Singh V. State Of Haryana  Insc 562 (28 July 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 763
of 2008 Satpal Singh ...Appellant Versus State of Haryana ...Respondent
This appeal has been preferred against the Judgment and Order
dated 7.03.2007 passed by the High Court of Punjab and Haryana at Chandigarh in
Crl. Appeal No. 337-SB of 1994, by which the High Court has upheld the
conviction Order of the Trial Court dated 20th/21st July, 1994 passed in
Sessions Trial No. 21 of 1993, however, the High Court reduced the sentence
from seven years to five years for the offence punishable under Section 376 of
the Indian Penal Code (hereinafter called as, "IPC").
The facts and circumstances giving rise to the present case are
that the alleged occurrence of rape took place on 11.03.1993. Rajinder Kaur (PW
15), the prosecutrix, and her brother Rajinder Singh (PW 16) had gone to fields
for collecting cattle fodder. Rajinder Singh had gone on a cycle and settled in
a field at some distance from the field where Rajinder Kaur, the prosecutrix,
had reached to cut/collect the grass. The appellant, Satpal Singh, caught hold
of her and out of fear, the sickle in her hand fell down. The appellant took
her to the nearby wheat field and raped her. She raised an alarm and upon
hearing the same, her brother, Rajinder Singh (PW 16), came running to the
place of occurrence. But by then, the appellant escaped from the scene. The
prosecutrix came to her house along with her brother and told her mother Smt. Balwant
Kaur that she was raped by the appellant. The father of the prosecutrix, Balbir
Singh (Complainant) (PW 11), was not present at home and he was informed about
the incident 2 when he returned home in the evening. Balbir Singh (PW 11),
after having consultation with his brother Kulwant Singh, went to Police
Station, Shahbad. However, the police officials on duty asked him to come on
next day. When Balbir Singh (PW 11) reached the Police Station on next day, he
found that a Village Panchayat had already assembled there and efforts were
made to compromise the matter. However, Balbir Singh (PW 11), agreed not to
launch criminal proceedings in case, the appellant was fined to the tune of Rs.
5000/- and "be taken in procession after blackening his face and be
paraded in the village". Ultimately, the Panchayat imposed fine of Rs. 1100/-
only on the appellant, out of which Rs. 600/- were donated in the Gurudwara and
Rs. 500/- in the temple. Being dissatisfied with the dictate of the Panchayat
and running from pillar to post to convince the Panchayat members to come to a
justifiable solution, Balbir Singh (PW 11), complainant, approached the
Superintendent of Police, Kurukshetra on 16.07.1993 i.e. after about four
months of the date of incident. On the instructions of the Superintendent of
Police, Kurukshetra, an FIR was lodged against the appellant 3 and one ASI Ram
Kumar on 16.07.1993 under Sections 376, 201 and 217 IPC. ASI Ram Kumar was
arrayed as an accused for the reason that there had been allegations against
him that he forced the matter to be compromised in order to screen the
appellant from the crime.
Dr. Geeta Suri (PW 2), the Medical Officer, examined the
prosecutrix on 17.07.1993. According to her, as the alleged rape had taken
place long ago, the vaginal swap could not be taken and, therefore, there was
no possibility to prove the alleged act of rape by way of medical report.
However, she opined that possibility of rape could not be ruled out.
The charges were framed against the appellant and ASI Ram Kumar on
14.09.1993 under Sections 376, 201 and 217 IPC. Both the accused pleaded not
guilty and claimed trial.
trial was conducted and after recording the statements and considering the case
in totality, the Trial Court convicted the appellant under Section 376 IPC and
sentenced to seven years' Rigorous Imprisonment and imposed fine to the tune of
Rs.5000/-. In default of payment of fine, he was 4 directed to undergo Rigorous
Imprisonment of six months more. However, ASI Ram Kumar stood acquitted.
Being aggrieved, the appellant preferred the appeal before the
High Court of Punjab and Haryana and the High Court, vide impugned Judgment and
Order dated 7.03.2007, upheld the conviction of the appellant, but considering
the mitigating circumstances, reduced the sentence from seven years to five
years. Hence, this appeal.
