Rajasthan High Court - Jaipur
Durgalal vs State Of Rajasthan on 11 May, 2001
Equivalent citations: 2001CRILJ3652, 2002(2)WLC61, 2002(1)WLN429
JUDGMENT Garg, J.
1. The abovenamed accused appellant has preferred this appeal against the judgment and order dated 26.11.1999 passed by the learned Addl. Sessions Judge, Rajsamand in Sessions Case No. 53/98 by which he convicted the accused appellant for the offence under Section 376 1PC and sentenced him to undergo ten years rigorous imprisonment and to pay fine of Rs. 2000/-, in default of payment of fine., to further undergo six months SI.
2. The facts giving rise to this appeal, in short, are as follows:-
On 23.4.1998 at about 2.20 PM. PW1 Kamta, aged about 8 years (hereinafter referred to as the child prosecutrix) alongwith her mother PW3 Radha lodged an oral report Ex.P/1 before PW13 Shyam Sunder. SHO, Police Station Railmagra District Rajsamand slating inter-alia that on 23.4.1998 at about 10,00 AM. child prosecutrix PW1 Kamla went as usual to jungle for the purpose of grazing goats and she was grazing goats in the Bada of Noor Mohd. and she was sitting beneath the tree of Khejri. It was further stated in the report that after about 1/2-1 hour, accused appellant came there for the purpose of washing his hands and mouth and at that time, he was wearing lungi and he was having a pot of water in his hands and after crossing her, he came back again and asked her to do something, upon this she refused. It was further stated in the report that thereafter, accused appellant caughthold her hands and took her towards velly and after lifting her gagra, he fell down on her and put his penis into her vagina, upon this, she made hue and cry, but he pressed her mouth and, thereafter, blood came out from her vagina. Thereafter, she came to her house and narrated the whole story to her mother PW3 Radha and brother.
On this report, regular FIR Ex.P/2 was chalked out and invesligation was started.
During investigation, site plan Ex.P/3 was prepared; child prosecutrix PW1 Kamla was got medically examined by PW10 Dr. J.L. Shishodia and her medical examination report is Ex.P/5 and medical examination report by which her age was determined is Ex.P/6, where doctor has assessed her age between 8 to 10 years; underwear and lungi of the accused appellant were seized through Ex.P/7; gagra of the child proseculrix was seized through Ex.P/8; and the accused appellant was arrested through Ex.P/11 on 26.4.1998.
After usual investigation, police submitted challan against the accused-appellant in the Court of Magistrate, from where the case was committed to the Court of Session.
On 26.10.1998, the learned Addl. Sessions Judge, Rajsamand framed charge for the offence under Section 376 1PC against the accused appellant. The charge was read over and explained to the accused appellant, who pleaded not guilty and claimed trial.
During trial, the prosecution in support of its case examined as many as 13 witnesses and got exhibited some documents. Thereafter, statement of the accused appellant under Section 313 Cr.P.C. was recorded. In defence, two witnesses were produced by the accused appellant, where plea of alibi was taken.
After conclusion of trial, the learned Addl, Sessions Judge, Rajsamand through his judgment and order dated 26.11.1999 convicted and sentenced the accused appellant in the manner as indicated above holding inter-alia:-
1. That statement of the child prosecutrix PW1 Kamla gets corrobo-ration from the statements of her mother PW3 Radha and PW5 Shankarlal and furthermore, from medical evidence, which is found in the statement of PW10 Dr. J.L. Shishodia.
2. That prosecution has been able to prove its case beyond all reasonable doubts against the accused appellant for the offence under Section 376 IPC.
Aggrieved from the said judgment and order dated 26.11.1999 passed by the learned Addl. Sessions Judge, Rajsamand, the accused appellant has preferred this.
3. In this appeal, the following submissions have been made by the learned counsel for the accused appellant:-
1. That the learned trial Judge has erred in arriving at the findings of guilt against the accused appellant, as doctor has slated that there was no injury to any of the organs and no specific opinion has been given regarding the rape and in absence of that opinion, the findings of guilt recorded against the accused appellant by the learned trial Judge for the offence under Section 376 IPC are erroneous one.
2. That statement of the child prosecutrix PW1 Kamla is not worth reliable, as it suffers from so many contradictions and omissions and thus, no reliance should have been placed on the statement of child proseculrix PW1 Kamla.
