CRLA/140/2000 of SOMCHANDRA Vs STATE

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

CRIMINAL APPEAL NO. 811/2001 (Old No. 140/2000)

Somchandra

……… Appellant

Versus

State of Uttarakhand

………. Respondent

Mr. S.P.S. Panwar, Sr. Advocate, assisted by Mr. H.C. Pathak, Advocate, for the appellant. Mr. Vinod Sharma, Deputy Advocate General (Criminal), for the State.

23rdAugust, 2012

Hon’ble Servesh Kumar Gupta, J.

This appeal has been preferred against the

judgment and order dated 22.1.2000, passed by the Sessions Judge, Haridwar whereby the accused appellant Somchandra has been convicted for the offence under Section 376 IPC and sentenced to undergo ten years’ rigorous imprisonment.

2. The relevant facts of the case are that Balak Ram (PW2), uncle of the prosecutrix, moved an application on 2.2.1996 to Deputy Superintendent of Police, Bhagwanpur Circle, with the averments that in the evening of 29.1.1996, his niece Km. Shashi had just returned to her home from the school. Her parents had gone to see the doctor. She was all alone in the house and was having meals in the kitchen. Noticing the solitary presence of his niece, accused Somchandra, neighbourer, entered into the house and dragged her niece from kitchen to the room. Accused was in full cry to rape Km. Shashi. She tried to raise screams, but the accused gagged her mouth. On the strength of knife, the accused threatened to kill her if she shouts any further. Thereafter making her bare, the accused mercilessly ravished Km. Shashi. In the meantime, her parents returned to home. One Smt. Leela, wife of

Ramdiya, also came at the place of occurrence. They apprehended the accused at the spot, but the family members of the accused got him freed at the physical strength. Police was approached, but it did not lodge the report. Hence, it was requested that case of rape be registered against the accused and action as per law be initiated against him.

3. Subsequent to the above report Ex. A-1 of the complainant, police came into action on the orders of concerned Deputy Superintendent of Police. Necessary entries were made in the General Diary in the evening of 3.2.1996, and only thereafter the victim was taken by the police for medical examination on 4.2.1996. On that day, Dr. Smt. Ranjana Lumba (PW6) medically examined her at 12.30 pm and prepared the medical report Ex. A-2, wherein she reported that hymen of the victim was torn, old tears were present, her vagina was admitting one finger, uterus was anteverted and normal in size. The doctor found no injury over the private parts of the victim. For age determination of the victim, x-ray was advised.

4. Victim was x-rayed by the radiologist Dr. Ajay Kumar (PW7) on 5.2.1996, who also prepared an x-ray report Ex. A-4, which is as under:

“— X-ray Right wrist, Elbow & Knee

Centre around elbow fused.

Lower end of femur fused, upper end of tibia not completely fused.

Lower end of radius & ulna not fused.”

5. On the basis of the above report of the radiologist, PW6 Dr. Smt. Ranjana Lumba prepared

supplementary medical report Ex. A-3. On the basis of the medical report and x-ray report, the age of the victim was estimated to be between 16 to 17 years. Since no live or dead spermatozoa were found in the vaginal smear of the victim on 6.2.1996, therefore, definite opinion about the rape could not be rendered by this doctor.

6. Investigation of the case was done by S.I. Daya Ram Arya (PW8), who after completion of the same submitted the chargesheet Ex. A-7 against the accused appellant for the offence under Section 376 IPC. Charge was, accordingly, levelled against the accused, who denied it and claimed trial.

7. To prove its case, prosecution examined as many as nine witnesses. PW1 is prosecutrix Km. Shashi, PW2 is her father Ram Das, PW3 is the complainant Balak Ram, PW4 is Satpal, fellow of the victim’s hamlet who has narrated the happenings which were prevailing at the scene of crime when the accused was caught red handed, PW5 Smt. Kamlesh is mother of prosecutrix, PW6 is Dr. Smt. Ranjana Lumba, who medically examined the victim, PW7 is Dr. Ajay Kumar, who had conducted the x-ray, PW8 is S.I. Daya Ram Arya, the Investigation Officer and PW9 is Sita Ram, who, at the relevant time, was the Principal of the school, where the victim was studying.

