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PETITIONER: STATE OF HIMACHAL PRADESH

       Vs.

RESPONDENT: MANGO RAM

DATE OF JUDGMENT:       24/08/2000

BENCH: CJI, R.C.  Lahoti, & K.G.  Balakrishnan, J.

JUDGMENT:

Balakrishnan, J.

L....I..........T.......T.......T.......T.......T.......T..J      This  appeal  has been filed by the State  of  Himachal Pradesh against the acquittal of the accused for the offence under  Section 376 I.P.C.  The respondent-accused was  tried by  the Court of Sessions Judge, Chamba Division of Himachal Pradesh  alleging  that he committed rape of a girl aged  13 years.

    The  prosecution  case is that the prosecutrix was  the eldest  daughter  of  Jagia  Ram.   Jagia  Ram  is  a  small agriculturist  residing  with  his   wife  Smt.   Pinji  and children  in  a village by name Kuthed.  He is a  native  of neighboring   village   Bhadhad.   The    accused   is   his brother-in-law  being the brother of his wife, Smt.   Pinji. The  accused was aged about 17 years and was the student  of VIIIth  standard  during the relevant time.   On  17.4.1993, Smt.   Pinji asked her daughter to go to village Bhadhad and get  the plough kept in the house of Jagia Ram.  Prosecutrix left  for Bhadhad at about 6.00 p.m.  on 17.4.1993.  Accused also  accompanied  the  prosecutrix.  When she  entered  her father’s  house  at  Bhadhad  to  get  the  plough,  accused followed  her  and  when she reached the cow-shed,  she  was caught  by  the accused from behind.  Prosecutrix  tried  to extricate  herself from him but she was over-powered by  the accused  and  was made to lie on the floor of the  cow-shed. The accused then untied the knot of her salwar and lifted it down  and  thereafter,  committed sexual act.  There  was  a bleeding  from  her private part.  The prosecutrix  returned home  immediately  and told her father Jagia Ram  about  the incident.   Jagia Ram went to PW 8, Sh.  Devi Chand, Pradhan of  the Gram Panchayat of the area who, in turn, advised  to lodge  a  complaint to the police.  Jagia ram  reported  the matter  to  the  police.  As the prosecutrix  was  having  a severe  pain and uncomfort, she did not accompany her father to the police station.

    The  police  registered the case and investigation  was commenced.  Prosecutrix was subjected to medical examination by  the  PW 2, Dr.  Veena Sehgal.  The accused was  arrested and  PW 1, Dr.  Hemant Sharma examined him.  Police  visited the  place of occurrence and recovered a blood stained piece of  cloth.  The salwar and kameez worn by the prosecutrix at the  time  of  the occurrence were also recovered.   In  the course  of  investigation,  the police  collected  a  family

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history  book which indicated the age of the prosecutrix and the accused.

    The  piece  of  cloth  recovered   from  the  place  of occurrence and the kameez worn by the prosecutrix were found to  be  stained with blood and on serological test found  to have  blood  of A +ve group.  Even though, there  were  some blood  stains on the salwar, the grouping could not be made. The  undergarments  worn by the accused during the  relevant time   were  also  recovered   and  subjected  to   chemical examination and it neither contained blood nor spermatozoa.

    The  prosecutrix  was  medically examined by PW  2  Dr. Veena  Sehgal.   She observed as under:- "She was a girl  of average  built, conscious, well oriented in place and  time. Height  4’-10½ ", weight 31 kg.  Breasts and  papilae  were elevated  as  small  mounds  and there  was  enlargement  of areolas diameter.  Axillary hairs were not developed.  Pubic hairs  were not developed.  She was referred to Dentist  for examining  her dental age.  There were no marks of  violence over  the  breasts, nipples, cheeks and lips.  No  marks  of violence  were  seen  on the  external  genitals,  perineum, abdomen,  chest,  back, limbs, neck and face.  Menarche  not yet attained.

    Perineal examination:

    There  were no marks of injury over vulva.  Hymen found intact  with  a  small  laceration at  6’o  clock  position. Clotted  blood  was seen at vaginal orifice, which  admitted tip of the finger with great difficulty".

    On  the basis of the above examination, PW 2 Dr.  Veena Sehgal  opined as under:- "From the above, it was  difficult to  say whether intercourse has taken place or not.  Vaginal swab  slide was prepared and got examined microscopically in the  District Hospital, Chamba under which no dead or  alive sperms  were seen.  Her blood group was A +VE.  She was also referred for X-ray to determine her radiocal age".

