Sukhwinder Singh vs State of Punjab

R.L. Anand, J.

This is a criminal appeal filed by Sukhwinder Singh son of Nirmal Singh, resident of Hawara Kalan and it has been directed against the judgment and order dated 3.5.1996 passed by the Court of Additional Sessions Judge, Fatehgarh Sahib, who convicted this appellant under Section 376 IPC and sentenced him to undergo RI for a period of 8 years and to pay a fine Rs. 5000/; in default of payment of fine the appellant was directed to further undergo RI for two months for committing rape upon Smt. Baljit Kaur, a young girl of 19 years, wife of Swaran Singh. It may be mentioned here at the first instance that along with the present appellant, two more persons namely Srabjeet Singh and Bharpur Singh were also tried but the trial Court acquitted them for the reasons stated in the judgment and there is no State appeal against their acquittal.

The proceedings of the criminal case started on 20.6.1995 when Smt. Baljit Kaur prosecutrix gave her statement before DSP Ranjit Singh in which she alleged that she was the resident of Village Dugari, tehsil Chamkaur Sahib by birth and about three years back she was married to Swaran Singh of village Hawara Kalan. Yesterday i.e. on 19.6.1995 at about 11.00 a.m./12.00 noon when she was going to the shop of doctor for getting injunction injection ? and when she reached near the house of Nirmal Singh, Member Panchayat, his son Sukhwinder Singh who was standing at the door of his house, told her "sister inlaw (Sali) stop" and when she stopped he dragged her from her left arm inside the Baithak and made her by giving pushes. He bolted the door which opens towards street. Bharpur Singh alias Bhura son of Baldev Singh and Sarabjit Singh alias Jeeti residents of Badasha were sitting in the said Baithak. Sukhwinder Singh at that time was fully intoxicated. He lifted her and put her on a cot forcibly and started grappling with her. She tried to give pushes several times so that Sukhwinder Singh may not use force with her but he did not desist nor he paid any attention to her requests. Thereafter Sukhwinder Singh broke upon open ? the string of her Salwar and sexually assaulted her in order to satisfy his lust. During the process of rape, he gave her teeth bite on her right cheek. He grappled with her, as a result of which she sustained injuries on the upper part of her left arm, wrist and right arm, both her legs and abdomen. He plucked her breasts and as a result of the grappling she also suffered injuries upon her head with the Pawa of the cot hit upon her head. After committing rape Sukhwinder Singh exhorted his companion Sarabjit Singh alias Jita to enter inside the room, upon which Jita also committed rape upon her. Then Bharpur Singh entered inside the room and he also committed rape. In the meanwhile, the mother of Sukhwinder Singh knocked the door of the room and she gave a call, upon which Sukhwinder Singh told to the prosecutrix to run away from the room. The prosecutrix has further alleged that on account of the sexual intercourse committed upon her and also due to the injuries she remained lying on the place where she was laid. In the meanwhile her husband came there as he was trying to locate her. She knew all the three persons earlier. Two persons namely Sarbjeet Singh and Bharpur Singh had been coming to the house of their coaccused Sukhwinder Singh. It has been further alleged by the prosecutrix in her statement that her husband then took her to her house in a semiconscious condition. She sustained several injuries. She was afraid and nervous and due to this reason she remained present in her house. She earlier used to prevent her husband and other members of the family not to go to the police station because the assailants had given her the threat that in case she reported the matter to the police, her entire family members would be liquidated. It is further alleged by the prosecution (Prosecutrix ?) Baljit Kaur that she belongs to a poor family and for that reason she did not take courage to come out from the house in order to report the matter. However, on 20.6.1995 Sewa Singh, who also came at the spot, on the previous day, gave her the assurance and for that reason she along with Sewa Singh and other respectables of the village went to the office of DSP Shri Ranjit Singh in order to lodge the report. With above allegations Smt. Baljit Kaur gave her statement Ex.PA before the D.S.P. The statement was read over and explained to Smt. Baljit Kaur, who signed the same in token of its correctness. Shri Ranjit Singh, DSP made endorsement underneath the said statement and it was sent to Police Station Khamano for the registration of the case, on the basis of which formal F.I.R. Ex.PW4/A was recorded vide D.D.R. No. 15 at 11.15 p.m. on 20.6.1995. It may be mentioned here that the special report of this case reached the Illaqa Magistrate on the same day at 10.30 p.m. SI Swaran Singh PW4 took up the investigation of this case. At that time he was posted as SHO, Police Station Khamano. He met the prosecutrix along with her husband Swaran Singh and then he visited the place of occurrence. He inspected the spot and took into possession the broken pieces of bangles vide recovery memo

