Vijender alias Kala vs State of Haryana

Kanwaljit Singh Ahluwalia, J.—The present appeal has been filed by Vijender alias Kala son of Parkash, aged 19 years. He was named as accused in case FIR No. 276 dated 22.9.1996 registered at Police Station Narnaund, u/s 376 IPC. The trial Court found the appellant guilty for an offence u/s 376 IPC and sentenced him to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 1,000/-. In default of payment of fine, to undergo further rigorous imprisonment for a period of six months.

In the present case, the FIR was lodged by the prosecutrix, a married lady, aged 19 years (name of the prosecutrix is withheld to protect her identity). The prosecutrix had made statement on 22.9.1996 Ex.PF to Hari Ram, Assistant Sub Inspector, PW. 11. In the FIR, it was stated by the prosecutrix that she belonged to village Faridpur but was married at village Bas Akbarpur. Her husband was having two brothers. On 19.9.1996 at about 7.00 A.M., prosecutrix along with her sister-in-law (Jethani) Krishna and brother-in-law (Jeth) Satbir had gone to cotton fields to pick cotton crop. Her brother-in-law Satbir and sister-in-law Krishna, were cutting grass in the adjoining fields, on the other side of the canal minor. About 15/20 minutes later, accused came in the fields, gagged mouth of the prosecutrix and made her fall on the ground. After breaking string of her salwar, he forcibly committed sexual intercourse with the prosecutrix. On a noise raised by the prosecutrix, Satbir, elder brother of her husband and Krishna wife of Shamsher who is also elder brother of the husband of prosecutrix were attracted to the fields. The witnesses made an attempt to apprehend the accused but he ran away from the spot.

The above said FIR was investigated and a report u/s 173 Cr.P.C. was submitted.

The appellant was charged for offence u/s 376 IPC by the Court of Sessions Judge, Hisar. The charge stated that on 19.9.1996, in the area of village Bas Akbarpur, the appellant had committed rape with the prosecutrix. The appellant pleaded not guilty and claimed trial.

Prosecution examined Dr. (Mrs.) Nirmal Bhatia as PW. 1. She stated that the age of prosecutrix was 19 years. She further stated that no external mark of injury on any part of the body of prosecutrix was found. She further stated that pubic hair were normal, and vagina admitted two fingers easily. In cross-examination, this witness stated that the prosecutrix was a well built lady and if she had resisted to the assailant, some injuries on the person of accused as well as on the body of prosecutrix were bound to have occurred.

PW. 2 Balbir Singh, Patwari, proved scaled site plan Ex.PC. In cross-examination, he stated that killa No. 486 is situated on the northern side of Landa Rajwaha.

PW. 3 Subhash Kumar, Photographer, proved photographs Ex.P1 to Ex.P5 and negatives Ex.P6 to Ex.P10 of the spot.

PW. 4 Suraj Bhan, Head Constable, and PW. 5 Balraj Singh, Constable, have tendered into evidence their affidavits Ex.PD and Ex.PE, respectively, to prove link evidence.

PW. 6 Jagmal Singh, Assistant Sub Inspector, had partly investigated the case.

Prosecutrix appeared as PW. 7 and reiterated as to what was stated in the FIR. She, however, explained the delay in lodging the FIR by saying that her husband returned on 22.9.1996, after three days of the incident, and thereafter, she lodged the report. This witness further stated that at the spot, her bangles were broken due to struggle and the bangles were taken into possession by the police. The broken bangles were produced in the Court out of packet Ex.P11. In cross-examination, she stated that the fields of accused adjoins their fields. The prosecutrix used to see the accused sometimes in his fields. She further stated that the place, where her sister-in-law Krishna and brother-in-law Satbir were working, was at a distance of 11/2 killas. At the time of occurrence, no child was born to him and she gave birth to the child lateron. At the time of occurrence, nobody was working in the nearby fields. She further stated that when the cloth was put in her mouth, she had not suffered any injuries in her face. She further stated that she received abrasion only on the right side of her wrist. Her brother-in-law Satbir and sister-in-law Krishna reached at the spot within two/four minutes. In cross- examination, she admitted that she has no knowledge regarding the distance of the house of accused from her house.

Krishna, sister-in-law of the prosecutrix, appeared as PW. 8. She corroborated the testimony of the prosecutrix.

PW. 9 Dr. Satish Sulekh, on 23.9.1996 at 7.45 P.M., had examined the accused and stated that there was nothing to suggest that he was incapable of performing sexual intercourse.

PW. 10 Chhatarpal Singh, Head Constable, tendered into evidence his affidavit Ex.PK to prove link evidence.

Hari Ram, Assistant Sub Inspector, appeared as PW. 11. He stated that at the first instance, information regarding rape was received on 22.9.1996. In the cross-examination, this witness stated that he reached the fields at about 7.00 P.M. on the day when FIR was lodged and remained there till 9.00 P.M.

PW. 12 Karan Singh, Sub Inspector/Station House Officer, had also investigated the case.

The statement of accused was recorded u/s 313 Cr.P.C., in which he denied all the incriminating circumstances and gave his version, as under:

Satbir and Kulbir Singh had purchased four acres of land from Jeet Singh Saini. The shortcut way to that land was from our fields. A few days prior to the occurrence, Kulbir Singh and Satbir Singh were passing their tractor from that shortcut way through our land. I and my father Parkash objected to their passing of the tractor. On this, altercation took place between Satbir and Kulbir on one side and I and my father on the other side. Sudesh Kumari who was on speaking terms with me, in spite of the aforesaid altercation continued to have speaking terms with me. This irritated Satbir Singh who was having evil eye upon Sudesh Kumar because his wife had gone to her parental house due to strained relations with Satbir. Satbir did not like my speaking terms with Sudesh and he falsely got me involved in this case.

