Bhawani Singh, J.
1. Through this appeal, the accused has challenged the judgment of Sessions Judge, Shimla, dated May 23, 1992 convicting him for an offennce under Section 376, of the Indian Penal Code and sentencing him to rigorous imprisonment for seven years and to pay fine of Rs. 5,000/- and in default of payment of fine, to unndergo further rigorous imprisonment for one-and-a-half year. Fine, on recovery, has been ordered to be paid to the prosecutrix.
2. Briefly stated, the prosecution case is that on April 5, 1990 at about 9 or 10 a. m. the prosecutrix was alone in the house and was cleaning utensils in the Verandah. The accused appeared and asked her to allow him to have sexual intercourse with her and offered Rs. 20/-. The prosecutrix declined the same whereupon the accused caught her by the arms, took her inside the room forcibly. For the purpose of committing the rape, the accused removed his 'Pent'. Then, he removed the 'Salvar' of the prosecutrix by breaking the string thereof. On account of this act, she felt pain arid raised hue and cry. Smt. Tara Devi (PW-4) noticed that the prosecutrix was cry irig while she was'being taken inside the room by the accused, from her house located at a short distance. When Guddi Devi (PW-2) returned home, the occurrence was narrated to her by the prosecutrix. Thereafter Guddi Devi (PW-2) narrated it to Tulsi Ram (PW-3), father of the prosecutrix, when he came to the house. The matter was reported to the police at Police Station, Kotkhai. First Information Report (Ext. PA) was registered. The police subjected the prosecutrix to medical examination through Dr. Namita Verma (PW-6) who issued the medicolegal certificate (Ext. PD) stating in it that there were bruises on different parts of the body of the prosecutrix, her hymen was lacertated, there was slight bleeding and the private parts were swollen and painful and that the injuries found on the person of the prosecutrix were of simple nature with duration of less than 24 hours at the time of examination. Age of the prosecutrix has been opined between 12 to 14 years at the time of occurrence and finding of commission of rape has been given.
3. The clothes which the prosecutrix was wearing at the time of the occurrence, namely, torn-shirt (Ext. P-1), stringless 'Salvar' (Ext. P-2) taken in possession by the police vide memo. Ext. PB. The accused was also examined medically and the report is on the case file (Ext. PH). Certain injuries were found on the person of the accused. The clothes, which the accused was wearing at the time of the medical examination, were also taken into possession by Dr. J. G. Vohra (PW-11) who examined the accused, and handed over the same to the police for chemical examination. Spermatozoa were detected on the .Pent' of the accused (Ext. PK). The Radiological examination of the prosecutrix by Dr. A. Santoshi (PW-8) fixed her age between 12 1/2 to 15 years. After recording the statements of the relevant witnesses and collecting necessary evidence, the accused was tried for commission of rape on the prosecutrix before the trial court.
4. The accused has denied the prosecution case. He claims that he has been falsely implicated at the instance of Tara Devi (PW-4) since the family of the accused had declined to work her and that there was a land dispute with the complainant. He also states that while on his way, he noticed a boy and girl in the field and the girl was the prosecutrix. By the time he reached home, the police was after him. In defence, Smt. Mathi Devi (DW-1) has been produced supporting the allegation of strained relation with Tara Devi (PW-4) and the complainant.
5. The trial Court has found that the prosecution has been able to prove that the acused had sexual intercourse with the prosecutrix without consent and against her will and her age was below sixteen years at the time of the occurrence. Accordingly, the accused has been convicted and sentenced in the manner and extent already described in the preceding part of this judgment.
6. Learned counsel for the appellant did not contest the finding as to the age of the prosecutrix. Therefore, the finding that the prosecutrix was less than fourteen years of age at the relevant time, is confirmed. I proceed to deal with the other submissions raised by the appellant's counsel.
7. It was contended by the learned counsel for the appellant that the version of the prosecutrix is highly undependable and, therefore, it should be rejected outright. Corroboration is of unsatisfactory nature and no reliance should be placed on it. The conduct of the prosecutrix after the commission of the crime and the motive for involving the accused and false medical certificate procured from the doctor, were also pressed in aid of the accused. Let the evidence be examined in order to see the correctness of the findings recorded by the trial Court in this case.
