IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Jail Appeal No. 228 of 2007 Darwan Singh S/o Rajendra Singh ………… Appellant Versus State of U.P. ………… Respondent Mr. Rajesh Sharma, Advocate for the accused/appellant. Mr. Amit Bhatt, Addl.G.A. with Mr. B.S. Parihar, Brief Holder for the respondent/State. Judgment Hon’ble J.C.S. Rawat, J. This Criminal Jail Appeal has been directed against the judgment and order dated 26.05.2006, passed by learned Sessions Judge, Pithoragarh in Sessions Trial No. 2 of 2006, whereby the accused/appellant has been convicted & sentenced to undergo rigorous imprisonment for a period of seven years u/s 376 Indian Panel Code, 1860 (hereinafter referred as I.P.C.) and a fine of Rs.25,000/-. It was further directed that in default of payment of fine, the accused/appellant would further undergo one-year imprisonment. 2. Brief facts of the prosecution case are that when the victim was all-alone in her house in the month of Falgun, 2004, the accused/appellant entered in her house and committed forcible sexual intercourse upon her inspite of her resistance. The victim was threatened of the dire consequences by the accused/appellant. The accused/appellant also stated to the victim that he has committed the murder of his grand father and he would also kill her if she would disclose this fact to other persons. Thereafter, on 3rd day of the incident, the accused/appellant again came to her house and seeing the victim all alone in her house, again committed forcible sexual 2 intercourse upon her. When the victim resisted, the accused/appellant assured her that he would solemnized marriage with her. The accused/appellant gave false promise of marriage to the victim and committed forcible sexual intercourse upon her. Later on when it was found that the victim became pregnant, she revealed this fact to the accused/appellant. The accused/appellant told her that now she has become his wife. The victim also narrated this fact to the parents of the accused/appellant and they also assured her that they would accept her as their daughter-in-law if she would conduct miscarriage of the child. For miscarriage, the parents of the accused/appellant also gave few tablets to the victim. When the father of the victim asked about her ailment, she tried to mislead them by saying that she was not feeling well so her abdomen is looking big in size. Later on the victim was taken to the hospital at Almora on 11/12/2004 where she was medically examined by the lady doctor. The victim gave birth to a child in the same night. Thereafter, she was discharged from the hospital and brought to her house. When she delivered the child, the parents of the victim got surprised. Thereafter, she narrated the entire story to her parents. She also told her parents that the accused/appellant and his parents have assured her to solemnize the marriage with the accused/appellant. She has submitted the report to the Patti Patwari but nothing was done, as such, she filed application u/s 156 (3) Cr.P.C. before the Chief Judicial Magistrate holding Camp at Gangolihat wherein order of the investigation was made by the learned Magistrate. Thereafter, the matter was investigated by the revenue police. After completion of the investigation, chargesheet was submitted against the accused/appellant before the learned Magistrate. 3 3. After submission of chargesheet, the accused-appellant was committed to the court of Sessions for trial and the trial court framed charge u/s 376 I.P.C. against the accused- appellant. The appellant-accused denied the charge levelled against him and claimed his trial. 4. The prosecution in support of its case examined PW1 prosecutrix; PW2 Madan Singh; PW3 Ram Singh; PW4 Dr. Sunita; and PW5 Shri Krishna Joshi. 5. The accused-appellant was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. He has stated that he has been falsely implicated in this case. 6. The learned Sessions Judge on appreciation of the evidence, held the accused-appellant guilty u/s 376 I.P.C. and sentenced him as indicated above. 7. I have heard Mr. Rajesh Sharma, Advocate for the accused/appellant, Mr. Amit Bhatt, Addl. G.A. with Mr. B.S. Parihar, Brief Holder for the State; and perused the record. 8. The prosecution has produced the evidence of victim as PW1. She has supported the version narrated in the F.I.R. She has stated that in the month of Falgun, 2004, when she was all alone in her house, the accused/appellant entered into her house and committed forcible sexual intercourse upon her. The accused/appellant also threatened her of dire consequences if she could raise any alarm. She has further stated that the accused/appellant also threatened to kill her, if she disclosed this fact to any other person. The accused/appellant also threatened her by saying that he had murdered his grand 4 father and he would also kill her likewise. She has also stated that on the 3rd day of the incident, the accused/appellant again came to her house and finding her alone in the house committed the forcible sexual intercourse upon her. When she tried to resist, the accused/appellant stated that he had fallen in love with her and he would solemnize marriage with her. Later on she became pregnant. She has also stated that she told this fact to the parents of the accused/appellant. She has further stated that the mother of the accused/appellant gave her tablets for miscarriage. The parents of the accused/appellant also assured her that they would accept her as their daughter-in-law, if she perform miscarriage. She has further stated that when her abdomen looked big in size, her parents asked about it but she avoided to narrate the correct fact inspite of being pregnant. Later on when she suffered from pregnancy pain, she was taken to the hospital where she delivered a child on 11/12/2004. She has also stated in her evidence that the accused/appellant has committed rape upon her and also threatened her by showing the knife. She has also stated in her evidence that she gave an application to the Patti Patwari (revenue police) against the accused/appellant but the Patti Patwari (revenue police) did not pay any heed to her application. Thereafter, after delivery of the child a complaint u/s 156 (3) was filed before the Magistrate and thereafter the matter was investigated. 