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1997 SCC OnLine Raj 350 : 1998 Cri LJ 2618

Rajasthan High Court

(BEFORE MOHD. YAMIN, J.)

Sohan Singh … Appellant;

Versus
State of Rajasthan … Respondent.
Criminal Appeal No. 310 of 1981
Decided on October 15, 1997
ORDER
1. This is an appeal against conviction of accused appellant for
offence under S. 376,

Page: 2619

I.P.C. and punishment of three years rigorous imprisonment and a fine

of Rs. 1,000/- and in default rigorous imprisonment for six months
passed by learned Sessions Judge, Bikaner on 14-4-1981.

2. The case of the posecution is that Mst. Kamrunisha and her sister
Najmunisha belong to Tata Jamshedpur. They were working with Gopal
Thekedar. In front of their working place, one Toti Gujrati was running a
tea stall. It was Gopal Thekedar who told both the sisters that the work
of theka had finished and that theka work is to be done at Purlia and
that both the sisters would be taken there. Kamrunisha and her sister
went to Jamshedpur in the morning some time two years before 22-1-
1980. Gopal, Pushpa and Toti brought them to a railway station from
where Pushpa went back. The Kamrunisha, prosecutrix, was brought to
Jalandhar in Punjab by Gopal and Toti. They sold the prosecutrix for Rs.
2,000/- and then Gopal went back. Thereafter Toti sold Kamrunisha to
Pal Singh for Rs. 1500/-. Pal Singh brought Kamrunisha and handed
over to his brother-in-law, present accused-appellant, who belonged to
Mohindipur. It is alleged that this accused-appellant committed rape
with Kamrunisha. Thereafter Iqbal Singh, Surendra Pal Singh and the
appellant brought Kamrunisha to village Diyatara where agricultural
land of the appellant was situated. At Diyatara Kamrunisha was kept by
accused appellant for a long time where he was committing rape with
her. The prosecutrix ultimately ran away from the place of Sohan Singh
and was brought to police station Kolayat by the villagers. She was
produced before P.W. 6 Harishankar, Dy. S.P., who had gone from
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Bikaner to Kolayat on Government duty. He recorded statement of

prosecutrix which is Ex. P/1 and then a case was registered vide FIR
Ex. P/1 for offences u/Ss. 373, 366, 368 and 376, I.P.C. Usual
investigation was done and then accused-appellant was arrested. His
tractor and trolly along with a canopy were also seized. Clothes of the
prosecutrix were also seized and the accused-appellant along with
others was charge-sheeted before the Magistrate having jurisdiction on
4-9-1978. Learned Magistrate then committed the case to the learned
Sessions Judge. It is on record that one Baksis Singh, against whom
challan was also submitted, absconded and it were Iqbal Singh,
Surendra Pal Singh and Sadhu Singh who were discharged by the
learned Sessions Judge but he framed charge against accused-
appellant u/Ss. 368 and 376, I.P.C. and against Pal Singh u/Ss. 373
and 366, I.P.C. The prosecution examined as many as 11 witnesses.
Thereafter statements of accused-appellant and co-accused Pal Singh
were recorded under S. 313, Cr. P.C. They did not produce any witness
in defence, learned Sessions Judge after hearing both the parties
acquitted Pal Singh but convicted accused-appellant as stated above.
3. I have heard the learned counsel for the accused-appellant as well
as learned Public Prosecutor.
4. Learned counsel for the accused-appellant has submitted that the
age of the girl was more than 16 years on the date when she left the
house and it appears that the sexual intercourse might have been done
with her consent. He submitted that before going to Kolayat she was
always free and she did not make any complaint to anybody. He also
submitted that it appears that the sister of the prosecutrix was having
illicit relations with Toti. He also submitted that the conduct of the
witness is very strange, though she is said to be a lesser age, yet she is
very mature and even then she would not make any hue and cry. He
submitted that the accused-appellant deserves acquittal.
5. On the other hand, learned PP has supported the judgment of the
learned trial Court.
6. I have first to see as to what was the age of the prosecutrix when
she was handed over to the accused-appellant? P.W. 1 Kumari
Kamrunisha was examined on 22-1-1980 when she stated that her age
was 16 years. The relevant period is some time in between 13th July,
1978 to 30th July, 1978. According to this witness her sister
Najmunisha was three years elder to her. She was cross-examined at
length. She maintained that she was born in the year 1964. She is an
illiterate girl and belonged to a lower strata of the society. Her brother
was a rikshaw-puller. According to her, her elder sister was about 18
years of age at that time. Her mother P.W. 3 Smt. Gulshan Khatoon
was also examined by the prosecution who has stated that when she
was married she was only 9 years of age. Prosecutrix P.W. 1
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Kamrunisha was the last child and her age was only 14 years at the
relevant time. The suggestion to the witness on behalf of the accused-
appellant was made that Kamrunisha was of 20 years which she
refused

