Judgment:
(Prayer: This Criminal Appeal Is Filed U/S.374(2) Of Cr.Pc Seeking To Set Aside The Judgment Of Conviction And Order Of Sentence Dated 12/16.10.2012 Passed By The Spl. Judge, Bellary, In Spl. Case No.80/2011 And Acquit Him Of All The Charges. This Criminal Appeal Having Been Heard And Reserved For Judgment On 9.1.2014)
1. The Deputy Superintendent of Police, Kudligi Sub- Division, Bellary District, has laid a charge sheet against the accused for the offence punishable under Section 376 of IPC and also u/s.3(1)(X)(XI) and 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. The accused was arrested on 4.9.2011 on the date of the incident itself and since then, he has been in Judicial Custody. After committal proceedings, the Sessions Judge held the trial and held the accused guilty for the above said offences and sentenced him to undergo Rigorous imprisonment for a period of ten years and to pay a fine Rs.50,000/- and in default to undergo Simple imprisonment for another 1 ½ years for the offence punishable under Section 376 of IPC. The said judgment and sentence passed in Special Case No.80/2011 is called in question before this Court.
3. The brief factual matrix that arose before the Sessions Judge are:
That on 3.9.2011, while the victim child daughter of the complainant was aged about six years studying in I Standard, who was playing in front of her house at about 5.00 pm. along with other children. The complainant was washing clothes in front of her house. At that time, the accused Mahesha took the victim girl to the roof of the house of the complainant and committed forcible intercourse with the victim girl. After hearing some noise, the complainant went to the roof of her house and saw the accused committing rape by lying on the victim girl. Then she raised hue and cry. On seeing the complainant, the accused left the victim girl and ran away. The complainant saw her daughter bleeding through her vagina and a kerchief was gagged to her mouth. Thereafter some people gathered there and took the victim girl to the Hospital. Thereafter, a complaint came to be lodged and after investigation, Charge sheet came to be filed. The prosecution in order to bring home the guilt of the accused on the above said allegations, examined PWs.1 to 15 and got marked documents Ex.P1 to P16 and material objects - MOs. 1 to 7. The accused was also examined u/s.313of Cr.PC. Except denying the allegations made against him, the accused has not taken any special defence in the case, nor he chose to enter into defence evidence.
4. After analysing the entire materials on record, the Trial Court has passed the judgment of conviction and sentenced the accused for the offence under Section 376 of I.P.C. The charges framed against the accused disclose that the accused was charged for the offences punishable under Section 376 of IPC and also u/s.3(1)(X)(XI) and 3(2)(V) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
5. I have heard the arguments of the learned Counsel for the appellant and also the learned Addl.SPP for the State.
6. The only point that arise for consideration by this court is:
(1) Whether the Trial Court has committed any legal or factual error in appreciating the evidence on record and arriving at a conclusion that the accused had committed any offence, as alleged against him?
My answer is in the Negative.
7. The prosecution in order to prove the guilt of the accused examined several witnesses. PW1 - Sudha, who is the mother of the victim child, is an eyewitness to the incident. PW2 - Shankar, who is the attestor to Ex.P2, under which a kerchief was seized. PW3 - Ramu, a lorry driver who is a hearsay witness went to the spot after hearing galata and came to know about the incident. PW4 - Bindu, the victim girl and daughter of PW1. She has given details of the incident. PW5 - Y.Yerriswamy, is another panch witness to Ex.P3 under which MOs.2 and 3 - Chaddi and pubic hair of the accused were seized. PW6 - Mohinuddin, another attestor to Ex.P4, under which MOs.4 to 6 which are Frock, Skirt and Vaginal swab of victim girl were recovered. PW7 - Thippeswamy, who is also a hearsay witness, came to the spot after hearing the galata, who saw the accused ran away from the spot. PW8 - Dr.B.Jyothi, Lady Medical Officer who treated the victim girl on the day of the incident and issued Ex.P8 - certificate and also Ex.P9 - a clarificatory certificate to the Police. PW9 - Dr.Satish, who examined the accused on the next day of the incident has given certificate as per Ex.P10 about the capability of the accused to perform sexual intercourse. PW10 - Harish Kumar, PSI, who partly investigated the matter, arrested the accused etc., PW11 - Virupakshappa, Constable who carried the FIR to the Court. PW12 - Narasamma also came to the spot after hearing the shouting of PW1, another important witness who has not supported the case of the prosecution to the full extent. PW13 - Saraswathi, a Lady Constable, who took the victim to the Hospital, PW14 - Malleshappa who apprehended the accused on the same day. PW15 - Dr.K.V. Jagadish, Dy.SP , who investigated the matter and submitted charge sheet. Out of the above said witnesses, the main star witnesses to the prosecution are PWs.1, 4, 8 and 9, whose evidence has been very strongly attacked by the learned Counsel before this Court. He has also drawn my attention to the evidence of other witnesses in order to persuade this Court about the improbabilities of the incident which I am going to discuss little later.
8. The trial Court believing the version of PWs.1, 4, 8 and 9 discussing at length the other corroborative evidence of other witnesses has come to the conclusion that the prosecution has proved the case beyond reasonable doubt so far as the offence u/s.376 of IPC is concerned and the prosecution has not proved the offence u/s.3(2)(5) of the Schedule Caste and Schedule Tribe (Prevention of Atrocities) Act.
