GURCHARAN SINGH versus STATE OF HARYANA

GURCHAR,AN SINGH

STATE OF HARYANA September 13, 1972 [A. N. RAY AND I. D. DuA, JJ.]

Indian Pental Code (Act 45 of 1860). •'-362. 366 and 376--Girl iinder 16 years forced to go to place where rape was committed on Tw-Effect of absence of marks of violence or person of victim.

Practice-Sexual ofjence-Necessitv for corroboration. ·

girl under 16 years was induced to go to particular house from where she was threatened to go to the boll5C 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 : (I) The gravamen of the offence was that the appellant forc-D ed 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 guarJianship or the appellant taking or enticing her out of the keeping of her lawful guardian or hter taking her away for illicit purpose from unlawful custody. [201A-E]

State v. Gopicfra11d, A.J.R. 1961 Born. 282, held inapplicable.

(2) Under s. 375, J.P.C. read with the Explanation, where p<rs0n on whom rape is committed is under 16 years of age, her consent is im· material and penetration is sufficient to con~itute the offence. In the pre-sent case, mere absence of marks di violence on the peJSOn 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 y.ear; of age. [201 G-HJ

(3) In cases of sexual offences the prosecutrix is not considered "" an accomplice and her testimony is not equated with that of an accomplice . in an offence. It is only as role 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 cm bee is not being falsely implicated. [202G-H]

In the present cas~. the testimony of the victim by itself is impressive enough to render it safe for sustaining the appellant's conviction. More-G over, t!'e rescue of the victim from the appellant's sugarcane field, her complamt soon thereafter to the prosecution witnesses about the abduction and the rape, the later recovery of S()me broke11 pieces of bangles from the scene of occurrence, and the medical evidence, fully corroborate testi-money. [205 A· DJ

Rameslnvar v. State of Rajasthan, [1952], S.C.R. 177 ancl S,dhuwar Ga11g111/y \.State of West Bengal, A.1.R. 1958 S.C. 143 followed.

Janarda11 Tewari v. State of Bihar, [1971] 3 S.C.C. 927 referred tc.

CRIMINAL APPELLATE JURISDICTION Cr. A. No. ' 232 of

. .\ppeal by special leave from the judgment and order dated NoYember 28, 1968 of the Punjab & Haryana High Court at Ch1ndigarh, in Criminal Appeal No. 633 of 1968.

Court at

Bal Raj 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 •m'.l und~r the latter section to rigorous imprisonment for four Ses,ions Judge. Kamal on charges under ss. 366, 368 and 376, Indian Penal Code. Gurcharan Singh. appellant. with whom :lione we are concerned in this appeal was charged with commis-sic'n of offences under ss. 366 and 376. J.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 imp1isonment for three years I) •:nd under the latter section to rigorous imprisonment for four ye,1r; and fine of Rs. 200. with further rigorous imprisonment for six months in the event of default in payment of fine. The subs-tantiYc sentences were to run concurrently. Sanjha Ram was conYicted under s. 376. I.P.C. and sentenced to rigorous impri-sonment for four years and fine of Rs. 200, with further rigo-E rous imprisonment for si:: months ~n case of default in payment c.i rine. He was also convicted under s. 368, I.P.C. and sentenc-ed to rigorous imprisonment for two years. The substantive 'entences were to run concurrentlv. 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 imprison-.., ment for six months in the· event of default.

On appeal learned single Judge of the Punjab and Haryana

Hi~h Court upheld these convictions and sentences.

The prosecution story, as upheld by both t!J.e learned Sessions Judge and the High Court, is that Smt. Paramajit Kaur (prose-cutrix). young girl under 16 years of age, whose father Avtar Singh. had seITed in the Army from 1947 to 1967 and. was. ac.:ording to the High Court, man of meagre means went out in the evening of November 26, 1967 to ease 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 ck>thes. On reaching Dalip Singh's house she was handed over to him. By then it had grown dark. Dalip Singh threatened h~r with knife and asked her to, accompany him. He took her

