Gajendra Kumar vs State of C.G.

T.P. Sharma, J.—This criminal appeal is directed against the judgment of conviction and order of sentence dated 28-10-2006 passed by the 1st Additional Sessions Judge, Durg in Sessions Trial No. 198/2005 whereby and whereunder learned Additional Sessions Judge after holding the Appellant guilty for commission of offence under Sections 450 and 376(1) of the I.P.C., sentenced him to undergo R.I. for five years and pay fine of Rs. 1,000/-, in default of payment of fine to further undergo S.I. for three months and to undergo R.I. for ten years and pay fine of Rs. 1,000/-, in default of payment of fine to further undergo S.I. for three months, respectively. Learned Additional Sessions Judge also directed that the sentences shall run concurrently.

Judgment is challenged on the ground that without any iota of evidence, especially the age of the prosecutrix below 16 years and in absence of corroboration of the statement of prosecutrix, the Court below has convicted and sentenced the Appellant and thereby committed illegality.

Case of the prosecution, in brief, is that the prosecutrix (PW-8), who is aged about 13 years on the date of incident i.e. 19-6-2005, at about 10 p.m. was sitting out of her house along with her mother, her mother directed her to alight lamp in the room, when she went inside the room and alight the lamp (Diya) she saw that the Appellant was sitting inside the room and was smoking Bidi, the Appellant demanded water from the prosecutrix and while she was providing water to the Appellant, he threw her down and after pressing her mouth and removing her clothes, he inserted his male organ in the private part of the prosecutrix, and at that time, her mother called her on which the accused left her. The prosecutrix narrated the incident to her mother. The prosecutrix was weeping. Thereafter, she along with her mother went to the Police Station and lodged the report on 20-6-2005 at about 00.30 mid night within 2/4 hours of the incident vide Ex.P-9. After taking consent, the prosecutrix was sent for medical examination vide Ex.P-16. The prosecutrix was examined by Dr. Renuka Prashanto (PW-6) vide Ex.P-7 and her age was assessed as 12 years. Two abrasions were found on her knee, she was not in a position to walk properly, her menstrual cycle has not started, pubic hair was not developed, secondary sexual characters were not developed, hymen was ruptured in form of 8 O''clock position and there was pain on touch, cervix was congested, sperm like discharge was present inside the vagina, rupture of hymen was within 24 hours of the examination. Two slides of vaginal smear were taken and sealed and handed over to the Constable. She was subject to intercourse within 24 hours of her examination. The doctor also examined Salwar, Kurta and underwear of the prosecutrix having spermatic and bloodstains vide Ex.P-8. Spot map was prepared vide Ex.P-3. Clothes of the prosecutrix were seized vide Ex.P-4. Patwari prepared spot map vide Ex.P-5. Underwear of the accused was seized vide Ex.P-5. The accused was also sent for examination and he was found capable of committing sexual intercourse. Sperm of the accused was taken and sealed and seized vide Ex.P-6. Document relating to age of the prosecutrix i.e. Kotwari register (birth register) was seized vide Ex.P-12. Copy of the said entry is Ex.P-11. Register was given in Supurdnama vide Ex.P-13. Her school admission register was also seized and copy of the register is Ex.P-14 and copy of transfer certificate is Ex.P-15. Vaginal slides of the prosecutrix were seized vide Ex.P-17. Seized articles were sent for chemical analysis vide Ex.P-21 and presence of sperm over underwear, Salwar, Kurta and vaginal slides of the prosecutrix and underwear of the accused was confirmed vide Ex.P-22 by the State F.S.L Raipur. Statements of the witnesses were recorded u/s 161 of the Code of Criminal Procedure and after completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Durg who in turn committed the case to the Court of Sessions, Durg from where learned 1st Additional Sessions Judge, Durg, received the case on transfer for trial.

