Joginder Singh vs The State of Haryana

P.S. Pattar, J.—This is an appeal filed by Joginder Singh, son of Pritam Singh, resident of village Mohra, tehsil and district, Ambala against the judgment, dated 19th October, 1972, of the Sessions Judge. Ambala, by which he convicted him u/s 376. Indian Penal Code, and sentenced him to three years rigorous imprisonment, He also convicted him u/s 452, Indian Penal Code and sentenced him to two years rigorous imprisonment. Both the sentences were ordered to run concurrently.

The facts of this case are that Smt. Daya prosecutrix is the wife of Amar Nath (P.W. 4), who is a resident of village Mohra. district Ambala. Smt. Daya is mentally deranged. Amar Nath is running a shop at village Mohra, which adjoins his house. The prosecution story is that on 5th April, 1972, at about 2.00 p.m. Amar Nath, P.W., went to Shahbad, to make purchases leaving his wife Smt. Daya at the house. He returned from Shahbad at about 6.00 p.m. and found the door of the compound of the house bolted from inside. The boundary wall of the compound of his house is only 4 feet high and while standing in the street he saw Joginder Singh committing sexual intercourse with his wife on a charpai in the verandah On seeing this he went to the flour mill of Yasin, P.W., which adjoins his house where he found Yasin, P.W. and his nephew, Ved Parkash (P.W. 2). He told the aforesaid facts to them and then all the three persons came to the house of Amar Nath and saw, the accused committing the sexual intercourse with Smt. Daya, over the boundary wall. They jumped over the wall in the compound of the house and on seeing them the accused went on the roof of the house through a wooden stair-case and then jumped on the other side of the house in a khola.

Amar Nath lodged a report with the police at 8.00 p.m. Daryai Lal, Assistant Sub-Inspector, who was then posted at Police Station, Sadar Ambala want to the village reaching there at 9.30 or 10.00 p.m. and recorded the statements of the witnesses. After completion of investigation the accused was challaned and he was committed to stand his trial in the Court pf Sessions and was convicted and sentenced as mentioned above. Feeling aggrieved, Joginder Singh has filed this appeal alleging that the decision of the lower Court is wrong and incorrect and it may be set. aside and he may be acquitted.

Dr. B.D. Goyal, Medical Officer, Civil Hospital. Ambala City, examined Joginder Singh, accused on 10th April, 1972, at 12.20 p.m. at the request of the police and he found that his genital organ was fully developed and healthy and there was nothing to disable him from committing sexual intercourse with a girl or a woman.

Dr. (Mrs.) Kamlesh Datta, Civil Hospital, Ambala (P.W. 3), examined Smt. Daya prosecutrix on 6th April'', 1972, at 12.45 p.m. and she found no external injury on her person. In her opinion Smt. Daya was a married woman for the last about 8 years and she was habitual to sexual intercourse. She Could not say whether rape had been committed on her or not. The two vaginal swabs were taken and were sent for semen examination to the Chemical Examiner, Karnal. After seeing the report of the Chemical Examiner the Lady Doctor, opined that Smt. Daya had intercourse.

Dr. Sita Ram Goyal (P.W. 3), Civil Hospital, Ambala City. examined Smt. Daya on 20th July, 1972, at the request of the police and he found that she was suffering from chronic schizophrenia which is a form a unsoundness of mind. According to him she had no reasoning power and could hot understand the consequences of acts. She could not make a statement properly. His report are Exhibits P.W. 6/A/1, and P.W. 6/A/2.

In the instant case the prosecution examined only two witnesses to prove its case and they are Amar Nath P.W. the husband of the prosecutrix and Yasin (P.W. 5), who are the eyewitnesses of the occurrence. Ved Parkash (P.W. 6), who was the third eye-witness of the occurrence was simply tendered for cross-examination and he did not make any statement in examination-in-chief. No question was put to him in cross-examination by the counsel for the accused. The law regarding the examination of witnesses is contained in Sections 137 and 138 of the Evidence Act. There is no provision in that Act for permitting a witness to be tendered for cross-examination without his being examined-in-chief and this practice is opposed to Section 138, of that Act. A witness cannot be tendered for cross-examination without his being examined-in-chief,--vide Kesar Singh and Another Vs. The State, . Therefore, the Sessions Judge should not have allowed Ved Parkash to be tendered for cross-examination.

