Convicting Someone By Holding Rape Victim's Statement To Be Gospel Truth Would Be Travesty Of Justice: Punjab and Haryana HC

It is most heartening to learn that none other than the Punjab and Haryana High Court itself in a most commendable, courageous, composed, cogent and convincing judgment titled X v. State of Haryana and Another in CRM-A-1736-2019 and cited in 2022 LiveLaw (PH) 265 that was reserved on September 22 and then was finally pronounced on September 30, 2022 has minced absolutely no words whatsoever to point out that it would be a travesty of justice if the statement of the prosecutrix is held to be gospel truth and the Courts are bound to hold someone guilty just because there is an allegation by the prosecutrix. It must be noted that the Division Bench comprising of Hon'ble Mr Justice Surjit Singh Sandhawalia and Hon'ble Mr Justice Jagmohan Bansal clearly held that, "Though, it is settled proposition of law that statement of the prosecutrix must be given pre-dominant consideration yet nobody in the civilized society can be implicated or held guilty just because there is a statement of prosecutrix. The statement of the prosecutrix cannot be treated as gospel truth and the Court has to see that she is a witness of sterling quality." Very rightly so!

At the very outset, this most learned, laudable, landmark and latest judgment authored by Hon'ble Mr Justice Jagmohan Bansal for a Division Bench of Punjab and Haryana High Court at Chandigarh sets the ball in motion by first and foremost putting forth in para 1 that, "The appellant at whose complaint FIR No. 191 dated 19.09.2017 under Sections 376, 354, 354-B, 506 and 509 IPC at Police Station Kosli was registered, has preferred, along with an application under Section 378 (4) present appeal, seeking setting aside of judgment and order dated 01.05.2019 whereby learned Additional Sessions Judge, Rewari (for short 'trial court') has acquitted the respondent on the ground that prosecution has failed to JBT (Junior Basic Training) and pursuing her final year course of B.A. As per appellant, on 31.05.2017 and 02.07.2017, respondent No. 2 – Satish along with his family members came to her house and a ring ceremony was performed. On 09.08.2017, respondent called appellant to come to Kosli and she after getting permission of her parents went to meet respondent at Bus Stand, Kosli. The respondent took her away on his bike to '7 days Rooms and Restaurant, Kosli' and they spent half an hour in the said restaurant where respondent clicked her photographs and they took cold drink. The respondent tried to get a room in the hotel, however, staff refused to give him room. The respondent thereafter took her away on his bike to Kosli, Dauroli Road near BKD School where he did obscene acts. He pressed her breast, broke string of her salwar and inserted his fingers in her private parts. She told the respondent that she would not establish physical relation with him till the marriage but respondent got offended and threatened not only to kill her but also not to marry her and then left the place. The appellant returned to her home and on 12.08.2017 as well 14.08.2017 received calls from respondent's mobile who threatened to kill her. A lady called from the mobile of respondent who claimed to be the wife of the respondent and abused her (appellant). She got frightened and told entire facts to her father who tried to contact family members of accused, however, they did not take calls of her father. On 18.09.2017, she went to Women Police Station, Jhajjar, where she filed an application and Jhajjar Police Authorities transferred the matter to Police Station Koli in view of territorial jurisdiction. On 19.09.2017, she went to Kosli and apprised the police official about the incident occurred on 09.08.2017. The lady police official brought her to Government Hospital, Rewari, where she was medico-legally examined."

To put things in perspective, the Division Bench then envisages in para 2 that, "2.1 On the basis of complaint of appellant, an FIR No. 191 dated 19.09.2017 was registered under Sections 376, 354, 354-B, 506 and 509 IPC at Police Station, Kosli.

2.2 On 08.11.2017, police arrested respondent who at that time was serving Indian Army. The police after completing investigation filed its report under Section 173 of Cr.P.C."

As it turned out, the Division Bench then enunciates in para 3 that, "During the course of trial, prosecution examined 17 witnesses which included appellant, father of appellant, owner of hotel, doctors and different police officials. The respondent examined 04 witnesses. The statement of respondent was recorded under Section 313 of Cr.P.C. wherein he denied allegations of prosecution and pleaded that he has been falsely implicated. Father of appellant appeared as PW14 and verbatim narrated facts as narrated by appellant. Chanderdeep @ Parul owner of afore-stated hotel appeared as PW1 and deposed that appellant and respondent came to his hotel on 09.08.2017 and stayed there for about 15-20 minutes and enjoyed cold drink/tea and thereafter left his hotel."

As we see, the Division Bench then points out in para 4 that, "The trial Court framed different issues for its consideration and came to a conclusion that prosecution has failed to connect the accused with the commission of offence and essential ingredients for proving charge against the respondent are not proved. The trial Court held that it would be neither safe nor in the interest of justice to hold the respondent guilty as there is no cogent and convincing evidence on record to link the respondent with the crime in question. With these findings, the trial Court acquitted the accused from all the charges."

Furthermore, the Division Bench then also mentions in para 5 that, "The trial court dated 01.05.2019 acquitted the accused/respondent and appellant has filed a present appeal seeking setting aside of aforesaid order passed by the trial court."

