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Judgment
Hon'Ble Harvir Singh, J.
This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 has been directed against the judgment and order dated 17.01.1983 passed by Shri S.P. Lal, VI Additional Sessions Judge, Mainpuri, in Session Trial No.374 of 1982 (State v. Ram Charan), Police Station Alau, District Mainpuri. By the impugned judgment, appellant has been convicted under Section 376 of the Indian Penal Code (IPC) and sentenced to undergo five years' rigorous imprisonment.
The facts of the prosecution case, in brief, are that on 30.06.1982 at about 2:00 p.m., the informant, Lala Ram, son of Kalyan Singh, resident of village Nagla Kadar, Mauja Adhar, Police Station Alau, District Mainpuri, submitted a written report at Police Post Ratanpur, Police Station Alau, District Mainpuri, stating therein, that his daughter, the victim, aged about 12 years, was going to the field to give him water. When she reached near the field of Ram Charan, son of Subedar, the accused Ram Charan caught hold of her and threw her on the ground in the ditch near his field. The girl raised an alarm. On hearing her alarm, the informant himself, along with Ram Dutt, son of Girwar, Hari Ram, son of Shankar Lal, and Jagdish, son of Tulja Ram, all residents of the same village, who were working in their respective fields nearby, reached the spot and saw the accused committing a wrongful act with the victim. When they tried to apprehend him, the accused fled from the spot and could not be caught. When they reached the victim, they noticed blood stains on her clothes, underwear and dhoti. The informant, therefore, requested that his report be registered and necessary action be taken.
In support of the charges, the prosecution examined five witnesses:-PW-1- Lala Ram PW-2 Maur Shree PW-3 Ram Dutt PW-4 Dr. Usha Pradhan PW-5 Sri D.S. Rana, S.I.
P.W.1-Lala Ram deposed that, he is the father of the prosecutrix, who was aged about 12 years. On the relevant day, he was in his field. He heard the cries of his daughter, (the victim). He was followed by witnesses Ram Dutt, Hari Ram and Jagdish. He found that his daughter(the victim) was crying and saying, “MERI IJJAT BACHAO”. He saw, that accused Ram Charan had made (the victim) lie down in the ditch and was committing rape upon her. The victim was resisting the act of the accused, who was lying upon the prosecutrix. When the accused saw him, he got up and ran away. Blood was seen coming from the private part of the victim, and her underwear and dhoti were also blood-stained. He dictated the first information report, Ex. Ka-1, and signed the FIR. He reached the police station at about 8:30 P.M. and lodged the same. At that time, he handed over the blood-stained underwear and dhoti of the victim at the police station, which were sealed in his presence. A fard, Ex. Ka-2, was also prepared in his presence. The sealed bundle was opened in the Court, and the blood-stained underwear, Material Ex. I, and dhoti, Material Ex. II, were shown to him, which he duly proved.
P.W.2 is the prosecutrix, (the victim) deposed, that on the relevant day at about 2 P.M., she was going to HAR (field) to give water to her father. She was carrying a Khurpi in one hand and a pot of water in the other hand. She was passing by the mend of the field of accused Ram Charan. Ram Charan caught hold of her hand and forcibly dragged her towards the ditch (khai) and, after physically embracing her, made her lie down. He got her naked, by forcibly removing her Dhoti and tearing off her Underwear. First, of all the accused penetrated his finger into her private parts and then lifted one of her legs upward and penetrated his penis into her private part and committed rape. She started crying and twisting her legs and hands. As a consequence of the illegal and immoral act of the accused, blood started coming out of the private part of the prosecutrix. Upon hearing her cries, Lala Ram, Ram Dutt, Hari Ram and others were attracted to the spot. The accused got up and ran towards the brick-klin. Later on, her mother also came there. She also complained about the conduct of the accused to her mother. Her father went to the police station and reached there at about 8:30 P.M. and lodged the report. The blood-stained Underwear and Dhoti of the victim were also given at the police station, and on the next day she was medically examined.
P.W.3 is Ram Dutt, deposed that, on the relevant date and time, he was returning to his house from his field with his plough and bullocks. It was about 2 P.M. He heard the cries of a girl saying, “HAMARI IJJAT BACHAO”. When he reached near the ditch (khai), he saw the prosecutrix lying down and the accused Ram Chandra lying on her and committing rape on her. He identified the accused in the Court and deposed that witnesses Hari Ram, Lala Ram, Jagdish and others were also attracted to the spot and had seen the commission of the offence. He had seen blood coming out of the private part of the victim, and her Underwear and Dhoti were both seen blood-stained.
