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2003 DIGILAW 95 (HP)

MEDHO v. STATE OF H. P.

2003-05-05

K.C.SOOD

body2003
JUDGMENT Kuldip Chand Sood, J.—Appellant Medho hereinafter referred to as the accused", was tried and convicted by the learned Sessions Judge, Chamba Division at Chamba for an offence punishable under Section 376 of the Indian Penal Code in Sessions Case No. 38 of 1997 vide judgment dated 18th January, 1999. The accused has been sentenced: "to suffer rigorous imprisonment for a period of seven years and to pay a fine of Rs. 2,000. In case of default in the payment of fine, the accused is to further undergo rigorous imprisonment for one year." 2. Aggrieved, accused filed this appeal against his conviction and sentence from the Jail. The accused represented for a legal aid counsel to conduct his appeal at the State expense. Mr. Rahul Mahajan, Advocate, was appointed as counsel for the accused. 3. Accused Medho Ram, aged about 22 years at the time of occurrence, was resident of Charotu of Pargana Gudial in Tehsil and District Chamba. Victim, aged about 13 or 14 years, at the relevant time, is resident of nearby village Phumbi. Victim used to live with her parents in the village and was studying in the Government Primary School, Silagharat. 4. On 7th April, 1997, victim was sent by her mother, Bimla Devi (PW-8), to buy some grocery from the shop of one Harbhajan Singh. Harbhajan Singh told the victim that he was unloading some goods from the truck and therefore she should come next morning. She then went to the house of her school peon Geeta Devi (PW-5). She took her meals in the house of Geeta Devi. By that time it became dark. Geeta Devi advised the victim not to go alone at that hour of the evening. In the meanwhile, accused came to the house of Geeta Devi. He informed that he was also going in the direction of the house of the victim and that he can escort the victim to her house. Victim left in the company of the accused to her house. On her way at a place known as "Chanaga accused forcibly took her below the path, broke the string of her salwar and committed forcible sexual intercourse with the victim. Blood came from her vagina. She cried but her mouth was closed by the accused. The victim returned back to her house with her salwar in hand. She told her mother Bimla Devi (PW-8) about the incident. Blood came from her vagina. She cried but her mouth was closed by the accused. The victim returned back to her house with her salwar in hand. She told her mother Bimla Devi (PW-8) about the incident. Bimla took her daughter first to the house of Geeta and thereafter accompanied by Geeta she went to the house of Harbhajan Singh, Pradhan of the village, who advised them to lodge the report with the police next morning. The report was lodged with the police on the next day in terms of First Information Report Ex. PD. 5. After the investigation of the case, accused was sent to stand his trial before the learned Sessions Judge for an offence punishable under Section 376 of the Indian Penal Code. Accused was charged accordingly. Accused claimed trial. The defence of the accused appears to be that he has been falsely implicated in this case and in any event the victim was more than sixteen years of age at the time of occurrence and consenting party. 6. I have heard Mr. Rahul Mahajan, learned Counsel for the accused-appellant and Mr. Ashok Chaudhary, learned Additional Advocate General and have also been taken through the record by the learned Counsel. 7. The conviction is assailed on the grounds: (a) there is no reliable evidence on the record to connect the accused with the commission of the offence; and (b) in any event victim was more than 16 years of age at the time of alleged commission of the offence and a consenting parties. 8. It is true that the entire prosecution case rests on the evidence of the victim. In order to see whether accused committed sexual assault, evidence of the victim (PW 6) may be examined. Victim appearing as PW 6 stated that she was sent by her mother to bring some grocery from the shop of Harbhajan Singh. Harbhajan Singh was unloading the goods from the vehicle and told her to come next morning. She, then, went to the house of Geeta Devi where she took her meals. Accused arrived there. As it was dark so accused offered to escort her to her house. Geeta Devi, her school peon, asked her to go to her house in the company of the accused. She, then, went to the house of Geeta Devi where she took her meals. Accused arrived there. As it was dark so accused offered to escort her to her house. Geeta Devi, her school peon, asked her to go to her house in the company of the accused. At place near Chanaga accused lifted her and took her below the path where he broke the string of her salwar, removed his pants and committed forcible sexual intercourse with her. She cried, but her mouth was closed and nobody came to her help. After committing sexual assault he went away. The victim returned back to her house with the salwar in her hand. She informed her mother about the entire incident. Her mother took her to the house of Geeta Devi from where they went to the house of Harbhajan Singh, Pradhan, who advised her mother to lodge report with the police next morning as no vehicle was available at night. Accordingly, she alongwith her mother, came to Chamba next day and lodged report with the police. It is her evidence that report in terms of FIR Ex. PD was recorded by her. She was medically examined by the doctor at Chamba. It is her further evidence that the clothes, which she was wearing at the time of incident, were stained with the blood and were handed over to the police. In cross-examination she denied the suggestion that she was about 18 years of age. She reiterated that she could not raise any alarm as her mouth was closed by the accused with his hands. According to her the place where she was subjected to sexual assault was a stony place. She admitted that she did not sustain any injury on her back. She is fully supported in her version by Geeta Devi (PW-5), who corroborated the victim on all material