Ramesh vs State of Haryana

R.L. Anand, J. (Oral)

By this judgment I dispose of Criminal Appeal No. 392SB of 1998 Ramesh v. State of Haryana and Criminal Revision No. 882 of 1998 Smt. Lakshna v. State of Haryana and another as the appeal and revision have arisen from the judgment dated 30.4.1998 and order dated 2.5.1998 passed by the court of Additional Sessions Judge, Kaithal, who convicted the appellant Ramesh son of Ram Chander under Sections 376 and 506 I.P.C. and sentenced him to undergo R.I. for a period of seven years and to pay a fine of Rs. 2,000/; in default of payment of fine to further undergo R.I. for one year, under Section 376 I.P.C. and to undergo R.I. for a period of one year under Section 506 I.P.C. The trial court further held that both the sentences shall run concurrently.

As per the prosecution story, on 14.3.1995 at about 1.00 p.m. prosecutrix Smt. Lakshna wife of Krishna Kumar along with her motherinlaw Smt. Khajani Devi and fatherinlaw Shri Hawa Singh came to police station Sadar Kaithal and lodged report with SI Hukam Chand alleging forcible sexual intercourse with her by the appellant. It was stated by the prosecutrix that she was resident of village Jakholi and was married with Krishan Kumar son of Hawa Singh about nine years ago. She had a son aged 11/2 years. The fields of her fatherinlaw fall towards eastern side of the village beyond the fields of Ramesh appellant. On the date of occurrence i.e. 14.3.1995 at about noon time she along with her brotherinlaw Vinod aged about 9/10 years took meals of her husband to the fields. Her husband was irrigating the fields. She was returning to her house along with her brotherinlaw (Devar) Vinod and when they reached near the fields of Ramesh appellant, she found the appellant standing at Kacha Rasta. It was about 1.15 p.m. Ramesh appellant came closer to her and stopped her and then with bad intention he embraced and lifted her and put her in the nearby wheat crop field. He broke open the string of her Salwar. She tried to free herself and in that process her bangles were also broken. Despite her protest and efforts to get herself freed, Ramesh succeeded in putting his penis in her vagina. She kept on raising alarm. Her brotherinlaw also raised alarm but none came to their rescue as nobody was present nearby. Then appellant left the place of occurrence after committing forcibly sexual intercourse with her and while leaving he threatened her and her brotherinlaw not to disclose the fact to any one, failing which he would kill both of them. She narrated the entire occurrence to her motherinlaw Khajani Devi and fatherinlaw Hawa Singh on her return to the house. Panchayat was convened to settle the dispute and later on she had come to the police station in order to lodge the report.

The statement of the prosecutrix is Ex.PH which was read over and explained to her and she signed the same in token of correctness. SI Hukam Chand deputed Laxmi Narain, ASI to get the prosecutrix medicolegally examined, vide application Ex.PA. On 15.3.1995 he went to the spot and prepared rough site plan Ex.PL. He also lifted broken pieces of bangles from the spot and a sealed parcel was prepared. SI also recorded the statements of Vinod Kumar, Khajani Devi, Mohinder Singh, Shamsher Singh and Hawa Singh under Section 161 Cr.P.C. ASI Laxmi Narain also reached the spot and handed over one sealed parcel containing Salwar of the prosecutrix, copy of M.L.R. and another parcel containing slides, sample seal and forwarding letter to SI Hukam Chand, which were taken into possession vide memo Ex.PK.

On 16.3.1995 Ajmer Singh, ExSarpanch of the village produced the appellant before SI Hukam Chand at bus stand Jakholi. He was arrested and was medico legally examined from Civil Hospital, Kaithal. The doctor took into possession the underwear of the appellant and a sealed parcel of the same was prepared. Finally on receipt of report of Chemical Examiner, appellant was challaned in the court of Area Magistrate under sections 376 and 506 I.P.C. The committing Magistrate supplied the copies of the documents to the appellant and vide commitment order dated 17.8.1995 committed the appellant to the court of Session.

Vide orders dated 15.9.1995 the appellant was chargesheeted under Sections 376 and 506 I.P.C. The charges were read over and explained to the appellant to which he pleaded not guilty and claimed a trial.