In order to prove the guilt of the Appellant, the prosecution has examined as many as fourteen witnesses and statement of the Appellant was recorded u/s 313 of the Code of Criminal Procedure in which he denied the circumstances appearing against him, pleaded innocence and false implication.

After affording opportunity of hearing to the parties, the Court below has convicted and sentenced the Appellant in the aforesaid manner.

I have heard learned Counsel for the parties and perused the impugned judgment as also the record of the trial Court.

Learned Counsel for the Appellant vehemently argued that according to the statements of the prosecutrix and witnesses, the present Appellant was already present in the house of the prosecutrix and he used to visit the house of the prosecutrix frequently, therefore, conviction and sentence imposed upon Appellant u/s 450 of the I.P.C. are not sustainable. Learned Counsel further argued that the prosecution has not proved the age of the prosecutrix below 16 years. There is discrepancy in the date of birth of the prosecutrix written in school register i.e. 10-7-91 and birth register i.e. 22-10-91 and in absence of conclusive proof of age, age of the prosecutrix was not proved by the prosecution below 16 years. Evidence of the prosecutrix is full of contradictions, omissions and discrepancies not safe to rely without any corroboration from independent sources. Therefore, conviction of the Appellant for commission of offence of rape is also not sustainable under the law.

On the other hand, learned Counsel appearing on behalf of the State/Respondent supported the judgment and argued that age of the prosecutrix has been proved by the prosecution by adducing birth entry register and school admission register, although there is discrepancy of date, there is no discrepancy of year, and her age has also been ascertained by the doctor on the basis of her physical appearance. Therefore, the prosecutrix is aged about 12 years on the date of commission of offence. Her evidence has been corroborated by her mother and independent sources, and fully corroborated by medical evidence which is sufficient for drawing inference that the Appellant is the person who committed sexual intercourse with the minor prosecutrix insider her house and thereby committed the offence punishable under Sections 450 and 376 of the I.P.C. Sentences imposed upon the Appellant are also proper.

In order to appreciate the contentions of the parties, I have examined the evidence adduced on behalf of the prosecution. The prosecution has adduced evidence to prove age of the prosecutrix below 16 years. Smt. Jamna Bai (PW-2), mother of the prosecutrix, has deposed that the age of the prosecutrix is 12 years. Doman Singh (PW-3) has deposed that the age of the prosecutrix is 14 years. At the time of examination of the prosecutrix, the Court has assessed her age as 13 years. The prosecution has examined Kotwar Amar Das (PW-9), who has deposed that date of birth of the prosecutrix is 22-10-91 on the basis of entry in Ex.P-11, the book has been seized vide Ex.P-12 and the same has been given in Supurdnama vide Ex.P-13. Incharge Headmaster Smt. Saroj Soni (PW-10) has deposed that date of birth of the prosecutrix is 10-7-91 and her date of birth has been recorded in school admission register Ex.P-14 and copy of the transfer certificate Ex.P-15. The prosecutrix was examined by Dr. Renuka Prashanto (PW-6) who assessed her age as 12 years. On her examination, her physical appearance was noticed by this witness and she has deposed that menstrual cycle of the prosecutrix has not begun, pubic hair was not developed and secondary sexual characters were not well developed. Defence has not been able to elicit anything in the cross-examination of Smt. Saroj Soni (PW-10), Incharge Headmaster, who has deposed the date of birth of the prosecutrix as 10-7-91. Amar Das (PW-9), Kotwar, has deposed her date of birth as 22-10-91, but has admitted in his cross-examination that he himself has recorded the date of birth of the child and also admitted that in Ex.P-11 name of the child was recorded as Kuleshwari not Duleshwari.

On the basis of date of birth recorded in birth register, age of the prosecutrix on the date of offence could be below 14 years and even on the basis of entry in the school her age would be below 14 years. Smt. Jamna Bai (PW-2) has deposed the age of the prosecutrix as 12 years. Doman Singh (PW-3) has deposed her age as 14 years. The Court has assessed her age as 13 years.

