Judgment:
Shyam Sunder Byas, J.
1. The learned Sessions Judge, Merta, by his judgment dated April 14, 1975 acquitted accused Dhania (aged about 17 years) of the offences punishable under Sections 354 and 376 of the Penal Code. The State has come-up in appeal and challenges the acquittal.
2. Put briefly, the prosecution case is that in the noon of February 22, 1974, PW 4 Mst. Shanti (aged about 12 years) and her brother Omiya (PW 7) aged about 8 years, were grazing their live-stock in the field of one Dayram Meghwal situate nearly three miles from their village Panchari (district Nagaurj The field of the accused is situate nearby. The accused came to Mst. Shanti caught her hands and pulled her down. He was wearing a Dhoti which he then put off. The girl was wearing an under-wear. The accused forcibly pulled the waist cord of the underwear. The cord gave way. The accused then stripped the girl and sat over her naked thighs. He then forcibly ravished her. The girl tried to resist and the accused gave a fist-blow on her mouth. Omiya (PW 7), who was standing nearby, raised cries. He got frightened and took to heels. A little distance away, PW 1 Ramuram met him. Omiya asked him for help. Ramuram went to the place of incident and separated the accused from the girl Gangararn (PW 9) also happened to pass that way. He and Ramuram helped the girl to wear her underwear. They brought her to her house. Gangaram narrated the incident to the girl's father Jassaram (PW 8). Jassaram went to police station. Panchari and verbally lodged report Ex. P 10 of the occurrence at about 9.00 p.m. on the same day. The police registered a case and proceeded with investigation. The blood-stained underwear of the girl was seized and sealed. The accused was arrested on February 23, 1974. He was wearing a Dhoti at that time which had stains of blood. His Dhoti was seized and sealed. The accused was medically examined and he was found potent to commit sexual intercourse. The medical examination of the victim Mst. Shanti was conducted on February 23, 1974 by the Medical Jurist Dr. P.R. Joshi (PW 2). He found the following injuries:
4. (1) Bruise 2' x 1/2' below and inner side of upper lip;
(2) Bruise on both eye lids and also sub-conjuctival haemorrhage in both eyes;
(5) Genitals were normally developed. Her hymen was lacerated at 4 O'clock and 9 O'clock positions and there was laceration of perineum at 6 O'clock position-size of the laceration was 1' x 1/4' x 1/2' deep at the lowest level;
(6) The Vaginal discharge was blood stained and there was irregular bruise over 3' x 4' area on right scapular region;
(7) The duration of these injuries was about 24 hours as there were reddish bruises and clotted blood on the wounds.
The report prepared by him is Ex. P 2. On X-ray examination of the occification of the girl, her age was found near-about twelve years. The report of the age is Ex. P 3. It was issued by Dr. Joshi. Dr. Joshi also took vaginal swab and sent it for chemical analysis. The underwear of the girl and the Dhoti of the accused were sent for chemical examination. Human-blood was found on both of them, but were negative for seman and spermatozoa. On the completion of investigation, the police submitted a challan against the accused in the Court of Munsif & Judicial Magistrate, Nagaur, who, in his turn, committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under Sections 354 and 376, IPC against the accused, to which he pleaded not guilty and demanded the trial. In support of its case, the prosecution examined eleven witnesses and filed some documents. In defence, the accused adduced no evidence. In his statement recorded under Section 313, Cr.PC, the accused admitted the presence of Mst. Shanti in his field and stated that she illegally started collecting fire-Wood from his field. He forbade her to do so but she paid no heed. Thereupon he gave a fist blow on her mouth. There were stumps of Bazra in his field. The girl fell on one of the stupms with her face down ward. She thus sustained injury on her private parts with the stump of the Bazra. On the conclusion of trial, the learned Sessions Judge found that the explanation given by the accused was rational, plausible and acceptable. He also took certain other matters into consideration, like the delay in lodging the First Information Report and various discrepancies in the statement of the prosecutrix etc. and found that the offence of rape or indecent assault did not stand satisfactorily proved against the ' accused. The accused was consequently acquitted of the offences he was charged with. The State, by leave, has come up in appeal and challenges the acquittal of the accused.
