Gurcharan Singh Vs. State of Haryana
[1972] INSC 218 (13 September 1972)
DUA, I.D.
DUA, I.D.
RAY, A.N.
CITATION: 1972 AIR 2661 1973 SCR (1) 197 1972
SCC (2) 749
CITATOR INFO :
R 1973 SC 469 (11) RF 1980 SC1252 (3) F 1983
SC 911 (9)
ACT:
Indian Pental Code (Act 45 of 1860). ss.362.
366 and 376- Girl under 16 years forced to go to a place where rape was
committed on her-Effect of absence of marks of violence or person of victim.
Prctice-Sexual offence-Necessitv for
corroboration.
HEADNOTE:
A girl under 16 years was induced to go to a
particular house from where she was threatened to go to the house of the
appellant who 'forcibly took her to his fields, outside the village and
committed rape on her. The appellant was convicted for offences, under ss. 366
and 376 I.P.C. The medical evidence showed that there was penetration but no
marks of violence on the victim's person.
Dismissing the appeal to this Court,
HELD : (1) The gravamen of the offence was
that the appellant forced the girl to go with him to the fields to commit rape
on her and this constitutes abduction punishable under s. 362 and 366, I.P.C.
There is no question of any kidnapping from lawful guardianship or the
appellant taking or enticing her out of the keeping of her lawful guardian or
later taking her away for illicit purpose from unlawful custody. [201A-E] State
v. Gopichand, A.I.R. 1961 Bom. 282, held inapplicable.
(2) Under s. 375, I.P.C. read with the
Explanation, where a person on whom rape is committed is under 16 years of age,
her consent is immaterial and penetration is sufficient to constitute the
offence. In the present case, mere absence of marks of violence on the person
of the victim is immaterial because, that would merely suggest want of voilent
resistance on her part which is wholly inconsequential since she is under 16
years of age. [201G-R] (3) In cases of sexual offences the prosecutrix is not
considered as an accomplice and her testimony is not equated with that of an
accomplice in an offence. It is only as a rule of prudence that courts normally
look for some corroboration of her testimony so as to satisfy their conscience
that she is telling the truth and that the person accused of rape on her is not
being falsely implicated.
[202G-H] In the present case, the, testimony
of the victim by it-self is impressive enough to render it safe for sustaining
the appellant's conviction. Moreover, the rescue of the victim from the
appellant's sugarcane field, her complaint soon thereafter to the prosecution
witnesses about the abduction and the rape, the later recovery of some broken
pieces of bangles from the scene of occurrence, and the medical evidence, fully
corroborate testimoney. [205A-D] Rameshwar V. State of Rajasthan, [1952],
S.C.R. 177 and Sidheswar Gangully v. State of West Bengal, A.I.R. 1958 S.C.
143 followed.
Janardan Tewari v. State of Bihar, [1971] 3
S.C.C. 927 referred to.
CRIMINAL APPELLATE JURISDICTION : Cr. A. No.
232 of 1969.
198 Appeal by special leave from the judgment
and order dated November 28, 1968 of the Punjab & Haryana High Court at
Chandigarh, in Criminal Appeal No. 633 of 1968.
Bal Rai Trika, N. S. Das Behl and Sat Pal
Arora, for the appellant.
Harbans Singh and R. N. Sachthey, for the
respondent.
The Judgment of the Court was delivered by
DUA, J. This is an appeal by special leave under Art. 136 of the Constitution.
The appellant Gurcharan Singh, his ser- vant Shri Sanjha Ram, Dalip Singh, his
wife Smt. Surjit Kaur and under the latter section to, rigorous imprisonment
for four Sessions Judge, Kamal on charges under ss. 366, 368 and 376, Indian
Penal Code. Gurcharan Singh, appellant, with whom alone we are concerned in
this appeal was charged with commission of offences under ss. 366 and 376,
I.P.C.
