Mohd. SaklaIn Vs. State - Court Judgment

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penal code, 1860 - section 376--rape--definition of--corroborative evidence--interested witnesses--consenting party--prosecutrix aged about 14 years became the helpless victim of sexual assault--trial court convicted and sentenced the appellant of seven years ri and fine--appealed against--pleaded prosecutrix was consenting party, parents are interested witness--petitioner was falsely implicated to evict from tenanted house--appeal dismissed--conviction and sentence confirmed. - - the said clothes were sent for examination to the laboratory and the semen found on the underwear of the appellant as well as on the salwar and kurta of the prosecutrix were found to be of the same group. the very fact that the prosecutrix had raised an alarm when the appellant had tried to commit sexual intercourse and it was on her shrieks that her father and brother had reached the roof of the premises, clearly shows that it was not an act committed with the consent of the prosecutrix. the additional sessions judge, thereforee, had held that there being contradictions in the date of birth as recorded in the school certificate and as recorded in the horoscope, it would be safe for him to rely upon the report of the radiologist determining the age of the prosecutrix between 18- 20 years.s.k. mahajan, j. (1) the day, had not even dawned on 24th april, 1990 when one suman aged about 14 years became the hapless victim of the sexual assault of the appellant at about 04.00 a.m. in the morning when she had gone to the bathroom on the first floor of the house for urinating. on hearing the shrieks of suman, her father and brother came at the first floor from the ground floor, where they were residing, and found the appellant lying on suman and committing rape. suman was rescued from under the appellant and an information was sent to the police. police reached the spot and arrested the appellant. underwear of the appellant which he was wearing was seized by the police so also the kurta and salwar of the prosecutrix suman. the said clothes were sent for examination to the laboratory and the semen found on the underwear of the appellant as well as on the salwar and kurta of the prosecutrix were found to be of the same group. the sessions court after trial convicted the appellant and sentenced him to undergo rigorous imprisonment for a period of seven years and also to pay a fine of rs.1,000.00 and in default of payment of fine, to further undergo rigorous imprisonment for six months. being aggrieved by the conviction and sentence, the appellant has filed this appeal.(2) the contention of the appellant is that he had not committed any rape and in the alternative if it was held that rape was committed, the prosecutrix was a consenting party. to elaborate his contention it was argued by mr.tuffail that rape is alleged to has been committed on the roof where the appellant was sleeping and just across the boundary of the roof there were other neighbours and it did not stand to reason to him that no one came at the spot after hearing the shrieks of the prosecutrix. according to him, the father, mother and brother of the prosecutrix have wrongly alleged of the appellant having committed the rape on account of his being the tenant in their house and they wanted to have the same vacated and it was allegedly for this reason that the appellant was implicated in a false case. according to mr.tuffail, without any corroboration, the statement of the prosecutrix or her parents should not be believed as they were all allegedly interested witnesses.(3) in my view, the argument of mr.tuffail has only to be noted and rejected. the prosecutrix, according to the school leaving certificate produced by her, was of 14 years of age whereas according to the appellant as per the medical examination her age was between 18-20 years. at this stage, without going into the question as to whether the age of the prosecutrix was 14 years or 18 years, i am unable to agree with mr.tuffail that a false case has been planted with a view to get the house vacated from the appellant. though, the statement of the prosecutrix has been fully corroborated by her parents, and in fact the father and brother of the prosecutrix had even seen the appellant committing rape and had found him over the prosecutrix at the time when they reached the roof of the premises, however, even assuming that there was no corroboration, in my view, even the uncorroborated statement of the prosecutrix can be believed. in a catena of decisions of the supreme court, it has been held that no woman of honour will accuse another of rape since she sacrifices thereby what is dearest to her and the court cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by victim strikes a judicial mind as probable. when a woman is ravished what is inflicted is not merely physical injury but the deep sense of some deathless shame. in the indian setting refusal to act on the testimony of the