Judgment:
V.G. Sabhahit, J.
1. This appeal by the accused is directed against the judgment of conviction and sentence passed by the I Addl. S.J. Chitradurga, in S.C. NO. 160/96 dated 23.3.2000 wherein the accused-appellant has been convicted for having committed the offences punishable under Sections 448 and 376 IPC and sentenced to undergo R.I. for 10 years and to pay fine of Rs. 3000/- I.D. of payment of fine, the accused shall undergo R.I. for three months for the offence punishable under Section 376(F) of IPC and further sentencing him to undergo S.I. fox two months for the offence punishable under Section 448 of IPC and ordering that both sentences shall run concurrently and it is further ordered that the fine amount ordered to the accused at Rs. 3,000/- shall be given to the complainant-PW6-father of the victim girl as compensation.
2. Appeal was presented through the Superintendent of jail by the accused and the learned Advocate Sri. Anand K. Navalgimath is appointed as Amicus curie to argue on his behalf.
3. I have heard the learned Counsel for the appellant and the learned State Public Prosecutor.
4. The essential facts of the case leading up to the filing of this appeal with reference to the rank of the parties before the trial Court are as follows:
It is the case of the prosecution that the prosecutrix-PW1 is the daughter of PW's 5 and 6 and sister of PW9. It is the further case of the prosecution that on 20.12.1992 when the prosecutrix alone was in hex house in Dindavara Village of Hiriyur Taluk and her parents and brother had gone out of the house, the accused came and asked for water. The prosecutrix went into the house to fetch water, the accused followed her and bolted the door of the house from inside and thereafter, tied her hands and eyes and felled her to the ground and sexually assaulted her and had sexual intercourse. The prosecutrix struggled and cried and on hearing her cry, PW'S 2 and 3 who ware residing in the neighbouring house come there and the accused ran away. She had bleeding in the vagina. After her father, mother and brother came to the house, she narrated the incident and the father of the prosecutrix went to Dalapathi-PW8 and got the complaint written through him as per Ex.P2 and the said complaint was lodged on 22.12.1992 before PW13 who was working as PSI, Hiriyur Police Station. He registered the said complaint in Crime No. 567/92 prepared FIR as per Ex.P12 and sent the same to the Court through PW10-Police Constable. The prosecutrix was sent for medical examination to PW12-doctor who has examined the prosecutrix and issued the wound certificate as per Ex.P6. Further investigation in the case was taken over by PW11 and thereafter, accused appeared, before the then Inspector-PW14 with anticipatory bail and he was released on bail as per the anticipatory bail order and after completing investigation, charge sheet was filed against the accused for having committed the offences punishable under Sections 376 and 448 IPC. The accused pleaded not guilty and claimed to be tried. The prosecution examined PW'S 1 to 14 and got marked exhibits P1 to P11 and Bx.D1 was got marked in the evidence of PW6 and the trial Court after considering the contention of the Additional Public Prosecutor and the learned Counsel for the accused and by considering the material on record, held that the prosecution has proved beyond reasonable doubt that the accused has committed the offences punishable under Sections 376 and 448 of IPC and sentenced him for the said offences vide judgment dated 23.3.2000 and being aggrieved by the said judgment, this appeal is presented through Jail Superintendent.
5. Learned Counsel for the appellant appointed as amicus curie has taken me through the evidence of the prosecution comprising of the evidence of PW's 1 to 14 and the contents of the documents got marked by the prosecution. PW1 is the prosecutrix and she has stated in her evidence that CW1 (PW6) is her father, CW6(PW5) is her mother and CW7 (PW9) is her brother and CW's 3, 4 and 5 (PW'S 2, 3 and 4) are residing in the house adjoining the house of the prosecutrix and her parents are doing coolie work and she was aged 8 years at the time of incident. Her parents had gone to coolie work at that time. She was alone in the house and she was standing in her house and at about 1 p.m. accused came inside the house and asked for water. When she went inside to bring water he had bolted the door from inside the house and gagged her moth with cloth and tied her hands and eyes with clothes and thereafter, he felled her to the ground and had sexual intercourse with her. She struggled and got the cloth which had been gagged in her mouth, untied and screamed. The accused ran away. On hearing the scream, the neighbours-PW's 2 and 3 came there and she narrated the incident and thereafter, her parents came at 6 p.m. and narrated the incident to them and since there was no bus to Hiriyur on the same day and on the next day as there was strike there was no bus facility and they went to Hiriyur on Tuesday. It is clear from the facts elicited in the cross examination that, apart from suggesting that there is enmity between the complainant-PW6 and the accused that a false complaint has bean foisted against the accused at the instance of her father which has been denied by the prosecutrix, nothing has been elicited in the cross examination to disbelieve or discredit this evidence. It is truthful and reliable and in the absence of any material on record to probabalise the defence taken by the accused, the