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Suresh Chand Vs. the State of Haryana - Court Judgment

LegalCrystal Citation
CourtPunjab and Haryana High Court
Decided On
Reported in1976CriLJ452
AppellantSuresh Chand
RespondentThe State of Haryana
Cases ReferredRaghbir Singh v. The State
.....the prosecutrix is not an accomplice and as such is not under any disability to make a deposition. the objection of the defence about the corroboration of the evidence of kumari usha is satisfied from the testimony of smt......and ate those. suresh chand accused, who happened to be present in his field, caught hold of kumari usha and took her inside the chari field. tha accused pulled away kacha (under-wear) worn by kumari usha. he undressed himself, threw kumari usha on the ground and committed rape on her. in this process the accused bit on her left cheek. the genitalia of kumari usha bled and she raised an alarm.2. kumari krishna ran to the village and informed smt. darshani devi, grandmother of kumari usha of this incident. smt. darshani devi ran to the field of the accused shouting and saw the accused run away from his chari field. kurriri usha came to her grand-mother and after wearing the under-wear narrated the incident. smt. darshani devi brought kumari usha to her house where the occurrence was.....

Kulwant Singh Tiwana, J.

1. On September 1, 1972, at about 2.00 p.m. Kumari Usha along with Kumari Krishna, who are both aged about 8 years respectively were returning from their fields to their house at village Babain, district Karnal. The field of Ram Chander father of Suresh Chand appellant fell in the way. From the field of Ram Chander both these girls plucked two-three kachris and ate those. Suresh Chand accused, who happened to be present in his field, caught hold of Kumari Usha and took her inside the chari field. Tha accused pulled away kacha (under-wear) worn by Kumari Usha. He undressed himself, threw Kumari Usha on the ground and committed rape on her. In this process the accused bit on her left cheek. The genitalia of Kumari Usha bled and she raised an alarm.

2. Kumari Krishna ran to the village and informed Smt. Darshani Devi, grandmother of Kumari Usha of this incident. Smt. Darshani Devi ran to the field of the accused shouting and saw the accused run away from his chari field. Kurriri Usha came to her grand-mother and after wearing the under-wear narrated the incident. Smt. Darshani Devi brought Kumari Usha to her house where the occurrence was narrated to Smt. Lila Wati, mother of Kumari Usha, Muni Lai, father of Kumari Usha, was in the fields from where he was summoned and informed of this incident. In informing the respectables of the village of this incident, Muni Lai got late. On the following day he started for Police Station, Ladwa, where he met Sub-Inspector Nasib Singh, near the bus-stand, at about 10.00 A. M.; on September 2, 1972. Statement Exhibit P. E. of Muni Lai was recorded, on the basis of which formal first information report, Exhibit P. E./l, was registered at the police station.

3. Vide medico-legal certificate, Exhibit P. A., Dr. K. Kaushalya, Senior Medical Officer, Karnal, on September 2, 1972, at 4.00 p.m. found fresh lacerations of four-cbette measuring 1/2 x 1/4 The area was tender and bled on touching. Perineum and hymen were intact. The vaginal orifice was too small and did not even admit of the little finger. An abrasion 1/2'xl/10' on the left side of the cheek, below the left eye, was also noticed. The doctor opined that rape has been committed on Kumari Usha.

4. The accused was arrested on September 3, 1972. Dr. P. D. Chaudhri, at 9.00 A. M. on 3-9-1972, on physical examination found Suresh Chand accused fit and capable to commit sexual intercourse. He did not find any injury on the genitals, face and thighs of the accused.

5. The under-wear of Kumari Usha which had the stains of dry blood on it was taken by Dr. K. Kaushalya and handed over to the police. The Chemical Examiner found blood on it and the serologist found this blood to be of human origin. No semen was, however, found on the vaginal swab, taken of Kumari Usha, which was sent to the Chemical Examiner.

6. On chalan by the police Suresh Chand accused was committed to the Court of Session. The learned Sessions Judge, Karnal, on trial, found the accused guilty for the offence of rape and sentenced him to undergo rigorous imprisonment for seven years and a fine of Rs. 2000/-. In default of payment of fine he was further sentenced to undergo rigorous imprisonment for U years. It is against this order of conviction that the accused has come in appeal to this Court.

