Gujarat High Court
Mohammad Zuber Noormohmad Changwadia vs State Of Gujarat on 8 February, 1999
Equivalent citations: (2000)1GLR396.
Author: A.M. Kapadia
Bench: A.M. Kapadia
JUDGMENT K.R. Vyas, J.
1. The appellant, who is a maulvi teaching Quran to the pupil, was charged for the offence punishable under Section 376 of the Indian Penal Code for having committed rape on a nine-year old girl named Sidiqua Mirmohmad. At the end of the trial, the learned Additional Sessions Judge, Banaskantha at Palanpur, vide his judgment and order dated 7-10-1995 in Sessions Case No. 123 of 1993 convicted him for the said offence and sentenced him to undergo R.I. for ten years and to pay a fine of Rs. 10,000/- in default to undergo further R.I. for three months. The appellant has challenged the said judgment and order of conviction and sentence.
2. While admitting the appeal by a Division Bench of this Court on 23-11-1995, not only the bail was refused to the appellant but a notice for enhancement of sentence was also issued against him.
3. The prosecutrix Sidiqua Mirmohmad, in her complaint, Ex. 63, taken down by P.S.I. Chhatrasinh Jadav (PW 10, Ex. 77), has stated that she is residing with her father and studying in IVth standard. On 10-7-1995 at about 3-00 p.m. she had gone, to Madresa situated in Jampura Mumanvas mosque street where the appellant was working as a teacher. The appellant was all alone and no other students were there. The appellant took her to a room, removed her Ijar (trousers) and after laying her down committed illicit act with her widi the result blood oozed out from her private part. She, after putting on Ijar went to her house and informed her mother Rehmatben (PW 8, Ex. 72) who took her to the hospital. In the hospital, her father Mirmohmad (PW 6, Ex. 68) came and he was also informed about the incident. P.S.I. Jadav of Palanpur City Police Station, who took down the complaint of the prosecutrix in the Civil Hospital, Palanpur at about 7-30 p.m., sent the same to P.S.O. Shambhupuri Maganpuri (PW 9, Ex. 73) of Palanpur City Police Station. At about 8-55 p.m., P.S.O. Shambhupuri registered the offence at Cr. No. 160 of 1995. The investigation was entrusted to Dahyabhai D. Makawana (PW 13, Ex. 81), P.S.I, of Simlagate Police Chowky at about 8-30 p.m. P.S.I. Makawana immediately went to the Civil Hospital and prepared a Panchnama, Ex. 45, of the physical condition of the prosecutrix, seized her clothes having blood stains and sent the same to the Forensic Science Laboratory. The Investigating Officer also recorded the statements of the witnesses.
4. It appears that at about 7-30 p.m. on the same day, the appellant also filed a complaint against the father as well as other relatives of the prosecutrix for the alleged offences punishable under Sections 322, 324, 504 & 506(2) read with Section 114 of the I.P.C. As the appellant received incised injury on his palm, he was also admitted in the Civil Hospital. P.S.I. Makawana also prepared a Panchnama of the physical condition of the appellant and seized his underwear having blood stains and also sent the same to the Forensic Science Laboratory.
5. After completion of the investigation and, on the basis of the material collected against the appellant, since the Investigating Officer found a prima facie case against the appellant, he submitted a charge-sheet. Thereafter, charge was framed by the learned Additional Sessions Judge. The charge Ex. 1 was read over to the appellant. The appellant while denying the same claimed to be tried. In the further statements recorded under Section 313 of the Cr.P.C., the appellant has come out with a total denial of the prosecution case.
6. The learned Additional Sessions Judge, Banaskantha at Palanpur, after considering and appreciating the evidence on record, was of the view that the prosecution has successfully established the guilt against the appellant for having committed offence punishable under Section 376 I.P.C. and, therefore, he accordingly passed the order of conviction and sentence against the appellant as stated hereinabove.
