Rajasthan High Court - Jaipur
Ghewar Ram vs State Of Rajasthan on 2 May, 2001
Equivalent citations: 2001CRILJ4460, 2000(1)WLC193
JUDGMENT Sunil Kumar Garg, J.
1. This appeal has been filed by the accused-appellant against the judgment and order dated 4-4-1998 passed by the learned Addl. Sessions Judge, Sojat, District Pali in Sessions Case No. 34/94, by which he convicted the accused-appellant for the offence under Section 376, IPC and sentenced him to undergo ten years' rigorous imprisonment and to pay fine of Rs. 100/-, in default of payment of fine, to further undergo 15 days imprisonment,
2. The facts giving rise to this appeal, in short, are as follows :--
On 19-9-1994, one Sagsingh, Sub-Inspector, Police Station Nana, District Pail came to Jodhpur in connection with investigation of some case and during the course of investigation at Jodhpur, he received information that rape has been committed by accused-appellant Ghewar Ram with the daughter of PW2 Andaram. Thereafter, he immediately arrived at village Bhaniya in the District of Pali and called PW2 Andaram and his daughther Kama and upon this, PW2 Andaram desired that medical treatment of his daughter Kama be got done at Jodhpur. On the same day, he reached at Police Station, Udaimandir and recorded the statement of PW2 Andaram.
In his statement Ex. P/6, PW2 Andaram has stated that on Dasham (14-9-1994) in the morning his daughter PW4 Kama (hereinafter referred to as the child prosecutrix) aged 6 years went to jungle to graze the cows and at about 11.00 a.m. she returned to the house veiling and weeping and when she was asked by him and his wife PW3 Gogli as to why she was veiling and weeping, the child prosecutrix PW4 Kama told that when she was grazing the cows, accused-appellant ame and after putting his hands on her mouth, he took her to the bushes of bawaliya and put her on the ground and sat on her and removed her underwear and then put his penis into her vagina, as a result, of which, blood came out and she was having pain. It was further stated by PW2 Andaram that when he and his wife PW3 Gogli opened her underwear, they found that'it was fully stained with blood and blood was also found on her frock and blood was also coming out from her vagina. Thereafter, PW2 Andaram called neighbours, namely, PW6 Joraram and PW5 Nainaram and they all and other villagers of village assembled in the temple and, thereafter, Kesharam, father of the accused-appellant, was called and he admitted that his son accused-appellant Ghewar Ram had committed mistake and he further told that whatever penalty would be imposed on the accused-appellant by the villagers, he would accept the same and, thereafter, penalty of Rs. 25,000/- was imposed. Thereupon, the accused-appellant ran away and did not pay the same amount. PW2 Andaram has further stated that villagers asked him not to go Thana and has further stated that since he was poor, therefore, he could not lodge the report.
Since that case falls within the jurisdiction of Police Station Sheopura, the statement Ex. P/16 of PW2 Andaram was sent to the Police Station Sheopura, where the case was registered on 20-9-1994 and regular FIR Ex. P/7 was chalked out by PW9 Manoharlal and investigation was started.
During investigation, accused-appellant was arrested on 3-10-1994 through Ex. P/12. The child prosecutrix PW4 Kama was got medically examined by PW10 Dr. M.P. Joshi on 20-9-1994 and the same is Ex. P/8.
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 12-12-1994, the learned Addl. Sessions Judge, Sojat framed charge for the offence under Section 376, IPC 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 11 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.
After conclusion of trial, the learned Addl. Sessions Judge, Sojat through his judgment and order dated 4-4-1998 convicted the accused-appellant for the offence under Section 376, IPC and sentenced him in the manner as indicated above holding inter alia :--
1. That delay, which is found in the present case, has been explained by the prosecution and the same is not fatal.
2. That statement of the child prosecutrix PW4 Kama was believed by the learned trial Judge and the fact that she was not having any injury on her labia, minora and majora, would not affect as there is evidence of penetration in her vagina.
3. That statement of the child prosecutrix is further corroborated by the medical evidence.
4. 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 4-4-1998 passed by the learned Addl. Sessions Judge, Sojat, the accused-appellant has preferred this appeal.
3. In this appeal, the following submissions have been made by the learned Counsel for the accused-appellant:--
1. That non-production of Shriram is fatal to the prosecution and the learned trial Court has committed serious mistake in not drawing adverse inference for withholding of the witness Shriram.
2. That so-called medical evidence in the present case is against the statements of the prosecution witnesses as well as against the circumstances of the case.
3. That since penalty of Rs. 25,000/- was imposed on the accused-appellant and the same has been recovered, the sentence imposed by the learned trial Court is excessive.
