Man Mohan Singh Gujral, C.J.
1. Padam Bahadur Darjee was tried for an offence under Section 376, Indian Penal Code and having been convicted, was sentenced to imprisonment for life. Being aggrieved against his conviction and sundews. One has come up in appeal to this Court against the judgment and order of the Sessions Court dated 31st of December 1980
2. The case of the prosecution is that on 4th of August, 1980 Doma Sherpani. aged about 14-15 years, was employed by the appellant to work in his house and to look after his child. At that time the accused was living alone and his wife was away to Singtam, on 9th of August 1980. at night, when the prosecutrix was sleeping near the child the accused came to her bed and committed rape on her. The occurrence was alleged to have been witnessed by a nephew of the accused who was a young boy of 13 years. Next day, the prosecutrix finding opportunity escaped from his house and went to her brother Passang Sherpa and disclosed the incident to him. A complaint was then got drafted from Shri N.B. Pradha, Vendor, and was presented at the Police Station on 11th of August, 1980, on the basis of which a case was registered. During the investigation, the prosecutrix was medically examined. The accused was arrested on the 12th of August, 1980 and was also got medically examined. Ultimately, chargesheet was framed which led to the conviction of the accused.
3. When examined under Section 342, Code of Criminal Procedure the accused admitted that the prosecutrix started working with him from 4th of August, 1980 but denied the suggestion that1 he had enticed her to his house. In fact,1 he' added that, her brother had brought the prosecutrix to his hottest for working with him. Regarding the incident, the allegations were totally denied and he asserted that it was a false case. He further took up the plea that his wife and brother-in-law were present on the day of the occurrence and that he had been sick for some time pasty and that he had become impotent. To establish this plea, the accused examined his wife Baby Tamang and his brother-in-law Sarin Tamang in defence.
4. Baby Tamang, who appeared as D. W. 1 deposed that the accused was her husband and they had employed 4he prosecutrix on payment of Rs. 20/-per month for work in the house. She also stated that the prosecutrix informed them that she had been working in Ladenla and Bony Hotel and that she was being paid Rs. 250/- per month, for being used for immoral purposes. It is also in her statement that 1he accused was sick and become impotent for the last one and a half years. To discredit the prosecutrix's statement, she added that on Utah of August, 1980 the brother of the prosecutrix came to their house and demanded Rs. 100/- for his sister but as she did not give the money, he threatened to teach them a lesson. The statement of this witness is primarily of a negative character and even otherwise is not worthy of belief. Her steitement shows that she had eloped with the accused and had married him.. Her deep interest in the welfare of the accused is obvious and in this situation her statement will have to be subjected to careful scrutiny. The evidence of this witness showing that the prosecutrix was of loose character, is belied by the medical evidence as it has not been brought out in the statement of Dr. L.K. Manavalan that Doma Sherpani was used to sexual intercourse. The plea that the accused was impotent has been set up as a false defence. The doctor, who had examined the accused, did not find him impotent. Moreover, no such suggestion was put to the doctor. This plea is consequently an afterthought and needs no serious consideration. On the other hand, from the nature of injuries on the private par's of Doma Sherpani it appears that she had been subjected to sexual intercourse for the first time during the occurrence. Consequently, on a careful scrutiny of the testimony of Baby Tamans, we hold that she is not worthy of belief as she was not a trustful witness and had a strong motive to set up a false plea merely to save her husband.
5. D. W. 2 Swaran Tamang is the brother of the wife of the accused. This witness has also given the same version as has been given by Baby Tamang as to how the prosecutrix came to be employed in the house and about her telling Baby Tamang that she had been criminally assaulted by some boys not Schley Busty. Regarding the incident, he also supported the statement of his sister that she was awake the whole night and that the accused, was drunk, had gone to sleep in the night and that not had happened. He has further corroborated the version of his sister that the brother of the prosecutrix had come and demanded Rs. 100/- and that when his demand was refused he threatened her and went away. It is further in the evidence of this witness that the ncrused had been suffering from some disease for the last one and a half years and had become impotent.
