State
of Rajasthan Vs. Om Prakash [2002] Insc 249 (3 May 2002)
Y.K.
Sabharwal & B.P. Singh Y.K. Sabharwal, J.
It is
necessary for the courts to have a sensitive approach when dealing with cases
of child rape. The effect of such a crime on the mind of the child is likely to
be lifelong. A special safeguard has been provided for children in the
Constitution of India in Article 39 which, inter alia, stipulates that the
State shall, in particular, direct its policy towards securing that the tender
age of the children is not abused and the children are given opportunities and
facilities to develop in a healthy manner and in conditions of freedom and
dignity and that the childhood and youth are protected against exploitation and
against moral and material abandonment. In the present case, the victim at the
time of occurrence of rape was a child aged eight years. The accused was youth
aged 18 years. The Additional District and Sessions Judge found him guilty for
offence under Section 376, Indian Penal Code and imposed rigorous imprisonment
for seven years and fine of Rs.1,000/- and in default of payment of fine to
further undergo six months' rigorous imprisonment. The High Court by the
impugned judgment dated 14th
November, 1995 giving
to the accused the benefit of doubt acquitted him. The State is in appeal on
grant of special leave.
The
house of the accused is quite close to that of the prosecutrix. The incident of
rape is said to have taken place on 19th March, 1989 in a village.
The
FIR was registered on 20th
March, 1989. The
medical examination of the prosecutrix also took place on 20th March, 1989. The prosecution to bring home the
charge against the accused examined 14 witnesses including the parents of the prosecutrix,
her brother, aunt, four doctors, police officials besides the prosecutrix. The
respondent-accused was held guilty of the offence by the trial court primarily
relying upon the testimony of the father of prosecutrix (PW-1), mother (PW-2),
the prosecutrix (PW-5) and Dr. Harsh Chand Jain (PW-11).
The
testimony of PW-2 is that her daughter had gone to the house of Sita Singh to
take therefrom butter milk. Accused is the son of Sita Singh. When she did not
return for a long time, PW-2 went to see her in the said house.
When
she went to that house, the door was closed which she pressed open. There she
found that her daughter was lying naked on a cot and the accused was lying over
him penetrating his penis into her vagina. On seeing this she shouted.
Whereupon
leaving her daughter, the accused ran away. She found her daughter totally
unconscious. She lifted her and brought her back home. At that time, husband
and brother-in-law of PW-2 had gone to another village. Her daughter gained
consciousness at the time of sunset. She deposed that Om Prakash, the respondent,
was alone at home. Next day a report was lodged with the police.
She
also deposed in her cross-examination that earlier too her daughter used to
bring butter milk from the house of Sita Singh.
PW-1,
father of the prosecutrix, deposed that he had gone with his brother to his
relatives in village Bateri and came back in the evening at about 7 o' clock
when his wife told him as to what Om Prakash had done to their daughter.
He did
not go to the police station at night as there was no means of conveyance and
reached the police station at 10/11 a.m. the next day and lodged the report.
The
police station is about 15 kms. away from their village.
PW-4
is the wife of brother of PW-1. Her testimony is that she saw PW-2 coming
weeping and taking prosecutrix in her lap. She also deposed that her husband
and younger brother-in-law had gone to the relatives in village Bateri on that
date. She has supported the version given by PW-2.
PW-5
is the prosecutrix. Being a child witness, the learned Additional District and
Sessions Judge before administering her oath asked general questions so as to
satisfy that she is competent to answer the questions and take oath. Her
statement in court was recorded about four years after the date of the
incident.
Her
deposition was that she had gone to the house of Om Prakash to bring butter
milk on that date. At that time no other person was at his house. Om Prakash
closed the door and asked her to come inside and he will put butter milk in the
utensil; he incited her and carried her in room; took out her under garments,
inserted cloth in her mouth and widened her both legs and put his body on her
and penetrated his penis into her vagina as a result whereof vagina started
bleeding and she became unconscious.
