HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Jail Appeal No.64 of 2005 Rajendra Singh S/o Sher Singh R/o village Charson, Patwari Shetra Wajuila, Tehsil & District Bageshwar. ……Appellant Versus State ……Respondent Mr. D.C.S. Rawat, Amicus Curiae for the appellant. Mr. Nandan Arya, Asstt. Government Advocate for the State. Hon’ble J. C. S. Rawat, J. This is a criminal jail appeal preferred against the judgment and order dated 27.06.2003 passed by the Sessions Judge, Bageshwar in ST No. 12/2002, State Vs. Rajendra Singh S/o Sher Singh, whereby the Sessions Judge has convicted the accused-appellant under Section 376 I.P.C and sentenced him to undergo RI for ten years and to pay a fine of rupees ten thousand. In default of payment of fine, the appellant shall further undergo S.I. for a period of ten months. 2. The brief facts of the case in hand are that on 17.3.2002, the prosecutrix alongwith Pappu, Rajesh PW4 and the accused-appellant, had gone to graze the cattle at Charson Tok, near the Church where she had been allegedly raped by the accused-appellant. On the next day of the incident, Smt. Kamla Devi PW5 informed the mother of the prosecutrix that the accused-appellant Rajendra Singh had forcibly made sexual intercourse with the prosecutrix on the previous day, when the prosecutrix had gone at the Church for grazing the cattle. Thereupon, the mother of the prosecutrix enquired from her daughter about the incident, upon which, the prosecutrix narrated the entire incident to her mother. Thereafter, the mother of the prosecutrix informed her husband Ganesh Nath PW3, the informant of the case on phone about the incident. Ganesh Nath PW3, the informant came to his house and enquired from the prosecutrix with regard to the incident. The prosecutrix narrated the entire incident that the accused-appellant Rajendra Singh had forcibly made sexual intercourse with her and she was also threatened not to tell this fact to any other person. Thereafter, a report was lodged by Ganesh Nath PW3, the father of the prosecutrix to this effect and the case was registered against the accused-appellant. The police visited the place of incident and prepared the site plan. During the investigation, the prosecutrix was medically examined by the medical officer of District Civil Hospital, Bageshwar. The investigating officer recorded the statement of the witnesses and after completing the investigation, he submitted the chargesheet against the accused-appellant under Sections 376 and 511 I.P.C. 3. After submission of the chargesheet, the accused appellant was committed to the court of Sessions Judge, Bageshwar for trial and the trial court framed charge against the accused appellant under Section 376 I.P.C. The accused appellant denied the charge levelled against him and claimed trial. 4. In order to prove its case, the prosecution examined the prosecutrix as PW1. Rajesh PW4 who was claimed to be the eye-witness of the incident. Smt. Pushpa Devi PW2 is the mother of the prosecutrix and Ganesh Nath PW3, the informant is the father of the prosecutrix. Dr. D.S. Nei PW6 who conducted X-ray of the prosecutrix on 20.3.02 in the Civil Hospital, Almora and proved his report as Ex. Ka 2 before the court. He also proved the X-ray Plate report, Ex.2. The prosecution also examined the Investigating Officer Praveen Singh as PW7. 5. In the statement recorded u/s 313 Cr.P.C., the accused-appellant Rajendra Singh denied all the averments made in the evidence and stated that he had been falsely implicated in this case due to the enmity. The accused- appellant had not adduced any defence evidence in support of his case. 6. The learned trial court after appreciation of the evidence found the appellant guilty of the offence and, convicted and sentenced the appellant as mentioned above. 7. I have heard learned counsel for the parties. I have also gone through the evidence and material on record. 8. At the outset, it needs to be mentioned here that when the offence of rape was committed upon the prosecutrix by the accused-appellant, it was not only an offence committed against the girl but also an offence against the whole society, in the sense that the reflection of the attitude or the indifference of the society towards the girl would become vulnerable. The rapist not only violates the victim’s privacy and personal integrity but inevitably causes serious psychological as well as physical harm to her in the process. Rape is not merely a physical assault but it is often destructive of the whole personality of the victim. A murderer destroys the physical body of the victim but a rapist degrades the very sole of the helpless victim. The courts, therefore, shoulder a greater responsibility while trying an accused on the charge of rape. The courts must deal with such cases with sensitivity. The courts should examine the broader probabilities of the case and not to get swayed by the minor contradictions or insignificant variations in the statement of the prosecutrix which are not fatal in nature to throughout, if otherwise, the prosecution evidence is found to be reliable. It is also settled position of law that if the evidence of the prosecutrix inspires confidence, it must be relied upon without seeking a corroboration of her statement in material particulars. When the courts found that the implicit reliance cannot be placed in the testimony of the prosecutrix, it may look for corroborative piece of evidence which may lay assurance to her testimony. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial court must abide to its responsibility and be sensitive while dealing with the cases involved with sexual molestation. 