CRIMINAL APPEAL None on 7 May 1996

IN THE HIGH COURT OF PUNJAB AND HARYANAAT CHANDIGARH

Criminal Appeal No. 691-SB of 1998

Date of decision: 23[rd] February, 2010

Taqdir Singh

State of Haryana

Versus

… Appellant

… Respondent

CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

Present:Mrs. Baljit Kaur Mann, Advocate for the appellant.Ms. Hemlata Balhara, Assistant Advocate General, Haryanafor the State.Ms. Hemlata Balhara, Assistant Advocate General, Haryanafor the State.

KANWALJIT SINGH AHLUWALIA, J.

Taqdir Singh son of Lehri Singh has preferred the presentappeal and has challenged the judgment of conviction and order ofsentence dated 30[th] July, 1998, whereby he was held guilty of offenceunder Section 452 and 376 IPC. The trial Court had sentenced theappellant under Section 452 IPC to undergo rigorous imprisonment for aperiod of five years and to pay a fine of Rs.2000/-, in default of payment offine to further undergo rigorous imprisonment for one year. The appellantwas further sentenced to undergo rigorous imprisonment for a period ofseven years and to pay a fine of Rs.10,000/-, in default of payment of fineto further undergo rigorous imprisonment for 1 ½ years under Section 376IPC.

ASI Devi Dutt PW-10 of Police Station Sahlawas was presentat Jhajjar, when the prosecutrix PW-1 (whose name has been withheld toprotect her identity) along with her husband Nahnu Ram PW-5 appearedand made statement Ex.PA, on the basis of which FIR No.32 dated 07.05.1996 was registered at Police Station Sahlawas. The prosecutrixstated that her parents belong to Dadri Toe. About 11 months before theoccurrence, she was married with Nahnu Ram. She was staying in hermatrimonial home at village Chandol. She had set up a separateresidence with her husband three months before the occurrence and herin-laws were residing in another house. On 3[rd] May, 1996 at about 4.00p.m. her husband had gone to village Bhakli to do the work of Halwai(sweet maker) in a marriage and she was alone at her house. At about10.00 p.m., she went to sleep in the courtyard after bolting the door of herhouse. She had retired to her bed after taking her meals. At about 11.00p.m., she felt that somebody had put his hands on her mouth. At that time,the present appellant, who was standing there, bent upon her and hadgagged her mouth. At that time, the appellant was wearing underwearonly. When the prosecutrix tried to remove the hand of appellant from hermouth, he closed the mouth of the prosecutrix with a cloth and also tiedboth of her hands with Charpai (cot) with a cloth. Due to scuffle, bangles inboth the hands of the prosecutrix and the ring in her little finger werebroken. Due to deformity of one knee, the prosecutrix could not provideresistance. The accused had broken the string of Salwar of theprosecutrix, removed her panty and forcibly committed sexual intercourseupon her. After the occurrence, the accused untied the hands of theprosecutrix, removed the cloth from her face and ran away from the spot.In the next morning, the prosecutrix reached the house of her mother-in-law Sunehri and narrated the entire incident to her. Thereupon, a man wassent to village Bhakli to call the husband of the prosecutrix. Feeling harmto her reputation in the society, the prosecutrix remained at her house,since the entire village knew about the incident and on the persuasion ofthe people that the guilty should be punished, the prosecutrix complainantalong with her husband came forward to lodge the matter with the police.

She was going to the Police Station to lodge the report when the policeofficials met her and she got her statement recorded. It was further statedthat Taqdir had left his house from the day of incident and was notavailable.

In the present case, occurrence had taken place on 3[rd] May,1996 at about 11.00 p.m. The prosecutrix had made statement Ex.PA toASI Devi Dutt PW-10 on 7[th] May, 1996 at 1.20 p.m. Case was registeredat Police Station Sahlawas on 7[th] May, 1996 at 3.30 p.m.

The above said FIR was investigated and report underSection 173 Cr.P.C. was submitted against the accused appellant.