7. Mr. K.B. Anandjiwala, learned Advocate, appearing for the appellant, took us through the evidence of the prosecution witnesses and also invited our attention to the evidence of the expert Dr. Jhala (DW 1, Ex. 121) and defence witness Gajibhai Pirmohmad (Ex. 93), a Photographer examined by the defence. Mr. Anandjiwala criticised the evidence of the prosecutrix as well as the other prosecution witnesses by, inter alia, contending that in view of the contradictions taken out and improvements made in their evidence, their evidence is not believable. Mr. Anandjiwala was quite severe on the evidence of the prosecutrix when he contended that there are number of improvements in her evidence regarding the time as to when the alleged incident took place. Her version before the Court, in the submission of the learned Advocate for the appellant, is a tutored one. Even though she had given the case history to Dr. Jadeja at 6-30 p.m., when she was taken to the hospital, while stating that she received injury by Khilasari (nail). Mr. Anandjiwala has also challenged the genuineness of the F.I.R. recorded by P.S.I. Jadav by contending that the F.I.R. was recorded on a piece of paper without mentioning any timings therein. In the submission of Mr. Anandjiwala, it is absolutely doubtful whether the F.I.R. was recorded as per the say of the prosecutrix in view of the evidence of the prosecutrix herself, wherein she has given no details about her giving signature on the F.I.R. Mr. Anandjiwala also submitted that since P.S.I. Jadav was instructed by P.I. Mr. Thakor to go to the Civil Hospital for the purpose of recording the F.I.R. and since Mr. Thakor is not examined by the prosecution, it is not clear as to how the police got the information about the commission of the rape. Mr. Anandjiwala has challenged the evidence of the other prosecution witnesses by contending that since the prosecution witnesses consisted of the relatives, and their evidence is full of improvements in the form of statements, contradictions and omissions, their evidence is absolutely doubtful and, therefore, requires to be discarded. Finally, Mr. Anandjiwala submitted that in view of the evidence of Dr. Jhala (Ex. 121) examined by the defence, wherein he has in no uncertain terms opined that no rape was committed on the prosecutrix, the entire case against the appellant falls on the ground as being a concocted one and the appeal is, therefore, required to be allowed.
8. Mr. M.A. Bukhari, learned Additional Public Prosecutor, took us through the reasoning of the learned Additional Sessions Judge and submitted that no interference is called for as the prosecution has established the case against the appellant beyond any manner of doubt.
9. Before we consider the rival submissions, we must bear in mind one important aspect that the prosecutrix was a minor girl. As per the certificate, Ex. 47, issued by K.N. Chokshi Primary School No. 2, Palanpur, which is not seriously challenged by the defence, the date of birth of the prosecutrix is 16-4-1984 and, therefore, the prosecutrix at the time of the incident was about nine years of age. At the time of recording her evidence before the Sessions Court, the prosecutrix was about 11 years of age and therefore, with a view to ascertain that she understands the sanctity of oath, before administering oath, certain questions were put to her by the learned Additional Sessions Judge and after satisfying that she is capable of understanding the questions, she was administered oath and thereafter her evidence was recorded. As far as the incident in question is concerned, she stated that she left her house at about 3-00 p.m. for the purposes of going to the school. She had put on green Kurta and Ijar with red coloured Dupatta. According to her she attended the class for about 15 minutes and thereafter there was recess at 4 O'clock. Other pupils studying with her had gone out of the class and when she was about to go out, the appellant picked up her hand and took her to a room situated above the class-room. According to her as she was not inclined to go up, a slap was given to her by the appellant. In the room, the appellant removed her trousers. The appellant with a view to see that she may not shout, also pressed her mouth and thereafter he removed his own trousers and slept over her. According to her she was lying flat and thereafter the appellant committed illicit act with her for about 15 minutes. She also started getting pains in her private parts. According to her, the room was closed by the appellant before committing the illicit act. After the rape was committed, blood was oozing out from her private part and her kurta as well as trousers were stained with blood. She has also stated that the appellant told her to inform her inmates that she has sustained injury by Khilasari (nail). When she went to her house, she informed her mother that the appellant has committed illcit act with her. Her grand mother as well as her aunt both came. Since there was profused bleeding, her mother took her to the hospital. According to her she has no idea as to how she was taken to the hospital, who came to the hospital and whether the police came to the hospital or not. However, she identified her signature on the complaint. She has also admitted that the complaint was taken in the hospital after getting information from her. She does not remember as to whether her father came to the hospital or not. The police had also recorded her further statement on the next day, i.e., 11-5-1993. In view of the fact that she was not fully conscious when her complaint was recorded, she could not give all the details.
10. It may be stated that in the cross-examination the defence has taken out certain contradictions and omissions. Having gone through all these contradictions and omissions, we are of the view that they are minor and, in any case, do not affect the main version of the prosecution case that the appellant had committed rape on the prosecutrix. We would like to mention the manner in which the prosecutrix was cross-examined by the defence. The prosecutrix although being a minor girl of 11 years of age at the time of recording her evidence in the Court, was cross-examined by the defence for almost three days and was asked all relevant and irrelevant questions. Under such circumstances, it is quite likely that it would not be possible for any witness and more particularly a witness of the age of the prosecutrix to give appropriate answers to the questions of the type put to her. Under the circumstances, if the prosecutrix has contradicted her police version or has come out with certain omissions, we do not find any fault with her. In view of this, when she has stated in her cross-examination that she does not remember as to when her signature was taken on the complaint but she signed the same as the police asked her to sign, there is nothing wrong with her conduct. We should not lose sight of the fact that the prosecutrix was a minor girl of nine years when the heinous crime of rape was committed on her and she came to her house crying with profused bleeding and informed her mother about the incident, it is quite natural that she was not in a free state of mind to give all the details either to her relatives or to the police. There is no reason for us not to believe Her evidence when she has stated that she was almost in an unconscious state of mind. The pains and shock to the prosecutrix were quite apparent and, therefore, considering her age and the mental condition, even if she had not given certain details, in our opinion, the same would not be a ground to discard her evidence. The fact that she was deposing before the Court after a lapse of about two years, there are bound to be some improvements in her version before the Court, especially when she said that she went to the school at 3-00 p.m., attended the class for about 15 minutes and during recess hours at 4-00 p.m. the appellant committed rape on her. Her earlier version was that when she went to the school, there were no students and the accused was all alone. However, due to lapse of time and considering her age, even if this obvious improvement is there in her evidence, in view of the other circumstances on record which directly connect the appellant with the crime, we would not like to give any weightage to these contradictions and improvements in her evidence. Without there being any enmity, the prosecutrix points finger at him as the culprit and that the incident happened in the broad daylight, is one more circumstance that would go against the appellant.
