Judgment:
Sunil Kumar Sinha, J.
(1) This appeal is directed against the judgment dated 24th of June, 2006 passed in Sessions Trial No. 355/2005 by the Tenth Additional Sessions Judge (FTC), Bilaspur (C.G.). By the impugned judgment, the appellant has been convicted and sentenced in following manner with a direction to run the sentences concurrently:-
| Conviction | Sentence |
| u/S 363 IPC | R.I. for 7 years andfine of Rs.1,000/-, indefault R.I. for onemonth |
| u/Ss 366 IPC | R.I. for 10 years andfine of Rs.1,000/-, indefault R.I. for onemonth |
| u/Ss 376 IPC | R.I. for life and fine ofRs.2,000/- in defaultR.I. for one month |
2.1 Prosecutrix (PW-13) was aged about 9 years. She was residing with her parents in Dayal Band (Nayapara), P.S. City Kotwali, Bilaspur. In the intervening night of 4th and 5th of August, 2005, prosecutrix (PW-13) and her parents, Amarnath (PW-1) and Ramsila Bai (PW-2) were sleeping in their house. Amarnath (PW-1), at about 2.00 a.m. found that the door of the hutment was open. He also found that his daughter (prosecutrix) was missing. A search was made in nearby area. After sometime, they found the prosecutrix (PW-13) in the cremation ground which was situated near their house. She was completely naked. She told the parents that she was subjected to forcible sexual intercourse by a fair colour boy having moustache. Blood was coming out from the vagina of the prosecutrix. Amarnath (PW-1) took the prosecutrix to the police station and lodged the report (Ex.-P/1).
2.2 The prosecutrix (PW-13) was sent for her medical examination. She was examined by Dr.(Smt.) Maya Pandey (PW-16). She found following symptoms/injuries on the person of the prosecutrix :-
(i) Prosecutrix was a young girl, aged about 9 years, having 12-12 teeth in both the jaws;
(ii) There were abrasions of 2 x 2 cm on both the cheeks;
(iii) There were 4 abrasions of 2 x 1 cm; 2 x 1 cm; 1 x 1 cm and 1 x 1 cm on the middle portion of the back;
(iv) Vagina was heavily bleeding.
She administered general anesthesia for further examination. On internal examination, it was found that hymen was completely torn-off. Perineum of both the sides was ruptured. There was injury on the right internal portion of vagina. It was heavily bleeding. Similar injury was also found in the left internal portion. Here also it was heavily bleeding. She opined that the prosecutrix was subjected to forcible sexual intercourse. Her MLC report is Ex.-P/19.
2.3 The appellant was taken into custody and a Test Identification Parade (TIP) was conducted by the Executive Magistrate, M.R. Gaikwad (PW-17). In TIP, the prosecutrix rightly identified the appellant. The appellant was also identified by the prosecutrix (PW-13) on trial. The learned Sessions Judge relied on the testimony of the prosecutrix (PW- 13) and held that she was subjected to forcible sexual intercourse by the appellant in the above manner. The appellant, thus, was convicted and sentenced as above. Hence this appeal.
(3) Mr. P.K. Verma, learned Senior Counsel appearing on behalf of the appellant, has argued that version of the prosecutrix does not appear to be reliable; identification of the appellant is doubtful; evidence of the parents is also shaky; therefore, conviction cannot be sustained.
(4) On the other hand, Ms. Smita Ghai, learned Panel Lawyer appearing on behalf of the State, has opposed these arguments and supported the judgment passed by the Sessions Court.
(5) We have heard counsel for the parties.
(6) Prosecutrix (PW-13) was aged about 9 years. She identified the appellant on dock and deposed that in the fateful night, she was taken to the cremation ground by the appellant. She woke up in the cremation ground. The appellant had made her to hold his penis. The appellant had penetrated his penis at the place from where stool is passed. When she cried, the appellant had assaulted her. He was saying, whether her parents also do like this? She had seen the face of the appellant. While doing like that the appellant was pulling her hairs and her cloths were completely removed. The appellant had also removed his own cloths. Thereafter on the flash of light, he left her and ran away.