In order to prove the charges, the prosecution examined Dr. Sharda Dabas PW1, who medicolegally examined the prosecutrix and stated that at the time of examination of the prosecutrix no mark of injury on face, breast, buttock, abdomen, thigh or vulva and back was seen. It has also been stated by the doctor that hymen was absent and the vagina of the prosecutrix admitted two fingers easily. There was no blood or leaking from `OS''. Further the doctor stated that there was no mark of injury in the vagina. Lastly, it was stated by this doctor that in her opinion the possibility of rape could not be ruled out. She has proved Ex.PB, the correct carbon copy of the M.L.R. Dr. S.K. Jain, PW2, medicolegally examined the appellant and gave the opinion that he was fit to perform sexual intercourse. PW3 is Constable Mahavir, who gave his statement on affidavit Ex.PE. HC Dharam Pal appeared as PW4. He also tendered his statement on affidavit Ex.PF. PW5 Bhagwant Kumar, revenue Patwari, prepared scaled site plan Ex.PG on 24.4.1995 with correct marginal notes. PW6 HC Durga Dass took the special report of this case for delivery to the Area Magistrate on 14.3.1995. Prosecutrix Smt. Lakshna Devi appeared as PW7 and stated that on the date of occurrence she had gone to her field along with her brotherinlaw Vinod. She had taken the meals of her husband Krishan to the field, who was watering the fields on that day. Further it has come in the statement of Smt. Lakshna Devi that the age of her brotherinlaw was 10/12 years at that time. Narrating the occurrence, the prosecutrix deposed on oath that at about 1.00 p.m. when she was returning to her house along with her Devar and she reached near the fields of appellant, she saw the appellant present there. The appellant embraced her and then put her in the nearby wheat field. He broke open the string of her Salwar and then raped her. After committing forcible sexual intercourse with her, the appellant threatened her not to disclose the fact to any person, failing which he would teach a lesson to her on the next day during similar visit to the fields. She and her brotherinlaw Vinod had raised hue and cry but none was present nearby to come to their rescue. It was further been stated by the prosecutrix that she narrated the entire incident to her motherinlaw Khajani Devi, who narrated the same to her fatherinlaw Hawa Singh. A panchayat was convened on the same day but neither the appellant nor his father attended the panchayat and finally she came to Kaithal at about 9.00 p.m. in order to lodge the report. Further it has been testified by the prosecutrix that her glass bangles were broken at the time when the appellant was committing rape with her. She also pointed out the place of occurrence to the police which had taken into possession the pieces of bangles from the place of occurrence vide recovery memo Ex.PJ. Vinod, Devar of the prosecutrix, appeared as PW8 and he stated as follows :

"He embraced my Bhabhi and put her in the adjoining wheat crop field. He forcibly broke open the string of her salwar and then forcibly committed sexual intercourse with her. We raised alarm. Then we came to our house. Accused Ramesh remained there. Accused had threatened us that if we narrated the incident to others in the family we will be killed by him. The incident was narrated by my Bhabhi Lakshna to her motherinlaw Khajani. At the time when accused was committing sexual intercourse with my Bhabhi forcibly, I had wept and cried."

ASI Laxmi Narain appeared as PW9 and Hukam Chand, Investigating Officer, appeared as PW10. The prosecution also tendered in evidence the report of Chemical Examiner.

On the closure of prosecution evidence, 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. He denied those circumstances and stated as follows :

"I am innocent. I have been falsely implicated at the instance of fatherin law of Lakshna Devi, with whom there has been tussles with my family since long. On 15.3.1995 in the night, I was taken by the police from my house and then I was implicated in this false case."

When called upon to enter his defence, appellant examined Ajmer Singh as DW1, who deposed that he never produced Ramesh appellant before the police nor any panchayat was ever convened in village Jakholi regarding Lakshna and Ramesh. Roshan Lal appeared as DW2 and deposed that Manoj Kumar alias Vinod attended the school on 14.3.1995 as there was a paper of Hindi on that date. His presence was marked in the register of attendance. In the cross examination, he admitted that in the attendance register at Sr. No. 5735 Manoj''s father''s name originally in blue ink is written as Ram Kumar and the same has been crossed in blue ink and Inder Singh has been written in red ink. It has also been admitted by this witness that in the admission register Manoj has been shown as son of Inder Singh without any cutting.

