S.M.F. Ali, C.J.
1.The appellant has been convicted under Section 376, RPC and sentenced seven years' simple imprisonment by the learned Sessions Judge Jammu for having committed rape on P. W. 2 Shakti Dhar. a small girl of eight years. It appears that the appellant who posed to be a religious preacher utilized the services of young girls to slake his sexual lust and having ravished one girl after the other he used Kamla. his victim, as an agent to procure other eirls for him. P. W. 2 Shakti Dhar was introduced to him by P. W. Kamla who was a friend of Shakti,
2. Put briefly the prosecution case was as follows. The appellant. Yado Ram alias Anand Sagar was oriainally a resident of district Gursaon and came to the State about 15 years ago, For the last 13 years the appellant had settled himself down at the Satsang Bhawan at Parkash Mandir in Mohalla Rani Talab Jammu. He set himself up as a relieious leader, preacher and orator. His eloquence and protund knowledge of Vedanta philosophy attracted a large number of devotees mostly ladies, young and old. who assembled at the Satsang to hear the religious discourses given by the appellant. This however was a smoke screen and behind the curtain was the mischievous and hypocritical mind of the self-styled Mahant which indulged in unsocial acts of ravishing and raping young girls.
Facts of the case.
3. According to the prosecution Shakti Dhar. daughter of P. W. Pushpa Rani, was a student of the 4th class of the Jagriti Niketan Primary School where she had been admitted a few days before the occurrence. P. W. Kamla was known to her from before and was actually one of her friends, having become intimate with her when Shakti was a student in the Kachi Chhawni Primary School. It is alleged that on the morning of 15th June 1971 Pushpa Rani awakened Shakti from her sleep and compelled her to so to the school because she was getting late. Shakti instead of going to the school went towards her maternal aunt's house situate at Jullaka Mohalla. Jammu. On the way she met P. W. Kamla who persuaded her to go to Prakash temple to meet the appellant who distributed money and sweets. Allured by the prospect of receiving money and sweets. Shakti Dhar agreed to accomnany Kamala to the Prakash temple. When Shakti and Kamla entered the room of the appellant he extended a hearty welcome to them and locked the door from outside kissed and caressed P. W. Shakti and then ravished Kamla in presence of P. W. Shakti Dhar. Thereafter he gave Rs. 2.50 to Kamla and some sweets to both Kamla and Shakti and asked them to come on the next day. It appears from the evidence of Kamla that she herself was introduced to the appellant a few days before the occurrence by one Rani who had been Going to the appellant off and on. On 16th June at about 11 a.m. Shakti Dhar again met Kamla who prevailed upon her to go to the appellant at the Prakash temple. Shakti after heaving agreed kept the bag containing her books in the house of Kamla and went towards the temple. She entered the room of the appellant who was waiting for Shakti and Kamla. The appellant, then sent Kamla out of the room, locked the room from outside and entered the room through the window which he closed after entering. Thereafter he is alleged to have raped Shakti Dhar and when she tried to cry he threatened her. After the act of rape was over, he gave her eight annas and a few sweets. The incident of rape was witnessed by Kamla from outside the door through a chink therein. Thereafter Shakti and Kamla left the place and went to Kamla's house from where Shakti picked her bag containing books and returned to her own house nearabout 1.30 p. m. At the time she returned to her house, her mother was having some guests and so she could not talk to Shakti Dhar. In the afternoon Pushpa Rani had gone to the vegetable market when some unknown girl informed her that Shakti had not been to the school for two days, i. e.. 15th and 16th June 1971. This aroused suspicion in the mind of Pushpa Rani who on returning to her house inquired of her daughter where she had been. It may be mentioned here that according to the evidence of Shakti Dhar she had purchased some toys from the money given by the appellant. When Shakti was interrogated by her mother, she narrated the entire story to her. Pushpa Rani was amazed and stupified and did not know what to do and in this disturbed state of mind allowed the night to pass. The next morning she went to Mr. Makhan Lal Principal of the Jagriti Niketan, where the prosecutrix was studying and complained against the lack of vigil exercised by the school authorities over the wards. Pushpa Rani narrated the entire story to the Principal which was corroborated by Shakti Dhar. Principal Makhan Lay then sent for Kamla who also corroborated the story of Shakti Dhar. The principal promised to help Pushpa Rani in bringing the offender to book. He accordingly suggested to Pushpa Rani that she should get a written report and he would accompany her to the police station. Pushpa Rani then got a report written by Pran Kishore a cousin of her husband and went to the police station along with P. W. 6 Makhan Lal. Shakti did not accompany her to the Police Station because she was laid up with fever. A report was lodged at the police station at 8 p.m. on 17-6-71. The next morning the police started the investigation and took Shakti and Kamla along with them to trace out the appellant. The appellant however was not found at the temple. The police party chased him and found him in a bus near the Jewel Cinema where he was spotted out and identified by both Shakti and Kamla. The accused was then arrested and brought to the police station. Shakti was sent for medical examination on 18th June and the accused was also examined a few days later. After due investigation the police submitted a charge sheet against the accused on the basis of which he was committed to the court of the session and ultimately tried by the learned Sessions Judge, Jammu with the aforesaid result.
