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2012 DIGILAW 320 (CHH)

GHANSHYAM ALIAS PAPPU v. STATE OF C. G.

2012-12-05

RADHE SHYAM SHARMA

body2012
JUDGMENT 1. This appeal is directed against the judgment dated 13-8-2004 passed by Additional Sessions Judge, Bemetara, Durg in Sessions Trial No. 46/2004. By the impugned judgment, accused/appellant Ghanshyam alias Pappu has been convicted under Section 376(1) of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 3,000/-, in default of payment of fine, to further undergo rigorous imprisonment for 6 months and co-accused Rupesh Kumar alias Gudda has been acquitted of the charges framed against him. 2. Case of the prosecution, in brief, is as under: On 13-1-2004, at about 7:00 P.M., at Village Bhardakala, appellant along with acquitted accused Rupesh Kumar alias Gudda induced the prosecutrix (PW-5); took her to the house of Maharunisha (PW-6, sister of the appellant) at Kawardha and committed sexual intercourse with prosecutrix (PW-5) twice. Nathuram (PW-1, father of the prosecutrix) made written complaint (Ex.P-1) and lodged First Information Report (Ex.P-2) in Police Station Saja. Offence under Sections 363 and 366 IPC was registered. On the next day of the incident, Lachhiram Sahu (PW-2, brother of the prosecutrix) took the prosecutrix (PW-5) returned to her house and offence under Section 376 IPC was also registered against the appellant. Prosecutrix (PW-5) was sent to Community Health Centre, Saja for medical examination vide Ex.P-16A. Dr. Smt. Ujwala Dewangan (PW-11) and Dr. Vandana Gupta (PW-12) examined the prosecutrix (PW-5) and gave their reports vide Ex.P-16 and P-18 respectively. Dr. Smt. Ujwala Dewangan (PW-11) prepared two slides of vaginal swab. Prosecutrix (PW-5) was sent to the District Hospital Durg for X-Ray examination and Dr. S.K. Mandage (PW-15) took out X-Ray and gave his report (Ex. P-23), in which, he opined that the age of prosecutrix (PW-5) was 15 years. In further investigation, site map (Ex.P-3) was prepared by Patwari Toomanlal Devhari (PW-14). Another site map (Ex.P-7) was prepared by Sub-Inspector K.P.S. Paikara (PW-13). Photocopy of Dakhil Kharij Panji was obtained. Memorandum statement (Ex.P-12) of acquitted accused Rupesh Kumar @ Gudda was recorded and at his instance Scooter and motorcycle Kawasaki Boxer were seized from him vide Exs.P-13 and P-14 respectively. Samiz and underwear of the prosecutrix (PW-5) were seized from the prosecutrix (PW-5) vide Ex.P-8. Underwear of the appellant was also seized vide Ex.P-15. Appellant Ghanshyam was also sent to the Government Hospital, Saja for medical examination. Dr. Samiz and underwear of the prosecutrix (PW-5) were seized from the prosecutrix (PW-5) vide Ex.P-8. Underwear of the appellant was also seized vide Ex.P-15. Appellant Ghanshyam was also sent to the Government Hospital, Saja for medical examination. Dr. Sunil Singh (PW-16) examined him and gave his report (Ex.P-20A), in which, he found that the appellant was capable of committing sexual intercourse. Slides were seized vide Ex.P-19. Seized articles were sent to Forensic Science Laboratory, Raipur for examination. Report (Ex.P-27) was received there from. After completion of the investigation, charge sheet was filed against the appellant and acquitted accused in the court of Judicial Magistrate First Class, Bemetara, who, in turn, committed the case to the Court of Sessions Judge, Durg, from where, it was received on transfer by Additional Sessions Judge, Bemetara, who conducted the trial and convicted and sentenced the appellant as mentioned above and acquitted the co-accused Rupesh Kumar @ Gudda. 3. In support of its case, prosecution has examined Nathuram (PW-1, father of the prosecutrix), Lachhiram Sahu (PW-2, brother of the prosecutrix), Altaf Khan (PW-3), Sohan Sahu (PW-4), Prosecutrix (PW-5), Mehrunisha (PW-6), Ravi Kumar Sen (PW-7), Rajesh Singh Chandel (PW-8), Muniram (PW-9), Fagalu Ram (PW-10), Dr. Smt. Ujwala Dewangan (PW-11), Dr. Vandana Gupta (PW-12), Sub-Inspector K.P.S. Paikara (PW-13), Patwari Toomanlal Devhari (PW-14), Dr. S.K. Mandgae (PW-15), Dr. Sunil Singh (PW-16) and Head Master Ghanshyam Singh Thakur (PW-17). 