Paras Ram vs State of Himachal Pradesh

K.T. Thomas and R.P. Sethi, JJ.—When this matter taken up, neither the amicus curiae nor the counsel for the State was present. As we are told that Appellant is still continuing in jail, we perused the records. We are inclined to dispose of the appeal without the aid of the arguments.

This appeal was filed as of right because Appellant was once acquitted of the charge u/s 376/511 of the Indian Penal Code but the High Court reversed the order of acquittal and convicted him of the said offence and sentenced him to undergo imprisonment for 10 years and to pay a fine of Rs. 5,000, in default of payment of fine, he is to undergo imprisonment for further period of six months.

The nutshell of the case is that the Appellant attempted to commit rape on a little girl Radha on 18.9.1989. The further description of the case revealed the following:

Radha and her friend Indira were playing in the courtyard of the adjacent house of the Appellant on the forenoon of 18.9.1989. Appellant coaxed Radha by offering to supply an apple to her. The little girl was allured by this offer and went into the room of the Appellant. She was then put on the cot. Her salwar was removed by him. Then he made the attempt to sexually molest her. Radha was examined as P.W. 1. The trial court did not place any reliance on Radha on the sole reason that oath could not be administered to her as she did not understand the meaning or sanctity of the oath. The Division Bench of the High Court chose to rely on her testimony despite the aforesaid drawback. There is no legal bar against relying on the testimony of a child to whom oath could not be administered due to her incapacity to understand the meaning of oath, if the Court is satisfied that her evidence is reliable. Even so, the Courts always insisted on adequate corroboration of the evidence of such a child witness. P.W. 1 Radha had narrated, though as answers to questions put to her, as to what happened inside the house of the Appellant. She said in so many words that Appellant had made an attempt to ravish her. Her friend Indira was examined as P.W. 2. She also is a child witness. Nonetheless, her evidence has given assurance to the High Court of the truth of the version of P.W. 1 Radha on the broader aspect of the events which took place.

We are more impressed by the evidence of P.W. 5, Dr. Rajiv Ranjan. He examined Radha on 25.9.1989. He noted the following features on the private parts of the little girl:

(1) Signs of old abrasions and swelling of labia majoras plus tenderness.

(2) Pinkish appearance alone with swelling of both labia minoras.

(3) Tender swelling of clitoris.

The doctor said that those injuries could have been caused in the process of sexual assault.

The High Court was correct in believing the story of Radha, particularly, in the light of the medical evidence and also the testimony of P.W. 2 Indira. The conviction made by the High Court in reversal of the order of acquittal, for the offence u/s 376/511 of the Indian Penal Code cannot, therefore, be faulted with.

Regarding the sentence, the High Court imposed a sentence of rigorous imprisonment for 10 years on the Appellant. Had the rape been committed on Radha, the Appellant could perhaps have pleaded for imposing the sentence of imprisonment for 10 years. Now since the offence is only one of attempted rape, we are of the view that interest of justice will be served by giving half of the said period prescribed for rape.

In the result, we confirm the conviction but reduce the sentence from rigorous imprisonment for 10 years to R.I. for 5 years. We keep the fine sentence undisturbed. If the fine is realised, that amount shall be paid to P.W. 1 Radha (on her behalf it shall be disbursed to her parents). We note that the same order is passed by the High Court also regarding the disbursement of the fine. Appeal is disposed of accordingly.