Sunder and Suresh @ Guddu vs State of Haryana

Sabina, J.—Appellants-Sunder and Suresh @ Guddu were convicted for an offence u/s 376(2)(g), 323, 342, 506 and 450 of the Indian Penal Code (`IPC'' for short) vide judgment dated 9.10.2003 passed by the Additional Sessions Judge (Adhoc), Fast Track Court No. II, Faridabad. The Additional Sessions Judge vide order dated 11.10.2003 sentenced the appellants to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 2000/- u/s 376(2)(g) IPC, they were also sentenced to undergo imprisonment for a period of six months u/s 323 IPC; to undergo imprisonment for a period of six months u/s 342 IPC; to undergo imprisonment for a period of three years u/s 506 IPC and to undergo imprisonment for a period of four years and to pay a fine of Rs. 1000/- each u/s 450 IPC. All the substantive sentences were ordered to run concurrently. Hence, the present appeal.

The brief facts of the case, as noticed by the Trial Court in paras 2 to 3 of its judgment, are as under:

Case of the prosecution as narrated by Smt. Neelam W/o Jagdish of the age of 40 years and examined as PW1 is that about 11/2 years back, she was living in Hodal along with her son and daughter Nirmala. On that day of occurrence she was sleeping in the court yard of her house. Between 11.00-12.00 at night accused Sunder, Suresh Guddu and one Nain Sukh entered her house. Accused Sunder had hit her with a `danda'' on her left shoulder. At that time, she was having a deep sleep. Accused Guddu gave a danda blow on her left leg around knee. Thereafter, all the three accused threatened her saying that she should not give evidence in a case pending against Nain Sukh and instead name some one else. On hearing her cries, her daughter who was sleeping inside the house came out. She was asked to bring a paper. When her daughter had brought two papers, the accused wanted her (complainant) to write thereon that accused Nain Sukh had not kidnapped and raped her daughter Nirmal but to write the name of some one else. When she had told the accused that she did not know how to write, the accused forcibly took her thumb impressions on two papers and also signature of her daughter Nirmala on those papers. They then took her daughter in the toilet of the house and raped her one by one. They had also got written something from her daughter. Thereafter, all the three had raped her (complainant) in the court yard of her house one by one in the presence of her daughter. They had also threatened her that if she gave any statement in the Court they would kill her and her children. Saying so, all the three accused went away. The complainant had thereafter given an application which is Ex.PA in the Police Station. The Police had thereafter come to her house and took into possession one `Safi'' and had also got her medically examined from Government Hospital Hodal. The Police had also taken into possession vide Recovery Memo Ex.PA/1 her salwar which the accused had torn out. She further stated that accused Sunder and Guddu present in the court were the same who had committed rape, and that these two accused used to come to meet another accused Nain Sukh (P.O.) who was tenant in her house. Accused Sunder was arrested on 13.10.2001. Accused Suresh @ Guddu on 28.10.2001 whereas the police could not arrest Nain Sukh. After completion of investigations, challan was put in court on 4.1.2002 only against Sunder and Suresh @ Guddu. The case against them was committed to Sessions on 25.1.2002.

Charge under Sections 376(2)(g), 323/34, 506, 342, 450 IPC against the accused was framed on 4.7.2002. Both the accused had pleaded not guilty to the charge. There then ensued their trial.

Nobody has appeared on behalf of the appellants. On the last date also, none had appeared on behalf of the appellants.

I have gone through the record of the case with the able assistance of the learned State counsel.

It has been held by the Apex Court in State of Punjab Vs. Gurmit Singh and Others, as under:

"Where the prosecutrix was rape, but the investigating agency failed to trace the car or its driver, the failure of the investigating agency cannot be 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. "

"In sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. Even if there is some delay in lodging FIR in respect of offence of rape, if it is properly explained and the explanation is natural in the facts and circumstances of the case, such delay would not matter."

"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 and 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 of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence on 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 self inflicted, 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 formual 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. "

One of the prosecutrix, while appearing in the witness box as PW1 has deposed that on the day of occurrence, Sunder had hit her with a danda on her left shoulder while she was sleeping. Guddu gave a danda blow on her left leg. All the three accused Guddu, Nain Sukh and Sunder threatened her not to give statement against Nain Sukh . On hearing the noise, her daughter PW2 woke up and came out. Her thumb impressions were taken on two blank papers. Thereafter, her daughter was taken to the toilet and rape was committed on her by all the accused one by one. The accused had also taken a writing from her daughter. Thereafter, all the three accused had raped her in courtyard in the presence of her daughter. She was threatened by the accused that if she made any statement in the Court she along with her children would be killed. Nain Sukh accused was her tenant and other accused used to come to visit Nain Sukh. PW2 has corroborated the statement of PW1.

PW3 Dr. Manjula Mishra found the following injuries on the person of PW1:

Swelling left elbow and fore arm 3 x 2 cm upper 1/3rd postro lateral aspect, tenderness present x-ray advised left elbow AP and lateral.

Bruise 3 x 1 m. lower 1/3rd of left thigh posterial aspect bluish in colour.

Abrasion 2 x 1 cm. reddish brown colour with swelling around it in middle 1/3rd left leg.

Swelling left foot 2 x1 cm

Doctor further opined, after going through Forensic Science Laboratory report Ex.PC, which was positive in respect of the daughter and negative in respect of the mother, that the possibility of rape on both could not be ruled out.

Thus, the ocular version is duly corroborated by the medical evidence. Both PW1 and PW2 had categorically deposed with regard to the rape committed on their person by the accused . They have withstood the test of cross-examination. The appellants have failed to rebut the statements of PW1 and PW2. No reliance can be placed on the testimony of DW1 as in her cross -examination, she has deposed that she had not signed Exhibit D1 but her husband had signed the same on her behalf. Exhibit D1 has been prepared by her husband. In these circumstances, the learned trial Court had rightly convicted and sentenced the appellants-Sunder and Suresh alias Guddu . Accused Nain Sukh was declared as a proclaimed offender. No ground for interference is made out.

Dismissed.