Himachal Pradesh High Court
Ram Singh vs State Of H.P on 22 March, 2016
Author: Sanjay Karol
Bench: Sanjay Karol, P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr. Appeal No. 115 of 2014
Judgment reserved on: 29.02.2016
.
Date of Decision : March 22 , 2016
Ram Singh ...Appellant.
Versus
State of H.P. ...Respondent.
of
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Judge.
The Hon'ble Mr. Justice P.S. Rana, Judge.
rt
Whether approved for reporting? 1Yes.
For the Appellant : Mr. Umesh Kanwar, Advocate, for
the appellant.
For the Respondent: Mr. V.S. Chauhan, Addl. AG., with
Mr.Kush Sharma, Dy. AG., and Mr.
J.s. Guleria, Asstt. AG., for the
respondent-State.
Sanjay Karol, J.
In this appeal filed under Section 374 Cr.P.C., convict Ram Singh has assailed the judgment dated 07.11.2013/12.11.2013, passed by learned Judge Special Court, Una, H.P., in Sessions Case No. 7-VII-2013, titled as State of Himachal Pradesh Versus Shri Ram Singh, whereby he stands convicted for having committed offences punishable under the provisions of Section 6 of 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 2the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as the POCSO Act) and Section 506-II of the Indian Penal Code and sentenced to undergo .
rigorous imprisonment for ten years and pay fine in the sum of `5,000/-, for commission of offence punishable under the provisions of Section 6 of the POCSO Act and in default thereof, further to undergo simple imprisonment of for a period of three months and also sentenced to serve rigorous imprisonment for one year and pay fine in the sum of `2000/- for the commission of offence punishable rt under the provisions of Section 506-II IPC and in default thereof, further to undergo simple imprisonment for a period of one month .
2. It is the case of prosecution that prosecutrix was permanently residing with her aunt for her father, after murdering her mother, had left her alone to fend by herself. Prosecutrix aged 8 years, was studying in a local school. Accused, who is her cousin, had been subje cting her to sexual intercourse and last such assault took place on 24.05.2013, when after gagging her mouth, not only he subjected her to sexual intercourse, but also threatened her not to disclose the incident to anyone.
::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 3However, on 30.05.2013, prosecutrix narrated the incident to her teacher Beera Sharma (PW.7), who in turn informed Head Mis tress Anupama Rani (PW.9), which led .
to the lodging of a formal complaint with the police. FIR No.149 of 2013, dated 31.05.2013 (Ex.PW.20/A) was registered at Police Station, Sadar, Una, H.P., against the accused, for committing offences punishable under the of provisions of Sections 376 of IPC and Section 4 of the POCSO Act. SI Trilok Singh (PW.21), conducted the investigation.
rt Prosecutrix was got medically examined both from the point of crime as also determination of age. A lso record qua age and link evidence was taken on record. Report of the Chemical Analyst (Ex.PW.1/C), pertaining to the articles recovered by the police was 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. The accused was charged for having committed offences punishable under the provisions of Section 6 of the POCSO Act and Sections 376 and 506 of IPC, to which he did not plead guilty and claimed trial.
::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 44. In order to establish its case, in all, prosecution examined as many as twenty one witnesses and statement of the accused under Section 313 of the .
Code of Criminal Procedure was also recorded , in which he took the following defence:-
"The witnesses have deposed falsely. PW4 is my cousin and being a brother I wanted to control her activities as she was in the habit of leaving the of house without permission during night time and used to come late. She was scolded off and she has roped me in this false case."
rt However n o evidence in defence was led by him .
5. Appreciating the testimonies of the prosecution witnesses, Trial Court convicted accused Ram Singh for having committed offences punishable under the provisions of Section 6 of the POCSO Act and Sections and Section 506-II of IPC and sentenced as aforesaid. Hence the present appeal by the convict.
