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2004 DIGILAW 119 (JHR)

Paltu Rai v. State of Jharkhand

2004-01-30

VISHNUDEO NARAYAN

body2004
Judgment Vishnudeo Narayan, J.- This appeal at the instance of the appellant stands directed against the impugned judgment and order dated 14.3.2001 and 23.3.2001 respectively passed in Sessions Trial No 74 of 1993 by Shri Rajesh Kumar, 5th Additional Sessions Judge, Dhanbad whereby and whereunder the appellant was found guilty for the offence punishable under Section 376 of the Indian Penal Code and he was convicted and sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 5000/- and in default thereof to undergo simple imprisonment for one year. 2. The prosecution case has arisen on the basis of the written report of P.W.1 Parvati Devi lodged before O/C Kenduadih Police Station on 13.9.1991 at 14.00 hours regarding the occurrence which is said to have taken place on 12.9.1991 at 19.00 hours inside the jungle in village Godhar Rawani Basti, Police Station-Kenduadih, District-Dhanbad and a case was instituted against the appellant by drawing of a formal first information report on 13.9.1991 at 14.00 hours. The written report and the formal first information report have been received on 15.9.2001 in the Court empowered to take cognizance. 3. The prosecution case, in brief, is that the informant earns her livelihood by collecting coal and selling it and she returned to her house at 19.00 hours on 12.9.1991 after selling the coal and enquired from her elder daughter P.W. 2 Putul Kumari as to where her younger daughter P. W. 3 Champa is and on the said enquiry Putul Kumari told that the appellant had come to her house in a drunken state about one hour ago and he has taken away Champa in his lap to provide her with sweets. It is alleged that said Champa is six years old and the informant went to the house of the appellant in search of her daughter Champa and the family members of the appellant could not tell her anything about the appellant and thereafter she made search for her daughter and when she returned to her house she found Putul Kumari weeping and on query she has stated that the appellant had taken Champa inside the jungle on the pretext of providing her with sweets and in the jungle he has removed the underwear of Champa and made her seated in his lap and when Champa started crying he has left her. It is also alleged that, the appellant had taken away Champa with intention to ravish her. 4. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and he has been falsely implicated in this case by the informant who has picked up a profession to falsely implicate innocent persons in got up cases. 5. The prosecution has, in all, examined six witnesses to substantiate its case. P.W. 3 Champa is the daughter of P.W. 1 Parvati Devi, the informant and said P.W. 3 is said to be the victim of the alleged ravishment in this case. P.W. 2 Putul Devi is the elder daughter of the informant. P.W. 4 Bansi Rawani is the husband of the informant and P.W. 5 Sidheswar Rawani is the cousin brother of P.W. 4. P.W. 1, P.W. 4 and P.W. 5 are the hearsay witnesses of the occurrence. P.W. 6 Dr. Rita Gupta has examined P.W. 3 Champa on 17.9.1991 at 13.45 hours and the report in respect thereof per her pen is Ext. 1. The Investigating Officer has not been examined in this case by the prosecution as he is said to have died during the pendency of this case. No oral and documentary evidence has been brought on behalf of the defence. 6. Assailing the impugned judgment as perverse it has been submitted by the learned counsel for the appellant that there no iota of legal evidence on the record regarding the ravishment of P.W. 3 Champa by the appellant as alleged and even the medical evidence is not at all in conformity with the case of ravishment as alleged and furthermore, there is material contradictions and inconsistencies in the testimony of P.W. 3, P.W. 2 and P.W. 1 and their evidence suffers with inherent improbabilities and P.W. 2 can never be termed as an eyewitness of the occurrence and there is no ring of truth also in the evidence of P.W. 3 Champa and in this view of the matter the impugned judgment is unsustainable. In support of his contention reliance has been placed upon the ratio of the cases of Dilip and another vs. State of Madhya Pradesh [ 2001 (9) SCC 452 ], Vimal Suresh Kamble vs. Chaluverapinake Apal S.P. and another [ AIR 2003 SC 818 ) and the State of Karnataka vs. Mapilla P.P. Soopi [ 2003 (6) Supreme 968 ]. In the alternative it has been submitted that the appellant is in custody for more than six years and in this view of the matter, the sentence of the appellant may be reduced to the period already undergone. . 7. Refuting the contention aforesaid it has been submitted by the learned Additional Public Prosecutor that P.W. 3 Champa is said to be six years old at the time of the occurrence though the medical witness has opined the age of P.W. 3 between seven or eight years and as per the prosecution case she was taken by the appellant in his lap on pretext of providing her with sweets and she was made naked after removing her underwear and she was compelled to sit on the thigh of the appellant and slightest penetration of the male organ in her introitus amounts to rape and P.W. 3 in her evidence has corroborated the prosecution case in respect thereof and P.W. 2 has the occasion to see the occurrence and in this view of the matter, there is no illegality in the impugned judgment. In support of his contention reliance has been placed upon the ratio of the cases of Gurcharan Singh vs. State of Haryana ( AIR 1972 SC 2661 ), Rafiq vs. State of U.P. ( AIR 1981 SC 559 ) and State of U.P. vs. Babul Nath [ 1994 (6) SCC 29 ]. 