Punjab-Haryana High Court
Prem Alias Ballu vs State Of Haryana on 13 November, 2002
Equivalent citations: 2003CRILJ962
Author: Adarsh Kumar Goel
Bench: Adarsh Kumar Goel
ORDER Adarsh Kumar Goel, J.
1. The appellant challenges his conviction under Section 376, IPC and sentence of rigorous imprisonment for five years awarded to him.
2. The case of the prosecution is that on 13-5-1984, 'S' (victim of rape whose name is being withheld), a minor girl, was picking up cow dung at 4.00 p.m. and the accused was grazing cattle nearby. The accused caught hold of 'S', gauged her mouth with the help of her chuni, untied her under garments and committed rape. She tried to free herself, but could not succeed and in the process her shirt was torn. Somehow she got her mouth released and raised lalkara, on which Mehar Singh and Prem PWs came to the spot. On seeing the witnesses, the accused ran away. The victim was taken to her house, where she narrated the incident to her father and after calling the Sarpanch, the victim, her father and Sarpanch left for police station and on meeting ASI Karam Singh, a case was got registered. The victim was medically examined. The accused was arrested and also medically examined. After investigation, the accused was challaned.
3. The prosecution examined P.W. 1 Dr. (Mrs) Navita Gaur, who stated that she examined the victim and found that "her secondary sex characters were not fully developed. The auxiliary and pubic hairs were absent. The breasts were small and had just started developing. There were no marks of external injury on any part of her body. The examination of vulva revealed redness and tenderness of fourchette. The separation of labia showed cruciate rupture of hymen and the edges were red and tender. The vaginal orifice admitted one finger. The patient had not yet started menstruating."
4. PW-3 Dr. K. C, Jain conducted radiological examination of the victim and found her age between 9 to 14 years. PW-4 Puran Chand proved birth entry Ex. PE, according to which date of birth of the victim was 31-8-1971, while according to school leaving certificate Ex. PG proved by PW-6 Jeet Singh, Headmaster, the date of birth of the victim was 2-1-1971. PW. 7 is prosecutrix 'S', who has fully supported the prosecution case. PW-8 Prem is an eye-witness, who rushed to the spot on hearing alarm raised by 'S' and saw her lying naked on the ground and the accused lying on her body. He deposed that the accused ran away on seeing the witnesses. PW-9 Karam Singh SI is the investigating officer.
5. In his statement under Section 313, Cr. P.C. the accused denied the prosecution allegations, who stated that he had given 4/5 slaps to the prosecutrix on account of her having taken away the dung collected by him. He also pleaded that he had enmity with Mehar Singh PW. Kehar Singh DW-1, who was employer of the accused, was produced in defence, who stated that the accused had beaten the prosecutrix for her taking away the dung collected by him.
6. On consideration of evidence on record, particularly the evidence of the prosecutrix and the medical evidence, the trial Court held that the prosecution case stood proved beyond reasonable doubt and convicted and sentenced the appellant.
7. Learned counsel for the appellant submitted that in absence of injuries on the person of the prosecutrix and the accused and absence of semen, the case of the prosecution cannot be held to be proved and version of the prosecutrix was not reliable. He further submitted that the age of the prosecutrix should be held to be above 16 years and inference of consent should be drawn. In any case, sentence awarded to the appellant should be reduced to the period of sentence already undergone. Reliance was placed on Suresh Chand v. State of Haryana, 1976 Cri LJ 452 para 14 (P and H); Rahim Beg v. State of U.P., AIR 1973 SC 343 : (1972 Cri LJ 1260) and Pratap Misra v. State of Orissa, AIR 1977 SC 1307 : (1977 Cri LJ 817) to submit that in absence of the Injuries on the prosecutrix and the accused and in absence of semen marks, the case of the prosecution could not be accepted. Reliance was also placed on Lachhman v. State, 1973 Cri LJ 1658 (Him Pra) in support of the submission that evidence of Prosecutrix could not be accepted. Reliance was placed on Molu Ram v. State of Haryana, 1986 (2) Rec. Cri R 142 (Punj and Har) in support of submission that age of the prosecutrix should not be taken to be below 16 years on the basis of school record or the medical evidence. Reliance was also placed on Jit Singh v. State of Punjab, 1983(1) Rec Cri R 359 (P and H) to submit that in absence of evidence of stiff resistance, inference of consent should be drawn. Reliance was also placed on Raj Pal v. State of Himachal Pradesh, 1996 (1) Rec Cri R 338 (HP); State of Rajasthan v. Om Parkash, 2002 SCC (Cri) 1210 : (2002 Cri LJ 2951); Kakoo v. State of Himachal Pradesh, AIR 1976 SC 1991 : 1976 CriLJ 1545); Satto v. State of U.P., AIR 1979 SC 1519 : (1979 Cri LJ 943) and State of Rajasthan v. N. K., AIR 2000 SC 1812 : (2000 Cri LJ 2205) in support of the submission that sentence should be reduced to the period of sentence already undergone.
