Gulab vs State of M.P.

Vimla Jain, J.—Appellant accused Gulab preferred this appeal u/s 374(2) of Criminal Procedure Code being aggrieved by the judgment dated 16.1.1996 passed by 1st Additional Sessions Judge, Teekamgarh in Sessions Trial No. 93/94 whereby appellant accused has been convicted and sentenced u/s 376 of Indian Penal Code with rigorous imprisonment for four years. Short facts of the case are that when complainant Shivcharan Pal was at his sister''s house in village Panhari, his younger brother Swami came and informed him that one Gulab committed rape upon his daughter and the blood was oozing out from her vagina. Then complainant Shivcharan Pal alongwith his younger brother Swami immediately rushed to his village Naiguva Khirak and saw at her daughter aged about 12 years was lying on the floor and the blood was coming out from her private part. On being enquired from her; she narrated the entire incident to her father that in the evening of 26.6.1994, when she was at the well of Bidua to collect jambul (Jamun), accused Gulab came there and committed rape upon her. The complainant Shivcharan Pal lodged a report in Police Station Prathvipur, District Tikamgarh on 27.6.1994. The police took cognizance arrested the accused and sent him for medical examination. The accused was found competent to commit the sexual act. The victim was also sent to the doctor for her medical examination. Her petticoat was seized. Statements of witnesses u/s 161 of the Cr.P.C. were recorded on the same day. After investigation, a charge-sheet was filed against the appellant/accused in the Court for the offence punishable u/s 376 of IPC.

Appellant/accused abjured his guilt and claimed to be tried, mainly contending that he had been falsely implicated in the offence.

In order to bring home the charge against the appellant accused, the prosecution examined eleven witnesses and placed sixteen documents on record. The defence of the appellant is of false implication on the basis of the false complaint which was made by complainant Shivcharan Pal at police station Prathvipur, District Teekamgarh. The appellant examined his mother Chirai as a defence witness.

The learned Trial Judge on the basis of evidence placed on record held that the appellant did commit the offence punishable u/s 376 of IPC and convicted and sentenced him as mentioned above.

This appeal has been filed by the appellant assailing the said judgment of conviction and order of sentence.

Learned counsel for the appellant submitted that at the time of occurrence, the appellant was below sixteen years of age and that there was no suitable evidence of age of the prosecutrix.

On going through the record, it is found that the appellant did not file any document showing that he was below sixteen years of age at the time of occurrence. The Presiding Officer, Juvenile Court, Chhatarpur by her order dated 8.3.1995 determined the age of appellant/accused and found that he was eighteen years old. The appellant/accused did not file any appeal against this order. Hence, this order became final.

The provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, do not apply to the accused in the present case, because, that Act came into force on 28.2.2001, while the alleged offence by the accused is proved to have been committed on 26.6.1994, i.e. long before the abovesaid Act came into operation. Hence, the accused cannot claim any benefit of any of the provisions of that Act. On the date of the proved offence on 26.6.1994, the Juvenile Justice Act, 1986 was in force, and hence, the accused will be governed by the provisions thereof.

Sub-section (h) of Section 2 of the said Juvenile Justice Act of 1986, defines the "Juvenile" as a boy who has not attained the age of sixteen years. According to the prosecution, the accused was about 18 years old as on the date of the offence. When the accused is aged 18 years, he cannot be described as ''Juvenile'' within the meaning and contemplation of the said sub-section (11) of Section 2 of the said Juvenile Justice Act 1986. Hence, the provisions of that Act have no application to the case on hand, and hence, the accused cannot claim the benefits, if any, under any provisions of the Act.

Now, I come to the question of age of the victim. The burden is on the prosecution to prove that prosecutrix (PW1) was a minor at the time of occurrence. I perused the record and found that in the FIR (Exhibit P4) lodged by the father of the victim, the age of the victim was recorded twelve years. The Trial Judge recorded her statement as child witness and mentioned therein her apparent age 10 years. Such opinion of the Trial Judge was based on her physical appearance. The prosecutrix was medically examined by PW9 Dr. Usha Nuna. The doctor proved her examination report (Exhibit P12). In her report, she mentioned that the prosecutrix was twelve years old. She also opined that her menstruation did not begin. She also mentioned in her report (Exhibit P12) that hymen of the prosecutrix was recently torn. She further opined that the external genitalia of the prosecutrix were not well developed. Public hair were absent. Libia majora covering minora. All these factors including physical status of the prosecutrix show that she was minor at the time of occurrence. The natural phenomenon that normally the menstruation begins between the age of 12 to 15 years also fortifies this finding.

