1996 Supreme(Raj) 44
Supreme Court
Honble A.S. ANAND & SAGHIR AHMAD, JJ.
State of Punjab - Appellant
Versus
Gurmit Singh and Others - Respondents
Criminal Appeal No. 616 of 1985
Decided On : January 16, 1996
Headnote:(a) Penal Code – Section 376 and Criminal Procedure Code, 1973 – Section 154 – Delay in F.I.R. – When explained will not be material – Defective investigation will not be ground to discredit the prosecutrix – Evaluation of the testimony of the prosecutrix – Will it require corroboration? – To what extent? – The law does not demand corroboration but it is the court to be assured of the incident. (Para 7)(b) Criminal Trial – Rape case – Dealing with the probability that the prosecutrix may be of loose character? – Duty of the court to ascertain whether the victim refused her outrage. (Para 15)(c) Criminal Trial – Rape case – During cross – examination the court should save the prosecutrix from unnecessary harassment and humiliation – Trial should be held in-camera invariably – As far as possible should be tried by a lady Judge – The anonymity of the victim is to be maintained.
If the Investigating Officer did not conduct the investigation properly or was negligent in not being able to trace out the driver of the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an Investigating Officer could not affect the credibility of the statement of the prosecutrix. Trial Court fell in error for discrediting the testimony of the prosecutrix on that account. In our opinion, there was no delay in the lodging of the FIR either and if at all there was some delay, the same has not only been properly explained by the prosecution but in the facts and circumstances of the case was also natural. The Courts cannot overlook the fact that in sexual offences delay in the lodging of the FIR can be due to variety of reasons particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident which concerns the reputation of the prosecutrix and the honour of her family. It is only after giving it a cool thought that a complaint of sexual offence is generally lodged. The prosecution has explained that as soon as Trilok Singh PW 6 father of the prosecutrix came to know from his wife, PW 7 about the incident he went to the village Sarpanch and complained to him. (Para 7)
Even if the prosecutrix, in a given case, has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. No stigma, like the one as cast in the present case should be cast against such a witness by the Courts, for after all it is the accused and not the victim of sex crime who is on trial in the Court. (Para 15)
If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. (Para 20)
The Court, therefore, should not sit as a silent spectator while the victim of crime is being cross-examined by the defence. It must effectively control the recording of evidence in the Court. While every latitude should be given to the accused to test the veracity of the prosecutrix and the credibility of her version through cross-examination, the Court must also ensure that cross- examination is not made a means of harassment or causing humiliation to the victim of crime. (Para 21)
Honble ANAND, J. – This appeal under Section 14 of the Terrorist Affected Areas (Special Courts) Act, 1984 is directed against the judgment and order of Additional Judge, Special Court, Ludhiana dated 1.6.1985 by which the respondents were acquitted of the charge of abduction and rape. For what follows, the judgment impugned in this appeal, presents a rather disquietening and a disturbing feature. It demonstrates lack of sensitivity on the part of the Court by casting unjustified stigmas on a prosecutrix aged below 16 years in a rape case, by overlooking human psychology and behavioural probabilities. An intrinsically wrong approach while appreciating the testimonial potency of the evidence of the prosecutrix has resulted in miscarriage of justice. First a brief reference to the prosecution case : The prosecutrix (name withheld by us), a young girl below 16 years of age was studying in the 10th class at the relevant time in Government High School, Pakhowal. The matriculation examinations were going on at the material time. The examination centre of the prosecutrix was located in the Boys High School, Pakhowal. On 30th March, 1984 at about 12.30 p.m. after taking her test in Geography, the prosecutrix was going to the house of her maternal uncle, Darshan Singh, and when she had covered a distance of about 100 Karmas from the school, a blue ambassador car being driven by a Sikh youth aged 20/25 years came from behind. In that car Gurmit Singh, Jagjit Singh alias Bawa and Ranjit Singh accused were sitting. The car stopped near her. Ranjit Singh accused came out of the car and caught hold of the prosecutrix from her arm and pushed her inside the car. Accused Jagjit Singh alias Bawa put his hand on the mouth of the prosecutrix, while Gurmit Singh accused threatened the prosecutrix, that in case she raised an alarm she would be done to death. All the three accused (respondents herein) drove her to the tubewell of Ranjit Singh accused. She was taken to the Kotha of the tubewell. The driver of the car after leaving the prosecutrix and the three accused persons there went away with the car. In the said kotha Gurmit Singh compelled the prosecutrix to take liquor, misrepresenting to her that it was juice. Her refusal did not have any effect and she reluctantly consumed liquor. Gurmit Singh then got removed her salwar and also opened her shirt. She was made to lie on a cot in the kotha while his companions guarded the kotha from outside. Gurmit Singh committed rape upon her. She raised roula as she was suffering pain but Gurmit Singh threatened to kill her if she persisted in raising alarm. Due to that threat, she kept quite. After Gurmit Singh had committed rape upon her, the other two accused, who were earlier guarding the kotha from outside, came in one by one, and commi- tted rape upon her. Jagjit Singh alias Bawa committed rape on her after Gurmit Singh and thereafter Ranjit Singh committed rape on her. Each one of the accused committed sexual intercourse with the prosecutrix forcibly and against her will. They all subjected her to sexual intercourse once again during the night against her will. Next morning at about 6.00 a.m., the same car arrived at the tubewell kotha of Ranjit Singh and the three accused made her to sit in that car and left her near the Boys High School, Pakhowal near about the place from where she had been abducted. The prosecutrix had to take her examination in the subject of Hygiene on that date. She after taking her examination in Hygiene, reached her village Nangal Kalan, at about noon time and narrated the entire story to her mother, Smt. Gurdev Kaur, PW 7. Her father Trilok Singh PW 6 was not present in the house at that time. He returned from his work late in the evening. The mother of the prosecutrix, Smt. Gurdev Kaur PW 7, narrated the episode to her husband Trilok Singh PW 6 on his arrival. Her father straightway contacted Sarpanch Joginder Singh of the village. A panchayat was convened. Matter was brou
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