JUDGMENT
R.C. Kathuria, J.
1. This appeal is directecd against the judgment
dated 11.1.1990 of the Additional Sessions Judge,
Ferozepur convicting the appellant-accused under Section
376 of the Indian Penal Code (for short ‘IPC’) and
sentencing him to undergo rigorous imprisonment for a
period of seven years and to pay fine of Rs. 500/- and in
default of payment of fine to undergo further rigorous
imprisonment for three months and also convicting and
sentencing the accused under Section 452 I.P.C. to
undergo rigorous imprisonment for a period of one year and
to pay fine of Rs. 100/- and in default of payment of fine
to undergo further rigorous imprisonment for one month.
Both the sentences were ordered to run concurrently.
2. The prosecution version as spelled out from the
statement Ex. PE made by prosecutrix (named withheld)
(PW-3) is that on 21.9.1989 at about 2.00 p.m., she was
busy in washing clothes in the court yard of house located
in Village Jhrur Khera. Her brother, father and mother
were not present in the house as they had gone out in
connection with labour work, Finding her along in the
house, Harjit Singh alias Jit Singh, appellant-accused
came there. He showed knife to her and asked her to go
inside the house. He threatened her that if she raised
alarm, she would be killed. Thereafter, he untied her
Salwar and in the process tore it. Thereafter, he
committed rape on her. The prosecutrix did not raise
alarm because of the threat to kill her extended by the
accused. Meanwhile, Rajinder Singh (PW-4), brother of the
prosecutrix in the company of his uncle Sucha Singh came
there. They witnessed this occurrence and tried to catch
hold of the accused. Accused pushe them while showing
knife of them and was successful in running away from the
spot. When they were going to lodge the report. Boota
Singh, father of Harjit Singh, accused came there and
threatened them that if they proceeded to lodge the
report, they would be killed. On the next day, the
prosecutrix in the company of Sucha Singh and Mohinder
Singh, Sarpanch proceeded to the Police Station to lodge
the report. While they were present at the Bus Stop.
Khuian Sarwa, Assistant Sub Inspector Onkar Singh (PW-5)
met them. He recorded the statement of the prosecutrix
Ex.PE and after making his endorsement it as Ex.PE/1
transmitted the same to the police station on the basis of
which formal FIR Ex. PE/2 was recorded by ASI Ram Singh.
ASI Onkar Singh took prosecutrix to Civil Hospital for
medical examination. He moved application Ex. PA before
the Medical Officer Dr. Sunil Alipuria (PW-1). The Medical
Officer conducted the medical examination of the
prosecutrix on 22.1.1989 at 2.00 p.m. and vide report
Ex. PB noticed infected wound 3 cm x 0.5 cm x 0.5 cm deep
on the outer aspect of left forearm 5.0 cm above the
wrist. Vaginal Swab was taken and she along with
clothes of the prosecutrix were handed over to ASI Onkar
Singh vide recovery memo PC. Thereafter, ASI Onkar Singh
went to the spot of occurrence and prepared rough site
plan Ex. PH and recorded the statement of other witnesses.
Accused Harjit Singh was arrested on 31.1.1989 while his
co-accused Boota Singh was arrested on 3.2.1989 by the
Investigating Officer. Medical Examination of accused was
done on 1.2.1989 by Medical Officer Dr. Dalip Kumar
(PW-2), who vide his report Ex. PD opined that there was
nothing to suggest that he was incapable of doing sexual
intercourse. On completion of investigation, police
report was filed by SI Ram Singh. On these allegations
charges under Sections 376 and 452 I.P.C. were framed
against appellant-accused, Harjit Singh, while co-accused,
Boota Singh, was charged under Section 506 I.P.C. Both
the accused pleaded not guilty to the charges and claimed
trial.