Page: 2620

and stated that on the date of her statement i.e. 20-1-1980

Kamrunisha was only of 16 years of age. So according to this witness
the prosecutrix was only 14 years of age.

7. The medical evidence is very material. P.W. 2 Dr. Jyotsna Ojha

stated that when she examined the prosecutrix the prosecutrix told that
her age was 14 years. P.W. 7 Dr. Narendra Jugtawat examined the
prosecutrix in respect of her age. According to him on 17-8-1978 she
was about 14 years of age. He prepared Ex. P/12. It was suggested to
him that she was 18 or 19 years of age but he did not agree to this
suggestion as he had himself examined the prosecutrix. Her ossification
test was done and the report No. 7306/78 dated 2-8-1978 was
prepared, on the basis of which he stated the age of the girl. According
to him the conclusion was based on clinical finding and radiological
examination. Thus, the oral evidence is corroborated by medical
evidence. In view of this evidence, the age of the prosecutrix cannot be
more than 14 years.
8. Learned counsel for the appellant submitted that there may be a
difference of about two years and it may be plus minus either side. In
case two years are added, her age comes to 16 years. Then her consent
is material which in the circumstances of this case, was not obtained
under any influence or duress. Therefore, whatever happened, it was
with the consent of the prosecutrix. It is an unfortunate incident that
the prosecutrix, who was only fourteen years of age came with her
sister and passed in different hands and ultimately purchased by the
appellant. Her consent is not material. The learned Sessions Judge
came to this ‘conclusion and I concur with him.
9. Learned counsel for the appellant submitted that the accused-
appellant did not commit the offence of rape with the prosecutrix
because P.W. 2 Dr. Jyotsna has stated that there was no evidence of
recent sexual intercourse. Dr. Jyotsna did say that the hymen of the
prosecutrix was ruptured and two fingers could easily enter into her
vagina and that Kamrunisha was habitual to sexual intercourse. It has
been submitted that there is only statement of the prosecutrix about
rape which cannot be relied as it is riot supported by any other
evidence. Learned PP submitted that no corroboration of her statement
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was required.
10. My attention goes to (1990) 1 SCC 550 : AIR 1990 SC 658 :
(1990 Cri LJ 889), State of Maharashtra v, Chandraprakash Kewalchand
Jain in which the Apex Court held that a prosecutrix of sex offence
cannot be put on par with an accomplice. She is in fact a victim of the
crime. The Evidence Act no where says that her evidence cannot be
accepted unless it is corroborated in material particulars. She is
undoubtedly a competent witness under S. 118 of Evidence Act and her
evidence must receive the same weight as is attached to an injured in
cases of physical violence. The same degree of care and caution must
attach in the evaluation of her evidence as in the case of an injured
complainant or witness and no more. What is necessary is that the
Court must be alive to and conscious of the fact that it is dealing with
the evidence of a person who is interested in the outcome of the charge
levelled by her. If the Court keeps this in mind and feels satisfied that
it can act on the evidence of the prosecutrix, there is no rule of law or
practice incorporated in the Evidence Act similar to illustration (b) to S.
114 which requires it to look for corroboration. If for some reason the
Court is hesitant to place implicit reliance on the testimony of the
prosecutrix it may look for evidence which may lend assurance to her
testimony short of corroboration required in the case of an accomplice.
The nature of evidence required to lend assurance to the testimony of
the prosecutrix must necessarily depend on the facts and
circumstances of each case. But if a prosecutrix is an adult and of full
understanding the Court is entitled to base a conviction on her evidence
unless the same is shown to be infirm and not trustworthy. If the
totality of the circumstances appearing on the record of the case
disclose that the prosecutrix does not have a strong motive to falsely
involve the person charged, the Court should ordinarily have no
hesitation in accepting her evidence.
11. In my view corroboration of the statement of Kamrunisha is not
required in this case firstly because she was a minor at the time of
occurrence and secondly the circumstances which have been proved in
evidence are such that it can safely be concluded that she is a reliable
witness. Her statement is very natural as she was subjected to cheating
and disbelief initially by Gopal and Toti who brought her to Punjab. She
could not raise any voice as she had known that in Punjab the Muslims
had no voice amongst Sardars (Sikhs). It