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

The reasons of conviction of the trial Court are given in paras No. 12 to 27 of the judgment and I would like to reproduce those reasons as under in order to appreciate as to whether the evidence of the prosecution has been correctly interpreted by the trial court or not :

"12. Let us first of all refer to the statements of formal witnesses. PW1 Dr. Sharda Dabas was posted as Medical Officer at General Hospital, Kaithal, on 14.3.1995. On that day, an application Ex.PA was moved to her by S.I. Hukam Chand, bearing the endorsement Ex.PA/1 of Dr. Ghanshyam Goel, for conducting the medicolegal examination of prosecutrix Lakshna wife of Krishan Kumar. She further deposed that she medicolegally examined Lakshna Devi, aged 22 years, at 11.35 P.M. on that day and prepared the M.L.R. in this respect, carbon copy of which was proved by her as Ex.PB. She opined that the possibility of rape could not be ruled out. She has also reported pregnancy of five months and five days. She had handed over to police copy of M.L.R., parcel containing Salwar of prosecutrix, two slides, sample seal and sealed envelope containing forwarding letter and sample seal. In her cross examination, PW1 opined that in case of forcible rape with a married and healthy lady against her consent, there is likelihood of injuries on her buttock, elbow and other parts of the body if the surface is hard and rough and she puts resistance.

PW2 Dr. S.K. Jain was posted as Medical Officer at General Hospital, Kaithal, on 16.3.1995. On that day, on the application Ex.PC. moved by S.I. Hukam Singh containing endorsement Ex.PC/1 of Dr. R.C. Mittal, he had medico legally examined Ramesh son of Ram Chander. As per his report Ex.PD he opined that there was nothing suggestive of the fact that Ramesh was incapable of doing intercourse. He found the secondary sex characters fully developed and did not notice any mark of injury on the genitalia and adjoining area.

PW3 C. Mahavir tendered into evidence his affidavit Ex.PE while PW4 HC Dharam Pal tendered into evidence his affidavit Ex.PF. PW5 Bhagwant Kumar, Patwari, Halqa Jakholi, has deposed that on 24.4.1995 he visited the spot on the direction of Tehsildar and had prepared scaled site plan with correct marginal notes. He proved the scaled site plan Ex.PG. He stated in his cross examination that when he visited the spot, he found that wheat crop had already been harvested. PW6 H.C. Durga Dass is again a formal witness who had taken the special report of this case to the Illaqa Magistrate, D.S.P. Kaithal and S.P. Kaithal. During his crossexamination, he stated that the special report was handed over to him by the MHC at 11.30 A.M. and he had delivered the same to the Magistrate at about 12 O''clock.

PW9 Laxmi Narain ASI was posted as A.S.I. in police station Sadar Kaithal at the relevant time. He has deposed that on 14.3.1995, Hukam Chand SI had handed over application Ex.PA to him for medical examination of Smt. Lakshna prosecutrix. He got Lakshna medicolegally examined from General Hospital, Kaithal. He has stated that the doctor had handed over to him sealed parcel containing Salwar, another sealed parcel containing two slides, copy of M.L.R. and forwarding letter etc. On 15.3.1995 he went to village Jakholi and had handed over the parcels, copy of MLR etc. to Hukam Chand, S.I., who took the same into possession vide memo Ex.PK.

Now we come to the statements of most material witnesses, namely Lakshna Devi prosecutrix PW7, her brotherinlaw Vinod PW8 and Investigating Officer Hukam Chand S.I. PW10.

Lakshna Devi PW7 has fully supported the allegations deposing that about three years prior to the date of her examination in the Court, she had gone to the fields alongwith her brotherinlaw with meals of her husband Krishan Kumar, who was irrigating the fields. She deposed on the manner in which the incident took place. She deposed that she was returning from the fields at about 1.00 P.M. alongwith Vinod and when she reached near the fields of Ramesh, via Kacha Path, Ramesh accused met them there. She went on narrating how Ramesh suddenly embraced her and forcibly took her in the nearby wheat field and put her there and then raped her after breaking open the string of her Salwar. She has also spoken on the factum of raising alarm by her and her brotherinlaw Vinod but as none was present nearby, so none came to their rescue on the spot. As per her further statement, after committing forcible sexual intercourse with her, accused Ramesh also threatened her and her brotherinlaw not to disclose this incident to any one failing which he would kill them. She went on narrating that the incident was disclosed by her to her motherinlaw Khajani Devi, who further narrated the same to her fatherinlaw Hawa Singh. Panchayat was also convened on the same day but neither accused Ramesh nor his father attended the panchayat and ultimately the matter was reported to the police. She has further spoken on the factum of her medicolegal examination and that her bangles were broken at the time when she was raped by accused Ramesh. She had also shown the place of occurrence to the police and the police had lifted broken pieces of bangles from the spot.

