2002 Supreme(SC) 614

2002(3) Supreme 655
SUPREME COURT OF INDIA
(From Rajasthan High Court)
Y.K. Sabharwal and B.P. Singh, JJ.
State of Rajasthan -Appellant
versus
Om Prakash -Respondent
Criminal Appeal No. 1975 of 1996
Decided on 3-5-2002
Counsel for the Parties :
For the Appellant : Ms. Sandhya Goswami, Advocate.
For the Respondent : U.N. Bhachawat, Sr. Advocate, Alok Bhachawat, Ms. Ruchi and Sushil Kumar Jain, Advocates.

VERY IMPORTANT POINT
The overturning of a well considered and well analysed judgment of Trial Court for conviction and sentence in the instant case of a youth guilty of child rape by the High Court on the grounds like non-examination of other independent evidence and minor contradictions in medical evidence and recovery of one or two underwear was not justified when the case against the respondent otherwise stood proved, beyond any reasonable doubt, by the true and reliable testimony of prosecutrix, her parents and doctors.

Headnote:(i) Constitution of India-Article 39-Special safeguard for children in Constitution-Whether Courts should have a sensitive approach when dealing with cases of child rape? (Yes).

       Held : It is necessary for the courts to have a sensitive approach when dealing with cases of child rape. The effect of such a crime on the mind of the child is likely to be lifelong. A special safeguard has been provided for children in the Constitution of India in Article 39 which, inter alia, stipulates that the State shall, in particular, direct its policy towards securing that the tender age of the children is not abused and the children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that the childhood and youth are protected against exploitation and against moral and material abandonment.(Para 1)

       Child rape cases are cases of perverse lust for sex where even innocent children are not spared in pursuit of the sexual pleasure. There cannot be anything more obscene than this. It is a crime against humanity. Many such cases are not even brought to light because of social stigma attached thereto. According to some surveys, there has been steep rise in the child rape cases. Children need special care and protection. In such cases, responsibility on the shoulders of the courts is more onerous so as to provide proper legal protection to these children. Their physical and mental immobility call for such protection. Children are the natural resource of our country. They are country s future. Hope of tomorrow rests on them. In our country, a girl child is in a very vulnerable position and one of the modes of her exploitation is rape besides other mode of sexual abuse. These factors point towards a different approach required to be adopted

       . (Para 19)

       (ii) Indian Penal Code, 1860-Section 376-Rape of a child girl-Victim at the time of rape was eight years old-Rape was done by a youth of 18 years-Sessions Court found the accused Om Prakash guilty of an offence u/s 376 IPC, sentenced to 7 years R1 and fine of 1000/- and in default to further undergo RI for six months-High Court acquitted on two grounds, the non-examination of other independent witnesses and rejection of medical evidence by PW11-State s appeal against acquittal to Supreme Court-Whether delay of 26 hours in lodging FIR is satisfactorily explained? (Yes) (Para 9)-Whether accused was capable of doing inter-course as per his age? (Yes) (Para 10)-Whether the two grounds relied on by High Court to record acquittal sustainable in law? (No)-The conviction cannot be set aside for non-examination of independent witnesses-For no valid reasons High Court discarded medical evidence of PW11-Prosecutrix evidence was sufficient to uphold conviction (Para 17)-Absence of injury on raped child is not fatal (Para 18)-Leniency in sentence not called for (Para 20)-Appeal allowed-Order of High Court set aside and that of trial Court restored-Case law referred.

       Held : We have scanned and scrutinized very carefully the evidence on record in particular the evidence of the parents of the prosecutrix, her brother, prosecutrix and PW-11, Dr. Harsh Chand Jain with a view to satisfy our conscious to find out whether the verdict of conviction of the respondent that had been rendered by the learned Additional District and Sessions Judge could, in law, be upset by the High Court. The evidence has been found by us to be trustworthy, convincing and reliable. The High Court seems to have overlooked that it had been established on record that at the time of the incident Om Prakash was alone at home. When such an act is done, the natural tendency is not to talk about it to others but, to an extent possible, hide it. There was nothing unnatural for other villagers not visiting the house of PWs-1 and 2. Being a child witness, we have examined the testimony of PW-5 and that of her mother with utmost care and caution. The High Court has clearly committed a serious illegality in assuming that in natural course of events if rape had been committed, the young child girl and her mother would have shouted so as to collect others and they would have visited her house. The prosecutrix was unconscious. There was no question of prosecutrix shouting as assumed by the High Court. Too much was made by the High Court on account of non-examination of persons other than the family members. The aspect of the non-examination was given undue importance without having regard to the contextual facts. The cases involving sexual molestation and assault require a different approach-a sensitive approach and not an approach which a court may adopt in dealing with a normal offence under penal laws. It was also sought to be suggested that there were some disputes between the accused and the father of the prosecutrix over exchange of some land and that is the reason for their implicating the accused. There is nothing reliable on the record to substantiate that aspect. No such suggestion was even put in the cross-examination of the father of the prosecutrix. On the facts in hand, we find it difficult to accept that the revenge on account of alleged dispute regarding exchange of land would be taken by the father of the prosecutrix by foisting on the accused a false case of rape involving his young daughter particularly in the setting of a village environment. The conviction could not be set aside for the non-examination of independent witness. As to the second reason, we find that the evidence of PW-11, Dr. Harsh Chand Jain, is clear and specific. He was the author of the report. Though ideally Dr. Pushpa Gupta could have been examined or her absence explained but that does not destroy the prosecution case which otherwise stands proved. The High Court was clearly in error in coming to the conclusion that in the absence of evidence of Dr. Pushpa Gupta, there was no support from any medical evidence. PW-11 had also examined her. He had referred the prosecutrix to Dr. Pushpa Gupta. Dr. Pushpa Gupta had reported to PW-11 who categorically stated that in his opinion on examination something had been penetrated in the vagina of the prosecutrix and that intercourse was done with the girl i.e. the possibility of doing the intercourse cannot be ruled out. For no valid reason the High Court discarded the evidence of the doctor. (Paras 15 & 16)

       Held finally : For the aforesaid reasons, we allow the appeal and set aside the judgment of the High Court and restore that of the trial Court. Bail bonds of the respondent shall be cancelled and respondent be taken into custody forthwith to undergo the remaining sentence. (Para 21)