Page: 2621

appears that there were certain persons involved in flesh trade and the
poor girl fell to their prey. It was Toti who brought her to Sohan Singh
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and sold. He inquired from the younger brother of the accused where
she was being taken and at-that time she was told that she was sold
for Rs. 800/- and then she was taken by Jalandhar Singh and Pal Singh
in a village in Punjab where accused was living. It was the accused-
appellant who also told the prosecutrix that she was purchased by him
and that he would keep her as his wife. He assured that he would marry
her and then he committed rape. He did the sexual intercourse against
her will and without her consent at his residence three or four times.
Then accused-appellant told her that his agricultural land was situated
in Bikaner where he wanted to take her. But she asked him that she
should be sent back to her house. The accused-appellant told that by
13th of next month she would be sent back as she was purchased on
the 13th of last month. She believed him and then accused-appellant
made her to sit in a trolley of the tractor which was covered by a
canopy. She was brought to village Diyatara which was situated in
Bikaner District. Field of accused appellant was situated in that village
where she was kept in a canopy in the field for 9 days. The accused-
appellant used to commit rape with her for all the 9 days. She could not
narrate the story of her woes to anybody as no human being was
present except Pal Singh and the driver Sunder Singh and Iqbal Singh.
They were all living on the field but they were the friend of the accused
-appellant. On the 10th day she ran away from the field of accused-
appellant and reached in village Diyatara. Then she went to the house
of a lady who gave her some amount because she had asked for it and
told that she wanted to go to Kolayat. The lady was merciful and told
her the way to reach Kolayat. She then sat in the bus and went to
Kolayat. She was a Muslim girl and therefore after reaching Kolayat she
inquired from a small girl about any Muslim family in the village. The
small girl pointed her out the house of a Muslim family where she went.
There she narrated her story and then she was told that the matter may
be reported at the police chowki. Then a person was sent to the police
chowki wherefrom two police officials came whom she narrated her
story. She told the story in Ex. P/1 which is the basis of the case and
was recorded as FIR. She was kept with a family for 3-4 days at Kolayat
and then was taken by the police to village Diyatara at the field of
Sohan Singh. She then showed the police the place where, she was
kept. She has been subjected to a very lengthy cross-examination but
could not be shaken. I find that her statement is reliable.

12. Learnt, a counsel for the accused-appellant submitted that the

girl was almost mature and could have very well narrated the story to
the persons while going in the bus or in village Diyatara. He has stated
that in Diyatara she was kept in field as per her statement and was free
to move. So far as her freedom is concerned, it is clear from her
statement that she was kept at the field of the appellant in a canopy
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and the friends of the accused-appellant whose names she has told
were also living there. Therefore, she was not free in the true sense.
She was an alien to the village and could not have gone to anybody.
Secondly, the accused-appellant had himself assured her that she
would be left on the 13th of next month. She believed it and continued
to stay. The.accused-appellant continued to enjoy her company as well
as her body. The poor girl who was minor was helpless and as soon as
she got an opportunity, she ran away from the field of accused-
appellant. A merciful lady helped her by paying some amount and
guiding her to go to Kolayat where she naturally searched out the
house of some person belonging to her religion. Ultimately the police
came to her rescue. In my view, she is a reliable witness. Learned
Sessions Judge relying on 1958 Raj LW 60, Mohamad Hussain v. State,
found that the witness was reliable and believed her. He was right.
There appears to be no reason why she will involve the accused-
appellant. The learned Sessions Judge rightly convicted the accused-
appellant for offence under S. 376, I.P.C.
13. So far as sentence is concerned, it does not appear to be
excessive.
14. In the result, the appeal is hereby dismissed. The learned
Sessions Judge, Bikaner is directed to take the accused-appellant in
custody and send him back to jail to undergo the remaining part of
sentence. His bail bonds stand cancelled.
15. Appeal dismissed.
———
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