8. Learned counsel for the State supported the conviction and sentence of the appellant.
9. I have considered the rival submissions and perused the record of the case.
10. In State of Punjab v. Gurmit Singh, AIR 1996 SC 1393 : (1996 Cri LJ 1728), the Apex Court observed as under (paras 7 and 20) :
"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 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 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 of rape or sexual molestation, be viewed with doubt, disbelief or Suspicion? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corrobration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is hot a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person's lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as it she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist Upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable..........
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. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the back ground of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."
11. In the above case while setting aside acquittal, the Apex Court convicted the accused and sentenced him to undergo rigorous imprisonment for five years and to pay a fine of Rs. 5000/-.
12. The Court also observed that ano nymity of the victim of the crime must be maintained as far as possible. Reference was also made to Section 114A of the Evidence Act added in the year 1984 providing that the Court shall presume that the victim did not consent, where the Victim makes a state ment before the Court that she did not con sent.
13. In State of Himachal Pradesh v. Gian Chand, AIR 2001 SC 2075 : (2001 Cri LJ 2598), para 14 the Apex Court considered the principles for appreciating medical evidence and observed that mere absence of mark of external injury do not negate the prosecution case. In State of Karnataka v. Krishnappa, AIR 2000 SC 1470 : (2000 Cri LJ 1783), the Apex Court observed as under :--
"Sexual violence apart from being a dehumanising act is an unlawful intrusion of the right to privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity --it degrades and humilitates the victim and where the victim is a helpless innocent child, it leaves behind a traumatic experience. The Courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely" ..................... "The sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. Courts must hear the loud cry for justice by the society in cases of heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court. There are no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum sentence to the respondent. To show mercy in the case of such a heinous crime would be travesty of justice and the plea for leniency is wholly misplaced."
14. Reliance was also placed on an ear lier judgment in State of A. P. v. Bodem Sundara Rao, AIR 1996 SC 530 para 13. In T. K. Gopal alias Gopi v. State of Karnataka, AIR 2000 SC 1669 : (2000 Cri LJ 2286), award of liberal sentence in rape cases was deprecated. In Om Parkash's case (2002 Cri LJ 2951, Para 20) (supra), it was observed as under :--
"Lastly, it was contended on behalf of the respondent that the incident took place about 13 years back and by now the accused has matured and would be around 31 years of age and having already undergone nearly three years of sentence, the same may be treated by this Court as sufficient punishment to him and, therefore, taking a sympathetic view, the sentence already under-gone be imposed. We are unable to accept the contention. The trial Court imposed on the respondent sentence of seven years' rigorous imprisonment besides fine, as earlier noticed. Having played with the life of a child, the respondent does not deserve any leniency and for him sympathy on the ground sought for will be wholly uncalled for. The respondent deserves to undergo the remaining part of the sentence awarded by the learned Additional District and Sessions Judge."
15. In view of legal position as discussed in recent decisions of the Apex Court, contentions raised on behalf of the appellant cannot be accepted. The case of the prosecution stands fully proved and there is no reason to discard the evidence of PW-7, who is the prosecutrix, particularly when the said statement is fully corroborated by medical and ocular evidence and the relevant circumstances. I am in agreement with the reasoning adopted by the trial Court in accepting the case of the prosecution, Sentence awarded to the appellant is less than the minimum, which is seven years under Section 376 IPC. There is no scope for 'further reduction of the sentence.
16. For the above reasons, there is no merit in this appeal and the same is dismissed.