facts. According to Geeta Devi, on the fateful evening, victim had come to her and told her that she had come to the shop of Harbhajan Singh to purchase some grocery. As the shopkeeper was busy, therefore, she came to her. Geeta Devi was taking her meals at that time. She also served meals to Asha Devi. By that time it became dark and she advised Asha Devi not to go alone to her house at the darkness. As the shopkeeper was busy, therefore, she came to her. Geeta Devi was taking her meals at that time. She also served meals to Asha Devi. By that time it became dark and she advised Asha Devi not to go alone to her house at the darkness. It is her evidence "in the meanwhile Medho accused, present in the court, arrived there and told that he was also going in that direction and offered to take Asha Devi with him to her house. I allowed Asha Devi to go with the accused". According to her, at about 10.00 p.m. victim was brought to her house by her mother. The victim was in a bad shape. She was bleeding from her private parts. The mother of the victim narrated the incident to her. Victim herself was in pain and was unable to speak. She then accompanied them to village Pradhan Harbhajan Singh. Harbhajan Singh was informed about the incident who advised the mother of the victim to report the matter to the police on next morning as no vehicle was available at that time. There is nothing material in the cross-examination of this witness except that house of victim is about 2 kilometres from the house of Geeta Devi she confirmed in cross-examination that mother of the victim had carried her in her arms to the house of Geeta Devi. She reiterated that Asha, her student, used to visit her house to do some odd jobs. 9. To similar effect is the evidence of (PW-8) Bimla Devi, mother of the victim. There is nothing material in the cross-examination of Bimla Devi or Geeta Devi which may dent the version given by the victim. The version given by the victim is fully supported by the medical evidence. Dr. Veena Sehgal, who examined the victim on 8th April, 1999 at the request of the police, appearing as PW-1 stated that victim was brought to her with the history of rape. The victim looked fearful. She found that auxiliary hair had not developed. Breasts were not developed and pubic hair had also not developed. No marks of struggle were found on the person of the victim. Legs of the victim were soiled with clotted blood. On her vaginal examination she found that hymen was plugged with blood clots. The victim looked fearful. She found that auxiliary hair had not developed. Breasts were not developed and pubic hair had also not developed. No marks of struggle were found on the person of the victim. Legs of the victim were soiled with clotted blood. On her vaginal examination she found that hymen was plugged with blood clots. On removing clots, hymen was found torn and two lacerations at 4O clock and 60 clock position were present. The margins of lacerations were bleeding. The surrounding area was painful on touch. The vaginal swabs were taken and preserved for chemical analysis. According to her a recent vaginal penetration had taken place. It is her evidence that victim was so sick that she was advised admission in the hospital. There is virtually no cross-examination of the doctor. She, however, ruled out the possibility of the hymen having been torn by fingering. She also repudiated the suggestion that prosecutrix was habitual to sexual intercourse. 10. It is noticed that the accused did not dispute the material testimony of the victim either in the cross-examination or in his statement under Section 313 of the Code of Criminal Procedure. He has not denied that he accompanied the victim to her house. However, in his statement under Section 313 he took a plea that the victim was 19 years of age. 11. I hardly need to emphasise that the testimony of a victim of rape does not require any corroboration. It has to be appreciated on the principles of probabilities. Learned trial Judge had an occasion to see the demeanour of the victim. There is no reason for the victim to have false implicated the accused. The false implication is already ruled out by the medical evidence as noticed above. There is no dispute that the medical officer found the victim to have been subjected to sexual intercourse in the recent past on her examination. Now, conviction for an offence of rape can be based on the sole testimony of the victim, if it inspires confidence. 12. Learned Counsel for the accused pointed out nothing in the testimony of the victim which may dissuade this Court from accepting her version. Necessary assurance to the evidence of the victim, as noticed earlier, is lend by the medical evidence. 13. The Apex Court in the State of Rajasthan v. N.K. (Accused), AIR 2000 SC 1812, observed : "11. 12. Learned Counsel for the accused pointed out nothing in the testimony of the victim which may dissuade this Court from accepting her version. Necessary assurance to the evidence of the victim, as noticed earlier, is lend by the medical evidence. 13. The Apex Court in the State of Rajasthan v. N.K. (Accused), AIR 2000 SC 1812, observed : "11. It is well settled that a prosecutrix complaining of having been a 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 without corroboration in material particulars. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the Court of facts may find 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 any accomplice would do. Reference may be had to a long chain of decisions some of which are Rameshwar v. State of Raj., 1952 SCR 377 : AIR 1952 SC 54 : 1952 Cri. L.J. 547; Sidheswar Ganguly v. State of WB, AIR 1958 SC 143 : 1958 Cri. LJ 673; State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550: AIR 1990 SC 658 : 1990 Cri LJ 889; Madam Gopal Kakkad, (1992) 3 SCC 204: (1992) AIR SCW 1480; Shri Narayan, (1992) (3) SCC 615: (1992) AIR SCW 2365: AIR 1992 SC 2004: 1992 Cri LJ 3655; Karnel Singh, (1995) 5 SCC 518: 1995 AIR SCW 3644 : AIR 1995 2472; Bodhisattwa Gauttam, (1996) 1 SCC 490 : 1996 AIR SCW 325: AIR 1996 SC 922 and Gurmit Singh, 1996 Cri LJ 1728 (supra). We may quote from the last of the above said decisions where the rule for appreciating the evidence of the prosecutrix in such cases has been succinctly summed up in the following words (Para 20 of AIR Cri. LJ):— ".....If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. We may quote from the last of the above said decisions where the rule for appreciating the evidence of the prosecutrix in such cases has been succinctly summed up in the following words (Para 20 of AIR Cri. LJ):— ".....If evidence of the prosecutrix inspires confidence, it must be relied upon without seeking corroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of corroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations.” (Emphasis given) 14. As noticed earlier the accused in his statement under Section 313 of the Code of Criminal Procedure in answer to question No. 26 stated, "I am innocent. The age of the prosecutrix is 19 years". 15. This answer itself suggests that the accused does not dispute sexual intercourse with the victim. 16. In the present case, the evidence of the victim, as supported by her mother Bimla Devi (PW-8), her school peon Geeta Devi (PW-5) and Harbhajan Singh, Pradhan of the Panchayat to whom the incident was narrated at the earliest, remained untainted in her cross-examination. There is no reason to disbelieve her. The version given by her is probablised. The victim who was of a tender age, would not implicate the accused falsely and let real culprit go. The medical evidence clearly proves that victim was subjected to forcible intercourse as stated by the victim. Dr. Veena Sehgal ruled out the possibility of the hymen having been torn by fingering as suggested by the accused. 17. The sexual assault by the accused on the innocent helpless girl of tender age is further strengthened from the fact that doctor who examined the accused on the next day found that smegma was absent under prepuce of the accused. The presence of smegma round the glans is indeed proof against penetration, as it is rubbed off during the act of sexual intercourse. In other words, presence of smegma excludes the possibility of recent sexual intercourse. 18. In the present case, the evidence of the victim does not suffer from any infirmity. The presence of smegma round the glans is indeed proof against penetration, as it is rubbed off during the act of sexual intercourse. In other words, presence of smegma excludes the possibility of recent sexual intercourse. 18. In the present case, the evidence of the victim does not suffer from any infirmity. The probability factor, as noticed earlier, does not render her evidence unreliable. In the facts and circumstances of the case, conviction can be based on the sole testimony of the victim. I hardly need to emphasise that an eye account by an independent witness cannot be expected in sexual offences. I draw support for the view I have taken from Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217. 19. So far the age of the victim is concerned, the mother of the victim Bimla Devi (PW-8) has given the age of the victim as 14 years on the date she was examined in the Court putting her age about 13 years or so at the time of the incident. 20. Sri Ram, Panchayat Secretary (PW-9) in his evidence proved Certificate Ex. PK given by him from the Parivar Registrar which shows the date of birth of the victim to be 20th July, 1984. He also proved extract of the Parivar Register Ex. PJ which also gives the date of birth of the victim as 20th July, 1984 which puts age of the victim about 13 years at the time of the alleged incident. Mr. Mahajan refers to the cross-examination of Sri Ram, the Panchayat Secretary, where he admitted that there was some overwriting so far the year of the birth of the victim was concerned. However, he expressed his inability to say if the year of the birth has been tampered to read 1984 from 1981. 21. Even if the evidence of the age of the victim from Parivar Register is excluded, it is proved beyond reasonable doubt that the victim was about 13 years of age at the time when she was subjected to forcible intercourse. 22. The ossification test of the victim as made by Dr. V.K. Pathak, Radiologist (PW-2) shows that the ossification age of the victim was definitely less than 15 years, after taking into consideration the variation of two years on either side. 22. The ossification test of the victim as made by Dr. V.K. Pathak, Radiologist (PW-2) shows that the ossification age of the victim was definitely less than 15 years, after taking into consideration the variation of two years on either side. In-fact, doctor unambiguously stated that certain ossification tests of the victim showed the age of the victim to be 12-1/2 years when she was examined and certain ossification points had not taken place which was suggestive of the fact that she could even be less than 12-1/2 years at the time of her examination. In cross-examination he stated that the variation of two years on either side has been taken into consideration by him. 23. In view of evidence on record, by no stretch, it can be said that either the victim was consenting party or of more than 16 years of age at the time of occurrence. 24. In view of the evidence on record, I do not find any infirmity in the conviction of the accused. 25. In the end Mr. Rahul Mahajan submits that the accused has already undergone four years of imprisonment and the sentence, therefore, may be reduced to already undergone, particularly taking into consideration his young age and long time which has elapsed. During all these years the accused, submits Mr. Mahajan, has suffered disrepute and mental agony. 26. I do not find it a fit case where reduction of sentence from the minimum prescribed is justified, particularly in view of the fact that both the victim and her school peon reposed confidence in the accused that victim would be escorted safely by the accused to her house. 27. No other point is urged. The appeal fails and is dismissed. The copy of the judgment shall be immediately sent to the accused by the Registry of this Court. Appeal dismissed.