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2004 DIGILAW 132 (JHR)

GULAB MOCHI v. STATE OF BIHAR

2004-02-05

VISHNUDEO NARAYAN

body2004
Judgment : ( 1 ) THIS appeal at the instance of the appellant has been preferred against the impugned judgment and order dated 10-9-1998 and 15-9-1998 respectively passed in Sessions Trial No. 36 of 1997 by shri B. N. P. Singh, Sessions Judge, palamau, Daltonganj whereby and where-under the appellant was found guilty for the offence punishable under Sections 366-A and 376 of the Indian Penal Code and he was convicted and sentenced to undergo rigorous imprisonment for seven years and five years for the offence aforesaid respectively. However, the sentences were ordered to run concurrently. The appellant has, however, been acquitted for the charge under Section 372 of the Indian Penal Code. Other three co-accused persons were also acquitted for the offence under Sections 120-B and 372 of the Indian Penal Code. ( 2 ) THE prosecution case has arisen on the basis of written report (Ext. 4) of the informant PW-2, Ramchandra Ram chandrabanshi, father of PW-13, Rinki kumari the alleged victim of this case lodged before O. C. , P. S. Lesliganj, Palamau on 25-7-1996 at 16. 15 hours regarding the occurrence which is said to have taken place on 23-7-1996 at Middle School, Kundri within lesliganj P. S. and the case was instituted by drawing of a formal F. I. R. (Ext. 5) ( 3 ) THE prosecution case, in brief, is that rinki Kumari, aged about 12 years and the daughter of the informant had gone to middle School, Kundri for study and the appellant induced her to go from there with him and he has taken her with him somewhere. It is also alleged that co-accused tetar Mochi, Tarn Devi and Sulab Mochi have conspired with the appellant in kidnapping Rinki Kumar. It is alleged that the appellant formally used to work at Punjab and he is still working there and said Rinki kumari is missing from the said school since 23-7-1996 and when she did not return to her house then on query it transpired that the appellant has kidnapped her either with intention to have illicit intercourse with her or to sell or dispose her of with intent that she shall be employed or used for the purpose of prostitution. ( 4 ) IN course of investigation the said Rinki kumari was brought back to the house of the informant by co-accused Sulab Mochi, the brother of the appellant from Punjab on 7-8-1996 and, thereafter, her statement under Section 164 of the Cr. P. C. was recorded and she was examined jointly by PW-3, Dr. Shall Sinha and PW-4, pr. Pushpa sehgal. ( 5 ) THE appellant has pleaded not guilty to the charge levelled against him and he claim himself to be innocent and to have committed no offence and that he has been falsely implicated in this case. ( 6 ) THE prosecution has in all examined 14 witnesses to substantiate its case PW-2, ramchandra Ram Chandrabanshi is the informant and father of said PW-13, Rinki kumari, the alleged victim of this case and. he has turned hostile and does not support the prosecution case. PW-1, Phulwanti Devi is the wife of the informant and she also does not support the prosecution case in her evidence. PW-5, Asha Kumari and PW-12, dhanwanti Kumari are the students of the said Middle School and they have also turned hostile. PW-8 Shakuntala Devi, PW-9, Tribhuwan Ram, PW-10, Nutan Ram and pw-11 Deonandan Ram have also turned hostile and they do not support the prosecution case even as hearsay witnesses. PW-6, Binod Kumar, the son of the informant and PW-7, Ra (sic) are hearsay witnesses of the alleged occurrence. PW-3, Dr. Shall sinha and PW-4, Dr. Pushpa Sehgal have jointly examined PW-13. Rinki Kumari and their report per pen of PW-3 and also signed by PW-4 is Ext. 2 in this case. PW-14, rabindra Nath Choubey is the I. O. of this case. Ext. 3 is the signature of PW-13 on her statement under Section 164 of the Cr. P. C. recorded by Shri B. P. Gupta, Judicial magistrate, Daltonganj. No oral and documentary evidence has been brought on the record on behalf of the appellant. ( 7 ) RELYING upon the solitary testimony of pw-13, Rinki Kumari, the learned Court below came to the finding of the guilt of the appellant for the offence under Sections 366-A and 376 of the Indian Penal Code and he was accordingly, convicted and sentenced as stated above. ( 7 ) RELYING upon the solitary testimony of pw-13, Rinki Kumari, the learned Court below came to the finding of the guilt of the appellant for the offence under Sections 366-A and 376 of the Indian Penal Code and he was accordingly, convicted and sentenced as stated above. ( 8 ) ASSAILING the impugned judgment it has been submitted by the learned counsel for the appellant that the learned Court below did not consider the evidence on the record in proper perspective and has erroneously come to the finding of the guilt of the appellant. It has been submitted that pw-13, Rinki Kumari was a major girl at the time of the occurrence and the assessment of her age by the medical witnesses between 12-15 years is palpably wrong and incorrect and as no specific data have been mentioned either in the report (Ext. 2) or in the evidence of PWs.