MALKIAT SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) APPELLANTS herein, having been found guilty of offence under Sections 376 and 342 Indian Penal Code, have been sentenced to undergo rigorous imprisonment for a period of five years each for the offence punishable under Section 376 Indian Penal Code as also to pay fine of Rs. 2000/- each, and in default thereof, to further undergo rigorous imprisonment for a period of one year. They have also been sentenced to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 342 Indian Penal Code.

(2.) BRIEF facts of the case giving rise to the present case are that Raj Kumari, aged 23 years, had come to Tanda, on 1.5.1990 to take her M.A. Panjabi Examination as a private candidate. She after taking her examination is stated to have gone to Talwara with one Rajinder Singh, PW4, stated to be her family relation, to meet somebody. She, however, could not find the person to whom she wanted to meet and in this process, they got late and were unable to get the last bus. In the circumstances aforesaid, she had no choice but for to stay in hotel. She alongwith her relation Rajinder Singh chose hotel Ashiana for their stay at night, least realising that she shall be subjected to rape by the appellants at dead of night. It is the prosecution case that the appellants herein, one after the other committed rape upon her regarding which, she made complaint Ex. PH in writing, which was endorsed by ASI Jagjit Singh, PW7, at 12.35 A.M. and on the basis of which, formal FIR Ex. PH/2 came to be recorded at 12.50 A.M., i.e., on the intervening night of 1/2.5.1990.

(3.) THE only question that needs adjudication by this Court in the context of the facts and circumstances of the present case is as to whether when two eye witnesses, one of whom, at least, is totally independent, have fully supported the prosecution case, would the contention raised by learned counsel for the appellants that since the prosecutrix did not support the case insofar as the identity of the accused is concerned, the whole prosecution case has to be rejected, has any merit ? This Court has given its thoughtful consideration to the contention of learned counsel, as noted above, but is of the view that when sufficient and ample corroboration comes from independent sources with regard to prosecution case, the Court can even rely upon the statement of a witness, who might have been declared hostile, particularly, when the said witness deviates from his/her version to a limited extent. It may be recalled at this stage that the prosecutrix had adhered to her complaint Ex. PH made before the police with regard to the entire occurrence upto the staying in the Ashiana hotel and being raped by two persons. She only deviates insofar as the identity of the accused is concerned. It is a case where she had back-tracked from her written complaint, wherein she had named the accused and had also stated that one was the owner of the hotel and the other was the employee. The fact that she was raped by the accused stands corroborated by PW4 Rajinder Singh and PW5 Darshan Singh, one of whom, i.e., Darshan Singh is absolutely an independent witness. A Division Bench of this Court in Om Parkash v. State of Haryana, 1995(1) RCR(Criminal) 69, held that statement of a hostile witness could be accepted to the limited extent at least to fix the place of occurrence as well as to prove the presence of PWs and that evidence of a hostile witness remains admissible in trial and there is no legal bar to base conviction upon his testimony if corroborated by other reliable evidence. The same view has been taken by the Hon'ble Supreme Court in Koli Lakhmanbhai Chanabhai v. State of Gujarat, 2000(1) RCR(Criminal) 26. In the present case the corroboration has not only come from the two eye-witnesses but also from medical evidence.