Sh. Abhinav Ramakrishna, learned counsel for the appellant, has
raised only two issues namely; (a) that there has been inordinate delay in
lodging the FIR and the prosecution could not furnish any explanation for the
same and; (b) that the prosecutrix was major and the Courts below have recorded
a wrong finding of fact that she was a minor.
prosecutix and the appellant had been studying in the same school. They knew
each other and it was a case of consent. The appellant has falsely been enroped
in the crime just to extract certain amount of money from him. The appeal
deserves to be allowed.
On the other hand, Sh. Rajeev Gaur `Naseem', learned counsel for
the respondent-State, has vehemently opposed the appeal contending that the
prosecutrix was a minor at the time of the incident and even if, she was a
major, there was no consent of the prosecutrix for sexual intercourse. More so,
there had been no demand of money by the prosecutrix or her father, Balbir
Singh (PW 11). The delay occurred because of the intervention of the Village
Panchayat and non-cooperation of the Police officials. The Panchayat did not
agree to the suggestion of Balbir Singh (PW 11), that the appellant "be
taken in procession after blackening his face and paraded in the village."
The complainant approached the Superintendent of Police, Kurukshetra. Thus, no
fault can be found with the prosecution case as delay in lodging FIR stood
lacks merit and is liable to be dismissed.
We have considered the rival submissions made by learned counsel
for the parties and perused the record.
In the instant case, admittedly, the FIR was lodged after about
four months of the commission of offence and that was done on the instructions
of the Superintendent of Police, 6 Kurukshetra. There is ample evidence on
record to show that the Panchayat had intervened on the next day of the
incident and it pressurised the complainant to compromise the case and settle
it outside the Court. The Panchayat met several times and ultimately imposed a
fine of Rs.1100/- on the appellant, out of which the appellant
deposited/donated Rs.600/- and Rs. 500/- in Gurudwara and Temple respectively,
and obtained receipts also. The receipts had been produced before the trial
Court by Piara Singh (PW 6).
Balbir Singh (PW 11), complainant, had been demanding that "the appellant
be fined to the tune of Rs.5000/- and be taken in the procession after
blackening his face and be paraded in the village". It was not accepted by
the Panchayat, therefore, the complainant had raised the grievance before the
Superintendent of Police, Kurukshetra.
Maya Ram, Sarpanch, Village Dhantori, was examined as PW8 and was
declared hostile. However, in the examination- in-chief, he stated as under :-
"A Panchayat was convened to settle this issue. Members of Panchayat
assembled 7 from four-five villages including the relatives of both the
parties. This dispute/issue was settled by the Panchayat by imposing the fine
of Rs.1100/- on Satpal Singh."
Balbir Singh (PW 11) has stated that he went to the Police Station
on the same day. His statement was recorded there and was asked by the Munshi
to come on the next day.
the next day, he went to the Police Station at about 8.00-8.30 a.m. along with
his daughter Rajinder Kaur, the prosecutrix, and brother, he noticed 15-20
persons from different villages, including a few from his village, who had
advised him to settle the matter for the reason that he had to marry his
daughter. They had also advised not to get his daughter medically examined as
it would be a hurdle for him in arranging her marriage. But the complainant did
not accept their suggestion and approached the higher authorities.
Both the courts below have considered this aspect at length and
reached the conclusion that delay occurred because of the intervention of the
Panchayat, as the Panchayat 8 had insisted to compromise the case, rather than
moving the investigating machinery. The High Court observed as under :-
"It was a case where the life of a young child of the complainant was at
stake. A tendency on the part of the villagers or the parents of a young child,
who is ravished, would normally be to save the honour of the child as first
priority. The respectables in the village could be expected to intervene in
this matter to seek compromise, so as to avoid the stigma for a young girl. An
innocent complainant, even admitted that he would not have got the case
registered in case the panchayat had agreed to impose fine as suggested by him
and if the panchayat had paraded the appellant with blacken face as proposed by
him. This would rather reflect that the witness was truthful besides being
innocent villager, who despite being subjected to intricacies of the court
proceedings, did not resile from the true accounts of events that had taken
In a rape case the prosecutrix remains worried about her future.
