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Sham Singh vs The State Of Haryana on 21 August, 2018

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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 544 OF 2018

Sham Singh ..Appellant
Versus
The State of Haryana ..Respondent

JUDGMENT

MOHAN M. SHANTANAGOUDAR, J.

1. This appeal arises out of the judgment and order dated

17.07.2015 passed by the High Court of Punjab and Haryana at

Chandigarh in CRA-S-1648-SB of 2011, whereby the High Court

dismissed the appeal filed by the convicted accused, namely Jai

Singh and Sham Singh.

Since the first accused – Jai Singh has undergone the

sentence imposed upon him by the Courts below, he is stated to

have been released. However, the accused-

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Sham Singh, appellant herein, is serving the remainder of his

sentence.

2. The case of the prosecution in brief is that on the night of

22.08.2001, the minor victim girl (PW7), who was staying in the

house of her paternal uncle Om Prakash and Aunt Laxmi (PW10),

stepped out of the house to urinate, then she was approached by

the two accused, namely Jai Singh and Sham Singh. Both of the

accused are brothers inter se. The accused and the victim are

cousins. The accused forcibly took the victim into their house

and tied her hands on a cot with rope and committed rape on

her. The mother of the accused, having learnt about the incident,

told the victim to forget about the incident and threatened to

wipe out her family in case she disclosed about the incident to

anybody. She further made the victim consume some liquid,

which resulted in loss of consciousness of the victim. On the next

day, at about 5:00 a.m., the milkman Mahavir (not examined by

the Trial Court) informed the Aunt (PW10) of the victim about the

victim lying unconscious in front of a neighbouring house.

3. Based on the aforesaid allegations, the first information

came to be lodged, which was registered in City Police Station at

Palwal, Faridabad District, Haryana in FIR No. 653 dated
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25.08.2001. Investigation was made and charge sheet came to

be filed in the Sessions Court, Faridabad. The Additional

Sessions Court framed charges against both the accused, namely

Jai Singh and Sham Singh, for the offences punishable under

Sections 376 (2)(g), 342 and 506 of the Indian Penal Code, and

against the mother of the accused, namely Memwati, under

Sections 342 and 506 of the IPC.

4. The Additional Sessions Judge (Ad-hoc), Fast Track Court

No.II, Faridabad, after appreciating the materials on record,

acquitted the accused by its judgment and order dated

29.03.2003. Thereafter, the victim preferred an appeal before the

High Court, which came to be allowed, and set aside the

judgment of acquittal passed by the Trial Court. The High Court

remitted the matter back to the Trial Court for fresh

consideration. The Trial Court on re-consideration of the

materials on record, convicted the accused by its judgment dated

4.6.2011. Against this conviction, the accused preferred appeal

before the High Court, and the High Court while confirming the

judgment of conviction against the accused Jai Singh and Sham

Singh, has acquitted the accused mother – Memwati from the

charges levelled against her. As mentioned supra, the accused
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Jai Singh has served out the sentence imposed upon him and

hence this appeal is only by the accused – Sham Singh, who is

still serving the remainder of his sentence.

5. Learned counsel for the appellant taking us to the materials

on record contended that the High Court is not justified in

assuming that the injuries sustained by the victim may have

healed at the time of medico-legal examination and the FSL

report (Annexure P13) states that semen was not found on the

vaginal swab of the victim as well as on the salwar. That the

accused were relatives of the prosecutrix, however there was an

ill will between the two families and in view of the same, the

accused persons are falsely implicated. The evidence of Aunt/

Laxmi (PW10) and Medical Officer, Dr. Rekha Singh (PW6) do not

establish the offence of rape against the accused. The Courts

below have ignored the fact that the accused could not have

committed rape in his own house, particularly when the other

family members were present in the house. It was also argued

that the material witness, namely, milkman Mahavir, who

informed the Aunt about the victim lying unconscious in front of

the house of one Pappu, was not examined, which is fatal to the

case of the prosecution. Even Pappu before whose house the
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victim was allegedly lying unconscious was also not examined.