4. Smt. Fouzia Mirza, learned counsel for the appellant, argued that on the date of incident, the age of prosecutrix was above 16 years. The documents produced by the prosecution relating to age of prosecutrix (PW-5) were not duly proved by it. She further argued that looking to the medical evidence, prosecutrix (PW-5) was a consenting party to sexual intercourse. The evidence of prosecutrix (PW-5) does not inspire confidence. The finding of the learned Additional Sessions Judge is liable to be set aside and the appellant is entitled for acquittal. She placed reliance on Satpal Singh Vs. State of Hariyana (2010) 8 SCC 714 and Alamelu and another Vs. State represented by Inspector of Police (2011)2 SCC 385 : AIR 2011 SC 715 . 5. Shri R.R. Sinha, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Sessions Judge do not warrant any interference by this Court. 6. State represented by Inspector of Police (2011)2 SCC 385 : AIR 2011 SC 715 . 5. Shri R.R. Sinha, learned Panel Lawyer for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Additional Sessions Judge do not warrant any interference by this Court. 6. Having heard rival contentions of the parties at length, I have perused the record of Sessions Trial No. 46/2004. 7. Now, I shall examine whether on the date of incident, the age of prosecutrix (PW-5) was below 16 years or not? 8. Evidence of parents of victim girl is material for proving her age. In the instant case, at the time of deposition, prosecutrix (PW-5) deposed that her age was 14 years and her date of birth is 11th October, 1988. Nathuram (PW-1), who is, father of prosecutrix (PW-5) deposed that at the time of incident, the age of prosecutrix (PW-5) was 14 years. Lachhiram Sahu (PW-2) also deposed that the age of prosecutrix (PW-5) was 14 years on the date of incident. 9. Nathuram (PW-1) specifically deposed that the age of prosecutrix (PW-5) was 14 years and no single question was put to him regarding age of the prosecutrix (PW-5) by the appellant. Lachhiram Sahu (PW-2), in paragraph 11 of cross-examination, deposed that the age of his youngest brother was 12 years and prosecutrix (PW-5) was two years elder than his youngest brother. He further deposed that prosecutrix (PW-5) was studying in 8th standard in Bhardakala Middle School at the time of incident. 10. Dr. Smt. Ujwala Dewangan (PW-11) and Dr. Vandana Gupta (PW-12) also mentioned in their reports Ex.P-16 and P-18, respectively that the age of prosecutrix (PW-5) was 14 years on the date of her examination. Dr. S.K. Mandage (PW-15) deposed that he had taken out X-Ray of wrist, elbow and radius ulna of the prosecutrix (PW-5) and found that her age was below 15 years. 11. Ghanshyam Singh Thakur (PW-17) deposed that he was posted at Middle School, Bhardakala as Head Master. He further deposed that he had brought original Dakhil Kharij Register of the said school. The said register was maintained since 1998. At page No. 31, serial No. 75 of the register, date of prosecutrix (PW-5) is mentioned as 11-10-1988. Certified copy of Dakhil Kharij Panji is submitted in the case which is Ex.P-25C. He further deposed that he had brought original Dakhil Kharij Register of the said school. The said register was maintained since 1998. At page No. 31, serial No. 75 of the register, date of prosecutrix (PW-5) is mentioned as 11-10-1988. Certified copy of Dakhil Kharij Panji is submitted in the case which is Ex.P-25C. Looking to the evidence of Ghanshyam Singh Thakur (PW-17) and Ex.P-25C, it appears that the date of birth of the prosecutrix (PW-5) is 11-10-1988. 12. In Alamelu and another Vs. State, Represented by Inspector of Police, the Hon'ble Supreme Court observed thus: "38. ......... The transfer certificate has been issued by a Government School and has been duly signed by the Headmaster. Therefore, it would be admissible in evidence under Section 35 of the Indian Evidence Act. However, the admissibility of such a document would be of not much evidentiary value to prove the age of the girl in the absence of the material on the basis of which the age was recorded. The date of birth mentioned in the transfer certificate would have no evidentiary value unless the person, who made the entry or who gave the date of birth is examined. 