Satish Kumar vs State of Haryana

R.L. Anand, J. (Oral)

By this judgment I shall dispose of Criminal Appeal No. 402SB of 1997 and Criminal Revision No. 826 of 1997 as both of them have arisen out of common judgment dated 15th March, 1997 and order dated 20th March, 1997, passed by the learned Additional Sessions Judge, Rohtak, who convicted the appellant under Section 376 of the Indian Penal Code, and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs. 1,000/. In default of payment of fine, the appellant was ordered to undergo further rigorous imprisonment for a period of six months.

Present case was registered on 29th June, 1994 on the statement of the prosecutrix Smt. Poonam for the offence under Sections 363/366/376/342 Indian Penal Code, against Satish Kumar appellant, Smt. Sumitra and one Jaibir Singh. Jaibir was found to be juvenile and he was tried by the Juvenile Court. Satish and his coaccused Smt. Sumitra were chargesheeted by the trial Court on the allegations that they along with Jaibir had wrongfully confined Smt. Poonam, daughter of Kashmir Singh, aged about 13/14, a minor girl, at village Kharkhara from 26th June, 1994 to 28th June, 1994 and they thereby committed offence punishable under Section 342 of the Indian Penal Code. It was also alleged against these persons that on the night intervening 27th and 28th June, 1994, Satish along with one Jaibir took Poonam in the fields situated in village Kharkhara and there Satish appellant committed rape upon her, whereas Jaibir was standing by his side. In this manner Satish committed an offence under Section 376(2)(g) of the Indian penal Code.

Prosecution story as deposed by the prosecutrix P.W. 6 is that on 26th June, 1994 she was going to Gher from her house in village Kharkhara at about 3 p.m. Sumitra accused was preparing Puras in her house and the prosecutrix ate them in the house of Sumitra. Jaibir was also present in the house at that time. Satish appellant then came there and took Sumitra on one side and talked with her. Thereafter Sumitra, Jaibir and Satish forcibly lifted the prosecutrix and put her in the Kotha of Tura (fodder). She was kept there for that day as well as the next day. On the next night at about 12 midnight she was taken to the sugarcane field of Jagdish. There in that field Satish appellant forcibly raped the prosecutrix, while Jaibir was sitting outside the sugarcane field. Next day she was left there in the fields, while Satish and Jaibir went back to their home. The prosecutrix reached her home at 7.30 p.m. and she narrated every thing to her parents. Her father convened Biradari Panchayat about this happening with his daughter. Before the Biradari Panchayat the accused had not admitted their guilt and then they reported the matter to the police next day at about 8 p.m. The prosecutrix was medically examined. Her statement was recorded before the Magistrate, which became the basis of the F.I.R. On the above allegations, the appellant and Smt. Sumitra were tried by the trial Court.

In order to prove the charge, the prosecution examined eight witnesses, including the prosecutrix (P.W. 6), Dr. Indu Lalit (P.W.2) and father of the prosecutrix Kashmir Singh (P.W.7).

On the closure of the prosecution evidence, all the incriminating circumstances appearing in the case of the prosecution were put to the accused, who denied all the circumstances and pleaded innocence. In the defence the accused examined one Ram Singh, resident of village Kharak Kalan.

6 Learned trial Court vide the impugned judgment acquitted Smt. Sumitra and convicted Satish under Section 376 of the Indian Penal Code and sentenced him in the manner stated above.

Aggrieved by the above judgment and order, present appeal and revision have been filed. In the revision petition it has been prayed that since it was a case of gang rape, minimum sentence of 10 years should have been imposed on the appellant and that no adequate and special reasons have been mentioned in the judgment when the learned Additional Sessions Judge imposed a sentence of five years upon appellant Satish.

I have heard Shri Aman Dahiya, Advocate, appearing on behalf of the appellant; Shri Ram Avtar Singh, Advocate, appearing on behalf of the revision petitioner; and Shri Shailender Singh, D.A.G. Haryana, appearing on behalf of the State, and with their assistance have gone through the record of the case.

The first point for determination in the case is about the age of the girl. The prosecutrix appeared as P.W. 6 on 7th February, 1996. At that time she stated her age as 14 years. The occurrence is of the year 1994; meaning thereby that she was about 12 years of age on the date of the incident. The statement of Smt. Poonam (P.W.6) is corroborated by the statement of her father Kashmir Singh (P.W.7). There is a statement of Ms. Savita Sharma (P.W.3), who deposed that Poonam was a student of her school and according to the school record, the date of birth of Poonam was 7th July, 1979. Certificate (Ex.PE) has also been issued by the school authorities, which indicates that she was less than 16 years of age on the date of the alleged incident. According to Dr. Indu Lalit (P.W.2), when she medically examined the prosecutrix on 30th June, 1994, she (prosecutrix) gave her age as 14 years. There is no evidence to the contrary. In view of the above, it can be safely concluded that the prosecutrix was less than 16 years of age at the time of the alleged incident.

