(High Court Of Judicature At Allahabad)

Criminal Appeal No. 4762 of 2008 | 04-02-2016

Ranjana Pandya, J.—1. Challenge in this appeal is to the judgment and order dated 28.07.2008, passed by Sri Shushil Kumar Rastogi, A.D.J./F.T.C., Court No. 1, Kanpur Dehat, in Sessions Trial No. 382 of 2007 (State v. Kanjara), arising out of Case Crime No. 187 of 2007, under Section 376 I.P.C., Police Station Shivali, District Kanpur Dehat, whereby the accused appellant was found guilty under Section 376 I.P.C. and sentenced to ten years rigorous imprisonment with fine of Rs. 2000/- with default stipulation.

2. According to the prosecution case, the victim has lodged the first information report at Police Station Shivali on 07.08.2007 at 11:20 A.M. stating that she was returning home with her goat. Suddenly, near the grove, the accused dragged her, gagged her mouth and raped her. She is 12 years of age, whereas the accused is 21 years old. When she tried to raise alarm, the accused raised the volume of radio and threatened her, hence she lodged the first information report.

3. On the basis of first information report, PW-4 Constable Maan Singh scribed the chick report which was proved as Exhibit Ka-4. This witness further scribed the G.D. whose copy was proved as Exhibit Ka-4. Investigation of the matter was entrusted to PW-5 S.I. Ramveer Singh. He copied the first information report in the C.D., recorded the statements of the victim, her mother and father. He inspected the spot at the pointing out of the victim and prepared the site plan which was proved as Exhibit Ka-6. Further this witness copied the medical report of the victim and X-ray report and submitted charge sheet against the accused which was proved as Exhibit Ka-7. Dr. R.K. Srivastava, PW-6 has proved the X-ray report as Exhibit Ka-8 and the X-ray plate as material Exhibit-1.

4. The prosecution further examined the victim PW-1, Dr. Anjula Gupta as PW-2 who examined the victim. On internal examination, she found that only one finger can be inserted in the vagina. The hymen was old and torn. The victim told the doctor that her menstrual cycle had not commenced. This witness proved the medical report as Exhibit Ka-2. PW-3 is Om Prakash, the father of the victim. The remaining witnesses have been discussed earlier. After examining as many as six witnesses, the prosecution closed its evidence and the statement of the accused was recorded under Section 313 Cr.P.C., in which he only denied the occurrence. No defence evidence was adduced.

5. After perusal of the evidence and hearing the counsel for the parties, the learned lower court returned the finding of guilt against the accused appellant. Hence the appellant has convicted and sentenced as aforesaid.

6. Feeling aggrieved, the appellant has come up in this appeal.

7. I have heard learned counsel for both the parties and perused the original record of the trial court.

8. Learned counsel for the appellant has submitted that there is inordinate delay in lodging the first information report, hence the prosecution case is doubtful.

9. Perusal of the first information report shows that nothing more can be expected from a rustic minor girl who has scribed what has been written in the first information report. It has been mentioned in the first information report that the accused used to threaten the victim not to take any action. Although, it is presumed that everybody knows the law but a heinous offence like this which shatters the personality of a lady cannot be entangled in hyper technicalities.

10. Generally, in cases of rape, the court does not ponder to find corroboration if the statement of the prosecutrix inspires confidence and is accepted by the court 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 court for corroboration of her statement. Corroboration of testimony of the prosecutrix as a condition for judicial reliance is no a requirement of law but a guidance of prudence under the given facts and circumstances. Minor contradictions or insignificant discrepancies should not be a ground for throwing out an otherwise reliable prosecution case. A prosecutrix complaining of having been a victim of the offence of rape is not an accomplice after the crime. Her testimony has to be appreciated on the principle of probabilities just as the testimony of any other witness; a high degree of probability having been shown to exist in view of the subject matter being a criminal charge. However, if the court finds it difficult to accept the version of the prosecutrix on its face value, it may search for evidence, direct or substantial, which may lend assurance to her testimony as has been held in Vishnu v. State of Maharashtra, , AIR 2006 SC 508.