These facts, stated on oath by the prosecutrix, are fully corroborated by PW8 Vinod, who on the date of examination in the court on 17.3.1998 disclosed his age as 12 years.

PW10 S.I. Hukam Chand, Investigating Officer of the case, has deposed that on investigation, he had found the allegations made by the prosecutrix to be correct. He has spoken on the manner in which he completed the investigation of this case.

First attack of the learned defence counsel is about the doubtful presence of PW8 Vinod on the spot. To prove this fact, he pointed out towards four facts. He referred to Ex.D1, photo copy of attendance register of the school where Vinod used to study in 4th class, at the relevant time, in which at Serial No. 11 Manoj son of Inder Singh has been shown to be present in the school on 14.3.1995. This document has been proved by DW2 Roshan Lal Headmaster of Government Primary School, Jakholi. He next pointed out that the prosecutrix has stated that the accused was wearing shirt and pyjama (trousers) at that time while Vinod PW8 has contradicted her stating that accused was wearing shirt and pants at that time. Further, it has been brought to the notice by the learned defence counsel that prosecutrix as PW7 has deposed that accused had taken out his underwear and pyjama (trousers) and had kept the same on one side while Vinod PW8 deposed that accused had lowered his pants and underwear. Further as PW7 prosecutrix has stated that accused had taken out her Salwar and underwear from one leg while Vinod has again contradicted her and deposed that accused had lowered down the Salwar of his Bhabhi and had not taken out the same from her leg. Pointing out towards these contradictions and facts, particularly Ex.D1, it is vehemently argued by the learned counsel for accused that in fact Vinod never accompanied his sisterinlaw to the fields on 14.3.1995 as he was present in the school on that day and that he was introduced later on by the prosecution to corroborate the version of the prosecution. However, as would be evident from my subsequent observations, I do not find any substance in this contention of the learned defence counsel and I am of the view that Vinod is an eye witness of the incident.

As regards to the discrepancies pointed out above, regarding taking off Salwar and underwear from one leg of the prosecutrix or lowering down of salwar and underwear of the prosecutrix and pants and underwear of accused, it is suffice to say that the alleged discrepancies are not material in nature and do not go to the root of the case, so as to make the entire prosecution version doubtful. There is no discrepancy on the material aspect of the case. Vinod was only 910 years of age at that time. The fact that he is a truthful witness stands fully proved from the way he stood the test of lengthy and searching crossexamination.

It is well said that a child witness is a dangerous witness. If he is a truthful witness, then it is very difficult to dislodge him from the facts deposed by him. In that eventuality, he can prove fatal to accused. In the reverse case, if a child witness is tutored one and is introduced just to fortify the prosecution case, he can easily be shaken in his crossexamination and in that eventuality, he is fatal to the prosecution case. Thus, a child witness normally sticks to the truth because of his tender age.

Now we come to the evidentiary value of Ex.D1. It is clear with naked eyes and has also been admitted by DW2 that at serial No. 11 of Ex.D1 one Manoj has been shown as son of Ram Kumar, originally. After making cutting, Manoj was subsequently shown as son of Inder Singh. It has never been the case of accused that PW8 Vinod is also known as Manoj. Further perusal of Ex.D1 shows that originally said Manoj was shown to be absent from school on 13th, 14th and 15th March, 1995 and subsequently by introducing interpolations, his absence was converted into presence. Accused has not been successful by explaining all these cuttings and interpolations and in such circumstances, it cannot be said that presence of Vinod at the time of incident was doubtful. Hence, this contention of learned defence counsel does not carry conviction.

Next, pointing out towards Ex.D2, copy of judgment dated 12.10.1976 and Ex.D3 copy of judgment dated 6.8.82, it is contended by learned counsel for the accused that conduct of Hawa Singh was such that he could go to the extent of involving the accused in false case. Ex.D3 is regarding acquittal of Hawa Singh and others of the charge under Section 376 IPC. Similarly, Ex.D2 relates to the judgment of acquittal regarding one Bira alias Raghbir in a case under section 376 IPC. I do not find any reason to doubt the present case on the basis of Ex.D2 and Ex.D3.