    PW2  Dr.  Veena Sehgal was of the view that the age  of the  prosecutrix  at the time of the examination would  have been  13  years or 14 years.  PW 3 Dr.  Lokender Badotra,  a Senior  Medical Officer(Dental) opined that the  prosecutrix was  about 13 years of age and issued a certificate.  PW 13, Medial  Officer-cum-Radiologist, based on X-Ray  examination of  prosecutrix, stated that the age of the prosecutix  must be within 14 to 16 years.

    Fourteen  witnesses  were examined on the side  of  the prosecution.   The prosecutrix was examined as PW 5 and  her@@                JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ father  Jagia Ram was examined at PW 7.  Both of them firmly@@ JJJJJJJJJJJJJJJJJJJJJ supported  prosecution.  The other items of evidence include the medical evidence.

    The  Sessions Court acquitted the accused on the ground that  the  ingredients of the offence of rape had  not  been established  and there was no penetration as alleged by  the prosecution.   The  learned Sessions Judge was of  the  view that  the  prosecutrix  must have been above the age  of  16 years and the evidence as a whole indicated that there was a

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consent  on  the part of the prosecutrix to have the  sexual act.   The  learned Single Judge before whom the appeal  was filed  by  the State did not interfere with the findings  of the  learned Sessions Judge by holding that a view taken  by the  Trial  Court was not either perverse or grossly  wrong. The  learned  Single  Judge also observed that  the  medical evidence  did not positively point out the commission of the alleged offence on the prosecutrix.

    The  above  findings are challenged before this  Court. We  heard the Counsel for the appellant and also Mr.  U.  U. Lalit,  for the accused who was appointed as amicus  curiae. The  Counsel  for the appellant contended that the  findings entered  by the learned Sessions Judge which were  confirmed by the learned Single Judge are unsustainable and that there was  ample  evidence to show that the accused had  committed the  offence of rape.  It was contended that the prosecutrix was  below  the age of 16 years and there was no consent  on her  part  for  any  sexual   act  and  she  was  physically over-powered  by  the accused and medical  evidence  clearly indicated that she was ravished by the accused.  Whereas the Counsel  for  the  respondent-accused   contended  that  the absence  of  spermatozoa either in the clothes worn  by  the prosecutrix or in the undergarment of the accused which were subjected  to  chemical examination clearly showed that  the accused  had not committed any sexual act.  The Counsel  for the  accused-respondent submitted that this is a false  case filed against the accused to get at his property.

    We  carefully considered the rival contentions and also perused the records and the impugned judgments.  The verdict of not guilty has been entered by the learned Sessions Judge mainly  based  on two grounds that the prosecutrix was  aged above  sixteen years and if at all there was any sexual act, it must have been with her consent.  Both these findings are erroneous and incorrect.

    As regards age of the prosecutrix, there is evidence of PW  2  Dr.   Veena Sehgal who examined the  prosecutrix  and after   taking  note  of   physical  features  stated   that prosecutrix must be of the age between 13 to 14 years.  PW 3 Dr.   Lokender  Badotra, who examined the  prosecutrix  also supported  this version.  This view is more strengthened  by the  family  history which showed that she was born  in  the year  1979.   Therefore, in all probability, the age of  the prosecutrix  at  the time of occurrence was  about  fourteen years.   The certificate of PW 13, the Medical  Officercum- Radiologist,  also  gives  only  the  probable  age  of  the prosecutrix.  Therefore, the finding of the learned Sessions Judge that prosecutrix was above the age of sixteen is based on faulty reasons and is unsupported by evidence.

    Even if it is assumed that the prosecutrix was above 16 years,  the reasons attributed by the learned Sessions Judge to  prove that she had given consent for the sexual act  are not  true.   According to the prosecutrix, she resisted  the accused  by  scratching him with nails but as no nail  marks were  found on the body of the accused, the learned Sessions Judge  was  of  the view that for this reason, it is  to  be assumed   that  there  was  consent  on  the  part  of   the prosecutrix.  The accused was examined on 20.4.1993.  As the incident occurred on 17.4.1993, even if there were any marks of violence on the body of accused, the same would have been obliterated and were not so prominent so as to be noticed by the  medical  officer  who  examined  him.   Therefore,  the

