Rajbir Singh @ Raju vs State
1993 Latest Caselaw 121 Del

JUDGMENT

Sat Pal, J.

(1) Since these two appeals arise out of the same judgment dated 9th December, 1989 passed by Shri R.C Jain, Additional Sessions Judge, Delhi, the same are being disposed of by this common judgment.

(2) Briefly stated the facts of the case are that one Km. Rani who was about 12 years old at the relevant time and was residing with her parents at House No.37, Raghubir Nagar, Delhi, was found missing at about 12.00 noon on 31st March, 1987. When she could not be traced, a report was lodged at Police Station Rajouri Garden. After about 7 days, Km. Rani reached her native place Sitamarhi in Bihar and after her parents were informed, her mother went there and brought her to Delhi on 7th May, 1987.

(3) After reaching Delhi, Km. Rani disclosed to the police that about one month ago she had gone to public bathroom to wash clothes when accused Rekha @ Rani met her and asked her to accompany her and after walking 2/3 yards, accused Rajbir Singh @ Raju also met and tied a piece of cloth on her eyes. When Km. Rani raised noise accused Raju threatened her on the point of knife and thereafter took her to his house by holding her with her arm. On reaching the jhuggi, accused Raju and Shiv Dass @ Pappu committed rape upon her on that night and Raju again threatened her that night with knife. They again committed rape on her twice on the following night. On the next day they took her to some other place like a celler and kept her there for two days and they again committed rape on her. After that all the three accused gave a sum of Rs. 10.00 to her and made her to board a train. She reached Patna by train and from there she went to earlier native place Sitamarhi, Bihar. After 7 days, her mother reached there and after staying for one month at;Sitamarhi .she returned to Delhi. Accordingly, the case was got registered against the three accused, namely Rajbir Singh @ Raju, Shiv Das and Rekha @ Rani. Kumari Rani was medically examined and her statement under Section 164 Criminal Procedure Code . was got recorded. All the three accused were arrested and after usual investigation a Challan was submitted against the accused.

(4) Charges under Sections 363/366 Indian Penal Code were framed against accused Rajbir Singh and his wife Rekha @ Rani and a further charge under Section 376 Indian Penal Code was framed against Rajbir Singh and Shiv Dass. In support of his case, prosecution examined 14 witnesses. After closing of the prosecution evidence, the accused persons were examined under Section 313 Criminal Procedure Code .. All the three accused denied the prosecution allegations in their entirety. Accused also examined two witnesses.

(5) The learned Addl, sessions Judge by his Judgment dated 9th December, 89 held accused Rajbir Singh and Smt.Rekha @ Rani guilty of the charge under Section 366 Ipc and accused Rajbir Singh and accused Shiv Dass under Section 376 Indian Penal Code By an order of the same date, the learned Additional Sessions Judge sentenced accused Rajbir and Smt. Rekha to undergo R.I. for a period of three years for the offence punishable under Section 366 Indian Penal Code and accused Rajbir Singh and Shiv Dass to undergo R.I. for a period of 7 years for the offence punishable under Section 376 Indian Penal Code Both the sentences of imprisonment of accused Rajbir Singh for die offences under Section 366 and 376 Indian Penal Code were to run concurrently.

(6) Aggrieved by the aforesaid judgment of conviction and sentence, accused Rekha @ Rani has filed an Appeal bearing Crl.A.27/90 and accused Rajbir Singh @ Raju and accused Shiv Dass @ Pappu have filed an appeal bearing No.Crl.A.28/90. It may be mentioned that appellant Rekha @ Rani was directed to be enlarged on bail on her furnishing a personal bond of Rs.5,000.00 with one surety in the like amount vide order dated 23rd April, 1990 passed by this Court.