In the present case, there is discrepancy in date and month of birth of the prosecutrix but there is no discrepancy in year. Birth register is conclusive proof of age, if same is not found satisfactory, age may be ascertained on the basis of other relevant factors like her physical appearance, age ascertained by mother, father and other persons, age ascertained by the doctor and date of birth recorded in the school register.

In the matter of Sidheswar Ganguly Vs. The State of West Bengal, , the Apex Court has held that in absence of conclusive proof of age recorded in the birth register, age can be ascertained on the basis of other relevant facts. While dealing with the question of determination of age, in the matter of State of Himachal Pradesh Vs. Mango Ram, the Apex Court has held that age of the prosecutrix shall be determined on the basis of all relevant factors, including physical features. Paras 11 and 12 of the said judgment read as under:

We carefully considered the rival contentions and also perused the records and the impugned judgments. The verdict of not guilty has been entered by the learned Sessions Judge mainly based on two grounds that the prosecutrix was aged above sixteen years and if at all there was any sexual act, it must have been with her consent. Both these findings are erroneous and incorrect.

As regards the age of the prosecutrix, there is evidence of PW 2 Dr. Veena Sehgal who examined the prosecutrix and after taking note of the physical features stated that the prosecutrix must be of the age between 13 to 14 years. PW 3 Dr. Lokender Badotra, who examined the prosecutrix also supported this version. This view is more strengthened by the family history which showed that she was born in the year 1979. Therefore, in all probability, the age of the prosecutrix at the time of the occurrence was about fourteen years. The certificate of PW 13, the Medical Officer-cum-Radiologist, also gives only the probable age of the prosecutrix. Therefore, the finding of the learned Sessions Judge that the prosecutrix was above the age of sixteen is based on faulty reasons and is unsupported by evidence.

On the basis of aforesaid evidence adduced on behalf of the prosecution the Court below has assessed age of the prosecutrix below 16 years. Finding of the Court below on the basis of evidence adduced on behalf of the prosecution is sustainable.

As regards the question of commission of the offence of rape, the prosecutrix (PW-8) has specifically deposed that on the fateful day when she went inside her house to alight the lamp, she found the accused inside her room, he was smoking, he demanded water and while she was giving water he caught hold of her, threw her down and removed his clothes and also her clothes, and inserted his male organ into her private part, at that time, her mother called her on which the accused left her. She narrated the incident to her mother. Her private part was painful and blood was coming out from there. Her mother assaulted the accused with stick and also narrated the incident to Kunwar Bai and other persons (members of the vicinity). Thereafter, she went to the Police Station where she lodged the report vide Ex.P-9. The prosecutrix was partly declared hostile for proving other documents. She has further deposed that after lodging the report she was examined by the doctor and her clothes were seized.

Smt. Jamna Bai (PW-2), mother of the prosecutrix, who was present near the house on the fateful day has corroborated the evidence of the prosecutrix and also supported that the accused was found inside the house. Smt. Kunwar Bai (PW-1) has not fully supported the case of the prosecution, but has admitted that mother of the prosecutrix told her that the accused has committed offence (? ?) with her daughter and she also assaulted the accused. Doman Singh (PW-3) has deposed that mother of the prosecutrix told him that the accused has committed offence (?) with her daughter, at that time the prosecutrix was weeping and they went to the Police Station where they lodged the report. Poshan Lal (PW-5), father of the prosecutrix, has also supported the version of the prosecutrix.

The prosecutrix was examined by Dr. Renuka Prashanto (PW-6) who has deposed that on 20-6-2005 at about 4.30 p.m. he has examined the prosecutrix, her hymen was torn in 8 O''clock position, there was pain on touch, cervix was congested and sperm like discharge was present. Injury over hymen was within 24 hours. Vaginal slides were taken. In her opinion, the prosecutrix was subjected to sexual intercourse within 24 hours of her examination Ex.P-7. In her detailed cross-examination she has denied the suggestion that by squeezing with finger, hymen may tear. In para 11 she has admitted that excessive injuries were found over private part of the prosecutrix. This witness has in fact corroborated the commission of sexual intercourse upon the prosecutrix.