3. We have heard the learned Public Prosecutor and Mr. P.R. Chaudhary the learned counsel for the accused. We have also gone through the case file carefully.
4. It was vehemently contended by the learned Public Prosecutor that the verdict of acquittal recorded by the Sessions Judge is wholly erroneous. There were no reasons to disbelieve the direct testimony of the prosecu-trix, specially when there was positive medical evidence to corroborate her. Injuries were found on her private parts. Hymen was found lacerated. The vaginal discharge of the girl was found blood-stained. No bad-blood was there between the prosecutrix and the accused. Her brother Omiya, who was present on the spot, has supported the prosecution case in its essential parts. It was argued that, in these circumstances, the question of false implication of the accused was out of question. The girl was decidedly under sixteen years of age and, as such, no question of her consent arose. The learned Sessions Judge has given undue importance to the minor discrepancies which have no bearing to judge the guilt of the accused. There was, at all, no delay in lodging the First Information Report of the occurrence at the police station. The acquittal is, thus, unsustainable. The conclusions arrived at by the learned Sessions Judge are irrational.
5. Countering these contentions of the Public Prosecutor, it was argued by Mr. P.R. Chaudhary that the Sessions Judge has critically examined the testimony of the prosecutrix and the various circumstances arising in the case. His approach, as regards the appreciation of evidence, is not perverse so as to call for any interference. It was argued that the accused is presumed to be innocent and once he has been acquitted by the trial, court this presumption stands further strengthened and reinforced. The appreciation of evidence made by the trial court should not be lightly interfered with. The statement of the girl was replete with discripancies, contradictions and improbabilities. It was, therefore, rightly disregarded and rejected, by the trial Court. We have bestowed our thoughtful consideration to the rival submissions.
6. Section 386, Cr.PC speaks about the powers of the appellate Court while hearing the the appeal against conviction or acquittal. Section 423 of the Old Code of Criminal Procedure corresponds to this Section 386. The scope of Section 423, Cr.PC (Old) was considered by the Privy Council in Sheo Swaroop v. The King AIR 1934 PC 227. The view expressed by the Privy Council was subsequently accepted by the Supreme Court in a number of decisions. The latest in series being Sanwant Singh v. The State of Rajasthan AIR 1961 SC 713. The View expressed in Sanwant Singh's case is that the appellate Court has full powers to re-view the evidence upon which the order of acquittal is founded and that the principles laid down in Sheo Swaroop's (supra) afford a correct guide-line for the appellate Courts' approach to a case while disposing of an appeal against acquittal.
7. There is no difference in appreciating the evidence in an appeal coming either against conviction or acquittal. However, in an appeal against acquittal, the verdict of acquittal should not be lightly interfered with. Where two reasonable views are possible on the evidence, the Court of appeal should not interfere with the order of acquittal simply because if it would sit as a trial court, will take another view. The acquittal should be interfered with only when there are substantial and compelling reasons to do so. Where there are substantial or compelling reasons to tip-set the verdict of acquittal, the Court of appeal has full powers to review the evidence upon which the acquittal is based.
8. Now, the learned Sessions Judge has disbelieved the prosecution case on the following grounds;
(1) delay in lodging the first information report;
(2) various discrepancies and contradictions in the statement of the prosecutruix;
(3) the hostile attitude of PW 1 Ramuram; and
(4) the explanation furnished by the accused is reasonable.
9. The contention of the learned Public Prosecutor is that the grounds stated by the trial Court do not stand supported by the material on record.
