PUNJAB AND HARYANA HIGH COURT (D.B.)
Criminal Appeal No. 299-DB of 1996
For the Appellant :- Mr. Vikas Chatrath, Advocate.
For the Respondent :- Mr. G.S. Gill, Deputy Advocate General, Punjab.
A. Indian Penal Code, Sections 376 and 375 - Rape on a minor girl aged 12/14 years - Matter reported after 14 hours' delay - Delay natural in rape cases for fear of undue publicity and consequent ignominy to family of ravished girl - Incidents of rape are either not reported at all or reported after some time - Prosecution version not to be doubted on account of delay. 1992(3) RCR (Crl.) 619 (SC) relied. [Para 10]
B. Indian Penal Code, Sections 376 and 375 - Rape on a minor girl aged 12/14 years - Medical evidence supported her evidence - Accused convicted and sentenced to life imprisonment - Corroboration is not sine qua non in rape case - Testimony of victim should not be viewed with doubt or disbelief - It is not a normal human conduct that in such a case real culprit would be spared and someone else would be implicated by the prosecutrix. 1990(1) RCR (Crl.) 411 (SC) relied. [Paras 10 and 12]
C. Indian Penal Code, Sections 375 and 376 - Rape - Complete penetration of penis, emission of semen and rupture of hymen is not necessary to constitute offence of rape - Even an attempt at penetration into private part of the victim would be quite enough for attracting Section 375 IPC. 1995(1) RCR (Crl.) 465 (SC) relied. [Para 12]
D. Indian Penal Code, Section 376 - Rape - Child witness - Rape on a minor girl aged 10/12 years - Child is a competent witness - Court should scrutinize the testimony with care and caution - No infirmity found in the testimony of prosecutrix aged 12/14 years - Accused convicted and sentenced to life imprisonment, but sentence reduced to 10 years by High Court. [Para 13]
E. Indian Penal Code, Section 376 - Rape - Rapist is a depraved human being - By committing act of rape, he has violated not only the body of victim but her very soul also - Imposition of inadequate sentence would be injustice not only to victim but also to the Society as a whole in general. [Para 14]
F. Indian Penal Code, 1973, Section 376 - Rape - Quantum of punishment - Accused committing rape on a minor girl aged 12/14 years and sentenced to life imprisonment by trial Court - Accused 19 years of age - Sentence reduced to 10 years RI. [Para 14]
Cases referred :State of Rajasthan v. Narayan, 1992(3) RCR 619.
State of Maharashtra v. Chandra Prakesh Kewal Chand Jain, 1990(1) RCR (Crl.) 411 : 1990(1) SCC 550.
State of U.P. v. Babul Nath, 1995(1) RCR 465.
M.L. Singhal, J. - Kr. Babita daughter of Shri Shiv Shankar Sharma resident of village Farsath, P.S. Gorakhpur, Distt. Gorakhpur, U.P. aged 10-11 years was putting up with her cousin (maternal uncle's son) Dhrup Sharma at Mandi Gobindgarh 3-4 months prior to October, 1995. Dhrup Sharma came to their village Farsath and asked her mother Lilawati and father Shiv Shankar that he would take her (Babita) to Mandi Gobindgarh (Punjab) and educate her there. Dhrup Sharma accordingly brought her to Mandi Gobindgarh at his house and put her to the cooking of meals and washing of clothes. On her refusal to wash clothes, he gave her beating. Landlady of the house, Smt. Kamla @ Lali told her not to wash clothes as washing of clothes would tire her. Other women putting up in the house as tenants were also telling her not to wash clothes. He used to take her to the place of his work and send her to the house for preparing tea. He never permitted her to visit any other house. At night, he used to put her to sexual intercourse. He used to put off her underwear and made her sleep with him on the same bed. When she wept, he gave her beating and tied her hands and feet. On the night intervening 4/5.10.1995, he was beating her. Aunti Smt. Kamla @ Lali came and asked him why he was beating her. He replied that she was not studying. Smt. Kamla confronted him that it was 1 AM and 1 AM was no time to study. On hearing Dhrup Sharma's reply, Smt. Kamla gave him as slap. She gave vent to this incident. She took Babita to Smt. Prem Lata wife of Shri Harbans Lal, ex-MLA Fatehgarh Sahib. Thereafter, she was taken to Civil Hospital, Fatehgarh Sahib. She was medically examined by Dr. Avinash Kaur, Medical Officer, Civil Hospital, Fatehgarh Sahib. SI Gurmel Singh, Additional SHO, P.S. Mandi Gobindgarh recorded statement Ex.PA of Babita on the basis of which case FIR No. 81 was registered against Dhrup Sharma under sections 354/376/511 IPC at PS Mandi Gobindgarh vide formal FIR Ex.PA/2. After investigation Dhrup Sharma was challaned under Sections 354/376/511 IPC. On the case being committed to the Court of Session, Dhrup Sharma was put on trial before Additional Sessions Judge, Fatehgarh Sahib on the charge under Section 376 IPC drawn up against him vide order dated 12.12.1995 passed by Additional Sessions Judge, Fatehgarh Sahib. The accused pleaded not guilty to the charge and claimed trial. With a view to bring home the charge levelled against the accused, prosecution examined Babita (prosecutrix) PW.1, Smt. Kamla @ Lali PW.2, Dr. Ranjit Singh Medical Officer, Civil Hospital, Mandi Gobindgarh PW.3, SI Gurmel Singh PW.4, ASI Mohinder Singh PW.5, Dr. Avinash Kaur, Medical, Officer, Civil Hospital, Fatehgarh Sahib PW.6. Report of the chemical examiner Ex.PX was tendered into evidence.
