1. Challenge in this appeal is to the judgment and order dated 19.11.2014 passed by Shri Sudhir Kumar- II, learned Additional Sessions Judge, Court No. 1, Hamirpur in Sessions Trial No. 103 of 2011 (State vs Surendra Nat) arising out of Case Crime No. 525 of 2011, under section 376 IPC, police station Rath, district Hamirpur, whereby the accused Surendra Nat was found guilty under section 376 IPC and was sentenced to ten years' rigorous imprisonment with a fine of Rs. 20,000/- with default stipulation. Out of fine Rs. 10,000/- was directed to be paid to the victim.
2. Filtering out unnecessary details, the prosecution case is that the informant Ghanshyam Nagar lodged a report that his niece was residing for the last one month at village Tuka with her mother. On 18.03.2011 at 8.30 p.m. she went to attend the call of nature, on the way the accused dragged the victim to the nearby field and raped her. During that period the mother of the victim had gone to village Bhadar, district Chhatarpur to look after her farms. On 19.03.2011 when the mother of the victim returned, the victim told her about the complete occurrence. Being of the same community, the accused kept on misleading the mother of the victim. On 25.03.2011, the mother of the victim informed her brother at Bhopal, who lodged the report on 25.03.2011.
3. The victim was medically examined by Dr. Kiran Sachan, PW-3, who proved the medical report as Ext. Ka-3. She did not find any external or internal injury on the body of the victim. She also proved the supplementary medical report as Ext. Ka-3. PW-4 is Dr. Gyanendra Nikhra, the radiologist, who conducted the ossification test of the victim and proved the radiological report as Ext. Ka-4. The chik report of the case was prepared by the Constable 722 Pushpendra Kumar, PW-5, who proved the chik report as Ext. Ka-5 and copy of the G.D. was proved as Ext. Ka-6. Investigation was entrusted to PW-6 Dilip Kumar Saini, who copied the FIR in his case diary on 25.03.2011. He recorded the statements of the chik writer, mother of the victim and the victim. He inspected the spot on 26.3.2011 with the assistance of the victim, prepared the site plan and proved it as Ext. Ka-7. On 28.03.2011, the accused was arrested and arrest memo was prepared and proved it as Ext. Ka-8. On the same day, he took into custody the undergarments of the accused and sealed it on the spot, prepared its memo, which was proved as Ext. Ka-9. On 29.03.2011, he took into possession the panty and salwar, which the victim was wearing at the time of occurrence, which was stained with blood and semen. A recovery memo was prepared about sealing these clothes, which was also proved as Ext. Ka-10. Thereafter, the statements of the witnesses Kali Charan and Ghanshyam were recorded. On 01.04.2011, the medical report of the victim was obtained, which was copied in the case diary. This witness proved the clothes as material Exts. 1, 2 and 3. After this, this witness was transferred from the police station. The remaining investigation was carried out by PW-7 SSI, Mohammad Iqbal. He went through the investigation carried out by his predecessor. On 19.05.2011 he sent the articles to the forensic lab for chemical analysis and submitted the charge sheet against the accused, which was proved as Ext. Ka-11.
4. The prosecution examined as many as seven witnesses. PW-1 is the informant Ghanshyam Nagar, who has proved the written report as Ext. Ka-1. PW-2 is the victim (name withheld by me). The evidence of PW-3, 4, 5 and 6 has already been discussed above.
5. The statement of the accused Surendra Nat was recorded under section 313 Cr.P.C., in which he denied the occurrence and stated that he had been falsely implicated due to enmity. However, he did not adduce evidence in defence.
6. The learned lower court after hearing the counsel for the parties, convicted the accused as mentioned in paragraph 1 of the judgment.
7. Feeling aggrieved the appellant has preferred the present appeal.
8. I have heard Shri V.S. Parmar, learned counsel for the appellant, learned Additional Government Advocate for the State-respondent and perused the trial court record.
9. Learned counsel for the appellant has submitted that the trial court has based its conviction on conjectures and surmises and the judgment is not tenable in the eyes of law.
10. On the other hand, learned Additional Government Advocate while supporting the judgment of trial court has submitted that the findings of fact recorded by the trial court is based on evidence of the prosecutrix and that no corroboration was required when the testimony of the prosecutrix was clear, cogent and convincing. He has further contended that there was nothing to show that the prosecutrix has falsely implicated the accused and the appeal is liable to be dismissed.
