TORAN SINGH v. STATE OF M. P. — 1986 DIGILAW 11 (MP)

RAM PAL SINGH, J. ( 1 ) THE appellant has challenged his conviction under Sections 366 and 376, Indian Penal Code, recorded by the Additional Sessions Judge, Basoda, in Sessions Trial No. 42 of 1982, dated 23-3-1983. He has been sentenced to rigorous imprisonment for three years on each count; both the sentences to run concurrently. ( 2 ) BRIEF facts are that Leelabai (P. W. 12) was kidnapped on 18-4-1981 at 5. 00 a. m. from her house by the appellant. She was taken from place to place and was subjected to rape by the appellant. Consequently, he was arrested and was prosecuted. The prosecution examined 12 witnesses. Leelabai (P. W. 12) narrated the entire story before the trial Judge. Portions of her testimony were corroborated by the first information report lodged by Nannulal (P. W. 2) in police station Basoda D/-18-4-1981 at 5. 00 p. m. Bhanukumar (P. W. 3) is the brother of the prosecutrix; Kailash (P. W. 5) is the uncle of the prosecutrix and Smt. Mayabai (P. W. 10) is her mother. Jasram Sharma (P. W. 11), who was the headmaster of the school, where Leelabai (P. W. 12) was a student, produced the register in which her date of birth was recorded. According to this witness, the date of birth of Leelabai Jain was entered in the admission register as 2-2-1965. Thus, on the date of the incident, her age, according to the entry in the admission register, was 16 years 2 months and 16 days. The Trial Court has relied upon the testimony of the prosecutrix and the appellants. ( 3 ) SHRI A. K. Shrivastava, learned counsel for the appellant, has contended that no positive evidence of rape was adduced by the prosecution during the trial and, hence, the appellant cannot be convicted under Section 376, IPC. He has also contended that according to Dr. (Mrs.) Indu Jain (P. W. 1) the prosecutrix was used to sexual intercourse and, hence, it should have been concluded by the Trial Court that the prosecutrix had willingly left her home along with the appellant and that even if the appellant had sexual intercourse with the prosecutrix it was with her consent. (Mrs.) Indu Jain (P. W. 1) the prosecutrix was used to sexual intercourse and, hence, it should have been concluded by the Trial Court that the prosecutrix had willingly left her home along with the appellant and that even if the appellant had sexual intercourse with the prosecutrix it was with her consent. Shri Shrivastava has also contended that reliance should not have been placed upon the testimony of Leelabai (P. W. 12) by the Trial Court and in absence of any corroboration on material particulars the appellant should not have been convicted. ( 4 ) ON persuasion, I have gone through the entire evidence on record and also the documents produced by the prosecution. The appellant had also examined Nathu (D. W. 1), Harnamsingh (D. W. 2) and Kallu (D. W. 3) in defence. Leelabai, the prosecutrix, has stated that in April, 1981 she was appearing for her examination. While she was studying in the early morning of the date of incident, she went outside her house to urinate. According to her, the appellant caught hold of her hand, gagged her mouth with cloth, terrified her with a knife, put her in a 'rickshaw' and took her across the railway line. There a bullockcart was standing. Leelabai was forcibly thrown into that bullock-cart and was taken away to the house of Malam Singh, the acquitted accused. According to her, the appellant detained her in the house of Malam Singh for 7 days and constantly raped her. She has vividly described the place where she was criminally assaulted. She has also vividly described the act of rape committed by the appellant on her. According to her, she was raped for about 10 to 15 timesduring her detention in the house of Malam Singh. From there she was taken to the house of Madho Singh, the acquitted accused, and was detained there for 7 days. In the house of Madho Singh, she was again raped by the appellant for about 8 or 10 times during that period. She was then transported to village Sander Bhander in a bullock-cart, where in a house she was kept under lock and key. There she was detained for 4-5 days and during that period the appellant criminally assaulted her for 8 or ten times. She was then transported to village Sander Bhander in a bullock-cart, where in a house she was kept under lock and key. There she was detained for 4-5 days and during that period the appellant criminally assaulted her for 8 or ten times. She was then taken to the house of Ramsingh and was detained there for 3 days and during those 3 days, the prosecutrix was repeatedly criminally assaulted. Subsequently, she was taken to Vidisha in the house of an advocate for swearing an affidavit in the Court. There a constable met her and when she stated that she was 15 years of age, the appellant was arrested by that constable. It is significant to note that the appellant was supplying milk in the house of the prosecutrix. During that period the appellant must have entertained an idea of kidnapping the prosecutrix and subjecting her to sexual intercourse. She was extensively cross-examined but nothing of significance could be obtained by the appellant in the cross-examination. It is strange that the appellant argues here that even if rape was committed by him, it was with the consent of the prosecutrix. But not a single question was asked in the cross-examination of Leelabai (P. W. 12) that she had willingly gone with the appellant and consented to illicit sexual intercourse. No doubt, the witnesses from those villages, where she was raped, were examined by the prosecution yet it was not possible for the investigating agency to have obtained any witness of this crime. The offence of rape is committed in secrecy. The prosecutrix was helpless. If she unwillingly subjected herself to the carnal lust of the appellant, it cannot be said that she had consented to or