Full Judgment
Judgment and Order, (Cav)
1. This criminal appeal has been filed against the judgment and order dated 24-12-2008 passed by the learned Sessions Judge, Tinsukia in Sessions Case No.117 (T)/2007 convicting the appellant u/s 376 (2) (f) IPC and sentencing him to suffer rigorous imprisonment (RI) for ten years and to pay fine of Rs.5000/-, in default, to undergo further RI for six months.
2. Facts of the case may be briefly noted.
3. On 13-05-2006, one Shri Rameshwar Singh of Chirwapatty, Tinsukia lodged a first information before the Tinsukia police station stating that at about 2:15 in the afternoon of that day, the appellant, who was a co-tenant and living in the next room on rent, by enticing his six years old daughter with money took her to his room and after closing the door committed rape on her. The first information was registered as Tinsukia police station case No.222/2006 u/s 376 (2) (f) IPC. Police investigated the case and after completion of the investigation, submitted charge sheet against the appellant under the aforesaid section. The case being exclusively triable by a Court of Sessions, it was committed to the Court of the Sessions Judge, Tinsukia. Charge under the aforesaid section was framed against the appellant and when the same was read over and explained to the appellant, he pleaded not guilty. In the course of the trial, prosecution examined as many as eight witnesses. At the end of the prosecution witnesses, appellant was examined u/s 313 Cr.P.C. Plea taken by the defence was of total denial. The defence, however, did not adduce any evidence.
4. At the conclusion of the trial, learned trial Court convicted the appellant u/s 376(2)(f) IPC and sentenced him as indicated above.
5. Aggrieved, appellant has filed the present appeal.
6. Heard Mr. B. Padun, learned Counsel for the appellant and Ms. A. Begum, learned Additional PP, Assam.
7. Learned Counsel for the appellant heavily relies upon the medical evidence. He submits that as per medical opinion, the hymen of the victim was found intact. Medical examination of the undergarments of the victim and the accused did not give any conclusive opinion that the blood stain which was examined was that of the appellant. No trace of spermatozoa was found. Learned trial Court also relied upon alleged extra-judicial confession of the appellant made before PW 4, which was not justified. He also submits that landlord of the informant as well as of the appellant Shri Shyamal Choudhury was a vital witness, who was not examined. The failure of the prosecution to examine such a vital witness has cast a shadow of doubt over the prosecution case. Relying upon a Supreme Court judgment in the case of Harjinder Singh alias Bhola -Vs- State of Punjab reported in (2004) 11 SCC 253, learned Counsel for the appellant submits that on the basis of the evidence on record there is considerable doubt about the culpability of the appellant in the commission of the offence and, therefore, appellant is entitled to the benefit of doubt.
8. Opposing the submissions made by learned Counsel for the appellant, learned Additional Public Prosecutor submits that from the testimony of the witnesses, there can be no manner of doubt about the guilt of the appellant. No other view than the prosecution version is possible. Appellant had committed a heinous offence and, therefore, no interference is called for either in the conviction or in the sentence.
9. Submissions made have been considered. Record of the case has also been perused.
10. Since it is a case of rape of a minor, let us first examine her testimony. She was examined as PW 5. Learned Court below was clearly of the view that the victim was a minor, aged about 7 or 8 years. She was studying in class-I. Learned Court below put several questions to her and it was observed that she not only understood the questions but could answer them intelligently. Therefore, the learned Court below came to the conclusion that the victim girl though a minor, was competent to depose. In her evidence, she stated that she knew the accused and used to call him uncle. On the day of occurrence at about 3 pm while she was playing alone, the appellant came there and gave her one rupee. He took her to a room of a nearby house and disrobed her. He also undressed himself. After gagging her mouth with his hand, he forced his penis into her private parts. Accused also grabbed her both hands by his other hand. She started bleeding from her vagina and experienced pain. After committing the offence, the appellant fled away. She later on narrated the incident to her mother and her aunt Smt. Poonam Devi. She further stated that she was taken to a hospital where she was examined by a doctor. She was also taken before a Magistrate and her statement was recorded u/s 164 Cr.P.C. She was cross-examined but her testimony could not be dislodged.
11. PW 2 is the informant, the father of the victim. He stated that at the time of occurrence his daughter was studying in class-I and her present age was ten years (occurrence took place about 2 years back). On the day of occurrence at about 2 to 2:30 pm, he was sleeping in his house after having meal. On hearing hue and cry, he came out of the house and the neighbouring people told him that the appellant had committed rape on his daughter. When he went to the place of occurrence, he saw his daughter in an unconscious state. He could see that her private parts and her undergarment were stained with blood but the accused was not to be seen. The accused was later on apprehended from Bara Bazar on the same day.
