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2008 DIGILAW 184 (PNJ)

Nishan Singh v. State of Punjab

2008-01-23

A.N.JINDAL

body2008
JUDGMENT AN. Jindal, J 1. This appeal is directed against the judgment dated 22.5.1996 passed by Additional Sessions Judge, Gurdaspur, wherein, accused/appellant Nishan Singh (hereinafter referred to as the appellant) was convicted under Section 376 of the Indian Penal Code (for short IPC) and was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs.500/-and in default of payment of fine, to further undergo rigorous imprisonment for a period of two months. 2. In nutshell, the brief facts necessary for disposal of the appeal as unfolded during the trial, are that on 18.8.1988 at about 5.00 p.m, the prosecutrix (name not disclosed) aged about 13/14 years resident of village Bulowal was coming back after attending the call of nature. When she was on her way, the appellant caught hold of her and took her in the sugarcane field, where after breaking open the string of her salwar, committed rape on her. Shrieks raised by her attracted her father, namely Mohinder Singh. On seeing him, the appellant fled away. On the same day, Mohinder Singh took the prosecutrix to the Police Station, where, Ajit Singh ASI recorded her statement Ex.PC, on the basis of which FIR Ex.PC/2 was recorded. Consequently, the investigation was set into motion. The Investigating Officer prepared the rough site-plan; got the prosecutrix medico legally examined on 19.8.1988; vaginal swabs and clothes were taken by the doctor in possession and handed over to Ajit Singh ASI/ Investigating Officer; he also recorded the statements of the witnesses; arrested the appellant and got him medico legally examined. 3. The investigation was followed by the report under Section 173 of the Code of Criminal Procedure (for short Cr.P.C.). He was charged under Section 376/363 IPC, to which he pleaded not guilty and claimed trial. 4. The prosecution in order to substantiate its charges, examined Gurkrishan Kumar (PW1), Paramjit Singh Patwari (PW2), the prosecutrix (PW3), Mohinder Singh (PW4), Dr.Satinder Pal Singh (PW5), Dr.Pritpal Kaur (PW6), Ajit Singh Investigating Officer (PW7) and Dr.Prem Parkash (PW8). 5. When examined under Section 313 Cr.P.C., the appellant denied all the incriminating circumstances appearing against him and pleaded his false implication. He further disclosed that he and father of the prosecutrix were the co-labourers. On the complaint made by him against her father, he was turned out from the work by his master. 5. When examined under Section 313 Cr.P.C., the appellant denied all the incriminating circumstances appearing against him and pleaded his false implication. He further disclosed that he and father of the prosecutrix were the co-labourers. On the complaint made by him against her father, he was turned out from the work by his master. Consequently, her father has involved him in this false case. No evidence was led in defence. The trial ended in conviction. Hence, this appeal. 6. The prime question to be determined, is regarding the age of the prosecutrix. In this regard, there are statements of the prosecutrix as well as her father Mohinder Singh. The prosecutrix while appearing as PW3 has given her age as 14 years. She got recorded her age as less than 16 years in the medico legal report, but the testimonies of Mohinder Singh (PW4) as well as the prosecutrix (PW3) are in consonance with each other. Mohinder Singh having specific knowledge about the age of the prosecutrix is the best witness to depose regarding her age and in the absence of any rebuttal to it, his testimony cannot be throttled. No doubt, Dr.Prem Parkash (PW8), who radiologically examined the prosecutrix to determine her age, opined that she may be between 15 to 17 years, but it cannot be said to be surer test regarding the age, as it has been so opined only by way of approximation. Moreover, the report Ex.PW8/A could only be taken note of with the other evidence, particularly, when the father of the prosecutrix has specifically given her age less than 16 years. Therefore, taking the radiological report with a variation of two years on either side, it could well be assessed that the prosecutrix was certainly below 16 years of age at the time of the alleged shameful act on the part of the accused. 7. In any case, assuming that she was more than 16 years of age, still in view of the direct evidence of rape on the prosecutrix at the hands of the appellant, the benefit could not be given to him for her maturity. 7. In any case, assuming that she was more than 16 years of age, still in view of the direct evidence of rape on the prosecutrix at the hands of the appellant, the benefit could not be given to him for her maturity. The occurrence took place at about 5.00 p.m, on 18.8.1988 and the FIR Ex.PC/2 was lodged on the same day within one hour and forty minutes i.e. at 6.40 p.m. Some time must have been consumed by the prosecutrix in reaching the police station as the same is about six kilometers from the place of occurrence. Therefore, the prompt recording of the FIR guarantees the truth of the matter. The incident of rape as deposed by the prosecution, stands corroborated by way of evidence of the complainant Mohinder Singh (PW4) as also the medical evidence. Dr.Pritpal Kaur (PW6), who medico legally examined the prosecutrix observed as under:- “On examination of external genitalia, there was oozing of blood from the hymen which was found lacerated. The vagina admitted two fingers with difficulty, but on examination there was still bleeding from vagina. On swabbing, it shows small laceration. The cervix was normal. Uterus was anteverted and normal in size. Vaginal swabs taken.” Regarding the injuries, she observed as under:- “Nature of injuries: In first act of intercourse and probable duration of injuries was within 20 hours. The kind of weapon indulge in intercourse.” 