13. In State of Chhattisgarh Vs. Lekhram (2006) 5 SCC 736 , the Hon'ble Supreme Court observed thus: “A register maintained in a school is admissible in evidence to prove date of birth of the person concerned in terms of Section 35 of the Evidence Act. Such dates of births are recorded in the school register by the authorities in discharge of their public duty. It may be true that an entry in the school register is not conclusive but it has evidentiary value. Such evidentiary value of a school register is corroborated by oral evidence in this case as the same was recorded on the basis of the statement of the mother of the prosecutrix.” 14. In Shekara Vs. State of Karnataka (2009) 14 SCC 76 , the Hon'ble Supreme Court observed as follows: "6. It is to be noted that PW 1 had produced the transfer certificate (Ext.P-9) and has stated that it pertains to the victim and her name has been entered in the certificate. Nothing has been elicited in her cross-examination to discard her evidence that Ext. P-9 pertains to the victim, that is, the daughter of PW 1. It is to be noted that PW 1 had produced the transfer certificate (Ext.P-9) and has stated that it pertains to the victim and her name has been entered in the certificate. Nothing has been elicited in her cross-examination to discard her evidence that Ext. P-9 pertains to the victim, that is, the daughter of PW 1. PW 12 had issued the transfer certificate and also stated in his evidenced that he was working as headmaster of the school in question. He remembered to have seen her when she came for applying for the transfer certificate for her children and had issued the transfer certificate to her and that Ext. P-9, the transfer certificate was issued by him. It also bears the signature of the headmaster. He categorically stated that Ext. P-9 was issued on the basis of the entries made in the admission register and Ext. P-10(a) as the relevant entry on the basis of which Ext. P-9 was issued." 15. In Arjun Singh Vs. State of H.P. 2009 Cri.LJ. 1332 (SC), the Hon'ble Supreme Court observed as follows: "7. In State of Chhattisgarh v. Lekhram [ 2006(5) SCC 736 ] it was held that the register maintained in a school is admissible evidence to prove the date of birth of the person concerned in terms of Section 35 of the Indian Evidence Act, 1872 (in short 'Evidence Act'). It may be true that the entry of the school register is not conclusive but it has evidentiary value." 16. In the instant case, Ghanshyam Singh Thakur (PW-17) who was the Head Master of the school and who made entry in Dakhil Kharij Panji was examined by the prosecution Ghanshyam Singh Thakur (PW-17) specifically deposed that the date of birth of the prosecutrix (PW-5) was recorded in Dakhil Kharij Panji on the basis of transfer certificate. Nathuram (PW-1) and Lachhiram Sahu (PW-2) deposed that the age of prosecutrix (PW-5) was 14 years. Therefore, the evidence of Nathuram (PW-1) and Lachhiram Sahu (PW-2) are reliable. Dr. S.A. Mandage (PW-15) deposed that on the basis of X-Ray report, he found that the age of prosecutrix (PW-5) was 15 years. Therefore, it is established from medical evidence also that the age of the prosecutrix (PW5) was below 15 years. The date of birth of the prosecutrix (PW-5) is 11-10-1988. The date of incident was 13-1-2004. Dr. S.A. Mandage (PW-15) deposed that on the basis of X-Ray report, he found that the age of prosecutrix (PW-5) was 15 years. Therefore, it is established from medical evidence also that the age of the prosecutrix (PW5) was below 15 years. The date of birth of the prosecutrix (PW-5) is 11-10-1988. The date of incident was 13-1-2004. It reveals that the age of prosecutrix (PW-5) was below 16 years on the date of incident. 17. Now, I shall examine whether offence under Section 376 IPC is made out against the appellant or not? 18. Prosecutrix (PW-5) deposed that on 13-1-2004, at about 6:45 P.M., she was returning back to her home from the house of her uncle Jagdish. Appellant met and caught her and boarded her forcibly on the scooter and took her to Saja. Appellant left scooter at Saja and took Boxer motorcycle. He took the prosecutrix (PW-5) at Kawardha. He took prosecutrix (PW-5) to the house of his sister situated at Kawardha. He committed sexual intercourse with her at the house of his sister twice. 