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Himachal Pradesh High Court · body

2008 DIGILAW 406 (HP)

Yoginder Singh alias Fakia v. State of H. P.

2008-08-14

RAJIV SHARMA

body2008
JUDGMENT (Rajiv Sharma, J.) - The accused was prosecuted in Sessions Trial No. 3-S/7 of 2007 in the Court of Sessions Judge, Shimla under Sections 452 and 376 of the Indian Penal Code. He was convicted by the learned Sessions Judge and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 25,000/- for committing an offence under Section 376 of the Indian Penal Code. In default of payment of fine, the accused was directed to undergo further rigorous imprisonment for 1 years. He was further sentenced to undergo rigorous imprisonment for 2 years and to pay a fine of Rs. 5,000/- for committing an offence punishable under Section 452 of the Indian Penal Code and in default of payment of fine, the accused was directed to undergo rigorous imprisonment for 3 months. 2.The case of the prosecution in nutshell is that prosecutrix (PW-2) had gone to the house of PW-6 Sh. Relu Ram, her maternal grand father, in village Jhina in the month of October, 2006. PW-4 Rajinder Singh, Member Gram Panchayat, Jhina on October, 10, 2006 at abotu 1.30 p.m. made a telephone call to the Police Station, Chopal to the effect that one girl had been raped in village Tuhil. The Police was requested to come to the spot and investigate the matter. ASI, Dandu Ram went to the spot and recorded the statement of Urmila Devi under Section 154 of the Code of Criminal Procedure. Sequence of events reported is that on October 9, 2006, she had gone in village Tuhil to collect the grass. She returned to the house in the evenign at about 7.30 p.m. Her son Nikhil aged 11 years, Balwant aged 9 years and son of her brother-in-law Gulshan, aged 11 years informed her that during day time they were grzing cattle adjoining the house of PW-6 Relu Ram. They heard cries from inside the house of Relu Ram. When they went there, they found that the room from where the cries were coming was bolted. They managed to peep inside the room from another room through the roof and noticed that the accused had made the prosecutrix to lie down on a bedding and was having sexual intercourse with her. She was raising cries. The accused went towards Tuhil side. They managed to peep inside the room from another room through the roof and noticed that the accused had made the prosecutrix to lie down on a bedding and was having sexual intercourse with her. She was raising cries. The accused went towards Tuhil side. When Urmila asked the prosecutrix about the incident, she told that the accused had subjected her to sexual intercourse at 2.30 p.m. in the house of Relu Ram. He had come there when she was alone. He demanded a glass tumbler to take liquor. The prosecutrix provided him a glass tumbler. The accused took liquor which he had brought. Thereafter the accused told the prosecutrix that he would like to sleep and asked her to spread bedding. The prosecutrix spread bedding on the ground and when she wanted to go out, the accused caught her from her hair and arm and threw her on the bedding and bolted the door from inside. He forcibly removed the salwar of the prosecutrix by breaking the string and threw it away. He removed his trousers and committed forcibly sexual intercourse with the prosecutrix. The complainant took the prosecutrix to the house of Chet Ram, brother of the informant, he was not there. She went to her another brother Davinder and informed him about the incident. The accused was also there. The case was registered on the basis of the statement of Urmila Devi vide FIR Ex.PW-15/C. The case was investigated by Govind Ram, Sub Inspector,. He moved an application on 11.10.2006 Ex.PW-1/A to the Medical Officer, Civil Hospital, Chopal for the medical examination of the prosecutrix. The medical examination was carried on by PW-1 Dr. Renu Sharma. She issued medico legal certificate Ex.PW-1/C. The Medical Officer also took into possession vaginal slide and vaginal swab of the prosecutrix. She also took into possession the clothes of the prosecutrix i.e. sweater Ex.P-1, salwar Ex.P-2 and brassiere Ex.P-3. The Investigating Officer also got ossification test of the prosecutrix conducted through Dr. Neelam PW-11 as per X-ray skiagram Ex.PW-11/A-1 to Ex.PW-11/A-6. PW-11 Dr. Nelam gave the report Ex.PW-1/D certifying the age of the prosecutrix between 12-1/2 years to 15 years. The accused was arrested by the police and an application for medical examination on October 11, 2006 was also moved. The medical examination of the accused was conducted by PW-13 Dr. Neelam PW-11 as per X-ray skiagram Ex.PW-11/A-1 to Ex.PW-11/A-6. PW-11 Dr. Nelam gave the report Ex.PW-1/D certifying the age of the prosecutrix between 12-1/2 years to 15 years. The accused was arrested by the police and an application for medical examination on October 11, 2006 was also moved. The medical examination of the accused was conducted by PW-13 Dr. Shayam Lal, who issued medico legal certificate Ex.PW-13/B and he was found capable of committing sexual intercoruse. The prosecutrix produced a cover of quilt to the police, which was taken into possession vide memo Ex.PW-2/A. It was sealed in a parcel with seal ‘H’. The Investigating Officer also took into