The case, along with the accused, was committed to theCourt of Sessions Judge, Rohtak and was entrusted for trial to the Court ofAdditional Sessions Judge, Rohtak. On 19[th] September, 1996, the trialJudge charged the appellant for offence under Section 452 and 376 IPC.The charge stated that on 3[rd] May, 1996 at about 11.00 p.m. in the area ofvillage Chandol, the appellant committed house-trespass by entering thehouse of the prosecutrix, used as human dwelling, having madepreparation to wrongfully restrain the prosecutrix and thereby committedan offence punishable under Section 452 IPC. It was further stated that onthe same day, time and place, he had committed offence of rapepunishable under Section 376 IPC.

The appellant pleaded not guilty and claimed trial.

Prosecutrix appeared as PW-1 and reiterated as to what wasstated in her statement Ex.PA, contents of which have been noticedabove. She further sated that Taqdir was her neighbour. In crossexamination, this witness admitted that her mother had got a caseregistered against Hari Singh and Smt. Bala wife of Hari Singh on theaccusation that Hari Singh had given a kick blow in the stomach of motherof the prosecutrix, due to which she got aborted and the child died. She denied the suggestion that earlier her mother had compromised the matterafter acceptance of money. This witness further stated that when theaccused appeared near her cot, he was having a 5 feet long Parna (cloth)in his hand. She further stated that the elder brother of her husband wassent to relay the information to her husband. She further deposed that dueto breakage of her bangles at the time of incident, she had sustainedinjuries on her arm’s skin but the injuries did not bleed. It was stated thather underwear and Salwar were stained with semen. The police had takeninto possession the broken bangles, ring and clothes from the house ofprosecutrix. She denied the suggestion that she had lodged false caseagainst the accused to save Bansi son of Sube, a driver and accused in acase under Section 377 IPC. Bansi is stated to be Ustad (teacher) ofhusband of the prosecutrix as he allegedly used to impart lessons to himin driving. She further stated that it was not in her knowledge that Bansiwas named as accused for having committed unnatural intercourse withson of the accused.

Head Constable Bharat Singh PW-2, Constable Nafe SinghPW-3 and Constable Krishan Kumar PW-4 tendered their affidavits Ex.PB,PC and PD respectively to prove link evidence.

Nahnu Ram, husband of the prosecutrix appeared as PW-5.He stated that on 3[rd] May, 1996, he had gone to village Bhakli to do the jobof Halwai (sweet maker). On 4[th] May, 1996 at about 4.00 p.m., he receivedthe information through his cousin Ram Kishan and came back to hishouse at 6.30 p.m. He divulged the occurrence to the Sarpanch and otherrespectables of the village and on their advice that the culprit should bepunished, he along with his wife proceeded to the Police Station, when onthe way police party met him and his wife got recorded the statement tothe police. In cross examination, this witness stated that the broken bangles were put in a match box by a Sub Inspector. He admitted that hisfather and the father of accused Taqdir were real brothers.

Dr.Aruna Sangwan, Medical Officer, Community HealthCentre, Jhajjar PW-6 medico legally examined the prosecutrix on 7[th] May,1996 at 3.45 p.m. No external mark of injury was found, except that therewas an old fracture on the right thigh with shortening. In examination ofexternal organs, a whitish discharge was found present in the vagina. Oldtags of hymen were present. Vagina admitted two fingers. Vaginal swabsfrom posterior fornix were taken. Sample of the pubic hair of theprosecutrix was also taken. This witness stated that since the prosecutrixhad changed her clothes, they were not taken into possession. Thiswitness had not ruled out the possibility of prosecutrix having sexualintercourse. In cross examination, this witness stated that there was noexternal mark of injury on the body of the prosecutrix and there was nosemen mark on her thigh.

SI Jagdish Chander PW-7 had prepared the report underSection 173 Cr.P.C.

ASI Sumer Singh PW-8 proved registration of the formal FIREx.PA/1 on receipt of ruqa Ex.PA.

Dr.Ram Kumar, Medical Officer PW-9 had examined theaccused appellant and had opined that there was nothing to suggest thatthe accused was not fit to perform sexual intercourse.