Ex.PW4/B. One bangle was also removed from the hand of the prosecutrix and it was also taken into possession. He sent Baljit Kaur for medicolegal examination through ASI Amrik Singh, who handed over the M.L.R. to the Investigating Officer on the next day. The Investigating Officer also prepared the rough site plan Ex.PW4/C. He searched for the accused on 21.6.1995. On the same day he also took into possession two parcels duly sealed with the seal of the doctor along with one envelope vide recovery memo which was attested by ASI Amrik Singh and Constable Sukhwinder Singh. The prosecutrix was also sent to the Court of Magistrate so that she may be able to make her statement under Section 164 Cr.P.C. On 27.6.1995 all the three persons named in the F.I.R. were arrested. The record of the trial Court also indicates that applications were moved by the Investigating Officer before the doctor on 27.6.1995 in order to ascertain the opinion of the doctor whether Sukhwinder Singh, Sarbjeet Singh and Bharpur Singh were fit to perform sexual intercourse or not. The doctor gave the opinion that they were fit to perform sexual intercourse. But these three applications and the opinion of the doctor have not been got proved by the Public Prosecutor, who conducted the case of the prosecution in the trial Court. What would be the effect of this omission would be also discussed in the subsequent portion of this judgment. 3. Baljit Kaur prosecuurix was medicolegally examined by Dr. Prabhat Sobha of Civil Hospital, Fatehgarh Sahib on 21.6.1995 and this doctor has given the opinion with regard to the injuries and about the finding of rape. She issued Ex.PW3/A, the correct carbon copy of M.L.R of the prosecutrix. I will incorporate and deal with the medical aspect of this case in the subsequent portion of this judgment along with the submissions raised by the learned counsel for the appellant. At this stage I may say that the swabs which were prepared by the doctor were sent to the office of Chemical Examiner/Serologist, who vide report Ex.PW3/B found semen on the Salwar of the prosecutrix. However, the Chemical Examiner could not found any blot on other exhibits such as Kameez, Dupatta and swabs prepared by the doctor.

With above broad S.P. The statement was read over and explained to Smt. Baljit Kaur, who signed the same in token of its correctness. Shri RaShri D.K. Sarpal under Sections 376, 342 and 506 read with Section 34 of the Indian Penal Code. The learned Magistrate supplied the copies of the documents to the accused as required under the law and vide commitment order dated 10.8.1995 committed the accused to face the trial in the Court of Session.

Vide orders dated 25.9.1995, charge under Section 376 IPC was framed against the accused. It was read over and explained to them. They pleaded not guilty and claimed a trial.

In order to prove the charge, the prosecution examined Smt. Baljit Kaur prosecutrix as PW1, Swaran Singh, the husband of the prosecutrix, as PW2, Dr. Prabhat Sobha as PW3, SI Swaran Singh as PW4 and after tendering into evidence report of the Chemical Examiner closed the case.

On closure of prosecution evidence statements of the accused were recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to them. The accused denied those circumstances. The plea of Sukhwinder Singh appellant was as follows :

"I am innocent. I have been falsely implicated in this case due to enmity as there was litigation between the father of Bharpur Singh accused and Gurdial Singh of village Badesh Kalan and said Gurdial Singh is related to DSP Ranjit Singh Dhillon, Khamano and we have been falsely implicated at the instance of DSP Ranjit Singh and Gurdial Singh."

I need not incorporate the plea of Bharpur Singh and Sarbjeet Singh as they have been acquitted by the trial Court.