possession the date of birth certificate of the prosecutrix Ex.PW-10/A showing her date of birth as 7.2.1996 and also another certificate Ex.PW-10/E vide memo Ex.PW-10/F. The police also collectedj the abstract from the school attendance register Ex.PW-10/B to Ex.PW-10/D to establish that the prosecutrix, Nikhil and Balwant were absent from their school on 9.10.2006. The Assistant Secretary Lata, Gram Pancahyat, Jhina produced the abstract of Pariwar register of the prosecutrix Ex.PW-12/A to the polcie vide memo Ex.PW-12/B. The case property was deposited with the MHC as per the abstract of the registered Ex.PW-15/A and it was sent to the Forensic Sciecne Laboratory, Junga vide entry Ex.PW-15/B. The forensic report Ex.PW-1/E was received to the effect that human semen was found on the underwear of the accused and shirt of the prosecutrix. The human blood and human semen were found on the salwar of the prosecutrix. The matter was investigated and the challan was put under Sections 452 and 376 of the Indian Penal Code. The prosecution examined as many as 19 witnesses to prove its case. The accused was examined under Section 313 of the Code of Criminal Procedure. The trial Court on the basis of the evidence led by the prosecution has convicted the accused, as noticed above. This appeal has been preferred by the accused against the judgment dated 30.5.2007. 3.Mr. N.S. Chandel, Advocate had strenuously argued that the prosecution has miserably failed to prove the case against the appellant. The trial Court has not properly appreciated the material on record. The prosecution story is highly improbable and the accused person has been falsely implicated. 4.Mr. Rajinder Dogra, Additional Advocate General had supported the judgment dated 30.5.2007. 3.Mr. N.S. Chandel, Advocate had strenuously argued that the prosecution has miserably failed to prove the case against the appellant. The trial Court has not properly appreciated the material on record. The prosecution story is highly improbable and the accused person has been falsely implicated. 4.Mr. Rajinder Dogra, Additional Advocate General had supported the judgment dated 30.5.2007. 5.I have heard the learned Counsel for the parties and have also perused the record carefully. 6.The prosecutrix has appeared as PW-2. Being a child of the age of 11 years, her statement was recorded in the form in interrogatories. She has deposited that during the day time, the accused came to the house of Relu Ram and he was drunk. The accused asked her to put up bedding for him. The accused shut the door and caught hold of her from neck and arm and forced her to lie on the bed with him and thereafter he put off her salwar and she started crying. He forcibly committed rape on her and she was bleeding from the private parts due to the act of the accused. The matter was reported to the police. She was medically examined. She had identified clothes Ex.P-1 to P-3 and quilt cover Ex.P-4 in the Court. She has denied that she was not wearing the clothes Ex.-1 to Ex.P-3 at the time of incident. 7.PW-1 Dr. Renu Sharma, Medical Officer has medically examined the prosecutrix on police request. The Medical Officer has found as under as per Ex.PW-1A; “No recent injury noted on body, Breast partially developed. Axullary and public hairs yet not developed. Minarchy occurred September 20, 2006. Local Examination :- No signs of struggle injury noted over external genitalia or thigh. Labia majora not completely covering labia minors, public not present. Whitish discharge coming out of the bagina. Hyman present with central opening. Margins are created. No oedema or inflammation present except for small abrasion at 6 O’clock position. Scab was found reddish brown in colour. Digital examination :- Admitting one finger easily, No tenderness present. Vitals were normal. Chest CVS abdomen nothing abnormally detected. Advised X-ray shoulder, AP bilateral knee, AP bilateral angle by lateral. For the X-ray she fill up the form Ex.PW-1/B. After going thorough the examination, it was opined that possibility of rape cannot be ruled out and final opinion will subject to expert opinion from Forensic Experts and chemical analysis. Vitals were normal. Chest CVS abdomen nothing abnormally detected. Advised X-ray shoulder, AP bilateral knee, AP bilateral angle by lateral. For the X-ray she fill up the form Ex.PW-1/B. After going thorough the examination, it was opined that possibility of rape cannot be ruled out and final opinion will subject to expert opinion from Forensic Experts and chemical analysis. The patient was referred to D.D.U. Shimla for radiological and dental opinion for age determination.” 