Research › Search › Judgment

Rajasthan High Court · body

2001 DIGILAW 578 (RAJ)

Angrej Singh v. State of Rajasthan

2001-04-10

SUNIL KUMAR GARG

body2001
Honble GARG, J.–This appeal has been filed by the accused appellant Angrej Singh against the judgment dated 30.9.1999 and order of sentence dated 1.10.1999 passed by the learned Additional Sessions Judge No. 2, Bikaner in Sessions Case No. 36/98 by which he convicted the accused appellant for the offence u/Sec. 376 IPC and sentenced him to undergo ten years SI and to pay fine of Rs. 2000/-, in default of payment of fine, to further undergo two months SI. (2). The prosecution story may be stated like this:- Sajjan Kanwar, PW 2 (hereinafter referred to as the prosecutrix) lodged a written report Ex.P/1 on 20.3.1998 at about 11.30 AM before PW 9 Tara Chand, SHO, Police Station Lunkaransar District Bikaner and at that time, she was accompanied by the grand-father PW3 Sultan Singh stating inter-alia that prosecutrix resided in the agriculture Farm House Lunkaransar and used to study in Class VIIIth in Lunkaransar Senior Girls School. The prosecutrix has further stated that on 20.3.1998 at about 7.00 AM, her grand- father PW3 Sultan Singh went from her house for taking fodder for animals and after a long time when her grand-father PW 3 Sultan Singh did not return back, she proceeded towards agriculture farms water Diggi for taking Rs. 10/- from her grand-father PW 3 Sultan Singh, but she did not find her grand father PW 3 Sultan Singh there. The prosecutrix has further stated that when she was returning back to her house, accused appellant Angrej Singh and another accused Deepak met her and seeing her alone, both caughthold her and took her in khala. The prosecutrix has further stated that accused Deepak closed her mouth and both accused put her on the ground in khala and accused appellant Angrej Singh opened her salwar and underwear forcibly and then committed rape on her and thereafter, both ran away towards the Dhani. Thereafter, she wailing and crying came to her house and narrated the whole story to her Bhua Prema and at that time, her grand-father PW3 Sultan Singh also came there and thereafter, the report Ex.P/1 was lodged by her alongwith her grand-father PW3 Sultan Singh. On this report, the police registered the case and chalked out FIR Ex.P/2 and started investigation. During investigation, site plan Ex.P/3 was prepared and through Ex.P/4, salwar, jampher and underwear of the prosecutrix PW 2 Sajjan Kanwar were seized. On this report, the police registered the case and chalked out FIR Ex.P/2 and started investigation. During investigation, site plan Ex.P/3 was prepared and through Ex.P/4, salwar, jampher and underwear of the prosecutrix PW 2 Sajjan Kanwar were seized. The statement of the prosecutrix PW 2 Sajjan Kanwar u/Sec. 164 Cr.P.C. was recorded by the Magistrate on 26.3.1998 and same is Ex.P/5. The prosecutrix PW 2 Sajjan Kanwar was got medically examined for the purpose of ascertaining her age as well as for finding out whether rape was committed on her or not. Her medical examination report with regard to rape is Ex.P/9. The report about her age is Ex.P/10, where the doctors, on the basis of clinical findings and radiological report assessed that her age was above 15 years and below 17 years on the date of examination i.e. 21.3.1998. The Scholar Register of the Government Girls Senior Secondary School, Lunkaransar, where prosecutrix was studying, was also produced and as per that Scholar Register, her date of birth is 4.1.1984 and the copy of that Scholar Register is Ex.P/12A and the copy of the T.C. Form is Ex.P/13A, where the same date of birth is mentioned. The application form (Ex.P/22A) by which the prosecutrix sought admission in Adarsh Happy School, Lunkaransar also shows that her date of birth is 4.01.1984. After usual investigation, the police submitted challan against the accused appellant Angrej Singh and another accused Deepak Kumar in the Court of Magistrate from where the case was committed to the Court of Session. Note:- It may be stated here that the case of accused Deepak Kumar was sent to Juvenile Court as he was below 16 years of age. On 16.7.1998, the learned Addl. Sessions Judge No. 2, Bikaner framed charge u/Sec. 376 IPC against the accused appellant. The charge was read over and explained to the accused appellant, who pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as 11 witnesses and got exhibited some documents. Thereafter, statement of the accused appellant u/Sec. 313 Cr.P.C. was recorded. No evidence in defence was produced by the accused appellant. After conclusion of trial, the learned Addl. During trial, the prosecution in support of its case examined as many as 11 witnesses and got exhibited some documents. Thereafter, statement of the accused appellant u/Sec. 313 Cr.P.C. was recorded. No evidence in defence was produced by the accused appellant. After conclusion of trial, the learned Addl. Sessions Judge No. 2, Bikaner through his judgment dated 30.9.1999 convicted the accused appellant for the offence u/Sec. 376 IPC and sentenced vide order of sentence dated 1.10.1999 in the manner as indicated above holding inter-alia:- 1. That on the date of occurrence, the prosecutrix PW 2 Sajjan Kanwar was below the age of 16 years. 