Judgment:
C.K. Prasad, J.
1. Santosh Kumar Pachori was put on trial for offence under Sections 450 and 376 of the Indian Penal Code. First Addl. Sessions Judge, Hoshangabad by his judgment dated 20th December, 1988 passed in Sessions Trial No. 104/87, acquitted him of the aforesaid charges but found him guilty for offence under Section 354 of the Indian Penal Code and sentenced him for the period already undergone by him as under-trial prisoner. State being aggrieved by his acquittal, has preferred appeal, after obtaining the leave of Court and the same has been registered as Criminal Appeal No. 582/89. Santosh Kumar Pachori, hereinafter referred to as accused, being aggrieved by his conviction, has also preferred appeal, which has been registered asCriminal Appeal No. 204/89. Both the appeals arise from the same judgment, hence they are being disposed of together.
2. Accused Santosh Kumar Pachori and Man Singh, the father of the prosecutrix Ku. Nirmala Singh (P.W. 7), were at the relevant time posted as Forest Guard at Adamgarh Depot. Nirmala Bai used to reside in a house constructed inside the forest depot along with her parents. On 5-5-1987, her parents had gone to their native place in the State of Uttar Pradesh along with their youngest son; leaving behind their son Arvind (P.W. 8), prosecutrix Nirmala (P.W. 7) and another daughter Anju. Parents of the prosecutrix returned from their leave on 16-5-1987 when Man Singh (P.W. 6) was informed by his wife what was narrated to her by his daughter Nirmala. Prosecutrix Nirmal narrated that on 8-5-1987 accused came to her house and asked her to open the door which was declined by the prosecutrix at which, accused stated that her brother had asked for the basket to bring vegetables and at this, her sister Anju opened the door. Prosecution story further is that after the accused came inside the house, he shut the door and in spite of resistance by the prosecutrix, she was subjected to forcible sexual intercourse. According to the prosecution, Anju, in order to save her sister, had bitten the accused. According to the prosecution because of sexual intercourse, semen and blood were littered on the clothes of the prosecutrix as also the bed-sheet and the accused had washed the same. According to the prosecution when the brother of the prosecutrix Arvind returned, she narrated the incident to him, who made protest but was threatened by the accused. On being informed about the incident, the father of the prosecutrix Man Singh (P.W. 6) lodged a report with the Hoshangabad Police Station on 17-5-1987.
3. On receipt of the report, prosecutrix was sent for medical examina-,tion which was conducted by P.W. 2 Dr. Gauri Saxena, who gave her report (Ex. P-2). The doctor found redness on both lips of libia majora and white discharge present around it. The doctor further found tear of hymen at 2 O'clock position which was healing. This doctor further stated that the vagina admits little finger with difficulty and the girl had severe pain during insertion of little finger. In the opinion of the doctor rape was committed on the prosecutrix within 8 to 10 days. It is relevant here to stale that during the course of investigation, the investigating agency had seized the undcr-garment as also the towel and bed-sheet which had blood and semen stains and sent the same for chemical examination. The investigating agency had also seized bloodstained earth from the place of occurrence and that was also sent for chemical examination. Accused was arrested on 17-5-1987 and his under-garment and vest were also seized and were sent for chemical examination. The Forensic Science Laboratory, Sagar in its report has found semen on the under-garment of the prosecutrix and blood on the earth seized from the place of occurrence and over the vest of the accused. After investigation, Police submitted charge-sheet against the accused under Sections 450 and 376 of the Indian Penal Code and he was ultimately committed to the Court of Sessions to face the trial. Accused denied to have committed any offence and his plea is that on 17-5-1987,he had cracked joke with the mother ot the prosecutrix Parvati, which caused annoyance to her and she threatened to implicate him and as threatened, he has been falsely implicated in the case. He has further placed on record the service book of Man Singh to contend that he has not got any leave in the month of May, 1987.
4. P.W. 7 Nirmala Bai has stated in her evidence that while she and her younger sister Anju aged about 8 years were in the house, accused came and asked to open the door. When it was declined, accused stated that her brother had asked for the basket for getting vegetables at which, Anju opened the door. She has further stated in her evidence that the accused thereafter came inside the house, shut the door and when her sister gave her the basket, he put the same on the table and stated that he will go to latrine. When the prosecutrix stated that he never used to go to the latrine in the presence of her parents, the accused started removing clothes and asked the proseculrix to bring a towel. At that point of time, according to this witness, her sister was playing in the adjoining room. Thereafter, this witness has stated that she was dragged inside the latrine by the accused who removed her under-garment and tried to insert his private part at which she protested. This witness has further stated that the accused threatened her that in case she would protest, he would put the private part in her mouth and thereafter, he inserted the private part in her mouth at which she vomitted. This witness has further stated that thereafter she was dragged in the middle room of the house and thrown in the bed and was subjected to sexual intercourse. She had severe pain and shouted for help, at which, her sister came and bit the accused. This witness has further stated that thereafter accused gave 50 paise to her sister which she did not receive. She has further stated that when she told the accused that she will narrate the incident to her parents, he stated that they can not harm him in any manner. She has further stated that as blood was coming out from her private part, accused washed the same by the towel and put her on the sofa and washed blood-stained bed, towel and her under-garment.
