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2005 DIGILAW 189 (PNJ)

Kukan v. State Of Haryana

2005-02-02

S.N.AGGARWAL

body2005
Judgment S.N.Aggarwal, J. 1. Kukan (appellant in Criminal Appeal No. 337-SB of 1988) was convicted and sentenced for having committed offences punishable under Sections 376, 342 and 506 IPC while Somwati (appellant in Criminal Appeal No. 101-SB of 1988) was convicted and sentenced for having committed offences punishable under Sections 376 read with Sections 120-B IPC and 342 IPC by the learned trial Court vide judgment dated 5.2.1988. 2. Before taking up the facts for discussion, it may be mentioned that the appeal was filed by Kukan appellant in this Court on 26.8.1988 and said Kukan appellant was admitted to bail by this Court vide order dated 26.10.1988. On these dates, the counsel for the appellant had been appearing regularly. Thereafter the appeal came up for consideration on 26.2.2003. None had appeared for Kukan appellant. The case was then taken up on 16.7.2003. On that date also Mr. Alok Jain Advocate counsel for Somwati appellant had appeared. The same happened when the file was taken up on 30.7.2003, 13.8.2003 and 27.8.2003. It was brought to the notice of the Court that Mr. J.S. Dhillon counsel for Kukan appellant had expired. Notice was ordered to be issued to the appellant. Said Kukan appellant was served on 15.12.2003. Mr. D.S. Rawal Advocate appeared on behalf of Kukan appellant on 17.12.2003 for the first time but he absented on 5.5.2004. When the file was taken again, none appeared on behalf of Kukan appellant on 28.7.2004. None is present today when the file was taken up for arguments. Hence, this appeal is taken up for being decided on merits along with connected appeal in which arguments were advanced by Mr. Alok Jain Advocate, counsel for co-accused Somwati. 3. According to the prosecution case, prosecutrix Miss Pushpa (fictitious name) used to reside with her parents in old Faridabad. On 14.6.1987, her mother had gone with her younger sister Bhagwati to attend the marriage in village Bhiruki. Her father Kamal Singh who was a mason used to leave for his job at about 7 A.M. and used to return at 6 P.M. in the evening. On 21.6.1987, the prosecutrix was alone in the house. Both Somwati (appellant in Criminal Appeal No. 101-SB of 1988) and Kukan (appellant in Criminal Appeal No. 337-SB of 1988) came to the house of the prosecutrix. Leaving Kukan appellant inside the house, she bolted the door from outside. On 21.6.1987, the prosecutrix was alone in the house. Both Somwati (appellant in Criminal Appeal No. 101-SB of 1988) and Kukan (appellant in Criminal Appeal No. 337-SB of 1988) came to the house of the prosecutrix. Leaving Kukan appellant inside the house, she bolted the door from outside. Kukan appellant switched on the ratio on a loud pitch. He put the prosecutrix on a cot and forcibly committed rape on her against her will. He also threatened her not to tell about the occurrence to any one. After some time, Somwati unbolted the door and Kukan appellant also left the house of the prosecutrix. Even while leaving Kukan appellant threatened the prosecutrix with death if she disclosed the incident to any person. Out of shame and fear, the prosecutrix did not disclose this incident to any person and not even to her father when he reached back home in the evening. The mother of the prosecutrix came back home on 24.6.1987 and the prosecutrix narrated her woeful tale to her mother. The mother of the prosecutrix informed her husband about it. On 26.6.1987, the father of the prosecutrix reported the matter to the police and the present case was registered. During the investigation of this case, the prosecutrix was got medically examined. The accused were arrested and the challan was presented against them. 4. Charges were framed against the appellants for having committed offences punishable under Sections 376, 506, 342 read with Section 120-B IPC to which they pleaded not guilty and claimed trial. 5. To prove its case, the prosecution examined Dr. Rajesh Arora, Medical Officer, B.K. Hospital, Faridabad as PW-1, S.I. Jag Parvesh as PW-2, Sohan Lal, Draftsman as PW-3, Kamal Singh, father of the prosecutrix as PW-4, Dharamvir Constable as PW-5, Maya Rani, Constable as PW-6, Dr. Neeru Kaura as PW-7, Smt. Daropti Mitra, Head-Mistress as PW-8, Inspector Jas Ram as PW-9, Gulkandi mother of the prosecutrix as PW-10, Pushpa prosecutrix as PW-11 and ASI Raghbir Singh as PW-12 who had partly investigated this case. The prosecution closed its evidence. 