Jage Ram vs The State of Haryana

I.S. Tiwana, J.—Appellant Jage Ram stands convicted and sentenced to different terms of rigorous imprisonment under Sections 366/376 (2) (g) and 506,I. P. C, by Shri R. S. Bhatia, Sessions Judge, Bhiwani, vide his judgment dated July 20, 1985.

Having heard the learned Counsel for the parties at some length I do not feel the necessity of recapitulating the facts of the case in detail in view of the fact that the learned Counsel for the Appellant has confined his arguments to only one aspect of the case that in view of the provisions of Section 375 IPC, clause fifthly, the Appellant cannot possibly be held guilty of rape as the prosecutrix Dhannar is not proved to be less than 16 years of age at the time of the alleged occurrence. As per the findings of the learned trial court, the prosecutrix was bodily lifted by the Appellant and his co-accused Suresh on the night-intervening 25/26th of August, 1984, from the courtyard of their house in village Samaspur District Bhiwani, and was subjected to rape firstly in the bushes and pits at a distance of a few yards from her house and later at different places to which they traveled even in trains till they were apprehended by the police on October 19, 1984 at Bus stand, Bhiwani. For recording the conviction of the Appellant, the Sessions Judge has primary relied upon the statement of the prosecutrix and the statement of the doctors, namely Dr. Mrs. Santosh Bansal and Dr. V. B. Dixit who proved the radiological examination report of the prosecutrix (Exhibit PR) prepared by Dr. V. S, Lochab who by the commencement of trial had proceeded abroad.

In the judgment while conceding that the detailed version given by the prosecutrix remained uncorroborated, the learned Judge has sought to rely upon her statement in the light of certain suggestions made to her during the cross-examination. This approach adopted by the trial Court, however, does not commend to me. It is no doubt true that in such cases a prosecutrix cannot be considered to be an accomplice, but it has repeatedly been laid down by Courts that at least as matter of precaution the Court should normally look for some corroboration of the testimony of the prosecutrix in order to satisfy itself that she was telling the truth. See Gurcharan Singh Vs. State of Haryana, Besides this the evidence of the medical experts on which the learned Counsel for the Appellant heavily relies makes the case against him completely doubtful.

It is the undisputed fact that there exists no record in the form of birth register or school register so far as the age of the prosecutrix is concerned. The only other evidence besides the stat-ments of the two doctors referred to above is the statement of Ram Kumar, P. W. 7, brother of the prosecutrix according to whom she was 13/14 years of age at the time of occurrence. This evidence, to may mind, cannot by itself be conclusive so far as the age of the prosecutrix is concerned. It is more so when the said evidence is not well supported by the opinion of the doctors referred to above Dr. Mrs. Santosh Bansal, P. W 9, after physical examination of the prosecutrix opined that she could be between 12 to 16 years of age at the time of her examination, i. e. on March 16, 1985. She, however, admitted that at that time the prosecutrix had 28 teeth and it is possible that one may be 18 years old before the eruption of 28th tooth but that will be an exceptional case.

The material part of the report Exhibit PR, which, as already indicated, has been proved by Dr. Dixit, reads ''based on these observations (as noted in the report), the age of Dhannar is about 14 years with a variation of three years (on either side)". While appreciating this evidence where the trial Court, to my mind, has gone wrong, is contained in paragraph 35 of the impugned judgment. This is how it reads

True, Dr. Lochab''s report says that there could be variation of three years on either side. But this is a general theory in such cases. And we have to remember that this variation could be on either side. In other words, it could be on the lower side as well. And when we read this evidence, in conjunction with the oral evidence, then this variation is on the lower side calculated from 17.

It is patent from a bare reading of the above noted part of the judgment that the Court has given the benefit of doubt to the prosecution instead of the accused. In the absence of any conclusive documentary evidence, the opinion of the doctor referred to above cannot lead to a firm finding that the prosecutrix at the relevant time was less than 16 years of age. If that is so as it is, then to ray mind it is a clear case of consent and the Appellant cannot be held guilty of the charges framed against him. I find no material or circumstance to endorse the opinion of the trial Court that even if she had to held to be of more than 16 years of age at the relevant time, still she could not be taken to be a consenting party for the reason that she was a girl belonging to a weaker section of the society and to backward rural area. As is evident from the facts stated above, she was in the company of the accused and Suresh for about two months and traveled to different places by train and at no stage did she raise any hue and cry to get rid of the accused which would have been her normal conduct had she not been consenting to the whole affair.

Thus for the reasons recorded above, I allow this appeal and while granting benefit of doubt to the Appellant, acquit him.