JUDGMENT
S.S. Saron, J.
1. This appeal has been filed against the judgment and order dated 4-3-1991 passed by the learned Sessions Judge, Ropar, whereby the appellants have been convicted under Section 376 of the Indian Penal Code (IPC — for short) for having committed the offence of rape and sentenced to undergo rigorous imprisonment for a period of four years each, besides to pay fine of Rs. 1,000/- and in default of payment of fine to further undergo rigorous imprisonment, for six months each.;
2. The facts leading to the case are that FIR No. 153 dated 10-12-1989 Ex. PH/2 was registered under Sections 376/34 of the IPC on the statement of prosecutrix Kuldip Kaur daughter of Bachan Singh aged 16 years which reads as under :–
“I am a resident of New Colony Sahte Majra. My father is ah old man. I and my mother Angrej Kaur, as usual, on 8-12-89 at about 3.00 p.m. were cutting grass for the cattle from the field. This field belongs to Chet Singh son of Chattar Singh Jat, resident of Sante Majra and Arhar (cereal) crop is standing in the field. I was cutting the grass on the eastern side and my mother was cutting the grass on the western side of the field. A man who is known as Fauji came from the side of motor situated near eucalyptus trees. This Fauji is a resident of village Sante Majra. He told me that I am seeing you for the last three days, today is the last day. He caught hold of me from my left arm and threw away the khurpa (small spade). I fell down on the ground. Then he broke the string of my Salwar and against my will has blackened his face with me (committed rape). Then another person came at the spot, who had a new tubewell nearby. He also has blackened his face with me (committed rape) against my will and consent. I can identify them, if produced before me. I raised alarm upon which both the persons ran away. My mother came to me after hearing my alarm, to whom I narrated the entire occurrence. Then I and my mother went to our house. My father was out of village. Next day about 8 p.m. my brother Gurmit Singh got me admitted in the hospital at Kharar for treatment. Today at this time I have regained my senses. I have made my statement to you. Action be taken.”
3. On the basis of the above statement, the criminal law was set into motion. The prosecutrix as well as the accused were subjected to medical examination.
4. After completion of investigation, the police filed challan against the accused in the Court of learned Judicial Magistrate Ist Class, Kharar, who committed the case to the Court of Session vide order dated 8-10- 1990.
5. The learned Sessions Judge vide her order dated 24-10-19,90 framed the following charge against the accused appellants:–
“I. Bimla Gautam, Sessions Judge, Ropar, do hereby charge you both as under :–
That on 8-12-89 at about 3 p.m. in the revenue limits of village Santemajra, you Kuldip Singh and Darshan Singh alias Fauji, in furtherance of your common intention, you both committed rape on Kuldip Kaur d/o Bachan Singh a minor girl of 16 years of age and you thereby committed art offence punishable under Section 376(2)(g) of Indian Penal Code and within my cognizance.
And I here by direct that you be tried by me on the above said charge.”
6. The accused pleaded not guilty to the charge and claimed trial.
7. The prosecution to establish its case has examined PW-1 Dr. Raman Nijhawan Radiologist, PW-2 Dr. Ajinderpal Singh Medical Officer who examined both the appellants and found that there was nothing to suggest that they were not capable to perform sexual intercourse, PW-4 Gian Chand draftsman who prepared the scaled site plan at the pointing out of Kuldip Kaur prosecutrix was examined. The affidavit of Head constable Didar Singh was tendered in evidence and it was ordered to be read as PW-5 being of formal nature. Kuldip Kaur prosecutrix appeared as PW-6, her mother Anrej Kaur appeared as PW-7. Investigating Officer Kuldip Singh, the then Additional SHO, Police Station, Kharar appeared as PW-8, Head Constable Satnam Singh appeared as PW-9 and Dr. Rupinder Medical Officer, Sector 22, Polyclinic, Chandigarh appeared as PW-10. She had conducted medical examination of the prosecutrix, Kuldip Kaur on 9-12-1989. On 11-1-1991 the learned Public Prosecutor gave up Raj Kumar as being won over, Besides, he tendered in evidence Ex. PR statement of Darshan Singh. Ex. PS statement of Kuldip Singh and Ex. PT order of the learned Judicial Magistrate Ist Class, Kharar, and affidavit Ex. PU of Constable Sukhdev Singh. He also gave up Gurmit Singh and Naib Kaur witnesses as being won over by the accused and Constables Romesh Lal, Surinder Singh, Jaspal Singh, AS1 Paramjit Singh, Inspector Harbhajan Singh and Balwinder Singh Copy clerk as being unnecessary and closed the prosecution case. Affidavit Ex. PU of Constable Sukhdev Singh was ordered to be read as his statement as PW-11 being of formal nature.