6. There is no denying the fact that this witness is closely related to the accused and because of this relationship ho would be interested in supporting the version of the appellant. The necessity of subjecting the evidence of this witness to a close scrutiny is, therefore, obvious. Regarding his version that the accused was not capable of performing the sexual act, it is clearly in the medical evidence of Dr. P. K. Guptia that on (examination he did not find any abnormality or defect in the accused which could prevent him from having sexual intercourse. In cross-examination he firmly asserted that during the examination of the accused he had observed that he had the power of erection. There is no definite suggestion given to the doctor that the accused was impotent.
Thus, there is a clear attempt by this witness to support the false defence of the accused. Even otherwise, his story appears to be somewhat unnatural. The fact that his sister was suffering from headache and was somewhat uncomfortable could not have prevented Swaran Tamang from going to sleep. It is a matter of common experience that young boys have generally sound sleep. It is, therefore, not possible to accept that he could have remained awake during the whole night. In fact, it would be highly probable that he would be fast asleep throughout the nigh1; and may not have heard the noise raised by the prosecutrix. No doubt, the presence of his witness is admitted by the prosecutrix but she had clearly stated that he was fascicles at the time of the incidents For this and other reasons mentioned above, we are unable to accept the evidence of this wi ness. In arriving at this conclusion we have also been influenced by the fact that he falsely supported the story oJ attempted blackmail by the brother of the prosecutrix. In this connection it would suffice to mention that even a suggestion regarding this matter was not made to Passang Sherpa during cross-examination.
7. The case of the prosecution mainly rests on the evidence of the prosecutrix, as corroborated by the medical evidence and the testimony of her brother Passang Sherpa and of Narayan Sharma. There is also evidence regarding the recovery of the blood-stained bed sheet and the quilt cover. But as there is no report from the serjologist, no support would be available from these recoveries to the case of the prosecution.
8. That the prosecutrix was subject-ed to forcible sexual intercourse is clear from the evidence of Dr. L. K. Mana-valan who examined her on 12th of August. 1980. He found a bruise on the left thigh inner aspect. He also found bruise on vulva and external genitalia and laceration on vaginal introituses in the posterior aspect. Hymen was found partially torn. Though it was not specifically put to the doctor that the prosecutrix was subjected to the sexual in recourse, but from the nature of the injuries found on the private parts of the prosecurix there is no manner of doubt that she had been recently subjected to sexual intercourse. The medical evidence, therefore, fully corroborates the story of the prosecutrix.
9. Doma Sherpani was X-Rayed by Dr. S.C. Jain on 12th of August, 1980 and on the basis of the X-Ray skiagrams which were taken by him, he opined that the prosecutrix was above 13 years and below 15 years of age. There is no reason to doubt the testimony of this witness as it is based on the date obtained from X-Ray examination. It was suggested to him that there could be some error in the assessment made by him but he denied the suggestion and added that while assessing the age to be between 13 and 15 he has already given allowance for any margin of error. On the basis of the evidence of the witness we are, therefore, of the view that the prosecutrix was below 15 years of age at the relevant time.
10. Regarding the incident, the statement of Doma Sherpani is very simple and straightforward. According to her, she had started working in the house of the accused. about four days prior to the incident. She was sleeping along with the child in the night when the accrued came and criminally assaulted her. She raised some noise but that did not prevent the accused from carrying out his designs. It is further in her evidence that next morning she escaped from the house of the accused and informed her brother about the occurrence. It is also in her statement that she narrated the incident to the Petition-Vendor and she then took the typed material to the Police Station.
11. This witness was subjected to lengthy cross-examination but no material whatsoever has been brought out which would cast any doubt on her testimony. In fact, the admission that the brother-in-law of the accused was also present in the house on the day of the occurrence, would clearly bring out that she has high regard for truth. It may also be added that in a way the criminal assault by the accused on this witness is admitted.
