Ram Kumar vs State of U.P.

N.K. Mehrotra, J.—These aforesaid two criminal appeals have been filed against the judgment and order dated 10.9.1991, passed by the I Vth Additional Sessions Judge, Rae Bareilly in S.T. No. 195 of 1990 connected with S.T. No. 194 of 1990 convicting Appellant Ram Kumar u/s 366, I.P.C. and sentencing him to undergo for four years'' R.I. and also convicting accused-Appellant Parashu Ram Yadav under Sections 366 and 376, I.P.C. and sentencing him to four years'' R.I. u/s 366, I.P.C. and seven years'' R.I. u/s 376, I.P.C.

Heard the learned Counsel for the accused-Appellants and the learned Additional Government Advocate.

The factual matrix of the case is that on 8.10.1984 complainant Jagdish Prasad Pandey had gone to purchase vegetable and other articles from Bagaha market. He came back at about 7.00 p.m. On his return, his wife told him that their daughter Mithlesh was taken away by Ram Kumar at about 6.30 p.m. Mithlesh was sent along with Ram Kumar on his statement that Parashuram of Bagaha market had come to him and told him that the father of Mithlesh was calling her in the Bagaha market for purchasing some articles. The wife of Jagdish Prasad and mother of the prosecutrix believed on Ram Kumar and permitted Mithlesh to accompany Ram Kumar. On this statement of his wife, Jagdish Prasad started searching his daughter Mithlesh and he came to know from Sunder Lal, and Krishna Bihari that Km. Mithlesh was seen going in the company of Ram Kumar and Parashu Ram and on query, Ram Kumar and Parashu Ram told them that the father of Km. Mithlesh had called her in Bagaha market. Km. Mithlesh was about 13 years at that time. Jagdish Prasad Pandey lodged the F.I.R. on 9.10.1984 at about 9.30 a.m. in P. S. Salon, where a criminal case was registered. The Investigation was entrusted to S.I. Sri Krishna Pandey. During investigation, the Investigating Officer came to know that accused Parashu Ram had taken Km. Mithlesh to Ludhiana. Km. Mithlesh was recovered from the custody of accused Ram Kumar in Ludhiana after a month. After recovery of Km. Mithlesh, she was medically examined in District Hospital, Rae Bareilly by Dr. Usha Singh. At the time of medical examination, no mark of injury, blood stained or semen marks were found. Hymen was not present. According to the opinion of the doctor, the evidence of recent rape was found. The prosecutrix appeared to be about 14-15 years of age as per medical report. In the supplementary report, Dr. Usha Singh has reported that the prosecutrix is below the age of 17 years and the assessment of the age of the prosecutrix has been made on the basis of the X-ray report.

The Investigating Officer after completing the investigation and after recovery of the prosecutrix submitted the charge-sheet against the accused-persons.

After committal to the Court of Sessions, the accused Parashu Ram was charged under Sections 366 and 376, I.P.C. and accused Ram Kumar was charged u/s 366, I.P.C. The accused-persons pleaded not guilty and claimed to be tried. Accused Ram Kumar has stated that he was doing labour with complainant Jagdish Prasad and as he has not given his full wages, therefore, he stopped the work and therefore, he has been falsely implicated in this case. Accused Parashu Ram has also stated that he has been falsely implicated in this case due to enmity.

In support of its case, the prosecution examined Jagdish Prasad P.W. 1, Km. Mithlesh P.W. 2, Sunder P.W. 3, Arjun P.W. 4, Dr. Usha Singh P.W. 5 and S.I. Shri Krishna Pandey P.W. 6.

After taking into consideration the entire evidence on record, the learned Sessions Judge convicted and sentenced the accused-persons as mentioned above. It is against this judgment and order that the accused-Appellants have preferred the instant criminal appeals.

Rape is defined in Section 375, I.P.C. which is as follows:

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 descriptions:

First.-Against her will.

Secondly.-Without her consent.

Thirdly. - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly. - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly. - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

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

I have seen the statement of the prosecutrix Km. Mithlesh and the lady Dr. Usha Singh. After scrutiny of evidence of these to witnesses, I confirm the findings of the learned Sessions Judge that Km. Mithlesh was minor at the time of the incident and, therefore, her consent is immaterial.

