Jammu & Kashmir High Court
Radhya Sham vs State Of J And K on 25 March, 1987
Equivalent citations: 1988CRILJ447
Author: A.S. Anand
Bench: A.S. Anand
JUDGMENT A.S. Anand, C.J.
1. The appellant was tried and convicted for an offence under Section 376 R.P.C. and sentenced to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1000/-. In default of payment of fine the appellant was directed to further undergo rigorous imprisonment for six months. The fine, it was directed, when realised, be paid to the prosecutrix Mst. Darshno Devi.
2. In brief, the prosecution case is that on 14-4-1980, at about 11.30 a.m. while the prosecutrix Mst. Darshna Devi, then aged between 9-10 years, had gone to the jungle for grazing the cattle she was confronted by the appellant who had also gone there to graze his cattle. The appellant lifted her and took her to a greed patch of land by the side of a big stone and after undressing her shalwar gagged her mouth and committed rape on her. That she bled from her vagina and her cry attracted to the spot her uncle Bishan Dass PW who was cutting leaves of a mulberry tree nearby. He came to the spot and on seeing him, the appellant ran away. The prosecutrix was in a dazed state and her uncle lifted her and took her to her home where she narrated the incident to her mother also. She was later on removed to the District Hospital, Udhampur and medically examined. At the time when she was examined by the gynaecologist in the District Hospital Udhampur Dr. Uma Sharma, she was semi-conscious and was bleeding per vagina. There was a lacerated wound of one , inch dimension in the posterior vaginal wall and the tear had to be stiched. There had been so much loss of blood that she had to be given one pint of blood and one pint of glucose 5% along with the antibiotics. The vaginal smear was taken and sent for examination to the chemical examiner. She remained in the hospital from 14th to 26th April, 1980 when she was discharged.
3. At the time when the prosecutrix was brought home by her uncle Bishan Dass, PW, her father Shanker Dass was not at home. He had gone to a nearby village to witness a wrestling match. A message was sent to him and he rushed home and found the prosecutrix in an unconscious state with blood oozing from her vagina. She was lifted in a palanquin and taken to village Jaganoo on the main road. It was dark at that time and a special bus was hired to remove the prosecutrix to district hospital at Udhampur where she was admitted as an indoor-patient. At 11 p.m. on the same day i.e., 14th April, 1980, the father of the prosecutrix lodged first information report No. 37 of 1980 at police Station, Ramnagar. The police after the lodging of the FIR swung into action and the investigation was started in the right earnest. The police rushed to the spot and prepared site plan Ex.PW/SS and vide seizure memo, Ex.PG, blood stained earth was also lifted from the place of occurrence which was also sent to the chemical examiner for analysis. The police after completion of the investigation filed a challan against the appellant on 11-9-1980. The case was committed to the Court of Session where the appellant was tried and convicted as noticed above.
4. In order to connect the appellant with the crime, the prosecution examined Mst. Darshna Devi PW/1, Dr. Uma Sharma, PW/2, Isher Dass PW/3, Mst. Goran Devi PW/4, Bishan Dass PW/5, Shanker Dass PW/6, Ganjore Singh, PW/7, Suram Singh PW/8, Farangoo PW/9, Prem Singh PW/11 and Shanker Singh PW/12, as its witnesses. The appellant denied the occurrence in his statement under Section 342, Cr. P.C. and set up a plea of false implication in support of which he examined Dhani Ram DW 1.