11. The evidence of the prosecutrix is found suffering from serious infirmities and inconsistencies with other material, prosecutrix making deliberate improvements on material point with a view to rule out consent on her part and there being no injury on her person even though her version may be otherwise, no reliance can be placed upon her evidence as has been held in Suresh N. Bhusare & Ors. v. State of Maharashtra, , (1999) 1 SCC 220.

12. The occurrence relates to the year 2007. At the relevant point of time, the age of consent of the victim was 16 years. Although precisely the accused has not taken any defence of consent but even otherwise the age of the victim can be looked into. The victim has stated her age to be 12 years at the time of occurrence. Her ossification test was conducted and as per Exhibit Ka-3, her elbow joints were not found to be fused. Her right knee joint was not fused and even her wrist joint were not found fused. The doctor has opined the age of the victim to be below 15 years, as is evident from the statement of Dr. R.K. Srivastava PW-6.

13. As far as the occurrence is concerned, this is a case of rape of a minor girl belonging to a village. She has explained the conduct of the accused, inasmuch as, she has stated that when she raised alarm, the accused increased the sound of radio so that her alarm could not be heard by anybody. the victim PW-1 has stated the she was returning with her goats when the accused pulled her and rape her. She could not report the matter due to fear of the accused.

14. The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expression oneself in diverse firms, freely moving about and mixing and commingling with fellow human beings.

15. The victim was barely 20 kilograms of weight, totally unable to understand what was happening around her, inconsolable and suffering of typically "Rape Trauma Syndrome". This syndrome has been medically defined in a journal and we quote:-

"No person exposed to severe trauma is immune to suffering and the signs of that suffering are referred to as symptoms. When these symptoms can be grouped as a pattern over time, they are referred to as a syndrome. Once the pattern becomes entrenched or unlikely to change, and affect a person's functioning in a permanent way it is referred to as a disorder and is regarded as a mental illness.

Rape Trauma Syndrome "RTS" is the medical term given to the response that survivors have to rape. It is very important to note that RTS is the natural response of a psychologically healthy person to the trauma of rape so these symptoms do not constitute a mental disorder or illness.

The most powerful factor in determining psychological suffering or damage is the character of the traumatic event itself. Individual personality characteristics count for little in the face of overwhelming events. Physical harm or injuries are also not as great a factor since individuals with little or no physical harm may yet be severely affected by their exposure to a traumatic situation. Before looking at the effects of rape it is therefore important to first examine the character of the trauma that is rape.

Not only is there the element of surprise, the threat of death and the threat of injury, there is also the violation of the person that is synonymous with rape. This violation is physical, emotional and moral and associated with the closest human intimacy of sexual contact. The intention of the rapist is to profane this most private aspect of the person and render his victim utterly helpless. The character of the event is thus connected to the perpetrator's apparent need to terrorise, dominate and humiliate the victim. The victim is therefore most likely to see his actions as motivated by deliberate malice, a malice impossible for her to understand. Rape by its very nature is intentionally designed to produce psychological trauma. It is form of organised social violence comparable only to the combat of war, being but the private expression of the same force. We get nowhere in our understanding of Rape Trauma Syndrome if we think of rape as simply being unwanted sex. Where combat veterans suffer Post Traumatic Stress Disorder, rape survivors experience similar symptoms on a physical, behavioural and psychological level. Some of the symptoms are present immediately after the rape while other only appear at a later stage."

16. This witness successfully underwent the test of cross-examination who has stated that she only stated about the occurrence to her mother. There are no contradictions in her cross-examination.

17. Counsel for the appellant has submitted that the medical report and the statement of the doctor does not support the prosecution case, inasmuch as, Dr. Anujla Gupta PW-2 in her cross-examination has stated that since the girl was minor, the male organ could not be penetrated but in the next breath, the doctor has stated that since hymen was old and torn, hence there was possibility of penetration. It appears that this witness PW-2 doctor Anujla Gupta lost sight of the fact that she medically examined the victim after more than a week of the occurrence. By that time the internal injuries obviously would have healed and it is well settled that complete penetration is not necessary to complete the offence of rape. Thus, the medical report corroborates the ocular evidence of the victim.