2. Accused when examined under Section 313 Cr.P.C. denied the imputations appearing in prosecution evidence against him and stated that it is a false case against him engineered at the instance of Smt. Kamla @ Lali by Babita. Smt. Kamla wanted his eviction from the house. Babita used to put up with Smt. Kamla and sleep with her during the night. He never brought Babita from U.P. She came to Mandi Gobindgarh with her parents and started putting up with him. While leaving for U.P., her parents left Babita with him. He used to leave for the place of his work in the morning leaving Babita alone in the house with Kamla, landlady of the house. Babita is from his brother-hood and not his first cousin. In his defence, he examined Harjit Singh DW.1 and Ram Partap PW.2.
3. At the conclusion of trial, Additional Sessions Judge, Fatehgarh Sahib found the charge under Section 376 IPC proved against the accused, convicted him thereunder and sentenced him to undergo imprisonment for life and to pay fine of Rs. 500/- or in default of payment of fine to undergo further R.I. for 2 months.
4. Through this appeal, Dhrup Sharma has knocked the door of this Court praying that he deserved acquittal and has been unjustly convicted and sentenced.
5. We have heard the learned counsel for the appellant, learned Deputy Advocate General for the State of Punjab and have gone through the record.
6. Kumari Babita repeated at the trial the same story which she had narrated in the First Information Report. She gave her age as 11 years before the trial Court. Before recording her statement, learned trial Court had put her certain questions so as to test whether she was intelligent enough to answer questions, and understand the sanctity of oath. Trial court recorded her statement on oath. She stated before the trial Court quite vividly as to how her mother felt allured into sending her from her village Farsath, Distt. Gorakhpur to Mandi Gobindgarh for being educated by him. He is Babita's cousin i.e. maternal uncle's son (her mother's nephew). Her mother took his words at their face value and sent her to Mandi Gobindgarh with him for being educated. Instead of educating her, he put her to preparing of meals for him and the washing of clothes. He never sent her to any school. He used to have her company at night in the bed. He used to put off her underwear and suggest that she should indulge into sexual intercourse with him so that her physique improved. He tried to thrust his penis into her vagina. On account of his attempt to thrust his penis into her vagina, she suffered pain in her vagina. He kept attempting sexual intercourse with her for about 15 minutes. Prior to that, he had committed sexual intercourse with her for about one month at night time. She was raising hue and cry. On hearing her cries, Smt. Kamla @ Lali knocked at the door.
He was then in the act of sexual intercourse with her. He hurriedly put on Kachha and opened the door while she was without any underwear. It may be mentioned here that accused was a tenant in one room of the house of Smt. Kamla @ Lali. Smt. Kamla @ Lali PW.2 stated that accused was a tenant in her house. In the beginning, he was putting up all alone. After some time, he brought Babita with him. He used to tell that Babita is his father's sister's daughter and he had brought her for being educated and also she will cook for him. She was not sent to any school. He used to beat her at night and when she intervened, he stated that he was beating her as she was not studying. For about 2 months, Babita did not disclose her the reason why he was beating her. Thereafter, she told her that he was beating her not that she was not studying but because he was committing sexual intercourse with her and she was not willing to have sexual intercourse. She did not believe her. On the fateful night at about 1 A.M. she heard the cries of Babita. She knocked the door of the room of the accused. He opened the door. He had wrapped himself with towel while Babita was naked and she put on underwear at that very moment. She slapped the accused for committing sexual intercourse on Babita.
7. Dr. Avinash Kaur, Medical Officer, Civil Hospital, Fatehgarh Sahib PW.6 found, on medical examination of Babita on 4.10.1995, Vulva swollen, tender. Labia Minora and Labia Majora swollen and tender, hymen ruptured. No fresh bleeding was present. Vaginal swab was taken and preserved and sent for chemical examination. Separate swab was taken for anterior and posterior fornix right and left fornix and was sent to the chemical examiner for examination. She found that vagina was admitting one finger without causing any discomfort. According to her, attempts had been made many times at performing sexual intercourse on Babita. There was penetration to some extent which resulted into the rupture of them hymen. Dr. Avinash Kaur PW.6 took into possession the clothes of the victim. She sent those clothes also to the Forensic Science Laboratory for examination. Assistant Chemical Examiner to Government Punjab found semen on posterior fornix swab and cloth piece. No spermatozoa was found on vaginal swab, right lateral fornix swab, left lateral fornix swab and anterior fornix swab. This suggests that Babita was subjected to sexual intercourse.
