Full Judgment Text
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CASE NO.:
Appeal (crl.) 589 of 1999
PETITIONER:
State of Himachal Pradesh
RESPONDENT:
Shree Kant Shekari
DATE OF JUDGMENT: 13/09/2004
BENCH:
ARIJIT PASAYAT & PRAKASH PRABHAKAR NAOLEKAR
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J.
The factual matrix of this appeal is unfortunately related to
sordid and obnoxious incidents where the respondent (hereinafter
referred to as ’accused’) who at the relevant point of time was working
as a teacher gratified his animated passions and sexual pleasures by
having carnal knowledge of his student, a girl of tender age. The
result was that the sacred relation of teacher and his pupil was
besmirched. As observed by this Court in Madan Gopal Kakkad v. Narain
Dubey and Anr. (1992 (2) Crimes 168) such offenders are menace to the
civilized society.
The State of Himachal Pradesh is in appeal against the judgment
of a learned Single Judge of the Himachal Pradesh High Court directing
acquittal of the accused who faced trial for alleged commission of
offences punishable under Sections 376 and 506 of the Indian Penal
Code, 1860 (in short the ’IPC’). The trial Court i.e. the Sessions
Court, Kinnaur had convicted and sentenced him to undergo imprisonment
for 7 years and a fine of Rs.2,000/- for the first offence and one year
and a fine of Rs.2,000/- for the second offence. In addition, the
accused was directed to pay compensation of Rs.10,000/- to the
prosecutrix.
Sexual violence apart from being a dehumanizing act is an
unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blo
w to her supreme honour and offends her self-esteem and dignity \026 it degrades and humilia
tes the victim and where the victim is a helpless innocent child or a minor, it leaves
behind a traumatic experience. A rapist not only causes physical
injuries but more indelibly leaves a scar on the most cherished
possession of a woman i.e. her dignity, honour, reputation and not the
least her chastity. Rape is not only a crime against the person of a
woman, it is a crime against the entire society. It destroys, as noted
by this Court in Shri Bodhisattwa Gautam v. Miss Subhra Chakraborty
(AIR 1996 SC 922), the entire psychology of a woman and pushes her into
deep emotional crisis. It is a crime against basic human rights, and is
also violative of the victim’s most cherished of the Fundamental
Rights, namely, the Right to Life contained in Article 21 of the
Constitution of India, 1950 (in short the ’Constitution’) The Courts
are, therefore, expected to deal with cases of sexual crime against
women with utmost sensitivity. Such cases need to be dealt with sternly
and severely. A socially sensitized judge, in our opinion, is a better
statutory armour in cases of crime against women than long clauses of
penal provisions, containing complex exceptions and provisos.
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We do not propose to mention name of the victim. Section 228-A of
IPC makes disclosure of identity of victim of certain offences
punishable. Printing or publishing name of any matter which may make
known the identity of any person against whom an offence under Sections
376, 376-A, 376-B, 376-C or 376-D is alleged or found to have been
committed can be punished. True it is, the restriction, does not relate
to printing or publication of judgment by High Court or Supreme Court.
But keeping in view the social object of preventing social
victimization or ostracism of the victim of a sexual offence for which
Section 228-A has been enacted, it would be appropriate that in the
judgments, be it of this Court, High Court or lower Court, the name of
the victim should not be indicated. We have chosen to describe her as
’victim’ in the judgment. (See State of Karnataka v. Puttaraja (2003
(8) Supreme 364)
Prosecution version as unfolded during trial is essentially as
follows:
On 28.5.1993 the accused Shree Kant asked the victim who was his
student of class 4 to wait after school hours for solving a question,
while he allowed other students to go. The victim remained in the class
room when the accused bolted the door from inside and made the victim
to lie on the floor and forcibly committed sexual intercourse with her.
She kept refusing, wept and cried. However, since the doors of the
room were closed, none could hear her cries. He then threatened her
that if she dared to narrate the incident to anyone, he would throw her
into the river. Being threatened she did not disclose this fact to any
person.
Few days after the first incident the accused had taken her and
three other students to Chuha Bagh for cleaning his room. The accused
sent the other three students out of the room and kept her inside the
room. He bolted the door of the room and made her lie on the floor and
committed sexual intercourse with her again.
In September, 1993 the victim stopped going to school. As she
regularly complained of stomach ache, her mother took her to Rampur
Hospital where after examination by Doctor (PW-1), mother of the victim
learnt that she was pregnant. On enquiry by her mother, the victim
disclosed to her mother that her conception was due to sexual
intercourse by the accused. After returning to the village, mother of
the victim discussed the matter with her husband and then disclosed the
incident to Krishna, a member of Gram Panchayat who suggested to report
the matter to the police.
On 20.11.1993, the victim lodged a report at police station,
Rampur. On the basis of such report a case under Section 376 and 506
IPC was registered vide FIR No.365/1993 (Ex.PW3/A).
During the course of investigation the victim (PW-3) was
medically examined on 20.11.1993 at 4.00 p.m. Such medical examination
was carried out by doctor (PW-1) of Refural Hospital, Rampur. In her
opinion her period of gestation was 28 weeks.
On the completion of investigation, charge sheet was placed and
matter was taken up for trial. Twelve witnesses were examined to
further the prosecution version. The key witnesses were the victim
herself who was examined as PW-3, her mother (PW-4), father (PW-5) and
other witnesses who had spoken about the age of the victim. Placing
reliance on the evidence of the victim the trial Court found the
accused guilty, convicted and sentenced him as aforesaid.
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The accused questioned his conviction and sentence imposed before
the High Court. A learned Single Judge by the impugned judgment set
aside the judgment of the trial Court and directed acquittal.
