Bhira @ Raghbir vs State of Haryana

R.L. Anand, J.

By this judgment I dispose of two criminal appeals No. 596SB (Bhira @ Raghbir v. State of Haryana) and 789SB (Parvara Ram v. State of Haryana), both of 1996, as both the appeals have been directed against the judgment and order dated 13.8.1996, passed by the court of Sessions Judge, Kurukshetra, who convicted the appellants under Sections 387(1)(g), IPC, and sentenced them to undergo R.I. for a period of 10 years. The appellants were further directed to pay a fine of Rs. 250/; in default in payment of fine, they were directed to undergo R.I. for 15 days.

The brief facts of the case are that the F.I.R., Ex. PF, was registered at the instance of Sunita Devi, PW3, at Police Station, Shahabad, on 2.1.1996 at 1.30 P.M. wherein she stated that she was a resident of village Machhroli, and that her father Jeet Ram expired about 10/12 years ago and that here mother Pano Devi, PW9, had brought her up. She had five brothers and sisters; two sisters and three brothers. He eldest sister is Salochana, followed by Santosh and she is the youngest. It has been further stated by the prosecutrix that her 3 brothers are younger to her and she and her sister Salochana were married together about 3 years ago as her mother was a poor lady and she could not spend on separate marriages. She further stated in the F.I.R., that after the marriage, she had not gone to the house of her inlaws and she was staying with her mother ever since then. She had been working with her mother as a labourer so as to earn livelihood. It is alleged by the prosecutrix that on the morning of 1.1.1996, she along with Shanti d/o Sardara Ram, caste Harijan, resident of Machhroli, went to the agricultural fields of Jodh Singh for cutting Toria crop. The said agricultural field adjoins the jungle. At about 4.30/5 P.M., after cutting the Toria crop, she had gone to the jungle to pick up woods and when she had covered a distance of 2/3 killas inside the jungle and was in the process of picking up woods, all of a sudden Parvara Ram so of Shankar Ram, resident of Machhroli and Bhira alias Raghbir son of Kashmira, caste Harijan, resident of Chanarthal, came there and forcibly secured her. Bhira caught hold of her and Parvara committed rape upon her and, thereafter, Parvara Ram gagged her mouth and caught hold of her and Bhira committed rape upon her. She further stated that she raised sufficient noise and after hearing her noise, Shanti and Harbhajan Singh, residents of Machhroli, who were working in the fields came there and rescued her. On seeing them, both the accused ran away from the place of occurrence and gave a threat that in case she told anybody about the incident, then she would be killed. After the incident, she narrated the entire story to her mother Pano Devi. Due to night and in the absence of conveyance, she could not report the matter to the police on that day. On then next day, she along with her mother and Sarpanch Gurmukh Singh went to the police station to lodge the report. The statement, Ex. PF, of the prosecutrix was recorded by PW10 SI Sawan Singh at about 1.30 P.M. on 2.1.1996. He read over the statement to the prosecutrix, who thumb marked the same in token of its correctness. The offence was registered under Section 376, IPC. The case was investigated and both the accused were taken into custody. The medical examination of the prosecutrix was also conducted and on the completion of the investigation of the case, the appellants were challaned in the Court of the Illaqa Magistrate, who supplied the copies of the documents to the accused and vide commitment order dated 15.3.1996, committed the accused to the court of sessions to face trial under Section 376/506, IPC.

Vide order dated 27.3.1996, the learned Sessions Judge, Kurukshetra, framed the charge under Section 376(1)(g), IPC, against the appellants. The charge was read over and explained to the accused, to which they pleaded not guilty and claimed trial.

In order to prove the charge, the prosecution examined PW1 Dr. Anupma Singh, who medically examined the prosecutrix on 2.1.1996 at 6 P.M. At the time of her medical examination, the prosecutrix gave her age as 16 years. She was conscious, cooperative and the vital signs were normal. The menstrual history of the patient was that Menarche was attained three years back. Last menstruation period was approximately 15 days back. Secondary sex characters were developed. Breasts were hemispherical and had no mark of injury. On local examination, pubic hair were present and were taken for chemical examination. Labia majora and labia minora were developed and healthy. There was whitish discharge present on it, which was taken for chemical examination. Hymen was torn at 5, 10 and 11 O''clock. The tear at 5 O''clock position was fresh and bled to touch. Margins were swollen and tender. The doctor submitted, Ex. PB, the carbon copy of the MLR. At the time of the examination salwar of the prosecutrix was taken into possession besides slides and swabs. In the crossexamination, it has been deposed by this doctor that the duration of the tear at 5 O''clock position was within 24 hours and the possibility that the prosecutrix might have had intercourse prior to the present incident, could not be ruled out.

