Karnataka High Court
Syed Pasha vs State Of Karnataka on 30 July, 2004
Equivalent citations: 2004CRILJ4123, 2004(7)KARLJ735, 2004 CRI. L. J. 4123, 2004 AIR - KANT. H. C. R. 2817, (2004) 4 ALLCRILR 858, (2005) 1 CRIMES 333
Author: N.S. Veerabhadraiah
Bench: N.S. Veerabhadraiah
JUDGMENT N.S. Veerabhadraiah, J.
1. The appellant-accused has filed this appeal, assailing the judgment of conviction of the accused for the offence punishable under Section 376 IPC, in SC No. 91 of 1991, by the learned Sessions Judge, Bidar, dated 9-9-1998, and sentencing him to undergo rigorous imprisonment for period of ten years and to pay a fine of Rs. 2,000/-, in default, to undergo further rigorous imprisonment for six months.
2. The nutshell of the prosecution case is as follows :
The prosecutrix, daughter of PW6 Nirmala and PW7 Subhash, was a child aged about five years. The child and PWs 6 and 7 were residing in the house of Panchappa along with PW8 Manemma and PW1 Venkatesh. Their house is situated at Gandhinagar Colony, Bidar. PW6 Nirmala as well as PW8 Manemma are sisters. Whereas PW1 Venkatesh is the son of PW8 Manemma.
The accused Syed Pasha and his father Syed Ameerali are running their flour mill, situated at Gandhinagar Colony, Bidar. The said flour mill is situated a few yards away from the house of Panchappa, in whose house the victim and her parents were residing.
On 9-1-1990 at about 11.00 am, PW1 Venkatesh heard the screaming of the child Umashri @ Munni from the side of the flour mill of the accused. He informed his aunt about the screaming of the child. Immediately, they noticed the child was coming from the side of the flour mill with bleeding from her private part. The child was taken to private clinic of PW9 Dr. S.B. Ashok Kumar. PW9, noticing the bleeding, advised to wait till the arrival of PW10 Dr. Lalithamma, who is a lady doctor. PW10 Lalithamma, on noticing the injury over the private part of the child, informed them that it is a medico-legal case and advised to approach the police.
In the meanwhile, the father of the child had been to Hyderabad. PW1 waited for his arrival to file a complaint. However, on 10-1-1990, PW1 went to Gandhigunj Police Station and orally narrated the incident and his complaint was recorded in writing as per Ex. P1 by the Police sub-Inspector Shankar (PW11), and registered the case in Crime No. 5 of 1990 for the offence punishable under Section 376 IPC. The victim was sent to Government Hospital, Bidar for examination and treatment. On the same day, PW11 visited the spot and prepared a spot mahazar as per Ex. P4, in the presence of PWs 2 (Ram Reddy) and PW3 (Sharnappa).
He recorded the statements of witnesses and seized the clothes of the girl -- MOs 1 and 2 (frock and underwear) -- under Mahazar as per ExP3 and on the same day he arrested the accused Syed Pasha and sent him for medical examination and seized the clothes of accused -- MO3 Lungi and MO4 underwear -- under Mahazar as per Ex P4.
PW 4 Dr. Bharathi, who examined the child found that there was laceration of hymen of the victim at 2 and 5 o' clock position with reddish margin and the vagina was admitting the tip of little finger and it was painful. She also issued the medical certificate as per Ex. P5. PW 5 Dr. Sudheer Kamtikar examined the accused and issued medical certificate as per Ex. P6. The PSI (PW11) Shankar handed over the further investigation to Circle Inspector of Police, Bidar Circle, who filed the charge-sheet against the accused for the offence punishable under Section 376 IPC.
On filing the charge-sheet, the learned Sessions Judge secured the presence of the accused, framed charges for the offence punishable under Section 376 IPC and read over and explained the same to the accused. The accused pleaded not guilty and claimed to be tried. The prosecution in all examined PWs 1 to 11, marked Exs. P1 to 8 & produced MOs 1 to 4. Statement of the accused was recorded under Section 313 Cr.P.C. The defence of the accused is one of total denial, and also stated that on account of a dispute between the father of accused and the said Panchappa, regarding flow of water, a false case has been foisted. However, the accused did not choose to lead any evidence, though the learned Sessions Judge provided an opportunity.
3. The learned Sessions Judge, Bidar, for the reasons recorded in his judgment, convicted the accused for the offence under Section 376 IPC, and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 2,000/-, in default, to undergo further rigorous imprisonment for six months. It is this judgment of conviction which is assailed in the present appeal.
4. Sri S. J. Chouta, learned counsel for the accused, submitted that there are no eye witnesses to the incident, and therefore, the non-examination of the victim is fatal to the prosecution case. The entire case of the prosecution is based on the circumstantial evidence. PW1 Venkatesh, is the cousin brother of the victim, who filed the complaint after 12 to 13 hours of the alleged incident, has not been able to explain the delay in lodging the complaint. The evidence of PW6 Nirmala, mother of the victim, does not support the say of PW1 and thereby there is inconsistency in their evidence and therefore the evidence of PWs 1 and 6 cannot be believed to that extent. He also submitted there is discrepancy between the complaint Ex P1 and the evidence of PW1 Venkatesh. According to PW1, PW6 is an eye witness to what is stated in the complaint. It also clearly reveals that PW1 has not at all seen the accused on the day of incident while he heard the screaming of the child. Further, the learned counsel for the accused submitted that PW6 Nirmala, mother of the victim, has not given 'an eye witness' version of the occurrence and that she was treated as hostile and cross-examined by the prosecution. He further submitted that none of the witnesses examined by the prosecution have supported its case. That apart, the investigating officer has not been examined. All these material discrepancies clearly show that the conviction and sentence passed by the learned Sessions Judge against the accused is unwarranted, perverse and without proper reasons. He further submitted that according to the medical evidence, no injuries are found to any other part on the victim, except on the vaginal part. That the evidence of PW4 Dr. Bharathi in the cross-examination, that rupture of hymen is possible due to insertion of finger or insertion of any hard object is accepted, it probabilizes the defence version. Therefore, learned counsel for the accused submitted that if the evidence of PW4 Dr. Bharathi to the effect that the examination of cervical and vagina smear for spermatozoa and gonococci found negative, the possibility of accused committing the offence is utter false. That apart, none of the witnesses have seen the accused on that day. Therefore, it is a clear case where the accused has been falsely implicated on account of the dispute regarding flow of water between the father of accused and the said Panchappa. The learned counsel for the accused further submitted that the victim allegedly informed her mother as to what had happened, she stated 'Pasha'. The same is inadmissible in evidence, as it is hit by Section 60 of the Evidence Act. In support of his contention, learned counsel for the accused relied on the decisions , , AIR 2000 SC 2062 : (2000 Cri LJ 3490) and AIR 1999 SC 1388, and submitted that unless and until the evidence of the prosecution witnesses is unimpeachable, the conviction cannot be based. He further submitted that absence of injury on the male organ entitles the acquittal of the accused. It is his further submission that in the absence of cogent evidence and in view of the delay in filing the FIR, leads to a suspicion of the prosecution case and basing on such evidence, the accused cannot be convicted. Lastly, he submitted that when the evidences of prosecution witnesses are doubtful, there being no eye witness to the incident, circumstances relied upon by the prosecution are not sufficient to convict the accused so as to hold that it is the accused who committed the offence of rape. Therefore, he prays to set aside the conviction and sentence by allowing the appeal.
