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1987 Supreme(J&K) 28
IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
A.S. Anand, J.
Radhya Sham - Appellant
Versus
State Of J&K - Respondent
Cr. Ist Appeal No. 53/1986
Decided On : 25 March, 1987
Advocate For Appellant: S.C. Subash
Advocate For Appellant: Chetan Sharma
Advocate For Respondent: A.V. Gupta
Headnote:(i) Ranbir Penal Code, 1860 - Section 376- Appellant was convicted for an offence under - Appeal against - A girl of about 10 year was subjected to rape - Conviction based on the sole testimony of prosecutrix corroborated by medical evidence, report of the serologist and testimony of parents - Minor contradictions and discrepancies - No reason for false implication of appellant - Whether order of conviction is legally sustainable? (Yes)
Held, While examining a case like the present one where a minor girl of about 10 years has been subjected to rape, it becomes the bounden duty of the Court to carefully weigh and evaluate the evidence fanciful contradictions version. The court cannot lose sight of the fact that in the society in which we live, no woman would come forward. Generally speaking to make a humiliating statement against her honour of being raped unless it was true. The nature and extent of the corroborative evidence that is required varies according to the circumstances of the case. The corroboration which is required is with regard to the crucial parts of her testimony which, if proved, would establish the guilt of an accused. Law does not require corroboration (Section 138 Evidence Act) and. therefore if the statement of the prosecutrix inspires confidence and is believed, there is no bar to convict an accused on her sole testimony even. The rule requiring corroboration is not a rule of law but a rule of prudence. The need for corroboration; as a matter of prudence, except in cases where the circumstances make it safe to dispense with it, should, however, be present to the mind of the Judge. The courts cannot lose sight of the fact that the crimes of violence upon woman are on the increase and, therefore, supposed contradictions which have no material effect on the veracity of the prosecution case or even discrepancies, in the statements of the witnesses, should not, unless the discrepancies are such which are of a fatal nature, be allowed to throw out an otherwise reliable prosecution version. (Para 9)
(ii) Indian Evidence Act, 1872 - Rule requiring corroboration in case of rape is not a rule of law but a rule of prudence. (Para 9)
(iii) Indian Evidence Act, 1872 - Sections 8 and 157 - Admissions - Rape case - Statement made by the prosecutrix immediately after the occurrence - It is legally admissible and relevant as evidence of conduct - It is also admissible a corroboration of the evidence of the prosecutrix in the Court, under section 157 - Evidentiary value depends upon the fact of each case. (Para 9)
(iv) Crimes of violence upon women -Measure of punishment - A deterrent sentence is called for so as to prevent recurrence of such cases - Judges while exercising judicial discretion in this regard must consider variety of factors and more particularly the position of the victim and the nature of the crime. (Para 12)
(v) Ranbir Penal Code - Section 376A girl of 10 years was raped by appellant, 18 years of age and her uncle in relation-Conviction under section 376 - Sentence of five years rigorous imprisonment and a fine of Rs. 1,000/- were imposed - No mitigating factors - Whether this sentence imposed by trial court commensurate with the gravity of the offence? (No, sentence is enhanced to seven years imprisonment and a fine of Rs. 2,000/-) (Para 12)
2. In brief, the prosecution case is that on 14-4-1980, at about 11.30 a.m. while the prosecutrix Mst. Darshna Dsvi, then aged between 9-10 years, had gone to the jungle for grazing the cattle she was confronted by the appellant who had also gone there to graze his cattle. The appellant lifted her and took her a green patch of land by the side of a big stone and after undressing her shalwar gagged her mouth and committed rape on her. That she bled from her vagina and her cry attracted to the spot her uncle Bishan Dass PW who was cutting leaves of a mulberry tree nearby. He came to the spot and on seeing him, the appellant ran away. The persecutrix was in a dazed state and her uncle lifted her and took her to her home where she narrated the incident to her mother also. She was Icier on removed to the District Hospital, Udhampur and medically examined. At the time when she was examined by the gynecologist in the District Hospital Udhampur Dr. Uma Sharma, she was semiconscious and was bleeding per vagina. There was a lacerated wound of one inch dimension in the posterior vaginal wail & the tear had to be stitched. There had been so much lass of blood that she had to be. given one pint of blood and one pint of glucose 5% along with the antibiotics. The vaginal smear was taken and sent for examination to the chemical examiner. She remained in the hospital from 14th to 26th April, 1980 when she was discharged.
3. At the time when the prosecutrix was brought home by her uncle Bishan Dass, PW, her father Shanker Dass was not at horns, He had gone to a nearby village to witness a wrestling match. A message was sent to him and he rushed home and found the prosecutrix in an unconsicious state with blood oozing from her vegina. She was lifted in a palanquin and taken to village Jaganoo on the main road. It was dark at the time and a special bus was hired to remove the prosecutrix to district hospital at Udhampur where she was admitted as an indoor patient. At 11 p. m. on the same day i.e., 14th April, 1980, the father of the prosecutrix lodged first information report No. 37 of 1980 at police Station, Ramnagar. The police after the lodging of the FIR swnug into action and the investigation was started in the right earnest. The police rushed of the spot and prepared site plan Ex. PW/SS and vide seizure memo, Ex. PG, blood stained earth was also lifted from the place of occurrence which was also sent to the chemical examination for analysis. The police after completion of the investigation filed a challan against the appellant on 11-9-1980. The case was committed to the court of Sessions where the appellant was tried end convicted as noticed above.
4. In order to connect the appellant with the crime, the prosecution examined Mst. Darshna Devi PW/1, Dr. Uma Sharma, PW/2, Isher Dass PW/3, Mst Goran Devi PW/4. Bishan Dass PW/5, Shanker Dass PW/6. Ganjore Singh PW/7, Suram Singh PW/8, Farangoo PW/9, Prem Singh PW/11 and Shanker Singh PW/12, as its witnesses. The appellant denied the occurrence in his statement under section 342 Cr. P. C. and set up a plea of false implication support of which he examined Dhani Ram DW/1
5. The prosecutrix Mst. Darshna Devi narrated the occurrence as has been noticed in the earlier part of this judgment. She described how she was lifted by the appellant who was related to her as an uncle and was living in the neighbourhood. During the cross-examination nothing was elicited from her to, in any way cast any doubt on her testimony or challenge her veracity. Shy stated in the cross-examination that the appellam had forcibly removed her shalwar and that she was s