Next contention of the learned defence counsel is regarding the delay in lodging the F.I.R. The occurrence took place on 14.3.1995 at 1.30 P.M. and the matter was reported to the police at 9.30 P.M. on the same day. He has referred to supplementary statements recorded by S.I. on the factum of panchayat contending that such a fact was introduced later on on the advice of Deputy District Attorney, just to explain the delay in lodging the F.I.R. Even if we presume that no efforts were made to convene a panchayat, then also the delay in the instant case is not such which can make the prosecution case doubtful. It is the settled law that Courts cannot overlook the fact that in sexual offences, delay in lodging the F.I.R. can be due to variety of reasons, particularly the reluctance of the prosecutrix or her family members to go to the police and complain about the incident, which concerns the reputation of the prosecutrix and the honour of the family. It is only after giving a cool thought that a complaint of sexual offence is generally lodged. It is also the settled law that in the normal course of human conduct, a lady would not like to give publicity to the traumatic experience which she undergoes and would feel terribly embarrassed in relation to the incident to narrate it to others or police by feeling ashamed and her natural inclination would be to avoid talking out it to any one lest the family name and honour is brought in the controversy. This explains the delay, if any, in lodging the F.I.R. and also the contention of the learned counsel for the accused of not disclosing this incident by the prosecutrix to any one on her way to her house.

As regards to nonexamination of Khajani Devi, Hawa Singh, Mohinder Singh and Shamsher Singh by the prosecution, it is suffice to say that they were not material witnesses and thus their nonexamination does not in any way make the prosecution case doubtful.

Lastly, learned defence counsel has vehemently contended that in case the prosecution succeeds in proving the factum of sexual intercourse by accused Ramesh with prosecutrix Lakshna, then it is a case of consent and since the prosecutrix was more than 16 years of age at the time of alleged act, the accused cannot be held guilty under Section 376 IPC. He referred to the fact that no injury was noticed by Dr. Sharda Dabas PW1 on buttocks, thighs, elbow, private parts, breasts and other parts of the body of prosecutrix at the time of her medicolegal examination. It has further been submitted that surface where the alleged sexual act was committed by the accused was hard and rough and in such circumstances, there was every likelihood of injuries on the buttocks, elbow and other parts of the body of prosecutrix in case of forceful sexual intercourse. Thus, it is submitted that facts and circumstances of the case amply show that prosecutrix was a consenting party and hence the accused is entitled to acquittal, on the basis of benefit of doubt. Learned defence counsel has also referred to authorities cited as A.I.R. 1977 Supreme Court 1307 (Partap Misra and others v. State of Orissa); 1980 P.L.R. 220 (Sardara v. The State of Haryana); 1987(2) R.C.R. 247 (Dharma v. State of Haryana) ; 1989(2) R.C.R. 431 (Harbans Singh and another. v. State of Punjab) ; 1986(1) R.C.R. 475 (Deep Chand v. The State of Haryana) ; and 1989(1) R.C.R. 160 (Ajmer Singh and another v. The State of Haryana) , on the point that where forcible sexual intercourse is alleged to have been committed on a rough and hard surface and no injury or abrasion are found on buttocks or back or on arms of the prosecutrix, then the story of forcible sexual intercourse cannot be believed. It was further held in those authorities that where prosecutrix offered resistance and where the prosecutrix was a married, healthy, well built woman, absence of injury on her body shows consent on her part.

In the instant case, the prosecutrix had put stiff resistance, as per the prosecution version and, thus it is contended by learned defence counsel that absence of injury on her buttocks, thigh, elbow etc. rules out the factum of forcible intercourse with her by the accused. Thus, it is contended that the prosecutrix was a consenting party in the entire episode and hence her statement that she gave a stiff resistance to the forceful sexual intercourse by the accused, does not inspire confidence and resultantly benefit of doubt should be given to the accused and he be acquitted of the charge.

Learned counsel for accused has further referred to the authority cited as 1988(1) R.C.R. 243 (Ranbir Singh v. The State of Haryana) on the point that it is difficult, though not impossible, by an individual to commit rape upon a grown up healthy woman against her will.

I have gone through the cited authorities carefully. The findings recorded by the Hon''ble Courts in the cited authorities cannot be disputed at all and I have kept in mind the ratio laid down in the authorities while deciding this particular contention of the learned defence counsel. The facts and circumstances of this case suggest that the prosecutrix was not a consenting party. The sexual intercourse was forcefully committed in wheat crop field. Investigating Officer PW10 had found the surface to be dry and rough when he visited the site on the next day but prosecutrix Lakshna as PW7 made it clear in her crossexamination that earth was soft in the wheat field. Otherwise also, the wheat crop must have served as a cushion between the prosecutrix and the earth at the time of commission of offence and thus would have saved the prosecutrix from getting injuries on her buttocks, back side etc.