PW-11
is Dr. Harsh Chand Jain. His testimony is that, on 20th March, 1989 he was on duty in General Hospital, Alwar. On the request
of the S.H.O. he examined prosecutrix. Externally there was no injury on her
body but on the internal parts of both thighs and at the outer part of the left
foot there were signs of blood. For internal examination she was referred to Family Incharge Hospital. The injury report exhibit P8 was
in his handwriting. In Ex.P-8, the reports of Dr. Pushpa Gupta and Dr. V.P. Agarwal
had been incorporated. PW-11 stated that "In my opinion, the intercourse
was done with the girl i.e. the possibility of doing the intercourse cannot be
ruled out". The tip of the finger in the whole of her uterus was passing
easily. PW-11 deposed that "According to the opinion of the lady doctor,
the opinion of the pathologist and my opinion of the examination, something was
penetrated in her vagina." (Emphasis has been supplied by us). The only
cross-examination of the witness was that "The main examination report by
Doctor Rupa Gupta and Doctor V.P. Agarwal is not there before me. The seminal
stains were not present on the clothes. After the sexual contact, the vagina
remains in tact." The aforesaid in brief is the evidence which resulted in
judgment of conviction by the trial court and acquittal by the High Court.
There
was delay of nearly 26 hours in lodging the FIR. The offence is alleged to have
taken place at about 9
a.m. The FIR was
registered at about 11.30
a.m.
on the
next day. It was contended by Mr. Bachawat, learned counsel for the respondent,
that this delay had assumed importance and was fatal particularly when the
brother of the prosecutrix , namely, Mam Raj (PW-6) was admittedly at the
house. The delay, according to the counsel, has resulted in embellishments.
Reliance
has been placed on the decision in the case of Thulia Kali v. The State of
Tamil Nadu [AIR 1973 SC 501] holding that the first information report in a
criminal case is extremely vital and valuable piece of evidence for the purpose
of corroborating the oral evidence adduced at the trial. The object of
insisting upon prompt lodging of the report to the police in respect of
commission of an offence is to obtain early information regarding the
circumstances in which the crime was committed, the names of the actual culprits
and the part played by them as well as the names of eye witnesses present at
the scene of occurrence. Delay in lodging the first information report quite
often results in embellishment which is a creature of afterthought. On account
of delay, the report not only gets bereft of the advantage of spontaneity,
danger creeps in of the introduction of coloured version, exaggerated account
or concocted story as a result of deliberation and consultation. There can be
no dispute about these principles relied upon by Mr. Bachawat but the real
question in the present case is about the explanation for the delay. It is not
at all unnatural for the family members to await the arrival of the elders in
the family when the offence of this nature is committed before taking a
decision to lodge a report with the police. The reputation and prestige of the
family and the career and life of a young child is involved in such cases.
Therefore, the presence of the brother of the prosecutrix at home is not of
much consequence.
It has
been established that the father of the girl along with his brother came back
to their house at 7
o'clock in the
evening. The girl was unconscious during the day. PW-2 told her husband as to
what had happened to their daughter. The police station was at the distance of
15 kms. According to the testimony of PW-1 no mode of conveyance was available.
The police was reported the next day morning and FIR was recorded at 11.30 a.m. The delay in reporting the matter to the police has
thus been fully explained.
A
contention was also urged on behalf of the accused before the High Court that
his age was 15 years and not 18 years at the time of incident. The basis of
this contention was an affidavit of the mother of the accused and certain
school certificates. Both the courts relying upon the evidence of Dr. Raj Kumar
Misra, PW-9, held otherwise and came to the conclusion that the accused was
capable of doing intercourse.
The
main reasons which prevailed with the High Court in reversing the conviction
were two. First, the non-examination of other independent witnesses and second
the rejection of medical evidence, i.e., testimony of Dr. Harsh Chand Jain (PW-
11).