PW2 is Dr. P.K. Gupta, who radiologically examined the prosecutrix on 12.3.1996 for determination of her age and in the opinion of the doctor, according to the ossification test, her age was between 15 to 16 years as per report, Ex. PE. Also, it has been stated by this doctor that opinion about the age, i.e. 15 to 16 years, is the outer limit. PW3 is the prosecutrix who implicated both the appellants by stating that she along with Shanti had gone to the jungle for picking up wood at about 5 P.M. on the date of the occurrence, after cutting the crop of Toria in the fields of Jodh Singh, and when she had covered a distance of 3 killas, both the appellants were present in the jungle and close to the nearby fields of Jodh Singh at a distance of about 2 killas, Bhira accused caught hold of her and Parvara committed rape at the first instance and, thereafter, Parvara caught hold of her and Bhira committed rape upon her. She raised hue and cry upon which Shanti d/o Sardar Ram, Harbhajan and Baboo were attracted to the place of occurrence and they rescued her from the clutches of the accused. Also, it has been stated by the prosecutrix that the accused gave her the threat that in case she narrated this incident to her parents at home, they would cut her into pieces and bury in the ground. Also, it has been stated by her that Shanti and Harbhajan took her to her house and she narrated the whole incident to her mother Pano Devi and in the presence of her month, Shanti and Harbhajan also corroborated her version. PW4 HC Jai Parkash tendered his statement by way of affidavit, Ex. PG. Similarly, Constable Ram Pal, PW5, gave his statement by way of affidavit, Ex. PH. Mai Chand, Head Master, Government High School Machhrauli, appeared as PW6 and stated before the trial Court with the help of the school record that the prosecutrix was admitted in the school on 13.7.1985 and her Date of Birth as per the school record was 12.7.1980. This witness proved the school leaving certificate, Ex. PJ. PW7 Parveen Kumar, Revenue Patwari, prepared the scaled site plan. PW8 Dr. A.K. Garg, on police request, medically examined both the appellants Bhira and Parvara, and declared them fit to perform sexual intercourse vide opinions Ex. PL/1 and PL/2, respectively. Pano Devi, mother of the prosecutrix appeared as PW9 and she gave the age of her daughter as 15/16 years and further stated that on the date of the occurrence, her daughter was subjected to rape by Parvara and Bhira and on that very day, her daughter told her about the rape. She has further deposed about the death of her husband by further stating that she brought the offence of rape to the notice of Sarpanch Gurmukh Singh but he did not take any action on that day and told her that he would accompany her to the police station on the next day in order to lodge the report. SI Sawan Singh, I.O., appeared as PW10 and he deposed about the investigation which he conducted. Gurmukh Singh, Sarpanch, and the witnesses of the occurrence were given up the prosecution as having been won over by the accused. Vide report, Ex. PC, Director, Forensic Science Laboratory, found human semen on the slides and swabs, salwar and pubic hair. However, semen could not be detected on the kachha of the prosecutrix.

On the closure of the prosecution evidence, the statements of the accused were recorded under Section 313, Cr.P.C., and all the incriminating circumstances appearing in the prosecution evidence were put to them. Accused denied those circumstances and the plea of Parvara Ram was as under :

"I am innocent. Gurmukh Singh Sarpanch and myself hail from the same village. I am of a poor fellow, whereas Gurmukh Singh is a strong and influential person of the village. My wife fought election against the wife of Gurmukh Singh, for the post of Sarpanch. Gurmukh singh approached me and threatened me at the pain of dire consequences in case my wife fought against his wife in the said election and did not withdraw herself from the contest, he will involve me in some false case. This false case is the result of enmity of Gurmukh Singh which he bore against me. Gurmukh Singh also tried to assault me on some other occasion and I had reported the matter to the higher authorities in that connection."

Bhira, accused, took the following plea :

"I am innocent. I was falsely involved in this case because I was on visiting terms to Parvara Ram, who has inimical relations with the Sarpanch Gurmukh Singh and at the instance of Gurmukh Singh, I have been falsely implicated being a friend of Parvara Ram."

When called upon to enter in defence, the accused examined Gurmukh Singh as DW1 who stated in his examinationinchief that on 1.1.1996, Pano Devi mother of Sunita Rani prosecutrix came to him at his residence at about 5.00/6.00 P.M. and told him that Parvara Ram had committed rape upon her daughter Sunita Rani and he told him that this aspect will be enquired into on the next morning in the presence of the villagers. In the morning at about 8/9 A.M., the residents of village Machhrauli met and in that meeting he was satisfied that Parvara Ram had committed rape upon Sunita d/o Pano Devi. Then, he accompanied Pano Devi to the Police Station and get the case registered. So, this witness wants to exonerate Bhira. Harbhajan Singh, appeared as DW2 and stated that in his presence no offence took place on 1.1.1996 in the area of village Machharauli with respect to the rape of Sunita Rani.