5. Sri S.G. Rajendra Reddy, learned High Court Government Pleader submitted that a girl aged about 4 or 5 years has been raped by a man of 32 years. Wherein the evidences of mother PW6 and PW1 Venkatesh --cousin brother of the victim -- clearly show that after the incident, the child came weeping and when asked by PW6, the child said 'Pasha'. It is also clear from the evidence of PW6 that there was a bleeding and the clothes of the child were stained with blood. He further submitted that though there are some variances in the complaint, that itself does not go to the root of the prosecution, so as to disbelieve the very incident of rape. He further submitted that the victim was taken to hospital of PW9 Ashok and PW10 Dr. Lalithamma, after examination of the child and administering first aid, noticed severe injury over the private part of the child, and therefore asked them to take the child to police, as it is medico-legal case. He further submitted that the evidence of PW4 Dr. Bharathi is so clear that it is on account of sexual assault on the child, the injuries were caused and it is a clear act of rape. Learned Government Pleader submitted that merely because PWs 1 and 6 have not supported the entire case of prosecution, it would not help the accused in any way. He further submitted that the victim was a child of 4 to 5 years at the time of occurrence of crime and she was aged about 13 years as on the date of recording the evidence. As it was a question of dignity and honour of the victim and her family, as well as competency of the victim to understand the incident that had occurred when she was aged about 4 to 5 years, she was not examined by the prosecution as a witness. He submitted that even if the victim would have been examined, as she was in an infancy stage at the time of occurrence of the crime, she could not have recollected the incident of rape committed by the accused. Nextly, it is contended that the defence of the accused that there were no injuries on any other parts of the child, cannot be accepted at all, in view of the fact that the accused was a robust and well built person and he overpowered the child by taking her on his lap and committed the crime. Therefore, no injury could be expected on any other part of the child except the vaginal part. He further submitted that PW4 Dr. Bharathi, who examined the child found that there was laceration of hymen of the victim at 2 and 5 o'clock position with reddish margin and the vagina was admitting the tip of little finger and it was painful, and this medical evidence is sufficient to hold that rape has taken place. He nextly submitted that absence of semen, spermatozoa and gonococci itself is not a ground to hold that the accused has not committed rape. Even without discharge of semen, if penetration is taken, it is sufficient to hold the act of rape is proved. Learned Government Pleader nextly contended that non-examination of the investigating officer is not fatal to the prosecution case, as the defence has not elicited any serious or major contradictions to put the same to the investigating officer and to get the same marked. Lastly, he contended that each case has to be examined on its facts and circumstances and justified the judgment of conviction and sentence passed by the learned Sessions Judge. He, therefore, prayed for dismissal of the appeal.
6. In the light of the submissions, the points that arise for my consideration are:
(a) Whether the learned District & Sessions Judge, Bidar is justified in convicting and sentencing the accused of the offence under Section 376 IPC?
(b) What order ?
7. In the matter of offences affecting the human body like rape and unnatural offences, the Court is expected to be guarded by the well established principles in appreciating direct and circumstantial evidence or both, to see that none of the parties would suffer in the hands of the Court. Under a similar situation, in the case of Sudhansu Sekhar Sahoo v. State of Orissa , the Supreme Court has observed thus :
"It is true that the evidence of the prosecutrix in a rape case is to be given due weight. Sexual violence is a dehumanising act and it is an unlawful encroachment into the right to privacy and sanctity of a woman. The Courts also should be strict and vigilant to protect the society from such evils. It is in the interest of the society that serious crimes like rape should be effectively investigated. It is equally important that there must be fairness to all sides. In a criminal case, the Court has to consider the triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family and the public. The purpose of criminal law is to permit every one to go about their daily lives without fear or harm to person or property."
It is with this background, the evidence on record has to be re-apprised to find out whether the conviction of the accused is sustainable or he is entitled for an order of acquittal.
8. The prosecution mainly relied on the testimony of PW1 Venkatesh and PW6 Nirmala, who speak to the facts and circumstances as to in what condition they saw the child, the bleeding from her private parts and her underwear was found, pulled down. PW6 Nirmala also speaks about taking the child to the hospital of PW9 Ashok Kumar, who gave first aid and also treated by PW10 Dr. Lalithamma. The prosecution also relies on the testimony of PW4 Dr. Bharathi, Senior Specialist in the District Health Office, Bidar, who speaks to the fact of laceration of hymen in the shape of 2 and 5 o'clock position with reddish margin and that the vagina was admitting the tip of little finger and it was painful. The prosecution has also relied on the evidence of PW8 Manemma, who speaks to the fact of seeing the bleeding from the private part of the child Umashri.
In the complaint ExP1, it is stated as if PW 6 Nirmala informed about she bringing the child from the flour mill of the accused and witnessing the accused taking the child on his lap and his act of forcible sexual intercourse. In the course of her evidence, PW 1 has not stated the said fact. In these circumstances, it has to be examined whether that itself does go to the root of the prosecution case so as to discard the testimony of PW 1 and 6 or their evidence points to the guilt of the accused, by accepting the circumstances relied on by the prosecution.
9. Sri S.J. Chouta, learned counsel for the accused brings to the notice of the Court the case of Sarwan Singh v. State of Punjab and submits that mere suspicion, however strong, cannot take the place of proof. Head Note (k) (Para 12) of the said decision is relevant and the same is extracted below :
"It is no doubt a matter of regret that a foul cold-blooded and cruel murder like the present should go unpunished. It may be as Mr. Gopal Singh strenuously urged before us that there is an element of truth in the prosecution story against both the appellants. Mr. Gopal Singh contended that considered as a whole, the prosecution story may be true, but between 'may be true' and 'must be true', there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence."
There cannot be any doubt regarding the observation contained in the decision in supra. In all the cases where it ends in conviction, it must be supported with legal, reliable and unimpeachable evidence. Time and again, the Apex Court has held that each case has to be examined in its own facts and circumstances and that no similar case is similar to one another. Therefore, if the Court is satisfied that the materials placed in the case on hand justifies, then only, the judgment of the trial Court has to be upheld.
In the case of Rahim Beg v. State of Uttar Pradesh , while considering the legal evidence in the case arising under Section 375 IPC, under the given circumstances, the Supreme Court held thus (at p. 349):
"....... if a girl of 10 or 12 years who is virgin and whose hymen is intact is subjected to rape by a fully developed man, there are likely to be injuries on the male organ of the man. No injury was, however, detected by the doctor on the male organ of any of the two accused. The absence of such injuries on the male organs of the accused would thus point to their innocence........."
