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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO(s). 878-879 OF 2011
MOHAN LAL & ANR Appellants
VERSUS
STATE OF PUNJAB Respondent
WITH
CRIMINAL APPEAL NO. 884 of 2011
O R D E R
1. These appeals have been preferred against the
impugned judgment and order dated 3.12.2010 passed by the
High Court of Punjab & Haryana at Chandigarh in Criminal
Appeal Nos. 1009-SB of 2000, 1031-SB of 2000 and 1080-SB of
2010, by way of which the High Court has affirmed the
judgment and order dated 25.09.2000 passed by the Additional
Sessions Judge, Fatehgarh Sahib, Punjab in Sessions Case No.
15T/98/22.12.95, by way of which the learned trial court has
convicted the appellants along with others, namely, Ranjit
Singh and Smt. Jasbir Kaur for the offences punishable under
Section(s) 376(2)(g) and 366 of Indian Penal Code, 1860
(hereinafter referred to as the ‘IPC’), and awarded sentence
of 10 years to each of them and fine of Rs.2000/- and Rs.
3,000/- respectively, and in default of payment of fine, to
undergo further RI for one year and six months respectively.
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2. The facts and circumstances leading to filing of
these appeals are that, one Manjit Kaur (PW-1), who was a
student of class X had gone along with 15-16 other girls
from her school to attend sport meet at Fatehgarh Sahib. All
those 15-16 girls had been walking to reach Fatehgarh Sahib.
In the meanwhile, Balbir Singh, the Director of Physical
Education, asked Manjit Kaur, prosecutrix (hereinafter
referred to as ‘Prosecutrix’) that she should sit on the
scooter of Mohan Lal Verma, one of the appellants herein.
She was not initially willing to go along with Mohan Lal
Verma on his scooter, but she was threatened by Balbir
Singh-appellant, and thus under the pressure and force, she
sat on the scooter of Mohan Lal Verma. When Mohan Lal Verma
reached near petrol pump of Machlian, he stopped the scooter
and pretended to repair it. Ranjit Singh, also a teacher in
the same school and who had also been convicted by the Trial
Court and the High Court, and whose SLP has been dismissed
vide order dated 18.3.2011, arrived there on cycle and Mohan
Lal Verma-appellant forced Manjit Kaur to sit on his cycle.
As she had no other option, she sat on the cycle of Ranjit
Singh who, after reaching Gurdwara Jyoti Sarup told her
that he had to give some message to his sister, and that she
should accompany him. Manjit Kaur was not willing and
resisted to a certain extent but she was persuaded/forced to
accompany Ranjit Singh. Both went to the house of Jasbir
Kaur. By this time, Mohan Lal Verma, Amarjit Singh andPage 3
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Balbir Singh had already reached the place. Manjit Kaur was
offered tea by Jasbir Kaur and thereafter, she pushed her
into the room where Ranjit Singh committed rape upon her in
the presence of other persons as a result of which she
became unconscious.
3. Darbara Singh (PW-3), father of the prosecutrix
lodged the FIR, though at a later stage, i.e. after one
week, in the police station. The matter was investigated,
charge sheet was filed against all these persons and after
conclusion of the trial, the trial court convicted all the
aforesaid appellants as well as Ranjit Singh and Jasbir
Kaur, and awarded sentence referred to hereinabove. The High
Court, while hearing their appeals, acquitted only Jasbir
Kaur and maintained the conviction and sentence of other
persons, hence these appeals.
4. Shri V.K. Jhanji, learned senior counsel and Shri
Manoj Swarup, advocate appearing for the appellants had
raised a large number of issues pointing out various
discrepancies in the case of prosecution. The prosecutrix
(PW-l), her mother, Smt. Jaswant Kaur (PW-2) and her father,
Darbara Singh (PW-3) were examined, but since PW-3 died
during the trial, he could not be cross-examined by the
defence, and as such his evidence could not be relied upon.