8.In the opinion of the Medical Officer PW-1, the possibility of sexual intercourse could not be ruled out. 9.PW-3 Smt. Urmila Devi is the sister of father of the prosecutrix. She has deposed that on 9.10.2006, the prosecutrix had gone to the house of her maternal uncle Relu Ram in village Tuhil. When she returned in the evening, she was told by Balwant, Hina, Nikhil and Gulshan that the accused committed sexual intercourse with the prosecutrix during day time at 230/3.00 p.m. She inquired from the prosecutrix to confirm and consequently the matter was reported to the police vide statement Ex.PW-3/A. She has denied that the witness had handed over some clothes to the prosecutrix to wear at the time of examination. She has also denied that the prosecutrix was not wearing the clothes Ex.P-1 to Ex.P-3 at the time of incident. PW-4 Rajinder Singh is the member of the Gram Panchayat, Jhina. He telephoned to the police to come to the village. Consequently, the police visited the spot and recorded the statement Ex.PW-3/A. The police took into possession cover of quilt Ex.P-4 in his presence from the house of Relu Ram vide memo Ex.PW-4/A. 10.PW-5 Balwant Kumar is a minor witness, who is 10 years old. He has stated that he was grazing cattle alongwith Gulshan, Hina and Nikhil. The prosecutrix was present in the house of Relu Ram. The accused came and asked for the glass tumbler from the prosecutrix. Thereafter he asked the prosecutrix to spread bedding for him. The accused then came to the room of the prosecutrix and bolted door from inside. The accused caught hold of the prosecutrix from her arm and put her down on the bed. She raised hue and cry and on hearing the same he and other children went to the spot. They peeped inside the room from an opening in the roof. The accused caught hold of the prosecutrix from her arm and put her down on the bed. She raised hue and cry and on hearing the same he and other children went to the spot. They peeped inside the room from an opening in the roof. He has further stated that the accused had taken off his trousers and had also removed the salwar of the prosecutrix. The accused lied on the prosecutrix and he was having sexual intercourse with her. According to him, Gulshan and Nikhil saw the incident from the door of the same room. Hina was with him on the roof. He narrated the incident to his mother Urmila. He has clarified in his cross-examination that the prosecutrix was not playing with him. He has admitted that his mother had asked him to make statement in the court. He has also admitted that the police officials asked him outside the court to make the statemetn. PW-6 is Sh. Relu Ram. He has stated that when he returned in the evening from his work, he found that the prosecutrix had been called by Urmila. He was told by his grand children that the accused had misbehaved with the prosecutrix. He has denied that he had been aking loan from the accused and that he owned a sum of Rs. 10,000/- on account of debt. PW-7 Chet Ram is the father of the prosecutrix. He has stated that the age of his daughter is 11-12 years. According to him he had gone to collect the grass and prosecutrix had gone to the house of her maternal uncle Relu Ram on 9.10.2006. The children had informed him that the accused had comitted rape on the prosecutrix. He has disclosed in cross-examination that the accused worked as a mason in the village and he had worked in the house of Relu Ram. He has admitted that he had gone to the court, but denied that he had given any statement though he had signed the papers. He has admitted his signatures in circle ‘A’ and the statemet Ex.D-1. He has admitted that the mental state of his daugher was not good. PW-8 Nikhil is a child witness. He has stated that the prosecutrix is his real sister and he recognized the accused present in the Court. He has admitted his signatures in circle ‘A’ and the statemet Ex.D-1. He has admitted that the mental state of his daugher was not good. PW-8 Nikhil is a child witness. He has stated that the prosecutrix is his real sister and he recognized the accused present in the Court. He has stated that 6-7 months back, he was present in the house and was grazing the cattle outside along with Gulshan, Balwant and Heena. PW Relu Ram is his maternal grand father. He heard cries of prosecutrix from the house of Relu Ram. They all went there and saw that the accused and prosecutrix were sleeping on a bed. They had taken off their clothes. He has stated that the accused committed sexual intercourse with the prosecutrix and they saw this incident thorugh a wall which was half constructed. In his cross-examination he has denied that his mother had asked him to deposie in favour of the prosecution in the court. He has also denied that the police officials had tutored him to make the statement in a particular manner. PW-9 Gulshan is also a child witness. He also recognized the accused who was present in the court. In his cross-examination he had admitted that Balwant, Nikhil and Heena were also in the school with him and after the school, they were playing with him. He has admitted that the police officials had taken him to the police office in the district courts and Nikhil and Heena were also with him. PW-10 Yoginder Singh is Head Teacher, Government Primary School, Tuhil. He has deposed that the prosecutrix was admitted in the school on April 12,2004 and her date of birth is 7.2.1996. He has handed over the original Gram Panchayat certificate Ex.PW-10A to the police. He has stated that the prosecutrix was absent from the school on 9.10.2006. He has proved the abstract from the register Ex.PW-10/B. He has also stated that Nikhil, Gulshan and Heena were also absent from the school on 9.10.2006 and proved abstracts from the register Ex.PW-10/C and Ex.PW-10/D. He has issued birth certificate Ex.PW-10/E and the documents were taken into possession by the police vide memo Ex.PW-10/F. 11.PW-11 Dr. Neelam Radiologist