As to
non examination of other witnesses, the High Court has noticed that the
incident had taken place in the environment of the village where there are
other residential houses; the house of the prosecutrix from where the incident
took place is 2-3 houses away and in the house of the accused his other
brothers and sisters-in-law also live. The testimony of PW-2 is that seeing her
the accused ran away. The High Court has held that in the light of these facts
it was unnatural that PW-2 and PW-5 would not have shouted and others might not
have gathered at the place of incidence and astonishingly except the family
members no other witness has come forward to support the case of the
prosecution. The High Court has also described as unnatural the statement of
the mother that except her husband's brother's wife PW-4, not a single person
of the village had come to her house. The approach of the High Court can be
best described in the words of the High Court itself as follows:
"It
is not acceptable that on committing such type of heinous crime, not a single
person might have come forward to give the statement. In such type of crime in
which an innocent girl is the victim, not only the neighbour but other persons
can come to give the evidence and doing such thing by them indicate their
natural conduct." The conviction for offence under Section 376 IPC can be
based on the sole testimony of a rape victim is well settled proposition.
In
State of Punjab v. Gurmit Singh & Ors. [(1996)
2 SCC 384], referring to State of Maharashtra v. Chandraprakash Kewal Chand
Jain [(1990) 1 SCC 550], this Court held that it must not be overlooked that a
woman or a girl subjected to sexual assault is not an accomplice to the crime
but is a victim of another person's lust and it is improper and undesirable to
test her evidence with a certain amount of suspicion, treating her as if she
were an accomplice. It has also been observed in the said decision by Dr.
Justice A.S. Anand (as His Lordship then was), speaking for the court, that the
inherent bashfulness of the females and the tendency to conceal outrage of
sexual aggression are factors which the courts should not overlook. The
testimony of the victim in such cases 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 a victim of sexual
assault alone to convict an accused where her testimony inspires confidence and
is found to be reliable. Seeking corroboration of her statement before relying
upon the same, as a rule, in such cases amounts to adding insult to injury.
In
State of H.P. v. Gian Chand [(2000) 1 SCC 71]
Justice Lahoti speaking for the Bench observed that the Court has first to
assess the trustworthy intention of the evidence adduced and available on
record. If the court finds the evidence adduced worthy of being relied on, then
the testimony has to be accepted and acted on though there may be other
witnesses available who could have been examined but were not examined.
We
have scanned and scrutinized very carefully the evidence on record in
particular the evidence of the parents of the prosecutrix, her brother, prosecutrix
and PW-11, Dr. Harsh Chand Jain with a view to satisfy our conscious to find
out whether the verdict of conviction of the respondent that had been rendered
by the learned Additional District and Sessions Judge could, in law, be upset
by the High Court. The evidence has been found by us to be trustworthy,
convincing and reliable. The High Court seems to have overlooked that it had
been established on record that at the time of the incident Om Prakash was
alone at home. When such an act is done, the natural tendency is not to talk
about it to others but, to an extent possible, hide it. There was nothing
unnatural for other villagers not visiting the house of PWs-1 and 2. Being a
child witness, we have examined the testimony of PW-5 and that of her mother
with utmost care and caution. The High Court has clearly committed a serious
illegality in assuming that in natural course of events if rape had been
committed, the young child girl and her mother would have shouted so as to
collect others and they would have visited her house. The prosecutrix was
unconscious. There was no question of prosecutrix shouting as assumed by the
High Court. Too much was made by the High Court on account of non-examination
of persons other than the family members. The aspect of the non-examination was
given undue importance without having regard to the contextual facts. The cases
involving sexual molestation and assault require a different approach a
sensitive approach and not an approach which a court may adopt in dealing with
a normal offence under penal laws. It was also sought to be suggested that
there were some disputes between the accused and the father of the prosecutrix
over exchange of some land and that is the reason for their implicating the
accused. There is nothing reliable on the record to substantiate that aspect.
No such suggestion was even put in the cross-examination of the father of the prosecutrix.
On the facts in hand, we find it difficult to accept that the revenge on
account of alleged dispute regarding exchange of land would be taken by the
father of the prosecutrix by foisting on the accused a false case of rape
involving his young daughter particularly in the setting of a village
environment. The conviction could not be set aside for the non-examination of
independent witness.