Learned counsel for the appellant-State submitted that the High
Court has failed to analyse the factual and the legal position in the
proper perspective and has kept out of consideration relevant matters
and drawn the presumptuous conclusions and, therefore, the judgment is
to be set aside. There is no appearance on behalf of the accused in
spite of service of notice.
The factors which seem to have weighed with the High Court are
(i) the age of the victim, which according to the High Court was more
than 16 years; (ii) no evidence has been placed by the prosecution to
show that the victim had not consented to the act; and (iii) the time
of alleged rape as given by the victim and her mother was
improbabilised by the medical evidence. A particular reference was made
to the fact that a child was born on 10.4.1979 and if the alleged rape
has been committed during the period indicated by the victim and her
mother the same would have been altogether different periods. The delay
in lodging the first information report was also highlighted to attach
vulnerability to the prosecution case.
We shall first deal with the question of age. The radiological
test indicated age of the victim between 15 to 16= years. The school
records were produced to establish that her date of birth was
10.4.1979. The relevant documents are Ex.PW6/A to PW6/C. The High Court
was of the view that these documents were not sufficient to establish
age of the victim because there was another document Ex.PW7/A which
according to the High Court did not relate to the victim. Merely
because one document which was produced by the prosecution did not,
according to the High Court relate to the victim that was not
sufficient to ignore the evidentiary value of Ex.PW6/A to Ex.PW6/C.
These were records regarding admission of the victim to the school and
her period of study. These documents unerringly prove that the date of
birth of the victim as per official records was 10.4.1979. Therefore,
on the date of occurrence and even when the FIR was lodged on
20.11.1993 she was about 14 years of age. Therefore, the question of
consent was really of no consequence.
Even otherwise the High Court seems to have fallen in grave error
in coming to the conclusion that the victim has not shown that the act
was not done with her consent. It was not for the victim to show that
there was no consent. Factually also the conclusion is erroneous right
from the beginning that is from the stage when the FIR was lodged and
in her evidence there was a categorical statement that the rape was
forcibly done notwithstanding protest by the victim. The High Court was
therefore wrong in putting burden on the victim to show that there was
no consent. The question of consent is really a matter of defence by
the accused and it was for him to place materials to show that there
was consent. It is significant to note that during cross examination
and the statement recorded under Section 313 of the Code of Criminal
Procedure, 1973 (in short the ’Code’) plea of consent was not taken or
pleaded. In fact in the statement under Section 313 of the Code the
plea was complete denial and false implication.
The High Court has also committed error in making hypothetical
calculations regarding dates to doubt the testimony of the victim and
her mother. What the witnesses had stated were approximate dates or
periods and not that they were to be reckoned with exactitude. The
victim is not an intelligent girl as the evidence on record shows. She
passed out Class 3 on the third attempt. Her mother, a rustic woman is
practically illiterate. To examine their evidence with microscopic
approach would be an insult to justice oriented judicial system. It
would be totally detached from the realities of life.
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The High Court has also disbelieved the prosecution version for
the so-called delay in lodging the FIR. The prosecution has not only
explained the reasons but also led cogent evidence to substantiate the
stand as to why there was delay. The trial Court in fact analysed the
position in great detail and had come to a right conclusion that the
reasons for the delay in lodging the FIR have been clearly explained.
The unusual circumstances satisfactorily explained the delay in
lodging of the first information report. In any event, delay per se is
not a mitigating circumstance for the accused when accusations of rape
are involved. Delay in lodging first information report cannot be used
as a ritualistic formula for discarding prosecution case and doubting
its authenticity. It only puts the court on guard to search for and
consider if any explanation has been offered for the delay. Once it is
offered, the Court is to only see whether it is satisfactory or not.
In a case if the prosecution fails to satisfactory explain the delay
and there is possibility of embellishment or exaggeration in the
prosecution version on account of such delay, it is a relevant factor.
On the other hand satisfactory explanation of the delay is weighty
enough to reject the plea of false implication or vulnerability of
prosecution case. As the factual scenario shows, the victim was
totally unaware of the catastrophe which had befallen to her. That
being so, the mere delay in lodging of first information report does
not in any way render prosecution version brittle. These aspects were
highlighted in Tulshidas Kanolkar v. State of Goa (2003 (8) SCC 590).
The High Court by hypothetical calculations has concluded that
there were discrepancies and has come to the presumptuous conclusion on
mere surmises and conjectures that there was unexplained delay in
lodging the FIR. In view of the above, conclusions of the High Court
are not to be sustained.
It was also pleaded by the accused before the High Court which
seems to have weighed regarding absence of any corroboration to the
victim’s evidence.
It is well settled that a prosecutrix complaining of having been
a victim of the 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 material particulars. She stands at a higher pedestal
than an injured witness. In the latter case, there is injury on the
physical form, while in the former it is physical as well as
psychological and emotional. However, if the court on facts finds it
difficult to accept the version of the prosecutrix on its face value,
it may search for evidence, direct or circumstantial, which would lend
assurance to her testimony. Assurance, short of corroboration as
understood in the context of an accomplice would suffice.
The victim has categorically stated that she was afraid of the
accused who was her teacher and the threats given by him to the extent
that she would be put to physical harm if she spoke about the incident
to anybody. The stand of the accused that he was falsely implicated
because brother of the victim was not successful in the examination and
therefore, his family had grudge against the accused is too swallow to
be accepted. The incident which involved the accused and mother and
brother of the victim took place about a decade back. There is not even
remote possibility of the same being the foundation for false
implication. In any event no girl of a tender age and her parents would
like to jeopardize her entire future by falsely implicating a person
alleging forcible sexual intercourse.
Looked at from any angle, judgment of the High Court is
indefensible and the same is accordingly set aside. The order of the
trial Court is restored. Accused shall surrender to custody forthwith
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to serve remainder of sentence. The appeal is allowed.