-3 and 4 and furthermore the school admission register of PW-13 has also been deliberately suppressed in this case and not brought on the record and PW-2 and PW-1 have also not stated in their oath regarding the age of their daughter PW-13 and on this score alone the charge under Section 366-A falls flat. It has also been contended that none of the prosecution witnesses including the parents and the brother of PW-13, Rinki Kumari has supported the prosecution case in their evidence on oath and in this view of the matter there is no iota of legal evidence on the record to support the prosecution case. The further contention on behalf of the appellant is that pws-3 and 4, the medical witnesses have also not found any injury either external or internal on her person or on her introitus to substantiate the fact of ravishment of PW-13 as alleged and, therefore, the solitary testimony of PW-13, Rinki Kumari lacks credence and cannot be accepted in the facts and circumstances of this case specially in view of the fact of evidence of PW-1, her mother that she had gone to Punjab with the appellant with a purpose and object of site seeing. Lastly it has been contended that relevant question regarding the age of PW-13 has not been put to the appellant in course of his examination under Section 313 of the Indian Penal Code and in this view of the matter the conviction of the appellant stands vitiated. ( 9 ) REFUTING the contention aforesaid it has been submitted by the learned A. P. P. that pw-13, Rinki Kumari is a minor girl below 16 years of age at the time of the occurrence and it has been specifically averred in the written report (Ext. 4) that she is 12 years old and PWs-3 and 4 have assessed her age between 12-15 years and she has been induced by this appellant to accompany her on false pretext and she was taken by him to Punjab where she has been ravished by him and PW-13 in their evidence has materially corroborated the prosecution case and the learned Court below has rightly relied upon the testimony of PW-13 for coming to the finding of the guilt of the appellant and as such there is no infirmity in the impugned judgment. ( 10 ) TO constitute an offence under Section 366-A of the Indian Penal Code there must he kidnapping of an woman under 18 years of age by inducing her to go from a place with intent that such woman may be or knowing that it is likely that she will be forced or seduced to illicit intercourse with another person. The question of age of the victim is of considerable importance. It has been averred in the written report (Ext. 4)that PW--13, Rinki Kumari daughter of the informant was 12 years old on the date of the occurrence and a student prosecuting her studies in Kundn Middle School PW-1, phulwanti Devi, the mother of the alleged victim girl has deposed in her oath that her daughter Rinki Kumari was aged about 13 years at the time of the occurrence. However, PW-2 the father of the victim girl is silent in his evidence regarding the age of her victim daughter. PW-13, Rinki Kumari has taken oath in this case on 20-6-1998 and she has disclosed her age as 16 years but the learned Court below has assessed her age as 20 years. PW-3, Dr. Shall Sinha and PW-4, Dr. However, PW-2 the father of the victim girl is silent in his evidence regarding the age of her victim daughter. PW-13, Rinki Kumari has taken oath in this case on 20-6-1998 and she has disclosed her age as 16 years but the learned Court below has assessed her age as 20 years. PW-3, Dr. Shall Sinha and PW-4, Dr. Pushpa Sehgal have deposed to have jointly examined PW-13 on 8-8-1996 and PW-3 has deposed that as per her physical appearance and dental examination the age of PW-13 is between 12 and 13 years. However, Ext. 2 reveals that PW-3 has assessed the age of PW-13 between 12 and 15 years. PW-4. Dr. Pushpa Sehgal has also deposed to have examined PW-13 along with dr. Shail Sinha and she has arrived at a common finding with PW-3 in respect of the report Ext. 2. The appellant has not cross-examined PW-3. The appellant has also further not questioned PW-4 regarding the age of PW-13, Rinki Kumari as stated by her in the report Ext. 2. In view of the evidence aforesaid it can be safely held that on the day of the occurrence PW-13, Rinki Kumari was definitely under 18 years of age. Non-production of the admission register of kundri Middle School to prove the age of rinki Kumari recorded therein in no way can he termed as a lacuna of the prosecution case. The omission of the trial Court in mentioning the word minor in the question put to the appellant in his examination under section 313 of the Cr. P. C. can also not be viewed as a fatal lacuna of the prosecution case regarding the established fact as per the evidence on the record that PW-13, Rinki kumari was definitely under 18 years of age on the date of the occurrence. ( 11 ) THE most important witness in an abduction case is generally the abducted woman herself and when her