10. As regards the delay in the first information report, it was argued that it was lodged at about 9. 00 a.m. on the very day of the occurrence. The incident took place at about 3.00 p.m. The place of incident is nearly three miles away from village Panchori where the girl's parents reside. In these circumstances, it was argued that no delay had occurred in lodging the First Information Report. We quite agree with the contention raised by the learned Public Prosecutor. The place of incident is admittedly situate nearly three miles away from village Panchori where the girl's parents reside. The incident is said to have taken place at about 3.00 p.m. The victim was a girl of nearly twelve years in age. She had sustained injuries in the incident. She was taken to her house by PW 1 Ramuram and PW 9 Gangaram. We can well imagine that it must have taken some time in taking the victim to her house. The parents of the girl must have also taken some time to think over whether a report of the incident is to be lodged at the police station or not. After all, the case of indecent assault brings disgrace to the members of the family of the ravished girl. The parents, therefore, generally hesitate to approach the police in such a case. In these circumstances, the delay of six hours in lodging the report of the occurrence at the police station amount to no delay and no undue importance should be given to this sort of delay. The learned Sessions Judge gave undue importance to this delay, which is not there. The learned Sessions Judge was much moved by the fact that the explanation for delay was not mentioned in the FIR Ex. P10. His approach is unsustainable. When there was no delay no question of explaining it arose. We are, therefore, of the opinion that there was no delay in the instant case in lodging the FIR at the police station.
11. The next contention of the learned Public Prosecutor is that the learned Sessions Judge wrongly disbelieved the direct testimony of the prosec-utrix PW 4 Mst. Shanti and her brother Omiya (PW 7). It was argued that the prosecutrix and Omiya (PW 7) bear no enmity with the accused. There was no bad-blood between the parents of the prosecutrix and that of the accused. As such, it cannot be taken to be a case of false implication of the accused. There is considerable weight in this contention of the learned Public Prosecutor It would be proper to briefly read the evidence of the prosecutrix, and Omiya (PW 7).
12. The prosecutrix Mst. Shanti deposed that she and her brother Omiya (PW 7) were with their live-stock grazing in the field of one Dayram Bhambhi. The field of the accused is situate nearby. In the noon, the accused came to her and caught her hand. He pulled her down. She was wearing an underwear. The accused forcibly pulled the waist-cord of her underwear. The waist-cord gave away. He felled her down and removed her underwear. The accused then sat on her naked thighs and inserted his penis into her private parts. As a result, there was bleeding from her private parts. She started weeping. The accused struck a fist-blow on her mouth and she thereby sustained an injury on her lips. She became unconscious. She further stated that the accused before committing rape on her, had put off his Dhoti. She was lifted by Ramuram (PW 1) and Gangaram (PW 9) and was taken to her house. In the way, she narrated the incident to both these witnesses. Her father took her to police station where her underwear (Article 1), which she was wearing at the time of the incident, was seized and sealed. In her cross examination, she stated that the accused first felled her down in one field and thereafter took her in the another field and in that another field, he committed rape on her. She was cross-examined at length but nothing could be elicited which may make her testimony unworthy of belief or credence. Her testimony, despite lengthy and weary cross-examination, has not been shaken and there is nothing to put it at a discount. Her testimony inspires confidence. She is an artless and a simple village girl who is not expected to make a false charge of rape against the accused.
13. PW 7 Omiya was about 8 or 9 years of age. On preliminary examination made by the Sessions Judge, he was found to have a rational understanding and competence to testify. He stated that he and his sister Mst. Shanti were there with their live-stock gracing in the field. In the noon, the accused came and caught hold of his sister. The accused felled her down, removed her underwear and sat on her. He got frightened and took to heels. A little distance away, he found Ramuram (PW 1). He told him that the accused had caught hold of her sister. The presence of this witness has been mentioned in the First Information Report. His presence on the spot has been admitted even by hostile witness PW 1 Ramuram. This witness was also cross-examined at length. But, again, nothing could be taken out from him which may show that he has been falsely introduced in the case or that he had not seen the actual occurrence.