8. The accused were examined under Section 313 of the Code of Criminal Procedure. They pleaded innocence and stated that the prosecution witnesses had deposed against them due to enmity as there was dispute regarding turn of water. In defence, the accused examined Gurbachan Singh son of Ishar Singh, DW-1.
9. I have considered the respective submissions of the learned counsel for the parties and with their assistance gone through the record of the case.
10. Shri H. N. Mehtani, learned counsel appearing for the appellants has vehemently contended that there has been a misreading of the evidence on record by the learned trial Court resulting in grave miscarriage of justice inasmuch as the accused are innocent. Resides, he contends that there is a delay of almost three days from the date of occurrence to the lodging of the FIR which gave time to deliberate upon and cook up a false story against the appellants. Lastly that the prosecutrix at the time of occurrence was above the age of 18 years and was a consenting, party as no resistance was made by her and neither did she suffer any injuries, which was clear from her medical examination. Therefore, he prays for acceptance of the appeal and acquittal of the accused.
11. On the other hand, learned counsel appearing on behalf of the State submitted that the offence of rape is clearly made out against the appellants and the order passed by the learned trial Court is perfectly correct and in order. The same is liable to sustained.
12. The contention of the appellant is that there has been misreading of evidence and false implication of the accused. The learned counsel has vehemently argued that the learned trial Court has misread the evidence on record. However, he has not been able to point out any material discrepancy in the statement of the prosecution witnesses so as to show, false implication of the accused. The prosecution case has been supported by the prosecutrix who appeared in the witness box as PW-6. She deposed that she knew both the accused present in the Court who belonged to her village. About one year ago she and her mother had gone to cut grass in the fields of Chet Singh. She reiterated her version in the statement Ex. PH made to the police on the basis of which FIR Ex. PH/2 was, registered. She further stated that while she was cutting grass Darshan Singh accused came there and caught hold of her, made her throw, the small spade in her hand. She fell down and then he broke the string of her Salwar and committed rape against her will and consent. Kuldip Singh the other accused came there and also committed rape against her will and consent Arhar crop (cereal) was sown there in the field. She raised an alarm in order to save herself and her mother came there and she narrated the entire occurrence to her. Her father had gone out of the village and her brothers were also away on that day. Next day her brother got her admitted in the hospital and on the third day a Thanedar came to her and recorded her statement. She identified the accused on that day.
13. The mother of the prosecutrix Smt. Anrej Kaur appeared as PW-7 who also deposed that she knew both the accused i.e. Kuldip Singh and Darshan Singh. She reiterates the version given by her daughter Kuldip Kaur. Angrej Kaur stated that one year ago at about 3.00 p.m. she and her daughter had gone to cut grass in the field of Chet Singh. She was cutting the grass on the western side and her daughter on the eastern side. She heard the cries of her daughter and went towards that side and the accused ran away on seeing her. She identified them to be the same persons who were present in the Court and who had run away from the spot. Her daughter Kuldip Kaur narrated to her whatever had happened. Then they went home. Her husband was not at home. Her sons also were away for work. Kuldip Kaur was taken to the hospital on the next day and she (Angrej Kaur) had accompanied her. Kuldip Kaur was medically examined there and on the next day her statement was recorded by the police.
14. The prosecutrix and her mother were subjected to considerable cross-examination. However, nothing material could be elicited which would show false implication of the accused. Dr. Ruplnder PW-10 who examined the prosecutrix deposed as under:–
“Secondary sexual character were normally developed. Pubic hair, auxiliary hair, breasts are all normal. Areola of breast in pink.