5. P.W. 2 Dr. Gauri Saxena is an Assistant Surgeon, who has examined the prosecutrix and had found following injuries on her person :--
'There was redness on both lips of libia majora. There is a tear of hymen at 2 O'clock position which is not bleeding at present. The tear is healing. It may be 8-10 days old. Vagina admits little finger with difficulty and the girl has severe paid during insertion of little finger.'
The doctor prepared two slides from the swab of the vaginal wall, sealed the same and sent it for chemical examination. In the opinion of the doctor, rape was committed within 8-10 days of the examination. It is relevant here to state that on 18-5-1987 accused Santosh Kumar was also examined by P.W. 3 Dr. R.L. Barhaiya and although he has not found any smegma or injury around genital organs but has found contusion of the size of 21/2' x 2' in the laternalregion of the left upper arm and another contusion of the size of 2' x |' onright arm which were simple in nature and caused by hard and blunt object within 6 hours of examination.
6. P. W. 4 Smt. Narbada Bai Gadwjil is a teacher where the prosecutrix had studied and has proved the school leaving certificate and stated the date of birth of the prosecutrix to be 8-2-1977 on the basis of entry in the admission register. P.W. 5 M.L. Yadav is Revenue Inspector who has prepared the sketch map of the place of occurrence.
7. P.W. 6Man Singh is the father of the prosecutrix and has staled that he had gone lo his native place and when he returned on 16-5-1987 what prosecutrix told her mother about the incident was narrated to him. P.W. 8 Arvind Singh Rajput is the brother of the prosecutrix and he has stated in his evidence that his parents had gone to the native place on 5-5-1987 and on the dateof the incident, in the morning he had gone for duty and when he returned at about 12 O'clock, he found his sisler prosecutrix Nirmala lying on the sofa and weeping. On enquiry by this witness, she had stated about the incident to him. This witness has further stated that on being asked as to why he committed rape on his sister, the accused replied and said that by one knife blow he and his father shall be killed. This witness has stated that because of fear he did not narrate the incident to anyone and when his parents returned on 16-5-1987, entire incident was disclosed.
8. P.W. 9 Amarsingh Rai is the Asstt. Sub-Inspector of Police who has investigated the case and recorded the statement of the witnesses. He had further seized the under-garment, towel and blood-stained earth from the place of occurrence and sent it for chemical examination. P.W. 10 Dr. N. Hasan is an Asstt. Civil Surgeon who on examination of the X-ray film of the wrist and elbow has opined that the age of the prosecutrix was above 9 years and below 12-13 years. It is relevant here to state that the State Forensic Science Laboratory on examination of the under-garment and the earth seized from the place of incident found semen and blood respectively and submitted the report (Ex. P-12).
9. The Trial Court on appreciation of evidence found that the prosccu-' tion has not been able to prove that the proseculrix was subjected to forcible sexual intercourse- It did not believe the evidence of the prosecutrix in entirety and found her to be unreliable in relation to allegation of rape. However, it found that accused had tried to outrage her modesty and as such found him guilty for offence under Section 354 of the IPC. For cdming to the aforesaid * conclusion, the Trial Court has taken into consideration the evidence of the prosecutrix where she has stated that her under-garment was removed and was washed by the accused and in such a situation, in the opinion of the learned Judge presence of semen on the under-garment is unnatural. The Trial Court further disbelieved the case of rape on account of absence of blood on the under-garment of the prosecutrix and in his opinion, as the prosecutrix bledsemen and blood, ought to have been found on her under-garment and presence of semen only renders the prosecution case doubtful.
10. Mr. Deoras contends that non-examination of the mother of the prosecutrix makes the case doubtful. True it is that the prosecutrix had for the first time narrated about the incident to her mother who in turn, had narrated the incident to her father. Mother had told the prosccutrix's father what was stated to her by the prosecutrix. It is well settled that it is not the volume of the evidence which is decisive but the quality of the same. Here in the present case, the evidence of the prosecutrix inspires confidence and the same finds support from the medical evidence. Hence, non-examination of the mother of the proseculrix by the prosecution in no way casts any doubt in the case of the prosecution.