8. Thereafter, statement of the accused appellant was recorded under Section 313 CrPC. The oral and documentary evidence were put to him in question form, who denied the allegations made against him and stated that he was falsely implicated in this case. However, in

defence, he did not produce any oral or documentary testimony.

9. Learned Senior Counsel has vehemently argued on the question of age of the victim. He harped on his contention repeatedly in order to make an attempt to bring the victim out of the ambit of minority. He has drawn the attention of this Court towards the report of the radiologist stating that the girl was between 16 to 17 years. He has also read the excerpts of the evidence that the victim was from family living in penury, so her nutrition was also accordingly poor. In such cases, the fusion of the joint bones takes relatively longer period than of the children who are born and brought up in affluent families. The radiological report shows the fusion of the lower end of femur and also the centre around elbow. Thus the contention of learned Sr. Counsel is that the prosecutrix was above eighteen years or at least above sixteen years. Particularly more so when her radiological age has been estimated by doctor as about 16-17 years. This Court is humbly unable to agree with the said contention of learned Counsel for the reason that the fusion of only these two parts is not enough to infer that the age of the victim was above 16 years because at the same time the radiological report Ex. A-3 shows that the upper end of tibia and fibula was not fused and lower end of radius and ulna was also not fused.

10. Learned Senior Counsel put forth his submissions by way of relying upon precedent in case of Brij Mohan Singh v. Priya Brat Narain Sinha, reported in AIR 1965 SC 282. Hon’ble Apex Court in the said precedent was of the view that the parents of the children

mentions the age of their wards at the time of admission in the school different than its real age so that latter in life the child may have the advantage while seeking public service for which the minimum age of eligibility is often prescribed. The Court of fact cannot throw this fact while assessing the value of entry in the register and it would be improper to the Court to base any conclusion on the basis of such entries.

The above precedent of Hon’ble Apex Court has no application in the present controversy because in the referred case the school certificate entry was disbelieved on the ground that it was contrary to the entry in register which was called as “hath chitha” maintained by the Chowkidar of the village and that “hath chitha” (a particular register maintained by the Chowkidar at the time of birth of the candidate) of 25 years back was available. So in comparison of that register, the school entry was not believed by the Hon’ble Apex Court in order to determine the eligibility of candidate contesting the election. In other words, if more reliable register/record showing the date of birth of candidate is available then the entry in the school certificate is subsidiary as against the more genuine three decades old register maintained by some authorised person. If no such record is available then in such case, school certificate showing the age of the particular person is more reliable than sheer estimation based on radiological examination. More so, when age as mentioned in school certificate finds strength from the age the parents of the prosecutrix.

11. Here also the age of the victim is explicated in the school leaving certificate and that has been got proved as Ex. A-11 by the competent person. Her date of

birth is 2.7.1982. So, at the time of incident, she was about thirteen and half years. This date of birth as shown in the school certificate is more reliable taking into consideration the age of her parents. PW2 Ramdas is father of the victim. He has stated his age 31 years at the time of adducing his evidence on 3.12.1998 i.e. on the date of incident he was 28 years of age, and the age of her mother was 30 years on the date of adducing the evidence on 28.1.1999. So, on the date of incident, she was 27 years of age. At the same time, PW5 Kamlesh has deposed that she was married at the age of 12 years. So, this way Smt. Kamlesh at the time of her marriage was of 12 years and age of her husband Ramdas was 13 and half years. So, this was quite possible that Ramdas and his wife, when both albeit minors but nearing the age of attaining puberty could beget the progeny and this way Km. Shashi was born. Thus, the age which has been mentioned in the certificate is more reliable. Further, Km. Shashi has explained her age as 14 years at the time of her deposition on 2.12.1998. So, at the time of incident she was quite minor and was of the age which is near as has been shown in the school certificate.