had opined that as per report Ex.PW-1/D, the age of the prosecutrix was 12-1/2 years to 15 years. PW-12 is Lata, Assistant Secretary, Gram Panchayat, Jhina. Neelam Radiologist had opined that as per report Ex.PW-1/D, the age of the prosecutrix was 12-1/2 years to 15 years. PW-12 is Lata, Assistant Secretary, Gram Panchayat, Jhina. She has stated that she handed over the abstract of Pariwar register Ex.PW-12/B. PW-13 is Dr. Shyam Lal Chauhan. He has stated that he examined the accused on 11.10.2006. He has opined that there was nothing to suggest that the person examined by him was unable to perform sexual intercourse. He had found no injury on the genital organs or any other part of his body. He has opined that smegma was not present on the pensis of the person. He has encircled the suspected semen stains on the underwear of the accused. He has taken into possession the underwear and Pajama of the accused for the chemical examination. 12.PW-14 Surinder Diwan is the Panchayat Secretary, Pujarli. He has brought the original date of birth register of the Gram Panchayat on the basis of which he issued the certificate Ex.PW-10/A. PW-15 Pritam Singh, MHC has stated that on 12.10.2006 SHO Gobind Ram had deposited a sealed parcel sealed with seal ‘H’. On 14.10.2006, vide RC No. 58/06, he handed over the parcels to Kailash Chand constable to deposit the same at F.S.L., Junga. He has proved the entry in the Malkhana Register Ex.PW-15/A. He also proved the copy of RC Ex.PW-15/B as well as copy of FIR Ex.PW-15/C, which was recorded on the basis of statement Ex.PW-3/C. PW-16 Dinesh Kumar has deposed that on 10.10.2006, Rajinder Mehta informed through telephone that a rape had been committed with one girl at village Tuhil. He recorded the same in daily diary Ex.PW-16/A. PW-17, Kailash Chand, Constable has stated that on 14.10.2006, MHC Pritam Singh had handed over to him 7 parcels to deposit the same in FSL, Junga through RC No. 58/2006. He deposited the same in F.S.L. Junga and obtained the receipt on the RC which is Ex.PW-15/B. PW-18, SI Dandu Ram has stated that he visited the spot in the presence of other police officials and recorded the statement of Urmila Devi Ex.PW-3/A under Section 154 of the Code of Criminal Procedure. The matter was investigated by PW-19 ASI Gobind Ram. The matter was investigated by PW-19 ASI Gobind Ram. He has deposed that he visited the spot and prepared the site plan Ex.PW-19/A. He took into possession the quilt cover which was produced by the prosecutrix and the same was sealed in a parcel with seal impression ‘H’. He prepared memo Ex.PW-12/A. The quilt cover was taken into possession in the presence of Relu Ram and Rajinder Singh. The sample seal Ex.PW-19/BN was also taken and seal was given to PW Rajidner Singh. The medical of the prosecutrix was got conducted at Civil Hospital, Chopal vide application Ex.PW-1/A and the medical certificate is Ex.PW-1/C. He has obtained the opinion of the Radiologist Ex.PW-1/D. He also got the medical of the accused conducted and MLC Ex.PW-13/B was obtained. He has also received the report from the FSL, Junga Ex.PW-1/E vide letter Ex.PW-19/C. He obtained the copy of the pariwar register from Assistant Secretary vide Ex.PW-12/A. He also procured date of birth certificate Ex.PW-10/A from Yoginder Singh, Head Teacher, Government Primary School, Tuhil. He also procured the abstract of attendance register dated 9.10.2006 Ex.PW-10/, PW-10/C, PW-10/D and certificate Ex.PW-10/E and taken into possession vide memo Ex.PW-10/F. The seal was handed over to Rajinder Mehta vide memo Ex.PW-4/A. He has proved on record the application Ex.PW-19/H vide which the clothes were sent to FSL, Junga. He has given the height of the walls of the house of Relu Ram about 6 feet. He has further stated that there is no window in the room concerned. He has self stated that one wall was half constructed. He has denied that the clothes, which were sent to laboratory, were of daughter-in-law of Relu Ram. 13.DW-1 Naresh Kumar has stated that the prosecutrix is his niece. He has deposed that the cloths of his wife had been taken into possession. He has identified the clothes. The suit has been taken away by Urmila Devi from his house. The suit was being worn by his wife in daily routine and even in the night also she wore the same suit. The menstruation of his wife took place 5-6 days back before the incident. He has deposed that he had intercourse with his wife 5-76 days back before this incident and on that day she was wearing the same clothes. The menstruation of his wife took place 5-6 days back before the incident. He has deposed that he had intercourse with his wife 5-76 days back before this incident and on that day she was wearing the same clothes. According to him there was a conspiracy against the accused by Davinder and Urmila due to the reason that there was a quarrel between accused and Davinder 2-3 days back. In his cross-examination, he has stated that Relu Ram is his father. He has stated that he was not in his house and he came on October 10, 2006 in the evening. Prior to October 9, 2006, he was working as a carpenter in the house of Bhupinder Singh at village Tuhil. He has stated that the prosecutrix had come to the house of Relu Ram on October 9, 2006. He and his father lived together. He never