Bodh Raj & Anr. vs State

Heard learned counsel for the parties and perused the record of the court below

On proof of charge framed against them the appellants were convicted under Sec. 376 R.P.C. and sentenced to undergo rigorous imprisonment

for 7 years each and to pay a fine of Rs. 500 each. In default of payment of fine (hey were further directed to undergo RI f; r five months each.

Aggrieved by the judgment if the trial court, the present appeal has been filed in this court with the submissions that the court below has not

properly appreciated the evidence led in the case and has arrived at wrong conclusions of fact and law. It is further contended that there were

major discrepancies in the depositions of the prosecution witnesses and that the charge was not proved beyond any reasonable doubt. It is

submitted that the uncorroborated testimony of the prosecutrix could not be made a basis for the conviction of the appellants. It is urged that the

prosecution had failed to prove that the prosecutrix was minor and the evidence revealed that even if the occurrence had taken place, she was a

consenting party to it. It is contended that as the prosecution has withheld material evidence, petitioners were entitled to get its benefit and be

acquitted.

The facts of the case resulting in the conviction and sentence of the appellants are that Lakhmi Chand PW who is the brother of prosecutrix filed

report EXPA in Police Station, Kishtwar, on 10th August, 1980, alleging therein that his sister Mst. Sita Devi aged 1314 years was forcibly raped

by the accused persons in the jungle where she had gone for grazing cattle on 9.8.1980. She was brought from the jungle in a semiconscience

condition at her place by the complainant and other villagers and examined by the doctor on the next day. It was alleged that the occurrence had

been witnessed by some children who were accompanying the prosecutrix.

In order to prove their case the prosecution examined Lakhmi Chand, Sita Devi, Som Nath, Raj Kumar, Dr. Abdul Rashid Zirgar, Dr, Moh'd

Iqbal, Ghulam Moh'd Gagru and Madho Lal, Head Constable, as witnesses.

Learned counsel for the appellants submitted that as the prosecution has failed to prove the age ""of the prosecutrix beyond any shadow of doubt it

may be presumed that she was major and a consenting parry if the occurrence is proved to have taken place. It is true that the prosecution failed to

get the ossification test conducted for determining the age of the prosecutrix. Dr. Abdul Rashid Zargar PW has stated in his examination that after

scrutinising the age of the prosecutrix she was directed to undergo radiogical examination for ossification The doctor is not aware as to whether the

prosecutrix was subjected to such a test or not. The doctor has not given any opinion about the age of the prosecutrix and the prosecution has

failed to get the radiogical examination Conducted for the purposes of ascertaining the age of prosecutrix. The lapse of the prosecution is writ large

in the instant case and is evident from the fact that despite commission of such a heinous crime, investigation was directed to be conducted by

Madho Lal, Head Constable, who perhaps was not conversant with the requirements of law. He has admitted in his crossexamination that he did

not get the Xray of the prosecutrix. The testimony of Lakhmi Chand PW, the brother of the prosecutrix is also not trustworthy so far as the age of

the prosecutrix is concerned. He expressed his ignorance of his own date of birth or that of the prosecutrix. I, therefore, agree with learned counsel

for the appellants that the prosecution did not prove beyond any reasonable doubt that the prosecutrix was under 16 years of age on the date of

occurrence for the purpose of attracting clause 5'h of Sec. 37.5 R.P.C. However, the mere fact that the prosecutrix was not proved to be of lesser

than 16 years of age does not entitle the appellants of any benefit in the instant case. The argument that the prosecutrix was a consenting party is fir

fetched, imaginary and afterthought not supported by the ocular testimony and trustworthy description detailed by the prosecutrix in her deposition

recorded by the trial court on 7.3.1981.