8. The prosecutrix has stated that on the relevant day, she was cleaning the utensils in her 'Verandah'. There was none else in the house. The accused came and asked her to permit him to have sexual intercourse with her and offered to pay Rs. 20/-. She declined, the accused persisted and caught her from the arms and took her inside the room. The accused removed his 'Pent', then, her 'Salvar'. He committed the act despite her refusal by removing the 'Salvar' by breaking,its string. As a result of the act, she felt pain in her vagina. It started bleeding while the accused was committing sexual intercourse with her. She raised hue and cry. Here clothes became blood-stained. They were handed over to the police. After the accused had gone, her mother came home. She narrated the entire incident to her mother. When her father came in the evening, the occurrence was narrated to him by her mother. The matter was reported at Police Station, Kotkhai where she had gone with her parents. The report was signed by all of them. Her shirt (Ext. P-1) was lorn by the accused. She was medically examined by a doctor at the instance of the police at Kotkhai Hospital. After the occurrence, she broomed the house and cleaned the utensils. Her mother had enquired from her whether the accused had come there to which she replied in the affirmative. One Laddi (Tara Devi) had informed her mother that the accused was taking her from the 'Verandah' to the room. The house of Laddi is at a little distance from her house. Her house could be seen from the house of Laddi. They were not on speaking terms with the accused and on the date of occurrence, three-four persons were present in the house of Nokhu, but she did not narrate the occurrence to them. Her mother's mother (Dadri) was employed in Kotkhai Hospital. At the time of report she was present at the Police Station, but she did not talk to the doctor though she was present in the hospital. She was examined from outside by the lady doctor for one or two minutes after removal of her clothes. She has denied the suggestion that she was seen in the field with some-one by the accused who had spread that news therefore, he was implicated in this case.
9. Smt. Guddi Devi (PW-2) has stated that on April 5, 1990 she had gone to the hospital at Kolkhai while her husband had gone to UCO. Bank at the same place. When she returned home at about 2-30 p.m., Tara Devi (PW-4) met her on the way and asked as to who was in her house. When she told her that only prosecutrix was there, she was informed by Tara Devi (PW-4) that she heard the prosecutrix crying. Tara Devi also informed her that she had seen a boy there wearing a black coat. On reaching home, the prosecutrix came to her crying and informed that the accused assaulted her sexually by taking her to the room, breaking her string, making her lay down and giving teeth biting in her cheeks. She returned to UCO Bank at Kotkhai and informed her husband of the incident. They both came to the house and then went to the Police Station at Kotkhai alongwith the prosecutrix and reported the matter there. First Information Report (Ext. PA) contains their signatures. The police came to the village for investigation. There, the 'Salvar', shirt of the prosecutrix were handed over to the police and the documents prepared about it, were signed by her. The prosecutrix was got medically examined by the police at Kotkhai Hospital.
10. In cross-examination, she has denied that she worked for Tara Devi (PW-4) and has stated that the house of Tara Devi was located at a distance of one kilometre from her house. Baldev and Nirmala did not accompany her to the house and this statement was not given by her to the police. She has also denied that she works for Tara Devi, therefore, the latter has been made a witness in this case. After arrest, the accused was taken to the field adjacent to her house. Her family is not on visting terms with the accused, but she has denied that this case has been made against the accused due to enmity.
11. Tulsi Ram (PW-3.) is the father of the prosecutrix. He also says that on April 5, 1990, he was on duty in UCO Bank, Kotkhai. He was informed by his wife Guddi Devi (PW-2) at 5-00 P.M. that the prosecutrix had been raped by the accused. He went to the Police Station alongwith his wife and the prosecutrix and lodged the report. He also signed it. The police carried out the investigation, collected evidence in the case. The police also took in possession the 'Salvar' and shirt of thhe prosecutrix, memo bearing his signatures.
12. Tara Devi (PW-4) states that she heard the cries of the prosecutrix on April 5, 1990 when the accused was in the 'Verandah' of the house of the prosecutrix and taking her inside the room. The occurrence was narrated to Guddi Devi (PW-2) when she passed through her house around 2 or 3 p.m. The incident was also narrated to the police when she was asked by them. When the incident was narrated to Guddi Devi, she was all alone. Thereafter, she went alone to her house. The house of the prosecutrix was visible from her stairs and not from her 'Verandah' and the incident was seen by her from the stairs. She had narrated the incident to Guddi Devi (PW-2) and none from her family member had met her.