The Courts below are not justified in disbelieving the defence

version that the panchayat was conducted because the first

accused had given a slap on the face of the victim, inasmuch as

he had come in possession of certain love letters written by the

victim to someone. That the first accused apologised before

panchayat for his behaviour of slapping the victim and not for the

alleged rape. Thus the ‘mafinama’ given by the accused was on

account of giving slap to the victim and not in respect of

committing any other offence. The appreciation of evidence by the

Trial Court and the High Court is not proper and correct. On

these, among other grounds, it was prayed for acquittal of the

accused.

Per contra, learned counsel for the State argued in support

of the judgments of the Trial Court and the High Court.

6. We are conscious that the courts 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,
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to throw out an otherwise reliable prosecution case. If the

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 background of the entire

case and the court must be alive to its responsibility and be

sensitive while dealing with cases involving sexual molestations

or sexual assaults. (see State of Punjab vs. Gurmit Singh, (1996) 2

SCC 384 (para21)).

7. It is also by now well settled that 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 statement of the prosecutrix should not,

unless the discrepancies are such which are of fatal nature, be
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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. (see Ranjit Hazarika

vs. State of Assam, (1998) 8 SCC 635).

8. It is also relevant to note the following observations of this

Court in the case of Raju vs. State of M.P. (2008) 15 SCC 133,

which read thus:

“10. The aforesaid judgments lay down the basic
principle that ordinarily the evidence of a prosecutrix
should not be suspected and should be believed,
more so as her statement has to be evaluated on a
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.

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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.”

We have assessed the entire material on record to

satisfy our conscience once again, keeping in mind the

aforementioned set principles in such matters.

9. The medical examination of the victim was conducted by Dr.

Rekha Singh (PW6), Medical Officer, General Hospital, Palwal.

She has deposed that the victim was aged about 15 years at the

time of the incident and had sustained an injury on the left side

of the forehead and such injury is nothing but a small abrasion

with crust formation. The organs of generation were fully

developed and the secondary organs were also fully developed.

The vagina of the victim permitted two fingers. However, the

doctor observed the absence of hymen and did not mention the
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age of tear of the hymen because the tear was old. The vaginal

swab and the salwar worn by the victim during the course of the

incident were sent by the doctor to Forensic Sciences Laboratory

for chemical examination, but no presence of semen was found

on any of these exhibits. Finally however, the doctor has opined

that the possibility of sexual assault upon the victim cannot be

ruled out, though she did not specify as to whether the sexual

assault was in the recent past.

10. The victim was examined as PW7. She reiterated the

incident as stated by her in the first information. According to

her, the panchayat was convened in the village for the purpose of

settling the rape incident and not for the slapping incident. She

denied writing any love letters to any person. It is specifically

deposed by her that at the time of incident, the wife, children,

sister and mother of the accused prsons were present in the

house. She had resisted the tying of her hands and act of rape,

and while doing so, she had sustained scratches on her wrists.

She had shown these injuries to her Aunt Laxmi (PW10) and the

doctor.

11. Aunt of the victim, Laxmi (PW10) has deposed that there

was a family dispute between her family and the family of the
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accused and a case is pending with regard to an assault on

accused – Appellant Sham Singh by her son. She further stated

that in the morning at about 5:00 a.m., the milkman Mahavir

informed her that her niece, the victim, was lying unconscious in

front of neighbouring house; the milkman and the aunt

thereafter went to the said place and brought the victim inside

the house. A doctor was called who administered an injection to

the victim. It is specifically admitted by PW10 that she did not

see any injury on the victim.

12. The Investigating Officer (PW13) has deposed that he had

not come across, during the investigation, any talks and efforts in

the village regarding any panchayat held between the period of

incident and the filing of the complaint. No one had told him

about any commotion arising in the village regarding the incident

in question. During investigation, no compromise or confession

deed made before the panchayat was produced before him. He

stated that there are houses near the place where the victim was

allegedly left unconscious and he made enquiries from the

persons living around that place, but he could not get any

information regarding any such incident.