6. We have heard Mr. Umesh Kanwar, learned counsel, on behalf of the convict-appellant as also M/s V.S. Chauhan, learned Addl. AG., Kush Sharma, learned Dy. AG and J.S. Guleria, learned Asstt. AG., on behalf of the State. We have also minutely examined the testimonies of the witnesses and other documentary ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 5 evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find the findings .
returned by the trial Court to be based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the of same, resulting into miscarriage of justice. Prosecution has been able to prove its case, beyond reasonable doubt against the convicts.
rt
7. We shall first discuss the question of age of the prosecutrix. Prosecutrix (PW.4) was examined in Court on 23.08.2013, on which date , she declared her age to be of 8 years. She deposed that for the last six years she had been residing with her aunt i.e. mother of the accused. For the last two years, accused had been subjecting her to sexual intercourse and last such incident took place on 24.05.2013. She disclosed the incident both to her aunt, who did not take any action but then to her teacher, which led to the recording of her statement (Ex.PW.4/A) dated 31.05.2013. At the time of her medical examination vide MLC (Ex.PW.1/B), ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 6 prosecutrix recorded her age to be 8 years. Jai Kumar (PW.12) has produced on record the original record of the school where the prosecutrix was studying. In the school .
record, her date of birth is recorded as 02.07.2004.
Certificates (Ex.PW.12/A and Ex.PW.12/B) are on record to such effect. The medical age of the prosecutrix, as is evident from the testimonies of Dr. P.K. Soni (PW.2), Dr. of Anu Priya (PW.3) and Rakesh Kumar (PW.11), who have also proved on record documents (Ex.PW.2/1 to Ex.PW2/6, rt Ex.PW.2/A, Ex.PW.3/A-1 to Ex.PW.3/A-4, Ex.PW.3/A, Ex.PW.3/B, Ex.PW.11/A, Ex.PW.11/A-1 to Ex.PW.11/A-2), is between 9-10 years. Thus, prosecution has been able to establish, beyond reasonable doubt, that on the date of crime, prosecutrix was a minor.
8. At this juncture we deem it appropriate to deal with the statement of law on the point.
9. In Indian Woman Says Gang-Raped on Orders of Village Court Published in Business and Financial News Dated 23.10.2014, In Re, (2014) 4 SCC 786, the Apex Court 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 ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 7 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.
10. 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 of SCC 353).
11. In Shyam Narain v. State (NCT of Delhi), (2013) 7 SCC 77, the Apex Court held as under:
rt "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 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 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 ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 8 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 parame ters. 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."
12. In Narender Kumar v. State (NCT of Delhi), (2012) 7 SCC 171, the apex Court has cautioned the of Court to adopt the following approach:
"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 rt case and not get swayed by minor contradictions or insignificant discrepancies in the evidence of the witnesses which are not of a substantial character."
13. The Apex Court in Munna v. State of Madhya Pradesh, (2014) 10 SCC 254, has reiterated the principle that testimony of prosecutrix is almost at par with an immediate witness and can be acted upon without corroboration.
14. 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 ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 9 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 of what he thinks may or may not have taken place under particular combination of circumstances, however, confidently, he may speak, is ordinarily a matter of mere rt 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 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 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 ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 10 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 of and Toxicology, the following passage is found:
"SEXUAL intercourse. In law, this term is held to mean the slightest degree of rt 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 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 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 ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 11 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 of consistent view that even the slightest penetration is 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 rt 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. 1955 (Vol. II), page 1678, it is observed, "Even vulval penetration has been held to be sufficient for a conviction of rape."
"
15. 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. (See: 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 ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 12 Representative v. State of Keral, (2012) 11 SCC 362; and State of U.P. v. Chhotey Lal, (2011) 2 SCC 550).
16. 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.
of
17. 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 rt subjected to rape. (Radhakrishna Nagesh v. State of Andhra Pradesh, (2013) 11 SCC 688).
18. Reiterating its earlier view in Mohd. Iqbal v.
State of Jharkhand, (2013) 14 SCC 481; Narender Kumar v. State (NCT of Delh), (2012) 7 SCC 171, the Apex Court in Mukesh 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.
19. In Radhakrishna Nagesh v. State of Andhra Pradesh, (2013) 11 SCC 688, the apex Court held as under:
::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 13"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 of 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 more. What is necessary is that the court rt 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 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 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.' ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 14
18. We would further like to obs erve 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 vic tim 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 of may be usefully extracted:
'19. In the context of Indian culture, a woman - victim of sexual aggression - rt 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 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 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.' ""::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 15
20. 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 of 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 administered oath, rt but was held to be competent witness and, therefore, duly examined and believed.
21. 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 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 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 ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 16 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)
22. The Apex Court in State of Rajasthan versus N. K. THE ACCUSED (2000) 5 SCC 30 has held that:-
of "... ...It is true that the golden thread which runs throughout the cobweb of criminal jurisprudence as administered in India is that nine rt guilty may escape but one innocent should not suffer. But at the 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 technicalities or by assuming doubts and giving benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be a 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 ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 17 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)
23. 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 of testimony of the victim it may look for evidence which may lendrt assurance to her testimony short of corroboration requir ed in the case of 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 have no hesitation in accepting her evidence.