Learned counsel for the appellant submitted that the Trial Court gravely erred in convicting the appellant because the prosecution witnesses are child witnesses and hostile, therefore, they are not reliable. He also submitted that without independent corroboration, the appellant/accused cannot be convicted.

Shri Sudesh Verma, learned Government Advocate for the respondent/State has argued in support of the impugned judgment.

In view of the aforesaid submissions made by learned counsel for the appellant, evidence of the prosecutrix who was a minor female child at the time of occurrence is closely examined. Upon careful screening of the entire testimony of prosecutrix (PW1). her evidence is found to be cogent. It inspires confidence. Prosecutrix (PW1) categorically deposed in her evidence that in the evening she went with Sukhwati to well of Bidua for eating jambul (Jamun), Harichandra, Gopal and Gulab were there and she ate jambul (Jamun). Thereafter, accused Gulab forced Harichandra and Gopal to go and asked the prosecutrix to remove her underwear but she did not agree and started weeping. She further stated that:

(Matter in other language)

The vivid description given by prosecutrix (PW1) in Paragraphs 2 and 3 of her deposition unequivocally reveals that she was subjected to forcible sexual intercourse. Her statement was corroborated by PW2 Harichandra, PW3 Sukhwati and PW 5 Gopal. These witnesses stated that they reached the spot after hearing the cry and saw accused Gulab lying on the body of daughter of Shivcharan and committing rape. He took his underwear and ran away. They also stated that the blood was oozing out from the vagina of the prosecutrix. The prosecutrix narrated to them that the accused raped her. Thereafter, they took her to the home and narrated the incident to her mother.

Admittedly, PW3 Sukhwati, PW5 Gopal, PW2 Harichandra and PW1 prosecutrix are child witnesses. The law relating to the evidence of a child witness is well settled and the Apex Court in the case of Panchhi and others Vs. State of UP, held as follows:

It is not the law that if a witness is child, his evidence shall be rejected even it is found reliable though the evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is an easy prey to tutoring.

In Himmat Sukhadeo Wahurwagh and Others Vs. State of Maharashtra, , the Apex Court again laid down as below:

Though it is an established principle that child witnesses are dangerous witnesses as they are pliable and liable to be influenced easily, shaped and molded, but it is also an accepted norm that if after careful scrutiny of their evidence the court comes to the conclusion that there is an impress of truth in it, there is no obstacle in the way of accepting the evidence of a child witness.

Though Sukhwati (PW3) has been declared hostile by the prosecution but there are no reason to disbelieve her statement. It has been held by the Apex Court in the case of Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh,

The evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found dependable on a careful scrutiny thereof.

The Apex Court in Gura Singh v. State of Rajasthan 2001 Cri. LJ 487 further held thus:

It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the Court of the fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the Court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy.

Moreover, despite extensive cross-examination, nothing could be elicited in the evidence of the aforesaid witnesses so as to indicate any reason for false implication of the appellant.

In defence Chirai (DW1), mother of the appellant state that the father of the prosecutrix Shivcharan stole and sold her 30 sheep. She further stated that he also cut the hair of her lamb. When her son, the appellant, asked to return its hair, Shivcharan threatened her son that one day he would send him to Jail. This statement is not corroborated by any oral or documentary evidence. Considering all the facts and circumstances of the case, the: said defence does not appear to be reasonable. Ordinarily, the parents of the victim would not concoct a false case against the appellant for the sake of modesty, honour and reputation of their minor daughter of tender age.

On the next day of the incident, when father of the prosecutrix came and enquired from the victim, she told him that appellant committed rape on her. Then he went to the Police Station alongwith victim to lodge the report (Exhibit P4), which was recorded by PW6 S.L. Pal, ASI at Police Station Prathvipur.

The version of rape given by prosecutrix herself also stands corroborated by the FIR (Exhibit P4). It has been reiterated by the Apex Court in the case of State of Himachal Pradesh v. Asha Ram, reported in 2005 AIR SCW 6009 that the testimony of the prosecutrix alone can form the basis of conviction if it inspires confidence and is found to be reliable.