12. In similar case titled as Kumari Razda v. Noor Mohd & Others (Habeas Corpus Petition No. 15903/1993, decided on 24.9.1993), Hon’ble Allahabad High Court rejected an identical contention that there remains tendency of the parents to reduce the age while admitting their children for education and therefore school leaving certificate of the petitioner could not be relied upon as believable evidence. This contention was viewed as devoid of merit because it all depends upon the status of the family. If the prosecutrix father was labourer and she had studied in the school for about only

two years, then the presumption that parents while admitting their children for education get their age registered lesser than the real one is not acceptable. In the instant case also, the prosecutrix does not belong to that class of society from where educated girls come for different services after proper education. The aforesaid argument could have some force in the case of the said educated girls, but it carries no weight so far as the daughter of labourer is concerned. He, in the ordinary course, would have disclosed the correct date of birth of his daughter. In the case in hand, the father of the prosecutrix was also poor person. He hardly have the earnings to manage his both ends meal and medicines. So, in this position he could not have the foresight to register the date of birth lesser than the real one of his daughter, much less four years than the real age.

13. In yet another case Lalla Singh @ Ravendra Singh v. State of U.P., reported in A.Cr.R. 1998 (2) 1.181(Hindi), it was held that the age cannot be determined only on the estimation of the Chief Medical Officer based on the ossification test. In comparison to such ossification test, the entry in the school register cannot be discarded.

14. When the prosecutrix was of such tender age i.e. about 13 to 14 years, then although she was not consenting party, but even if she consented then it was meaningless. Her consent was of no avail taking her age into consideration, which was much below 16 years at the time of incident.

15. Learned Counsel for the appellant has also put forth submission regarding the injury on the body of

the prosecutrix while resisting the cruel sexual assault. He has indicated the deposition of Km. Shashi that at the time when she was being dragged by the accused at the point of knife and also when she was ravished bitterly, she reacted with the stiff resistance. So, learned Counsel has argued that such resistance would have made the marks upon the body of the victim at several places. This contention is also not tenable and deserves rejection. Suffice would be to quote the precedent of Hon’ble Apex Court in Gurcharan Singh v. State of Haryana, reported in (1972) 2 SCC 749, wherein it has been held as under:

“Absence of injury or mark of violence

on the private part on the person of the prosecutrix is of no consequence when the prosecutrix is minor and would merely suggest want of violent resistance on the part of the prosecutrix. Further absence of violence or stiff resistance in the present case may as well suggest helpless surrender to the inevitable due to sheer timidity. In any event, her consent would not take the case out of the definition of rape.”

16. In Devinder Singh v. State of H.P., reported in (2003) 11 SCC 488, similar issue was considered by the Hon’ble Apex Court and the Court took into consideration the relevant evidence wherein rape was alleged to have been committed by five persons. No injury was found on the body of the prosecutrix. There was no matting on the pubic hair with discharge and no injury was found on the genital areas. However, it was found that the prosecutrix was used to sexual intercourse. The Hon’ble Apex Court held that the fact that no injury was

found on her body only goes to show that she did not put up resistance.

17. Learned Senior Counsel has also argued that the accused was allegedly having knife at the time of crime, but the same was not recovered from him. This contention is also not tenable for the reason that the accused and his family members are mighty persons. That is why hearing the news spread in the village, the family members of the accused person promptly came at the spot and got him released from the clutches of the parents of the victim and other villagers. So, there was no reason to leave the knife at the spot.

18. Learned Counsel has also argued that since rupees ten thousand was borrowed by the father of the victim and he was unable to repay the same to the father of the accused, so this false accusation has been initiated in order to suppress the accused and his family. He has relied upon precedent of Radhu v. State of M.P., reported in 2007 (3) CCSC 1653. This precedent is not applicable in the present case for the reason that Hon’ble Apex Court has not held that in every case when the borrowed money had to be repaid, then false accusations are often launched in order to get rid the repayment of the money. The facts of Radhu’s case were quite different. The victim was called in the house of the accused by his mother on some pretext. The victim and accused Radhu were close relatives to each other. As the victim entered in the house of Radhu, she was dragged by him in room and kept in caption for the entire night in the presence and knowledge of his mother Gyarasibai. She remained in captivity whole night and was subjected to intercourse two times in the night. She was permitted to

leave the house only in the morning of the next day. When the prosecutrix named [REDACTED] did not return for such long period, then Lalitabai (mother of the victim) asked Gyarasibai (mother of the accused). Offence then could be revealed. In those circumstances, when both were closely related having cordial relations to each other, then the Hon’ble Apex Court disbelieved the version of the prosecutrix that she was called in the house by Gyarasibai on some pretext and within her knowledge, she was kept in captivity in room for the whole night in the company of the accused Radhu, son of Gyarasibai. So, the defence version that the allegations were founded in order to get rid of the economic debt owed by Lalitabai was accepted by the Hon’ble Apex Court.

