Rajasthan High Court - Jodhpur
Bhagwana Ram vs State on 18 April, 2013
Author: Govind Mathur
Bench: Govind Mathur
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
JUDGMENT
Bhagwana Ram @ Ranjeet Vs. State of Rajasthan
D.B. CRIMINAL APPEAL NO. 832/2005
against the judgment dated 16.9.2005
passed by learned Special Judge, SC/ST
(Prevention of Atrocities) Act, Churu in
Special Sessions Case No. 20/2004.
Date of Judgment :: 18.4.2013
PRESENT
HON'BLE MR.JUSTICE GOVIND MATHUR
HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA
Mr. Pappu Sangwa, for the appellant.
Mr. K.R.Bishnoi, Public Prosecutor
....
BY THE COURT : (PER AHLUWALIA, J.)
Bhagwan Ram @ Ranjeet son of Haku Ram has preferred the present appeal to assail the impugned judgment of conviction dated 16.9.2005 and order of sentence of even date whereby he was held guilty of offence under Section 376 I.P.C. (hereinafter referred to as 'the Code') and Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Act') and was sentenced to ten years' rigorous imprisonment and to pay a fine of Rs.500/-, in default thereof to undergo rigorous imprisonment for one month for the offence punishable under Section 376 I.P.C. He was also sentenced to undergo life imprisonment and pay a fine of Rs.1000/-, in default 2 to undergo rigorous imprisonment for two months for offence punishable under Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act, 1989.
The criminal proceedings were set into motion by Gopal Ram (PW-1), who on 30.3.2004 at about 11:30 pm appeared before Pushpendra Jhajhadia (PW-12) SHO, Police Station, Salasar and made a statement (Exh.P/1). In the statement Gopal Ram (PW-1) stated that he had gone to Maglona village to do farming at the field of his brother. At about 5:00 pm his nephew Manoj came and told that he has been called home for an urgent work. When they reached home, his daughter aged 7 years (name withheld to protect identity and hereinafter called as 'the prosecutrix') stated that today in the afternoon at about 1:00 pm she had gone to the field of Girdhari to ease herself. After easing herself and washing the hands she was returning, then accused-appellant Bhagwana Ram caught hold of her hand and removed her penty. He thereafter unzipped his pent and committed forcible rape, due to which blood started oozing out. Due to raising of shrieks, his grand-mother Mohini reached at the spot and she also raised noise. On this, the accused decamped from the spot. The maternal grand-mother brought her to home where the prosecutrix disclosed the incident to the maternal grand-mother, wife of the complainant and other persons. The complainant gathered his family members and on their advise proceeded to Police Station to lodge report. 3
The above-said FIR was investigated and the appellant was sent for trial by the Investigating Agency after submission of report under Section 173 Cr. P.C., in the court of Special Judge, SC/ST (Prevention of Atrocities), Churu. The learned Special Judge, SC/ST Court charged the appellant for the offence under Section 376 I.P.C. and Section 3(2)(v) of SC/ST Act. The charge stated that on 30.3.2004 at about 1:00 pm the appellant committed forcible rape upon a 7 year child belonging to scheduled caste community and has committed offence punishable under Section 376 I.P.C. and Section 3(2)(v) of SC/ST Act. The appellant pleaded not guilty and claimed trial.
The complainant Gopal Ram (father of prosecutrix) appeared as PW-1. He reiterated as to what was stated by him in the statement (Exh.P/1) to the police. Defence could not make any dent in the cross-examination and the witness in categoric terms disclosed that upon the information received of an urgent work he came to his house where the incident was narrated to him by his daughter i.e. the prosecutrix. Smt. Mohini Devi (PW-2) stated that she had come to the village of the prosecutrix for her treatment. She was returning to her village when she heard shrieks of prosecutrix and was attracted to the spot, where she saw the underwear of prosecutrix stood removed and the accused was also standing there with his pent removed. On seeing the witness, the accused ran away from the spot. At that time the prosecutrix disclosed to her that the 4 accused has committed rape. She also saw blood oozing out from the private parts of the prosecutrix. In cross-examination she claimed herself to be 'bhua' of the mother of the prosecutrix. Smt. Geeta (PW-3) mother of the prosecutrix also stated that the incident was disclosed to her by her daughter. She was weeping and blood was oozing out from her private parts and the underwear of the prosecutrix was also blood-stained. This witness further stated that she had sent Manoj to call father of the prosecutrix.
The prosecutrix, aged 7 years appeared as PW-4. Various questions were put to her to assess her competence to depose. The court having satisfied itself examined the prosecutrix, who was aged 7 years. She identified the appellant in court as Bhagwana. She stated that she was raped by the appellant, before that she made protest, accused told her that she would be beaten. She further stated that blood started oozing out from her private parts. She further stated that she returned home alongwith Mohini, who was maternal grand-mother in relation. Her father was called and she narrated the incident to him, who then brought her to Police Station. Her underwear was blood- stained. The prosecutrix was medically examined by Dr. Gunjan Goswami (PW-8). The observation made in the medico-legal examination report (Exh.P/8) reads as under :- 5
"Generative Organs -
No pubic hairs present.