Relying on the said decision, learned counsel for the accused contended that on examination of the accused, PW5 Dr. Sudheer Kamatikar opined that no injuries were found on the accused. If really the accused were to have committed the act of sexual assault on the child causing laceration over the vaginal area of the child, the accused ought to have sustained some injuries on his private organ. In the absence of it, the learned counsel for the accused submits that, it does not point to the guilt of the accused. Therefore, he submits that the judgment of conviction will have to be held bad. The learned counsel for the accused further relied on the decision in Sudhakar v. State of Maharashtra , and submits that in the absence of cogent and reliable evidence to connect the accused to the commission of offence, delay in lodging the complaint and non-examination of the victim, non-examination of the material witnesses and the witnesses turning hostile, the case becomes one of doubtful in nature. Therefore, he submits that as the evidences of prosecution witnesses are not reliable, credible and trustworthy, the accused cannot be convicted.
10. Here is in a case of rape alleged to have been committed on a child aged about 4 to 5 years. While dealing with such cases, a duty is cast on the Court to have utmost sensitivity and it is necessary to appreciate the evidence in its totality, keeping in view the background of the entire case, and not in isolation.
11. It is in the testimony of PW1 Venkatesh that PW8 Manemma is his mother; PW6 Nirmala is the sister of PW8. He deposed that his uncle Subhash as well as his father Panchappa are residing under the same roof. The victim Umashri @ Munna, aged about 4 years, is the daughter of PW6 Nirmala and he is her cousin. It is in the evidence of PW1 that the accused has a flour mill behind their house at Gandhinagar Colony, Bidar. PW1 stated that on 9-1-1990 at about 10 or 10.30 am, while he was in the house, Umashri went towards the flour mill of the accused as usual to play; that by about 10 or 15 minutes thereafter, he heard the cry of Umashri from the side of the flour mill of the accused; and that he asked his aunt Nirmala (PW-6) to go and to see what was the matter. PW-1 further stated that when Nirmala went towards the flour mill of the accused, she noticed Umashri coming from the flour mill of the accused and at that time Umashri was crying and weeping; and that there was bleeding from the vagina of Umashri. He further deposed that, he went to the flour mill of the accused, but by then, the accused ran away from his flour mill. It is also stated by PW-1 that no one was present in the flour mill of the accused. It is stated that when they took Umashri to the clinic of Dr. Ashok Kumar for treatment, after seeing Umashri, told them to wait till his wife Dr. Lalithamma came and examine the child. It is in his evidence that Dr. Lalithamma after examining Umashri, told them to take Umashri to Government Hospital for further examination. Accordingly, PW-1 stated, they took Umashri to Government Hospital and the doctor at the Government Hospital after examining Umashri informed them that it is a police case and they should file a complaint to the police. PW-1 further deposed that on that day they did not lodge the complaint with the police, because Subhash -- the father of Umashri -- was away and that they informed the father of Umashri over telephone about the incident and requested him to come over to Bidar. It is deposed by PW-1 that they waited for Subhash till 9 am on the next day morning and when he did not turn up, PW-1 stated that he went to the Gandhigunj Police Station and informed the police about the incident. It is stated by PW-1 that the police recorded his oral complaint into writing as per Ex-P-1. PW1 has also stated that at the time of lodging Ex-P-1 complaint, he informed the police that the accused committed rape on the child. He further deposed that police came near the flour mill of the accused and prepared a panchanama. It is the further evidence of PW-1 that Umashri was wearing a frock and underwear and on account of bleeding, her clothes were stained with blood. The said frock and the underwear were marked as MOs-1 and 2.
In the cross-examination, PW-1 stated that there was no one in the flour mill of the accused at the time Umashri came from the side of flour mill and that he did not see any one running away from the flour mill, when Umashri came weeping from that side. He further stated in the cross-examination that at that time he did not come to know as to why Umashri was weeping and crying. In the further cross-examination, PW-1 has stated that it is true that on the last hearing date, he had given evidence before the Court (Court below) as instructed and tutored by the police. He also stated that on the last date of his evidence, police had also told him that if he did not give evidence as instructed by them, he will be held responsible for all the consequences.
12. PW-6 Nirmala -- mother of the victim -- has stated in her evidence that she knows the accused; and that his flour mill is situated just behind her house. She further stated that about 9 years ago, when Umashri was a small child, the accused used to take Umashri into his arms and play with her. She further stated that, similarly, on one day, when Umashri had gone towards the flour mill of the accused, it was about 11 am and she was in the house, she heard the cry and weeping of Umashri, who was coming from the side of the flour mill of the accused. She stated that, immediately, she went and tried to pacify Umashri and then she found bleeding from the private part of Umashri. When she enquired as to what had happened, Umashri told that it was 'Pasha'. At that time, the accused was in his flour mill. Then herself and her sister Manemma enquired with the accused as to what had happened to Umashri and what he had done to Umashri, the accused informed them that he had not done anything. PW-6 further deposed that at that time, Umashri was wearing a frock and underwear and that on account of bleeding, the underwear and the frock were stained with blood. She further deposed that when Umashri came weeping from the side of flour mill, her underwear was not at her waist, but it had been removed half way and it was almost near her knees. She has further deposed that herself and her sister took Umashri to the clinic of Dr. Lalithamma and the child was examined by Dr. Lalithamma and on the advice of Dr. Lalithamma herself and her sister took Umashri, on the same day, to the Government Hospital, Bidar for examination and treatment. It is stated by PW-6 that the history of the case given to Dr. Lalithamma and also to the Government Doctor at the hospital by her sister and she did not mention anything to them about the history. She has further stated that she has not given any complaint to the police, it is PW-1 who gave the complaint to the police and that she does not know the contents of the said complaint. In the further examination, she has stated that before taking Umashri to the clinic of Dr. Lalithamma she had removed the blood stained clothes and had put different set of clothes and that subsequently, she had handed over the said blood stained frock and underwear to the police. She further deposed that before handing over the clothes to police, she had already washed them.
The prosecution treated this witness as hostile and cross-examined. In the cross-examination, PW-6 has admitted stating that it is true that on 9-1-1990 at about 11 am, PW-1 Venkatesh informed her that her daughter Umashri was crying near the flour mill and asked her to go and see as to what is the matter; that it is true that immediately she went near the flour mill of the accused and found the accused committing rape on Umashri by making Umashri to sit on his thigh after pushing her underwear down; that it is true that Umashri was weeping and crying; and that thereafter, the accused ran away from the flour mill and at that time, except the accused and Umashri, there were no one else in the flour mill of the accused. PW-6 has further admitted in her cross-examination that it is true that when herself and her sister had taken Umashri to the clinic of Dr. Lalithamma, she was not present, and her husband was present and they waited in the clinic till Dr. Lalithamma came and examined the child Umashri. She has further admitted that it is true that her sister had then informed Dr. Lalithamma that some small stick or wooden piece must have had caused injury to Umashri. She also admitted that Dr. Lalithamma, after examining Umashri had informed them that Umashri was subjected to rape and as such they should take her to Government Hospital for further examination and treatment. It is also admitted by PW-6 that thereafter PW-1 Venkatesh lodged a complaint before the police alleging accused Pasha committed rape on Umashri.
