Satbir Singh vs State of H.P.

Bhawani Singh, J.—This appeal, by the accused, is against the judgment of Additional Sessions Judge (I), Kangra Division, in Sessions Trial No. 19 of 1985 decided on 24-12-1986. By this judgment, the accused has been convicted u/s 376 of the Indian Penal Code and sentenced to simple imprisonment for three years and a fine of Rs. 500/-. The accused assails this judgment if by this appeal.

Briefly, the facts are that the prosecutrix, Kumari Krishna Devi, a minor girl, .belongs to village Kharota in Tehsil Nurpur of District Kangra. The accused is an army man. The prosecution case is that on 31-7-1985, the prosecutrix was going to Jawalamukhi for offering prayer in the temple, of goddess Jawalaji. From her village to Jawali, she. Came on foot and there she boarded the train that was coming from Pathankot and was going towards Kangra, The accused was also traveling by the same train from Pathankot to Nagrota Bagwan. When the train reached Ranital, known as Jawalamukhi road Railway Station, it stopped there'' since the road beyond this place was reported to be blocked.

The prosecutrix got down from the train and sat on a bench at Ranital near by certain shops. Similarly, the accused also got down and seeing the prosecutrix alone, he came to her and asked her as to why she was sitting alone in a sad mood. The prosecutrix told him that she had lost Rs. 15/-. Oh this, the accused consoled her and promised that he would give her money. The accused persuaded her to accompany him to a nearby hotel for taking meals. He took her there and took meals with her in the hotel of Shri Hari Chand Sharma. During this time, they were seen by Shri Gian Chand, who saw that the prosecutrix was a local girl whereas the accused was a stranger. The version of the prosecutrix hats been clearly proved and established? The statements are truthful and consistent, minor variations here and there are natural when number of witnesses deposes on a particular fact and that too after a_ long time. Moreover, every person has his own way of giving statement and describing an incident. What is necessary to be seen is whether the variations are so vital and material that the basic case of the prosecution is denuded of its vitality or not. If no such dent is created to the prosecution case, such minor variations do not have to be taken note of while appreciating the evidence and the strength of the prosecution case.He asked Hari Chand to ask the accused as to the whereabouts of the girl on an inquiry by Shri Hari Chand, the accused told him that the girl was his wife. This, however, did not satisfy Shri Gian Chand and Shri Hari Chand. After meals, the accused and the prosecutrix left for the railway station. Shri Hari Chand Sharma informed Shri Om Parkash, President Gram Panchayat, Krishah Chand and Shri Ram Saran, about the doubtful statement of the accused and told them that the accused had taken the girl to the railway station. On this information, Om Prakash, Krishan Chand and Ram Safan went to the railway station in search of the accused and the prosecutrix. They undertook a thorough search of all the compartments and the latrines of the train and ultimately they found the accused and the prosecutrix the latrine of one compartment. The door of this latrine was found closed from inside and when these persons knocked at the door, the accused came out and while doing so, he shut the door immediately. These persons asked the accused as to who was inside the latrine and the accused replied that his wife, Was there and that she was not feeling well, so she was washing herself. These people did not feel convinced with this answer and they forcibly opened the door of the latrine and saw that the prosecutrix was there. The prosecutrix was wearing her shalwar that was lying near her feet while her shirt was torn. She was weeping and on an inquiry she told these persons that she was raped by the accused.'' She was asked to put on her shalwar and thereafter these persons brought the accused and the prosecutrix to the waiting room of the railway station where they were handed over to the Station Master. The Railway Police was telephoned by the Station Master and it reached the spot immediately and took the custody of the prosecutrix and the accused. A case u/s 376 of the Indian Penal Code was registered by the police; Police Station, Haripur, and the prosecutrix gave detailed account of the whole incident. Medical examination of the prosecutrix was done on 1-8-1985 due to the reason that her mother was not present earlier. In the case of the accused, the medical examination was conducted on 31-7-1985. After the investigation of the case, a challan u/s 376, of the Indian Penal Code was filed against the accused. The defence of the accused appears to be that he had been falsely implicated by the police although he admits having-traveled from Pathankot to Nagrota Bagwan by the train during this time on 31-7-1985. He denies having got down from the train or met the prosecutrix. He explains that the police had come inside the compartment and took him into custody along with three other-military men who were later on let off when he was implicated falsely and on the basis of suspicion.

In order to examine the correctness of the conviction recorded by the teamed Sessions Judge, it is necessary to examine the material part of the statements of the witnesses.