8. It is relevant to mention at the very outset that there is averment in the written report of P.W. 1, the informant that she was told by P.W. 2 that the appellant had taken P.W. 3 Champa with him towards the jungle on the pretext of providing her with sweets and he has got Champa seated in his lap by removing her underwear and when she cried she was let off. The written report further recite that the appellant had taken away P.W. 3 Champa with him with the object of ravishing her and the case was instituted under Sections 354 and 376/ 511 of the Indian Penal Code and charge sheet was also submitted accordingly in the said case. However, the learned court below has framed charge under Section 376 of the Indian Penal Code against the appellant. The occurrence is said to have taken place on 12.9.1991 at 19.00 hours in the jungle in the vicinity of Godhar Rawani Basti and the written report regarding the occurrence was lodged before Kenduadih Police Station on 13.9.1991 at 14.00 hours though as per the evidence on the record P.W. 1 in the company of P.W. 2 and P.W. 3 along with P.W. 5 had been to the Police Station in the night of the occurrence itself and P.W. 1 has orally narrated the incident to the police officer present there. P.W. 3 Champa was examined by P.W. 6 Dr. Rita Gupta as indoor patient in the maternity ward of the P.M.C.H., Dhanbad on 17.9.1991 at 13.45 hours on the requisition of the Investigating Officer. The medical witness has deposed that she did neither find any external injury on the person of Champa nor any internal injury on her private part and her hymen was intact. She has further deposed that no sperm was seen in her vaginal swab, on Pathological Examination. Her evidence is further to the effect that as per the radiological report the age of Champa is approximately between 7 to 8 years. In para-4 of her cross-examination she has deposed that Champa was brought before her by Constable No. 187 Brajnath Singh on 17.9.1991. She has also deposed that said Champa remained as indoor patient till 21.9.1991. However, PW. 3 Champa in para-5 of her evidence has deposed that she was taken to the hospital by the police in the very night of the occurrence where she remained hospitalized for one month and as per the evidence of P.W. 2, Champa has to undergo treatment for six months. However, the bed head ticket regarding P.W. 3 having been admitted in the hospital has not been brought on the record and, therefore, it cannot be said that for what purposes she was admitted in the hospital. However, the bed head ticket regarding P.W. 3 having been admitted in the hospital has not been brought on the record and, therefore, it cannot be said that for what purposes she was admitted in the hospital. But the fact remains that Champa was hospitalized in the maternity ward of the P.M.C.H., Dhanbad where she did remain hospitalized for four days undergoing treatment and I see no reason to disbelieve the evidence of the medical witness in respect thereof. Let us now advert to the evidence on the record. P.W. 3 Champa has deposed that the appellant took her from her house on the pretext of providing her with sweets and he took her inside the jungle where he removed her underwear and started doing dirty act. Her evidence is further to the effect that she started crying and there was discharge of watery substance and blood from her introitus. She has further deposed that when her sister P.W. 2 came there, the appellant fled away from there and her sister brought her to her house. She has also deposed that the appellant had ravished her. P.W. 2 Putul Devit the elder sister of P.W. 3, has deposed that the appellant took Champa inside the jungle on the pretext of providing her with sweets. She has further deposed that she also followed her and she saw that the appellant has removed the underwear of Champa and started fingering in her vagina and thereafter he ravished her. She has also deposed that Champa started crying and she went near Champa and found the appellant in a drunken state and he had put her on the ground in lying position and had ravished her. She has also deposed that blood was oozing out from her private part P.W. 5 has deposed to have accompanied the informant along with P.W. 2 and P.W. 3 to the Police Station. His evidence is further to the effect that he had seen blood was oozing out from the introitus of P.W. 3 Champa. He has also deposed that Champa had told him regarding her ravishment by the appellant. His evidence is further to the effect that he had seen blood was oozing out from the introitus of P.W. 3 Champa. He has also deposed that Champa had told him regarding her ravishment by the appellant. P. W. 1, the informant, has deposed that when she returned to her house after making search of Champa she found P.W. 2 weeping and she narrated to her that the appellant has made Champa naked and had seated her in his lap with intention to ravish her and he had fled away after seeing her. She has also deposed that Champa told her that appellant Paltu Rai had made her naked with intention to commit rape upon her and he has put his finger in her vagina. P.W. 4 has also deposed that he has learnt from the informant that the appellant had taken away Champa in the jungle on the pretext of providing her with sweets. He has also deposed that treatment of Champa was made in the hospital. From the evidence aforesaid it appears that the appellant had taken Champa in his lap on the pretext of providing her with sweets and he has taken her inside the jungle where he has made her naked and seated her on his lap. To constitute the offence of rape it is not necessary that there should be complete penetration of the penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration is quite