3. In order to link the accused with the crime,
prosecution solicited the help of Dr. Sunil Alipuria
(PW-1), Dr. Dalip Kumar (PW-2), prosecutrix (PW-3),
Rajinder Singh (PW-4) and ASI Onkar Singh (PW-5). In
addition, the prosecution tendered in evidence the
affidavits of MHC Kewal Krishan and Constable Ajaib Singh,
Exs. PF and PG respectively besides the report of Forensic
Science Laboratory Ex. PK. When examined under Section 313
of the Code of Criminal Procedure, 1973 (hereinafter
referred to as ‘the Code’), the accused denied the
prosecution allegation completely and furnished the
reasons for his implication as under:-
“The case has been registered against me and may
father at the influence of Mohinder Singh
Sarpanch against whom my father had not got an
enquiry order for misappropriating Rs. 2 lacs of
the Panchayat fund and in that enquiry Mohinder
Singh, Sarpanch was directed to deposit
Rs. 50,000/- and the same was deposited. On
that account the Sarpanch was inimical towards
us. Earlier Jagtar Singh son of Darshan Singh
had tried to molest the niece of Kikkar Singh
in which my father sided with Kikkar Singh and
also took the master to the Police. Jagtar
Singh belongs to the party of the Sarpanch and
on that account case also under Section 326
I.P.C. was registered against Darshan Singh
and Jagtar Singh on one side and my father on
the other side. It is false case at the
instance of the Sarpanch.”
4. Boota Singh, co-accused in his statement under
Section 313 of the Code refuted the prosecution allegation
and further took the stand that this case had been foisted
on him and his son at the instance of Mohinder Singh,
Sarpanch against whom, he had made a complaint for
misappropriation of Rs. 2 lacs of the panchayat fund which
had resulted in inquiry against him and said Sarpanch was
made to deposit Rs. 50,000/- and for that reason he was
inimical towards him. In support of the stand taken by
him, he examined Iqbal Singh, Block Development Officer,
Abohar (DW-1), who stated that the record of the inquiry
conducted by the Additional Director, Panchayat,
Chandigarh against Mohinder Singh, Sarpanch of Village
Jhrur Khera was with the Additional Director, Panchayat.
Amarjit Singh, Clerk in the office of Director, Rural
Development and Panchayat, Punjab at Chandigarh (DW-2)
produced the copy of the complaint made by Boota Singh
against Mohinder Singh, Sarpanch, copy of which is Ex. DA
and the inquiry report, Ex.DB.
5. On appraisal of the evidence led on record, the
trial court came to the conclusion that possibility of
false involvement of Boota Singh due to enmity with
Mohinder Singh, Sarpanch could not be ruled out and for
that reason giving him benefit of doubt acquitted him. At
the same time, the trial Court accepted the prosecution
evidence with regard to the involvement of the
appellant-accused in commission of the crime and while
rejecting his defence version convicted and sentenced him
as stated above. Hence, this appeal.
6. I heard counsel for the appellant-accused as
well as the State counsel at length.
7. Learned counsel representing the appellant-
accused assailed the reliability of the prosecution
evidence on several grounds. In the forefront, it was
urged by him that the prosecutrix was aged about 20 years
and the medical evidence led on record reveals that no
vaginal injury or any other injury suggestive of forced
sexual intercourse with her had been noticed by the
Medical Officer which would indicate the case to be of
consent. It was also submitted by him that the hymen of
the prosecutrix was not intact which shows that the
prosecutrix was used to sexual intercourse despite being
unmarried which fact had not been taken into consideration
by the trial court. It was also highlighted by him that
no explanation for delay in lodging the report had been
rendered by the prosecution which affected the credibility
of the version rendered. Lastly, it was contended that
because of the enmity of the father of the appellant with
Sarpanch Mohinder Singh, the accused had been falsely
implicated in this case. These submissions had been
countered on behalf of the prosecution for the reasons
recorded in the judgment of the trial Court.
8. The evidence on record clearly brings out that
the prosecutrix belongs to socially weaker section of
society. Rajinder Singh, brother of the prosecutrix had
stated that he belongs to Mehra caste while Harjit Singh,
accused is Jat by caste. He had been earning his
livelihood by doing labour work and for that reason he had
gone to clean utensils of Surat Singh, Panch. He had been
getting daily wages for the services rendered by him. On
the date of occurrence, his mother had also gone to clean
utensils in the village on the date of occurrence. It had
come in his statement that he had one brother and three
sisters out of which two sisters reside in the village.