5. The prosecutrix Mst. Darshna Devi narrated the occurrence as has been noticed in the earlier part of this judgment. She described how she was lifted by the appellant who was related to her as an uncle and was living in the neighbourhood. During the cross-examination nothing was elicited from her to, in any way, cast any doubt on her testimony or challenge her veracity. She stated in the cross-examination that the appellant had forcibly removed her shalwar and that she was studying in Class-II when the occurrence took place. She also stated in the cross-examination that she narrated the occurrence to her uncle Bishan Dass who arrived when the appellant ran away. She described how rape was committed on her in the examination-in-chief and also that since the appellant had put his hand on her mouth, she could not raise alarm. She also stated that her shalwar had got blood stained as a result of the rape committed by the appellant and the oozing of the blood per vagina. Her uncle Bishan Dass PW 5 corroborated the statement of the prosecutrix. Inter alia, he stated that on 14-4-1980, at about 11.30 a.m. while he had gone to the land of his brother Shanker pass PW/6, to fetch some mulbery leaves and had climbed a tree, he heard some cry. He could not see from the tree as it where the cry was emanating from. He came down and went towards the site from where the cry had originated. He saw the appellant committing rape on the prosecutrix from a distance of about 15 yards and when he challenged him, the appellant ran away. When he reached the prosecutrix at that time was semi-conscious and on enquiry she told him that the appellant had committed a rape on her. He put the shalwar on the prosecutrix but found that the blood was coming out from her vagina. He lifted her and brought her to her house and told her mother about the incident. The father of the accused who had gone to witness a wrestling match in a neighbouring village was sent a message and called. He had attested the seizure memos of the shalwar and he identified the same. During the cross-examination the only suggestion put to the witness was that the brother of the appellant had filed a complaint against him in the police but that neither Shanker Dass nor the wife of Shanker Dass were arrayed as accused. Nothing was brought out as to what was the case which had been lodged by the brother of the appellant against the witness or when it was so lodged. He stated that he had not heard any words of the prosecutrix but only a cry. He had accompanied the prosecutrix to the hospital and stated that blood and glucose was transfused into the prosecutrix. He stated that the appellant was arrested on the third day of the occurrence from the house of Dewan Chand Lohar as he was not available elsewhere. The mother of the prosecutrix Mst. Goran Devi PW/4 also corroborated the testimony of the prosecutrix and after stating that the age of her daughter was 9 years and that the appellant was related to her, she disclosed as to what the prosecutrix as well as Bishan Dass PW had narrated to her regarding the incident. She also deposed that blood was coming out from the private parts of her daughter Darshana and that blood even passed with the urine of the prosecutrix. Shanker Dass PW, father of the prosecutrix deposed as to how he received the information in village Kasrori where he had gone to witness the wrestling match and his return to the house. He also stated that his daughter who was bleeding per vagina was unconscious end then went on to state how she was removed to the hospital by first being lifted in a palanquin to village Jaganoo and from there in a special bus to the district hospital at Udhampur. He proves the FIR that he had lodged and it was during the cross-examination that he stated that the father of the appellant was his uncle and categorically asserted that there was no litigation between him and the family of the appellant. Isher Dass PW/3, a neighbour of Shanker Dass had gone to the house of the prosecutrix at about 1 p.m. on hearing the sounds of weeping from that house and on reaching there was told about the occurrence by Bishan Dass. He went to call Shanker Dass PW and returned with him from the neighbouring village. He is a witness to the seizure memo of underwear and the blood soaked earth from the place of occurrence. Ganjore Singh PW/7, Suram Singh PW/8, Fardngoo PW/9 were produced by the prosecution as the witnesses in whose presence various seizures were effected and each one of them identified his signatures on the seizure memos relating to the seizure of the shalwar, the underwear etc. Farangoo PW/9, besides also produced in the court the birth register which remains in his custody where under entry No. 2884/15 the date of birth of Darshna PW had been recorded as 15-12-1970. The investigation was carried out by Prem Singh PW/10 and Virrinder Kumar PW/11. Shamsher Singh PW/12 had prepared the site plan and made certain seizures including the seizure of blood soaked earth from the place of occurrence,
6. While denying the circumstances appearing in the evidence against him, the appellant in his statement under Section 342, Cr. P.C. alleged false implication and put up a case of total denial and by producing Dhani Ram DW/1 attempted to set up a plea of arrest under different circumstances.
7. The learned Sessions Judge after careful appraisal of the evidence on the record found that the prosecution had proved the case beyond every reasonable doubt and that the plea put up by the appellant was false. He held the appellant guilty but while sentencing him took a 'lenient view' on the ground that the appellant had been facing the trial and had undergone considerable financial, physical and mental losses and strain. At the time when the appeal was admitted by this Court on 1-10-1986 a notice was issued to the appellant to show cause why in the event of the conviction being maintained, the sentence be not enhanced. The appellant has filed objections to the notice for enhancement.
8. Appearing for the appellant, his learned Counsel argued that the evidence led by the prosecution was not sufficient to uphold the conviction of the appellant. They argued that the statement of the prosecutrix had not been corroborated fully either by her mother Mst. Goran PW or by her uncle Bishan Dass PW, who, according to the prosecution, was the first one to reach the spot. Learned Counsel submitted that whereas according to the prosecutrix the appellant had put his hand on her mouth thereby preventing her from making any noise, Bishan Dass had asserted that he went to the spot after hearing the cry and, therefore, these two positions were irreconcilable. The argument is fallacious. It is in the cross-examination of Bishan Dass that he deposed that he did not hear any words being uttered but he only heard a cry. That the appellant had put his hand on the mouth of the prosecutrix would have prevented her from raising an alarm but to accept that she may not even have cried is expecting too much. In any event, no question was put to the prosecutrix as to whether she was able to raise any cry or not and, therefore the appellant cannot derive any benefit from this so-called contradiction.