When called upon to enter into their defence, accused examined DW1 Lajpat Rai. According to this witness, he went to the house of the prosecutrix and at that time he noticed that Baljit Kaur had wounds on her head at three places and these wounds were stitched by him. This doctor stated that he was told by Baljit Kaur that beatings were given to her by her husband. He did not notice any teeth bite on her cheek at that time. DW2 Jaswant Singh deposed about the litigation between Gurdial Singh and Gurdev Singh, who is the father of Bharpur Singh accused. DW3 Shingara Singh is the village Chowkidar, who says that if one has to go to the shop of DW1, he cannot pass in front of the house of the present appellant.

The learned trial Court believed the story of the prosecution in part and came to the conclusion that appellant Sukhwinder Singh committed a rape upon the prosecutrix but the court found that the evidence of the prosecutrix is not convincing visavis other two companions of the appellant and they were acquitted. Aggrieved by his conviction and sentence the present appeal by Sukhwinder Singh, which I am disposing of with the assistance rendered by Shri J.S. Mann, Advocate, who appeared on behalf of the appellant, Shri J.S. Brar, Deputy Advocate General, Punjab, who appeared on behalf of the State and with their assistance I have been able to go through the record of this case.

Shri Mann has challenged the story of the prosecution from different angles that it is the admitted case of the prosecution now that two of the alleged companions of the appellant were acquitted and in these circumstances the statement of the prosecutrix cannot be treated as wholly reliable; that the injuries on the prosecutrix were fabricated; that no incident of rape, as alleged by Baljit Kaur, had ever taken place and that Baljit Kaur is deposing falsely perhaps at the instance of DSP Ranjit Singh, who wanted to settle the score with the accused; that the conduct of the prosecutrix was highly improbable which is suggestive of the fact that it goes against the natural conduct of a woman who was subjected to rape by three persons; that at any rate it was a case of consent on the part of the prosecutrix keeping in view her conduct immediately after the occurrence and she can go to any extent in the false implication of the present appellant when her testimony has not been believed by the trial Court itself with regard to the two companions of the appellant. Also it was submitted that the prosecution has not been able to prove on record about the sexual fitness of the appellant as to whether he was fit to perform sexual intercourse or not, so much so the material exhibit of this case i.e. broken bangle has also not been exhibited. The counsel also placed reliance on Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 Supreme Court 753 and submitted that the evidence of a victim of sexual assault should be read on the same footing as that of an ordinary witness and implicit reliance cannot be placed on the testimony of a prosecutrix especially when she has been disbelieved by the trial Court in part. The counsel also raised an argument that there is a delay on the part of the prosecution (prosecutrix ?) when she did not go to the police station or police post on the alleged day of incident.

On the contrary, the learned Deputy Advocate General adopted the reasons advanced by the trial Court so far as the conviction of the present appellant is concerned and besides that he placed reliance on a judgment of the Hon''ble Supreme Court State of Punjab v. Gurmit Singh and others, 1996(1) RCR(Crl.) 533 : AIR 1996 Supreme Court 1393.

Before I deal in detail the submissions raised by Shri Mann, I would like to quote with approval the observations of the Hon''ble Supreme Court given in two celebrated judgments i.e. State of Punjab v. Gurmit Singh and others, (supra) and State of Andhra Pradesh v. Gangula Satya Murthy, AIR 1997 Supreme Court 1588. The Hon''ble Supreme Court had laid down firstly that in sexual offences delay in the lodging of the F.I.R. can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It was then observed by the Hon''ble Supreme Court in this very citation as to how the testimony of the prosecutrix should be evaluated, what is the evidentiary value, whether corroboration part is necessary or not and if so to what extent and it was held as follows :

"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 the 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 in 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 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."

Also the Hon''ble Supreme Court dealt the situation by taking into consideration how to deal with the sexual offences and the dictum of the Hon''ble Supreme Court is as follows :

"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 physiological 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."

Some observations were also given by the Hon''ble Supreme Court in para No. 27 of the judgment in case State of Andhra Pradesh v. Gangula Satya Murthy (supra), which I would like to quote as under :

"Before parting with the case we would like to point out that the Courts are expected to show 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 witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of late crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman''s rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasise that the Courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in the totality of the background of the entire case and not in isolation. One of us (Dr. Anand, J.) has observed in State of Punjab v. Gurmit Singh, 1996(2) SCC 384 thus :

"The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity."