4. The accused pleaded innocence and filed a lone written statement alleging that he had been the victim of a deepseated conspiracy, involving him in a heinous crime, hatched by his opponents Malik Chand Bhatia and Principal Makhan Lal. He has further alleged that the entire case against him has been concocted by Principal Makhan Lal who had got Shakti Dhar admitted to his school only a few days before the occurrence for the purpose of using her as an instrument to implicate him. The accused has further submitted in his written statement that Principal Makhan Lal was an ardent exponent of Anand Marg cult which is diametrically opposed to the cult preached by the appellant and this led to serious enmity between the two. The appellant resisted all the attempts of Principal Makhan Lal to join the Anand Mare and was threatened with serious consequences. The accused further alleged that Malik Chand Bhatia was a great leader of Hindu Sanatan Sabha and bore enmity with the accused because he refused to lend support to him. Finally the accused alleged that Dr. Mengia Jan Sangh leader wanted to have the Sat Sangh Bhawan as an office for his party and he also joined the conspiracy to dislodge the accused from the Prakash temple. It would thus appear that the main defence of the accused is that the entire case has been bolstered up and concocted against him but he has no explanation whatsoever to offer for the medical evidence which found clear and categorical signs of rape on the person of Shakti Dhar.
5. In support of the prosecution. 12 witnesses were examined whereas the defence examined double the number namely 24 witnesses to prove its case.
6. The learned Judge after a careful consideration of the entire evidence came to the conclusion that the prosecution case against the appellant had been proved beyond any shadow of doubt, The learned judge has analysed the evidence of defence witnesses in very great detail and has given cogent and convincing reasons for rejecting the same.
7. We are very happy to find that the learned judge has taken great pains in writing his judgment and making it as exhaustive as possible by dealing with every aspect of the case presented before him by the counsel for the parties.
7-A. We have been taken through the entire evidence and after going through the same we fully agree with the conclusions arrived at by the learned Judge that the prosecution case against the appellant has been proved beyond reasonable doubt.
8. The main evidence in the case consists of the two eve witnesses namely P. W. 2 Shakti Dhar and P. W. 3 Kamla, In view of the fact that these two witnesses were young children, their evidence is sought to be corroborated by the evidence of Pushpa Rani P. W. 1. Principal Makhan Lal P. W. 5. medical evidence and other circumstantial evidence. We would first take up the eve witnesses P. Ws. Shakti Dhar and Kamla. Learned counsel for the appellant has taken us through the entire evidence of P. W. 2 Shakti Dhar. a girl of eight years and after perusing her evidence we find that she has deposed in a very simple, straightforward and consistent manner. She has been subjected to a very searching cross-examination but nothing of importance has been elicited from her excepting a discrepancy here or a discrepancy there. We find that her entire statement contains a ring of truth. Shakti Dhar states that she was a student of the 4th class of the Jagriti Niketan where she was admitted a few days before the occurrence. She further states that while she was reading in the Kachi Chawni School, she had two friends namely Anita and Kamla P. W. 3. She goes on to state that on 15-6-1971 she was going to her school when she met Kamla near Pacca Danga and she asked her where she was going. Shakti replied that she was going to school but then Kamla persuaded her to go to Prakash temple and asked her to keep her bag containing books at her place. Thereafter both of them went to the Prakash Mandir. The appellant on seeing the two girls asked them to come in and when they entered the room he came outside, closed the room from outside and entered the room through a window. Thereafter the accused opened the bell bottoms of Kamla and raped her in presence of the witness. Thereafter the appellant gave some money and sweets to Kamla and asked her and the witness to come again the next day. The witness states that on that day the appellant only kissed her and did not do anything else. The next day. i. e. on 16-6-1971 the witness was afain late for the school and she met Kamla at Kachi Chhawani from where they went to Kamla's place, left the bag of books there and repaired to the Prakash temple. The two girls entered the room of the appellant who as on the previous day closed the room from outside applied cream to his private parts as also of the private parts of the prosecutrix and then ravished the witness. The witness further deposes that she wanted to cry but the appellant threatened that he would kill her if she cried. The witness further states that somebody from outside shouted to the accused as to why he was teasing the young girls on which the appellant again threatened the witness that if she revealed the story to any body he would kill her. Thereafter blood came out of the vagina of the witness which was wiped out by the accused with a towel. The appellant then gave eight annas and some sweets to the witness. The witness then went to Kamla's place to fetch her bag. purchased some toys from the money given to her by the appellant and returned to her house. Some time later her mother Pushpa Rani inquired of her as to wherefrom she had got the money to buy the toys on which the witness started crying and narrated the entire story. Her mother took her to the school the next mornins. i. e.. on 17-6-1971 and narrated the whole incident to the Principal. The Principal then sent for Kamla who corroborated Shakti's statement. Thereafter the witness accompanied the police party to the bus stand where the accused was spotted and identified by the witness as also by Kamla and arrested by the police. The witness did not say that at the time of rape Kamla had been sent out by the appellant but made a statement that Kamla was in the room. In her cross-examination, however, the witness has clearly and categorically stated that at the time the appellant committed rape on her. excepting she and the accused there was none else in the room In her previous statement also under Section 164 Criminal P.C. she had stated that after she was hugged and kissed the appellant sent Kamla out of the room. Her evidence is fully corroborated by the evidence of the doctor who deposed as follows:
I examined Shakti Dhar at 3.36 p. m. in the department of Gynaecology and Obstetrics in the SMGS Hospital Jammu and found that she had neither developed sex characters nor pubic hair nor axillary hair nor breasts were developed nor there was any external injury on her body.
