Sunil Kumar vs State of Himachal Pradesh

Surinder Singh, J.—The present appeal has been filed by the Appellant against the judgment of conviction, passed by the Learned Sessions Judge in Sessions Trial No. 04 of 2007 on 6.4.2010, for the offences punishable under Sections 376 and 506 of the Indian Penal Code, whereby he has been sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs. 10,000/- u/s 376 of the Indian Penal Code and also to undergo rigorous imprisonment for a period of two year and fine of Rs. 10,000/- u/s 506 of the Indian Penal Code with default clauses. Both the sentences wee ordered to run concurrently. From the fine amount, if realized, was ordered to be paid to the victim as compensation. Benefit of Section 428 Code of Criminal Procedure was also granted.

The prosecution case, as emerges from the evidence can be stated thus. In the year 2005, the prosecutrix (17 years) was studying in 7th standard in Government High School Labana, till then she had failed twice.

On 7th December, 2005, the prosecutrix went to her school to appear in the examination in Social Studies paper. After finishing her paper, she returned to her village alongwith her younger sister Raj Kumari. When they reached their house, they did not find their parents there. Prosecutrix went to her field for cutting grass, which took about half an hour on foot to reach there. While she was engaged in the field, Appellant came there and allegedly committed rape upon her. Thereafter, he threatened her with dire consequences and also told her not to disclose this fact to anybody in the family, lest she would be killed and her house would be put on fire.

About 4/5 months of the alleged incident, she started vomiting, to which, her mother enquired about the cause. On this, she informed of the rape having been committed by the Appellant. On 7.12.2005 and thereafter also and she was got impregnated by him, but now he denied marrying her.

Thereafter, prosecutrix alongwith her mother approached police, reported the matter, which culminated into FIR Ex.PW10/A. She was medically examined by PW5 Dr. Bharti Azad. Though, no injury was found on her person, but on her local examination, per abdomen, height of uterus was equal to 30 weeks, which was relaxed. She was advised ultrasound of the uterus for the confirmation of pregnancy and also for gestational age. On the opinion of the Radiologist Ex.PW5/D, she gave her final opinion that the gestational age was 33 weeks 2 days having normal skull, spine and heart. She issued MLC Ex.PW5/B.

The Appellant was arrested. He was also medically examined from PW6 Dr. R.S. Rana. He was found to be sexually potent and capable of making a woman pregnant, thus issued MLC Ex.PW6/D.

Police took into possession the birth certificate Ex.PW8/B of the prosecutrix from PW8 Sohan Lal, Secretary of the Gram Panchayat. They also took into possession the birth certificates Exts.PW9/A and B issued by the Headmaster, Govt. High School Kaobil.

Police visited the spot of the alleged incident and prepared the site plan Ex.PW12/A. After recording the statements of the witnesses and completing the challan, it was presented in the Court, for the trial of the Appellant.

Finding a prima-facie a case against the Appellant, he was charge sheeted for the offences punishable under Sections 376, 506 and 417 of the Indian Penal Code, to which he pleaded not guilty and claimed trial.

To prove its case, prosecution examined the PW10 the prosecutrix, her mother PW1 Smt. Ishwari Pati, PW5 Dr. Bharti Azad, PW6 Dr. R.S. Rana, Medical Officers, PW8 Sohan Lal Secretary of the Gram Panchayat, PW9 Kundan Lal Teacher of Govt. High School Kaubil Labana and PW12 SI Madan Lal besides examining other formal witnesses. The Appellant also examined u/s 313 of the Code of Criminal Procedure. His case was that of denial simplicitor, however, he maintained his innocence.

The Appellant was called upon to enter into his defence, but he did not lead any evidence in defence. At the end of trial, learned trial Court he was acquitted of the offence punishable u/s 417 of the Indian Penal Code, but convicted and sentenced the Appellant as aforesaid, while placing reliance on the statement of the prosecutrix and the medical evidence, which have been challenged in this appeal.

Shri O.P. Sharma, learned Senior Advocate duly assisted by Shri K.R. Kashyap, learned Counsel for the Appellant argued that the prosecutrix at the relevant time was proved to be more than 18 years of age and also referred the statement of PW5 Dr. Bharti Azad, which established that the prosecutrix had carried the pregnancy prior to 7.12.2005, much before the day of alleged incident, which makes the testimony of the prosecutrix a suspect. He also pointed out the discrepancies in the statement of the prosecutrix, which according to him were material and ignored by the learned trial Court.