6. In their statements recorded under Sections 313 Cr.P.C., the appellants took the plea of false implication. Kukan has further taken the plea that he has been falsely implicated due to enmity because he had refused to accept the offer of father of prosecutrix to marry her. 7. However, the appellants led no evidence in defence. 8. 6. In their statements recorded under Sections 313 Cr.P.C., the appellants took the plea of false implication. Kukan has further taken the plea that he has been falsely implicated due to enmity because he had refused to accept the offer of father of prosecutrix to marry her. 7. However, the appellants led no evidence in defence. 8. On the basis of this evidence, the learned trial Court reached the conclusion that there was conspiracy between Kukan appellant and Somwati appellant. Accordingly, Kukan (appellant in Criminal Appeal No. 337-SB of 1988) was convicted for having committed offences punishable under Sections 376, 506, 120-B and 342 IPC vide judgment dated 5.2.1988. Kukan appellant was sentenced to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,000/- under Section 376 IPC. In default of payment of fine he was to further undergo rigorous imprisonment for one year. Kukan and Somwati appellants were further sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,000/- each under Section 376/120-B IPC. In default of payment of fine, they were to further undergo rigorous imprisonment for one year each. They were further sentenced to undergo rigorous imprisonment for one year under Section 342 IPC. Kukan was also sentenced to undergo rigorous imprisonment for two years under Section 506 IPC. All the sentences were to run concurrently. 9. Both the appellants have filed separate appeals. 10. I have gone through the whole record with the aid of Mr. Alok Jain, counsel for the appellant and Mr. H.P.S. Bhinder, AAG, Haryana. 11. Before considering the submissions advanced before me by the learned counsel for the appellant, it may be mentioned that rape is not an ordinary crime. It spoils the whole psychology of the victim particularly when the victim happens to be a girl child. The Honble Supreme Court was pleased to observe in the judgment reported as State of Karnataka v. Krishnappa, 2000(2) RCR(Crl.) 459 (SC) : AIR 2000 Supreme Court, 1470 as under :- "Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity - it degrades and humiliates the victim and where the victim a helpless innocent child, it leaves behind a traumatic experience. It is a serious blow to her supreme honour and offends her self-esteem and dignity - it degrades and humiliates the victim and where the victim a helpless innocent child, it leaves behind a traumatic experience. The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity." 12. In recent days also, a number of judgments have come down from the Honble Supreme Court in which their Lordships emphasised the need to deal with such cases with more care and caution and with a humane approach. Reference may be made to the latest judgment of the Honble Supreme Court in State of Punjab v. Ramdev Singh, AIR 2004 Supreme Court 1290 in which their Lordships repeated the same principles of law and were further pleased to observe as under :- "..... a rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys, as noted by this Court in Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty, AIR 1996 SC 922, the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights and is also violative of the victims most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21 of the Constitution of India, 1950." 13. Let us first of all examine the evidence produced by the prosecution regarding her age. The prosecutrix, while appearing as PW-11 has stated her age to be 13 years. Her father Kamal Singh, PW-4 deposed that the age of his daughter was 13/14 years at the time of occurrence while Gulkandi, mother of the prosecutrix, PW-10 has stated her age to be 12 years. Although it was suggested to all the three witnesses that the age of prosecutrix at the time of alleged occurrence was more than 18 years but it has not been probablised by the accused by producing any document. Kamal Singh, PW-4 also stated that Pushpa had attended the school class only upto 2nd standard but he did not remember the dates of her admission and discharge from the school. Kamal Singh, PW-4 also stated that Pushpa had attended the school class only upto 2nd standard but he did not remember the dates of her admission and discharge from the school. The prosecution also examined Smt. Daropati Mittra Head Mistress of the school in which the prosecutrix was a student in her childhood days, as PW-8. She produced the school recorded and proved the date of birth of the prosecutrix as 20.10.1973 as per school record. The occurrence had taken place on 21.6.1987. Therefore, the prosecutrix was below 15 years of age when she was subjected to sexual assault. It has been held by the Honble Supreme Court in the judgment reported as Bhoop Ram v. State of U.P., 1989(1) RCR(Crl.) 573 (SC) : AIR 1989 SC 1329 that school record can be believed. Therefore, it is held that the age of the prosecutrix was 14/15 years at the time of occurrence. 