2. That prosecution has proved its case beyond all reasonable doubts against the accused appellant for the offence u/sec. 376 IPC. Aggrieved from the said judgment dated 30.9.1999 and order of sentence dated 1.10.1999 passed by the learned Addl. Sessions Judge No. 2, Bikaner, this appeal has been filed by the accused appellant. (3). In this appeal,the following submissions have been made by the learned counsel for the accused appellant:- 1. That Prem Kanwar, to whom the prosecutrix narrated the whole story just after the occurrence, has not been produced and since she was a material witness, in her absence, statement of prosecutrix should not be believed. 2. That the learned Addl. Sessions Judge No. 2 has erred in law in placing reliance on the sole statement of the prosecutrix PW 2 Sajjan Kanwar, as her statement suffers from many infirmities. 3. That in case the Court comes to the conclusion that the accused appellant has committed the offence u/S. 376 IPC, the punishment of ten years SI, which is excessive, may be reduced by taking lenient view. (4). On the other hand, the learned Public Prosecutor supported the impugned judgment and order of sentence passed by the learned Addl. Sessions Judge No. 2, Bikaner. (5). I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and learned counsel for complainant and perused the record of the case. (6). Before proceeding further, the medical evidence has to be discussed first. Medical evidence in respect of age of the prosecutrix (7). Sessions Judge No. 2, Bikaner. (5). I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and learned counsel for complainant and perused the record of the case. (6). Before proceeding further, the medical evidence has to be discussed first. Medical evidence in respect of age of the prosecutrix (7). The Honble Supreme Court in Sidheswar Ganguly vs. State of West Bengal (1), has held that conclusive evidence of the girls age may be the birth certificate, if it is not available then in conjunction with such oral testimony as may be available. (8). In Mohd. Ikram Hussain vs. The State of Uttar Pradesh (2), the Honble Supreme Court has held that certified copies from school registers while deciding the question of age of girl, amount to evidence under the Indian Evidence Act. (9). The above view was reiterated by the Honble Supreme Court in Harpal Singh & Anr. vs. State of Himachal Pradesh (3), where it has been held that entries in birth register made by concerned official in discharge of his official duties, are admissible evidence u/Sec. 35 of the Indian Evidence Act. (10). In Bhoop Ram vs. State of U.P. (4), the Honble Supreme Court has held that on the point of proof of age, school certificate is the best evidence and so far as the medical certificate is concerned, the same is based on estimate and possibility of error cannot be ruled out. (11). Thus, it can easily be said that best evidence for determination of age is the birth certificate or the school certificate and in case it is available, that would be considered the best evidence and so far as the medical evidence is concerned, since it has margin of error, it would be taken into consideration only when primary evidence which is found in the birth certificate or school certificate is not available. (12). In the present case, there is ample evidence produced on behalf of the prosecution, which shows that date of birth of the prosecutrix is 4.1.1984. In this respect, the statement of PW 7 Jyoti Swami may be referred to. (13). (12). In the present case, there is ample evidence produced on behalf of the prosecution, which shows that date of birth of the prosecutrix is 4.1.1984. In this respect, the statement of PW 7 Jyoti Swami may be referred to. (13). PW 7 Jyoti Swami has stated that on the date of giving statement on 1.12.1998, she was Acting Principal in the Government Girls Senior Secondary School, Lunkaransar and has come alongwith the record of 8th Class pertaining to the prosecutrix PW 2 Sajjan Kanwar and according to admission register, the prosecutrix PW 2 Sajjan Kanwar took admission on 1.9.1997 in VIIIth Class and her date of birth, which is mentioned in the admission register, is 4.1.1984 and the copy of the said register is Ex.P/12A. She has further stated that the prosecutrix PW 2 Sajjan Kanwar came to her school on transfer from Nagaur and she has also brought with her the original TC of Nagaur and the copy of the TC is Ex.P/13A and her date