P.W.4 Dr. Usha Pradhan deposed that, she was the Superintendent, Women Hospital, Mainpuri, on 1.7.1982 and had examined the prosecutrix, and prepared the report. Her breasts were not developed. She was about 4' 3" in height and weighed 30 Kg. On examination, the hymen was found completely torn, with a fresh tear, bleeding and tenderness present. The vagina admitted one finger with difficulty. She collected the vaginal smear and sent the same for analysis. She advised an X-ray for fixing her age. She subsequently received the report after analysis of the vaginal smear and found no spermatozoa. On the basis of the X-ray of the elbow joint and upon examination, she noted the age of the victim to be about 15 years. In the opinion of the doctor, rape had been committed upon the victim. In cross-examination, she admitted that, there might be a difference of two years on either side. In response to another question, the doctor deposed that no internal injury to the private part of the prosecutrix could be caused by penetration of a finger. According to the doctor, the internal injuries were caused by committing rape.
P.W.-5, S.I. D.S. Rana, deposed that the F.I.R. was registered at the police station in his absence. The Chick F.I.R. was prepared by C/C Gulab Singh. He had investigated the case and prepared the site plan, Ex. Ka.5. Upon conclusion of the investigation, he submitted the charge-sheet, Ex. Ka.6.
The accused stated, while his statement under Section 313 Cr.P.C. was recorded. that the charges against him were false and that he had been falsely implicated. The defence filed the certified copy of the revision petition, filed before the Court of the Deputy Director of Consolidation in Revision No. 127/335 to prove that Gulzari, the grandfather of the prosecutrix, had moved an application in revision for correction of his Chak. A perusal of the petition shows, that Gulzari had requested correction and readjustment of his Chak, without raising any material allegations against Subeydar and others. The next document filed by the defence is the copy of the F.I.R. lodged by Ran Ratan Singh against Lala Ram son of Kallu Singh, Ram Chandra and others in respect of an incident dated 16.03.1979, in which a case under Section 324 I.P.C. was registered. In this case, P.W.1 Lala Ram is the son of Kalyan Singh and not Kallu Singh. Ex. Ka-3 is the copy of the injury report in respect of the injuries of Km. Dan Shree, and Ex. Kha.4 is the copy of the Khatuni of 1347F, in which Girvar and Gulzari are shown as the sons of Sunder Yadav.
Heard learned counsel for the appellant and learned A.G.A. for the State and perused the entire trial court records.
The learned counsel for the appellant submitted that, there exist discrepancies in the ocular testimony regarding the clothing of the accused. The prosecutrix (P.W.-2) deposed that the accused was wearing without an underwear, while committing the offence and could not notice the colour of the clothes of the accused, whereas P.W.-3 stated that, when the accused fled, he was wearing an underwear.
The learned counsel for the appellant submitted that, there is a variance between the statements of P.W.-1 and P.W.-2 regarding the clothes worn by the prosecutrix (P.W.-2 stated she wore underwear and dhoti), while P.W.-1 deposed that the colour of the cloths was not disclosed.
The learned counsel for the appellant submitted, that the appellant had a rivalry with the victim's father, giving rise to an axe to grind and false implication of the appellant-accused.
Learned counsel for the appellant submitted, that the age of Lala Ram is shown as 40 years in his evidence and in cross-examination, he admitted that, he was married at the age of 13 years, Gauna ceremony took place at the age of 16 years and the prosecutrix is his third issue, the first, second and third took birth each on an interval of about 1 ½ years and in this way the prosecutrix, according to the defence, was born, when the complainant was aged about 21 years. In this way the age of the prosecutrix comes out to 19 years. The lady doctor has written, that the breast of the prosecutrix was not developed, axiallary and pubucation were absent, teeth 7/7 on the upper side and 7/7 on the lower side and on the basis of the X-ray report, the definite age has wrongly been determined as 15 years. The statement on oath of P.W.-1 and P.W.2 on the point of age of prorocutrix has not been corroborated by the medical evidence on record and, therefore the appropriate age of the proscoutrix be established to be more than 18 years. The opinion of the lady doctor regarding her age is only an opinion which might be minimum limit.
Learned counsel for the appellant submitted that the prosecutrix was a consenting party, as she did not raise any hue and cry, prior to the commission of the offence and it was at a later stage, when the other people have seen the immoral act.
Learned counsel for the appellant further submitted that, this was a homosexual case in which the prosecutrix took the help of her girl friend and since the blood started coming out, the accused was falsely implicated.
Learned counsel for the appellant further submitted that, there is no evidence of penetration, as the prosecutrix stated in para 4 of her statement, that the accused penetrated only his finger and then the witnesses reached there.