14. The next point to be determined is whether the prosecutrix was subjected to rape by Kukan appellant with the assistance of Somwati appellant. Prosecutrix appearing as PW-11 has specifically deposed that she was subjected to rape by Kukan appellant. She was medically examined by Dr. Neeru Kaura PW-7 who has also deposed that in her opinion, the possibility of prosecutrix being subjected to rape could not be ruled out. Dr. Neeru Kaura PW-7 also collected two vaginal swabs from the posterior fornix of the prosecutrix, parcelled and sealed the same and handed over the sealed parcel to the police for being sent to the Forensic Science Laboratory for its analysis. 15. ASI Raghbir Singh PW-12 had also taken into possession Kachha (underwear) of the prosecutrix which was parcelled and sealed and the sealed parcel was sent to Forensic Science Laboratory for its analysis along with the sealed parcel of swabs given by Dr. Neeru Kaura, PW-7. These articles were examined in the said Laboratory and the Senior Scientific Officer (Serology)-cum- Assistant Chemical Examiner in his report Exhibit PN reported that human semen was detected on the Kachha. This Kachha was also stained with a few small blood stains. This clearly proved that the prosecutrix was subjected to rape. 16. Now, the question to be determined is whether the rape was committed by Kukan appellant. This Kachha was also stained with a few small blood stains. This clearly proved that the prosecutrix was subjected to rape. 16. Now, the question to be determined is whether the rape was committed by Kukan appellant. It has been specifically stated by the prosecutrix while appearing as PW-11 that Kukan had taken her in his grip and had taken her inside. Said Kukan tore out the underwear of the prosecutrix and committed rape on her. Gulkandi, PW-10 (mother of the prosecutrix) has also proved that she was informed about it by her daughter, the prosecutrix. Kamal Singh, PW-4 (father of the prosecutrix) has also proved that he was informed about it by his wife Gulkandi (PW-10). Pushpa prosecutrix (PW-11) has also deposed that Kukan had switched on the radio at a loud pitch. It appears that he had done so to die out the noise of the prosecutrix within the four walls of the room so that outsiders may not be able to hear any cries of the prosecutrix. 17. Kukan appellant was also medically examined by Dr. Rajesh Arora, PW-1 who has reported that in his opinion there was nothing to suggest if he was unfit to perform sexual intercourse. Therefore, as per medical evidence also, Kukan appellant was fit to perform sexual intercourse. 18. Even the underwear of Kukan appellant was taken into possession. It was parcelled and sealed and the sealed parcel was sent to Forensic Science Laboratory for analysis and the reports Exhibit PO and Exhibit PN were received from the said Laboratory that human semen was detected on this underwear. This underwear was also stained with a few small blood stains. Thus, it is proved that Kukan had performed sexual intercourse. 19. The case of Kukan appellant is that he has been falsely implicated as he had refused to accept the proposal of marriage of the prosecutrix with him. Reference was made to the statement of Kamal Singh (PW-4) who admitted in the cross-examination that he had gone to the father of Kukan for the relation of his daughter (prosecutrix) one year earlier to the occurrence. However, he has further clarified that he had never offered his daughter (prosecutrix) for Kukan, but he had gone to the father of Kukan for engaging his daughter with the assistance of father of Kukan. However, he has further clarified that he had never offered his daughter (prosecutrix) for Kukan, but he had gone to the father of Kukan for engaging his daughter with the assistance of father of Kukan. Even if it is believed that the marriage of prosecutrix was proposed with Kukan appellant and he had refused to do so, it was one year earlier. People do not get inimical merely because matrimonial proposals are declined. If Kukan was to be falsely implicated for this refusal, he could have been involved immediately after the refusal. 