13. Dr. Namita Verma (PW-6) conducted the medical examination of the prosecutrix on April 5, 1990 at 11-00 p.m. in the Community Health Centre, Kotkhai. She found six bruises, longitutnal redish in colour on right side of the breast and two bruises longitunal redish in colour on left-breast. One circular redish bluish on right cheek was found on external examination. She also noticed slight bleeding from vagina, laceration on right labia majora with redness, swelling and tenderness. Hymen was lacerated with three rediate tears. The edges were red, swollen and painful which bleeeded on touch. Vaginal swab was sent to laboratory for detection of spermatozoa. The examination did not notice presence of spermatozoa. Injuries were of simple nature caused with blunt weapon within the duration of twenty-four hours at the time of examination. According to her opinion, the commission of rape could not be ruled out. The bruises noticed by her on the person of the prosecutrix were possible by violence with the help of hand fingers. The circular redish bruises found on right cheek could be caused by a kiss or by pressing of the teeth. Injuries mentioned at Ext. PD/1 of Ext. PD, numbering 1 to 3, were capable of being caused by sexual assault. It took her about an hour for conducting the medical examination of the prosecutrix. She did not know whether any relation of Guddi Devi was working in the Community Health Centre at Kotkhai nor was any relation of Guddi Devi working with her. At the time of examination of the prosecutrix, a nurse was accompanying her. The internal injuries like rupture of hymen were examined by her and not by the nurse. Guddi Devi was not present in the room when the prosecutrix was exmined, though, she was present in the hospital. At the time of examination, when she introduced her finger, the injury started bleeding. She has denied the suggestion that if a virgin girl of tender age is subjected to forcible intercourse by a grown up man, there would be injury on the male organ and that the injuries described in the medicolegal certificate (Ext. PD) were not present on the person of the prosecutrix and that the certificate was issued at the instance of the relation of the prosecutrix.
14. Dr. J. G. Vohra (PW-11) conducted the medical examination of the accused. According to him, smegma was present on the glanspenis. There were no blood stains or loose hair or semens stains over the body of the accused. There w.as no mark of injury on the genitalia. He noticed one abrasion and one bruise on the person of the accused. Presence of smegma will rule out sexual intercourse for a probable period of twenty-four hours though it is not certain and depends upon person to person. It may be present even before twenty-four hours of having sexual intercourse in a few cases and in few, it may be after twenty-four hours depending upon the physiology of the person. He denied that he was pressursed by Dr. Namita Verma to issue medical certificate Ext. PH.
15. Sunder Ram Pathak (PW-12) is the Investigating Officer. He has proved the various steps taken by him for the collection of the evidence. He has also stated that no other house was located in the vicinity of the house of the prosecutrix and the nearest house was that of Tara Devi (PW-4) at a distance of 300 yards. It did not come to his notice during the examination that there was enmity between the accused and Tara Devi (PW-4) or between the complainant and the accused. During the course of investigation, the accused was not taken to any field, though, the fields of the complainant are located adjacent to his courtyard. He had received a communication from the side of the accused for the re-examination of the prosecutrix by a competent Medical Board but the investigation had been completed by that time.
16. The prosecutrix has given a comprehensive account of the occurrence though she was less than 14 years at the time of occurrence. Her narration of the incident clearly points out that it was the accused who had committed rape on her forcibly, without her consent. The contention that she was noticed in the field in the company of a boy and in order to prevent the accused from disclosing it to others, the present case has been initiated, is completely unsatisfactory. There could be no reason for this tender age girl to implicate the accused. Similarly, the parents are not to be expected to expose their daughter in a case like rape even if it is assumed that the relations between the parties were strained.
17. In case the statement of the prosecutrix inspires confidence, conviction can be based on it. However, in the present case, her statement is not only corroborated by the other injuries on her person, but also by the medical evidence as well as by the evidence of witnesses, namely, Smt. Guddi Devi (PW-2), Tulsi Ram (PW-3) and Smt. Tara Devi (PW-4). Even if the statement of Tara Devi (PW-4) is not taken into consideration,, the other corroborative evidence in the case is sufficient to connect the accused with the crime.
18. It was argued by the appellant's counsel that by washing the clothes, most important evidence in the case has been lost. The prosecutrix has stated that as a result of rape her clothes were stained with blood. By the washing of clothes, not only the blood-stains but also the detection of spermatozoa became impossible showing the non-commission of rape on the prosecutrix. There is no substance in this submission. Although the prosecutrix has not said in her statement that she washed her clothes, yet the washing of clothes, as stated by the Investigating Officer, does not rule out the possibility of rape on the prosecutrix in view of the other evidence in the case. The absence of spermatozoa cannot be a circumstance against the prosecution case. Availability of spermatozoa on the clothes of the prosecutrix depends on many factors. Here, it has been detected on the 'Pant' of the accused in the chemical examination. Therefore, the absence of spermatozoa on her clothes or person cannot be a, circustance in favour of the accused and against the prosecution. Similarly, there is no legal principle of universal application laying down that absence of injuries on the male organ of the accused would be fatal to the prosecution case and rule out the commission of rape on the prosecutrix. Every case has to be approached on its own facts and circumstances in which the offence was committed. (See: (1993) 2 SCC 622, (State of Himachal Pradesh v. Raghubir Singh), 1989 (2) Sim. LC 269 (1990 Cri. LJ 1434) Jito alias Ajit Kumar v. State of H.P.