Another fact that prosecutrix was pregnant of five months at that time, should not be lost sight of. In such an advance condition of the pregnancy, prosecutrix could not put stiff and forceful resistance to escape from sexual assault of the accused. Such an act on the part of prosecutrix would have resulted into miscarriage. This fact further explains the absence of injury on the body of prosecutrix.

Another factor is that the accused is tall and well built person having quick reflexes while prosecutrix is not that healthy and hence with this physical variation between the two, it was very easy on the part of accused to overpower the prosecutrix to satiate his sexual lust. Thus, the cumulative effect of all these factors explains the absence of injuries on the body of prosecutrix and hence the prosecution case cannot be disbelieved and thrown out on that count. Hence, I do not find any substance in this contention of the learned counsel for the accused.

Now we come to the charge framed under section 506 IPC. Prosecution case is that after committing rape upon the prosecutrix, accused threatened prosecutrix and her brotherinlaw Vinod not to disclose the incident to any one failing which he would kill them. This fact has been proved by the prosecutrix as PW7 and her brotherinlaw Vinod as PW8, in so many words.

As a result of my foregoing discussion, I come to the conclusion that by adducing cogent and reliable evidence, prosecution has been successful to prove the fact that on 14.3.1995 accused Ramesh had committed forcible sexual intercourse with the prosecutrix Lakshna against her wish and without her consent and that he had also criminally intimidated her and her brotherinlaw not to disclose the incident to any one failing which, they would be done to death. Hence, I hereby decide points No. (1) and (2) in favour of the prosecution and against the accused."

I have heard Mr. H.S. Gill, Senior Advocate on behalf of the appellant, Mr. J.S. Ahlawat, Advocate, on behalf of the State of Haryana, Mr. Ramesh Hooda, Advocate, on behalf of the complainant and with their assistance I have gone through the record of this case.

The principal argument which was raised by the learned counsel for the appellant was that the prosecutrix was a matured girl and she was married. She had given birth to three children. She was 19 years of age. Had the appellant wanted to commit the rape upon the prosecutrix, she would have resisted and in that eventuality there would have been some sort of injury on the person of the prosecutrix as well as on her private parts. The absence of injuries on the person of the prosecutrix and on her private parts is suggestive of the fact that she was a consenting party. The prosecutrix was more than 16 years admittedly and, therefore, the appellant has not committed any offence much less under Section 376 or 506 I.P.C. In support of his contention the learned counsel for the appellant has relied upon several authorities reported as Harbans Singh and another v. State of Punjab, 1989(2) Recent C.R. 431 ; Ajmer Singh and another v. The State of Haryana, 1989(2) Recent C.R. 160 ; Ranbir Singh v. The State of Haryana, 1989(2) Recent C.R. 243 ; Dharma v. State of Haryana, 1987(2) Recent C.R. 247 ; and Kuldeep K. Mahato v. State of Bihar, 1998(3) Recent C.R. (Criminal) 799 , a judgment of the Hon''ble Supreme Court.

I have considered the submissions and have also gone through the observations made by the High Court as well as by the Hon''ble Supreme Court in the light of evidence recorded in this case and I may say at this juncture that every judgment has been given on its own facts and the present case is distinguishable with the cited case law on facts and, therefore, the counsel for the appellant cannot take the benefit of the band of authorities upon which he has relied. The law courts always go by broad human probabilities in assessing whether the prosecutrix was a consenting party or not. In this case the defence which has been taken up by the appellant itself cuts the arguments of the counsel for the appellant. I have already reproduced the plea of the appellant which was taken before the trial court. At the cost of repetition I would like to say that it was the stand of the appellant before the trial court that he has been falsely implicated at the instance of fatherinlaw of the prosecutrix with whom there had been tussles with his family since long. When two families are not on speaking terms, whether it is possible on the part of the prosecutrix to submit herself voluntarily before the boy belonging to the opponent group. The safe answer of this court would be in the negative because of the human psychology prevailing in our families. When two heads of the families are not on speaking terms with each other, the daughterinlaw of one family will also not on speaking terms with the men or women of the family of the opponent. In these circumstances, the prosecutrix would be the last person to give a consent sexual intercourse in favour of the appellant.

Let us examine the defence from the reverse angle. It is the admitted case of the appellant that his family members were not on terms with the fatherinlaw of the prosecutrix. In these circumstances the appellant would always think to teach a lesson upon the woman folk of the family of the opponent so that she may be disgraced. Even the trend of crossexamination to the witnesses is such that an irresistible conclusion can be drawn that both the families were not on terms.

