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Punjab-Haryana High Court
Gurmeet Singh vs State Of Punjab on 17 March, 2021CRA-D-309-DB-2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-D-309-DB-2013 (O&M)
Date of decision : 17.03.2021
Gurmeet Singh @ Kaka
…Appellant
Versus
State of Punjab
…Respondent
CORAM:- HON’BLE MR. JUSTICE JITENDRA CHAUHAN
HON’BLE MR. JUSTICE VIVEK PURI
Present: Mr. S.S. Swaich, Advocate
and Mr. G.S. Salana, Advocate,
for the appellant.
Ms. Monika Jalota, DAG, Punjab.
JITENDRA CHAUHAN, J.
Convict Gurmeet Singh @ Kaka has preferred the
instant appeal assailing the judgment of conviction and order of sentence
dated 11.02.2013, passed by learned Additional Sessions Judge, Fatehgarh
Sahib. The appellant has been convicted and sentenced as under:-Conviction Sentence of Sentence of fine Default clause
under Section imprisonment
376 IPC Life 10,000/- RI for 02 years
imprisonment
342 IPC 01 year `1,000/- RI for 01 month
506 IPC 02 years `2,000/- RI for 02 months
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All the sentences were ordered to run concurrently. The
amount of fine, upon recovery, was ordered to be paid to the victim as
compensation under Section 357 Cr.P.C.
Brief facts of the present case as noticed in para No.2 of
the impugned judgment passed by the trial Court are as under:-
“2. Adumbrated in brief facts of the prosecution
case are that on 27.12.2012, ASI Jagroop Singh along
with other police officials were present in connection
with patrol duty and checking of bad elements at bridge
canal minor, Jassran on their private vehicles, when
complainant (the name has been withheld in view of
guidelines issued by Hon’ble Supreme Court in case
“State of Punjab Vs. Ram Dev, AIR 2004 SC 1291″
and she has been referred as victim or prosecutrix or
complainant) along with her uncle Buta Khan and aunt
Begum met the police party. Victim suffered her
statement on the account that she is studying in 8th
standard in Government Middle School, Tooran. Her
date of birth is 15.9.1999. After the death of her father,
she is residing with her uncle Buta Khan, as her mother
had also gone to her parental house. Yesterday i.e.
26.12.2012 at about 7.00 P.M., she had gone to take
langer, which was served near bridge canal minor,
Ladpur but villagers on account of Shahidi Jor Mela.
At about 7.10 P.M., she reached near plot of Khazan
Singh, where one truck no.PB-11-AP-1495 was lying
parked. When she reached parallel to said truck, then
Gurmeet Singh @ Kaka son of Kulwant Singh resident
of village Tooran caught hold her from hand and
dragged her in the cabin of truck and has committed
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rape upon her without her consent. He also gave fist
and slap blows and further threatened her not to
disclose about this incident, otherwise he will commit
her murder. Victim’s uncle Buta Khan came there in
search of her. On seeing her uncle, Kaka fled away
from the spot. Complainant’s uncle brought her down
from the truck and due to fear, they went to their house.
She has kept concealed the fact due to her respect and
there was talk of compromise in the village, but the
same was not matured. Complainant was going to
lodge the report with her uncle Buta Khan, when the
police party met them on the way at over bridge of
Jassran. Complainant signed her statement in token of
correctness, which was also verified by her uncle Buta
Khan and aunt Begum. On the basis of above statement
case for offence under Sections 376, 342, 506 of IPC
was got registered and investigation has been pressed
into service..”
After completion of the investigation, final report under
Section 173 Cr.P.C. was presented. Upon committal of the case by learned
Area Magistrate, learned trial Court framed charges under Sections 376, 506
and 342 of the Indian Penal Code, against the accused, to which he pleaded
not guilty and claimed trial.
In support of its case, the prosecution examined Dr.
Savreet Kaur, Medical Officer, Civil Hospital, Gobindgarh as PW-1; Dr.
Swaran Singh, Medical Officer, Civil Hospital, Mandi Gobindgarh, as PW-
2; Prosecutrix d/o Babbi Khan as PW-3; Buta Khan, uncle of the prosecutrix
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as PW-4; HC Karamjit Singh as PW-5; Ashok Kumar, Jr. Assistant, office
of the DTO, Fatehgarh Sahib as PW-6; Lady Constable Gurjit Kaur as PW-
7; Devinder Singh Sangar, Draftsman as PW-8; HC Lekh Raj as PW-9;
Mehar Kaur, Head Mistress, Government Middle School, Tooran, as PW-10;
HC Jaswinder Singh as PW-11; HC Harinder Singh as PW-12; and ASI
Jagroop Singh, the Investigating Officer as PW-13.