Mr. Atul Lakhanpal, Senior Advocate, assisted by Mr. Vikran Pamboo, Advocate, appearing for the appellant, has urged that this Court should keep in mind that in the present case, occurrence had taken place on 19.9.1996 and the statement Ex.PF was made to the police after three days i.e. on 22.9.1996. It is further submitted that the delay has been explained by saying that the husband of prosecutrix was not available and after his arrival, FIR was lodged. Counsel further submitted that there is a serious lapse on the part of the prosecution as it had not examined Kulbir Singh, husband of the prosecutrix. Therefore, the reason as to why the report was made after three days of the occurrence has not been divulged. Counsel further submitted that the prosecution story is highly improbable. According to the prosecutrix, her sister-in-law Krishna and brother-in-law Sabir were working in the nearby fields. The prosecutrix had given the distance of their fields from the place of occurrence as 11/2 killas. It is submitted that from a noise raised or from any shuffling of the crop or otherwise, the witnesses would have come to know that forcible sexual intercourse was being committed. It is further submitted that there is no external or internal mark of injury on the body of prosecutrix. PW. 1 Dr. (Mrs.) Nirmal Bhatia, in her cross-examination, has stated in categoric terms that the prosecutrix was well built lady and if she had offered her resistance, there would have been injury on the person of accused or of prosecutrix. Counsel further submits that the fields of accused adjoins the filed of the prosecutrix. The accused was 18 years old at the time of occurrence and the prosecutrix was also a married lady of 19 years, therefore, taking into consideration ground realities of life, this Court should also infer consent from the conduct of the prosecutrix. It is further submitted that after a piece of cloth was forcibly put in the mouth of prosecutrix, some injury mark on the lips, which is a very tender part, ought to have been there. In the present case, no abrasion, bruise, or contusion have been found on the body of prosecutrix. Counsel has further submitted that the prosecutrix stated that her ear rings fell in the fields and the same were not found lateron.

Mr. Manish Deswal, Deputy Advocate General, Haryana, has submitted that the testimony of prosecutrix stands corroborated from the fact that the broken bangles were lifted from the spot.

I have given my thoughtful considerations to the rival submissions made.

The standards of appreciation of evidence of the prosecutrix have changed in the present days milieu. The Courts, at a number of times, have stated that in the Indian society, prosecutrix requires a lot of courage to come forward and state about rape as reputation of the family is involved. A married lady, in the absence of her husband, could not have come forward to report the matter. She has to consult with her husband, to report the matter. Reporting the matter may have caused annoyance to the husband. Therefore, consent of the husband was necessary. In Karnail Singh v. State of M.P. (SC) 1995 (3) R Cri R 526, their Lordships had observed that the submission overlooks the fact that in India women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married person she will not do anything without informing her husband. Merely because the complaint was lodged less than promptly does not raise the inference that the complaint was false. The reluctance to go to police is because of society''s attitude towards such women; it casts doubt and shame upon her rather than comfort and sympathize with her.

It has also been held that testimony of prosecutrix, if aspires confidence, can be relied upon without corroboration.

In State of Rajasthan v. Om Parkash (SC) 2002 (2) RCri R 764, Hon''ble the Supreme Court had observed as under:

The conviction for offence u/s 376 IPC can be based on the sole testimony of a rape victim is well settled proposition. In State of Punjab Vs. Gurmit Singh and Others, , referring to it, State of Maharashtra Vs. Chandraprakash Kewalchand Jain, , this Court held that 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. It has also been observed in the said decision by Dr. Justice A.S. Anand (as His Lordship then was), speaking for the court, that the inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases 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 an 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.

In State of Rajasthan v. Biram Lal (SC) 2005 (2) R Cri R 592, their Lordships of Hon''ble the Supreme Court said as under:

We, therefore, find it difficult to sustain the order of acquittal passed by the High Court in respect of the offence u/s 376 IPC. It is not the law that in every case version of the prosecutrix must be corroborated in material particulars by independent evidence on record. It all depends on the quality of the evidence of the prosecutrix. If the Court is satisfied that the evidence of prosecutrix is free from blemish and is implicitly reliable, then on the sole testimony of the prosecutrix, the conviction can be recorded. In appropriate cases, the Court may look for corroboration from independent source or from the circumstances of the case before recording an order of conviction. In the instant case, we find that the evidence of the prosecutrix is worthy of credit and implicitly reliable. The other evidence adduced by the prosecution, in fact, provides the necessary corroboration, even if that was considered necessary. The High Court on a clear misreading of the evidence on record, acquitted the respondent of the charge u/s 376 IPC while upholding his conviction u/s 450 IPC.

Therefore, non-examination of Kulbir, husband of the prosecutrix, will not be fatal to prosecution, especially when Krishna, sister-in-law, who was present at the place of occurrence, had also stated that they were waiting for Kulbir to arrive, to report the matter. The occurrence in the present case had taken place in the fields. The accused had gagged the mouth of prosecutrix and had committed a forcible rape. A lady, when overpowered, may not necessarily receive abrasion, bruise or contusion on her body as it depends on the nature of place where rape was committed. No effort was made in the cross- examination to ask the witness about the fields, "Whether the picked-up cotton was lying there or surface was rough?" In the present case, the witness was examined by police on 22.9.1996, after three days of the occurrence. The argument that ear rings were not found later from the place of occurrence, can be granted no credence as within three days, many persons had visited the fields. In the present case, an attempt was made by the accused to project that due to inimical relations, he has been falsely implicated. No document has been brought on record to project inimical relations except the bald assertion of the accused.

The trial Court has rightly placed implicit reliance on the testimony of prosecutrix PW. 7 and Krishna PW. 8.

Hence, no interference is warranted in the present appeal and the same is hereby dismissed.