Sansar Chand vs State of Himachal Pradesh

Bhawani Singh, J.—This appeal, by the Appellant, is in Sessions Case No. 5 of 1987, Sessions Trial No. 4 of 1987, decided on 24-10-1987, by Additional Sessions Judge (I), Kangra Division, for an offence u/s 376 of the Indian Penal Code and the Appellant has assailed his conviction and sentence for five years rigorous imprisonment and a fine of Rs. 2,000/-

The facts, in brief, are that on the night of 23-1-1987, Kumari Indu (10) (hereinafter referred to as "the prosecutrix"), had gone to attend the ''jagrata'' along with her girl friends Indira, Sudha and Madhu. This function was being held in the house of one Guddu in village Sullah. It is alleged that the Appellant was also there along with his wife Shrimati Kanta Devi. At night the prosecutor felt sleepy and the Appellant asked her to go to his house and sleep there.. Thus, the prosecutor, accompanied by the Appellant and his wife, came to the house and went to sleep in "Bohr" in the house. There, the accused-Appellant slept in between his wife and the prosecutor after coming to the place in the night as he had gone back to the ''jagrata'' leaving these persons, namely, his wife and the prosecutor in the house. During night, it is alleged, that the prosecutor woke up due to pain in her vagina and found that the Appellant was lying on her and was doing "burakam" (sexual intercourse). The prosecutor cried out of pain but the Appellant silently asked her to keep quiet. He tied the string of her, Shalwar. The prosecutor came to the place of ''Jagrata'' and, on inquiry by her brother Shri Krishan Kumar; she started weeping and narrated him the occurrence. She was brought home where the incident was narrated to the mother, in the morning of 24-1-1987, when she came from Samloti. The mother then narrated the incident to the father of the prosecutor when he came on leave from Dehra on the night of 24-1-1987. He thought over the matter and finally got registered the First Information Report with Police Station, Palampur, on 25-1-1987. The prosecutor was subjected to medical examination and the report supported the factum of rape on her. School certificate was also obtained and her ossification test was also conducted. Her age was placed between 10 to 14 years. Police took into possession two "khinds" which contained blood stains and were sent to/the Serologist.

The Appellant was arrested on 29-1-1987 and was subjected to medical examination on the same day. Medically, he was found fit to perform sexual intercourse, although no injury was detected on his penis. The Serologist reported that there were human blood stains on the "khinds". Ultimately, the Appellant was challenged for an offence u/s 376 of the Indian Penal Code. In his examination u/s 313 of the Code of Criminal Procedure, the Appellant denied the prosecution case and evidence against him and alleged that the case against him was false and was the result of enmity. He produced his wife Shrimati Kanta Devi in defense.

Dr. Sushma Sood (P.W. 1), is the Medical Officer, Civil Hospital, Palampur, She examined the prosecutor on 25-1-1987 and found the following injuries on her person

1, Multiple leaner abrasions over left breast. Teeth marks were present over upper outer quadrant of the left breast. Contusions over upper outer quadrant of left breast. Reddish brown in colour. Breast mode rately developed. No maxillary hair was present. Abrasions were covered with brown crust.

Pubic hairs scanty. Labia majora and labia minora normally developed. Clitoris normally developed, and normal. Perineum was covered with blood stains. There was a midline primal tear, skin deep, measuring 1 x.0.5cm incised. No fresh bleedings was present.

Liner abrasions present on right thigh''s medical aspect. Multiple in number, situated 4 below the groin. Crust brown in colour present over the wound. Hymen was torn. It admitted one finger (middle) tightly. Blood clots were present over the torn hymen and in the vagina.

4-A in her opinion she states that the prosecutor had been subjected to sexual assault and the probable duration of the injuries was 24 to 48 hours. She proves her medico-legal certificate (Ex. PB). She further states that the injuries on the person of the prosecutor could be sustained in a forcible sexual assault on her.