On examination of her private parts I found that her hymen was torn. Labia minora was consested and tender. There was laceration anterior to urethera and posterior forehatte. Introitous admitted one finger and there was slight bleeding per viginum. No other injury was detected on her private parts.
Two slides of vaginal smears, were sent by me to Pathologist for Histo-pat-hological examination. The report of the pathologist was received back which revealed the presence of degenerating spermatozoa. In my opinion rape had been committed on Shakti Dhar. In my opinion penetration of male organ into private part of Shakti Dhar had taken place. But I cannot say as to what extent. The duration of rape in my opinion at the time of examination was within 72 hours.
9. P. W. 10 Dr. C. L. Gupta Pathologist to whom Dr. Badval had sent a sample of the semen found in the vaginal tract of Shakti Dhar. The doctor deposes as under:
Two vaginal smears were sent by lady Dr. Kamla Badval to me for examination on 19-6-1971 for the purnose of determination of spermatozoa. I stained the slides and examined them with microscope. I found degenerating sperma tozoa and accordingly I issued certificate Ex. PP in my own hand which bears my signature. The name of Shakti Dhar was recorded on the slides. The slides were brought to me by Sansar Devi a 'Dai' of the hospital and the result also sent back through her.
Cross-examined that the maximum life of spermatozoa in vagina is 3 to 4 days Degenerating means the spermatozoa which are undergoing dissolution. The spermatozoa in the instant case were dead when I examined them.
Re-examination stated that spermatozoa can die even soon after ejaculation.
10-11. This is a very important circumstance that conclusively corroborated the testimony of Shakti Dhar to prove that she was raped by the appellant and as she was examined two days after the rape the spermatozoa sent to Dr. Gupta was found to be dead.
12. The accused was also examined by Dr. M. L. Gupta P. W. 6 and was found to be physically fit for sexual intercourse.
13. Apart from this there is the evidence of P. W. 3 Kamla who was watching the entire incident from a chink in the door. She has substantially corroborated the entire version narrated by P. W. 2 (Supra). P. W. 3 Kamla deposes that she had gone to the Prakash temple for the first time about two months before the date of her deposition when the appellant hugged her and asked her to come again. She further states that she was introduced to the appellant by one Rani. When Rani took her to the appellant . the appellant raped Rani in her presence after closing the door from outside. In other words the appellant adopted the same tactics in committing rape on Rani and Kamla as he adopted in ravishing the prosecutrix Shakti Dhar. We are, however not concerned with the story of race on Kamla or Rani in this case except for considering the background. The witness further states that on 15th June 1971 she met Shakti at Pacca Danga and brought her to Prakash Mandir. after keeping her bag of books at her place. When the witness and Shakti entered the room of the appellant he closed the room caressed Kamla and raped her and raid annas eight to Shakti Dhar. She further states that on the second day, i. e. 16th June she brought Shakti Dhar again to the temple but on that day the appellant did nothing to her but raped Shakti Dhar. She further says that the accused had hugged and kissed the prosecutrix in her presence but when he tried to strip her of her clothes he sent her out and closed the door, and she saw the entire occurrence from a chink in the door. She further states that the next dav Princical Makhan Lal sent for her and she narrated the entire story to him. She accompanied the police nearly to the bus stand where she and Shakti identified the accused who was then arrested. Thus this witness substantially corroborates all the material particulars of the story narrated by P. W. 2 Shakti Dhar. Much was made out of the fact that she could not have seen the occurrence from outside through the door, but her sole testimony to this effect which is corroborated by the local spot inspection of the Sessions Judge, who visited the spot and verified the fact whether or not it was possible for Kamlato have witnessed the occurrence, shows that her evidence is worthy of credence.She was also cross-examined at very great length, but shorn of a fewcontradictions or discrepancies here and there nothing of importance waselicited from her. In fact towards the end of her statement the counsel for theappellant Questioned her regarding the exact manner in which she was raped, butshe appears to have given cogent and convincing replies by describing the sizeof the male organ of the appellant as also its girth and also the extent towhich penetration had taken place. This witness is aged about 12 years andaccording to the certificate of the Judge she was intelligent enough tounderstand the implications of the answers to the questions put to her. We mightstate here that a similar certificate was given in the case of P. W. Shakti Dhar also.