When examined under Section 313 Cr.P.C., the accused
denied all the allegations and pleaded false implication. He took the plea
that he was never employed as a driver on truck of Khazan Singh, whereas,
Buta Khan, suspected that he had a love affair with the prosecutrix. Further,
the accused took a plea that there is party faction in the village and the
complainant party was demanding a huge amount of money to compromise
the matter. In defence, he examined Karamjit Singh as DW-1 and closed the
defence evidence.
Learned trial Court vide the impugned the judgment,
convicted and sentenced the appellant as reflected at the outset of this
judgment. Hence, the instant appeal.
Learned counsel for the appellant contends that there is
inordinate and unexplained delay of 24 hours in lodging the FIR, which was
used to falsely implicate the appellant. In fact, there are two groups in
village Torran and Ladpur, belonging to Congress Party and Akali Dal
respectively. The appellant was perceived to be a member of the hostile
faction of the village. To settle the score, the opposite group connived with
Khazan Singh, owner of the truck in question, and put forward Buta Khan in
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lodging false case against the appellant. As there is no reference of the
appellant by the prosecutrix to any body including her uncle Buta Khan,
therefore, there was no reason for Buta Khan to suspect any love affair
between the appellant and the prosecutrix. This story of having any affair by
the appellant has been concocted by the hostile faction of the village and was
executed through the help of complainant Buta Khan. The prosecution has
also failed to produce on record any ossification test of the prosecutrix. In
the absence of the same, the age of the prosecutrix has been wrongly held to
be below 18 years. The school certificate produced by the prosecution is
inadmissible in evidence. There is no opinion of the doctor as regards the
age of the prosecutrix. As per the MLR dated 28.12.2012, conducted by Dr.
Swaran Singh, PW-2, no external mark of injuries were found on the labia
majora or minora of the appellant which shows that no struggle was put forth
by the prosecutrix. In the absence of any injury the story put forth by the
prosecutrix/prosecution is not believable. Lastly, there is no evidence to
connect the appellant with the truck in question.
On the other hand, learned State counsel submits that
the prosecution has been successful in bringing home the guilt against the
appellant. The prosecutrix, who was minor at the time of the occurrence, as
well as the other prosecution witnesses, have withstood the test of lengthy
cross-examination by the defence. The plea of false implication has not
been substantiated by any cogent evidence.
We have heard learned counsel for the parties and
perused the record with their able assistance.
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In the instant case, the appellant as per record reflected
in the MLR, has been found to be an able bodied and grown up young man,
aged around twenty seven years at the time of occurrence. He stands
convicted for sexually assaulting the prosecutrix, a young child of fourteen
years. As per the prosecution story, on the fateful day i.e. 26.12.2012, the
prosecutrix was going to take meal from the community kitchen ‘langar’
organized by the villagers of Village Ladpur on Shahidi Jor Mela. At
around 7.00 p.m., while she was passing by the side of the truck of Khazan
Singh, she was forcibly pulled inside the cabin of the said truck by the
appellant. Thereafter, the appellant committed rape upon her under threat.
She was rescued by her uncle, PW-4 Buta Khan, who while searching for the
prosecutrix, had reached near the truck in question and heard some noise
therefrom. On seeing Buta Khan, the appellant, who was in naked
condition, managed to escape after carrying his clothes. After returning
back home, the matter was brought to the notice of Bhinder, Sarpanch of
Village Ladpur and a Panchayat was convened at the house of Buta Khan.
An effort was made by the Sarpanch to get the issue compromised.
However, no such compromise could be effected and, therefore, the matter
was reported to the police on the next date i.e. 27.12.2012 at 6.00 p.m.
In the cases relating to sexual abuse, the version of the
victim assumes utmost importance. While appearing as PW-3, the
prosecutrix has narrated the entire incident. She has deposed that she never
had any conversation with the appellant and had also never visited his house.
She was forcibly lifted inside the cabin of truck by the appellant. When she
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raised alarm, she was given slaps and was threatened to be killed, in case,
she raised alarm. When her uncle Buta Khan, who while searching for the
prosecutrix, reached the spot, he found the appellant in naked condition, who
ran away as such while carrying his clothes. Most importantly, the
prosecutrix has specifically stated that the appellant never teased her before
the incident, which goes to show the truthfulness of this witness. In fact,
the appellant had an evil eye upon the prosecutrix, niece of the complainant.