The trial court acquitted Phullan and Surjit
Kaur but convicted Gurcharan Singh, appellant, under ss. 366 and 376, I.P.C.
sentencing him under the former section to rigorous imprisonment for three
years and under the latter section to rigorous imprisonment for four years and
fine of Rs. 200, with further rigorous imprisonment for six months in the event
of default in payment of fine. The substantive sentences were to run
concurrently. Sanjha Ram was convicted under s. 376, I.P.C. and sentenced to
rigorous imprisonment for four years and a fine of Rs. 200, with further rigorous
imprisonment for six months in case of default in payment of fine. He was also
convicted under s.
368,I.P.C. and sentenced to rigorous
imprisonment for two years. The substantive sentences were to run concurrently.
Dalip Singh was convicted under s. 366,
I.P.C. and sentenced to rigorous imprisonment for three years and fine of Rs.
200 with further rigorous imprisonment for six months in the event of default.
On appeal a learned single Judge of the
Punjab and Haryana High Court upheld these convictions and sentences.
The prosecution story, as upheld by both the
learned Sessions Judge and the High Court, is that Smt. Paramajit Kaur
(prosecutrix), a young girl under 16 years of age, whose father Avtar Singh,
had served in the Army from 1947 to 1967 and was, according to the High Court,
a man of meagre means went out in the evening of November 26, 1967 to case
herself. When she' was returning home Surjit Kaur and Phullan met her and
induced her to visit Dalip Singh's house so that she may be given nice clothes.
On reaching Dalip Singh's house she was handed over to him. By then it had
grown dark. Dalip Singh threatened her- with a knife and asked her to accompany
him. He took her 199 to the appellant's baithak (sitting room) closeby and
after handing her over to the appellant, Dalip Singh went away.
The appellant threatened Paramjit Kaur with a
pistol and took her to his fields outside the village and in the room where his
tube-well Machine was installed he committed rape on her twice. After a couple
of hours Sanjha Ram arrived there. The appellant then went away leaving
Paramjit Kaur in Sanjha Ram's custody. During the appellant's absence Sanjha
Rain also committed rape on After sometime the appellant returned with a
bedding and food for Paramjit Kaur. But she declined to eat anything. The whole
night she was kept in that room where the appellant and Sanjha Ram both
committed rape on her. On the following morning the appellant left her in the
custody of Sanjha Ram with a direction that some customer should be found for
her.
Sanjha Ram used to take Paramjit Kaur to the
sugarcane field during day time and bring her back to the room during the
night. Sanjha raped her even in the sugarcane field.
In the meantime, when Paramjit Kaur did not
return home on November 26, 1967, her uncle, Shingara Singh, her father Avtar
Singh and some others began searching for her in their village and also in the
other near by villages. Having failed in their search, first information report
was lodged on the morning of November 29, 1967 by Shingara Singh, younger
brother of Avtar Singh, with the police station Ladwa, about two miles away
from village Nawarsi, where Paramjit Kaur resided with her parents. The offence
mentioned in the F.I.R. was under ss. 363/366, I.P.C.
Suspicion was cast in the F.I.R. on Dalip
Singh, his son Trilok Singh, his wife Surjit Kaur, Gurcharan Singh, appellant
and his wife because Paramjit Kaur used to go to their house which was located
in the neighborhood. The same day viz : November 29, Anokhi Singh (P.W. 6) felt
the presence of some persons in Gurcharan Singh, appellant's sugarcane field
which is near to his own sugarcane field and conveyed this information to Col.
Harnam Singh, (P.W. 4).
Thereupon Col. Harnam Singh, along with
Jagjit Singh, Gian Singh, Rachpal Singh Chima, Rachhpal Singh Nagra, Gian
Chand, Kishan Singh and Anokh Singh, the informant, went to the sugarcane field
of Gurcharan Singh, where, they saw Paramjit Kaur and Sanjha Ram. The latter
tried to escape, but was secured. Paramjit Kaur narrated the whole story of
what had happened since the evening of November 26, 1967.