9. The prosecution also adduced the evidence of PW2 Madan Singh who has stated in his evidence that the house of the father of the victim is adjacent to his house and there is a way by the side of the house of the father of the victim to go to his house. On the date of the incident, he came to his house about 2:00 to 2:30 p.m. to take his meal. He heard the noise from 5 the house of PW3 Ram Singh. He went there and found that the accused/appellant was running from the house of the victim and the victim was weeping and tightening her paizama. When he asked victim, she narrated the entire incident as stated above. He has further stated that when he stated this fact to the parents of the accused/appellant, they stated him that he was telling a lie to defame them and he was bitterly subjected. He has further stated that the victim was taken to hospital where she gave birth to a child. He has further stated that he saw the accused/appellant running immediately after the incident and found the victim weeping and wearing her cloths. 10. PW3 Ram Singh is the father of the victim. He has stated in his evidence that in the month of Falgun, 2004, he was not in his house and he had gone to attend a function outside his village. When he came to his house on the next date, her wife told him that the accused/appellant has committed forcible sexual intercourse upon their daughter. He has also stated that his neighbour Madan Singh has told this fact to him. He has also stated that the victim was taken to hospital where she gave birth to a child. 11. PW4 Dr. Sunita is the Medical Officer posted at Base Hospital, Almora. Under her supervision, treatment of the victim was done. She has stated that the victim gave birth to a child on 11/12/2004. Thereafter, she was discharged from the Hospital. 12. PW5 Shri Krishna Joshi is the Investigating Officer of the case who after recording the statement of the witnesses submitted the chargesheet against the accused/appellant before the Court. 6 13. It is pertinent to mention here that it is a well settled position of law if the evidence of the victim is found reliable, credible and cogent, it did not require any corroboration on the material points; the prosecutrix complaining of having been a victim of offence of rape is not an accomplice after the crime. There is no rule of law that her testimony cannot be acted without corroboration in the material particulars. She stands on a higher pedestal than an injured witness. If the Court comes to the conclusion that the evidence of the victim is cogent and credible, it does not need any further corroboration by any other independent witness. The learned Sessions Judge after appreciation of the evidence has found the evidence of the prosecutrix to be credible and cogent. He has also held that the evidence of the prosecution is also corroborated by the medical evidence as well as by the evidence of PW2 Madan Singh. 14. Learned counsel for the accused-appellant contended that there is a delay in lodging the F.I.R., as such the entire prosecution story is liable to be rejected on that score. The learned Addl. G.A. refuted the contention and contended that delay per-se is not a mitigating circumstance for the appellant when accusations of rape is involved. Delay in lodging the F.I.R. cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the Court on guard to search and consider if any explanation has been offered for the delay. Perusal of the record reveals that the prosecution has also submitted the explanation for the delay in this case. PW1 prosecutrix herself has stated in her evidence that she submitted application to Patti Patwari with regard to the alleged incident but he did not pay any heed to it. 7 Thereafter, she filed an application u/s 156 (3) Cr.P.C. before the Magistrate after delivery of the child. It is pertinent to mention here that the Legislature have substantially changed the provisions of the sexual offences in the year 1983 by the Criminal Law Amendment Act, 1983. The fact that the sweeping changes were introduced reflects the legislative intent to curb with iron hand, the offence of rape which affects the dignity of a woman. The offence of rape in its simplest term is the ravishment of a woman, without her consent, by force, fear or fraud, or as the carnal knowledge of a woman by force against her will. The physical scar may heal up but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of deathless shame. The victim has to suffer for the such act for which she is not responsible for her whole life and she found herself helpless in the society and she is also condemned in the Indian Society after being committed rape upon her without her fault. It is also a settled position of law that either the satisfactory explanation should come forward from the side of the prosecution or the circumstances should lead to take an