His elder sister is married in Village Jeowala.
9. On the date of occurrence, according to the
prosecutrix, her father and brother had gone to do labour
work in the village while her mother had gone to attend to
the marriage work and to distribute Patasha in the
village. She explained that her brother and father used
to return to the house occasionally during the noon time
for taking rest for two hours. It is also brought out in
the statement of the prosecutrix that her house in which
she has been residing with her parents and brother is
located in the Abadi. The house of Sain Dass is located
on one side while three other houses are situated at a
distance of 30-35 Karams from their house. She had
explained in her deposition that house of Harjit Singh,
accused is situated at a distance of 5/7 Killas away from
the outskirts of the village while that of Sucha Singh is
about 5/7 houses away in the same street from their house.
Therefore, Harjit Singh was fully aware about the
engagement of the family members of the prosecutrix.
There is nothing improbable in his conduct when he had
chosen to satisfy his lust by going to the house of the
prosecutrix at about 2.00 p.m. where she was present all
alone.
10. The prosecutrix during her testimony in Court
had given her age as 17 years while the Medical Officer,
Dr. Sunil Alipuria, on 22.1.1989 the date of medico-legal
examination of the prosecutrix had mentioned her age as
20 years. The prosecutrix during the course of her
statement had given an account as to the manner in which
she was raped by the accused under the threat of killing
her by showing a knife to her and explained that she did
not raise alarm when she was taken to the room and her
Salwar was untied and torn by the accused and also during
the period he committed sexual intercourse with her
because of the fear generated in her mind on account of
threat given by the accused. She claimed that she had
tried to catch hold of the accused and had given pushes to
him in the process of rape committed by the accused,
which lasted for 5-6 minutes. The accused had also pushed
her down by force and in the scuffle her shirt was torn.
She claimed that a tooth bite was given by the accused on
her breast but it had left no mark. She also stated that
she had suffered scratches on her back. It had also come
in her statement that Rajinder Singh and her uncle Sucha
Singh had reached the spot and tried to catch hold of the
accused. However, accused showed knife to them and
managed to run away from there.
11. Rajinder Singh had fully corroborated the
testimony of the prosecutrix. He too maintained in his
deposition that at about 1.45 p.m. his uncle told him
that they should go to his house to enquire about the
health of Surjan Singh. On reaching near the Chowka at
about 2.00 p.m., they saw Harjit Singh committing sexual
intercourse with the prosecutrix. Both Rajinder Singh and
Sucha Singh tried to catch hold of the accused but after
showing knife and giving pushes to them, he ran away from
there. Thereafter, the prosecutrix narrated the incident
to them in detail that while she was washing clothes, the
accused came and kept the knife on her neck and thereafter
she was taken inside the room and after opening the string
of the Salwar, the accused committed sexual intercourse
with her forcibly. He had stated that he had noticed
scratches on the face and other parts of the body of his
sister.
12. By now it is well settled that the prosecutrix,
who is the victim of offence of rape is not an accomplice
of the crime. Her testimony can be accepted without
corroboration unless the Court finds on the basis of
evidence on record that it suffers from such infirmities
that it would render it unsafe to place reliance on it and
is unworthy of acceptance. It is for that reason it has
been observed by the Apex Court in State of Punjab v.
Gurmit singh and Ors., 1966 S.C.C. (Cri.) 316 that “a
murderer destroys the physical body of his victim, a
rapist degrades the very soul of helpless female. The
Courts, therefore, shoulder a great responsibility while
trying an accused on the charge 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 and insignificant
discrepancies in the statements of the prosecutrix, which
are not of a fatal nature, to throw out and otherwise
reliable prosecution case.”