Paramjit Kaur and Sanjha Ram were' then taken
to the police station Ladwa. On the way they met S.I. Balwant Singh, who was
coming to village Nawarsi for investigation pursuant to the information lodged
by Shingara Singh, uncle (if the prosecutrix. The Sub-Tnspector, on meeting
this party, recorded the statement of the prosecutrix and of the other
witnesses accompanying her. Paramjit Kaur was got examined by 200 lady doctor
K. Kaushalya, Medical Officer, Civil Hospital, Karnal at about 7 p.m. who found
a tear on the posterior margin of her hymen which bled on examination. In the
lady doctor's opinion rape had been committed on her about three or four days
prior to the examination. In the doctor's opinion the healing process of the
hymen was- going on. She also examined her for finding her age. X-ray
examination for determining the age of the prosecutrix was also taken by Dr. L.
R. Sardana, Radiologist in the same hospital.
According to both Dr. Sardana and Dr.
Kaushalya the age of the prosecutrix could be between 15 and 16 years. She, was
clearly under 16 years.
The prosecutrix appeared as P.W. 3 and
narrated the whole story in a straightforward manner. She had off and on been
going to the house of Gurcharan Singh, appellant, during the last four or five
years and also borrowing odd articles from the appellant's wife. The
appellant's wife also used to pay visits to Paramjit Kaur's house. On the
evening of November 26 Paramjit Kaur who, like all young girls, was fond of
nice clothes, was induced by Surjit Kaur, wife of Dalip Singh to go with her to
see new clothe. Surjit Kaur wanted to sell those clothes. Thus induced the
prosecutrix was taken to Dalip Singh and handed over to him. The prosecutrix
had, however, never been to the house of Sanjha Ram her cross- examination an
attempt was made on behalf of the accused to elicit from her if there was any
animosity or litigation between Dalip Singh on the one side and Shingara Singh
and Anokh Singh on the other but Paramjit Kaur expressed her ignorance about,
it. She also denied the suggestion that she had gone out on. November 26 of her
own accord and had herself returned home on the 28th. She was cross-examined at
great length but her credibility remained unshaken. Lady doctor K. Kaushalya's
statement recorded in the committing magistrate's court was brought on the
record of the Sessions Court where she was also further examined and cross-
examined. Nothing was elicited to discredit her evidence.
Harnam Singh (P.W. 4) who is a Sarpanch and a
retired Lt. Colonel from the Army has deposed about the circumstances, in which
at about 11.30 a.m. on November 29, 1967, he and others, when considering their
future course of action and plan for making further search for Paramjit Kaur,
learnt from Anokh Singh about the presence of someone in the sugarcane field of
Gurcharan Singh and on going there found Paramjit Kaur and Sanjha Ram. The main
challenge on behalf of the appellant has been that this Harnam Singh has enmity
with the appellant and that he has been instrumental in falsely implicating the
appellant in this case.
As already observed, the two courts below
have accepted the prosecution version and convicted the appellant for both
offerings viz : under ss. 366 and 376, I.P.C.
201 In this Court the first objection raised
on behalf of the appellant against his prosecution and conviction under s.
366, I.P.C. is that kidnaping and abduction
of the prosecutrix was. complete as soon as she was induced by the two ladies
to accompany them. In support of this submission reliance has been placed on a
decision of the Bombay High Court reported as State v. Gopichand(l). This
decision is wholly unhelpful to the appellant. According to this decision, when
a minor girl was kidnapped by A from the lawful custody of her husband, her
subsequent taking away by B, who was no, party to the original kidnapping, from
the unlawful custody of A, for illicit intercourse, does not amount to
kidnapping and B is not guilty under s. 366.
Plainly the ratio of this decision has no
application to the case in hand. There is no question of any kidnapping from
the lawful custody in the present case, the real gravamen of the offence here
being that Gurcharan Singh, appellant, induced the prosecutrix by threatening
her with a pistol to go with him to the room in his fields where his tube-well
was fixed and there he committed rape on her, Section 362, I.P.C., which
defines abduction lays down that whoever by force compels or by any deceitful
means induces any person to go, from any place is said to abduct that person.
