Dinesh vs State of Uttarakhand

Servesh Kumar Gupta, J.—This criminal jail appeal has been preferred against the judgment and order dated 18.8.2008, rendered by 2nd Additional Sessions Judge, Haridwar, convicting the Appellant Dinesh u/s 376 Indian Penal Code, 1860. The said order of conviction was passed in Sessions Trial No. 206/2007 pertaining to Case Crime No. 27/2007, PS Kotwali Manglore, and the Appellant was ordered to undergo seven years? rigorous imprisonment in additional to fine of rupees five thousand. In default of payment of fine, he was further asked to undergo six months? imprisonment.

The factual background of the case is that an FIR was lodged by the father of the prosecutrix Jagvir Singh on 26.1.2007 at 7 pm alleging rape of her daughter by the accused Dinesh on that day at about 1 pm. On the day of the incident, prosecutrix Km. Rita @ Chhoti, resident of village Mandawali, went to collect animal fodder from the nearby agricultural field, which was situated at about 500 yards distance from her home. Km. Rita''s presence in solitude was noticed by the accused Dinesh. He was the servant of one Arvind, resident of the same village. The accused came close to Km. Rita and overpowered her. He dragged her in a sugarcane field and denude her by stripping her clothes and thereafter raped her. On hearing the screams of Km. Rita, lads of the village, who were returning after playing cricket, rushed to the spot. Seeing the boys coming to the spot, accused Dinesh took to his heels in order to hide himself in another sugarcane field and he could not be traced out at that time. The boys Parminder Kumar and Balister found Km. Rita denude and unconscious. This FIR is Ex. Ka-1. Chick FIR is Ex. Ka-7.

After investigation, the police submitted the chargesheet against the accused Dinesh for the offence of Section 376 Indian Penal Code, 1860, which is Ex. Ka-6. The court framed the charge of rape against the accused, who abjured his guilt and so the court put him to trial. After the trial, the learned Judge has convicted and sentenced the accused, as stated above. It is against this conviction, the Appellant has filed this appeal while under incarceration.

I have heard learned Amicus Curiae for the accused and learned Counsel for the State and perused the trial court record.

Having gone through the evidence on record, it appears that when Parminder Kumar, aged 18 years, and Balister, aged about 21 years, lads of the same village, rushed to the spot, they saw the accused Appellant just leaving the body of Km. Rita on the spot in order to save himself from being caught at the hands of these village boys. These boys found the trouser of Km. Rita lying nearby her body and she was unconscious and bare bodied at that time. These boys saw the accused while escaping from the spot with his pant in his hand i.e. the accused could not get even time to wear his pant, and fled from the spot in order to save himself from the coming boys. Anyhow, these boys saved the modesty of this adolescent girl by putting grass upon her body and brought her out of the sugarcane field. Soon after she regained her consciousness and explained the entire chain of incident that accused Dinesh, servant of Arvind, had done the wrong act with her. Hearing the noise raised by these boys, Smt. Premvati and Smt. Santari, ladies from the nearby vicinity came there. Asking these ladies to take care of Km. Rita, the boys chased the accused rapidly but he successfully concealed himself in the dense sugarcane field and could not be caught at that time.

The aforestated identical statement of Parminder Kumar (PW3) corroborated by Balister (PW4) is enough to support the entire statement of the victim herself. They are independent witnesses. However, it is settled position of law, reiterated time and again by the Hon''ble Apex Court, that in a rape case, conviction can be based solely on the testimony of the prosecutrix, if it is trustworthy. In this regard, the following precedents of the Hon''ble Apex Court can be taken note of:

(i) Shrawan v. State of Maharashtra 2006 (6) SCC 545

(ii) State of U.P Vs. Chhoteylal, .