asked the prosecutrix about the incident. He has intercourse with his wife regularly. He was not at home when the rape took place in his house. He has denied that his wife had given clothes to the prosecutrix to wear. 14.The prosecutrix was born on 7.2.1996 as per Ex.PW-10/A issued by the Gram Panchayat, Jhina. The incident took place on 9.10.2006. She was aged about 10 years and 8 months at the time of incident. The Head Teacher of the School has also issued certificate Ex.PW-10/E. The date of birth of the prosecutrix has been shown as 7.2.1996. The ossification test was conducted by PW-11. It is evident from Ex.PW-11/A-1 to Ex.PW-11/A-6 that the age of the prosecutrix has been proved between 12-1/2 years to 15 years. She was a minor. She has appeared as PW-2. The question have been put to her by the trial Court in the shape of interrogatories. The statement made by her inspires confidence. She has narrated the sequence of events in a very natural manner. She has given all the details in which she was subjected to rape by the accused. The statement of PW-2 prosecutrix is duly supported by the statement of PW-1 Dr. Renu Sharma. She has deposed that the possibility of the rape could not be ruled out. It is evident from the report received from the FSL, Junga that there were blood stains and presence of semen on the clothes. The statement of PW-2 prosecutrix is duly supported by the statement of PW-1 Dr. Renu Sharma. She has deposed that the possibility of the rape could not be ruled out. It is evident from the report received from the FSL, Junga that there were blood stains and presence of semen on the clothes. The clothes were taken in possession by the doctor and handed over to the police and the same were sent to the medical examination for FSL, Junga. There is variance in the date on which the samples were sent by PW-15 Pritam Singh, MHC, Police Station Chopal and the date on which the samples were received in FSL, Junga. He has deposed that the samples were sent on 14.10.2006. In fact, PW-17 Kailash Chand, Constable has also admitted that the samples were handed over to him on 14.10.2006 to deposit the same in the FSL, Junga. However, in the RC it has come that the samples were sent on 16.10.2006 and the same were received in the laboratory on 16.10.2006. This variance in the dates will not vitiate the trial for the simple reason what the Court has to see whether the sample has reached intact or not in FSL, Junga and what is the final opinion of the experts. 15.The statement of PW-2 has been duly supported by other child witnesses, namely, PW-5 Balwant Kumar, PW-8 Nikhil. These two witnesses though child witnesses have narrated the incident in a natural manner. Their age varies between 8 to 11 years. Being of tender age, they were required to be reminders by the elders about the incident when they came to the court. The Court can taken judicial notice of the fact that children are overawaved by the atmosphere of the Court. It is only for this reason that their elders have refreshed their memory about the incident. The child witnesses have seen the incident and they were absent from the school as duly certified by the Head Teacher. Urmila Devi to whom the incident was narrated by the prosecutrix has appeared as PW-3. She has supported the version of the prosecutrix alongwith PW-4 Rajinder Singh, who had informed the police about the rape. PW-6 Relu Ram and father of the prosecutrix PW-7 Chet Ram have also supported the case of the prosecution. Mr. N.S. Chandel, Advocate has relied upon the cross-examination of Sh. She has supported the version of the prosecutrix alongwith PW-4 Rajinder Singh, who had informed the police about the rape. PW-6 Relu Ram and father of the prosecutrix PW-7 Chet Ram have also supported the case of the prosecution. Mr. N.S. Chandel, Advocate has relied upon the cross-examination of Sh. Chet Ram to stress that he being father of the prosecutrix has given statement Ex.D-1 before the Judicial Magistrate, Chopal. This statement has been rightly discarded by the trial Court. It has come in the evidence that PW-7 is an illiterate person and was not aware of the consequences of the statement. The Head Teacher, Government Primary School, Tuhil has stated that the prosecutrix was admitted in the school on 12.4.2004 and her date of birth was 7.2.1996. PW-12 Lata, Assistant Secretary has deposed that she has handed over the abstract of Pariwar register Ex.PW-12/B. PW-13 Dr. Shyam Chauhan has medically examined the accused. He has opined that the accused was capable of performing sexual intercourse. The plea of the accused that he has been falsely implicated due to some dispute with Urmila Devi has been rightly discarded by the trial Court. There is nothing on record to suggest that there was any enmity between the parties as projected by the defence. It has come in the evidence that one wall of the house was half constructed and it was possible for the children to peep into the same. It is also clear from the site plan Ex.PW-19/A that there was opening in the roof of the room from where the witness could see the incident. It has come in the statement of the witnesses that the prosecutrix was wearing the same clothes at the time of medical examination, which she was wearing at the time of incident and the statement of DW-1 Naresh Kumar cannot be believed. 