Kishen alias Kishni vs State of Haryana

R.L. Anand, J.

This is a criminal appeal filed by Kishan alias Kishni appellant, and has been directed against the judgment and order dated 6.5.1987 passed by the Court of Addl. Sessions JudgeII, Faridabad, who convicted the appellant Kishan alias Kishni under Section 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for a period of 5 years and to pay a fine of Rs. 500/ and in default of payment of fine the appellant was directed to undergo rigorous imprisonment for 2 months.

Kishan alias Kishni appellant faced trial in the trial court under Section 376 of the Indian Penal Code on the allegations that on 19.3.1984 in the area of village Bawariyaka he committed rape upon a minor girl aged about 910 years of the name Miss Mukesh and thereby he allegedly committed an offence under the above provisions of law.

The allegations of the prosecution as well as the brief part of the investigation can be described in the following manner.

Lakhmi Chand, resident of Bawariyaka, Police Station Sadar Palwal was employed in a factory at Faridabad and was residing at his village with his family. He has four children. Mukesh prosecutrix is his eldest child. On 19.3.1984 at about 3 P.M. Mukesh had gone to the field in order to collect Barsim fodder. The field of the accused was also situated on the way and he was present there. He called the prosecutrix to come to him. She refused and continued going on her way. Thereafter, the accused caught hold of the prosecutrix and placed his hand on her mouth and took her inside the wheat crop. The accused then took of the salwar of the prosecutrix and committed sexual intercourse with her forcibly. Miss Mukesh raised an alarm, which attracted Kishore who arrived there from the side of his nearby field. He picked up the accused when he was lying on the prosecutrix. At the same time Siri Chand also came at the place of occurrence and he was coming from village Raidaska and was proceedings towards village Bawariyaka and this witness also witnessed the occurrence. Both Siri Chand and Kishore took the proecutrix to her house. The prosecutrix reached her house while in weeping condition and she narrated the entire occurrence to her mother. The father of the prosecutrix arrived at home at 10 P.M. after performing his duties in the factory. On coming to know about the occurrence, he along with his daughter Miss Mukesh went to the Police Station for reporting the matter and on the statement of Miss Mukesh, FIR Ex.PF was recorded by SI Singhara Singh at Police Station Sadar Palwal.

PW 8 SI Singhara Singh, after recording her statement, read over the same to the prosecutrix who thumb marked in token of correctness and one copy of the FIR was sent to the Ilaqa Magistrate. Thereafter, the prosecutrix was sent to the hospital under the guard of a constable for her medico legal examination and the Thanedar prepared the request Ex.PG for medical examination. Thereafter the Investigating Officer visited the place of occurrence and prepared rough site plan Ex.PH with correct marginal notes. He arranged for a photographer, who took the photographs of the place of occurrence. The investigating officer felt the necessity of getting the photographs of wheat crops which was lying damaged and bloodstains were also present on the earth and on the crop straws. The investigating officer lifted bloodstained earth and some pieces of crop straws of wheat and made sealed parcel thereof by using his seal bearing inscription KS and sealed parcels were taken into possession vide recovery memo Ex.PA, attested by Bharat Singh and Hans Raj. He recorded the statements of Bharat Singh and Hans Raj under Section 161 Cr.P.C. After the medical examination of the prosecutrix constable Kamla Shankar produced sealed parcels of the swabs which was taken into possession vide recovery memo Ex.PE. On return to the Police Station Thanedar produced the case property. Accused was arrested on 22.3.1984 from village Behrola in the presence of Sube Ram and other police constables. The accused was then medicolegally examined by doctor, who vide MLR Ex.PR opined that the appellant was fit to perform sexual intercourse. On 23.3.1984 the accused was interrogated in the presence of Bharat Singh and on interrogation the accused made a disclosure statement that he has kept concealed an underwear underneath the heap of bricks in front of his house and could get recovered the same by pointing out. His disclosure statement Ex.PB was recorded and it was attested by Balli and Zile Ram. Thereafter the accused led the police party and got recovered an underwear in pursuance of his disclosure statement. The investigating officer made sealed parcel of the underwear and it was taken into police possession vide recovery memo Ex.PC attested by Balli and Zile Ram. The investigating officer prepared rough site plan of the place of recovery Ex.PK. On 26.3.84, the investigating officer made an application before Dr. Amita Gupta, in Civil Hospital, Palwal in order to obtain the opinion whether the rape has been committed upon Miss Mukesh or not. The lady doctor gave her opinion Ex.PM/1.

