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Harbans Singh vs State Of Punjab on 13 March, 2018

CRA-S-1615-SB-2014 (OM) -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH

CRA-S-1615-SB-2014 (OM)
Date of Decision: 13.03.02018

Harbans Singh …Appellant(s)

Versus

State of Punjab …Respondent(s)

CORAM: HON’BLE MRS. JUSTICE ANITA CHAUDHRY
Present: Mr. B.S. Jaswal, Advocate and
Mr. Ankush Thatai, Advocate
for the appellant.

Mr. Pawan Sharda, Sr. DAG, Punjab,
counsel for the respondent-State.
*****
ANITA CHAUDHRY, J.

The appellant assails the judgment of conviction and

sentence vide which he was sentenced to 10 years’ rigorous imprisonment

along with a fine of Rs.5,000/- under Section 376 IPC. In default of

payment of fine, he was to further undergo rigorous imprisonment for a

period of 6 months, on a complaint given by his daughter.

The police received a complaint on 10.06.2013, made by the

17 year old daughter alleging rape by the father. The incident occurred in

the morning at about 6:00 AM on 08.06.2013. The allegations are that

she was raped at their house in the morning at about 5:30/6:00 AM. Her

her siblings were away to school, her mother was mentally unstable. The

complainant had mentioned that she had mustered courage and had

confided in her elder sister and then informed the police. The police

produced the girl before the Magistrate for her statement under Section

164 Cr.P.C. and her medical was got done. The vaginal swabs and

samples for DNA test were collected. The father was arrested.

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Charge was framed under Section 376 IPC to which he

pleaded not guilty and claimed trial.

Dr. Simrit Kaur PW-1 had conducted the medico-legal

examination on the victim who informed that she (victim) was being

repeatedly sexually assaulted since the age of 8 – 9 years and the last

assault had taken place on 08.06.2013. Medical Officer deposed that

there was no evidence of fresh external injury on her body and there

was no mark of injury even on local examination. The hymen was

found to be old and torn. On examination of the chemical examiner’s

report, the Medical Officer had stated that in her opinion the victim had

been subjected to sexual intercourse. In the cross-examination, the

witness had stated that the average age of spermatozoa is up to 72 hours

and as per the chemical examiner’s report, no spermatozoa was

detected.

Dr. Rajeev Mehra PW-2 had examined the accused and

had proved his report Ex.PW2/1.

The prosecutrix in her statement while appearing as PW-3

stated that the accused had been sexually assaulting her for the last two

years. She stated that when she was 11 – 12 years old, her father had

physically teased her and asked her to remove her clothes. She stated

that the act was committed whenever her brother and sister were away

from home. She stated that she had told her elder sister but she

discouraged her, saying that the family would be put to shame. She

stated that on 08.06.2013 she was present at home and her brother and

sister were away to school and her mentally ill mother had wandered

out of the house and she was alone and the accused came home and

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finding her alone forcibly removed her clothes and sexually assaulted

her. She stated that she did not raise alarm because she was ashamed

that such an act would come to the notice of others and she was worried

that the people would come to know about it but as she was fed up she

reported the matter to the police on 10.06.2013. In the cross-

examination she accepted that her father was a rickshaw puller and used

to leave home in the morning and returned home at night. She stated that

her elder sister was 18 years old. She admitted that on 08.06.2013 it was

a holiday in the school and her brother and sister had not gone to school

that day and they were at home. She stated that she had told the police

that her sister had discouraged her from reporting the matter to the

police. The attention of the witness was drawn to her statement Ex.PA

wherein it was not specifically recorded. She admitted that her mother

used to live with them. She stated that she had never shared her woes

with anyone in her school except her brother and sister. She denied that

she was indulging in immoral activities and had friends and that her

father used to stop her. She stated that her father used to object to her

working as a domestic help. She stated that her father used to return

home from work at about 11:00 AM or even at mid-night and some

times he used to come early or even during day. She stated that she

used to leave home for work at 6:00 a.m. and used to return from work

at about 10:00 a.m.

ASI Satpal Singh PW-6 had investigated the case. He

proved the site plan Ex.PW6/A and stated that there was only one room

in the house.

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The prosecution had given up Jyoti, the elder sister of the

victim.

The accused pleaded false implication and stated that his

daughter was indulging in immoral activities and he used to reprimand

her. He stated that he had two more children and all of them lived in the

same room.

