Himachal Pradesh High Court
Bansari Lal vs State Of Himachal Pradesh on 4 July, 2016
Author: Sanjay Karol
Bench: Sanjay Karol, Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Criminal Appeal No. 363 of 2015
Judgment reserved on : 27.6.2016
Date of Decision : July 4 , 2016
Bansari Lal ...Appellant
of
Versus
State of Himachal Pradesh ...Respondent
Coram:
rt
The Hon'ble Mr. Justice Sanjay Karol, Judge
The Hon'ble Mr. Justice, Ajay Mohan Goel, Judge.
Whether approved for reporting? 1
Yes.
For the appellant : Mr. H. S. Rangra, Advocate, for the appellant.
For the respondent : Mr. Vikram Thakur, Deputy Advocate General
with Mr. J. S. Guleria, Asstt. A.G. for the
respondent-State.
Sanjay Karol, J.
Assailing the judgment dated 6.4.2015/7.4.2015, passed by learned Special Judge, Kullu, Distt. Kullu, H.P. , in Sessions Trial No. 43 of 2014, titled as State of H.P. vs. Bansari lal, whereby the accused stands convicted of the Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 2offences punishable under the provisions of Section 376 (2)(i) of the Indian Penal Code (hereinafter referred to as the .
IPC) and Section 4 of the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act) and sentenced to undergo rigorous imprisonment for a period of 10 years and pay fine of `10,000/- and in default of thereof to undergo rigorous imprisonment for a period of two months for offence under Section 376 (2)(i) of the IPC;
rt and rigorous imprisonment for a period of 10 years and pay fine of `10,000/- and in default thereof to undergo rigorous imprisonment for a period of two months for offence under Section 4 of the POCSO Act, he has filed the present appeal under the provisions of Section 374 (2) of the Code of Criminal Procedure, 1973.
2. It is the case of the prosecution that Sushma Devi (PW-1) was married to Asha Dutt some time in the year 1996 through whom she gave birth to two daughters Sunita (PW-6) and the prosecutrix (PW-2). Sometime in the year 2006, they separated and the marriage came to be dissolved by divorce when Sushma Devi started residing at Bhunter whereas the daughters continued to reside with ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 3 their father at village Deori. Accused Bansari Lal, brother of Asha Dutt, who also resides in the very same village had .
two sons, one of whom used to reside in a different village, with his maternal aunt. On 2.2.2014, one of the sons of the accused namely Chand Parkash took the prosecutrix to his house where both played together. While prosecutrix was of sleeping with Chand Parkash in one of the rooms, in the night, accused carried the prosecutrix to his bed and rt subjected her to forcible sexual intercourse. Such incident came to be repeated even the following day i.e. 3.02.2014.
Prosecutrix narrated the incident to her elder sister (PW-6) who informed her father, grand mother and other members of the family. However they instructed her not to talk to anyone and that in future they would take care of the prosecutrix. On 9.02.2014 Sunita (PW-6) telephonically requested her mother to meet her and upon meeting, disclosed the incident to her, where after, the matter came to be reported to the police and F.I.R. No. 11/2014, dated 9.2.2014 (Ext. PW-1/A) came to be registered against the accused at Police Station Banjar (Seraj), Distt. Kullu, H.P. under the provisions of Sections 376 IPC and 4 POCSO Act.
::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 4Police machinery was swung into action and the prosecutrix immediately got medically examined from Dr. Anu Devi .
(PW-11) who issued MLC (Ext. PW-11/A). Investigation so conducted by Const. Mamta (PW-7) and SHO Chint Ram (PW-10) revealed that at the time of occurrence of the crime, prosecutrix who was studying in the sixth standard of was a minor. During the course of investigation, on the basis of disclosure statement (Ext. PW-7/A) so made by the rt accused, who stood arrested by the police, incriminating articles in the form of clothes, blanket, bed sheet etc. came to be recovered. Clothes of the prosecutrix were also taken into possession. The incriminating articles were sent to the Regional Forensic Science Laboratory, Mandi, H.P. for chemical analysis and report (Ext. PW-10/F) taken on record. With the completion of investigation, which prima facie revealed complicity of the accused in the alleged crime, challan was presented in the Court for trial.
3. Accused was charged for having committed offences punishable under the provisions of Section 376-G IPC and Section 4 POCSO Act , to which he did not plead guilty and claimed trial.