In the cross-examination, PW-6 has admitted that it is true that she hesitated to give evidence with regard to true facts in her examination-in-chief fearing for the reputation of her family and to protect the modesty of her daughter Umashri. In the cross-examination, PW-6, further admitted that the house in which she is living belongs to Panchappa -- husband of her sister -- and that the house of Panchappa and the flour mill of the accused are adjoining each other. She has also admitted that a pile was constructed in front of the flour mill. She further stated that she does not know whether on account of construction of katte (pile) in front of the flour mill, a dispute has started between her brother-in-law Panchayya and Ameerali - father of the accused. In the cross-examination, PW-6 has stated that at a distance there was another flour mill belonging to one Baswaraj and the same is far away. In the cross-examination she has stated that the accused used to take Umashri in his arms to play with her since the time when Umashri aged about 4 years. She denied a suggestion that on special occasions and functions in the house of Panchappa, the accused and his younger brother used to help them in various works. She has further stated that on that day at 11 am, when she was attending to household work, Umashri had returned home crying, and no one else was with Umashri, she came alone; at that time, herself, Manemma and PW-1 were present in the house; that PW-1 and Manemma made enquiries with Umashri as to what had happened; and that thereafter, herself, Manemma and PW-1 went to the flour mill, then no one was present in the flour mill. She further admitted that at about 5 pm, they went to the clinic and waited till the arrival of Dr. Lalithamma. In the further cross-examination, she has stated that she did not tell anything to the Doctor at Government Hospital, it was Manemma who informed the Government Doctor and mentioned the details of the incident. She stated that she does not remember whether she had stated before the police that Umashri disclosed the name of the accused when she had made enquiry with her when she came weeping to the house. Further, PW-6 stated that she does not remember whether she had also not stated before the police that herself and Manemma had brought the accused to the house from the flour mill and that on enquiry the accused had told that he has not done anything and thereafter the accused went away, PW-6 has further stated that she does not remember whether she had also told the police that Dr. Lalithamma had informed them that Umashri was subjected to rape and that they should take Umashri to Government Hospital, and stated that she informed Dr. Lalithamma that Umashri had suffered some injuries on her private part while playing due to some object hitting or piercing. She has further stated that she avoided to mention 'rape' before Dr. Lalithamma only to keep the prestige of the family. PW-6 has also admitted that it is true that even now she wanted to protect the prestige of the family in the same way she had done so when she took Umashri to Dr. Lalithamma. She denied the suggestion that Umashri had sustained injury accidentally while playing and at the instance of Panchappa and after much delay they lodged a false complaint against the accused. She further denied a suggestion that she had given different versions in her earlier evidence not for protecting honour and dignity of her family, but because she was deposing false story before the Court. She further denied a suggestion that, Umashri did not mention the name of accused and that she was deposing falsely at the instance of police and Panchappa.
13. PW-8 Manemma, sister of PW-6 Nirmala, in her evidence stated that her sister PW-6 Nirmala, child Umashri and PW7 Subhash (husband of PW-6 Nirmala) are residing in their house in Gandhinagar Colony, Bidar and that she knew the accused, who was running a flour mill by the side of their house. It is in her evidence that PW-6 Nirmala informed her that Umashri had gone towards the flour mill of the accused and on that day morning and returned weeping. She deposed that she did not go to any doctor by taking the child and stated that PW-6 Nirmala took the child to doctor.
Prosecution treated this witness as hostile and cross-examined. In the cross-examination, PW-8 denied a suggestion that on 9-1-1990 at about 11 am, when herself, PWs 1 and 6 were in the house, Umashri had gone towards the flour mill of the accused and they heard the cry of Umashri after some time, and then as suggested by PW-1, her sister PW-6 Nirmala, had gone towards the flour mill to see as to what was the matter; that PW-6 had brought Umashri and then she was abusing the accused and at that time, they observed bleeding from the private part of Umashri and that her underwear was removed upto knee portion and that her clothes were stained with blood. She further denied the suggestion that Nirmala informed her that the accused committed rape on Umashri and that the accused ran away from the flour mill after PW-6 went there. She further denied the suggestion that thereafter, PWs-1 and 6 took Umashri to the clinic of Dr. Ashok Kumar and Dr. Lalithamma and at that time, PW-7 Subhash was away at Hyderabad. PW-8 denied the suggestion that PW-7 did not return even on the next day morning and she advised her son PW-1 Venkatesh to lodge a complaint against the accused and accordingly PW-1 lodged the complaint with the police. She denied the suggestion that she is deposing falsely in order to help the accused as requested by him.
14. PW-7 Subhash -- father of the victim -- in his evidence has stated that during the year 1990, for ten days he was away from Bidar and had gone to Hyderabad. When he returned from Hyderabad on 18th, his wife informed that Umashri suffered bleeding and as such she was taken to private doctor and on the advice of the private doctor, Umashri was taken to Government Hospital for treatment. He further deposed that he knows the accused Syed Pasha, who was present in the Court and that the flour mill of the accused was situated just behind their house.
This witness was also treated hostile and cross-examined by the prosecution. He denied the suggestion that when he returned home, his wife and Umashri were not in the house and on coming to know that they have gone to Government Hospital, he went to the Government Hospital. He denied the further suggestion that in the hospital, he came to know from PW-6 that the accused committed rape on Umashri in his flour mill on the morning of 9-1-1990. He denied the suggestion that he came to know from PW-1 Venkatesh that he lodged a complaint that the accused had committed rape on Umashri.
15. The prosecution, in order to establish the fact that child Umashri had suffered injury over her private part, examined Dr. S.D. Ashok Kumar (PW-9) - a private medical practitioner. In his evidence, PW-9 deposed that one day in 1990 in the afternoon hours, a girl by name Umashri, who was then aged about 8-9 years or so, was brought to his clinic for examination and treatment by her mother and at that time Umashri had bleeding. He further stated that his wife Dr. Lalithamma was then practising with him and as she was hot available in the clinic, he informed that Umashri has to be examined by a lady doctor and asked them to wait for the arrival of Dr. Lalithamma and that Dr. Lalithamma came to the clinic by about 6.30 pm or so on that day.
In the cross-examination, PW-9 has stated that it is true that many patients come to his clinic every day and it is not possible for him to remember the names of all the patients, particularly when they had come for treatment 7-8 years back. He has further stated that the statement recorded by the police in the year 1990 was refreshed to him by the prosecution. In the re-examination, PW-9 stated that he can recollect and tell about the patients who had come to him even many years after in special cases. He admitted that whenever a medico-legal case comes to him, it is his duty to inform the police and stated that as regard to Umashri he has not informed the police.