of birth, which is mentioned in it, is 4.1.1984. (14). The prosecution has produced another witness PW 10 Om Prakash to prove the age of the prosecutrix. (15). PW 10 Om Prakash, who was the Manager of Adarsh Happy School, Lunkaransar District Bikaner on the date of giving statement on 10.5.1999, has stated that on 1.9.1988, Bhanwar Singh, father of the prosecutrix PW 2 Sajjan Kanwar, came to his school for admission of prosecutrix PW 2 Sajjan Kanwar in Nursury Class and in the application form for admission which was produced by Bhanwar Singh, father of the prosecutrix, the date of birth of the prosecutrix has been mentioned as 4.1.1984 and the copy of said application form for admission is Ex.P/22A. (16). Thus, from the statements of PW 7 Jyoti Swami and PW 10 Om Prakash and the documents Ex.P/12A (copy of scholar register), Ex.P/13A (copy of TC) and Ex.P/22A (copy of admission form), it can easily be said that date of birth of the prosecutrix PW 2 Sajjan Kanwar is 4.1.1984. (17). (16). Thus, from the statements of PW 7 Jyoti Swami and PW 10 Om Prakash and the documents Ex.P/12A (copy of scholar register), Ex.P/13A (copy of TC) and Ex.P/22A (copy of admission form), it can easily be said that date of birth of the prosecutrix PW 2 Sajjan Kanwar is 4.1.1984. (17). So far as the medical evidence where age of the prosecutrix PW 2 Sajjan Kanwar has been assessed as above 15 years and below 17 years is concerned, it may be stated here that when there is conclusive evidence which is found in her school registers, this medical evidence loses its importance in the sense that margin of error in age ascertained by radiological examination is two years on either side, as held by Honble Supreme Court in Jaya Mala vs. Home Secretary, Government of Jammu and Kashmir (5). Therefore, medical evidence in respect of age of the prosecutrix PW 2 Sajjan Kanwar is not being mentioned in detail. (18). Hence, it is conclusively held that date of birth of the prosecutrix PW 2 Sajjan Kanwar is 4.1.1984. The incident has taken place on 20.3.1998. Therefore, she was below 16 years of age in all respects on the date of incident and it is held accordingly. This, the findings of the learned Additional Sessions Judge No. 2, Bikaner that prosecutrix was below 16 years of age on the date of occurrence are liable to be confirmed. Medical examination of prosecutrix PW 2 Sajjan Kanwar in respect of rape. (19). In this respect, PW 5 Dr. Mahesh has been produced on behalf of the prosecution. He states that on 20.3.1998 he was Medical Jurist, P.B.M. Hospital, Bikaner and a Board was constituted for medical examination of the prosecutrix PW 2 Sajjan Kanwar and he examined her in respect of age as well as rape. He found that there were old healed tears on her hymen and there was slight redness and congestion near the vagina. He found the following external injuries on her person:- 1. Abrasion with scab 2.8 cm x 0.1-0.3cm on right ankle region placed anteriorally. 2. Abrasion with scab 0.2 cm x 0.1cm on right ankle region posterio medially. 3. Abrasion with scab just behind the injury no. (2) measuring 0.3cm x 0.2 cm. 4. Abrasion with scab just behind the medial mallus measuring 3.5.cm x linear on left ankle. 5. Abrasion with scab 2.8 cm x 0.1-0.3cm on right ankle region placed anteriorally. 2. Abrasion with scab 0.2 cm x 0.1cm on right ankle region posterio medially. 3. Abrasion with scab just behind the injury no. (2) measuring 0.3cm x 0.2 cm. 4. Abrasion with scab just behind the medial mallus measuring 3.5.cm x linear on left ankle. 5. Abrasion with scab 0.5 cm x 0.1cm on left side of abdomen anterio laterally just above the illiac creast anterior supion illiac spine. 6. Two tiny abrasions with scab measuring 0.2cm x 0.2cm & 0.1cm x 0.1cm lateral to the vulva region and right side in the outermost part of pubic hair (inqunial region). 7. Abrasion with scab right thigh posterior medially upper 1/3 region measuring 0.3cm x linear. All injuries are simple in nature, caused by blunt object. So far as the medical opinion with respect to rape is concerned, PW 5 Dr. Mahesh has opined that final opinion will be given after seeing the FSL report and he has proved the report Ex.P/9. He has further stated that PW 6 Dr. Neelu Taneja also joined him when the prosecutrix PW 2 Sajjan Kanwar was examined. (20). Dr. Neelu Taneja (PW6) has also been produced by the prosecution. She has stated that on 20.3.1998, the prosecutrix PW 2 Sajjan Kanwar was medically examined for the purpose of ascertaining whether rape was committed on her or not and she has further stated that there was redness on her vagina and that redness could have been caused by male organ or by hard object. (21). Thus, from the above statements of PW5, Dr. Mahesh and PW 6 Dr. Neelu Taneja, it becomes clear that prosecutrix PW 2 Sajjan Kanwar received many injuries on her person and apart from