State of
Himachal Pradesh Vs. Raghubir Singh [1993] INSC 86 (18 February 1993)
Verma,
Jagdish Saran (J) Verma, Jagdish Saran (J) Yogeshwar Dayal (J) Venkatachala N.
(J)
CITATION:
1993 SCR (1)1087 1993 SCC Supl. (3) 150 JT 1993 (4) 52 1993 SCALE (1)637
ACT:
Indian
Penal Code, 1860.
S.376-Rape-Accused-Conviction
by trial court-Acquittal by High Court-Appeal by State to Supreme
Court-Acquittal set aside-Conviction and sentence awarded by trial court
confirmed-Held, judgment of High Court based on conjectural findings and not on
proper appreciation of evidence-Courts must be slow to interfere with findings
based on apprecia- tion of evidence in case of child rape-Conviction can be
based on sole testimony of prosecutrix-Absence of injuries on male organ of accused
not always fatal to prosecution case-Court cannot enhance sentence without a
show cause notice to acquitted accused
HEAD NOTE:
The
respondent-accused was prosecuted for committing rape on a child of 8/9 years
of age. The prosecution case was that:
while
the prosecutrix (P.W.4), her father (P.W.5) and elder sister (P.W.7) were in
their fields, it suddenly started raining and all the three ran towards their
house; P.W.4 got separated from the two kins and was following them when the
accused, then aged about 16 years, took her under a mango tree and committed
rape on her; P.W.5, who in the meantime returned to the fields in search of
P.W.4, saw the accused lying on her, he raised an alarm whereupon P.W.7, rushed
to the spot and the accused ran away leaving P.W.4 crying and bleeding per
vagina.
The
victim was got medically examined the same day and the doctor (P.W.1), besides
mentioning the injuries on the private part of the prosecutrix, reported that
she had been subjected to sexual intercourse.
At the
trial P.W.5, P.W.7 and the doctor (P.W.1) who had medically examined the prosecutrix,
supported the prosecution case in its totality. The trial court held that the
accused had committed an offence of rape under s.376, I.P.C. on the prosecutrix,
and sentenced him to suffer R.I. for a period of five years.
18 The
accused riled an appeal before the High Court which acquitted him. The State
filed the appeal by special leave to this Court.
Allowing
the appeal, this Court,
HELD:
1.I. Courts must be wary, circumspect and slow to interfere with reasonable and
proper findings based on appreciation of evidence as recorded by the lower
courts, before upsetting the same and acquiring an accused involved in the
commission of heinous offence of rape of hapless girl child. [p.24B-C] 1.2. The
High Court without appreciating or properly discussing the evidence committed
an error in setting aside the findings recorded by the trial court which were
based on proper appreciation of evidence and were not unreasonable much less
perverse. The judgment of the High Court is based on conjectural findings and
cannot be sustained.[pp.22B-C; 25A]
3. The
statement of prosecutrix (PW4) is clear, cogent and specific. The Sessions
Judge recorded her statement on being satisfied that she was capable of giving
evidence.
She
narrated the occurrence in a simple and straight forward manner. The
prosecution case was fully supported by her during her statement and nothing
has been brought out in the cross-examination from which any doubt could be
caused about her veracity. Her statement receives ample corroboration from the
testimony of her father (PW5) who is found to be a truthful and reliable
witness. The medical evidence of PWl has supported the prosecutrix in all
material particulars.
The
evidence of PW7 who had also seen the accused running away from the scene of
crime further lands credence to the prosecution version. [pp.21E-H; 22A]
2.1.
There is no legal compulsion to look for corroboration of the evidence of the prosecutrix
before recording an order of conviction. Evidence has to be weighed and not
counted.
Conviction
can be recorded on the sole testimony of the prosecutrix, if her evidence
inspires confidence and there is absence of circumstances which militate
against her veracity. [p.22D] 2.2. In the instant case the evidence of the prosecutrix
is found to be reliable and trustworthy. No corroboration was required to be
looked for, though enough was available on the record. The medical evidence
provided sufficient corroboration. [p.22E] 19 3.1. There is no inflexible axiom
of law which lays down that the absence of injuries on the male organ of the
accused would always be fatal to the prosecution case and would discredit the
evidence of the prosecutrix, otherwise found to be reliable. Every case has to
be approached with realistic diversity based on peculiar facts and
circumstances of that case and inferences have to be drawn from the given set
of facts and circumstances. [p.24D-F] Rahim Beg & Anr. v. State of UP., [1972] 3 SCC 759, distinguished.
3.2.
The doctor (PW3), who had examined the respondent, found him to be capable of
sexual intercourse and according to him the absence of injury on the male organ
of the accused was not suggestive of the fact that he had not indulged in sexual
intercourse with the prosecutrix, then of tender years of age. His evidence was
not at all challenged on this aspect by the defence. [p.24F-G]
4.1.