16. Dr. A.C. Lalithamma -- PW-10 -- in her evidence has stated that during 1990 she was working in office of District Health & Family Welfare in LCDR Post and her husband is a private medical practitioner, who had a clinic in Gandhinagar area of Bidar and she was also doing private practice. She has stated that one day in 1990, when she went to the clinic at about 7 pm, a girl by name Umashri and her mother were waiting for her in the clinic; that the mother of Umashri told her that Umashri was having vaginal bleeding and requested to examine and treat her. PW-10 further deposed that Umashri was in the age group of 3 to 6 years and on examination, she found blood stains on her (Umashri) underwear and on seeing Umashri, she made enquiry with her mother as to how it could have happened to Umashri and that mother of Umashri though at the first instance stated that Umashri might have sustained injury on her private part while playing, she later expressed doubt about the cause of bleeding. She further deposed that she advised the mother of Umashri to approach the police to take Umashri to civil hospital for examination and treatment. She stated that the bleeding from the vaginal area of Umashri could have been either due to some foreign body like small stick or it may due to rape.
In the cross-examination, PW-10 stated that she has not noted down any records about Umashri and her mother having had come to her in 1990 and about talks that had taken place between her and mother of Umashri. She has stated that she was maintaining a notebook in which she used to note down the names of her patients. PW-10 further stated that the said notebook has not been preserved and not available with her. She has further stated that many types of patients with different diseases come to her clinic for treatment and generally it is not possible to remember all the patients and case history and names of the persons, who had accompanied the patients. She stated that she can remember such details in respect of some special cases. PW-10 further deposed that she had seen the vaginal part of Umashri but had not examined her. She further stated that the mother of Umashri told her that some object might have had pricked at the private part of Umashri while playing. PW-10 further deposed that as she was not certain that it was a medico-legal case, she did not inform the police and stated that she had suspected the case of Umashri as a medico-legal case and advised her mother to approach the police. She denied the suggestion that Umashri and her mother had never come to her in 1990 and Umashri has not suffered with vaginal bleeding.
17. PW-4, Dr. Bharathi, Senior Specialist in the District Health Office, Bidar deposed that during 1990 she was working as Asst. Surgeon in the District Hospital, Bidar. It is stated by PW-4 that on 10-1-1990 at about 1.15 pm, Gandhigunj police brought Umashri @ Munni, aged about 5 years, with a history of physical assault and rape on her on 9-1-1990. She deposed that the Duty Medical Officer, before whom Umashri was produced by the police, had referred Umashri to her for examination and treatment and accordingly she had examined Umashri @ Munni. PW-4 further deposed that on examination of Umashri, she found the said child Umashri was of height of 3 to 31/2 feet and weight of 12 kg. She did not find any external injuries on face, chest, thigh and abdomen of Umashri, but noticed laceration of hymen at 2 and 5 O'cock position. She further deposed that there was no fresh bleeding from the wound, but margins were reddish, vagina admits tip of little finger and it was painful. She stated that there was no bleeding from vagina and urethra. She stated that she also examined cervical and vaginal smear for spermatozoa and gonococci and found it negative. She stated that she gave treatment to Umashri. She further stated that hymen of Umashri might have been lacerated as a result of intercourse about 24 to 26 hours prior to her examination. She also stated that usually there will be bleeding for about six hours from the time of injury and that by the time Umashri was brought for treatment, she had changed her clothes and she had been treated by another doctor.
In the cross-examination, PW-6 stated that she does not remember as to who told her that the clothes of the girl were changed before she was brought to her. She further stated that she does not know who was the private practitioner who treated Umashri earlier. She also stated that the name of the assailant was also not mentioned to her while giving the history of the patient. She has admitted that whenever a woman or a girl is forcibly raped, it is common that such woman or girl would sustain injuries on her face, chest, thigh, back and abdomen. PW-4 denies a suggestion that in case of sexual intercourse with ejection, the presence of semen would be commonly found near the vagina and other parts. She has stated that rupture of hymen is possible due to other reasons also other than sexual intercourse, such as insertion of thumb or finger. In the further cross examination, PW-4 has stated that she examined cervical and vaginal smear to find out as to whether there was sexual intercourse. She denied a suggestion that negative result of the said test would only disclose that no sexual intercourse, and stated that even there is sexual intercourse, the examination of cervical and vaginal smear for spermatozoa and gonococci may be negative. She further said that some times there would not be a positive result from such test. In the further cross-examination, PW-4 has stated that fresh bleeding would generally be present for about one or two hours, but some times it may extend upto six hours, and normally after six hours, bleeding would stop. She further stated that if the patient or victim is examined subsequent to six hours of injury or few days later, generally there will be no bleeding and in the certificate they would mention that there was no bleeding. She has stated that in the case of Umashri, except the laceration of hymen, there were no other signs of sexual intercourse. For the Court question, she has answered that if the test is conducted after more than 24 hours of the incident, generally the result of the test would be negative.
18. The testimony of Dr. Ashok Kumar (PW-9), who is a private practitioner, shows that when the child was brought to his clinic by her mother, he noticed the bleeding from the vaginal part of the child and therefore he told the mother of Umashri to wait till the arrival of Dr. Lalithamma for examining the child. To discredit the testimony of PW-9, nothing has been elicited in the cross-examination. Hence the testimony of PW-9 Dr. Ashok Kumar noticing the injury and bleeding, remained uncontroverted.
It is in the evidence of PW-11, PSI Shankar, that after registering the case in Crime No. 5 of 1990 under Section 376 IPC on the complaint of PW-1, he visited the spot on the same day, recorded the statement of Dr. Ashok Kumar (PW-9) and his wife Dr. Lalithamma (PW-10), proves the fact of PW-6 Nirmala taking her daughter Umashri to the clinic of PW-9 for examination and he noticing the bleeding.
19. Now, coming to the evidence of PW-10 (Dr. Lalithamma), in unambiguous terms she has deposed that when she came to the clinic at 7 pm, the girl by name Umashri and her mother were waiting and the mother of Umashri informed that Umashri was having vaginal bleeding; that on examination of the child, she noticed that the underwear was stained with blood; that on seeing this, she made enquiry with her mother; and that though she treated the child initially, she later expressed doubt about the cause of bleeding and suspected to be a medico-legal case. It is in the evidence of PW-10 that the bleeding could be either due to some foreign body like small stick or it may be due to rape. The suggestion in the cross-examination of PW-10 to the effect that Umashri and her mother did not come to her clinic and that she did not find any bleeding from the vaginal part of Umashri, has been specifically denied by this witness.