ASI Devi Dutt PW-10 was the Investigating Officer. Hedeposed regarding various facets of the investigation. This witness furtherstated that on 13[th] May, 1996, he had arrested the accused. This witnessstated that when he had inspected the spot, he had not found any brokenbangles. This witness admitted that the house of the accused and the doorof house of the prosecutrix open in the same street. He stated that the boundary wall between the houses of the accused and that of theprosecutrix was having a height of three feet.

Sunil Kumar Bhatnagar, Draftsman PW-11 had prepared thescaled site plan of the spot Ex.PO.

Sunehri Devi, mother-in-law of the prosecutrix was given upas won-over.

The Public Prosecutor had placed on record report Ex.PK ofthe Forensic Science Laboratory, Madhuban, Haryana, wherein it wasstated that human semen was detected on multicoloured terrycot Salwarand on yellow/brown nylon underwear.

Thereafter, prosecution closed its evidence. Statement of theaccused under Section 313 Cr.P.C. was recorded and all incriminatingcircumstances were put to him. He denied the same and projected thefollowing version in his statement:

“Yes. I am innocent. I have been falsely implicated inthis case only to save Bansi s/o Sube Singh who is friend andGuru of the husband of the prosecutrix in motor driving, asthere was case against him under Section 377 IPC and incharge of P.S. Sahalwas Jagdish Chander was relative of myvillage and interested in compromise in the case underSection 377 IPC. Both parties were apprehended from thevillage on the same day but they were sent to home in eveningand I was kept in Thana more than 5 and 6 days.”

In defence, Jagminder Singh Draftsman was examined asDW-1. He proved the site plan Ex.D1. This witness stated that the door ofthe house of accused faces the street towards the Northern side of hishouse. Thereafter, there is a small turning at the northern-western cornerof the house of accused and thereafter, the street goes to the door of thehouse of prosecutrix.

Mauji Ram DW-2 stated that as a Sarpanch, he had not heardof any incident. This witness stated that it was not in his knowledge thatthe accused and cousin of Nahnu Ram were challaned under Section107/151 Cr.P.C. This witness further stated that he had only heard about afamily dispute.

Het Ram DW-3 stated that he had learnt that Taqdir had beenchallaned under Section 107/151 Cr.P.C. This witness further stated thathe had heard nothing about the accused. In cross examination, thiswitness stated that there was no case registered against the accusedunder Section 107/151 Cr.P.C.

Sabha Chand Chaukidar DW-4 stated that the circumstancesregarding arrest of the accused were not in his knowledge.

I have heard counsel for the parties. Mrs. Baljit Kaur Mann,Advocate appearing for the appellant, has stated that the prosecutrix wasaged about 19-20 years. It is further submitted that at the time of incident,prosecutrix was 21 weeks’ pregnant. It is submitted that according to theprosecution story, accused came to the house of the prosecutrix at 11.00p.m. He had tied the hands of the prosecutrix with a cloth and hadallegedly gagged her mouth with the cloth. It is contended that accordingto the prosecutrix, the accused while leaving, had untied her hands andhad removed the cloth from her mouth, still the prosecutrix had raised nonoise to attract anybody and narrate the incident. These circumstancesaccording to the counsel, make the version projected by the prosecutrixunnatural, improbable and unconvincing. It is urged that this Court shouldappreciate the arguments in light of the fact that for four days, theprosecutrix had not reported the matter to the police. The occurrence hadtaken place on 3[rd] May, 1996, whereas, the report was lodged with thepolice on 7[th] May, 1996. Counsel has further stated that according to theprosecutrix, her bangles and ring of little finger were broken at the spot and the same were taken into possession by the Investigating Officer. Thisfact was also reiterated by Nahna Ram PW-5, husband of the prosecutrix.But ASI Devi Dutt PW-10 had stated in categoric terms that no bangleswere taken into possession and the same were not found at the spot. Thisaccording to the counsel, is a material contradiction between the testimonyof three prime witnesses examined by the prosecution. Furthermore, itwas averred that according to the prosecutrix, her bangles had causedinjuries on her arms but no such injury was found in the medico legalreport, therefore, the medical evidence in no way corroborates the ocularversion. It is submitted that vaginal swabs were sent to the laboratory butno semen was found. There were no external or internal marks of injurysuffered by the prosecutrix. It is further submitted that Sunehri Devi,mother-in-law of the prosecutrix, to whom the occurrence was narrated forthe first time, was not examined by the prosecution. Even brother ofhusband of the prosecutrix, who had relayed the information to NahnuRam, husband of the prosecutrix, at the place of his avocation, was notexamined.

