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Judgment
Tejinder Singh Doabia, J.—The petitioner was found to have committed civil offence falling within the purview of Section 376(1) of the
Penal Code. He was charged u/s 69 of the Army Act. The Officer Commanding of the Unit considered the matter and decided to try the petitioner
in a summary General Court Martial. An order to this effect was passed. Members, Waiting Members, Judge Advocate and Lawyers were
nominated. The trial commenced. The statement of the prosecutrix and other witnesses came to be recorded. The prosecutrix Miss. R.D.
appeared as P.W. 2. She gave her age as 14 years. She stated that on 2-9-1996 along with her Mausi (mother's sister) and Miss. K.D. were
returning back after seeing the Ladakhi Festival. She stated that near Juma Bagh opposite to Artilop Guest. Room, a blue coloured Gypsy was
there. The driver offered a lift to her Mausi. The two ladies along with prosecutrix got into the Gypsy. After while she noticed her mother and
father coming from the opposite direction, all of them told the driver to stop the vehicle but he did not do so. The vehicle when reached the
Lamdon School, the prosecutrix along with two other ladles wanted to get down. He, however, did not stop and vehicle was taken towards the
Gonipa. The prosecutrix and two other ladies saw two persons walking on the road. All of them shouted 'Bachao-Bachao'. At this point of time,
Miss K.D. opened the front door of the Gypsy and jumped out of the vehicle. Similarly her Mausi also jumped. The prosecutrix also wanted to get
out of the vehicle but she was caught by her hair and the driver kept, driving the vehicle.
The prosecutrix submits that she made a compassionate appeal with folded hands to leave her but she was taken towards the Gompa. The
vehicle was thereafter taken to some houses (Ganglas). She was pulled out of the vehicle. He undressed her after gagging her. He started kissing
her. He is also said to have bitten her on her right ear, shoulder and nipples. After removing his pant and underwear he mounted on the prosecutrix.
He wanted to put his male organ inside the Vagina. At this time, the prosecutrix saw the police Gypsy. She shouted for help. The petitioner is said
to have gagged her and threatened her if she makes loud voice, he would hit her with a stone. However, the police party came there. On seeing the
police party, the petitioner got into the vehicle and fled away leaving the prosecutrix lying on the ground. She is said to have picked up her pent and
shoes and went towards the police vehicle. The police vehicle then tried to chase the petitioner. However, they were unable to do so. After
sometime, the Gypsy in which the petitioner carried away the prosecutrix came from the opposite from the other side. As the petitioner refused to
stop the vehicle, stones were thrown on the Gypsy. Wind screen was broken. The petitioner was chased and was caught. The prosecutrix has
brought to the police station where her Mausi and Miss K.D. were also present. All of them were sent for medical examination. The lady doctor
examined the prosecutrix. As the prosecutrix was made to lie on the ground, there was clot of mud on her body. She stated that the petitioner had
bitten on her left ear and in the area of shoulder and nipples. The prosecutrix was cross-examined. What has come out in the cross-examination is
reproduced below:--
The vehicle was not standing at the Juma Bagh however the vehicle came from behind and stopped near us. We did ask the driver for lift. My
parents were walking about five steps ahead when I boarded the Gypsy had requested the accused to stop and to take my parents inside the
vehicle however he did not stop. I do not remember details of the cloths being worn by the accused. The driver did not get down to open the
doors however he opened it for us while sitting on his driving seat only. There was no light inside the Gypsy. However I can recognise him and
identify him as I had seen him in the road lights.
When after removing his clothes he mounted on you, did he insert his penis in you or he only inserted his fingers? Only fingers were put in.
He has touched his penis with my vagina and tried to thrust it inside. However I did not allow him to did so.
Questions were put by the Court. This part of the evidence is also being noticed and reproduced below:--
The Court at this stage observes that the witness is a young school girl studying in class six being of approximate age of 13-14 years. She is of a
very shy disposition and her physical appearance and growth is less for her age. The witness is not able to articulate her feelings and need to be
coaxed repeatedly when embarrassing questions are put to her regarding sex and private parts.
The witness is now shown Exhibit 'N' which she understand as a topographical sketch of the place of incident. She identifies following places on
the Exhibit as follows:--
Place Marking
Direction of Gypsy while
bringing me. 'A'
Spot of incident. 'B'
Place where I saw police '.'
Gypsy moving. 'C'
Place where Police stopped
and threw stone on the accused. 'D'
The above places as identified by the witness on exhibit 'N' are marked as above in red and signed by the Judge Advocate.
In fact he had applied saliva on his penis and not on my vagina as stated in my earlier statement. He even tried to perform the intercourse with me
while I covered my vagina with my hands. He could not thrust his penis in my vagina. The injuries as observed by the Doctor were due to his finger
which he had thrust in me. It is correct that in my previous statement I used the word rape for the incident.
The prosecutrix was examined by Medical Expert namely Mrs. (sic) P.W. 5. She was Duty Casualty Medical Officer at S.N. M. Hospital Leh.