14. The learned Sessions Judge disbelieved these witnesses on the ground that there were various discrepancies inter-se in what they stated. The first discrepancy pointed out by the learned Sessions Judge is that no broken pieces of bangles were found on the spot, when the investigating officer inspected the site and that this fact of the bangles being broken was not mentioned in the First Information Report or in the statement of the prosecutrix recorded during investigation. In our opinion, the fact of the bangles being broken is only an exaggeration and does not destroy the main substratum of the prosecution case. It may be that the prosecutrix was not wearing the bangles. The other reason which prevailed over the learned Sessions Judge is that she was examined for the first time by the police during investigation on March 3, 1974 i.e. nearly after ten days of the occurrence. This late examination of the prosecutrix by the police, according to the learned Sessions Judge, makes her testimony suspicious. We are again unable to accept the reasoning of the learned Sessions Judge. Neither the prosecutrix nor the Investigating Officer was cross-examined to show as to why she was examined on March 3, 1974. In absence of any cross-examination on the point, we are again unable to attach any importance to the late examination of the prosecutrix by the Investigating Officer. There may be several reasons for her late examination. It was the duty of the accused to elicit an explanation on this point from the prosecutrix or the Investigating Officer. The learned Sessions Judge also took the view that Mst. Shanti being a girl of tender age (twelve/thirteen years) could be easily tutored. It is true that the prosecutrix was nearly of twelve years in age at the time of the incident. But there is nothing in her statement to show that she was a tutored witness or that what she stated during trial was a result of some tutoring. The learned Sessions Judge took into consideration the discrepancy as to how the prosecutrix was taken from one field to the other, At one stage, the prosecutrix stated that the accused lifted her and took her to the other field and at other place she stated that she was taken there in the other field by dragging. We again find this discrepancy immaterial. The accused had forcibly taken the girl from one field to the other. It may be by lifting or dragging her.
15. The girl stated that she fainted when the accused committed rape on her and regained consciousness only at Nagaur. But she also stated that she had narrated the incident to Ramuram(PW 1) and Gangaram(PW 9) when they took her to her house. This, again, according to the learned Sessions Judge is sufficient to discard her testimony. In our opinion, the approach of the learned Sessions Judge is not proper. It is only due to raw understanding that the witness stated that she regained consciousness at Nagaur. Importance should not have been given to such minor discrepancy. In her statement recorded during trial, the prosecutrix stated that when her father took her to the police, station, he asked her to state, that the accused had stripped her and committed rape with her and that she was taken to her house by Ramuram (PW 1) and Gangaram (PW 9). According to the learned Sessions Judge, this showed that what she stated, was at the instance of her father. We again find that the approach of the learned Sessions Judge is not proper she is a child-witness and naturally the father asked her to state to the police as to what had been committed with her by the accused. The approach of the learned Sessions Judge in evaluating and sifting the testimony of the prosecutrix is not proper and cannot be appreciated.
16. It appears that the learned Sessions Judge was much impressed by the fact that P W 1 Ramuram had not supported the prosecutrix. PW 1 Ramuram belongs to the caste of the accused and it appears that he was won over by the accused and this persuaded him not to testify against the accused. He was declared. Hostile. He stated that while he was going to village Panchori in the after noon of the day of the occurrence, he saw the prosecutrix and her brother collecting fire-wood in the field of the accused. A quarrel took place between them. The accused gave a fist blow on the month of the prosecutrix and pushed her aside. She fell down on a dry stump of Bazra. Her private parts, thus, got injured and bleeded. He however, admitted the presence of the prosecutrix's brother PW 7 Omiya at that time. He was declared hostile, In his police statement Ex. P. 1, he deposed that he had seen the accused committing rape on the prosecutrix Mst. Shanti. He denied to have given statement Ex. P 1 during, investigation before the Investigating Officer. His hostile attitude in no way, diminishes the evidentiary value of the statements of the prosecutrix and her brother Omiya (PW 7).
17. The medical evidence affords ample corroboration to the testimony of the prosecutrix. When she was examined by Dr. Joshi (PW 2), injuries were found on her private parts. He rhymen was lacerated at 4 O'clock and 9 O'clock positions and there was laceration of perinium at 6 O'clock position. There was also a laceration 1' x 1/4' at the lowest level. The vaginal discharge was blood stained. The doctor further found injuries on the lips, eyes and the scapular regions of the prosecutrix. If the prosecutrix fell on the dry stump of Bazra with her face downward, she could not have received the injury on the scapular region. The injury on the scapular region could be caused only when she had fallen with the face upward. More over, the dry stump could not cause so many injuries on the private parts of the prosecutrix. The medical evidence, thus, affords a very strong corroboration to the story deposed by the prosecutrix.