9. Now, let me see whether the trial Court has committed any error in appreciating all the materials on record and whether it has committed any wrong in arriving at such a conclusion. PW1 - the mother of the injured who has categorically stated that on that particular day, the accused took the victim girl to the up-stairs of her house and after hearing the cry of the child, she went to the upstairs and saw that the accused gagged her mouth with a kerchief and after removing the inner garments of the child was committed rape on her. After seeing this lady, he went away from the spot. She observed blood oozing from vagina of her daughter up to the leg and she shouted, thereafter, the other witnesses came there by name Thippanna, Gangamma, Gowramma. The accused pushed all the witnesses and ran away from the spot. The trial Court has also appreciated the cross examination of this witness in detail.
10. The learned Counsel for the petitioner so far as this witness is concerned, argued that the accused was not earlier acquainted with the family. The complaint Ex.P1 filed by PW1 lodged on 3.9.2011 but the date mentioned in the complaint as 3.8.2011. Therefore, there was a pre-plan since one month in order to lay a false claim against the accused. This discrepancy has not been explained by any witnesses. Important independent witnesses not examined by the Investigating Officer. In order to get Rs.50,000/- from the Government, under the SC-ST Scheme a false complaint might have been lodged. It is further argued that PW1 was washing the clothes in front of her and can the accused took the child to the up-stairs when there was no previous acquaintance, when so many children are playing at that time and there is no reason why the accused person selected this gild when the mother of the victim girl was so fair and young, he would have selected the mother of the girl. He contended that there were no injuries on any other part of the body of the girl child and the mother has not made any attempt to stop the bleeding, she has not given the kerchief to the police which was gagged to the mouth of the child. Neighbours are also not examined. All these things show that the mother cannot be an eyewitness to the incident she might have deposed falsely in order to implicate the accused.
11. The same arguments were also advanced before the trial Court. The trial Court in fact in detail discussed the evidence of the mother at several places in the judgment, appreciated the evidence and came to the conclusion that she is a truthful witness. I have carefully re-evaluated the evidence of PW1.
12. The argument of the learned Counsel that the accused was not acquainted with the family of PW1. But, it is in the evidence of PW1 that this accused was often visiting the locality of where PW1 and his family members were living for the purpose of collecting rent. The accused has not denied during the course of cross examination he was not at all going to the said place and actually he was not a stranger to the said locality. Even otherwise, the accused was not acquainted with the family of the complainant, that itself is not sufficient to doubt or make the prosecution case disbelievable. Even abruptly if a person goes to a particular spot and commits an offence merely because he was not earlier known to the victim or family members of the victim, it cannot be said that he could not have committed such an offence.
13. The next important aspect raised is that when the mother of the girl was there, the accused would have selected her mother for discharging his lust. It cannot be said that what was running in the mind of the accused. A set of reaction can't be expected from all the people in a particular set of circumstance, because under particular circumstance each and every person behave in a different manner. What was the intention of the accused in taking the girl to the up-stairs of the house of the complainant, when it is seen by not only the mother of the accused, but also the other people who witnessed the accused running away from the spot. When so many witnesses have said that he ran away from the up-stairs of the house of PW1, it becomes the responsibility of the accused to explain such a situation as to why he had been there and why at that time, he was there on the up-stairs of PW1. These are all the adverse facts which have not been explained by the accused himself even during the course of his examination u/s.313 of Cr.P.C. There are instances where father committed rape on his own daughter. Such an extreme circumstance is possible in our country. Therefore, it is not an abnormal behaviour of PW-1.
14. The evidence of PW1 - the mother, in my opinion, when it is dealt with in detail by the learned trial Court, it requires, careful analysis by this court. In our Indian scenario, normally no lady would come to give evidence, which if it is not proved to tarnish the image of his own kid. In this particular case, the future of the kid i.e. the daughter of PW1 is at stake. If at all, if the incident has not happened, for the purpose of creating evidence against the accused, whether can it be believed that PW1 to put the entire life of the child at stake only for the purpose of getting a meager amount of Rs.50,000/- from the Government as the Government would pay an amount of Rs.50,000/- if an SC/ST person is a victim of rape who suffered a serious offence at the hands of non SC/ST person. In this regard, the trial Court has relied upon a ruling of the Hon'ble Apex Court reported in 2009(3) Crimes 222 SC, wherein the Hon'ble Supreme Court has observed that -
"The Courts must, while evaluating evidence, remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a Court just to make a humiliating statement against her honour such as is involved in the commission of rape on her."
15. In this case, it is still worse, the mother of the victim is putting the entire life of the child into stake knowingly fully well that the said allegations against the accused if proved, it may tarnish the image of the victim girl and it affects the future marriage prospects of the said girl. In spite of that, if a woman is coming forward to disclose the factual aspect, which actually happened, in such circumstances, the evidence of such lady cannot be disbelieved.
16. Apart from the above said ruling, it is also to be noted that the accused according to the arguments of the learned Counsel is a stranger and he was not very much close to the family of the complainant. Therefore, it goes without saying why unnecessary the parents of the victim girl wants to implicate the accused if there is no incident as such happened. In a decision reported in AIR 1989 SC 1475 between Prithvi Chand Vs. State of Himachal Pradesh the Hon'ble Supreme Court also held that
"it is not possible to believe that the prosecutrix and her parents would allow the real culprit to escape and falsely involve an innocent person for the commission or the crime".
