State vs . 1. Krishan Pal Singh S/O Netra Pal ... on 20 April, 2010

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Delhi District Court

State vs . 1. Krishan Pal Singh S/O Netra Pal ... on 20 April, 2010

                                                  1

IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGE-VII/NE-
CUM-ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS :
                         DELHI :

S.C. No. 36/08

State       Vs. 1. Krishan Pal Singh S/o Netra Pal Singh, R/o Village
                    Taharpur, Thana Tappal, District Aligarh, U.P.
                 2. Sangam S/o Ram Chander, R/o Village Hardaspur, PS
                    Lodha, Distt. Aligarh, U.P.
FIR No. 402/06
PS Nand Nagri.
U/s 363/366/376/368 IPC.

Date of institution :- 22.11.08
Date on which reserved for Order :- 26.03.2010
Date of Decision :- 13.04.2010
J U D G E M E N T :

Narayan Singh was working as teacher in Govt. Boys Sr. Sec. School, Janta Flats, Nand Nagri, Delhi. On 27.05.06 at 2pm, he returned from his school and reached at home. His wife Vimlesh told him that their daughter Promila (name changed) did not return since 9.30am on that day. He searched for his daughter, but could not trace her. Then he went to PS Nand Nagri and lodged missing report of Promila at about 11.30pm vide DD No. 94B. On 28.05.06, on coming to know that his daughter has been kidnapped by Krishan Pal and Sangam, he went to police station and gave statement, on the basis of which FIR u/s 363/34 IPC was registered. On 31.05.06, Promila came back. Her statement u/s 161 Cr.P.C as well as u/s 164 Cr.P.C was got recorded. During the course of investigation, accused Krishan Pal was arrested. Investigation culminated into a chargesheet against him.

2. Charge for offences punishable under sections 363, 366 and 376 IPC was framed against accused Krishan Pal, to which charge he pleaded not guilty and claimed trial.

S.C. No. 36/08 Page 1/43

3. During the course of trial, when prosecutrix was examined she named accused Sangam as one of the persons, who had kidnapped her and committed rape upon her. She had also named him in her statement recorded u/s 161 Cr.P.C., but he was kept in column No.2 at that time. As such accused Sangam was ordered to be summoned and tried with accused Krishan Pal vide order dated 25.08.07. After putting his appearance, charge for offences punishable under section 363, 366 and 376 IPC was also framed against accused Sangam vide order dated 24.09.07, to which charge he pleaded not guilty and claimed trial.

4. Thereafter, an application under section 216 Cr.P.C, for alteration of charge framed u/s 376 IPC against both accused persons to charge under section 376(2)(g) IPC was filed by complainant Narayan Singh. After hearing arguments on the application, it was allowed vide order dated 15.03.08, whereby it was ordered that an alternate charge under section 376(2)(g) IPC be framed against both accused persons. Accordingly, alternative charge u/s 376(2)(g) IPC was framed against them, to which charge they pleaded not guilty and claimed trial.

5. To substantiate the charges, prosecution has examined Narayan Singh Nigam (PW1), Dr. Banarasi (PW2), Balbir Singh, Head Constable (PW3), Promila (PW4), Neeraj Kr. Sharma (PW5), Sh. Sunder (PW6), Poonam, Constable (PW7), Vishambar Singh, PGT (PW8), Harpal Singh, ASI (PW9), Narender, Constable (PW10), Smt. Bimlesh (PW11), Bhushan, Head Constable (PW12), Ramesh Chand, Constable (PW13), Shiv Shankar Parsad SI (PW14), V. Shankarnarayanan, Sr. Scientific Assitant (PW15), Dr. Arvind Kumar ASI (PW16), Dr. Shagun Sinha (PW17) and Sanjeev Kumar Malhotra, ld. ACMM (PW18) in the case.

6. Narayan Singh Nigam (PW1) is the father of prosecutrix Promila. He has been working as a teacher in Govt. Boys Sr. Secondary School, Janta S.C. No. 36/08 Page 2/43 3 Flats, Nand Nagri, Delhi. On 27.05.06, he returned back from his school where he was working as a teacher, at 2pm. His wife Bimlesh told him that his daughter Promila, aged 15 ½ years had left the house at about 9.30am in printed salwar-suit and she had not returned back since then. He searched for his daughter in the locality, but no clue could be gathered. He went to PS on the same day and lodged missing report at about 11.50pm vide DD No. 94B. Thereafter, he tried to search his daughter Promila here and there. On 28.05.06, he came to know that his daughter Promila has been kidnapped by Krishan Pal and Sangam by enticing her, without his permission. He immediately informed the police and personally went to PS and gave his statement Ex.PW1/A. On 31.05.06, his daughter Promila came back to her house at about 3.30pm and on her return, she told him that she was subjected to rape by Sangam and Krishan Pal against her will and without her consent. On 01.06.06, he along with his daughter went to PS, where one lady Constable recorded statement of his daughter. His daughter was got medically examined. On 02.06.06, statement of his daughter was recorded u/s 164 Cr.P.C by ld. MM. When his daughter refused to accompany her father before the ld. MM, she was sent to Nari Niketan. He further deposed that he came to know about kidnapping of his daughter by accused Krishan Pal and Sangam, after recording of DD No. 94B.

Dr. Banarasi (PW2) proved MLC of Krishan Pal as Ex.PW2/A, which was prepared by Dr. Deepak.

Balbir Singh, Head Constable (PW3) proved missing report lodged by Narayan Singh vide DD No. 94B as Ex.PW3/A. On 28.05.06, he recorded FIR and proved carbon copy of the same as Ex.PW3/B. Promila (PW4) is the star witness of the prosecution. She unfolds that she was fifteen and half years old at the time of incident, and her date of S.C. No. 36/08 Page 3/43 4 birth is 26.10.1990. She was studying in 12th standard. On 27.05.06 at about 9.30am, she had taken Rs.50/- from her mother and went to Meet Nagar Market to buy stationery. In the market, accused Krishan Pal met her along with Sangam. They enquired from her the residential address of her grand father. Initially, she refused. Accused Krishan Pal along with Sangam took out a knife and threatened her. Due to fear, she went with them. They took her in a vehicle, which was similar to Marshel and it was of white colour. On the way, they continuously threatened her and took her to Aligarh Khair. At about 6.30pm, they reached a secluded place. There was a room where the accused Krishan Pal and Sangam maintained physical relations with her one by one against her will and without her consent. This continued for entire night and she became unconscious. Thereafter, both of them took her here and here for about three days. On 31.05.2006, they left her at Aligarh at about 8am. Her Rs.50/- was also snatched by them. They ran away from there, after leaving her all alone. She came back to her house by bus on 31.05.06. On 01.06.06, she along with her father went to PS. Her statement was recorded by SI S.S. Prasad, in the presence of a lady Constable. She was got medically examined. She mentioned before the doctor about the rape committed with her by accused Krishan Pal and Sangam. She was kept in police station on night intervening 01/02-06-06. In the night time, grand father of accused Krishan Pal and family members of Sangam came there in the PS. They pressurized her to give statement in favour of accused Krishan Pal and Sangam before the ld. MM, otherwise she along with her two brothers would be killed. After grand father of Kishan Pal and family members of Sangam left the police station, IO put pressure on her through out the night to depose in favour of Krishan Pal, otherwise her father will be implicated in a false case. On 02.06.06, she was brought to Karkardooma Courts by the S.C. No. 36/08 Page 4/43 5 investigating officer. Even in the Court, investigating officer, grand father of Krishan Pal as well as family members of Sangam pressurised her to depose as they had guided her, and thus she made her statement before the ld. MM due to pressure of investigating officer and due to threats extended to her. After recording her statement, IO again pressurized her to show her willingness before the ld. MM for going to Nari Niketan instead of accompanying her parents and due to this she showed her willingness to go for Nari Niketan. She also deposed that clothes worn by her at the time of incident were washed by her and same were not taken by the doctor.

