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CASE NO.:

Appeal (crl.) 1975 of 1996

PETITIONER:

STATE OF RAJASTHAN

Vs.

RESPONDENT:

OM PRAKASH

DATE OF JUDGMENT: 03/05/2002

BENCH:

Y.K. Sabharwal & B.P. Singh

JUDGMENT:

Y.K. Sabharwal, J.

It is necessary for the courts to have a sensitive approach when dealing

with cases of child rape. The effect of such a crime on the mind of the child

is likely to be lifelong. A special safeguard has been provided for children in

the Constitution of India in Article 39 which, inter alia, stipulates that the

State shall, in particular, direct its policy towards securing that the tender

age of the children is not abused and the children are given opportunities and

facilities to develop in a healthy manner and in conditions of freedom and

dignity and that the childhood and youth are protected against exploitation and

against moral and material abandonment. In the present case, the victim at the

time of occurrence of rape was a child aged eight years. The accused was youth

aged 18 years. The Additional District and Sessions Judge found him guilty for

offence under Section 376, Indian Penal Code and imposed rigorous imprisonment

for seven years and fine of Rs.1,000/- and in default of payment of fine to

further undergo six months' rigorous imprisonment. The High Court by the

impugned judgment dated 14th November, 1995 giving to the accused the benefit of

doubt acquitted him. The State is in appeal on grant of special leave.

The house of the accused is quite close to that of the prosecutrix. The

incident of rape is said to have taken place on 19th March, 1989 in a village.

The FIR was registered on 20th March, 1989. The medical examination of the

prosecutrix also took place on 20th March, 1989. The prosecution to bring home

the charge against the accused examined 14 witnesses including the parents of

the prosecutrix, her brother, aunt, four doctors, police officials besides the

prosecutrix. The respondent-accused was held guilty of the offence by the trial

court primarily relying upon the testimony of the father of prosecutrix (PW-1),

mother (PW-2), the prosecutrix (PW-5) and Dr. Harsh Chand Jain (PW-11).

The testimony of PW-2 is that her daughter had gone to the house of Sita

Singh to take therefrom butter milk. Accused is the son of Sita Singh. When

she did not return for a long time, PW-2 went to see her in the said house.

When she went to that house, the door was closed which she pressed open. There

she found that her daughter was lying naked on a cot and the accused was lying

over him penetrating his penis into her vagina. On seeing this she shouted.

Whereupon leaving her daughter, the accused ran away. She found her daughter

totally unconscious. She lifted her and brought her back home. At that time,

husband and brother-in-law of PW-2 had gone to another village. Her daughter

gained consciousness at the time of sunset. She deposed that Om Prakash, the

respondent, was alone at home. Next day a report was lodged with the police.

She also deposed in her cross-examination that earlier too her daughter used to

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bring butter milk from the house of Sita Singh.

PW-1, father of the prosecutrix, deposed that he had gone with his brother

to his relatives in village Bateri and came back in the evening at about 7 o'

clock when his wife told him as to what Om Prakash had done to their daughter.

He did not go to the police station at night as there was no means of conveyance

and reached the police station at 10/11 a.m. the next day and lodged the report.

The police station is about 15 kms. away from their village.

PW-4 is the wife of brother of PW-1. Her testimony is that she saw PW-2 coming

weeping and taking prosecutrix in her lap. She also deposed that her husband

and younger brother-in-law had gone to the relatives in village Bateri on that

date. She has supported the version given by PW-2.

PW-5 is the prosecutrix. Being a child witness, the learned Additional District

and Sessions Judge before administering her oath asked general questions so as

to satisfy that she is competent to answer the questions and take oath. Her

statement in court was recorded about four years after the date of the incident.

Her deposition was that she had gone to the house of Om Prakash to bring butter

milk on that date. At that time no other person was at his house. Om Prakash

closed the door and asked her to come inside and he will put butter milk in the

utensil; he incited her and carried her in room; took out her under garments,

inserted cloth in her mouth and widened her both legs and put his body on her

and penetrated his penis into her vagina as a result whereof vagina started

bleeding and she became unconscious.