The elder daughter of the accused was examined as a

defence witness. She supported her father and stated that they had one

room tenement and her sister had never told her anything about the

alleged act. She stated that her sister used to wander throughout the day

and her father used to object as he used to return home late at night. She

stated that before the registration of the FIR, there was a tussle between

her father and sister and she had caught her speaking to some boys. The

brother of the victim appeared as DW-2 and supported the father and

that his sister was wayward and he used to object.

The trial Court accepted the solitary statement of the

prosecutrix and convicted the appellant. It got swayed with the fact that

the mother of the victim was mentally ill and the act was committed

when the victim was alone at home.

I have heard the submissions of counsel of both the sides.

The counsel for the appellant had urged that there was a

delay of two days in lodging the FIR and the complaint was false and

the daughter had spoken against the father because she herself was into

immoral activities. It was urged that the falsehood can be seen from the

fact that in the complaint the victim had stated that she was alone at

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home and her brother and sister were at school and she did not realize

that in the month of June all the schools are closed and while appearing

in the witness box she had admitted that it was a holiday on that day. It

was urged that the incident is stated to be at 5:00/5:30 AM, which could

not be possible as the entire family was at home. It was urged that the

family lived in one room and the act could not have been committed in

the presence of other family members. It was urged that the MLR

reveals that the hymen was old and torn and there was no recent assault

and there was no injury on her body. It was urged that no family

member had accompanied the girl to the police or for the medical

examination and this fact is noted in the MLR. It was urged that the

FSL report shows that no spermatozoa was found and the trial Court

had erred in recording conviction without any cogent and convincing

evidence. It was contended that the Medical Officer had advised DNA

test and samples were taken for DNA test but the prosecution has not

led any evidence to show that the test was carried out and if it was, its

result. It was contended that the appellant is a rickshaw puller and used

to leave early morning and returned late at night and the father had

caught the daughter with some boys and he had reprimanded the

daughter and therefore the complaint was filed.

The State counsel had supported the judgment of the trial

Court.

It is settled that in rape cases, the solitary statement of the

prosecutrix is sufficient to convict the accused if it is found to be

convincing and reliable.

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The law is settled that in the case of sexual offences, the

testimony of the victim is vital and unless there are compelling

circumstances, which necessitate looking for corroboration of her

statement. The Court should find no difficulty to act on the testimony

of the victim and that alone would be sufficient to convict but while

appreciating the evidence, the Court would also look for some

assertions of her statement to satisfy its judicial conscious since she is a

witness who is interested in the outcome of the charge levelled by her

but there is no requirement to insist upon corroboration to base a

conviction.

In State of Punjab Vs. Gurmit Singh and others, AIR,

1996 S.C. 1393 the Hon’ble apex Court had laid down the following

propositions of law which may be summed up as follows:-

1. The delay in lodging of the First Information Report,
if properly explained should not matter in sexual
offences.

2. The testimony of the victim in cases of sexual offences
is vital and unless there are compelling circumstances
which necessitate looking for corroboration of her
statement, the Court should find no difficulty to act on
the testimony of a victim of sexual assault alone to
convict.

3. Seeking corroboration of her statement before relying
upon the same, as a rule, in such cases, amounts to
adding insult to injury.

4. The Court while appreciating the evidence of the
prosecution 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

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levelled by her, but there is no requirement of law to
insist upon corroboration of her statement to base
conviction of an accused.

5. The evidence of a victim of sexual assault stands
almost at par with the evidence of an injured witness.

6. The evidence of a victim of sexual offence is entitled
to great weight, absence of corroboration
notwithstanding,

7. Corroborative evidence is not an imperative
component of judicial credence in every case of rape.

8. Even in cases, where there is some acceptable
material on the record to show that the victim was
habituated to sexual intercourse no such inference like
the victim being a girl of “lose moral character” is
permissible to be drawn from that circumstances alone.

9. Even if the prosecutrix, in a given case, has been
promiscuous in her sexual behaviour earlier, she has a
right to refuse to submit herself to sexual intercourse to
anyone and everyone because she is not a vulnerable
object or prey for being sexually assaulted by anyone
and everyone. No stigma, should be cast against such a
witness by the Courts, for after all it is the accused and
not the victim of sex crime who is on trial in Court.