13. The learned counsel for the appellant-accused
strenuously urged that as no injuries’ were found on the
person of the prosecutrix during the course of medical
examination by the Medical Officer and rather, according
to the finding of the Medical Officer her hymen was not
found infact, it has to be construed that she was used to
sexual intercourse and these circumstances justify a
conclusion that she had put up a false story in order to
rope in the accused in this case. Alternatively, he
contended that it should be construed as a case of
consent. Additional plea raised by him was that it is
totally inconceivable that at the day time at about 2.00 p.m.,
the accused would venture to go to the house of the
prosecutrix in order to commit rape knowing fully well
that he would be noticed by the neighbourers whose houses
are located nearby the house of the prosecutrix which is
located in the Abadi of the village. There is absolutely
no merit in the stand taken on behalf of the accused in
this regard. It is difficult to predict what works in the
perverted mind at a particular point of time. In this
case, the statement of the prosecutrix had amply brought
on record that at the time when the accused went to the
house she was all alone and at that time the accused put
knife on her neck and threatened her that if she made any
noise, she would be killed. She was taken to the
adjoining room and raped. Her statement is fully
corroborated by Rajinder Singh. She had also informed her
brother about the incident which had taken place with her
which is admissible as evidence of her conduct.
14. Coming to the findings of Medical Officer, Dr.
Sunil Alipuria, who had conducted medical examination of
the prosecutrix on 22.1.1989 at about 2.00 p.m. and had
noticed infected wound dimension of which had been stated
earlier, according to her “there was no vaginal injury.
Hymen was not intact. Vagina was loose. Examining
fingers blood stained. Probable duration of injury was
more than 36 hours.” It is further stated by her that “it
is possible that the prosecutrix was habitual to sexual
intercourse since her hymen was not intact and vagina was
loose.” The vaginal swab was blood stained which was taken
into possession and was handed over to the Police along
with Salwar Ex. P.1 and shirt Ex. P.2 and proved his
attestation on recovery memo Ex. PC. No doubt, with regard
to the incised wound, the duration of this injury had been
given as more than 36 hours which means that it was not
co-relatable to the time of occurrence. The Medical
Officer had not noticed any other injury on her person.
15. The prosecutrix no doubt had stated in her
statement that in the scuffle, she had suffered some
scratches on her back. No further information was sought
from her as to whether by the time she appeared before the
Medical Officer, those scratches were visible to the naked
eye or not. Even the Medical Officer was not specifically
asked whether he had noticed any scratches or any other
injuries on other parts of her body. No further
information was sought from the prosecutrix on behalf of
the accused that the room where she was laid down had
rough floor or smooth floor, Therefore, no conclusion can
be drawn from the statement of the prosecutrix that
scratches suffered by her were skin deep so as to have a
lasting effect upto the time when she was examined by the
Medical Officer. Even the statement of prosecutrix that
teeth bite was given by the accused on her breast did not
leave any mark had not been challenged during the course
of her testimony. Even no information in this regard was
sought from the Medical Officer. Under the circumstances
of the case, it cannot be said that because other injuries
were not found on her body by the Medical Officer at the
time of her medical examination that would negate the
prosecution case. In the present case, it is further
brought out in the statement of the prosecutrix that at
the time when she was subjected to rape by the accused,
she caught hold of him and tried to give pushes to him
despite the fact that the accused had extended threat of
killing her by knife. Therefore, presumption in terms of
the requirement of Section 114-A of the Indian Evidence
Act has to be raised apart from the factual position
brought on record in the statement of the prosecutrix.
Further merely because the Medical Officer had stated that
the prosecutrix was habitual to sexual intercourse on the
basis of finding that hymen was not found intact and
vagina was loose would not justify, in any manner.
Conclusion that the prosecutrix had consented to the
sexual intercourse committed on her by the
appellant-accused as sought to be contended on behalf of
the accused. Merely, because a girl or woman is used to
sexual intercourse does not permit anyone to make her an
object of prey for sexually assaulting her. It is not a
case where any information was sought from the prosecutrix
in this regard. It has already been noticed that she had
resisted the accused when rape was being committed on her
by the accused. One cannot ignore her version. The
report Ex. PK of the Forensic Science Laboratory had also
been placed on record which revealed that Salwar mark
‘a-1’ and Kameej mark ‘a-2’ in parcel ‘A’ were stained
with human blood though the vaginal swab of the
prosecutrix mark ‘b-1’ and ‘b-2’, two cotton swabs besides
the Salwar and Kameej did not contain seminal stains. It
has been authoritatively laid down in State of H.P. v.