She remains in traumatic state of mind. The family of the victim generally
shows reluctance to go to the police station because of society's attitude
towards such a woman. It casts doubts and shame upon her rather than comfort
and 9 sympathise with her. Family remains concern about its honour and
reputation of the prosecutrix. After only having a cool thought it is possible
for the family to lodge a complaint in Ors. AIR 1996 SC 1393).
This Court has consistently highlighted the reasons, objects and
means of prompt lodging of FIR. Delay in lodging FIR more often than not,
results in embellishment and exaggeration, which is a creature of an
afterthought. A delayed report not only gets bereft of the advantage of
spontaneity, the danger of the introduction of a coloured version, an
exaggerated account of the incident or a concocted story as a result of
deliberations and consultations, also creeps in, casting a serious doubt on its
veracity. Thus, FIR is to be filed more promptly and if there is any delay, the
prosecution must furnish a satisfactory explanation for the same for the reason
that in case the substratum of the evidence given by the complainant/informant
is found to be unreliable, the prosecution case has to be rejected in its 10 Rao
(2008) 15 SCC 582].
However, no straight jacket formula can be laid down in this
regard. In case of sexual offences, the criteria may be different altogether.
As honour of the family is involved, its members have to decide whether to take
the matter to the court or not. In such a fact-situation, near relations of the
prosecutrix may take time as to what course of action should be adopted. Thus,
delay is bound to occur. This Court has always taken judicial notice of the
fact that "ordinarily the family of the victim would not intend to get a
stigma attached to the victim. Delay in lodging the First Information Report in
a State of Haryana AIR 2009 SC 2190].
this Court considered the issue at length and observed as under :- "So far
as the delay in lodging the FIR is concerned, the delay in a case of sexual
assault, cannot be equated with the case involving other offences. There are
several factors which weigh in the mind of the 11 prosecutrix and her family
members before coming to the police station to lodge a complaint. In a
tradition bound society prevalent in India, more particularly, rural areas, it
would be quite unsafe to throw out the prosecution case merely on the ground
that there is some delay in lodging the FIR."
Thus, in view of the above, the delay in lodging FIR in sexual
offences has to be considered with a different yardstick.
If the instant case is examined in the light of the aforesaid
settled legal proposition, we are of the considered opinion that the delay in
lodging the FIR has been satisfactorily explained.
So far as the issue as to whether the prosecutrix was a major or
minor, it has also been elaborately considered by the courts below. In fact,
the School Register has been produced and proved by the Head Master, Mohinder
Singh (PW 3).
to him, Rajinder Kaur (PW 15), the prosecutrix, was admitted in Government
School, Sharifgarh, Dist.
on 2.05.1990 on the basis of School Leaving Certificate issued by Government
Primary School, Dhantori.
In the School Register, her date of birth has been recorded as
13.02.1975. The question does arise as to whether the date of birth recorded in
the School Register is admissible in evidence and can be relied upon without
any corroboration. This question becomes relevant for the reason that in cross-
examination, Sh. Mohinder Singh, Head Master (PW 3), has stated that the date
of birth is registered in the school register as per the information furnished
by the person/guardian accompanying the students, who comes to the school for
admission and the school authorities do not verify the date of birth by any
A document is admissible under Section 35 of the Indian Evidence
Act, 1872 (hereinafter called as `Evidence Act') being a public document if
prepared by a government official in the exercise of his official duty.
However, the question does arise as what is the authenticity of the said entry
for the reason that admissibility of a document is one thing and probity of it
AIR 1983 SC 684, this Court dealt with a similar contention and held as under:-
"Admissibility of a document is one thing and its probative value quite
another - these two aspects cannot be combined. A document may be admissible
and yet may not carry any conviction and weight of its probative value may be
nil.. . . . .
report is given by a responsible officer, which is based on evidence of
witnesses and documents and has "a statutory flavour in that it is given
not merely by an administrative officer but under the authority of a Statute,
its probative value would indeed be very high so as to be entitled to great
The probative value of documents which, however ancient they may
be, do not disclose sources of their information or have not achieved
sufficient notoriety is precious little."
