Himachal Pradesh High Court
Bhupinder Singh And Anr. vs State Of Him. Pra. on 3 April, 1996
Equivalent citations: 1997CRILJ339
Author: R.L. Khurana
Bench: R.L. Khurana
JUDGMENT R.L. Khurana, J.
1. The two appellants have been convicted for the offence under Section 376, IPC by the Additional Sessions Judge (I), Shimla and sentenced to undergo rigorous imprisonment for a period of eight years each. The two appellants have further been sentenced to pay a fine of Rs. 2,000/- each and in default of payment of fine, they have been directed to undergo rigorous imprisonment for a further period of one year each.
2. The two appellants are alleged to have committed the offence of rape in question on 22-7-1986.
3. The prosecution story may be briefly stated thus. PW.2, the prosecutrix Kumari Sumitra and PW. 3 Kumari Savita are real sisters. They are resident of village Pohach, Pargana Satota, Tehsil Chopal, District Shimla. One Kumari Kanta is their cousin. All the three were studying in a Middle School near their village. For going to the school from their village, they had to travel through a forest known as Jatania forest. The prosecutrix Kumari Sumitra at the relevant time was a student of Class VII and was about 14 years of age.
4. On 22-7-1986 as usual PW, 2 Kumari Sumitra, the prosecutrix accompanied by sister PW. 3 Kumari Savita and cousin Kumari Kanta left their village for going to the school. They had hardly covered a distance of about one kilometer from their house, then they were met by the two appellants who had concealed themselves under the bushes. The two appellants all of a sudden came out of the bushes and caught hold of the prosecutrix Kumari Sumitra. While appellant Bhupinder Singh caught hold of the prosecutrix Kumari Sumitra by her arms, the appellant Mangat Ram after uprooting a plant known as "Bichhu Butti" scared away the other two girls PW. 3 Kumari Savita and Kumari Kanta who were hardly of 11 and 8 years of age, respectively. Both Kumari Savita and Kanta left the spot. While Kumari Savita being the real sister of the prosecturix and being elder to Kumari Kanta concealed herself under the bushes at a little distance from the spot, Kumari Kanta having been got terribly scared went straight to her school. The two appellants finding the prosecutrix all alone, then committed rape on her one by one. The prosecutrix was being caught hold of and her mouth gagged by appellant Mangat Ram while she was being raped by appellant Bhupinder Singh. Similarly, appellant Bhupinder Singh gagged the mouth of the prosecutrix while she was being raped by appellant Mangat Ram. After having committed the rape, the two appellants left, the scene of the occurrence. PW. 3 Kumari Savita thereafter came out of the bushes and took her sister, the prosecutrix Kumari Sumitra home. The occurrence was narrated by the prosecutrix and Kumari Savita to their mother Smt. Bhajji Devi (PW. 4) and their maternal uncle Giaru Ram (PW 5). On the following day, that is 23-7-1986, PW. 5 Giaru Ram went to Chopal, where Magni Ram PW. 6, the father of the prosecutrix was employed as a Peon with the forest department and apprised him of the occurrence. Ultimately, the prosecutrix was taken to the police station and on the basis of her statement made to the police, a case under Section 376, Indian Penal Code came to be registered vide FIR Ext. PD.
5. After the necessary investigation, the two appellants were arrested, challaned and sent up for trial.
6. Both the appellants pleaded not guilty to the charge and they claimed to be tried.
7. The prosecution in support of its case examined 17 witnesses in all.
8. The case of the two appellants in their statement under Section 313 Code of Criminal Procedure is that of denial simliciter. They have further stated that they have been falsely implicated in the present case due to the enmity on account of some land dispute between their parents.
9. During the course of the trial, a plea was raised on behalf of the two appellants that since they were below the age of sixteen as on the date of the alleged commission of the offence, the case was required to be enquired into by the Juvenile Court under the provisions of the Juvenile Justice Act, 1986. On an application having been made in this regard, the learned trial Court proceeded to hold an enquiry into the question of the age of the two appellants as on the date of the commission of the offence. The learned trial Court, vide its order dated 5-8-1992, came to the conclusion that both the appellants were above the age of sixteen as on the date of the commission of the offence, and therefore, they were to be tried by the Sessions Court and not by the Juvenile Court.