16.Their Lordships of the Hon’ble Supreme Court in State of Himachal Pradesh v. Asha Ram, 2005(13) SCC 766 : 2005(Suppl.) Cur.L.J. (H.P.) S.C. 132 have held that the conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. Their Lordships have held as under :- “We record our displeasure and dismay, the way the High Court dealt casually with the offence so grave, as in the case at hand, overlooking the alarming and shocking increase of sexual assault on the minor girls. Their Lordships have held as under :- “We record our displeasure and dismay, the way the High Court dealt casually with the offence so grave, as in the case at hand, overlooking the alarming and shocking increase of sexual assault on the minor girls. The High Court was swayed by sheer insensitivity totally oblivious of growing menace of sex violence against the minors much less by the father. The High Court also totally overlooked the prosecution evidence, which inspired confidence and merited acceptance. it is now well settled principle of law that conviction can be founded on the testimony of the prosecutrix alone unless there are compelling reasons for seeking corroboration. The evidence of a prosecutrix is more reliable than that of an injured witness. The testimony of the victim of sexual assault is vital unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty in acting on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. It is also well settled principle of law that corroboration as a condition for judicial reliance on the testimony of the prosecutrix is not a requirement of law but a guidance of prudence under given circumstances. The evidence of the prosecutrix is more liable than that of an injured witness. Even minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. In the case of Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, AIR 1983 SC 753 at SC pp. 756-757 this Court pointed out that in the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury. Why should be evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? It was further pointed out that on principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Why should be evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion ? It was further pointed out that on principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a six-offence is entitled to great weight, absence of corroboration notwithstanding. The aforesaid observation was made by this Court because of the following factors : (1) A girl or a woman in the tradition bound non-permissive society of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. (2) She would be conscious of the danger of being ostracized by the Society or being looked down by the society including by her own family members, relatives, friends, and neighbours. (3) She would have to brave the whole world. (4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered. (5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or as acceptable family. (6) It would almost inevitably and almost invariably result in mental torture and suffering to herself. (7) The fear of being taunted by others will always haunt her. (8) She would feel extremely embarrassed in relating the incident to others being overpowered by a feeling of shame on account of the upbringing in a tradition bound society where by and large sex is taboo. (9) The natural inclination would be avoid giving publicity to the incident lest the family name and family honour is brought into controversy. (10) The parents of an unmarried girl as also the husband and members of the husbands’ family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (10) The parents of an unmarried girl as also the husband and members of the husbands’ family of a married woman, would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour. (11) The fear of the victim herself being considered to be promiscuous or in some way responsible for the incident regardless of her innocence. (12) The reluctance to face interrogation by the investigating agency, to face the Court, to face the cross-examination by counsel for the culprit, and the risk of being disbelieved, act as a deterrent. In the case of Rafiq v. State of U.P., 1980(4) SCC 262, V.R. Krishna Iyer, J. speaking for the Court observed at SCC p. 265 as under :- “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. Indeed, from place to place, from age to age, from varying life-styles and behavioural complexes, inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of rule of law in this area be introduced through a new type of precedential tyranny. The same observation holds good regarding the presence or absence of injuries on the person of the aggressor or the aggressed.” In the case of Madan Gopal Kakkad v. Naval Dubey, 1992(3) SCC 204, it was pointed out at scc p. 218 that even in cases wherein there is lack of oral corroboration to that of a prosecutrix, a conviction can be safely recorded, provided the evidence of the victim does not suffer from any basic infirmity, and the ‘probabilities factor’ does not render it unworthy of credence, and that 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. In the case of Ranjit Hazarika v. State of Assam, 1998(8) SCC 635, this Court held that non-rupture of hymen or absence of injury on