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2003 DIGILAW 1670 (PNJ)

Jarnail Singh v. State of Punjab

2003-12-16

VIRENDER SINGH

body2003
JUDGMENT Virender Singh, J. - Jarnail Singh son of Hira Singh the appellant herein stands convicted vide impugned judgment of learned Additional Sessions Judge, Ferozepur dated 8.10.1992 and sentenced as under :- U/s 376 Indian Penal Code RI for seven years and to pay a fine of Rs. 1000/-, in default of payment of fine to further undergo RI for six months. U/s 452 Indian Penal Code RI for two years and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo RI for three months. U/s 506 Indian Penal Code RI for six months and to pay a fine of Rs. 200/-, in default of payment of fine to further undergo RI for fifteen days. However, all the sentences were ordered to run concurrently. It is further ordered that a sum of Rs. 1000/- would be given to prosecutrix by way of compensation out of total fine. 2. Aggrieved by the judgment of conviction and sentence, the appellant has preferred the present appeal. 3. Mitto Bai PW3 is the prosecutrix in this case. The present case was registered on the statement Ex.PD of Smt. Dialo Bai PW4 mother of the prosecutrix by Head Constable Darshan Singh PW5. The formal FIR Ex. PD/2 was consequently, registered in the concerned police station. 4. In short the case of the prosecution is that parents of Mitto Bai had gone to attend function at Dera Beas 4/5 days before the registration of the case. Mohan Singh aged 11/12 years, the brother of the prosecutrix was sleeping in the courtyard whereas the prosecutrix was sleeping inside the room of the house. It was about 10/11 PM when the appellant allegedly entered the room where the prosecutrix was sleeping. The prosecutrix made an attempt to raise alarm but the appellant allegedly committed rape with her by putting her in fear of death. The matter was told to Mohan Singh her brother after the appellant had left the house. After 5/6 days of the incident, the parents of prosecutrix returned to village from Dera Beas. They were apprised of the incident and thereafter Smt. Dialo Bai and the prosecutrix went to village Karian to reside with their relatives in order to save the honour of the family but ultimately on 6.4.1991, Smt. Dialo Bai lodged the report with the police regarding this incident. They were apprised of the incident and thereafter Smt. Dialo Bai and the prosecutrix went to village Karian to reside with their relatives in order to save the honour of the family but ultimately on 6.4.1991, Smt. Dialo Bai lodged the report with the police regarding this incident. The police immediately inspected the place of incident, prepared rough site plan at the instance of Mohan Singh brother of the prosecutrix. The prosecutrix was subsequently got medically examined by Dr. Jagmeet Kaur, Medical Officer, Civil Hospital, Ferozepur PW2. Her ossification test was also done. 5. During the investigation, the birth certificate of the prosecutrix Ex.PG was also taken into possession. The appellant was thereafter arrested. He was examined by Dr. Vijay Sachdeva PW 1 who found that the appellant was fit for performing sexual intercourse. 6. After the completion of the entire investigation, the appellant was challenged to face trial. 7. The trial Court charged the appellant under section 452/376/506 Indian Penal Code. 8. In order to prove its case, the prosecution agency has examined Dr. Vijay Sachdeva who had examined appellant on 22.4.1991. Dr. Jagmeet Kaur PW2 had examined the prosecutrix on 18.4.1991. Mitto Bai PW3 is the prosecutrix who has reiterated the case of the prosecution. Smt. Dialo Bai mother of the prosecution has been examined as PW4. HC Darshan Singh PW5 has been examined as investigating officer in this case who had initially recorded the statement of the mother of the prosecutrix and thereafter had handed over the investigation to ASI Prem Singh PW6. For the sake of brevity, the investigation part is not being touched as already it is discussed in the preceding paras. ASI Lal Singh PW7 is formal witness who was handed over sealed packets and the same were deposited with Moharir Head Constable. SI Harcharan Singh PW8 is SHO of Police Station Mallanwala. He had also partly investigated the present case and had recorded the statements of certain witnesses. The challan was also prepared by him. 9. Mohan Singh brother of the prosecutrix was given up as being unnecessary. Besides this, affidavit Ex.PH of MHC Surinder Singh and affidavit Ex.PJ of Constable Baldev Singh and birth certificate of prosecutrix Ex.PG were tendered into evidence during the trial. 10. The challan was also prepared by him. 9. Mohan Singh brother of the prosecutrix was given up as being unnecessary. Besides this, affidavit Ex.PH of MHC Surinder Singh and affidavit Ex.PJ of Constable Baldev Singh and birth certificate of prosecutrix Ex.PG were tendered into evidence during the trial. 