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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  and

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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 Gandhi

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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) has

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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….”

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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)

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................................J. (FAKKIR MOHAMED IBRAHIM KALIFULLA)

NEW DELHI; April 11, 2013.

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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)