Satbir Singh alias Satto vs State of Haryana

P.K. Jain, J.

This appeal is directed against the judgment/order dated 16.8.1994/18.8.1994, whereby the appellant has been convicted under Section 376 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5000/ and in default of payment of fine to undergo further rigorous imprisonment for one year. It has been further directed that the entire amount of fine, if recovered, be paid to the prosecutrix by way of compensation.

The prosecutrix has been residing alongwith her parents, brother and sister in village Banchari, District Faridabad. On 17.9.1991 at about 11 A.M. her parents, brother and sister were away from the house and she was all alone inside the kotha and singing a song. The appellant, covillager suddenly entered the room and pounced upon her. Prosecutrix put up resistance and tried to get free from the clutches of the appellant but he picked up a danda and gave two blows to her on the back and left arm. She was then gagged and made to lie on the cot by the appellant. Her petticoat was lifted and underwear was forcibly removed. The appellant committed sexual intercourse with her against her wishes and in spite of resistance put up by her. In the meanwhile, Man Singh one of the brothers of the prosecutrix happened to return from his school and found the appellant committing rape upon the prosecutrix. On seeing Man Singh, the appellant succeeded in running away. Mukhtiar Singh and Smt. Kamla who are relations of the prosecutrix and also neighbours saw the appellant while running away.

Mother of the prosecutrix came back. The prosecutrix narrated the entire incident to her. Thereafter the prosecutrix alongwith her mother and brother went to the Police Station and lodged the First Information Report copy of which is Ex.PL.

S.I. Niranjan Lal took up the investigation. The prosecutrix was got medically examined from Doctor Manjula Misra of Civil Hospital Hodal. Vaginal swabs and the wearing clothes of the prosecutrix, duly sealed in separate parcels, were handed over to the police. Rough site plan and scaled site plan of the place of occurrence were got prepared. The cot on which rape was committed was also taken into possession. The appellant was arrested on 18.9.1991 and he was also got medically examined. His Tehmad and underwear were also taken into possession. The parcels containing the vaginal swabs, the wearing clothes of the prosecutrix and the clothes of the appellant were sent for chemical examination to Forensic Science Laboratory, Madhuban. After the receipt of the report of the Chemical Examiner and completing the investigation a chargesheet was submitted to the court.

A charge under Section 376 of the Indian Penal Code was framed against the appellant to which he pleaded not guilty and claimed a trial.

In support of its case, prosecution examined nine witnesses. Doctor Manjula Misra (PW5) had examined the prosecutrix on 17.9.1991 and had prepared the report Ex.PH. She had recommended for ossification test of the prosecutrix to ascertain her age. Doctor V.K. Aggarwal (PW1) a Radiologist, after the prosecutrix was xrayed, gave his report EX.PA to the effect that the age of the prosecutrix could be between 16 and 17 years with a variation of two years on either side. Doctor H.K. Misra (PW4) had examined the appellant on 18.9.1991 and prepared his report Ex.PG. Shri Het Ram Garg (PW2) had prepared the scaled site plan Ex.PB in respect of the place of the occurrence on 15.11.1991. Head Constable Dhir Singh (PW3) had proved Ex.PC and Ex.PD copies of Daily Diary recorded at the Police Station Hodal which relates to the registration of the present case. He also tendered his affidavit Ex.PE in evidence. The prosecutrix has been examined as (PW8) duly supported by her brother Man Singh (PW6). Mukhtiar Singh (PW7) had seen the appellant while running away from the house immediately after the occurrence. S.I. Niranjan Lal (PW9) is the Investigating Officer who had also recorded First Information Report of this case.

In his examination under Section 313 of the Code of Criminal Procedure, the appellant totally denied the allegations of the prosecution and pleaded false implication. He explained that a false case has been foisted upon him in connivance with Mukhtiar Singh (PW7) who was close to S.I. Niranjan Lal at the instance of Man Singh who had taken loan of Rs. 1300/ from the appellant but had not returned the same. In his defence, the appellant has examined one Deep Chand member panchayat.

On an appraisal of the evidence produced before him, the Additional Sessions Judge, found the appellant guilty of an offence under Section 376 of the Indian Penal Code and convicted and sentenced him as stated above. Feeling aggrieved, the convict has come up in appeal.

I have heard the learned counsel for the parties who have taken me through the record of the trial Court.

Shri R.S. Sihota, Advocate, the learned counsel for the appellant has argued that the trial Court has misread the evidence on the record and has proceeded on wrong premises while convicting the appellant for an offence under Section 376 of the Indian Penal Code. The learned counsel has argued that the medical evidence produced on the record goes to show that the possibility of rape having not been committed cannot be ruled out and in such circumstances the benefit of doubt ought to have been given to the appellant and the conviction is not sustainable. It has been further argued by the learned counsel that the presence of Man Singh (PW6) at the time of the alleged occurrence is highly incredible. It has also been pointed out that the testimony of the prosecutrix in this case in itself cannot be said to be sufficient for conviction inasmuch as the prosecutrix is mentally retarded having low IQ. It has also been pointed out that defence version duly supported by Deep Chand (PW1) has been erroneously rejected by the trial Court.