The prosecutrix Km. Rita was produced by the police before the Magistrate on 31.1.2007 i.e. on the 6th day of the incident to record her statement u/s 164 Code of Criminal Procedure. She has narrated the incident before the Magistrate that when she went in the nearby jungle of her house for collection of animal fodder, the accused Dinesh, servant of Arvind, came there and asked sickle from her. She did not give him sickle and moved further ignoring his request. But the accused came from behind and shut her mouth. He pushed her and she fell down. He also pressed her throat by putting his feet upon her neck and thus she became unconscious. Thereafter the accused committed sexual intercourse with her. On regaining her consciousness, she found herself naked. This statement has been reiterated by the prosecutrix before the court when she was produced by the prosecution in evidence.

The prosecutrix has told her age as 15 years. The medical examination of the girl, conducted at 9.30 pm on the date of incident itself, duly proved by the doctor, reveals her age to be between 17 and half years to 18 years. On medical examination, it was proved that she was subjected to rape. Her hymen was found torn.

The contention of the learned Amicus Curiae that No. live or dead spermatozoa was found in the vaginal smear is also of No. avail because in the incidents of forcible sexual intercourse, it is not always necessary that ejaculation of semen shall take place inside the vagina. Fortiori, when the accused was indulged in the sexual intercourse, village boys Parminder Kumar and Balister, on hearing the screams of the victim, rushed towards the spot. Noticing these boys approaching towards the spot to apprehend him, the accused escaped from the spot in hurry leaving the victim as such. Obviously, the circumstances did not allow the accused to reach to the culmination of his abhorable act so as to make the ejaculation. Therefore, in the circumstances, if No. spermatozoa, either dead or alive, were found in the vagina or in its proximity, then it was not unnatural.

In an of late judgment delivered by the Hon''ble Apex Court in State of U.P Vs. Chhoteylal, , mentioned supra, the prosecutrix was 14 years of age, and the Apex Court has observed that India is a country which has imbibed the social values in traditions. No. parent would blame any innocent person for committing rape by him with their minor daughter because the entire social reputation of that girl and her family remains at stake, which even hampers the way of her sacred marriage with a suitable match.

The Hon''ble Apex Court, in another case State of Punjab v. Gurmit Singh 1996 SCC (Cri) 316, has opined that 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 amounts to adding insult to injury.

In the instant case, not only the testimony of the prosecutrix, which is trustworthy and inspires confidence, is enough to prove the commission of crime by the accused with her, but her statement is also supported by the testimony of the independent witnesses as stated above.

While referring to the statements of the witnesses, the learned Amicus Curiae pointed a few very very minor contradictions here and there, which are of No. help to the accused. It is a settled position of law that there is No. criminal case, which is free from even the minor discrepancies. These are bound to occur in a truthful case because the power of observation, perception and description of the sequence of the incident varies from witness to witness and depends upon innumerable factors. Word to word identical parrot like statements are only possible where the witnesses are tutored prior to their deposition in the Court.

Dr. Aruna Dabral (PW5), who has medically examined the prosecutrix on the date of incident itself, has very unequivocally proved that Km. Rita was subjected to rape. The absence of any injury on her body or on private parts is not unnatural because in every case it is not a sin qua non that the prosecutrix should suffer bodily injuries. Fortiori, when she was made unconscious by applying the pressure of feet on her throat by the accused, she was not left in a position to resist the sexual assault. The medical evidence totally corroborates the ocular version of the prosecution. It is a case of barbaric rape, much more than a simple rape and, therefore, the Appellant does not deserve any sympathy at the end of this Court.

For the reasons recorded above, the appeal is meritless and is liable to be dismissed. The same is hereby dismissed accordingly. The impugned judgment and order dated 18.8.2008, passed by 2nd Additional Sessions Judge, Haridwar in Sessions Trial No. 206/2007 is upheld. Conviction of the accused u/s 376 Indian Penal Code, 1860 and sentence awarded to him are hereby affirmed. The Appellant is already lodged in jail and serving the sentence. He shall serve out the remaining period of sentence.

Let a copy of this judgment and order be sent to the trial court for compliance. Lower court record be sent back.