this, there were old healed tears on her hymen and there was slight redness and congestion on her vagina. (22). Now, the oral evidence has to be considered for the purpose of ascertaining whether rape was committed on the prosecutrix PW 2 Sajjan Kanwar or not. (23). Before examining the statement of the prosecutrix PW 2 Sajjan Kanwar, something should be said about burden of proof in rape cases. Burden of proof (24). In a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. (23). Before examining the statement of the prosecutrix PW 2 Sajjan Kanwar, something should be said about burden of proof in rape cases. Burden of proof (24). In a case of rape, the onus is always on the prosecution to prove affirmatively each ingredient of the offence it seeks to establish and such onus never shifts. It is no part of the duty of the defence to explain as to how and why in a rape case the victim and her mother have falsely implicated the accused. The evidence of prosecution witnesses cannot be accepted merely because an accused person has not been able to say as to why they have come forward to depose against him. However great the suspicion against the accused and however strong the moral belief and conviction of the Judge, unless the offence of the accused is established beyond reasonable doubt or beyond the possibility of reasonable doubt on the basis of legal evidence and material on the record, he cannot be convicted for an offence. There is an initial presumption of innocence of the accused and the prosecution has to bring the offence home to the accused by reliable evidence. The accused is entitled to the benefit of every reasonable doubt. Legal aspect of evidence of the prosecutrix (25). The main evidence in all such cases is that of the victim herself. In practice a conviction for rape almost entirely depends on the credibility of the woman, so far as the essential ingredients are concerned, the other evidence being merely corroborative. It is not necessary that there should be independent corroboration of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant, should in itself be sufficient to sustain conviction. All that is required is that there must be some additional evidence rendering it probable that the story of the complainant is true and that it is reasonably safe to act upon it. (26). In the present case, the alleged incident took place on 20.3.1998 at about 8.00 AM and report about the same was lodged very promptly i.e. at 11.30 AM on the same day by the prosecutrix PW 2 Sajjan Kanwar. Thus, there is no possibility that FIR has been tuitored or has been made to implicate accused appellant falsely. (27). (26). In the present case, the alleged incident took place on 20.3.1998 at about 8.00 AM and report about the same was lodged very promptly i.e. at 11.30 AM on the same day by the prosecutrix PW 2 Sajjan Kanwar. Thus, there is no possibility that FIR has been tuitored or has been made to implicate accused appellant falsely. (27). The prosecutrix PW2 Sajjan Kanwar in her statement has clearly supported the version given by her in the report Ex.P/1, where she has stated that on the date of occurrence she went towards agriculture farms water Diggi for taking Rs.10/- from her grand father PW 3 Sultan Singh, however, she did not find her grand father PW 3 Sultan Singh there and while she was returning back, accused appellant Angrej Singh and another accused Deepak Kumar met her on the way and seeing her alone, accused Deepak Kumar put his hands on her mouth and thereafter, accused appellant Angrej Singh and accused Deepak Kumar took her to Khala and after putting her on the ground in Khala, accused appellant Angrej Singh opened her salwar and underwear and committed rape on her and, thereafter, both ran away and she came weeping and crying to her house and narrated the whole story to her Bhua Prem Kanwar and grand-father Sultan Singh, PW 3. Her statement is further corroborated by the statement of PW 3 Sultan Singh. Both these witnesses were cross-examined at length, but nothing has come out which affects their testimony or it cannot be said that they are falsely implicating the accused appellant. (28). It may be stated here that if there are minor omissions or contradictions in the statement of any witness, such omissions or contradictions are bound to come and they can be called natural one. Minor discrepancy guarantees that the witnesses are not tuitored. Therefore, if minor contradictions are found, they are to be over-looked. (29). The statement of the prosecutrix PW 2 Sajjan Kanwar is further corroborated by the medical evidence as she has received so many injuries on her person and swelling was also found on her vagina. Thus, from this point of view also, her testimony inspires confidence and can be believed. (30). Upon evaluation of the evidence available on record, it appears that prosecutrix