The judgment of the High Court acquitting the accused is set aside. The accused
is convicted under S.376 IPC for having committed rape on the prosecutrix and
sentenced to suffer regorous imprisonment for a period of five years. [pp. 25H;
26A]
4.2.
Though for such an offence a more severe sentence would have been desirable but
neither the State sought enhancement of the sentence by filing an appropriate
petition nor any notice in this regard had been issued to the accused, and
without putting him on such a notice, the Court 'cannot enhance the sentence. 'Me
provision prescribing more stringent minimum sentence under Section 376 was
also incorporated in the Code by an amendment only with effect from December,
1982, after the offence in the instant case had been committed. [p.25D-G]
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 398 of 1984.
From
the Judgment and Order dated 16.11.83 of the Himachal Pradesh High Court in Crl.
A. No. 32 of 1983.
Ms. Kusum
Choudhury and Ms. Bina Gupta for the Appellant.
Dr. N.M. Ghatate and S.V. Deshpande for the Respondent.
20 The
following Order of the Court was delivered:
On
special leave being granted, the State of Himachal Pradesh has preferred this appeal against the judgment and order
dated 16.11.1983, acquitting the respondent of an offence under Section 376,
IPC earlier recorded by the learned Sessions Judge.
Briefly
stated the prosecution case is that on 2.8.1982, the prosecutrix, Raksha Devi
PW4 alongwith her father Nikkoo Ram PW5 and an elder sister by name Samti were
in their fields.
It
started to rain all of a sudden and the prosecutrix, her father and her sister,
ran towards their house. The prosecutrix got separated from her father and
elder sister and was following them when the respondent Raghubir Singh, then
aged about 16 years, came to her and caught hold of her hand and took her under
a mango tree. The prosecutrix, who was 7/8 years old at that time was wearing a
frock and having a shawl with her. The respondent spread the shawl on the
ground and making the prosecutrix lie on that shawl committed rape on her.
Since, the prosecutrix had not reached her home, Nikkoo Ram her father after
waiting for about half an hour returned towards the field and saw the
respondent lying on top of the prosecutrix, Raksha Devi, under the mango tree.
He raised alarm and the respondent ran away carrying with him his underwear.
The prosecutrix was crying and was bleeding per vagina. The occurrence took
place at about 2.30
p.m. and the First
Information Report Ex. PE was lodged at the Police Station at 5.50 p.m. The prosecutrix was got examined by the doctor, who found
her hymen ruptured and slight bleeding coming out of the vaginal edges. Blood clott
was also present and the external genitals of the prosecutrix were found to be
tender and red.
The
vagina admitted one finger with difficulty, which got smeared with blood. The
doctor who had examined the prosecutrix, namely, Dr. Urmil Gupta, Medical
Officer, Rural Hospital Nalagarh at about 7 p.m. on the same day, appearing as
PWI at the trial had also testified that when the prosecutrix was brought to
her by her father, he had also brought with him a shawl, which was found to be
having some mud and bloodstains. According to the opinion of Dr. Urmil Gupta
PWI, the prosecutrix had been subjected to sexual intercourse and the probable
duration of the injuries on her private parts., including the vagina, was about
6 to 12 hours. During the cross-examination, a suggestion was put to the doctor
that the injuries found on the prosecutrix could have been caused by a fall on
some bushes or on the stem of a 'beree' tree but the doctor had categorically
denied the suggestion. It was also suggested to her that the venginal in jury
could also be caused by inserting 21 a finger in the vagina. The X-Ray, the skiagrams
and the examination of her teeth by Dr. Subhash Chandra Aggarwal PW2 established
the age of the prosecutrix to be between 6 to 8 years. The respondent was also
examined by doctor C.L. Sharma PW3, medical officer at the Rural Hospital, Nalagarh.
He had
found the respondent to be potent and capable of sexual intercourse. He denied
the suggestion that injuries would necessarily be caused to the penis in case
of sexual intercoures by a grown up male with a virgin when during the act her
hymen gets torn.
The
father of the prosecutrix Nikkoo Ram PW5, the prosecutrix Raksha Devi PW4 and Taru
PW7, who had rushed to the scene of occurrence on hearing the alarm and had
also seen the respondent running away therefrom carrying with him his underwear
supported the prosecution case in its totality.
The
learned Sessions Judge after a careful appraisal of the evidence on record
found that the respondent had committed the offence of rape and sentenced him
to suffer R.I. for a period of five years for the offence under Section 376
IPC.