PW-11 is Dr. Harsh Chand Jain. His testimony is that, on 20th March, 1989

he was on duty in General Hospital, Alwar. On the request of the S.H.O. he

examined prosecutrix. Externally there was no injury on her body but on the

internal parts of both thighs and at the outer part of the left foot there were

signs of blood. For internal examination she was referred to Family Incharge

Hospital. The injury report exhibit P8 was in his handwriting. In Ex.P-8, the

reports of Dr. Pushpa Gupta and Dr. V.P. Agarwal had been incorporated. PW-11

stated that "In my opinion, the intercourse was done with the girl i.e. the

possibility of doing the intercourse cannot be ruled out". The tip of the

finger in the whole of her uterus was passing easily. PW-11 deposed that

"According to the opinion of the lady doctor, the opinion of the pathologist and

my opinion of the examination, something was penetrated in her vagina."

(Emphasis has been supplied by us). The only cross-examination of the witness

was that "The main examination report by Doctor Rupa Gupta and Doctor V.P.

Agarwal is not there before me. The seminal stains were not present on the

clothes. After the sexual contact, the vagina remains in tact."

The aforesaid in brief is the evidence which resulted in judgment of

conviction by the trial court and acquittal by the High Court.

There was delay of nearly 26 hours in lodging the FIR. The offence is alleged

to have taken place at about 9 a.m. The FIR was registered at about 11.30 a.m.

on the next day. It was contended by Mr. Bachawat, learned counsel for the

respondent, that this delay had assumed importance and was fatal particularly

when the brother of the prosecutrix , namely, Mam Raj (PW-6) was admittedly at

the house. The delay, according to the counsel, has resulted in embellishments.

Reliance has been placed on the decision in the case of Thulia Kali v. The State

of Tamil Nadu [AIR 1973 SC 501] holding that the first information report in a

criminal case is extremely vital and valuable piece of evidence for the purpose

of corroborating the oral evidence adduced at the trial. The object of

insisting upon prompt lodging of the report to the police in respect of

commission of an offence is to obtain early information regarding the

circumstances in which the crime was committed, the names of the actual culprits

and the part played by them as well as the names of eye witnesses present at the

scene of occurrence. Delay in lodging the first information report quite often

results in embellishment which is a creature of afterthought. On account of

delay, the report not only gets bereft of the advantage of spontaneity, danger

creeps in of the introduction of coloured version, exaggerated account or

concocted story as a result of deliberation and consultation. There can be no

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dispute about these principles relied upon by Mr. Bachawat but the real question

in the present case is about the explanation for the delay. It is not at all

unnatural for the family members to await the arrival of the elders in the

family when the offence of this nature is committed before taking a decision to

lodge a report with the police. The reputation and prestige of the family and

the career and life of a young child is involved in such cases. Therefore, the

presence of the brother of the prosecutrix at home is not of much consequence.

It has been established that the father of the girl along with his brother came

back to their house at 7 o'clock in the evening. The girl was unconscious

during the day. PW-2 told her husband as to what had happened to their

daughter. The police station was at the distance of 15 kms. According to the

testimony of PW-1 no mode of conveyance was available. The police was reported

the next day morning and FIR was recorded at 11.30 a.m. The delay in reporting

the matter to the police has thus been fully explained.

A contention was also urged on behalf of the accused before the High Court

that his age was 15 years and not 18 years at the time of incident. The basis

of this contention was an affidavit of the mother of the accused and certain

school certificates. Both the courts relying upon the evidence of Dr. Raj Kumar

Misra, PW-9, held otherwise and came to the conclusion that the accused was

capable of doing intercourse.

The main reasons which prevailed with the High Court in reversing the conviction

were two. First, the non-examination of other independent witnesses and second

the rejection of medical evidence, i.e., testimony of Dr. Harsh Chand Jain (PW-

11).