Kumari J Crishiana Devi (P.W. 3) is the prosecutrix. She is of 15 years of age. She states that she studied in Kharoia, School arid thereafter in Banara School. She left her studies from 4th standard. She states that she was going to Jawalaji for visiting temple for offering her prayer to the goddess. She came on foot from Kharoia to Jawali where she boarded the train and reached Ranital at about 2.30 p.m. Here she got down and sat on a bench where the accused came and as forced her to accompany him to take meals in a hotel. She had brought Rs. 20/- out of which she had lost Rs. 15/- She took the meals in a hotel at Ranital where the accused took liquor also. The accused- asked her to accompany him to the train where he will give her money because she had told him that she had lost money. When they reached inside the compartment, the accused .dragged her to the latrine of the compartment and bolted the latrine from inside. The accused untied the string of her shalwar, took out his, pant and underwear and did ''bura kam'' with her, that is put his penis to her vagina. She felt pain. Then some whitish material came out. Thereafter somebody knocked at the door of the latrine from outside. The accused washed his penis and then put on his part, opened the door from inside and told her that she should keep herself inside till he asked her, but the persons who were outside the door of the latrine, opened the door forcibly and she came out. They took her to the railway station and made inquiries from her as to what had happened;. She revealed them the incident. The Station Master telephoned the police and it came there. The police had taken her to the house of the Pradhan for that night and she stayed there with the daughters and wife of the Pradhan during this time. She was examined by the doctor where she was taken by the police. Her clothes were taken by the doctor and the same were wrapped in a bundle. She has denied the, suggestion that there were also'' other soldiers of the army sitting in that compartment at that time. She stated that the compartment was empty. She reiterates that the accused caught her from the door and dragged her inside the compartment. The accused did not pay her the money and instead dragged her towards the latrine and although she tried to get herself released from his clutches, but he dragged her into the latrine. In order to save herself, she lay flat on the floor of the compartment and during his process of dragging into the latrine; she gave teeth bites and nail scratches to the accused. She d& not know neither the accused earlier nor his name was known to her. This is the version of the prosecutrix.

Shri Vijay Thakur, learned, counsel for the accused, submits that the story of the prosecutrix does not inspire confidence and cannot be believed. I do not see that the statement of the prosecutrix is in any way false or suffers from any other defect. The prosecutrix has given a comprehensive account of the incident. Her statement is natural and there is no reason to disbelieve it as contended by Shri Vijay Thakur. This innocent girl placed in a strange predicament due to the loss of money, was made an easy prey by the clever accused who took complete advantage of her adversity and helplessness by committing the act and the situation developed to such an extent that the prosecutrix was not in a position to release herself from the clutches of the assailant who was none other than the accused, a soldier in the army. Although her testimony is enough to prove the charge against the accused without any further corroboration, however, reference to other evidence to support her version is made.

Shri Gian Chand (P.W. 4) is running a shop at Ranital Bus Stop nearby the Sharma Hotel where the accused and the prosecutrix took meals. He states that on 31-7-1985 at about 2.30 p.m. the accused and the prosecutrix came in the hotel of Sharma for taking meals. He found that the girl was local and the array soldier was a stranger. He asked the owner of the hotel to inquire from the accused as to who the girl was. On inquiry, the accused told that the prosecutrix was his wife. They doubted his statement. Thereafter the accused and the prosecutrix went towards the railway station after taking their meals. Shri Hari Chand, owner of the hotel, had then informed Shri Omr Parkash, Pradhan, Kishan Chand and Ram Saran about the doubtful statement of the accused. He, along with these persons, went to the railway station arid after sometime they brought the accused and Krishna Devi back to the waiting room of the railway station.

Shri Krishan Chand (P.W. 5) is the member of the Gram Panchayat, Ranital. He supports the version of Shri Gian Chand (P.W. 4). Further, he went to the railway station along with Ors. and states that they checked the compartments and latrines and found that one of the latrines near the engine was locked. He knocked at the door of the said latrine and the accused came out from inside the latrine after about 2/3 minutes of the knocking and informed them that" his wife was inside the latrine and was doing cleaning work.. They doubted his statement and pushed the door forcibly and saw the prosecutrix inside the latrine. Her shalwar was lying near her feet her shirt was on her body but the same was torn. Her face was faded and she was weeping they asked her to put her shalwar. They took them to the railway station. The prosecutrix told them there that the accused had done forcible intercourse with her. The police was informed by the Station Master and the accused and the girl were handed over to the police. This witness identified the clothes Ex. P. 1, Ex. P. 2 and Ex. P. 3 that were worn by the prosecutrix on that day. In cross-examination, he denied the-suggestion that he was deposing falsely that the accused and the prosecutrix were recovered from the latrine of the compartment. This witness further: denies the suggestion that 4/5 army soldiers were brought by the public on that day to that place. He also denies that the police took 4/5 soldiers with them to'' the police station where they were released.