expressed her desire to have illicit relationship. In this male dominated society, women have become so timid and coward that they cannot resist the demon of lust. Even if Leelabai would have resisted the appellant's advances, it would have been futile exercise on her part. The Trial Court has rightly based the conviction of the appellant on the sole testimony of Leelabai (P. W. 12), whose testimony stands corroborated by the prompt first information report lodged by her father Nannulal Jain (P. W. 2 ). Admittedly, Dr. (Mrs.) Indu Jain (P. W. 1) had said that the prosecutrix was used to sexual intercourse and that two fingers easily could be inserted inside her vagina. Admittedly, Dr. (Mrs.) Indu Jain (P. W. 1) had said that the prosecutrix was used to sexual intercourse and that two fingers easily could be inserted inside her vagina. But it cannot be gathered from this physiological aspect that the prosecutrix was a flirt girl or she had consented to carnal lust of the appellant. She was of tender age, definitely below 18 years; she was constantly raped and if on 13-5-1981 Dr. (Mrs.) Indu Jain (P. W. 1) found this condition of her private part, there is nothing strange in this description. Constant forcible rape for nearly 27 days was likely to loosen the vaginal walls of the prosecutrix. ( 5 ) SHRI Shrivastava, learned counsel for the appellant, has cited before me a plethora of judgments of this Court in which the accused were acquitted only on the ground that while being abducted or kidnapped, the prosecutrix did not make a hue and cry, but the case in hand stands apart from those cases. In this case, the mouth of the prosecutrix was gagged. She was overwhelmed by criminal force used by the young man, i. e. , the appellant. There, thus, arose no question of her making any hue and cry or an alarm for help. ( 6 ) ON principle the evidence of a victim of sexual assault stands at par with evidence of an injured witness. Just as a witness who has sustained an injury is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. While corroboration in the form of eye-witness account of independent witnesses may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence itself. It would, therefore, be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the Western World as well as the Courts of this country. It would, therefore, be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the Western World as well as the Courts of this country. If the evidence of the victim of rape does not suffer from any basic infirmity and the 'probabilities-factor' does not render it unworthy of credence, as a general rule, there is no rule to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Such is not the case here. There is no reason why the prosecutrix shall falsely implicate the appellant. Nothing has been suggested to her in that regard in cross-examination. There seems to be no ground for falsely implicating the appellant in the alleged offence. ( 7 ) THEIR Lordships of the Supreme Court in Bohginbhai Hirjibhai, AIR 1983 SC 753 have observed :"corroboration is not the sine qua non for a conviction in a rape case. 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. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society. A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, relatives, friends, and neighbours. She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family. In view of these and similar factors the victims and their relatives are not too keen to bring the culprit to book. And when in the fact of these factors, the crime is brought to light there is a built-in assurance that the charge is genuine rather than fabricated. "keeping in view the above principles laid down by their Lordships of the Supreme Court, all the contentions of the appellant deserve to be rejected and are, accordingly, rejected. It is proved that the appellant kidnapped the prosecutrix, who was definitely below 18 years of age at the relevant time. It is proved that though the prosecutrix on the date of the incident was above 16 years of age yet she was subjected to rape against her will, and the offence was committed without her consent. It can further be held that the alleged consent was obtained by the appellant after putting her the fear of death. ( 8 ) BEFORE parting, I would like to observe that the learned trial Judge has only awarded three years' rigorous imprisonment for the offence of rape. When the offence was found to have been proved against the appellant, there existed no ground for showing leniency to the appellant, as has been shown by the learned trial Judge. A minor girl was kidnapped and was subjected to constant criminal assault for 27 days, yet the Trial Court has awarded only 3 years' rigorous imprisonment. Sentencing in criminology is an important science. Sentence should be equivalent to the offence proved. A girl's life has been spoiled by the bastardly lustful criminal assault by the appellant. There seems to be no reason for the Trial Court to award the appellant this lenient punishment. In the recent times when the assaults on the female folk of the country are increasing disproportionately, severe punishment is the demand of justice. I would have preferred to enhance the sentence, but in absence of any appeal by the State, I express my inability to do so. In the recent times when the assaults on the female folk of the country are increasing disproportionately, severe punishment is the demand of justice. I would have preferred to enhance the sentence, but in absence of any appeal by the State, I express my inability to do so. ( 9 ) CONSEQUENTLY, the appeal is dismissed and the conviction and sentence recorded by the Trial Court against the appellant are maintained. The appellant is on bail. His bail bonds are cancelled. He is directed to appear before the Chief Judicial Magistrate, Vidisha, to hear the result of this appeal on 27-1-1986. Appeal dismissed. .