On 20.3.84 at about 3 A.M. Dr. Amita Gupta PW 10 medicolegally examined Miss Mukesh and issued medicolegal report Ex.PS. I would discuss the medical aspect of the case in the later part of the judgment but at this stage it may be sufficient for me to make a mention that according to the opinion of the doctor the rape was committed upon the prosecutrix.

On the same day i.e. on 20.3.84 Dr. S.M. Bagla Radiologist, xrayed Miss Mukesh for the purpose of age determination and issued MLR. Several x rays were taken of the prosecutrix and on the basis of the ossification test doctor opined that the age of the prosecutrix on the date of the commission of offence was between 1012 years. Ex.PQ is report to this extent. Ex.PQ/1 to Ex.PQ/8 are the relevant films.

This very doctor also medicolegally examined the accused on 22.3.1984 in order to determine whether he was fit to perform sexual intercourse or not. The doctor issued MLR Ex.PR and came to the conclusion that the accused was fit to perform sexual intercourse. The sealed parcels of the bloodtained earth, and straws etc, swabs which were taken from the person of the prosecutrix and the underwear were sent to the Director Forensic Science Laboratory and he found blood on the swabs, on the salwar as well as on the underwear. The Director further found human semen on the underwear of the accused. However semen could not be detected on the swabs and the salwar of the prosecutrix. Vide report Ex.PN/1 the Director, FSL further found human blood on the bloodstained earth and straws, salwar and underwear. On the completion of the investigation of the case the accused was challaned under Section 376 IPC in the court of Ilaqa Magistrate who supplied the copies of the documents to the accused and committed the accused to the court of Sessions vide commitment order. It may be mentioned here at this stage that during the pendency of the commitment proceedings accused made an effort in order to convince the court that he was juvenile on the date of the alleged commission of offence and his plea was initially rejected by the learned CJM as well as by the High Court.

The learned Addl. Sessions Judge, Faridabad vide order dated 30.1.1986 prima facie came to the conclusion that the accused has committed an offence under Section 376 IPC. He framed a charge under section 376 IPC. It was read over and explained to the accused, who pleaded not guilty to the charge and claimed his trial.

In order to prove the charge the prosecution examined as many as 14 witnesses namely P.W.1 Bharat Singh, P.W. 2 Hans Raj, P.W.3 Balli, P.W. 4 Yad Ram Patwari; P.W. 5 Kamla Shankar constable, P.W.6 HC Beer Singh, P.W.7 constable Avinash Chand, P.W.8 SI Singhara Singh, P.W.9 Dr. S.M. Bagla, P.W. 10 Dr. Amita Gupta, P.W. 11 Madan Lal photographer, P.W. 12 Ms. Rajwati, mother of the prosecutrix, P.W. 13 Mukesh prosecutrix and P.W. 14 Kishore. Siri Chand PW was given up as unnecessary. The prosecution also tendered into evidence two reports of the Director Ex.PN and Ex.PN/1 and closed the case.

On the closure of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C and all the incriminating circumstances appearing in the prosecution evidence were put to the accused. The accused pleaded his false implication due to enmity. When called upon to enter upon his defence, the accused did not lead any evidence and closed his case.