3. That there is defence evidence on the point that on the date of occurrence, accused appellant was not in the village and this defence evidence must have been considered by the learned trial Judge.
4. That a false case was been lodged against the accused appellant for the simple reason that PW3 Radha, mother of the child prosecu-
trix, has enmity with the accused appellant over the dispute of land and from this point of view also, the statement of the child prosecutrix PW1 Kamla should not have been believed.
Hence, it is prayed that this appeal be allowed and the accused appellant be acquitted of the charge framed against him.
4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Addl. Sessions Judge, Rajsamand.
5. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case.
6. Before appreciating the above contentions, first medical evidence of this case has to be discussed and the same is found in the statement of PW10 Dr. J.L. Shishodta.
7. Before proceeding further, it may be stated here that so far as the age of the child prosecutrix PW1 Kamla is concerned, the learned counsel for the accused appellant has admitted at the bar that no doubt on the dale of alleged incident, child prosecutrix PW1 Kamla was below the age of 10 years.
8. Apart from this, this fact has been proved by the statement of PW10 Dr. J.L. Shishodia and medical examination report Ex.P/6. From perusing the statement of . PW10 Dr. J.L. Shishodia and medical examination report Ex.P/6, it appears that on the date of examination of the child prosecutrix PW1 Kamla i.e. on 23.4.1998, her breasts and auxiliary heir were not developed and for the purpose of ascertaining her age, X-ray of knee and elbow joint were taken and after seeing her physical features and after examining X-ray plates. PW10 Dr. J.L. Shishodia came to the conclusion that age of the child prosecutrix PW1 Kamla was near about 8 to 10 years.
9. Thus, there is ample evidence to show that on the date of occurrence, the child prosecutrix PW1 Kamla was below 10 years of age.
10. PW10 Dr. J.L. Shishodia has stated that on 23.4.1998, he examined the child prosecutrix PW1 Kamla in the presence of Dr. Sunita and found following symptoms:
1. That matting of hairs were absent.
2. That there was no injury as well as spot on outer part of her vagina.
3. That there was sign of blood coming from her vagina.
4. That hymen was not intact and lacerated radial tear was present, swellon painful and bleed on touch.
5. Vagina admits one finger with difficulty.
He opined that possibility of sexual intercourse could not be denied. He has proved the medical examination report Ex.P/5.
In cross-examination, this witness admits that lacerated radial tear on hymen could be caused by wood or and rod and for sexual intercourse, he meant that sexual intercourse might have taken place with the child prosecutrix PW1 Kamla or it might have not taken place.
11. Thus, from the medical evidence, which is found in the statement of PW 10 Dr. J.L. Shishodia, the fact that there was lacerated radial tear near hymen, swellon painful and bleed on touch, is well proved and rest evidence of this doctor would be discussed later on just after discussion of oral evidence.
12. The child prosecutrix PW1 Kamla has clearly stated in her statement that when she was grazing the goats, accused appellant came there and he caughthold her hands and on her refusal to go with him, he took her to the velly and after opening his lungi, he put his penis into her vagina and, thereafter, blood came out. She has further stated that at the time when accused appellant committed rape with her, nobody was there and in the noon, when her Jeeja came there, she told the whole story to her Jeeja and at that time, PW2 Babulal was also there. Thereafter, report was lodged.
In cross-examination, she has admitted.
(1) That her mother PW3 Radha and accused appellant were not on speaking terms.
(2) That she could not cry as her mouth was pressed by the accused appellant.
(3) That it is wrong to say that accused appellant was being falsely implicated because of enmity.
13. PW2 Babulal is another witness, who states that he was told by the child proseculrix PW1 Kamla that accused appellant has committed rape with her. In cros.s-examination, he admits that child prosecutrix PW1 Kamla is his niece. He has further stated that he was told about the alleged incident by one Bherulal.
14. PW3 Radha is the mother of the child prosecutrix. She states that PW2 Babulal came to her house and told that child proseculrix PW1 Kamla was in semiconscious state and then he went to her house and found that her daughter child prosecutrix PWI Kamla was unconscious and blood was coming and her lahanga was also stained with blood and she was told by the child prosecutrix PWI Kamla that accused appellant has committed rape on her.
