Sumer vs State of Haryana

R.L. Anand, J. (Oral)

This is a criminal appeal filed by Sumar and Raju @ Satbir and has been directed against the judgment and order dated 8.10.1998 passed by Sessions Judge, Jind, who convicted the appellants under Sections 366 and 376G of the Indian Penal Code and sentenced them to undergo RI for a period of 5 years each and to pay a fine of Rs. 1,000/ each; in default of payment of fine to undergo RI for 3 months, under Section 366 I.P.C. and to undergo RI for a period of 10 years each and to pay a fine of Rs. 2,000/ each; in default of payment of fine to further undergo RI for 6 months, under Section 376G I.P.C. Both the sentences were ordered to run concurrently.

The brief allegations of the case are that on 21.12.1997 at 2.30 P.M., Suman prosecutrix, resident of Gandhi Nagar, Narwana, aged 13 years, was on way to the shop of Madan for bringing milk, when Sumer and Raju alias Satbir appellants dragged her inside their house, shut the door thereof and raped her one after the other. The appellants told her that in case she informed anybody about the act, she would be killed. However, the noise made by the prosecutrix attracted Dalbir PW, a neighbour of the appellants, to latter''s house. He got the door opened and rescued the prosecutrix from the appellants. Then the prosecutrix went to her house and narrated the incident to her parents. The latter, accordingly, visited the house of the appellants to complain against their act. The relatives of the appellants, thereafter, came to the house of the prosecutrix for abusing and beating them. Gaje Singh son of Bhalla also came to the house of the prosecutrix and gave beating to her. The latter made a complaint to the police and on its basis this case was registered. The police moved an application before the doctor and got the prosecutrix medicolegally examined. Sumer appellant was arrested on 23.12.1997, whereas Raju appellant was arrested on 25.12.1997. They were also got medicolegally examined. The statement of the prosecutrix under Section 164 Cr.P.C. was got recorded by the police from Shri Baljit Singh, Sub Divisional Judicial Magistrate, Narwana and after completion of the investigation of the case, appellants were challaned in the Court of Area Magistrate, who supplied the copies of documents to the appellants and vide commitment order dated 6.2.1998 committed them to the Court of Session.

Both the appellants were chargesheeted under Sections 366 and 376G I.P.C. The charges were read over and explained to the appellants to which they pleaded not guilty and claimed a trial.

In order to prove the charges, the prosecution examined PW 1 Suman prosecutrix, PW 2 Dr. Shashi Singla, PW 3 Dr. B.R. Kayat, PW 4 Dr. R.K. Sharma, PW 5 HC Maman Ram, PW 6 Constable Surinder Singh, PW 7 Constable Mohinder Singh, PW 8 Pushpa Sharma, PW 9 Dalbir Singh, PW 10 Bimla, PW 11 Baljit Singh, SubDivisional Judicial Magistrate, Narwana, PW 12 Constable Laxman Singh and PW 13 ASI Data Ram. Suraj Bhan PW was given up as having been won over by the appellants.

The statements of the appellants were recorded under Section 313 Cr.P.C. and all incriminating circumstances appearing in the prosecution evidence were put to them. They denied those circumstances and stated that they were innocent. In defence, they did not examine any witness.

The learned trial court for the reasons given in para Nos. 8 to 11 of the judgment convicted and sentenced the appellants in the manner as stated above and aggrieved by their conviction and sentence, the present appeal. I would like to quote the reasons contained in para Nos. 8 to 11 of the trial court judgment, which have been relied upon by the learned Sessions Judge in basing the conviction against the appellants, as under :