The learned trial Court believed the prosecution version and rejecting the defence story and convicted and sentenced the appellant as stated above and aggrieved by the judgment and order the present appeal which I am disposing of with the assistance rendered by Shri D.P. Singh, Advocate, on behalf of the appellant and Shri Shailender Singh AAG, Haryana, who put in appearance on behalf of Haryana State and I have also gone through the record of this case with the assistance rendered by them.

The first point for determination in this case would be about the age of the prosecutrix. The present is not a case where it can be said that the age of the prosecutrix is a border line and that the evidence led on record by the prosecution should be scrutinised in such a manner to ensure whether any benefit of doubt can be given to the accused so far as the age of the prosecutrix is concerned.

First of all, I would like to refer to the statement of the prosecutrix herself in this regard and she had categorically stated before the trial court while appearing as P.W.13 that she was 11 years of age when she made her statement on 24.3.1987. Apart from that there is a direct statement of her mother who could be the best possible witness in this regard as she has given birth to the prosecutrix. According to this witness when she was examined on 24.3.1987, the age of her daughter was 1011 years. Even if it is assumed for the sake of argument that there was some exaggerations on the part of Rajwati mother of the prosecutrix and Mukesh prosecutrix with regard to the age of the prosecutrix still their testimonies can be scrutinised in the light of the statement given by Dr. Amita Gupta who appeared as P.W. 10 and the ossification test which had been conducted. According to this witness the prosecutrix was having 24 teeth in her jaws. Breasts were not fully developed and there was no history of menses. It has also come in the statement of this witness that the pubic hair of the prosecutrix were not present. P.W.9 Dr. S.M. Bagla performed ossification test and he took 8 xrays and in the opinion of this doctor the age of the prosecutrix as on 20.3.1984 was between 1012 years. Rather this witness has given a definite opinion that the age of the prosecutrix was less than 12 years. In the light of the direct and the corroborative statements made by Smt. Rajwati, Mukesh, Dr. S.M. Bagla and Dr. Amita Gupta, this court is not in hesitation in holding that the prosecutrix was definitely less than 16 years on the date of the alleged commission of offence. Rather this part of the case has also not been seriously contested by the learned counsel appearing on behalf of the appellant who adopted a different line of action which I will deal in the subsequent portion of the judgment and just now.

Rape has been defined under Section 375 of the Indian Penal Code, which lays down as under :

"A man is said to commit ''rape'' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :

First : Against her will.

Secondly : Without her consent.

Thirdly : With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly : With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly : With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly : With or without her consent, when she is under sixteen years of age.

Explanation : Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception : Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."

Provisions of Section 375 and 376 of the Indian Penal Code became subjectmatter of interpretation of the Hon''ble Supreme Court from time to time regarding the consent aspect of the case, evidentiary value of the prosecutrix and whether corroboration to the testimony of the prosecutrix is always required or not. So far as on the matter of consent is concerned, it has been held that consent on the part of the victim must be voluntary. A mere act of helpless resignation in the face of inevitable compulsion, acquiescence, nonresitance or passive giving in, when volitional faculty is either shrouded by fear or vitiated by duress, cannot be deemed to be ''consent''. Consent on the part of a woman, as a defence to an allegation of rape, requires voluntary participation after having fully exercised the choice between resistance and assent. The question of consent or compulsion is to be judged on a careful consideration and scrutiny of the evidence of the victim and from other corroborative evidence, if available and the attendant circumstances preceding, accompanying or following the acts of sexual intercourse.

So far as the evidentiary value of the prosecutrix is concerned it has been held that the prosecutrix cannot be considered to be accomplice. As a rule of prudence, however, it has been emphasised that courts should normally look for some corroboration of her testimony in order to satisfy itself that the prosecutrix is telling the truth and that a person accused of abduction or rape, has not been falsely implicated. The view that as a matter of caution no conviction without corroboration was possible has not been accepted. Only rule of law is the rule of prudence namely the advisability of corroboration should be present in the mind of the judge or the jury as the case may be. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand. As to what type of corroboration may be required when the Court is of the opinion that it is not safe to dispense with that requirement. It has also been laid down that type of corroboration required must necessarily vary from circumstances of each case and also according to particular circumstances of the offence with which a person is charged. In this regard the observations made in AIR 1973 Supreme Court 469 Madho Ram v. The State of U.P., are relevant.