11. Similarly, as far as the evidence of other prosecution witnesses i.e., the relatives of the prosecutrix is concerned, we do find certain contradictions and improvements in their evidence. The prosecution, in order to bring home the guilt of the appellant, has examined Rehmatben (PW 8, Ex. 72) the mother of the prosecutrix; Mirmohmad Rahimbhai (PW 6, Ex. 68) father of the prosecutri; Saukatali Rahimbhai (PW 7, Ex. 70) uncle of the prosecutrix; Kherunnisha Ishaqmohmad (PW 11, Ex. 79) grand mother of the prosecutrix and Farzana Khalik (PW 12, Ex. 80) the aunt of the prosecutrix.
12. Rehmatben (PW 8) in her evidence has stated that her daughter returned home crying at about 4 or 4-30 p.m. from Madresa and saw that she was profusely bleeding from her private part and her clothes were blood-stained. On being inquired, she told her that the appellant has committed illicit act with her. Thereafter, within ten minuters her sister-in-law and mother-in-law also came. She took the prosecutrix in a rickshaw to the hospital. Her sister-in-law and mother-in-law also accompanied them. According to her, her husband came to the Civil Hospital after 30 to 45 minutes. She has stated that the doctor told her that as he is not having proper instruments, the prosecutrix may be taken to some other hospital. Accordingly, they took the prosecutrix to Lai Davakhana. There the doctor informed them that since this being a rape case, the patient is required to be taken to the Civil Hospital and accordingly the prosecutrix was again taken to the Civil Hospital where she was admitted and the police recorded her statement. Now, this witness has been cross-examined at length. In her cross-examination she has changed her version and stated that she had not stated that the doctor informed them that as there are no instruments with him, no treatment can be given. Similarly, she had not given any details about the doctor of Lai Davakhana and the talk between the doctor and her brother-in-law as well as her husband. Merely because she has improved her version by stating that the doctor of the Civil Hospital told that there are no instruments and, therefore, the patient is required to be taken to some other hospital will, in no case, help the defence. In view of the fact that the prosecutrix was shifted from Civil Hospital to the Lal Davakhana and was readmitted in the Civil Hospital on the same night would further go to suggest that the prosecutrix was taken by her parents for treatment to other hospital. Merely because no doctor or nurse of the Lal Davakhana is examined, we cannot discard the evidence of Rehmatben. Since the prosecutrix was profusely bleeding and her condition was deteriorating, only anxiety on the part of her parents was to give her immediate and proper medical treatment in any hospital. In that view of the matter the statement that Dr. Jadeja of the Civil Hospital told that as no instruments were available and therefore, no treatment could be given to the prosecutrix has no significance. However, the fact remains that the prosecutrix was in the first instance discharged from the Civil Hospital as the parents were not happy with the manner in which the treatment was given to their daughter.
