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2007 DIGILAW 1579 (PNJ)

Ashok Kumar v. State Of Haryana

2007-08-31

MAHESH GROVER

body2007
Judgment Mahesh Grover, J. 1. During the night of 20th December, 1996, PW3 Ms. Sarita Yadav daughter of Shri Sube Singh (hereinafter described as the prosecutrix) was subjected to rape by the appellant by entering into her house and by putting her in immediate fear of death of her sibling. The FIR was lodged by the prosecutrix on 23rd December, 1996. The police, who investigated the matter, prima facie found that the appellant had committed offences punishable under Sections 376, 451 and 506 of the IPC and accordingly, submitted a challan against him. 2. The Additional Sessions Judge, Narnaul (for short, the trial Court) chargesheeted the appellant under Sections 376, 457 and 506 of the IPC to which he pleaded not guilty and claimed trial. 3. The prosecution, in order to establish its case against the appellant, examined as many as eight witnesses including the prosecutrix and the doctor who medically examined her as PW3 and PW7, respectively. 4. The appellant, in his statement recorded under Section 313 of the Cr.P.C, stated that he has been falsely implicated as he was having inimical relations with the family of the prosecutrix, but did not lead any evidence to establish the animosity. He, however, produced on record the dates of birth certificates Exhibits D1 to D5 pertaining to the children of the father of the prosecutrix, besides Jamabandi Exhibit D-6. 5. On appraisal of the evidence before it, the trial Court came to the conclusion that the appellants guilt was established and accordingly, it convicted him for the offences punishable under Sections 376 and 457 of the IPC vide its judgment dated 23.4.1999. After hearing the appellant on quantum of sentence, the trial Court, vide its order dated 27.4.1999, sentenced him under Section 376 of the IPC to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5,000/-, in default of which, to further undergo rigorous imprisonment for three months. The appellant was further sentenced under Section 457 of the IPC to undergo rigorous imprisonment for two years and to pay a fine of Rs. 500/- and in default of payment of amount of this fine, he was directed to undergo simple imprisonment for fifteen days. The trial Court also directed that in case, the fine is realised, the same shall be paid to the victim as compensation as envisaged under Section 357 of the Cr.P.C. 6. 500/- and in default of payment of amount of this fine, he was directed to undergo simple imprisonment for fifteen days. The trial Court also directed that in case, the fine is realised, the same shall be paid to the victim as compensation as envisaged under Section 357 of the Cr.P.C. 6. While assailing the aforesaid judgment and order of sentence passed by the trial Court, the learned counsel for the appellant contended that the appellant has been falsely implicated as is reflected from the medical testimony of PW7 Dr. Smita Sharma, who stated that no marks of injuries were found on the person of the prosecutrix and that there was nothing on record to suggest that even if, she was subjected to sexual intercourse, it was the result of coercion or undue pressure. 7. On the other hand, learned counselfor the State contended that the statement of the prosecutrix is unambiguous and that she was less than 16 years of age at the time of occurrence, as is evident from the school leaving certificate Exhibit-PE. That apart, the medical evidence also establishes the factum of the prosecutrix being subjected to sexual intercourse. In view of this, it was sought to be contended that the conviction and sentence awarded by the trial court is perfectly in order. 8. I have heard the learned counsel for the parties and have perused the record. 9. The statement of the prosecutrix as PW 3 is noteworthy. She has stated that she was subjected to forcible sexual intercourse by the appellant, who put her in immediate fear of the death of her younger brother. The facts revealthat she had already lost one brother few years back and the appellant owned up the responsibility of causing his death by way of drowning and threatened that her other younger brother would meet the same fate. A perusal of her statement reveals the petrified state of mind of the prosecutrix. She has also testified further that she had repeatedly told her parents to remove her younger brother from the place where they were living and to send him to a safer place. On the persistent questioning by the parents of the prosecutrix, she revealed the truth which led to the lodging of the FIR after three days of the occurrence. 10. On the persistent questioning by the parents of the prosecutrix, she revealed the truth which led to the lodging of the FIR after three days of the occurrence. 10. The corroborative evidence in such cases requiring the fortification of the commission of offence of rape necessarily need not be there for reliance if the statement of the prosecutrix inspires confidence. 11. In State ofM.P. V/s. Dayal Sahu,1 their Lordships of the Supreme Court held as under:- "A plethora of decisions by this Court as referred to above would show that once the statement of the prosecutrix inspires confidence and is accepted by the Courts as such, conviction can be based only on the solitary evidence of the prosecutrix and no corroboration would be required unless there are compelling reasons which necessitate the Courts for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is not a requirement of law but a guidance of prudence under the given facts and circumstances. It is also noticed that minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. Non-examination of doctor and non-production of doctors report would not be fatal to the prosecution case, if the statements of the prosecutrix and other prosecution witnesses inspire confidence. It is also noticed that the Court while acquitting the accused on benefit of doubt should be cautious to see that the doubt should be a reasonable doubt and it should not reverse the findings of the guilt on the basis of irrelevant circumstances or mere technicalities." 