It has also been held in 1990(1) All India Criminal Law Reporter 645 : 1990(1) RCR (Crl.) 411 (SC), State of Maharashtra v. Chander Prakash and others, that evidence of prosecutrix in sexual offence must receive the same weight as is attached to an injured in a case of physical violence. Much is always talked about the lack of corroboration by the medical evidence and this argument has also been considered by the Hon''ble Supreme Court in Madan Gopal Kakkad v. Naval Dubey, 1992(2) All India Criminal Law Reporter (SC) 508, where the Hon''ble Apex Court held : "That a medical witness is only an expert to assist the court and his evidence is of advisory in character given on the basis of symptoms found on examination."

In the famous case reported as 1973 Cri.L.J. 179 Gurcharan Singh v. State of Haryana, it has been held by the Hon''ble Supreme Court that the testimony of the prosecutrix cannot be considered as an accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence. As a rule of prudence, however, court normally looks for some corroboration of her testimony so as to satisfy its conscience that she is telling the truth and that the person accused of rape on her has not been falsely implicated.

It has also been held by the Hon''ble Supreme Court that in the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence or corroboration was only adding insult to injury. Why should the evidence of the woman who complained of sexual molestation be viewed with the aid of "spectacles fitted with lenses tinged with doubt, disbelief or suspicion."

To secure acquittal of his client the learned counsel for the appellant submitted that it has not been proved on the record that the appellant was there on the fateful day and at the time of the alleged commission of offence or that it was the appellant who committed the rape on the person of Miss Mukesh. It was further submitted before me from the side of the appellant that the appellant has been involved in this case due to enmity. So much so his arrest has been proved on 20.3.1984 and the story of the prosecution stands belied by the medical evidence.

All the submissions I have weighed in the light of the statement made by the prosecutrix, her mother, Kishore PW 14 and the two medical experts Dr. S.M. Bagla, and Dr. Amita Gupta and I have come to this conclusion that none of the submissions raised by the counsel for the appellant cuts ice nor it has been able to create any reasonable dent or doubt in the prosecution version. First of all, it may be mentioned here that the rape was committed in the broad day light by a person who was previously known to the prosecutrix. It has come in the statement of the prosecutrix itself that the house of accused is hardly situated at a distance of four houses from the house of the prosecutrix and her mother and in these circumstances there can be no question of doubt about the identity of the assailant. As we all know that the sexual offences are committed when the victim and the assailant come in a very close proximity. Their physical union is necessary for the offence under Section 376 of the Indian Penal Code and in these circumstances it is very easy on the part of the prosecutrix to identify her assailant.