While
awarding the sentence, the learned Sessions Judge took into account the age of
the prosecutrix, the age of the accused and the other attending circumstances
and directed that it would be appropriate if the accused was kept in the open
air jail in Bilasput during the term of five years R.I.
The
respondent appealed to the High Court of Himachal Pradesh and on 16.11.1983.
The High Court acquitted him.
We
have heard learned counsel for the parties at length and have gone through the
evidence on the record. The statement of the prosecutrix, Raksha Devi PW4 is
clear, cogent and specific. The learned Sessions Judge before recording her
statement was conscious of her age and had, therefore, taken all the
precautions required by law to ascertain whether she was capable of giving
evidence or not and on being satisfied that she was so capable, recorded her,
statement. She narrated the occurrence in a simple and straight forward manner.
The prosecution case as noticed in the earlier part of the judgment was fully
supported by her during her statement and nothing has been brought out in the
cross- examination from which any doubt could be caused about her veracity. Her
statement receives ample corroboration from the testimony of Nikkoo Ram PW5,
her father who even otherwise would be the last person to come forward with a
false accusation of the type of rape on his young unmarried daughter.
22 His
testimony has impressed us and we find him to be a truthful and reliable
witness. The medical evidence of Dr. Urmil Gupta has supported the prosecutrix
in all material particulars. She has also testified to the presence of mud and
blood-stain,-, on the shawl. The evidence of Taru PW7 who had also seen the
accused running away from the scene of crime carrying his underwear, further
lends credence to the prosecution version. The learned Sessions Judge, in our
opinion, was therefore justified in relying upon the prosecution evidence and
recording an order of conviction against the respondent for an offence under
Section 376 IPC.
His
findings were based on proper appreciation of evidence and were not
unreasonable much less perverse. The learned single Judge of the High Court in
our opinion, without appreciating or properly discussing the evidence set aside
the findings recorded by the Sessions Judge. The High Court appears to have-
embarked upon a course to find some minor contradictions in the oral evidence
with a view to disbelieve the prosecution version. In the opinion of the High
Court, conviction on the basis of uncorroborated testimony of the prosecutrix
was not safe. We cannot agree.
There
is no legal compulsion to look for corroboration of the evidence of the prosecutrix
before recording an order of conviction. Evidence has to be weighed and not
counted.
Conviction
can be recorded on the sole testimony of the prosecutrix, if her evidence
inspires confidence and there is absence of circumstances which militate
against her veracity. In the present case the evidence of the prosecutrix is
found to be reliable and trustworthy. No corroboration was required to be
looked for, though enough was available on the record. The medical evidence
provided sufficient corroboration. The High Court, however, while dealing with
the medical evidence observed as follows:
"Lady
doctor Urmil Gupta PW1, who had examined the prosecutrix, had admitted in so many
words towards the end of her cross examination that the injury found on the
private part of the prosecutrix and which is the only injury found in the
instant case, could be caused by insertion of a finger by a grown up person
like the parents of the prosecutrix It is true that normally no parents would
not do so but in the peculiar circumstances of this case, this possibility may
not be ruled out altogether. In any case the mere fact that the hymen of the prosecutrix
had been found ruptured, would not prove the prosecution version 23 and connect
the appellant with the offence charged against him." The above approach to
say the least was highly improper.
What
were the 'peculiar circumstances' of the case from which the learned single
Judge of the High Court thought that the possibility could not be ruled out
that the parents of the prosecuted would have themselves caused injury to the prosecutrix
by inserting finger in her vagina rupturing her hymen is not at all
understandable. There is no suggestion that on account of any enmity, the
parents of the girl would go to that length to falsely implicate the
respondent. Dr. Ghatate, the learned senior counsel was also unable to point
out any such 'circumstances' from the record which could show that there was any
possibility of the hymen of the prosecutrix having been ruptured in the manner
suggested by the High Court or any reason to falsely implicate the respondent.
In fairness to Dr. Ghatate it must be recorded that he did not support the
observations of the High Court noticed above.
The
learned single Judge of the High Court also drew an inference against the
prosecution from the fact that only two blood-stains had been found on the
shawl by the Chemical Examiner and doubted the prosecution version on that account.
According to the learned single Judge:
"In
natural course if this shawl had been used under the prosecutrix at the time of
the alleged offence, the same should have been drenched with blood in the
meddle. Moreover, this shawl should have been full of mud as it remained lying
on the ground under the prosecutrix for such a long time and when it had rained
throughout." In making the above observations, obviously the High Court
ignored the testimony of Doctor Urmil Gupta who had found the presence of blood-stains
and the mud on the shawl and who had opined that the bleeding from the edges of
the vagina was slight and that some amount of clotted blood was also present.