Adding force to the above stated arguments, it is urged thatthe suggestions given by the accused and the version narrated by him inhis statement recorded under Section 313 Cr.P.C. assumes importance,as present and the former Sarpanch of the village had appeared indefence as DW-2 and DW-3 respectively and stated that no occurrencehad taken place. This according to the counsel, belies the explanationfurnished by the prosecutrix to explain the delay that the villagers hadprompted her to lodge the report so that the culprit should be punished.

Counsel for the State has urged that the testimony ofprosecutrix aspires confidence and can be relied upon without anycorroboration.

There are certain features of this case, which compel thisCourt to arrive at a conclusion that the testimony of the prosecutrix can berelied upon without any corroboration:

(a) Father of the accused and the father of husband of theprosecutrix were brothers, therefore, the accused andhusband of the prosecutrix are closely related. prosecutrix were brothers, therefore, the accused andhusband of the prosecutrix are closely related.

(b) On the day of occurrence, in connection with hisavocation, husband of the prosecutrix had gone out ofthe village and the prosecutrix was alone at her housewhen in the night accused had trespassed into herhouse. avocation, husband of the prosecutrix had gone out ofthe village and the prosecutrix was alone at her housewhen in the night accused had trespassed into herhouse.

(c) The version projected regarding the alleged inimicalrelations has not been proved by the defence. No copyof the FIR, report under Section 173 Cr.P.C. or theCourt proceedings has been placed on record to provethat the alleged friend (Ustad) of husband of theprosecutrix was involved in a case under Section 377Cr.P.C. Furthermore, it is difficult to believe that theprosecutrix and her husband will level false allegationsof rape to absolve a friend of the husband, especiallywhen the accused is closely related to them. Thus,except a bald suggestion and a version under Section313 Cr.P.C., nothing has been brought on record tocorroborate the same. The suggestion propounded bythe defence and the version given under Section 313Cr.P.C. are to be rejected, being not probable. Oncethis Court has held that the relations between theparties were normal, then it is difficult to believe that therelations has not been proved by the defence. No copyof the FIR, report under Section 173 Cr.P.C. or theCourt proceedings has been placed on record to provethat the alleged friend (Ustad) of husband of theprosecutrix was involved in a case under Section 377Cr.P.C. Furthermore, it is difficult to believe that theprosecutrix and her husband will level false allegationsof rape to absolve a friend of the husband, especiallywhen the accused is closely related to them. Thus,except a bald suggestion and a version under Section313 Cr.P.C., nothing has been brought on record tocorroborate the same. The suggestion propounded bythe defence and the version given under Section 313Cr.P.C. are to be rejected, being not probable. Oncethis Court has held that the relations between theparties were normal, then it is difficult to believe that the prosecutrix will put reputation of her family at stake byleveling false allegations.

(d) It is not the case of the accused that it is a case ofconsent.

The arguments raised by the defence counsel that there wasa delay of four days in lodging the report to the police; no injury on theperson of the prosecutrix was found in the medical evidence, therefore,she had not offered any resistance; the bangles were not recovered andthat the defence witnesses have belied the version of the prosecutrix, areto be rejected in the context of circumstances enumerated above.

