Heard Sri Umesh P.S., appearing on behalf of Sri R.B.
learned High Court Government Pleader for the respondent.
2. Accused in S.C.No.174/2012 on the file of Principal
3. Facts in brief which are utmost necessary for
4. After showing the house, when the victim girl
5. When the victim girl did not return after
victim girl and on seeing them, accused ran away.
6. Mother of the victim girl lodged a complaint wherein
three daughters and a son and she was aged about 10 years.
enquiry she came to know about the incident.
7. Based on the complaint, Mahila Police registered a
the injuries and issued the certificate. After completing the
8. Accused was in custody and his presence was
secured after committal order and charges were framed.
Accused pleaded not guilty and therefore trial was held.
9. In order to bring home the guilt of the accused,
10. Prosecution has also placed on record eighteen
11. On behalf of the defence, contradicting the
marked as Exs.D.1 and D.2.
12. The prosecution placed on record, six material
13. On conclusion of recording of evidence, accused
Cr.P.C., nor placed any defence evidence.
14. Thereafter learned Trial Judge heard the parties in
(victim being minor) and sentenced as referred to supra.
15. Being aggrieved by the same accused before this
That conviction and sentence are contrary to law,
evidence and probabilities of the case.
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That learned Sessions Judge has committed serious
error in convicting the Appellant on the prosecution
evidence which is highly interested, contradictory,
unreliable and artificial.
That prosecution is guilty of the suppression of the
material evidence and has not come forward with true
version of the incident.
That learned Sessions Judge has committed serious
error in holding that prosecution has proved the case
beyond all reasonable doubts that Appellant is guilty of
the offence alleged against him.
That learned Sessions Judge should have acquitted the
Appellant on the ground that there is long,
unexplained delay in filing the complaint.
That the learned Sessions Judge has committed
serious error in relying on interested testimony of Pw's
1 to 4 who are related to each other and when their
evidence are evidence is not corroborated by other
prosecution evidence.
That learned Sessions Judge has committed serious
error in relying on the evidence of Pw's 1 to 4 when
their evidence is full of material contradictions and
omissions further suffers from legal infirmities
That learned Sessions Judge should have acquitted the
Appellant on the ground that identity of
appellant/accused was disputed as there is no
corroborative evidence i.e. evidence of C.W. 7 and 8
who are charge sheeted witnesses. The evidence of
alleged last seen witness namely Pw's 4 is suffering
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from serious illegality and is in-consistent and contrary
to the complaint and the other prosecution witnesses.
That the learned Sessions Judge has committed
serious error in convicting the appellant on the ground
that medical evidence is not corroborate with the
prosecution version against the allegation upon
appellant. Under these circumstances the prosecution
has failed to prove the allegations against the
appellant and hence conviction of appellant is bad in
law.
That the learned Sessions Judge ought to have
appreciated the fact that there was no motive on the
part of the appellant to commit such offences as seen
by the materials collected during investigation. Under
these circumstances the benefit of doubt ought to have
extended to the appellant considering that defense
taken by the appellant is corroborating the
circumstances which are not elicited by the
prosecution to the link the appellant with the alleged
incident.
That the learned Sessions Judge ought to have been
that there is long unexplained delay in filing the
complaint and this delay has been conveniently used
by the interested persons to concoct a false case
against the appellant. This aspect is corroborated with
the defense version of the appellant that there was
enmity between appellant and other interested
persons who in turn made complainant to give a false
complaint against the appellant.
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That the learned Sessions Judge ought to have
discarded the case of the prosecution on the ground
that there is lapse in procedural aspects by the
investigation officer and thus prosecution version
cannot be accepted in the facts and circumstances and
appellant should have been given benefit of doubt in
the case of the prosecution and acquitted him for the
charge leveled against him.
That the learned Sessions Judge ought to have drawn
adverse inference in the case of the prosecution since
evidence of P.W.9/investigation officer, which is
suffering from serious infirmities and omissions which
goes to root of the case.
That the learned Sessions Judge has committed
serious error in convicting the Appellant for the
offences punishable under Section 366, 376(2)(f), 323
and 324 IPC when prosecution has failed to adduce or
produce any evidence in that regard.
That the learned Sessions Judge has not at all taken
into consideration various decisions relied on behalf of
defence.
That sentence imposed on the Appellant is too severe
and harsh and disproportionate.
The learned Sessions Judge should have accepted the
defence version and acquitted the Appellant.