::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 54. In order to prove its case, in all, prosecution examined twelve witnesses and statement of the accused .
under Section 313 Cr. P.C. also recorded, in which he took plea of innocence and false implication. No evidence in defence was led by the accused.
5. Appreciating the material on record, including of the testimonies of the witnesses, trial Court convicted the accused of rt the charged offences and sentenced as aforesaid. Hence, the present appeal..
6. We have extensively heard learned counsel appearing on both the sides and perused the record.
7. Mr. H.S. Rangra, learned counsel for the appellant assails the judgment on the following grounds:
(i) Inordinate delay in reporting the matter to the police, more so in the absence of any record pertaining to the telephonic conversion which Sunita (PW-6), sister of the prosecutrix had had with her mother Sushma Devi (PW-1), remains unexplained, rendering the prosecution case to be fatal; (ii) Contradictions and improvements in the testimonies of the prosecution witnesses have rendered their statements to be unbelievable and the witnesses ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 6 unreliable; (iii) Ocular version stands contradicted through documentary evidence; (iv) Non association of independent .
witnesses has rendered the prosecution case to be doubtful;
(v) Medical evidence does not corroborate and support the prosecution case of sexual intercourse; and (vi) Even by way of link/scientific evidence, prosecution case stands of falsified.
8. In support, learned counsel has referred to and rt relied upon the following decisions: Krishan Kumar Malik vs. State of Haryana, (2011) 7 SCC 130; Jai Krishna Mandal & another vs. State of Jharkhand, (2011) 3 SCC (Cri) 842;
State of Andhra Pradesh vs. Jalapathi Subbarayudu & others, (2010) 15 SCC 472; State of Himachal Pradesh vs. Ajay Kumar, 2010 Cri. L.J. 2990; Rama Nand Gandwal vs. State of Himachal Pradesh, 2010 Cri. L.J. 3005; Malkiat Singh & Anr. etc. vs. State of Himachal Pradesh, 2010 Cri. L.J. 635; and judgment dated 23.3.2011, passed by this Court in Cr.
Appeal No. 220 of 2001, titled as State of H.P. vs. Rajinder Singh.
9. On the other hand, Mr. Vikram Thakur learned Deputy Advocate General assisted by Mr. J. S. Guleria, ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 7 learned Assistant Advocate General, appearing for the respondent-State, have supported the judgment for the .
reasons set out therein.
10. At this juncture we deem it appropriate to deal with the statement of law on the point.
11. In Indian Woman Says Gang-Raped on Orders of of Village Court Published in Business and Financial News Dated 23.10.2014, In Re, (2014) 4 SCC 786, the Apex Court rt has highlighted the need for having an effective State police machinery for curbing the menace of rape, for such crime is not only in contravention of the domestic laws, but is also in direct breach of obligations under International Law, treaties whereof stand ratified by the State, which is under an obligation to protect its women from any kind of discrimination.
12. The Apex Court has highlighted the need for prompt disposal of cases of crime against women and children. (Rajkumar v. State of Madhya Pradesh, (2014) 5 SCC 353).
13. In Shyam Narain v. State (NCT of Delhi), (2013) 7 SCC 77, the Apex Court held as under:
::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 8"27. Respect for reputation of women in the society shows the basic civility of a civilised society. No member of society can afford to conceive the idea .
that he can create a hollow in the honour of a woman. Such thinking is not only lamentable but also deplorable. It would not be an exaggeration to say that the thought of sullying the physical frame of a woman is the demolition of the accepted civilized norm, i.e., "physical morality". In such a sphere, impetuosity has no room. The youthful excitement has no place. It should be paramount in everyone's mind that, on one hand, the society as a whole of cannot preach from the pulpit about social, economic and political equality of the sexes and, on the other, some pervert members of the same society dehumanize the woman by attacking her body and ruining her chastity. It is an assault on the rt individuality and inherent dignity of a woman with the mindset that she should be elegantly servile to men. Rape is a monstrous burial of her dignity in the darkness. It is a crime against the holy body of a woman and the soul of the society and such a crime is aggravated by the manner in which it has been committed. We have emphasised on the manner because, in the present case, the victim is an eight year old girl who possibly would be deprived of the dreams of "Spring of Life" and might be psychologically compelled to remain in the "Torment of Winter". When she suffers, the collective at large also suffers. Such a singular crime creates an atmosphere of fear which is historically abhorred by the society. It demands just punishment from the court and to such a demand, the courts of law are bound to respond within legal parameters. It is a demand for justice and the award of punishment has to be in consonance with the legislative command and the discretion vested in the court."
