Brij Mohan vs State of U.P.

Mukteshwar Prasad, J.—Accused Brij Mohan, son of Shaktey, a resident of village Badrepur, Mazra-Bahorikpur, P.S. Jahanganj, Farrukhabad has challenged the judgment and order dated 25.4.2000 in this appeal u/s 374 Cr.P.C. whereby he was found guilty u/s 376 I.P.C. and was sentenced to suffer imprisonment for life. He was sentenced to pay a fine of Rs. 50,000/- also.

Briefly stated, the facts of the prosecution case as unfolded during the trial are as under:

P.W. 1 Mohd. Rafique, son of Abdul Razzaq, a resident of village Bhadosa, P.S. Jahanganj, Farrukhabad, is father of the victim and informant also. Both the informant and the accused had their plots quite adjacent to each other. The informant had sown the crops in the plot owned by Kanhaiya Singh. On 27.2.99, the informant was cutting mustard (Laha) in his plot and his daughter Km X (name withheld by us) aged about eight years was collecting stem of mustard in adjoining fields. Accused Brij Mohan was collecting Hariyali in his plot in which wheat had been sown. At about 12 O''clock, Brij Mohan finding Km. X alone caught and dragged her to adjoining wheat field and committed rape on her forcibly after pressing her mouth. She, however, cried out. After hearing the shriek, Mohd. Rafique, his brother Safiq and co-villager Baharuddin rushed there. Accused left the girl and ran away towards jungle. He was chased by the witnesses. Accused was well known to the informant since long.

After the incident, Km. X was taken home and from there, the father and daughter reached P.S. Jahanganj. Mohd. Rafique got a report of the incident prepared by someone outside he Police station and affixed his thumb impression.

Head Moharrir, Nawab Sher Khan, prepared chick report and registered a case against the accused u/s 376 I.P.C. at crime No. 34 on the same day at 4-30 p.m. and made entry in the G.D. at serial No. 27.

A case was registered at the Police station in the presence of S.I. Son Pal Singh. Investigation was entrusted to him. He interrogated the victim of rape on the same day at the Polic station and sent her to Dr. Ram Manohar Lohiya Hospital, Farrukhabad for medical examination along with Chitthi Majroobi. The I.O. left the Police station along with necessary Police force and reached the village in question. Accused was arrested on the same day and was brought to the Police station and detained in the lock up vide entry in the G.D. at serial No. 43. Accused was interrogated.

P.W. 4 Dr. Sudha Singh, lady doctor, posted at Dr. Ram Manohar Lohiya Hospital, Farrukhabad examined Km. X of 27.2.99 at 8-00 p.m. She was identified by Constable Raj Bahadur Singh.

The lady doctor found mark of injury on her private parts. Hymen was absent and vagina admitted one finger with difficulty. A tear was found in the vagina towards vaginal wall at 6 O''clock position. Clotting was also found.

Dr. Sudha Singh admitted the girl in the hospital, who was taken to operation theatre for repairs. In operation theatre, she was given general anesthesia and wound was stitched. The clothes of the girl were taken out, sealed and handed over to the constable. She advised X-ray of wrist and elbow joints for determining the age.

P.W. 3 Dr. Satendra Kumar, Senior Radiologist got the X-ray done of the right wrist and right elbow.

After having an X-ray report from the Radiologist as well as Pathologist, Dr. Sudha Singh opined that no definite opinion of rape could be given and the aforesaid injury might have been caused by any hard and blunt object. According to her, the girl was about eight years old.

On 2.3.99, the I.O. recorded the statements of Mohd. Rafique, his brother Safiq Husain and Baharuddin. He inspected the scene of incident and prepared a site-plan also. On 12.3.99, me I.O. interrogated Jahruddin, Atiq, Sagir and others who supported the incident. After completing investigation, the I.O. submitted'' charge sheet against the accused on 17.3.99.

After committal of the case to the court of session, learned Additional Sessions Judge framed charge against the appellant u/s 376 of the Penal Code to which he pleaded not guilty and claimed to be tried.

In order to bring home the charge against the accused, the prosecution examined P.W. 1 Mohd. Rafique, father of the girl, informant and who is an eyewitness also, P.W. 2 Km. X is the victim of alleged rape, P.W. 3 Dr. Satendra Kumar, Senior Radiologist, proved X-ray report, P.W. 4 Dr. Sudha Singh, lady doctor, proved her medical examination report as well as supplementary report (Exhibits Ka-3 and Ka-4) respectively and P.W. 5 S.I. Son Pal Singh is the I.O. of the case and proved chick report, entries in the G.D., site-plan and charge sheet.