10. The learned trial Court after considering the evidence coming on the record, came to the conclusion that a case under Section 376, I.P.C. stood proved against each of the two appellants beyond a reasonable doubt. It, accordingly, vide its judgment dated 28-12-1992, convicted each of the two appellants for the said offence and sentenced both of them as aforesaid.
11. The conviction and the sentence imposed upon the two appellants have been challenged by way of present appeal primarily on the ground that both the appellants being below the age of 16 years as on the date of the alleged commission of the offence, the case was required to be tried by a Juvenile Court under the provisions of Juvenile Justice Act, 1986. On merits, it has been contended that the trial Court has not properly appreciated the evidence coming on the record and that a case has not been proved against any of the two appellants beyond a reasonable doubt. It has also been contended that the punishment awarded is otherwise harsh.
12. I have heard Shri. T. R. Chandel, Advocate learned counsel for the appellants and Shri. Ashok Chaudhary, learned Assistant Advocate General for the State and have also gone through the record of the case.
13. The learned counsel for the appellants at the very outset has contended that since a plea was raised on behalf of the two appellants that they were below the age of 16 years as on the date of alleged commission of the offence, the trial Court should have forwarded the appellants and the record of the case to the Juvenile Court within the meaning of Section 8 of the Juvenile Justice Act, 1986.
14. In Krishan Bhagwan v. State of Bihar (1990) 1 All Cri LR 22 : 1991 Cri LJ 1283, the appellant therein was convicted and sentenced for the offences under Sections 302, 307 and 324, I.P.C. by the Sessions Judge. During the course of the trial, no plea was taken before the trial Court that the appellant was a child within the meaning of Bihar Children Act, as on the date of the commission of the offence, and as such, he should not have been put on trial before the Sessions Judge. Such a plea came to be taken up for the first time in appeal before the High Court. The Division Bench, hearing the appeal and before whom the plea as to the appellant being a child as on the date of the commission of the offence was raised, referred the following two questions for the consideration of a larger Bench :-
(i) Whether the provisions of the Bihar Children Act, 1982, shall be applicable even to a case where by the time the trial commences or concludes the accused ceases to be a child although when the offence was committed he was a child within the meaning of the Act?
(ii) Where the plea that the accused was child within the meaning of the Act aforesaid and as such the trial could not have proceeded before the Criminal Court, has not been taken at the trial stage but is taken at the appellate stage, what procedure should be followed for the purpose of determination of the age of the accused at the time of the commission of the offence and if the accused is found to be child, then for extending the benefits of the Act ?
15. The Full Bench of Patna High Court answered the first question in the affirmative and it was held that the benefit of the Children Act/Juvenile Justice Act has to be extended not only to an accused who is a child/juvenile at the time of commencement of the enquiry and has continued, as such till the conclusion of the enquiry, but even to an accused who has ceased to be a child/juvenile during the pendency of the enquiry.
16. In so far as the second question was concerned, it was held that the plea of the accused being a child as on the date of the commission of the offence could be raised for the first time during the course of the appeal. With regard to the procedure to be followed for the purpose of determining the date of the accused at the time of the commission of the offence, the Full Bench held as under:- (Para 15 of Cri LJ) ...As such it has to be held that a plea that the accused in question was a child within the meaning of the Act can be entertained at the appellate stage. At the same time it should not be overlooked that many accused persons who have been tried and convicted for serious offences like murder, dacoity and rape may take this plea in the appeal just to get rid of the sentence of rigorous imprisonment imposed against them, although there are hardly any material on the record in support of the plea that such accused persons on the date of the commission of the offence were children within the meaning of the Act. There may be a case where either in the First Information Report itself the accused might have been described as below 16 age or during the trial his age has been determined or admitted to be below 16 years on the date of occurrence. In such cases no further enquiry in respect of his age is called for and this Court can extend the benefit of the Children Act/ Juvenile Act to such an accused. But, in other cases, on the materials on record, it may not be possible for this Court to be satisfied even in a prima facie manner that accused may be a child on the date of commission of the offence. In such cases there is no question of directing determination of the age of the accused concerned on the date of commission of the offence. However, if this Court is satisfied in a prima facie manner that on the date of the commission of the offence the accused may be a child, this Court may direct the competent authority to determine the age of such accused on the relevant date in accordance with Section 32 of the Juvenile Act....