As to non examination of other witnesses, the High Court has noticed that

the incident had taken place in the environment of the village where there are

other residential houses; the house of the prosecutrix from where the incident

took place is 2-3 houses away and in the house of the accused his other brothers

and sisters-in-law also live. The testimony of PW-2 is that seeing her the

accused ran away. The High Court has held that in the light of these facts it

was unnatural that PW-2 and PW-5 would not have shouted and others might not

have gathered at the place of incidence and astonishingly except the family

members no other witness has come forward to support the case of the

prosecution. The High Court has also described as unnatural the statement of

the mother that except her husband's brother's wife PW-4, not a single person of

the village had come to her house. The approach of the High Court can be best

described in the words of the High Court itself as follows:

"It is not acceptable that on committing such type of heinous crime, not a

single person might have come forward to give the statement. In such type of

crime in which an innocent girl is the victim, not only the neighbour but other

persons can come to give the evidence and doing such thing by them indicate

their natural conduct."

The conviction for offence under Section 376 IPC can be based on the sole

testimony of a rape victim is well settled proposition. In State of Punjab v.

Gurmit Singh & Ors. [(1996) 2 SCC 384], referring to State of Maharashtra v.

Chandraprakash Kewal Chand Jain [(1990) 1 SCC 550], this Court held that it must

not be overlooked that a woman or a girl subjected to sexual assault is not an

accomplice to the crime but is a victim of another person's lust and it is

improper and undesirable to test her evidence with a certain amount of

suspicion, treating her as if she were an accomplice. It has also been observed

in the said decision by Dr. Justice A.S. Anand (as His Lordship then was),

speaking for the court, that the inherent bashfulness of the females and the

tendency to conceal outrage of sexual aggression are factors which the courts

should not overlook. The testimony of the victim in such cases is vital and

unless there are compelling reasons which necessitate looking for corroboration

of her statement, the courts should find no difficulty to act 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. Seeking corroboration of her

statement before relying upon the same, as a rule, in such cases amounts to

adding insult to injury.

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In State of H.P. v. Gian Chand [(2000) 1 SCC 71] Justice Lahoti speaking for the

Bench observed that the Court has first to assess the trustworthy intention of

the evidence adduced and available on record. If the court finds the evidence

adduced worthy of being relied on, then the testimony has to be accepted and

acted on though there may be other witnesses available who could have been

examined but were not examined.

We have scanned and scrutinized very carefully the evidence on record in

particular the evidence of the parents of the prosecutrix, her brother,

prosecutrix and PW-11, Dr. Harsh Chand Jain with a view to satisfy our conscious

to find out whether the verdict of conviction of the respondent that had been

rendered by the learned Additional District and Sessions Judge could, in law, be

upset by the High Court. The evidence has been found by us to be trustworthy,

convincing and reliable. The High Court seems to have overlooked that it had

been established on record that at the time of the incident Om Prakash was alone

at home. When such an act is done, the natural tendency is not to talk about it

to others but, to an extent possible, hide it. There was nothing unnatural for

other villagers not visiting the house of PWs-1 and 2. Being a child witness,

we have examined the testimony of PW-5 and that of her mother with utmost care

and caution. The High Court has clearly committed a serious illegality in

assuming that in natural course of events if rape had been committed, the young

child girl and her mother would have shouted so as to collect others and they

would have visited her house. The prosecutrix was unconscious. There was no

question of prosecutrix shouting as assumed by the High Court. Too much was

made by the High Court on account of non-examination of persons other than the

family members. The aspect of the non-examination was given undue importance

without having regard to the contextual facts. The cases involving sexual

molestation and assault require a different approach a sensitive approach and

not an approach which a court may adopt in dealing with a normal offence under

penal laws. It was also sought to be suggested that there were some disputes

between the accused and the father of the prosecutrix over exchange of some land

and that is the reason for their implicating the accused. There is nothing

reliable on the record to substantiate that aspect. No such suggestion was even

put in the cross-examination of the father of the prosecutrix. On the facts in

hand, we find it difficult to accept that the revenge on account of alleged

dispute regarding exchange of land would be taken by the father of the

prosecutrix by foisting on the accused a false case of rape involving his young

daughter particularly in the setting of a village environment. The conviction

could not be set aside for the non-examination of independent witness.