Gian Chand, 2001 SCC (Cri.) 980 that discovery of
spermatozoa in the private part of the victim is not
necessary to establish penetration because there are
several factors which make the non-presence of spermatozoa
as had been laid down in Narayanamma v. State of
Karnataka, 1994 SCC (Cri.) 1573. In the face of the
testimony of prosecutrix coupled with the statement of her
brother, Rajinder Singh, whose presence at the spot is
fully established, it has to be accepted that the
appellant-accused had committed rape on her.
16. Coming to the other submissions made with
regard to the delay in lodging the report, it cannot be
ignored that the incident had taken place on 21.1.1989.
Though her father had returned to the house at 3.00 p.m.
but the report was lodged by the prosecutrix with ASI
Onkar Singh at 1.00 p.m. on 22.1.1989 at the Bus Stop,
Khuian Sarwar. The explanation which had been rendered
for the delayed lodging of report given by the prosecutrix
is that Boota Singh, father of the accused had come to
their house and had threatened to kill them if they lodged
the report against his son. The threat extended by Boota
Singh had deterred them from immediately lodging the
report. It was only the next day when the prosecutrix
galvanised some strength, she along with Sucha Singh and
Mohinder Singh, Sarpanch, proceeded to lodge the report
with the Police.
17. The trial court had not accepted this
explanation for the simple reason that Mohinder Singh,
Sarpanch was inimical to Boota Singh, as complainant Ex. DA
was made by Boota Singh against him which had been proved
by Amarjit Singh (DW-2) and indictment of Mohinder Singh
as is evident from the inquiry report Ex. DB. The trial
Court also observed that time had been utilised by
Mohinder Singh, Sarpanch to give a coloured version with
regard to the involvement of Boota Singh. No doubt Boota
Singh had been acquitted in respect of the offence under
Section 506 I.P.C. but that circumstance would not have
any effect with regard to the genuineness of the version
of rape rendered by the prosecutrix and her
brother-Rajinder Singh. Moreover, delay in lodging the
report cannot be used as an inflexible rule in doubting
the case of the prosecution and discarding the same. The
only effect of delay in lodging the report is that the
Court has to be on guard to find out whether the
explanation offered by the prosecution is satisfactory and
whether it had led to the embellishment in the prosecution
version. In the present case the fact that version of the
prosecutrix with regard to the threat given by Boota Singh
had not been accepted by the trial Court cannot be taken
as a ground to discard the entire incident of rape. Even
otherwise the maximum “falsus in uno and falsus in
omnibus” has no application in India. If such principle
is adopted, it would render the administration of criminal
justice non-functional. Thus, there is no merit int he
stand taken on behalf of the appellant-accused in this
regard.
18. As regards the defence version, no doubt both
accused, Harjit Singh and his father Boota Singh had taken
the plea that they had been involved in this case by the
prosecutrix at the instance of Mohinder Singh, Sarpanch.
It is totally inconceivable that father and brother of
prosecutrix would level a false case against the
appellant-accused with the help of prosecutrix with story
of sexual intercourse and risk the reputation of the
prosecutrix and future prospects of her marriage which
would not only bring disgrace and dishonour to her but
also to the entire family. The defence version as such
carry no conviction at all and has to be rejected.
19. As regards the sentence, it is spelled out on
record that the prosecutrix was aged about 20 years
according to the Medical Officer on the date of commission
of crime while the appellant-accused was aged about 19
years. He by his beastly act had not only violated the
body of helpless girl but had left a permanent stigma on
her which would remain with her throughout her life.
Therefore, while upholding the order of conviction and
sentence awarded by the trial Judge, the appeal filed by
the appellant is dismissed. The appellant-accused shall
be taken into custody to undergo the sentence awarded to
him.