victim’s private parts does not belie her testimony. This Court further held that the opinion of doctor that no rape was committed cannot thrown out an otherwise cogent and trustworthy evidence of the prosecutrix. In the case of Ranjit Hazarika v. State of Assam, 1998(8) SCC 635, this Court held that non-rupture of hymen or absence of injury on victim’s private parts does not belie her testimony. This Court further held that the opinion of doctor that no rape was committed cannot thrown out an otherwise cogent and trustworthy evidence of the prosecutrix. This Court held that the evidence of the prosecutrix was amply corroborated by her mother and father whom she immediately informed about the occurrence. In the case of State of Punjab v. Gurmit Singh, 1996(2) SCC 384, this Court pointed out at SCC p. 403 :- “Rape is no merely a physical assault - It is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim; a rapist degrades the very soul of the helpless female. The Court, therefore, shoulders a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and not get swayed by minor contradictions or insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case. 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.” In the case of State of Rajasthan v. N.K. the accused, 2000(5) SCC 30 the observation made in Gurmit Singh’s case (supra) was reiterated. The Court further observed in paragraph 9 at scc. p. 38 as under :- “Having heard the learned Counsel for the parties we are of the opinion that the High Court was not justified in reversing the conviction of the respondent and recording the order of acquittal. The Court further observed in paragraph 9 at scc. p. 38 as under :- “Having heard the learned Counsel for the parties we are of the opinion that the High Court was not justified in reversing the conviction of the respondent and recording the order of acquittal. It is true that the golden thread which runs throughout the cobweb of criminal jurisprudence as administered in India is that nine guilty may escape but one innocent should not suffer. But at the same time no guilty should escape unpunished once the guilt has been proved to hilt. An unmerited acquittal does not good to the society. If the prosecution has succeeded in making out a convincing case for recording a finding as to the accused being guilty, the court should not lean in favour of acquittal by giving weight to irrelevant or insignificant circumstance or by resorting to technicalities or by assuming doubts and giving benefit thereof where none exists. A doubt, as understood in criminal jurisprudence, has to be a reasonable doubt and not an excuse for a finding in favour of acquittal. An unmarritered acquittal encourages wolves in the society being on the prowl for easy prey, more so when the victims of crime are helpless females. It is the spurt in the number of unmerited acquittals recorded by criminal courts which gives rise to the demand for death sentence to the rapists. The Courts have to display a greater sense of responsibility and to be more sensitive while dealing with charges of sexual assault on women.” 17.In the present case the statement of the prosecutrix has remained unimpeachable and trustworthy. The statement of the prosecutrix has duly been corroborated, as noticed above, by the other witnesses and the medical evidence. 18.It is well settled by now that the statement of the child witness cannot be discarded. 19.Their Lordships of the Hon’ble Supreme Court in Prakash and another v. State of Madhya Pradesh, 1992() SCC 225 have held that a boy aged 14 years can give a proper account of the incident. His testimony should not be rejected simply on the ground that because of his tender age he was likely to be tutored. 19.Their Lordships of the Hon’ble Supreme Court in Prakash and another v. State of Madhya Pradesh, 1992() SCC 225 have held that a boy aged 14 years can give a proper account of the incident. His testimony should not be rejected simply on the ground that because of his tender age he was likely to be tutored. Their Lordships have held as under :- “After giving our anxious consideration to the facts and circumstances of the case and the arguments advanced by the counsel for the parties and judgment delivered both by the Additional Sessions Judge and the High Court of Madhya Pradesh, it appears to us that the fatal injuries had been inflicted by Prakash with the gupti. The gupti was recovered at the instance of the accused and such recovery was not otherwise possible if the accused himself had not assisted or such recovery of the gupti. The said gupti was stained with human blood and no reasonable explanation has been given by accused for such blood stain. The injuries found on the person of the deceased could be inflicted by a gupti and complicity of Prakash in inflicting the fatal injuries by gupti has been corroborated by the eye-witnesses. There may be some minor discrepancies in the evidence of the eye-witness but so far as the complicity of Prakash is concerned, the depositions of the eye-witnesses were consistent. In discarding the evidence of the brother of the deceased namely Ajay Singh the learned Additional Sessions Judge was influenced by the tender age of Ajay (about 14 years) and was of the view that he was likely to be tutored. We do not