Medical evidence also corroborates the version of the prosecutrix (PW1) that she was subjected to rape. PW9 Dr. Usha Nuna who examined prosecutrix (PW1) on 28.6.1994 found that the external genitalia of the prosecutrix were not well developed. Pubic hair were absent. Libia majors covering minora. Hymen recently torn, tears radial at three sides; margins red. Swollen and tender. After cleaning the vagina there was mucosal tear in post vaginal fornix about 2 cm in length. Bleeding present. She also opined that all the signs of penetration (forceful intercourse) present. Therefore, it is clear that prosecutrix (PW1) was subjected to forcible sexual intercourse.

In the instant case, there are no reasons to doubt or suspect the statement of prosecutrix (PW1) that the appellant subjected her to forcible sexual intercourse at the well of Bidua. It has come in the evidence that prosecutrix (PW1) was minor and unmarried girl. In such situation, it cannot be presumed that prosecutrix (PW1) would make a false allegations of rape against the appellant at the cost of her honour and dignity and would risk her future life. Thus, in view of the evidence available on record, it is found that the appellant subjected prosecutrix (PW1) to forcible sexual intercourse, therefore, conviction of appellant as recorded by the Trial Court u/s 376 of Indian Penal Code does not call for any interference.

The Supreme Court in the case of State of Himachal Pradesh Vs. Shree Kant Shekari, held thus:

Sexual violence apart from being a dehumanising act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity--it degrades and humiliates the victim and where the victim is a helpless innocent child or a minor, it leaves behind a traumatic experience. A rapist not only causes physical injuries but more indelibly leaves a scar on the most cherished possession of a woman it i.e. her dignity, honour, reputation and not the least her chastity. Rape is not only a crime against the person of a woman, it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is a crime against basic human rights, and is also violative of the victim''s most cherished of the fundamental rights, namely, the right to life contained in Article 21. The courts are, therefore, expected to deal with cases of sexual crime against women with utmost sensitivity. Such cases need to be dealt with sternly and severely. A socially sensitised Judge is a better statutory armour in cases of crime against women than long clauses of penal provisions, containing complex exceptions and provisos. In the present case, the accused who was a teacher gratified his animated passions and sexual pleasures by having carnal knowledge of his student, a girl of tender age. Such offenders are a menace to civilized society.

The Supreme Court in the case of Shri Bodhisattwa Gautam Vs. Miss Subhra Chakraborty, held thus:

Rape is thus not only a crime against the person of a woman (victim), it is a crime against the entire society. It destroys the entire psychology of a woman and pushes her into deep emotional crisis. It is only by her sheer Will-power that she rehabilitates herself in the society which, on coming to know of the rape, looks down upon her in derision and contempt. Rape is, therefore, the most hated crime. It is a crime against basic human rights and is also violative of the victim''s most cherished of the Fundamental Rights, namely, the Right to Life contained in Article 21. To many feminists and psychiatrists, rape is less a sexual offence then an act of aggression aimed at degrading and humiliating women. The rape laws do not, unfortunately, take care of the social aspect of the matter and are inept in many respects.

Keeping in view the said principles, I come to the question of quantum of punishment for the said offence.

Learned counsel for the appellant submitted that the appellant had already suffered the jail sentence of two years, eight months and seven days and not only during the trial but also during pendency of this appeal. At no point of time, the appellant misused liberty and he is now leading peaceful life with his family as normal member of society. Hence, he prayed that his jail sentence should be reduced to the period already undergone.

The learned Government Advocate has opposed the said contention.

The Additional District & Sessions Judge imposed sentence of four years rigorous imprisonment which is lesser than the minimum sentence prescribed for the offence of rape.

I find no infirmity in the finding of conviction rendered by Judge. The aforesaid grounds of the accused are wholly irrelevant for reducing the sentence to the period already undergone particularly having regard to the nature of offence and the manner of its commission. The victim was a minor of 12 years of age. She was alone and helpless at the place of incident. The accused took advantage of such situation and committed the rape. It is unfortunate that the Sessions Judge had been lenient in passing the lesser sentence than the minimum sentence prescribed in the law.

The conviction of the appellant/accused passed by the learned Additional Sessions Judge in Session Trial No. 93 of 1994 on 16.1.1996 for the offence u/s 376(1) of the IPC is confirmed. There being no merit, this appeal is dismissed. The suspension of sentence of the appellant by granting ad interim bail on 6.3.1997 during pendency of this criminal appeal stands vacated. The trial Court is directed to take effective steps to ensure that appellant Gulab serves the remaining period of sentence in prison.