Neeraj Kr. Sharma (PW5) unfolds that on 27.05.06 at about 12 O'clock a telephone call received on his PCR from Delhi phone No. 011-69900163, which call was of a lady, who wanted to talk to Krishan Pal. He called Krishan Pal and conversation took place between Krishan Pal and that lady for about 20 minutes. He handed over photocopy of relevant pages of register Ex.P1, which was seized vide memo Ex.PW5/A, pertaining to aforesaid conversation.

Sunder (PW6) was running a STD Booth. About two and half years ago at about 11.30/12 O'clock one girl came to his booth and made a telephone call to some boy. They talked about for 20 minutes. Thereafter, father of the girl called him and informed that his daughter had left his house, as such he should tell him his address. He told that person that his daughter had left in a bus going to Aligarh.

Poonam, Constable (PW7) took Promila to GTB Hospital for medical examination. After medical examination of prosecutrix, vaginal smear swab slides were handed over by the doctor to her. She produced those parcels before the IO, who took the same into possession vide memo Ex.PW7/A. Vishambar Singh, PGT (PW8) unfolds that Promila, daughter of Narayan Singh, was admitted in Sarvodaya Kanya Vidayalaya, DDA Flats, S.C. No. 36/08 Page 5/43 6 East of Loni Road, Delhi, on 25.08.05 in 11th standard. Her name was mentioned at Sr. No. 1015 of admission register. Her date of birth was recorded as 26.10.90, on the basis of school leaving certificate. Her name was struck off from the school record on 11.08.06 on account of long absence from school. Certificate Ex.PW8/A was issued by Munish Kumar, Vice-Principal of the school. He also proved photocopy of admission register as Ex.PW8/B. Harpal Singh ASI (PW9) was working as MHC(M) on 01.06.06 at PS Nand Nagri. He received one parcel and one envelope, duly sealed with seal of GTB Hospital, from S.S. Prasad SI, besides sample seal. He recorded an entry to this effect at Sr. No. 3564 of the register. He also recorded an entry at Sr. No. 3664 of the register in respect of one register duly sealed with seal of SST, which was deposited on 19.06.06. On 30.07.06, Arvind Kumar ASI had deposited two parcels, besides one sample seal from him in the malkhana. He recorded an entry at Sr. No. 3741 and proved copy of these entries as Ex.PW9/A and Ex.PW9/B respectively.

Narender, Constable (PW10) took four parcels, besides one sample to FSL Rohini, vide R.C. No. 136/21 and deposited there.

Smt. Bimlesh (PW11) gave confirmation to facts unfolded by her husband Narayan Singh (PW1).

Bhushan, Head Constable (PW12) took accused Krishan Pal to GTB Hospital for medical examination. He obtained MLC of accused, besides two parcels and one sample seal from the doctor and handed over the same to Arvind Kumar ASI.

Ramesh Chand, Constable (PW13) proved missing report of Promila, daughter of Narayan Singh, recorded vide DD No. 94 as Ex.PW3/A. Shiv Shankar Prasad SI (PW14) detailed those very investigative S.C. No. 36/08 Page 6/43 7 steps, which were taken by him during the course of investigation. Thereafter, he handed over the case file to MHC(R) and further investigation was assigned to ASI Arvind Kumar.

V. Shankarnarayanan, Sr. Scientific Assistant (PW15) examined exhibits of the case. He proved biological report in respect of exhibits as Ex.PW15/A. He also proved serological report in respect of exhibits as Ex.PW15/B. Arvind Kumar ASI (PW16) took up investigation of the case on 20.06.06. He detailed facts regarding arrest of accused Krishan Pal, besides depositing of case property in FSL. He also unfolds that accused Sangam was shown at column No.2, since no incriminating evidence came on record against him during investigation. On 06.01.07, he collected result from FSL and deposited the same in the Court.

Dr. Shagun Sinha (PW17) proved MLC of Promila as Ex.PW17/A, which was prepared by Dr. Richa Aggarwal.

Sh. Sanjeev Kumar Malhotra, ld. ACMM (PW18) recorded statement of prosecutrix u/s 164 Cr.P.C, which is exhibited as Ex.PW4/B. He proved application moved for recording said statement as Ex.PW18/A and application for supplying copy of statement of prosecutrix as Ex.PW18/B.

7. In order to afford an opportunity to explain circumstances appearing in evidence against the accused persons, they were examined under section 313 Cr.P.C. They had denied all allegaions levelled against them. Their case has been of denial simplicitor. They claimed themselves to be innocent and falsely implicated in the case. To defend themselves, they have examined Kashi Ram (DW1), Pappu (DW2) and Shiv Lal (DW3) in support of their defence.

8. Arguments were heard at the bar. Sh. Subhash Chauhan, ld.

Prosecutor, assisited by H.D. Aditya, Advocate for complainant presented S.C. No. 36/08 Page 7/43 8 facts on behalf of the State. Sh. Kripal Singh, Advocate, had advanced arguments on behalf of the defence.

9. It was submitted by ld. Counsel for the accused that prosecution has failed to prove the fact that prosecutrix was minor on the date of commission of offence, inasmuch as, there is a doubt in the certificate produced by the school authorities. Moreover, ossification test of prosecutrix was not got conducted. He also referred to section 5 of Hindu Marriage Act for contending that prosecutrix was major on the date of commission of offence. Moreover, all the defence witnesses examined on behalf of the accused have categorically deposed that prosecutrix was aged about 18 years. As such it was submitted that prosecutrix was major on the date of commission of offence. He also submitted that prosecutrix was a consenting party, inasmuch as, her statement under section 164 Cr.P.C was recorded by the ld. Magistrate, who admitted that this statement was given by prosecutrix voluntarily. He also referred to the letters written by the prosecutrix to accused Krishan Pal for showing that she was having love affairs with him and wanted to marry with him. He also referred to the history given to the doctor for submitting that she herself went with the accused. She did not make any complaint on the way to anybody that she has been pressurized by the accused to accompany them. Further more, although she deposed that on the pointing out of knife, she was raped by the accused persons, however no knife was recovered. It was further submitted that initially charge-sheet was filed only against accused Krishan Lal and charge was framed u/s 363/366/376 IPC, and thereafter prosecutrix named accused Sangam also in her statement and as such accused Sangam was summoned and charge was framed against him. No charge for offence u/s 34 IPC was framed against the accused persons. No charge u/s 376(2)(g) is made out. Reliance was placed on S.C. No. 36/08 Page 8/43 9 Mohammad Said Khan vs. The State of Madhya Pradesh, 1985 (1) Crimes 157; and Shakeel @ Pappoo and another vs. State of U.P., 2000 Cr.L.J. 153.

10. Rebutting the contentions of the ld. Counsel for the accused, it was submitted by ld. Prosecutor that testimony of prosecutrix herself is sufficient to convict the accused persons. In the instant case, she has testified that she was taken on the point of knife to a secluded place and thereafter rape was committed upon her. As regards her statement u/s 164 Cr.P.C, it was submitted that she has given explanation for making that statement, which was not voluntary and was recorded under duress of family members of the accused persons. As regards the age of prosecutrix, it was submitted that prosecutrix gave her date of birth, which finds corroboration from testimony of her parents and the school record. The teacher, who brought the school record, was not even cross-examined by the ld. Defence counsel. As such there is no reason to disbelieve the date of birth as recorded in school record, which was maintained by the school authorities in discharge of their official duties. As regards the testimony of defence witness is concerned, it was submitted that same cannot be relied, inasmuch as all the defence witnesses have given age of prosecutrix as 18 years, but they could not tell even their own age or age of their kith and kins. As regards the plea taken by the defence witnesses, it was submitted that no documentary evidence was submitted in this regard. Therefore, it was submitted that prosecution has been able to bring home guilt of the accused beyond reasonable doubt and they are liable to be convicted for offences alleged against them. Supporting the submissions of ld. Prosecutor, ld. Counsel for the complainant submitted that age as mentioned in section 5 of the Hindu Marriage Act is irrelevant. Since age is prescribed in section 376 IPC itself, therefore it is the age mentioned in S.C. No. 36/08 Page 9/43 10 this section, which is to be seen and not the age mentioned in other Acts. As regard submissions that no charge u/s 34 IPC was framed, it was submitted that no separate charge u/s 34 IPC was required to be framed as section 372(2)(g) IPC itself contemplates commission of rape by more than one person. As regards testimony of prosecutrix is concerned, it was submitted that although certain discrepancies have appeared in her statements recorded u/s 161 and 164 Cr.P.C, it was submitted that statement recorded u/s 161 Cr.P.C is not substantive piece of evidence and it can only be used for the purpose of corroboration or contradictions. As regards her statement u/s 164 Cr.P.C is concerned, it was submitted that statement of prosecutrix, u/s 161 Cr.P.C, was recorded in police station on 01.06.06 and thereafter she was kept in police station throughout the night. Thereafter, on the next day, that is on 02.06.06, her statement u/s 164 Cr.P.C was recorded. Prosecutrix has given the explanation as to in what circumstances her statement u/s 164 Cr.P.C was recorded, inasmuch as, she has deposed that grand father of Krishan Pal and family members of Sangam came to police station and she was threatened by them as well as investigating officer of the case. Therefore, statement u/s 164 Cr.P.C was not voluntary one. He further referred to the conduct of investigating officer for submitting that when prosecutrix had levelled allegations against the accused Sangam in he statement u/s 161 Cr.P.C itself, why he was kept in column No.2. It was only when she came in the Court and reiterated about role of Sangam, only then he was ordered to be summoned u/s 319 Cr.P.C. He referred to the presumption which is to be drawn u/s 114-A of the Evidence Act for submitting that it is for the accused persons to prove that prosecutrix was consenting party. No lady will consent to have sex with two persons in any case. In the instant case, consent is immaterial since prosecutrix was minor on the date of incident.