Contra, Shri J.S. Rana, learned Assistant Advocate General supported the impugned judgment of conviction and sentence and submitted that the statement of the doctor aforesaid is only opinion evidence, whereas there is direct evidence of the victim with respect to the incident in question, therefore, no interference is called for.

I have given my thoughtful consideration to the rival contentions of the parties and have carefully scanned the evidence on record.

At the very outset, I would like to say that the learned trial Court had ignored the mandate of the apex Court that the name of the prosecutrix is not required to be exposed in the judgment and in the sexual offences, her statement required to be invariably recorded in Camera, which seems to have been conveniently ignored, which is not expected from the Sessions Judge trying the offence(s) of this nature. I hope and trust that the learned Sessions Judge would take note and follow the directions issued by the apex Court, as well as various judgments of this Court from time to time to this effect.

Now reverting to the facts of this case and the law, I would say that it is by now well settled that the corroboration of the statement of the prosecutrix in a case of rape is not the sine qua non for a conviction of the accused. In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Definitely, a complaint of rape and sexual molestation cannot be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion and further much importance can also not be given to minor discrepancies, which do not go to the root of the matter and shake the basic version of the witnesses. Normally the version given by the victim of sexual molestation should be believed and conviction can be based on the sole evidence of a victim provided it inspires confidence, and appears to be natural and truthful, however, if the evidence seems to be of a doubtful nature, then the court has to look for assurance, if not corroborated. See Vimal Suresh Kamble Vs. Chaluverapinake Apal S.P. and Another,

In the case in hand, prosecutrix when examined during the trial specifically stated that on 7.12.2005, in the evening, when she had gone to her field to cut the grass, the Appellant met her there and committed rape on her, thereafter threatened not to disclose this matter to anyone and disclosed it after 4/5 months to her mother when she was asked by her, about the reasons for vomiting and also told the Appellant that she was carrying his pregnancy, to which he refused and declined to marry her, but she also stated that the Appellant was known to her since her childhood and was already married having children. She also stated that the husband of her elder sister named Parmar Negi used to visit their house and further stated that when she went to the field, she did not inform the Appellant about her visit. She was also confronted with FIR Ex.PW10/A and her statement Ex.PW7/A wherein it was recorded that after the alleged incident, she was being repeatedly and occasionally raped by the Appellant, but she disowned it and denied having made such a statement. Thus, she only asserted rape by the Appellant for the first time on 7.12.2005 and not before that nor thereafter.

Her mother PW1 Smt. Ishwari Pati stated contrary to what prosecutrix stated about that she had disclosed to her that after the incident aforesaid, she was sexually abused by the Appellant 5/6 times. She also admitted in her cross-examination that the father of the Appellant was having a land dispute with her husband Amar Singh. She further stated that her daughter had left her house unannounced towards Jammu side. She had also gone to the extent by saying that prior to the incident, the Appellant had also committed sexual intercourse with her daughter and this fact did not find mentioned by the police in her statement u/s 161 Code of Criminal Procedure which is a material contradiction. Perhaps by the time her statement was recorded in the court she was made aware of the fact that the pregnancy was much prior to the incident as alleged. Similar is the statement of her husband PW2. He also admitted landed dispute with the father of the Appellant, which according to him was decided long back.

It has come on record that the prosecutrix had delivered a fully grown male child on 28.6.2006, who had died after about one month.