No evidence of scar mark or abrasion at pubic region or around breasts. No discharge present.
Hymen — presence of fresh tear 2 mm at 3 O’clock. Bleed on touch. No other tear of hymen. No other laceration. Per vaginal cervix downward and backward. Uterus anterverted and antflexed, normal size. Formic are clear. Vagina is tight. Per vagina Very painful and entered one finger in vagina. Impression — Evidence of first intercourse.
Vaginal Smear, swab and pubic hair, sample taken and sent for histopathology.
Vide report Ex. PN of Chemical Examiner, spermatozoa were detected on vaginal swabs, vaginal smear.
Ex. PM is the carbon copy of medical legal report. I have brought the original today in Court. It is signed by me and is correct.
Duration of injuries was within 12 to 48 hours.”
15. The perusal of the above deposition shows that hymen of the prosecutrix showed presence of fresh tear 2 mm at 3 O’clock which bleed on touching. The doctor gave her impression as evidence of first intercourse. The sample of vaginal smear, swab and pubic hair were taken and sent for histopathology. Ex. PN is the report of the Chemical Examiner which shows that spermatozoa were detected on vaginal swabs, and vaginal smear. However, no spermatozoa was detected on pubic hair.
16. The position that emerges from the above is that insofar as the prosecutrix is concerned, it was the impression of the doctor to be a first sexual intercourse. The Chemical Examiner found spermatozoa on the vaginal swab and smear. The prosecutrix herself has appeared in the witness box and supported her case. She stood the test of cross-examination. She clearly states that she was subjected to rape and immediately thereafter she informed her mother who came at the spot. Therefore, the testimony of the prosecutrix and her mother are trustworthy and reliable. There is no reason to disbelieve the same. A young girl who has been subjected to sexual assault would ordinarily not make a false deposition especially when it would affect her reputation as also of her family besides marring the chances of marriage. Therefore, it is established from the above that the prosecutrix was subjected to sexual intercourse.
17. The next contention of the appellants is that there is a considerable delay in lodging the FIR. This contention in my view is of not much substance. It is common knowledge that in respect of offence of rape victims are reluctant to report the matter to the police immediately for the fear of reputation and also for the fear that it may mar the chances of marriage of a young girl who has been subjected to sexual assault. Besides, it is well known that prompt registration of FIR is not an unmistakable guarantee for the truthfulness of the prosecution version and neither is delay fatal to the case. Therefore, merely because the, FIR was not registered promptly or Was registered after a gap of two days would not, in any manner affect the case of prosecution.
18. The next contention of the learned counsel for appellant is that the prosecutrix was 18 years of age and in the absence of any resistance and injuries on her person, it was a case of consent.
19. Insofar as the age of the prosecutrix is concerned, the prosecution has examined Dr. Raman Nijhawan, Radiologist, Civil Hospital, Ropar as PW-1 who radiologically examined the prosecutrix, Kuldip Kaur. As per his opinion, the prosecutrix was aged between 16-1/2 and 19 years. He tendered in evidence his report Ex. PA. The charge that has been framed against the appellants, as already noticed above, is that they had committed a rape on a minor girl of 16 years of age and thereby committed an offence under Section 376(2)(g) I.P.C. However, the prosecution itself has produced on record Ex. PE birth certificate of the prosecutrix in which her date of birth is indicated as 22-5-1971 which would mean that the prosecutrix was above the age of 18 years on 8-12-1989 i.e. the date of occurrence. The said birth certificate Ex. PE, however, relates to one Pal Kaur. The question, therefore, to be seen is that whether this certificate is that of the prosecutrix. To prove this certificate Hardev Singh J.S.A. of the Office of Civil Surgeon, Ropar appeared as PW-3 and stated that the said certificate has been issued by his office. It is during the course of investigation that the prosecution collected this certificate which is in the name of Pal Kaur. Before the learned trial Court an objection was taken by the prosecution itself that the same did not relate to Kuldip Kaur prosecutrix because the name written was that of Pal Kaur daughter of Bachan Singh. This objection of the learned Public Prosecutor was negatived by the learned trial Court on the ground that it was collected by the investigating officer during the investigation and was got proved from PW-3 Hardev Singh. Therefore, it does not lie in its mouth to say that it did not: relate to the prosecutrix. It was also observed that the prosecutrix in her cross-examination stated that she has got six brothers and she is the only sister of her brothers. She further stated that she was never known as Pal Kaur. The accused in their defence produced Gurbachan Singh son of Ishar Singh who is resident of village Santemajra and is aged 65 years. He deposed that Kuldip Kaur prosecutrix is also known as Pal Kaur. On this aspect he was not specifically cross-examined by the prosecution although a general suggestion was put to him that he being of the same caste of the accused and belonging to village Santemajra was deposing falsely which was denied by him. Keeping in view the medical evidence of Dr. Rajan Nijhawan PW-1 and birth certificate Ex. PE, it can safely be inferred that the prosecutrix was more than 16 years of age.