On the other hand Shri Raman Gaur, Advocate learned counsel for the State of Haryana has argued that the prosecutrix is not mentally retarded but is an uneducated and rustic village girl. It has been argued by the learned State counsel that the testimony of the prosecutrix is free from any infirmity and is fully supported by the medical evidence on the record. It has also been pointed out that the presence of Man Singh at the time of the occurrence is quite natural inasmuch as he had come to his house during break period in the school. It has also been argued by the learned counsel that First Information Report was lodged promptly and the prosecutrix was also got medically examined without any delay. It has been further pointed out that once the prosecution has proved that the appellant had committed forcible sexual intercourse with the prosecutrix against her wishes, the question of her age has become immaterial and irrelevant in this context.

The respective arguments have been considered carefully in the context of the evidence available on the record.

To begin with it may be noted that the occurrence in question is stated to have taken place at about 11 A.M. in a kotha inside the residential house of the prosecutrix when she was all alone. Therefore, the prosecutrix can be said to be the best witness to the occurrence. From the testimony of the prosecutrix it is evident that she has described the entire incident consistently without a tinge of any embroidery. She has categorically stated that when the appellant pounced upon her with the evil intention of committing rape she put up stiff resistance whereupon the appellant gave two danda blows on her back as well as left arm. This portion of the testimony finds full corroboration from the testimony of Doctor Manjula Misra (PW5) who had examined her on 17.9.1991 at about 4 P.M. and had prepared her report Ex.PH. According to the testimony of the said Doctor and the report Ex.PH, the following two injuries were found on the person of the prosecutrix at that time :

"2. There was swelling in the left forearm in its middle of the size 3 x 2 cm. Xray examination was advised.

There was complaint of pain in the back."

According to the testimony of this Doctor, the duration of the injuries was 5 to 12 hours. Thus, this medical evidence fully corroborates the testimony of the prosecutrix regarding the stiff resistance put up by her. The mere fact that there was no mark of injuries on thighs, legs or breasts of the prosecutrix or that there was no tear or bleeding, would not affect the credibility of the prosecutrix keeping in view her age and built. This stand has been specifically explained by Doctor Manjula Misra (PW5) in her examinationinchief itself.

The learned counsel for the appellant has laid great stress on the report Ex.PO received from the Chemical Examiner showing the absence of semen on the swab or the petticoat or the underwear of the prosecutrix and has argued that according to the testimony of Doctor Manjula Misra herself, the possibility of rape has been ruled out. This argument is misconceived inasmuch as it amounts to misreading of the testimony of the said Doctor. What has been stated by her in her crossexamination is that according to the report of the Assistant Director Serology, no semen could be detected on the swabs, petticoat or underwear of the prosecutrix and the possibility of rape in view of this report can be ruled out. This does not mean that rape has not been committed upon the prosecutrix.

Man Singh (PW6) is the brother of the prosecutrix. He has categorically stated that on 17.9.1991 when he had come back from the school, he found the appellant while committing sexual intercourse with his sister inside the residential kotha of their house; that the appellant got up and pushed him by his chest and then ran away. He has further stated that he raised an alarm and the appellant was seen while running away by Mukhtiar Singh and Kamla his relations, the neighbourers. I do not find any justification to doubt or disbelieve his testimony. There is no acceptable material on the record to hold that he had taken any loan of Rs. 1300/ from the appellant and there was any dispute between him and the appellant over the same. Even if it be assumed for the sake of arguments, that there was such dispute, it could hardly be a ground for a brother to put forth his sister to make wild allegations of rape against the appellant with a view to avoid the payment or to take revenge. It defies human probabilities. No brother could stoop so low as to bring forth a false charge of rape of his unmarried sister over such a petty dispute if at all. His testimony has been properly analysed by the trial Court. His testimony goes to show that the prosecutrix was not mentally ill before this occurrence but she developed this mental imbalance after going through the trauma of the sexual intercourse violence upon her by the appellant.

It is now well settled law that the testimony of a prosecutrix in a rape case cannot be equated with an accomplice. The testimony of the victim in such case 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. Why should the evidence of a girl or a woman who complains of rape or sexual molestation, be viewed with doubt, disbelief or suspicion ? While summarising the position in this respect in State of Maharashtra v. Chandraprakash Kewalchand Jain, 1990(1) Recent Criminal Reports 411 : JT 1990(1) SC 61 , their Lordships of the Supreme Court observed as under :

"A prosecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix there is no rule of law or practice incorporated in the Evidence Act similar to illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence."