10. The stand taken by the appellant as emerges from his statement recorded under section 313 Criminal Procedure Code is that he has been falsely implicated in this case. In defence, the appellant has produced one Mr. Lakhwinder Singh Sidhu Advocate of District Courts Ferozepur as PW1 who has proved affidavit of prosecutrix Ex.DA and her mother Smt. Dialo Bai Ex.DB. Mr. Balwant Singh Mujedia Advocate has been produced as DW2. He was Oath Commissioner at Ferozepur. He has also proved the above said two affidavits of prosecutrix and her mother. 11. After appreciating the entire evidence, the learned trial court has convicted and sentenced the appellant as indicated above. 12. I have heard Mr. Manvinder Singh Sidhu, learned counsel for the appellant and Mrs. B.K. Mann, learned Deputy Advocate General, Punjab. With their assistant I have also gone through the record of the case. 13. Learned counsel for the appellant at the very outset states that there is considerable delay in lodging the FIR and this fact alone uproots the prosecution case from its case. 14. The other arguments advanced by the learned counsel for the appellant is that the prosecutrix has been examined after 18 days of the occurrence and the said medical evidence cannot in any manner be considered enough for the purpose of the proving the case against the appellant beyond reasonable doubt. He then contends that even according to the medical evidence, there was no external mark of injury of the person of the prosecutrix which would show any violence. It is then contended that even according to the medical evidence, the hymen which was torn was old one as there was no redness or swelling around it and, therefore, this medical evidence would not render any help to advance the case of the prosecution. It is then contended that even according to the medical evidence, the hymen which was torn was old one as there was no redness or swelling around it and, therefore, this medical evidence would not render any help to advance the case of the prosecution. In the same breath, the learned counsel contends that according to ossification test, the age of the prosecutrix was between 15 yo 17 years and even if the prosecutrix has disclosed her age of 13 years before the doctor, keeping in the view the margin of two years on either side, the appellant should be given the benefit. According to the counsel, the prosecutrix, thus, was of the age of more than 18 years in all probabilities. 15. It is then contended by the learned counsel that even from the investigation it reveals that intentionally Mitto Bai prosecutrix was not produced before the police on 6.4.1991 inspite of the fact that ASI Prem Kumar PW6 had asked Dialo Bai the mother of the prosecutrix to produce her. This, according to the learned counsel is a very material lacuna in the prosecution case. 16. The last limb of argument of the learned counsel for the appellant is that Mitto Bai prosecutrix in this case and her mother Dialo Bai have tendered two affidavits dated 31.5.91 Ex.DA and DB respectively asserting therein that the case which was registered at their instance was false. In fact the appellant had not committed any rape with Mitto Bai. He then contends that these affidavits are duly proved from two Advocates who have been examined as DW1 and DW2 respectively. There is no reason to disbelieve the said affidavits. 17. Strengthening his arguments on the basis of the above said submissions, the learned counsel submits that the prosecution has not been able to prove this case against the appellant beyond shadow of doubt and as such he deserves acquittal. 18. Refuting the arguments, advanced by the learned counsel for the appellant, the learned Sate Counsel with full vehemence submits that so far delay is concerned it is well explained by the complainant side and as such cannot be taken as a ground for disbelieving the prosecution story; there is otherwise no reason to disbelieve the prosecutrix. 18. Refuting the arguments, advanced by the learned counsel for the appellant, the learned Sate Counsel with full vehemence submits that so far delay is concerned it is well explained by the complainant side and as such cannot be taken as a ground for disbelieving the prosecution story; there is otherwise no reason to disbelieve the prosecutrix. So far as age is concerned, it is submitted by the learned State counsel that the prosecution has taken in possession Ex.PG, the birth certificate of the prosecurtrix in which the her age is mentioned as 3.3.1975 and as such she was of 16 years on the date of alleged incident. 19. So far as affidavits are concerned, it is submitted by the learned State counsel that those were procured by the appellant during the investigation from the prosecutrix and her mother and as such cannot be of any help to the appellant in advancing his defence. 