to 1.lle appellant's baithak (sitting room) closeby and after hand-iµg her over to the appellant, Dalip Singh went away. The appel-lant threatened Paramjit Kaur with 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 couple of hours Sanjha Ram arrived there. The appellant then went away leaving Paramjit Kaur in Sanjha Ram's custody. Dur-ing the appellant's absence Sanjha Ram also committed rape on her. After sometime the appellant returned with bedding and f()('(: for Paramjit Kaur. But she declined to eat anything. The whok 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 Sanjhu Ram with ~ direction that some customer should be found for her. Sanjha R;un used to take Paramjit Kaur to the sugarcane field during d;;y time and bring her back to the room during the night. Sanjh~t raped her even in the sugarcane field. !n the meantime. when Paramjit Kaur did not return home on l\<ovember 26. 1967, her uncle Shingara Singh, her father Avtar Singh and some others began searching for her in their village :md also in the other nearby villages. Having failed in their se:uch. first infonnation report was lodged on the morning of No\en1ber 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, l.P.C. Suspicion was cast in the F.I.R. on Dalip Sin!Jh, his . son Trilok Singh, his wife Surjit Kaur. Gurcharan Singh, appellant ~ml his wife because Paramjit Kaur used to go to their house which was located in the neighbourhood. The same day vi: : Nco;ember 29. Anokh Singl1 (P.W. 6) felt the presence of some pel"'(ins in Gurcharan Singh, ,appellant's sugarcane field which is ne;:~ to his own sugarcane field and conveyed this infom1ation to ('{,:. Harnam Singh. (P.W. 4). Thereupon Col. Harnam Singh, ulon~ with Jagjit Singh. Gian Singh, Rachpal Singh Chima, R~•hhpal Singh Nagra, Gian Chand. KishQn Singh and Anokh Singh. the informant, went to the sugarcane field of Gureharan SingJ1. where they saw Paramjit Kaur and Simjha Ram. The latter tried to escape but was secured. Paramjit .Kaur. narrated the ·,,·hole story of what had happened since the evening of Nov-emlier 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 investiga-II tior. pursuant to the information lodged by Shingara Singh, uncle ~f the prosecutrix. The Sub-Inspector. on meeting this party. recorded the statement of the prosecutrix and of the other wit-ll~'''CS accompanying her. Paramjit Kaur was got examined by

lady doctor K. Kaushalya, Medical Officer, Civil Hospital, Karnal at about 7 p.m. who found 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 prosecutri" could be between 15 and 16 year5. She was clearly under 16 years.The prosecutrix appeared as P. W. 3 and narrated the wilo!e story in straightforward manner. She had off and on been going to the house of G11rcharan Singh, appellant, during the last four or five years and also borrowing odd articles from the appel-lant's wife. The appellant's wife also used to pay visits to Param-jit K.aur'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 San.jha Ram. In her cross-examination an attempt was made on behalf of the accused to elicit from her if there was any animosity or liti-gation between Dalip Singh on the one side and Shingara Sin~ anJ 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 he£Self 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 wher¢ she was also further examined and cross-examined. Nothing was elicited to-discredit her evidence. Hamam Singh (P.W. 4) who is Sarpanch and retired Lt. Colonel from the Anny 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 aRd 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 chal-lenge on behalf of the appellant has been that this Haman1 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 offeno.!s viz : under ss. 366 and 376, I.P.C.

GURCHARAN v. HARYANA (Dua, I.)

In this Court the first objection raised on behalf of the appel-lant against his prosecution and conviction under ~. 366, l.P.C. is that kidnapping and abduction of the prosecutrix was complete as soon as she was induced by th~ two ladies to accompany them. In support of this submission reliance has been placed on deci~ion of the Bombay High Court reported as State v. Gopichand ( [1]). This deci.Sion is wholly unhc-lpful to the appellant. According to this decision, when minor girl was kidnapped by from the lawful custody of her husband, her subsequent taking away by B, who was no party to the original kidnapping, from the unlaw-ful custody of A, for illicit intercourse, does not amount to kid-napping and is not guilty under s. 366. Plainly the rati.; 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.-., th~ real gravamen of the offence here being that Gurcharan Singh, appellant, induced the prosecutrix by threaten-ing her with pistol to go with him to the room in his fields where his tube-well was fixed and there he committed rape on her. Sec-tion 362, I.P.C., which defines abduction lnys down that whoever by force compels or by any deceitful means induces any pers.in to go from any place is said to abduct that person. The appellant's case clearly falls within this definition. Kidnapping from law-ful guardianship which offence was the subject matter of discus· 'ion in Gopichand's case (supra) is defined in s. 361, l.P.C. and according to that definition undoubtedly taking or enticing 1ny minor out of the keeping of the lawful guardian of such 1:,ino.r completes the offence. That is not the case before us. The 5rst challenge, therefore, fails.The counsel has then contended that ihere was no quesLioiL cif the commission of rape in this case and for that purpose he bas tried to seek support from the medical evidence. We consider it unnecessary to deal at length wiJh this argument, which, in face of the medical evidence and the statement of the prosecutrix, does not seem to possess any merit. The 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, l.P,C., according to which man is said to commit "rape", who, except in the cases ¢herein excepted, has sexual intercourse with '!oman under circumstances falling under any of the five descrip-tions st~ted the.rein. We need not deal with all the descrip~ions. S~ce !t to pomt out that where person on whom rape i' ·~nm­m1tted is under 16 years of age, even consent is immaterial < 11ide fi~thly ?f s.. 115) and penetration is suffident to constitute the sexual mterconrse necessary to the Qffence of rape (vi de : exp1'ma--·--