The prosecutrix (P.W. 3) states that on 23-1-1987, at night time she had gone to the house of ''Guddu'' in village Sullah to attend ''jagrata'' along with Indira, Sudha and Madhu. When she was feeling sleepy and was about to sleep in the lap of Indira, the Appellant, who had also come to attend the jagrata Along with his wife and sister, asked her to go to his house and sleep there. The prosecutor accompanied the Appellant to his house. She was made to sleep adjacent to the Appellant while his wife slept on his other side. The Appellant went away to jagrata and thereafter came back to his house. He started introducing finger in her vagina while she was sleeping and when she felt pain, she found the Appellant lying on her Her shalwar was opened and the Appellant did burakam with her. On her cry, the wife of the Appellant woke, up. The prosecutor asked the Appellant to switch on the light but his wife asked her to keep on sleeping. The Appellant thereafter tied the string of her shalwar. She came to the ''jagatra'' and on seeing her brother she started weeping and on inquiry she told him that she would tell the story at home, which she did there was blood on her shalwar. Her mother was away to some village in connation with a marriage near Nagrota and when she came next morning, the whole incident was narrated to her. Her- father was away to Dehra and he came on the next day in the evening. She was taken to police station, Dehra, and a report was lodged under her signature; she was medically examined. In cross examination, she stated that it was dark when she slept in the house the Appellant and the Appellant had gone to tjagrata'' in her presence, but she did not know when he had come back. She had identified the Appellant from his voice when he had told her to keep quit, otherwise persons sleeping underneath the ''Bohr'' would be suspicious of his act. At that time the Appellant was sleeping on her side. Although she had told the police that she had identified the Appellant from his voice, but it has not been recorded so. She further states that her family had been on visiting terms with the Appellant before the occurrence but thereafter they had left going to his house.

Perusal of the statement of the prosecutor indicates that her version is quite natural, straight forward and truthful. There are no exaggerations. Her version is quite cogent and convincing.

It is contended by Shri M.G. Chitkara, appearing in defense of the Appellant, that there are contradictions in the statement of the prosecutor but I do not see any substance in this submission of the learned Counsel for the Appellant. Minor, contradictions are natural in truthful account of an incident. Otherwise, the same is castigated as parrot-like and tutored. The prosecutor is minor and it cannot be said that she has any animosity against the Appellant. There is no reason for her to speak against the Appellant.

There is no bar in convicting the Appellant on the solitary statement of the prosecutor in case her version is true and convincing. In my opinion, it is so and needs no corroboration. However, in this case, her statement is corroborated by the statement of Dr. Sushma Sood (P.W. I). Further, she had immediately reported this fact to her brother Shri Krishan Kumar (P.W. 4), her mother and father Mehar Singh (P. W. 5) as soon as they come to their house. It is, therefore, established that rape was committed on the prosecutor and the same was committed by the Appellant and none else.

Shri M.G. Chitkara has contended that the story of the prosecution cannot be believed It is utmost difficult, he urges, that the wife of the Appellant would tolerate any such act on the part of the Appellant in her presence. Moreover such an act cannot be committed in the circumstances that existed at that time in the room where the prosecutor was sleeping along with Ors. . I am not impressed by these submissions. It is in evidence that the Appellant slept in between his wife and the prosecutor. The prosecutor is a small girl and was in fast sleep at that period of the night. Her complaint that the Appellant violated her during this time cannot be disbelieved. She has specifically said that although she was feeling someone on her body but she was moving to the sides in order to keep away those movements. However, ultimately when she felt pain, she woke up and found the Appellant lying on her. It is not improbable to violate a girl during fast sleep. . Many such cases have been recorded in judicial precedents and by medical experts. It appears that the act was committed by the Appellant without the knowledge of his wife and when she came to know of it, the prosecutor had left and the only option left with her in these circumstances, was to defend her husband which she did by appearing in the defense.

Shri M.G. Chitkara then argued that Dr. Avdesh (P. W. 2), who medically examined the Appellant, did not detect any injury to the penis of the Appellant although he was found fit to perform sexual intercourse. This submission is also un- tenable. It is not always necessary that injuries to the male organ have to be there when a girl or a young girl is violated by a grown-up man. It is relevant to quote para,-9, at page 380, of Modi''s Medical Jurisprudence and Toxicology, Twenty first edition:

Injuries to the genital parts may result from force exerted by the accused or from forces applied by the victim. In addition to scratches or lacerations on the penis caused by the finger nails of the victim during a, struggle, an abrasion or a laceration may be discovered on the prepuce or, gleans penis, but more often on the fraenum; due to the forcible introduction of the organ into the narrow Vagina of a virgin, especially of a child, but it is not necessary that there should always be marks of injuries on the penis in such cases.

The Appellant, in my opinion, cannot take any benefit of the absence of the injuries on his penis. Moreover, he was examined on 30-1-87 whereas the incident had taken place on the night of 23/24-1-1987.

Finally, Shri M.G. Ghitkara argues that the sentence awarded by the trial Court is excessive and may be reduced.

Perusal of the judgment of the trial Court shows that the trial court has also considered this aspect, of the matter and after doing so, inflicted the sentence in question. I do not see that the punishment awarded'' in this case is in any way excessive, as contended; rather the same is on the lower side looking to the rapture of the offence and the manner in which the same was committed by the Appellant.

No other point was argued by the learned Counsel for the parries.

The result, therefore; is that the prosecution has successfully established the charge against the Appellant. He has been rightly convicted by the trial Court. His conviction is confirmed and the appeal is dismissed.