7. The medical evidence showed laceration of the fourchette. The medical examination of Kumari Usha was conducted on the following day and it bled even at that time when touched. Although the hymen, which was not sufficiently grown because of the tender age of the prosecutrix, was intact, yet, the doctor ruled out the possibility of the injury to the fourchette in any manner except in an attempt to commit sexual intercourse with her. The injury to the genetalia of Kumari Usha has been proved by the prosecution beyond any question. It could neither be self-suffered nor self-inflicted because no one from the family, much less the prosecutrix, could be interested to bring about such an injury on such a part of the body. The kachha taken from the person of Kumari l>ha was found to be stained with human blood by the Serologist. The blood on the under-wear could not come without any injury to the private part. The prosecution has without any controversy established the presence of injury on the private part of Kumari Usha.

8. The next question which arises is whether the prosecution has led evidence which is unquestionable and reliable. Kumari Usha, the prosecutrix, is the main witness of the prosecution because she was the subject-matter of violence at the hands of the accused. She was about 8 years of age at the time of the incident. The learned Counsel appearing on behalf of the appellant urged that the testimony of Kumari Usha required to be examined with caution and her statement should not be taken on its face value because of her being a child witness. According to him there was a possibility of her person being tutored and inspired. There is no rule of law that a child witness cannot be believed A child witness is a competent witness. But the rule of prudence requires that the Court should examine their evidence with caution As child-witnesses have a notoriously good memory and they sometimes are influenced by the urge of attaining notoriety by making out impressive versions even about those things which they have not witnessed and are persuaded to depose about. Before such an argument is advanced the defence should spell out a motive which could prompt someone on the side of the prosecution to persuade a child witness to make a statement against the accused. There is no history of strained relations or enmity between Muni Lai and family of the accused. The argument of the defence is further weakened to a greait extent when the child witness is himself/herself a victim of assault. There is no scope for the argument that Kumari Usha was utilised to implicate the accused because injury to her genital was proved to exist. This argument cannot be accepted that Kumari Usha named that person as her ravisher with whom her family had no enmity. She new the accused because their fields adjoin each other. The occurrence had taken place during day time and there was no scope for Kumari Usha to mistake the identity of the accused as she was subjected to an attempt for sexual intercourse. The principles laid down in The State of Bihar v. Kapil Singh : 1969CriLJ279 are not attracted. I do not find any circumstance in her statement from which her statement could be doubted only because of her age.

9. Kumari Usha knew the accused. The injuries on her fourchette showed that an attempt was made to ravish her. She was the best person to tell as to who was the person who molested her. She made her statement in a natural manner which was commensurate with her intelligence. She or hefl parents had no interest to trump up a false charge against Suresh Chand. In this country-people usually do not involve their female children who are to grow and are yet to be married, for the purpose of bringing false sex charges.

10. Krishna (P.W. 4) who was the companion of Kumari Usha and was of the same age, did not support the prosecution version beyond the stage of plucking the kat-chris. According to her, after that, she went to her house and Kumari Usha to her father in the field. As she was hostile to the interest of the prosecution she was cross-examined by the prosecution. Kumari Krishna is not related to Muni Lai. She is a child witness of another family. Possibility may not be ruled out that by exercising influence on her family members or due to certain other reasons she was persuaded to resile from her statement. The children are easily amenable to influence. The fate of a case is not to be left in the hands of a witness. If a witness chooses to withdraw support from the prosecution case that would not ipso facto result in throwing out the prosecution case. The Courts have to see the relative effect of the testimony of a hostile witness in the case. If his or her evidence is such which upsets the balance of the prosecution evidence then it may be taken in favour of the defence. If on the other hand the prosecution evidence is balanced, natural and believable, the withdrawal of support to it by one witness would not materially affect the merits of the remaining evidence of the prosecution. The learned trial Judge was right in observing that Krishana was wont over by the accused. I too have formed the same impression after going through the evidence and hearing the counsel for the parties The statement of Krishana does not affect the core of the prosecution case because Kumari Usha was found bleeding by her grand-mother coming out of the chari field of the accused. Kumari Usha immediately denounced Suresh Chand accused as the person who had assulted her. The mere fact that Krishana did not state that it was she who had brought Smt. Darshani Devi to the place of occurrence is not sufficient to rule out the presence of the latter from the scene of occurrence. There must be some one who had brought Smt. Darshani Devi.

