Rakesh Kumar vs The State
2006 Latest Caselaw 2202 Del

JUDGMENT

J.M. Malik, J.

1. The indictment against the appellant is that he ravished a tiny girl aged about four years and six months after confining her in his house No. 24/33, Trilok Puri. The learned Trial Court awarded ten years rigorous imprisonment and a fine in the sum of Rs. 200/- failing which he was ordered to further undergo rigorous imprisonment for one month for the offence under Section 376 IPC, i.e. the minimum sentence prescribed under the law. He was further sentenced to undergo rigorous imprisonment for three months for the offence under Section 342 IPC. Both the sentences were to run concurrently.

2. I have heard the counsel for the parties and marshalled the evidence on record. The first submission made by the learned Counsel for the appellant was that the facts mentioned by the prosecutrix, her mother, doctors and report of CFSL do not spell out a case of rape. In this connection, my attention was drawn towards the statement of Dr. Shamli Khundu PW 8, who examined the prosecutrix. On local examination, the doctor found that there was no mark of struggle/injury seen on perineum or lower abdomen. She opined that hymen seemed to be torn but not bleeding, vagina admitted tip of finger but she could not notice any vaginal tears. She explained that since the undergarment of the patient was changed, hence blood could not be detected on her underwear etc. She stated that there was evidence to suggest that the child could have been attempted for sexual assault. She stated that rupture on hymen was not possible by any other injury such as fall or alike because there was no other surrounding injury to suggest such an opinion. She clearly, specifically and unequivocally stated that in the instant case, tear of hymen was caused by sexual assault. The learned Counsel for the appellant opined that in view of these facts, at best it is a case of attempt to rape and not that of rape as such. He has cited an authority reported in Guddu @ Santosh v. State of Madhya Pradesh 2006 (2) Crimes 209 (SC) where the facts were that the accused put off the chaddi of the prosecutrix, pulled down his trousers, sat upon her and when her grandfather appeared the accused took to his heels. Mother of the accused had seen redness in her private part as also blood coming out there from. FIR was lodged on the next date. Doctor found swelling over her private part which had become reddish. Her hymen was found to be intact but it had also become red. The accused was convicted under Section 376/511 IPC.

3. The second submission made by learned Counsel for the appellant was that evidence of a child witness must be evaluated carefully as a child witness may be swayed by what others tell him and child is an easy prey to tutoring. Learned Counsel for the appellant relied upon a Supreme Court authority reported in State of UP v. Ashok Dixit and Anr. 2000 DLS 96 SC. In this authority, it was held that wisdom requires that evidence of child must find adequate corroboration before it is relied on. Learned Counsel for the appellant pointed out that a bare look on the testimony of the prosecutrix clearly goes to show that she is not a competent witness. Again, Lal Sahib and Smt. Amrawati who were the material witnesses to tell the truth were given up by the prosecution for the reasons best known to it. He pointed out that as a matter of fact, parents of the prosecutrix wanted to purchase a house owned by the parents of the appellant. Their refusal to do the needful, infuriated the parents of the prosecutrix, which resulted in false involvement of the appellant in this case.

4. The third submission made by learned Counsel for the appellant was that the prosecution has failed to prove that as per CFSL report, Ex. P-2, the blood found on the underwear of PW-1 described as panty of the prosecutrix and pants of the appellant Ex. P-2 belongs to whom.

5. Moreover, the statement by the mother of the prosecutrix, Smt. Meera is contradictory. In her examination-in-chief, she stated that there were no clothes on the body of the appellant, but in her cross-examination, she stated that when she dragged the appellant, he was wearing underwear and baniyan. Mahinder Singh, Investigating Officer, PW-13 stated that appellant was wearing his pants at the time of his arrival.

6. Lastly, the appellant has prayed for mercy. It is explained that he remained in jail from 1.2.1998 to 30.9.2001 and there was no complaint against him. The appellant got married in the month of April, 2004. His wife is in the family way for the last 8 months. His father retired from DESU in the year 2003. He is the only bread winner of his family, which consists of his old parents as well. At the time of his arrest, he was diploma in Engineering first year in the University of Jamia Milia Islamia. The High Court had imposed a condition that the appellant would not visit the area where the prosecutrix was residing. For this reason, he could not complete his study.