evidence is solitary one and other witnesses are not corroborating her evidence then in such a situation the evidence of the abducted woman has to be scrutinized with care and caution to find as to whether there is ring of truth in the statement of the said abducted woman. It is pertinent to mention here that the age of the girl is very material on the question of her consent and here in this case, the age of pw-13 is below 18 years and as per the medical evidence her age is between 12 to 15 years taking the line of least resistance. PW-13 was a student prosecuting her studies in Kundri Middle School and on the date of the occurrence she had gone to her school and she was present in the said school. PW-13, Rinki Kumari has deposed that the appellant came in the said school during the lunch hour and informed her regarding the illness of her mother and on this information she proceeded with him and she was brought to Daltonganj by him to the house of his sister and on her query as to where her mother is, the appellant told her that it has become dark and she will be brought before her mother in the following morning. Her evidence is further to the effect that on the following morning she was brought to the Railway station and she was boarded in a train and on her query as to where he is taking her she was reprimanded and told to be assaulted and the appellant brought her to Punjab where he kept her for three days in the house of a woman belonging to his village. She has also deposed that he has forcibly ravished her during that period. In his cross-examination she has also deposed that the appellant is a resident of her village and his house is situated at a distance of 25 or 30 feet from her house. Her evidence is further to the effect that in course of journey by train she had made protest but she was intimidated to be done to death. She has also deposed that co-accused Sulab mochi, the brother of the appellant, came to the said house in Punjab and he brought her back to her village. She has also deposed that she had narrated the incident to the said woman and her husband where she was put in by the appellant but they did not come to her help. PW-2, the father of PW-13 has deposed that on the day of the occurrence her daughter PW-13 had gone to the school but she did not return from the said school. PW-2, the father of PW-13 has deposed that on the day of the occurrence her daughter PW-13 had gone to the school but she did not return from the said school. He has turned hostile to the prosecution case being the informant and in his cross-examination he has deposed that the appellant has not taken away PW-13 with him after inducing her rather he behaves with her like her brother. He has also deposed that he has compromised the case with the appellant. PW-1, the mother of PW-13 has deposed that her daughter Rinki Kumari had gone to her school and from there the appellant took her to Punjab. She has also deposed that the appellant had taken her with him for site seeing. She has also deposed that the appellant is her neighbour and her daughter has voluntarily returned to her house. She has also deposed that she has compromised the case with the appellant. PW-6, Binod Kumar, the brother of PW-13 has deposed that her sister Rinki Kumari had gone to the school and from there the appellant had taken away from there inducing her. However, in his cross-examination he has deposed that he has not seen the appellant taking her away by inducing her. PW-7 has deposed that he has heard that the appellant has kidnapped PW-13, Rinki kumari and has taken her away. PWs-5, 8, 9, 11 and 12 are all hostile witnesses and they do not support the prosecution case. The attention of the aforesaid hostile witnesses were drawn to their statement made by them before PW-14, the I. O. in which they have all supported the prosecution case. PW-14, the I. O. has deposed that in course of investigation PW-13 was brought from punjab to her house and she was brought to the police station by her parents where her statement was recorded and she was sent for medical examination. From the evidence aforesaid specially of PW-13 it is crystal clear that she was taken by the appellant from her school on the day of the occurrence on the pretext of the illness of her mother firstly at Daltonganj and, thereafter, by train from there to Punjabwhere she was kept in the house of a woman of the village of the appellant for three days and during their stay at that place she was ravished by the appellant thrice against her will. It is pertinent to mention here that it cannot be said in view of the evidence on the record that she had voluntarily with her free consent accompanied the appellant for daltonganj and, thereafter, to Punjab for site seeing. PW-13 was definitely below 18 years of age as per the evidence on the record referred to above and, therefore, the fact of her consent even if accepted as per the evidence of her mother has no bearing in the facts and circumstances of this case. The compromise, if any, arrived at between the informant and the