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SUPREME COURT OF INDIA
A.S. Anand and N.P. Singh, JJ.
Criminal Appeal No. 398 of 1984
Decided On: 18.02.1993
State of Himachal Pradesh Appellants
Vs.
Raghubir Singh Respondent
Advocates Appeared
Counsel for the Parties
For Appellant/Petitioner/Plaintiff: Kusum Choudhury and Bina Gupta, Advs.
For Respondents/Defendant: N.M. Ghatate, Sf. Adv. and S.V. Deshpande, Adv.
(ii) Rape - appeal against conviction - / Courts must be wary, circumspect and slow to interfere with reasonable and proper findings based on appreciation of evidence as recorded by lower courts, before upsetting the same and acquitting an accused involved in the commission of heinous offence of rape of hapless girl child. (Para 6)
(iii) Constitution of India - Article 136 Indian Penal Code, 1860 - Section 376- Conviction under - Appeal- Acquittal- State Appeal - Age of prosecutrix between 6 to 8 years - Her statement is clear, cogent and specific - Ample corroboration from the testimony of her father - Medical evidence supporting the prosecutrix in all material particulars - Conviction legally sustainable - Judgment of High Court acquitting the accused based on conjectural findings, cannot be sustained - Sentence to be imposed is confined to five years R.I. as state did not move for enhancement of the sentence awarded.
Held: The learned single Judge of the High Court also drew an inference against the prosecution from the fact that only two blood-stains had been found on the Shawl by the Chemical Examiner and doubted the prosecution version on that account. The prosecutrix was a girl of tender age and on account of the rape committed on her, there was bleeding from her vagina but to expect that the shawl should have got "drenched with blood" as if the large blood arteries had been cut is letting the imagination run wild and ignoring the circumstances of the case. The absence of spermatozoa on the vaginal slide, which was also pressed into aid by the High Court to acquit the respondent, was not based on proper scrutiny of the evidence. The prosecution case itself was that on being surprised while the respondent was in the act of committing sexual intercourse on the prosecutrix, he ran away carrying his underwear. The absence of spermatozoa under the circumstances could not be said to be a circumstance in favour of the respondent at all. The judgment of the high Court, in our opinion, is based more on surmises and conjectures than on proper appreciation of evidence. It exposes the insensitivity of the learned Judge to the serious crime committed against human dignity. We are not impressed by the manner in which the High Court dealt with the case. (Para 6)
(iv) Rape - Absence of spermatozoa on vaginal slide - Absence of injuries on penis of the accused - Not fatal to the prosecution case and would discredit the evidence of the prosecutrix otherwise found to be reliable. (Para 7)
(v) Sentence - Rape - Prosecutrix a girl of 6 to 8 years - Severe sentence desirable - Sentence of 5 years R.I. awarded by lower court maintained when state did not seek enhancement of sentence.
ORDER
1. On special leave being granted, the State of Himachal Pradesh has preferred this appeal against the judgment and order dated 16.11.1983, acquitting the respondent of an offence under Section 376, IPC earlier recorded by the learned Sessions Judge.
2. Briefly stated the prosecution case is that on 2.8.1982, the prosecutrix, Raksha Devi PW4 alongwith her father Nikkoo Ram PW5 and an elder sister by name Samti were in their fields. It started to rain all of a sudden and the prosecutrix, her father and her sister, ran towards their house. The prosecutrix got separated from her father and elder sister and was following them when the respondent Raghubir Singh, then aged about 16 years, came to her and caught hold of her hand and took her under a mango tree. The prosecutrix, who was 7/8 years old at that time was wearing a frock and having a shawl with her. The respondent spread the shawl on the ground and making the prosecutrix lie on that shawl committed rape on her. Since, the prosecutrix had not reached her home, Nikkoo Ram her father after waiting for about half an hour returned towards the field and saw the respondent lying on top of the prosecutrix, Raksha Devi, under the mango tree. He raised alarm and the respondent ran away carrying with him his underwear. The prosecutrix was crying and was bleeding per vagina. The occurrence took place at about 2.30 p.m. and the First Information Report Ex. PE was lodged at the Police Station at 5.50 p.m. The prosecutrix was got examined by the doctor, who found her hymen ruptured and slight bleeding coming out of the vaginal edges. Blood clott was also present and the external genitals of the prosecutrix were found to be tender and red. The vagina admitted one finger with difficulty, which got smeared with blood. The doctor who had examined the prosecutrix, namely, Dr. Urmil Gupta, Medical Officer, Rural Hospital, Nalagarh at about 7 p.m. on the same day, appearing as PWI at the trial had also testified that when the prosecutrix was brought to her by her father, he had also brought with him a shawl, which was found to be having some mud and bloodstains. According to the opinion of Dr. Urmil Gupta PW 1, the prosecutrix had been subjected to sexual intercourse and the probable duration of the injuries on her private parts, including the vagina was about 6 to 12 hours. During the cross-examination, a suggestion was put to the doctor that the injuries found on the prosecutrix could have been caused by a fall on some bushes or on the stem of a beree tree but the doctor had categorically denied the suggestion. It was also suggested to her that the venginal injury could also be caused by inserting a finger in the vagina. The X-Ray, the skiagrams and the examination of her teeth by Dr. Subhash Chandra Aggarwal PW2 established the age of the prosecutrix to be between 6 to 8 years. The respondent was also examined by doctor C.L. Sharma PW3, medical officer at the Rural Hospital, Nalagarh. He had found the respondent to be potent and capable of sexual intercourse. He denied the suggestion that injuries would necessarily be caused to the penis in case of sexual intercoures by a grown up male with a virgin when during the act her hymen gets torn.
3. The father of the prosecutrix Nikkoo Ram PW5, the prosecutrix Raksha Devi PW4 and Taru PW7, who had rushed to the scene of occurrence on hearing the alarm and had also seen the respondent running away therefrom carrying with him his underwear supported the prosecution case in its totality.
4. The learned Sessions Judge after a careful appraisal of the evidence on record found that the respondent had committed the offence of rape and sentenced him to suffer R.I. for a period of five years for the offence under Section 376 IPC. While awarding the sentence, the learned Sessions Judge took into account the age of the prosecutrix, the age of the accused and the other attending circumstances and directed that it would be appropriate if the accused was k
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