14. In Narender Kumar v. State (NCT of Delhi), (2012) 7 SCC 171, the apex Court has cautioned the Court to adopt the following approach:
::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 9"The courts while trying an accused on the charge of rape, must deal with the case with utmost sensitivity, examining the broader probabilities of a .
case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of the witnesses which are not of a substantial character."
15. The Apex Court in Munna v. State of Madhya Pradesh, (2014) 10 SCC 254, has reiterated the principle of that testimony of prosecutrix is almost at par with an immediate witness and can be acted upon without corroboration.rt
16. The Apex Court in Madan Gopal Makkad v. Naval Dubey and another, (1992) 3 SCC 204, has held as under:
"34. A medical witness called in as an expert to assist the court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of the symptoms found on examination. The expert witness is expected to put before the court all materials inclusive of the data which induced him to come to the conclusion and enlighten the court on the technical aspect of the case by explaining the terms of science so that the court although, not an expert may form its own judgment on those materials after giving due regard to the expert's opinion because once the expert's opinion is accepted, it is not the opinion of the medical officer but of the court.
35. Nariman, J. in Queen v. Ahmed Ally, (1989) 11 Sutherland WR Cr 25, while expressing his view a on medical evidence has observed as follows:
"THE evidence of a medical man or other skilled witnesses, however, eminent, as to what he thinks may or may not have taken place under particular combination of circumstances, ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 10 however, confidently, he may speak, is ordinarily a matter of mere opinion."
.
36. Fazal Ali, J. in Pratap Misra v. State of Orissa, (1977 3 SCC 41, has stated thus:
"... [l]t is well settled that the medical jurisprudence is not an exact science and it is indeed difficult for any Doctor to say with precision and exactitude as to when a particular injury was caused ... as to the exact time when the appellants may have had sexual of intercourse with the prosecutrix."
37. We feel that it would be quite appropriate, in this context, to reproduce the opinion expressed by Modi in Medical Jurisprudence and Toxicology (Twenty-first rt Edition) at page 369 which reads thus:
"THUS to constitute the offence of rape it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case the medical officer should mention the negative facts in his report, but should not give his opinion that no rape had been committed. Rape is crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is that there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one. "
38. In Parikh 's Textbook of Medical Jurisprudence and Toxicology, the following passage is found:
::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 11"SEXUAL intercourse. In law, this term is held to mean the slightest degree of penetration of the vulva by the penis with or without emission .
of semen. It is therefore quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains."
39. In Encyclopedia of Crime and Justice (Vol. 4 at page 1356, it is stated:
"... [E]ven slight penetration is sufficient and of emission is unnecessary."
40. In Halsbury's Statutes of England and Wales, (Fourth Edition), Volume 12, it is stated that even the slightest degree of penetration is sufficient to prove rt sexual intercourse within the meaning of S. 44 of the Sexual Offences Act, 1956. Vide (1) R. v. Hughes, (1841) 9 C&P 752, (2) R. v. Lines and R. v. Nicholls, (1844) 1 Car & Kir 393.
41. See also Harris's Criminal Law, (Twenty-second Edition) at page 465.
42. In American Jurisprudence, it is stated that slight penetration is sufficient to complete the crime of rape. Code 263 of Penal Code of Califomia reads thus:
"RAPE; essentials Penetration sufficient. The essential guilt of rape consists in the outrage to the person and feelings of the victim of the rape. Any sexual penetration, however slight, is sufficient to complete the crime."
43. The First Explanation to S. 375 of Indian Penal Code which defines 'Rape' reads thus:
"EXPLANATION.PENETRATION is sufficient to constitute the sexual intercourse necessary to the offence of rape."
44. In interpreting the above explanation whether complete penetration is necessary to constitute an offence of rape, various High courts have taken a consistent view that even the slightest penetration is ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 12 sufficient to make out an offence of rape and the depth of penetration is immaterial. Reference may be made to (1) Natha v. Emperor, (1925) 26 CrLJ .