The, appellant's case clearly falls within this definition.
Kidnapping from lawful guardianship Which
offence was the subject matter of discussion in Gopichand's case (supra) is
defined in s. 361, I.P.C. and according to that definition undoubtedly taking
or enticing any minor out of the keeping of the lawful guardian of such minor
completes the offence.
That is not the case before us. The first
challenge, therefore, fails.
The counsel has then contended that there was
no question of the commission of rape in this case and for that purpose he has
tried to seek support from the medical evidence. We consider it unnecessary to
deal at length with this argument, which, in face of the medical evidence and
the statement of the prosecutrix, does not seem to possess any merit, 'Me
suggestion that, there being no marks of violence on the private parts or
elsewhere on the person of the prosecutrix, there could be no offence of rape
on her, is wholly misconceived. Rape has been defined in s. 375, I.P.C.,
according to which a man is said to commit " rape", who, except in
the cases therein excepted, has sexual intercourse with a woman under
circumstances falling under any of the five descriptions stated therein. We
need not deal with all the descriptions. Suffice it to point _out that where a
person on whom rape is committed is under 16 years of age, even consent is
immaterial (vide fifthly of s.375) and penetration is sufficient to constitute
the sexual intercourse necessary to the offence of rape (vide :
explana- (1) A.I.R. 1961 Bom. 282.
202 tion to s. 375.) No attempt has been made
on behalf of the appellant to take his case out of these provisions. No other
argument was addressed on the basis of the medical evidence for contending that
there was no penetration except, as already noted, that there were no marks of
violence on the person of the prosecutrix. That is clearly immaterial 'because
that would merely suggest want of violent resistance on the part of the
prosecutrix, which is wholly Inconsequential when the prosecutrix is under 16
years of age. Absence of violent or stiff resistance in the present case may as
well suggest, helpless surrender to the inevitable due to sheer timidity. In any
event her consent would not take the case out of the definition of rape. So far
as the age of the prosecutrix is concerned, it is noteworthy that in the High
Court her age was not questioned at least by the counsel appearing for Dalip
Singh as expressly noticed in the impugned judgment. Even on behalf of
Gurcharan Singh, appellant, we do not find any challenge to the age of the
prosecutrix in the High Court. In any event the High Court considered the
evidence on the point and believing the testimony of Tilak Raj (P.W. 8), who is
the head master of the school in which the prosecutrix had been studying, and
the evidence of the mother of the prosecutrix, came to the conclusion that her
date of birth- was April 10, 1952 and, therefore, she was less than 16 years of
age on the date of the occurrence. This conclusion is unquestionable.
Indeed, before us the conclusion of the High
Court on the age of the prosecutrix was not assailed.
The point most seriously canvassed in this
Court on behalf of the appellant was that the solitary statement of the
prosecutrix without corroboration in material particulars is not enough to
sustain the conviction of the appellant. The learned counsel appearing for
Gurcharan Singh contended that Dalip Singh and Sanjha Ram may have rightly
convicted. But so far as the appellant is concerned the evidence against him is
neither reliable nor sufficient for bringing home to him the offence of
abduction and rape beyond reasonable doubt. The basic question which,
therefore. arises is as to how far the testimony of the prosecutrix before us
can form the basis of the appellant's conviction. It is well-settled that the
prosecutrix cannot be considered as an accomplice and, therefore, her-testimony
cannot be equated with that of an accomplice in an offence. As a rule of
prudence, however, court normally looks for some corroboration of her testimony
so as to satisfy its conscience that she is telling the truth and that the
person accused of rape on her has not been falsely implicated. The matter is not
res integra and this Court has, on more occasions than one, considered and
enunciated the legal position. In Rameshwar v. State of Rajasthan(1) this Court
observed:
(1) [1952] S.C.R. 377.