The prosecutrix was a girl of tender age and on account of the rape committed
on her, there was bleeding from her vagina but to expect that the shawl should
have got "drenched with blood" as if the large blood arteries had
been cut, is letting the imagination run wild and ignoring the circumstances of
the case. The absence of spermatoza on the vaginal slide, which was also
pressed into aid by the High 24 Court to acquit the respondent, was not based
on proper scrutiny of the evidence. The prosecution case itself was that on
being surprised while the respondent was in the act of committing sexual
intercourse on the prosecutrix, he ran away carrying his underwear. The absence
of spermatoza under the circumstances could not be said to be a circumstance in
favour of the respondent at all. The judgment of the High Court, in our
opinion, is based more on surmises and conjectures than on proper appreciation
of evidence. It exposes the insensitivity of the learned Judge to the serious
crime committed against human dignity. We are not impressed by the manner in
which the High Court dealt with the case. Courts must be wary, circumspect and
slow to interfere with reasonable and proper findings based on appreciation of
evidence as recorded by the lower courts, before upsetting the same and
acquitting an accused involved in the commission of heinous offence of rape of
hapless girl child.
Dr. Ghatate,
learned senior counsel for the respondent submitted, by reference to Rahim Beg
& Anr. v. State of U.P., [1972] 3 SCC 759, that the absence of injuries on
the penis of the respondent should be treated as sufficient to the negative
prosecution case. We are afraid we cannot agree. Inferences have to be drawn in
every case from the given set of facts and circumstances. There is no
inflexible axiom of law which lays down that the absence of injuries on the
male organ of the accused would always be fatal to the prosecution case and
would discredit the evidence of the prosecutrix, otherwise found to be
reliable.
The
presence of injuries on the male organ may lend support to the prosecution
case, but their absence is not always fatal. Rahim Beg's case (supra) was based
on its peculiar facts and the observations mate therein were in a totally
different context and cannot advance the case of the respondent. The
observations in Rahim Beg's case (supra) cannot be mechanically pressed into
aid in every case regardless of the specific circumstances of the crime and
absence of the fact situation as existing in that case.
Every
case has to be approached with realistic diversity based on peculiar facts and
circumstances of that case.
Doctor
Sharma who had examined the respondent had found him to be capable of sexual
intercourse and according to his opinion the absence of injury on his male
organ was not suggestive of the fact that he had not indulged in sexual
intercourse with the prosecutes then of tender years of age.
His
evidence was not at all challenged on this aspect by the defence.
Thus,
considered on the whole. we are of the opinion that the 25 judgment of the High
Court is based on conjectural findings and cannot be sustained. The same
deserves to be set aside and is hereby set aside. The reasoning given by the
learned Sessions Judge and the findings recorded by him on appreciation of
evidence have appealed to us and we find no reason to take a view different
than the one taken by the learned Sessions Judge.
We,
accordingly, set aside the acquittal of the respondent and hold him guilty of
the offence under Section 376 IPC for having committed rape on the prosecutrix,
Raksha Devi, on the date and in the manner alleged by the prosecution.
Having
recorded the conviction of the respondent for the offence under Section 376
IPC, the next question is about the awarding of proper sentence. The occurrence
took place on 2.8.1982, more than a decade ago. The learned Sessions Judge
after recording the conviction under Section 376 IPC had sentenced the
respondent to suffer RI for five years.
The
State did not move the High Court for any enhancement of the sentence. We,
therefore, feel that the ends of justice would be met if the sentence to be
imposed on the respondent is confined to five years RI as was awarded by the
learned Sessions Judge for cogent reasons recorded by him. We may emphasise
that though for such an offence a more severe sentence would have been
desirable but we have restricted ourselves to the maintenance of the sentence
as imposed by the learned Sessions Judge for the reason that the State did not
seek any enhancement of the sentence by filing an appropriate petition in the
High Court or in this Court and for over a period of seven years, while the
case has remained pending here, no notice had been issued to the acquitted
respondent to show cause as to why in the event of his acquittal being set
aside, a more deterrent sentence, than the one imposed by the Sessions Judge,
be not imposed upon him and without putting him on such a notice, the Court
cannot enhance the sentence. If the notice were to issue now, it would further
delay the disposal of the case and we do not consider that to be a proper
course to be adopted.
The
more stringent minimum sentence prescribed for an offence under Section 376 IPC
was also incorporated in the Code by an amendment only with effect from
December, 1982, after the offence in the present case had been committed.
The
appeal is consequently allowed and the judgment of the High 26 Court is set
aside. The respondent is held guilty of an offence under Section 376 IPC and
sentenced to suffer rigorous imprisonment for a period of five years. The
respondent shall be taken into custody to suffer the term of imprisonment.
R.P.
Appeal allowed.
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