20. Reference was also made to the statement of Kamal Singh, PW-4 who deposed that Sibbi is his brother and Prem is the daughter of said Sibbi. Said Prem was married somewhere else. She was deserted by her husband and she had started living with Teki and said Teki is the brother of Kukan accused though not real. This, however, does not prove if the prosecutrix or her father were inimical to Kukan or for this reason, he was implicated in this case falsely. Kamal Singh, PW-4 has specifically deposed that his brother Sibbi is inimical to him. Therefore, merely because the daughter of Sibbi, brother of Kamal Singh is living with Teki as his wife and said Teki is related to Kukan, false implication in this case cannot be presumed nor it appears to be probable. 21. In the judgment reported as State of H.P. v. Lekh Raj, 2000(1) Apex Court Journal 353, their Lordships of the Honble Supreme Court quoted with approval, the observations made in an earlier judgment 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 to make a humiliating statement against her honour such as is involved in the commission of rape on her......" 22. Their Lordships of the Honble Supreme Court also observed in the judgment reported as Kamal Kishore etc. v. State of Himachal Pradesh, 2000(2) RCR(Crl.) 679 (SC) : AIR 2000 Supreme Court 1820 that where the prosecutrix unmistakably points towards the accused as a person who ravished her and her version is corroborated by the other testimony then it is conclusively established that she was subjected to ravishment by the accused and by none else. 23. v. State of Himachal Pradesh, 2000(2) RCR(Crl.) 679 (SC) : AIR 2000 Supreme Court 1820 that where the prosecutrix unmistakably points towards the accused as a person who ravished her and her version is corroborated by the other testimony then it is conclusively established that she was subjected to ravishment by the accused and by none else. 23. Otherwise also in a case of single accused, the theory of false implication does not appear to be probable at all. Regarding evidentiary value of the statement of the prosecutrix, law is settled that she is neither an accomplice nor any corroboration is required. Reference may be made to the judgment of the Honble Supreme Court reported as Rajasthan v. N.K., 2000(2) RCR(Crl.) 471 (SC) : AIR 2000 Supreme Court 1812. Even in Ramdev Singhs case (supra), their Lordships of the Honble Supreme Court reiterated the same view of law. 24. Moreover, it is not only an allegation about the rape on the daughter of Kamal Singh, PW-4 but it has been proved that in fact she was subjected to rape. Raising of false allegations of such dimensions not only involves the male person but also leaves deep scars on the victim and on the victim family and makes her life difficult in the society. Therefore, normally no such false allegations are made particularly when the girl is unmarried. 25. It was also submitted that Kukan was not named by the prosecutrix nor she knew her earlier. She has stated in her cross-examination that she did not know Kukan prior to this occurrence nor she had seen him. This submission has been considered. She has specifically named Kukan. She has also identified him in the Court. Therefore, there is no dispute about the identity of the person who committed rape on her. 26. Therefore, it stands proved that the prosecutrix was actually subjected to rape. It also proved that she was raped by Kukan-appellant and by none else. 27. The commission of offence has been proved by the prosecutrix herself and the settled law is that neither the prosecutrix is an accomplice nor her statement needs corroboration. Rather, her statement is on higher pedestal than an injured witness as held by the Honble Supreme Court in Aman Kumar and another v. State of Haryana, 2004(2) RCR(Crl.) 67 (P&H) : 2004 Criminal Law Journal 1399. 28. Rather, her statement is on higher pedestal than an injured witness as held by the Honble Supreme Court in Aman Kumar and another v. State of Haryana, 2004(2) RCR(Crl.) 67 (P&H) : 2004 Criminal Law Journal 1399. 28. It was also argued that there is delay in reporting the matter to the police. The alleged occurrence had taken place on 21.6.1987 while the matter was reported to the police on 26.6.1987. Hence, it was prayed that the accused be acquitted. 29. Now coming to the submission of the learned counsel for the appellant that the matter was reported to the police after long delay, it may be mentioned that the cases of rape are very sensitive cases and normally the victim girl tries to conceal it so that it may not hurt and damage her own honour and that it may not become a stumbling block for her to get married. Therefore, the prosecutrix kept this secret close to her bosom that she was sexually assaulted. It was only when her mother returned after attending the marriage that she disclosed the incident to her. Therefore, the delay in reporting the matter in such cases is very obvious. 