[State of Maharashtra versus Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 and O. M. Baby (dead) by Legal Representative vs. State of Kerala , 2012 (11) SCC 362].
::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 1824. 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 of involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even rt 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 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 lookin g 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 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 adding insult to injury. Why should the evidence of a girl or a woman who complains ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 19 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 of must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as rt 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 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 prosecution case." ... ...
(Emphasis supplied) The Court again reiterated its view in Siriya @ Shri Lal vs. State of Madhya Pradesh, (2008) 8 SCC 72.::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 20
25. 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 of tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit- rt 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 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 exercise particular to each case?
"The simple multiplication rule does not apply if the separate pieces of evidence are dependent. 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 ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 21 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 of cannot affo rd any favourite other than truth. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be rt 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 merely possible doubt; but a fair doubt based upon reason and commonsense.
It must grow out of the evidence in the case."
[Emphasis supplied]
26. In Dattu Ramrao Sakhare v. State of Maharashtra (1997 (5) SCC 341) it held that:
'5. .....A child witness if found competent to depose 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 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 ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 22 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 of 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 rt 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 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, there is no obstacle in the way of accepting the evidence of a child witness."
27. In Radhu v. State of Madhya Pradesh, (2007) 12 SCC 57, the Apex Court has held that "... Even if ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 23 there is consent, the act will still be a 'rape', if the girl is under 16 years of age" and "There have also been rare instances where a parent has persuaded a gullible or .
obedient daughter to make a false charge of a rape either to take revenge or extort money or to get rid of financial liability. Whether there was rape or not would depend ultimately on the facts and circumstances of of each case".
28. Law with regard to testimony of a child witness is now well established. In Golla Yelugu Govindu vs. State rt 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 by Brewer J. in ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 24 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].
29. In State of Himachal Pradesh vs. Suresh of Kumar (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 rt 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.
30. 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 dec is ions, the Court held that Court must examine the evidence of the prosecution in its ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 25 entirely and then see its cumulative effect to determine whether offence of rape stands committed or not.
31. The apex Court in Bharwada Bhoginbhai .
Hirjibhai v. State of Gu jarat, (1983) 3 SCC 217 has held as under:
"9. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult of to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles rt 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 ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 26 altogether different 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 :-
(1) The female may be a 'gold digger' and may well have an economic motive - to extract money of by holding out the gun of prosecution or public exposure.
(2) She may be suffering fro m psychological neurosis and may see an escape from the rt 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.
10. 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 ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 27 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 true in the context of the sophisticated not so sophisticated, and unsophisticated society. Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites.
of 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 rt 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 relating the incident to others being overpowered by a feeling of shame on account of the ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 28 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 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 the of victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocent. (12) The reluctance to face interrogation by the investigating agency, to rt 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 of corroboration notwithstanding. And while ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 29 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 the western world (obeisance to which has perhaps become a habit presumably on account of the colonial hangover).
of We are therefore of the opinion 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 rt 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]
32. We shall now discuss the evidence in view of the aforesaid settled proposition of law.
33. Initially prosecutrix was examined by Dr. Sudhi Kaushal (PW.18), who issued MLC (Ex.PW.18/B).::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 30
The doctor recorded the factum of alleged sexual assault.
On the directions of the Judicial Magistrate 1st Class, Una, a Board of doctors was constituted and Dr. Sita Thakur .
(PW.1) and Dr.Indu Bhardwaj (PW.6) upon medical examination issued MLCs (Ex.PW.1/B and Ex.PW.6/B). As per opinion of the doctor possibility of sexual assault could not be ruled out. Hymen was torn and injury could of be possible by penetration of vagina.
34. Prosecutrix (PW.4) is a child witness. Her statement stands appreciated by the Court below as also rt by this Court with caution. Having minutely examined the same, we are of the considered view that witness has withstood the test of scrutiny, her statement being absolutely inspiring in confidence. She has no reason to falsely depose against the accused, who in any case, has not led any evidence or examined any witness to probablize his defence.
35. In no uncertain terms and unambiguously, prosecutrix has deposed that after the death of her mother , her father left her. She has explained the circumstances under which she continued to live with her aunt, who has two children daughter namely Parvati, who ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 31 has since married and son the present accused. Her father had killed her mother and left for Nepal.
Thereafter prosecutrix had been staying with her aunt .
and studying in Government Primary School, Rakkar.
