Judgment:
R.C. Mishra, J.
1. These appeals are interlinked, as preferred against a common judgment-dated 24/1/1995 passed by Sessions Judge, Narsinghpur, in Special Case No. 12/94 whereby each one of the appellants namely Rajesh and Raju Selukar (hereinafter referred to as 'A1' and 'A2' respectively) was convicted and sentenced as under -
Convicted under Section
Sentencedto
366 of the IPC
undergo R.I. for 5 years andto pay a fine ofRs. 500/- and in default, to sufferR.I. for 1 month.
376 of the IPC
undergo R.I. for 7 years andto pay a fine ofRs. 500/- and in default, to sufferR.I. for 1 months.
2. Prosecution story, in short, may be narrated thus -
(i) At the relevant point of time, the prosecutrix (PW3), a girl aged about 15 years and a member of Scheduled Tribe, was residing with her parents at Gadarwara. On 28/8/93 at about 5 p.m., finding that the prosecutrix was in the company of her younger sisters namely Sheelu and Gayatri only, A2, after putting her in fear of death by brandishing a knife, asked her to come along with him. He took the prosecutrix to a place located near the house of Rajjan Maharaj where A1 was sitting in a Jeep. Both the appellants compelled the prosecutrix to board the vehicle quietly. In that Jeep only, she was taken to Jabalpur where they reached around midnight.
(ii) In the meanwhile, after making intensive search, Shivram (PW4), father of the prosecutrix, informed the police about her non-traceability. Recording the information (Ex.P/10), Sub-Inspector Sohi registered a case relating to missing person.
(iii) At Jabalpur, the prosecutrix was made to stay in room and in the night intervening 28th and 29th of August, 1993, both A1 and A2 committed rape on her one after the other. In the evening of the following day, the prosecutrix was again subjected to forcible sexual intercourse by both the appellants. Ultimately, on the next day, she was able to escape from the wrongful confinement and to return home. She narrated the entire incident to her parents, who took her to Police Station. It was upon the FIR (Ex.P/8) lodged by the prosecutrix that a case under Sections 363, 366, 342 and 376 read with 34 of the IPC was registered against the A1 and his associate.
(iv) In the medical examination, Dr. Sushma Chakravarti (PW1) found that hymen of the prosecutrix was torn and inflammed and her vagina was admitting only one finger with difficulty. However, for confirmation of the factum of sexual assault, the medical expert prepared two slides from her vaginal smear and also preserved the petticoat said to have been worn by the prosecutrix at the time of the sexual intercourses in question. The medical expert also advised radiological examination for verification of her age.
(v) During investigation, the appellants were apprehended and subjected to medical examination. Both of them were found to be capable of performing sexual intercourse by Dr. R.K. Patel (PW7) and Dr. G.C. Dubey (PW5) respectively.
(vi) After due investigation, charge-sheet in respect of the offences punishable under Sections 363, 366, 342, 560B and 376 read with 34 of the IPC and 3(1)(xi) of the Scheduled Castes and Scheduled Tribes [Prevention of Atrocities] Act, 1989 was submitted before the Sessions Judge designated as Special Judge (under the Act).
3. The appellants were charged with offences punishable under Sections 363, 366 and 376 of the IPC and 3(1)(xi) of the Act. They abjured the guilt and pleaded that they had been roped in the case on false grounds. However, even in the examination, under Section 313 of the Code of Criminal Procedure, none of them has assigned any cause for the so-called false implication. The prosecution sought to prove the charges by examining as many as 8 witnesses including prosecutrix, her father and the medical experts. No evidence was led in defence.
4. Upon consideration of the entire evidence on record, learned trial Judge, for the reasons recorded in the judgment under challenge, proceeded to acquit the appellants of the offences under the Act and Section 363 of the IPC. However, he further concluded that the guilt of both the appellants in respect of the offences under Sections 366 and 376 IPC was proved beyond a reasonable doubt.
5. Legality and propriety of the impugned convictions have been challenged on the following grounds -
(i) Absence of cogent evidence as to age of the prosecutrix.