20. However, the question that still needs to be seen is whether there has been any consent on the part of the prosecutrix to have sexual intercourse. Merely because it is found that she was above the age of 16 years is no ground to also hold that she was a consenting party. In order to appreciate this, the definition of rape may be noticed. Section 375 of the Indian Penal Code defines rape as follows :–
“375. Rape — A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following description —
First :– Against her will.
Secondly :– Without her consent.
Thirdly :– With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly :– With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly :–With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance; she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly :– With or without her consent, when she is under sixteen years of age.”
Clause sixthly is relevant for the purposes of age as it would amount to rape with or without the consent of the prosecutrix when she is under 16 years of age. As already noticed above, the prosecutrix is more than 16 years of age even if not 18 years.
21. Therefore, in order to see whether the prosecutrix was a consenting it may be noticed that she was subjected to the test of dross-examination wherein she stated that her mother was cutting the grass at a distance of ten yards. The learned counsel for the appellant sought to contend that in view of the fact that the mother was only ten yards away from the prosecutrix, it was not possible that she did not know that prosecutrix was being subjected to rape. This therefore according to the learned counsel goes to show the consent of the prosecutrix. However, it may be noticed that the prosecutrix has also stated that she and her mother could not see each other due to the standing crop. Besides, she also admitted that her mother came to the place of occurrence when the accused had already run away from the spot and she narrated the entire story to her but she had not seen them. Keeping in view the distance and the standing crop, it is not unreasonable that the mother of the prosecutrix did not notice the occurrence taking place. The prosecutrix has also stated that the accused had never met her before and they did not give any threat to her. She stated that she tried to push them away and that Kuldip Singh came after she had grappled with Darshan Singh for about 5/7 minutes. It has come in quite clear terms that rape was committed against her consent by both the accused. There is nothing to suggest that the prosecutrix was a consenting party.
22. The medical examination of the prosecutrix, no doubt, shows that there was no evidence of any scar or abrasion at the pubic region or around breasts, besides no discharge was present there. However, this even by itself would not mean that there was consent on the part of the prosecutrix. In Sheikh Zakir v. State of Bihar, AIR 1983 SC 911 : (1983 Cri LJ 1285) it was held by the Hon’ble Supreme Court as follows :–
“The absence of any injuries on the person of the complainant may not by itself discredit the statement of the complainant. Merely because the complainant was a helpless victim who was by force prevented from offering serious physical resistance she cannot be disbelieved.”
23. To the similar effect are the observations of the Hon’ble Apex Court in State of Rajasthan v. N. K. (Accused), AIR 2000 SC 1812 : (2000 Cri LJ 2205) wherein it was held that absence of visible marks of injuries on the person of the prosecutrix on the date of her medical examination would not necessarily mean that she had not suffered any injuries or that she had offered no resistance at the time of commission of crime. Absence of injuries on the person of the prosecutrix is not necessarily an evidence of falsity of evidence or evidence of consent on the part of the prosecutrix. It could depend on the facts and circumstances of each case. In the circumstances of the present case, as noticed above, the prosecutrix has clearly stated that the rape committed upon her was against her consent. In case State of Rajasthan v. N. K. (supra) it was also noted as follows :–
“The victim of rape stating on oath that she was forcibly subjected to sexual intercourse or that the act was done without her consent, has to be believed and accepted like any other testimony unless there is material available to draw an inference as to her consent or else the testimony of prosecutrix is such as would be inherently improbable. The prosecutrix before us had just crossed the age of 16 years. She has clearly stated that she was subjected to sexual intercourse forcibly by the accused. She was not a consenting party. She offered resistance to the best of her ability but she succumbed and fell victim to the force employed by the accused. She has narrated how she was approached by the accused while she was busy washing clothes near her hut.”