Undoubtedly, PW-1 and PW-2 supported the case of the
prosecution but in the last resiled from the same.
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5. We have gone through their depositions and it is
clear that in the earlier part of their evidence, both the
witnesses had clearly implicated all these accused. The FIR
could not be lodged immediately after the incident, as there
was no one in the family to support their cause. Smt.
Jaswant Kaur (PW-2) had to send a telegram to her husband
and it is only after he reached their place, that FIR was
lodged. The victim was examined on several dates within the
period of two years and she had been consistent throughout,
that rape had been committed upon her. However, her father
died during the trial and it may be because of his death
that both the prosecutrix and her mother had resiled to a
certain extent from the prosecution case. Naturally, when
the protective shield of their family had withered away, the
victim and her mother could have come under immense pressure
from the appellants. The trial Court itself has expressed
its anguish as to how the accused had purposely delayed and
dragged the examination of the prosecutrix and finally
succeeded in their nefarious objective when the father of
the prosecutrix died and the prosecutrix resiled on the last
date of her cross-examination. The appellants belonged to a
well-to-do family, while the prosecutrix came from poorest
state of the society. Thus, a sudden change in their
attitude is understandable
6. Legally, a witness has no obligation whatsoever
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unless they agree to testify. The only real moral (and
legal) obligation is that if they agree to testify to what
they witnessed, it must be the truth as they saw it.
But the community has a legal and moral
responsibility to respond to criminal victimization in order
to preserve order and protect the community. Victims and
witnesses of crime are essential partners in this community
effort. Without their participation and cooperation as a
citizen, the criminal justice systems cannot serve the
community.
7. A witness is a responsible citizen. It is his duty
to support the case of the prosecution and should depose
what he knows about the case. In the instant case, it is
shocking that the mother of the prosecutrix had turned
hostile and she repeatedly told the court that there had
been some talks of compromise. In a case where an offence of
this nature had been committed, we fail to understand as to
how there can be a compromise between the parties. The
conduct of the mother herself is reprehensible.
8. It is a settled legal proposition that statement of
a hostile witness can also be examined to the extent that it
supports the case of the prosecution. The trial court
record reveals a very sorry state of affairs, inasmuch as no
step had ever been taken by the prosecution or the
Investigating Officer, to prevent the witnesses from turning
hostile, as it is their solemn duty to ensure that the
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witnesses are examined in such a manner that their statement
must be recorded, at the earliest, and they should be
assured full protection.
9. There is nothing on record, not even a suggestion
by the appellants to the effect that the victim had any
motive or previous enmity with the appellants, to involve
them in this case.
Unfortunately, the trial court went
against the spirit of law, while dealing with such a
sensitive case of rape of a student by her teachers, by
recording the statement of prosecutrix on five different
dates. Thus, a reasonable inference can be drawn that
defence had an opportunity to win her mother.
10 Also, the manner in which the trial court conducted
the trial is shocking, especially in view of the provisions
of Section 309(1) of the Code of Criminal Procedure, 1973
(hereinafter referred to as the ‘Cr.PC’), which reads as
under:-
"309 (1) - In every inquiry or trial the
proceedings shall be held as expeditiously as
possible, and in particular, when the examination
of witnesses has once begun, the same shall be
continued from day to day until all the witnesses
in attendance have been examined, unless the Court
finds the adjournment of the same beyond the
following day to be necessary for reasons to be
recorded:
Provided that when the inquiry or trial relates to
an offence under sections 376 to 376D of the
Indian Penal Code (45 of 1860), the inquiry or
trial shall, as far as possible, be completed
within a period of two months from the date of
commencement of the examination of witnesses”.
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11. The said proviso has been added by amendment vide
Act 5 of 2009 w.e.f. 31.12.2009, but even otherwise, it was
the duty of the trial court not to adjourn the proceedings
for such a long period giving an opportunity to the accused
to persuade or force, by any means, the prosecutrix and her
mother to turn hostile.