The aforesaid prosecution story was narrated on oath by Amar Nath (P.W. 4) and Yasin (P.W. 5) Similar was the statement Exhibit (P.W. 5). Similar was the statement Exhibit P.C. made by Amar Nath to the police after the occurrence on the basis of which this case was registered against the accused and it corroborates his statement made in the Court. The statements of these witnesses are consistent and there is no discrepancy on any point whatsoever. They withstood the test of cross-examination very well. The flour mill of Yasin (P.W. 5) adjoins the house of Amar Nath (P.W. 4): After seeing the accused committing sexual intercourse with his wife, Amar Nath (P.W. 4) went to the adjoining flour mill of Yasin (P.W. 5) where the latter was present besides Ved Parkash and he told the aforesaid facts to them and then all the three came to the house of Amar Nath and saw the accused committing sexual intercourse with Smt. Daya. They scaled over the wall and entered the court-yard of the house of Amar Nath when the accused went on the roof of his house through the stair case and he could not be apprehended by them. It is admitted that the street opposite the house of Amar Nath and the flour mill of Yasin is a thoroughfare and the outer wall of the court-yard of the house of Amar Nath is only four feet high and a person going in the street can see the verandah of Amar Nath, where the accused was committing rape with Smt. Daya. Amar Nath and Yasin had no enmity with the accused and there was no motive to falsely implicate him in this case. Amar Nath would be the last person to falsely implicate the accused in a case involving the honour of his wife.

It was contended that there was enmity between Yasin and the family of the accused because they had taken possession of the house of the family of Yasin after the partition of India in 1947. A suggestion was put to Yasin, P.W. in cross-examination whether their house had been taken possession of by the family members of the accused and that they had made an application for the return of the house, but he expressed ignorance. The age of Yasin on 18th October, 1972, as given by him when his statement was recorded in the Court of Sessions Judge, Ambala was 28 years, and therefore, at the time of the partition of the country in 1947, he was aged about three years only and therefore, he could not have any personal knowledge about the facts mentioned in the above-said suggestion. There is ho evidence on the file to prove this alleged enmity. For the above reasons it is held that the statements of these two witnesses are consistent and truthful.

The learned Counsel for the Appellant contended that it is not proved that the sexual intercourse was committed by the accused with Smt. Daya without her consent. Both the prosecution witnesses have stated that the accused at the time of the commission of the offence has put his hand on the month of Smt. Daya, and that she was offering resistance. According to Yasin (P.W. 5) Smt. Daya was moving her hands and feet and was offering resistance If it was so, then she must have received some injuries on her person. But the Lady Doctor Kamlesh Dutta (P.W. 3) stated that she did not find any external injury on any part of her body. She also stated that when the prosecutrix Smt. Daya wag examined by her, her husband Amar Nath was also accompanying her and that some particulars had been given to her by the prosecutrix and some l>y her husband. According to Dr. B.D. Goyal P.W., Smt. Daya could speak and she was found to be normal from her looks and such like patients are capable of performing normal routine duties except when they are affected by acute attack.

The Sessions Judge remarked in para No. 11 of his judgment that he was of the opinion that it was wrong that the prosecutrix gave her consent to the accused for committing sexual intercourse with her and that the prosecutrix who was a patient of chronic schizophrenia was incapable of giving her consent. The onus to prove that the accused committed sexual intercourse with Smt. Daya without her consent and against her will as laid down in Section 375, Indian Penal Code, is on the prosecution. But there is ho direct evidence on the file to prove this fact. The above opinion of the lower Court is not correct and is based on conjectures and surmises. It is well-settled that conjectures and surmises cannot take the place of positive proof. The prosecutrix Smt. Daya was the best witness to prove, whether the accused committed sexual intercourse with her without her consent or against her will. But she has not been produced for the reasons best known to the prosecution. If she could appear before the doctors and give rational answers, she could have also been examined in the Court. She was the best witness to prove the offence.

The counsel for the Appellant contended that the boundary wall of the court-yard of the house of Amar Nath was only four feet high and persons walking in the street could see the varendah where the alleged offence was committed and therefore, the accused could not have committed the offence without the consent of Smt. Daya, otherwise several persons would have been attracted to the place on hearing the alarm raised by Smt. Daya. However, great the suspicion against the accused and however strong the moral belief and conviction of the Judge, unless the offence of the accused is established beyond the possibility of reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. Considered as a whole the prosecution story may be true, but between "may be true" and "must be true", there is a long distance to travel and the whole of this distance must be convered by the prosecution by legal, reliable and unimpeachable evidence before the accused can be convicted. There is an initial presumption of innocence of the accused and the prosecution has to bring the offence home to the accused by reliable evidence. Further the accused is entitled to the benefit of every reasonable doubt. For all these reasons, it is held that it is not established beyond any reasonable doubt, that the sexual intercourse was committed by the accused with Smt. Daya without her consent or against her will. Consequently, the offence u/s 376. Indian Penal Code, is not established against the accused beyond any reasonable doubt. However, it is proved that the accused is guilty of offence u/s 452, Indian Penal Code and he is also guilty of the offence u/s 497, Indian Penal Code.