As to
the second reason, we find that the evidence of PW-11, Dr.Harsh Chand Jain, is
clear and specific. He was the author of the report. Though ideally Dr. Pushpa
Gupta could have been examined or her absence explained but that does not
destroy the prosecution case which otherwise stands proved. The High Court was
clearly in error in coming to the conclusion that in the absence of evidence of
Dr. Pushpa Gupta, there was no support from any medical evidence.
PW-11
had also examined her. He had referred the prosecutrix to Dr.Pushpa Gupta. Dr. Pushpa
Gupta had reported to PW-11 who categorically stated that in his opinion on
examination something had been penetrated in the vagina of the prosecutrix and
that intercourse was done with the girl i.e. the possibility of doing the
intercourse cannot be ruled out. For no valid reason the High Court discarded
the evidence of the doctor.
The
evidence of a child witness is required to be evaluated carefully as the child
may be swayed by what others may tell him or her as the child is an easy pray
to tutoring. Wisdom requires that the evidence of child witness must find
adequate corroboration before it is relied on {State of U.P. v. Ashok Dixit
& Anr. [JT 2000 (2) SC 107]}. We have already held that in the present case
we have carefully examined the evidence of the child and the other evidence. We
find the reasons given by the High Court for rejecting the said evidence wholly
unconvincing. It is unfortunate that what to talk of considering, the High
Court has not even noticed the testimony of the prosecutrix in the judgment
under appeal Learned counsel for the respondent contended that if there was any
forcible sexual intercourse, it would have resulted in some injuries upon the prosecutrix
and in support relied upon Joseph s/o Kooveli Poulo v. State of Kerala [JT 2000
(6) SC 195]. This decision has no relevance. As observed therein, the injuries
are not always a sine qua non to prove a charge of rape. Let it not be
forgotten that we are considering the case of a rape on a girl child aged eight
years and not on a grown up woman.
Child
rape cases are cases of perverse lust for sex where even innocent children are
not spared in pursuit of the sexual pleasure. There cannot be anything more
obscene than this. It is a crime against humanity. Many such cases are not even
brought to light because of social stigma attached thereto.
According
to some surveys, there has been steep rise in the child rape cases.
Children
need special care and protection. In such cases, responsibility on the
shoulders of the courts is more onerous so as to provide proper legal
protection to these children. Their physical and mental immobility call for
such protection. Children are the natural resource of our country. They are
country's future. Hope of tomorrow rests on them. In our country, a girl child
is in a very vulnerable position and one of the modes of her exploitation is
rape besides other mode of sexual abuse. These factors point towards a
different approach required to be adopted. The overturning of a well considered
and well analyzed judgment of the trial court on the grounds like non-
examination of other witnesses, when the case against the respondent otherwise
stood established, beyond any reasonable doubt was not called for. The minor
contradiction of recovery of one or two underwear was wholly insignificant.
Lastly,
it was contended on behalf of the respondent that the incident took place about
13 years back and by now the accused has matured and would be around 31 years
of age and having already undergone nearly three years of sentence, the same
may be treated by this Court as sufficient punishment to him and, therefore,
taking a sympathetic view, the sentence already undergone be imposed.
We are
unable to accept the contention. The trial court imposed on the respondent
sentence of seven years' rigorous imprisonment besides fine, as earlier
noticed. Having played with the life of a child, the respondent does not
deserve any leniency and for him sympathy on the ground sought for will be
wholly uncalled for. The respondent deserves to undergo the remaining part of
the sentence awarded by the learned Additional District and Sessions Judge.
For
the aforesaid reasons, we allow the appeal and set aside the judgment of the
High Court and restore that of the trial court. Bail bonds of the respondent
shall be cancelled and respondent be taken into custody forthwith to undergo
the remaining sentence.
..............................,J.
[Y.K. Sabharwal]
..............................,J.
[B.P.
Singh] May 3, 2002.
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