13. Mirmohmad (PW 6, Ex. 68) the father of the prosecutrix after giving details about his family in his evidence has given the birth date of the prosecutrix as 16-4-1984. According to him on the day of the incident he had gone to his shop at about 3-30 p.m. At that time his daughter had gone to Madresa. According to him by about 5 or 5-15 p.m. his brother Saukatali came and informed him that the health of Sidiqua is not proper and that she has been removed to the hospital and so he advised the witness to go to the hospital. Accordingly, he went by scooter to the hospital. On reaching the hospital, he found the prosecutrix profusely bleeding and her clothes were stained with blood. On being inquired from his wife, she informed him about the illicit act committed by the appellant with their daughter. He also inquired from the doctor as to whether it was a case of accident or a case of rape to which the doctor told that it was a case of rape. Hearing this, he got excited and rushed to the mosque at about 5-30 p.m. and shouted for the appellant to come out of the mosque. As the appellant did not come out, he had gone inside and tried to drag him out as a result of which a scuffle took place between them. The appellant told him that he has not done anything but she sustained the injury by iron nail. The witness wanted to know where the iron nail was? However, the same was not shown to him. The witness was removed from the mosque by other persons. He thereafter went to the Civil Hospital. There he saw the prosecutrix lying in a semi-conscious condition. His wife informed him that nobody is giving treatment to their daughter and the blood was still oozing out. He accordingly went to Dr. Jadeja and inquired from him as to why the treatment is not given to which the doctor informed that operation will have to be performed on her. He requested the doctor to perform operation but the doctor told him that he is not having facility for operation. He thereafter, again questioned die doctor and told him that in this manner the girl would die to which the doctor told him to take her to some other hospital. He accordingly decided to remove the prosecutrix from the Civil Hospital. The doctor, thereafter, asked him to sign the case papers. The witness hurriedly signed the papers. The witness has specifically stated that except that he put his signature on the case papers, he does not remember as to what was written therein. The witness has specifically denied the writing on the case papers and also denied the same to be in his hand writing. Thereafter, the prosecutrix was taken to the Lal Davakhana where he was informed by the nurse that this was a rape case and being a police case, no treatment can be given in the said hospital. Accordingly, the prosecutrix was again brought to the Civil Hospital at about 7-30 p.m. The police met him at the gate of the Civil Hospital and recorded the complaint of the prosecutrix.
14. This witness is also cross-examined in extenso. It is true that there are certain contradictions in his evidence regarding conversation with Dr. Jadeja for removing the prosecutrix to Civil Hospital and his becoming desperate on hearing from his wife about the illicit act committed by the appellant with his daughter. However, these contradictions are not material and major contradictions, which would adversely affect the prosecution case. By applying the same reasoning given while appreciating the evidence of Rehmatben, we can only say that the parents were not happy with the treatment given by Dr. Jadeja in the Civil Hospital and therefore the prosecutrix was shifted to other hospital. However, the fact that on being informed that this was a rape case and therefore, a police case, and that she is required to be admitted in the Civil Hospital, the prosecutrix was re-admitted in the Civil Hospital, would certainly support the say of the complainant. One thing is required to be noted reading the evidence of this witness that against the medical advice, with a view to save the life of his daughter, he had removed his daughter from Civil Hospital to the Lai Davakhana. Since he has admitted the signature without admitting the contents of the case papers prepared by Dr. Jadeja, we would rather like to believe the version of this witness that as there was no proper treatment given in the Civil Hospital, the prosecutrix was removed from the Civil Hospital. We would like to mention at this stage that the writing on case papers, Ex. 22, that Mirmohmad is removing his daughter Sidiqua against the medical advice, does not appear to be correct in view of the conduct of Dr. Jadeja, which we will discuss while considering his evidence. It is also clear from reading the evidence of Mirmohmad that from Civil Hospital he had gone to the mosque, where he had a quarrel with the appellant and the appellant was beaten by Mirmohmad. In view of the complaint Ex. 74 filed by the appellant against this witness and his relatives wherein the appellant has given the timings of the incident as 15-55 hours, it is obvious and natural on the part of this witness to get excited and to rush to the appellant no sooner he was informed about the commission of the illicit act by the appellant with his daughter. Therefore, merely because he had not stated about the fact of his getting excited on hearing about the incident and rushing to the mosque and assaulting the appellant, in our opinion, would be more natural human conduct and more particularly no father would be able to keep himself cool and calm on hearing about the commission of such a heinous crime with his innocent minor daughter.
15. The other relatives who are examined by the prosecution have more or less supported the prosecution case and therefore, it is not necessary for us to discuss their evidence. Their evidence is also challenged on the same ground that contradictions and improvements have been made in their evidence. In Matadin and Ors. v. State of U.P. , the Supreme Court while considering the statements recorded by the police under Section 162 has observed that the statement given by the witnesses before the police are meant to be brief statements and could not take the place of evidence in the Court. Where the omissions are vital, they merit consideration but mere small omission will not justify finding by a Court that the witnesses concerned are self-contained liars. Considering the evidence of the witnesses, even though they are relatives of the prosecutrix, we are of the opinion that they have remained consistent as far as the material aspect is concerned. In our opinion, their evidence is natural and trustworthy and connects the appellant with the commission of the crime.