19. In Vijay alias Chinee Vs. State of Madhya Pradesh (2010)8 SCC 191 , the Hon'ble Supreme Court observed thus: "9. In State of Maharashtra v. Chandraprakash Kewalchand Jain, (1990) 1 SCC 550 , this Court held that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Court observed as under: (SCC p. 559, para 16) “16. A prosecutrix 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 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. She is undoubtedly a competent witness under Section 118 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. What is necessary is that the court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge leveled by her. If the court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act similar to Illustration (b) to Section 114 which requires it to look for corroboration. If for some reason the court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corroboration required in the case of an accomplice. The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding the court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the court should ordinarily have no hesitation in accepting her evidence." 10. In State of U.P. v. Pappu, (2005) 3 SCC 594 , this Court held that even in a case where it is shown that the girl is a girl of easy virtue or a girl habituated to sexual intercourse, it may not be a ground to absolve the accused from the charge of rape. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. It has to be established that there was consent by her for that particular occasion. Absence of injury on the prosecutrix may not be a factor that leads the court to absolve the accused. This Court further held that there can be conviction on the sole testimony of the prosecutrix and in case, the court is not satisfied with the version of the prosecutrix, it can seek other evidence, direct or circumstantial, by which it may get assurance of her testimony. The Court held as under: (SCC p. 597, para 12) "12. It is well settled that a prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted upon without corroboration in material particulars. She stands at a higher pedestal than an injured witness. In the latter case, there is injury on the physical form, while in the former it is both physical as well as psychological and emotional. However, if the court of facts finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or circumstantial, which would lend assurance to her testimony. Assurance, short of corroboration as understood in the context of an accomplice, would do." 11. In State of Punjab v. Gurmit Singh, (1996) 2 SCC 384 , this Court held that in cases involving sexual harassment, molestation, etc. the court is duty-bound to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of a prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case. Evidence of the victim of sexual assault is enough for conviction and it does not require any corroboration unless there are compelling reasons for seeking corroboration. The court may look for some assurances of her statement to satisfy judicial conscience. The statement of the prosecutrix is more reliable than that of an injured witness as she is not an accomplice. The Court further held that the delay in filing FIR or sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under: (SCC pp. 394-96 & 403, paras 8 & 21) "8. ... The Court further held that the delay in filing FIR or sexual offence may not be even properly explained, but if found natural, the accused cannot be given any benefit thereof. The Court observed as under: (SCC pp. 394-96 & 403, paras 8 & 21) "8. ... The court overlooked the situation in which a poor helpless minor girl had found herself in the company of three desperate young men who were threatening her and preventing her from raising any alarm. Again, if the investigating officer did not conduct the investigation properly or was negligent in not being able to trace out the driver or the car, how can that become a ground to discredit the testimony of the prosecutrix? The prosecutrix had no control over the investigating agency and the negligence of an investigating officer could not affect the credibility of the statement of the prosecutrix. ... The courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her. In cases involving sexual molestation, supposed considerations which have no material effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should not, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. .....Seeking corroboration of her statement before relying upon the same, as a rule, in such case amounts to adding insult to injury. ..... 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. ...... * * * 21. ...