Shri Karam Singh (P.W. 6) was the Station Master at Ranital, at that time. He states that the train had stopped at Ranital because the road between this station and Kopar Lahar was blocked. He further states that Shri Om Parkash Pradhan and Ors. came to him at about 2.30 p.m. along with the accused and the prosecutrix. The prosecutrix was weeping at that, time and he was told by Shri Om Parkash, Pardhan, that the4 accused had raped the prosecutrix and he informed the police. The police reached there by a truck. He gave a. written memo to them and handed over the-prosecutrix and the accused to the police. The memo is Ex. PD, written by him under his signatures. He denies the suggestion that some other soldiers were also, brought there by the Pradhan and his men. He also denies the suggestion that the Ruka (Ex. PD) was written by him after the police had reached at the spot.

Shri Raghunath Singh (P.W. 7) is the Headmaster of Government Primary School, Barnara. From the admission and withdrawal register of the school, he states that the prosecu-trix was admitted in his school on 19-4-1983 in Class fourth and her date of birth according to the record of his school was 1-5-1970. Earlier to this admission in this school, she was in Government Primary School, Kharota. She was admitted in his school on the basis of the School Leaving Certificate Ex. PE.

Smt. Shankari Devi (P.W. 9) is the mother of the prosecutrix. She states that she was married 18 years back. She has five issues and the prosecutrix is the eldest of all. The prosecutrix, she states, was born after three years of her marriage and the prosecutrix is of 15 years of age. She was informed by the Constable about this incident and the prosecutrix was examined in her presence by the doctor. Her date of birth was also reported to the Pundit who prepared her horoscope (Ex. PH). She denies the suggestion that the horoscope (Ex. PH) was prepared at the instance, of the police, in order to show that the prosecutrix was only 15 years, of age.

Shri Ram Saran (P. W. 10) supports the version of the prosecutrix, Gian Chand (P. W. 4), Krishan Chand (P. W. 5) and Shri Karam Singh(P. W, 6).

Shri Om Parkash (P. W. 11) is the Pradhan of Gram. Panchayat, Ranital. He has also given a detailed account of the incident and supports the version of the prosecutrix and witnesses like Gian Chand (P. W. 4), Krishan Chand (P. W. 5) and Karam Singh(P.W. 6).

Dr. Kartar Singh (P. W. 15) X-rayed the prosecutrix for the determination of her age and his conclusion is that the^ age of the prosecutrix was between 12 to 14 years. His report h Ex. PL and X-ray skiagram is Ex. P. M. In justification of his conclusion, he states that the epiphyses of the bones X-rayed for verification were not completely fused. He denies the suggestion that the age of the prosecutrix could be 14 years because he had given the average age between 12 to 1.4 years. He also denies the suggestion that the age of the prosecutrix could be upto17-1/2 years and not less than 16-1/2 years. This witness has been put to grueling cross-examination, as to the age of the prosecutrix but nothing material favourable to the accused has been elicited.

Dr. V. M. Kaul (P. W. 1) examined the accused on v. 31-7- J 98 5. He states that at the time of the examination of the accused 6y him, his breath was smelling alcohol. According to him, the accused was fully developed in all respects and was not incapable of doing intercourse.

Dr. (Mrs.) J. Kaul (P. W. 2) examined the prosecutrix on l-8-1985and in her examination, the relevant parts are as under "Thighs no external injury-white stains on medial side of right thigh just below the vulva-no blood stains, no matting of hairs, scrapping of the stain on right thigh taken for chemical examination.-No swelling, no injury tender on touch Labia-minora-normal. Hymen ruotured For chetts red bleeding point on right side of hymen. Tender on touch. ''Per vaginal examination :

Vaginal orifice admits one finger tightly. Tenderness plus inflamed. Secretions present in vagjna Smear swabs'' (two) taken for chemical examination.

Chuni-orange coloured. Shirt-Green in colour. Torn at: (1) from right exilla upto midline, (ii) in the middle of in front region Shalwar: Light pink with purple flowers. Blood stain in the area of external genitals along with whitish stains in the surrounding areas. Shalwar torn on both knees. All clothes sent for chemical analysis. No other mark of injury.

In my opinion intercourse has been done, with krishana Devi in perceding 24 hours and she is not habitual for inter course.