Reverting to the statements first of all, I would deal in broad, the statement of Miss Mukesh PW 13. She categorically stated that on the date of occurrence at about 3 P.M. When she went to her fields in order to collect the Barsim crop, Kishni accused met her. He called her to come near to him and when she did not go, the accused came to her and put his one hand on her mouth and took her to the field of wheat crops belonging to the father of the prosecutrix. She has categorically stated that the accused put off her salwar and committed sexual intercourse against her consent. When she tried to push away his hand from her mouth and tried to raise the alarm and she succeeded in raising the alarm on which Kishore and Siri Chand arrived there. She has further stated that when these two witnesses arrived at the place of occurrence, the accused was indulging in sexual intercourse and it was Kishore PW who separated the assailant from the prosecutrix. She has further stated that the crop of wheat fell on the ground where she was raped and she started bleeding from her private part and her salwar got bloodstained. The law courts have always given much importance to the statement of res gastae which is admissible under Section 6 of the Indian Evidence Act. In this regard I would like to refer to the statement of Smt. Rajwati PW 12, who deposed that her daughter returned to the house at about 4. P.M. without Barsim corp and at that time she was weeping and blood was oozing from her vagina. It has been stated by the mother of the prosecutrix that her daughter was brought by Kishore and Siri Chand. Her salwar was having blood stains. On her arrival, the prosecutrix told her that accused asked her to come to him but she did not go to him. Then accused took her forcibly inside the crop belonging to his father. It has also been stated by the prosecutrix to her mother that the accused raped upon her without her consent. This is a very natural statement on the part of the prosecutrix and this court is inclined to give utmost weight to the statement of the prosecutrix. Even the statement of P.W. 14 Kishore does not lack behind when he stated that on hearing the shriek coming from the field of Lakhmi Chand who is the father of the prosecutrix he went there and saw that Mukesh was lying on the ground and Kishni accused was upon her and the latter was indulging in sexual intercourse with the former. This witness further deposed that he removed the accused and noticed that there was bleeding from the private part of Miss. Mukesh. The wheat crop of that place was damaged and some blood was also present on the wheat crops and on the earth. Thus the statement of the prosecutrix coupled with the statement of her mother and the eye witness Kishore leaves no manner of doubt that it was the accused who committed rape upon her. In this case what to talk of some corroboration there was sufficient corroboration by way of oral and circumstantial evidence which make the statement of the prosecutrix most reliable. The question of identity is fully established.

An effort has been made by the counsel for the appellant to convince me that Miss Mukesh and her mother Rajwati have deposed against the accused on account of enmity and in this regard my attention has been invited to the statement of Smt. Rajwati PW 12 when she stated that she knew Chandan who is the father of Kishore. A suggestion was put to this witness that Chandan filed a criminal complaint under Section 307 IPC against Lakhmi Chand, the husband of this lady (witness) and others and this suggestion was categorically denied by Ms. Raj Wati. Assuming for the sake of arguments that there is some enmity between the family of Lakhmi Chand and Chandan, still the point for determination is whether Smt. Raj Wati and her husband Lakhmi would go to the extent of tearing the abdomen of their daughter, who is unmarried, by putting her forward so as to invite the allegations of rape. In our Society no sane parents would drag their unmarried daughters to this extent that their honour may be defamed in the Society. Rather this suggestion which has been made on the part of the accused would suggest that Kishni must have committed rape upon the prosecutrix in order to wreak vengeance when the two families were at daggers drawn.

Statement of Miss Makesh has been challenged by the learned counsel for the appellant on the ground that her testimony is not corroborated by the medical evidence. My attention has been invited to the crossexamination of Miss Mukesh PW 13 when she deposed that she was dragged by the accused and her mouth was shut with full force and some finger marks were caused on account of that grip and her lips became swollen. The prosecutrix of course has stated that finger marks disappeared from her person after a week and her lips became all right after 23 days. The learned counsel submitted that as per medical examination these injuries were not there and in these circumstances the testimony of the prosecutrix should be disbelieved. This argument I totally reject. Firstly on the account that if there is some exaggeration on the part of the prosecutrix her entire statement cannot be discarded specially when it is fully corroborated not only by the statement of natural and uninimical witnesses but also from circumstantial and medical evidence which I will discuss in the later portion of this judgment. It is well settled that while appreciating the evidence of a witness, if that witness is found false in one particular of the case, the entire story of the prosecution cannot be thrown. The principle of falsus in uno and falsus in omnibus is not the rule of law in India. In the present case there is much corroboration to the testimony of Miss Mukesh. In this regard I would also refer to the statement of PW 10 Dr. Amita Gupta who medicolegally examined the prosecutrix on 20.3.1984 and came to the conclusion that there was clotted blood present over front of both thighs and genital organ. LabiaMinora was found swollen and painful. There was laceration of four chette and of perineum. Hymen was lacerated. Vagina orifice was allowing with difficulty a little finger and in the opinion of the doctor the possibility of rape could not be ruled out.