11. Mr. Deoras pleads for discarding the evidence of P.W. 8 Arvind Singh, the brother of the prosecutrix, on the ground that prosecutrix having not narrated the incident to him, his evidence is worthless. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of Awadh Behari Sharma v. State of Madhya Pradesh, 1956 SC 738, and our attention has been drawn to the following passage from the said judgment :--
'Both were prosecution witnesses. The prosecution would not have been unaware as to what its own witness even though, to be examined later on, was going to say in his chief examination regarding what a previous witness stated to him. If it was sought to be made use of, it is clear that the very person to whom it is ascribed must be given an opportunity to explain it. To say the least, P.W. 6 should have been recalled for the purpose. There is, therefore, every justification for the grievance that on a crucial matter inadmissible evidence given some months later actually turned the scale.' The very assumption of Shri Deoras that the prosecutrix did not narrate the incident to her brother is misconceived. Prosecutrix P.W. 7 Nirmala Bai has clearly stated in Paragraph 7 of her evidence that when his brother returned to the house to lake meal, she was lying on the sofa and weeping and on enquiry, she narrated the entire incident to him. Thus, the submission of Shri Deoras has no substance.
12. Mr. Deoras submits that the evidence of the prosecutrix is fit to be discarded as the learned Judge did not test her capability to depose by putting preliminary questions. It is relevant here to state that before the evidence of the prosecutrix was recorded, the learned Judge ascertained her intelligence and having found her to be capable to give answer, he permitted the prosecutrix to depose. There is no hard and fast test laid to ascertain the capability of a person and the learned Judge having endorsed that the prosecutrix was capable to depose, her evidence is not fit to be discarded only on the ground that the learned Judge did not ascertain her capability by putting preliminary questions.
13. Mr. Deoras further submits that prosecutrix being a child witness, her evidence is fit to be discarded as children are prone to be tutored. In support of his submission, Shri Deoras has placed reliance on a judgment of the Supreme Court in the case of State of U.P. v. Ashok Dixit and another, AIR 2000 SC 1066, and our attention has been drawn to Paragraph 9 of the judgment, which reads as follows :--
'9. Law is well settled that evidence of a child witness must be evaluated carefully as a child may be swayed by what others tell him and as an easy prey to tutoring. Wisdom requires that evidence of a child witness must find adequate corroboration before it is relied on.'
14. Here in the present case, the child is not a witness to the crime, but a victim of the crime. There is a distinction between a child witness narrating a crime and a child witness narrating how she was subjected to crime. The evidence of a child witness who is subjected to crime stands on a different footing than a child, who is a witness to the crime. Here in the present case, prosecutrix had narrated her harrowing tale which finds support from the medical evidence. Same has been corroborated by other witnesses. In such a situation, we are of the considered opinion that she is not a tutored witness. Hence we do not find any substance in the submission of Shri Deoras and the authority relied on does not advance the case of the accused.
15. Mr. A.D. Deoras submits that the view taken by the learned Judge while holding that the prosecutrix was not subjected to rape is based on the material placed on record. He went to the extent of submitting that when semen stained garment was planted by the prosecution, accused is entitled to 'be given the benefit of doubt and deserves to be acquitted. Mr. R.K. Verma, P.L. appearing on behalf of the State submits that conclusion arrived at by the Trial Court that prosecutrix was not subjected to rape is absolutely perverse and no reasonable person duly instructed in law would have come to this conclusion. He points out that at one point of time the learned Judge finds that the proseculrix was not subjected to rape and at another point, holds that there was interference with her private part. These are conclusions which are inconsistent and once the Trial Court has found interference with the private part of the prosecutrix, it had no option than to believe her evidence and hold that she was subjected to rape. He submits that in the face of evidence of prosecutrix Nirmala (P.W. 3), which finds corroboration from the evidence of Dr. Gauri Saxena (P.W. 2) as also from the evidence of father Man Singh (P.W. 6) and brother Arvind (P.W. 8) and report (Ex. P-12) of the Forensic Science Laboratory finding semen on the under-garment of the prosecutrix, the judgment of acquittal is perverse, which deserves to be set aside by this Court in appeal.
16. We are aware of the legal position that this Court while hearing appeal against the judgment of acquittal does not interfere in a case when it is found that the view taken by the Trial Court while acquitting the accused isone of the possible views. We are of the considered opinion that the finding arrived at by the learned Judge that the prosecutrix was not subjected to rape, to say the least, is perverse.