He fully knew that father of the prosecutrix had already passed away,
whereas, her mother had deserted her and she was being supported by the
family of her uncle, PW-4 Buta Khan. Therefore, she was taken as easy
prey by the appellant. Even after subjecting her to a lengthy cross-
examination, the defence failed to shake the credibility of this witness, who
was just fourteen years of age at the time of occurrence. Hon’ble the
Supreme Court as well as this Court has time and again emphasized that the
testimony of a victim of sexual assault is not only at par with that of an
injured witness but on a much higher pedestal and does not need any
corroboration from any other witness. Reference in this regard can be
placed on the judgment rendered by Hon’ble the Supreme Court in Moti Lal
v. State of M.P., (SC), 2008(3) R.C.R. (Criminal) 796, wherein, it has been
held as under:-
“6. In the Indian Setting refusal to act on the testimony
of the victim of sexual assault in the absence of
corroboration as a rule, is adding insult to injury. A girl
or a woman in the tradition bound non-permissive
society of India would be extremely reluctant even to
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admit that any incident which is likely to reflect on her
chastity had ever occurred. She would be conscious of
the danger of being ostracised by the society and when
in the face of these factors the crime is brought to light,
there is in built assurance that the charge is genuine
rather than fabricated. Just as a witness who has
sustained an injury, which is not shown or believed to
be self-inflicted, is the best witness in the sense that he
is least likely to exculpate the real offender, the
evidence of a victim of sex offence is entitled to great
weight, absence of corroboration notwithstanding. A
woman or a girl who is raped is not an accomplice.
Corroboration is not the sine qua non for conviction in
a rape case. The observations of Vivian Bose, J. in
Rameshwar v. The State of Rajasthan, (AIR 1952 SC 54)
were :
“The rule, which according to the cases has
hardened into one of law, is not that
corroboration is essential before there can be
a conviction but that the necessity of
corroboration, as a matter of prudence,
except where the circumstances make it safe
to dispense with it, must be present to the
mind of the judge…”.
7. It is settled law that the victim of sexual assault is not
treated as accomplice and as such, her evidence does
not require corroboration from any other evidence
including the evidence of a doctor. In a given case even
if the doctor who examined the victim does not find sign
of rape, it is no ground to disbelieve the sole testimony
of the prosecutrix. In normal course a victim of sexual
assault does not like to disclose such offence even
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before her family members much less before public or
before the police. The Indian women has tendency to
conceal such offence because it involves her prestige as
well as prestige of her family. Only in few cases, the
victim girl or the family members has courage to go
before the police station and lodge a case. In the instant
case the suggestion given on behalf of the defence that
the victim has falsely implicated the accused does not
appeal to reasoning. There was no apparent reason for
a married woman to falsely implicate the accused after
scatting her own prestige and honour.”
In Swaroop Singh v. State of M.P. (SC), 2013 AIR
(SC) 2912, it has been laid down as under:-
“14. In this context it will be worthwhile to refer to the
principles laid down by this Court as to the manner in
which the evidence of a rape victim should be evaluated
to ascertain the truth. The said decision is reported in
State of Punjab v. Gurmit Singh, 1996(1) RCR
(Criminal) 533 : 1996(2) SCC 384, Para 8 and 21 are
relevant which reads as under :-
“8….. 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 molestation,
supposed considerations which have no
material effect on the veracity of the
prosecution case or even discrepancies in the
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statement of the prosecutrix should not, unless
the discrepancies are such which are of fatal
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 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. Why should the evidence of a
girl of 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
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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 over-looked that
a woman or a girl subjected to sexual assault
is not an accomplice to the crime but is a
victim of another persons’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 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…”
“21. Of late, crime against women in general
and rape in particular is on the increase. It is
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an irony that while we are celebrating
women’s rights in all spheres, we show little
or no concern for her honour. It is a sad
reflection on the attitude of indifference of the
society towards the violation of human dignity
of the victims of sex crimes. We must
remember that a rapist not only violates the
victim’s 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. The Courts, therefore,
shoulder a great responsibility while trying
an accused on charges of rape. They must
deal with such cases 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
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the case of an accomplice. The testimony of
the prosecutrix must be appreciated in the
background of the entire case and the trial
court must be alive to its responsibility and be
sensitive while dealing with cases involving
sexual molestations. ”
In Krishna Kumar Malik Vs. State of Haryana (2011)
7 SCC 130, it is observed by this Court that no doubt, it is true that to hold
an accused guilty for commission of an offence of rape, the solitary evidence
of the prosecutrix is sufficient provided the same inspires confidence and
appears to be absolutely trustworthy, unblemished and should be of sterling
quality. Moreover, in the instant case, the version put forth by the
prosecutrix has been duly corroborated by the testimony of PW-4, Buta
Khan, who is an eye-witness.