9. In the case in hand, the prosecutrix PW1 was examined before the court. She has categorically stated in her evidence that on 17.3.02, she had gone to graze her cattle near the Church alongwith Pappu, Rajesh PW4 and the appellant. During the course of the day, the appellant sent Rajesh PW4 to bring ‘bidi’ for him and on finding the prosecutrix alone, the appellant committed rape upon her. She has stated in her evidence that at the time of the incident, the appellant put off his clothes as well as the clothes of the prosecutrix and made her to lay on the ground, thereafter, he tried to commit forcible sexual intercourse with the prosecutrix. Meanwhile, Rajesh PW4, who had gone to bring ‘bidi’ for the appellant, came there and saw the entire incident. On seeing Rajesh PW4, the appellant immediately put on his clothes. The prosecutrix was weeping at that time. The appellant threatened her not to tell this fact to anyone and if she tried to do so, he would kill her. Rajesh PW4 was also threatened by the accused- appellant. Later on, the same day, when Smt. Pushpa Devi PW2, the mother of the prosecutrix went in search of her daughter, she came near the place of incident to take her daughter, but the prosecutrix did not narrate the incident to her mother out of fear. The prosecutrix in her evidence has stated that she was aged about 8 years at the time of incident and was a student of class IV. Rajesh PW4 who was present at the place of occurrence, narrated the entire incident to her aunt Smt. Kamla Devi PW5. On the next day, Smt. Kamla Devi PW5 told Smt. Pushpa Devi PW2, the mother of the prosecutrix that the appellant had forcibly made sexual intercourse with the prosecutrix. When Smt. Pushpa Devi PW2 verified this fact from the prosecutrix, she narrated the entire incident and testified the fact that she had been ravished by the appellant. Thus, the evidence Rajesh PW4 entirely corroborates the incident, as how the accused-appellant tried to commit forcible sexual intercourse upon the prosecutrix. Both the witnesses had narrated the incident. After considering the entire evidence in toto, the trial court found their evidence to be implicitly truthful and reliable, though the presence of the eyewitness Rajesh PW4 was attempted to be shown as doubtful, as he was related to the prosecutrix. The presence of Rajesh PW4 at the place of occurrence was explained by the prosecutrix and her evidence cannot be thrown out as un-reliable or tainted only because the eyewitness is related to the prosecutrix. The manner of sexual assault, as described by the prosecutrix has been corroborated by the evidence of Rajesh PW4. Smt. Kamla Devi PW5 has stated in her evidence that she came to know about the incident from her nephew Rajesh PW4 and thereupon on the next day, she informed Smt. Pushpa Devi PW2, the mother of the prosecutrix with regard to the commission of rape upon the prosecutrix. I have gone through the entire oral evidence and found that whatever stated by way of clarification and that cannot be termed to be an improvement or contradiction. 10. It was pointed out by the learned Amicus Curiae that the leaves were collected and placed on the ground on which the prosecutrix was grounded by the appellant. This fact was not narrated in the statement u/s 161 Cr.P.C. during the investigation by the witnesses to the Investigating Officer; the entire evidence of the prosecutrix PW1 and the witness Rajesh PW4 could not be believed due to the above improvements made on their versions to suit the prosecution case. I have gone through the entire evidence and noticed that there was only marginal variation as indicated above by the learned Amicus Curiae in the statement recorded under Section 161 of the Code of Criminal Procedure Code and the testimony given in the court. This variation cannot be dubbed as improvement made with any sinister motive. This fact has been made by the witnesses to clarify the evidence. I have scrutinized the so-called above improvement from that angle and I am satisfied that the eyewitnesses have basically remained at the same position what they have stated during the course of the statement recorded under Section 161 Cr.P.C. The defence has cross-examined the witnesses at length but nothing could be elicited from their evidence to disbelieve the testimonies of the witnesses. 11. The learned Amicus Curiae further contended that the prosecutrix had not stated about the incident to her mother. It would have been the endeavour of the prosecutrix to narrate the entire incident to her mother as soon as she met her. The learned A.G.A for the State refuted the contention. It is also in the evidence that the accused-appellant had threatened her not to tell the incident to any other person. It is also not disputed that the prosecutrix was about 8 years of age and she was minor. There is no set of rules of a normal conduct. Different people behave and act differently in different situations. The human behaviour depends upon the facts and circumstances of each case. How a person would react and behave in a particular situation, can never be predicted. Thus, it cannot be said that the non-disclosure of the incident to her mother by the prosecutrix is fatal to the prosecution. I do not find any force in the said contention. 