tion to s. 375.) No attempt has been made on behalf of the appel-

lant 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 inunaterial because tha1 would merely suzgest wa:it of violem resistance on the part of the prosecutrix, which is wholly inconsequential when the prosecutrix is under 16 years of age. Ablier.ce of violent or stiff resistance in the present case may as well 1uggest. helpless surrender to the inevitable due to sheer timidity. In any event her cnosent would not take the case out of the definition of rape. So far as the age of the prosecutrix is con er med, it is noteworthy that in the High Court her age was 1101 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 testinwny of Tilak Raj (P.W. 8), who is the head master of the scboc! in which the prosecutrix had been studying, and the evi' dence of the mother of the prosecutrix, came to the conclusion that J:er date of birth was April 10, 1952 and, therefore, she was Jess than 16 years of age on the date of the occurrence. 'Ibis 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 ~ppellant was that the solitary statement of the prosecutrix with0ut corroboration in material particulars is not enough to susta;n 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 appel-lant i> concerned the evidence against him is neither reliable nor sufficient for bringing home to him the offence of abduction and rape beyond reasonable doub,t. The basic question which, there-fore .. .irises is as to _how far the testimony of the prosecutrix before m ca:i form the basis of the appellant's conviction. It is well-set~led tliat the prosecutrix cannot be considered as an accomplice and., :herefore .. her testimony cannot be equated with that of. an accomplice in an offence. As rule of prudence, however, court normally looks for some corroboration of her testimony so as to satisi:.· its conscience that she is telling the truth and that the person ~~cll>ed of rane on her has not been falsely implicated. The matter is nc; res i11tegra and this Court has, on more occasions than one. coiridered and enunciated the legal position. In Rameshwar v. Statt of Rajasthan(') this_Court observed :

''Now 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 married woman, in which case questions 'of adul-:ery may arise. But adultery presupposes consent and so is not on the same footing as rape. In the case o,f 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 natura]!y be as suspect JS that of an accomplice. So also in the case of unna-mral offences. But in all these cases large volume of case law has grown up which treats the evidence of the complainant somewhat along the same lines as accom-plice evidence though often for widely different reasons .ind •the position now reached is that the rule about cor-,·oboration has hardened into one of law. But it is im-;Jortant to understand exactly what 1he rule is and what ;he expression 'hardened into rule of law' means." After referring to the well-known English decision in King v. · Bcisken-ille(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 accom-plices are concerned and it was observed that in case of sexual offences it could not be any 4igher. The view taken by the High Court in that case that as matter of law no conviction without corroboraion 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 ~orrobo­ration should be present to the mind of the judge. In :t jury case he mus.t tell the jury of it and in non-jury .:ase he must showothat it is present to his mind by in-dicating that in his judgment. But he should also point Jut 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 satis-fied that it is safe to do so. The rule. which according :o the cases has hardened into one of Jaw. is not that :orroboration is essential before there can be convic-:ion but that the necessity of corroboration. as matter Jf prudence. except where the circumstances make it safo 10 dispense with it. must l:Je present to the mind of the judge, and in jury cases, mnst find place in the 2harge, before conviction without corroboration can be sustained. The tender years of the child: coupled

"I [1916f ~ K.ll. (>58.

with other circumstances appearing in the case, such, for example as its demeanour, unlikelihood o,f tutoring and so forth, may render corroboration unnecessary but that is 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. Theie is no rule of practice that there must, in every case, be corrobbration before 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 C"urt added:

"It would be irr.possible, indeed it would be d~nger­ous to formulate the· kind of evidence which shoula, 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 Ga11guly v. State of West Bengal([1]) the deci-sion in Ramashwar's case (supra) was approyed 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.