(ii) Non-subjection of the appellants to the Test Identification Parade despite the facts that none of them was correctly named in the FIR and further that correct surname of A1 and name of A2 were disclosed after a considerable period of 10 days by way of application (Ex.P/5).
(iii) Conduct of the prosecutrix in not disclosing the incident to any person en route while returning home.
(iv) Non-disclosure of details of the sexual acts, allegedly committed by the appellants, in the FIR.
In response, learned Government Advocate, while inviting attention to the incriminating pieces of evidence, has submitted that the convictions are well founded.
6. At the outset, it may be observed that the contention relating to the age of the prosecutrix was apparently misconceived in view of the fact that the offence of gang rape attracts the statutory presumption under Section 114-A of the Evidence Act. The relevant extract of the provision reads as under -
In a prosecution for rape under.... Clause (g) of Sub-section (2) of Section 376 of the IPC, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the court shall presume that she did not consent.
Even otherwise, evidence of L.K. Tiwari (PW2), the then Principal of Govt. Kanya Naveen Vidya Bhavan Higher Secondary School, Gadarwara, was sufficient to prove that at the relevant point of time, the prosecutrix was a girl of tender age. As per his statement, the prosecutrix's date of birth was recorded in the school register as 15/1/1978 and the corresponding entry (Ex.P/4) was admissible in evidence under Section 35 of the Evidence Act See Umesh Chandra v. State of Rajasthan : AIR 1982 SC 1057. The evidence indicating that the prosecutrix was well below 16 years of age further drew support from her physical features described by Dr. Sushma Chakravarti (PW1) in her report (Ex.P/1).
7. Before entering into merits of the other contentions in a proper perspective, it would be desirable to advert to the medical evidence on record.
8. Dr. Sushma Chakravarti (PW1), who had the occasion to examine the prosecutrix on 01/09/93, clearly deposed that she had found hymen of the prosecutrix torn and inflammed with irregular margins. According to her, vagina of the prosecutrix was admitting only one finger with difficulty. In the cross-examination, she categorically opined that rupture of hymen was indicative of penetration.
9. Learned Counsel for the appellants, however, urged that opinion of the lady doctor as to penetration was not acceptable in view of fact that vagina of the prosecutrix admitted one finger with difficulty. However, the contention is fallacious simply because the muscles must have contracted by the time of medical examination. For this, reference may be made to the decision of the Apex Court in Prithi Chand v. State of H.P. : AIR 1989 SC 702.
10. No dispute was raised as to the positive opinions recorded by Dr. R.K. Patel (PW7) and Dr. G.C. Dubey (PW5) in the respective medical reports (Ex.P/21 & Ex.P/11 respectively) regarding capability of the appellants to perform sexual intercourse.
11. Prosecutrix (PW3) was able to give true account of sequence of events leading to her ravishment at the hands of appellants in a room at Jabalpur. She substantially reiterated the recitals of the FIR (Ex.P/8) recorded by SHO Ranjeet Singh Chouhan (PW8) at her instance. Moreover, she convincingly identified both the appellants, though not correctly described in the FIR as the offenders, who had not only kidnapped her but also subjected her to ghastly offence of gang rape on more than one occasion. In such a situation, their acquittal on the premise that they were not subjected to test identification parade would not be justified in view of the well-settled position of law that the substantive evidence is the evidence of identification in Court See. Malkhansingh v. State of M.P. : AIR 2003 SC 2669. Further, as observed by the Supreme Court in Visveswaran v. State : AIR 2003 SC 2471 -
The approach required to be adopted by Courts in rape cases has to be different. The cases are required to be dealt with utmost sensitivity, Courts have to show greater responsibility when trying an accused on charge of rape. In such cases, the broader probabilities are required to be examined and the Courts are not to get swayed by minor contradictions or insignificant discrepancies, which are not of substantial character. The evidence is required to be appreciated having regard to the background of the entire case and not in isolation. The ground realities are to be kept in view. It is also required to be kept in view that every defective investigation need not necessarily result in the acquittal. In defective investigation, the only requirement is of extra caution by Courts while evaluating evidence. It would not be just to acquit the accused solely as a result of defective investigation. Any deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution when it is otherwise proved.