17. Here in the present case, P.W. 7 Nirmala Bal has clearly stated in her evidence the manner in which she was subjected to rape. Her evidence finds support from the evidence of P.W. 2 Dr. Gaufi Saxena who had found redness on libia majora and rupture of hymen and has clearly stated that the prosecutrix was subjected to rape. Her evidence is corroborated by the evidence of his brother P.W. 8 Arvind Singh Rajput to whom the prosecutrix narrated about the occurrence immediately after the incident. In face of the evidence of the prosecutrix Nirmala as also the doctor, Dr. Gauri Saxena, we have no manner of doubt that the prosecutrix was subjected to rape. This also finds support from the report of the Forensic Science Laboratory which has found semen on the under-garment of the prosecutrix and blood on the earth removed and seized from the place of occurrence. The infirmity found by the learned Judge in the case of the prosecution i.e., presence of only semen and not blood on the under-garment of the prosecutrix is beyond our comprehension. According to the prosecutrix, her under-garment was washed by the accused and as such, absence of blood on it shall in no way affect the credibility of the case of the prosecution. True it is that the under-garment was washed but from that it cannot be said that it was washed so intensely that no stain is left. It seems that although accused washed the under-garment of the prosecutrix in order to remove the semen and might have thought to have succeeded in it from naked eye, but still semen was left on it, which was found during examination by the Forensic Science Laboratory.
18. We are further of the opinion that the finding recorded by the Trial Court while acquitting the accused is inconsistent. At one point of time, the learned Judge holds that the prosecutrix was not subjected to rape and at the same time, it holds that there was interference with her private part, is difficult to reconcile. In the face of the evidence of the prosecutrix and the doctor who has fully supported the case of the prosecution, we have no manner of doubt that the prosecutrix was subjected to rape by the accused. The plea of the accused that he has been falsely implicated in the case because the mother of the prosecutrix threatened him to implicate, is a plea too hard to swallow. In Indian Society, the chastity of a woman is the most precious thing. No parent shall parade their daughter to falsely implicate an adversary, leaving the actual culprit. Here the prosecutrix was aged about 10 years at the time of incident. The doctor has found her to be a victim of violence. In such a situation, it is impossible to believe that accused was implicated in the case because the mother of the prosecutrix had threatened to do the same.
19. From what has been stated above, it is evident that the prosecutrix was subjected to rape and the prosecution has been able to bring home the guilt against the accused beyond all reasonable doubt. We have no manner of doubt that the order of acquittal of the accused for offence under Section 376of the Indian Penal Code is absolutely perverse. From what has been found above, it is evident that the accused had committed house-trespass in order to commit the offence of rape, which is punishable with imprisonment for life under Section 376 of the Indian Penal Code. He is also found guilty for offence under Section 450 of the Indian Penal Code.
20. To put the record straight, it is relevant here to state that the accused has filed an application for compounding the offence i.e., Section 354 of the IPC for which he has been held guilty by the Trial Court. As we have found that accused is guilty of offence under Section 376 of the Indian Penal Code, the prayer made for compounding the offence cannot be granted.
21. Having found the accused guilty for offence under Sections 376 and 450 of the Indian Penal Code, the question is as to what sentence should be awarded to the appellant, which would meet the ends of justice. Here in the present case, the accused is none other than the colleague of the father of the prosecutrix. He had misused this position of trust and made a child of about 10 years victim of his lust. In normal circumstances, we would have awarded the sentence of rigorous imprisonment for life. But what we have been told and is not disputed is that the accused has in the meantime, lost one of his lower limbs as also the job on account of his conviction. Taking into consideration the manner in which the crime has been committed, the trust which the accused has betrayed and the age of the victim, we are of the opinion that the ends of justice would be met if he is sentenced to undergo rigorous imprisonment for 7 years under Section 376 of the Indian Penal Code. He is further sentenced to undergo rigorous imprisonment for 5 years for offence under Section 450 of the Indian Penal Code. Both the sentences shall run concurrently.
22. In the result, the appeal preferred by the accused (Criminal Appeal No. 204/89) stands dismissed and the appeal preferred by the State (Criminal Appeal No. 582/89) is allowed and the accused is held guilty for offence under Sections 376 and 450 of the Indian Penal Code and sentenced as above. Accused is on bail. His bail bond shall stand cancelled and he shall surrender to serve out the remaining part of his sentence.
23. Criminal Appeal No. 204/89 dismissed.
24. Criminal Appeal No. 582/89 allowed.