Even the judgment which has been brought to my notice by the learned counsel for the appellant goes against him as the Hon''ble Judges of the apex Court were cognizant of the fact that to what extent a corroboration is possible while assessing the testimony of the prosecutrix. The Hon''ble Judges in para Nos. 7, 9, 10 and 11 laid down the following dictum :

"Corroboration is not the sine qua non for a conviction in a rape case. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion To do so is to justify the charge of male chauvinism in a male dominated society.

A girl or a woman in the tradition bound nonpermissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends and neighbours. She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. In view of these and similar factors the victims and their relatives are not too keen to bring the culprit to book. And when in the face of these factors the crime is brought to light there is a builtin assurance that the charge is genuine rather than fabricated.

On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just a witness who has sustained an injury (which is not shown or believed to be selfinflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sexoffence is entitled to great weight, absence of corroboration notwithstanding. And while corroboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the Western World. If the evidence of the victim does not suffer from any basic infirmity, and the `probabilitiesfactor'' does not render it unworthy of credence as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming subject to the following qualification : Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of selfpreservation. Or when the `probabilitiesfactor'' is found to be out of tune."

Now in the light of the above observations, I would like to deal with the evidence led by the prosecution on the record and the submissions raised by Shri Mann as the task of this Court would become easier if the evidence of the prosecution is examined in the light of the above observations.

Smt. Baljit Kaur appeared as PW1 and she stated that on 19.6.1995 at about 11/12.00 noon she was going to the village doctor for getting herself vaccinated and reached near the house of Nirmal Singh, panch of the village. Sukhwinder Singh appellant asked her to stop. Then Sukhwinder Singh caught hold her from her arm took her inside the room and threw her on the cot and he locked the door from inside. He gagged her mouth. Both Biti (Jiti ?) and Bhura (since acquitted) came out from the room and locked the door from outside. Sukhwindr Singh appellant committed sexual intercourse with her against her will. She gave pushes to him but all in vain. Thereafter the appellant called the other accused persons. Then Jiti committed rape with her against her consent and thereafter Bhura committed sexual intercourse with her forcibly without her consent. She has further deposed that "During the scuffle I received the injuries on my head. I also received injuries on my arm, and leg. Sukhwinder Singh gave me teeth bite on my right cheek. They also pulled my breast while they were committing sexual intercourse with me forcibly." Further it has come in the statement of the prosecutrix that the mother of the appellant came there and she knocked the door, upon which the appellant asked the prosecturix to run away, but she told that she was not in position to go. Upon this the assailants opened the door. The mother of the appellant called the husband of the prosecutrix. Her husband then enquired from the prosecutrix as to why she was sitting there and she told her husband that she would disclose the whole incident on reaching her house and thereafter she narrated the whole occurrence to her husband at the house. Further it has been stated by the prosecutrix "The accused persons gave a threat that our family will be eliminated in case we have taken any action. Due to fear we remained in the house. Sewa Singh uncle of my husband came there and took us to DSP Khamano." Thus, it will be seen that the family of the injured/victim of assault was pitted against the family of a member Panchayat Nirmal Singh, whose son is the present appellant. In this regard I would also like to deal with the statement of PW2 Swaran Singh, husband of the prosecutrix, who is a labourer by profession. According to this witness, on the day of occurrence at about 11/12.00 noon his wife told him that he should look after the child as she is going to take some medicine of low blood pressure. Baljit Kaur then left for the village doctor to get medicine and after about 45 minutes he went to enquire about Baljit Kaur as she had not returned from the doctor. Then he saw all the three persons including the present appellant coming out of the house of Nirmal Singh, member panchayat. Swaran Singh has also stated "Sukhwinder Singh told me that they had done their job and in case I disclosed anything to any person you will be done to death.'''' Then mother of Sukhwinder Singh called me inside the house and I saw my wife on the cot and was lying naked with torn salwar and then I put her Salwar on and she was too much frightened and she told me that she will disclose the occurrence while reaching the house and then I took her to my house. Then Baljit Kaur told me that first of all Sukhwinder Singh committed the rape upon her and thereafter Jiti alias Sarbjeet Singh. Thereafter Bharpur Singh alias Bhura committed rape on her at the abetment of the other accused though he was not willing to do so. On the day of occurrence, we remained in our house and did not go anywhere. Sewa Singh had also come at the place of occurrence. Myself, my wife, Sewa Singh, Malkiat Singh, Jang Singh and 4/5 other persons had gone to the office of DSP Khamano. Sewa Singh told us as to why they are sitting idle due to fear when a heinous crime has been committed. Thereafter I accompanied Sewa Singh to the office of DSP Khamano where he recorded the statement of Baljit Kaur." Thus the testimony of Baljit Kaur coupled with the testimony of her husband would fully establish that Baljit Kaur was a victim of assault. The testimony of a prosecutrix is like an injured witness. She is not an accomplice. I have pointed out above that rule of corroboration is a rule of prudence and not a rule of law. To seek corroboration in material particulars to the sworn testimony of the