17. The learned Counsel also drew my attention that when PW-1 a young and good looking lady was washing the clothes whether accused except by looking at her could dare enough to take the tender child to the upstairs in her presence. In this regard, the evidence of PW-1 shows that the accused came near the house of the lady, PW-4 the victim girl was playing with the children and the accused took her to the upstairs of the house. When she went to the upstairs the accused playing with victim girl and after seeing this lady he got up from the victim girl and she saw that the pant zip of the accused was open and observed that the victim girl was bleeding from the private part. Even accepting the accused was taken the girl in presence of PW-1 could it be accepted that PW-1 could have dreamt that victim girl who is hardly aged about 6 years and the accused aged more than 25 years would take such girl for any illegal purpose and knowingly she kept quite. The accused might have taken the girl while playing with other children for some other purpose. But it cannot be said that at any stretch of imagination to suspect that PW-1 knowing fully well that the accused taking the victim girl for illegal purpose, kept quite, no mother in this universe would do that.
18. The further arguments of the learned Counsel is that the topography of the said place and also contended that the neighbours did not go there and not examined by the Police during the course of investigation. PW-1, PW-10 and other witnesses are all belonged to the same caste. In fact, the Trial Court has considered this particular aspect in detail at page 48 and 51. It is evident from the admitted evidence of the witnesses and as well it is suggested to the Investigating Officer that all the witnesses are from the same locality and from the same caste of PW-1. It is also there in the evidence of the Investigating Officer that most of the people who were residing in the said area belonged to the caste of PW-1. When such being the case, the contention of the learned counsel falls to the ground that only caste people were examined by the Police. If the evidence of those witnesses corroborate the evidence of PW-1 merely because they belonged to the same caste, their evidence cannot be easily brushed aside.
19. The other contention raised by the learned Counsel is that it was a rough surface on the terrace admitted by PW-1. But, there were absolutely no injuries on the victim girl. The Doctors evidence also shows that there were no external injuries on the girl. So far as this aspect is concerned, the Trial Court at pages 16 to 18 has in detail discussed about this particular aspect. The Trial Court also relied upon a Ruling of the Hon'ble Supreme Court in State of Himachal Pradesh Vs. Gian Chand reported in 2001 SCC (CRL) 980 at para 15 wherein the Hon'ble Supreme Court held that :
"In case of children who are incapable of offering any resistance external marks of violence may not be found. It is true that marks of external injury have not been found on the person of the accused but that by itself does not negate the prosecution case. Modi has opined that even in the case of a child victim being ravished by a grown-up person it is not necessary that there should always be marks of injuries on the penis in such cases. Further, it is to be noted that about two days had elapsed between the time of the incident and medical examination of the accused within which time minor injuries, even if caused, might have healed".
20. In this regard, it can also be gainfully quoted another Ruling of this Court reported in 2004 Crl. L.J. 4123 KAR between Syed Pasha Vs. State of Karnataka wherein it is held that :
"When accused took the child on his lap and by removing her underwear he pushed his penis to the vagina of the child naturally it resulted in laceration of hymen and surrounding area would become reddish and under such circumstances the child sustaining injury on other parts of her body does not arise".
21. In fact, in this particular case the child is aged only 5 to 6 years, the accused is aged 25 years, the victim was wearing a skirt and if there was any resistance by the child to escape from the clutches of the accused then only the possibility of injuries on the other parts of the body of the child may arise. But when the accused has put to his entire body on the child, the child may not be in a position even to shake or tilt her body. When such being the case, expectation of other injuries on the body of the girl is foolishness. Therefore, this argument of the learned Counsel in my opinion is also not tenable.
22. The learned Counsel strenuously attacked the evidence of PW-1 on the ground that the complaint was fully drafted as per the suggestions of Advocate Sri. Sathyanarayana. His involvement is dominant so far as this case is concerned. But the evidence of PW-1 shows that she denied such suggestion and even she failed to identify any person as Advocate Sathyanarayana in the Court. This particular aspect is also considered by the learned Trial Judge at paragraph 52 of his Judgment. Of course, Ex.P5 a photo as admitted by PW-1 shows that the said Sathyanarayana, Advocate was present when Police drew the panchanama of the scene of offence. Merely because the Advocate was present at that particular point of time it cannot be said that he is having the mastermind in lodging any false complaint against the accused. Moreover, there is no suggestion whatsoever made to any of the witnesses showing any ill-will, enmity or hatred between the accused and the Advocate Sri. Sathyanarayana as well as PW-14 - Malleshappa who was working as Assistant to Dy.S.P. Though it is suggested to PW-14 - Head Constable, but nothing is elicited what was the animosity or grudge against the accused. Even accepting that they have helped PW-1 in lodging the complaint and conducting the case, that itself is not sufficient that they have helped in lodging a false case against the accused person. Therefore, such an argument in my opinion, is not sustainable.
23. PW-1 has further categorically stated that when the child was taken to hospital, blood was there on the private part of the victim and also on the leg portion of the victim. She also deposed that at the time of spot mahazar under garments were handed over to the Police. But those under garments were not produced before the Court. There is some exaggeration on the part of the witness that accused under garments were actually sent by the Doctor to the Police. It is quite often happen that after a long time witnesses are examined before the Court. They may put the horse behind court by confusing some of the factual aspect of the case. She may also not in a position to tell the case sequencewise. But, merely because some discrepancies are there in the evidence of PW-1 that has to be seen whether such discrepancies totally destroy the substratum of the case. If it is not such mere omission or contradictions shall be always ignored by the Court.
24. The learned Counsel also drawn my attention with regard to some omissions in the FIR i.e. with regard to the presence of some witnesses, etc. But the FIR is not a substantive piece of evidence. Once the evidence of witness is recorded and it is not an encyclopedia and some omissions or contradictions bound to be there in the evidence and FIR the same is not fatal to the case of the prosecution.