The Hon’ble Apex Court, in ‘State of Maharasthra v.Chandraprakash Kewalchand Jain’ (1990) 1 SCC 550, observed asunder:

“15. It is necessary at the outset to state what theapproach of the court should be while evaluating theprosecution evidence, particularly the evidence of theprosecutrix, in sex offences. Is it essential that the evidence ofthe prosecutrix should be corroborated in material particularsbefore the court bases a conviction on her testimony ? Doesthe rule of prudence demand that in all cases save the rarestof rare the court should look for corroboration before acting onthe evidence of the prosecutrix ? Let us see if the EvidenceAct provides the clue. Under the said statute ‘Evidence’ meansand includes all statements which the court permits or requiresto be made before it by witnesses, in relation to the matters offact under inquiry. Under Section 59 all facts, except thecontents of documents, may be proved by oral evidence.Section 118 then tells us who may give oral evidence.According to that section all persons are competent to testifyunless the court considers that they are prevented fromunderstanding the questions put to them, or from givingrational answers to those questions, by tender years, extremeold age, disease, whether of body or mind, or any other causeof the same kind. Even in the case of an accomplice Section 133 provides that he shall be a competent witness against anaccused person; and a conviction is not illegal merely becauseit proceeds upon the uncorroborated testimony of anaccomplice. However, illustration (b) to Section 114, whichlays down a rule of practice, says that the court ‘may’ presumethat an accomplice is unworthy of credit, unless he iscorroborated in material particulars. Thus under Section 133,which lays down a rule of law, an accomplice is a competentwitness and a conviction based solely on his uncorroboratedevidence is not illegal although in view of Section 114,illustration (b), courts do not as a matter of practice do so andlook for corroboration in material particulars. This is theconjoint effect of Sections 133 and 114, illustration (b).

16. A prosecutrix of a sex offence cannot be put on parwith an accomplice. She is in fact a victim of the crime. TheEvidence Act nowhere says that her evidence cannot beaccepted unless it is corroborated in material particulars. Sheis undoubtedly a competent witness under Section 118 andher evidence must receive the same weight as is attached toan injured in cases of physical violence. The same degree ofcare and caution must attach in the evaluation of her evidenceas in the case of an injured complainant or witness and nomore. What is necessary is that the court must be alive to andconscious of the fact that it is dealing with the evidence of aperson who is interested in the outcome of the charge levelledby her. If the court keeps this in mind and feels satisfied that itcan act on the evidence of the prosecutrix, there is no rule oflaw or practice incorporated in the Evidence Act similar toillustration (b) to Section 114 which requires it to look forcorroboration. If for some reason the court is hesitant to placeimplicit reliance on the testimony of the prosecutrix it may lookfor evidence which may lend assurance to her testimony shortof corroboration required in the case of an accomplice. Thenature of evidence required to lend assurance to the testimonyof the prosecutrix must necessarily depend on the facts andcircumstances of each case. But if a prosecutrix is an adultand of full understanding the court is entitled to base aconviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstancesappearing on the record of the case disclose that theprosecutrix does not have a strong motive to falsely involvethe person charged, the court should ordinarily have nohesitation in accepting her evidence. We have, therefore, nodoubt in our minds that ordinarily the evidence of a prosecutrixwho does not lack understanding must be accepted. Thedegree of proof required must not be higher than is expectedof an injured witness. For the above reasons we think thatexception has rightly been taken to the approach of the HighCourt as is reflected in the following passage:

“It is only in the rarest of rare cases if thecourt finds that the testimony of the prosecutrix isso trustworthy, truthful and reliable that othercorroboration may not be necessary.”

With respect, the law is not correctly stated. If we maysay so, it is just the reverse. Ordinarily the evidence of aprosecutrix must carry the same weight as is attached to aninjured person who is a victim of violence, unless there arespecial circumstances which call for greater caution, in whichcase it would be safe to act on her testimony if there isindependent evidence lending assurance to her accusation.

17. We think it proper, having regard to the increase inthe number of sex violation cases in the recent past,particularly cases of molestation and rape in custody, toremove the notion, if it persists, that the testimony of a womanwho is a victim of sexual violence must ordinarily becorroborated in material particulars except in the rarest of rarecases. To insist on corroboration except in the rarest of rarecases is to equate a woman who is a victim of the lust ofanother with an accomplice to a crime and thereby insultwomanhood. It would be adding insult to injury to tell a womanthat her story of woe will not be believed unless it iscorroborated in material particulars as in the case of anaccomplice to a crime. Ours is a conservative society where itconcerns sexual behaviour. Ours is not a permissive societyas in some of the western and European countries. Our standard of decency and morality in public life is not the sameas in those countries. It is, however, unfortunate that respectfor womanhood in our country is on the decline and cases ofmolestation and rape are steadily growing. An Indian womanis now required to suffer indignities in different forms, fromlewd remarks to eve-teasing, from molestation to rape.Decency and morality in public life can be promoted andprotected only if we deal strictly with those who violate thesocietal norms. The standard of proof to be expected by thecourt in such cases must take into account the fact that suchcrimes are generally committed on the sly and very rarelydirect evidence of a person other than the prosecutrix isavailable. Courts must also realise that ordinarily a woman,more so a young girl, will not stake her reputation by levellinga false charge concerning her chastity.”