1185, (2) Abdul Majid v. Emperor, AIR 1927 Lah 735(2), (3) Mst. Jantan v. Emperor, (1934) 36 Punj LR 35, (4) Ghanashyam Misra v. State, 1957 CriLJ 469, (5) Das Bernard v. State, 1974 CriLJ 1098. In re Anthony, AIR 1960 Mad 308 it has been held that while there must be penetration in the technical sense, the slightest penetration would be sufficient and a complete act of sexual intercourse is not at all necessary. In Gour's The Penal Law of India, 6th Edn.
of 1955 (Vol. II), page 1678, it is observed, "Even vulval penetration has been held to be sufficient for a conviction of rape." "
17. rt Also, it is a settled principle of law that absence of injuries on the external or internal parts of the victim by itself cannot be a reason to disbelieve the testimony of the prosecutrix. [Mukesh v. State of Chhattisgarh, (2014) 10 SC
327); State of Haryana v. Basti Ram, (2013) 4 SCC 200;
O.M. Baby (Dead) by Legal Representative v. State of Keral, (2012) 11 SCC 362; and State of U.P. v. Chhotey Lal, (2011) 2 SCC 550]
18. The Apex Court in Puran Chand v. State of Himachal Pradesh, (2014) 5 SCC 689, observed that even non-rupture of hymen itself would be of no consequence and rape could be held to be proved even if there is slight penetration.
::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 1319. Mere fact that hymen is intact or that there is no actual wound on the private part of the prosecutrix is not .
conclusive of the fact that prosecutrix was not subjected to rape. (Radhakrishna Nagesh v. State of Andhra Pradesh, (2013) 11 SCC 688).
20. Reiterating its earlier view in Mohd. Iqbal v. State of of Jharkhand, (2013) 14 SCC 481; Narender Kumar v. State (NCT of Delh), (2012) 7 SCC 171, the Apex Court in Mukesh rt v. State of Chhattisgarh, (2014) 10 SC 327, has held that sole testimony of prosecutrix is sufficient to establish commission of rape, even in the absence of any corroborative evidence.
21. In Radhakrishna Nagesh v. State of Andhra Pradesh, (2013) 11 SCC 688, the apex Court held as under:
"33. It will be useful to refer to the judgment of this Court in the case of O.M. Baby v. State of Kerala, (2012) 11 SCC 362, where the Court held as follows:-
"17. ..... '16. A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 14 more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is .
interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the of prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the rt prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.'
18. We would further like to observe that while appreciating the evidence of the prosecutrix, the court must keep in mind that in the context of the values prevailing in the country, particularly in rural India, it would be unusual for a woman to come up with a false story of being a victim of sexual assault so as to implicate an innocent person. Such a view has been expressed by the judgment of this Court in the case of State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 and has found reiteration in a recent judgment in Rajinder @ Raju v. State of H.P., (2009) 16 SCC 69, para 19 whereof may be usefully extracted:::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 15
'19. In the context of Indian culture, a woman - victim of sexual aggression - would rather suffer silently than to falsely .
implicate somebody. Any statement of rape is an extremely humiliating experience for a woman and until she is a victim of sex crime, she would not blame anyone but the real culprit. While appreciating the evidence of the prosecutrix, the courts must always keep in mind that no self-respecting woman would put her honour at stake by falsely of alleging commission of rape on her and therefore, ordinarily a look for corroboration of her testimony is unnecessary and uncalled for. But for high improbability in the prosecution rt case, the conviction in the case of sex crime may be based on the sole testimony of the prosecutrix. It has been rightly said that corroborative evidence is not an imperative component of judicial credence in every case of rape nor the absence of injuries on the private parts of the victim can be construed as evidence of consent.' ""
22. In Rameshwar v. The State of Rajasthan, AIR 1952 SC 54, the Supreme Court has held that previous statement of the raped girl to her mother, immediately after the occurrence, is not only admissible and relevant as to her conduct, but also constitutes corroboration of her statement under the provisions of section 157 of the Evidence Act. In order to come to the aforesaid conclusions, illustration (j) to section 8 of the Evidence Act was relied upon. In that case, the victim, named Purni, was 7/8 years old. She was not ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 16 administered oath, but was held to be competent witness and, therefore, duly examined and believed.
.
23. In State of Punjab versus Jagir Singh (1974) 3 SCC 277 the apex Court held that:-
"A criminal trial is not like a fairy tale wherein one is free to give fight to one's imagination and fantasy. It of concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real rt life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the Courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."