(7) So far as the finding of forcible sexual intercourse is concerned, there can be hardly any doubt. The learned Sessions Judge has recorded this finding on the evidence of the prosecutrix (PW-13) and Dr.(Smt.) Maya Pandey (PW-16). Dr.(Smt.) Pandey (PW-16) had found that the hymen was completely torn-off and there were injuries on the perineum of both the sides and there were also injuries on the internal portion of vagina which were heavily bleeding even at the time of examination. Besides the above there were external injuries on different parts of the body including the back and cheek which were also suggestive of forcible sexual intercourse. Thus, the finding relating to forcible sexual intercourse is unassailable.
(8) Mr. Verma has mainly contended that the identification was improper and T.I.P. was defective. The T.I.P. was conducted by Executive Magistrate, M.R. Gaikwad (PW-17). It was conducted in Central Jail, Bilaspur on 20.10.2005. T.I.P. memo is Ex.-P/15. The prosecutrix had identified the appellant among 9 persons in the T.I.P. Mr. Gaikwad (PW-17) has deposed that the prosecutrix had rightly identified the appellant by pointing toward him. Mr. Verma took us to Para-12 of the cross-examination of the prosecutrix (PW- 13) in which she admitted that she had signed upon the T.I.P. memo (Ex.-P/15) in the police station. In fact, he tried to canvass that T.I.P. memo was falsely prepared and signature was later on taken in the police station. This does not appear to be correct in light of the entire evidence of the prosecutrix. In Para-12 itself in the very next sentence after the said admission, the prosecutrix (PW-13) has mentioned that she had signed upon the T.I.P. memo at the time of identification itself. The prosecutrix was aged about 9 years. She belongs to a labour class family of rickshaw-puller. It appears that she might not be understanding difference between police lock-up and jail. Therefore, she simply admitted in earlier part of the statement that she had signed over T.I.P. memo (Ex.-P/15) in police station, but later on she clarified that she had signed upon the said document when she had gone for identification of the appellant which admittedly was conducted in Central Jail.
(9) The identification tests (T.I.P.) do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines and the T.I.P. can only be used as corroboration of the statement in court (Vide: Matru “Vs- State of U.P., (1971) 2 SCC 75 and Santokh Singh “Vs- Izhar Hussain, (1973) 2 SCC 406).
(10) In Lal Singh “Vs- State of U.P. (2003) 12 SCC 554, it was held that œThe evidence of identification has to be considered in the peculiar facts and circumstances of each case. Though it is desirable to hold the test identification parade at the earliest possible opportunity, no hard-and-fast rule can be laid down in this regard. If the delay is inordinate and there is evidence probabilising the possibility of the accused having been shown to the witnesses, the court may not act on the basis of such evidence. Moreover, cases where the conviction is based not solely on the basis of identification in court, but on the basis of other corroborative evidence, such as recovery of looted articles, stand on a different footing and the court has to consider the evidence in its entirety. ?
(11) In the instant case, the prosecutrix (PW-13) has rightly identified the appellant on dock. In fact, it was on a court question clearly put to the prosecutrix by the Sessions Judge. Mr. Verma has argued that there was no basis for the prosecutrix to identify the appellant as he was not previously known to her. It is true that the appellant was not previously known to the prosecutrix, but she has deposed in Para-10 of her cross-examination that she had seen him on the road while going to school, but had not seen his house. It was argued that the prosecutrix did not disclose to her parents by giving such identity of the appellant. The prosecutrix (PW-13) met her parents in the cremation ground. She was in complete naked condition. She had sustained serious injuries (supra). Her vagina was heavily bleeding. It is in such situation, she had narrated the incident to the parents. Therefore, it cannot be expected from her that she would give all details at that point of time. However, she gave other details to them on which the F.I.R. was lodged by her father (PW-1).
(12) We find that the evidence of parents (PW-1 and PW-2) duly corroborates the evidence of the prosecutrix on material particulars. There is no material to show that the prosecutrix (PW-13) was tutored or made to make such allegations against the appellant. There is no iota of evidence to show that the prosecutrix or her parents were inimical to the appellant so as to leave a possibility of his false implication. Why an innocent person would be falsely implicated by the prosecutrix and her parents.