20. After the hearing the rival contentions of both the sides, I am of the view that the prosecution has been able to bring home the guilt to the appellant. I have minutely rescanned the entire evidence of the prosecution. 21. Mitto Bai PW3 the prosecutrix has categorically stated on oath that about 10/11 PM, the appellant entered his (her ?) room when she was sleeping and the appellant committed sexual intercourse with her without her consent. It is then stated by her that she made an attempt to raise an alarm but the appellant threatened that in case she raised alarm, she would be killed and for this reason she could not raise any hue and cry out of fear. She then states that her brother Mohan Singh was awakened and she narrated the whole incident to him after the appellant had left the site of incident. This incident was disclosed to her parents after 5/6 days when they had come back from Dera Beas. She has categorically stated that her father took her to relatives at village Karian and left her there and her statement was recorded by the police after 10 days of the incident. 22. I have also seen the cross-examination of Mitto Bai. She was put under fear by the appellant as he was carrying a gandassi with him. She has categorically stated that her father took her to relatives at village Karian and left her there and her statement was recorded by the police after 10 days of the incident. 22. I have also seen the cross-examination of Mitto Bai. She was put under fear by the appellant as he was carrying a gandassi with him. She has also categorically stated in the cross-examination that except Mohan Singh, the other brothers and sisters had accompanied her parents to Dera Beas. Mohan Singh, as stated above was of the age of 10/11 years. There is no reason to disbelieve the case put forth by the prosecutrix. It is also worth mentioning here that so far as affidavit Ex. DA is concerned, she has categorically denied the said affidavit. Her statement is corroborated by Dialo Bai, her mother who has also categorically stated that when she had come back from Dera Beas, the incident was disclosed to them and thereafter her husband had taken her to village Karian to their relations. She then states that the prosecutrix stayed in that village for about 10 days. She also denies any document being thumb marked by her. It would be very relevant to mention at this juncture that the affidavit Ex.DB allegedly thumb marked by Dialo Bai was never put to her in her cross-examination. 23. There is no reason to disbelieve the above said two witnesses. 24. No doubt there is some delay in lodging the report but the same is well explained in this case. Immediately after the parents had come back to the village from Dera Beas, they were apprised of the incident. In order to save the honour of the family they immediately took their daughter to village Karian where their relations were staying. This in my considered view shows the correct approach of the parents at that stage in order to save the honour of the family. In the present case the girl was hardly of the age of 16 years. The parents of the prosecutrix might have consumed a lot of time in knocking the doors of the police keeping in view the pros and cons of all the situation including the future prospects of the prosecutrix and ultimately they summed up courage to lodge the report with the concerned police. 25. The parents of the prosecutrix might have consumed a lot of time in knocking the doors of the police keeping in view the pros and cons of all the situation including the future prospects of the prosecutrix and ultimately they summed up courage to lodge the report with the concerned police. 25. In State of Rajasthan v. N.K. the accused, 2000(2) RCR(Criminal) 471 their Lordships while dealing with the delay have held that mere delay in lodging the FIR cannot be a ground by itself for throwing the entire prosecution case overboard. The Court has to seek an explanation for delay and test the truthfulness and plausibility of the reasons assigned. If the delay is explained to the satisfaction of the Court it cannot be counted against the prosecution. 26. In the instant case, in my view, the delay is well explained. 27. 