(Emphasis supplied)
24. The Apex Court in State of Rajasthan versus N. K. THE ACCUSED (2000) 5 SCC 30 has held that:-
"... ...It is true that the golden thread which runs throughout the cobweb of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 17 same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited .
acquittal does no good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the Court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstances or by resorting to of technicalities or by assuming doubts and giving benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be a rt reasonable doubt and not an excuse for finding in favour of acquittal. An unmerited acquittal encourages wolves in the society being on prowl for easy prey, more so when the victims of crime are helpless females. It is the spurt in the number of unmerited acquittals recorded by criminal Courts which gives rise to the demand for death sentence to the rapists. The Courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women."
(Emphasis supplied)
25. It is also a settled position of law that victim of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. If for some reason Court is hesitant to place implicit reliance on the testimony of the victim it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 18 an accomplice. The nature of evidence required to lend assurance to the testimony of the victim must necessarily .
depend on the facts and circumstances of each case. If the totality of the circumstances appearing on the record of the case disclose that victim does not have a strong motive to falsely involve the person charged, Court should ordinarily of have no hesitation in accepting her evidence. [State of Maharashtra versus rt Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 and O. M. Baby (dead) by Legal Representative vs. State of Kerala, 2012 (11) SCC 362].
26. The Apex Court in State of Punjab versus Gurmit Singh and others, (1996) 2 SCC 384 has held that:-
"... ...The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 19 tendency to conceal outrage of sexual aggression are factors which the Courts should not overlook. The .
testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires of confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to rt 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 ?
---- --- ---
"21. Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour.
It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 20 female. The Court, therefore, shoulder a great responsibility while trying an accused on charges of .
rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable of prosecution case." ... ...
(Emphasis supplied) The Court again reiterated its view in Siriya @ Shri Lal vs. State rt of Madhya Pradesh, (2008) 8 SCC 72.
27. In State of M.P. v. Dharkole alias Govind Singh and others, (2004) 13 SCC 308 the Apex Court has held that:-
"9. ... Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts; the 'credit' of the witnesses; their performance in the witness-box; their power of observation etc. Then the probative value of such ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 21 evidence becomes eligible to be put into the scales for a cumulative evaluation."
.
"10. A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to 'proof' is an of exercise particular to each case?
"The simple multiplication rule does not apply if the separate pieces of evidence are dependent. rt Two events are dependent when they tend to occur together, and the evidence of such events may also be said to be dependent. In a criminal case, different pieces of evidence directed to establishing that the defendant did the prohibited act with the specified state of mind are generally dependent. A junior may feel doubt whether to credit an alleged confession, and doubt whether to infer guilt from the fact that the defendant fled from justice. But since it is generally guilty rather than innocent people who make confessions and guilty rather than innocent people who run away, the two doubts are not to be multiplied together. The one piece of evidence may confirm the other."
"11. Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence, or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 22 merely possible doubt; but a fair doubt based upon reason and commonsense. It must grow out of the .
evidence in the case."
[Emphasis supplied]
28. In Dattu Ramrao Sakhare v. State of Maharashtra (1997 (5) SCC 341) it held that:
'5. .....A child witness if found competent to depose of to the facts and reliable one such evidence could be the basis of conviction. In other words even in the absence of oath the evidence of a child witness can rt be considered under Section 118 of the Evidence Act provided that such witness is able to understand the answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be a reliable one and his/her demeanour must be like any other competent witness and there is no likelihood of being tutored'. The decision on the question whether the child witness has sufficient intelligence primarily rests with the trial Judge who notices his manners, his apparent possession or lack of intelligence, and said Judge may resort to any examination which will tend to disclose his capacity and intelligence as well as his understanding of the obligation of an oath. The decision of the trial court may, however, be disturbed by the higher Court if from what is preserved in the records, it is clear his conclusion was erroneous. This precaution is ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 23 necessary because child witnesses are amenable to tutoring and often live in a world of make beliefs.
.
Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and moulded, but it is also an accepted norm that if after careful scrutiny of their evidence the Court comes to the conclusion that there is an impress of truth in it, of there is no obstacle in the way of accepting the evidence of a child witness."