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13. The aforementioned witnesses are the only relevant

prosecution witnesses for deciding this appeal. Looking to the

above evidence, it is amply clear that the case of the prosecution,

as made out, appears to be artificial and concocted. It may not

be probable to commit rape in one’s own house in front of the

sister, children, wife and mother. If in actuality the incident had

taken place, the medical report would have gone against the

accused. Be that as it may, before commenting anything further,

it is better to discuss the evidence of the defence also.

14. The Panchayatdar, namely Lakhpat Singh, was examined on

behalf of the defence as DW1. He had presided over the

panchayat during the relevant date. He is also a common relative

for both the parties. He has specifically deposed that the

panchayat meeting was called to discuss about the incident of

slapping the victim by the first accused – Jai Singh, due to

objectionable activities of the victim in relation to sexual matters.

In the panchayat, the first accused confessed for having slapped

the victim and consequently he sought apology for the same

before the panchayat. The ‘Mafinama’ was written by the first

accused and the same was counter-signed by DW1. He has

specifically deposed that he has seen the house of Aunt Laxmi
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(PW10), where the victim was staying and that the said house

consisted of a bathroom and latrine.

15. The deposition of DW1 is corroborated by DW2 –

Charan Singh, who was also a member of the panchayat and a

signatory to the ‘Mafinama’ (Ex DB) written by the first accused.

He has also deposed that the panchayat was held in respect of

the incident of slapping, although there is no express mention of

the same in the said ‘Mafinama’ (Ex DB). He denied the allegation

that this document is fake and was prepared after initiation of

the proceedings for the offence of rape.

16. The relevant portion of the ‘Mafinama’ (Ex DB) and its

English translation reads as under:

Original version:

“Mai Jai Singh, Niwasi gaao Agwanpur, mere se apne
chacha ki ladki se galat vaivhar galti se ho gaya, mai
hath jod kar pure gaao se, sabhi logo se mafi mangta
hu. Kripya mujhe maaf kiya jae agar ayanda koi galti
mai karta hu to jo kuch pura gaao chahae wo saluki
mere sath kiya jave.”

English translation:

“I, Jai Singh, resident of Agwanpur village, do hereby
admit that unfortunately I had misbehaved with my
Uncle’s daughter. With my folded hands, I apologise
for the same in front of the whole village. Please
forgive me. If I commit any mistake in the future,
whatever punishment as decided by the village, I will
bow down to.”
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17. In the statement recorded under Section 313 of the Code of

Criminal Procedure, the first accused, Jai Singh denied all the

allegations made against him and his brother, Sham Singh, the

appellant herein. He has stated that the incident is a false

implication because of the family enmity that existed between the

victim’s family and his family. He had come in possession of a few

love letters which the victim had written to certain boys and he

had knowledge about the bad company of the victim. In these

circumstances, he confronted the victim and had slapped her due

to natural instinct. In this regard, a panchayat was held and in

the said panchayat he confessed for having slapped the victim

and also gave assurance that he will not repeat the said act.

18. The evidence of DW1 and DW2 was not shaken in the

cross-examination. There is nothing on record to discard the

evidence of these witnesses. DW1 and DW2 are Panchayatdars

and are independent witnesses. Moreover, DW1 is a relative of

both, the victim and the accused and he does not have any

grudge against the victim. The evidence of DW1 and DW2 have

practically remained untouched and their version fully supports

the stand taken by the accused persons. It is specifically
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deposed by DW1 that he has seen the house of Laxmi (PW10),

where the victim was staying, and the said house is having

bathroom and latrine. If it is so, there was no occasion for the

victim to go out of the house for the purpose of urinating. These

facts, coupled with the fact that there is no medico-legal report to

support the case of the victim relating to offence of rape, and as

there are no injuries on the body of the victim, which is also

admitted by PW10, it appears that the prosecution has cooked up

the story against the accused for the reasons best known to

them.

19. The High Court has mainly relied upon the ‘Mafinama’

(exhibit DB) to conclude that the accused himself has confessed

about his illegal act. But during the process, the High Court has

not given due weightage to the evidence of DW1 and DW2, whose

evidence has remained unrebutted. The panchayat was not

convened for the purpose of enquiring the offence of rape by the

accused, but it was convened for the purpose of enquiring about

the incident of a slap given to the victim by the first accused. We

find that this is a case wherein incriminating materials are

lacking against the accused.