S.C. No. 36/08 Page 10/43

11 Lastly, it was submitted that whole life of prosecutrix has been ruined, inasmuch as, complainant is not able to get any suitable match for prosecutrix. Whole life of prosecutrix has been ruined by the accused persons by their dastardly act of committing rape upon her. He placed reliance on Mohd. Saklain vs. State, 1997 JCC 23; Bhoop Ram vs. State of U.P., AIR 1989 SC 1329; IX (2007) SLT 47, Iqbal vs. State of Kerala; State of Punjab vs. Rakesh Kumar, VII (2008) SLT 323; V (2009) SLT 329, State of H.P. vs. Suresh Kumar @ DC; and Yedla Srinivasa Rao vs. State of A.P., 2006 (3) JCC 1623.

11. I have given my considerable thoughts to arguments advanced by the ld. Counsels for the parties and have perused the record.

12. Before touching the merits of the case, in the light of the evidence, on record, in the first instance, it must be stated, as to what approach, the Court should adopt, while evaluating the prosecution evidence, particularly the evidence of the prosecutrix, in sex related offence. Is it essential that the evidence of the prosecutrix should be corroborated in material particulars, before the Court bases a conviction on her testimony? Does the rule of prudence demand that in all cases save the rarest of rare, the Court should look for corroboration before acting on the evidence of the prosecutrix? Let us see, if the Evidence Act, provides the clue to this riddle. Under the Evidence Act, evidence means and includes all statements, which the Court permits or requires to be made before it, by the witnesses, in relation to the matters of fact, under inquiry. Under Section 59 of the Evidence Act, all facts, except the contents of documents, may be proved by oral evidence. Section 118 then illustrates, as to who may give oral evidence. According to that section, all persons are competent to testify, unless the Court considers that they are prevented from understanding the questions, put to them, or from giving rational answers to those questions, S.C. No. 36/08 Page 11/43 12 by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. Even, in the case of an accomplice, Section 133 provides that he/she shall be a competent witness, against an accused person, and the conviction is not illegal, merely because it proceeds upon the uncorroborated testimony of an accomplice. However, illustration (b() to section 114, which lays down a rule of practice, says that the Court may presume that an accomplice is unworthy of credit, unless he is corroborated, in material particulars. Thus, under Section 133, which lays down a rule of law, an accomplice is a competent witness, and the conviction based solely on his uncorroborated evidence, is not illegal, although in view of Section 114 illustration (b), the Courts do not, as a matter of practice, do so, and look for corroboration, in material particulars. This is the conjoint effect of Sections 133 and 114 illustration (b).

13. Testimonial potency of version of a victim of rape cannot be put on par with an accomplice. She is infact 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 of the Evidence Act 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 be attached in evaluation of her evidence as in the case of an injured complainant or a witness and no more. What is necessary is that the Court 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, which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the S.C. No. 36/08 Page 12/43 13 prosecutrix it may look for corroboration required in the case of an accomplice. The nature of evidence required in 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 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. Law to this effect was laid by the Apex Court in State of Maharashtra Vs. Chander Prakash Keval Chand Jain (1990 (1) SCC 550).

14. Hon' ble High Court in Jarnail Singh vs. The State of Haryana, 2009 (2) RCR (Criminal) 543 observed as under : "We think it proper, having regard to the increase in the number of sex- violation cases in the recent past, particularly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be corroborated in material particulars, except in the rarest of rare cases. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe would not be believed unless it is corroborated in material particulars in the case of an accomplice to a crime. Ours is a conservative society where it concerns sexual behaviour. Ours is not a permissive society as in some of the Westerm and European countries. Our standard of decency and morality in public life is not the same as in those countries. It is, however, evident that respect for womanhood, in our country is on active and cases of molestation and rape are steadily growing. Indian S.C. No. 36/08 Page 13/43 14 woman is now required to suffer indignities in different forms. Form lewd remarks to eve-teasing, from molestation to rape. Decency and morality in public life can be promoted and protected only if we deal strictly with those, who violate the social norms. The standard of proof to be required by the Court in such cases, must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Courts must also realise that ordinarily woman, more so a young girl, will not stake her reputation by levelling a false charge concerning her chastity."

15. The Apex court in State of Punjab Vs. Gurmeet Singh (1996 (2) SCC

384) has held that no selfrespecting woman would come forward in a Court just to make a humiliating statement against her honour such as 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 and tendency to conceal outrage of sexual aggression are factors which the Court should not overlook. The testimony of the victim in such case is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Court 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.

16. In Omprakash Vs. State of U.P. (2006) 9 SCC 787, it was held that "it is settled law that the victim of sexual assault is not treated as accomplice and as such, her evidence does not require corroboration from any other evidence including the evidence of a doctor. In a given case even if the S.C. No. 36/08 Page 14/43 15 doctor who examined the victim does not find sign of rape, it is no ground to disbelieve the sole testimony of the prosecutrix. In normal course a victim of sexual assault does not like to disclose such offence even before her family members much less before public or before the police. The Indian woman has a tendency to conceal such offence because it involves her prestige as well as prestige of her family. Only in few cases, the victim girl or the family members have courage to go before the police station and lodge a case. In the instant case, the suggestion given on behalf of the defence that the victim has falsely implicated the accused does not appeal to reasoning. There was no apparent reason for a married woman to falsely implicate the accused after scatting (sic scathing) her own prestige and honour.

Of late, crime against woman in general and rape in particular is on the crease. 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 must remember that a rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as 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 Courts, 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 insignificant discrepancies in the statement of 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 S.C. No. 36/08 Page 15/43 16 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 background of the entire case and the trial court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestation."

These authorities were relied upon by the Hon'b le Apex Court and Hon' ble High Court in V (2009) SLT 329, State of HP vs. Suresh Kr. @ DC; 2010 II AD (Delhi) 117, Nanna Gupta @ Bablu vs. State; 2010 III AD (Delhi) 504, Hari Om vs. State; and 2010 I AD (Delhi) 130, Mohinder Singh Bhatia vs. State. In view of these authoritative pronouncements, evidence of prosecutrix has to be scrutinized.

17. Before proceeding to the merits of the case, first of all, age of prosecutrix has to be determined as the entire fate of the case hinges on her age.

18. Section 361 of the Indian Penal Code provides for kidnapping from lawful guardianship. This section reads as under : "361. Kidnapping from lawful guardianship.-- Whoever takes to entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship."