inference that the delay has been sufficiently explained in the facts and circumstances of the case by perusal of the record. Once the explanation has been offered, the Court has only to see whether it is satisfactory or not. The explanation put forward by the prosecution is sufficient as the learned counsel for the defence could not demonstrate any iota of fact that the said fact has been denied by the accused/appellant or any cross-examination has been made to that effect. In the case of rape it is also to be taken into consideration while dealing with the point of delay in lodging the FIR that the Courts cannot overlook the fact that in the sexual offences delay in the lodging the FIR can be due to variety of reasons particularly the 8 reluctance of the victim or her family members to go the police and complain about the incident which concerns the reputation of the victim and the honour of her family. A girl in a tradition- bound non-permissive society would be extremely reluctant even to admit that any incident, which is likely to reflect upon her chastity, had occurred, being conscious of the danger of being ostracized by the society or being looked down by the society. Her not informing anyone about the incident in the circumstances cannot detract from her reliability. In normal course of human conduct an unmarried girl would not like to give publicity to the traumatic experience she had undergone and would feel terribly embarrassed in relation to the incident to narrate such incident. Overpowered, as she may be, by a feeling of shame her natural inclination would be to avoid talking to anyone, lest the family name and honour is brought into controversy. Admittedly, the victim’s father was a pradhan of the village for the last 30 years. Thus, delay in lodging the first information report cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same on the ground of delay in lodging the first information report. Thus, I do not find any force in the contention of the learned counsel for the accused-appellant and I found that the learned Addl. G.A. has a substance in his argument. 15. Learned counsel for the accused-appellant further contended that the main question in this case falls for consideration is that when the accused-appellant committed sexual intercourse with the victim holding out a promise for marriage whether this would amount to the consent or not. Learned counsel for the accused/appellant relied upon the judgment of the Hon’ble Apex Court in the case of Deelip Singh Vs. State of Bihar, 2005 SCC (Cri) P/253, in which 9 the court acquitted the accused-appellant holding that the appellant by promising the marriage persuaded the victim to have sexual relations and caused pregnancy. In this case the FIR was lodged stating therein that the victim and the accused- appellant were neighbours. They fell in love with each other and one day the accused forcibly raped her and later consoled her by saying that he would marry her. When she succumbed to the entreaties of the accused to have sexual relations with him, on account of promise made by him to marry her and, therefore, continued sex with her on several occasions. When she became pregnant, she revealed the matter to her parents. The trial court accepted the version of the prosecution and convicted the accused. The High Court confirmed the conviction and the sentence. The trial court also recorded the finding that she was forcibly raped on the first occasion and after that incident the accused went on making false promises to marry her. It was, therefore, held either there was no consent or the consent was involuntary. In this case the girl was more than 16 years of age, while dealing with this finding of the learned trial court, the Hon’ble Apex Court has held that this version of the victim that she was subjected to rape against her will at the first incident even the appellant held out to promise to marry did not lend credence to it. Therefore, the finding recorded by the trial court of the rape on the first occasion is not sustainable and the finding were upset by the Hon’ble Apex Court. So the facts as emerged from the judgment that the sexual intercourse was committed with the consent that the accused would marry with her. Thus, the Hon’ble Apex Court acquitted the accused. In the case in hand the facts are different. The evidence of the victim to the effect that the accused-appellant finding her alone in her house committed forcible sexual intercourse upon her. When she tried to cry or 10 seek help she was given threats of the dire consequences. Later on the promise to marry was given by the accused/appellant. Thus, the evidence of the first part is reliable, credible and cogent. The factum that he went to the house of the victim on 06/05/2004 is also admitted to the accused. 16. Contra to this, learned Addl. G.A. relied upon the judgment of the Apex Court in the case of Dildar Singh Vs. State of Punjab, (2007) 1 SCC (Cri) p/557 wherein it has been held in para 10 and 11:- Para 10.-It appears that the intention of the accused as per the testimony of PW 1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry, her therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before the panchayat of elders of the village. It is more than clear 17. It is also admitted to the prosecution witnesses that they are illiterate. The victim is also illiterate. In view of the above I do not find any force in the contention of the learned counsel for the accused-appellant. 