Rajasthan High Court - Jodhpur
Kamal Singh @ Tingu vs State on 1 March, 2012
Author: R.S. Chauhan
Bench: R.S. Chauhan
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. CRIMINAL APPEAL No.335/2011
Kamal Singh @ Tingu V/s. The State of Rajasthan
S.B. Criminal Appeal Under Section
374(2) Cr.P.C. against the judgment
dated 03.03.2011 passed Additional
Sessions Judge (Women Atrocities and
Dowry Cases) Bhilwara
Date of Judgment :: March 1st, 2012
HON'BLE MR. JUSTICE R.S. CHAUHAN
Reportable Mr. Anil Kaviraj for the appellant.
Mr. O.P. Singharia PP for the State.
Having attempted to commit rape and sodomy on a small child of nine years, having been convicted for offences under Sections 363, 376/511 and 377/511 IPC, vide judgment dated 03.03.2011, passed by the Additional Sessions Judge (Women Atrocities and Dowry Cases) Bhilwara, the appellant, Kamal Singh, has approached this Court.
In a nutshell, the facts of the case are that Mahesh Chandra Sharma (P.W.2) submitted a written 2 report at Police Station Pratap Nagar, Bhilwara, wherein he claimed that at 9:00 PM, he looked for his daughter, the prosecutrix (name withheld), as it was time for her to have milk. However, he could not find her. Therefore, he asked the children, who were playing outside his house, about her whereabouts. Poonam (P.W.7) told that Kamal Singh, the appellant, aged about 20-22 years, who lives opposite his house, has taken his daughter. She had seen them near the Balaji Temple around 8:30 PM. He collected his neighbour's son, Yogendra Nagar, with him, they went towards the Balaji Temple. They saw Kamal Singh walking with his daughter. The moment they saw him, he left the prosecutrix and ran away towards the water-works. His daughter told him that Kamal Singh had enticed her, taken her behind the bushes, he took off the clothes, lay her down, and tried to put his male organ into both her private parts and in her anus, and he put his penis in her mouth. He also threatened her. The child is still crying out of her sheer fear. On the basis of this report, a formal FIR, FIR No.615/2007, was registered for offences under Sections 363, 376/511 IPC. Subsequently, the police filed a charge-sheet against the appellant for offences under Sections 363, 376, 377/511 IPC.
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In order to prove its case, the prosecution examined ten witnesses, and submitted eleven documents. In his statement recorded under Section 313 Cr.P.C., the appellant pleaded that his father, who tends to drink, had fought with Mahesh Chandra Sharma, the complainant. Therefore, he has been falsely implicated in this case. However, the defence neither produced any witness, nor submitted any documents. After going through the oral and documentary evidence, the appellant was convicted for offence under Section 363 IPC and was sentenced to three years of rigorous imprisonment, and imposed with a fine of Rs.2,000/-, and was further directed to undergo three months' simple imprisonment in default thereof. He was also convicted for offence under Section 376/511 IPC and was sentenced to five years of rigorous imprisonment, and was imposed with a fine of Rs.1,500/-, and was further directed to further undergo six months' simple imprisonment in default thereof. Lastly, he was convicted for offence under Section 377/511 IPC and was sentenced to five years of rigorous imprisonment and was imposed with a fine of Rs.1,500/-, and was directed to further undergo six months of simple imprisonment in default thereof. Hence, this appeal before this Court.
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Mr. Anil Kaviraj, the learned counsel for the appellant, has raised the following contentions before this Court; firstly, admittedly the appellant and the complainant, Mahesh Chandra Sharma (P.W.2), are neighbours. Since the appellant's father, in a drunken state, misbehaved with the complainant, the appellant is being falsely implicated in this case. Secondly, the falsity of the case is apparent from the fact that the prosecutrix (P.W.4) has admitted in her cross-examination that "whatever she had stated in the examination-in-chief, she was told by her family members to say these things in the court". According to him, with this admission, her entire testimony falls apart. Thirdly, the prosecution has not been supported by Poonam (P.W.7). Therefore, the statement of Mahesh Chandra Sharma (P.W.2) that he was told by Poonam that the appellant had taken his daughter to a lonely place near the Balaji Temple stands falsified. Fourthly, the prosecution has not produced Yogendra Nagar, an independent witness. Therefore, an adverse inference should be drawn against the prosecution. Lastly, according to Dr. Vijaylaxmi Sharma (P.W.3), she did not notice any injury on the prosecutrix's body which would indicate that an attempt to rape was made. Moreover, according to the medical report (Ex.P/4), 5 there were no injuries on her private parts, or on any part of her body. Thus, the prosecutrix's testimony has not been corroborated by the medical evidence.