14. Then we come to the evidence of P. W. 1 Pushpa Rani, mother of the prosecutrix. who has deposed that Shakti returned from the school on 16-6-1971' at about 1.30 p. m. and she found a toy in her hand. When she inquired of Shakti the latter told her that a Mahatma had given the toy to her. As she was having some guests at that time she did not pursue the matter. Later on she went to the vegetable market where she met an unknown girl who informed her that Shakti had not been coming to the school for the last two days, i. e., 15th and 16th June 1971. This aroused her suspicion. When she returned to her house she questioned Shakti who started crying and narrated the incident of rape. The witness deposes that she was absolutely stunned and did not know what to do as the matter involved the honour of the family she was in a grate fix. The next morning she went to Principal Makhan Lal along with Shakti and protested to the Principal against the lack of vigil of the school authorities over the wards. She narrated the incident to the Principal who was extremely amazed at the incident and got it confirmed from Shakti and thereafter sent for Kamla who also in presence of the witness fully corroborated the narrative given by Shakti. The Principal promised help to the witness. Thereafter the witness went to her house and got a report of the facts written by Pran Kishore. The witness then again went to the Principal who accompanied her to the police station where a report was lodged on 16-6-1971 at 8 p. m. The witness further states that when the prosecutrix narrated the incident of rape to her, she examined her clothes, that her underwear was blood stained and was washed out. A great deal of capital has been made by the learned Counsel for the appellant out of this conduct on the part of this witness which will be dealt with at a later stage. We thus find that P. W. Pushpa Rani has substantially supported and corroborated the story narrated by P. W. Shakti and Kamla. Apart from this. P W. 1 Pushpa Rani has clearly deposed that her daughter was about eight years of age. This fact has been confirmed by the inquiry made from the Municipality regarding the date of birth of Shakti Dhar. Ex. PN is a letter from the Health Officer of the Municipality which shows that a female-child was born to the wife of Dwarika Nath son of Vidh Lal Dhar r/o Mohalla Ustad (father of Shakti Dhar) on 11th August 1963. which means that Shakti Dhar according to the Municipal entries was less than eight years of age at the time she was raped by the appellant. There is also the medical evidence to prove the fact that Shakti Dhar was about 8 years of age. Ex. PK which is the opinion of the lady doctor shows that after the girl was X-raved on a reference to the Radiologist the age of the girl was found to be between 8 to 10 years and the duration of rape was 72 hours. Thus apart from the oral evidence of Pushna Rani there is also expert evidence to Prove that the prosecutrix was about 8 years of are. In these circumstances therefore the prosecution has proved beyond any shadow of doubt, that the prosecutrix was far below the age of consent and therefore any consent obtained by the appellant through duress, threat or temptation would not serve as a valid defence. The fact that, the prosecutrix was a student of Jagriti Niketan is proved by the evidence of PW. 4 Maharai Krishan who brought the school register to prove the admission of this girl to the school which is further corroborated by the evidence of Principal Makhan Lal. Maharai Krishan further proves that Shakti Dhar was absent from the school on the 15th and 16th June 1971. In his evidence Principal Makhan Lal fully corroborates the statements of P. Ws. 1 and 3. Summary of Prosecution Evidence
15. Summarizing therefore the prosecution evidence it would appear that the evidence of the eve witnesses. Kamla and Shakti Dhar. regarding the manner and the circumstances in which Shakti Dhar was raped by the appellant is substantially corroborated by the following facts:
(1) Narration of the incident to Pushpa Rani P. W. 1 on the 16th June and to the Principal (Mr. Makhan Lal) on the l7th.
(2) Identification of the accused by spotting him out in the bus by both the PWs Kamla and Shakti.
(3) Absence of Shakti from the school on the 15th and 16th June as proved by PW Maharai Krishen.
(4) Medical evidence of Dr. Badval.
(5) Examination by the pathologist who found the semen sent to him contained dead spermatozoa.
(6) Medical examination of the appellant that he was fit enough for sexual intercourse.
(7) Absence of any motive on the part of PW 1 or PW 2 Shakti to falsely implicate the accused.
(8) Local inspection of the learned Sessions Judge.
Memo of Inspection of the S. J.
16. The Memo of inspection recorded by the learned Sessions Judge runs as follows:
At the request of the accused the place of alleged occurrence has been inspected today, the 23rd of August 1971. at 10.15 a.m. in presence of L. Suraj Prakash counsel for the accused, and Sh. V. S. Malhotra. Public Prosecutor.
