ISHAQ Vs. STATE OF DELHI

JUDGEMENT

(1.) These two appeals, one by Ishaq and the other by Suresh Sharma arise out of one and the same judgment dated September 21, 1982 of the court of Shri R. P. Gupta, Additional Sessions Judge, Delhi, by which he convicted both the appellants under Sections 366 and 376 Indian Penal Code and also convicted Suresh appellant under Section 366 Indian Penal Code and Ishaq under Section 366 read with Section 34 Indian Penal Code. Suresh Sharma was sentenced to ten years R.I. and a fine of Rs. 2000/- and Ishaq to seven years R.I. and a fine of Rs. 1,000/- under Section 376 Indian Penal Code. Suresh Sharma was sentenced to five years R.I. and a fine of Rs. 2,000/- under Section 366 I.P.C. and Ishaq was sentenced to five years R.I. and Ii fine of Rs. 1,000/- under Section 366 read with Section 34 Indian Penal Code. The prosecution case stated in brief is that the prosecutrix Anita aged about 13 years was employed in Jeevan Nursing Home in Sunlight Colony, New Delhi for attending to children she was known to Suresh appellant who also lived in the same area. On April 22, 1980 at about 8.30 p.m. Anita was returning from Jeevan Nursing Home to her house. When she reached in front of the house of Suresh, the latter stopped her letting her to listen to him. Suresh then caught hold of Anita by hand and pulled her inside his house. Ishaq appellant was already present inside a room of the house of Suresh. Anita tried to cry, but Suresh put his hand on her mouth. Suresh and Ishaq then committed rape on Anita, one after the other. On Anitas not reaching her home upto about 11.15 p.m. her two brothers, namely Sunil Kumar and Anil Kumar P.Ws. went out in search of Anita. When they were passing through Bhagwan Nagar at about 11.15 p.m. they saw Anita at the door of the house of Suresh appellant who was known to them. They found Anita in a preplexed condition. Both the accused were then seen by Anil Kumar and Sunil Kumar jumping out at one side of the house and fleeing from there. Anita narrate the occurrence i.e. about the two appellants having committed rape on her to her two brothers. Both the accused were arrested in the case on April 23, 1980. Ishaq declined to join the test identification parade arranged for April 28, 1980 without stating any reason for the same. Anita prosecutrix fully supported the prosecution version in her statement as P.W. 1. Besides that the prosecution has also produced other corroborative evidence including medical evidence. The two appellants in their statements under Section 313 Criminal Procedure Code denied the prosecution allegations and stated that they were falsely implicated In the case. No evidence was led in defence by either of the two appellants.

(2.) I have heard Mr. Meera Bhatia Advocate, appointed as amicus curiae for Suresh appellant and Mr. D. K. Mathur Advocate appointed as amicus curiae for Ishaq, and Mr. D. R. Sethi, learned counsel for the State. Mr. D. K. Mathur first of all submitted that Ishaq appellant was below 16 years of age on April 22, 1980 i.e. the date of the commission of the offence and, that as such Ishaq appellant could be tried only by the Children Court and his trial by the court of the Additional Sessions Judge was thus illegal and his conviction and sentence should, therefore, be quashed. Mr. Mathur submitted that the age of Ishaq at the time of recording his plea to the charge as framed against him on August 27, 1981 as also in his statement under Section 313 Criminal Procedure Code recorded on August 7, 1982 is given as 18 years and that itself shows that the age of Ishaq was not correctly recorded On either of these two occasions. It was next submitted that in support of the bail application moved in the appeal of Ishaq the mother of Ishaq had submitted her affidavit and a copy of entries from the register of families as maintained by the Gaon Sabha of village Dhamola of which Ishaq was a resident and 10 these two documents the date of birth of Ishaq was given as August 15, 1964 and that this material showed that Ishaq was below 16 years of age on April 22. 1980. There is no merit in this contention. The age of the appellant Ishaq was recorded by the learned Additional Sessions Judge on August 27, 1981 while recording his plea of the charge as 18 years. The age of Ishaq as recorded on August 27, 1981 and again while recording his statement under Section 313 Criminal Procedure Code on August 7. 