On careful scrutiny of the testimony of PW-10, the fact remains there was bleeding from the vaginal part of Umashri and her underwear was found stained with blood. Therefore, it makes clear that when the child was taken to the clinic of PWs-9 and 10, there was bleeding from her vaginal part and her underwear was stained with blood. Hence, in so far as PW-6 taking the child to the clinic of PWs 9 and 10 and PW-10 Dr. Lalithamma treating the child and PW-10 opined that it is a medico-legal case and directing PW-6 to approach the police as she opined that the injury may be due to rape, is corroborated by their evidence, which is credible and acceptable.
20. The evidence of Dr. Bharathi (PW-4), who examined the victim after 24 hours of the incident in question, clearly establishes the fact that she found laceration of hymen at 2 and 5 O' Clock position, margins were reddish, vagina admits tip of little finger and it was painful. Therefore, it is improbable that the child coming in contact with any stick. It is further in the evidence of PW-4 that hymen of the child was lacerated in the 2 and 5 O' clock position and margins were reddish. This shows that penetration has taken place. Unless penetration takes place, margin would not have been reddish. It is also in the evidence of PW-4 that the laceration is as a result of intercourse about 24 to 26 hours prior to her examination of the victim.
In the evidence of PWs-1 and 6, it has come that they heard the cry of Umashri at about 11 am while the child has gone towards the flour mill of the accused for playing. It is natural that the time gap between the examination of the child by PW-4 and the incident in question is more than 24 hours. Therefore, the question of further bleeding from the vaginal area of the child has to be ruled out. The cross-examination of PW-4 reveals the fact that in case of sexual intercourse, there would be ejection and presence of semen would be commonly found near the vagina and other parts. In the present case, when the child was examined, PW-4 did not find spermatozoa and gonococci or presence of semen. It may be due to treatment by PW-10 Dr. Lalithamma or due to cleaning of private part of the child. Therefore, absence of semen, spermatozoa and gonococci does not lead to a conclusion that no sexual intercourse had taken place.
Even for the Court question. Dr. Bharathi (PW-4) has clearly replied that if the test is conducted after 24 hours of the incident, the result would be negative. The evidence of PW-4 also shows that the clothes of the child were found changed. That means, the clothes that were worn by the child at the time of the incident were changed by the time PW-4 examined her. Therefore, it can be held that as the clothes of the victim were washed, they were not found with stains of blood or any other symptoms of stains on account of rape that has taken place on the child. The evidence of PW-4 Dr. Bharathi fully corroborates the testimony of PW-10 Dr. Lalithamma. When the child was examined by PW-10, she noticed bleeding from the vaginal area of the child. When PW-4 Dr. Bharathi examined the child on the next day, she found that the hymen of the child was lacerated and it was due to sexual intercourse. Therefore, it is clear that the child Umashri has become a victim of rape due to the sexual intercourse.
21. Now, the question that has to be carefully examined is whether the prosecution has established the guilt of the accused, from the evidence let in either by direct or indirect evidence. It is seen from the evidence of PW-11 that on 10-1-1990 he arrested the accused and sent him for medical examination and seized the lungi and the underwear of the accused under Mahazar Ex-P4 and the accused was subjected to medical examination. The evidence of PW-5 -- Dr. Sudheer Kamatiker -- shows that when he examined the accused, he did not find any external injuries over the penis and prepuce of accused and also no stains of blood or semen. He further deposed that from the above, no opinion could be formed about the committal of rape by the accused. However, his evidence makes clear that when an adult man in the age group of 20 to 25 years commits rape or attempts to commit rape on a small girl aged about 5 years, there may or may not be injuries on the penis of the said person. He denied the suggestion that the opinion expressed by him in the examination-in-chief are not correct opinions and they are not based on any authorities. Thus, from the evidence of PW-5, it also make clear that when a well built person aged about 25 years involves in an act of sexual intercourse with a child, there may or may not be injuries on his penis.
At this stage, it is relevant to take note of the report submitted by the Forensic Science Laboratory. It is stated that presence of semen was not detected on MOs 1 to 4 i.e. the clothes of the child and the accused. It is quite natural, as has come in the evidence of PW-6, that the clothes of the child were washed before it was handed over to the police, the possibility of noticing any semen stains on the clothes does not arise. So also, it is not possible to ascertain anything from the evidence as to whether MOs 3 and 4 -- clothes of the accused -- were the very same clothes which the accused was wearing at the time of commission of offence. Therefore, non-presence of stains of semen in the clothes is not fatal to the case of prosecution.
22. The testimony of PW-1 is so consistent and clear that while he was in the house, he heard the cry of Umashri from the side of flour mill of the accused and asked his aunt PW-6 to go and see what is the matter. He further deposed that PW-6 accordingly went towards the flour mill of the accused and at that time Umashri was crying and weeping and there was bleeding from her vaginal part. It is also in the evidence of PW 2 (sic) that he immediately went to the flour mill of the accused and by then the accused ran away from the flour mill and no other person was present in the flour mill. The complaint of PW-1, which was lodged on the next day of the incident i.e. on 10-1-1990, goes to show that when he was in the house, he heard the cry of the child from the side of the flour mill and he informed his aunt PW-6, PW-6 rushed out of the house.
The complaint further reveals that; "When PW-6 went to the flour mill of the accused, she found Syed Pasha (accused), by closing the door of the flour mill and by taking Umashri on his lap, was doing forcible sexual intercourse, and PW-6 by opening the door brought the child and at that time there was bleeding from the private part of the child."
Though the said portion of the complaint is not found in the evidence of PW-1, the fact remains that when the child was coming from the side of the flour mill of the accused, there was bleeding from the private part of the child, her underwear was stained with blood, and the child was taken to the clinic of PW-9 and it is thereafter on the next day, PW-1 went to the police station and gave oral complaint, which was recorded as per Ex-P1. What is not stated before the Court, to which the defence put stress, is:
(Vernacular matter omitted):
This portion is not found in the prosecution evidence. Though the said portion is not found in the evidence before the Court, it is consistent in the evidence of prosecution witnesses that when the child was coming from the side of the flour mill of the accused, there was bleeding from her private part and her underwear had come down and it is full of blood stains. It is thereafter, the child was taken to the clinic of PW-10 Dr. Lalithamma and as it was a medico-legal case, PW-6 was advised to lodge a police complaint and accordingly Ex-P1 complaint was lodged.
There are certain omissions and contradictions elicited from the evidence of PW-1. It is pertinent to note that PW-1 was examined on 14-7-1998 and cross-examined on 23-7-1998. At para-11 of the evidence, PW-1 has stated that he gave evidence as instructed by the police. This cannot be accepted, as the other material facts such as examination of the child by PWs-9 and 10 and PW-4 Bharathi, presence of blood from the private part of the child, laceration of hymen etc., show that the defence has made an attempt to win over the material witnesses and elicited the said contradiction. Such a circumstantial evidence on record has to be carefully considered.