In view of the above exposition of law, the learned counsel for the appellant cannot derive any help from the decision of this court rendered in Jai Kumar and others v. State of Haryana, 1985(1) RCR 332 . In State of Punjab v. Gurmeet Singh and others, JT 1996(1) SC 298, while reiterating the law laid down in Chandraprakash''s case (supra) their Lordships have further clarified that even if the prosecutrix, in a given case, has been promiscuous in her sexual behaviour earlier, she has a right to refuse to submit herself to sexual intercourse to anyone and everyone because she is not a vulnerable object or prey for being sexually assaulted by anyone and everyone. These observations are enough to reject the contention of the learned counsel for the appellant that the prosecutrix being more than 16 years of age and there being no mark of injury on her thighs or around the private parts, it cannot be said that rape was committed upon her. The defence plea that the brother of the prosecutrix had taken loan of Rs. 1300/ from the appellant and had not returned the same inspite of demand, does not inspire confidence. It is almost inconceivable that an unmarried girl, her brother and parents would go to the extent of staking their reputation and future in order to falsely set up a case of rape to settle petty score as alleged by the appellant.

The testimony of Deep Chand (DW.1) that there was dispute between the parties over money dealings does not inspire any confidence. He admits in his examinationinchief that on the day of the occurrence the police had come to his village and had summoned respectables including member panchayat and thereafter the police had taken the appellant, Man Singh and Mukhtiar Singh to the Police Station for interrogation. In this context, it may be noted that Man Singh (PW6) has specifically stated that when he had raised an alarm the appellant ran away from the spot; that many persons had collected there, that the parents of the appellant had also come there and everybody condemned the act of the appellant and that the parents of the appellant requested that the matter should be settled in village itself. This goes to show that people of the village had definitely collected and had condemned the act of the appellant. If there had been a dispute only over Rs. 1300/ between Man Singh and the appellant the same was a civil matter and the question of the visit of the police and then taking away appellant Man Singh and Mukhtiar Singh to the Police Station could not have arisen. In a way testimony of Deep Chand does corroborate the case of the prosecution and particularly the testimony of Man Singh (PW6). The testimony of the prosecutrix (PW8) and Man Singh (PW6) could not be shaken in any manner in their crossexamination. The impugned order of conviction recorded by the Additional Sessions Judge is based on cogent and convincing reasons with which I am in full agreement.

Coming to the question of sentence imposed upon the appellant by the trial Court, the learned counsel for the appellant has argued that the same is excessive in nature. It has been pointed out by the learned counsel that the appellant is a young man and is not a previous convict, and that he had already undergone a sentence of about 2 years and 6 months till today which should be sufficient in the facts and circumstances of the case. In support of this plea, the learned counsel has placed reliance upon a judgment of the Apex Court rendered in Raju v. State of Karnataka, 1994(1) RCR 177 .

On the other hand, Shri Raman Gaur, the learned State counsel has pointed out that of late, crime against women in general and rape in particular is on the increase, and that if a rapist is let off with a lenient sentence that would amount to showing little or no concern for the honour of the victim. It has been argued by the learned counsel that the sentence already imposed upon the appellant is quite lenient in nature and should not be reduced.

I have considered the respective arguments carefully. It cannot be disputed that the question of sentence is a sensitive one and differs from case to case and from offence to offence. It is correct that the sentence should be commensurate with the magnitude of the offence. We must remember that a rapist not only violates the victim''s privacy and personal integrity, but inevitably causes serious psychological 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 his 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 and awarding sentence to him.

The learned counsel for the appellant cannot derive any help from the decision of the Apex Court in Raju''s case (supra). In that case the offence had taken place 14/15 years preceding the date of the judgment and the accused had suffered disrepute and mental agony for such a long period. Further, it was found as a fact that at the beginning the accused had genuine desire to help the prosecutrix but later on in a fit of passion his sexual lust arose and he committed rape upon the prosecutrix. In these circumstances their Lordships of the Apex Court were pleased to reduce the sentence from six years to three years imprisonment. The present case does not fall within the ratio of the said case. Finding the prosecutrix all alone, the appellant entered her house during the day time knowing fully well that he could be discovered at any moment, and committed rape upon the prosecutrix inspite of the stiff resistance put up by her. Under the circumstances, a deterrent sentence is required to be imposed upon the appellant. An offence under Section 376 I.P.C. is punishable with life imprisonment even. Therefore, the sentence of seven years rigorous imprisonment along with a fine of Rs. 5000/ and in default of payment of fine further rigorous imprisonment for one year cannot be said to be excessive in any manner in the facts and circumstances of this case. Therefore, I do not find any reasonable ground to interfere even with the sentence imposed upon the appellant.

As a result of the above discussion, I do not find any merit in this appeal, and the same is hereby dismissed.