7. These arguments are sans merits. The present case squarely comes within the definition of rape. The statement of the doctor has crystalline clarity. She definitely stated that tear of hymen was caused by sexual assault. She stated that hymen seems to be torn but it was not bleeding. It is, therefore, clear that the statement of the prosecutrix stands corroborated by the statement of the doctor. The authority cited by the counsel for the appellant in Guddu @ Santosh v. State of Madhya Pradesh (Supra) does not dovetail with the facts of this case. Moreover, the report of C.F.S.L. to be discussed below, affixes a stamp of truth on the prosecution case.

8. Now I advert to the following statement of the prosecutrix. She was sitting at her house. Tara came to her house, as she resides in the same street where the prosecutrix resides. When she was playing at the house of Tara, her mother reached there. At this stage, the prosecutrix informed the Court that she was scared of the appellant. The witness started weeping. The court ordered, "in order to inculcate confidence in the girl, the accused is sent out while his counsel is in the court to represent him."

She deposed that accused did an indecent act with her. She explained that the accused had removed his pants, underwear and did indecent act with her. She clearly, specifically and unequivocally stated that she felt pain and her underwear was stained with blood. Her mother reached there, who, lifted her and took her away. In her cross-examination, she stated that when Rakesh removed her clothes and Rakesh did indecent act with her, Tara was cooking food.

9. The testimony of the prosecutrix is natural, probable and poignant. I also appreciate the steps taken by the Learned Sessions Judge, he was recording the statement of a tiny child and he correctly sent out the accused from the Court in order to enable the prosecutrix to plump out the truth. Section 317(1), CrPC runs as follows:

Provision for inquiries and trial being held in the absence of accused in certain cases - (1) At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.

The version given by the prosecutrix is not only corroborated by the doctor but there are other very strong, solid and unflappable pieces of evidence. Doctor's evidence is just a tip of the iceberg.

10. Now, I turn to the report of CFSL which is reproduced as follows:

  S. No.     Exhibits    Species of Origin      ABO Group Remarks
1.         Underwear    Human                 'A' Group
2.         Pants        Human                 'A' Group
3.         Underwear    Human                  No reaction
4.         Dark-brown   blood                  No reaction
              -
6.         Dark-brown   blood                  No reaction
             -
7a         Bed-sheet    Human                 'A' Group
7b         Razai Cover  Human                 No reaction
 

11. PW-8 stated that since she did not see the blood on the underwear of the prosecutrix, therefore she deposed that her hymen seemed to have been torn. However this piece of evidence supplies answer to her query. This clearly goes to show that there were blood stains on the panty of the prosecutrix, pants of the accused and bed sheet. The blood was found on quilt cover but it did not give any reaction, but that does not cause any dent on the prosecution case. It fully stands established that presence of human blood was there on the quilt. It is for the appellant and nobody else to explain away blood stains on all the above said articles. In absence of such explanation, the case against the appellant stands proved to the hilt. The C.F.S.L report goes a long way to dispel the doubts about this case.

12. The statement of Dr. B. Nayak, CMO, SDN Hospital, PW 1 is very significant. Both the prosecutrix and the appellant were produced before him. He stated that he had referred the child to a Gynecologist. He further deposed that on the same day, appellant confessed before him that he had raped a girl. The Doctor found that there was clotted blood in the glans area and undergarment and pants of the appellant which were blood stained. He ordered that the undergarments of the appellant be seized and sealed. Ex. PW1/B also mentions that the undergarments of the appellant were sealed. There is an endorsement "undergarments and blood samples sealed and handed over to Constable Amrik Singh". Amrik Singh, Constable PW10 stated that he took the accused to SDN Hospital, Shahdara for medical examination. He explained that the Doctor gave him underwear and one blood phial. He handed over the same to the IO vide memo Ex. PW 10/A. Mahender Singh, SI PW 13 stated that he arrived at the spot and seized the underwear of the prosecutrix vide memo Ex. PW3/B. He further deposed that Pants of the accused were taken into possession vide Ex. PW12/A. The above said evidence sufficiently establishes that panty belonged to the prosecutrix and underwear and pants belonged to the appellant.

13. The statement of the prosecutrix is further corroborated by the statements made by her mother, Smt. Meera and her neighbour Smt. Leelawati. Meera deposed that she went in search of her daughter in the house of Tara which was bolted from outside. She went inside the room and found that appellant was lying on a cot along with her daughter. She also found that appellant had covered himself and her daughter with a quilt. She deposed that she removed the quilt from the body of the appellant and found him in a naked condition. She explained that appellant was lying on the cot along with her daughter. She stated that the appellant did indecent act with her daughter. Prosecutrix was found to be unconscious at that time but her underwear was stained with blood. She explained that her daughter was bleeding from her private parts.