(7) Mr. Anupam Sharma, advocate assisted by Mr. Sunil Sethi, Advocate urged the following contentions:- (I)The case of the prosecution is based on the sole evidence of the prosecutrix and there is no corroboration of her statement by any other witness. (ii) The prosecutrix was a child and there was every possibility of her being tutored by someone.(iii) The prosecutrix was not of sound mind as she was found missing earlier also twice or thrice. (iii) The medical evidence produced before the Trial Court does not support the case of the prosecution. (iv) There was undue delay in lodging the Fir in this case. (v) There is no legal evidence on record against the appellant Rekha. (vi) In case conviction of appellant Rajbir Singh is upheld by this Court, the said appellant should be released forthwith as he has already undergone imprisonment for a period of about 6 years and he is the only earning member of the family.

(8) Now I proceed to examine the various contentions urged on behalf of appellants. In support of his first contention, the learned counsel for the appellants submitted that except the statement of the prosecutrix, no other witness has been examined by the prosecution to corroborate what has been stated by her. He further drew my attention to the statement of the prosecutrix who appeared as Public Witness -1. In her statement before the Trial Court, she had stated that the "accused Raju closed my eyes with a bandage and proclaimed that if I cry he would knife me. The accused then pointed a knife at that time. There was a pit near by.Both the accused took me somewhere. They took me in a jhuggi where accused Raju and Accused Pappu (Shiv Dass) present in the Court committed sexual intercourse forcibly with me." The learned counsel pointed out that in her statement under Section 161Cr.P.C. the prosecutrix had however stated that both the appellants and she continued to sit in that pit till night fell. Another discrepancy pointed out by the learned counsel was that in her cross examination the prosecutrix stated that "I had told the police that Rani accused had said that there was danger and I should be taken away from there." But she never said so in her statement under Section 161 Criminal Procedure Code . In support of his contention, the learned counsel placed reliance on a Supreme Court Judgment reported in Rameshwar Vs The State of Rajasthan .

(9) I, however, do not find any merit in this contention in view of law laid down by the Supreme Court. In the case of Rameshwar (supra) .relied on by the learned counsel for the appellants, it was held that "the tender years of the child, coupled with other circumstances appearing in the case, such for example as its demeanour, unlikelihood of tutoring and so forth, may render corroboration-unnecessary but that is a question of fact in every case". Besides, in another case, State of Maharashtra Vs. Chandraprakash Kewalchand Jain , the Supreme Court held that "A prosecutrix of a sex offence cannot be put on par with an accompalice. 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." In this connection, it will be relevant to refer to a recent judgment of the Supreme Court reported in Madan Gopal Kakkad Vs Naval Dubey, . In this case it has been held 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." As discussed by me hereinafter, the statement of the prosecutrix finds corroboration from the medical evidence. In the present case I find that the discrepancies pointed out by the learned counsel for the appellants are of minor and insignificant nature. There is no discrepancy regarding the fact that the prosecutrix was a child of 12 years at the relevant time and act of rape was committed by the accused Rajbir Singh @ Raju and Shiv Dass @ Pappu.

(10) In support of contentions 2 and 3, the learned counsel drew my attention to the statement of the mother of the prosecutrix who appeared as Public Witness -2. In her statement she had stated that "it is correct that my daughter was missing earlier also on two or three occasions." Relying on this statement, the learned counsel for the appellants submitted that the prosecutrix was not of sound mind and she being a child had been tutored by the mother, I do not find any force in this contention. Simply because the prosecutrix was missing earlier on two or three occasions, it cannot be concluded that she was not of a sound mind. Even from her statement recorded before the trial Court it is quite clear that the prosecutrix was of sound mind and understood what she was staling before the Court.