The scene of occurrence as alleged is residential room of Yadav Ram accused. It is situated at the western corner on the southern side of the kirtan hall of Sat Sane Bhawan. Kirtan Hall though covered with a roof is quite open towards the front which faces towards the west. The room of the accused is a small one with its door towards the Kirtan hall. It has a window in the western wall.
P. Ws. Kamla and Shakti are also present. P. W. Kamla pointed out a chink in one of the shutters of the door of the room of the accused through which she allseed to have peeped inside at the time when the accused was allegedly engaged in the act of intercourse.
It was noticed that an attempt had been made to plug the chink from inside by a thin mud plaster. On removal of mud plaster, the hole was through.
The door as well as the window were closed. P. W. Shakti Dhar was kept inside whereas Kamla was asked to stay outside the door. Kamla was asked to Peep through the chink and report was observed. Shakti Dhar was asked to lie down and patting was given at her back in presence of Mr. Suraj Prakash. learned Counsel for the accused, who too was inside the room. Thereafter the door was opened and Kamla was asked to narrate as to what she had observed. She described clearly what was done inside.
Adjacent to the room of the accused there are four more rooms in the same line. Two rooms adjoining to the room of the accused are reported to be reserved always for pilgrims, whereas 4th and 5th rooms are said to be under the occupation of D. Ws. Mst. Shahni and Mst. Massan. The doors of these rooms open towards the Kirtan hall. 6th room is reported to be under the occupation of D. W. Faqir Chand and the 7th room under the occupation of D. W. Dhani Ram.
On entering through the main gate there is temple of Shiv ji Maharaj in front of window of the room of the accused. In the Kirtan hall there is idol of Shri Radha Krishan Ji.
The facts which the learned S. J. found in the presence of the parties speak for themselves. It is well settled that a Court is fully entitled to hold a local inspection in order to appreciate the evidence in the case. In the instant case it was vehemently argued by the counsel for the appellant that it was not possible for P. W. 3 Kamla to see what was going on inside the room from the chink. In fact the accused denied that there was any chink in the door at all which could furnish an opportunity to the witness to see the occurrence. The learned Sessions Judge visited the spot in the presence of the counsel for the parties and he found that there was a chink in one of the shutters of the door which was attempted to have been plugged but was found out with the least possible difficulty. The learned Sessions Judge further demonstrated that by keeping Kamla outside she could see what was happening inside the room. The local inspection of the learned S. J. therefore lends support to the evidence of P. W. 3 Kamla. It is true that a local inspection cannot take the place of evidence, but it is certainly a circumstance which will lend support to the veracity of the version of the eye witnesses deposing on oath. The local inspection is therefore another piece of evidence which corroborates the testimony of Shakti Dhar and Kamla P. Ws.
17. But even if we exclude the local inspection of the learned Sessions Judge from consideration, there appears to be more than sufficient evidence to prove the charge against the accused.
18. We shall now briefly refer to the defence evidence. The accused has examined three types of witnesses to falsify the prosecution case. In the first place he has examined a number of neighbours and residents of the temple to show in a negative fashion that no girl entered the room of the appellant. Another set of witnesses has been examined to prove the enmity and the reasons for the implication of the accused. Thirdly the defence has led evidence to prove alibi on the 15th and 16th June when at the time of the occurrence the accused is supposed to have gone to Krishnanagar for performing some religious ceremonies. The evidence on the first count namely that consisting of neighbours and residents of the premises of the temple comprises the statements of D. Ws. 1, 2, 5, 6, 7, 9, 10 and 24.
19-26. (After discussion of the evidence of these witnesses His Lordship proceeded). It would thus appear that the evidence of these witnesses is purely of a negative character and too vague and general in nature to displace the sworn testimony of P. Ws. Kamla and Shakti which is corroborated by cogent and unimpeachable materials as indicated above.
27-31. (His Lordship then discussed the evidence of D. Ws. 8. 18. 19. 20 and 21 on the plea of alibi and proceeded.)
32. This is all the evidence in support of the plea of alibi taken by the appellant. It is well stated that in a case where the defence seeks to set up a plea of alibi, the onus is on the accused to prove it conclusively. In the instant case the accused has miserably failed to establish the plea of alibi.
33-36. (His Lordship then discussed the evidence of D. Ws. 3. 4, and 17 on the question of enmity and proceeded).
37. This is all the defence evidence led by the accused appellant.
38. The learned Judge, after a full and complete discussion of the defence evidence has observed as follows:
But it is not the quantum rather the quality of evidence which is to be weighed. Judging from the standard of quality much of the defence is absolutely worthless and not deserving any consideration. The evidence with regard to the alleged conspiracy given by D. W. 3 Balwant Singh and D. W. 4 Banarsi Lal appears to have been concocted. From their conduct they appeard to be unscrupulous, cheap and easily purchasable. Similarly the evidence of D. W. 17 Ram Prakash is not worthy of any consideration. This person appears to be of coquettish manners. He has been a close associate of the accused and perhaps mainly responsible for polluting the sacred atmosphere of the temple. He was condemned by the Dharmarth and his entry to all temples was banned presumably because of his unsocial and undesirable activities.