It is true that the charge of rape is very easy to be made and it is hard to be proved and harder to be defended by the party concerned. The law upon rape has been interpreted and considered by the Hon''ble Supreme Court from time to time. In State of Maharashtra v. Chandra Prakash Kewal Chand Jain, 1990(1) R.C.R. (Crl.) 411 : A.I.R. 1990 SC 658 , it was stated by the Hon''ble Supreme Court that Evidence Act nowhere says that the testimony of a prosecutrix cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. Regarding corroboration the Hon''ble Supreme Court stated that "To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood. It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime." The above observations of the Hon''ble Supreme Court were also approved subsequently in the famous case State of Punjab v. Gurmit Singh, 1996(1) R.C.R. (Crl.) 533 : A.I.R. 1996 SC 1393 . The net result of the case law decided by the Hon''ble Supreme Court is that :

Corroboration of the testimony of prosecutrix in rape cases is not required as a rule of law.

Corroboration in such cases is, however, required as a matter of prudence and this rule of prudence has now almost hardened into rule of law.

The rule of prudence which has been hardened into rule of law is that the rule as to corroboration must be present in the mind of Judge and must have been incorporated in the judgment.

If the evidence of the prosecutrix does not suffer from any basic infirmity, and the probabilities factor does not render it unworthy of credence, as a general rule, corroboration should not be insisted upon.

The corroboration of the prosecutrix evidence may be dispensed with where the circumstances of a case make it safe to do so. But the reasons for dispensing with the necessity of such corroboration should be forthcoming in the judgment.

Corroboration should ordinarily be required in the case of woman having attained majority and who is habitual to sexual intercourse as in such cases there is likelihood of her having levelled such an accusation on account of instinct of self preservation or when the probabilities factor is found to be out of time.

The view that though corroboration should ordinarily be required in the case of a grown up woman, it is unnecessary in the case of a child of tender years is not correct. Whether corroboration is unnecessary is a question of fact in every case.

In the present case I have already stated above that the prosecutrix would be the last lady to give a consent for sexual intercourse to the appellant who belongs to the family of the opponent. In all probabilities the appellant took the revenge upon the girl of the opponent. The story of the prosecution is very natural. The prosecutrix was returning to her house in the company of her Devar, who was hardly a boy of ten years. Nobody was present around the field of the appellant. In all probabilities he took the advantage of the situation and took the prosecutrix inside the field. He broke open the string of the salwar of prosecutrix and committed rape upon her. The breaking of the string of salwar and the breaking of the bangles are suggestive of the fact that the prosecutrix was not a consenting party. To expect injuries on the person of the prosecutrix or on her private parts always is also not a correct proposition of law. This argument was put before the Hon''ble Judges that in the absence of corroborative evidence or in the absence of injuries on the person of a victim, the benefit of doubt should be given to the accused. The Hon''ble Judges held in Rafiq v. State of Uttar Pradesh, A.I.R. 1981 Supreme Court 559 as follows :

"Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances. Indeed, from place to place, from age to age, from varying lifestyles and behavioural complexes, inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of rule of law in this area be introduced through a new type of precedential tyranny. The same observation holds good regarding the presence or absence of injuries on the person of the aggressor or the aggressed."

In the present case the appellant was a young boy of 19 years. He was a grown up person. The prosecutrix was a girl of 21 years. It has come in evidence that the prosecutrix was pregnant and she had a pregnancy of five months. In such a situation it will always be the anxiety of the weaker section of the society to protect her incoming child. The prosecutrix would resist at the first attempt and when she finds that her opponent is more powerful, she would easily succumb to his pressure. In this case the prosecutrix did resist but was unsuccessful in getting herself released. In that process her bangles made of glass were broken. Her string was broken. All this suggests that the prosecutrix was not a consenting party. Her Devar was weeping. He was the probable witness. He accompanied his Bhabhi to the fields. The women of the villages invariably take their sistersinlaw or Devars to the fields so that no untoward incident may take place on the way. The prosecutrix took her Devar, a small boy of 10 years, with her. She was confident about her security in the company of her Devar. Had the prosecutrix been a consenting party, she would never submit herself in the presence of her Devar. She would be the last person to invite trouble for herself in the family of her inlaws. On the contrary, the appellant became the victim of lust and revenge perhaps and for that reason he took the prosecutrix inside the field. It is true that no injury was noticed on the back of the prosecutrix but it is difficult to presume in the given circumstances that the prosecutrix was a consenting party to the affair. Her statement is corroborated by the statement of her Devar. Besides that, it was the normal conduct on the part of the prosecutrix when she narrated the matter to her motherinlaw, who in turn narrated the matter to her husband.