18. The learned Sessions Judge was also impressed by the fact that no semen was found on the underwear of the girl or/and the Dhoti of the accused on chemical examination. We may, however, add that the underwear of the girl and/or the Dhoti of the accused were found stained with the human-blood in the chemical examination. Therefore, mere absence of semen on the underwear of the girl and/or the Dhoti of the accused does not show that the story of rape stated by the prosecutrix is not true. Seminal emissions is not necessary to establish rape. What is necessary is that there must be penetration. In the instant case, the prosecutrix has stated that the accused had inserted his male-organ in her private parts. Therefore, the offence of rape was complete as there was penetration.
19. In the cross-examinations of the prosecutrix or her brother Omiya (PW 7) or her father Jassa Ram (PW 8), nothing was suggested from the accused's side that they had any enmity with him or had reasons to implicate him falsely. After all, the charge of rape and sexual aggression in the present set-up of our society involves disgrace to the victim's family, especially when the prosecutrix is a girl of tender age. As such, a charge of sexual aggression, if levelled against accused, should not be approached with a sense of doubt to start with. We are unable to conceive that the prosecutrix in the instant case would make a false charge of sexual aggression against the accused especially when no bad-blood exists between her family and the accused. The accused has not assigned even a far distant reason for his false implication.
20. Thus, the promptness in lodging the First Information Report, the unequivocal marks of injury on the private and other parts of the prosecutrix, the presence of human blood on her underwear and the Dhoti of the accused and no reason for the false implication of the accused, when considered cumulatively, point to the guilt of the accused and his conviction is, therefore, inescapable.
21. The prosecutrix was admittedly near about twelve years in age at the time of the incident. Dr. Joshi (PW 2) examined the girl. He found her breasts not developed, axillary hair not developed, twenty-eight teeth. Her skigrams of the wrist and elbow joints were also taken. On these dates her age was stated to be twelve years by Dr. Joshi. The learned Sessions Judge has accepted the opinion of Dr. Joshi (PW 2) as regards the age of the prosecutrix. The learned counsel appearing for the accused has not challenged the opinion of Dr. Joshi in respect of the age of the prosecutrix. Thus, Mst. Shanti was nearly twelve years of age when she was ravished by the accused. As such, no question of her consent arises. Where the victim of rape is below sixteen years of age, the question of consent does not arise. We are, therefore, unable to maintain the acquittal of the accused. We hold that the direct testimony of the prosecutrix Mst. Shanti (PW 4) and of her brother Omiya (PW 7) corroborated by the medical evidence and the various other circumstances are sufficient to prove the charge of rape against the accused. His conviction under Section 376, IPC must, therefore, ensue:
22. The question which now survives is that of punishment and it is a baffling one. Crime of carnal assault and violence on a. female child of tender and raw age must be put down with a strong hand and a deterrent punishment should generally be awarded. Such cases should not be lightly dealt with. However, in the instant case the circumstances do not permit us to impose a deterrent sentence on the accused. The offence was committed in February, 1974 and this appeal against the acquittal of the accused is being disposed of in January, 1986. The age of the accused, as recorded in his statement under Section 313, Cr.PC has been shown to be of seventeen years and to be of eighteen years in his arrest memo Ex. P. 9. It would not be proper to resend him now to jail after a lapse of nearly twelve years. The accused has remained in custody nearly for a month. We are, therefore, inclined to take a lenient view in the matter of sentence, though reluctantly. The long interval of twelve years does not permit us to impose a heavy sentence on the accused and to resend him to jail.
23. In the result, the appeal of the State is allowed. The judgment of the learned Sessions Judge acquitting the accused Dhania is set aside and he is hereby by convicted under Section 376, IPC. He is sentenced to imprisonment for the period of detention already undergone by him during investigation, inquiry and trial and a fine of Rs. 2,500/- (Rupees twenty five hundred), in default of the payment of fine to undergo one year's rigorous imprisonment. He is allowed two months time to deposit the fine in the trial Court, failing which the learned Sessions Judge, Merta shall proceed against him according to law. In case the amount of fine is deposited by him, a sum of Rs. 1,500/-(Rupees one thousand five hundred) out of it will be paid to the prosecutrix Mst. Shanti as compensation.