16. Surprisingly, however, the conduct of Dr. Jadeja, Medical Officer, Civil Hospital, Palanpur, reveals that instead of remaining neutral, for the reasons best known to him, he handled the case of the prosecutrix in a very casual manner and instead of helping the cause of the prosecutrix, he dragged the female members, i.e., the prosecutrix, her mother, aunt and grand mother from pillar to post by not inquiring from them about the incident and by not giving them proper treatment. Had Mr. Jadeja made proper inquiry from the female members who had come with a minor girl with profused bleeding from her private part, proper treatment could have been given in the Civil Hospital itself without shifting them to Lai Davakhana and the police could as well have been informed immediately. Dr. Jadeja (PW 1, Ex. 21) has stated that on 10-7-1993 the relatives of the prosecutrix brought her to the Civil Hospital at about 6-30 p.m. and O.P.D. case was taken out which was written in his hand writing. He has produced the case papers at Ex. 22. He has stated that the patient was brought without Police Yadi and he found that the blood was oozing out from the private part of the prosecutrix. He had removed the blood clot from the vagina of the prosecutrix. She had about 2x cm x muscle deep C.L.W. on extending from vesico regional junction on the anterior side to the left side forchette. No injuries were found on the labia majora and minora, i.e., on the outer part of the vagina. No visible injury was found on the outer part of the body. The hymen was ruptured recently. According to him he wanted to admit the patient in the hospital, however, as the relatives were not inclined, after obtaining the signature of Mirmohmad on the case papers, Ex. 22, the prosecutrix was removed from the hospital. According to him, after the patient was examined, he did not realise that it was a rape case. He further stated that when the patient was brought second time to the hospital, his relatives had given the history about the appellant having committed rape on the prosecutrix. He had not inquired about the Police Yadi when the patient was brought to him as the relatives came out with the case of accident due to Khilasari (nail). He has admitted that he had informed the police about the commission of rape and thereafter the police also asked him to submit report whether rape was or was not committed on the person of the prosecutrix. He has also stated that the patient was again examined at 10-45 a.m. on 11-7-1993. He has also stated that he had not preserved the cotton swabs used for cleaning the blood in private part of the prosecutrix when the treatment was given to her and when she was brought for the first time on 10-7-1993 at 6-30 p.m. According to him when the prosecutrix was examined pursuant to the Police Yadi on the next day, he took out the samples of saliva, blood and the vaginal swab of the private part for the purpose of sending the same to the Forensic Science Laboratory. He also noticed that the breast of the prosecutrix was not fully developed. Similarly, the outer portion of the vagina and its parts were also not fully developed. On the basis of the X-ray taken for the purposes of ascertaining her age, he opined that the girl was aged between 10 to 14 years. He also opined that the injury on the vagina was possible by hard blunt substance. He also observed that no stains of semen were found on the private part of the prosecutrix. He accordingly gave certificate, Ex. 28. However, he did not send his opinion as per Ex. 28 to the police immediately. He has admitted that he again received a letter, Ex. 30, from the police on 15-7-1993 disagreeing with his views and seeking further clarification about the alleged rape. He clarified, Ex. 28, by stating that rape is possible in view of the internal injury of the vagina. He proved that report by admitting his signature, which was given pucca Ex. 31. He has also admitted that on the same day, i.e., 10-7-1993 at about 7-45 p.m. the appellant was brought to the hospital complaining injury by razor of 2 cm x 5 cm incised wound in right hand palm and was admitted as an indoor patient in the Civil Hospital. He had also examined the physical condition of the appellant and he found the appellant well built and well nourished. There was no stigma on his penis and there were no marks of external injury on the body and private part. He also recovered the samples of saliva, blood and hair of the appellant. It appears that since this doctor has given contradictory version and tried to give a contrary evidence against the prosecution with regard to the case papers, Ex. 22, with the permission of the Court he was permitted to be cross-examined by the prosecution. He has admitted that he himself had written Ex. 22; that the statement was given by the patient that, "(Gujarati version Khilo Vagi Gayel Chhe"). He has also admitted that all those details were mentioned in Ex. 22 when the patient was re-admitted at 8-45 p.m. He has admitted that there are all possibility of having injury on the back side if the minor girl is raped with force on the hard surface. He has also admitted that if a major commits rape on a minor girl, injury can be noticed on the entire vaginal and canal and in that case there is possibility of injury on all parts of vagina and canal. He has also admitted that the size of vagina of a girl aged 10 to 12 years would be 3 cm and that if intercourse is done, there are all chances of minor becoming unconscious and in some cases even may die also. He has opined after reading Ex. 29 that in the present case there were all chances of injuries on the internal as well as other parts of the body of the prosecutrix and these injuries could be painful. He has also stated that it is not possible for him to say as to who had given the case history mentioned by him in the case papers, Ex. 22. He does not remember as to whether he in fact asked such a question to the prosecutrix. He has stated that if the prosecutrix had stated so, he could have mentioned the said fact in the case papers. He has also stated that when the prosecutrix was brought at about 6-30 p.m. on 10-7-1993, since nobody had informed that this was a medico-legal case, he had not informed the police. He has admitted that the vagina of a girl aged about 10 years would not be fully developed and that there would be less elasticity. He has admitted that he did not notice any injury on the labia majora or labia minora. He has also admitted that the genital of the appellant was fully developed and in elasted position the size may be of one and half inch to two inches. He has also admitted that when he examined the appellant, there were no injuries on his genital. He has admitted the suggestion of the defence that if an act of intercourse with force is committed on a minor girl, it will cause injury to both the parts of labia majora and minora and will also affect the vaginal tract and the tract will notice bruise abrasion. If the penis goes further, in that event, it will affect the entire structure of the vagina. He has admitted that in the case papers, Ex. 22 and 52, he has not mentioned anything about the semi-conscious condition of as well as the unbearable pains suffered by the prosecutrix.