39. We find ourselves in complete agreement with the observations made by the learned Sessions Judee. Mr. Makhan Lal has not only denied that he had any enmity with the accused but has stated on path that he did not even know him before the occurrence. Thus we find that the accused has not been able to establish that he bore any animus against Bhatia or Principal Makhan Lal. Nor is there any reliable evidence to show that he was the victim of a conspiracy hatched by his opponents and falsely implicated as a result thereof.
Arguments of the Defence Counsel
40. Having discussed the defence evidence, we shall now proceed to discuss certain important contentions raised by the learned Counsel for the appellant in assailing the prosecution case. The learned Counsel started with a very severe criticism of the conduct of investigation in this case which in his opinion was prejudiced against the accused and tainted. Having gone through the evidence while we agree that there are some defects in investigation yet on the whole it was quite fair and honest. But for the prompt action taken by the police, the accused could not have been apprehended as he had made preparations to leave Jammu and boarded a bus for that purpose wherefrom he was arrested. Mr. Ranade. learned Counsel for the appellant, submitted that the entire occurrence is wholly improbable because it is impossible to believe that the appellant could commit an offence of rape in broad daylight and in the temple where a number of ceremonies were held resulting in the appellant being detected any moment. In this connection it may be stated that the appellant deliberately chose a time when the Kirtan was over. The evidence of the prosecution as also that of the defence clearly shows that usually the Kirtan started at 6 in the morning and ended at 9. Even the defence witnesses who have sought to prove the alibi of the appellant have stated that the accused left the temple at about 10 a. m. and returned at about 2 p. m. on the cloth and 16th of June 1971. This clearly shows that the presence of the accused in the temple was not required during this time. The appellant thus chose a time when he would not normally be disturbed nor could his presence reauired. He called the girls to his room and took every possible precaution to conceal his act by closing the door from outside and entering the room through the window which opened on the temple so thatnobody could suspect his movements. He had already masked himself under the cover of being a religious reformer so that nobody could ever doubt his intentions. In these circumstances, therefore, the mere fact that the appellant chose to rape the pro-secutrix at about 10 or 11' a.m. in the day in a closed room is not sufficient to put the prosecution out of Court. On the other hand we feel that various persons react to circumstances in different ways and it is impossible to lay down any hard and fast rule for human nature is both flexible and uncertain. This argument therefore does not appeal to us and is accordingly rejected.
41. Learned counsel for the appellant then submitted that the evidence of Kamla is falsified by the evidence of P. W. 2 Shakti Dhar because the latter clearly states in her evidence that Kamla was in the room when she was being raped by the appellant, whereas Kamla states that she had been watching the entire occurrence from outside the door through a chink, It is true that Shakti Dhar has stated in an unguarded moment that Kamla was in the room, but she has not clearly mentioned the stage of the exact time when Kamla was in the room. In fact Kamla herself states that while the appellant hugged and kissed the prosecutrix she was inside the room and it is only when he started stripping Shakti that Kamla was sent out. It is therefore quite possible that the statement of Shakti regarding Kamla's presence in the room may have related to the first stage when the appellant was hugging and kissing Shakti Dhar. This is endorsed by the fact that in her cross-examination Shakti has categorically stated that at the time she was raped there was none else in the room excepting the prosecutrix and the accused. Thus there does not appear to be any clear contradiction or inconsistency between the evidence of Kamla and Shakti Dhar.
42. It was next contended that although Shakti states that blood came out of her vagina which was cleaned by the accused with a towel, yet no attempt was made by the Investigating Officer to visit the room of the appellant to seize the blood-stained towel which would have been a most damaging piece of evidence against the accused and would have proved his identity. It is true that the Investigating Officer should have done so. although we are sure he could not have found the towel, because the accused being a very clever man would have seen to it that he left no trace of his crime. Nevertheless this defect in the investigation is not so vital as to persuade us to reject the prosecution case which is proved by two eye witnesses and corroborated by unimpeachable evidence. Nor does this lacuna on the part of the Investigating Officer go to discredit the convincing testimony of Shakti Dhar.
43. Learned counsel for the appellant further contended that Pushpa Rani had admitted in her evidence that when she detected blood on the underwear of the prosecutrix Shakti she washed it out. It was suggested that Pushpa Rani in the normal course of events ought not to have washed out the blood-stained underwear and should have preserved it as evidence of the rape and produced it before the police. The argument is no doubt attractive but on closer scrutiny it appears to be without any substance. We must try to visualize the mental condition of Pushpa Rani when her daughter narrated the incident of rape to her. She must have got unnerved and stupified. In her evidence she states that she did not know what to do after all the honour of the family was at stake as also the future connubial prospects of her daughter, and as such on first thoughts perhaps Pushna Rani may have decided to defer any action and it must have been under the impact of this emotion that she may have washed out the underwear. At any rate Pushpa Rani was the best person to have given an explanation for this somewhat unusual conduct on her part, but while she was cross-examined at great length, no explanation was elicited from her regarding this matter. As there is lot of other evidence to corroborate the testimony of Shakti Dhar. the fact that her underwear was washed out by her mother cannot So to discredit the prosecution case.