19. A perusal of this section goes to show that a female under the age of 18 years is to be considered as minor.

20. Section 375 IPC deals with sexual offences. The relevant part of this section, so far is material for the present purpose reads as under : S.C. No. 36/08 Page 16/43 17 "375. Rape.--A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following description:

Firstly.-- .. ................................................................................................. ................................................................................................................. Sixthly.-- With or without her consent, when she is under sixteen years of age".

21. Ld. Counsel for the accused has placed reliance on Section 5 of the Hindu Marriage Act, which deals with condition for a Hindu Marriage. The relevant portion of this section reads as unde :

"5. Condition for a Hindu Marriage A marriage may be solemnized between two Hindus, if the following conditions are fulfilled, namely: III. The bridegroom has completed the age of 21 years and the bride 18years at the time of marriage".

22. By placing reliance on the age of bride, which was given earlier as 15 years, it was submitted that for all intent and purposes, the relevant age is 15 years. This submission is totally misconceived, inasmuch as, the age of 15 years for the bride and age of 18 years of the bridegroom as it stood earlier were substituted by the Act 2 of 1978, which came into force w.e.f. 01.10.1978 and thereafter the age of bridegroom is now 21 years and that of bride is 18 years. The Child Marriage Restraint (Amendment) Act 1978 has substituted the minimum prescribed age for the bride and bridegroom u/s 5 (iii). The object was to prevent and eradicate the evil of child marriage. Now it is required that at the time of marriage, the bridegroom must have completed the age of 21 years and the bride the age o 18 years. Under these circumstances, ld. Counsel for the accused does not get any help from this section rather the same goes against him. This age of 18 years of the girl is in consonance with the age prescribed u/s 361 S.C. No. 36/08 Page 17/43 18 IPC, which also provides for the age of the girl to be below 18 years for the purpose of kidnapping, while section 375 IPC provides for the age as sixteen years.

23. Turning to the case in hand, Narayan Singh (PW1) is the father of prosecutrix and has given age of his daughter as 15 and half years on the date of incident. As per his testimony, he has been working as teacher in Govt. Boys Sr. Sec. School, Nand Nagri, Delhi. On 27.05.06, when he came back from his school at 2pm, his wife informed him that his daughter, aged about 15 and half years, had left house at about 9.30am and has not returned back since then. Thereupon, he lodged missing report vide DD No. 94B Ex.PW3/A. In this DD also he has given age of prosecutrix as 15 years.

Prosecutrix herself has deposed that her date of birth is 26.10.090 and at the relevant time she was 15 and half years and was studying in Sarvodaya Kanya Vidayalaya in 12th standard.

Her mother Smt. Bimlesh (PW11) has also given her date of birth as 26.10.90.

PW8 Vishambar Singh, PGT, Sarvodaya Kanya Vidayalaya, DDA Flats, East of Loni Road, Delhi, has testified that Promilla was admitted in his school on 25.08.05 in 11th standard. Her name was admitted at Sr. No. 1015 of admission register. Her date of birth was recorded as 26.10.90, on the basis of school leaving certificate. Her name was struck off from the school record on 11.08.06 on account of long absence from school. Certificate Ex.PW8/A was issued by Munish Kumar, Vice-Principal of the school. He also proved photocopy of admission register as Ex.PW8/B. When prosecutrix was taken for her medical examination, she was examined by Dr. Richa Aggarwal and as per testimony of Dr. Shagun Sinha (PW17), MLC of Promila Ex.PW17/A was prepared by Dr. Richa S.C. No. 36/08 Page 18/43 19 Aggarwal. Perusal of MLC goes to show that age of prosecutrix has been mentioned as 15 years.

She was also produced before Sh. Sanjeev Kumar Malhotra, ld. MM, who recorded her statement u/s 164 Cr.P.C Ex.PW4/B. At that time also, her age was given as 15 years.

24. As regards accused persons are concerned, both accused in their statements recorded u/s 313 Cr.P.C have not denied the age of prosecutrix. They have simply alleged their ignorance about her date of birth. However, they have examined three witnesses in support of their case.

25. DW1 Kashi Ram is the grand father of accused Krishan Pal. He has deposed that prosecutrix was born in September, 1988. DW2 Babu and DW3 Shiv Lal have also deposed that Promila was aged about 18 years on the date of incident.

26. A close scrutiny of the evidence led by the prosecution goes to show that testimony of PW1 Narayan Singh Nigam regarding the age of prosecutrix as 15 and half yeas goes unrebutted and unchallenged, inasmuch as, he was not cross-examined in regard to age of prosecutrix. Even no suggestion was given to him that the age of prosecutrix was not 15 and half years, but was more than that. As such, there is no reason to disbelieve his testimony. Although a suggestion was given to prosecutrix and her mother that she was more than 18 years of age, but they have denied the suggestion. Even Sh. Vishambar Singh (PW8) has testified regarding school record produced by him pertaining to age of prosecutrix, but this witness has not been cross-examined by the accused persons. Meaning thereby that accused persons did not challenge the veracity of school record produced by this witness, wherein date of birth of prosecutrix is mentioned as 26.10.90. In Bal Kishan vs. State & anr., 1977 Cr.L.J. S.C. No. 36/08 Page 19/43 20 410, it was held that if there is a failure to cross examine a witness in respect of a material assertion, it is to be presumed that that assertion stand admitted. This position of law was reiterated in Mehboob @ Mehmood & Ors vs. State, 2010 I AD (Delhi) 429. In view of these authoritative pronouncements, it becomes clear that in the absence of cross-examining PW1 Narayan Singh and Sh. Vishambar Singh, the age of prosecutrix as given by them stands admitted by the accused.

27. The Education Code enjoins upon the Head Master of a school to prepare and maintain an admission register of the pupils admitted to that school. Of the several particulars to be entered in such a register, the date of birth of the pupils as stated by the parents or guardian is an important item. There can be no doubt that the admission register is a public record maintained by the head of the institution, who is duty bound to maintain such a register containing certain particulars relating to each pupil as required by the Education Code. In making such entries in the admission register the head of the institution, who is a public servant, is merely discharging his official duty. The entry, thus made in an official record, has to be presumed to be correct in the absence of other reliable evidence to the contrary. Reference can be made to Bhim Mandal (AIR 1961 Pat. 21) and Mohd. Ikram Hussain (AIR 1964 S.C. 1625).

28. The above proposition of law was reiterated by the Apex Court in Umesh Chand (1982 Cr.L.J. 1994), wherein it was held that two documents of two different school, showing age of the child, were admissible under section 35 of the Evidence Act. Justice Fajal Ali Spoke for the Court thus : "in the instant case also there are two documents of two schools showing age of accused/applicant as 22.06.1957 and both these documents have been signed by his father, were in existence ante litem motem. Hence, there could be no ground to doubt genuiness of these documents and the S.C. No. 36/08 Page 20/43 21 High Court committed a serious error of law in brushing aside these important documents."

29. ld. Counsel for the complainant has also placed reliance on AIR 1989 SC 1329, Bhoop Ram vs. State of UP., where it was held by the Hon' ble Apex Court that in the absence of any material to throw doubts about the entries in the school certificate, the same should not be brushed aside merely on the surmise that it was not unusual for the parents to under state the age of their children by one or two years at the time of their admission in school for securing benefits to the children in their further years. It was further observed that medical certificate is based on estimate and possibility of error cannot be ruled out. Reliance was also placed on 1997 JCC 23, Mohd. Saklain vs. State. In that case, Sessions Court had refused to rely upon school certificate on the ground that there was a discrepancy in the age mentioned in the school certificate and the horoscope and the medical record. Hon'bl e High Court observed that admission was made in the school on the basis of school leaving certificate of another school in which date of birth of prosecutrix was given. The school leaving certificate, which was issued may be prior to the date of incident, as such there is no reason to disbelieve the same. In view of these authoritative pronouncements, in order to ascertain age of prosecutrix, school record is available and it can safely be said the best evidence for determination of age is the birth certificate or the school certificate and in case it is available, that is to be considered the best evidence. ld. Counsel counsel for the accused placed reliance on some commentary to submit that the ossification test of the prosecutrix was not got conducted and in fact the radiologist's opinion as to the age is to be accepted. This submission is devoid of merits, inasmuch as, in the commentary relied upon by ld. Defence counsel itself, it was observed that S.C. No. 36/08 Page 21/43 22 radiologist's opinion as to the age is to be accepted only when birth certificate and oral evidence are doubtful. In this regard, the decision of the Hon' ble Supreme Court in Jaya Mala vs. Home Secretary, Govt. of Jammu & Kashmir, AIR 1982 SC 1297 may be referred to where it has been held that margin of error in age ascertained by the radiological examination is of two years on either side. Thus, the only conclusive piece of evidence of a girl's age is the birth certificate or school certificate. It is only where such a document is not available that the Court has to base its conclusion upon all the fact and circumstances disclosed on examining all the physical features of the person, whose age is in question, in conjunction with such testimony as may be available. In the instant case, there is absolutely no reason to disbelieve the school record produced by Sh. Vishambar Singh, whose testimony has not been challenged by the accused, inasmuch as, they chose not to crossexamine him. As such in view of absence of any material to throw doubt about genuineness and authenticity of school certificate, same cannot be brushed aside. More particularly, for the reason that no reason has been given by the accused as to why the date of birth as mentioned in school record should not be relied upon.

