Mangesh Kumar vs State of Punjab

R.L. Anand, J. (Oral)

This is a criminal appeal and has been directed against the judgment and order dated 25.9.1997 passed by the Court of Addl. Sessions Judge, Gurdaspur, who convicted the appellant under Section 376 of the Indian Penal Code and sentenced him to undergo R.I. for a period of 7 years and to pay a fine of Rs. 1,000/. In default of payment of fine, the appellant was directed to undergo further R.I. for two months.

The brief facts of the case are that on 16.2.1996 at about 10.30/11.00 a.m. Nirmala Devi daughter of Babu Ram had gone to the fields in order to respond the call of nature by the side of canal. After attending the call of nature she was returning to her house but was waylaid by the appellant, who threw the prosecutrix on the ground. The prosecutrix struggled to save her but the appellant torn her Salwar and committed rape upon her, as a result of which the vagina of the prosecutrix started bleeding and her Salwar also became blood stained. The prosecutrix raised alarm which attracted Dev Raj son of Charan Das of Madhopur and on seeing him, appellant ran away from the scene of occurrence. Dev Raj then took the prosecutrix to her house, where she narrated the entire version to her parents. Nirmala Devi was taken to Civil Hospital, Madhopur, but the doctor was not found available there till evening and thereafter they went to the police station to lodge the report. The police party headed by Shri Karamjit Singh, SHO, Police Station Sujanpur was present at bridge No. 4, Sujanpur, where Nirmala Devi accompanied by her parents met him and the Thanedar recorded her statement Ex.PC. The statement was read over and explained to Nirmala Devi, who thumb marked the same in token of its correctness. The Investigating Officer made endorsement Ex.PC/1 and the statement Ex.PC was sent to the police station on the basis of which formal F.I.R Ex.PC/2 was recorded by ASI Jaswinder Singh. Thereafter the police party accompanied by the complaint and other witnesses reached the place of occurrence. The Investigating Officer prepared rough site plan Ex.PD. He also drafted application Ex.PE for the medical examination of the prosecutrix and she was sent to the hospital for her medical examination along with ASI Manjit Singh. ASI Manjit Singh took the prosecutrix to Civil Hospital, Pathankot, but the doctor again was not available there and as such her medical examination was got conducted on the next day. The doctor gave one parcel containing clothes of Nirmala Devi and one parcel containing swabs along with one envelope which was handed over by ASI Manjit Singh to Shri Karamjit Singh, SHO, who took them into possession vide recovery memo Ex.PF. On 20.2.1996, the appellant was arrested from his house and he was medicolegally examined vide report Ex.PA and was found fit to perform sexual intercourse. The clothes and swabs of the victim were sent to the office of the Chemical Examiner, who found semen and blood on the clothes.

On completion of the investigation of the case, the appellant was challaned in the Court of Illaqa Magistrate, who supplied the copies of the documents to the appellant and vide commitment order dated 17.5.1996 committed the appellant to the Court of Session.

Vide orders dated 12.6.1996, the learned trial Court framed a specific charge under Section 376 of the Indian Penal Code against the appellant on the allegations that on 16.2.1996 in the area of village Madhopur Koolian, the appellant committed rape upon Nirmala Devi and thereby committed the offence. The charge was read over and explained to the appellant to which he pleaded not guilty and claimed a trial.

In order to prove the charge, the prosecution examined lady Dr. Nancy Verma as PW1, who examined the prosecutrix on 17.2.1996 and stated in the following terms :

"Labia majora and labia minora well developed. Hymen torn with irregular margins, bleeds on touch, tags of hymen fractured present. Pubic hair metted with blood.

Clothes : Torn salwar stained with blood on P/V. Varinal orifice. Admits one finger."

Nirmala appeared as PW2 and the relevant portion of her statement can be described in the following term :

"He (appellant) caught hold of me and made me to lie on the ground. He started fighting me. I requested him to leave me but he did not leave me. Thereafter he had torn my Salwar and committed rape upon me and my vagina started bleeding. My clothes were got blood stained. I raised hue and cry but nobody heard it. However, one Dev Raj reached there and he had seen the accused committing rape upon me. The abused ran away and I narrated the entire occurrence to Dev Raj. Dev Raj took me to my house where I narrated the occurrence to my mother and father."

Dev Raj appeared as PW3 and stated that he saw the accused running from the place of occurrence and he also reached near the place where the occurrence took place. It is also stated by Dev Raj that Nirmala was bleeding as per vagina and he took the prosecutrix to her house. It has also been stated by way of res gesta both the prosecutrix as well as by Dev Raj that Nirmala Devi narrated the entire occurrence to Dev Raj. Smt. Rano, mother of the prosecutrix, appeared as PW4 and has stated about the age of her daughter. According to this witness the age of the prosecutrix was 16 years. Further it has been stated by Smt. Rano in the following terms. :

"About an year and a month back at about 10.00 a.m. Nirmala had gone out to attend the call of nature and returned about 3/4 hour. Nirmala was weeping and I was told by Dev Raj that rape had been committed on her by Mangesh Kumar accused. First of all I was told by Dev Raj about the occurrence and thereafter the occurrence was narrated by Nirmala."

Investigating Officer Karamjit Singh, Inspector appeared as PW5 and the other Investigating Officer Manjit Singh, ASI appeared as PW6. HC Rameshwar Datt is a formal witness as his statement was recorded as PW7. The prosecution also tendered into evidence affidavit Ex.PH of Constable Kalwant Rai besides the report of the Chemical Examiner Ex.PB vide which it has been certified by the Chemical Examiner that semen was found on the Salwar and Kameej of the prosecutrix.

The statement of the appellant was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to him. The appellant denied those circumstances and stated that he was innocent. In defence he examined Santokh as DW1.