17. Reading the entire evidence of Dr. Jadeja, it appears to us that instead of helping the cause of the prosecutrix, not only he had not performed his duties as Medical Officer sincerely, but had acted in a very casual manner by not treating the prosecutirx. Even if we believe that there were certain contradictions and improvements in the evidence of Mirmohamad as well as Rehmatben, the parents of the prosecutrix, regarding the lethargic way of treating the prosecutrix, in view of the fact that the prosecutrix was removed from Civil Hospital to Lai Davakhana for the purpose of giving better treatment and ultimately she was brought back at about 8-30 p.m. to the Civil Hospital as it was detacted to be a medico-legal case, as Medical Officer of the Civil Hospital Dr. Jadeja had not remained attentive to the prosecutrix looking to her condition in which she was brought to the hospital by her female relatives. As against that his evidence further shows that in the meantime when the appellant came with minor injuries on his person, he was admitted as an indoor patient and the theory of injury by Khilasari (nail) propounded by the appellant was entered in the case papers, Ex. 22. In view of the admission by this witness, it is clear that the said entry of injury by Khilasari was mentioned in the case papers only after the prosecutrix was re-admitted in the hospital at 8-30 p.m. on the same day and after the appellant was admitted as an indoor patient. This witness has clearly admitted that he is not sure as to who had given the said case history and he also did not remember the names of the relatives who had given the history. This would go to establish that neither the prosecutrix nor anybody had given the said case history to this witness. In other words, the possibility of mentioning the said history by this doctor at the behest of the appellant cannot be ruled out. This conduct on the part of Dr. Jadeja is sufficient for us to hold that instead of helping the cause of the prosecutrix, this doctor had tried to save die skin of the appellant by making note in the case papers that the injury was caused by Khilasari (nail). The fact that he had not informed the police even though he had the information with him when he first examined the prosecutrix at 6-30 p.m. that this was a medico-legal case, would go to suggest that this doctor has, for reasons best known to him, tried to support the defence. Moreover, since this witness had not remained consistent on the question of giving treatment to the prosecutrix, he was required to be cross-examined by the prosecution. It was only when number of irregularities were noticed by the Investigating Officer that this witness was required to change his story by stating that injury would be possible if rape is commited on the prosecutrix. Thus, the conduct of Dr. Jadeja in giving treatment to the prosecutrix and his version before the Court has remained totally doubtful and, therefore, it is not possible for us to accept his version on its face value. The story of injury by nail propounded in the case papers appears to be absurd and unrealistic. No Khilasari (nail) is brought on the record nor its mention is found in the Panchnama of the scene of offence. In absence of the same, it is not possible for us to digest the theory that injury was caused by Khilasari. If we rule out such a theory, in that case, the injury on the person of the prosecutrix was possible by forceful penetration of the penis by the appellant only and the appellant is the only person who is responsible for the same.
18. Curiously enough, the defence has also sought the help of Dr. R.M. Jhala, an eminent Medico-Legal Practitioner who is examined as a defence witness with the permission of the Court. After going through his evidence we are clearly of the view that Dr. Jhala has also, instead of helping the cause of the prosecutrix and to provide proper assistance to the Court, deposed in favour of the appellant and his evidence is contrary to the established principles of medical jurisprudence. In his evidence, Ex. 121, after reading the F.I.R., medical certificate of the prosecutrix, correspondence exchanged between the Medical Officer and the police, medical certificate of the appellant and the F.I.R. of the appellant, the Panchnama of the scene of offencee and the Panchnama of the physical condition of the prosecutrix and the appellant, the reports of the Forensic Science Laboratory and Serologist and the evidence of Dr. Jadeja and further statement of the appellant, he has produced his opinion wherein he has opined that the injury being accidental, caused by nail, was scientifically more logical and convincing. The labia are the first parts to come in contact with any impact and hence even in the cases with intact hymen, labia are invariably involved. Hence, an injury beyond them and that too on one side (left) can only be postulated as accidental injury by a nail. In the opinion of Dr. Jhala, the present case being a case of false accusation and the injury was caused by successful intercourse, the same cannot be justified on scientific ground. Dr. Jhala has been cross-examined by the Special Public Prosecutor. In the first part of his cross-examination, he has tried to assert that whatever opinion he has given is 100% free from any doubt. He has denied that the present case was not (sic.) of rape. When specifically asked about the injury in the inner wall of the vagina when penis of a 30 to 40 years man is inserted in the vagina of a nine-year old girl, he has replied that the injury on both the sides of the wall of the vagina is possible and he has placed reliance on his book Medical Jurisprudence by Jhala and Raju. However, he has to admit that in the said book it is stated that on both the portions of vagnina, injury is possible. Even though