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 accepted without corroboration in material particulars. However, if the court of facts may find 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. In the present case as already observed there is not reason to disbelieve the testimony of Mitto Bai. 28. Following the same track of reasoning, the delay if any in the medical examination of the prosecutrix is there, the same would also not be fatal to the prosecution. No doubt, according to the statement of Dr. Jagmeet Kaur PW2, there is no external injury on the person of prosecutrix but that by itself would not belie the prosecution case in the face of the situation that prosecutrix has categorically stated on oath that the appellant committed sexual intercourse with her without her consent. No doubt, according to the medical evidence, the hymen even on internal examination of the prosecutrix does not give a clear picture of sexual intercourse but this fact again would not be a ground to reject the prosecution case as put forth by Mitto Bai prosecutrix. 29. No doubt, according to the medical evidence, the hymen even on internal examination of the prosecutrix does not give a clear picture of sexual intercourse but this fact again would not be a ground to reject the prosecution case as put forth by Mitto Bai prosecutrix. 29. The learned counsel for the appellant has made an attempt to show that the prosecutrix was of the age of 18 years on the date of alleged incident but the same argument advanced in this regard falls on the ground in the light of birth certificate Ex.PG of the prosecutrix which reflects that the prosecutrix had born on 3.3.75. Thus, the age of prosecutrix comes to 16 years and few odd days on the date of alleged occurrence. There is no reason to disbelieve Ex.PG. 30. In State of Punjab v. Gurmit Singh and others, 1996(1) RCR(Crl.) 533, their Lordships have observed in para No. 8 as under ;- "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 molestations, 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 vital nature, be allowed to throw out an otherwise reliable prosecution case. 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 are vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficultly 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. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion ? 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 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 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 persons 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 causalty. 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..... The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such case with utmost sensitivity. 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..... The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such case 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 back ground of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations." 31. In the above said case acquittal was disturbed by the Apex Court. 32. In State of Himachal Pradesh v. Gian Chand, 2001(2) RCR(Crl.) 666 (SC), the Honble Apex Court considered the principles of appreciating medical evidence and observed that mere absence of mark of external injury do not negate the prosecution evidence. 33. In view of legal position as discussed in the recent decisions of the Apex Court, the arguments advanced by the learned counsel for the appellant have to be repelled. The totality of the facts and circumstances takes me to conclude that the prosecution has been able to prove its case against the appellant for all the charges beyond any shadow of doubt. The conviction of the appellant as recorded by the trial court is, thus, upheld. 34. Learned counsel for the appellant in the alternative has also argued for reduction in the quantum of sentence mainly on the ground that the present case relates to the year 1991. Even the appeal is pending for the last 11 years and the appellant has already suffered the rigour of protracted trial of 12 years. 35. The appellant has been sentenced for seven years under Section 376 Indian Penal Code. Even the appeal is pending for the last 11 years and the appellant has already suffered the rigour of protracted trial of 12 years. 35. The appellant has been sentenced for seven years under Section 376 Indian Penal Code. For other counts, the sentence is on a lesser side. Record reveals that the appellant was working as Home Guard Jawan at the time of alleged incident. He was of the age of 28 years. In order to satisfy his sexual lust, the appellant indulged into this wolfish act with a girl of tender age of 16 years. The delay of long 11 years in hearing the appeal would also not be a mitigating circumstance in favour of the appellant. 36. In Gurmit Singhs case (supra), their Lordships of the Honble Apex Court have observed that a rapist not only violates the victims privacy and personal integrity, but inevitably causes serious psychological 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. 37. In my considered view, the appellant does not deserve any sympathy of Court so far as the reduction in quantum of sentence is concerned. No other point has been urged before me. 38. The net result is that the present appeal is dismissed being devoid of any merit. Appeal dismissed.