25. The evidence of PW-1 is also seriously attacked by the learned Counsel on the ground that the FIR produced before the Court shows that it was dated 03.08.2011, but it was lodged on 03.09.2011 at 9.10 p.m. It is admitted fact that the complainant came to the Police Station and lodged the written complaint as per Ex.P1. On that basis the case was registered and thereafter, the victim girl was sent to medical examination through WPC 1043. The factum of victim girl brought to Hospital by WPC is corroborated by evidence of WPC 1043 (PW-8) and the girl was actually seen by the Doctor is also fully supported by the evidence of Doctor, and also the Special Judge has received the said FIR on 03.09.2011 itself. Therefore, from the evidence of PW-10 the PSI and PW-11 - Police Constable and PW-1 - Complainant and WPC 1043, it is clear that the complaint was lodged on 03.09.2011, but not on 03.08.2011. But what the learned Counsel submit is that in order to falsely implicate the accused it was pre-planned from 03.08.2011 itself. Therefore, on that day itself the complaint was prepared and they are waiting for an opportunity and concocted the story of rape and lodged the complaint on 03.09.2011. Therefore, they failed to correct the date on the complaint which went as it is. Such argument of the learned Counsel, in my opinion, is a futile attempt to convince the Court, because of the simple reason no person can imagine that such incident would happen on 03.09.2011 and in order to file the complaint on 03.09.2011 one month prior to the incident itself PW-1 and others have planned and kept the complaint ready. It is not substantiated by any other evidence except this typographical mistake. So far as other witnesses examined before the Court who are the incidental witnesses i.e. PW-3 - Ramu, PW-7 - Thippe Swamy, PW- 12 - Narasamma have stated that on that particular day accused was present in the said area and ran away from the spot. Therefore, it cannot at any stretch of imagination be said that the complaint was prepared on 03.08.2011 itself and subsequently filed on 03.09.2011. Of course, there is lapse on the part of the complainant and as well as the Police witnesses in not properly explaining this mistake and why it is not corrected. But immediately after filing of the complaint and due to any oversight or any inadvertence the date was filed as 03.08.2011 it would have been corrected as 03.09.2011. But mere non-correction of the said date would not totally invalidate the proof of the incident which was taken place on 03.09.2011 itself which is otherwise proved. The learned Trial Judge has in detail discussed this particular aspect at paragraph 43 and also relied upon a decision of the Hon'ble Supreme Court reported in 2001 SC 2075 between State of Himachal Pradesh Vs. Gian Chand it is observed that: "It is common knowledge and also judicially noted fact that incident like rape, moreso, when the perpetrator of the crime happens to be a member of the family or related therewith, involve the honour of the family and, therefore, there is a reluctance on the part of the family of the victim to report the matter to the police and carry the same to report. A cool thought may proceed lodging of the FIR. Such are a observations found to have been made by this Court in State of Punjab Vs. Gurmit Singh (1996) 2 SCC 384". So, even if there is any delay or if there is any mistake in mentioning the date the same has been properly explained by the complainant in the complaint itself why they went to the Police Station little late, etc. Further, when the image of the family and the victim girl who is a very tender age girl whether the complaint has to be lodged at the stake of future of the girl everything should be looked into and thought of by the parents before lodging the complaint. Even if there is any delay in lodging the complaint as argued by the learned Counsel that will not take away to the entire case of the prosecution. Hence, in my opinion, such argument cannot be countenanced. Looking to the evidence of PW-1, her evidence though contain some discrepancy, omissions and contradictions but on overall analysis it stand to the test of credibility. Hence, her evidence can be safely acted upon as rightly done by the trial Court.
26. Now, coming to the evidence of PW-4, who is the child witness. The learned Counsel for the accused strenuously contended the child witnesses are very dangerous witnesses and their evidence has to be very carefully scrutinized. The Trial Court in fact, relied upon the evidence of the child witness and convicted the accused person wrongly. Before adverting to how to deal with the child. Let me see what the Trial Court has said so far as the child witness is concerned.
27. The Trial Court has observed that the child has given a very short statement and denied the suggestions of the accused that she deposed falsely before the Court though it is admitted that she was advised by her mother. Moreover, the Trial Court has also said that the evidence of PW-4 - the child witness is also corroborated by evidence of her mother and medical evidence and also Ex.P8 to P10 - medical certificates. Therefore, the evidence of the child can be used as a corroborative piece of evidence to the other materials on record. Little elaborating this, I would like to add; as could be seen from the evidence of PW-4 - the child witness the Trial Court has recorded the questions and answers of the child putting some preliminary questions and come to the conclusion that the child is able to testify. Therefore, it recorded her statement. The child has categorically stated in her evidence that on that particular day the accused took her to the upstairs and put the kerchief into her mouth and removed his under garment and caused the bleeding injury to her private part. At that time her mother was washing the clothes and thereafter her mother came on to the terrace then the accused went away from the place. This portion of the evidence is fully corroborated by other evidence on record, and this evidence is not the sole piece of evidence available to the Court. In the course of cross- examination it is suggested and admitted that she heard the words of her father and mother. It is also admitted she has given the statement as told by her father and mother. Merely because she deposed before the Court that she gave the evidence as told by her father and mother, it does not mean to say that she has been tutored and it does not mean to say that she deposed falsehood. First it has to be proved before the Court that her father and mother have tutored falsehood. Therefore, the child has given false statement before the Court. In this regard, it is to be noted that the evidence of a child witness must be evaluated very carefully with greater circumspection because the child may be susceptible to tutoring. However, an inference as to whether the child has been tutored or not can be drawn from the contents of its deposition. Merely because it says that I am deposing as told by my father and mother, but what is stated by the child should be proved to be false. It is only the Court can draw an inference that the child has stated falsehood before the Court only on the tutoring by the parents. During the course of cross-examination, defence Lawyer should bring out to indicate that the child could not differentiate between right and wrong, truth and falsehood. The Court may ascertain the suitability of the witnesses by putting questions that has been done and after coming to know that the child can understand right and wrong. Therefore, the Court has recorded the evidence of the child witness. A child witness must be able to understand the pros and cons of its statement. In fact, unmindful of the situation the child has stated that she has given the statement as told by her father and mother, that clearly goes to show that she is speaking truth of the case. Even if it is told by their father and mother, the witnesses did not tell any false facts. This goes to show that the child cannot be termed as false witness though some evidence is there that before the evidence of the child witness their father and mother have told the child to depose before the Court. But here the Court has to look into the fact that whether the father and mother have tutored the witness and made the witness to by heart the statement and to depose before the Court i.e. not there so far as this case is concerned, because of the simple reason that the child has denied the suggestions that the child is giving false hood before the Court. The father and mother might have told the story of the prosecution before putting the witness into the box so as to make her to recollect the incident which was happened long time before. So, mere advising or telling the witness to recollect its memory cannot be termed as tutoring. Of course, the evidence of the child witness should be more carefully scrutinized. But, here the evidence of this witness is fully corroborated by other evidence on record as narrated by the learned Trial Judge. Hence, such argument of the learned Counsel, in my opinion, is also not tenable.