he has admitted that he has not stated so in his book that the injury on both the sides is possible, he has stated in his evidence that it is not necessary that on both the portions of inner wall of vagina injury is possible. He has also admitted that his opinion is not supported by any other book, including the book of author Cokes. This witness has admitted in his cross-examination that injury on any part of the vagina, in the rape case, is possible. He has also admitted that in the present case there was an injury in the internal part of the vagina. He has further stated that even though there are less possibility of injury on the labial majora and labial minora, he has asserted that injury on them is a must in a rape case. When confronted with his own book, he has to admit that he had not stated so that injury on labial majora and labial minora is a must in his book. He has also admitted that in the case of a rape where there is no resistance, in that case there is no possibility of injury on penis. Curiously enough, this eminent doctor has denied the suggestion that he is not agreeable that in the case of a hymen being ruptured in the rape case, there will be bleeding. He has also denied the suggestion that if the penis is forcibly entered into the vagina of a girl, there will be injury. When a specific suggestion was made whether hymen would be damaged when there is forcible insertion of penis in the vagina of a girl, he has disagreed with the said suggestion. He has admitted that Dr. Jadeja in his evidence has stated that the hymen of the prosecutrix was ruptured and there was profused bleeding which was in fact by rape. When asked a further question whether it is possible that rupture of hymen is one of the causes of rape, he replied that the same is possible. When asked as to on what basis he is 100% sure that the prosecutrix sustained injuries by a Khilasari (nail) to that he has replied that he is not 100% sure about the same. To clarify this answer, a further question was put to him that when a Khilasari is inserted purposefully and the girl falls on Khilasari by accident, whether there would be any difference in the injury, to that the doctor has said no. Finally, when this doctor was specifically asked to give reasons for his belief that this was not a 100% case of rape, the reasons given for his belief are that it depends on the type of injury sustained by the prosecutrix, that no injuries were found on her labial majora and labial minora and the impossibility of the penis going into the vagina.
19. Reading the evidence of Dr. Jhala, we are convinced beyond any manner of doubt that this doctor has, for the reasons best known to him, out and out supported the defence ignoring the principles of medical science on the injuries in question. He has remained too much assertive of his own version and even contrary to what he has written in his own book. He has crossed all limits of medical propriety by stating that hymen of a minor would not be ruptured in the case of a rape and there would not be any profused bleeding. This is contrary to the evidence on record. The medical certificate which is proved reveals that the hymen of the prosecutrix was ruptured and she was profusely bleeding. Even though this doctor has given opinion in favour of the appellant and when he was confronted with his own book, he has to agree about his authorship. Thus, no reliance can be placed on the evidence of Dr. Jhala. The Supreme Court in the case of State of Himachal Pradesh v. Raghubir Singh reversed the order of acquittal passed by the High Court and has held that the circumstances such as absence of spermatozoa on the vaginal slide and absence of injuries on the male organ is not always fatal to the prosecution case. That was a case wherein rape was committed on a minor girl aged 7-8 years. The Supreme Court, relying on the testimony of the prosecutrix corroborated by the medical evidence and the testimony of other prosecution witnesses existing, opinion of the doctor who examined the prosecutrix finding her hymen ruptured, slight bleeding coming out of the vaginal edges, presence of blood clots and external genitals tender and red and vagina admitting one finger with difficulty which got smeared with blood, the shawl on which she was made to lie while committing the rape, found by the doctor to be having some mud and blood-stains and the doctor opining that the prosecutrix had been subjected to sexual intercourse, as also the doctor who examined the accused finding him potent and capable of sexual intercourse, father of the prosecutrix and other prosecution witnesses deposing to have seen the respondent running from the place of occurrence carrying with him his underwear, held that the trial Court rightly convicted the accused under Section 376 I.P.C. In the present case also, the prosecutrix was minor, her testimony is reliable and trustworthy. As per the medical report, her hymen was ruptured and she was bleeding profusely from the vagina and the doctor in fact found blood clots when he examined her on the next day and that there was no injury on the male organ. Thus, the opinion of Dr. Jhala that there must be an injury on the male organ in the case of a rape is not a ground for us to hold that the appellant is not responsible for his act. In any case, it is not necessary that the evidence of the prosecutrix must be corroborated with the medical evidence. Once the Court finds that the evidence of the prosecutrix is trustworthy and believable, irrespective of the medical evidence, conviction can be based on the accused. We are fortified in our view by the decision of the Supreme Court in the case of Ranjit Hazarika v. State of Assam . It was a case when the prosecutrix was subjected to intercourse in a standing posture indicating absence of any injury