In the light of the observations made by the Hon’ble ApexCourt above, this Court cannot ignore that on the Salwar and underwear ofthe prosecutrix, human semen was detected. It is not necessary that inevery case, vaginal swabs must contain semen. Sometimes the accusedmay discharge the semen outside the vagina. No question to this effectwas asked to the prosecutrix. Furthermore, it was stated by the prosecutrixthat her hands were tied and her legs were weak, therefore, she could notoffer resistance to the accused, who was a well built young man. Non-examination of Sunehri Devi, mother-in-law of the prosecutrix, and elderbrother (cousin) (Jeth) of husband of the prosecutrix, is also of noconsequence as the testimony of the prosecutrix corroborated by herhusband is sufficient for reliance, as the same aspires confidence.

In ‘Gita Ram v. State of H.P.’ 2002 Cri.L.J.3832, HimachalPradesh High Court has held that the delay in lodging of the report is of noconsequence as victim of sexual assault face a lot of difficulty to comeforward to depose against the accused, as the reputation of family of theprosecutrix is at stake. Relying upon the judgment rendered in ‘State of Punjab v. Gurmit Singh’ (1996) 2 SCC 384, Himachal Pradesh HighCourt observed as under:

“22. In State of Punjab v. Gurmit Singh , (1996) 2 SCC384 : (1996 Cri LJ 1728), their Lordships took note of theexisting rate of crime against women and held : (SCC p 403,para 21) : (at Pp 1739-40, Para 20 of Cri LJ).

‘21. Of late, crime against women in general andrape in particular is on the increase. It is an irony thatwhile we are celebrating women's rights in all spheres,we show little or no concern for her honour. It is a sadreflection on the attitude of indifference of the societytowards the violation of human dignity of the victims ofsex crimes. We must remember that a rapist not onlyviolate the victim's privacy and personal integrity, butinevitably causes serious psychological as well asphysical harm in the process. Rape is not merely aphysical assault it is often destructive of the wholepersonality of the victim. A murderer destroys thephysical body of his victim, a rapist degrades the verysoul of the helpless female. The Courts, therefore,shoulder a great responsibility while trying an accusedon charges of rape. They must deal with such caseswith utmost sensitivity. The Courts should examine thebroader probabilities of a case and not get swayed byminor contradictions or insignificant discrepancies in thestatement of the prosecutrix, which are not of a fatalnature, to throw out an otherwise reliable prosecutioncase. If evidence of the prosecutrix inspires confidence,it must be relied upon without seeking corroboration ofher statement in material particulars. If for some reasonthe Court finds it different to place implicit reliance onher testimony, it may look for evidence which may lendassurance to her testimony, short of corroborationrequired in the case of an accomplice. The testimony ofthe prosecutrix must be appreciated in the backgroundof the entire case and the trial Court must be alive to itsresponsibility and be sensitive while dealing with casesinvolving sexual molestations.’

Referring to an earlier judgment in State of Maharashtrav. Chandraprakash Kewalchand Jain (1990) 1 SCC 550 :(1990 Cri LJ 889), the Supreme Court in Gurmit Singh case(1996 (2) SCC 384 : 1996 Cri LJ 1728) held : (SCC Pp 395-97, paras 8-9) : (at p 1735, Para 7 of Cri LJ).