Therefore, a document may be admissible, but as to whether the
entry contained therein has any probative value may still be required to be
examined in the facts and circumstances of a particular case. The aforesaid
legal proposition stands fortified by the judgments of this Court in 14 Singh
& Anr. (2009) 6 SCC 681. In these cases, it has been held that even if the
entry was made in an official record by the concerned official in the discharge
of his official duty, it may have weight but still may require corroboration by
the person on whose information the entry has been made and as to whether the
entry so made has been exhibited and proved.
standard of proof required herein is the same as in other civil and criminal cases.
entries may be in any public document, i.e. school register, voter list or
family register prepared under the Rules and Regulations etc. in force, and may
be admissible under Section 35 of the Evidence Act as held in Mohd. Ikram 15
There may be conflicting entries in the official document and in
such a situation, the entry made at a later stage has to be accepted and relied
upon. (Vide Shri Raja Durga Singh of
While dealing with a similar issue in Birad Mal Singhvi under:-
"To render a document admissible under Section 35, three conditions must
be satisfied, firstly, entry that is relied on must be one in a public or other
official book, register or record, secondly, it must be an entry stating a fact
in issue or relevant fact, and thirdly, it must be made by a public servant in
discharge of his official duty, or any other person in performance of a duty
specially enjoined by law. An entry relating to date of birth made in the
school register is relevant and admissible under Section 35 of the Act, but
entry regarding to the age of a person in a school register is of not much
evidentiary value to prove the age of the person in the absence of the material
on which the age was recorded."
A Constitution Bench of this Court, while dealing with a Sinha
& Ors. AIR 1965 SC 282, observed as under:- "The reason why an entry
made by a public servant in a public or other official book, register, or
record stating a fact in issue or a relevant fact has been made relevant is
that when a public servant makes it himself in the discharge of his official
duty, the probability of its being truly and correctly recorded is high. That
probability is reduced to a minimum when the public servant himself is
illiterate and has to depend on somebody else to make the entry. We have
therefore come to the conclusion that the High Court is right in holding that
the entry made in an official record maintained by the illiterate Chowkidar, by
somebody else at his request does not come within Section 35 of the Evidence
dealing with a similar issue, this Court observed that very often parents
furnish incorrect date of birth to the school authorities to make up the age in
order to secure admission for their children. For determining the age of the
child, the best evidence is of his/her parents, if it is supported by un- 17
impeccable documents. In case the date of birth depicted in the school
register/certificate stands belied by the un- impeccable evidence of reliable
persons and contemporaneous documents like the date of birth register of the
Municipal Corporation, Government Hospital/Nursing Home etc, the entry in the
school register is to be discarded.
entry in respect of age of the child seeking admission, made in the school
register by semi-literate chowkidar at the instance of a person who came along
with the child having no personal knowledge of the correct date of birth,
cannot be relied upon.
Thus, the law on the issue can be summerised that the entry made
in the official record by an official or person authorised in performance of an
official duty is admissible under Section 35 of the Evidence Act but the party
may still ask the Court/Authority to examine its probative value. The
authenticity of the entry would depend as on whose instruction/information such
entry stood recorded and what was his source of information. Thus, entry in
school 18 register/certificate requires to be proved in accordance with law.
Standard of proof for the same remains as in any other civil and criminal case.
In case, the issue is examined in the light of the aforesaid
settled legal proposition, there is nothing on record to corroborate the date
of birth of the prosecutrix recorded in the School Register. It is not possible
to ascertain as to who was the person who had given her date of birth as
13.02.1975 at the time of initial admission in the primary school. More so, it
cannot be ascertained as who was the person who had recorded her date of birth
in the Primary School Register.
the entry in respect of the date of birth of the prosecutrix in the Primary
School Register has not been produced and proved before the Trial Court. Thus,
in view of the above, it cannot be held with certainty that the prosecutrix was
Be that as it may, the issue of majority becomes irrelevant if the
prosecution successfully establishes that it was not a consent case.