It is in the evidence of PW-6 Nirmala that about nine years back on one day at 11 a.m., while she was in the house, she heard the cry and weeping of Umashri and on enquiry she found Umashri coming from the side of flour mill of the accused, immediately she went to pacify Umashri and then she found bleeding from the private part of Umashri, and when she asked Umashri what had happened, she just stated it was 'Pasha'. It is also in the evidence of PW-6 that the frock and underwear of Umashri were stained with blood and therefore they were washed. It is pertinent to note that in the cross-examination of PW-6, it is elicited that the accused used to take Umashri to his arms and play with her, when she was aged about four years. This itself shows that the child was in the habit of going towards the flour mill of the accused and it points to the guilt of the accused regarding the commission of offence. It is no doubt true that the child naming 'Pasha', is not admissible in evidence under Section 60 of the Evidence Act. But the Court, while appreciating the evidence has to take note of the totality of the circumstances and to verify whether it points to the guilt of the accused.
The evidence on record is clear that the flour mill of the accused is situated by the side of the house of victim and the child victim was in the habit of going near the flour mill to play. These acts are not in dispute. When the evidence of PWs-1 and 6 clearly goes to show that they heard the cry of Umashri from the side of the flour mill of the accused, and noticing the child coming from the side of the flour mill with bleeding from her vaginal part and clothes were stained with blood, the said facts and circumstances cannot be brushed aside lightly.
23. The next contention of the learned counsel for the accused is that non-examination of the victim is fatal to the prosecution case. It is to be borne in mind that the evidence adduced by the prosecution clearly shows that at the time of the incident, the child was aged about 3 to 6 years. Hence, the age of the child can safely be taken as 4 to 5 years. The Court has to take into consideration the mental capacity of the child to recollect what had happened when she was aged about 4 or 5 years and whether she could (be) able to identify the person who committed the heinous crime on her or is the child in a position to say about the sexual act committed on her, when the child is not aware of such acts, that too when she was in the age group of 13 to 14 years at the time of recording of evidence before the Court below. If Umashri were to have put in the witness box at that stage, it may not be possible for her to recollect what had taken place when she was aged 4 or 5 years. Therefore, the non-examination of the victim does not go to the root of the prosecution case.
24. Section 375 IPC reads thus :
375. A man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :
First - Against her will Secondly - Without her consent Thirdly - With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt;
Fourthly - With her consent, when the man Knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly - With her consent, when at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly - With or without her consent, when she is under sixteen years of age.
Explanation : Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception : Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
(Emphasis is supplied) The two essential requirements of Section 375 are : (i) sexual intercourse by a man with a woman; and (ii) such sexual intercourse must be under any of the six clauses mentioned in Section 375 IPC.
In the present case, the child of the age of 4 to 5 years was subjected to rape. It comes within Clause-6 of Section 375 IPC. It is also clear from the explanation to 'sexual intercourse', merely penetration is sufficient. It is no doubt true that in so far as PW-6 witnessing the accused committing rape by taking the child on his lap was not stated in the examination-in-chief. When the prosecution treated her as hostile and cross-examined, PW-6 has categorically admitted that on 9-1-1990 at about 11 a.m. PW-1 Venkatesh informed her that her daughter Umashri was crying near the flour mill of the accused and asked to go and see what was the matter. This portion of the evidence is fully corroborated by PW-1. In so far as the second portion of the evidence is concerned, to the effect that immediately she went to the flour mill of the accused and saw the accused committing rape on Umashri by making Umashri to sit on his lap, after pushing her underwear down and that Umashri was weeping and crying. This is stated by PW-6 when the prosecution cross examined her by treating hostile.
Judicial pronouncements of the Apex Court and various other High Courts, in so far as appreciating the evidence of hostile witnesses is concerned, laid down that when a witness is declared hostile, his /her evidence cannot be relied on. It is also laid down that when once a prosecution witness is declared hostile, his version cannot be treated as the version of prosecution. If any part of the evidence of the hostile witness is found true, the Court can rely on such part of the evidence.
The testimony of PWs-1 and 6 is so consistent that they heard the cry of Umashri from the side of the flour mill of the accused and immediately PW-1 told PW-6 to go and see what had happened, PW-6 going out she found bleeding from the vagina of Umashri and her underwear was pulled down. This piece of evidence is truthful and reliable, though the same has not been stated in the examination-in-chief, it has come in the cross-examination done by the prosecution, which has credence and also testifies and corroborates the evidence of PW-1. It is thereafter, the child was taken to the clinic of PW-9 Dr. Ashok Kumar, treated by his wife Dr. Lalithamma (PW-10). PW-10, on noticing the bleeding on the vaginal part of Umashri and blood stains on the clothes, suspected it to be a medico-legal case and asked PW-6 to go to police station. It is thereafter, PW-1 on the next day morning went to the police station and lodged the complaint, directly point to the guilt of the accused. Mere non-presence of semen stains, spermatozoa and gonococci itself is not a ground to reject the testimony of prosecution witnesses, including the evidence of PWs-1 and 6 and the medical witnesses.
25. In the case of Nagam Gangadhar v. State (1998 Cri LJ 2220), while considering a similar situation, where a child of 4 years was raped, the Supreme Court, in para 10 of its judgment, observed thus :
"It is then contended that PW-3 is a child witness and no importance can be attached to that evidence. It is true that the evidence of PW-3 cannot be given the same weight as a grown up victim in a case of rape, the reason being that she is aged four years at the time of occurrence. However, she appears to have communicated to her parents that the revision petitioner has committed an act due to which she was getting pain in her private part. PW-1 as well as PW-2 have sworn to the fact that PW-3 disclosed the said act, even if the testimony of PW-3 is to be ignored, the circumstances set out supra are, in my view, sufficient to bring home the guilt of the revision-petitioner."
In the decision in supra, the victim-child was examined, but in the present case, the victim has not been examined. Nevertheless, the child (Umashri) informing her mother as to who did the act is held to be admissible, which points to the guilt of the accused.
Section 60 of the Evidence Act stipulates that the oral evidence must be direct, that is to say, the fact to be proved could be seen, heard, touched, tasted and/or smelt. The testimony should be one of the said it, heard it, touched it, tasted it or smelt it. In the case on hand, the child telling her mother, when enquired 'Pasha' is a circumstance which has to be taken into account in considering the overall testimony of other prosecution witnesses, including the investigating officer, who recorded the statements of witnesses at the earliest. It is to be noted that Section 60 of the Evidence Act does not preclude from considering the circumstantial evidence of things that could be seen, heard or felt. Even taking into its extreme, elimination of mentioning the name of accused by the child, the other circumstances point to the guilt of the accused. It is elicited in the cross-examination of PW-6 that the accused, used to take the child to his arms and that he was playing with her. This itself shows that there was acquaintance with the child by the accused, who used to play with her.
26. It is the settled principle that where a rape has been committed on a child of tender age, there is no rule of law requiring corroboration from an independent source of evidence of the child as to the identity of the accused. The examination of the child or otherwise does not make any difference, when the fact is taken note of that the child was just aged about 4 or 5 years at the time of committing the crime and could not have expected to examine the child so as to recollect the memory of the worst incident took place in her life. When it involves dignity and honour of the child and her family, it cannot be expected that a child of such a tender age to step into the witness box and depose the facts.