12. The learned Amicus Curiae for the appellant on the basis of the statement of Dr. D.S. Nei PW6, contended that the age of the prosecutrix was above 12 years. The learned A.G.A. for the State refuted the contention. The learned Amicus Curiae tried to build up his argument on the basis of the satement of Dr. D.S. Nei PW6 wherein the doctor has stated that the prosecturix could be in the age group of 9-11 years at the time of the incident. The doctor has further stated in his evidence that the age of the prosecutrix might be four years above or below the age ascertained by him on the basis of her X-ray report. On the basis of the above opinion of the doctor, the learned Amicus Curiae tried to emphasis that the prosecutrix was more than 12 years of age. Moreover, the prosecutrix as well as Smt. Pushpa Devi PW2 has categorically stated in their evidence that the age of the prosecutrix was 8 years. During their cross- examination, the said fact had not been seriously disputed by the defence counsel. Even if it is considered for a while that the prosecutrix is more than 12 years of age, she would remain a minor girl. The parents of the prosecutrix had categorically stated that the age of the girl was about 8 years and this fact has been corroborated by the medical evidence. The narration of the age by the parents is the substantive piece of evidence and it is corroborated by the medical evidence also. The evidence given by the parents with regard to the age of the prosecutrix had not been seriously challenged during the course of cross-examination. Now, it cannot be concluded that the prosecutrix was more than 12 years of age. 13. The learned Amicus Curiae further contended that there was enmity between the families of the prosecutrix and the appellant; there was a dispute in connection with a telephonic call with the brother of the appellant Harish about a year ago; and due to enmity the appellant has been falsely implicated in the case. The learned A.G.A for the State refuted the contention and contended that there is no case of the defence that due to this enmity, the offence was committed and it continued till the time of the incident. It is further evident that if there was any enmity, there was no question of going of the appellant with the prosecutrix to the Church. The defence has not challenged the factum in the cross-examination that the appellant had gone to the place of incident alongwith the prosecutrix and Rajesh PW4. The enmity which was alleged to have arisen between them, is said to have taken place one year ago with the brother of the appellant Harish. If the family of the prosecutrix had an enmity with the appellant, they could have implicated the appellant immediately after the incident. It is also pertinent to mention here that the family of the prosecutrix would not like to falsely implicate the accused-appellant for such a heinous crime like rape that, too, committed on their own daughter. Such implication would not only cause harm to the appellant, it would also cause harm to the prosecutrix and brought humiliation for her entire life. Thus, I do not find any force in the contention raised by the learned Amicus Curiae for the appellant. 14. The learned Amicus Curiae for the appellant further contended that assuming the evidence of the prosecutrix PW1 and Rajesh PW4 is found credible and cogent by the Court, the accused-appellant could not be convicted under Section 376 I.P.C, instead he should have been convicted under Section 376 read with 511 I.P.C because the medical evidence doesn’t fully corroborate the factum of rape. The learned A.G.A for the State refuted the contention. Perusal of the evidence of Dr. D.S. Nei PW6 as well as the medical report reveal that act of rape was not completed. According to the ocular testimonies of the prosecutrix as well as of Rajesh PW4, the accused-appellant put off his pant and tried to insert his male sexual organ inside her private part. She is minor girl of 8 years and the appellant was aged about 24 years and if such an act had been completed, the hymen would not have been intact. It would have been torn and it would have bleeding also. The doctor medically examined the prosecutrix on 18.3.2002 at Civil Hospital, Bageshwar and prepared the medical repot which is Ex. Ka 8, wherein the doctor has opined as under: “ Breast are not developed. No scar over abdomen, Small abrasion over thigh. Pubic hair are absent. Labia majora & minora not well developed. Making apart labia minora, hymen intact. No tear and no bruises. No bleeding from perineal region or from vagina. P/V not done because of hymen intact. Girl send to radiological examination for confirmation of age, X-ray of Elbow joint & Wrist joint.” On the basis of above findings, the doctor opined that the prosecutrix was only attempted to be raped. On the basis of the X-ray report, Ex. Ka 2 prepared on 20.3.02, Dr. D.S. Nei PW6 opined that age of the prosecutrix was about 9 to 11 years. The proof of sexual intercourse on the prosecutrix has not been corroborated by the medical evidence. 15. It is quite clear from the evidence also that if the commission of the offence had been committed, the girl would have been un-conscious at the time of the offence, because she was minor at the time of commission of the offence and her condition would not have been as stated by the prosecution. In the case of State of Maharashtra Vs. Rajendra Jawanmal Gandhi reported in 1997 Cr.L.J. (SC) page 4657, the prosecutrix was a student of IV class and she was below 12 years of age. When she was coming from her private tuition at about 9.30 p.m. on the date of incident on a rickshaw, the accused-appellant caught hold of her and pushed her inside the maruti car which was standing there. The accused appellant pulled down his pant and the ‘nicker’ of the girl as well. The girl tried to resist this act of the accused-appellant. The accused-appellant tried