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absence  of nail marks or minor injuries on the body of  the accused is of not much significance.  From the oral evidence of  the  prosecutrix (PW 5), it is proved that  the  accused caught her from behind and he lifted her and pushed her down and  despite  her attempt to cover herself with the  salwar, the  accused pull it down.  She also stated that the accused gagged  her  mouth  when she attempted to cry a  loud.   The subsequent  conduct  of the prosecutrix also shows that  she was very much resistant to the sexual onslaught on her.  She came  to her father immediately and told the entire incident as  to how she was ravished by the accused.  The evidence as a  whole  indicates  that  there   was  resistance  by   the prosecutrix  and there was no voluntary participation by her for  the sexual act.  Submission of the body under the  fear of  terror  cannot be construed as a consented  sexual  act. Consent  for  the purpose of Section 375 requires  voluntary participation  not  only after the exercise of  intelligence based on the knowledge of the significance and moral quality of  the  act  but after having fully  exercised  the  choice between  the  resistance  and  assent.   Whether  there  was consent or not, is to be ascertained only on a careful study of all relevant circumstances.  From the evidence on record, it cannot be said that the prosecutrix had given consent and thereafter  she turned round and acted against the  interest of the accused.  There is a clear credible evidence that she resisted  the  onslaught  and made all possible  efforts  to prevent the accused from committing rape on her.  Therefore, the finding entered by the learned Sessions Judge that there was  consent  on the part of the prosecutrix is without  any basis.

    The  learned Counsel for the accused argued that  there were  no  marks  of violence over the  breasts,  nipples  or cheeks   and  lips  or  other   external  genitals  of   the prosecutrix  and  that she herself had not deposed  anything about the extent of penetration and this would indicate that there  was no commission of the offence.  It was argued that the  absence  of the spermatozoa in the clothes worn by  the prosecutrix and the accused also indicated that there was no sexual  act  and  at the most this would have been  only  an attempt  to  outrage  the modesty of the girl.  We  are  not inclined to accept this contention.

The medical  certificate  issued by PW 2 Dr.  Veena  Sehgal clearly  indicates that there was laceration of the hymen at 6’o  clock  position and clotting of blood was seen  at  the vaginal  orifice.   This item of medical evidence is  to  be appreciated  in the background of the oral evidence given by PW 5, the prosecutrix.  She deposed that accused lifted down her  salwar  and had sexual act with her.  It is  not  known whether these clothes were washed before they were subjected to  chemical  examination.   A  piece  of  cloth  which  was recovered  from  the  place of occurrence  and  the  wearing apparel  worn  by the prosecutrix were stained  with  blood. The  learned  Sessions Judge made a casual observation  that these  blood  stains  might  have been  caused  due  to  the menstruation  of  the prosecutrix.  PW 2 Dr.   Veena  Sehgal stated that she had no history of menstruation and there was no  suggestion also on the part of the accused as to whether the  prosecutrix  sustained injury on account of  any  other violent  act.   The  evidence of PW 2 Dr.  Veena  Sehgal  on these facts are not seen challenged in cross-examination.

    In  view of the evidence of prosecutrix(PW 5), which is corroborated  by medical evidence and other item of evidence

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and  in  the  absence  of any consent on  the  part  of  the prosecutrix,  it is clearly established that the accused had committed  rape  on  the prosecutrix and is liable  for  the offence  punishable  under Section 376 I.P.C.   The  finding given  by the learned Sessions Judge is not based on  proper appreciation of evidence and, therefore, unreasonable and we are  of  the view that the Sessions Court dealt the case  so lightly.   The offence of rape being a serious one, the case should  have received careful attention and that the learned Sessions  Judge  and  the learned Single Judge  should  have shown  greater  sensitivity  to these type  of  cases.   The evidence   should   have  been    appreciated   on   broader probabilities  and  not to be carried away by  insignificant contradictions.

    In  view  of the foregoing conclusions, we reverse  the findings  of the learned Sessions Judge which was  confirmed@@                  JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ by  learned Single Judge and find that the accused is guilty@@ JJJJJJJJJJJJJJJJJJJJJJJJ of  the  offence  punishable under Section  376  I.P.C.   As regards  the sentence, we take a lenient view for the reason that  the  prosecutrix and accused are related.   They  were both  teenagers  with an age difference of about 2-3  years. Both  were immature and young.  Evidence indicates no  marks of  violence  at  all  on  any  part  of  the  body  of  the prosecutrix.   The  incident  happened in 1993.   After  the acquittal  by  passage  of  time, the  members  of  the  two families  must  have buried their hatchet if any  arisen  on account  of  this  incident.  The learned  Counsel  for  the respondent  argued  that  a   further  order  for  custodial sentence  at  this  distance of time may  cause  rapture  to social  harmony  in  the village life and may only  help  to rekindle the flames of anger which have been smouldering for so  long between near relatives.  Having regard to all these matters,  we  hold  that sentence already undergone  by  the accused would be sufficient to meet the ends of justice, and we do accordingly.

    The appeal is accordingly disposed of.