The learned trial Court believed the story of the prosecution and gave a finding that the prosecutrix was aged about 15 years 5 months and 20 days at the time of the occurrence and that both the appellants committed rape upon her and that the delay is immaterial. The learned trial Court relied upon the judgment in State of Punjab v. Gurmit Singh and others, AIR 1996 SC 1393, and convicted and sentenced the appellants in the manner as stated above and aggrieved by their conviction and sentence, the present appeal, which I am disposing of with the assistance rendered by Sarvshri S.S. Virk and P.C. Chaudhary, counsel for the appellants and Mr. J.S. Ahlawat, Advocate, for Haryana State and with their assistance have gone through the record of this case.

The first material point for determination in this case would be the age of the prosecution (prosecutrix ?). The circumstances which have been brought on record by the prosecution are that when the prosecutrix was medically examined for the first time by the doctor, she gave her age as 16 years. Secondly, as per the statement of Dr. P.K. Gupta, who conducted the ossification test of the prosecutrix, her age was between 15 to 16 years. The third is the school record brought by PW6 Mai Chand and he stated that as per the school record, the Date of Birth of the prosecutrix has been recorded as 12.7.1980. Sunita Devi when appeared before the trial Court as PW3 on 6.5.1986, she gave her age as 16 years. Her mother Pano Devi also described the age of her daughter as 16 years.

The learned counsel for the appellants submitted that in this case, the birth entry of the prosecutrix has not been produced or collected by the Investigating Agency and that the medical evidence is not sure one. There can be variation of one/two years on either side and, therefore, the age of the prosecutrix may be taken as 18 years. Since, she was more than 16 years of age, she might be a consenting party to the sexual intercourse with the appellants and, therefore, the appellants are entitled to acquittal.

I am in agreement with the learned counsel for the appellants to a limited extent and hold that in this case the prosecution has not been able to prove the age of the prosecutrix as less than 16 years. There is no birth entry of the prosecutrix. The prosecutrix gave her age as 16 years. According to the history, the prosecutrix started menstruating about 3 years back prior to the date of her examination. The school record is not a clinching factor in favour of the prosecution. The date of admission of the prosecutrix is 13.7.1985. It appears that the Date of Birth has been mentioned in the school record just by approximation as 12.7.1980. The mother of the prosecutrix is an illiterate lady and no basis have been brought on the record as to how the age of the prosecutrix has been recorded as 12.7.1980. After 5 months, Sunita Devi has given her age as 16 years. I cannot lose sight of the fact that she is a married girl. In her examination in chief, she had stated that she had not cohabitated with her husband so far after the marriage because her Muklava ceremony had not taken place. The doctor who conducted the ossification test also deposed that there can be a margin of one year on either side and that the radiological test is not a conclusive proof of age. In view of the unsatisfactory evidence led by the prosecution, I differ with the reasons given by the learned trial Court and hold that the prosecutrix was more than 16 years of age at the time of commission of the crime.

However, I do not agree with the submission of the learned counsel for the appellants that the prosecutrix was a consenting party qua the appellants. Firstly, there is a direct evidence of the prosecutrix who deposed that she resisted the act of the appellants, and, secondly, the local examination by the doctor of the private parts of the prosecutrix indicates that there was a tear inside her vagina and at 5 O''clock position, there was an injury which was bleeding on touch and the margins of the hymen were swollen and tender. In this regard, we have to see the statement of the prosecutrix, who categorically deposed on oath that she was caught hold of firstly by Bhira and, then, Parvara committed rape upon her. When she tried to raise an alarm, she was threatened.

The learned Counsel for the appellants submitted that it was a case of consent. In support of their contention, the counsel submitted that the prosecutrix was wearing glass bangles and according to her statement, 4/5 glass bangles might have broken at that time and so much so, she received minor scratches on her person and she showed those scratches to the doctor.

