two days and the recovery of ear rings and Dolu is not proved. The appellants have been falsely roped in the crime.

On the other hand, the learned State counsel has vehemently opposed the contentions raised by the learned counsel for the appellants by submitting that the prosecutrix did not tell the incident to her husband and her family with a view to save her honour and not to face unnecessary trauma at the hands of the family and her husband. In the present case, after some days, the prosecutrix told about the entire incident to her husband Kewal Singh, who along with other relations reported the matter to the Sarpanch of the village. Panchayat was called. When the accused did not appear before the Panchayat, then, application was submitted to the police authorities. Thereafter, the case has been registered. Thus, the delay has been duly explained. The evidence of the prosecutrix being sole witness cannot be discarded because the victim of sexual assault, is not an accomplice to the crime but is a victim of another men''s lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. The prosecutrix is a competent witness and her evidence must receive the same weight as is attached to the injured witness. Learned State counsel has contended that the learned counsel for the appellants has failed to point out any material discrepancies. The learned State counsel further contended that the contention of the learned counsel for the appellants is not sustainable as no injury on the person of the prosecutrix was found, specifically when she has been a victim of two persons and she was kidnapped by putting handkerchief laced with intoxicant, due to which she became unconscious and thereafter, the prosecutrix remained under fear of threat of the knives and her clothes have been torn by the appellants. Learned State counsel further contended that the version is probable as in the month of November, there is lot of fog and visibility is some time very low. The learned State counsel contends that in view of these grounds, the appeal cannot be allowed.

I have considered the rival submissions made by the learned counsel for the parties and perused the record with their assistance.

It is apparent from the record that the prosecution story stands fully proved from the statement of the prosecutrix (PW2) and the corroborating statements of PW3 - Harbhajan Singh and PW6 - Kewal Singh, husband of the prosecutrix. PW2 prosecutrix in her statement before the Court had given a vivid description of the entire incident as to how the appellants kidnapped her and put her in the car, thereafter, she became unconscious and taken to a room of motor at Village Sidhwan Kalan and her clothes were torn. Thereafter, she was brought at the motor of Gurchet Singh and the said incident was narrated to her husband, who called the relations and then, after considering the entire fact, an FIR was got registered.

The contention of the learned counsel for the appellants that delay in lodging the FIR was fatal to the prosecution, is devoid of any force and no benefit of the same can be given to the appellants. It had come on record that when the offence was committed, the prosecutrix was going to Gurudwara Tahli Sahib and was waiting for a tempo. When she was standing there, a Maruti car bearing No. PCS-8304 driven by Sukhminder Singh-appellant stopped and an enquiry was made where she was going. Before she replied, handkerchief was put on her face and she was thrown into car and she become unconscious. Due to trauma, she could not narrate the incident to her husband. Ultimately, after some time, she narrated the incident to her husband. Further in consultation with the relations, a complaint was made to the Sarpanch of the Village for which panchayat was convened wherein the appellants did not appear before the Panchayat. When no action was taken for some time, a written complaint was made to the police authorities, which led to registration of the case. In cases of offence u/s 366/376 IPC, an honour of the family is always involved, its members have to decide whether to take the matter to the court or not and such like considerations naturally cause some delay in lodging the FIR. In this case, sufficient explanation has been given as to under what circumstances delay was caused. Hence, the contention of the learned counsel for the appellants with regard to delay in lodging of FIR is not sustainable.

The next contention of the learned counsel for the appellants that the conviction cannot be passed on sole deposition of the prosecutrix, cannot be sustained in view of law laid down by the Hon''ble Apex Court in the matter of State of Maharashtra vs. Chandraprakash Kewalchand Jain, AIR 1990 SC 658 wherein the Hon''hle Supreme Court has held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person''s lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Hon''ble Supreme Court observed as under :

A prosecutrix of a sex-offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness u/s 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.

In State of U.P. Vs. Pappu @Yunus & Anr. AIR 2005 SC 1248, the Hon''ble Apex Court held that even in a case where it is shown that the girl is of easy virtue or is habitual to sexual intercourse, it may not be a ground to absolve the accused of the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the person of prosecutrix may not be a factor that leads the court to absolve the accused. The Hon''ble Apex Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Hon''ble Apex Court held as under :

It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.

In State of Punjab Vs. Gurmit Singh and Others, , the Hon''ble Apex Court held that in cases involving sexual harassment, molestation etc. the court is duty bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR for sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under :

The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix...............The courts must, while evaluating evidence remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case.............Seeking corroboration of her statement before replying upon the same as a rule, in such cases, amounts to adding insult to injury............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.