203 .lm15 "Now a woman who has been
raped is not an accomplice. If she was ravished she is the victim of an
outrage. If she consented there is no. offence unless she is a married woman,
in which case questions of adultery may arise. But adultery presupposes consent
and so is not on the same footing as rape. In the case of a girl who is below
the age of consent, her consent will not matter so far as the offence of rape
is concerned, but if she consented her testimony will naturally be as suspect
as that of an accomplice. So also in the case of unnatural offences. But in all
these cases a large volume of case law has grown up which treats the evidence
of the complainant somewhat along the same lines as accomplice evidence though
often for widely different reasons and the position now reached is that the
rule about corroboration has hardened into one of law. But it is important to
understand exactly what the rule is and what the expression 'hardened into a
rule of law' means." After referring to the well-known English decision in
King v. Baskerville(1) from which the, observations of Lord Reading, the Lord
Chief Justice of England, were, quoted with approval, the law in India was,
stated to be exactly the same so far as the accomplices are concerned and it
was observed that in case of sexual offences it could not be any higher. The
view taken by the High Court in that case that as a matter of law no conviction
without corroboration was possible was disapproved. The true rule, after
consideration of decided cases is stated thus :
"In my opinion, the true rule is that in
every case of this type the rule about the advisability of corroboration should
be present to the mind of the judge. In a _jury case he must fell the jury of
it and in a non- jury case he must show that it is present to his mind by
indicating that in his judgment.
But he should also point out that
corroboration can be dispensed with if, in the particular circumstances of the
case before him, either the jury, or, when there is no jury, he himself, is
satisfied that it is safe to do so. The rule, which according ,to the cases has
hardened into one of law, is not that corroboration is essential before there
can be a conviction but that the necessity of corroboration, as a matter of
prudence, except where the circumstances make it safe to dispense with it, must
be present to the mind of the judge, and injury cases, must find place in the
charge, before a conviction without corroboration can be sustained. The tender
years of the child, coupled (1) [1916] 2 K.B. 658.
204 with other circumstances appearing in the
case, such, for example as its demeanour, unlikelihood of tutoring and so
forth, may render corroboration unnecessary but that is a question of fact in
every case. The only rule of law is that this rule of prudence must be present
to the mind of the judge or the jury as the case may be and be understood and
appreciated by him or them. There is no rule of practice that there must, in
every case, be corroboration before a conviction can be allowed to stand."
Adverting to the nature and extent of corroboration required when it is not
considered safe to dispense with it this Court added :
"It would be impossible, indeed it would
be dangerous to formulate the kind of evidence which should, or would, be
regarded as corroboration. Its nature and extent must necessarily vary with
circumstances of each case and also according to the particular circumstances
of the offence charged." In Sidheswar Ganguly v. State of West Bengal(1)
the decision in. Ramashwar's case (supra) was approved and it was added that
the nature of the corroborative evidence should be such as to lend assurance
that the evidence of the prosecutrix can be safely acted upon.
In Janardan Tewari v. State of Bihar(2) it
was observed "We are satisfied that this girl was raped and we have only
to find out who the culprits were. In this connection, the law is that the
evidence of the prosecutrix must be corroborated in some measure to connect the
accused. Enough corroboration is available in this case from the evidence of
Bir Kumar who gave the information to his grandmother immediately after the
incident and also deposed on oath in Court. Bir Kumar Singh is a young boy aged
12 years and therefore, we have to be cautious about accepting his testi- mony.
We have read his evidence. Bir Kumar Singh was closely questioned to find out
whether he understood nature of evidence, and whether he was capable of giving
answers to the questions put to him. The Sessions Judge was satisfied that Bir
Kumar was a competent witness and his statement struck us as being rue."
(1) 1958 S.C. 143. (2) [1971] 3 S.C.C. 927.