"8. In the beginning itself, it may be mentioned that it is a case in which the prosecutrix after having named and also described the two accused as the culprits who had gang raped her during day time at 2.30 P.M., not only in the complaint made to the police (Ex. PR) but also in her statement recorded by the Sub Divisional Judicial Magistrate, Narwana, under Section 164 Cr.P.C. (Ex. PA), while appearing as PW 1 during the trial, wanted this court to believe that she had not seen the faces of the culprits as they had muffled those. She, of course, supported the prosecution regarding the date/time at which and the place from which she was dragged by the two culprits inside the house where she was raped by them, one after the other. But by stating that the rapists had muffled their faces, she changed her earlier version given to the police and also before the Judicial Magistrate in which she had clearly disclosed the identity of the rapists as Sumera son of unknown, Barber by caste, and Raju son of Rai Singh, Jhimar by caste, both residents of Gandhi Nagar, Narwana, i.e. the two accused facing trial in this case. The most material fact to be kept in view in this connection is that the prosecutrix as well as both the accused are not only residents of the same town (Narwana) but are also residents of the same locality (Gandhi Nagar), and the former had not only given the names of the two accused in her complaint Ex. PR but had given complete particulars of their addresses also in it. That being so, simply because, for one reason or the other, she chose not to disclose the identity of the rapists while appearing as PW 1, the prosecution case against the accused cannot be thrown out, particularly when besides other facts, the identity of the accused stands fully established from her statement, Ex. PA, recorded by the Judicial Magistrate, Narwana, under Section 164 Cr.P.C. on police request, Ex. PQ. The Magistrate appeared in the witness box as PW 11 and made a categorical statement to the effect that statement Ex. PA was made before him by Suman prosecutrix who was produced before him by ASI Data Ram (PW13) alongwith application Ex.PQ. He further testified that this statement was read over to her and she had thumb marked it after accepting its contents to be correct. It is also in his statement that none else was present in court when he recorded her statement. There being absolutely nothing on record to doubt the veracity of this Judicial Magistrate there is no reason for disbelieving him, and once he is believed, the plea taken up by Suman PW that she was forced by the police to make statement Ex.PA before the Judicial Magistrate has to be just brushed aside, as being not true.

It may also be mentioned that Suman prosecutrix (PW1) could not conceal the fact she had narrated the incident to her parents. Her mother, Bimla, while appearing as PW10, also stated so. But, like her (prosecutrix), she (PW10) also concealed the identity of the culprits during the trial. In fact, she went a step further and gave a twist to the testimony of the prosecutrix also, by stating that as the latter had made noise, the culprits left her (without raping her) and ran away. This fact, alone, is sufficient to infer that she had intentionally tried to save the accused, for one reason or the other. PW9 Dalbir who, according to the prosecution, had reached the house of the accused on hearing the cries of Suman PW and had rescued her by getting the door of the room opened, had also been won over by the accused, and as such, he too did not support the prosecution case. But, in this connection also, it is material to note that he is the next door neighbour of the accused, and the prosecution version is that on hearing the cries of the prosecutrix, he entered the house of the accused by jumping over the wall of his house and rescued her from the accused who were raping her. Learned Public Prosecutor duly confronted him with his statement Ex. PM recorded by the police during investigation under section 161 Cr.P.C. in which he had clearly stated that he had seen the accused committing rape on the prosecutrix.

As stated above, the prosecutrix and also the other witnesses did not identify the accused as the culprits, during the course of their evidence recorded in court. But, as per learned Public Prosecutor rightly contended the occurrence had taken place during broad day light at 2.30 P.M. and, as such, there was neither any occasion for the culprits to have muffled their faces at such an hour of the day nor does such story otherwise appear to be probable. In any case, whatever possible lacuna regarding the identity of the accused was created by the prosecution witnesses in their evidence recorded in court during the trial, the same stood duly filled up by the statement of the prosecutrix recorded under section 164 Cr.P.C. by Shri Baljit Singh, Sub Divisional Judicial Magistrate, Narwana, in which she had clearly named the two accused as the culprits who had gang raped her. A rape case, undoubtedly, stands on a comparatively different footing from the other criminal cases, as the degree of decency and morality in public life in India hardly stimulates a woman to stake her reputation by levelling a false charge concerning her chastity. In the case in hand, the prosecutrix had named the two accused as the culprits not only in the F.I.R. but also in her statement recorded under Section 164 Cr.P.C. Learned counsel for the accused, however, relied upon State v. Bhagla and another, 1973 Punjab Law Reporter 613 in which the witnesses had stated before the Committing Magistrate that they were not present on the spot on the day of occurrence and did not know who had murdered the deceased and that they made their statements under section 164 of the Code of Criminal Procedure before the Magistrate under pressure of police. The Hon''ble High Court held that on the basis of their testimony, no conviction was possible and the Judicial Magistrate had rightly discharged the petitioner. I have carefully gone through this authority. Facts of that case were totally different from those of the present case. In that case, FIR was recorded on 6.5.1967 but the case was forwarded to the Illaqa Magistrate for commitment proceedings on 26.9.1967 i.e. after a long delay of about five months. It was only on September 15, 1967 that the statements of three alleged eye witnesses were got recorded under section 164 of the Code of Criminal Procedure and thereafter challan was filed in court. The Investigating Officer was not examined as a witness and as such, it could not be known to the court as to why the delay of about five months occurred in filing the case for commitment in court. Nothing of this type had, however, happened in the present case. Here, F.I.R. was recorded on 21.12.1997 and challan was filed in court just one month and three days thereafter i.e. on 24.1.1998. In so far as the statement of the prosecutrix under section 164 of the Code of Criminal Procedure is concerned, it was got recorded just on the fourth day of the occurrence i.e. on 24.12.1998. That being so, no advantage can be drawn by the defence from the observations of the Hon''ble High Court in the authority, above referred to.