Accused Brij Mohan in his statement given u/s 313 Cr.P.C. totally denied his complicity in the crime and attributed his false implication in the case on account of enmity. According to him, the informant wanted to grab the land owned by him and was interested in taking his plot on Batai. Accused led no oral evidence. He, however, filed some documents which were not proved.

After close scrutiny of the entire record and considering the arguments advanced on behalf of the parties, learned trial Judge concluded that it was the appellant and none else who committed rape on a minor girl aged about eight years. He, therefore, found him guilty and convicted and sentenced as mentioned above.

We have heard Sri Vinod Kumar Jaiswal, learned Amicus Curiae for the appellant and learned Additional Government Advocate for the State of U.P. at length and have perused the entire record carefully.

Learned Amicus Curiae has assailed the impugned judgment mainly on the grounds that accused was not arrested on the spot and was falsely implicated. He was arrested by the Police on the same day and was brought to Police station in the night, However, the I.O. did not get him medically examined. No independent witness was examined by the prosecution to prove the involvement of the appellant in the crime. It was further submitted that there are contradictions in the testimony of the father and girl about the clothes which were there on the body of the appellant at the time of committing the offence.

On the other hand, learned A.G.A. has supported the judgment and contended that after close scrutiny of the testimony of the informant and his daughter, the trial Judge arrived a correct conclusion that it was the appellant and none else who was responsible for committing rape. He drew our attention towards cross-examination of the informant in which the accused pleaded for clemency with folded hands in the court and the informant fused to oblige and grant pardon. It was further urged on behalf of he State that the medical evidence fully supported the prosecution version and it was established by medical evidence that the informant''s daughter became victim of rape at the hands of the appellant.

We have given our anxious consideration to the entire submissions made on behalf of the parties. We have thoroughly scrutinized and scanned the oral evidence on record led by the parties and have arrived at the irresistible conclusion that the finding of guilt recorded by the trial Judge is based on reliable and convincing evidence and does not call for interference by his Court. As noted above, the prosecution examined five witnesses in all, including victim and her father who are witnesses of fact. The remaining three witnesses are formal.

We shall first of all take up the medical evidence on record led by the prosecution. As mentioned above, the girl was tent to Dr. Ram Manohar Lohia Hospital, Farrukhabad for medical examination through constable Raj Bahadur Singh. P.W.4 Dr. Sudha Singh, lady doctor, examined her and found mark of injury on her private parts and hymen was torn. There was clear tear on the right vaginal wall at 6 0'' clock position and blood clotting was there. The girl was admitted in the hospital and was taken to operation theatre for repairs of the wound. The wound was stitched after administering general anesthesia. In her cross-examination, Dr. Singh disclosed in clear words that the hymen was found torn and there were injuries in the vagina which could not be caused as a result of fall on a wood. She gave out reasons in her opinion. She testified in unequivocal words that injury in the vagina could be caused on 27.2.99 at about 12 O'' clock and the hymen could be torn as a result of penetration of male organ. There was bleeding in the vagina. In view of the clear and clinching medical evidence on record, it could be safely concluded that the minor girl aged about eight years was lavished and raped forcibly. In this view of the matter, we find that the prosecution succeeded in establishing that on the impugned day and at the time, as alleged by the prosecution, Km. X was taped by someone.

In order to establish the complicity of the appellant in the crime, the prosecution relied upon the testimony of P.W.I Mohd. Rafique and her daughter. P.W.1 Mohd. Rafique fully supported the prosecution version as contained in the report (Exhibit Ka-1) and gave out that on the fateful day at about 12 0'' clock, he was harvesting mustard in his field and his daughter was collecting stems of mustard in the adjoining plot. The appellant was also there and collecting Hariyali. After having heard the cry raised by his daughter, the informant, his brother and others rushed there and saw the appellant running away and they had chased him up to a short distance. It is noteworthy that the appellant was well known to the witnesses and the victim also since long. This incident of rape took place on 27.2.99 in the noon and as such, witnesses had no difficulty at all in recognizing the culprit.