19. The facts and circumstances are not similar in the instant matter. Accused and prosecutrix are of the different caste and status. Accused and his family are mighty in physical as well as in monetary strength while prosecutrix and her parents are very weak in both ways. They are not related to each other in any way. The prosecutrix was not invited by the mother of the accused in her house. She did not remain on the bed of the accused person for whole of the night. But the accused noticing the solitary presence, entered in the house of the victim when she was having her lunch after returning from her school at about 3.30 pm. At the time when she was being mercilessly ravished by the accused, her parents returned after consultation with the doctor. So, the accused was caught red handed. That apart, there is no reliable proof that father of the prosecutrix was indebted to the father of the accused.20. In the above facts and circumstances, this Court feels that no parents would like to stick stigma or scar upon her minor daughter for all times to come and will put her in jeopardy for her forthcoming marriage.

21. So, the appeal preferred by the accused against the judgment and order of the trial court is wholly unsustainable and it fails thus.

22. Appeal is accordingly dismissed. Impugned judgment and order dated 22.1.2000, passed by the Sessions Judge, Haridwar in Sessions Trial No. 218/1996, State v. Somchandra, is hereby affirmed. Conviction and sentence awarded by the trial court are upheld. Convict appellant Somchandra is on bail. His bail bonds are cancelled. Sureties are discharged. Appellant shall be taken into custody forthwith to serve out the sentence awarded by the trial court.

23. Let copy of this judgment and order be sent to the court below for compliance. Lower court record be also sent back.

(Servesh Kumar Gupta, J.)

13. In case of Murugan @ Settu v. State of Tamil Nadu, reported in (2011) 6 SCC 111, the Hon’ble Apex Court has held that “the documents made ante litem motam can be relied upon safely, when such documents are admissible under Section 35 of the Evidence Act, 1872. (This literally translates to “before the lawsuit was started”. The doctrine is that if something was done before legal dispute arose, then it was done at time when the declarant had no motive to lie.)

The Hon’ble Apex Court in Madan Mohan Singh v. Rajni Kant, reported in (2010) 9 SCC 209, considered large number of judgments including Brij Mohan Singh v. Priya Brat Narain Sinha and cam to the conclusion that while considering such an issue and documents admissible under Section 35 of the Evidence Act, the court has right to examine the probative value of the contents of the documents. The authenticity of entries may also depend on whose information such entry stood recorded and what was his source of information, meaning thereby, that such document may also require corroboration in some cases.

14. Thus, there is no reason to doubt the veracity of the said certificate. More so, the school certificate has been issued by the Headmaster on the basis of the entry made in the school registers which corroborates the contents of the certificate of birth issued by the Municipality. Both these entries came much before the criminal prosecution started and those entries stand fully supported and corroborated by the evidence of PW1, PW2, PW5, the father and mother of the prosecutrix. She had been examined at length but nothing could be elicited to doubt her testimony. The defence put suggestion to her that she was talking about the age of

her younger daughter and not of prosecutrix, which she flatly denied. Her deposition remained unshaken and is fully reliable.

15. In view of the above, I do not see any reason to hold that the prosecutrix was major on the date of incident and in view thereof, no other issue is required to be considered. I also see no reason to interfere with the quantum of punishment. Thus, the appeal fails and is accordingly dismissed.

16. In case of Vijay @ Chinee v. State of Madhya Pradesh, reported in (2010) 8 SCC 191, the Hon’ble Apex Court referred to the case of State of U.P. v. Pappu (1996) 2 SCC 384, wherein it was held that even in case where it is shown that the girl is girl of each virtue or girl habituated to sexual intercourse, it may not be ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be factor that leads the court to absolve the accused. The Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under:“12. It is well settled that prosecutrix complaining of having been victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the

former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do.”

It is settled legal proposition that while appreciating the evidence of witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution case, may not prompt the court to reject the evidence in its entirety.