This part of the statement of the prosecutrix is of no help to the accused. The scratches suffered by the prosecutrix were so minor in nature that the prosecutrix might have thought those scratches to be of no consequence and for that reason, those scratches might have not have been pointed out to the doctor. It has been categorically stated on oath by the prosecutrix that she could not resist much because of the physical strength of the accused. I cannot lose sight of the fact that there are two accused. From the medical history of the prosecutrix, it is evident that she was not used to sexual intercourse though her vagina admitted two fingers. The probability goes against the accused. The prosecutrix could not be a consenting party qua both the appellants. If she was having a soft corner, it could be for one of them and not for both of them and she would not go to the jungle at 4/5 P.M. and would invite two persons to have sexual intercourse. The statement of the prosecutrix stands corroborated. She narrated the occurrence to her mother, this itself is a corroboration. It is unfortunate that two witnesses, who were attracted to the place of occurrence, were not inclined to support the allegations of the prosecution. They were won over by the accused. The reasons are very obvious. Pano Devi is a poor lady. She belongs to Harijan community. She was so poor that she could not afford even the marriages of her daughters on two different occasions. She is a widow. In these circumstances, we can well imagine that nobody in the village was likely to support her. One facet is very clear that Pano Devi approached the Sarpanch Gurmukh Singh, who appeared in the witness box as DW1 and even this witness admitted that Pano Devi came to him on 1.1.1996 and complained at his residence at about 5/6 P.M. that her daughter has been ravished. Though, Gurmukh Singh states that as per the version of Pano Devi, Parvara Ram had committed rape upon her daughter but this part of the statement of Gurmukh Singh cannot be given much reliance in view of the statement of Pano Devi whose presence has been admitted by Gurmukh Singh in his house. There is no reason for Pano Devi and her daughter Sunita to try to implicate Bhira. The conduct of Pano Devi is also indicative of the fact that wrong must have been committed with her daughter.

It has been repeatedly held by the Hon''ble Supreme Court that the statement of the victim of rape has to be read like that of an injured witness. It will be a faulty approach on the part of the law courts to always seek corroboration to the statement of the prosecutrix. To always insist for corroboration to the statement of the prosecutrix would amount to her insult and would be adding to her injury. In Krishan Lal v. State of Haryana, AIR 1980 SC 1252, the Hon''ble Supreme Court held as follows :

"In rape cases, Courts must bear in mind human psychology and behaviorual probability when assessing the testimonial potency of the victim''s (prosecutrix) version. The inherent bashfulness, the innocent naivete and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication. The injury on the person of the victim, especially her private parts, has corroborative value. Her complaint to her parents and the presence of blood on her clothes are also testimony which warrants credence. To forsake these vital considerations and go by obsolescent demands for substantial corroboration is to sacrifice commonsence in favour of an artificial concoction called `Judicial'' probability."

Again, the Hon''ble Supreme Court has held in the case of State of Punjab v. Gurmit Singh and others, 1996(1) RCR (Crl.) 533 : AIR 1996 SC 1393 , 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 an 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. Corroboration 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 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".

The Hon''ble Supreme Court has also laid down the guidelines for the subordinate courts how to appreciate the evidence of a rape victim and the relevant observations are contained in para20 of the said judgment, which reads as under :

"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".

The learned Counsel for the appellants have not been able to show why the prosecutrix and her mother are implicating them. The learned Counsel for the appellants cited Suresh Kumar v. State of Haryana, 1999(1) Judicial Reports (Criminal) 479 and submitted that when the prosecutrix is held to be more than 16 years of age, no conviction can be based because in that eventuality, she in all probability would be a consenting party.

The judgment in Suresh Kumar''s case (supra) is not applicable to the facts in hand. Every case has to be considered on broad human probabilities. I have already stated above by holding that the prosecutrix was a girl of more than 16 years but she would be the last person to submit herself before two persons, who have inter se a disparity of age. Bhira was a young man of 22 years at the time of the charge while Parvara Ram was aged about 45 years. The probability was more that these two persons took the advantage of the situation when they saw Sunita inside the jungle and taking advantage of her youth, committed rape upon her.

It was, then, submitted by the learned Counsel for the appellants that if none of their contentions prevail upon the mind of the court, then, the sentence which has been awarded to the appellants may be reduced.

On the contrary, the case of the prosecution is that both the appellants had committed gang rape and, therefore, the minimum sentence of 10 years has to be awarded.

Section 376(2)(g), IPC, lays down that 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 basic provision which lays down that the law courts 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 learned Counsel for the appellants rely upon a judgment of the Hon''ble Supreme Court reported as Prem Chand and another v. State of Haryana, AIR 1989 SC 937, and submitted that in this case, the Hon''ble Supreme Court reduced the sentence of the appellants from 10 years to 5 years.

I have considered the submission of the counsel for the appellants and am of the opinion that the ends of justice will suffice if the substantive sentence of the appellants is reduced to 7 years because Bhira was a young boy of 20 years and he might have pounced upon the girl in order to satisfy his lust by seeing the girl alone in the jungle. Similar can be said about Parvara Ram. The imposition of fine remains intact and in default of payment of fine, each of the appellant shall undergo the same sentence which has been awarded by the trial Court.

With the above modification in the matter of sentence, the appeal is hereby dismissed.