28. PW-3 - Ramu S/o Kumara Swamy who corroborated the evidence of PW-1 and PW-4. He has categorically stated, on that particular day he went to the house of one Khasim Sab. His house is situated just behind the house of PW-1. When this witness and Khasim Sab were talking together he heard the galata in the upstairs of the house of PW-1. PW-1 was screaming for catching of the accused and this witness stopped the accused but he ran away from the spot on his motorcycle. Immediately he went to the house of PW-1 and on enquiry he came to know that the accused committed rape of the said girl. He also saw that there was blood stains on the leg portion of the victim girl. Very peculiarly he also stated that himself and one Muttu and his friend Manjunath went in search of the accused and on that day they found the accused at 9.30 p.m. near Vishal Talkies and they handed over the accused to the Police later. This version is not totally disturbed during the course of cross-examination. PW- 3 in fact categorically explained that he is a very casual witness and he purposefully did not go to the spot to support the evidence of PW-1, but in a very normal casual manner he deposed before the Court. In the course of cross-examination, it is suggested to this witness that this witness and PW-1 are relatives to each other, therefore, he is deposing falsehood. Though some discrepancies are elicited that, on that particular day when they went in search of the accused, they actually caught the accused and handed over him to Police Constable - Malleshappa near Vishal Theatre. It is also elicited that he went to the house of the accused and accused tried to escape from them and accused did not assault these persons at that time. The complainant had been to the Police Station by the time the accused was caught by these witnesses. Though some discrepancies are there regarding these persons actually handed over the accused in the Police Station the same is not sufficient to disbelieve him. According to Police, the evidence of PW-14 - Malleshappa who has stated that on 03.09.2011 at about 10.00 p.m. he caught the accused near Vishal Talkies and public actually caught hold the accused at that particular period and thereafter, he took the accused to his custody and produced him before the PSI and at 10.45 p.m. he took the accused to the Hospital and after examination of the accused in the Hospital he again took the accused back to the Police Station. He also collected one chaddi and pubic hair of the accused from the Doctor in order to send the same to FSL. Though some discrepancy is there in the evidence of this witness PW-3 also regarding arrest of the accused in the Police Station, but nevertheless catching of the accused is substantiated such minor discrepancy how they caught, where they produced are all to be ignored.
29. Further, it is suggested to this witness that he has not actually seen the motorcycle number of the accused. He admitted that PW1's husband is relative to this witness, as I have already narrated the witnesses are from the same locality and they belonged to same caste of PW-1. But on that ground their evidence cannot be disbelieved. In the cross-examination, it is elicited that in the said locality the people belonging to Valmiki community are large in number, PW-1 also belonged to same caste. Therefore, perhaps the Police have recorded the statements of those witnesses who have actually seen the accused and relevant to the prosecution case. Therefore, there is no reason to disbelieve the evidence of this witness.
30. Another important witness is PW-7. PW-7 has deposed before the Court corroborating the evidence of PW-3 and PW-1. This witness Mr. Thippeswamy has deposed that on 03.09.2011 at about 5.00 p.m. when he was proceeding near the house of the complainant he heard some noise of some galata, he went there, by the time he reached the house of PW-1 he saw the accused was running away from the place. He in fact made efforts to catch the accused, but he could not able to catch him. Except this he has not stated anything. But he deposed that later he came to know through PW-1 that the accused has committed rape on the victim girl. In the course of cross-examination, again similar set of facts were put to this witness that he also belonged to the same caste of PW-1. It is also stated that he also went to the Police Station along with PW-1 and normally he would not go to that particular locality, but on that particular day he wanted to meet one of his friends therefore, he went there.
31. Learned Counsel contends that he is a chance witness and his evidence cannot be believed. But he never stated in any exaggeration that he has actually seen the commission of any offence by the accused. He is only a circumstantial evidence who saw the accused running away from the said place at that time and he came to know about the commission of rape by the accused through PW-1 only. Therefore, when he has not at all stated anything against the accused except seeing him running away, it cannot be said that he is a false witness. Even if he has not seen any incident if he would have deposed that as if he has seen the incident then doubt would have been created because PW-1 never stated the presence of any witnesses when the accused was committing the offence on the victim girl. Therefore, the evidence of this witness also not totally can be discarded. He is a natural witness. The learned Trial Judge also discussed the evidence of this witness in detail. At paragraphs 41 and 42 the Trial Court also discussed the evidence of PW-3, PW-7 and PW-12 together and hold that they corroborated each other.