The opinion of the doctor has been challenged from the side of the appellant when she deposed in the crossexamination that the laceration of the hymen and other injuries as noticed by her in her report can be due to some other reasons than rape. According to the learned counsel for the appellant that doctor stated as there was no rupture of hymen so she could opine that there was no penetration. This part of the statement of the witness, if read as a whole in the light of the statement made by her in examinationinchief would show that rape was committed and this witness has further deposed that it is not always necessary that some injury must be on the hymen organ in case of rape of this type. In order to constitute a rape it is not necessary that the male organ must penetrate in the vagina to such an extent and with such force that there should be rupture of hymen. Penetration is enough for the purpose. The evidence is categorical in this case that the accused was still indulging in the sexual intercourse when he was got separated by Kishore PW.14. I do not want to further enter into this discussion but it will be sufficient for me to mention that from the statement of doctor it stands proved that the injured was met with violence and the accused committed the sexual act against her wish and consent which in this case was immaterial as the prosecutrix was less than 16 years on the date of the commission of offence.

To proceed further even the two reports of the Director FSL are suggestive of the fact that the rape was committed upon Miss Mukesh. As per report Ex.PN blood was detected on the swabs. It was also detected on the salwar of the prosecutrix and some stains of blood were also found on the underwear of the accused. Human semen was detected on the underwear and the report Ex.PN/1 indicates that there was human blood on the bloodstained earth and grass, on the salwar of the prosecutrix and on the underwear of the accused. The trembling of the wheat crop and the blood on the ground are indicative of the fact that force was extended visavis the prosecutrix and all the these facts lend lot of corroboration to the oral testimony of the prosecutrix. As I had stated above that the testimony of the prosecutrix would not (be treated) like an accomplice. Rather her statement is to be treated like an injured witness which can be acted upon even when slight corroboration, which is a rule of prudence just to satisfy the conscience of the court and not a rule of law.

There is another additional circumstance which is also a pointer towards the culpability of the accused i.e. the medico legal report of the accused himself which has been proved by the statement of P.W.9 Dr. S.M. Bagla, who deposed that there was nothing to suggest that accused was unable to perform sexual intercourse. The accused cannot take the benefit of the plea that the doctor did not notice any mark of injury over his external genitals.

I have perused the evidence of the prosecutrix independently and have come to this conclusion that it was the accused who committed rape upon Mukesh and in this regard I also do not see any infirmity in the reasons recorded by the learned trial Court in convicting the appellant under Section 376 of the Indian Penal Code.

Faced with this difficulty, the learned counsel for the appellant submitted that at the most it can be said that the appellant committed an offence under section 376 read with Section 511 of the Indian Penal Code. To corroborate this argument the counsel for the appellant again relied upon the statement of the doctor S.M. Bagla who deposed that he did not find any injury on the external genital of the accused. I have already rejected this part of the argument as there is enough evidence on the record to show that the accused penetrated his male organ inside the vagina of the prosecutrix and that was enough for the purpose of constituting an offence under Section 375 IPC punishable under Section 376 IPC.

In the light of above I hold that the prosecution has been able to prove its charge against the accusedappellant by leading cogent, reliable and satisfactory evidence.

It was then submitted by the learned counsel for the appellant that if none of his contentions prevails upon the mind of the court, his client may be visited with leniency in the matter of sentence as the appellant was a young boy and he might have persuaded by passion to commit this offence. I do not agree with the argument raised by the learned counsel. Such like offences whether they are committed under Section 363, 366 or 376 IPC, are the offence not only against the society but also against the weaker section of the society itself. These offences rather personally insult to the weaker portion of the society and they carry a stigma on their personality for all times to come. Such acts cannot be and should not be encouraged and have to be curbed with strong hands.

In this view of the matter, I do not want to show any leniency to the appellant in the matter of sentence. The sentence imposed by the learned trial Court upon the appellant cannot be said to be harsh or excessive.

Resultantly, I do not see any merit in this appeal and dismiss the same.