30. Moreover, as seen above, both accused persons in their statements recorded u/s 313 Cr.P.C have not disputed correctness of date of birth of prosecutrix. However, they chose to examine three witnesses. Kashi Ram (DW1) is the grand father of accused Krishan Lal and he has deposed that Narayan Singh Nigam married in January, 1987. After about one and half years of marriage, one girl, namely, Promila was born in September, 1989. In his crossexamination, he admitted that Promila was not born in his village. He has four sons and three daughters and he could not tell exact date of birth of his children. It is surprising that a person, who did not know S.C. No. 36/08 Page 22/43 23 the date of birth of his own children, how could he remember the age of prosecutrix, who was not even born in his presence or in his village. Under these circumstances, no reliance can be placed on the testimony of this witness. Similar is the case with DW2, who has deposed that on the date of occurrence, Promila was 18 years of age. In crossexamination, he could not give the date of birth of prosecutrix and could not produce any document to show that prosecutrix was 18 years of age. He could not even say when Promila was born. That being so, it is clear that only in order to support the case of accused persons, this witness has given the age of prosecutrix as 18 years, which is not substantiated by any documentary evidence. Similar is the case with DW3, who has given age of prosecutirx as 18 years at the time of incident. Surprisingly, this witness could not give his own date of birth. He also could not tell the date of birth of prosecutrix. According to him, prosecutrix was born at her maternal uncle house and he was not present at her maternal house at that time. He went on stating that he is giving the age of his own assumption. At the end of his cross examination, he deposed that his deposition is based on the version given to him by Kashi Ram, grand father of accused Krishan Pal, to depose in this manner. Under these circumstances, the testimony of defence witnesses that prosecutrix was 18 years of age at the time of incident does not inspire any confidence. On the other hand, the prosecution has led clinching evidence to prove that prosecutrix was born on 26.10.90 and was thus under 16 years of age at the relevant time. That being so, prosecution has been able to establish beyond reasonable doubt from the testimony of Narayan Singh Nigam, Bimlesh Devi and prosecutrix herself, besides age given to the doctor and ld. MM, coupled with documentary evidence produced by Sh. Vishambar Singh, that prosecutrix was below 16 years of age, at the time of incident.

S.C. No. 36/08 Page 23/43

31. Smt. Bimlesh (PW11) has unfolded that on 27.05.06, Promila had gone to market Meet Nagar to purchase books and notebooks, after taking a sum of Rs.50/ from her. She had gone to market at about 9.30am, but did not return that day. As such, she searched for her in the house of her acquaintances, where she was not available. When her husband returned back from school, where he works as a teacher, then she narrated facts to him. He also searched for her. When she could not be traced, then her husband lodged a missing report at PS Nand Nagri. Her testimony in this regard finds corroboration from PW1 Narayan Singh Nigam, who has proved DD No. 94B, which is Ex.PW3/A, lodged by him regarding missing of his daughter. Prosecutrix has deposed that when she had gone to market to buy stationery in the market, accused Krishan Pal and Sangam met her and inquired about residential address of her grand father. When she refused to give address, then accused persons showed her a knife and threatened her. Due to fear, she went with them. They took her in a vehicle to Aligarh, UP, where she was kept in a secluded place. Both accused persons had physical relations with her one by one and against her will and consent. Thereafter, both of them took her to another place and kept her there for three days. Ultimately, on 31.05.06, she was left at Aligarh. They also snatched Rs.50/ from her. She came back to her house by bus and reached home on 31.05.06.

32. The witness has been crossexamined at great length. ld. Counsel for the accused has tried to impeach the testimony of prosecutrix by referring to her crossexamination, wherein she admitted that letters Ex.PW4/B DA, Ex.PW4/BDA1 and Ex.PW4/B DA2 are in her handwriting. It was submitted that these are love letters written by the prosecutrix to accused Krishan Pal. As per her own version, accused Krishan Pal was known to her for last 8 years and Sangam was known to her for last 4 years. Reference was S.C. No. 36/08 Page 24/43 25 also made to the testimony of PW5 Neeraj Sharma, who was running a STD Booth at Tahir Village, Aligarh, U.P., who deposed that on 27.05.06 at about 12 O' clock a telephone call was received at his PCO from Delhi and one woman was speaking and asked him to call Krishan Pal. He called Krishan Pal. Again conversation took place between Krishan Pal and caller for quite sometime. He proved register Ex.P1, which was seized vide memo Ex.PW5/A. He also referred to the testimony of PW6 Sunder, R/o Sarai Kale Khan, who has deposed that he was running STD Booth about two and half years. At about 11.30 or 12 O'cl ock, one girl came to his booth and made a call to some boy. The girl told on phone to that boy that she would coming to his house and the boy told her not to come as he was studying. The talk lasted for 20 minutes. Thereafter, the girl made another call to her parents. Thereafter, father of the girl made call, which was received by him and he informed that his daughter has left the house and he should tell him his address. His STD booth was inside the bus stand and he told that person that his daughter has left in a bus to Aligarh. He also referred to the history given by prosecutrix before Dr. Richa Aggarwal, who conducted her medical examination, wherein it was stated that patient eloped with "22" M, Krishan Pal on 27.05.06 to Kher Distt of Aligarh, U.P. Her parents lodged a complaint. Boy then left her and went way on 28.05.06. After that, she went to her home village Tahirpur from where she was recovered by her father on 31.05.06. History of sexual contact on 27.05.06. He also referred to the statement u/s 164 Cr.P.C made by the prosecutrix before ld. MM, wherein she stated that on 27.05.06, she along with Krishan Pal R/o village Tahirpur went to Kher, where they met one person and at his instance they stayed at the house of his owner. Thereafter, they went to a local hotel, where one boy namely, Sukhbir met, who informed father of Krishan Pal. She had gone with Krishan Pal of her S.C. No. 36/08 Page 25/43 26 own will. They had gone for the purpose of marriage. On 27.05.06, Krishan Pal committed rape upon her. She protested, but Krishan Pal told her that they have to marry. However, no girl would indulge in such act prior to her marriage. Therefore, she wants that punishment to be awarded to Krishan Pal should be that he should marry her. She does not want to deceive any other person. Relying upon all these facts, it was submitted by ld. Counsel for the accused that prosecutrix was in love with accused Krishan Pal and it was with her own consent that she had eloped with the accused.