(11) As regards contention No.4, the learned counsel for the appellants drew my attention to the Mlc which is Ex. Public Witness 4/A. In this documentary has been stated that "hymen is ruptured admitting index fingre". The learned counsel, however, drew my attention to the words "ulcer near R.T. Labia Majora",mentioned in the MLC. The submission of the learned counsel was that ulceration from noma, fungus and other diseases can also rupture hymen. He, therefore, submitted that since the doctor concerned has found ulcer near R.T. Labia majora, the hymen must have been ruptured by this disease. In support of this contention, the learned counsel placed reliance on R.L.Gupta's "Medico-Legal aspects of Sexual offences, IIIrd edition, pages 40-41" wherein other causes of the rupture of hymen have been mentioned and ulceration has been stated as one of the causes. However, there is no force in this submission made by the learned counsel for the appellants as the prosecutrix in her statement before the learned Trial Judge has clearly stated that she was raped by the two accused mentioned hereinabove on number of occasions. The rupture of hymen coupled with her statement leaves no doubt that the appellant Rajbir Singh and accused Shiv Dass had committed rape on the prosecutrix.

(12) As regards the 5th contention, the learned counsel for the appellants submitted that the rape is alleged to have been committed between 31st March, 1987 to 3rd April, 1987, but the Fir was lodged after the lapse of more than one month. In support of his contention, the learned counsel placed reliance on the judgments reported in Jit Singh Vs The State of Punjab,1983(l) Clr 261; and in Ram Budal Vs State, 1988(1)CLR, 103. In these two cases' it was held that there was inordinate delay in reporting the matter to the police because the delay was not satisfactorily explained. But in the present case, as contended by the learned counsel for the respondent, the delay has been properly explained as is evident from the statements of the prosecutrix and of her mother. Besides, the fact that the prosecutrix was a child of 12 years old at the relevant time and having reached all alone in her native place in Sitamadhi Distt, Bihar, the Fir could be lodged only after she reached back at the place where the offence was committed.

(13) As regards the contention of the learned counsel for the appellants that there is no legal evidence on record against appellant Rekha, I have also perused the evidence on record and I find that there is no legal evidence involving the said appellant in the commission of the offence. Though in her statement before the Trial Court the prosecutrix stated that both the accused Rani and Raju took her somewhere in a jhuggi where accused Raju and accused Pappu (Shiv Dass) committed rape, but this fact was not stated by her in her statement under Section 161 Criminal Procedure Code . which is Ex. Public Witness 1/DA. In Ex. Public Witness 1/DA, it has been stated that Raju caught hold the hand of prosecutrix and took her to his jhuggi and there he and Pappu (Shiv Dass) committed rape. The prosecutrix also admitted in her cross examination that accused Rani had not accompanied them to the Tehkhana where she was taken by the other two accused. The learned counsel for the State also could not point out any evidence on record against the said appellant. In view of this, I set aside the conviction and sentence awarded to the accused Rani.

(14) As regards the last contention, the learned counsel for the appellants submitted that there is no other earning member in the family of appellant Rajbir and besides, he has already undergone imprisonment for a period of about six years and as such he should be set at liberty. Mr. Ahluwalia, the learned counsel for the State, on the other hand submitted that having regard to the seriousness and gravity of the crime of rape perpetrated on the prosecutrix who was only 12 years old on the date of commission of offence, no leniency should be shown to the Said appellant. In support of his submission learned counsel placed reliance on the case of Madan Gopal Kakkar (Supra). Keeping in view of the aforesaid submissions, I am also of the opinion that in the present case no leniency can be shown to the accused. Here, it will be relevant to refer to the following observation of the Supreme Court in the case of Madan Gopal (Supra):- "We feel that Judges who bear the Sword of Justice should not hesitate to use that sword with the utmost severity, to the full and to the end if the gravity of the offences so demand. " Accordingly, the contention is rejected.

(15) In view of the above discussion, I dismiss the appeal of appellants Rajbir and Shiv Dass and uphold their conviction and sentence. However, the appeal of Rekha @ Rani is allowed and the conviction and sentence of the said appellant for the offence under Section 3661.P.C. is set aside. Since she is on bail, her bail bond is cancelled and the surety is discharged.

(16) Before parting with judgment, I would like to record my appreciation of the lucid arguments of Mr. Anupam Sharma, who appeared 'as amices Curiae counsel for the appellants and also of Mr. H.J.S. Ahiuwalia, who appeared for the State for his able assistance and reference to latest law laid down by the Supreme Court on the subject.