on her private parts. Her hymen was not ruptured and there was no injury on the victim's private parts. The doctor opined that no rape was committed. Despite this, the Supreme Court believed the testimony of the prosecutrix by holding that non-rupture of hymen or absence of injury on the victim's private parts does not belie her testimony as she has nowhere stated that she bled her vagina and her statement remained virtually unchallenged in the cross-examination. The Supreme Court rejected the medical evidence by holding that the opinion of the doctor cannot throw out an otherwise cogent and trustworthy evidence of the prosecutrix. Thus, the corroboration of the testimony of the prosecutrix by medical evidence is not essential. Considering the facts of the present case, we are of the opinion that the testimony of the prosecutrix is trustworthy. There is no reason for her to falsely involve the appellant in a serious offence like the one. There is no enmity between the prosecution witnesses and the appellant. The appellant is, therefore, not entitled to take advantage of the versions given by the prosecution witnesses and more particularly the prosecutrix and the so-called contradictions, in our opinion, are too minor considering the age of the prosecutrix and the time factor involved in the case when the prosecution witnesses deposed before the Court after a long lapse of time. Even though the appellant tried to get assistance from Dr. Jadeja and Dr. Jhala to twist the prosecution case in his favour, we are of the view that the said attempt is nothing but to mislead the Court. No importance can, therefore, be given to the evidence of Dr. Jadeja and Dr. Jhala. In fact the trial Court in paragraph 36 of its judgment has criticised the evidence of Dr. Jadeja and even directed to send a copy of the judgment to the State Medical Council for taking necessary action. Therefore, the evidence of the doctors is not trustworthy.
20. In view of the above discussion, we hold that the prosecution has successfully established the guilt of the appellant of having committed offence punishable under Section 376 of the I.P.C. beyond any manner of doubt and, therefore, the trial Court was justified in convicting and sentencing him.
21. At this stage we have permitted Mr. Anandjiwala learned Advocate for the appellant to submit about the sentence. Ahmed Noormohmad Changwadia, the brother of the appellant, has filed an affidavit wherein he has, inter alia, stated that the appellant is having three children. His wife is suffering from Antestianal T.B. and she has developed this disease since 1994. The son of the appellant is suffering from brain disease and he is almost insane. He is also dumb and not able to speak because of the brain disease. He has further stated that the appellant, after the offence, was not getting his salary of Rs. 1,200 per month and, therefore, the father-in-law of the appellant has taken away his daughter (appellant's wife) as well as children to Mumbai and he is looking after them. By stating so he has prayed for mercy.
22. Since this Court has suo motu issued notice for enhancement of sentence, we have also heard Mr. M.A. Bukhari, learned Additional Public Prosecutor for the State. Having heard the learned Advocates appearing for the parties, and considering the affidavit filed by the brother of the appellant, we are of the view that the appellant, who was a maulvi teaching holy Quran and therefore, in a position of a father of the pupil, it was not expected of him to commit such a heinous crime of rape and, therefore, he does not deserve any sympathy. However, considering this matter from another angle that the appellant by this time has already undergone a sentence of about five and half years and considering the remission given in view of the celebration of Golden Jubilee Year of Independence, the appellant is likely to be released on his completion of about seven years of sentence. The prosecutrix for no fault of her has become victim at the hands of the appellant and in view of the stigma attached to her for all time to come, we feel that this is a case where she is required to be adequately compensated. Thus, considering all the aspects of the case, we are of the view that the substantive sentence of imprisonment of ten years imposed by the trial Court is reduced to the one of minimum sentence of seven years, provided the appellant deposits in the trial Court an amount of Rs. 50,000/- by way of compensation to be paid to the prosecutrix within four weeks from today and failing which the substantive sentence imposed by the trial Court of ten years R.I. and a fine of Rs. 10,000/- in default to undergo further R.I. for three months shall stand confirmed.
23. In the result, Criminal Appeal No. 1093 of 1995 is partly allowed. The order of conviction under Section 376 is confirmed. However, the order of sentence of imprisonment of 10 years R.I. and to pay a fine of Rs. 10,000/- in default to undergo further R.I. for three months is reduced to the minimum sentence of 7 years R.I., provided the appellant deposits with the trial Court an amount of Rs. 50,000/- by way of compensation to be paid to the prosecutrix within four weeks from today failing which the substantive sentence imposed by the trial Court of R.I. for ten years and to pay a fine of Rs. 10,000/- in default to undergo further R.I. for three months shall stands maintained.
24. On such amount of Rs. 50,000/- being deposited with the trial Court, the trial Court is directed to invest the same in the nearest post office in National Savings Certificates in the joint names of the prosecutrix Sidiqua Mirmohmad and her guardian father Mirmohmad Rahimbhai and shall hand over the certificates to them.
Suo Motu Misc. Criminal Application No. 4830 of 1995 for enhancement of sentence is dismissed.