8. Further expanding `indulging intercourse’, she stated that the prosecutrix was not habitual to intercourse. Thus, from the cursory look of the medical evidence, it could well be observed that when the hymen was lacerated and vagina was bleeding and could admit two fingers with difficulty, the prosecutrix was not habitual to intercourse and had been subjected to intercourse against her will, more particularly keeping in view the injuries suffered by her, the act of forcible intercourse could be inferred. 9. It has been observed time and again that in the Indian Setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyse the argument in support of the need for corroboration and subject it to relentless and remorseless cross-examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with out feet firmly planted on the soil of India and with out eyes focussed on the Indian horizon. A similar view was taken in case Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat, AIR 1983 SC 753. 10. In the aforesaid case, Judges also distinguished the traditions, culture, environment, social ecology, social values, social mode of Indian society with the Western society. The Judges of the Apex Court were of the view that we should not be swayed by the approach made by the Western world, which has its own permissive values on mode of life and on social modes. The reason for this big difference between the Western culture and the Indian culture is apparent. In the Western society, the sex being advanced is given secondary importance and the western girls could make accusations regarding sexual molestation against a male for several reasons such as: (1) The female may be a `good digger' and may well have an economic motive – to extract money by holding out the gun of prosecution or public exposure. (2) She may be suffering from psychological neurosis and may seek an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted and chased by males. (3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account. (4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in compromising or embarrassing position, on account of personal or political vendetta. (5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self-importance in the context of her inferiority complex. (5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self-importance in the context of her inferiority complex. (6) She may do so on account of jealousy; (7) To win sympathy of others; (8) Or upon being repulsed. But in India the things are quiet different. The modesty of a lady has been given paramount consideration and is dealt as valuable security; a thing of respect, not to be thrown away or made subject of access by the people even having attracted towards it or having lust of it. In Indian setting, even after the commission of such a heinous crime at the hands of a criminal, the people avoid making it public and try to high it off or hide it under the carpet, as they know that though a murderer destroys the physical frame of a victim, yet a rapist degrades and defies the stature not only the helpless female, but spoils the entire fabric of the family in the eyes of the society. 11. Thus, keeping in view the aforesaid parameters, I am hesitant to ask for more corroboration to the testimony of the prosecutrix, which stands corroborated by her own father as well as the doctor. 12. A finger has been raised by the counsel for the appellant that the prosecutrix having been declared hostile, does not attach any credence, therefore, her testimony needs to be viewed with suspicion and should not inspire confidence of the Court. Having perused the statement of the prosecutrix (PW3) minutely, it transpires that she has been declared hostile, but the hostility does not mean that the Court should ignore such testimony merely for the said reason, but the testimony of such witness is to be closely scrutinized by the court and after examining the same as whole the court with its expert eye should peep into it and then reach the conclusion. From the tenor of the statement made by the prosecutrix (PW3) in court, it appears that she never intended to resile from her earlier statement, but having failed to face the wrath of examination in open court, fumbled and was lost in the realm of shame, which fact was made clear by her during the cross-examination by the Additional Public Prosecutor. The relevant extract of her statement is reproduced as under:- “It is correct that my above statement that the accused opened the string of my salwar and ran away has been made under hesitation and feeling shame and the whole occurrence has not been stated there. Whatever, I stated before the police, that actually happened with me.” 13. The prosecutrix during her cross examination has stated in unambiguous words that the appellant had raped her. Resultantly, her private parts started bleeding, but what more surprising is that this witness was not cross examined regarding the factum of rape committed by the appellant. The entire cross examination sans even a suggestion that the appellant did not commit rape. 14. As a matter of fact, the hesitation, shyness and shame normally stand in the way of the prosecutrix while appearing to depose in open court. The Legislature in order to protect the rights of the prosecutrix and her security, incorporated Section 327(2) of the Code of Criminal Procedure, which reads as under:- “327.Court to be open – (1) ........ (2) Not withstanding anything contained in sub-section(1), the enquiry into and trial of rape or an offence under Section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code (45 of 1860) shall be conducted in camera: Provided that the presiding Judge may, if he thinks fit, or on an application made by either of the parties, allow any particular person to have access to, or be or remain in, the room or building used by the Court.” 15. The aforesaid provision has been elaborately discussed in case Suo Moto vs. State of Rajasthan, 2006(1) RCR (Criminal) 471, wherein, the Court observed that the trial in camera would not only be in keeping with the self respect of the victim, but also improve the evidence of the victim. Victim will not be in an atmosphere of embarrassment, hesitation and shame. 16. The victim not only needs physical protection, but also the financial, medical, psychological and social support. An attempt be made to build an atmosphere of camaraderie so that the victim gets out of the trauma both physical and mental. In other words, a congenial atmosphere is required to be created by which a victim is free to speak out without fear or any reservation. An attempt be made to build an atmosphere of camaraderie so that the victim gets out of the trauma both physical and mental. In other words, a congenial atmosphere is required to be created by which a victim is free to speak out without fear or any reservation. Adequate assistance is required to be extended to prepare the victim to face the legal process in the Courts. The trial judges are expected to be proactive in intervening during cross-examination of female witness, especially where sexist conduct for innuendo arises. As a matter of fact, in rape cases, the Trial Court should make an earnest effort to examine her with utmost urgency to testify her statement, so that she may not become subject of pressure, influence or sympathy from the side of the accused. While approving the proceedings to be taken in camera in cases relating to rape victims, the Division Bench of Rajasthan High Court in the case of State of Rajasthan (supra) further constructed some guidelines for the courts trying the offence of sexual violence, which are reproduced as under:- “(a) The victim is not harassed by strategies adopted by the accused persons to recall and re-state the trauma faced by her for more than once; (b) The statement of the victim shall be recorded positively on the date fixed except for the special recorded reasons; (c) The victim appearing as a witness will be provided accommodation in the Court and she will not be required to wait for long, in any case not beyond two hours; (d) The statement of the witness shall be recorded in an atmosphere conducive to the women speaking freely about the Sexual Violence she faced. Any disrespectful language to victim used by a Court Officer including the lawyer shall be construed as a misconduct to be appropriately dealt with by the respective authorities; 17. It is further observed that the Court while deviating from the procedure laid down in Section 327 Cr.P.C., particularly in rape cases, ignore them for the reasons known to them. In any case, it is not only that the trial should be conducted in camera, but it should appear from the evidence that it was so conducted. It is further observed that the Court while deviating from the procedure laid down in Section 327 Cr.P.C., particularly in rape cases, ignore them for the reasons known to them. In any case, it is not only that the trial should be conducted in camera, but it should appear from the evidence that it was so conducted. The court should be careful in taking a note in this regard, which may avoid the victim of the offence of rape from the unnecessary harassment, shame and trauma and also to save them from financial, psychological or physical harm, as a result of an offence. Had the Trial Court taken care of the aforesaid provisions of law in recording the statement of the prosecutrix, then she, instead of withholding herself from exposing in the public, would have been straight in deposing everything and the prosecution would not have come at her rescue. In any case, the non-examination of the prosecutrix in camera has not caused any prejudice to the accused, therefore, for want of the examination of the prosecutrix in camera, the proceedings do not stand vitiated. 18. On appreciation of the evidence of the prosecutrix as a whole, the conscience of the court is satisfied that the prosecutrix being an illiterate rustic villager tore out her abdomen, whatever came at her tongue and the fact is that she was raped at the hands of the accused – appellant. Therefore, I see no reason to disbelieve her testimony and no hesitation in maintaining the impugned judgment. No other argument has been raised. Appeal dismissed.