Again, learned Counsel submitted that whereas according to Bishan Dass PW 5, he narrated the incident to the mother of the prosecutrix, after reaching the house of the prosecutrix in her statement stated that she enquired from the prosecutrix and on her the prosecutrix narrated to her that she had been raped by the appellant. No question was put to the mother as to whether Bishan Dass had also narrated the occurrence to her or not and, therefore, it is futile to contend that there is any such contradiction which can affect the veracity of the prosecution case at all. Learned Counsel then went on to argue that the statements of Bishan Dass, Shanker Dass and Mst. Goran Devi, did not corroborate the statement of the prosecutrix in all details and there were differences in their statements and as such the trial court could not have recorded an order of conviction against the appellant largely being its judgment on the statement of the prosecutrix without corroboration in all its particulars. Learned Counsel asserted that the conviction could not be recorded only on the statement of the prosecutrix and her relations and that even otherwise, the evidence of Mst. Goran, the mother of the prosecutrix or Bishan Dass, was not of any aid to the prosecution to prove the case against the appellant. A faint argument was also raised by the learned Counsel to urge that since the lady doctor, Dr. Uma Sharma had stated in her statement that she did not 'see' any spermatozoa, it negatived the allegation of rape. For what follows, none of those arguments has any substance to affect the prosecution case, or the conviction of the appellant.
9. While examining a case like the present one, where a minor girl of about 10 years has been subjected to rape, it becomes the bound en duty of the Court to carefully weigh and evaluate the evidence. Fenciful contradictions version (Sic). The court cannot loose sight of the fact that in the society in which we live, no woman would come forward, generally speaking, to make a humiliating statement against her honour of being raped unless it was true. The nature and extent of the corroborative evidence that is required varies according to the circumstances of the case. The corroboration which is required is with regard to the crucial parts of her testimony which, if proved, would establish the guilt of an accused. Law does not require corroboration (Secton 138, Evidence Act) and, therefore, if the statement of the prosecutrix inspires confidence and is believed, there is no bar to convict an accused on her sole testimony even. The rule requiring corroboration is not a rule of law but a rule of prudence. The need for corroboration, as a matter of prudence, except in cases where the circumstances make it safe to dispense with it, should, however, be present to the mind of the Judge. It will also be relevant to point out here that the statement made by the prosecutrix immediately after the occurrence is legally admissible and relevant as evidence of conduct under Section 8 of the Evidence Act. It is also admissible as corroboration of the evidence of the prosecutrix in the Court under Section 157 of the Evidence Act. What weight is to be attached to such a statement is, of course, a different matter. In some cases its value may be nil but in other cases where corroboration is not essential to conviction conduct of this kind may be more than enough in itself to justify acceptance of her story. This depends upon the facts of each case. The courts cannot lose sight of the fact that the crimes of violence upon women are on the increase and, therefore, supposed contradictions which have no material effect on the veracity of the prosecution case or even discrepancies in the statements of the witnesses, should not, unless the discrepancies are such which are of a fatal nature, be allowed to throw out an otherwise reliable prosecution version. It is in the light of these well settled principles that I have to evaluate the evidence in the present case.
10. At the outset it must be said that the statement of the prosecutrix inspires complete confidence. She had no reason to make any false accusation against the appellant at least none has been suggested either during the cross-examination or even during the arguments. She has described how the appellant taking advantage of his position of being her uncle in the Baradari, took her to a place which was concealed by a big stone and committed rape on her. The extent of the damage caused to the private parts of the. prosecutrix has been described by the gynaecologist Dr. Uma Sharma of the District Hospital, Udhampur. She had found the prosecutrix to be semi-conscious who was bleeding per vagina and whose general condition was very poor. The lacerated wound of the dimension of one inch in the posterior vaginal wall extending the posterior commissible required stitching. Her hymen was ruptured and the prosecutrix had to be administered one pint of blood and one pint of glucose 5% with antibiotics. She had to remain in the hospital for about 13 days and the doctor opined that her condition showed the evidence of rape. The vaginal smear was taken and sent for chemical analysis and the report of the chemical examiner shows the presence of semen/human spermatozoa on the swab which were sent by the medical witness. This report coupled with the medical evidence, therefore, fully corroborates the testimony of the prosecutrix and the court is not required, under these circumstances, to look for further corroboration even though further corroboration in the instant case is available from the report of the serologist and chemical examiner who had found human blood on the blood soaked earth lifted from the place of occurrence and the testimony of Bishan Dass and Goran Devi, the mother of the prosecutrix. The minor contradictions and discrepancies to which my attention was drawn, instead of throwing doubt on the version of the prosecution lend credence to it. The contradictions and discrepancies pointed out are so insignificant that they require no consideration