18. PW-3 is Om Prakash, the father of the victim who has stated that he went to the police station with his daughter to lodge the report. He has very fairly conceded that he does not know anything about the occurrence. Thus, the victim has successfully proved that she being below 16 years of age, was subjected to sexual violence against her will. Thus the provisions under Section 114A of the Indian Evidence Act comes into play.

19. In , 2010 Cr.L.J. 2060 (Abbas Ahmad Choudhary v. State of Assam) the Hon'ble Apex Court has held as under:

"We are conscious of the fact that in a matter of rape, the statement of the prosecutrix must be given primary consideration, but, at the same time, the broad principle that the prosecution has to prove its case beyond reasonable doubt applies equally to a case of rape and there can be no presumption that a prosecutrix would always tell the entire story truthfully."

20. Thus, the medical opinion and the ocular evidence are in consonance with each other. The absence of external injuries on the person of the prosecutrix is not sufficient to discredit her evidence as she was a helpless young victim.

21. Thus, the sole testimony of the prosecutrix coupled with the medical evidence when read as a whole is totally reliable, worthy of credence and inspires confidence. There are no gaps in the evidence and there are no discrepancies also.

22. Thus, I conclude that the prosecution has been able to prove the charges against the accused beyond reasonable doubt and the learned lower court has correctly convicted and sentenced the appellant.

23. Learned counsel for the appellant has submitted that the sentence of ten years of rigorous imprisonment is a very harsh sentence imposed on the accused.

24. In , 2005 Supreme Court Cases (Cri.) 1947 (State of M.P. v. Bala @ Balaram), in which the Hon'ble Supreme Court has held as under:

"It is true that reformation as a theory of punishment is in fashion but under the guise of applying such theory, the courts cannot forget their duty to society and to the victim. The court has to consider the plight of the victim in a case involving rape and the social stigma that may follow the victim to the grave and which in most cases, practically ruins all prospects of a normal life for the victim. Could a court afford to forget these aspects while imposing a punishment on the aggressor? I think not. The court has to do justice to society and to the victim on the one hand and to the offender on the other. The proper balance must be taken to have been struck by the legislature. Hence, the legislative wisdom reflected by the statute has to be respected by the court and the permitted departure therefrom made only for compelling and convincing reasons."

25. I think, Judges are entitled to hold their common views but it is the bounden duty of the court to impose proper punishment depending upon the degree of criminality and the desirability to impose such punishment as a measure of social public necessity as a means of deteriorating other potential factors.

26. In , (2005) 2 SCC 7010 (State of M.P. v. Munna Choubey), the Hon'ble Apex Court has held as under:-

"Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system."

27. Thus, even the sentence imposed by the trial court is not harsh, infact it is just and proper sentence.

28. On what has been said and discussed above, I conclude that the prosecution has been able to prove the charges against the accused and the trial court has rightly convicted and sentenced the accused.

29. The appeal has no force and is liable to be dismissed.

30. Accordingly the appeal is dismissed.

31. The judgment and order of conviction and sentence dated 28.07.2008, passed by Sri Shushil Kumar Rastogi, A.D.J./F.T.C., Court No. 1, Kanpur Dehat, in Sessions Trial No. 382 of 2007 (State v. Kanjara), arising out of Case Crime No. 187 of 2007, under Section 376 I.P.C., Police Station Shivali, District Kanpur Dehat is confirmed.

32. The accused in is jail, he shall serve out the remaining sentence.

33. Let certified copy of this order be transmitted to the trial court for compliance.

Advocates List

For Petitioner : Raghavendra Dwivedi, Arun Kumar PandeyPradeep Chandra, for the Appellant;

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

Ranjana Pandya J.

Eq Citation

(2016) 6 ALJ 691

(2016) 93 ACC 730

(2016) 4 ADJ 12

(2016) 1 ARC 669