The learned Counsel for the Appellant contended that cognizance of the offence u/s 497, Indian Penal Code, can only be taken if a complaint is made by the husband of the woman as required by Section 199 of the Code of Criminal Procedure, and that no complaint was made by the husband and consequently, the Appellant cannot be convicted in this case u/s 497. Indian Penal Code. In support of this contention he relied on a Division Bench authority of the Allahabad High Court, reported as Tej Singh Vs. State, , wherein the facts were that the accused was charged u/s 366 and 376, Indian Penal Code and the Sessions Judge found that the case under Sections 366 and 376, Indian Penal Code, was not established, but found that the minor offence u/s 497, Indian Penal Code, was made out at the trial. In that case the husband had lodged the report with the police against the accused and a case under Sections 366 and 376, Indian Penal Code, was registered. The following point was referred to the Division Bench for decision:

Whether in a case where the husband has lodged a report with the police, but has not filed a complaint before the Magistrate for action being taken u/s 497, Indian Penal Code, the accused can fee punished for that offence, if a case u/s 497, Indian Penal Code, is made out against him at the trial.

The learned Judges answered this question in the negative. It was held as under:

The word ''complaint'' in Section 199, Code of Criminal Procedure is limited to a complaint as denned in Section 4 of that Code and was not capable of a more liberal Interpretation. When the word ''complaint'' Has been defined in Clause (b) of Sub-section (1) of Section 4, Code of Criminal Procedure, it must be interpreted throughout that Code as bearing that meaning and therefore, both in Section 199 and Sub-section (3) of Section 238, Code of Criminal Procedure, the world ''complaint'' can only mean a complaint made to a Magistrate. There can be no doubt that it is always Open to a Court td give a more liberal interpretation to the definition of ''complaint'' as contained in Section 4(1)(h), Code of Criminal Procedure, where the contest or subject so warrants. The qualifying clause occurring in that section unless a different intention appears from the subject Or Content makes that interpretation possible. However, in the case there was nothing which might Warrant a more liberal interpretation of the definition of the term ''complaint''.

The essential ingredients of a ''complaint'' u/s 4(1)(h), unless a different intention appears from the subject or context, are (1) the allegation made orally or in writing to a Magistrate, (2) with a view to his taking action under the Code, and (3) stating that some person whether known or unknown has committed an offence.

I am in respectful agreement with the law laid down in this ruling. According to Section 199 of the Code of Criminal Procedure, ho Court can take cognizance of an offence u/s 497, Indian Penal Code, except upon a complaint made by the husband of the woman. This section prescribes a statutory bar, prohibiting the Court from taking cognizance of offence u/s 497, Indian Penal Code, except upon a complaint made by the husband of the woman. The word ''complaint'' in Section 199, Code of Criminal Procedure, is limited to the complaint as defined in Section 4(1)(h) of the Code of Criminal Procedure. The essential ingredients of a complaint u/s 4(1)(h) are--

(1) that the allegations are made orally or in writing to a Magistrate; with a view to his taking action under the Code of Criminal Procedure;

(2) stating that some person, whether known or unknown has committed an offence; and

(3) it does not include the report of a Police Officer.

In the instant case Amar Nath, the husband of the prosecutrix Smt. Daya had lodged a report with the police against Joginder Singh, Appellant and a case u/s 376 Indian Penal Code, was registered against him, and he, (that is, Amar Nath) made a statement in the Court during the trial in support of the police case, but this cannot be treated as a complaint as defined in Section 4(1)(h), Code of Criminal Procedure before the Magistrate for action being taken u/s 497, Indian Penal Code, and the accused cannot be punished for that offence, if a case u/s 497, Indian Penal Code, is made out against him at the trial. Therefore, the conviction and sentence of Joginder Singh Appellant u/s 376, Indian Penal Code, are set aside and he is acquitted of that offence. However, his conviction u/s 452, Indian Penal Code, is well-based and is maintained. The sentence awarded to him under, Section 452, Indian Penal Code, is not excessive and the same is maintained.