In Kundula Bala Subrahmanyam and another v. State of Andhra Pradesh, 1993 CAR 120 (SC), the Hon''ble Supreme Court held that "it is expected that the Courts would deal with such cases in a more realistic manner and not allow the criminals to escape on account of procedural technicalities or insignificant lacunas in the evidence as otherwise the criminals would receive encouragement and the victims of crime would be totally discouraged by the crime going unpunished. The Courts are expected to be sensitive in cases involving crime against women." In Gurmit Singh''s case, 1996(1) R.C.R. (Crl.) 533 (supra) the Hon''ble Supreme Court has given guidelines how to treat the evidence of the prosecutrix. As I understand, the rule of corroboration is not of universal application. If the testimony of the prosecutrix is believable and if it inspires confidence in the mind of the court, the conviction can be based on the uncorroborated statement of the prosecutrix because her statement has to be read like that of an injured witness. The law Courts cannot readily jump to a conclusion that since the prosecutrix is above 16 years, or she is a married woman, or she has given birth to two or three children, therefore the prosecutrix must be a consenting party. The Hon''ble Supreme Court has even gone to the extent in State of Maharashtra v. Madhukar Narayan Mardikar, 1991(1) R.C.R. (Crl.) 579 : A.I.R. 1991 SC 207 , that even a woman of easy virtue is entitled to privacy and no one can invade her privacy as and when one likes. So also it is not open to any and every person to violate her person as and when he wishes. She is entitled to protect her person if there is an attempt to violate it against her wish. She is equally entitled to the protection of law. Therefore, merely because she is a woman of easy virtue, her evidence cannot be thrown overboard. At the most the officer called upon to evaluate her evidence would be required to administer caution up to himself before accepting her evidence.

In the present case I have examined the statements of the prosecutrix and her Devar besides the medical evidence. Initially resistance was given by the prosecutrix and when she found herself in a state of helplessness she could not do much resistance especially for the reason that she was carrying a child of five months in her womb. Any further resistance on the part of the prosecutrix could invite more trouble for her because the psychology of a criminal at the spur of the moment is difficult to understand. The appellant could strangulate the prosecutrix. He could even give fist blows in her abdomen resulting in the termination of pregnancy.

The material point for determination in this appeal is whether the prosecutrix was a consenting party and she could voluntarily submit herself before the appellant in the past scenario when two families are not on good terms. Whether there is a probability that she would submit herself with consent in the presence of her Devar. It was submitted by the learned counsel for the appellant that the conduct of the Devar of the prosecutrix namely Vinod also does not inspire confidence when he did not make any effort to cause any injury upon the appellant. This argument is not again acceptable to this court. What a poor boy of 10 years will be able to do in the given circumstances. He cannot bring the sky upon the earth. It all depends upon the courage one takes at the spur of the moment. The boy started weeping. Both the witnesses have unanimously deposed that there was nobody in the nearby fields. In all probabilities perhaps for that reason the appellant took the advantage of the situation.

PW1 Dr. Sharda Dabas has also deposed that in her opinion the possibility of rape could not be ruled out. The report of the F.S.L., Madhuban further corroborates that sexual intercourse has been committed upon the prosecutrix. Human semen was detected on the Salwar of the prosecutrix. It was also detected on the slides prepared by the doctor and also upon the Kachha of the appellant. The counsel for the appellant submitted that the Kachha of the prosecutrix has not been sent to the office of Director, Forensic Science Laboratory and therefore the benefit should go to the appellant. I am not convinced with this argument even. It is the statement of the doctor that the appellant was fit to perform sexual intercourse. Human semen was detected on the Kachha of the appellant. All these factors go against the appellant.

In this view of the matter, I do not see any infirmity in the impugned judgment passed by the learned trial Court. Even the sentence which has been awarded to the appellant cannot be held to be excessive. Finally, I do not see any merit in this appeal and dismiss the same. The revision is also dismissed because there is no evidence on the record to indicate that the appellant knew that the victim was carrying a pregnancy of five months. It is not the case of the prosecution that the prosecutrix brought to the notice of the appellant not to cause any harm to her as she was pregnant. The appellant was a young boy of 19 years at the time of commission of offence. He may have committed the offence by becoming a victim of impulse. Therefore, I also do not want to enhance the sentence of the appellant.