Hon’ble Supreme Court in Raju and others Vs. State of

Madhya Pradesh, (2008) 15 SCC 133 has held that the accused must be

protected against the possibility of false implication. It has been further

held that in so far as the allegations of rape are concerned, the evidence of

prosecutrix must be examined as that of an injured witness whose

presence at the spot is probable but it can never be presumed that her

statement should without exception be taken as the gospel truth. It was

held:

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“10. The aforesaid judgments lay down the basic principle that
ordinarily the evidence of a prosecutrix should not be suspect
and should be believed, the more so as her statement has to be
evaluated at par with that of an injured witness and if the
evidence is reliable, no corroboration is necessary.
Undoubtedly, the aforesaid observations must carry the greatest
weight and we respectfully agree with them, but at the same time
they cannot be universally and mechanically applied to the facts
of every case of sexual assault which comes before the Court.

11. It cannot be lost sight of that rape causes the greatest
distress and humiliation to the victim but at the same time a
false allegation of rape can cause equal distress, humiliation
and damage to the accused as well. The accused must also be
protected against the possibility of false implication,
particularly where a large number of accused are involved. It
must, further, be borne in mind that the broad principle is that
an injured witness was present at the time when the incident
happened and that ordinarily such a witness would not tell a lie
as to the actual assailants, but there is no presumption or any
basis for assuming that the statement of such a witness is always
correct or without any embellishment or exaggeration.

In Tameezuddin alias Tammu Vs. State (NCT of Delhi),

(2009) 15 SCC 566 it has been held that though evidence of prosecutrix must

be given predominant consideration, but to hold that this evidence has to be

accepted even if the story is improbable and belies logic, would be doing

violence to the very principles which govern the appreciation of evidence in a

criminal matter. It had been held as follows:

“9. It is true that in a case of rape the evidence of the
prosecutrix must be given predominant consideration, but
to hold that this evidence has to be accepted even if the

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story is improbable and belies logic, would be doing
violence to the very principles which govern the
appreciation of evidence in a criminal matter. We are of the
opinion that story is indeed improbable.

It has now to be examined whether the statement of the

prosecutrix is convincing and could be relied upon? Whether she was

stating the truth and is her statement believable. The incident is said to

have taken place on 08.06.2013. The victim was over 17 years of age at

the time of the occurrence. The complaint was given after two days.

According to the complainant, she was being abused by her father for a

number of years. She had stated that she had confided in her elder sister

but she would stop her from reporting as it would bring disrepute to

their family. The sister of the complainant was cited as a prosecution

witness but was given up by the prosecution. She was later on examined

as a defence witness. It is necessary to mention here that the appellant

was in custody throughout the trial, therefore he was not in a position to

influence the witnesses.

The occurrence had taken place in the house and according

to the complainant she was sexually assaulted at about 5:30/6:00 AM in

the morning. The entire family was at home. It was vacation time as

the schools were closed, therefore, it was highly improbable that the

incident could occur at that hour.

Not only there is a delay in lodging the FIR, there is no

medical evidence which corroborates the statement. No spermatozoa

was found. There was no injury internal or external on the body of the

prosecutrix. The Medical Officer had suggested DNA test and a sample

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was taken but surprisingly the DNA report was not produced for the

reasons only known to the prosecution.

According to the accused and the siblings, the prosecutrix

was seen in the company of boys and the father used to reprimand her

and that appears to be the reason for the complaint. The medical record

shows that the hymen was old and healed and there was no fresh assault

and the plea taken by the accused that his daughter was out of his

control is again true. False allegations had been levelled by the daughter

and her statement should not have been accepted as the gospel truth.

The story is improbable and belies logic. The trial Court had erred by

accepting the bare statement of the prosecutrix on its face value. It

should have sought corroboration from other evidence. The trial Court

has not appreciated the evidence in its totality or with sensitivity. The

circumstances taken as a whole creates a doubt on the correctness of the

prosecution version. The statement of the victim is not convincing. The

story put forward by her is improbable and belies logic. The

prosecution had been unable to prove its case. Resultantly, the appeal is

accepted. The judgment and order of conviction are set aside. The

appellant is in custody. He be released forthwith, if his custody is not

required in any other case.

(ANITA CHAUDHRY)
13.03.02018 JUDGE
sunil

Whether speaking/reasoned : Yes/No

Whether reportable : Yes/No

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