14. Another corroborative piece of evidence is available in the testimony of Leelawati, a neighbour, PW5. She stated that she went to the house of the prosecutrix immediately after the occurrence, at about 6.00 - 7.00 PM. She explained that crowd was beating a boy. Firstly, she stated that she did not see the face of the boy but during her cross-examination by the A.P.P., she admitted that accused present in the Court is the same boy, who, was being beaten by the public. In her cross-examination, she stated that she had not seen the accused while being beaten by the crowd. She stated that crowd was present and she did not know who were those.

15. In view of the overwhelming evidence adduced by the prosecution, the non-examination of Lal Sahib and Smt. Amra Wati does not in any way whittle down the value of the prosecution case. It is not always advisable to multiply witness after witness on the same point. They were not the eye witnesses. Leelawati has already deposed in favor of the prosecution case.

16. The defense story is vague, evasive and contradictory. During her cross-examination, Meera denied that her husband and brother-in-law intended to purchase the house belonging to accused Rakesh Kumar. Thereafter, the defense story took a turn but the new defense version was also denied by Meera. She denied that she tried to bargain with the accused saying that he should sell his house to her and in that eventuality she would withdraw the case against him. The appellant did not disclose what were the particulars of that plot. The appellant also failed to produce any witness in whose presence the said negotiations took place. In his examination under Section 313 Cr.P.C., the accused stated that Meera and her husband wanted to purchase his house but his mother and father did not agree to that proposal and thereafter, some quarrel took place and he has been falsely implicated in this case. He neither named the brother-in-law nor said a word or syllable about that bargain story.

17. The facts of this case are better placed than the facts of the case reported in Madan Gopal Kakkad v. Naval Dubey and Anr. . In the above cited case, a minor girl aged about eight years was raped. It was held that even slight penetration of penis into vagina without rupturing the hymen would constitute rape. The Supreme Court also referred to opinions expressed by Modi in Medical Jurisprudence and Toxicology (Twenty-first Edition) at page 369; Parikh's Textbook of Medical Jurisprudence and Toxicology; Encyclopedia of Crime and Justice (Vol. 4) at page 1356; Halsbury's Statutes of England and Wales (Fourth Edition) Volume 12; Harris's Criminal Law, (Twenty-second Edition) at page 465; American Jurisprudence, Code 263 of Penal Code of California and First Explanation to Section 375 of Indian Penal Code which defines 'Rape' as under:

Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

18. In Karnel Singh v. State of M.P. it was held:

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.

It was further held:

The find of semen stains on the petticoat and in the vagina lend assurance to the story narrated by the prosecutrix.

19. Like State of U.P. v. Ashok Dixit and Anr. (Supra) in State of Rajasthan v. Om Prakash it was held:

The evidence of a child witness is required to be evaluated carefully as the child may be swayed by what others may tell him or her as the child is an easy prey to tutoring. Wisdom requires that the evidence of a child witness must find adequate corroboration before it is relied on. In this case the evidence of the child (PW5) and the other evidence had been examined carefully and it had been found that the reasons given by the High Court for rejecting the said evidence were wholly unconvincing. It is unfortunate that what to talk of considering, the High Court has not even noticed the testimony of the prosecutrix in the judgment under appeal.

It was further held:

There is no force in the contention that if there was any forcible sexual intercourse, it would have resulted in some injuries upon the prosecutrix. Presence of injuries are not always a sine qua non to prove a charge of rape. It has to be kept in mind that the case under consideration is one of rape on a girl child aged eight years and not on a grown-up woman.

In that case, there was extra-judicial confession made by the accused. It was found that the said confession was plenary in character and voluntary in nature acknowledging his guilt. The confession was corroborated by the evidence of victim and other witnesses. It was held that the law does not require the confession in all cases to be corroborated. Reliance was placed on Pyare Singh v. State of Punjab ; Karnel Singh v. State of M.P. (Supra) and State of Rajasthan v. Om Prakash (Supra).

In this case, too, the appellant made an extra-judicial confession before the doctor but the learned Counsel for the appellant just skirted this point. This evidence is very significant, single determinant of the entire case.

20. The accused stands convicted by a web of evidence. In view of enormity of the evidence produced by the prosecution, the prosecution case stands established. The appeal is bereft of merits and is accordingly dismissed. The appellant is present in the Court. He be taken into judicial custody to serve out the remaining sentence.

Copies of the judgment be supplied to the appellant as well as the respondent forthwith. Lower court's record be sent back with the copy of this judgment.