think that a boy of about 14 years of age cannot give a proper account of the murder of his brother if he has an occasion to witness the same and simply because the witness was a body of 14 years it will not be proper to assume that he is likely to be tutored. The High Court has given very convincing reasons for accepting the evidence of Ajay Singh as an eye-witness of the murderous act and we do not find any infirmity in the finding made by the High Court. The High Court has given very convincing reasons for accepting the evidence of Ajay Singh as an eye-witness of the murderous act and we do not find any infirmity in the finding made by the High Court. In so far as the dying declaration is concerned, we are inclined to accept the finding of the High Court that the deceased was alive at least up to half an hour after the assault. He had been taken to the hospital where he received some treatment for about 10-15 minutes. It is not borne out from the evidence of the doctor that the injuries were so grave and the condition of the patient was so critical that it was unlikely that he could make any dying declaration. In the ordinary course, the members of the family including the father were expected to ask the victim the names of the assailants at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the assailants if he had recognised the assailants. In the instant case there is on occasion to hold that the deceased was not in a position to identify the assailants because it is nobody’s case that the deceased did not know the accused persons. It is therefore quite likely that on being asked the deceased would name the assailants. In the facts and circumstances of the case the High Court has accepted the dying declaration and we do not think that such a finding is perverse and requires to be interfered with. As a matter of fact, on second thought, the learned Additional Sessions Judge has accepted the dying declaration and has convicted prakash on the basis of dying declaration. The injuries inflicted by Prakash were very serious on vital parts of the body causing death of the deceased within a very short time. In such circumstances, conviction under Section 302, IPC and sentence of life imprisonment of the accused Prakash is justified and no interference is called for. The injuries inflicted by Prakash were very serious on vital parts of the body causing death of the deceased within a very short time. In such circumstances, conviction under Section 302, IPC and sentence of life imprisonment of the accused Prakash is justified and no interference is called for. In our view, the High Court has taken a very reasonable view in convicting the other accused namely Shiv Narayan under Section 326 read with Section 34, IPC and has considered his case with such sympathy as the said accused deserved by sentencing him for imprisonment for the period already undergone by him, for an offence under Section 326 read with Section 34, IPC. We, therefore, find no reason to interfere with the conviction or the sentence passed against the accused Shiv Narayan. The appeals therefore fail and are dismissed. The bail bond of the accused Prakash is discharged and he would surrender and serve out the sentence.” 20.Their Lordships of the Hon’ble Supreme Court in Panchhi and others v. State of U.P., 1998(7) SCC 177 have held that it cannot be said that the evidence of a child witness would always stand irretrievable stigmatized. It is not the law that if a witness is a child, his evidence shall be rejected, even if it is found reliable. Their Lordships have held as under :- “Shri R.K. Jain, learned Senior Counsel contended that it is very risky to place reliance on the evidence of PW-1 being a child witness. According to the learned Counsel, evidence of a child witness is generally unworthy of credence. But we do not subscribe to the view that the evidence of a child witness would always stand irretrievably stigmatized. It is not the law that if a witness is a child his evidence shall be rejected, even if it is found reliable. The law is that evidence of a child witness must be evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell them and thus a child witness is an easy prey to tutoring. Courts have laid down that evidence of a child witness must be find adequate corroboration before it is relied on. Courts have laid down that evidence of a child witness must be find adequate corroboration before it is relied on. It is more a rule of practical wisdom than of law (vide, Prakash v. State of Madhya Pradesh, 1992(4) SCC 225 : AIR 1993 SC 65; Baby Kandayanathil v. State of Kerala, 1993 Suppl.(3) SCC 667 : 1993 AIR SCW 2192; Raja Ram Yadav v. State of Bihar, AIR 1996 SC 1613 : 1996 AIR SCW 1882 and Dattu Ramrao Sakhare v. State of Maharashtra, 1997(5) SCC 341.” 21.The learned trial Court after correct appreciation of the prosecution evidence has rightly convicted and sentenced the accused and as such the judgment passed by the learned trial Court need not be interfered with by this Court. 22.In view of the aforesaid reasoning, there is no merit in this appeal and the same is dismissed. The appellant is directed to surrender before the trial Court for serving the sentence as awarded to him vide judgment dated 30.5.2007. The bail bonds are cancelled. M.R.B. ———————