In short, the key highlights of para 6 while dwelling on the findings of the Trial Court are as follows: -

(i) The Trial Court while acquitting the respondent has clearly pointed out that it is not possible that a boy on his first meeting with his fiancée would commit acts as alleged by appellant;

(ii) As per appellant as well as site plan, the incident took place at a public place which is very near to police station, hospital as well as busy road. It is not possible that a boy would commit alleged act as a public place;

(iii) The appellant and respondent are from different villages and no relative of appellant is studying at Kosli-Dharouli Road. It is difficult to believe that a girl for the first time visited at a road and she memorized name of the road as well as the school located in the vicinity;

(iv) As per appellant string of salwar of appellant was broken, however, there is no evidence to indicate that how she got assistance or clothing from any co-passenger and there is no evidence of clothing having been torn or soiled;

(v) The hotelier did not produce CCTV footage and it is difficult to believe that an owner of hotel can disclose that a particular couple stayed in his hotel for 15-20 minutes. It is further relevant that Investigating Officer (PW17) has stated that as per statement of owner of hotel, he did not see couple on the day of incident;

(vi) There was an inordinate delay in the registration of FIR;

(vii) The reason of delay advanced by appellant is not satisfactory and believable;

(viii) During the course of cross-examination, appellant denied the fact of calling respondent after 09.08.2017 whereas call details record is indicating that appellant made a number of calls on 09.08.2017 as well during 10.08.2017 to 14.08.2017. The denial of appellant is contrary to electronic record.

(ix) The father of prosecutrix disclosed that he made a call on phone number of father of accused whereas call details record does not show that the father of prosecutrix ever called the father of accused/respondent.

It is worth noting that the Division Bench then specifies in para 9 wherein it is mentioned that, "The appellant alleged that she met respondent on 31.05.2017 and 02.07.2017 whereas trial Court on the basis of cross-examination of witness has found that respondent did not meet appellant on 31.05.2017 and 02.07.2017. The engagement ceremony was performed by family members of the respondent and he met prosecutrix for the first time on 09.08.2017. As per deposition of prosecutrix, she did not call the respondent after 09.08.2017 and she got threatening calls on 12.08.2017 and 14.08.2017 whereas as per call details record, it was appellant who made calls during 09.08.2017 to 14.08.2017. The appellant made a number of calls from 01.08.2017 to 09.08.2017 and respondent made calls during January 2017 to July 2017 on every 8^th day of month. The respondent was serving Indian Army so there was possibility that he was getting opportunity to call on 8^th day of every month. The alleged accident took place on 09.08.2017 whereas police was informed on 18.09.2017 i.e. after the expiry of more than one month. The father of appellant never called the father of respondent whereas he deposed that he called father of respondent. The place where alleged incident took place is a public place."

Briefly stated, the Division Bench then most significantly very commendably, cogently and convincingly holds in para 11 that, "The trial court had opined that the statement of the prosecutrix must be given pre-dominant consideration. The trial Court after noticing this fact has examined veracity and truthfulness of the allegations of the prosecutrix. Though, it is settled proposition of law that statement of prosecutrix must be given pre-dominant consideration yet nobody in the civilized society can be implicated or held guilty just because there is a statement of prosecutrix. The statement of prosecutrix cannot be treated as gospel truth and the Court has to see that she is a witness of sterling quality. If the statement of prosecutrix is held to be gospel truth and Courts are bound to hold someone guilty just because there is allegation by prosecutrix, it would be travesty of justice and there would be no need to conduct trial. The statement recorded by Magistrate under Section 164 or police authorities under Section 161 of Cr.P.C. would be sufficient to put a person behind the bars and hold him guilty. We do not find any substance in the arguments of the appellant. The findings recorded by trial Court are well reasoned and there is no substance in the allegations of prosecutrix. The Trial Court has passed a reasoned judgment, nevertheless, we deem it appropriate to consider the arguments and allegations of appellant."

It would be instructive to note that the Division Bench then points out in para 12.1 that, "The prosecutrix in her cross-examination denied the fact that she had called respondent after 09.08.2017. She further alleged that on 12.08.2017 and 14.08.2017, she got calls from the respondent who threatened her. As per electronic record which is not disputed by appellant, it was appellant who called not once but a number of times to respondent. The conclusion of call records as noticed by trial Court is reproduced as below:-

"It is pertinent to mention here that it was prosecutrix, who made five calls out of six on 01.08.2017, all four calls on 03.08.2017, four calls out of five on 04.08.2017, both calls on 05.08.2017, all 14 and 12 on 06.08.2017 and 07.08.2017, 9 calls out of 13 on 08.08.2017, 10 out of 16 calls on 09.08.2017, one out of four on 10.08.2017, four out of seven on 12.08.2017, all five calls on 14.08.2017."

The statement of appellant that she did not make call after 09.08.2017 was fatal to allegations of appellant especially when she is JBT and pursuing final year of BA."

To be sure, the key point of para 12.3 is that, " The alleged incident took place on 09.08.2017 whereas police was informed on 18.09.2017 and FIR was registered on 19.09.2017. It is undisputed fact that engagement was broken on 09.08.2017 and appellant called respondent in between 10.08.2017 to 14.08.2017, thus there is no question of threatening by respondent on 12.08.2017 and 14.08.2017. Had appellant been scared and suffered from the alleged incident, she must not have called the respondent."

Finally, the Division Bench then aptly concludes by holding sagaciously in para 14 of this notable judgment that, "Finding no merit in the present appeal, we are of the considered opinion that leave to appeal deserves to be declined and accordingly application seeking leave to appeal as well as appeal is dismissed."

In conclusion, we thus see that the Division Bench of Punjab and Haryana High Court comprising of Hon'ble Mr Justice Surjit Singh Sandhawalia and Hon'ble Mr Justice Jagmohan Bansal have made it indubitably clear that convicting someone by holding rape victim's statement to be gospel truth would be travesty of justice. It certainly merits no reiteration that all the lower courts and so also the higher courts must definitely pay heed to what the Division Bench of Punjab and Haryana High Court have held so very elegantly, eloquently and effectively in this leading case as mentioned herein aforesaid! There can be just no denying or disputing it!