17. The ratio as laid down by the Full Bench of the Patna High Court is that when the question whether the accused is a child at the time of the commission of the offence within the meaning of Juvenile Justice Act, 1986, is raised, the appellate Court has first to examine the findings recorded by the Court below regarding the guilt of the accused. If the findings recorded by the Court below that the charges levelled against the appellant have been established is affirmed by the appellate Court, then it has to consider whether a prima facie case has been made out that the accused was a child within the meaning of the Juvenile Justice Act. However, if the appellate Court is not satisfied on the materials on the record, the appeal has to be dismissed. If the appellate Court is of the opinion that the accused concerned may be a child on the date of the commission of the offence, it has to direct enquiry in accordance with Section 32 of the Juvenile Justice Act, 1986, if the finding of the Juvenile Court is in favour of the accused and the Court accepts that finding it has no option but to forward the records to the Juvenile Court for passing the orders in terms of Sections 21 and 22 of the Juvenile Justice Act.
18. Therefore, in the present case, the first question which requires determination is whether the offence under Section 376, I.P.C. has been proved against each of the two appellants beyond a reasonable doubt as held by the learned trial Court.
19. The prosecution story is primarily based on the testimony of the prosecutrix P. W. 2 Kumari Sumitra, P. W. 3, Kumari Savita and the medical evidence. There is no denying that the prosecutrix Kumari Sumitra at the relevant time was a minor of about 14 years of age. P. W. 14 Dr. Vijay Kumar had carried out the medical examination of the prosecutrix. He had found the following marks of violenece on her person :-
1. Scratch marks on posterior aspect of right elbow measuring 2" x 1" and also on left elbow joint on its posterior aspect.
2. A nail mark between fourth and fifth finger of left hand.
3. Bruises on back. Leanear 3" x 1/2" opposite L1 to L4 vertibrae three inch away from right side from spine.
4. Bruises over right scapula 1" x 1/2" on upper part. Bruise marks quatrangular 2 x 2" on right side opposite L2 to L4 vertibare, near spine.
5. Scratch marks on midial aspect of left thigh measuring 2" x 1". Two inch away from the labia minora.
6. Bruise marks on both glutial scattered and wearing size and shape. The probable duration of injuries between 24 to 28 hours.
20. On examination of the genital, no blood or semen stains were found in the inner parts of the thigh since the prosecutrix had already taken bath before her medical examination. There was a scratch mark present on the thigh. There was laceration both of labia minora and little walls of vaginaon its lower part. Though, laceration was present, there was no bleeding. Hymen was found to be ruptured. In the opinion of P. W. 14, the prosecutrix might have been raped.
21. This medical evidence coming on the record fully corroborates the ocular evidence of the prosecutrix herself as P. W. 2. The prosecutrix has stated that when she was going to the school along with her sisters Kumari Savita and cousion Kumari Kanta through the jungle, the two appellants appeared from behind the bushes. She was caught hold of by the arms by the appellant Bhupinder Singh while appellant Mangat Ram scared away the other two girls Kumari Savita and Kanta with the help of "Bichhu Butti" plant. Both the appellants then took her to the Nallah. Appellant Bhupinder Singh then caught hold of her by her legs and broke open the waist-band of her salwar while appellant Mangat Ram gagged her mouth with one hand and held her by her arms with the other hand. She was then raped by appellant Bhupinder Singh. After finishing the sexual act, appellant Bhupinder Singh caught hold her arms with one hand and gagged her mouth with the other, while appellant Mangat Ram committed rape on her. She has further gone to state that she was brought home by her sister Kumari Savita, who during this period was hiding behind the bushes and on reaching home, she narrated the occurrence to her mother on her return from the fields. Her father was informed about the incident by her uncle Giaru Ram and thereafter, the report was made to the police. During the course of the cross-examination, nothing could be brought out on record to show that she was idling a lie in order to falsely implicate the two appellants.