33. As regards statement u/s 164 Cr.P.C is concerned, sufficient explanation has been given by the prosecutrix, which lead to making this statement, inasmuch as, she has testified that after her statement was recorded by police, her father wanted to take her back with him. But he was threatened by SI S.S. Prasad and was told that she would not be sent home with him and his father should go away. From the night of 01.06.06, she was kept in police station. Grand father of Krishan Pal and family members of accused Sangam came in the police station, who threatened her in police station that she should make a statement in favour of accused Krishan Pal and should not involve Sangam in the case. SI S.S. Prasad also told her that she should make a statement and threatened her in case she did not make any statement in favour of the accused, then he would implicate her father in a false criminal case. She was brought to Karkardooma Court on 02.06.06 for recording her statement under section 164 Cr.P.C. In the Court also family members of Krishan Pal and Sangam threatened her to make statement in favour of accused persons. SI S.S. Prasad told her to depose in favour of accused. Out of fear, she made statement Ex.PW4/B before ld. MM. After recording her statement, when she was produced in the Court of another MM, at that time also she was asked by SI S.S. Prasad to state that she should be sent to Nari Niketan S.C. No. 36/08 Page 26/43 27 and in case she fails to do so, then her father would be implicated in a false case. Accordingly, she told the ld. MM that she should be sent to Nari Niketan. Thereafter, she was dropped in Nari Niketan by SI S.S. Prasad and a lady constable. Subsequently she was released and sent to her house. Under these circumstances, as regards statement made by prosecutrix under section 164 Cr.P.C sufficient explanation has come that it was at the behest of grand father of Krishan Pal and family members of Sangam and also under pressure of SI S.S. Prasad, that she deposed in favour of accused Krishan Pal. Although DW1 Sh. Kashi Ram, who is grand father of Krishan Pal has appeared and deposed that allegatins levelled against him are totally wrong, as during this period he had gone to Bharatpur, Rajasthan. However, he admitted in crossexamination that he has no document to show that at that time he had gone to Bharatpur, Rajasthan. Moreover, entire demeanour of the witness goes to show that he had come to depose to save his grand son Krishan Pal. The witness has been crossexamined at great length and the basic aspect of her statement regarding her taking away by both the accused under threat and then commission of rape, has not been shattered and her statement on this aspect appear to be convincing one.

34. As stated above, it is well settled by a catena of decisions of the Hon' ble Supreme Court that there is no rule of law or practice that the evidence of the prosecutrix cannot be relied upon without corroboration and as such it has been laid down that corroboration is not a sine qua non for a conviction in a rape case. 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 rule, there is no reason to insist on corroboration except from medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be S.C. No. 36/08 Page 27/43 28 forthcoming.

35. In the instant case, evidence of prosecutrix Promila does not suffer from any basic infirmity. Therefore, to seek further corroboration would be to insult womanhood. Even if the Court does not look for corroboration of the testimony of the prosecutrix, same is available. The testimony of prosecutrix finds full corroboration from : (1) Medical evidence: Dr. Richa Aggarwal who conducted medical examination of prosecutrix found her hymen torn with superficial abrasion of size approximately 0.5cm present on posterior fourchette. In cross examination, she further clarified that in view of superficial abrasion on posterior fourchette and hymen being torn, possibility of sexual intercourse cannot be ruled out.

(2) When prosecutrix returned back to her house on 31.05.06, she informed her parents that she has been subjected to rape by Sangam & Krishan Pal against her will and without her consent. (3) Even when she was taken for medical examination, in the history given to the doctor, history of "sexual contact" was given.

36. The previous statement of prosecutrix given to doctor and her parents are admissible in evidence u/s 157 of the Evidence Act and this proposition of law was recognized by Hon'bl e Supreme Court in Madan Lal vs. State of J&K, 1988 SC 385, where the statement made by the prosecutrix to her mother soon after the incident was accepted as a corroboration of her testimony in the Court. This authority was also relied upon in Hari Om vs. State (NCT), 2010 III AD (Delhi) 504.

37. Even if for the sake of arguments, it is assumed that as per the letters written by prosecutrix to Krishan Pal and the history given to the doctor, prosecutrix had gone with the accused of her own will. Even then, in view of discussions made above, since she was minor at the time of commission S.C. No. 36/08 Page 28/43 29 of offence, her consent whether expressed or implied has no bearing. Sixth clause of section 375 IPC provides that if girl is under sixteen years of age, ble Supreme Court in Harpal Singh vs. her consent is immaterial. Hon' State of H.P., AIR 1981 SC 361 has held that once it is proved that girl was below sixteen years of age, the question of consent is wholly irrelevant. This position of law was reiterated in 2002 (2) RCR (Criminal) 185, Dhruvendra Singh & Ors vs. State of Rajasthan; Mohd. Saklain vs State, 1997 JCC 23, Iqbal vs. State of Kerala, IX (2007) SLT 47; and State of Punjab vs. Rakesh Kumar, VIII (2008) SLT 323.

38. Thus, the arguments that prosecutrix was a consenting party is of no avail to accused persons as she was minor on the date of alleged incident and thus, theory of consent is immaterial. For the same reason, the authorities Mohd. Said Khan (supra) and Musauddin Ahmed (supra) relied upon by ld. Defence counsel does not help the accused as in both these cases, on facts, it was found that prosecutrix was not below 16 years and was a consenting party, therefore, it was held that no offence u/s 376 IPC was made out. Things are entirely different in the instant case, since as discussed above, prosecutrix is less than 16 years of age, that being so, even if it is taken that she was consenting party, same is of no consequence.

39. Testimony of prosecutrix under these circumstances finds substantial corroboration from medical evidence and there is no reason to disbelieve the same. As observed by Hon' ble High Court in Saklain (supra) that no woman of honour will accuse another of rape since she sacrifies thereby what is dearest to her and the Court cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by victim strikes a judicial mind as probable. When a woman is ravished what is inflicted is not merely physical injury but the deep sense of some S.C. No. 36/08 Page 29/43 30 deathless shame. In the Indian setting refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. A girl or a woman in the tradition bound nonpermissive 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 ostracised by the society and when in the face of these dangers the crime is brought to light there is builtin assurance that the charge is genuine rather than fabricated. In Hari Om vs. State, 2010 III AD (Delhi) 504, it was held that it is not likely that parents of prosecutrix would implicate accused in a false case of rape of their daughter, conscious as they would be that reporting of such a matter to the police, particularly when the parents of the prosecutrix as well as the appellant were living in the jhuggis situated in the same locality, was bound to expose their daughter to scrutiny and questions not only by the police and Courts but also their neighbours and relatives. They could not have been ignorant of the fact that they may even have difficulty in finding a suitable match for their daughter once it is known that she had been subjected to rape in her childhood. Therefore, if they, despite realizing these consequences do report the matter to the police, it would be only if what they were reporting was absolutely true and correct. In fact, some of the parents even refrain from reporting such incident lest their child not face embrassment on account of the incident becoming public and her marriage being jeopardized on account of the prospective inlaws becoming aware of the incident, at the time of her marriage. The parents of prosecutrix knew that if they report the matter to the police, they will have to take their child first to the police station then to the hospital and, thereafter, in the Court and the child will be made to repeat the horrible incident at every place, at the cost of considerable discomfort and S.C. No. 36/08 Page 30/43 31 embrassment to her. Therefore, unless an incident of this nature has actually happened with their child, they would not take such a step.

40. Hon' ble Supreme Court in Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat 1983 (2) Recent Criminal Report 192 had noticed peculiar conditions and circumstances in which a girl or woman, who happens to be victim of rape, in Indian conditions would find herself and so will be reluctant to disclose such incident to anyone and it is observed as under : "Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or woman in India make false allegations of sexual assault... 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 possible from amongst the urban elites. Because : (1) A girl or a woman in the tradition bound nonpermissible Society in 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 ostracized by the society or being looked down upon 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 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 and account of the upbringing in S.C. No. 36/08 Page 31/43 32 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 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 crossexamination by counsel for the culprit, and the risk of being disbelieved, act as deterrent."

41. In view of the discussion made above, it stands established beyond reasonable doubt that Promilla, a minor was taken out of the keeping of lawful guardianship of her parents without their consent. She was kidnapped by both the accused persons with intent that she may be seduced to illicit intercourse with accused persons or knowing it to be likely that she will be so compelled and seduced and with that end in view, she was taken to a secluded place in Aligarh, where both accused persons committed rape upon her one by one.