12. Still, placing reliance on pronouncement of the Apex Court in State of Karnataka v. Sureshbabu Puk Raj Porral : (1994) 1 SCC 468 learned Counsel for the appellants has strenuously contended that in absence of details of respective sexual acts in the FIR, the offence of gang rape was not made out. However, fact of the matter is that the prosecutrix, in her sworn testimony, vividly described as to how she was ravished by both the appellants. According to her, they had assaulted her sexually by inserting their male organs into her vagina one after the other. Besides this, in a case of gang rape, the clinching proof of a completed act of rape by each one of the accused on the victim is not required in view of Explanation I in relation to Section 376(2)(g) of the IPC Promod Mahto v. State of Bihar : AIR 1989 SC 1475 referred to.
13. This apart, as observed by C.K. Prasad J. (as his Lordship then was) in Wahid v. State of M.P. 1998 (1) JLJ 290 the prosecutrix, in a rape case, is not expected to use the words as given in the penal statute. Accordingly, in the facts and circumstances of the case, the words 'Bura Kaam' (vile act) as used by the prosecutrix in the FIR were sufficient to suggest that her chastity was violated by both the appellants.
14. The last contention advanced by learned Counsel for the appellants centres around the conduct of the prosecutrix in not disclosing the incident to any person other than her father Shivram (PW4). Making reference to the judgment of the Supreme Court in Narayan v. State of Rajasthan (2007) 6 SCC 465 they have submitted that the aforesaid conduct, being apparently unnatural and improbable, was sufficient to discard her testimony as artificial. However, in that case, the accused was charged with rape on a married woman whose evidence was found to be full of contradictions whereas in the case on hand, the testimony of the prosecutrix is clear, cogent and creditworthy. Apart from this, her disinclination to narrate the details of the sexual exploitation to any other person than her father Shivram (PW4) was quite natural and probable. On this aspect of the matter, the following excerpts of the observations made by the Apex Court in State of Punjab v. Gurmit Singh : (1996) 2 SCC 384 may usefully be quoted -
A girl, in a tradition-bound non permissive society in India, would be extremely reluctant even to admit that any incident which is likely to reflect upon her chastity had occurred, being conscious of the danger of being ostracized by the society or being looked down upon by the Society.... In the normal course of human conduct, an unmarried minor girl, would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate it others overpowered by a feeling of shame and her natural inclination would be to avoid talking about it to anyone, lest the family name and honour is brought into controversy.
15. Conviction for the offence under Section 376 IPC can be safely recorded on the sole testimony of the prosecutrix provided that her evidence does not suffer from any basic infirmity and 'probabilities factor' does not render it unworthy of credence See. Bharwada Bhoginbhai Hirjibhai v. State of Gujrat . As pointed out already, the statement of the prosecutrix in this case was not only derived support from medical evidence but was also corroborated by the evidence of Shivram (PW4) who had lodged the missing report (Ex.P/10) on 28/8/93 only. Nothing could be elicited in the cross-examination of the prosecutrix or her father Shivram so as to suggest that the appellants were falsely implicated due to any extraneous motive. Moreover, none of the discrepancies shook the basic version of these witnesses. A very natural and probable version of the prosecutrix was, therefore, rightly accepted by the learned trial Judge.
16. For these reasons, none of the grounds raised against legality and propriety of the convictions has any merit or substance. The convictions in question, accordingly, deserve to be maintained as well merited.
17. Coming to the question of sentence, it may be observed that for the offence of gang rape, less than statutorily prescribed minimum punishment has been imposed by learned trial Judge, presumably in view of the fact that the penal provision of Section 376(2)(g) of the IPC was not mentioned specifically in the charge. As such, no further indulgence would be warranted.
18. In the result, both the appeals stand dismissed. The impugned convictions and the consequent sentences are hereby affirmed.
19. Appellants are on bail. They are directed to surrender to their bail bonds before the trial Court on or before 10.05.2010 for being committed to the custody for undergoing remaining part of the sentence.
20. A copy of this judgment be retained in the connected appeal.