appellant cuts no ice in view of both the offences being non-com-poundable. PW-3, Dr. Shall Sinha has examined PW-13, Rinki Kumari on 8-8-1996 i. e. on 17th day of the occurrence after return from Punjab. She has deposed that she did not find any injury on her person and private part. She has further deposed that her hymen revealed rupture at two points and the tear was old but her introitus admits two fingers tightly but no spermatozoa was found in her vaginal swab as per pathological report. She has further deposed that ravishment of PW-13, Rinki Kumari cannot be ruled out. The absence of sperm on examination of PW-13, Rinki Kumari on 17th day of the occurrence cannot be taken to be a ground to question the testimony of PW-13, Rinki Kumari regarding her ravishment as deposed by her. However, the hymen of pw-13, Rinki Kumari reveals rupture though the tear was old but her introitus admitted two fingers tightly. It, therefore, means that pw-13, Rinki Kumari was not accustomed to sexual intercourse prior to the occurrence in question. The medical evidence on the record supports the factum of ravishment of PW-13, Rinki Kumari by the appellant at punjab where she was taken by the appellant after inducing her. In the facts and circumstances of this case I, therefore, see ring of truth in the evidence of PW-13. A pros-ecutrix of a sex offence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a 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. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a 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. To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult woman-hood and it would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime. The standard of proof to be expected by the Court in such cases must take into account the fact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecutrix is available. Ordinarily a woman moreso a young girl, will not stake her reputation by levelling a false charge concerning her chastity. In the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, (1983) 3 SCC 217 : ( AIR 1983 sc 753 : 1983 Cri LJ 1096) it has been observed by the Apex Court that if the evidence of the victim does not suffer from any basic infirmity, and the probabilities factor does not render it unworthy of credence, as a general rule, corroboration cannot be insisted upon, except from the medical evidence where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming. It has further been observed that on principle the testimony of a victim of sexual assault stands on par with the testimony of an injured witness. Just like the testimony of the injured witness, that of the victim of sex offence is entitled to great weight. But unlike the case of physical assault, corroboration in the form of eyewitness account of an independent witness cannot be expected in sex offences, having regard to the very nature of the offence. Just like the testimony of the injured witness, that of the victim of sex offence is entitled to great weight. But unlike the case of physical assault, corroboration in the form of eyewitness account of an independent witness cannot be expected in sex offences, having regard to the very nature of the offence. In the case at hand the evidence of PW-13 inspires confidence as there is ring of truth in her testimony. She has been taken away by the appellant inducing her from her school to Daltonganj and from there to Punjab where she has been ravished. Having regard to the prevailing modes of the Indian society it is inconceivable that a girlbetween the age group of 12-15 would invent of her own a false story of her ravishment and a girl of that age is well aware of the fact that the reputation of the entire family would be jeopardized upon such a story of her ravishment being spread. It is also unthinkable that the parents would tutor their minor daughter to invent such a story in order to wreck vengeance of someone, and here only with a view to hush up the matter her parent have turned hostile. From the standpoint of "probabilities factor", therefore, it is not possible to countenance the suggestion that PW-13, Rinki Kumari had gone to punjab for site seeing. Therefore, in the facts and circumstances of this case the submissions put forward on behalf of the appellant has no substance. The sentence awarded to the appellant in the facts and circumstances of this case can also not be viewed as severe as ravishment of a young girl is a deathless shame. The learned Court below has properly evaluated the evidence on the record meticulously and has rightly come to the finding of the guilt of the appellant and as such the impugned judgment does not suffer with any illegality. ( 12 ) 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. The bail bond of the appellant is cancelled and he is directed to surrender before the Court below to serve out the sentence. The learned Court below is also directed to take all coercive steps to apprehend the appellant in accordance with law for serving out the sentence. Appeal dismissed. --- *** --- .