205 In the present case Paramjit Kaur stated
to Hamam Singh (P.W. 4) as soon as he and his companions found her in the
appellant's sugarcane field as to how she had been abducted andhow the
appellant and Sanjha Ram had committed rape on her. She wept when she narrated
the story. The recovery of the prosecutrix and Sanjha Ram from the appellant's
sugarcane field, her complaint to Harnam Singh and others about the abduction
and rape and the later recovery of some broken pieces of bangles from the said
field and the medical evidence, in our opinion, fully corroborate the testimony
of the prosecutrix which even without corroboration seems to us to be
impressive enough torender it safe for sustaining the appellant's conviction.
Nothing at all has been elicited from, her lengthy cross-examination by more
than one defence counsel so as to shake her credibility. Her statement
suggesting slight exaggeration with respect tothreats shown to her by Dalip
Singh and by the appellant doesriot affect the truth of her testimony on the
real material point.A common village girl of less than 16 years' that she is,
due allowance must be made for the statement elicited from her incourt during
cross-examination by counsel or the defence. Her recovery virtually from the
custody of Sanjha Ram has been proved not only by Harnam Singh (P-W4) but also
by Pyara Singh (P.W. 5) and Anokh Singh (P.W. 6) and we do not find any cogent
ground for doubting this part of the prosecution case.
The appellant in his defence pleaded alibi.
He raised thisplea in his statement under s. 342, Cr. P.C. in the trial court.
In the commitment court we do not find this plea in his statement under s. 342,
Cr. P.C. where he stated that he would make a detailed statement in the court of
sessions. He produced D.W. 3, Shankar Dass, his cousin brother (the appellant's
mother's brother's son) According to this evidence marriage of Smt, Iswari
Devi, sister of Sankar Dass was solemnised at Rohtak November 24, 1967.
Gurcharan Singh, according to this witness went to Rohtak on November 23. The
marriage party arrived at Rohtak on 24th and departed on the evening of 25th.
The appellant is said to have stayed on there for the night of the 25th.
On the 26th the appellant's son who is stated
to be mentally deranged was to be examined by Dr. Vidya Sagar in the Medical
College Hospital, Rohtak and the appellant is stated to have returned to Rohtak
on November 27 without his son being examined by Dr. Vidya Sagar who happened
to be on leave. Me appellant's son was, however, shown to the doctor by Shankar
Dass on November 29, 1967. According to the trial court the appellant could
easily have reached his village on the evening of November 26,-a view with
which we entirely agree. High Court also did not accept the plea of alibi and,
in our 206 opinion, rightly. The appellant also pleaded that he was incapable
of having sexual intercourse but this plea was belied by his medical
examination. Neither the trial court nor the High Court accepted the plea. It
is also interesting to note that the appellant has not been consistent in
giving, his age on different occasions. In his application dated August 27,
1963 to the police station, Ladwa, complaining against Harnam Singh and others
that he apprehended danger at their hands, he gave out his age to be between 30
and 32 years. According to this assertion in 1967 he would be about 36 years of
age. In his certificate of medical examination, Ex. PC, dated 12th December.
1967 his age is stated to be 45 years. In his statement under s.
342 he gave his age as 50 years. In the trial
court he stated under S. 342, Cr. P.C. that he was unable to perform sexual
intercourse but this plea, as already observed, cannot be accepted in face of
the result of his medical examination. A faint-hearted suggestion was thrown by
the appellant's counsel that it is impossible for a medical man to state
whether a man is capable of sexual intercourse.
But this argument was not seriously pursued
and in our opinion rightly.
On a consideration of the arguments addressed
we have no doubt that the appellant has been rightly convicted for both the
offences. So far as the question of sentence is concerned it ha,,.-, to be
borne in mind that the appellant is a Lumbardar of his village and has also
officiated as Sarpanch for some time. Keeping in view the responsible position
held by the appellant in our view. the sentence imposed is by no means unduly
harsh. The appeal accordingly fails and is dismissed. The appellant should
surrender to his bail bond to serve out the sentence.
V.P.S. Appeal dismissed.
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