to press his male sex organ inside her private part. When the girl cried, the accused-appellant was discharged and the girl was released by the appellant. She immediately came to her house. The parents of the girl examined her private part and the garments and noticed the sticky substance (semen) on some part of the midi-frock as well as on the nicker. There was redness on her private part. In the facts and circumstances of the case, the Hon’ble Apex Court has held the appellant guilty under Section 376 readwith 511 and held in Paras 22 and 23 as under: “22. ………………..We think that the High Court is right in its approach that from the medical evidence and the statement of the prosecutrix and attendant circumstances, it cannot be said that there was penetration and there was, therefore, no sexual intercourse though the ingredients of attempt to commit offence of rape are there…………………………….” “23. …………... He pressed his male organ on the private part of the girl. But since he discharged, he could not penetrate and was unable to complete the offence of rape. However, it is clear that he did attempt to commit rape.” 16. In the instant case, the medical evidence did not support the factum that sexual intercourse was actually committed upon the prosecutrix. It was merely an attempt to commit the sexual intercourse with the victim. In view of the above, I find that this is a case where the learned trial court has erred in holding that the accused-appellant guilty under Section 376 I.P.C for committing rape upon the victim. I am of the view that the accused-appellant is guilty under Section 376 readwith Section 511 I.P.C. instead of Section 376 I.P.C. 17. The learned Amicus Curiae further contended that the sentence awarded by the trial court did not commensurate with the offence, as such, a lenient view may be taken to award the sentence to the accused-appellant. It is pertinent to mention here that in view of the amendment of the Indian Penal Code in the year 1983, if a rape is committed upon a girl below the age of 12 years, the minimum sentence to be awarded is 10 years. The trial court convicted the accused- appellant under Section 376 I.P.C, as such, the sentence of ten years awarded under Section 376 was appropriate. In the preceding paragraph, I have held that the accused- appellant is actually guilty under Section 376 readwith Section 511 I.P.C instead of 376 I.P.C. So, now, I have to examine what should be the appropriate sentence in this case under Section 376 readwith Section 511 I.P.C. Section 511 I.P.C reads as follows: “Whoever attempts to commit an offence where no express provision is made under the Indian Penal Code, the sentence would be of any description provided for the offence, for a term which may extend to one-half of the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment provided for the offence.” 18. In the case of Paras Ram Vs. State of Himachal Pradesh reported in ACC 2000 (SC) Volume 41 Page 878, the Hon’ble Apex Court convicted the accused under Section 376 readwith Section 511 and held in Para 5 as follows: “5. Regarding the sentence, the High Court imposed a sentence of rigorous imprisonment for 10 years on the appellant. Had the rape been committed on Radha, the appellant could perhaps have pleaded for imposing the sentence of imprisonment for 10 years. Now since the offence is only one of attempted rape, we are of the view that interest of justice will be served by giving half of the said period proscribed for rape.” 19. In the case of State of Maharashtra Vs. Rajendra Jawanmal Gandhi reported in 1997 Cr.L.J. (SC) page 4657, the Hon’ble Apex Court also held in para 38 as under: “38. Considering the whole aspect of the matter, we are of the opinion that sentence of five years rigorous imprisonment and fine of Rs. 40,000/- will meet the ends of justice. The fine has already been paid, out of that Rs. 25,000/- has been withdrawn by the father of the girl as per direction of the High court which we uphold. We, therefore, allow the appeal of the State convert the conviction of the accused-respondent from under Section 354, IPC to that under Section 376/511, IPC and sentence him as aforesaid. Since fine has already been paid, no sentence of imprisonment in lieu of payment thereof need be imposed. The conviction and sentence of the accused under Section 57 of the Bombay Children Act as ordered by the High Court shall, however, stand. The sentences shall run concurrently. In this view of the matter, appeal filed by the accused is dismissed. The accused will be taken into custody and would undergo the remaining portion of his sentence.” 20. In the case in hand, the offence of attempt to rape has been made out against the accused-appellant. Keeping in view the above dicta delivered by the Hon’ble Apex Court, I am of the view that the ends of justice will be served, if the sentence of five years R.I. under Section 376 read with 511 I.P.C is awarded to the appellant. 21. Thus, the appeal is partly allowed. The appellant is convicted under Section 376 readwith 511 I.P.C. and is sentenced to undergo R.I. for a period of five years instead of ten years under Section 376 I.P.C. The appellant shall also pay a fine of rupees ten thousand as awarded by the trial court. In default of the payment of the fine, he shall further undergo imprisonment as awarded by the trial court. The impugned judgment of the trial court is modified to the above extent accordingly. 22. Let the lower court record be sent back to the court concerned. The compliance report be submitted within a period of three months. (J.C.S. RAWAT, J.) Dated 25.03.2008 V.K.