I also do not agree with the submission of learned counsel for the appellants that the sole testimony of the prosecutrix, even if inspiring confidence,

could not be made a basis for conviction as, according to him, it was not corroborated by any other evidence. It was held by the Supreme Court in

Rameshwar vs State Rajasthan AIR 1952 SC 54 that necessity of corroboration is a matter of prudence. The tender age of the child who is the

victim of sexual offence coupled with other circumstances such as demeanor unlike hood of tutoring and so forth does not require any

corroboration. A victim of an outrageous act, cannot be held to be an accomplice requiring corroboration in all cases. Even otherwise also I have

come to this conclusion that there is requisite corroboration in the case which proves the allegations made by the proseculrix in her deposition

recorded by the trial court. Slight exaggerations n her deposition which are attributed to the prosecutrix who is of a tender age, cannot be made a

basis for setting aside the judgment as, due allowance has to be given for her statement who is a common village girl of tender age. I am fortified in

my view by the judgments of the Supreme Court reported in AIR 1972 SC 2661 and AIR 1973 SC 469. The statement of the prosecutrix and the

manner in which she has described the awful occurrence is so natural which inspire all confidence and leaves no doubt to reject her testimony on

any ground. She tried her best to save herself from the clutches of the appellants who were admittedly superior in strength than this weak girl and

committed forcible intercourse with her against her consent. The fact that the prosecutrix was subjected to sexual intercourse, stands corroborated

from the testimony of Dr. Abdul Rashid Zargar who has opined that the prosecutrix might have been subjected to sexual intercourse within 24

hours from the time of her examination on 10.8.1^80. Even the hostile witness, namely, Raj Kumar, who has been proved to be the relation of the

appellants has admitted that the prosecutrix had gone in the forest and was brought back in semiconscience position, by the villagers. The accused

persons were also got medically examined and it was found that they had injuries on their private parts and had committed sexual intercourse within

510 days from the date of their examination on 1581980. Learned counsel for the appellant has tried to build a castle of sand on the strength of

some stray remarks of the doctor wherein he stated that his cannot find specific injuries on the private parts of the prosecutrix. The Supreme Court

in Gurcharan Singh v. State of HaryanaAIR 1972 SC 2661, held that the absence of injury or mark if violence on the private parts or elsewhere on

the person of the prosecutrix is of no consequence when the prosecutrix is of tender age and would merely suggest want of violent resist .nee on

her part. Faced with two strong muscleman the prosecutrix might have not been in a position to put such resistance as would have resulted in

violence and injuries to her person and private parts.

I further do not agree with the contention of the learned counsel for the appellants that the prosecution has with held the production of material

witnesses in the case. The plea is based on the testimony of the prosecutrix where the has stated that he had gone in the forest along with Pushpa

Devi and Kamlesh Devi, who were allegedly not examined by the prosecution. Nonexamination of these two young girls can be attributed to the

reluctance on the part of their parents to produce their female children in a case of rape with the object of avoiding then to be subjected to uncalled

for crossexamination. It is acknowledged that there is a persistence reluctance in the minds of the uneducated villagers to produce the women folk

in general and young girls in particular in the courts of law for the purposes of examination and crossexamination particularly in a case relating to

sexual offence. It is not the number of witnesses which is material but it is the quality of the evidence which is relevant for the purposes of deciding

a case.

After minutely going through the statements of the prosecutrix and other evidence produced in the case, supported by the medical evidence and

report from the forensic science laboratory it is proved beyond any doubt that the accused persons had forcibly committed sexual intercourse with

the prcsecutrix Mst Sita Devi against her will and by putting her to the that of life in a barbaric manner. The Court below has, therefore, rightly

convicted the appellants for the commission of offence under Sec. 37 R P.C.

So far as the awarding of sentence in the case is concerned, learned counsel for the appellants has submitted that as the appellants have been

subjected to the criminal prosecution for a period of about 12 years, ends of justice would be met if the sentence is reduced. It is further contended

that the trial court appears to have awarded the sentence to the appellants on the assumption that the prosecutrix was a minor in the case. There

appears to be some force in the arguments of learned counsel for the appellants. The facts and circumstances of the case and in the light of the

submission of learned counsel for the appellants, I am of the opinion that the sentence awarded by the learned Sessions Judge is excessive which

requires to be reduced.

Under the circumstances this appeal is disposed of by upholding the conviction of the appellants under Sec. 376 R P.C. but, reducing the sentence

from 7 years rigorous imprisonment to 4 years rigorous imprisonment for each of the appellants. They are further sentenced to pay a fine of Rs.

3,000 each. In default of payment of fine the appellants that further undergo RI for Six months each. Out of the amount of fine, when realised, a

sum of Rs. 5,000 shall be paid to the prosecutrix upon proper identification and verification.