at all. It was futile to urge on the part of the appellant that Bishan Dass had enmity against the appellant without bringing on record any evidence to prove that enmity. A mere suggestion in the cross-examination that some report had been lodged by the brother of the appellant against Bishan Dass without any further details of that, cannot show the existence of such an enmity as would detract from the reliability of the prosecution version. The prosecution case on the whole inspires confidence and the statements of the prosecutrix, Bishan Dass, Mst. Goran Devi and Shanker Dass PWs have created an impression on the mind of the Court that they are witnesses of truth and that their testimonies do not suffer from any blemish whatsoever. There was no reason for any false implication of the appellant and in any event, as already observed, no girl would bring in a false charge of rape against a person who was not the culprit leaving out the real culprit. In so far as the defence evidence is concerned, the same to say the least is hopeless. Dhani Ram DW was examined by the appellant perhaps to prove a plea of alibi, which had not been raised by the appellant earlier. Even otherwise a careful perusal of the statement of Dhani Ram DW shows that he does not talk about the date of the occurrence at all but his reference to the date when the appellant was arrested and according to him, he had gone to see a Mela along with the accused and the Chowkidar of the village during the evening on that date had caught hold of the appellant. This evidence is neither here nor there. No suggestion was put to the investigating officer during the cross-examination in this behalf either. The statement of Dhani Ram DW, who appeared for the first time at the trial, also otherwise does not inspire confidence and does not detract from the reliability of the prosecution case. Thus, considered I find that the prosecution has established the case beyond every doubt and, therefore, the conviction recorded by the learned Sessions Judge is well merited. I accordingly uphold the conviction of the appellant for the offence under Section 376 R.P.C.
11. Coming now to the question of sentence. The learned Sessions Judge after recording:
...a dastardly, diabolical and findish manner in which the crime was committed has sent the shivers down to the spines of everybody who is concerned with the administration of justice and maintenance of rule of law.
still took a lenient view and awarded a sentence of five years rigorous imprisonment in addition to a fine of Rs. 1000/- on the appellant and for doing so the trial court observed that "punishment m this case should not be deterrent or retributive but elements of cure and penance should make it reformative...." However, while awarding punishment, the trial court adopted, a rather half-hearted approach by neither imposing a deterrent sentence nor adopting a reformative approach. The approach of the learned Sessions Judge is not awarding adequate sentence in the case, in my opinion, is fallacious. Learned Counsel for the appellant neither in the objections nor during the course of arguments on the notice of enhancement were able to show as to what extenuating or mitigating circumstances, if any, were present which did not call for the imposition of a proper sentence in the case. Their emphasis was that the case had not been proved beyond a reasonable doubt, which contention has not found favour with me.
12. The measure of punishment must depend upon the greater or less atrocity of the crime, the conduct of the criminal and the defenceless and unprotected state of victim. Crimes of violence upon women who are not in a position to defend themselves must be put down with a strong hand and it would be a very sad state of affairs if the criminals were to carry an impression that to criminally assault a woman or to rape her, was not a serious matter and that they could always satisfy their lust if only they were prepared to undergo a comparatively short term of imprisonment. This is more important when considering the case of violence upon girls of tender years. In my opinion, a deterrent sentence is called for so as to prevent recurrence of such cases. In the recent years, the rising crime rate particularly in relation to women has made the criminal justice system a subject of heated debates. Indeed, it is not possible to lay down any hard and fast rule in that behalf and the question, such as "How long is too long?" and "How short is too short?" are complex questions and the answer to them depends to a large measure on the nature of the crime, the position of the crime-victim and the like. Judicial discretion is, indeed, very broad in the matter of sentencing but the Judges while exercising that discretion must consider variety of factors and more particularly the position of the victim and the nature of the crime. The crime of rape like the one in the present case, where the appellant, a grownup adult of over 18 years of age, took advantage of his relationship and took the unsuspecting minor prosecutrix aged about 10 years and committed rape on her causing her much physical pain and mental agony besides psychological trauma, required a deterrent sentence to be imposed so as to discourage future 'crimes of the like nature. After considering the case in all its perspectives, I am of the opinion that the sentence of five years rigorous imprisonment and a fine of Rs. 1000/- do not commensurate with the gravity of the offence. There are no mitigating factors at all in this case and each of the factors as noticed above, is an aggravating' factor. The call of the day also is for a massive crack-down on crime particularly those relating to rape and indecent sexual assaults on females. I accordingly while dismissing the appeal against the conviction of the appellant, enhance the sentence to seven years rigorous imprisonment and a fine of Rs. 2000/-. In default of payment of fine, the appellant shall suffer further rigorous imprisonment for 9 months. The fine, if realised, shall be paid to the prosecutrix.