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. 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." 12. In State of Orissa v. Thakara Besra, (2002) 9 SCC 86 , this Court held that rape is not mere physical assault, rather it often distracts (sic destroys) the whole personality of the victim. The rapist degrades the very soul of the helpless female and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. 13. In State of H.P. v. Raghubir Singh, (1993) 2 SCC 622 , this Court held that there is no legal compulsion to look for any other evidence to corroborate the evidence of the prosecutrix before recording an order of conviction. Evidence has to be weighed and not counted. Conviction can be recorded on the sole testimony of the prosecutrix, if her evidence inspires confidence and there is absence of circumstances which militate against her veracity. A similar view has been reiterated by this Court in Wahid Khan v. State of M.P., (2010) 2 SCC 9 , placing reliance on an earlier judgment in Rameshwar v. State of Rajasthan, AIR 1952 SC 54 ." 20. Prosecutrix (PW-5) deposed that she was sent for medical examination. Dr. Smt. Ujwala Dewangan (PW-11) and Dr. Vandana Gupta (PW-12) deposed that they examined the prosecutrix (PW-5). They further deposed that the hymen of prosecutrix (PW-5) was ruptured and tenderness and redness were present in the vagina. Dr. Sm. Ujwala Dewangan (PW-11) deposed that she had prepared two slides of vaginal swab. Report (Ex.P-27) was received from the FSL, Raipur. Dr. Smt. Ujwala Dewangan (PW-11) and Dr. Vandana Gupta (PW-12) deposed that they examined the prosecutrix (PW-5). They further deposed that the hymen of prosecutrix (PW-5) was ruptured and tenderness and redness were present in the vagina. Dr. Sm. Ujwala Dewangan (PW-11) deposed that she had prepared two slides of vaginal swab. Report (Ex.P-27) was received from the FSL, Raipur. In the report (Ex.P-27), it is mentioned that article B-Jaanghiya and article C1 to C3, i.e., slides of vaginal swab of prosecutrix (PW-5) were found smeared with human spermatozoa. Evidence of prosecutrix (PW-5) is reliable and cogent and looking to the evidence of prosecutrix (PW-5) and FSL report (Ex.P-27), it is established that the appellant committed sexual intercourse with the prosecutrix (PW-5). 21. From bare perusal of evidence of prosecutrix (PW-5), medical evidence and FSL report (Ex.P-27), it is established that the sexual intercourse was committed with the prosecutrix (PW-5). The evidence of prosecutrix (PW5) is cogent and reliable. Looking to the evidence of prosecutrix (PW-5), it is established that the appellant committed sexual intercourse with the prosecutrix (PW-5). It is also established that the sexual intercourse was committed with the prosecutrix (PW-5) with her consent. Therefore, she was consenting party to sexual intercourse. Prosecutrix (PW-5) was below 16 years of age on the date of incident, hence, her consent was of no consequence and was immaterial. 22. So far as the sentence part is concerned, learned Additional Sessions Judge has sentenced rigorous imprisonment for 10 years. Looking to the evidence of prosecutrix (PW-5), it appears that prosecutrix (PW-5) had willingly accompanied the appellant and she was about 15 years of age. For offence under Section 376(1) IPC, the minimum sentence of 7 years is prescribed. 23. Looking to the facts and circumstances of the case, the jail sentence awarded by the learned Additional Sessions Judge under Section 376 (1) IPC is harsh. I am of the view that ends of justice would be served if the appellant is sentenced with rigorous imprisonment for 7 years only. 24. In the result, the appeal is partly allowed. The conviction of the appellant under Section 376(1) IPC is affirmed, however, sentence of rigorous imprisonment for 10 years awarded to him is reduced to 7 years only. The sentence of fine awarded by the learned Additional Sessions Judge is also affirmed. 24. In the result, the appeal is partly allowed. The conviction of the appellant under Section 376(1) IPC is affirmed, however, sentence of rigorous imprisonment for 10 years awarded to him is reduced to 7 years only. The sentence of fine awarded by the learned Additional Sessions Judge is also affirmed. The appellant shall surrender before the trial Court forthwith to serve remaining part of jail sentence, if any. Appeal Partly Allowed.