In the case of Manga v. State of Haryana, , the victim of rape was a deaf and dumb girl of 13 years old and she was not examined in the said case. In the given circumstances, it is held by the Supreme Court that any infirmity occasioned by her non-examination would be cured when there was an eye-witness to the act of rape and the Courts believed his evidence, no further corroboration would be necessary. Applying the same principle to the facts of this case, by taking into consideration the admissible portion in the cross-examination by the prosecution from the evidence of PW-6, it directly points to the guilt of the accused, who committed the act of rape on a child aged about 4 to 5 years. It is relevant to mention and also becomes clear that, if the accused were to take the child on his lap and by removing her underwear if he pushes his penis to the vagina of the child, naturally it resulted in laceration of hymen and surrounding area would become reddish. Under such circumstances, the child sustaining injury on any other parts of her body does not arise at all.
In the case of The State v. Bameshwar, (Cr L J 502) (sic), the accused was acquitted of the charge for the offence under Section 376, IPC, on the ground that there was no corroborative evidence. The acquittal came to be questioned by the State. While reversing the acquittal, and convicting the accused, the Supreme Court observed thus :
"Even if the victim of the rape is a child of tender age, her statement should not be received and accepted as true without any corroboration. What is the nature of this corroboration cannot possibly be stated as it will always depend upon the facts of each case. The statement of the mother of the child victim consisting of what had been narrated to her by her daughter shortly after the incident amounts to corroboration. What weight should be attached to the evidence is entirely a different matter. It may be valuable corroboration and on the other hand, the evidence may be worth very little."
The above principle makes it clear that the statement made by the victim's mother can be taken as corroborative circumstance. Hence, even the evidence led by the prosecution treating PW-6 as hostile were to be eliminated and if the other portion of the evidence is taken into consideration, the child naming 'Pasha' lends support to the case of prosecution, which points to the guilt of the accused. From the above, what emerges is grain in the evidence can be separated from chaff, in the light of other evidence i.e. medical evidence and the evidence of PWs-1 and 6. No doubt, it is true that the witnesses to the 'mahahzar' have turned hostile, the same is not of any importance.
In the decision in State of Chhattisgarh v. Derha, (2004 AIR SCW 2486) : (AIR 2004 SC 2636 : 2004 Cri LJ 2109), the Supreme Court, in paras 6 and 7, has held thus :
"6. Having heard learned counsel for the parties and perused the records, we are satisfied that the High Court has erred in corning to the conclusion that the accused was not guilty of the offence charged. We first notice from the evidence of PW-3 the doctor that the injuries suffered by PW-2 could not have been self-inflicted. There was blood on her private part, the hymen was torn and medical side of the labia minora was inflamed. This was even after 4 days of the incident. The doctor in specific terms had stated that the victim is not habituated to sexual intercourse. The mere fact that to a suggestion made in the cross-examination that such injuries could be suffered by the victim by falling on a hard and blunt substance, by itself, in our opinion, would not suffice to reject the evidence of PW-2, who had no enmity whatsoever to implicate the respondent-accused. The suggestion which has come in the form of 313 statement merely says that there was some enmity between the parents of the accused and that of the victim. Neither the nature of enmity nor gravity of the same has been stated, therefore, that explanation would be of no assistance to the accused to establish the fact that he has been falsely implicated. The law is well-settled in regard to the evidence of a prosecutrix. It is not well established that if the Court is satisfied from the evidence of the victim a conviction can be solely based on such evidence without looking for further corroboration. Same can be done because prosecutrix is no more treated as an accomplice in the crime. In the instant case, the factum of injury suffered by PW-2 and the opinion of the doctor that such injury could have been caused by sexual intercourse and the victim having not been habituated to earlier sexual intercourse itself goes to show that the injury suffered by the victim was one that could have been caused only by an act of rape as alleged by the prosecution. Even in identification of the accused by the victim, we have no doubt because he was known to the victim.
7. We have noticed the fact that there has been some delay in filing the complaint, which according to us has been explained by PW-1 mother. The fact that their father was out of station on the date of occurrence is not disputed. In such circumstances since it is a minor who has violated the possibility of there being hesitation on the part of mother to lodge a complaint cannot be overruled. Even otherwise the mere factum of delay in filing complaint in regard to an offence of this nature by itself would not be fatal so as to vitiate the prosecution case. The fact that the accused did not suffer any injury on his private part also will not be of much help to him because he was medically examined 4 days after the incident in question. For the reasons stated above, we are satisfied that the High Court was in error in taking a view different from that of the trial Court and acquitting the accused."
In the present case, the defence of the accused is that there was a dispute regarding flow of water between Panchappa (father of PW-1) and the father of the accused. To substantiate the said contention, absolutely there is no evidence on record. That apart, for a small matter such as dispute over flow of water, it is humanly impossibly to accept that a false case has been foisted against the accused that too for the offence like rape on a child aged 5 years, in order to take vengeance. When the medical evidence clearly establishes the fact of sexual intercourse on the child, the surrounding circumstances directly point to the guilt of the accused and though the child-victim has not been examined. I am of the firm view that it does not go to the root of the case of the prosecution.
27. The last submission of the learned counsel for the accused is that non-examination of the investigating officer is fatal to the prosecution case, as there was no opportunity for the defence to get marked the omissions and contradictions through the investigating officer. Insofar as this submission is concerned, the evidence of PSI (Shankar) -- PW-11 -- clearly establishes the fact. It is he who registered the case, conducted the investigation, recorded the statements of witnesses at the earliest on 10-11990. When the defence has not put any contradictions omissions to PW-11, the question of putting any such suggestions to the person who filed the charge-sheet does not go to the root of the case, since the investigating officer has just verified the investigation and filed the charge-sheet. Hence, I hold that non-examination of the investigating officer is not fatal to the prosecution case, so as to extend the benefit of doubt to the accused.
28. The testimony of PWs-1 and 6 is credible, corroborative and reliable. The false explanation of the accused and his conduct in not present in the flour mill immediately after the incident, are the circumstances proving the fact of rape, which is proved by the medical evidence. The lust and passion for sex is nothing but a sexual assault by the accused on the victim. All this directly points to the guilt of the accused.
29. For the foregoing reasons, I do not find any merit in this appeal so as to interfere with the judgment of conviction and sentence passed by the trial Court. Accordingly, this appeal fails and the same is dismissed. The bail bonds of the accused stand cancelled. The trial Court is directed to take the accused into custody to undergo the remaining portion of the sentence. The accused is entitled for the benefit of Section 428 of IPC.
30. This Court places its appreciation on record for the assistance rendered by Sri S.J. Chouta, learned counsel for the accused, and Sri S.G. Rajendra Reddy, learned HCGP, for the disposal of this appeal.