That learned Sessions Judge has not at all appreciated
the evidence in the light of human probabilities and
name has resulted in mis-carriage of justice.
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That the entire approach of the case by the learned
Sessions Judge in convicting and sentencing the
Appellant is illegal, erroneous and the same has
resulted in mis-carriage of justice."
16. Sri Umesh P.S., learned counsel for the appellant
reiterating the grounds urged in the appeal memorandum
vehemently contended that the material evidence did not
support the case of the prosecution in toto and thereby the oral
testimony of P.W.2 - victim girl ought not to have been
believed in toto by the learned Trial Judge, especially while
recording the guilt of the appellant for the offence punishable
under Section 376 (2) (f) IPC and sought for allowing the
appeal.
17. He would further contend that by following the
principles of law enunciated by the Hon'ble Apex Court in
various judicial pronouncements that in a matter of this nature,
the conviction of the appellant for the sexual offences though
punishable solely on the oral testimony of the victim, legal
principles would also caution the Trial Court that if the oral
testimony in a matter of this nature is shaky or in the nature of
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not inspiring total confidence in the Trial Court, as a rule of
prudence, the Courts are required to look for corroboration.
18. Looking for the corroboration in the rule of
prudence and in the case on hand, no such corroboration is
placed on record on behalf of the prosecution and victim being
the 10 years old girl and tutored witness. Therefore, her
evidence ought not to have been believed in toto by the
learned Trial Judge by recording the guilt of the accused
especially for the offence punishable under Section 376 (2) (f)
IPC and thus sought for allowing the appeal.
19. Alternatively, learned counsel for the appellant
would contend that the other offences could be scaled down in
the absence of material evidence establishing the allegations of
their against the appellant and custody period of more than
nine years already undergone by the appellant can be treated
as period of imprisonment and appellant is set free.
20. Per contra, Sri Rahul Rai, learned High Court
Government Pleader would support the impugned judgment in
toto.
21. He would further contend that in the absence of any
previous enmity or animosity between the complaint and the
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accused why the complainant would file a false complaint
against the appellant, that too by pledging the dignity of the
victim girl who is only ten years old and sought for dismissal of
the appeal.
22. He also contended that the material evidence
placed on record is sufficient enough inasmuch as there was no
delay in lodging the complaint nor medical examination and
opinion of the Doctor who examined the minor girl is sufficient
enough to conclude the offence of rape. He also contended
that the term 'rape' is not a medical term and it is a legal term
which has been accessed by the Court from the material placed
on record and to establish the same, insertion of the male part
into the female part, few slightest extent (penetration) is
sufficient and ejaculation of the sperm or absence of
spermatozoa is of no consequence in asserting the act
attributed to the appellant and thus sought for dismissal of the
appeal.
23. He would also contend that the material evidence
on record would justify the conviction of the appellant on record
especially when there is no explanation offered by the appellant
and victim girl was found away from the house of the mother of
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the complainant. Victim girl was found in the place of incident
from where the victim girl has been rescued by the
complainant. When the complainant went to the place of
incident, accused ran away from the place and victim girl was
totally naked which would establish the case of the prosecution
in toto and sought for dismissal of the appeal.
24. Having heard the parties in detail, this Court
perused the material on record meticulously.
25. On such perusal of the material on record, the
following points would arise for consideration:
1) Whether the material evidence placed on record
by the prosecution would be sufficient enough to
maintain the conviction of the appellant for the
offence punishable under Sections 323, 324,
326, 366 and 376 (2) (f) IPC?
2) Whether the appellant makes out a legal
infirmity and perversity in the impugned
judgment?
3) Whether the sentence needs modification?
4) What order?
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Regarding point Nos.1 and 2:
26. In the case on hand, the victim girl - P.W.2 being
the second daughter of P.W.1 is not in dispute. Age of the
victim girl is recorded by the school certificate marked at
Ex.P.18. Admittedly, the victim girl as on the date of incident
was ten years old.
27. According to the case of the prosecution, accused
who is acquainted with the complainant and her family
members, visited the mother's house of the complainant on
29.08.2011. Thereafter in the guise of seeking help to locate
the house of Hajira (C.W.8), accused cajoled the victim girl to
come out of the house. Believing the words of the accused,
victim girl came out of the house around 8.00 p.m., and shown
the house of Hajira (C.W.8) from a distance and was about to
return to her house. It is at that juncture, the accused gagged
the mouth of the victim girl and forcibly took her to the
abandoned place (place of incident) and committed sexual
assault.