Next point which requires determination is whether rape has been committed by the appellant on the prosecutrix or not. Again we have to revert to the statement of Smt. Poonam. According to her, she was going to Gher from her house in village Kharkhara on 26th June, 1994 at about 3 p.m. Smt. Sumitra accused was preparing Puras. She gave Puras to the prosecutrix and she ate the puras in her (Sumitra) house, where Jaibir was also present. It has also been deposed by this witness that Satish appellant took Sumitra on one side and talked with her and thereafter Sumitra, Jaibir and Satish forcibly lifted her and put her in the Kotha of Tura. She was kept there that day as well as the next day. On the next night she was taken to the sugarcane field, where Satish forcibly committed rape upon her during the night. She further deposed that when she was kept in the field under the threat given to her. After that she was left in the field and Satish and Jaibir went back to their home. She reached her home at about 7.30 p.m. and narrated everything to her parents, who convened a Biradari Panchayat and finally the matter was reported to the Police. The statement of the prosecutrix finds corroboration from the statement of her father, who has deposed that his daughter had narrated him the entire occurrence with regard to the rape committed by the present appellant. The statement of Smt. Poonam in this case has been fully corroborated by the statement of her father. The statement of the prosecutrix has to be read as that of an injured witness. Law has even gone to the extent that even on the uncorroborated statement of the prosecutrix, conviction can be recorded, but in the present case there is sufficient corroboration to the statement of the victim coming not only from the statement of her father, but also from the statement of Dr. Indu Lalit (P.W.2), who found following four injuries on the person of the prosecutrix :

Small abrasion 3 cm. x. 5 cm. about 5 cm. below and lateral to left nipple.

Another small abrasion 2 cm. away and medial to injury No. 1. It was 2 cm. x .5 cm. in measurement.

There were three longitude abrasions within an area of 10 cm. on the right hypochondrium with measurement of 5 cm. x .5 cm. each.

There were three abrasions longitudinal in shape in an area of 10 cm. each measuring 5 cm. x 0.5 cm. All the abrasions were reddish brown in colour.

The doctor has also deposed that the hymen of the prosecutrix was absent. The doctor has categorically stated that the possibility of intercourse being done upon her could not be ruled out. After receipt of the report of the Director, Forensic Science Laboratory, the doctor further opined that the intercourse was done on the person of the prosecutrix. Smt. Poonam has categorically stated that she was raped by the present appellant. Dr. Jai Parkash Malik (P.W.5) has also deposed that Satish was fit to perform sexual intercourse and there was no abnormality on his person. Moreover Hon''ble the Supreme Court in the case reported as State of Punjab v. Gurmit Singh and others, 1996(1) RCR(Crl.) 533 : AIR 1996 SC 1393, while appreciating the evidence of the prosecutrix has held as under :

"The testimony of victim in cases of sexual offences is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the Courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict the accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion ? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial conscience, since she is a witness who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of corroboration notwithstanding. Corroborative evidence is not an imperative component of judicial credence in every case of rape. Corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. It must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person''s lust and it is improper and undesirable to test her evidence with a certain amount of the suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and not dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable."

It has been further held by the Hon''ble Supreme Court in the aforesaid authority in the following terms :

"Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women''s rights in all spheres, we show little or no concern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim''s privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is not merely a physical assault it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."

In this view of the matter I do not find any infirmity in the judgment of the trial Court when it had convicted the appellant under Section 376, Indian Penal Code.

Section 376(2)(g) of the Indian Penal Code states, "whoever commits gang rape, shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine." However, there is a proviso to this subsection, which lays down "that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years." The trial Court has stated in the impugned order of sentence as follows :

"On behalf of the accused leniency is prayed. It is submitted that he is of about 20 years of age and has passed B.A. PartI examination. Further that there is no previous conviction to his discredit."

The trial Court has further stated in para No. 3 of the order of sentence as follows :

"Taking into account age and antecedents of the accused on the one hand and the nature of the offence proved against him and the effect of the crime upon the victim of the crime, it does not make out a case for probation and would meet the ends of justice if he is sentenced only for a period of five years rigorous imprisonment."

The reasons given by the trial Court are neither adequate nor it can be said that these are special reasons. The prosecutrix after giving her statement before the trial Court died, perhaps on account of the shock and shame she had to undergo on account of the rape. The trial Court itself has also observed that the appellant did not deserve any sympathy. In these circumstances it was not justified on the part of the trial Court to award the sentence only of five years upon the appellant. There is mandate of law to this effect. Sentence in this case could not be less than ten years.

Resultantly, the appeal filed by the appellant is dismissed and the revision filed by the father of the prosecutrix is hereby allowed. The sentence of appellant Satish is hereby enhanced to 10 years'' rigorous imprisonment. The appellant is also directed to pay a fine of Rs. 1,000/. In default of payment of fine, he shall undergo further rigorous imprisonment for a period of six months, as ordered by the trial Court.

Let intimation about enhancement of the sentence of the appellant be sent to District Jail, Rohtak.