11. At the outset, it has been contended on behalf of the appellant that there is inordinate delay in lodging the FIR, inasmuch as the occurrence is said to have been committed on 18.03.2011 at about 8.30 p.m. in the evening, whereas the report of the same was lodged on 25.03.2011 at 8.45 p.m. The distance of the police station from the place of occurrence is 5 kms. Thus, there is inordinate delay of seven days in lodging the FIR, which has not been explained.
12. As far as the delay in lodging of the FIR is concerned, perusal of the FIR itself shows that it has been written by a person, who is not educated. It is in broken Hindi language and the informant has tried to explain why the report was lodged after seven days. If the delay in lodging the FIR is explained reasonably and plausibly, it would not prove fatal for the prosecution.
13. In the FIR Ext. Ka-1, the informant has stated that on 18.03.2011 when rape was committed the mother of the victim had gone to village Bhadar, district Chhatarpur. On 19.03.2011 when the mother of the victim returned, the victim narrated the incident to her mother. It has come in the FIR that the victim had lost her father and since 19.03.2011 till 24.03.2011, the accused persons mislead the mother of the victim. It has also been stated that the signatures of mother of the victim were obtained by the accused persons and she was deceived. Later on, on 25.03.2011 when the mother of the victim telephoned her brother at Bhopal, Madhya Pradesh, he came from Bhopal and lodged the report.
14. The evidence of PW-1 Ghanshyam Nagar has to be looked into, who has stated that at the time of occurrence, the mother of the victim had gone to village Bhadar, district Chhatarpur. He has also stated that the father of the victim had died and victim's mother had remarried. On the next date, when the mother of the victim came home, the victim told about the incident. The report could not be lodged promptly since the accused kept on misleading the mother of the victim. Then the informant was telephonically informed, at which he came on 25.03.2011 and lodged the report.
15. As far as the age of the victim is concerned, a fishing cross examination has been done about the age of the victim, inasmuch as in cross-examination, PW-1 has stated that five years after the death of husband of Sushila, she remarried. When father of the victim died, she was three years old. Enmity of the accused with the informant is that the informant had deserted his wife while the accused took side of the wife of the informant.
16. As regards the age of the victim, it has to be determined according to Rule 12 of the Juvenile Justice (Care and Protection of Children) Rules, which is reads as follows:
"12. Procedure to be followed in determination of Age.- (1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.
(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.
(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining -
(a) (i) the matriculation or equivalent certificates, if available; and in the absence whereof;
(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;
(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;
(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.
and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.
(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.
(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.
(6) The provisions contained in this rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law."
17. During the course of statement of the victim, which was recorded on 06.06.2012, she has stated her age to be 12 years. She nowhere stated that she is literate. Hence, recourse to medical opinion was taken. According to medical report, she was 15 years of age.
18. I have perused the radiological report of the victim, according to which the epiphysis of lower end of radius ulna were not fused. The right knee epiphysis were also not fused. The elbow and knee joints were fused as is evident from Ext. Ka-3. Hence, although the margin of two years can be given on either side, but this is not a case, in which the victim can be treated to be more than 15 years of age because of the position of fusion of her bones. Even the doctor has opined the age of the victim to be about 15 years. Thus, there is no room for any doubt that the prosecutrix PW-2 was a below 16 years of age on the date of occurrence. It is well settled law that consent if at all of a minor carries no weight.
19. Section 114-A of Indian Evidence Act says about presumption against the accused that it is necessary to first prove the commission of sexual intercourse by the accused on the prosecutrix and second, it should be proved that it was done without the consent of the prosecutrix. Once the prosecutrix states in her evidence that she did not consent to act of sexual intercourse done by the accused on her, which as per her statement, was committed by the accused against her will and the accused failed to give any satisfactory explanation in his defence evidence on this issue. The court will be entitled to draw the presumption under Section 114-A of the Indian Evidence Act against the accused holding that he committed the act of sexual intercourse on the prosecutrix against her will and without her consent. The question as to whether the sexual intercourse was done with or without consent being a question of fact, which has to be proved by the evidence in every case before invoking the recourse of Section 114-A of the Indian Evidence Act.
20. In the present case, the victim PW-2 has specifically stated that the accused raped her against her wishes. In her examination-in-chief, she has categorically supported the FIR version. A lot of cross-examination has been done about the second marriage of mother of the victim, which has no bearing on the factum of rape on this minor girl. Although, this witness could not specify certain directions, but it does not strike at the root of the case. She has stated that on that day she had only gone to attend the call of nature. At that time, her step-father Param Lal and her grand-mother were at home.
21. I think that a step-father and her grand-mother in the absence of mother would have little sympathy with the minor girl, who would have felt lost after the incident.
22. The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessities 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.
23. The possibility of the victim, who is also minor suffering from rape trauma syndrome cannot be ruled out. This syndrome can be defined as follows:
"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."