44. Mr. Ranade then contended that Shakti had admitted in her statement that when she found Kamla being raped on the 15th of June, she told Kamla that she had not done a good thine and she further protested to Kamla why she took her to the appellant. In this state of mind it was argued it is not understandable why Shakti should have gone to the appellant the next day. This argument does not take into consideration the psychology of small children. Shakti Dhar may not have realized the magnitude and the evil consequences of rape committed on Kamla and particularly when she was offered money and sweets she may have forgotten about it. To small children money to buy toys and sweets to eat are indeed a great temptation. Furthermore reading her evidence very closely, it appears that she protested to Kamla not on the 15th but on the 16th when she herself was raped by the appellant. In these circumstances this argument of the learned Counsel for the appellant has to be rejected.
45. It was next contended by Mr. Ranade that Principal Makhan Lal was the evil genius behind the whole show and had played the villain to implicate the accused. We have already shown from a discussion of the defence evidence that no animus against Principal Makhan Lal has been established. Makhan Lal has himself denied to have known the accused from before. Furthermore it is impossible to believe that Pushpa Rani would agree to use her daughter to prove a false allegation of rape and thereby bring disgrace to her family and mar her daughter's future career to obliee Makhan Lal who wanted to avenge the appellant. The fact that Shakti Dhar was raped cannot be doubted in view of the evidence produced in the case. The defence has neither alleged nor proved any enmity which Pushpa Rani or her family bore against the accused so as to impel them to be a party to the false implication of the accused. On the other hand Makhan Lal being a respectable person and having found that one of his students had been raped by the appellant in a most outrageous manner was naturally interested in bringing the offender to book as quickly as possible. This explains the role plaved by Makhan Lal which was both natural and proper. For these reasons this contention of the learned Counsel is also overruled.
46. It was then submitted before us that the prosecution had not given a convincing explanation for the delay in lodging the FIR a day after the incident and in not reporting the matter immediately to the Principal by Pushpa Rani. We are. however, unable to agree with this contention. The unfortunate incident took place at a time when Pushpa Rani's husband was out of station. She being the solitary woman in the family would naturally like to consult some respectable persons. It is true that Pran Kishore was there, but he was after all a cousin of the husband of Pushpa Rani. Pushpa Rani would have liked to wait for her husband to return. On second thoughts, however, she decided to consult the principal who was not only the head of the institution but was also holding a responsible position. The first time she could have approached the Principal was the next day because the school had closed on 16th. She accordingly took the first opportunity to go to the Principal and narrate the entire incident to him. It was the Principal who directed her to make a written report and accordingly she got the same drafted and written by Pran Kishore. Thus the delay in lodging the F. I. R. is clearly explained by the prosecution and is quite convincing. Furthermore, the accused while cross-examining the witness Pushpa Rani did not seek any explanation from her regarding this matter and this is a circumstance which speaks volumes for itself.
47. It was then argued by the learned Counsel for the appellant that it was impossible to believe that Shakti being a small girl would not run to her house and complain of pain but would go leisurely to the house of Kamla to take back the books, purchase the toy and then return to her house and never compLaln of pain till she was asked by her mother. It is true that Shakti was a small girl of eight years but she has clearly stated in her evidence that the accused had taken all precautions to see that he did not cause serious damage to her vagina and had therefore applied cream to his male organ as also to the private parts of Shakti. There is nothing to show that the penetration of the penis of the appellant was full. The possibility that it was half or less than that cannot be ruled out, Shakti herself says that she wanted to cry but she was prevented from doing so because of the threats given by the accused. She further says that she was threatened by the accused that if she revealed the incident to anybody she would be killed. Such threats have great impact on young and small children. Moreover the joy of receiving money and sweets must have made her forget what she felt. So her conduct in going to Kamla's house to take back the books, purchasing the toy and then returning to her house appears to be quite natural. Shakti Dhar had been given the money by the appellant and she wanted to utilize it for purchasing the toy and in that ecstasy she forgot any pain that she might have felt. We have very carefully perused the evidence of Shakti Dhar from all points of view having regard to the serious offence with which the accused is charged and after perusing her evidence we find that it is so natural, consistent and worthy of credit that it could have also been possible for us to convict the accused on the uncorroborated testimony of Shakti but in this case the evidence of Shakti is corroborated not only by the eye-witness Kamla but by other strong and unimpeachable materials on record.