32. The Trial Court also discarded the arguments of the learned Counsel that these witnesses are chance witnesses and they cannot be relied upon. But the Trial Court in fact after in detail discussing the evidence of these witnesses at paragraphs 41 and 42 and held that the evidence of these witnesses cannot be disbelieved merely on the ground that some suggestions are made with regard to the enmity between PW-3 and the accused on the ground that accused on several occasions objected sub-standard contract work of PW-3 and on account of which, to take revenge PW-3 deposed falsehood before the Court. When that suggestion was denied there is no other materials available to discard the evidence of these witnesses. Hence, I don't find any reasons to differ from the opinion of the learned Trial Judge.
33. Having looked into the evidence of these witnesses, let me discuss the evidence of Doctor whether the evidence of PW-1 and PW-4 are supported by the medical evidence. PW-8 - Dr. Smt. Jyothi, who examined the victim girl has deposed that on 03.09.2011 she examined the victim girl at about 10.15 p.m. who was brought by WPC 1043. She found the following few injuries :
a) There was reddish wound surrounding the private part of the victim girl measuring 2 x 2 cms. and there was a wound inside the vagina;
b) The Hymen of the said girl was ruptured. On the basis of that, she gave the opinion as per Ex.P8 that the victim girl was subjected to sexual act. In the course of cross-examination, she has deposed that she has got lot of experience, she has examined 20 to 25 victims of rape during the tenure of her service. The learned Counsel so far as this witness is concerned, very strenuously argued that this witness has not taken the permission of the mother of the victim girl before examination. Therefore, she totally violated the provision of Criminal Procedure Code. It is also argued that the Doctor has not stated how these injuries could be caused. She violated Section 164-A of Cr.P.C. and there is no certificate that she has taken the consent of the mother of the victim girl and she has not mentioned the age of the injuries and Ex.P9 is the document later built up and it is argued that the rupture of hymen is not sufficient to draw inference, unless it is shown that the accused was the author of such rupture. There is no evidence from the Doctor that there was a penetration into the vagina of the private part of the accused or any hard object. In the absence of that no inference can be drawn. The alternative suggestion is also made to the Doctor that such injury to the vagina could also been caused if the person scratches the vagina with her nail and the rupture also occur if the child while playing falls on a sharp object. It is also admitted by the Doctor that in small children hymen would be very deep inside the vagina. The Doctor also admitted that she did not observe any scratches on the vagina and there was no bleeding in vagina at the time of examination. Therefore, the learned Counsel argued that the evidence of PW-1, PW-4 does not corroborate the evidence of the Doctor as PW-1 and PW-4 have stated that there was bleeding at that particular point of time.
34. The Doctor in fact also gave an explanation that by that time the victim girl was brought to the Hospital, there was lapse of much time. Therefore, there may not be chances of the blood stains on the vagina. If the victim girl's vagina was cleaned then also the chances of bloodstains may not be there. But what is to be looked into by the Court is that the vagina was reddish there was an injury to the vagina. It is quite natural that the accused while committing the rape could not have completely pushed his penis into the vagina of the child, he might have attempted to do that, in the meantime the mother - PW-1 must have came there, it should be taken note of that the complete penetration of penis is not necessary in order to complete the rape. It is to be noted that in Modis Medical Jurisprudence and Texicology, 22nd Edition at page 495 it states that : "Thus, to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labia majora or the vulva or pudenda, with or without emission of semen, or even an attempt at penetration is quite sufficient for the purpose of the law. It is therefore, quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case, the medical officer should mention the negative facts in his report but should not give his opinion that no rape had been committed. Rape is a crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is to the effect whether there is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion not a medical one".
35. The observation made above by Doctor Modi makes it clear that even if there is slightest degree of penetration with or without ejectment, attracts the ingredients of Section 375 of IPC. It is therefore quite possible the offence of rape may take place with or without causing injury to the genital organs or leaving any seminal stains. Therefore, this Court can come to the conclusion that though there is no complete penetration of the penis of the accused but there was some attempt to push the penis to vagina of the said girl, perhaps in that context she might have sustained some reddishness on the surrounding her vagina. Though the injury in the vagina may not be correspond to the act of the accused nevertheless the reddishness surrounding the vagina of the girl quite very well be connected to the act of the accused.