It appears that initially the appellant himself cross-examined the informant who disclosed that the appellant spoiled the life of his daughter. Thereafter, the appellant pleaded for clemency with folded hands which was declined, as in the opinion of the informant, the appellant had committed an act which could not be excused. The informant seems to us a wholly reliable and truthful witness. He admitted in the cross-examination that he did not see the appellant actually haying sexual intercourse and this fact was disclosed to him by the victim He heard the cry raised by his daughter from a distance of about fifty steps. The witness saw his daughter in naked condition and Salwar had been lowered down. Moreover, he saw blood marks in Salwar. The informant did not consult any body before lodging the FIR. He totally denied that he wanted the plot owned by the appellant on Batai and on his denial lodged a false FIR against him. He further denied the suggestion that injury in question was caused as a result of fall in the field.

The court below made a preliminary examination of Km. X and thereafter she was administered oath and was examined. Sue too fully supported her case and corroborated the testimony, of her father. According to her, she was taken to wheat field by the appellant who committed rape on her by penetrating his male organ in her vagina. She was bleeding from her private parts and on her cry, her father, Tau and Others reached there. In cross-examination, the girl disclosed that she was dragged to wheat field by the appellant. She totally denied that she was tutored by the father.

It is correct that there are a few minor contradictions in the testimony of father and girl regarding clothes which were on the body of the appellant at the time of commission of the offence. We further find that the incident was reported to the Police in writing on the same day at 4-30 p.m. i.e. within five hours of the incident at the Police station situate at a distance of five kilometers. It means, there was no delay at all in lodging the FIR.

In State of Punjab v. Gurmit Singh and Ors. 1996 SCC 316, the Apex Court was hearing in an appeal by me State against acquittal of the rapist and ultimately allowed the appeal. In Ranjit Hazarika v. State of Assam 1998 SCC 1725, the following observations made by the Apex Court in State of Punjab v. Gurmit Singh and Ors. (Supra) were followed and tro appeal was dismissed.

The courts must, while evaluating evidence remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases 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 mounts 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 leveled 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 on a 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 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 ins, at upon corroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable.

Now it is well settled that victim of sexual assault is just like an injured after a physical violence and the testimony of such victims of sexual offences should be accepted without difficulty and courts should not hesitate in acting on the sole testimony of the victim unless there are compelling reasons which necessitate looking for corroboration or her statement. Why should the evidence a girl or a woman who complains of rape or sexual molestation be viewed with doubt, disbelief or suspicion.

In view of the law laid down by the Supreme Court of India, the courts are under no obligation to seek corroboration from any independent source of testimony of a victim of sexual assault and the courts must act on solitary testimony of a prosecutrix unless there are compelling reasons looking for corroboration. In the instant case, we find that the victim fully supported the prosecution story and did not budge an inch in her cross-examination. The totally denied the suggestion put to her by learned Amicus Curiae. Her testimony found full corroboration from the testimony of the informant who is father and whose presence near the scene of incident could not be challenged seriously. We, therefore, see no reason at all to disbelieve the testimony of the victim as well as her father, which finds full corroboration from the medical evidence on record, as discussed above.

For the reasons stated above, we find that the trial Judge has committed no error in appraisal/scrutiny of the evidence led by the parties and was wholly justified in holding the appellant guilty for committing an offence punishable u/s 376(2)(f) of the Indian Penal Code. So far sentence is concerned, the victim was a minor girl of very tender age and she was hardly eight years old when she became victim of sexual assault. Therefore, looking to her age and the act of the appellant, we have no sympathy with the appellant and hold that imprisonment for life as awarded by the trial court is proper and adequate sentence. However in view of the sentence imposed by the trial Judge and in our opinion also, we intend to modify the sentence and we are of the opinion that sentence has to be modified.

The conviction of the appellant (Brij Mohan) u/s 376(2)(f) of the Penal Code is upheld. He is sentenced to suffer imprisonment for life and the order imposing fine to the tune of Rs. 50,000/- is set aside.

The appellant is in Jail. He is directed to serve out the sentence imposed on him. The appeal stands disposed of accordingly.

A copy of this judgment along with lower court record shall be sent to court below and C.J.M., Farrukhabad for information and necessary compliance within ten days from today. Compliance report shall be submitted to this Court within six weeks from the date of receipt of a copy of this judgment.