42. As regard the defence of the accused is concerned, at the risk of repetition, it may be mentioned that same is one of denial simplicitor. Accused Sangam has not taken any defence except the fact that he has pleaded his innocence and claims false implication. Absolutely, no reason has been assigned as to why he would be falsely implicated in such a serious case, more particularly, when he has not alleged any animosity, ill will or grudge against the prosecutrix or her parents. Even as regards accused Krishan Pal is concerned, he has merely taken a plea that there was enmity between his family and family members of Narayan Singh S.C. No. 36/08 Page 32/43 33 Nigam and due to this reason, this false case was registered against him. Firstly, it may be mentioned that this plea is very vague, inasmuch as, no details has been given as to what is enmity between his family and that of prosecutrix. Moreover, this plea has seen light of the day for the first time in the statement of accused, inasmuch as, no such suggestion was given either to the prosecutrix or to her parents. His grandfather has taken the plea that since his family is well educated family due to this reason, Narayan Singh was having grudge against his family and therefore he has falsely implicated accused in this case. This plea does not inspire any confidence, inasmuch as, he has not given details about his family or their education. As far as, Krishan Pal is concerned, as per his testimony he was only a student of B.Sc from Agra College. He admitted in cross examination that Narayan Singh was working as a Government teacher, employed in Delhi and gets good salary. That being so, his plea that Narayan Singh nurtured grudge against him does not appeal to reasons. Moreover, he himself has deposed that he even attended the marriage of Narayan Singh and tried to show proximity with him in order to give age of prosecutrix. In this background, it is to be taken that relations between the family of complainant and Krishan Pal were cordial, therefore, there is no reason for false implication.

43. DW1 Kashi Ram deposed that on 29.05.06, Promila made a telephone call at STD Booth, located at his village and stated that she was standing at Aligarh bypass near telephone booth. On receipt of this information, he along with various other persons went at Aligarh bypass. He noticed that a girl was standing alone over there. Therefore, Dev DuttPradhan inquired from the girl as to why she had come there. Thereupon, she informed him that she had come to marry Krishan Pal. Pradhan informed her that such things cannot take place. Thereafter, she was brought to village and was S.C. No. 36/08 Page 33/43 34 handed over to her uncle Sh. Mohan Lal. Dev DuttPradhan informed Narayan Singh to the effect that his daughter was handed over to Sh. Mohan Lal. Next day, Narayan Singh came at the village. A panchayat was held by the village elderly people and as per decision of the panchayat the girl was handed over to her father Narayan Singh. On the next day, Narayan Singh left the village with his daughter and went to Delhi. In cross examination, he admitted that he was not present at the STD booth, when call was made by Promila. He admitted that no information was given to the police regarding receipt of call at STD Booth or that villagers had gone to the bypass or alleged inquiry made by Dev Dutt Pradhan. He could not produce any document to show that on 30.05.06, Panchayat was held at village or it was decided in the panchayat that girl be handed over to Narayan Singh or that Narayan Singh stated that he had only made missing report which he will withdraw or thereafter on 31.05.06 Narayan Singh went to Delhi, alongwith his daughter. Narayan Singh has denied these suggestion given to him in crossexamination.

44. DW2 Babu claims to have STD booth in village Tahirpur, Distt. Aligarh, U.P, and has deposed that Promila made a telephone call on 29.05.06 and stated she was speaking from STD booth from Aligarh bypass and that curfew has been imposed in the area. She wanted to talk to Krishan Pal. Krishan Pal was called from his house, who talked to Promila and told her that he would not come anywhere. He informed about this call to Mohan Lal, Kashi Ram and other members. Thereafter, they went to Aligarh by pass to bring that girl and she was brought to village Tahirpur. Next day a panchayat was organized. Firstly, it may be mentioned that witness admitted in crossexamination that he has no document to show that on 29.05.06, he was running a STD shop. He even could not tell telephone number on which conversation took place from his STD Booth nor he could S.C. No. 36/08 Page 34/43 35 produce any document to show that he was running STD shop. If the witness was actually running STD shop, it was not difficult for him to produce relevant document, including call details. As such material documents were not produced by this witness. Further, his testimony that on receipt of a call, he called Krishan Pal from his house, who talked to the girl does not find corroboration from DW1 Kashi Ram, who has nowhere deposed that Krishan Pal had any talk with prosecutrix. Moreover, although the witness has deposed that a panchayat had taken place. However, he admitted that he did not join panchayat nor he went with other villagers at Aligarh by pass nor girl came at village in his presence. Under these circumstances, no reliance can be placed on the testimony of this witness.

45. As regards DW3, Shiv Lal, he has also testified that information was received at STD Booth by Babbu from Promila. Thereupon, he along with Kashi Ram and others went to Aligarh bypass and brought Promilla to the village. Next day, her father came and she was handed over to him. His crossexamination demolishes the entire examinationinchief, when he deposed that he had been told by Kashi Ram, grand father of accused Krishan Pal to depose in this manner. As such, it becomes clear that witness has deposed at the instance of Kashi Ram in order to save Krishan Pal.

46. The next question is whether in the present case, offence of gang rape has been made out by the prosecution or not.

47. For convenience, Section 376(2)(g) IPC is quoted here : "376. Punishment for rape.--

(1)......

(2) Whoever,

(a).........

(b).........

S.C. No. 36/08 Page 35/43

(c).........

(d).........

(e).........

(f)..........

(g) commits gang rape '.........

Explanation1. Where a woman is raped by one or more in a group of persons acting in furtherance of their common intention, each of the persons shall be deemed to have committed gang rape within the meaning of this subsection.

48. Thus, clause (g) of subsection (2) of Sec. 376 IPC deals with cases of gang rape. Explanation1 applies to gang rape. By a deeming provision it enacts that ' where a woman is raped by one or more in a group of persons acting in furtherance of their common intention each of the persons shall be deemed to have committed gang rape' and all of them shall be liable to be punished under subsection (2) of section 376 IPC.

49. The object in enacting this Explanation has been explained by the Hon' ble Supreme Court in Promod Mahto v. State of Bihar, AIR 1989 SC 1475 thus :

"This Explanation has been introduced by the legislature with a view to effectively deal with the growing menace of gang rape. In such circumstances, it is not necessary that the prosecution should adduce clinching proof of a completed act of rape by each one of the accused on the victim or on each one of the victims where there are more than one in order to find the accused guilty of gang rape and convict them u/s 376 IPC."

50. Thus, the above observations of the Hon' ble Supreme Court and Explanation1 to clause (g) of SubSec. (2) of Sec. 376 IPC clearly reveal S.C. No. 36/08 Page 36/43 37 that once it is established that accused persons had acted in concert and raped the prosecutrix, then all of them would be guilty u/s 376 in terms of Explanation 1 to clause (g) of subsec.(2) of Sec. 376 IPC, irrespective of whether she had been raped by one or more of them.

51. Looking to the above legal position, it is to be seen whether in the present case prosecution has been able to prove its case beyond all reasonable doubts against both accused persons for the offence of gang rape u/s. 376(2)(g) IPC or not.

52. In the present case, there is clear cut evidence of prosecutrix Promila that when she had gone to market to purchase stationery, both the accused persons met her, and on the pointing of knife, took her to Aligarh Khair. They took her to a room, where both accused maintained physical relations with her one by one against her will and without her consent.