12. Giving recognition to the principle of speedy
trial, sub-sec (1) of section 309 Cr.P.C., envisages that
when the examination of witnesses has once begun, the same
shall be continued from day to day, until all the witnesses
in attendance have been examined. Speedy and expeditious
trial and enquiry were envisaged under section 309 Cr.P.C.
13. In Lt. Col. S.J. Chaudhary v. State (Delhi
Administration) AIR 1984 SC 618, it was held that it is most
expedient that the trial before the Court of Session should
proceed and be dealt with continuously from its inception to
its finish. Not only will it result in expedition, it will
also result in the elimination of manoeuvre and mischief. It
will be in the interest of both the prosecution and the
defence that the trial proceeds from day-to-day. It is
necessary to realise that Sessions cases must not be tried
piece-meal. Once the trial commences, except for a very
pressing reason which makes an adjournment inevitable, it
must proceed de die in diem until the trial is concluded.
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(See also: Akil @ Javed v. State of NCT of Delhi, 2012 (11)
SCALE 709).
14. In Mohd. Khalid v. State of West Bengal, (2002) 7
SCC 334, this court held that when a witness is available
and his examination-in-chief is over, unless compelling
reasons are there, the trial court should not adjourn the
matter on the mere asking. While deciding the said case, the
court placed great emphasis on the provisions of Section 309
Cr.P.C. and placed reliance on the earlier judgment in State
of U.P. v. Shambhu Nath Singh, (2001) 4 SCC 667; and N.G.
Dastane v. Shrikant S. Shivde, (2001) 6 SCC 135. In the said
case, this court has deprecated the practice of the courts
adjourning the cases without examination of witnesses when
they are in attendance. The trial court should realize that
witness is a responsible citizen who has some other work to
attend for eking out a livelihood, and a witness cannot be
told to come again and again just to suit the convenience of
the advocate concerned. Seeking adjournments for postponing
the examination of witnesses without any reason, amounts to
dereliction of duty on the part of the advocate as it
tantamounts to harassment and hardship to the witnesses.
Tactics of filibuster, if adopted by an advocate is also a
professional misconduct.
15. No procedure which does not ensure a reasonably
quick trial can be regarded as 'reasonable, fair or just'
and it would fall foul of Article 21. (Vide: Maneka GandhiPage 9
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v. Union of India & Anr., AIR 1978 SC 597; Abdul Rehman
Antulay & Ors. v. R.S. Nayak & Anr., AIR 1992 SC 1701; Vakil
Prasad Singh v. State of Bihar, AIR 2009 SC 1822; and Shri
Sudarshanacharaya v. Shri Purushottamacharya & Anr. (2012) 9
SCC 241).
16. The appellants before us and Ranjit Singh were
public servants being teachers in a government school,
prosecutrix had been a student in their custody, therefore,
provisions of Section 376(2)(b) IPC are applicable, and as
it was a case of gang rape, provisions of Section 376(2) (g)
IPC are attracted.