PW 2 Sajjan Kanwar is a witness of truth. Her testimony inspires confidence. Thus, from this point of view also, her testimony inspires confidence and can be believed. (30). Upon evaluation of the evidence available on record, it appears that prosecutrix PW 2 Sajjan Kanwar is a witness of truth. Her testimony inspires confidence. Other evidence available on record lends assurance to her testimony. Her testimony is trustworthy and unembellished. She is a reliable witness and there is no reason to disbelieve her testimony. (31). So far as the argument with regard to failure of the prosecution to produce Prem Kanwar to whom prosecutrix narrated the whole story just after the rape is concerned, it cannot be regarded as fatal in the present case because when the prosecutrix PW 2 Sajjan Kanwar narrated the whole story to her Bhua Prem Kanwar her grand father PW 3 Sultan Singh was also present and PW 3 Sultan Singh has been produced, who has fully supported the case of the prosecution. Hence, if Prem Kanwar has not been produced by the prosecution, it would not affect the prosecution case. (32). The Honble Supreme Court in State of Rajasthan vs. N.K. (6), has held that failure of prosecution to produce witness to whom prosecutrix narrated her story after the rape, is not fatal. Hence, the above argument stands rejected. (33). During the course of argument, a suggestion though not with some strong force, but with some force was raised stating that it might be a case of consent. (34). In my opinion, this argument carries no weight, looking to the injuries on the person of the prosecutrix. The evidence of the prosecutrix that she was forcibly subjected to sexual intercourse should normally be believed unless there is material leading to an inference of her consent. Even absence of marks of external injuries on the person of the prosecutrix by itself not sufficient to draw an inference of consent of the prosecutrix. On the contrary, in the present case, looking to the injuries of the prosecutrix PW 2 Sajjan Kanwar, this argument appears to be absurd one and thus should be rejected straightway. Apart from this, element of consent is immaterial in the present case as the prosecutrix PW 2 Sajjan Kanwar was found below 16 years of age on the date of occurrence. (35). Apart from this, element of consent is immaterial in the present case as the prosecutrix PW 2 Sajjan Kanwar was found below 16 years of age on the date of occurrence. (35). The argument that no independent witness was produced is also not tenable, in view of the fact that PW3 Sultan Singh, grand father of the prosecutrix has been produced and father/grand-father of the prosecutrix would not ordinarily subscribe to false story of rape on his daughter/grand-daughter and thereby invite ignominy. (36). For the reasons stated above, the prosecution has proved its case beyond all reasonable doubts against the accused appellant for the offence u/Sec. 376 IPC and thus, the findings of the learned Addl. Sessions Judge No. 2, Bikaner convicting the accused appellant for the offence u/Sec. 376 IPC are liable to be confirmed and this appeal against conviction deserves to be dismissed. On point of sentence (37). In the present case, the prosecutrix PW 2 Sajjan Kanwar was found above 12 years and below 16 years of age on the date of occurrence. Hence, this case would be covered under the provisions of Sec. 376(1) IPC and for the offence u/Sec. 376(1), the minimum sentence, which is prescribed by law, is seven years. (38). In my considered opinion, looking to the entire facts and circumstances of the case, if the accused appellant is sentenced to seven years RI for the offence u/Sec. 376 (1) IPC, instead of ten years SI, as awarded by the learned Addl. Sessions Judge No. 2, Bikaner it would meet the ends of justice. Hence, impugned order of sentence passed by the learned Addl. Sessions Judge No. 2, Bikaner is liable to be altered accordingly. (39). In the result, the appeal filed by the accused appellant Angrej Singh against conviction for the offence under Sec. 376(1) IPC is dismissed, after confirming the judgment dated 30.9.1999 passed by the learned Addl. Sessions Judge No. 2, Bikaner. However, on point of sentence, the appeal of the accused appellant Angrej Singh is partly allowed in the manner that the order of sentence dated 1.10.1999 passed by the learned Addl. Sessions Judge No. 2, Bikaner is modified to the extent that accused appellant Angrej Singh is sentenced to seven years RI instead of ten years SI for the offence u/Sec. 376(1) IPC, but the order of fine passed by the learned Addl. Sessions Judge No. 2, Bikaner is modified to the extent that accused appellant Angrej Singh is sentenced to seven years RI instead of ten years SI for the offence u/Sec. 376(1) IPC, but the order of fine passed by the learned Addl. Sessions Judge No. 2, Bikaner is maintained.