1982 obviously cannot be correct. As regards the recording of Ishaqs age as 8 years. at the time of recording his plea to charge either Ishaq appellant gave his age as 18 years on that date or the Additional Sessions Judge recorded his age as 18 years as per appearance. In such a situation there was obviously no question of the Additional Sessions Judge getting an enquiry held as to the age of Ishaq. It is obvious that no plea was raised on behalf of Ishaq appellant before the lower court that he was below 16 years age on the date of the commission of the offence, agree with Mr. Mathur that this plea can be raised even in this appeal. However, the burden lay of the appellant to substantiate that plea by producing cogent evidence in that regard. The material as relied on by the appellant has got absolutely no evidentiary value. The copy of the entries as filed is obviously not a copy of the entry from birth register. This is described as a copy of the entries in a family register as maintained by the Gaon Sabha. Nothing could be shown by Mr. Mathur as to under what rules such a register is at all required to be maintained by Gaon Sabha in Uttar Pradesh. Nothing was also stated as to when and on the basis of what information are entries maintained by Gaon Sabhas in such a register. Under these circumstances I am of the view that no value can be attached to the said certificate. It is also worth nothing that the names of the eight members of the family of Nazir Hassan father of Ishaq, are stated in the copy as filed. It is common knowledge that basis are not given their proper names just on their birth. Further the dates of birth of two members of the family are given as that of the years, 1925 and 1927. Obviously no Gaon Sabha was in existence in those rears. This show that these entries were made in the register not at the time of the births of the persons whose names are entered in the register but this record was made subsequently. Nothing is shown as to on what basis and material entries are required to be made in such a register. I accordingly hold that it is not proved that Ishaq appellant was below 16 years of age on the date of the commission of the offence.

(3.) Regarding the merits of the case it was submitted that Suresh and Ishaq appellants were medically examined by Dr. T. D. Dogra(P.W.5) on April 23, 1980 and Dr. Dogra did not find any injury on the genitalia of either of these two appellants as per his statement as P.W.6 The learned counsel submitted that had these appellants committed rape on the person of Anita who was minor of a tender age of 13 years, the appellants were bound to have some marks of injury on their genitalia. It was contended that the absence of any injury on the genitalia of Suresh and Ishaq appellants went to show that neither of them committed repe on Anita. In this regard reliance was placed on a decision of the Supreme Court in the case Rahim Beg v. The State of UP.1. It was next submitted by mr. Mathur that in the report of the chemical examiner Ex. P.W. 15/B he has given the groups of the semen-stains as found on the difference areas of the salwar and the shirt taken from the person of Anita as also on the gadda as recovered by the police from the room of the house of Suresh on which Anita was made to lie when rape was committed on her, but that nothing has been shown if the seman stains found on any of these clothes or gadda were of the same group as that of Ishaq appellant and thus this expert evidence as relied on by the prosecution was of no avail to it. There is no merit in these un missions. In Rahim beqs case (supra) a girl of sslO or 12 years of age was allegedly subjected to rape by two persons and thereafter murdered. The learned counsel has referred to the observations in para 26 of the judgment that the absence of any injury on th4 male4 orgaon of either of the two accused person punted to their innocence. It was obvious that in that case the prosecutrix having been murdered soon after her alleged rape no direct evidence of rape was available in that case. The aforesaid observations were made in the context of the facts and circumstances of the case and no rule of law was laid down in the above said regard. In the Rafic v. State of U.P.2 the submission of the counsel for the accused that absence of injuries on the person of the victim was fatal to the prosecution and that corroborative evidence was an imperative component of judicial credence in a rape case was repelled. It was observed that Corroboration as a condition for judicial reliance on the testimony of a prosecutrix is not a matter of law, but a guidance of prudence under given circumstances. Indeed, from place to place, from age to age, from varying life-styles