12. In State of Rajasthan V/s. Biram Lal,9 a Division Bench of the Hon ble Apex Court accepted the appeal of the State and set aside the order of acquittal passed by the High Court of Rajasthan so far as it related to the offence under Section 376 of the IPC. Some of the observations made by their Lordships are extracted below: "We, therefore, find it difficult to sustain the order of acquittal passed by the High Court in respect of the offence under Section 376 IPC. It is not the law that in every case version of the prosecutrix must be corroborated in material particulars by independent evidence on record. It all depends on the quality of the evidence of the prosecutrix. It is not the law that in every case version of the prosecutrix must be corroborated in material particulars by independent evidence on record. It all depends on the quality of the evidence of the prosecutrix. If the Court is satisfied that the evidence of the prosecutrix is free from blemish and is implicitly reliable, then on the sole testimony of the prosecutrix, the conviction can be recorded. In appropriate cases, the Court may look for corroboration from independent source or from the circumstances of the case before recording an order of conviction. In the instant case, we find that the evidence of the prosecutrix is worthy of credit and implicitly reliable. The other evidence adduced by the prosecution, in fact, provides the necessary corroboration, even if that was considered necessary. The High Court on a clear misreading of the evidence on record, acquitted the respondent of the charge under Section 376 IPC while upholding his conviction under Section 450 IPC." 13. In view of the law laid down by the Supreme Court in the aforementioned cases, this Court is of the opinion that the statement of the prosecutrix is absolutely forthright and the threat was not illusory or a figment of her imagination. Having lost her brother in an unnatural death and further subjected to revelation made by the appellant that he was responsible for the death, naturally put her in an instant fear. It is not for this Court to determine as to whether such a revelation was truthful or merely concocted to threaten the prosecutrix, but the fact remains that she apparently did come under pressure of such a threat held out by the appellant. 14. In this view of the matter, there is no reason to disbelieve the statement of the prosecutrix, more-so when the appellant has failed to establish his false implication on account of animosity which he pleaded in his statement under Section 313 of the Cr.P.C. 15. That apart, the statement of PW7 Dr. Smita Sharma also clearly reveals that the prosecutrix had been subjected to sexual intercourse about two to three days prior to the examination. That apart, the statement of PW7 Dr. Smita Sharma also clearly reveals that the prosecutrix had been subjected to sexual intercourse about two to three days prior to the examination. This witness also went on to opine that mere absence of injuries and admission of two fingers in the vagina on physical examination, as also absence of any external marks, did not necessarily imply that the patient has not been subjected to sexual assault in a forcible manner. 16. Having regard to the aforesaid, there is no hesitation to accept the version of the prosecution and to dismiss the appeal so as to maintain the conviction awarded by the trial Court. 17. At this stage, learned counsel for the appellant contended that the incident is of the year 1996 and eleven years have elapsed since then and the appellant was 27 years of age at the time of recording of his statement under Section 313 of the Cr.P.C. and he would be fairly well advanced in age. Besides, the prosecutrix is also said to have been married. In this view of the situation, he contended that the sentence may be reduced to that of already undergone by him, which period is more than two years. 18. I have given my anxious consideration to this aspect of the matter. There is, indeed, no doubt that the appellant had committed a grave and heinous offence by violating the person of a young girl by putting her in extreme fear. The offence and the manner in which it has been committed is unpardonable, but the Court cannot lose sight of the fact that the prosecutrix has since been married and the appellant too has carried on in his life in the last eleven years in which the threat of prosecution loomed over his head and to send him to custody at this stage, would be harsh as, even though, he would be paying for his sins, but his children would be deprived of the affection of their father. Therefore, a lenient view in the matter of sentence deserves to be taken. For this, I draw support from the observations made in Narender Singh V/s. State ofHaryana. Accordingly, this appeal is disposed of in the following terms:- (1) The conviction shall remain intact. Therefore, a lenient view in the matter of sentence deserves to be taken. For this, I draw support from the observations made in Narender Singh V/s. State ofHaryana. Accordingly, this appeal is disposed of in the following terms:- (1) The conviction shall remain intact. (2) The sentence as awarded by the trial Court will stand reduced to that of already undergone, provided the appellant deposits with the trial Court, within three months from today, a sum of Rs. 50,000/- to be paid to the parents of the prosecutrix for onward disbursement to her as compensation. (3) In case, the appellant fails to deposit the aforesaid amount within the stipulated period, the sentence imposed by the trial Court shall get revived and in that eventuality, his bail bonds will be cancelled. (4) On deposit of the amount as directed above, the same will be paid to the complainant after due enquiry and verification and the trial Court shall not insist on the presence of the prosecutrix.