On the other hand, Mr. O.P. Singharia, the learned Public Prosecutor, has strenuously contended that in a case of rape, the Court should consider the testimony of the prosecutrix. If her testimony has a ring of truth, the Court need not look for corroboration. Secondly, the prosecutrix (P.W.4) has graphically described the attempts made by the appellant. Although she has admitted in her cross-examination that whatever she had told the Court in examination-in-chief, was told to her by her family members, but, subsequently she has clarified her stand. The Court had asked her specifically "whether what she had stated was due to tutoring by the family members or whether it had actually happened? To this question, the child clearly replied that "all these had actually happened with her and she had remembered the incident very clearly". Even in her re-cross-examination, she had clearly stated that I have told the Court "what had happened with me". Thirdly, the prosecutrix (P.W.4) has described the act of sodomy which no parent would have told to a child of nine years. Fourthly, the defence taken by the accused is too far-fetched to be accepted. Merely because there 6 may have been some dispute between Mahesh Chandra Sharma (P.W.2) and the appellant's father, it would not induce Mahesh Chandra Sharma (P.W.2) to involve his daughter in case of attempt to rape and sodomy. Fifthly, even if Poonam (P.W.7) has turned hostile, it would not dilute the veracity of the prosecutrix's testimony. Sixthly, even if Yogendra Nagar has not been produced by the prosecution, it would not be fatal to the prosecution case. After all, quantity of witnesses is not material, but the quality of the witnesses is material. Lastly, the allegation against the appellant is of attempt to rape and attempt to sodomise the child. Thus, it is not essential that the child should have sustained any injury. Hence, even if there is no corroboration from the medical report, it would not cast a doubt about the veracity of prosecurrix's testmony. Therefore, the learned Public Prosecutor has supported the impugned judgment.
Heard the learned counsel for the parties, and perused the record, and examined the impugned judgment.
In the case of State of Dinesh @ Buddha V/s.
State of Rajasthan [(2006) 3 SCC 771], the Hon'ble Supreme Court had opined that "In the Indian setting, refusal to act on the testimony of the victim of sexual 7 assault in the absence of corroboration as a rule, is adding insult to injury. A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by society and when in the face of these factors the crime is brought to light, there is inbuilt assurance that the charge is genuine rather than fabricated.... The evidence of a victim of sexual offence is entitled to great weight, notwithstanding the absence of corroboration. A woman or a girl who is raped is not an accomplice. Corroboration is not the sine qua non for conviction in a rape case."
In the case of State of Maharashtra V/s.
Chandraprakash Kewalchand Jain [(1990) 1 SCC 550], the Apex Court held that "A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in 8 the case of an injured complainant or witness and no more."
In the case of Bharwada Bhoginbhai Hirjibhai V/s. State of Gujarat [(1983) 3 SCC 217], the Supreme Court had opined as under :-
"10. By and large these factors are not relevant to India, and the Indian conditions. Without the fear of making too wide a statements or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault on account of any such factor as has been just enlisted. The statement is generally true in the context of the urban as also rural Society. It is also by and large 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. Because: (1) A girl or a woman in the tradition bound non- permissive Society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracised 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 9 extremely embarrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husband's 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 victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent." (Emphasis added) These reasons have recently been reiterated in the case of State of Uttar Pradesh V/s. Chhotey Lal [(2011) 2 SCC 550].
The prosecutrix (P.W.4) was a child of nine years on the date when her testimony was recorded by the learned trial court. In the examination-in-chief, the learned trial Court had asked her certain questions to ensure that she understood the importance of a testimony before a Court. After satisfying about the clarity of the thought by the child witness, the learned trial Court proceeded to record her testimony. In her examination-in- chief, she claimed that she knew Kamal Singh who was 10 present in the Court and who lives opposite her house. According to her, a day before Diwali i.e., on Choti Diwali, she had come out of her house to play with her friends. According to her, at that time, she was playing with Manish, Ravish, Sonali and Poonam. While she was playing, around 8'o Clock, the accused came to her and told her that "lets go to eat some prasad" (the religious offerings made at a temple). She declined his offer. But still, he took her with him. He took her near the temple and thereafter he took her to a house which was under
construction. He took her to a room which was situated on the roof. Thereafter he took off her clothes and his own clothes. He placed his male organs on her vagina and also placed his male organ at her anus. Subsequently, he placed his male organ in her mouth. According to her, he threatened her that she should not tell about this incident to her father, otherwise he would kill her with a knife. She further claimed that after he placed his penis in her mouth, he asked her to suck it like as an icecream. She further claimed that he lit a lamp with a lighter. When she tried to shout, he told her that in case she were to raise hue and cry, he would not take her back home. When they came down the stairs, they saw the chockidar who was cooking his food. They ran into her father, who was 11 searching for her. He took her home. Subsequently, they went to the police station. She further claimed that she never came to the court to give statements which were recorded. She further claimed that she was taken to the hospital.
In her cross-examination, she admitted that her family had told her what she should say before the Court. She claimed that she did not remember the colour of the frock that she was wearing on the date of the incident. She claimed that Kamal Singh had taken her by holding her fingers and they had gone walking. When he had taken her, she did not cry. She claimed that while he was taking her away from her house, no one in the neighbourhood was sitting outside their house. The shops, which are near the temple, did not have any crowd. Even the temple was not crowded at the time.