8. A Board of Doctors comprising Dr. B.S. Chhabra, Senior Medical Officer, Civil Hospital, Mandi Gobindgarh, Dr. Ranjit Singh, Medical Officer, Civil Hospital, Mandi Gobindgarh performed ossification test on Babita. X-ray report is Ex.PB. and the X-ray skiagrams are Ex.P.1 to P.7. According to the ossification test performed on her, she was 12 to 14 years old. He categorically stated that her age could not be between 14-16 years. ASI Mohinder Singh got the accused medically examined. Semen was found on the underwear of the accused by the chemical examiner. Presence of semen on underwear of the accused suggests that he had sexual intercourse, particularly when we look to the statement of the prosecutrix who has imputed him rape on her. Babita is a tender girl aged 11-12 years. Ossification test performed on her suggests that she was aged 12-14 years. She is the cousin of the accused. Why should she have imputed rape to him if he had not committed rape on her ? In the First Information Report as well as before the trial Court, she had imputed rape to him on her, not once or twice but several times, after he had brought her from U.P. to Punjab.
9. It is not believable that Babita would allow herself to be used as a tool by Smt. Kamla @ Lali whose displeasure the accused allegedly incurred by not vacating the tenancy premises. Babita is a small girl having been brought by the accused who is her cousin from U.P. for being educated. Why should she have impugned rape to him on her and thus spoil her own honour ?
10. Faced with the tenacious character of the prosecution evidence appearing against the accused (appellant), the learned counsel for the appellant submitted that there is considerable delay in the reporting of the matter to the police. Incident took place at about 1 A.M. and the matter was reported to the police at about 3 P.M. Special report reached the Magistrate at 7 P.M. Suffice it to say, Babita is a girl aged 12-14 years from U.P. She was in trust with the accused to be educated by him. Accused was entrusted with her care and custody. Accused instead of discharging the trust faithfully, started defiling it. Whom could she look to when he continued defiling the trust and ravishing her ? She could look only to the landlady of the house Smt. Kamla @ Lali, Smt. Kamla joined Smt. Prem Lata wife of Ex-MLA Harbans Lal so as to restore the honour of an innocent and hapless girl ravished by her own cousin, and then the matter was reported to the police. In our opinion, there is no delay in the reporting of the matter to the police. Even otherwise, some delay is natural in cases of incidents of rape, for fear of undue publicity and consequent ignominy to the family of the ravished girl or the ravished girl herself. Incidents of rape are either not reported at all or reported after some time. In this view, we are supported by the observations of their Lordships of the Hon'ble Supreme Court in State of Rajasthan v. Narayan, 1992(3) RCR 619 where it was observed that "a woman and her relatives have to struggle with several situations before deciding to approach the police, more so, when the culprit happens to be related. In such cases, therefore, delay is understandable and hence merely on that account, the prosecution version cannot be doubted". Victims of incidents of rape are hesitant to approach the police since it involves the question of morality and chastity of the victim.
Why should Babita be not believed ? Her testimony should be accepted even without corroboration because she cannot be put on par with an accomplice. Corroboration is not sine qua non for conviction in a rape case. In incidents of sexual assaults, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration, as a rule, is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? To do so is to justify the charge of male chauvinism in a male dominated society.
11. In State of Maharashtra v. Chandra Prakesh Kewal Chand Jain, 1990(1) RCR (Crl.) 411 : 1990(1) SCC 550, Their Lordships of the Hon'ble Supreme Court observed as follows :-
- "A prosecutrix in a sex offence cannot be put on 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."
13. It was contended that Babita is a child witness. It is not safe to accept the testimony of a child witness because the child witness might have deposed under pressure or she might have deposed as a result of tutoring. Suffice it to say, child is a competent witness. We should scrutinize the testimony of a child witness with greater care and caution. We do not find any infirmity in the testimony of this child witness who is corroborated by Smt. Kamla @ Lali PW and further corroborated by medical testimony. Accused is her cousin. He had brought her from U.P. for being educated. Why should she impute rape to him if he had to raped her ?
14. In our opinion, the learned Additional Sessions Judge justifiably found the charge proved against the accused and convicted him thereunder. Accused was sentenced to imprisonment for life and to pay fine of Rs. 500/-. Accused committed rape on a hapless girl aged 12-14 years. Heinous crime of committing rape on a hapless girl aged 13-14 years shakes our judicial conscience, offence was inhuman. We must respond to the society's claim for justice against such criminals while awarding appropriate punishment to them. There has been rise in crime against women in recent years. These crimes are a serious affront to human dignity. Imposition of inadequate sentence would not only be injustice to the victim of the crime in particular but also to the Society as a whole in general, as criminals would feel encouraged. Courts must not only keep in view the rights of the criminals but also the rights of the victims of crime and the society at large while considering imposition of the appropriate punishment. Rapist is a depraved human being. By committing act of rape, he has violated not only the body of the victim but her very soul. Keeping, however, in view that the accused was 19 years old, and thus in his extreme youth, at the time of commission of rape, we would like to slash sentence to some extent so that slashing of the sentence might pave the way towards his reclamation. Sentence of imprisonment is reduced to 10 years R.I. Sentence of fine shall remain intact together with the default clause. Subject to the reduction in sentence, the appeal fails and is dismissed.