** ** ** **

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 State of Orissa Vs. Thakara Besra and Another, , the Hon''ble Apex Court held that rape is not a mere physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence.

A similar view has been reiterated by the Hon''ble Apex Court in Wahid Khan Vs. State of Madhya Pradesh,

In view of the above cited judgments, it is now settled law that the statement of the prosecutrix, if found to be worthy of credence and reliability, requires no corroboration. The court may convict the accused on the sole testimony of the prosecutrix. In view of the settled position of law, the statement of prosecutrix is worthy of credence and being reliable requires no corroboration, rather, in this case there is corroborating evidence of the husband and the other persons i.e. the Village Sarpanch (PW7) and Harbhajan Singh (PW3).

Learned counsel for the appellants failed to point out any material discrepancies which may go to the root of the case, rather there is unshakable evidence of the prosecutrix and other witnesses.

It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. The Trial Court after exercising due care and caution and sifting the evidence has come to a conclusion that the evidence of the prosecutrix is worthy of credence. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses. In this regard reference can be made to Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, ; Prithu @ Prithi Chand and Another Vs. State of H.P., ; and State of U.P. Vs. Santosh Kumar,

As regards the contention of the learned counsel for the appellants that on the date of examination of the prosecutrix, no physical injury was found on her person or her private parts, the Hon''ble Apex Court in the matter of Gurcharan Singh Vs. State of Haryana, , has held that "the absence of injury or mark of violence on the private part on the person of the prosecutrix is of no consequence when the prosecutrix is minor and would merely suggest want of violent resistance on the part of the prosecutrix. Further absence of violence or stiff resistance in the present case may as well suggest helpless, surrender to the inevitable due to sheer timidity. In any event, her consent would not take the case out of the definition of rape". In Devinder Singh and Others Vs. State of Himachal Pradesh, a similar issue was considered by this Court and the court took into consideration the relevant evidence wherein rape was alleged to have been committed by five persons. No injury was found on the body of the prosecutrix. There was no matting on the pubic hair with discharge and no injury was found on the genital areas. However, it was found that prosecutrix was used to sexual intercourse. The Hon''ble Apex Court held that the fact that no injury was found on her body only goes to show that she did not put up resistance.

Learned counsel for the appellants has contended that the prosecutrix was of bad character and was in the habit of leaving matrimonial home on her own and due to his reason, her husband and other relations had been picking up quarrels with her. The appellants have not led any evidence in this contention. Simply saying that prosecutrix is of loose morals or of easy virtue is not sufficient to exonerate the accused. As per settled principles of law, the accused are to lead cogent and convincing evidence to prove their case. In this regard, reference can be made in case State of Punjab Vs. Gurmit Singh and Others,

The learned counsel for the appellants further failed to point out any evidence on record as to why the prosecutrix had falsely implicated them. It is the case of the accused that Kewal Singh, husband of the prosecutrix had borrowed Rs.25,000/-from accused Gurchet Singh and on his failure to return the same, the accused have been falsely implicated. However, this plea has not been established on the record by leading cogent evidence.

In view of the above, I uphold the judgment delivered by learned Additional Sessions Judge in appeal. I also do not find any infirmity in the sentence awarded to appellants.

Today, learned counsel for the petitioner has placed on record the affidavit of husband of the prosecutrix (since prosecutrix has died) and contends that the appellants can be awarded minimum sentence and contends that compromise by the husband of the prosecutrix is a mitigating circumstance (as prosecutrix has since expired), the sentence may be reduced to already undergone.

Learned State counsel has opposed the contention of the learned counsel for the appellants. She has placed reliance on judgments of this Court in Sukhwinder Singh vs. State of Punjab, 1996(3) R.C.R. (Cri) 257 and Sanjay versus State of Haryana, 2003(4) R.C.R (Crl.) 136, wherein despite compromise having been effected between the prosecutrix and the accused, this Court declined compounding of offence of rape, it being a serious offence.

Thus, the compromise may be one of the mitigating circumstances for reduction in sentence, but it will send a wrong message to the society specifically in the gang rape cases I am not inclined to accept the contention of the learned counsel for the appellants. This case being a gang rape case. Consequently, the appeal is dismissed. In case the appellants are not in custody, they should be taken in custody to undergo remaining part of the sentence.