Learned counsel for the appellant submitted that the blood stained Dhoti and underwear were not sent to the chemical Examiner and therefore, it can not be said, that any blood stain was found on the clothes etc.
On the other hand, the learned A.G.A. forcefully countered these submissions, contending that the prompt FIR was registered within an hour and twenty minutes, ruling out any deliberation or concoction. The testimony of the minor prosecutrix (P.W.-2) is natural, straightforward, and inspires confidence. Under well-settled principles of criminal jurisprudence, the sole uncorroborated testimony of a victim of sexual assault can sustain a conviction, if found sterling, and in the present case, her testimony is further fortified by an independent eye-witness (P.W.-3), medical evidence (P.W.-4), and the recovery of blood from the spot. The discrepancies pointed out are entirely peripheral and minor, attributable to memory lapse after quite sometime.
Learned A.G.A. appearing on behalf of the State submitted that the evidence on record speaks to the contrary. The statement of the prosecutrix is relevant. She deposed that, the accused took her embracing and then laid her to the ditch, got her nacked, torn her underwear and then went her, ley-down and then committed rape on her. During that period she had been twisting her legs and arms and protesting. There is evidence on record, that she has been crying for outside help and upon her cries P.W.1 and P.W.3 reached there. Even prosecutrix has stated that, she had cried for help saying "MERI IJJAT BACHAO". There is no force in the defence suggestion that the absence of injuries on the person of the prosecutrix would mean consent. There is a definite evidence, that she was not physically dragged on the earth. To the contrary, she was lifted up and laid to ditch with the intention of committing the offence of rape.
Learned A.G.A. for the State submitted that, There is no force in this submissions. Firstly, defence did not place on record, any evidence or witnesses to suggest the theory of homosexual version nor the evidence on the record gives any such suggestion. Secondly, the lady doctor was definite in her statement in the cross-examination, that the prosecutrix was neither a consenting party nor the internal injuries in the private part of the prosecutrix could be caused by fingering. Therefore, the defence suggestion is liable to be rejected.
Learned A.G.A. for the State further submits that, the defence did not ask in the cross examination, as to whether the accused penetrated his private part or not. To the contrary there is a definite statement of the prosecutrix in the examination-in-chief, that the accused first entered his finger in her private part, then up-lifted her one leg and then penetrated his penis upon which she cried. The penetration of the private part of the accused into the private part of the prosecutrix is, therefore, proved and established beyond all reasonable doubt. Even the doctor ruled out the penetration of the finger in the private part of the prosecutrix.
Having considered the rival contentions and after going through the entire evidence and material on record, the following inference and conclusion can be drawn, as follows.
As to sterling quality of the testimony of the Prosecutrix (P.W.-2) is concerned, the prosecutrix (P.W.-2), was a minor girl of tender age (12 years). It is well settled, that in offences involving sexual violence, the evidence of the victim must be appreciated with sensitivity. Her testimony is not to be equated with that of an accomplice; rather, she is an injured witness of a heinous crime. Corroboration is not an absolute rule of law, but in the present case, ample corroboration is available.
A careful examination of P.W.-2's deposition indicates, that her statement is consistent, coherent, and unshaken in cross-examination. She vividly recounted being enticed onto a ditch and taken into the same, where the appellant subjected her to sexual assault. No minor child of 14 or 15 years would invent a story of ravishment and genital bleeding, simply to settle a purported dispute between her father and the accused or anybody else.
As to independence and corroboration by P.W.-3 (Ram Dutt), who is an independent witness, and was working in the filed nearby, also arrived. He had no axe to grind against the accused and bore no relationship or affinity with the family of the prosecutrix. His presence near the deserted place i.e. ditch at the time of hearing, the screams is natural and convincingly explained. His testimony confirms that, as soon as he and other witnesses reached the place of occurrence, the appellant fled away from the spot, leaving the victim naked and bleeding. The non-examination of other witness stands satisfactorily explained, as they were not examined by the prosecution.
The ocular testimony finds complete and unassailable corroboration from the medical evidence of Dr. Usha Pradhan (P.W.-4). Furthermore, the collection of blood-stained earth from the scene of crime by the Investigating Officer (Ext. Ka-2) establishes beyond doubt, that the sexual assault took place inside the ditch (khai), near the field. The Hon’ble Supreme Court in the case of Pruthiviraj Jayantibhai Vanol vs. Dinesh Dayabhai Vala and Ors. passed in Criminal Appeal No. 177 of 2014, decided on 26.7.2021 MANU/SC/0475/2021, in which it has been held by Hon?ble Supreme Court that,
“ocular evidence is considered the best evidence unless there are reasons to doubt it. Ocular evidence is considered the best evidence unless there are reasons to doubt. It is only in a case where there is a gross contradiction between medical evidence and oral evidence, and the medical evidence makes the ocular testimony improbable and Rules out all possibility of ocular evidence being true, the ocular evidence may be disbelieved. In the present case, we find no inconsistency between the ocular and medical evidence. The High Court grossly erred in appreciation of evidence by holding that muddamal No. 5 was a simple iron rod without noticing the evidence that it had a sharp turn edge.”