19. It was contended that there are discrepancies in the statements of the prosecution witnesses making the prosecution story of doubtful nature. The plea is opposed by Mrs. Shyama Dogra, learned Deputy Advocate General. She contended that a sentence from here and a sentence from there cannot be used to condemn the prosecution case as false. Minor discrepancies are likely to occur for variety of reasons, namely, the social status of the parties, education, time within which they witness the occurrence and when their deposition is recorded by the Court, etc. etc. Reliance was placed on some reported decisions. They are being referred now.
20. In AIR 1983 SC 753: (1983 Cri. LJ 1096) (Bharwada Bhoginbhai Hirjibhai v. State of Gujarat), it has been held in paras 6, 7 and 11 that (at page 1099 of Cri. LJ.):
6. Discrepancies which do not go to theroot of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. More so when the all important 'probabilities-factor' echoes in favour of the version narrated by the witnesses.
7. It is now time to tackle the pivotal issue as regards the need for insisting on corroboration to the testimony of the prosecutrix in sex-offences. This Court, in Rameshwar v. State of Rajasthan (1952) 3 SCR 377 at p. 386 : AIR 1952 SC 54 : 1952 Cri. LJ 547 at p. 57, has declared that corroboration is not the sine qua non for a conviction in a rape case. The utterance of the Court in Rameshwar may be replayed, across the time-grab of three decades which have whistled past, in the inimitable voice of Vivian Bose, J. who spoke for the Court (at page 550 of Cri. LJ):
The rule, which according to the cases has hardened into one of law is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudenqe, except where the circumstances make it safe to dispense with it must be present to the mind of the Judge.... The only rule of law is that this rule of prudence must be present to the mind of the Judge or the Jury as the case may be and be understood and appreciated by him or them. There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand. 11. In view of these factors the victims and their relatives are not too keen to bring the culprit to books. And when in the face of these factors the crime is broughht to light there is a built-in assurance that the charge is genuine rather than fabricated. On principle the evidence of a victim of sexual assault stands on par with evidence of an injured witness. Just as a witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that he is least likely to exculpate the real offender, the evidence of a victim of a sex-offence is entitled to great weight, absence of corroboration notwithstanding. And while cor-roboration in the form of eye witness account of an independent witness may often be forthcoming in physical assault cases, such evidence cannot be expected in sex offences, having regard to the very nature of the offence. It would therefore be adding insult to injury to insist on corroboration drawing inspiration from the rules devised by the Courts in the western world (obeisance to which has perhaps2 become a habit presumably on account of the colonial hangover.) We are therefore of the opinion that if the evidence of the victim does not suffer from any basic infirmity; and the 'probabilities-factor' does not render it unworthy of credence, as a general rule, there is no reason to insist on corroboration except from the medical evidence, where, having regard to the circumstances of the case, medical evidence can be expected to be forthcoming, subject to the following qualification: Corroboration may be insisted upon when a woman having attained majority is found in a compromising position and there is a likelihood of her having levelled such an accusation on account of the instinct of self-preservation. Or when the 'probabilities factor' is found to be out of tune.
In AIR 1952 SC 54 : 1952 Cri. LJ 547 (Rameshwar S/O Kalyan Singh v. The State of Rajasthan), the apex Court observed that:.corroboration is not the sine qua non for a conviction in a rape case.... In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion To do so is to justify the charge of male chauvinism in a male dominated society....
(See also: 1986 Cr. LJ 470 (Sidhan v. State of Kerala).
21. The result of the aforesaid examination is that the accused committed forcible rape on the prosecutrix aged below 14 years on April 5, 1990 as alleged by her and his conviction by the trial Court is quite justified being based on evidence on the record. It is, therefore, confirmed.
22. Shri Jagdish Vats contended that the accused has been undergoing the sentence for the last two years, so the sentence be reduced to the period already served by him in the interest of justice. Mrs. Shyama Dogra, learned Deputy Advocate General, opposed this plea. She submitted that this is the minimum sentence under the law and there are no extenuating circumstances in this case.
23. Looking to the fact that the accused took undue advantage of the loneliness of the prosecutrix at the house, he committed rape on her forcibly causing other injuries on her person. He does not deserve any leniency. The trial Court has already seen this aspect of the matter and it does not call for any interference.
24. There is no merit in this appeal and the same is accordingly dismissed.