-Labia majora stained with blood. Discharge -foul smelling discharge. Injury size 1.5 cm x 1 cm present on labia minora.
-Vulva injured. Reddened, Tender
-Hymen ruptured.
Irregularly torn, bleeding. On touch a tear size 5cm x .5cm on left wall of vagina
-victim is 7 yr old female child. Child generative organs not developed but sign of injury is there
-perineum torn 1st degree.
-Abraisan on Lt side of mouth. Lower lip 1 cm black coloured. No smelling of lip or any other evidence of injury on mouth."
Furthermore, following injuries were found on the person of the prosecutrix :-
Injury-
"Ext. injury in the form of abrasion. On Lt. side of mouth. Lt side of lower lip 1 cm lower lip black coloured. Not any other injury in the form abrasion bruises or laceration over the mamal cheeks. thigh, injury on genital organs -> the described in generative organs on page No.2"
PW-9 Dr. Arun Goswami on 31.3.2004 had medically examined the accused (present appellant). He found following injuries on his person :-
"Local examination of body -> (1)Abrasion 2cm x 1 cm back of chest 6"
below the Rt. shoulder.
(2)Abrasion 3 cm x .5cm x .5 cm back of chest Rt side 2 cm away from 1st injury.
(3)Bruises - 2 cm x 1 cm back side of Rt elbow joint.
(4)Abrasion 4 cm x 1 cm x 1 cm - upper side of Lt thigh laterally."
6This witness has further opined that the accused-appellant was capable of performing sexual act. This witness also proved (EXh.P/12) report of Ossification Test of the prosecutrix conducted by Dr. Uttam Chand. Dr. Arun Goswami (PW-9) stated that he had seen Dr. Uttam Chand performing his duties and, therefore, was conversant with the writing of Dr. Uttam Chand. As per the report of Ossification Test, the age of prosecutrix was found between 6 to 7 years.
The prosecution in all examined 12 witnesses. We have noticed the evidence of material witnesses, without detailing the evidence of other witnesses who had participated in investigation and had proved the link evidence. However, it will be necessary to make reference to the testimony of PW-10 Rampal Addl. Superintendent of Police, who had conducted the investigation. He stated that after registration of the case on 31.3.2004 he visited the place of occurrence and had prepared the rough site- plan at the instance of Smt. Mohini Devi. Furthermore, he effected the arrest of the accused, who made a disclosure statement and got his underwear recovered.
After the prosecution closed its evidence, statement of accused was recorded under Section 313 Cr. P.C., and all incriminating evidence were put to him. The accused-appellant had pleaded false implication on the ground that he had given an Ox to Gopal for agricultural purpose and Gopal had agreed to 7 return the Ox after cultivation or to give money after selling the same. It was stated that Gopal having sold the Ox had not given the money and on the annoyance expressed by the appellant, Gopal the complainant and father of the prosecutrix has falsely implicated the appellant. No witness was examined in defence.
We have heard learned counsel Shri Pappu Sangwa appearing for the appellant. He contended that the appellant is a victim of false implication. Counsel has highlighted the statement made by the accused under Section 313 Cr. P.C., and urged that since there was a dispute between the father of prosecutrix and him, he has been falsely implicated. We are not able to appreciate the contentions raised before us. In support of the plea raised under Section 313 Cr. P.C., no witness has been examined in defence. Mere bald oral assertion has no legs to stand. The prosecutrix is a child aged 7 years. Immediately after the incident of rape Smt. Mohini Devi (PW-2) was attracted to the spot. She is a witness to the removal of underwear of the prosecutrix and the accused standing there with his pent removed. She has seen blood oozing out from the private parts of the prosecutrix. The prosecutrix was medically examined and the Medico-Legal Examination Report of the prosecutrix conclusively prove that she was subjected to forcible sexual intercourse. Her labia majora was stained with blood. There were injury on labia minora. Her vulva was injured, reddened, tender and hymen was ruptured. There were irregular torn, 8 bleeding on the left wall of vagina. Abraison on left side of mouth. Lower lip 1 cm was black coloured. The medical evidence corroborates the ocular version. Not only there were injuries on the person of the prosecutrix but on the next date of the incident the accused was also medically examined and there were injuries on his person also. This confirms participation of the appellant in the crime.
It is difficult to believe that the parents of the girl i.e. Gopal Ram (PW-1) and Smt. Geeta (PW-3) will put honour of the family at stake for settling minor dispute, as has been alleged by the appellant. Taking into account testimony of prosecutrix, medical evidence and the statement made by Smt. Mohini Devi (PW-2), we have no hesitation to hold that the trial court has rightly found the appellant guilty of offence under Section 376 I.P.C. In Dinesh @ Buddha Vs. State of Rajasthan reported in AIR 2006 (SC) 1267: 2006(3) SCC 771, Hon`ble the Supreme Court has observed as under :-
"The offence of rape occurs in Chapter XVI of IPC. It is an offence affecting the human body. In that Chapter, there is a separate heading for "Sexual offences", which encompass Sections 375, 376, 376A, 376B, 376C and 376D I.P.C. "Rape" is defined in Section 375 I.P.C.