It can be held that a woman has given consent only if she has
freely agreed to submit herself, while in free and unconstrained possession of
her physical and moral power to act in a manner she wanted. Consent implies the
exercise of a free and untrammeled right to forbid or withhold what is being
consented to, it always is a voluntary and conscious acceptance of what is
proposed to be done by another and concurred in by the former. An act of
helplessness on the face of inevitable compulsions is not consent in law. More
so, it is not necessary that there should be actual use of force. A threat or
use of force is sufficient.
The concept of `Consent' in the context of Section 375 IPC has to
be understood differently, keeping in mind the provision of Section 90 IPC,
according to which a consent given under fear/coercion or misconception/mistake
of fact is not a consent at all. Scheme of Section 90 IPC is couched in
negative terminology. Consent is different from submission.
SCC 615.] this Court, while considering the same issue, held as
under :- "Submission of the body under the fear of terror cannot be
construed as a consented sexual act. Consent for the purpose of Section 375
requires voluntary participation not only after the exercise of intelligence
based on the knowledge of the significance and moral quality of the act but
after having fully exercised the choice between the resistance and
Rajinder Kaur (PW 15), the prosecutrix, has deposed that the
sickle in her hand had fallen down out of fear when the appellant caught hold
of her. She had given teeth bites and broken the buttons of the shirt of the
appellant in order to rescue herself from his clutches. She raised a hue and
cry and her brother, Rajinder Singh (PW 16), who was working in another field
at some distance, came to the spot. The prosecutrix has also been examined
under Section 164 of Code of Criminal Procedure, 1973, wherein she had deposed
in respect of the resistance also. She stood the test of cross- 21 examination
with reasonable certainty. Her version also got support from the medical
evidence of Dr. Geeta Suri (PW 2), who had opined that possibility of rape with
the prosecutrix could not be ruled out.
The Trial Court considered the issue of consent at length and
recorded the following findings :- "There is positive and cogent evidence
in the statement of Mst. Rajinder Kaur (PW15) as also in her statement Ex.PS/2
that resistance was offered by her. She even makes out a case that she could
have even used sickle in offering resistance but it had fallen away from her
hands on the doll.
The High Court dealt with the issue and made the following
observations :- "The aspect of consent introduced by the appellant's
counsel as an alternative plea would also not stand the test of judicial
scrutiny. When analysed in the light of evidence given by prosecutrix and other
PWs, it would show that prosecutrix had offered resistance, so much as that she
had pulled the buttons of the shirt of the appellant and had given him teeth
also raised alarm, which had attracted her brother, who was present in 22 the
nearby fields. The aspect of consent introduced by taking advantage of the
appellant being a student of the same school where the prosecutrix was
studying, was rightly discarded by the trial court......it may also need a
notice that such a plea was only raised in the alternative as otherwise plea of
denial alone was earlier raised. Defence has, without success, tried to encash
the aspect of settlement, which was negotiated during the panchayat
Thus, in view of the above, we are of the considered opinion that
in such a fact-situation, the question of drawing an inference that it could be
a case of consent does not arise at all. There was resistance by the
prosecutrix and thus, it cannot, even by a stretch of imagination, be held that
she had voluntarily participated in the sexual act. There had been no enmity
between the two families, and, therefore, there could be no reason for the
prosecutrix and her family to enrope the appellant falsely in a case where the
honour of the family itself remains on stake and the prosecutrix has to suffer
mental agony throughout her life. We should be alive to the fact that 23 rape
not only distracts the personality of the victim but degrades her very soul.
Prosecutrix generally faces humiliation and is being harassed by the defence in
her cross- examination during the trial. Any kind of unwarranted suggestion can
be put to her. In the instant case, the appellant in his statement under
Article 313 Cr.P.C. did not hesitate to label the prosecutrix as
"Vagabond". He further stated that he had falsely been enroped in the
case "with the connivance of police in order to extort money".
In the totality of the circumstances, we do not find any force in
the appeal. It lacks merit and is accordingly dismissed.
.......................................J. (P. SATHASIVAM)