Learned counsel for the appellant states that there is
unexplained delay of about 24 hours in lodging the FIR. However, we feel
that the same stands sufficiently explained by the prosecution as made out
from the statement of PW-4, Buta Khan. It has come in the evidence of the
prosecutrix as well as her uncle, PW-4 Buta Khan, that after the incident, a
Panchayat was convened and they were pressurized through the Sarpanch of
the Village to enter into a compromise. All these developments after the
occurrence have led to a delay of about 24 hours in lodging the FIR,
however, the same is not fatal to the prosecution case, particularly, when we
view the circumstances and status of the poor orphan child who lost her
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father and her mother deserted her to secure the love of other person in her
life.
The argument with regard to age of the prosecutrix
having not been proved also deserves to be rejected. It is to be seen that the
prosecutrix herself has stated date of her birth as 15.09.1999. This fact finds
corroboration from the testimony of her uncle Buta Khan, appearing as PW-
4, who has deposed that the prosecutrix was born in the year 1999.
Interestingly, there is no cross-examination by the defence on this particular
issue. The ocular evidence is sufficiently supported by the documentary
evidence in the form of school certificate, Ex.PO, wherein, the date of her
birth has been recorded as 15.08.1999. As per Section 35 of the Indian
Evidence Act, a register maintained in a school is admissible in evidence to
prove date of birth of a person. Further, in her cross-examination, Dr.
Savreet Kaur, PW-1, who conducted the medical examination upon the
prosecutrix has specifically stated that she did not feel any necessity of
ossification test as she was instructed to examine for the purpose of rape.
Even otherwise, the ossification test is based upon mere estimation.
Therefore, it stands established on record that the victim was minor at the
time of the occurrence.
Now, coming to the medical evidence on record, Dr.
Savreet Kaur, PW-1, has testified as under:-
“……….Patient gives history of assault at around 7.30
pm yesterday. On examination conscious, co operative,
well oriented, blood pressure 120/80 mmHg, pulse rate
76 per minute, secondary sexual characters well
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developed, LMP 8.12.12.
1- Bluish bruise below left eye.
2- Red abraison two in number in front of
neck in an area of 5 cm squre
3- Red bruise in an area of 10 X 5 cm in front
of left thigh.
Accompanying swelling present.
Patient has changed clothes and taken bath.
P/V Patient not wearing under wear. No fresh external
mark of injury on labia majora or minora. Vagina
admits one finger with difficulty. Hymen ruptured,
edges ragged. No blood seen…..
…. The nature of injuries (1, 2, 3) was simple in nature.
Probable duration of injuries was within 24 hours.
Probable weapon blunt…..”
The seat and probable duration of the injuries as noticed
by this witness lend credence to the prosecution story. Even if no semen
was detected in the chemical examiner report, Ex.PB, the same cannot be
held to be sufficient to brush aside the entire prosecution version in view of
the MLR report which details the physical status of the prosecutrix after the
incident, particularly, when the victim was examined after about 24 hours of
the occurrence and in the interregnum, she had taken bath and changed
clothes, thus, demonstrable semen was not found by the doctor. Similarly,
the appellant was examined by Dr. Swaran Singh, PW-2 on 28.12.2012, i.e.
after two days of the occurrence. The accused had also taken bath and
changed clothes during this period. Therefore, the contentions raised by
learned counsel for the appellant, in this regard, are repelled.
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To the contrary, the defence version appears to be
highly improbable. The appellant could neither prove that he was falsely
implicated on account of party faction, nor on account of suspicion by Buta
Khan, PW-4, of a love affair between him and the victim, by leading cogent
evidence.
In view of the above discussion, we do not find any
ground to upset the well reasoned findings returned by learned trial Court.
Consequently, the instant appeal fails and is hereby, dismissed, whereas, the
impugned judgment of conviction and order of sentence dated 11.02.2013,
are hereby, affirmed.
Pending application(s) if any, also stand disposed of.
(JITENDRA CHAUHAN) (VIVEK PURI)
JUDGE JUDGE
17.03.2021
atulsethi
Whether Speaking/reasoned Yes/No
Whether Reportable Yes/No
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