victim of sexual assault in the absence of corroboration as a rule is adding insult to injury. a girl or a woman in the tradition bound non-permissive society of india would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred. she would be conscious of the danger of being ostracised by the society and when in the face of these dangers the crime is brought to light there is built-in assurance that the charge is genuine rather than fabricated. it seems highly improbable that just to evict the appellant from the house, the prosecutrix and her parents would put at stake the honour of the prosecutrix. moreover the story of the prosecutrix is corroborated by the cfsl report as the semen on the underwear of the accused and on the salwar and kurta of the prosecutrix have been found to be of the same group. i am, thereforee, unable to agree with mr.tuffail that no rape was committed.(4) now coming to the second question as to whether sexual intercourse was committed with the consent of the prosecutrix. firstly, it was not the case of the appellant during trial that he had committed sexual intercourse with the consent of the prosecutrix, as the case during trial was that the appellant had not committed any rape. even assuming that the appellant can raise this plea in appeal, to my mind, the same cannot be accepted. the very fact that the prosecutrix had raised an alarm when the appellant had tried to commit sexual intercourse and it was on her shrieks that her father and brother had reached the roof of the premises, clearly shows that it was not an act committed with the consent of the prosecutrix. moreover, as per the school certificate issued by the principal of the school, where the prosecutrix had been studying, her date of birth was 15th february, 1976. if the certificate is accepted to be correct, the age of the prosecutrix as on the date of crime was 14 years and even assuming that there was a consent it will still come within the definition of rape and the appellant cannot take any benefit of the same. the sessions court has refused to rely upon the school certificate on the ground that there was a discrepancy in the age mentioned in the school certificate and the horoscope in as much as the date of birth mentioned in the horoscope was 26th july, 1976, whereas in the school certificate the same has been entered as 15th february, 1976. as per the report of the radiologist, the age of the prosecutrix was mentioned as between 18-20 years. the additional sessions judge, thereforee, had held that there being contradictions in the date of birth as recorded in the school certificate and as recorded in the horoscope, it would be safe for him to rely upon the report of the radiologist determining the age of the prosecutrix between 18- 20 years. in my view, this finding of the additional sessions judge is not correct. the witnesses who had appeared from the school had produced the register of admission and withdrawal for the year 1986-87 and in the said register the date of birth of the prosecutrix was shown as 15th february, 1976. admission was made in the school on the basis of the school leaving certificate of another school in which also the date of birth of the prosecutrix has been shown as 15th february, 1976. the school leaving certificate of the earlier school had been issued on 30th april, 1986, much earlier than the date of incident. i do not find any reason as to why the said certificate should not be believed.(5) in bhoop ram v. state of u.p. 1989 sc 1329 it was held that in the absence of any material to throw doubts about the entries in the school certificate, the same should not be brushed aside merely on the surmise that it was not unusual for the parents to under state the age of their children by one or two years at the time of their admission in school for securing benefits to the children in their future years. the appellant has not asked any question to the witnesses who had appeared from the school to throw doubt about the genuineness in the school register showing the date of birth of the prosecutrix and in my view in the absence of any doubt about such entries, the learned additional sessions judge has erred in relying upon the report of the radiologist to determine the age of the prosecutrix.(6) in ram inder v. state 1993 (1) cha c c 327 this court relying upon the judgment of the supreme court in bhoop ram v. state of u.p. (supra) has again held that unless there was any doubt about the entries in the school certificate, the same should not be rejected.(7) thereforee, even assuming the argument of the appellant to be correct that the prosecutrix was a consenting party, in my view, the appellant would still be held guilty of rape, as at the time of incident, the prosecutrix was below 16 years of age.(8) in view of the foregoing, i do not find any reason to set aside the conviction and sentence imposed upon the appellant by the additional sessions judge. thereforee, while dismissing this appeal, i confirm the conviction and sentence of the appellant.