30. Such submissions had come up for decision before the Honble Supreme Court in a number of cases. Reference may be made to the judgment of the Honble Supreme Court in State of Karnataka v. Manjanna, 2000(3) Recent Criminal Reports 24 (SC) where their Lordships quoted with approval the observations made in an earlier judgment as under :- "The Courts cannot overlook the fact that 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 the sexual intercourse offence is generally lodged.... The trial Court overlooked that a girl, in a tradition-bound non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society. The trial Court overlooked that a girl, in a tradition-bound non-permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society. Her not informing the teachers or her friends at the examination centre under the circumstances cannot detract from her reliability. In the normal course of human conduct, this unmarried minor girl would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it to her teachers and others overpowered by a feeling of shame and her natural inclination would be to avoid talking it to anyone, lest the family name and honour is brought into controversy." 31. In the present case, delay has been properly explained by the prosecutrix PW-11 and also by her mother, PW-10. The mother of prosecutrix namely Gulkandi was out of the house. She was away to village Bhiruki for attending the marriage. She returned only on 25.6.1987 when she narrated the occurrence to her mother. Her mother informed her husband who reported the matter to the police. Therefore, the delay is properly explained. Therefore, the conviction of Kukan-appellant is upheld. 32. However, the involvement of Somwati appears to be doubtful. It has been stated by the prosecutrix that said Somwati was her neighbourer. Therefore, she could not have come to take a glass of water in the neighbourers house. The prosecution has also failed to produce any evidence as to how Somwati was known to Kukan appellant and what kind of relationship or friendship they had which prompted Somwati to help Kukan in the commission of this crime. There is also no evidence of criminal conspiracy between the two appellants. No words of instigation either to Kukan to commit rape on the prosecutrix are attributed to Somwati in the prosecution evidence nor there is any evidence if Somwati had asked the prosecutrix to submit the lust of Kukan-appellant. 33. Moreover, Kamal Singh, PW-4 has stated in his cross-examination that Pushpa had not told about the chaining of the door by Somwati because the prosecutrix was taken inside the room by Kukan. Therefore, it appears doubtful if Somwati had played any role in the commission of this offence by Kukan. 33. Moreover, Kamal Singh, PW-4 has stated in his cross-examination that Pushpa had not told about the chaining of the door by Somwati because the prosecutrix was taken inside the room by Kukan. Therefore, it appears doubtful if Somwati had played any role in the commission of this offence by Kukan. Somwati has also taken the plea that she has been involved in this case due to enmity although she has failed to prove any enmity with the complainant party but at the same time, the prosecution has not led any evidence to prove if Somwati had anything to do with Kukan appellant. Therefore, case against Somwati is not free from doubt. 34. The settled law is that merely because the appellant faced the trial for a long time is no ground for taking a lenient view regarding sentence. In such an offence, no leniency is called for. Reference may be made to the judgment of the Honble Division Bench of our own High Court reported as State of Haryana v. Anil Kumar, 2003(4) RCR(Crl.) 299 (P&H) : 2004(1) PLR 69. Moreover, the Honble Supreme Court was pleased to observe in State of Karnataka v. Puttaraja, 2004(1) RCR(Crl.) 113 (SC) : 2004 Criminal Law Journal 579 that there should be no leniency regarding the sentence in such cases. 35. In the light of above discussion, Criminal Appeal No. 337-SB of 1988 filed by Kukan appellant is dismissed whereas Criminal Appeal No. 101-SB of 1988 filed by Somwati appellant is accepted and she is acquitted of the charges framed against her by giving her the benefit of doubt. 36. Kukan appellant is stated to be on bail, necessary steps for his re- arrest be taken immediately so that he may serve the remaining part of his sentence.