At about 0045 hours on 3-9-1996 two police constables brought the prosecutrix for medical examination. Two more ladies i.e. her Mausi and
Miss K.D. were also there. On examination following opinion was expressed by the lady doctor:--
The girl was in a state of shock and fright and had laden with dust and sand including her hair, clothes and face. She was conscious, cooperative
and well oriented with time and space. On her general examination I found laceration of about three inch size on the right ear lobe from which
blood was oozing, multiple bruises and creches on legs, arms, face and back, scratch mark on both sides of neck bite mark over both breasts and
shoulders.
Further on local examination fresh stains of discharge with hair particles seen in the perineum and vulva area. Perineal and parauitharal lacerations.
Hymen was absent freshly ruptured and bleeding admits one finger but painfully. I collected vaginal discharge and sent for laboratory examination.
Next day I received the vaginal smear report from the Pathologist and endorsed its details on the police requisition which is as follows:--
Smear contains a white discharge with high blood stains no spermatozoa seen RBC and WBC proportionally seen. No seminal crystal seen. The
injuries were less than six hours old. Based on above findings I was of the opinion that a forceable sexual intercourse was committed on the girl in
less than six hours duration. I hereby produce the above report before the Court. (contd. col. 2)
The questions which were put to the lady doctor and the answer given by her are as under:--
It is correct to say that there can be so many other reasons for rupture of the hymen. It may be due to insertion of finger or may take place due to
strenuous exercise. In view of the fresh oozing of blood I gave my opinion as to the duration of injuries as less than six hours. It is a general term in
our profession and further pinpoint classification cannot be done in medical science.
It is correct to say that a person jumping down from moving vehicle can sustain injuries like injuries of Mrs. Lobzang Chorol.
Q-5 As per Pathologist report there is no spermatozoa seen
Question to the in the vaginal smear and that there was no seminal
witness. crystal seen. Does it not imply that there was no
A-5 penetration?
Answer by the Rape can be committed without, presence of any seminal
witness. crystal or without causing any injury to genitals.
It is correct to say that a lady with 20 to 24 weeks pregnancy, if jumps out from a running vehicle will suffer abortion. However in this case she did
not abort. Signatures marked as 'PA' are of blood bank incharge who is a technician in Pathologist. He is authorised to sign it as there is no
Pathologist in our Hospital.
The statement of the prosecutrix and of the lady doctor clearly establishes the fact that the prosecutrix was subject to sexual assault. The version
given by her is fully supported by the Medical Evidence. The lady doctor found marks of violence on the person of prosecutrix near her left ear,
shoulders, nipples and scratches all over the body. This medical evidence fully corroborates the story put forward by the prosecutrix.
Independently of the above P.W. 3 who is a head constable of police station Leh has testified the fact that he found the prosecutrix in semi nude
condition. She was shivering. They chased the Gypsy. After a hot chase, the petitioner was over powered. The Mausi of the prosecutrix has
supported the prosecution version. She had recognised the driver of the gypsy vehicle and has corroborated the prosecution story in all material
and particulars. The prosecution story is also supported by NGO M. Rajan of Police Station Leh. Prosecution witness No. 8 testifies to the fact
that, wind screen of the Gypsy in question was broken. This part of the prosecution story is also supported by Spr. S.L. Reddy who appeared as
RW. 9, On the basis of evidence which has thus come on the record, the Summary General Court Martial was of the opinion that the petitioner did
sexual assault the prosecutrix. He was convicted to suffer rigorous imprisonment for five years. He was to be dismissed from service. As to why
punishment for live-years was awarded had been adverted to. The fact that he had rendered service for 13 years and had unblemished record
were the factors mentioned in this regard. These findings are challenged by the petitioner. It: is submitted that procedure in terms of Rules 22, 23,
24 has not been followed. It is further submitted that defending officer could not engage a Civil lawyer for defending the petitioner. The officer who
was deputed to defend the petitioner did not possess legal knowledge. On merits it is submitted that proceedings of the Summary General Court
Martial are perverse. The fact that, there was no proven penetration, as per the petitioner shows that this is not the case which fell within the
purview of Section 376.
The respondents have filed objections. The stand taken by them is that case stand fully established against the petitioner and this is not a case
which calls for interference.
After having gone through the file. 1 am of the opinion that the findings recorded by the Summary General Court Martial do not call for any
interference. The statement of the prosecutrix stands fully corroborated when the opinion expressed by the lady doctor is taken into consideration.
The fact that there were marks of violence on the person of the prosecutrix stands fully established. The petitioner had bitten the prosecutrix on her
left ear, on her shoulder and on her nipples. She was found in semi nude condition by the police party. There was absolutely no reason to falsely
implicate the petitioner. It is settled law that conviction u/s 376 can be recorded on the basis of the statement of the prosecutrix alone. In this case
her statement is fully corroborated by the medical expert. In these circumstances, 1 do not find any merit in this petition and the same is dismissed.