prosecutrix would amount to adding insult to her injury. I cannot lose sight of the fact that Baljit Kaur hails from a family of labourers, while the present appellant is the son of a member panchayat of the village having a population of 3000/4000. In these circumstances, the testimony of Baljit Kaur cannot be rejected on the sole ground that at the spot she did not tell her husband that the appellant had committed rape upon her. She categorically stated to her husband that she will narrate the entire occurrence while reaching at the house where she vomitted the occurrence. Thus there is a corroboration by way of res gastae to the statement of Baljit Kaur when she has implicated the present appellant. Even if it is assumed for the sake of argument that Baljit Kaur had not narrated the occurrence to her husband and Sewa Singh on 19.6.1995, still the story of prosecution cannot be thrown away as in such like offences delay is bound to take place because of the involvement of the honour of the family. 18. The counsel for the appellant was critical that when the prosecutrix was being dragged inside the house of the appellant, at that point of time she ought to have raised hue and cry attracting the persons from the neighbourhood of the house of Nirmal Singh. She does not do so. When the mother of the appellant knocked the door from outside at that time too she does not narrate the occurrence to the mother of the appellant. This conduct of the prosecutrix is highly improbable. It shows that no occurrence has taken place as alleged by the prosecution or if it had taken place, it was with the consent of the prosecutrix. Both these submissions are totally devoid of any merit when there is categorical statement of the prosecutrix that she was subjected to rape by the present appellant and his companions. Her telling the occurrence to her husband immediately on her arrival at her house, this is in consonance with the conduct of an Indian woman. Rather the prosecutrix has furnished the explanation in consonance with her conduct by deposing that she had raised the hue and cry when Sukhwinder Singh was dragging her from the street, but none came there because the people/villagers had gone to the fields due to the harvesting season of Moongi. It is expected too much from an Indian woman, who has already been dishonoured and molested at the hands of a superior male to go on narrating how she was molested. She was not supposed to give demonstration to everybody. Sexual acts are not given in detail nor those are illustrated in depth. There is a way of description of such like ugly incident and every woman would have her own style when she would depose as to whether a sexual act has been committed upon her or not against her wish or consent. What is the fault of the prosecutrix ? She narrated the incident to Police Post Hawara which was installed in the village itself, but nobody was going to take the action, as a result of which the assistance had to be taken of the D.S.P. when the prosecutrix, her husband, Sewa Singh and others went to the office of D.S.P., Khamano on 20.6.1995. Had no incident taken place why Baljit Kaur would be at the beck and call of a relation of D.S.P. for the false implication of the present appellant with whom said Gurdial Singh had no direct enmity. Why Smt Baljit Kaur should go to the extent of saying that she was allegedly raped by three persons ? Why she should tear her own abdomen at the behest of others ? All these factors have to be taken into consideration with a logic. Mere wish of the accused, who wanted to convince this Court that he was the victim of enmity, cannot be accepted. The husband of Smt. Baljit Kaur is not related with any of persons with whom the enmity is being pleaded. Baljit Kaur though was married, but there is nothing on the record to suggest that she could yield before anybody or could dance at the behest of anybody even to the extent of surrendering her body. The theory of consent is totally ruled out when I see to the injuries of the prosecutrix. No doubt, she is above 16 years of age, but definitely she was not a consenting party. In such like cases the testimony of the prosecutrix is the main evidence. The point is only as to whether the reliance should be placed or not. Sexual offences are not committed in public. Sexual offences like rape are not supposed to be committed ordinarily in the gaze of the public at large. The modus operandi of the assailant is such like cases is either to confine the prosecutrix in a room or by taking an advantage of a lonely place the honour of the girl is taken. It is also highly improbable that prosecutrix would willingly go to the house of the appellant at about 11.00/12.00 noon fully realising that the parents of the appellant are also residing there.