17. Injury on the person of the prosecutrix: In Gurcharan Singh v. State of Haryana, reported in(1972) 2 SCC 749, Hon’ble Apex Court has held that the absence of injury or mark of violence on the private part on the person of the prosecutrix is of no consequence when the prosecutrix is minor and would merely suggest want of violent resistance on the part of the prosecutrix. Further absence of violence or stiff resistance in the present case may as well suggest helpless surrender to the inevitable due to sheer timidity. In any event, her consent would not take the case out of the definition of rape.

(The facts of Brij Mohan Case are quite distinguishable.) Km. Shashi, the prosecutrix had been consistent throughout in her statement that intercourse was against her wishes and that there was no consent as she had forcibly been caught and threatened and thereafter, she had been subjected to rape. In view of the above, I am of the view that the court below reached the correct conclusion that the prosecutrix was minor. Be that as it may, there is nothing on record to establish the consent of the prosecutrix in this case.

There is no material on record on the basis of which, this Court may take different view or conclusion from the court below. I do not find any force in this appeal, which is accordingly dismissed.

19. In case of Arjun Singh v. State of Himachal Pradesh, reported in (2009) 4 SCC 18, the Hon’ble Case referred to its earlier judgment in Vishnu v. State of Maharashtra ((2006) 1 SCC 283, wherein it was inter alia held as follows:

“20. It is urged before us by Mr. Lalit that the determination of the age of the prosecutrix by conducting ossification test is scientifically proved and therefore, the opinion of the doctor that the girl was of 18-19 years of age should be accepted. We are unable to accept this contention for the reasons that the expert medical evidence is not binding on the ocular evidence. The opinion of the medical officer is to assist the court as he is not witness of fact and the evidence given by the medical officer is really of an advisory character and not binding on the witness of fact.”

In State of Chhattisgarh v. Lekhram, reported in(2006) 5 SCC 736, it was held that: “the register maintained in school is admissible in evidence to prove the date of birth of the person concerned in terms of Section 35 of the Evidence Act, 1872. It may be true that an entry in the school register is not conclusive but it has evidentiary value.”

20. In Mohd. Imran Khan v. State of Government (NCT of Delhi), reported in (2011) 10 SCC 192, the Hon’ble Apex Court observed that the medical report and the deposition of the radiologist cannot predict the exact

date of birth, rather it gives an idea with long margin of 1 to 2 years on either side. In Jaya Mala v. Govt of J & K, reported in (1982) 2 SCC 538, this Court held:

“9. ….However, it is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side.”

Evidence of the prosecutrix : It is trite law that woman, who is the victim of sexual assault, is not an accomplice to the crime but is victim of another person’s lust. The prosecutrix stands at higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Evidence Act, 1872 (hereinafter called “the Evidence Act”), nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly competent witness under Section 118 of the Evidence Act 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. If the court keeps this in kind and feels satisfied that it an 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. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have strong motive to falsely

involve the person charged, the court should ordinarily have no hesitation in accepting her evidence.”

There is no reason to disbelieve the prosecutrix, as no self-respecting girl would level false charge of rape against anyone by staking her own honour. In State of Punjab v. Gurmit Singh, reported in (1996) 2 SCC 384, the Hon’ble Apex Court observed that: “8. …..the courts must, while evaluating evidence, remain alive to the fact that in case of rape, no self-respecting woman would come forward in court just to make humiliating statement against her honour such as is involved in the commission of rape on her.”

Similarly, in Wahid Khan v. State of M.P., reported in (2010) 2 SCC 9, it has been observed as under:

“17. It is also matter of common law that in Indian society any girl or woman would not make such allegations against person as she is fully aware of the repercussions flowing therefrom. If she is found to be false, she would be looked at by the society with contempt throughout her life. For an unmarried girl, it will be difficult to find suitable groom. Therefore, unless an offence has really been committed, girl or woman would be extremely reluctant even to admit that any such incident had taken place which is likely to reflect on her chastity. She would also be conscious of the danger of being ostracised by the society. It would indeed be difficult for her to survive in Indian society which is, of course, not as forward-looking as the western countries are.”

18. Let copy of this judgment and order be sent to the trial court for its compliance. Lower court record be also sent back.