Law with regard to testimony of a child witness is
29. rt now well established. In Golla Yelugu Govindu vs. State of Andhra Pradesh (2008) 16 SCC 769, while reiterating its earlier view the Apex Court held that:-
"11. 6.Indian Evidence Act, 1872 (in short the 'Evidence Act') does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 24 by Brewer J in Wheeler v. United States [159 U.S. 523 (1895)]. The evidence of a child witness is not .
required to be rejected per se; but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. [See Suryanarayana v. State of Karnataka (2001) 9 SCC 129].
of
30. In State of Himachal Pradesh vs. Suresh Kumar rt (2009) 16 SCC 697, the Apex Court was dealing with a case where victim was ravished by the accused on 15.3.2000 which incident was narrated by the victim to her sister later during the day. She also narrated the incident to her parents the following day and later on to the Doctors. Court accepted the statement of the sister, parents and the doctors while holding the accused guilty. Importantly, Apex Court reversed the finding recorded by the High Court wherein it was held that statement of the victim being minor was not worthy of credence.
31. The apex Court in Radhakrishna Nagesh Versus State of Andhra Pradesh, (2013) 11 SCC 688 had an occasion to deal with a case of a child victim. After considering its earlier decisions, the Court held that Court ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 25 must examine the evidence of the prosecution in its entirely and then see its cumulative effect to determine whether .
offence of rape stands committed or not.
32. The apex Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217 has held as under:
"9. In the Indian setting, refusal to act on the of testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should the evidence of the girl or the rt woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. We must analyze the argument in support of the need for corroboration and subject it to relentless and remorseless cross-
examination. And we must do so with a logical, and not an opinionated, eye in the light of probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon. We must not be swept off the feet by the approach made in the western world which has its own social milieu, its own social mores, its own permissive values, and its own code of life. Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the western world. It is wholly unnecessary to import the said concept on a turnkey basis and to transplant it on the Indian soil regardless of the altogether different ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 26 atmosphere, attitudes, mores, responses of the Indian society, and its profile. The identities of the .
two worlds are different. The solution of problems cannot therefore be identical. It is conceivable in the western society that a female may level false accusation as regards sexual molestation against a male for several reasons such as :-
of (1) The female may be a 'gold digger' and may well have an economic motive- to extract money by holding out the gun of prosecution or public exposure.
rt (2) She may be suffering from psychological neurosis and may see an escape from the neurotic prison by phantasizing or imagining a situation where she is desired, wanted, and chased by males.
(3) She may want to wreak vengeance on the male for real or imaginary wrongs. She may have a grudge against a particular male, or males in general, and may have the design to square the account.
(4) She may have been induced to do so in consideration of economic rewards, by a person interested in placing the accused in a compromising or embarrassing position, on account of personal or political vendetta.
(5) She may do so to gain notoriety or publicity or to appease her own ego or to satisfy her feeling of self-importance in the context of her inferiority complex.
(6) She may do so on account of jealousy.
(7) She may do so to win sympathy of others.
(8) She may do so upon being repulsed.
::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 2710. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of .
making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted.
The statement is generally true in the context of the urban as also rural society. It is also by and large of true in the context of the sophisticated not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception rt or two and that too possibly from amongst the urban elites. Because :- (1) 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, (2) She would be conscious of the danger of being ostracized by the Society or being looked down by the society including by her own family members, relatives, friends, and neighbours, (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 28 relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a .
tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husbands' family of a married of woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of rt the victim herself being considered promiscuous or in some way responsible for the to be incident regardless of her innocent. (12) The reluctance to face interrogation by the investigating agency, to face the Court, to face the cross-
examination by counsel for the culprit, and the-risk of being disbelieved, act as a deterrent.
11. In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. 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 a sex-offence is entitled to great weight, absence ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 29 of corroboration notwithstanding. And while corroboration in the form of eye-witness account of .
an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Court's in of the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hangover). We are therefore of the opinion rt that if the evidence of the victim does not suffer from any basic infirmity, and the 'probabilities- factor' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification :
Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self preservation. Or when the 'probabilities-factor' is found to be out of tune."
[Also: State of H.P. v. Asha Ram, (2005) 13 SCC 766]
33. We shall now discuss the evidence in view of the aforesaid settled proposition of law.::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 30
34. It is a matter of record that the accused, who pleaded false implication, did not lead any evidence. The .
fact that prosecutrix is daughter of his brother and the fact that his elder son used to live in another village and at the time of occurrence of the incident, on account of holidays in the school had come home, stands admitted by the of accused.