Now I would like to discuss the statement of Dr. Prabhat Sobha, who deposed that on 21.6.1995 when she examined the prosecutrix, it was narrated to her by the prosecutrix that she was raped by three persons while she was going to get medicines from a village doctor at about 10.00 a.m. on 19.6.1995 in the house. The doctor noticed as many as 12 injuries on the person of the prosecutrix which are reproduced as under :

Scalp wound about 15 cm x 1/2 cm already stitched, second scalp wound about 7 to 8 cm x 1/2 cm. already stitched. Advised dressing.

Linear brownish abrasion about 5 cm x 1 cm above the right eye brow.

A teeth bite about 4 cm x 4 cm on the right anterior cheek, brownish coloured.

Two abrasions about 1 cm x cm, 1 cm x cm on the lateral aspect of right forearm.

One abrasion about 5 cm x 2 cm on the left upper arm, brownish coloured with tenderness.

Swelling and tenderness of all the fingers of the left hand.

On the rt. breast linear abrasion about 3 cm x 1 cm, brownish coloured with tenderness.

On the left side of lower abdomen abrasion about 2 cm x 2 cm, brownish coloured.

On the right side of the back near scapular region two linear scratches brownish coloured.

On the left knee linear, brownish coloured abrasion 5 cm x 2 cm with swelling and tenderness around it.

On the right leg one abrasion 2 cm x cm on the knee, three abrasions on the shin.

On the left leg oval 3 cm x 1 cm wound on shin with swelling and tenderness.

I would like to stress upon injuries Nos. 2 to 12. These injuries are clearly indicative of the fact that the prosecutrix was the victim of force. Injury No. 7 in particular indicates that the doctor notices a linear abrasion about 3 cm x 1 cm, brownish in colour, with tenderness on the right breast of the victim. With regard to injury No. 1, I may say that though it is mentioned in the statement of the prosecutrix that Pawa of the cot hit on her head and this aspect has not been narrated specifically by the prosecutrix, yet no benefit can be given to the appellant when the prosecution has not explained injury No. 1 specifically and in an elaborate manner. The reason being is that if the prosecutrix has omitted to explain one injury in her substantive statement, it is no ground to reject her testimony, especially when she has stated that force was used, she was dragged and during the process of completion of sexual act she was maltreated. Injury No. 1 cannot be held to be selfsuffered as it is on the vital part of the body with a vital dimension such as 15 cm x cm. The lady doctor also stated in her statement and in the medicolegal examination that whitish discharge was present on the labia minora. Though the vagina admitted two fingers but there was tenderness. There was the evidence of discharge and bad smelling. The Salwar which was taken into possession by the doctor ultimately was found to be stained with semen. All it indicates that the victim Baljit Kaur was subjected to sexual intercourse; force was used and she was not a consenting party. The number of injuries on her person do not suggest that she was a consenting party. Had she wanted to submit herself with consent, this Court would not have expected injuries on her body. I am not in a position to accept the argument of Shri Mann when he stated that the injuries must have been caused to the prosecutrix by her husband on coming to know that his wife had indulged in sexual acts. There is no earthly reason why the husband of the prosecutrix would cause injuries to his wife. The seats of injuries are such which prima facie indicate that such like injuries can be suffered by a victim of assault in that process when she was being subjected to rape by a stop person. I cannot use the factum as a substantive evidence that this appellant was under the influence of liquor because of want of evidence, but this fact cannot be lost sight that in the initial F.I.R. there was a mention that the present appellant was under the influence of liquor. Be that as it may, I have to see by making an overall assessment of the testimony of the prosecutrix as to whether she is reliable, if so, to what extent. It is true that with regard two person (since acquitted), the prosecutrix could not be able to fix their identity in a satisfactory manner for which the benefit of doubt has been given. But so far as the present appellant is concerned, the testimony of the prosecutrix inspires full confidence in the mind of this Court. She is a partly reliable witness. Her testimony finds full corroboration from the testimony of her own conduct besides the testimony of her husband apart from the medical evidence and also from the observation of the Thanedear, who visited the place of occurrence and took into possession broken bangles which are suggestive of the fact of violence. The nonproduction of the bangles does not detract the evidentiary value of the prosecutrix. The broken bangles were only a corroborative measure. If this Court is inclined to accept the testimony of the prosecutrix by applying the test of rule of caution then the position of the law is well settled that conviction can be recorded even on uncorroborative testimony of a prosecutrix. We all know that false in one particular may not be false in every particular. If the trial Court has disbelieved the story of the prosecutrix visavis two persons, it is no ground straightway to reject the entire prosecution story visavis the present appellant when there is a consistent, cogent, reliable and satisfactory evidence led by the prosecution to prove the charge and when this Court finds that the theory of defence/enmity is a concoction, the Court should act upon the witnesses of the prosecution.