24. In AIR 2008 Supreme Court (Suppl.) 882, Moti Lal vs State of M.P., the Hon'ble Apex Court has held that the evidence of the prosecutrix was liable to be believed. Save in exceptional circumstances there can be no quarrel with this proposition (and it has been so emphasised by this Court time and again) but to hold that a prosecutrix must be believed irrespective of the improbabilities in her story, is an argument that can never be accepted. The test always is as to whether the given story prima facie inspires confidence.
25. This is a case based on the sole testimony of the prosecutrix. While relying solely on the testimony of the prosecutrix, the Court is duty bound to cross-examine such testimony manually with great caution and if there is corroboration from the witnesses, medical evidence or the other scientific evidence then that would be enough.
26. Reverting back to the case of the accused, it is not the case of the accused that the victim was a consenting party. On the contrary he pleaded that he was falsely implicated.
27. In the case of State of H.P. Vs Shree Kant Shekari, reported in 2004 (8) SCC 153, the Hon'ble Apex Court has observed that:
" The factors which seems to have weighed with the High Court are (i) the age of the victim, which according to the High Court was more than 16 years; (ii) no evidence has been placed by the prosecution to show that the victim had not consented to the act; and (iii) the time of alleged rape as given by the victim and her mother was improbabilised by the medical evidence. A particular reference was made to the fact that a child was born on 10.04.1979 and if the alleged rape has been committed during the period indicated by the victim and her mother the same would have been altogether different periods. The delay in lodging the first information report was also highlighted to attach vulnerability to the prosecution case."
28. Even otherwise since the prosecutrix has denied of having given any consent, the presumption envisaged under section 114-A of the Evidence Act come into play, which burden has not been discharged by the accused.
29. I have categorically examined the statement of the prosecutrix PW-2, but there is not an iota of evidence by which her veracity could be shaken. She has successively undergone the test of cross-examination. Her statement is supported by Ext. Ka-12, which is a forensic lab report, which states that on the salwar and panty of the victim blood stains were found. Thus, the factum of rape with a girl below 16 years by the accused has been proved beyond all reasonable doubt.
30. Investigating Officer PW-6 Dilip Kumar Saini has categorically stated that he took the clothes of the victim into possession and also took the underwear of the accused in his possession.
31. No contradictions in the statements recorded under section 161 Cr.P.C. were put to the witnesses, and the Investigating Officer. Hence, no shortcomings in the investigation could also be pointed out.
32. Thus, what has been stated and discussed above, I conclude that the prosecution have proved that this helpless minor girl was raped by the accused. Thus, there is no force in the appeal. The judgment is a reasoned one, based on material on record.The sentence is justified, inasmuch as the victim being a young girl below 16 years and the accused was presently aged about 32 years. So I do not think there is any ground to take a lenient view.
33. As regards the sentence, the trial court has inflicted the punishment of ten years on the accused for committing offence. The punishments prescribed by the Penal Code reflect the legislative recognition of the social needs, the gravity of the offence concerned, its impact on the society and what the legislature considers as a punishment suitable for the particular offence. It is necessary for the courts to imbibe the legislative wisdom and to respect it.
34. Punishment must fit the crime and it is the duty of the court to impose a proper punishment depending on the degree of criminality and desirability for imposing such punishment. However, the awarding of inadequate punishment by the courts is becoming disturbing frequent. A sentence or pattern of sentence which fails to take due account of the gravity of the offence can seriously undermine respect for law. It is the duty of the court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity, as a means of deterring other potential offenders.
35. In the case of Rajendra Prasad vs State of U.P., reported in (1979) 3 SCC 646, the Hon'ble Apex Court has laid down that: "
"Judges are entitled to hold their own views, but it is the bounden duty of the court to impose a proper punishment, depending upon the degree of criminality and the desirability to impose such punishment as a measure of social necessity, as a means of deterring other potential offenders."
36. It is not necessary to multiply authorities. In the case of State of M.P. Vs Munna Choubey reported in (2005) 2 SCC 710, the Hon'ble Apex Court has observed that :
"15. 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 meagre sentences or taking too sympathetic view merely on account of lapse to time in respect of such offences will be resultwise counterproductive 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."
37. 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 no. 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.
38. The appeal is accordingly dismissed. The conviction and sentence of the appellant as awarded by the learned Additional Sessions Judge, Hamirpur is confirmed.
39. The accused is in jail. He shall serve out the remaining part of his sentence.
40. Let certified copy of this order be transmitted to the trial court concerned for compliance.
Order Date :- 02.02.2016 Sazia