In the instant case, the ocular evidence is supported by the medical evidence, hence, one compliments the other.
The learned counsel for the appellant has laid heavy emphasis on the divergence in statements of P.W.-1 and P.W.-2, namely Lala Ram, victim and Ram Dutta, stating therein, that the incident as explained by the victim does not have resemblance with the other two witnesses. The statements of P.W.-1 and P.W.-2 are explicitly clear, particularly the statement of P.W.-2, narrating the events of the commission of the offence.
A perusal of the judgment passed by learned trial court, it appears that, the learned Trial Judge has correctly dealt with and repelled this contention. Witnesses were examined in the trial court about nine months after the date of occurrence. Human memory is not photographic. Discrepancies of a minor nature relating to the color of clothes or the exact mode in which an accused was attempting to dress himself, while hastily fleeing from the spot do not touch the core fabric of the prosecution case. In a state of intense panic and trauma, a 15-year-old child, who has just been ravished cannot be expected to notice or recollect every minute detail of the culprits. Only those contradictions that demolish the core substratum of the charge can ensure to the benefit of an accused. The contradictions pointed out here are peripheral and insignificant.
As regards the non-examination of other witnesses, it is settled law that the prosecution is required to prove its case by quality of evidence, not quantity (Section 134 of the Indian Evidence Act, 1872). When the direct, injured eye-witness (P.W.-2) and the independent rescuer (P.W.-3) stood steadfast in the witness box. The Hon’ble Supreme Court in the case of Wahid Khan vs. State of Madhya Pradesh passed in Criminal Appeal No. 1798 of 208, decided on 1.12.2009 has held that,
“it is also a matter of common law that in Indian society any girl or woman would not make such allegations against a person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find a suitable groom. Therefore, unless an offence has really been committed, a girl or a woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracized by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward looking as the western countries are. Thus, in a case of rape, testimony of a prosecutrix stands at par with that of an injured witness. It is really not necessary to insist for corroboration if the evidence of the prosecutrix inspires confidence and appears to be credible.? The Hon’ble Supreme Court in the case of Phool Singh vs The State Of Madhya Pradesh on 1 December, 2021.”
Whether, in the case involving sexual harassment, molestation, etc., can there be conviction on the sole evidence of the prosecutrix, in [Vijay vs. State of M.P., (2010) 8 SCC 191], it is observed in paras 9 to 14 as under: (SCC pp. 195-98) “9.1 State of Maharashtra v. Chandraprakash Kewalchand Jain [State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550] Hon?ble Supreme Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under (SCC p. 559, para 16) :
“A prosecutrix of a sex offence cannot be put on a 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 the case of an injured complainant or 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 similar to Illustration (b) to Section 14 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required 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 the 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.”
Lastly, the plea taken by the appellant under Section 313 Cr.P.C. regarding an alleged litigation between victim's father Lala Ram is completely hollow and unsubstantiated. Even assuming an ordinary dispute existed, it is inconceivable, that parents would, sacrifice the honour and physical integrity of their 15-year-old child to frame a person on a capital charge.
On a holistic appraisal of the entire record, this Court is of the opinion that the prosecution has successfully established the guilt of the appellant Ram Charan for the offence punishable under Section 376 I.P.C. beyond any shadow of reasonable doubt.
On the question of sentence, the learned Trial Court has already taken an exceptionally lenient approach by awarding a modest sentence of four (5) years rigorous imprisonment, despite the heinous nature of the crime committed on a 15-year-old child. The sentence awarded by the trial court requires no interference whatsoever.
In view of the detailed discussion and findings recorded above, the Criminal Appeal is devoid of merit and is hereby dismissed.
The impugned judgment and order of conviction and sentence dated 17.01.1983 passed by the learned VI Additional Sessions Judge, Mainpuri in Sessions Trial No. 374 of 1982 is hereby confirmed.
If the appellant, Ram Charan, is on bail, his bail bonds are cancelled and his sureties are discharged. The appellant shall be taken into custody forthwith to serve out the remaining period.
Let a certified copy of this judgment along with the original Trial Court Record (LCR) be transmitted forthwith to the learned Trial Court, Mainpuri for immediate compliance and necessary action.