11 18. The learned counsel for the appellant further contended that there are contradictions in the testimony of the PW1 prosecutrix and in the evidence of PW2 Madan Singh. I have gone through the entire evidence of the case. It is not disputed that the witnesses are rustic and illiterate villagers. It is established by the evidence that the victim was un-married and she was subjected to forcible sexual intercourse by the accused/appellant due to which she gave birth to a child. The prosecution has led the evidence of the victim PW1 as well as of PW2 Madan Singh that the said forcible intercourse was committed by the accused-appellant. The minor contradictions are of no avail in this matter. The entire evidence discloses that the subtraction of evidence and the genesis of the evidence are not disturbed. There is no iota of evidence that the victim had any ill-will or enmity with the accused/appellant. Sexual violence upon the victim apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self-esteem and dignity. It degrades and humiliates the victim and where the victim is helpless and innocent it leaves behind a traumatic experience. It destroys the entire psychology of a woman and pushes her into deep emotional crisis and in such a situation, the victim would not come forward to tell that her supreme honour has been invaded and she would not expose her traumatic conditions. If the accused/appellant would have to implicate falsely, he could have implicated otherwise. It is not disputed that the victim has delivered a child after the commission of the alleged offence. The evidence of the prosecutrix is totally believable and reliable. There is no doubt that her evidence is credible and cogent. The contradictions which have been pointed out are of no avail to the prosecution which are bound 12 to come on the testimony of the truthful witnesses. There are bound to be some discrepancies between the narration of different witnesses when they speak on details, and unless the contradiction are of material dimension, the same should not be used to jettison the evidence in its entirety. Corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor contradictions there may be but variations by reason therefore should not render the evidence of unbelievable. Different witnesses react differently under different situations. Thus, I do not find that the evidence of the victim is unreliable on the basis of said contradictions. I do not find any force in the said contention of the learned counsel for the accused-appellant. The evidence of the victim has been corroborated by the evidence of PW2 Madan Singh also. 19. The learned counsel for the accused/appellant further contended that the alleged occurrence took place in the year 2004, the punishment awarded by the trial court is very severe and it is not proportionate to the offence charged against the accused/appellant. It was further contended that the accused/appellant belongs to rural areas and after the occurrence of the incident five years have been passed and both of them have been married separately. The sentence awarded by the court below should be reduced. It is a well settled position of law that undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of the every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed. Imposition of sentence without considering its effect on the social order in any cases 13 may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to the offences against woman which have a great impact on society cannot be lost sight of and per se requires a proper punishment. Any liberal attitude by impose meagre sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result wise counter productive in the long run and against social interest which needs to be cared for strengthened by string of deterrence inbuilt in the sentencing system. (Dhananjay Chatterjee Vs. State of West Bengal 1994 (2) SCC p/220, Ravji Vs. State of Rajasthan 1996 (2) SCC p/175, State of Madhya Pradesh Vs. Munna Choubey & anr. 2005 AIR SCW p/443) The trial court has awarded a sentence of 7 years under Section 376 I.P.C. In the case in hand the victim was raped and at a later stage she was given assurance after being pregnant that the accused-appellant would marry with her even that promise was not maintained by the appellant. The birth of a child was given by the unmarried girl i.e. victim. The whole life of the victim have become a shame. In these circumstances the punishment of seven years awarded by the trial court, requires no interference by this Court. In view of the above, I do not find any force in the contention of the learned counsel for the accused-appellant. 20. I have gone through the entire evidence with the help of the learned counsel for the parties. The trial court has rightly convicted the accused/appellant. I do not find any ground to interfere with the finding recorded by the trial court. After scrutinizing the evidence of the prosecution, I find the evidence of the prosecution witnesses reliable, credible and cogent. 14 21. In view of the foregoing discussions and on the basis of the aforesaid evidence, I am of view that the prosecution has been able to establish the guilt beyond reasonable doubt against the accused/appellant. I find that the learned trial court has rightly convicted and sentenced the accused/appellant. The judgment and order dated 26.05.2006, passed by learned Sessions Judge, Pithoragarh in Sessions Trial No. 2 of 2006 is hereby confirmed. The appeal is liable to be dismissed and is hereby dismissed. 22. Let the lower court record be sent back to the court concerned for compliance. (J.C.S. Rawat, J.) Dated 3rd June, 2009 Shiv/Bhaskar