As to the second reason, we find that the evidence of PW-11, Dr.Harsh

Chand Jain, is clear and specific. He was the author of the report. Though

ideally Dr. Pushpa Gupta could have been examined or her absence explained but

that does not destroy the prosecution case which otherwise stands proved. The

High Court was clearly in error in coming to the conclusion that in the absence

of evidence of Dr. Pushpa Gupta, there was no support from any medical evidence.

PW-11 had also examined her. He had referred the prosecutrix to Dr.Pushpa

Gupta. Dr. Pushpa Gupta had reported to PW-11 who categorically stated that in

his opinion on examination something had been penetrated in the vagina of the

prosecutrix and that intercourse was done with the girl i.e. the possibility of

doing the intercourse cannot be ruled out. For no valid reason the High Court

discarded the evidence of the doctor.

The evidence of a child witness is required to be evaluated carefully as the

child may be swayed by what others may tell him or her as the child is an easy

pray to tutoring. Wisdom requires that the evidence of child witness must find

adequate corroboration before it is relied on {State of U.P. v. Ashok Dixit &

Anr. [JT 2000 (2) SC 107]}. We have already held that in the present case we

have carefully examined the evidence of the child and the other evidence. We

find the reasons given by the High Court for rejecting the said evidence wholly

unconvincing. It is unfortunate that what to talk of considering, the High

Court has not even noticed the testimony of the prosecutrix in the judgment

under appeal

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Learned counsel for the respondent contended that if there was any forcible

sexual intercourse, it would have resulted in some injuries upon the prosecutrix

and in support relied upon Joseph s/o Kooveli Poulo v. State of Kerala [JT 2000

(6) SC 195]. This decision has no relevance. As observed therein, the injuries

are not always a sine qua non to prove a charge of rape. Let it not be

forgotten that we are considering the case of a rape on a girl child aged eight

years and not on a grown up woman.

Child rape cases are cases of perverse lust for sex where even innocent

children are not spared in pursuit of the sexual pleasure. There cannot be

anything more obscene than this. It is a crime against humanity. Many such

cases are not even brought to light because of social stigma attached thereto.

According to some surveys, there has been steep rise in the child rape cases.

Children need special care and protection. In such cases, responsibility on the

shoulders of the courts is more onerous so as to provide proper legal protection

to these children. Their physical and mental immobility call for such

protection. Children are the natural resource of our country. They are

country's future. Hope of tomorrow rests on them. In our country, a girl child

is in a very vulnerable position and one of the modes of her exploitation is

rape besides other mode of sexual abuse. These factors point towards a

different approach required to be adopted. The overturning of a well considered

and well analyzed judgment of the trial court on the grounds like non-

examination of other witnesses, when the case against the respondent otherwise

stood established, beyond any reasonable doubt was not called for. The minor

contradiction of recovery of one or two underwear was wholly insignificant.

Lastly, it was contended on behalf of the respondent that the incident took

place about 13 years back and by now the accused has matured and would be around

31 years of age and having already undergone nearly three years of sentence, the

same may be treated by this Court as sufficient punishment to him and,

therefore, taking a sympathetic view, the sentence already undergone be imposed.

We are unable to accept the contention. The trial court imposed on the

respondent sentence of seven years' rigorous imprisonment besides fine, as

earlier noticed. Having played with the life of a child, the respondent does

not deserve any leniency and for him sympathy on the ground sought for will be

wholly uncalled for. The respondent deserves to undergo the remaining part of

the sentence awarded by the learned Additional District and Sessions Judge.

For the aforesaid reasons, we allow the appeal and set aside the judgment

of the High Court and restore that of the trial court. Bail bonds of the

respondent shall be cancelled and respondent be taken into custody forthwith to

undergo the remaining sentence.

..............................,J.

[Y.K. Sabharwal]

..............................,J.

[B.P. Singh]

May 3, 2002.