36. Now, coming to the consent of the mother, of course, Section 164-A of Cr.P.C. mandates how a victim girl has to be examined by the Doctor, whether consent is absolutely necessary in writing, it was the mother who has taken the girl to the Hospital. Admittedly, the mother was there throughout till the examination of the victim girl by the Doctor. There is no suggestions to PW-1 that she has not given any consent to the Doctor to examine the victim girl on that day. There is no suggestions whatsoever to PW-1 that the Doctor without consent of PW-1 illegally without following the procedure has conducted the examination of the victim girl. When PW-1 has categorically stated that the Doctor has examined the victim girl in her presence, that itself goes to show that she was consenting party for conducting such examination by the Doctor. The Trial Court in fact, also very well in a positive manner brought this particular aspect with reference to injuries on the victim girl and also consent of the mother at paragraphs 29 to 37. In fact, the Trial Court also relied upon a decision reported in 2005 SCC (Criminal) 327 between State of Himachal Pradesh Vs. Shreekanth Shekar and also 2007 (3) Crimes 124 between Yadukumar Vs. State of Chhattisgarh. The Trial Court has observed that the testimony of the victim and her mother has to be very broadly looked into as they are not educated people. The mother of the victim girl passed out 3 class and a rustic villager, if their evidence is scanned with suspicion on all minor discrepancies that would be an insult to justice. The Trial Court also observed that attempt to put the penis into the private part of the victim girl even lightly would be sufficient to constitute the offence. The Trial Court also discussed Section 164-A and said that there was consent of the mother. Therefore, such a detailed discussions by the Trial Court cannot be easily brushed aside by this Court and there is no illegality committed by the Trial Court in appreciating the evidence of this witness. Ex.P8 and P9 though at the earlier stages a xerox copy was produced but later original was produced. Therefore, the learned Counsel has given up the arguments so far as these documents are concerned.
37. Looking to the evidence of Doctor also, there is a strong medical evidence available. Though there was a suggestion that the rupturing of hymen is due to some other reason but no other possibility has been shown to the Court that the victim girl at any point of time earlier to the incident fell down on sharp edged weapon, due to which her hymen was ruptured. It is also worth to note a decision of the Hon'ble Supreme Court reported in 2004 Crl. L.J. 2109 between State of Chattisghar Vs. Derta wherein the Apex Court said that : "Mere suggestions of alternate circumstance under which such injuries could be caused is not sufficient unless such existence of circumstances are shown to the Court".
Here also in this case, no such circumstance have been shown before the Court, not even a suggestion is made to this effect either to PW-1 or to the victim girl.
38. The learned Counsel also relied upon a decision reported in AIR (SC) 1977 Page 1307 between Pratap Misra Vs. State of Orissa wherein the Hon'ble Supreme Court held that :
"Medical Jurisprudence is not an exact science and indeed difficult for any Doctor to say with precision and exactitude as to when injury was caused".
But though the evidence of PW-8 on the basis of Ex.P8 and P9, it cannot be said there was complete penetration of the penis. But with exactitude it can be said that there was attempt to penetration. The evidence of PW-1 and also PW-4 coupled with the medical evidence shows that the act of the accused that he was lying on the victim girl and his pant zip was open and there was injury to the vagina and there was blood coming out from the vagina at the initial stages, clearly disclose that there was some attempt to push his penis into the vagina of the girl. Therefore, the evidence of these three witnesses cannot be easily brushed aside.
39. PW-9 - Dr. Satish, who examined the accused and gave the certificate - Ex.P10 shows that the accused was capable of performing sexual act. This Doctor appears to be not so experienced because he admits that he sent the clothes of the accused in a casual manner without seizing and sealing the same in a proper manner. But that itself is not sufficient to thrown out his evidence. Moreover, it is not the case of the accused that he is an impotent man and not capable of performing any sexual activity and on that ground false implication not pleaded. On the other hand, it is argued by the learned Counsel that the accused was having a very beautiful wife and there was no occasion for him to do such an act against girl child of 6 years. This evidence is sufficient to show the capability of the accused to do sexual act. I will consider this particular aspect of non-sealing of the said articles while discussing the evidence of the Investigating Officer.
40. Now, coming to the evidence of the other evidence with regard to the seizure of MO-1. PW-2, one Mr. Shankar, has stated that about four months prior to his examination the Police called him and one Mr. Khasim Sab and seized a kerchief in their presence under Ex.P2. It is suggested in the course of cross- examination that the Police have put this particular kerchief into a cover and seized the same. It is also suggested, by the time this witness reached the place the Police have already taken the cloth. Therefore, it goes without saying that the seizure of the said cloth is not so much denied by the accused. Though it is suggested that no cloth was seized in his presence and he put his signature as per the instructions of the Police. Therefore, the seizure of MO-1 - Kerchief has been categorically established.
41. PW-5 - Yerriswamy, he in fact deposed before the Court that he was present at the time of drawing up the mahazar - Ex.P3 and seizure of MO-2 and MO-3 - a blue under garment and pubic hair of the accused. In the course of cross-examination also it is elicited that, on that particular day he was proceeding in front of the Police Station and Police called him inside. One Giridhar was also there in the Police Station. Giridhar is the brother of PW-3. What the learned Counsel wants to argue in this case is that all these witnesses are known to PW-1 and relatives of PW-1. I have already discussed above, merely because they belongs to same community and relatives, their evidence cannot be discarded. Of course, it is elicited that the Police who brought the said cloth of the accused and pubic hair, it was not brought in sealed manner. I have already narrated the evidence of PW-9, who also stated that he has not sent the clothes of the accused and the pubic hair in a sealed cover. There is serious lapse on the part of the Investigating Officer and also this PW-9 who have acted in a very casual manner.
42. The Investigating Officer - PW-15 Dr. K.V. Jagadish has accepted this particular aspect. But the lapse on the part of the Investigation, in my opinion alone is not sufficient to throw away the case of the prosecution, when other materials on record overwhelming by establishing the case of the prosecution.