Now I will deal with the omission performed on the part of the prosecutor when he did not examine the doctor who medically examined the appellant about his fitness to perform sexual intercourse. I have stated above that the application along with the opinion of the doctor is on the record but since it has not been exhibited or put to the accused, I cannot take that circumstance into consideration. In the opinion of this Court that omission though relevant but does not create a reasonable dent in the story of the prosecution so as to put it in a wastebasket. It was not the defence of the appellant that he was not fit to perform sexual intercourse. The categorical statement of the prosecutrix, who is a married woman, can be easily relied upon as to whether the penis of the present appellant entered in her private part or not. She could easily feel it as to whether sexual act was performed upon her or not. There is a categorical statement to that effect coupled with the statement of the doctor, who found tenderness in the private part of the prosecutrix. I can only say that the Public Prosecutor when conducting such like sensitive cases should try to see that no relevant part of the prosecution evidence should remain under a way. it is the initial duty of the prosecution to prove the charges. Fortunately for the prosecution that the nonproving of the opinion of the doctor has not caused any lacuna for which the benefit could be granted to the present appellant.

Summarising my above discussion, I am of the opinion that though Smt. Baljit Kaur was not wholly reliable but the reliable portion of her statement still makes out a strong case beyond shadow of doubt that appellant committed rape upon her against her wish and consent though the prosecutrix was major. The medical evidence corroborates her version. Her testimony is like an injured witness. She was not an accomplice when she was subjected to rape. The injuries on her person came on her body during the process when she was being subjected to rape. There was sufficient corroboration, oral and documentary, so as to believe the testimony of the prosecutrix. Injury No. 1 was not caused by a third party person. Rather this injury was also caused during the course of occurrence. It was not a manufactured injury as tried to be depicted by the counsel for the appellant. There was no good reason that husband would cause injuries to his wife. I was not impressed with the argument of the learned counsel for the appellant that D.S.P. was behind the curtain or that he manipulated the services of the prosecutrix in order to cause harm to the appellant. The acquittal of two persons is no premise straightaway to extend the same benefit to the present appellant.

Lastly, it was submitted by the learned counsel for the appellant that the sentence awarded to the appellant is excessive. The persons who commit such like sexual offences with a weaker section of the society invariably do not deserve any sympathy. Every case has to be viewed individually in the matter of sentence. After seeing all the circumstances of this case, I have come to the conclusion that the ends of justice will suffice and the spirit of penology would also be met if the substantive sentence of the appellant is reduced from eight years to seven years and it is so ordered. In all other respects the appeal of the present appellant fails.

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