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20. It is also relevant to note that curiously the victim, as

mentioned supra, has deposed on 31.05.2002 before the Trial

Court corroborating the incident as mentioned in the first

information. However, there is no mention anywhere in her

statement about the panchayat that took place for the alleged

incident of rape and the accused persons confessing the

commission of offence. It is only when she was recalled for

re-examination on 24.12.2002, i.e., after a lapse of about seven

months, that she has deposed about the panchayat being held

and about the alleged confession made by the accused about the

offence of rape. Such crucial information relating to panchayat

could not have been left out by the victim in case such panchayat

was actually being held to enquire the alleged offence of rape. As

mentioned supra, the wife, children, sister and mother of the

accused persons were present in the house when the alleged

incident took place. We find that such a scenario is highly

unlikely. It is natural for a young girl to sustain certain injuries

on the wrist, if the accused had tightly tied her hands on a cot

with rope against her will, but the doctor’s evidence discloses

that no such injuries were found on the wrist of the victim. Even

the Aunt of the victim, PW10, also deposed that she did not find
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any injuries on the body of the victim despite the victim deposing

that she had shown the injuries to her Aunt (PW 10). Only one

injury was found and it was only a small abrasion on the

forehead of the victim, which was not even mentioned by the

victim in her deposition.

21. The three important witnesses, namely the milkman

Mahavir, the doctor who administered injection immediately after

the alleged incident and Pappu in front of whose house the victim

was allegedly lying unconscious were not examined by the

prosecution. Non-examination of these crucial witnesses further

weakens the case of the prosecution.

22. The fact that at the residential house of the appellant,

wherein all the inmates of the house including the mother,

children, sister and wife of the accused were living, such a brutal

offence of rape could not have been executed without attracting

the attention of anyone at that point of time, would make the

prosecution version seriously improbable. We are of the view that

the doubtful and suspicious nature of the evidence sought to be

relied upon to substantiate the circumstances in this case

themselves suffer from serious infirmities and lack of legal

credibility to merit acceptance in the hands of the court of law.
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Having regard to the material on record, we find that there is

every possibility of false implication of the accused in this matter

to take revenge against the family of the accused because of the

longstanding disputes inter se between the two families.

23. The evidence of the victim/prosecutrix and the Aunt PW10

are unreliable, untrustworthy inasmuch as they are not credible

witnesses. Their evidence bristles with contradictions and is full

of improbabilities. We cannot resist ourselves to place on record

that the prosecution has tried to rope in the appellant merely on

assumptions, surmises and conjectures. The story of the

prosecution is built on the materials placed on record, which

seems to be neither the truth, nor wholly the truth. The findings

of the court below, though concurrent, do not desire the merit of

acceptance or approval in our hands with regard to the glaring

infirmities and illegalities vitiating them, and the patent errors

apparent on the face of record resulting in serious and grave

miscarriage of justice to the appellant.

24. We find that the Trial Court and the High Court have

convicted the accused merely on conjectures and surmises. The

Courts have come to the conclusion based on assumptions and

not on legally acceptable evidence, but such assumptions were
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not well founded, inasmuch as such assumptions are not

corroborated by any reliable evidence. Medical evidence does not

support the case of the prosecution relating to offence of rape.

25. For the reasons aforementioned, the offence of rape does not

stand proved. Accordingly, the appellant deserves to be

acquitted, by allowing this appeal. As mentioned supra, the first

accused – Jai Singh has already served out the sentence imposed

upon him, and the appellant before this Court has already served

the sentence of seven years’ out of the total sentence of ten years’

imposed upon him.

26. The appeal is thus allowed, the appellant – Sham Singh is

acquitted of the charges levelled against him. He shall be

released forthwith, if not required in any other case.

………………………………….J.

[N.V. RAMANA]

NEW DELHI; ………………………………….J.
AUGUST 21, 2018. [MOHAN M. SHANTANAGOUDAR]

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