17. The requirement of education for girls and the
functions of a teacher have been dealt with and explained at
some length by this Court in Avinash Nagra v. Navodaya
Vidyalaya Samiti & Ors., (1997) 2 SCC 534, which read as
follows:
“11. It is in this backdrop, therefore, that the
Indian society has elevated the teacher as “Guru
Brahma, Guru Vishnu, Guru Devo Maheswaraha”. As
Brahma, the teacher creates knowledge, learning,
wisdom and also creates out of his students, men
and women, equipped with ability and knowledge
discipline and intellectualism to enable them to
face the challenges of their lives. As Vishnu,
the teacher is preserver of learning. As
Maheswara, he destroys ignorance. Obviously,
therefore, the teacher was placed on the pedestal
below the parents. The State has taken care of
service conditions of the teacher and he owes
dual fundamental duties to himself and to the
society. As a member of the noble teaching
profession and a citizen of India he should
always be willing, self-disciplined, dedicated
with integrity to remain ever a learner of
knowledge, intelligently to articulate and
communicate and imbibe in his students, as
society duty, to impart education, to bring them
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up with discipline, inculcate to abjure violence
and to develop scientific temper with a spirit of
enquiry and reform constantly to rise to higher
levels in any walk of life nurturing
constitutional ideals enshrined in Article 51-A
so as to make the students responsible citizens
of the country. Thus the teacher either
individually or collectively as a community of
teachers, should regenerate this dedication with
a bent of spiritualism in broader perspective of
the constitutionalism with secular ideologies
enshrined in the Constitution as an arm of the
State to establish egalitarian social order under
the rule of law. Therefore, when the society has
given such a pedestal, the conduct, character,
ability and disposition of a teacher should be to
transform the student into a disciplined citizen,
inquisitive to learn, intellectual to pursue in
any walk of life with dedication, discipline and
devotion with an enquiring mind but not with
blind customary beliefs. The education that is
imparted by the teacher determines the level of
the student for the development, prosperity and
welfare of the society. The quality, competence
and character of the teacher are, therefore, most
significant to mould the calibre, character and
capacity of the student for successful working of
democratic institutions and to sustain them in
their later years of life as a responsible
citizen in different responsibilities. Without a
dedicated and disciplined teacher, even the best
education system is bound to fail. It is,
therefore, the duty of the teacher to take such
care of the pupils as a careful parent would take
of its children and the ordinary principle of
vicarious liability would apply where negligence
is that of a teacher. The age of the pupil and
the nature of the activity in which he takes part
are material factors determining the degree and
supervision demanded by a teacher.
12. It is axiomatic that percentage of education
among girls, even after independence, is fathom
deep due to independence , is fathom deep due to
indifference on the part of all in rural India
except some educated people, Education to the
girl children is nations asset and foundation for
fertile human resources and disciplined family
management, apart from their equal participation
in socio-economic and political democracy. Only
of late, some middle-class people are sending the
girl children to co-educational institutions
under the care of proper management and to look
after the welfare and safety of the girl.
Therefore, greater responsibility is thrust on
the management of the schools and colleges to
protect the young children, in particular, the
growing up girls, to bring them up in disciplined
and dedicated pursuit of excellence. The teacher,
who has been kept in charge, bears more added
higher responsibility and should be more
exemplary. His/her character and conduct should
be more like Rishi and as loco parentis and such
is the duty, responsibility and charge expected
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of a teacher . The question arises whether the
conduct of the appellant is befitting with such
higher responsibilities and as he by his conduct
betrayed the trust and forfeited the faith
whether he would be entitled to the full-fledged
enquiry as demanded by him? The fallen standard
of the appellant is the tip of the iceberg in the
discipline of teaching, a noble and learned
profession; it is for each teacher and
collectively their body to stem the rot to
sustain the faith of the society reposed in them.
Enquiry is not a panacea but a nail in the
coffin….”.(Emphasis added)
18. As there was a fiduciary relationship between the
accused and the prosecutrix being in their custody and they
were trustee, it became a case where fence itself eats the
crop and in such a case the provisions of Section 114-A of
the Indian Evidence Act, 1872 (hereinafter referred to as
the ‘Evidence Act’) (which came into effect from 25.12.1983)
are attracted. Undoubtedly it is a case which provides for a
presumption against any consent in a case of rape even if
the prosecutrix girl is major, however, every presumption is
rebuttable, and no attempt had ever been made by any of the
appellants or other accused to rebut the said presumption.
19. In Vijay @ Chinee v. State of Madhya Pradesh
(2010) 8 SCC 191, this Court has placed very heavy reliance
on the provisions of Section 114-A of the Evidence Act,
making a reference that it came by an amendment in the year
1988 and further made an observation that the accused appellants in that case did not make any attempt to rebut
the said presumption. One of us (Justice B.S. Chauhan) hasPage 12
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been the author of the said judgment. In fact, the
provisions of Section 114A of the Evidence Act were not
attracted in the facts of that case for the reason that the
condition provided for its attraction were not
available/attracted in that case.