Besides, the medical evidence also corroborates the prosecution case. It is in the statement of PW2 Dr. Shashi Singla, who had medicolegally examined the prosecutrix, that underwear Ex.P1 was got removed by her from the person of Suman Prosecutrix at the time of the time of her examination. The prosecutrix, as PW1, also could not deny that underwear Ex.P1 belonged to her and was the same which was got removed by the lady doctor from her person at the time of her medicolegal examination. Report of Director, F.S.L. (H), Ex.PO/1, shows that this underwear was stained with one large bloodstain in the lower middle region. This piece of evidence, read in conjunction with the testimony of PW.2 Dr. Shashi Singla, to the effect that hymen of the prosecutrix was ruptured and bloodstains discharge was present, and the fact that the Director, F.S.L., vide his reports Exs.PO and PO/1, detected semen on the trousers Ex.P.2 of Sumer accused and the underwear Ex.P.3 of Raju alias Satbir accused also, leaves no doubt in concluding that it were the accused who had raped the prosecutrix, aged 13 years (Re. PW8), after having abducted her."

In the opinion of this court, the learned Sessions Judge has adopted a wrong approach into the matter. She has ignored the basic principle of law that the statement under Section 164 Cr.P.C. is not a substantive piece of evidence. It can only be used for the purpose of corroboration and contradictions. This is so held in Ram Kishan Singh v. Harmit Kaur and another, 1972 SCC (Cri) 493. The Hon''ble Supreme Court held as under in this very judgment :

"A statement under Section 164 of the Code of Criminal Procedure is not substantive evidence. It can be used to corroborate the statement of a witness. It can be used to contradict a witness."

Now we have to see what has been stated by the material witnesses of this case. Prosecutrix Suman appeared as PW 1. Firstly, she gave her age as 17 years, while as per the prosecution she was aged 13 years at the time of incident. By that as it may, the prosecutrix stated as follows :

"About more than 4 months ago, at about 2.30 P.M., I was going to the shop of Madan to bring milk. Two persons who had muffled their faces met me. They took me in a ghair and raped me. Both raped me. One caught hold of my hands and the other raped me. Subsequently, they changed their roles and the one who had earlier held my hands, raped me and the other who had earlier raped me, held my hands. I made raula but none was attracted to the spot. I did not get a case registered in the police station. I narrated the incident to my parents."

Thus the substantive statement of Suman does not implicate any of the appellants. She has totally changed the story. This witness was declared hostile by the prosecution and in spite of the fact that opportunity was given to the prosecution, nothing has come out which may be considered as favourable to the prosecution. The second witness in this case is PW 9 Dalbir Singh, who, according to the prosecution, allegedly heard the cries and saw the occurrence. Let us examine his statement on oath which was made in the court. According to this witness, the things happened in this manner :

"I do not know any Raju s/o Rai Singh. I did not hear any cries or raula on 21.12.1997. I did not see any girl being raped."

This witness was also declared hostile and in spite of the fact that opportunity was given to the prosecution to crossexamine this witness, nothing has come out.

Lastly, the point which survives for determination is whether a conviction can be based on the allegations of the report under Section 173 Cr.P.C. or under Section 164 Cr.P.C. I have already stated that the statement under Section 164 Cr.P.C. is not a substantive piece of evidence. It can only be used for the purpose of corroboration by the prosecution or contradiction by the accused. When the prosecutrix and the alleged eye witness have not supported the case of the prosecution, how the learned Sessions Judge recorded the conviction of the appellants, which cannot be swallowed. The statements of other prosecution witnesses will not advance the case of the prosecution when the pivot of a chariot collapsed. The basic law is that the allegations howsoever strong may be, cannot take the place of proof. Our law courts are governed by rule of law and cannot be swayed for moral considerations. On the allegations under Section 173 Cr.P.C. a person cannot be convicted. Even the testimony of Smt. Bimla, who is none else but the mother of the prosecutrix, does not support the case of her daughter. Her statement is as follows :

"Suman PW is my daughter. About 41/2 months ago, she had gone to bring milk from the shop. She returned after a long time. She told me, on return, that when she was bringing milk, two boys with muffled faces took her in a ghair. She further told me that she made raula and therefore, they left her and ran away."

This witness also does not corroborate the allegations of the prosecution and in spite of all these lacunas, the learned Sessions Judge has recorded the conviction. The approach on the part of trial court was totally erroneous, illegal and perverse.

Resultantly, I allow this appeal, set aside the judgment and order of the trial court and acquit the appellants of the charges framed against them.