sufficient for the purpose of the offence under Section 376 of the Indian Penal Code. It is quite possible to commit legally the offence of rape without producing any injury to the genitals or leaving any seminal stains. Here in this case, Champa was examined by P.W. 6, the medical witness on the 5th day of the occurrence and, therefore, she did not find any external or internal injury on the private part of Champa. However, she was hospitalized which shows that there was something wrong with her which has its relevance with the occurrence in question. The medical witness has not negatived in her evidence as well as in her report the factum of ravishment of Champa as alleged. However, she was hospitalized which shows that there was something wrong with her which has its relevance with the occurrence in question. The medical witness has not negatived in her evidence as well as in her report the factum of ravishment of Champa as alleged. Therefore, it cannot be said in the facts and circumstances of this case that the medical evidence is in conflict with the prosecution case of the ravishment of Champa, a girl aged between seven and eight years. In the case of Gurucharan Singh (supra) it has been observed by the Apex Court that absence of marks of violence on private parts or elsewhere on the person of the prosecutrix merely suggest want of violent resistance on the part of the prosecutrix which is wholly inconsequential when the prosecutrix is under 16 years of age. It has further been observed that a prosecutrix cannot be considered as an accomplice and, therefore, her testimony cannot be equated with that of an accomplice in an offence. As a rule of prudence, however, court normally looks for some corroboration of her testimony so as to satisfy its conscience that she is telling the truth that and that the person accused of rape on her has not been falsely implicated. In the case of Rafiq (supra) it has been observed by the Apex Court that corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances. In the case of State of U.P. (supra) it has been observed by the Apex Court which runs thus: "Ingredients which are essential for proving a charge of rape are the accomplishment of the act with force and resistance. To constitute the offence of rape neither Section 375 of IPC nor the Explanation attached thereto require that there should necessarily be complete penetration of the penis into the private part of the victim prosecutrix. In other words to constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. In other words to constitute the offence of rape it is not at all necessary that there should be complete penetration of the male organ with emission of semen and rupture of hymen. Even partial or slightest penetration of the male organ with the labia majora or the vulva or pudenda with or without any emission of semen or even an attempt at penetration into the private part of the victim would be quite enough for the purpose of Sections 375 and 376 of IPC. That being so it is quite possible to commit legally the offence of rape even without causing any injury to the genitals or leaving any seminal stains." It is equally relevant to mention here that P.W. 3, P.W. 2 and P.W. 1 have no animus to depose falsely against the appellant, as they have no semblance of enmity, strained relationship, vendetta or grudge against the appellant. In the facts and circumstances of this case, I see ring of truth in the evidence of P.W. 3, which stands corroborated by P.W. 2. Furthermore, there is nothing on the record to show that the informant is a professional woman having a habit of falsely implicating innocent persons. Therefore, the false implication of the appellant in the facts and circumstances of this case is totally ruled out. The ratio of the case of Dilip and another (supra), Vimal Suresh Kamble (supra) and State of Karnataka (supra) relied upon by the learned counsel for the appellant in support of his contention has no application in the facts and circumstances of this case and the facts of the aforesaid cases are quite distinguishable to the facts of this case. The learned court below has properly scrutinized and scanned the evidence on the record and has rightly come to the finding of the guilt of the appellant and I see no illegality in the impugned judgment requiring an interference therein. 9. The learned court below has awarded ten years rigorous imprisonment besides fine of Rs. 5000/- and in default thereof to undergo simple imprisonment for one year to the appellant. It appears from perusal of the record that the appellant has remained in custody for more than six years, though he has not deposited the fine of Rs. 5000/- imposed against him. Here in this case, a girl aged between seven and eight years has been subjected to ravishment. It appears from perusal of the record that the appellant has remained in custody for more than six years, though he has not deposited the fine of Rs. 5000/- imposed against him. Here in this case, a girl aged between seven and eight years has been subjected to ravishment. Rape for a woman is a deathless shame and it must be dealt with as the gravest crime against human dignity. When a woman is ravished what is inflicted is not merely physical injury but the deep sense of some deathless shame. Therefore, in the facts and circumstances of this case, it cannot be said that ten years sentence is too severe. I, therefore, see no force in the contention of the learned counsel for the appellant regarding modifying the sentence awarded to the appellant in the facts and circumstances of this case. 10. There is no merit in this appeal and it fails. The impugned judgment of the learned court below is hereby affirmed. The appeal is hereby dismissed.