12. It was suggested to her that she had enjoyed the sexual intercourse with the accused and had not cried. Though the suggestion was denied but the implication is clear that the commission of the act was accepted on behalf of the appellant. Leaving this apart, no reason has been brought out or has been urged before us as to why the testimony of this witness be not accepted. Being a domestic servant of the accused she would be the last person to give false evidence against, him. There is no suggestion that she or her brother had any animus against the appellant and had any other motive to depose falsely. She has narrated the occurrence in a very forthright manner and there is a ring of truth about her statement. We have, therefore, no hesitation in accepting her testimony as wholly truthful and in acting upon it.
13. Though there is no legal compulsion that the evidence of the prosecutrix is to be corroborated before it can be accepted and the law only enioins that the requirement 6f corroboration should be present to the mind of a Judge, but in this case we find that there iscorroboratoon available to the testimony of Doma -Sherpani. Firstly, as already narrated, there is a medical evidence to support the story of forcible assault. Secondly, we have the evidence of Passang Sherpa who stated that the prosecutrix came to him and complained about the conduct of the accused. He then took her to the Petition-Writer and got her version inscribed by him. This report was given to the police at the Police Station. The stafement of this witness regarding what had been told by the prosecutrix was not seriously challenged in cross-examination Even otherwise, it was not suggested to him that he had any animus against the appellant or had any other reason to Rive false evidence against him. We, therefore, find no reason to place even the slightest doubt on the evidence of this witness and hold that Passang Sherpa was a witness of truth and his evidence could form the basis of a finding against the accused.
14. Some corroboration to the testimony of the prosecutrix is also available from the evidence of Narayan Sharma, P.W. 5; who resides in the adjoining house and had heard the cries of the prosecutrix during the night. Next morning, he enquired from her as to why she had cried but she did not disclose the matter to him. Though this witness is only 9 years of age but he was found to be a competent witness and his statement was recorded on oath. Neither in the cross-examination nor during arguments, any reasons have been suggested for not accepting the testimony of this witness. As he is living in the adjoining house there is nothing unnatural in his being able to hear the cries at night. To this extent, we, therefore, find the testimony of Narayan Sharma as giving some support to the prosecution story.
15. Consequently, relying on the testimony of Doma Sherpani, P.W. and on the evidence of her brother Passang Sherpa, P.W. and also finding corroboration from the medical evidence and the statement of Narayan Sharma, P. W. we hold that the case against the accused has been established beyond doubt. The conviction of the appellant was justified. The only question that survives for consideration is regarding the sentence to be imposed on the accused. In this connection it was vehemently urged before us that having regard to the young age of the accused and other circumstances, the sentence of imprisonment for life is very excessive.
16. The accused is hardly 22 years of age. Moreover, considering the social set ud in which the accused and the prosecutrix have been brought up and other relevant circumstances, we find that the sentence is highly excessive. In this connection, the following observations made by Krishna Iyer, J. in Phul Singh v. State of Haryana 1980 Cri LJ 8 (SC) are also relevant:
Ordinarily, rape is violation, with violence, of private person of a woman-an outrage by all canons. In our conditions of escalating sex brutality a 4 year term for rape is not excessive. But here, the offender is in his early twenties and signs of repentance are seen. The victim and her parents have forgiven the molester who is a first cousin, says counsel. An affidavit from the father-in-law of the woman has been filed and, if needed counsel is ready to produce the victim's statement that she has forgiven the criminal. While it is possible that the accused may procure such condonation from an unwilling victim, the fact remains that the two families being close cousins are ready to take a lenient view of the situation. Of course, this does not bind the Court in any manner. Therefore, taking an overall view of the familiar and the criminal factors involved, we reduce the imprisonment from 4 years to 2 years' R. I.
17. Keeping in view the above guidelines and the factors mentioned above, we find that sentence of 4 years' R. I. will meet the ends of justice and it is ordered accordingly.
A.M. Bhattacharjee, J.
18. I agree.