28. When the mother of the complainant came in
search of the victim girl, she found the victim girl in the naked
state at the place of incident. Thereafter rescued her and
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brought back to her house and then went to the police Station.
Police after verifying the case, referred the victim girl to
medical examination, wherein the Doctor who examined the
victim girl, gave a certificate after collecting the vaginal swab
and receiving the FSL report which is marked at Ex.P.2.
29. Scratch abrasion was noted by the Doctor on the
right forearm and scratch abrasions were also noted by the
Doctor on the back, inner part of the left elbow, several other
abrasions were noted as external injuries.
30. Final opinion of the doctor is at Ex.P.7, wherein the
Doctor has stated that signs are suggestive that of recent
sexual act are absent as per Forensic Science Laboratory
report.
31. Taking note of these aspects of the matter, learned
counsel for the appellant would contend that to attract the
offence under section 376 (2) (f) IPC being absent, Trial Court
ought not to have convicted the appellant for the offence
punishable under Section 376 (2) (f) IPC.
32. In a matter of this nature, what is to be looked into
is the oral testimony of the victim girl. She has been examined
as P.W.2. She has stated that there was rubbing of the male
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part to her genitals after accused forcibly took her from the
place where she had shown the house of Hajira (C.W.8). She
has also stated that she sustained huge pain by the act of the
accused and she felt like becoming unconscious. She has
further stated that after hearing the loud noise by the persons
who have assembled there, accused ran away from the spot
after wearing the pant.
33. In the cross-examination, she has specifically stated
that at the place of incident there was no proper light and
accused gagged her mouth with the help of cloth. She further
stated that accused slapped when she tried to escape from his
clutches and thereafter scratched her back and inner part of the
thigh.
34. In cross-examination, she reiterated the rubbing of
male part of the accused with her genital part.
35. It is settled principles of law and requires no
emphasis that to conclude the offence of rape, ejaculation of
the sperm need not be established by the prosecution. The
material evidence on record would be sufficient enough to
establish that there was a penetration of male part into the
genitals of victim girl to slightest extent by the accused.
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36. Though final opinion of the Doctor would not
suggest the recent sexual intercourse, the swelling in the
genitals of victim girl noticed by the Doctor apart from the
other external injuries would be sufficient enough to infer that
the offence of rape has taken place as is held by the learned
Trial Judge.
37. Appreciation of the evidence in a matter of this
nature is to be based on sound and logical reasons. In the
absence of any previous enmity between the complainant and
the accused, why complainant lodged complaint against the
accused is a question that remains unanswered on behalf of the
appellant. Moreover, appellant is aged about 26 years and
victim is only about ten years and they were found in the place
of incident and victim girl was naked when she was rescued.
38. Under such circumstances, in the absence of any
previous enmity, no delay in lodging the complaint immediate
medical examination would go to show that accused did commit
rape on the body of the minor girl.
39. Moreover, place of incident being not having
sufficient light, and ten years old girl being unable to depose as
to the minor details in the act committed by the accused has
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been taken note by the learned Trial Judge while passing the
impugned judgment.
40. On re-appreciation of the material evidence on
record with the light of the grounds urged on behalf of the
appellant, this Court does not find illegal infirmity or perversity
in the finding recorded by the learned Trial Judge.
41. Moreover, taking away the minor girl under the
custody of mother of the complaint in the guise of getting
house located belonging to Hajira (C.W.8) and thereafter
gagging the mouth of the victim girl and taking her to a lonely
place (place of incident) itself would be sufficient to conclude all
the necessary ingredients for the offence punishable under
Section 366 IPC.
42. The abrasion injuries found on the body of the
victim girl would be sufficient enough to maintain the conviction
for the offence punishable under Section 323 and 324 IPC.
Under such circumstances, point No.1 is answered in the
Affirmative and point No.2 in the negative.
Regarding point No.3:
43. Learned Trial Judge has granted minimum
punishment of ten years rigorous imprisonment for the offence
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punishable under Section 376 (2) (f) IPC. Therefore, no further
interference on the sentence.
Regarding point No.4:
44. In view of finding of this Court on point Nos.1 to 3,
following order is passed:
ORDER
Appeal grounds are meritless and accordingly
appeal stands dismissed.
Sd/-
(V SRISHANANDA)
JUDGE
MR