35. Even rt though accused has admitted the prosecutrix to have been born on 25.03.2003, such fact stands conclusively established through birth certificate (Ext. PW3/A) issued under the provisions of Section 12/17 of the Registration of Births and Deaths Act, 1969 and Rule 8 of the Himachal Pradesh Registration of Births and Deaths Rules, 2003, so produced on record by Kavita (PW-3) Secretary, Gram Panchayat Kalwari. There is no challenge with regard to the date of birth of the prosecutrix.
Radiological age of the prosecutrix also stands proved on record by Dr. Shailender Thakur (PW-5). Hence, as on the date of commission of crime, prosecutrix was 10 years and 10 months of age and accused was aged 45 years. That ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 31 prosecutrix was studying in sixth class is also not in dispute and stands established on record.
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36. Dr. Anu Devi (PW-11) who conducted medical examination of the prosecution on 10.02.2014, found her to be of average built. There was no evidence of external injury but however hymen was torn, old healed with no of evidence of active bleeding. The victim did not allow vaginal examination.
rt However, the Doctor found the prosecutrix to be exposed to coitus. Her opinion is definite to such effect. In any event, if the testimony of the prosecutrix is found to be convincing then, even in the absence of any corroborative medical evidence, as laid down in Madan Gopal Makkad (supra), conviction would be sustainable.
37. It is a matter of record that neither the father of the prosecutrix, nor any member of the family of the accused, stands examined in Court. None has come forward from the village to support either the prosecutrix or the accused. But then even such fact would not be fatal if the prosecution otherwise establishes its case beyond reasonable doubt. In any event, accused himself could have ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 32 produced and examined such persons as witnesses to dislodge the presumption in law.
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38. In the instant case, it has come through the testimony of the Sushma Devi (PW-1) mother of the prosecutrix, that the parents of the prosecutrix got divorced eight years prior to the incident in question. Though the of prosecutrix and her sister were residing with their father in village Deori, yet they were on visiting terms with her. It is rt not the suggested case of the accused that relations between the mother and the father were either strained or hostile or that she was in a position to yield undue influence over her children. Mother had no motive to falsely implicate anyone, much less the accused, more so, in connection with the crime in question. No mother would put the honour of her daughter at stake without any sufficient cause or justifiable reason.
39. Version of Sunita (PW-6) to the effect that "I told this fact to my father and grandmother and other members of the family and they told it happens and I should not tell this fact to any one and, in future, they would take care of Lovely", goes unrebutted on record. According to this ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 33 witness the incident in question came to be reported to her by the prosecutrix after two days and this was when she .
found her gait to be different. Yet despite having brought the matter to the notice of the elders nothing was done. It is in this background that this witness thought it prudent of reporting the matter to her mother which was so done on of 9.02.2014. It is true that there is no record corroborating the version of this witness of having telephonically asked rt her mother to meet her. But the question which arises for consideration is as to whether it would make any difference? In our considered view, no. Witness has categorically deposed that she did try to call her mother through the cell phone of her father but the call could not mature and it was only later on that, through the cell phone of her maternal aunt, she was able to contact her mother.
This witness who herself was studying in class tenth was dependent upon the elders for taking up the matter to its logical end. We are of the considered view that there is no delay in lodging the matter with the police, for the FIR came to be registered on 9.02.2014. Period of six days in reporting the matter to the mother, in our considered view ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 34 stands sufficiently explained by the witness who herself is a school going child. Only when no action was taken by the .
elders in the family, this witness mustered courage and prudently brought the matter to the notice of her mother.
Also for two days children were busy in a function at the school.
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40. Still the question which arises for consideration is as to whether the accused is guilty of having committed the rt crime or not? Answer to the same lies in the testimonies of the prosecutrix (PW-2) and her sister Sunita (PW-6).
Principles laid down in the decisions referred to in paragraphs 20 to 24 (supra) would be relevant at this juncture.
41. In court, prosecutrix states that on 2nd/3rd February, 2014, on the asking of Chand Prakash, she went to the house of her uncle where they started playing. It is a matter of record that such house is just adjoining to the house of her father. Their relations appear to be normal.