20. The issue in respect of applicability of Section
114-A of the Evidence Act has been considered by this
Court in Raju & Others v. State of Madhya Pradesh
reported in (2008) 15 SCC 133, and while deciding the
said case, reliance has been placed on the judgment in
Ranjit Hazarika v. State of Assam, (1998) 8 SCC 635,
wherein this Court has held as under:-
“……Seeking corroboration of her statement before
relying upon the same, as a rule, in such cases
amounts to adding insult to injury. Why should
the evidence of a girl or a woman who complains
of rape or sexual molestation, be viewed with
doubt, disbelief or suspicion? The court while
appreciating the evidence of a prosecutrix may
look for some assurance of her statement to
satisfy its judicial conscience, since she is a
witness who is interested in the outcome of the
charge levelled by her, but there is no
requirement of law to insist upon corroboration
of her statement to base conviction of an
accused. The evidence of a victim of sexual
assault stands almost on a part with the evidence
of an injured witness and to an extent is ever
more reliable. Just as a witness who has
sustained some injury in the occurrence, which is
not found to be self-inflicted, is considered to
be a good witness in the sense that he is least
likely to shield the real culprit, the evidence
of a victim of a sexual offence is entitled to
great weight, absence of corroboration
notwithstanding….” Page 13
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21. In view of the above, we are of the considered
opinion that it was a fit case where the provisions of
Section 114-A of the Evidence Act are attracted and no
attempt had ever been made by any of the appellants or other
accused to rebut the presumption. In such a case, we do not
see any reason to interfere with the finding of fact
recorded by the courts below.
22. So far as the conviction is concerned, as it was
case of gang rape by teachers of their student, the
punishment of 10 years rigorous imprisonment imposed by the
trial court is shocking, considering the relationship
between the parties. It was a fit case where life
imprisonment could have been awarded to all the accused
persons. Unfortunately, Smt. Jasbir Kaur had been acquitted
by the High Court, and State of Punjab did not prefer any
appeal against the same. One of the accused, Ranjit Singh,
had approached this court and his special leave petition has
been dismissed. Thus, in such circumstances, we are not in a
position even to issue notice for enhancement of the
punishment to the accused.
23. In view of the above, appeals do not have any
merit and accordingly are dismissed .
................................J.
(Dr. B.S. CHAUHAN)Page 14
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................................J.
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
NEW DELHI;
April 11, 2013.Page 15
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ITEM NO.103 COURT NO.7 SECTION IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CRIMINAL APPEAL NO(s). 878-879 OF 2011
MOHAN LAL & ANR Appellant (s)
VERSUS
STATE OF PUNJAB Respondent(s)
WITH APPEAL(CRL) NO. 884 of 2011
(With appln(s) for bail and office report)
Date: 11/04/2013 These Appeals were called on for hearing today.
CORAM :
HON'BLE DR. JUSTICE B.S. CHAUHAN
HON'BLE MR. JUSTICE FAKKIR MOHAMED IBRAHIM KALIFULLA
For Appellant(s) Mr. Manoj Swarup, Adv.
Mr. Anup Kumar, Adv.
Mr.Rutwik Panda,Adv.
Mr. V.K. Jhanji, Sr.Adv.
Ms. Jyoti Mendiratta, Adv.
Mr. Debasis Misra, Adv.
For Respondent(s) Ms. Srajita Mathur, Adv.
Mr. Kuldip Singh,Adv. (Not present)
UPON hearing counsel the Court made the following
O R D E R
Appeals are dismissed in terms of the signed
order.
(NAVEEN KUMAR) (MR. M.S. NEGI)
COURT MASTER COURT MASTER
(Signed reportable order is placed on the file)
