Rakha Ram vs State of Haryana

V.S. Aggarwal, J.

This is an appeal filed by Rakha Ram (hereinafter described as the appellant), directed against the judgment and the order of sentence passed by the learned Additional Sessions Judge, Ambala dated 14th December, 1992. By virtue of the impugned judgment and the order of sentence, the learned trial Court held the appellant guilty of the offence punishable under Section 376 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 200/. In the case of default of fine, he was to undergo further rigorous imprisonment for a period of three months.

In brief, the facts leading to the filing of the appeal are that as per the prosecution on 22nd of April, 1992, Kamlesh daughter of Jarnail Singh was present in her house in village Kishangarh. In the morning, the appellant came to the house of the prosecutrix. He is the brother of the grandmother of the prosecutrix Kamlesh. The appellant promised to get Kamlesh prosecutrix ''Kulfi'' with the sale proceeds the cardboards and bottles which were to be collected. They went at the back of the premises of the Training Centre of ITBP. For some time, cardboards were collected. The appellant asked the prosecutrix to go a little ahead for collecting empty bottles and took her to a nearby jungle. There in, he broke the string of the salwar of the prosecutrix and raped her. On hearing her cries, Baljinder and Pala were attracted and witnessed the heinous crime.

In seeing Baljinder and Pala, the appellant ran away. Her salwar was badly smeared with blood. She was brought to her house where she narrated the entire incident to her mother in the presence of Balinder and Pala.

The law was set into motion and report was made to the police by mother of the prosecutrix. The appellant was arrested on 24th April, 1992. The prosecutrix and the appellant were medicolegally examined.

The learned trial Court on appraisal of the evidence concluded that the prosecution has successfully proved the guilt of the appellant beyond all shadow of doubt. The defence of the appellant and his pleas were repelled. With these findings, the impugned judgment and the order of sentence already referred to above, were passed.

I have heard the appellants learned counsel as well as the Assistant Advocate General, appearing on behalf of the State of Haryana.

Kamlesh PW3 is the prosecutrix in this case. The learned trial Court had questioned her and had made a note that from the answers given by her, she appears to be a competent witness. It was in this background that her statement had been recorded. She supported the prosecution version and in her own words, the statement as recorded by the trial Court reads as under :

"At about 8.00 A.M. in the morning the accused Rakha Ram came to our house. He took me away from the house under the pretext of collecting cardboard and empty bottles etc. He also promised me to get ''Kulfee'' with the sale proceed of bottles and cardboards. He took me at the back of the premises of Training Centre of ITBP (expressed to be CRPF by the witness). We collected cardboard from that place for some time. Then the accused asked me to go a little ahead for collecting empty bottles. The accused then took me in a jungle where noneelse was present. The accused then made me sit, broke the string of my Salwar and then started putting his fingers in my vagina. Thereafter, he made me lay on the ground and inserted his penis into my vagina. I started crying."

The crossexamination conducted did not yield in shaking her testimony.

The learned counsel for the appellant at the outset asserted that the prosecutrix has not been proved to be 11 years of age as is the prosecution case. He alleged that she was not subjected to any ossification test nor is there any school certificate or Birth Certificate to establish that she was 11 years of age or in any case below 16 years of age at the relevant time.

On a closer scrutiny, this argument falls flat on the ground. The prosecutrix has described her age as 11 years and strangely enough, there was no crossexamination conducted to challenge her age and in this regard Smt. Jagiro mother of the prosecutrix Kamlesh appeared as a witness and described her age as 27 years. She has stated that the prosecutrix Kamlesh is about 11 years of age. Once again, there was no crossexamination of this witness challenging the age of Kamlesh. In other words, during the course of trial, it had been accepted that the prosecutrix was 11 years of age and at this stage, thus, to assert to the contrary will be, in deed, not of any avail to the appellant.

It is true that the prosecutrix is a child. In the case of Abbas Ali v. Emperor, AIR 1933 Lahore 667, the observations of Dr. Kenny Downing Professor as Laws of England in outline of Criminal Law page 386 were relied. He says :

"Children are a most untrustworthy class of witnesses for when of a tender age as our common experience teaches us, they often mistake dreams for reality, repeat glibly as if their own knowledge what they have heard from others....................

It was further held by their Lordship of Lahore High Court :

"When considering the evidence of child witnesses these observations should not be lost sight of although each case would depend upon its particular own facts & circumstances".

Due care and caution necessary has to be adopted, but perusal of the statement of Kamlesh PW3 does not indicate that she could be compared with any other child witness taking a note of the above. The statement is consistent and the answers forthcoming were basically to the point. Corroboration if forthcoming to her statement firstly from the testimony of Pala PW6. He had heard the cries of the prosecutrix when he was with Baljinder and were grazing the cattle. They rushed towards the spot and saw the appellant committing rape on Kamlesh. He deposed that on seeing them, the appellant ran away. There is no reason to discard his statement because he has no axe to grind by deposing falsely against the appellant. Besides that, Dr. (Mrs.) Rekha, Medical Officer PW1 had examined the prosecutrix on 22nd April, 1992 at about 11.40 A.M. She had found as under :

"Bleeding was present (fresh) at entroitus and vulva. Moderate in quantity. Tear was present on posterior aspect of vagina approximately 21/2 cm, involving small portion of skin also at muco cutaneous junction. There was no other injury".

Lacuna left was filled up during cross examination. Dr. (Mrs.) Rekha explained that she had not mentioned in her report that bleeding was due to sexual intercourse but the medical examination is suggestive of intercourse. In addition to that, Smt. Jagiro PW4 the mother of the prosecutrix stepped into the witness box and deposed that Kamlesh the proseculrix told her of the appellant having raped her and that he had taken her from the house for collecting cardboards and empty bottles. The statement so made by the prosecutrix shortly after the incident to her mother is relevant and all this evidence lends corroboration to the statement of the prosecutrix, to which there is no ground to discredit or ignore. In fact, it establishes that Kamlesh prosecutrix was raped by the appellant. A feeble attempt was made to show that there was enmity of Smt. Jagiro with the appellant because of strained relations with the grand mother of the prosecutrix Kamlesh. The said plea again has to be stated to be rejected for the simple reasons that so far as the appellant is concerned, none is on inimical terms with him. No useful purpose would have been served by implicating him falsely.

As regards the argument that Kamlesh the prosecutrix was a consenting party, no further probing is required because it has already been held that she was 11 years of age. Though, her consent is not proved on the record, but even if for sake of argument, if it be taken that she had accompanied the appellant of her own, her consent is immaterial because she was below 16 years of age.

Confronting with that position, it was urged that the appellant is about 76 years'' of age. He was not physically fit to commit such a heinous offence. However, the evidence on record shows otherwise. The appellant was examined by Dr. S.K. Gupta PW2 and he had opined that there was no abnormality noticed in the appellant to make him unfit for sexual intercourse. His testimony remained unshaken. Besides that at the time when the charge was framed, the appellant had described his age not as 70 but as 55 years. An idea floated about his being 70 years of age is clearly an afterthought and not established. There is no ground thus to believe and act on the plea floated by the appellant.

In any case, it was urged that the sentence awarded is excessive and a lenient view should be taken. The facts can be repeated. The appellant is the distinct relation of the prosecutrix and he raped 11 years old girl. It is an inhuman act on the young girl. The appellant is a hypersex fanatic and no leniency can be shown to such an accused/appellant. There is no ground to interfere in the order of sentence passed by the learned trial Court.

With these reasons, the appeal being without merit fails and the same is dismissed.