After finding that the age of the prosecutrix at the time of the incident was below 16 years, I am of the opinion that her consent was immaterial. Now I come to the statement of the prosecutrix that her father had gone to take vegetable from the market and she was inside the house with her mother. Accused Ram Kumar came to her house and told that her father was calling her. At this, her mother had permitted to go with Ram Kumar. She has stated that after reaching on the chak road, she found Parashu Ram along with cycle. From there, they reached near the "Scooter Factory" and there Krishna Bihari and Sunder Lal met them. Both these persons enquired from the accused-persons where they were going along with girl and at this, both the accused had told them that she was called by her father in Bagaha market. She has further stated that both the accused-persons took her near canal. She became suspicious and she made an enquiry where she was being taken away ; at this both the accused had threatened her to kill on making further enquiry. She has stated that she was threatened by knife. From there, she was taken to Allapur. She remained in Allapur for whole night and Ram Kumar left in the night. She has further stated that Parashu Ram had taken her to Allahabad and from Allahabad to Ambala by train. She has stated that she was taken to Ludhiana where she was kept in a rented room in Modi Nagar. She has stated that in Modi Nagar, accused Parashu Ram had committed sexual intercourse against her consent. She has further stated that whenever accused Parashu Ram used to go outside, he used to lock the room from outside and she was not permitted to go outside of the room under the threat of killing. After a month, she was taken to see picture and on the way, she found her maternal uncle, one another person and the police man. At that time, accused Parashu Ram escaped after seeing the police. She was brought to Rae Bareilly by the police where she was medically examined. The statement of the prosecutrix is corroborated by the statement of P.W. 3 Sunder Lal. He has stated that he had seen accused Ram Kumar and Parashu Ram taking away Km. Mithlesh on the date of the incident and the accused had told him that they were carrying away Mithlesh to her father in Bagaha market.

P.W. 4 Arjun has proved the recovery of the prosecutrix from the custody of accused Parashu Ram in Ludhiana. P.W. 1 Jagdish Prasad Pandey has given the statement what was told by his wife on his return from Bagaha market and he has proved the F.I.R.

After scrutiny of this evidence, I find that the findings recorded by the learned trial court are in accordance with the evidence on record.

The learned Counsel for the accused-Appellant has argued before me that the prosecutrix was more than 16 years and there is always a margin of error of two years in determining the age and the doctor has opined that she was below 17 years. I find no force in this argument. After seeing the medical report in which the condition of the prosecutrix has been noted and even after seeing X-ray report, I find that she was below 17 years. It means that she can be less than 15 years also. The condition of the body of the prosecutrix is such that she cannot be assessed to be more than 16 years and that is why the lady Doctor after seeing the general condition of the body of the prosecutrix has given her opinion that she was 14-15 years of age at the time of medical examination.

The learned Counsel for the accused-Appellants has contended that after seeing the statement of the prosecutrix, it is clear that she did not make any hue and cry when she was being taken to Allahabad, Ambala and Ludhiana and it shows her consent for going in the company of Parashu Ram. I do not find any force in this argument because the prosecutrix is found below 16 years and her consent will be immaterial in going in the company of Parashu Ram. So far as accused Ram Kumar is concerned, it is proved beyond all shadow of doubt that it is he who enticed her away by giving a false statement to the mother of the prosecutrix that Mithlesh was called by her father in the market and he was seen going along with Mithlesh and Parashu Ram by P.W. 3 Sunder Lal.

Child rape cases are the cases of perverse lust for sex where even innocent children are not spared in pursuit of sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. In such cases, responsibility on the shoulders of the Courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection (State of Rajasthan v. Om Prakash, 2002 (3) ACrR 2138 (SC): (2002) 5 SCC 845).

In Joseph Poulo Vs. State of Kerala, , it was held by the Supreme Court that the injuries are not always a sine qua non to prove a charge of rape.

In this case, I find that it is a case of a girl child aged 14-15 years or below 17 years. It is not a case of a grown-up woman. There is no reason to disbelieve the statement of the prosecutrix in any case. The statement of the prosecutrix is very natural and inspires confidence.

Here in the instant case, lady Dr. Usha Singh has given opinion that it was a case of recent rape at the time of medical examination. In State of Himichal Pradesh Vs. Gian Chand, , it was held that it is well-settled that the conviction for an offence can be based on the sole testimony of the prosecutrix corroborated by the medical evidence and other circumstances, if the same is found to be natural, trustworthy and worth being relied upon.

In view of the above, I find no force in any of the contention of the learned Counsel for the accused-Appellants for interference in the findings recorded by the learned trial court.

After seeing the evidence on record, I confirm the findings of conviction and punishment recorded by the learned trial court.

In view of the above, both the Criminal Appeal Nos. 507 of 1991 and 509 of 1991 are dismissed.

Let a copy of this judgment be sent to the C.J.M. concerned within ten days for immediate compliance and report within one month.