15. Similar is the statement of PW4 Ganeshlal, father of the child prosecutrix.
16. PW5 Shankarlal is another witness. He states that he was told by PW3 Radha that rape was committed on her daughter child prosecutrix PWI Kamla by the accused appellant.
17. The above prosecution witnesses have been cross-examined at length, but nothing has come out from their statements that they in any manner intend to falsely implicate the accused appellant for the offence of rape. No doubt from the report Ex.P/1 and from the statement of child proseculrix PWI Kamla, minor contradictions can be seen in her statement, but since she was a child of less than ten years, such type of minor contradictions are expected and they are nature one and, therefore, her statement cannot be atlacked because of such minor contradictions.
18. It is well settled that although legally there is no bar to accepting the uncorroborated testimony of a child witness yet prudence requires that courts should not act on the uncorroborated evidence of a child whether sworn or unsworn. This was so held by their Lordships of the Privy Council in Mohamed Sugal Esa Mamasan Rer Alalah vs. King (1). The same view was laken by their Lordship of the Hon'ble Supreme Court in Rameshwar Kalyan Singh vs. State of Rajasthan (2), and later on, in so many cases.
19. In my considered opinion, from the stalement of the child prosecutrix PWI Kamla, one thing appears that she was raped by the accused appellant. Her evidence is duly corroborated by the leslimony of her molher PW3 Radha and father PW4 Ganeshlal and two other witnesses, namely, PW2 Babulal and PW5 Shankerlal and adequately confirmed by medical evidence. Thus, material on record shows beyond all reasonable doubls that child prosecutrix PWI Kamla was subjected to rape by the accused appellant.
20. It has been argued by the learned counsel for the accused appellant that since there was no outer injury on the vagina of the child prosecutrix PW1 Kamla, therefore, the case of the prosecution that accused appellant committed rape with her should not be believed. '
21. In my opinion, this argument carries no weight. No doubt in the present case, no outer injury on the vagina of the child prosecutrix PWI Kamla is found, but other injuries are found, which are suggestive in clear terms that she would have received these injuries at the time when accused appellant committed rape wilh her.
22. In this respect, it may be stated here that according to Explanation to Section 375 IPC, penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. To constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis with the labia majora or the valuva or pudenda with on without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It is, therefore, quite possible to commit legally Ihe offence of rape without producing any injury either to the genital part of victim or to the male organ.
23. The actus reus is complete with penetration. Emission is not relevant. (See The Queen v. Marsden (3).
24. In the present case, since the child prosecutrix PW1 Kamla was nearabout eight years old, therefore, no question of penetration in full sense arises and by putting the penis into her vagina, the offence is complete and it is possible that when accused appellant would have tried to put his penis with force into her vagina, bleeding started and matter ends.
25. Merely because doctor opined that vagina admitted one finger with difficulty, absence of penetration cannot be inferred on that basis. For that the decision of the Hon'ble Supreme Court in Prithvi Chand v. State of Himachal Pradesh (4), may be seen.
26. The argument that it may be a case of Section 354 IPC is rejected, looking to all the facts and circumstances of the case.
27. So far as the argument with regard to falsely implication of accused appellant due to enmity is concerned, it may be stated here that relationship of the mother of the child prosecutrix with the accused appellant was not cordial, but it is absurd to suggest that because of this enmity, PW3 Radha, mother of the child prosecutrix would falsely involve her daughter in a case of rape by the accused appellant. For that, decision of the Hon'ble Supreme Court in Balwant Singh v. State of Punjab (5), may be seen. Hence, this argument stands rejected.
28. So far as the plea of alibi is concerned, looking to the statement of the child prosecutrix PW1 Kamia and looking to the fact that report was lodged on the same day just after the occurrence, the plea of alibi, which is found in the statements of defence witnesses, cannot be accepted. These defence witnesses do not rebut the case of the prosecution as found established. Hence, the plea of alibi is also not tenable.
29. For Ihe reasons stated above, the findings 'of the learned Addl. Sessions Judge, Rajsamand convicting the accused appellant for the offence under Section 376 IPC are liable to be confirmed, as they are based on correct appreciation of evidence and they do not suffer from any infirmity.
Accordingly, the appeal filed by the accused appellant Durga Lal fails and is hereby dismissed, after confirming the judgment and order dated 26.11.1999 passed by the learned Addl. Sessions Judge, Rajsamand. '