If the prosecutrix had given the normal delivery to the fully grown child on the date aforesaid, then it can safely be said that the conception of the child was 9 months before the date of delivery, which comes even prior to October, 2005, whereas the alleged incident is stated to have taken place on 7.12.2005 at 4.30 p.m. Against the above proved facts, the statement of PW5 Dr. Bharti Azad assumes importance. She had medically examined the prosecutrix. She was brought with the alleged history of sexual assault on 7.12.2005 at about 4.30 p.m. On her clinical examination, the prosecutrix was found to be moderately built and well nourished and had attained monarchy at the age of 15 years. Since then, she was regularly menstruating and her last menstruation period was on 3.12.2005, as disclosed by her, but on the clinical examination, the doctor noticed that the period of gestation 25 weeks 2 days, but however, on the examination of the abdomen, the height of uterus was found equal to 30 weeks and the uterus was relaxed, thus she was advised ultrasound for confirmation of the pregnancy and gestational age. On the report of the Radiologist Ex.PW5/D, she finally opined that the gestational age of uterus was 33 weeks 2 days having normal skull, spine and heart, foetal heart rate 141 per minute. The doctor opined that the sexual intercourse had occurred in the past and the doctor admitted the last L.M.P. on 3.12.2005 as stated by the prosecutrix was not correct as gestational age was 33 weeks which did not match with the disclosure of last L.M.P. of the prosecutrix. Doctor further admitted that as per observation to the gestational age, the pregnancy had taken place before 7.12.2005. Therefore, the opinion of the doctor assessed on the scientific examination, falsify the story, as propounded by the prosecutrix, with respect to the alleged rape.

The another most important circumstance is that till she carried the pregnancy of about 4/5 months, she did not disclose this fact in the family to anyone, though she stated that she was threatened, but it is not known how that threat vanished when she disclosed this fact to her mother after such a long time. Further, the allegations of repeated sex by the Appellant after the alleged incident as stated in the FIR and in her supplementary statement and also by her mother stood not proved. It appears that the prosecutrix had a consensual intercourse. The reason for not complaining the matter to her parents under threat is also devoid of any merit.

Against the aforesaid background conclusion, the age of the prosecutrix becomes of pivotal importance. Prosecutrix disclosed her age 17 years in the MLC Ex.PW5/A which was admittedly supplied by her to the doctor (PW5). PW9 Kundal Shukla, a Drawing Master in Govt. High School Kaobil Labana stated that the prosecutrix was studying in the School for the last about six years. His statement appears to be incorrect. She had failed twice till reaching 7th standard. If earlier, she was in other school, then the admission record of that school would have served the purpose of primary proof. He stated having brought the original record of admission and withdrawal register wherein her date of birth was recorded as 5.4.89 and he stated that the certificate Ex.PW9/A was issued by the Headmaster of the school. He also admitted in his cross-examination that the original date of birth is given at the time of first admission in the school of child, which is incorporated in the admission form, which was not brought by him. Therefore, the entries in the admission register without any supportable document with respect to date of birth cannot be believed.

Further there is statement of PW8 Sohan Lal, Secretary of the Panchayat, who had issued birth certificate Ex.PW8/B of the prosecutrix. He admitted that the Amar Singh (PW2) father of the prosecutrix has six daughters whereas PW1 her mother stated that he has only five. He did not bring the birth register, but only produced the Pariwar register which, according to him, reproduces birth register entries, which is incorrect only in the relevant column estimated age/date of birth is given. He also stated that out of six daughters, three of his daughters were already married. PW1 Smt. Ishwari Pati, mother of the prosecutrix stated that out of her five daughters Sheela the eldest was married at Kafnu in Kinnaur district about four years back and the prosecutrix is junior to her and her another daughter Raj Kumari is younger to the prosecutrix, however, she displayed her ignorance about the dates of birth of any of her daughters. By all the calculations, the prosecutrix comes to more than 16 years of age at the time of alleged occurrence. Once this finding is arrived on the above facts and circumstances from the record that the prosecutrix is held to be above the age of discretion and the Appellant is not linked with the incident, which is allegedly took place on 7.12.2005, therefore, sole testimony of the prosecutrix is not worth inspiring confidence in alternative consensual sexual intercourse can not be ruled out; but to prove the charges against the Appellant the statement of prosecutrix lacks probity, as such, her sole testimony cannot be made the basis to pass conviction against the Appellant, therefore, the impugned judgment of conviction and sentence is set-aside, the Appellant is acquitted by giving him the benefit of doubt. Consequently, the appeal filed by the convict-Appellant is allowed.

The Appellant is undergoing the sentence. He be released forthwith, if not required in any other case. The fine amount, if any deposited, be refunded to him.

Records of the Courts below be returned forthwith. Accordingly the matter stands disposed of.