She denied the fact that she is being treated medically for lack of memory. She claims that she remembers everything; she also remembers what she is taught at the school. She further claimed that in the house, where she was taken by the accused, an old man was cooking his dinner at some distance. She further claimed that she could not tell anything to the old man as he was sitting far away.12
She further claimed that generally she goes to sleep around 9-10 o'clock in the night and tends to play from 6 to 8 o'clock. She further claimed that she does her homework in the day. According to her, she goes to school at 8:30 in the morning. She could not remember when she went to school on the fateful day. In the winter, the school time is from 8:30 AM to till 2:00 PM. She further claimed that when the police came to her house, they took her signature near their jeep. She further claimed that she remembered everything. However, she again admitted that she was made to understand things outside the Court. She denied the suggestions that the accused appellant did not take her anywhere and did not commit any unlawful act with her.
She was specifically asked a question by the court which is as under :-
Question. The statement made by you, mentioned above, has it been made because of what was told by your family member, or were all these things done by the accused ?
Ans. With self-confidence she said the accused had taken off my clothes and had done what I have narrated above. He has done "Ganda Kaam" (acts which are disapproved). Even today, I remember what he 13 has done.
In her re-cross-examination, she emphatically stated "what I have stated above is not because my mother and father have told me, but what has actually happened with me."
A bare perusal of her testimony clearly reveals that a young child of nine years has graphically described the attempt to commit rape as well as attempt to commit sodomy with her. The details which she has given about attempt to commit sodomy, especially oral sex, are too graphic to be tutored by any parent. Both in the question asked by the Court as well as in the re-cross-examination, the prosecutrix has clearly stated that she has described the things she was subjected to by the accused. Therefore, her testimony has a strong ring of truth in it.
Merely because in her cross-examination, at a given time, she claims that she was tutored by the family members, the contention raised by the learned counsel that she is a tutored witness does not become acceptable. For, firstly no parent would involve their child in case of attempt to rape and attempt to sodomy. After all involving a child in such a case would shatter her reputation, would subject her to psychological trauma of having to face the ridicule of society, and having to face a grueling trial. Such 14 an act would also jeopardise the chance of the girl in eventually getting married. No parent would endanger the future of the child merely because the father has certain disputes with the accused's father, who happens to be his neighbour and had caused certain nuisance. Secondly, it is unimaginable that parents would talk about oral sex and sodomy with a child of tender age. Thus, the details given by the prosecutrix are too stark to be taught to a child. Moreover, she has described the details in a language befitting a child. Thus, the contention raised by the learned counsel that the accused is being falsely implicated in this case due to the animosity between the father of the accused and the father of the prosecutrix is unacceptable.
The principles laid down by the Apex Court with regard to the testimony of the prosecutrix in a rape case would equally apply to a testimony of the prosecutrix in a case of attempt to rape and attempt to sodomy. Even in a case of attempt to rape and attempt to sodomy, the prosecutrix cannot be treated as an accomplice. Therefore, in case her testimony is cogent, credible and trustworthy, the Court need not look for corroboration. In the present case, since the testimony of the prosecutrix has a ring of truth, since she has not been shattered as a witness in her 15 cross-examination, since even as a child witness, she has stood her ground, there is no need to look for corroboration of her testimony. Moreover, it is a case of attempt to rape and attempt to commit sodomy. In such an attempt, it is not necessary that there will be a tell-tale signs. It is not the case of the prosecution that the prosecutrix had suffered any injury. It is not the case of the defence that in such circumstances, as narrated by the prosecutrix, she is likely to suffer any injury. Therefore, merely because Dr. Vijaylaxmi Sharma (P.W.3) claims that the prosecutrix did not suffer any injury, the said testimony by itself would not dilute the veracity of prosecutrix's testimony. The medical report (EX-P/4) does not indicate any injury on the private parts of the prosecutrix. But, this fact, by itself, would not be detrimental to the prosecutrix's testimony.
It is, indeed, trite to state that the quantity of witnesses is immaterial specially when the prosecution has established its case through cogent and credible evidence. Merely because Yogendra Nagar has not been produced by the prosecution, it would not be fatal to the case of the prosecution. After all Mahesh Chandra Sharma (P.W.2), the father of the prosecutrix, has not been shattered in his cross-examination. Hence, there is no reason for not 16 believing him.
Similarly, even if Poonam (P.W.7) has not supported the case of the prosecution, it would not dilute the case of the prosecution. For, both Mahesh Chandra Sharma (P.W.2) and the prosecutrix (P.W.4) have withstood the cross-examination and their testimonies are credible. Since the prosecution has been able to establish its case beyond a reasonable doubt, the learned Judge was certainly justified in convicting the accused for the aforementioned offences.
For the reasons stated above, this Court does not find any merit in the appeal. The appeal is, hereby, dismissed.
(R.S. CHAUHAN) J.
A.Asopa/-