In her detailed cross-examination, the prosecutrix (PW-8) has admitted in para 12 that firstly she entered in the house thereafter, the accused entered. The accused used to visit her house frequently. She has also deposed that firstly she cried on which her mother came, but her mother has deposed that she has called the prosecutrix, on which the prosecutrix came out from the room. There are discrepancies in the statements of the prosecutrix and the mother of the prosecutrix as to whether who has called first and there are also minor discrepancies, contradictions and omissions in the evidence of the prosecutrix.

In the present case, the prosecutrix is aged about 13 years on the date of incident.

Corroboration of evidence is not a rule of law, but is a rule of caution and rule of prudence. In case of any infirmity, corroboration is required from independent sources. While dealing with the necessity of corroboration, the Apex Court has held in case of State of Maharashtra Vs. Chandraprakash Kewalchand Jain, that corroboration of the evidence of prosecutrix is not necessary. Para 16 of the judgment reads as follows:

A prosecutrix of a sex offence cannot be put on a par with an accomplice. She is in fact a victim of the crime. The Evidence Act, 1872 (in short ''the Evidence Act'') nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness u/s 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or Witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding, the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence....

Evidence of the prosecutrix reveals that the accused is the person who fell on the prosecutrix in her house and inserted his male organ in the private part of the prosecutrix. Factum of sexual intercourse is supported by Dr. Renuka Prashanto (PW-6) vide Ex.P-7. Presence of the accused inside the house of the prosecutrix at about 10 p.m. on the fateful night when nobody was present in the house and narration of the incident by the prosecutrix to her mother is corroborated by the evidence of Smt. Jamna Bai (PW-2), mother of the prosecutrix. Evidence of the prosecutrix cannot be discarded only on the ground of discrepancy, contradiction and omission which are natural. Her evidence inspires confidence, it is trustworthy and safe to rely.

After appreciating the evidence of the prosecutrix and other witnesses supported by medical evidence and also by the chemical analysis report Ex.P-22 in which presence of sperm over underwear, Salwar, Kurta and vaginal slides of the prosecutrix was confirmed, the Court below has convicted and sentenced the Appellant u/s 376 of the I.P.C.

As regards the question of conviction of the Appellant u/s 450 of the I.P.C, admittedly the accused was found inside the house of the prosecutrix. House trespass is defined in Section 442 of the I.P.C. which reads as follows:

House trespass.-Whoever commits criminal trespass by entering into or remaining in any building, tent or vessel used as a human dwelling or any building used as a place for worship, or as a place for the custody of property, is said to commit "house-trespass".

Admittedly, the Appellant has committed the offence of rape with a minor, which is punishable u/s 376 of the I.P.C. and maximum sentence provided is life imprisonment. The accused has entered into the house of the prosecutrix and remained present inside the house with intent to commit the offence of rape and finally he has committed the offence of rape on the prosecutrix. The act of such house-trespass of the Appellant squarely falls within the purview of the offence punishable u/s 450 of the I.P.C. Therefore, conviction of the Appellant under Sections 450 and 376 of the I.P.C. is based on credible and clinching evidence sustainable under the law.

As regards the question of sentences imposed upon the Appellant, taking into consideration the age of the prosecutrix and injury found over private part of the prosecutrix, sentence of R.I. for ten years and fine of Rs. 1,000/- u/s 376 of the I.P.C. and sentence of R.I. for 5 years and fine of Rs. 1,000/- u/s 450 of the I.P.C. are neither excessive nor unjust.

For the foregoing reasons, I do not find any scope of interference in this appeal. The appeal is, therefore; liable to be dismissed and it is hereby dismissed.