11. It was next argued that the statement of Kumari Usha should receive corroboration from the circumstances and other evidence on the file. The law is well settled by now that the prosecutrix is not an accomplice and as such is not under any disability to make a deposition. If her testimony inspires confidence then she alone without any corroboration can be relied upon. As observed in Gurcharan Singh v. State of Haryana : 1973CriLJ179 it is only by way of prudence that the Courts look for some corroboration to the testimony of the prosecutrix to satisfy its conscience that she is telling the truth about the identity of the person named by her as an accused. Similar position was stated in Raghbir Singh v. The State, 1961 63 Pun LR 513. Kumari Usha has made such a statement which, in the absence of any enmity between the parties, or motive to falsely implicate the accused, deserves to be accepted. The corroboration, however, is available to her statement from the testimony of Smt. Darshani Devi, her grand-mother, who had seen her naked from the lower portion of the body with the genitalia bleeding. She had seen the accused also running from the place of occurrence,

12. The learned Counsel for the appellant referred to the statement of Smt. Darshani Devi before the police where she had stated that the accused had run away from the chari field hearing her alarm and Kumari Usha had come out of the chari with kachha in hand. Even if this is taken as an improvement it does not materially affect the case because it is not irreconcilable with her testimony before the trial Court. The repeti-f tion of the same story, to her father, Muni Lai, by the prosecutrix, which had earlier been told to Smt. Darshani Devi is also another circumstance which lends corroboration to her evidence. In such a short time a child of such a tender age is incapable of making such a story to substitute the real assailant. The objection of the defence about the corroboration of the evidence of Kumari Usha is satisfied from the testimony of Smt. Darshani Devi. The learned Sessions Judge, was on a sound premise to accept the prosecution case on merits. This appreciation of evidence does not require any interference.

13. Dr. K. Kaushalya was definite that fourchette was lacerated but hymen was not injured. She was of the definite view that it was the result of an attempt to penetrate the male organ and no other object. During cross-examination she ruled out the possibility of such an injury as she found on the person of Kumari Usha from fingers, thumbs etc.

14. For a conviction under Section 376, Indian Penal Code, penetration is necessary. The circumstances of the case do raise a doubt in the case in hand that penetration may not have taken place. Dr. K. Kaushalya was of the view that the vaginal canal of Kumari Usha was so narrow that it did not admit even the little finger. At such a tender age the hymen is distantly placed and is above the vaginal canal. Modi in his book on Medical Jurisprudence and Toxicology, 17th Edition (P. 335) has also expressed the view that in girls under 14 years of age the vaginal orifice is usually so small that it would hardly allow the passage of the little finger. In cases of sexual intercourse the hymen may not remain in tact if the vaginal orifice is big enough to admit two fingers easily. In case of girls of less than 14 years the dis-tensibility of the vaginal orifice has to be taken in view. If penetration takes place in the case of girls of such an age then there can be expected to be wide spread damage of the fourchette, hymen, labia majora, labia minora, vulva and the vaginal canal. In this case the doctor did not notice any injury on the labia-majora and the labia minora. In the case of penetration these organs could not escape injuries or at least the signs of violence. From these circumstances it can be deduced that penetration had not taken place when an attempt was made by the accused to ravish Kumari Usha. In that case an offence under Section 376, Indian Penal Code, is not made out. The act of the accused' amounted only to an attempt to commit rape. The accused had taken off his under-wear, the under-wear of the prosecutrix and had made an attempt to thrust his male organ in the private parts of the prosecutrix. In that process an injury to the fourchette was caused which indicates the making of such an attempt.

15. In view of the above discussion the conviction of the accused is upheld and it is altered from one under Section 376, to Sections 376/511, Indian Penal Code. Fob this offence the sentence awarded by the learned trial Judge is excessive. The sentence of the appellant is reduced to two years' rigorous imprisonment. The sentence of fine is also reduced to Rs. 500/-. In default of payment of fine the appellant shall undergo rigorous imprisonment for a period of four months.

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