‘The Courts must, while evaluating evidence,remain alive to the fact that in a case of rape, no selfrespecting woman would come forward in a Court just tomake a humiliating statement against her honour suchas is involved in the commission of rape on her. Incases involving sexual molestation, supposedconsiderations which have no material effect on theveracity of the prosecution case or even discrepanciesin the statement of the prosecutrix should not, unlessthe discrepancies are such which are of fatal nature, beallowed to throw out an otherwise reliable prosecutioncase. The inherent bashfulness of the females and thetendency to conceal outrage of sexual aggression arefactors which the Courts should not overlook. Thetestimony of the victim in such cases is vital and unlessthere are compelling reasons which necessitate lookingfor corroboration of her statement, the Courts shouldfind no difficulty to act on the testimony of a victim ofsexual assault alone to convict an accused where hertestimony inspires confidence and is found to bereliable. Seeking corroboration of her statement beforerelying upon the same, as a rule, in such casesamounts to adding insult to injury. Why should theevidence of a girl or a woman who complains of rape orsexual molestation, be viewed with doubt, disbelief orsuspicion ? The Court while appreciating the evidenceof a prosecutrix may look for some assurance of herstatement to satisfy its judicial conscience, since she isa witness who is interested in the outcome of the chargelevelled by her, but there is no requirement of law toinsist upon corroboration of her statement to baseconviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidenceof a injured witness and to an extent is even morereliable. Just as a witness who has sustained someinjury in the occurrence, which is not found to be selfinflicted, as considered to be a good witness in thesense that he is least likely to shield the real culprit, theevidence of a victim of a sexual offence is entitled togreat weight, absence of corroboration notwithstanding.Corroborative evidence is not an imperative componentof judicial credence in every case of rape. Corroborationas a condition for judicial reliance on the testimony ofthe prosecutrix is not a requirement of law but aguidance of prudence under given circumstances. Itmust not be overlooked that a woman or a girl subjectedto sexual assault is not an accomplice to the crime butis a victim of another person’s lust and it is improper andundesirable to test her evidence with a certain amountof suspicion, treating her as if she were an accomplice.Interference have to be drawn from a given set of factsand circumstances with realistic diversity and not deaduniformity lest that type of rigidity in the shape of rule oflaw is introduced through a new form of testimonialtyranny making justice a casualty. Courts cannot cling toa fossil formula and insist upon corroboration even, if,taken as a whole, the case spoken of by the victim ofsex crime strikes the judicial mind as deprobable. InState of Maharashtra v. Chandraprakash KewalchandJain (1990 (1) SCC 550 : 1990 Cri LJ 889), Ahmadi, J.(as the Lord Chief Justice then was) speaking for theBench summarised the position in the following words :(SCC p 559, para 16 : (at Pp 894-95, Para 16 of Cri LJ).

‘A prosecutrix of a sex offence cannot beput on a par with an accomplice. She is in fact avictim of the crime. The Evidence Act nowheresays that her evidence cannot be acceptedunless it is corroborated in material particulars.She is undoubtedly a competent witness underSection 118 and her evidence must receive the

same weight as is attached to an injured in casesof physical violence. The same degree of care ofand caution must attach in the evaluation of herevidence as in the case of an injured complainantor witness and no more. What is necessary is thatthe Court must be alive to and conscious of thefact that it is dealing with the evidence of a personwho is interested in the outcome of the chargelevelled by her. If the Court keeps this in mindand feels satisfied that it can act on the evidenceof the prosecutrix, there is no rule of law orpractice incorporated in the Evidence Act similarto Illustration (b) to Section 114 which required itto look for corroboration. If for some reason theCourt is hesitant to place implicit reliance on thetestimony of the prosecutrix it may look forevidence which may lend assurance to hertestimony short of corroboration required in thecase of an accomplice. The nature of evidencerequired to lend assurance to the testimony of theprosecutrix must necessarily depend on the factsand circumstances of each case. But if aprosecutrix is an adult and of full understandingthe Court is entitled to base a conviction on herevidence unless the same is shown to be infirmand not trustworthy. If the totality of thecircumstances appearing on the record of thecase disclose that the prosecutrix does not havea strong motive to falsely involve the personcharged, the Court should ordinarily have nohesitation in accepting her evidence.’