12. Smti. Sabitri Devi is the mother of the victim, who deposed as PW 3. She stated that she knew the appellant and he used to call her âDidiâ. On the day of occurrence, she was sleeping in the house of her mother, which is situated nearby. At about 2 pm, her sister-in-law Smti. Poonam Devi woke her up and told her that the accused had committed rape on her daughter. When she went to the place of occurrence, she found her daughter there. Blood was coming out from her private parts and her undergarment was stained with blood. She also found injury marks on both the hands of her daughter, wrists and her cheeks. She stated that her daughter was about six years old at the time of incident. Her daughter told her that the appellant gave her one rupee and thereafter took her to a room and after undressing her and himself, he committed rape on her. The accused was apprehended at Bara Bazar by her brother Shri Sanjay Singh.
13. Shri Sanjay Singh was examined as PW 4. He stated that on the day of occurrence at about 2 pm, he was taking âpanâ after his lunch when he heard a hue and cry coming from the direction of his house. When he went there, he found his niece (victim) weeping with a number of ladies near her. When he was told that the appellant had committed rape on her, he went out searching for the appellant and apprehended him at Bara Bazar. When he asked the appellant as to whether he had committed rape or not, the appellant confessed before him that he had committed the offence. PW 4 was not cross examined.
14. Wife of Shri Sanjay Singh, Smti. Poonam Devi also deposed as PW 6. Her deposition was along similar lines as PW 3 and PW 4. She was also not cross examined.
15. The doctor was examined as PW 1. She stated that on 13-05-2006 i.e. on the day of occurrence, she was working in the Tinsukia Civil Hospital as Medical and Health Officer. On that day, at about 5:20PM, she examined the appellant, who was brought by the police. Among other things, the undergarment of the appellant which was seized, was sent for forensic examination. On that day, the doctor also examined the victim. She found that the victim was unable to walk and her gait was painful. There was abrassion in the vulva. Bleeding was found in the labia majora. Though the hymen was found intact, the fourchette was torn. There was bleeding from the vagina. Bruises were present over her arms, thighs and knees. As per medical opinion, the victim had signs of general physical injury consistent with the case history. Her age was between 6 to 7 years.
16. As per forensic evidence (PW 7), undergarments of both the accused and the victim tested positive for human blood but negative for spermatozoa due to mixture of blood and hymen.
17. The IO was examined as PW 8. He stated that he had arrested the accused person after he was apprehended by the public. He had sent the victim for medical examination and also got her statement recorded u/s 164 Cr.P.C. After he completed investigation, he found sufficient evidence against the appellant u/s 376(2)(f) IPC and accordingly submitted charge sheet.
18. It may be mentioned that in her statement recorded u/s 164 Cr.P.C., the narration of the incident by the victim was identical to her deposition in Court.
19. From a careful analysis of the evidence on record, it is evident that the victim was a minor girl. While recording her statement u/s 164 Cr.P.C. and her deposition in Court, both the learned Magistrate and the learned trial Judge tested her ability and competence to depose and they were satisfied that the victim had the desired intelligence and capability to depose. She categorically stated that the appellant had forced his penis into her vagina leading to bleeding. In view of such a categorical assertion, there is no reason to disbelieve the testimony of the victim. A child has no axe to grind. Normally a child will never tell a lie. Moreover, she was medically examined within 3/4 hours of the incident. As per medical opinion, blood was found in the private parts of the victim. The injury suffered by her matched with the case history. The doctor found that the victim was unable to walk and her gait was painful. As per forensic examination, the blood stains found in the undergarments of both the victim and the accused, which were seized immediately, were of human blood. In such circumstances, the testimony of the victim inspires the confidence of the Court. Though no corroboration is required, nonetheless the evidence of the other witnesses as noticed above only fortifies the prosecution case. Moreover, the evidence of PW 4 that when he apprehended the accused, the accused confessed before him that he had committed rape on the victim, remained unchallenged as he was not cross-examined.
20. The absence of spermatozoa and the hymen of the victim being intact would not dent the prosecution case as it is a settled law that penetration and not ejaculation is the sine-qua-non for commission of the offence of rape. Furthermore, full or complete penetration is not required, even partial or the slightest penetration will suffice. Moreover, in this case, the fourchette of the victim was found to be torn on medical examination. In any case, the victim being a minor girl of 6 to 7 years, full penetration would be an impossibility.
21. Thus, on a cumulative assessment of the evidence on record, it becomes crystal clear that it was the appellant who had committed the offence of rape on the minor girl. No other view is possible. In such circumstances, this Court finds no infirmity in the findings of the learned trial Court and the sentence imposed.
22. There is no merit in the appeal. Appeal is dismissed.
23. Before parting with the record, a word about victim compensation. In exercise of the powers conferred by Section 357A of the Criminal Procedure Code, State of Assam has framed a scheme called the Assam Victim Compensation Scheme, 2012 providing funds for the purpose of compensation to the victims or their dependants who have suffered loss or injury as a result of a crime and who require rehabilitation. As per the schedule to the scheme, the maximum limit of compensation for rehabilitation in case of rape of minor, has been fixed at Rs.1,00,000/-. In view of above, the record of this case may be placed before the Assam State Legal Services Authority for payment of compensation to the victim in terms of the above scheme.
24. Registry to send down the case record immediately.