(13) The evidence of victim of sexual assault stands on a par with the evidence of an injured witness. The evidence of a sex-offender is entitled to great weight, absence of corroboration notwithstanding (Vide: Bharwada Bhoginbhai Hirjibhai “Vs- State of Gujrat, (1983) 3 SCC 217).
(14) In Mohd. Imran Khan “Vs- State Government (NCT of Delhi), (2011) 10 SCC 192, it was held that the Court must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. Rape is not merely a physical assault, rather it often distracts the whole personality of the victim. The rapist degrades the very soul of the helpless female, and, therefore, the testimony of the prosecutrix must be appreciated in the background of the entire case and in such cases, non-examination even of other witnesses may not be a serious infirmity in the prosecution case, particularly where the witnesses had not seen the commission of the offence. It is a trite law that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another persons lust. The prosecutrix stands at a higher pedestal than an injured witness as she suffers from emotional injury. Therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The Evidence Act, 1872 nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under Section 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured witness in cases of physical violence. The same degree of care and caution must attach in the evaluation of her evidence as in the case of an injured complainant or witness and no more.
(15) We have examined the evidence of the prosecutrix in light of other evidence available on record. We find her evidence to be wholly reliable.
(16) Mr. Verma has contended that diary statement of the prosecutrix was never recorded and it was a big flaw in the case of the prosecution.
(17) True it is that statement of the prosecutrix u/Ss 161 or 164 Cr.P.C. was not recorded in this case and the charge-sheet was filed. But, only on this account, the entire case of the prosecution cannot be thrown out in the prevailing facts and circumstances. R.N. Yadav (PW-14) was the Investigating Officer. He was asked about non-recording 161/164 Cr.P.C. statements of the prosecutrix. He deposed in Para- 12 and 13 that he had tried to record her evidence, but she was admitted in the hospital and was not in a position to give statement. He added in Para-13 that he had gone to the hospital on 5th, 6th, and 7th August, 2005, but the condition of the prosecutrix was not good, therefore, her statement could not be recorded. The medical report of the prosecutrix would show that she had sustained multiple serious injuries and was heavily bleeding even at the time of her examination. I.O. has not been confronted by the diary entry to show that he was taking a false plea. Thus it is a case in which in special circumstances, the diary statement of the prosecutrix could not be recorded and the charge-sheet was filed.
(18) In State of W.B. “Vs- Mir Mohammad Omar and Others, (2000) 8 SCC 382, the Supreme Court observed that :
œ¦¦¦.In our perception it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely foolproof. The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by courts to see that criminal justice is salvaged despite such defects in investigation. Courts should bear in mind the time constraints of the police officers in the present system, ill-equipped machinery they have to cope with, and the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are realities the police force have to confront while conducting investigation in almost every case. ¦¦ ?
(19) In Trimukh Maroti Kirkan “Vs- State of Maharashtra, 2006 AIR SCW 5300, the Supreme Court, in context of the offences taking place inside the privacy of the house, has observed that œjudge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape?. It is not a case in which no exercise at all was done to record the statements of the prosecutrix u/S 161 Cr.P.C. The prosecutrix was not a stranger on the dock. She had participated in the Test Identification Parade (T.I.P.) which was admittedly a part of the police investigation.
(20) We are of the opinion that in view of the above and in light of the prevailing facts and circumstances of the case, the learned Sessions Judge was fully justified in holding that merely by not recording the diary statement of the prosecutrix the entire case of the prosecution cannot be disbelieved.
(21) Mr. Verma has lastly contended that the sentence awarded to the appellant is too harsh which may be reduced accordingly. We have considered the above argument in the light of the prevailing facts and circumstances of the case. It is not a case of commission of rape on an adult lady or on a grown-up girl. In the instant case, the prosecutrix was aged about 9 years. She was taken from her house while she was sleeping with her mother. The appellant took her to a nearby cremation ground. There he not only did vulgar acts against the prosecutrix, but he got her completely naked and thereafter committed forcible sexual intercourse against her causing such bodily injuries (supra) on external and internal parts of the body. The prosecutrix was to be admitted to the hospital for so many days. We are of the opinion that the manner in which the offence was committed does not call for any lenient view and sentences awarded to the appellant appear to be quite appropriate.
(22) For the foregoing reasons, we do not find any substance in the appeal. The appeal is liable to be dismissed and is hereby dismissed.