Jn Ja11arda11 Tewari v. Stale of Bihar([2 ]) it was observed :

"We are satisfied that this girl was raped and we have only to find out who the c11lprits wete. In this connection, the law is that the evidence of the prose-cutrix must be corroborated in some measure to r.on-nect the accused. Enough corroboration is availablle in this case from the evidence of Bir Kumar who gave the information to his grand mother immediately after the incident and also deposed on oath in Court. Bir Kumar Singh is young boy aged 12 years and lhere-fore, 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 !rim. The Sessions Judge was satisfied that Bir Kumar was competent witness and his statement struck us as being true.''

(2) [1971] 3 s.c.c. 927.

In the present case Paramjit Kaur stated to Harnam Singh (P. W. 4) as soo11 as he and his companions found her in the appellant's sugarcane field as to how she had been abducted and how the appellant and Sanjha Ram had committed rape on her. She wept when she narrated the story. The recovery of the pro-secutrix and Sanjha Ram from the appellant's sugarcane field, he: complaint to Harnam Singh ·and others a1lout the abduction and rJpe and the later recovery of some broken pieces of bangles fr<Ym the said field and the medical evidence, in our opinion, fully corroborate the testimony of the prosecutrix which even without corrobpration seems to us to be impressive enough to render it safe for sustaining the appellant's conviction. Nothing ~i all has been elicited fr9m her lengthy cross-examination by more than one defence counsel so as to shake her credibility. · He-r statement suggesting slight exaggeration with respect to threats shown to her by Dalip Singh and by the appellant does not affect the truth of her testimony on the real material point. common village girl of less than 16 year5 that she is, due ~llowance must bo made for the statement elicited from her in court during cross-exarninatio.n by counsel or the defence. Her recovery virtually from the custody of Sanjha Ram has been proved not only by Harnam Singh (P.W. 4) but also by Pyara Singh (P.W. 5) and Anokh Singh (P.W. 6) and we do not find ~ny cogent ground for doubting this part of the prosecution case.

The appellant in his defence pleaded alibi. He_ raised this plea 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 state-ment 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. lswari Devi, si~ter of Sankar Dass was solemnised at Rohtali: or. :\ovember 24, 1967. Gurcharan Singh, according to this witness went to Rohtak on November 2_3. The marriage party trrriYed at Rohtak on 24th and departed on the evening of 25th. The appellant i~ said to have stayed on there for the night of the :!5th. On the 26th the appellant's son who is stated to be men-tally 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. The appellant's son was. however, shown to the doctor by Sb.ankar Dass on November 29. 1967. According to the trial court the appellant could easily have reached his village on the evening of November "6,-a view with which we entirely agree. The Hi!!h Court alsv did not accept the plea of n/i/>i and. in out

opm10n, rightly. The appellant also pleaded that he wu> in-.sapablc o[ having sexual intercourse but this plea was belied by .his medical examination. Neither the trial court nor the High Cour<t accepted the plea. It is also interesting to note that the appellant has not been consistent in giving his lge on different occasions .. In his application dated August 27, 1963 to the police station, Ladwa, complaining against Harnam Singb and o•thers that he apprehended danger at their hands, he 'gave out his age to be between 30 and 32 yeirrs. According to. this asser-tion in 1967 he would be about 36 years of age. In his certi-ficate of medical examination, ~x. 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. faint-hearted suggestion was thrown by the appellant's counsel that it' is im-possible for medical man to state whether man is capable of sexual intercourse. But this argument was not seriously pur:med and in our opinion rightly.

On 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 se,?-tence is concerned it has to be borne in mind that the appellant is Lumbardar of his vil-lage and has also officiated as Sarpanch for some time. Keeping in view the responsible position held by the appellant in our vieyv, !he sentence imposed is by no means unduly harsh. 'rhe appeal accordingly fails and is dismissed. The appellant should .\Ur-render to his bail bond to serve out the sentence.

Appeal dismi:,wed.