24. In the aforesaid case the judgment in case of Karnel Singh v. State of Madhya Pradesh, AIR 1995 SC 2472 : (1995 Cri LJ 4173) was relied upon wherein the prosecutrix was made to lie down on a pile of sand and the Hon’ble Apex Court held that absence of marks Of external injuries on the person of the prosecutrix cannot be adopted as a formula for inferring consent on the part of the prosecutrix and holding that she was a willing party to the act of sexual intercourse. It will depend on the facts and circumstances of each case. Therefore, keeping in View the above Observations 6f the Hon’ble Apex Court, it may be noticed that in the case in hand a young girl was subjected to sexual assault by two matured males. It may be on account of age or infirmity or even due to fear Or force she may have been incapable of offering any resistance and was overpowered. Besides, the possibility of her having sustained some injuries but on account of lapse of time the injuries might have healed and marks vanished cannot be ruled out. Besides, the accused have been charged for the offence under Section 376(2)(g), I.P.C. i.e. committing gang rape. Section 114A of the Evidence Act reads as under :–
“Presumption as to absence of consent in certain prosecutions for rape.–; In a prosecution for rape under Clause (a) or Clause (b) or Clause (c) or Clause (d) or Clause (e) or Clause (g) of Sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.”
25. Therefore, the appellants having been charge sheeted for the offence under Section 376(2)(g), I.P.C. and the prosecutrix having stated that she did not consent to the sexual intercourse, the Court is to presume that she did not consent. Therefore, I am of the view that the prosecutrix was not a consenting party. Moreover, in the case State of Orissa v. Damburu Naiko, AIR 1992 SC 1161 : (1992 Cri LJ 1537), two respondents before the Hon’ble Supreme Court, were convicted by the lower Courts but were ac quitted by the High Court. Thus the special leave petition by the State. The High Court had acquitted the respondents therein on the ground that the victim identifying the said respondents could not be relied upon as there was no corroboration to her evidence and that when there was a gang rape there could be several injuries on the per son of the victim which were absent. There fore, the victim therein was held by the High Court to be a consenting party. This was set aside by the Hon’ble Supreme Court. It was held that the victim was a simple village girl and she would not leave out her own assail ants and implicate falsely other innocent persons with the allegation that; she was raped by them. Besides, even if corroboration was sought the injuries on her private parts: medical evidence of the doctor and her First Information Report provide such corroboration. Her evidence was accepted as truthful. The case in hand is also of a simple village girl and there to no reason for her to falsely implicate the appellants. As such no fault can be found with the order of the learned trial Court in recording a finding of guilt, which is affirmed.
26. The learned counsel for the appellants, however, contended that in case of dismissal of the appeal, the question of reduction in sentence may be considered. As already noticed above, the appellants have been sentenced to undergo rigorous, imprisonment for four years each besides payment of fine of Rs. 1000/- each and in default of payment of fine, to further suffer imprisonment for a period of six months each. Section 376(2) provides for punishment of rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine. The proviso thereto provides that the Court may, for adequate and special reasons to be mentioned in the judgment impose a sentence of imprisonment for a term of less than ten years. The learned trial Court has recorded adequate reasons for imposing the sentence i.e. the young age of the accused-appellants. Besides, now the case has been pending in this Court for a considerable long time. Therefore, I am not inclined to disturb the sentence imposed by the learned trial Court as sentence imposed is already less than minimum of ten years for which there is valid and sufficient justification in terms of the proviso to Section 376(2), I.P.C.
27. For the reasons recorded above, the appeal fails being without any merit and the same is dismissed. The accused-appellants shall surrender to their bail bonds and be taken into custody to serve the sentence.