22. P. W. 3, Kumari Savita, the younger sister of the prosecutrix, who was accompanying her to the school and was hiding under the bushes during the period the two appellants were committing rape on the prosecutrix has also supported the prosecutrix on every minor details. Both P. W. 2 and P. W. 3 have denied the inimical relations between the parents of the parties.
23. Considering the evidence coming on the record, I am in full agreement with the findings of the learned Court below that a case under Section 376, I.P.C. stands proved against each of the two appellants beyond a reasonable doubt and that they have been rightly convicted of the offence charged against them.
24. After having come to the conclusion that the findings recorded by the trial Court that the charges levelled against the two appellants have been established, the next question which requires consideration is-whether a prima facie case has been made out that the two appellants were "child" within the meaning of the Juvenile Justice Act, 1986.
25. During the course of the trial before the trial Court, evidence has been led by the parties with regard to the age of the two appellants as on the date of the commission of the offence. According to the school leaving certificats Ext. P. W. 4/A, the date of birth of the appellant Bhupinder Singh is 2-5-1968 and that of appellant Mangat Ram vide school leaving certificate Ext. P. W. 4/B is 15-6-1969, Ext. A. W. 2/B and Ext. A. W. 2/D, are the copies of the applications made by the fathers of the two appellants to the headmaster of the school at the time of admission of the two appellants in the school in the years 1973 and 1975, respectively. Ext. A. W. 2/B, which is the application made by Mani Ram the father of the appellant Bhupinder Singh on 11-9-73. It records the date of birth of appellant Bhupinder Singh 2-5-1968, that is similar to the one recorded in Ext. P. W. 4/A. In application Ext. A. W. 2/D made by Magni Ram, the father of the appellant Mangat Ram on 18-3-75 while admitting the appellant Mangat Ram to the school, though, the date of birth of appellant Mangat Ram is not recorded, the certificate issued by the headmaster Ext. R. W. 2/C records that the date of birth of appellant Mangat Ram given at the time of his admission was 8-7-69. Be it stated that in the school leaving certificate Ext. R. W. 4/B, the date of birth of appellant Mangat Ram is mentioned as 15-6-1969.
26. While no specific evidence has been led on behalf of the appellants with respect to the date of birth of the appellant Mangat Ram, the learned counsel for the appellants is relying upon the fact that admittedly, appellant Mangat Ram is younger to appellant Bhupinder Singh. There is no evidence to show as to how many years appellant Mangat Ram is younger to appellant Bhupinder Singh.
27. In so far as the appellant Bhupinder Singh is concerned, the evidence in the form of a horoscope Ext. DB has been placed on the record 10 show that appellant Bhupinder Singh was born on 4th of September, 1970. This horoscope is alleged to have been prepared by one Pandit Ruldu Ram, who is alleged to have died sometime in the year 1985. The learned counsel for the appellants by placing reliance on AIR 1927 Pat 271, (Ganganand Singh v. Rameshwar Singh Bahadur), AIR 1938 Calcutta 43, Noni Gopal Ganguly v. Trustees for the Improvement of Calcutta, AIR 1933 Calcutta 51, Smt. Nirmalanalini Devi v. Smt. Kamalabala Dassi, AIR 1917 Madras 930 and AIR 1954 Rajasthan 38 : 1954 Cri LJ 258, Madansingh v. The State, has contended that the horoscope is receivable in the evidence under Section 32 clause 5 of the Evidence Act.