Innocently the child slept with Chand Parkash when in the night, accused took her to his bed. At that time, the elder son was sleeping in the kitchen. The witness is categorical ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 35 that the accused made her sleep with him and by opening the clothes, sexually assaulted her as a result of which .
blood started oozing from her private part. The incident was repeated the following day. She is categorical that the accused had threatened to cut his head [here she refers to the elder son of the accused] and also threatened her not to of disclose the incident either to her father or grand parents.
She is categorical that the following day, the incident came rt to be reported to her sister who told her that she would inform their mother. She disclosed all such facts to her mother who had come to meet them after her sister had called her over phone. Now in cross examination we do not find her testimony to have been shattered or rendered uninspiring in confidence. In fact she is clear, categorical and her testimony consistent with her version so disclosed to the police and her statement recorded before the Magistrate (Ext.PW-2/A) during the course of investigation.
It cannot be said that the witness is tutored or has deposed under some influence. She understands the consequences of all actions. Even though a child but she has deposed the events in the most natural manner. She meets the test laid ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 36 down by the apex Court in the decisions referred to in paragraphs 28 to 31 (supra). She is categorical that the .
incident came to be noticed by the sons of the accused who had also woken up, whose heads the accused had threatened to cut off in case the incident came to be reported to anyone. One cannot lose sight of the fact that of the parties are rustic villagers hailing from the remotest corner of the State where generally children are dependent rt upon their parents for survival. Village Deori is in the hinterland where generally decisions are taken by the elder members of house.
42. Version of the prosecutrix (PW-2) stands materially corroborated by her sister Sunita (PW-6) on all counts and her mother Sushma Devi (PW-1).
43. We do not find the contradictions in the testimonies of the prosecution witnesses to be significant enough to shatter their testimonies or impeach their credit.
Whether their statements came to be recorded at the police station or on the spot is immaterial.
44. Also whether the recoveries were affected pursuant to the disclosure statement made by the accused ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 37 or otherwise is immaterial, for prosecution case does not rest upon the link evidence which is not substantive .
evidence but only corroborative in nature. Report of the Forensic Science Laboratory does not advance the case of the prosecution, even though blood and hair was found on the respective clothes of the parties. Absence of of spermatozoa on the vaginal swabs also does not render the prosecution case to be fatal for according to the Doctor rt (PW-11), prosecutrix was exposed to coitus. Site plan not depicting true position of the place of crime would also not render the version of the prosecutrix to be false. It is in the house which fact is evidently clear from the said document.
Principle laid down in Narender Kumar (supra) is evidently clear, for minor contradictions need to be ignored. In any event, no material contradiction, rendering the genesis of the prosecution case to be fatal, stands pointed out.
45. Non association of independent witnesses would also not render the testimony of the prosecution witnesses to be doubtful.
46. Judgments relied upon by the learned counsel for the appellant/convict in no manner advance his case. They ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 38 are based on relevant fact situation where the Court itself found the testimony of the prosecutrix to be shaky and .
unbelievable.
47. From the material placed on record, it stands established by the prosecution witnesses that the accused is guilty of having committed the offences he stands of charged for. There is sufficient, convincing, cogent and reliable evidence rt on record to this effect. The circumstances stand conclusively proved by unbroken chain of unimpeachable testimony of the prosecution witnesses.
The guilt of the accused stands proved beyond reasonable doubt to the hilt. It cannot be said that accused is innocent or not guilty or that he has been falsely implicated or that his defence is probable or that the evidence led by the prosecution is inconsistent, unreliable, untrustworthy and unbelievable. It cannot be said that the version narrated by the witnesses in Court is in a parrot-like manner and hence is to be disbelieved.
48. Thus, from the material placed on record, it stands established by the prosecution, beyond reasonable doubt, that accused committed rape on the prosecutrix, a ::: Downloaded on - 15/04/2017 20:45:06 :::HCHP 39 minor girl, by leading clear, cogent, convincing and reliable piece of evidence.
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49. For all the aforesaid reasons, we find no reason to interfere with the well reasoned judgment passed by the trial Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, of irregularity, perversity in correct and/or in complete appreciation of the material so placed on record by the rt parties. Findings of conviction cannot be said to be erroneous or perverse. Hence, the appeal is dismissed.
50. Appeal stands disposed of, so also pending application(s), if any.
Records of the Court below be immediately sent back.
(Sanjay Karol), Judge.
(Ajay Mohan Goel), Judge.
July 4 , 2016 (PK)
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