and behavioral complexes, inferences from a given set of facts, oral and circumstantial, may have to be drawn not with dead uniformity but realistic diversity lest rigidity in the shape of rule of law in this area be introduced through a new type of percentile tyranny. The same observation holds good regarding the presence or absence of injuries on the person of the aggressor at the aggressed. In the present case Anita, a young lass of 13 years of age, narrated the entire occurrence wherein she stated that she was subjected to rape by Suresh appellant who was known to her prior to the occurrence. No girl would ordinarily depose falsely about any one having criminally assaulted her as that gets attached as a stigma to her. There is no disbelieve the sole statement of Anita. She also identified Ishaq appellant in the court as the other person who committed rape on her. Her statement in the .court found corroboration from the FIR as lodged by her soon after, the occurrence. The statement of Anita also finds corroboration by the statements of her two brothers Sunil Kumar (P.W. 9) and Anil Kumar (P.W. 12) who have deposed to the effect that they met Anita just in front of the house of Suresh at about 11.15 p.m. on April 22, 1980 and that Anita then told them that Suresh and one other person had committed rape on her. No cross-examination worth the name was done either to Anita, prosecutrix, or to Sunil Kumar (P.W. 9) or Anil Kumar (P.W. 12) when they deposed about Anitas having narrated to them about her having been raped by Suresh appellant and one other person whom she identified as Ishaq, appellant. The ocular evidence of Anita also finds corroboration from the medical evidence. Dr. Pranab Prakash in his statement as P.W.8 and in his report Ex. P.W. 6/A has described that on his examination Anita on April 23, 1980 at 3.40 a.m. he found that her hymen had three fresh tears. He also found two medial abrasions acutely red on the right breast of Anita. This evidence tends to show that there was resistance by Anita and that she was subjected to sexual intercourse. As regards Suresh appellant her name was given in the F.I.R. by Anita as one of the two persons who committed rape on her. The evidence of recovery of the gadda Ex. p. 3 (as proved by the statements of P.W. 9 and P.W. 12 and A.S.I. Sarwan Singh, P.W. 14, Investigating Officer of the case) from the house of Suresh on which fresh semen stains wert: found which gave reaction for B group is also a circumstance which went against Suresh accused. As regards the identity of Ishaq appellant the fact that he declined to join the test identification parade arranged for, his identification by Anita on 28, 1980 without giving any reason therefore is also a circumstance on which adverse inference was rightly drawn by the learned trial court. Ishaq in his statement under Section 313 Cr. P.C. only gave the reason for the first time for his having declined to join the test identification parade wherein he stated C that he refused to participate in the identification proceedings because the police had shown him to the witnesses at the police station. There is nothing on the record to show that the police had shown this accused to any of the witnesses including Anita, prosecutrix. A.S.I. Sarwan Singh as P.W. 14 in his cross-examination stated that after the arrest of the accused he did not bring the prosecutrix or any of her brothers before him and further that after the arrest of Suresh appellant who was arrested prior to the arrest of Ishaq he did not bring the brothers of Anita to the police station. As regards the report of chemical examiner Ex. P.W. 15/5, the learned trial court has not attached any value to same and the case of the prosecution stood proved beyond a reasonable doubt against the two appellants from the other evidence as adduced on the record and as mentioned by me above. The learned trial court was thus fully right in convicting the two appellants for the two offences. The sentences as awarded to the two appellants under the two courts also cannot be said to be excessive having regard to the fact that an innocent young lass of 13 years of age was subjected to several criminal assault by the two appellants to satisfy their beastly lust. The appeals of both the appellant are dismissed. Suresh appellant is already in jail custody ill this case Ishaq appellant is on bail. A copy of the judgment, be sent to the trial court which shall cause the arrest of Ishaq appellant in this case and send Ishaq appellant to jail to undergo his unexpired period of sentence. Appeals dismissed.