43. Learned Counsel also strenuously argued referring to the evidence of PW-15, who is the Investigating Officer who conducted the spot mahazar and other recovery mahazars and also received FSL report, etc., narrating that he did not give any instructions to the complainant to correct the date of complaint as 03.09.2011 instead of 03.08.2011. He has not examined the other witnesses of the locality who are independent witnesses and who are more reliable than the witnesses who belonged to the same caste of PW-1. It is admitted that he did not try to examine any other witnesses. There are of course, some lapses on the part of the Investigating Officer in this regard and he has not collected any documents pertaining to the age of the victim girl and he has not examined any independent witnesses. But the Investigating Officer has given explanation for this that as per his information, the witnesses examined by him were only the witnesses who saw the accused on that particular day. Therefore, he did not try to examine any other persons. Though there is some lapse on the part of the Investigating Officer and the Doctor as narrated above, in my opinion, when other over whelming evidence of PW-1 and PW-4 is there on record and it is corroborated by evidence of PW-8 and also the evidence of other witnesses who saw the accused person on that particular day at the spot and running away and catching of the accused and sending the accused to the medical examination. These sequence of events clearly goes to show that apart from the lapse in the investigation, the case of the prosecution is otherwise established. In such circumstances, the Court normally should give weightage to the substratum of the case of the prosecution not to highlight the small investigation lapses in order to acquit the accused. In this regard, it is worth to refer a decision of the Hon'ble Supreme Court reported in (1995) 5 SCC 518 between Karnel Singh Vs. State of Madhya Pradesh at Head Note (B) the Hon'ble Supreme Court held that :
"Evidence and proof - Rape of a married woman, a labourer, by another labourer - Failure of the prosecution to examine independent witnesses who could have corroborated the testimony of the prosecutrix. Recovery of semen-stained chaddi of the accused not proved. Presence of semen stains on the petticoat and in the vagina of the prosecutrix lending assurance to her accusation. Held, in the circumstances of the case, defective investigation by the police cannot be a ground for acquitting the accused. Mere delay in lodging FIR does not raise the inference that the complaint was false. Indian Women are slow and hesitant to complain of such assault. Rape having been committed on a pile of sand, absence of injury on her person inconsequential". The above said decision and the circumstances which are also existing in this particular case i.e. with regard to delay in lodging the complaint, absence of injuries on the victim girl and also the lapses in investigation. Therefore, the Court has to look into the over all substance in a broad view in evaluating the evidence. But it would not be right in acquitting the accused persons solely on account of defect in the investigation.
44. The FSL report produced before the Court which is marked at Ex.P16, which shows that :
1) One Pant;
2) One Chaddi;
3) Pubic hairs;
4) One frock;
5) One shorts;
6) Vaginal swap of the victim girl.
were sent to the FSL examination. All these shows particularly item Nos. (1), (3), (4), (5) and (6) there were no seminal stains were detected and blood was detected. But however, on item No.(2) i.e. Chaddi of the accused there were seminal stains were detected.
45. The recovery of Chaddi from the accused, there is some discrepancy with regard to the seizure of the same as it is elicited from the mouth of the panch witness and as well as the Doctor that it was not properly seized and sealed when it was collected by the Police. PW-9 - Doctor has also supported the same. Therefore, much reliance cannot be placed so far as this aspect is concerned. Nevertheless, the evidence of PW-1 says that the zip of the pant of the accused was opened at that particular point of time. It cannot also be said that after the commission of the act by the accused there may be some discharge of seminal stains by the accused which was collected in his chaddi, that has been resulted in showing positive of existence of seminal stains on MO-2. Even otherwise, bereft this evidence as I have stated that the other evidence on record are sufficient to draw an inference of guilt of the accused.
46. Before parting with the judgment, this Court has to remind itself as to how the cases of rape particularly on child has to be looked into by the Courts. The Hon'ble Supreme Court in a decision reported in (1996) 2 SCC 384 between State of Punjab Vs. Gurmit Singh and others wherein it is said that : "Cases involving sexual molestation. Duty of the court to deal with such cases with utmost sensitivity. Minor contradictions or insignificant discrepancies in the statement of the prosecutrix should not be a ground for throwing out an otherwise reliable prosecution case".
It is to be borne in mind that of late, crime against women in general and rape against children particularly enormously increasing now a days. Even recently Delhi rape case on a minor girl has created a huge societal cry in the country. It is an irony that while we are celebrating women's rights in all spheres, we show little or no concern for her honour. If the Courts deal with the matter of offences against children in a very casual manner it will be a reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. It should be borne in mind the rapist not only violates the victim's privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Therefore, it is not a mere physical assault it is often destructive of the whole personality of the victim. In such circumstances, the Courts should not deal with the matter in a very casual manner, should not give importance to the minor discrepancies that the case of the prosecution has to be believed then recording of conviction has to be there, otherwise if Courts give the importance to the minor discrepancies or any discrepancies which is not sufficient to go to the route of the prosecution case and capable of uprooting the case of the prosecution then the Court should ignore these discrepancies and record the conviction.
47. On looking to the detailed discussions of all the witnesses made by the Trial Court, in my opinion, the Trial Court has restored its very good attention to all the witnesses and answered all the points raised by the defence Counsel and recorded a very founded and well reasoned judgment of conviction and sentence against the accused. The sentencing part of the judgment, in my opinion, is also not liable to be interfered because the attitude of the accused in order to discharge its selecting a small tender age girl of 6 years is barbaric in nature. Therefore, such offences should be dealt with very seriously and with a view to deter the people like accused in the society and also to send a message to such like minded offenders that such offences would be dealt with iron hand. Therefore, rigorous sentence is required to be passed. Accordingly, the Trial Court has passed such a sentence on the accused, which also deserves to be confirmed. There is absolutely no reason whatsoever to interfere with the judgment of conviction and sentence passed by the Trial Court. Accordingly, the Criminal Appeal deserves to be dismissed.
48. With these reasons, I proceed to pass the following Order :
This Criminal Appeal is hereby dismissed.