We are in respectful agreement with the aboveexposition of law. In the instant case our careful analysis ofthe statement of the prosecutrix has created an impression onour minds that she is a reliable and truthful witness. Hertestimony suffers from no infirmity or blemish whatsoever. Wehave no hesitation in acting upon her testimony alone withoutlooking for any corroboration. However, in this case there is ample corroboration available on the record to lend furthercredence to the testimony of the prosecutrix.

23. In the light of the above said ratio of the decision ofthe Apex Court, I find that in the case on hand the testimony ofthe prosecutrix discussed hereinabove suffers from noinfirmity and she is a reliable and truthful witness. There isample corroboration available on the record to lend furthercredence to the testimony of the prosecutrix in the form of thedeposition of PW 2 to whom the prosecutrix had narrated theincident in the evening on the same day and she disclosed theoccurrence to her husband immediately after he returned fromattending the fair. Medical evidence is not of much relevancefor the reason that prosecutrix was examined by Dr. Shyamafter about 24 days from the alleged day of occurrence andfurther because she is a married woman and was habitual ofsexual inter course.”

In the present case, the prosecutrix was medico legallyexamined after four days of the occurrence.

In ‘Karnel Singh v. State of M.P.’ 1995(3) RCR (Criminal)526, it was observed as under:

“7.… … … … The submission overlooks the factthat in India women are slow and hesitant to complain of suchassaults and if the prosecutrix happens to be a married personshe will not do anything without informing her husband. Merelybecause the complaint was lodged less than promptly doesnot raise the inference that the complaint was false. Thereluctance to go to the police is because of society’s attitudetowards such women; it casts doubt and shame upon herrather than comfort and sympathize with her. Therefore, delayin lodging complaints in such cases does not necessarilyindicate that her version is false.”

In view of the observations of the Hon’ble Apex Court, it isnecessary to notice the judgments relied by the counsel for the appellant.Reliance has been placed upon ‘Tameezuddin @ Tammu v. State of (NCT) of Delhi’ 2009(4) RCR (Criminal) 345. A perusal of the saidjudgment reveals that the same is not attracted on the facts of the presentcase. Their Lordships of Hon’ble Apex Court took into consideration thetestimony of PW-1 prosecutrix where she told the appellant that everythingwas forgiven and forgotten. Another judgment relied by the counsel for theappellant rendered in ‘State of Haryana v. Dilawar’ 2009(3) RCR(Criminal) 2001is also notattracted, as the Court has given credence tothe fact that Zile Singh PW-6 in that case had not supported theprosecution. Similarly ‘Kishan v. State of Haryana’ 2009(3) RCR(Criminal) 480, a judgment rendered by a Single Bench of this Court isalso not attracted on the facts of the present case, as it was held that theevidence of the prosecutrix was neither reliable nor trustworthy. It wasfurther held that each case depends on its own facts and circumstances.Another judgment cited by counsel for the appellant, rendered by aDivision Bench of Hon’ble Apex Court in ‘Pandurang Sitaram Bhagwat v.State of Maharashtra’ 2005(1) RCR (Criminal) 858 also states that eachcase is to be determined on the factual matrix of that case.

This Court has already held that testimony of the prosecutrixaspires confidence, therefore, in view of the discussion made above andthe observations made by the Hon’ble Apex Court in the judgments relied,this Court is of the opinion that present appeal is devoid of any merit andis thus, liable to be dismissed.

Counsel for the appellant has relied upon another judgment ofthis Court rendered in ‘Balkar Singh v. State of Haryana’ 2007(4) RCR(Criminal) 597 to contend that taking into consideration long pendency ofthe trial, sentence awarded upon the appellant should be reduced to theminimum period prescribed.

This Court is of the view that there are no special or adequatereasons to reduce the sentence awarded upon the accused appellant. It is not a case where the accused and the prosecutrix had eloped together. Itis also not a case of love affair, where because the age of the prosecutrixwas less therefore, the sentence should be reduced. In the present case,the appellant had committed offence of rape to satisfy his lust, therefore,there is no scope for reduction in sentence awarded to the accusedappellant. Hence, this prayer is also declined.

Dismissed.

February 23, 2010rps

[KANWALJIT SINGH AHLUWALIA]JUDGE