The learned trial Court relied the story of the prosecution and rejected the defence version. The trial court convicted and sentenced the appellant in the manner as stated above and aggrieved by his conviction and sentence, the present appeal.

It may be stated that earlier the appeal was filed by the appellant through jail but later on Shri Akshay Kumar, Advocate has given the appearance on behalf of the appellant. I am disposing of this appeal with the assistance rendered by Shri Akshay Kumar, Advocate and Shri Randhir Singh, Deputy Advocate General, Punjab and with their assistance I have also gone through the record of this case.

The learned counsel for the appellant submitted that the present is a case in which Smt. Nirmala Devi prosecutrix was a consenting party to the rape allegedly committed by the present appellant. In support of his contention, the learned cousel for the appellant submitted that it is not proved on the record beyond reasonable doubt that Nirmala Devi was a girl of less than 16 years. Unfolding his submissions, the counsel submitted that the prosecution did not get the prosecutrix examined from the radioliogist for the ossification test in spite of the advice given by Dr. Nancy Verma. I have gone thorough the submission raised by the learned counsel for the appellant and I am of the view that it is totally devoid of any merit. It is true that ossification test has not been conducted but getting the ossification test is not necessary on the part of the prosecution. Here the case of the prosecution is that girl was 16 years of age. Even if the doctor has opined that Nirmala Devi was 16 years of age on the date of rape even in that eventuality the defence could have argued that there is a margin of error on the part of the radiologist. We have to see firstly the direct evidence in this regard. When Nirmala Devi was examined by the doctor, she gave her age as 16 years. At the trial also she gave her age as 15/16 years. The mother of the prosecutrix Smt. Rano categorically stated that her daughter is aged about 16 years. Be that as it may and by giving all concessions to the appellant, I will decide this case on the premises that Nirmala Devi was a girl of more than 16 years of age on the date of the commisison of the offence. The point for determination in that eventuality would be whether she is a consenting party to the rape. Though an effort was made by the learned counsel for the appellant to convince this Court that Nirmala was a consenting party but I am not in a position to subscribe to the argument of the learned counsel for the appellant for the reason that the witness may depose falsehood but the circumstances will not. When a lady gives herself by way of consent or will, in that eventuality her clothes are not torn. In the present case when Nirmala Devi was examined by the doctor, the latter found the Salwar of the former torn. It has also been stated by the prosecutrix that when the appellant tried to commit rape in that process her Salwar was torn. This indicates the sign of violence on the part of the appellant and this further establishes that Nirmala was not a consenting party to the sexual intercourse. When a rape is committed upon a woman against her will or consent it will become a rape within the meaning of Section 375 of the Indian Penal Code. There is one more additional factor which goes against the appellant which is the evidence to res gesta. According to the prosecution Dev Raj PW reached at the spot. At the first instance without any wastage of time Nirmala Devi narrated the entire occurrence to him clearly implicating the present appellant. She goes to the house of her parents and there also she narrates the entire occurrence to her parents. Her mother has also stated on oath that on the same evening the occurrence was told to her by her daughter. In State of Punjab v. Gurmit Singh & Ors., 1996(1) RCR (Crl.) 533 (SC) : AIR 1996 S.C. 1393 it has been held as follows :

"The testimony of victim in cases of sexual offences 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 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. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion ? The Court while appreciating the evidence of a prosecutrix may look for some assurance of her statement of satisfy its judicial conscience, since she is a witness, who is interested in the outcome of the charge levelled by her, but there is no requirement of law to insist upon corroboration of her statement to base conviction of an accused. The evidence of a victim of sexual assault stands almost at par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is not found to be self inflicted, is considered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of sexual offence is entitled to a great weight, absence of corroboration notwithstanding."

The Hon''ble Supreme Court in para No. 20 of the judgment has further held as follows :

"Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating women''s rights in all spheres, we show little or no concern for her honour. It is a sad reflect (reflection ?) on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist not only violates the victim''s privacy and personal integrity, but inevitably causes serious physiological as well as physical harm in the process. Rape is not merely a physical assault; it is often destructive of the whole personality of the victim. A murderer destroys the physical body of the victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations."

The Hon''ble Supreme Court in State of Andhra Pradesh v. Gangula Satya Murthy, AIR 1997 S.C. 1588 was pleased to hold in para No. 27 of the judgment as follows :

"27. Before parting with the case we would like to point out that the Courts are expected to show great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the witnesses, which are not of a fatal nature to throw out allegations of rape. This is all the more important because of late crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating woman''s rights in all spheres, we show little or no concern for her honour. It is a sad reflection and we must emphasise that the Courts must deal with rape cases in particular with utmost sensitivity and appreciate the evidence in the totality of the background of the entire case and not in isolation. One of us (Dr. Anand, J.) has observed in State of Punjab v. Gurmit Singh, 1996(1) RCR (Crl.) 533 : 1996(2) SCC 384 : 1996 AIR SCW 998, (para 20) thus :

"The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity."

If the ratio of the Hon''ble Supreme Court is applied to the facts in hand, there is no difficulty on my part to hold that the present appellant committed rape upon Nirmala Devi whose testimony is not only corroborated by the statement of Dev Raj, her mother Smt. Rano but also from the medical evidence. The doctor has clearly stated while examining the prosecution that only one finger admitted her vagina clearly indicating that victim was not subject to sexual intercourse frequently. The presence of blood on her clothes and confirmation of semen on the clothes of the prosecutrix further strengthens the case of the prosecution. The trial Court has not committed any illegality or irregularity in convicting and sentencing the appellant. Even the sentence which has been awarded to the appellant by the trial Court is also not excessive. Therefore, I do not see any merit in this appeal and dismiss the same.