I had noted the identification marks that if, elongated old seat mark of the size of 2''cm X 1/2 cm on left cheek4cm on from Ieft ear; (ii) old scar mark 1cm X 0.3Cm on the front of Forehead in Centre. I have compared the identification marks on the body of the girl shown to me today and she is the same girl to whom I had examined. I had handed over a copy of the medical certificate to the police officials after my examination. I had also handed over sealed clothes, three sealed bottles for chemical examination. Ex. PB is the carbon copy of the medical certificate, which is in my hand and bears my signature. I had also brought the original with me today. I had also obtained the signature of Krishna devi on this certificate.

Finally, she states that in her option, this was the first act of inter course with the prosecutrix because the rodness bleeding point and tenderness of the hymen showed that the inter, course had been done with her for the first time. All these injuries which were found on the genital part of the prsecutrix would not have been there if she had'' sexual intercourse earlier than the act in question :

ShrL Rajpal (P. W. 16) is the Assistant Sub-Inspector of Police. He has given the narration of the steps taken during the investigation of this case from time to time.

The version of the accused has already been stated.

Shri J.L. Chauhan (DW2) has also appeared in this case to state about the receipt of the First Information Report No. 43 of 1985 which he received on 2-9-1985 at'' about 11 a.m. It appears that the First Information Report entered at Serial No. 44 of the receipt register is dated 1-8-1985 at 11 am and the entry is initialed by the Judicial Magistrate. He states that the correct date of receipt was 1 -8-1985 and he may have accidentally written as 2-8-1985.

This is the nature of evidence which has appealed in this case.

Shri Vijay Thakur, learned Counsel for the accused, submits that the conduct of the prosecutrix is such that the version given by her cannot be believed. Elaborating his submissions, he contends that the prosecutrix met the accused, as alleged, took her meals with him, went away with him to the railway station but did hot complain to anyone nor raised any hue and cry this conduct indicates that she was willingly with the accused and was also a consenting party to the act now being alleged as an offence of rape against the accused. It is also contended that the accused has been falsely implicated and his inclusion can also be on account of suspicion for lack of evidence of identification. This argument is not tenable in view of the evidence on the record. The prosecutrix is a minor village girl. She had left her village to visit the temple which she could not do on account of the blockade of the road. Added to this misadventure was the loss of money. She was not in a fit state of mind at the time the accused appeared on the scene. Noticing, her sitting alone, he took advantage of it and further loss of money by her. Further, pressed her to accompany him to the hotel, consoled her, promised to give her money and under this belief took her right up to the railway, compartment where he immediately, by dint of his physical strength, dragged her % into the latrine and forcibly raped her. In these circumstances, there was no cause for her to complain to anyone and to raise hue and cry since she was not apprehending any such assault on the part of the accused who had taken her in complete confidence till the last act. She was placed in such a situation that she could not do anything and the accused took full control of her and advantage of the situation. Doctor''s evidence discloses that .this was the first act of intercourse with her and she had sustained number of injuries. Thus, this argument of Shri. Vijay Thakur�s of no substance and is thus repelled. It is .

further contended that the version given by the prosecutrix is not; consistent and there are number of loopholes in the form of contradictions in her statement and the statements of other witnesses giving version on this aspect of the matter 1 do not see any material contradictions in the version of these witnesses. The version of the prosecutrix has been clearly proved and established. The statements are truthful and consistent. Minor variations here and there are natural when number of witnesses deposes on a particular fact and that too after a long time. Moreover, every person has his own way of giving statement; and describing an incident. What is necessary to be seen is whether the variations are so vital and material that the basic case of the prosecution is denuded of its vitality or not. If no such dent is created to the prosecution case, such minor variations do not have to be taken note of while appreciating the evidence and the strength of the prosecution case. Here, the prosecution case remains intact and solid...

Further, Shri. Vijay Thakur contends that the evidence regarding the age of the prosecutrix is thoroughly weak and the same cannot be determined accurately on the basis of an entry in the School register. Reliance has been placed on Raja Janaki Nath Roy and Others Vs. Jyotish Chandra Acharya Chowdhury and Others, Tata Iron and Steel Co. Ltd. Vs. Abdul Wahab, AIR 1936 LC 598 (Asa Nand v. Gian Chand) 1984 (2) CLR 7 (Gulab Singh W v. the State of Haryand) and Brij Mohan Singh Vs. Priya Brat Narain Sinha and Others, Perusal of these - judgments indicates that no universal rule for application has been laid down. The only thing that has been said is that the evidentiary value of such an entry is not much. In the last case,'' by the apex court, it has been held that there is a tendency, quite often resorted to by the parents, to give minimum age of their children while admitting them in a School. But it has not been laid down that such an-evidence is to be rejected outright. On aspect Shri M S. Guleria, learned Assistant Advocate General, has placed reliance on Harpal Singh and Another Vs. State of Himachal Pradesh, wherein the Court observed in para-3 as under:

In the instant case the prosecution has proved the age of the girl-by overwhelming evidence. To begin- with, There is the evidence of Dr, Jagdish Rai (PW.14) who is a radiologist and who after X-Ray examination of the girl found that she was about 15 year of age This is corroborated by Ex. PF which is an entry in the admission register maintained at the Government Girls High School Samnoli (where in girl was a student) and which is proved by the Head Master. That entry states the date of brith of the girl as 13th October,1957 There is yet Anr. document Ex. PD a Certified copy of the relevant entry in the birth register which shows that Saroj kumari, who according to her evidence was known as Ramesh during her chiidhood was born to Lal wanti wife of Daulta Ram on 11-11-1957 Mr. Hardy submitted that in the absence of the examination of the officer /chowkidar concerned who recorded the entry it was inadmissible in evidence we cannot agree with him for the simple reason that the entry was made by the concerned official in the discharge of his official duties that it is therefore clearly admissible u/s 35 of the Evidence Act and that it is not necessary for the prosecution to-examine its author from whatever angle we view the evidence the conclusion is inescapable that Saroj Kumari was below 16 years of age at the time of the occurrence. Accordingly we agree with judgments of the courts below and see no merit in this appeal which is dismissed.

In the present ease, this is not the only evidence on this aspect there is evidence of the prosecutrix, her mother and the evidence of P. W. 15, who conducted the ossification test of the prosecutrix. Learned Counsel for the accused submits that the ossification test is not a sure test t j determine the age. Reference to this regard is made to 1982 CLR 276 (Des Raj v. the State of Punjab) Perusal of the report of Dr. Kartar Singh (P. W. 15) shows that the age of the prosecutrix has been placed between l!toJ4years. Variations can be both ways. In either case, it cannot go beyond 15.years, in any case. As already observed, this is not the only evidence in this case. In addition to this, the age of the prosecutrix has been proved by other evidence as well Thus, this argument of the learned Counsel for the accused also fails.

The next submission is that there is delay in the lodging of the First Information Report. The incident took place on 31-7-1985 and the First information Report was also lodged on the same day. There is no delay in lodging the same. The period in between the incident and the lodging of the First Information Report has been explained in the evidence. There is no First Information Report in this case and the argumentation on this a count is of no consequence.

As regards the submission relating to the involvement, and identification of the Petitioner in this case, the submission is thoroughly fallacious. The accused was seen for pretty long time .by many of the prosecution witnesses in addition to the prosecutrix. They saw him sitting in the hotel and taking meals. They questioned him. They doubted his statement qua the - prosecutrix. They went in search of him to the railway station. Found him there and caught him, brought him to the waiting room of the railway station, remained there till he was handed over to the police. The same is the case with respect to the prose cutrix; She was all along with him right up o the stage he was handed over to the all along There is no question of any misidentification and suspicion in this regard. In these circumstances, ''there was no need of conducting any identification parade, as contended.

The examination of the matter aforesaid, clearly establishes that the prosecution has established the case of rape against, the accused. The learned Additional Sessions Judge has also examined the matter quite exhaustively dealing with all material aspects of the case he fore arriving, at the conclusion which is quite apt and in accordance with the evidence on the record and the principles of law applicable in these circumstances. I up-hold the ladings and the conviction recorded by the trial court. No other point was argued by any of the learned Counsel appearing for the parties.

On the question of Sentence Shri Vijay Thakur has contended that the same is excessive and deserves to be reduced, if the benefit of the benevolent provisions of the Probation of Offenders act is not extended to the accused, keeping in view that he is the first offender and his service career is likely to be affected on if the other hand, Shri M.S. Guleria, learned Assistant Advocate General, submits that the sentence is already on the lower side and does not call for any interference. I am not convinced with the submissions of the learned Counsel for the accused. The sentence awarded is very much less, keeping in view the nature of the offence and the circumstances and the manner in which it was committed; that too by a soldier, who has to be disciplined and defender.

The result, therefore, is that there is no merit in this, appeal and the same, is accordingly dismissed Order of suspension of the sentence during the pendency of this appeal is '' hereby vacated.