Accused had been subjecting her to penetrative sexual assault for the last two years. Also accused had been putting his fingers inside her vagina. He had also of threatened her not to disclose the incident to anyone.
Last such assault took place on 24.05.2013 when she was alone in the house.
rt At that time, accused had gagged her mouth and tied her hands. Following day she disclosed the incident to her Tai (aunt), who inquired the accused but he simply stated not to have done anything.
Later on she disclosed the incident to her teacher Beera Sharma (PW.7), who in turn informed the Head Mistress, when police was called in the school and her complaint (Ex.PW.4/A) recorded. Also s he was medically examined.
36. On the question of prosecutrix being subjected to sexual assault, we find her testimony to be absolutely free from blemish, improvements and contradictions. It inspires confidence and is true narration of facts. She did not disclose the incident to ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 32 anyone out of fear and threats given by the accused. It is only when Beera Sharma (PW.7) found her to be sleeping outside the shop, did she, in confidence disclose .
the incident. Noticeably her aunt had refused to take any action and she had none else to fall back upon. A lso her cousin Parvati was not there at home.
37. Version of the prosecutrix stands completely of corroborated by Beera Sharma, who has further stated that with the prosecutrix narrating the incident, Head Teacher was informed and matter reported to the police.
rt Now when we peruse the testimony of Anupama Rani (PW.9), we find the same to have been corroborated.
38. Record reveals that the matter was also brought to the notice of the School Management Committee . The President of the said Committee Smt. Rasida (PW.10) states that the prosecutrix had also narrated the incident to her. We do find there is minor contradiction here, for according to this witness, prosecutrix was being subjected to sexual assault for the last 2 -3 years, but then with regard to the last incident of 24.05.2013, there is no discrepancy. Also difference in duration of time cannot be said to be fatal. The incident ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 33 in question was also disclosed to Mohammad Sahid (PW.8).
39. Thus, from the testimonies of the aforesaid .
witnesses, it is evident that prosecution has been able to prove its case, beyond reasonable doubt.
40. SI Trilok Singh (PW.21) also got the statement of the prosecutrix (Ex.PW.4/B) recorded before the of Judicial Magistrate 1st Class, Una. Significantly there is no contradiction in her statement.
41. In rt the nature of corroborative evidence prosecution has proved on record other scientific evidence.
42. It is further urged that the accused ought to have been tried as a juvenile for first such alleged act, so committed by him was at the time when he was a juvenile. We do not find favour with such submission, for as on the date of last such offence, accused was more than 18 years of age, which fact is evident from his medical record as also statement recorded in Court.
43. The ocular version as also the documentary evidence clearly establishes complicity of the convict in the alleged crime . The testimonies of prosecution ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 34 witnesses are totally reliable and their depositions believable. There are no major contradictions rendering their version to be unbelievable.
.
44. From the material placed on record, it stands clearly established by the prosecution witnesses, beyond reasonable doubt, that the convict is guilty of having committed the offences charged for. There is sufficient, of clear, convincing, cogent and reliable piece of evidence on record to this effect. The circumstances stand conclusively proved by unbroken chain of unimpeachable rt testimony of the prosecutio n witnesses. The guilt of the convict stands proved beyond reasonable doubt to the hilt. The chain of events stand conclusively established and lead only to one conclusion, i.e. guilt of the convic t.
Circumstances when cumulatively considered, fully establish completion of chain of events, indicating the guilt of the accused and no other hypothesis other than the same. It cannot be said that convict 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 also cannot be said that the version ::: Downloaded on - 15/04/2017 19:57:41 :::HCHP 35 narrated by the witnesses in Court is in a parrot-like manner and hence is to be disbelieved.
45. Thus, from the material placed on record, it .
stands established by the prosecution, beyond reasonable doubt, by leading clear, cogent, convincing and reliable piece of evidence, that convict committed aggravated penetrative sexual assault on the victim child of aged 8 years and also criminally intimidated her.
46. For all the aforesaid reasons, we find no reason to interfere with the judgment passed by the trial rt Court. The Court has fully appreciated the evidence placed on record by the parties. There is no illegality, irregularity, perversity in correct and complete appreciation of the material so placed on record by the parties. Findings cannot be said to be erroneous in any manner. Hence, the appeal is dismissed.
Records of the Court below be immediately sent back.
(Sanjay Karol), Judge.
(P.S. Rana),
March 22 , 2016 . Judge.
(Purohit)
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