28. Even if the horoscope is receivable in evidence, the entries made therein cannot be regarded to be conclusive or decisive (See: AIR 1965 Him Pra 32, Paras Ram v. Dayal Das).
29. In AIR 1978 Madras 42, Secretary to Government Home Department v. T. V. Hari Rao, it has also been held that even though original horoscope may be admissible in evidence under Section 32(5) of the Evidence Act, their evidentiary value is very little.
30. A perusal of the horoscope Ext. DB shows that the date on which the same was prepared has not been mentioned. Mani Ram, the father of the appellant Bhupinder Singh while appearing as D. W. 3, has stated that the horoscope Ext. D. B. was obtained by him from Pandit Ruldu Ram about five years after the birth of appellant Bhupinder Singh. Admittedly, Mani Ram, the father of the appellant Bhupinder Singh is an illiterate person. He has admitted that he knows counting up to fifty only. He has also admitted that he did not know the age of his son appellant Bhupinder Singh. He did not get the date of birth of appellant Bhupinder Singh recorded before any person, authority or officer. It is further in his statement that though Pandit Ruldu Ram was his family Prohit, the horoscope of no other children was got prepared by him.
31. In view of the fact that Mani Ram the father of the appellant Bhupinder Singh is an illiterate person and the fact that the horoscope Ext. DB was got prepared by him about five years after the birth of appellant Bhupinder Singh, it cannot be said that the date of birth recorded therein as 3-9-1970, was correctly recorded.
32. Much reliance has been placed by the learned counsel for the appellants on the entry in the "Jantari at Ext. DB/A purported to be in the hands of the deceased Pt. Ruldu Ram, showing date of birth of a son to Mani Ram on 20 Bhaderpar 2027 B. K. corresponding to 3rd of September 1970. Even if it be assumed that the entry at Ext. DB/A on the "Jantri" is in the hand of deceased Pandit Ruldu Ram, as stated above, it records only that a son was born to Mani Ram on the said date. This entry has not been identified with the appellant Bhupinder Singh. Admittedly, Mani Ram has another son apart from the appellant Bhupinder Singh, who is younger to the appellant. The possibility of the entry Ext. DB/A pertaining to the younger son of Mani Ram. therefore, cannot be ruled out.
33. The onus of proving that the two appellants were below the age of sixteen as on the date of the commission of the offence was heavily on them. They have failed to discharge such an onus to prove that they fall within the definition of "Juvenile" within the meaning of Clause (h) of Section 2 of the Juvenile Justice Act, 1986.
34. Upon consideration of the material coming on the record, I am satisfied that no prima facie case has been made out to show that the appellants were juveniles as on the date of the commission of the offence. The learned trial Court has rightly held that the two appellants were not juveniles as on the date of the commission of the offence, and has rightly proceeded to convict and sentence the two appellants.
35. Coming to the question of sentence, it is significant to note that Section 376, I.P.C. provides that except in the cases provided for by Sub-section (2), the sentence of imprisonment shall not be less than seven years, but may be for life or for a term which may extend to ten years. Therefore, a minimum sentence of seven years has been prescribed under the law for a commission of the offence of rape. Each of the two appellants have been sentenced to rigorous imprisonment for a period of eight years. Such sentence, on the facts and in the circumstances of the case, cannot be termed as harsh. Therefore, I hold that the sentence imposed upon the two appellants is adequare and no interference is called for in the sentence of imprisonment awarded.
36. As a result, the present appeal fails and the same is accordingly dismissed. The conviction and sentence imposed upon the two appellants by the Court below is maintained.
37. The two appellants who are on bail shall surrender themselves to their bail bonds within a period of thirty days from today to receive and undergo the sentence imposed upon them by the trial Court. On the failure of the two appellants to surrender themselves before the trial Court within the stipulated period, the trial Court shall issue warrants of arrest against the two appellants and commit them to jail for undergoing the sentence imposed upon them in accordance with law.