evidence of PW1 is truthful and reliable. PW's 2, 3 and 4 have stated in their evidence that on hearing the scream of the prosecutrix, they went to the house of the appellant and saw that there was blood from the vagina of the prosecutrix. However, they have not supported the case of the prosecution to the extent that the prosecutrix informed them that accused committed rape on her and to that extent, they have been treated as hostile and permitted to be cross examined by the prosecutor. However, their evidence is helpful to show that on hearing the scream, they (PW'S 2, 3 AND 4) went to the house of the prosecutrix and the prosecutrix had sustained injury of vagina and oozing of blood. The evidence of the brother, mother and father of the prosecutrix-PWs 5, 6 and 9 is also helpful to the prosecution to show that the prosecutrix narrated the incident before them and thereafter the father of the prosecutrix got the complaint written through the dalapathi - PW8 and filed the complaint before PW13. The evidence of the doctor - PW12 shows that she has examined the prosecutrix and has clearly given the opinion that the prosecutrix is the victim of sexual assault and rape. It is elicited in the cross examination that hymen was in tact and further elicited that apart from the injury mentioned in EX.P6, the prosecutrix has not sustained any injury. Ex.P6 wound certificate issued by the doctor PW12 shows that the prosecutrix has sustained the injury of media lateral tear of fore chute present measuring 2 cm x 1/2 cm at the vaginal region and there was no external injury present. The learned Counsel fox the appellant submitted that since the hymen was intact as elicited in the cross examination of PW12, the prosecution has failed to prove that the accused has committed rape.
6. There is no merit in the above said contention and the same contention was raised before the trial Court and the mere fact that hymen was intact, would not by itself negative the commission of rape by the accused as tearing of hymen would depend upon the extent of penetration and force used while committing sexual assault. Slightest penetration is sufficient for commission of offence of rape and proof of rupture of hymen is unnecessary as held by the Hon'ble Supreme Court in Tarakeswar Sinha v. State of Bihar report in : (2006)8SCC560 .
The doctor-PW12 who has also examined the accused has issued the certificate as per Ex.P5 stating that he was physically fit to have intercourse and wherefore, the evidence of PW12 also corroborates the evidence of the prosecutrix. It is clear from the perusal of the material on record that the prosecutrix has proved beyond reasonable doubt that the prosecutrix was aged lees than 12 years at the time of incident. In view of the evidence of the doctor and the certificate given by her which shows that she was aged B years and the said fact is not disputed in the cross examination of the doctor or the evidence of the prosecutrix and wherefore, on re-appreciation of the above said material on record, I hold that the prosecution has proved beyond reasonable doubt that the accused has committed the offences punishable under Sections 448 and 376 IPC. The trial Court has rightly appreciated the evidence of the prosecutrix and the evidence of her parents and her brother and the evidence of the doctor and has rightly come to the conclusion that the accused has committed the offences punishable under Sections 376 and 448 of Indian Penal Code and the said finding of the trial court convicting the accused of the said offences is justified and does not call for interference in this appeal and accordingly, answer point No. 1.
Point No. 2: The offence under Section 376(2)(f) is, whoever commits rape on a woman when she is under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine. Provided that the court may, for adequate and special reasons to foe mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years. The occurrence under Section 448 IPC is punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees or with both. The trial Court has sentenced the accused-appellant to undergo R.I. for ten years and to pay fine of Rs. 3,000/- in default of payment of fine, to undergo R.I. for three months for the offence punishable under Section 376 IPC and sentenced to undergo S.I. for two months for the offence punishable under Section 448 IPC and directed that both the sentences shall run concurrently and the fine amount recovered shall be given to PW6 as compensation. In view of the proved facts, the minimum sentence prescribed is R.I. for ten years and having regard to the circumstance under which the offence has been committed and the conduct of the accused and other material on record bearing upon the sentence, I do not find any adequate and special reason to reduce the sentence less than the term of 10 years. It is the minimum sentence prescribed for the offence punishable under Section 376 (2)(f) IPC and the sentence imposed by the appellant for the offence under Section 448 IPC cannot be said to be excessive and therefore, the sentence imposed is justified and does not call for interference. Accordingly, answer point No. 2. In view of my answer to point Nos. 1 and 2, I hold that there is no merit and the judgment of conviction and sentence passed by the court in S.C. NO. 160/96 dated 23.3.2000 is confirmed and accordingly, the appeal is dismissed.
The valuable assistance rendered by Sri. Anand K. Navalgimath as Amicus curie for the appellant is placed on record and his fee is fixed at Rs. 5,000/-.