53. Under these circumstances, testimony of none of the defence witnesses help the accused. When statement of prosecutrix was recorded u/s 161 Cr.P.C at that juncture itself, she had stated to the investigating officer that she was taken by the accused persons on the point of knife to a secluded place, where both accused persons committed rape upon her one by one. It has come in the testimony of Narayan Singh that when prosecutrix returned back to his house on 31.05.06, he informed SI SS Prasad who came to his house and made inquiries from his daughter, but he did not believe her version and asked him to bring her to police station on the next day. On the following day, he took his daughter to police station, where her statement was recorded u/s 161 Cr.P.C. She was then brought to Court where her statement u/s 164 Cr.P.C was recorded, which is at variance with her statement u/s 161 Cr.P.C. However, prosecutrix has detailed the circumstances under which her statement u/s 164 Cr.P.C was recorded, which was not voluntary one and was made under the threats of S.C. No. 36/08 Page 37/43 38 the relatives of accused persons and SI SS Prasad. SI SS Prasad admitted in his crossexamination that he used to have arguments with Narayan Singh, because he wanted something, which were not clear to him and on that count sometimes they used to have arguments. Had the investigation been done in proper manner, at the initial juncture itself, accused Sangam would also have been got medically examined, but that was not done. When prosecutrix was examined in the Court, at that time she reiterated the role played by Sangam. Thereupon, vide order dated 25.08.07, Sangam was ordered to be summoned. In the facts and circumstances of the instant case, where there is overwhelming evidence against both accused persons, the said lapse by the investigating officer has to be ignored as a procedural lapse, not affecting the purity of the investigation. It is settled law that if otherwise proved by good and clinching evidence, lapses by the investigating officer cannot be allowed to become an escape route by an accused [Rajesh Kumar vs. State (Govt. of NCT of Delhi) 2010 III AD (Delhi() 569]. There is force in the submission of ld. Counsel for the complainant that even if it is assumed for the sake of arguments that prosecutrix had consented to go with Krishan Pal. Her consent at the most to go with him and not to have sex with him. Moreover, it cannot be presumed that she would have consented for commission of rape by two persons. At the risk of repetition again, it may be mentioned that plea of accused Sangam is one of denial simplicitor. Absolutely, no plea has been taken by him as to why prosecutrix has implicated him in such a serious case. The omission on the part of accused persons to assign any reason for their false implication, rather lend assurance to the effect that submissions made by prosecutrix is truthful and convincing. Moreover, as per medical examination conducted by Dr. Richa Aggarwal, her hymen was found to be torn and there were abrasions over the forcheet. Krishan Pal S.C. No. 36/08 Page 38/43 39 was medically examined and as per Dr. Banarasi, there was nothing to suggest that he was incapable of performing sexual intercourse.

54. Thus, looking to the evidence on record and placing reliance on the observation of the Hon'bl e Supreme Court in the case of Promod Mahto (supra) and ExplanationI to clause (g) of subsec.(2) of Sec. 376 IPC, it can easily be said that prosecution has been able to prove its case beyond all reasonable doubts against both accused persons for the offence under section 376(2)(g) IPC. As regards the submission that no charge u/s 34 IPC has been framed, it may be mentioned that as regard offence u/s 376 (2)(g) IPC, no charge u/s 34 IPC was required because this section itself contemplates commission of rape by more than one person. As regards, other sections, circumstances of the case are peculiar in as much as initially the charge was framed only against Krishan Pal. When accused Sangam was summoned, charges were framed against him. Thereafter, on the application of complainant, alternative charge u/s 376(2)(g) was framed.

55. Result of the aforesaid discussion is that prosecution has been able to establish beyond reasonable doubt that both accused persons kidnapped prosecutrix Promila and it was so done with intent to seduce or compel her for illicit intercourse, and ultimately both accused persons committed rape upon her one by one. Consequently, both accused persons are held guilty and convicted for offences punishable under sections 363, 366 and 376(2)

(g) IPC.

Announced in the Open Court (Sunita Gupta) On this 13th day of April, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.

S.C. No. 36/08 Page 39/43

40 IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGE-VII/NE- CUM-ADDITIONAL SESSIONS JUDGE : KARKARDOOMA COURTS :

DELHI :

S.C. No. 36/08

State Vs. 1. Krishan Pal Singh S/o Netra Pal Singh, R/o Village Taharpur, Thana Tappal, District Aligarh, U.P.

2. Sangam S/o Ram Chander, R/o Village Hardaspur, PS Lodha, Distt. Aligarh, U.P. FIR No. 402/06 PS Nand Nagri.

U/s 363/366/376(2)(g) IPC.

Date of institution :- 22.11.08 Date on which reserved for Order :- 13.04.2010 Date of Decision :- 20.04.2010 ORDER ON THE POINT OF SENTENCE :-

It was submitted by ld. Counsel for the convict persons that lenient view may be taken while awarding sentence to convict, on the ground that no case was made out against them, inasmuch as school certificate was forged one. Prosecutrix Promila (name changed) was a consenting party and was major. Moreover, there were contradictions in her testimony and convict persons are innocent. He further referred to order passed by Sh. N.K. Kaushik, ld. Addl. Sessions Judge, where in a case of rape of a child below 12 years, convict was released on period already undergone as he remained in custody for a period of three and half years, and it was submitted that in the instant case, convict Krishan Pal also remained in custody for more than three and half years. As such, he be sentenced to period already undergone by him. As regard Convict Sangam, it was submitted that he was put in column No.2 and when he was summoned immediately he was released on bail. Therefore, lenient view be taken qua him also.

S.C. No. 36/08 Page 40/43

2. On the other hand, it was submitted by ld. Prosecutor that merits of the case are not required to be gone into, once the accused persons have been convicted for offences alleged against them. Regarding leniency, it was submitted that offence committed by the convict persons was of grave nature. Section 376 (2)(g) provides for punishment of rigorous imprisonment for a term which shall not be less than 10 years but which may be for life and shall also be liable to fine. Keeping in view seriousness of the offence, it was submitted that present is a clear case, where convict persons are entitled to be awarded maximum punishment, which is for life, and as such no leniency is warranted.

3. ld. Counsel for the complainant, Sh. H.D. Aditya, Advocate, relied upon JT 1994 (1) SC 33, Dhananjoy Chatterjee @ Dhana vs. State of West Bengal and relied upon following observations made by Hon'bl e Apex Court : "In recent years, the rising crime rate particularly violent crime against women has made the criminal sentencing by the Courts a subject of concern. Today there are admitted disparities. Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished, thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system' s credibility. Of course, it is not possible to lay down any cut and dry formula relating to imposition of sentence but the object of sentencing should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In imposing sentences in the absence of specific legislation, Judges must consider variety of factors and after considerating all those factors and taking an overall view of the situation, impose sentence which they consider to be an appropriate one.

S.C. No. 36/08 Page 41/43

42 Aggravating factors cannot be ignored and similarly mitigating circumstances have also to be taken into consideration.

In our opinion, the measure of punishment in a given case must depend upon the atrocity of the crime; the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is the manner in which the Courts respond to the society's cry for justice against the criminals. Justice demands that courts should impose punishment fitting to the crime so that the Court reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of crime and the society at large while considering imposition of appropriate sentence."

By relying upon this observation, it was submitted that convict persons are entitled to punishment of prescribed maxima under this section and no leniency is warranted.

4. Needless to say, the fact that maximum punishment has been given for offence u/s 376(2)(g) reflects the legislative intent to curb with iron hand the offence of rape, which affects the dignity of a woman. As observed by ble High Court in Mohd. Saklain vs. State, 1997 JCC 23, when a Hon' woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. Similar view was taken by Hon' ble Supreme Court in State of Punjab vs. Rakesh Kumar, VII (2008) SLT 323, where it was held that the physical scars may heel up, but the mental scar will always remains. When a woman is ravished, what is inflicted is not merely physical injury, but some deep sense of some deathless shame.

5. As regard submission of ld. Counsel for convict persons that convict persons are innocent and various other submissions made by him touching the merits of the case, same are not required to be gone into once convict have been held guilty for offences. As regard quantum of sentence, S.C. No. 36/08 Page 42/43 43 offences committed by convict persons are of grave nature. However, making a balance between mitigating factors and aggravating factors surrounding the convict persons, they are sentenced to undergo RI for three years each and to pay a fine of Rs.1,000/ each for offence punishable under section 363 IPC. In default of payment of fine, they would further undergo RI for six months each. They are further sentenced to undergo RI for four years each and to pay a fine of Rs.2,000/ each for offence punishable under section 366 IPC. In default of payment of fine, they would further undergo RI for nine months each. They are also sentenced to undergo RI for 10 years each and to pay a fine of Rs.5,000/ each for offence punishable under section 376 (2)(g) IPC. In default of payment of fine, they would further undergo RI for one year each.

6. Substantive sentences awarded to convict persons shall run concurrently. They are entitled to benefit of period already undergone in detention during investigation and trial of the case. Fine, if recovered, be paid to prosecutrix Promila as token of compensation. A copy of the judgement and order on sentence be supplied to convict persons free of cost.

Announced in the Open Court (Sunita Gupta) On this 20th day of April, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.

S.C. No. 36/08 Page 43/43

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State vs . 1. Krishan Pal Singh S/O Netra Pal ... on 20 April, 2010