48. It was next argued by the learned Counsel for the appellant that the prosecution deliberately got the accused examined by a doctor after a good deal of lapse of time so that any traces of injury which he might have on his male organ may be wiped out. It, however, appears that the accused was examined by Dr. M. C. Gupta on 30th June. 1971 and no explanation has been given by the prosecution in producing the accused for medical examination at a late stage. It may be that the accused may not have agreed to the same and the prosecution did not like to compel him t& undergo a medical examination. When the accused agreed to being medically examined he was examined by a doctor. Secondly, according to the findings of the doctor the accused was physically fit and possessed all the characteristics of an adult grownup male and his penis and testicles were well developed and normal in shape and size. The accused was aged 52 and was ravishing a young girl of very tender years unable to put up any resistance to the nefarious act of the profligate and therefore in the circumstances one would hardly expect any injuries on the male organ of the appellant. However even if this circumstance is taken into consideration it is not sufficient to demolish the entire prosecution case which has been proved beyond any shadow of doubt as found by the learned Sessions Judge. Nevertheless Dr. M. L. Gupta P. W. 6 clearly states that he did find a small quantity of smegma in the prepuce of the penis of the accused and this fact also lends support to the story of the prosecution.
49. Lastly, before the Court, some reliance appears to have been placed on the fact that Suman who is alleged to have been raped by the appellant lone before the prosecutrix did not support the prosecution case in her statement as D. W. The learned Sessions Judge has pointed out that Miss Suman's mother was a close devotee of the appellant and therefore she tried to support him before the learned Sessions Judge, Furthermore in her statement before a Magistrate under Section 164, Criminal P.C. she had fully supported the prosecution version. At any rate since in the instant case we are dealing with the rape on the prosecutrix. the question whether Suman was raped or not is hardly material.
50. The result is that all the contentions raised by the learned Counsel for the appellant fail.
51. Thus on a complete and careful examination of the facts and circumstances of the case we fully agree with the learned Sessions Judgp that the offence against the accused has been established beyond any shadow of doubt. The appellant, under cover of religious sentiment and in the sacred name of religion, appears to have committed the most dastardly act on a helpless girl of eight years by practising duress, threat, persuation and temptation and thus polluted and profaned the atmosphere of a sacred temple. In fact the evidence clearly shows that the accused embarked upon this misadventure with an evil eve a morbid mind and a heart filled with dirt and dross.
Application for enhancement of sentence by the State.
52. The State has moved an application for enhancing the sentence of the appellant on the ground that the sentence of seven years, simple imprisonment is wholly disproportionate to the nature of the offence committed by the accused. Notice of enhancement was given to the appellant and we have heard the counsel for the appellant in the matter. In dealing with the appellant leniently the learned Judge appears to have been guided by three main considerations. In the first place the learned Judge thought that the accused was a man of profound learning and scholarship and should therefore be spared the punishment of hard labour. Secondly the learned Judge without there being an iota of evidence imagined that the accused might have repented for his act. though he did not plead guilty for fear of punishment. Thirdly, the learned Judge thought that by remaining in jail the appellant will be able to reform other prisoners. In our opinion all these considerations were totally irrelevant and absolutely beside the point. The appellant being a religious preacher and reformer was duty-bound to guide the people to the Dath of truth and virtue. Instead he committed an act of outrageous rape on a helpless girl bringing disgrace and dishonour to the entire family of which the prosecutrix was a member. Furthermore the accused diverted his learning and knowledge to channels of profigacy bestiality and immorality and abused his somewhat revered position in the society by promoting his sexual lust and sensual desires. In the garb of worshipping small girls (Kanya Puja) the accused misused them for slaking his lust and as his go-betweens for procuring other girls. Shakti being the last and the most helpless victim. Further if the appellant beine a religious reformer himself was not able to mend his own moral conduct, how can we expect him to reform his fellow prisoners. Thus the case presents a number of aggravating circumstances calling for a very severe sentence. Firstly the appellant was a religious preacher and by his religious discourses he sought to win the confidence of the people and having done so. he betraved the trust reposed in him by the people. Secondly Shakti Dhar. his victim, was a girl of very tender age and the appellant used wanton threat and false temptation for achieving his nefarious design. Thirdly he did not hesitate to commit the most heinous offence within the four walls of a sacred place like a temple.
Sentence and Result
53. Having regard to these circumstances we feel that the sentence imposed on the appellant is wholly disproportionate to the nature of the offence committed by him. In fact such persons do not deserve any sympathy or consideration from the Court on any ground whatsoever and the sentence imposed on such persons should be so deterrent as to serve a living example for others to prevent them from being a grave menace to the society.
54. We. therefore, uphold the conviction of the appellant but enhance his sentence from 7 years' simple imprisonment to ten years rigorous imprisonment. The appeal filed by the appellant is accordingly dismissed and the rule for enhancement of the sentence is made absolute.
Jaswant Singh J
55. I agree.