Sections 375 and 376 I.P.C. have been
substantially changed by Criminal Law
(Amendment) Act, 1983, and several new 9 sections were introduced by the new Act, i.e. 376A, 376B, 376C and 376D. The fast sweeping changes introduced reflect the legislative intent to curb with iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is 'the ravishment of a woman, without her consent, by force, fear or fraud', or as 'the carnal knowledge of a woman by force against her will'. 'Rape or Raptus' is when a man hath carnal knowledge of a woman by force and against her will (Co.Litt. 123 b); or, as expressed more fully, 'rape is the carnal knowledge of any woman, above the age of particular years, against her will; or of a woman child, under that age, with or against her will'. (Hale P.C. 628) The essential words in an indictment for rape are rapuit and carnaliter cognovit; but carnaliter cognovit, nor any other circumlocution without the word rapuit, are not sufficient in a legal sense to express rape: (1 Hen. 6, 1a, 9 Edw. 4, 26 a (Hale P.C.628). In the crime of rape, 'carnal knowledge' means the penetration to any the slightest degree of the male organ of generation (Stephens Criminal Law, 9th Ed., p.262). In "Encyclopedia of Crime and Justice" (Volume 4, page 1356), it is stated "......even slight penetration is sufficient and emission is unnecessary". In Halsburys' Statutes of England and Wales (Fourth Edition) Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse. It is violation, with violence, of the private person 10 of a woman, an outrage by all means. By the very nature of the offence it is an obnoxious act of the highest order.
The physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery.
It is to be noted that in sub-section(2) of Section 376 I.P.C. more stringent punishment can be awarded taking into account the special features indicated in the said sub-section. The present case is covered by Section 376(2)(f) IPC i.e. when rape is committed on a woman when she is under 12 years of age. Admittedly, in the case at hand the victim was 8 years of age at the time of commission of offence.
In the Indian Setting refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by 11 the society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated. Just as a witness who has sustained an injury, which is not shown or believed to be self-inflicted, is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case. The observations of Vivian Bose, J. in Rameshwar v. The State of Rajasthan (AIR 1952 SC 54) were:
"The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge...".
The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim are 12 irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court. There are no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum on the respondent. To show mercy in the case of such a heinous crime would be a travesty of justice and the plea for leniency is wholly misplaced".
In the present case, the prosecutrix was aged 7 years, thus, the case in hand is covered by Section 376(2)(f) I.P.C., therefore, the maximum sentence prescribed for such a heinous offence is ten years, which has rightly been awarded by the trial court. While holding conviction of the appellant under Section 376(2)(f) I.P.C., we maintain the sentence of ten years awarded to the appellant.
13
In Dinesh @ Buddha (supra) rape was committed upon a child of age of 8 years and in that case the prosecutrix was also a member of scheduled caste. The Court considered the application of provisions of SC/ST (Prevention of Atrocities) Act, 1989 and held that merely because a child or a woman belonging to scheduled caste/ scheduled tribe was ravished, that shall not constitute offence under the provisions of SC/ST (Prevention of Atrocities) Act, 1989. In the present case, there is no evidence available that the appellant knew that the child was a member of scheduled caste community. There is also no evidence that the appellant intended to humiliate, insult, intimidate or overawe a member of scheduled caste/scheduled tribe community. In Dinesh @ Buddha (supra) it was held as under :-
At this juncture it is necessary to take note of Section 3 of the Atrocities Act. As the Preamble to the Act provides 'the Act has been enacted to prevent the commission of offences of atrocities against the members of the Scheduled Castes and Scheduled Tribes. The expression 'atrocities' is defined in Section 2 of the Atrocities Act to mean an offence punishable under Section 3. The said provision so far relevant reads as follows:
"3(2)(v): Punishments for offences of atrocities # (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe, -14
xxx xxx xxx
(v) commits any offence under the Indian
Penal Code punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;
xxx xxx xxx"
Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of Scheduled Castes and Scheduled Tribes".
Relying upon the observation of the Hon`ble Supreme Court in Dinesh @ Buddha Vs. State of Rajasthan (supra) we are also of the firm opinion that the prosecution has not been able to prove the ingredients of the offence under Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act, 1989. Consequently, the conviction of the appellant on this count is set aside and he is acquitted of offence under Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act, 1989.
As a result of our discussion, we partly accept the appeal maintaining the sentence and conviction of appellant for the offence under Section 376 I.P.C., however, conviction of the 15 appellant for the offence under Section 3(2)(v) of SC/ST (Prevention of Atrocities) Act, 1989 is set aside. (KANWALJIT SINGH AHLUWALIA), J. (GOVIND MATHUR), J. Sanjay 16