4. That so-called delay in the present case is fatal.
4. On the other hand, the learned Public Prosecutor supported the impugned judgment, and order dated 4-4-1998 passed by the learned Addl. Sessions Judge, Sojat.
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 seen, which is found in the statement of PW. 10 Dr. M.P. Joshi;
7. PW. 10 Dr. M.P. Joshi states in his statement that on 20-9-1994 he was Medical Jurist in M.G. Hospital, Jodhpur and on that day, he examined child prosecutrix PW. 4 Kama, aged 6 years for the purpose of rape alleged to have been committed on her and found that she was having 23 teeth, auxiliary and pubic hairs were not present, her breasts were not developed and when her vagina was examined, hymen tear with vaginal mucosal tear about T.O cm. 1.5 x 1.0 cm, ulcer at torn area with slough at base was found and as soon as that part was touched, blood came out and he came to the conclusion that there was evidence of vaginal penetration. Thus, he has proved the report Ex. P/8.
8. Thus, from the above evidence of PW. 10 Dr. M.P. Joshi, it appears that there was ulcer near the vagina of the child prosecutrix and blood was there.
9. In cross-examination, PW. 10 Dr. M.P. Joshi has admitted that on labia, minora and majora, he did not find any injury.
10. This aspect would be discussed while assessing the evidence of the child prosecutrix PW. 4 Kama.
11. So far as the age of the child prosecutrix PW. 4 Kama is concerned, PW. 2 Andaram, in his statement Ex. P/6, has stated her age as about 6 years, the child prosecutrix in her statement recorded as PW. 4 on 18-7-1996 has stated her age as about 10 years and as per her medical examination report Ex. P/8, there Were no auxilliary and pubic hairs and her breasts were not developed and, therefore, it can easily be said that she was below 10 years of age on the date of occurrence.
12. Now, the evidence of the child prosecutrix PW. 4 Kama has to be examined critically.
13. Before examining her statement, appreciation of evidence of child witness and legal position in respect of child witness has to be seen.
14. It is well settled that although legally there is no bar to accepting the uncorroborated testimony of a chilod 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 v. King, AIR 1946 PC 3 : 1946 All LJ 100. The same view was taken by their Lordships of the Hon'ble Supreme Court in Rameshwar Kalyan Singh v. State of Rajasthan, AIR 1952 SC 54 : 1952 Cri LJ 547 and later on, in so many cases.
15. As to the nature and extent of cor-roboration, which should be required, it may be stated here that it did not mean that the corroboration as to the identity must extend to all circumstances necessary to identify the accused with the offence, yet there has to be independent evidence which would make it reasonably safe to believe the witness's story that the accused was the one who committed the offence.
16. The law has also cast duty on the Court while recording the evidence of the child witnesses. The competency to testify depends on the witness's ability to understand questions put to him and to give rational answers to those questions. Once a witness is found to be a competent witness, even if he is not competent witness to take an oath or if there is an omission to take an oath that will not invalidate proceedings or render inadmissible the evidence. The rule generally is in favour of admission of evidence though the weight to be attached to it will naturally be a matter for consideration by the Court, There is always competency unless the Court considers otherwise.
17. Whenever a witness appears before the Court, the Court will proceed on the basis that he. is competent to testify. The satisfaction to be arrived at by preliminary examination of witness. However, his evidence does not become inadmissible in evidence in absence of such preliminary examination.
18. Keeping in mind the above legal position, the evidence of the child prosecutrix PW. 4 Kama is being examined.
19. The child prosecutrix PW. 4 Kama has stated in her statement that she went to graze the cows in the Nadi and at that time, accused appellant came there and pressed her mouth and, thereafter, he sat on her and put his penis into her vagina, as a result of which, blood came out from her vagina and at that time, Kaka Ramji came there and seeing him, accused appellant ran away. Thereafter, she came to her house and Kaka Ramji came later on after taking the cows. Thereafter, she narrated the whole incident to her father PW. 2 Andararn and mother PW. 3 Gogli and she washed her underwear.
20. She has been cross-examined at length, but nothing has come out which affects her testimony and on the contrary, it appears that she is telling correct version and she is not falsely implicating the accused appellant in this case and she had no axe to grind against the accused appellant. Therefore, her statement appears to be straightforward and trustworthy.
21. The statement of the child prosecutrix PW. 4 Kama gets corroboration from the statements of her father and mother PW 2 Andaram and PW. 3 Gogli respectively. Her statement further gets corroboration from medical evidence.
22. PW. 2 Andaram has admitted that child prosecutrix PW. 4 Kama was brought by Shriram, though child prosecutrix PW. 4 Kama says that she came alone and Ramji came later on. In my considered opinion, if such contradiction is there, it is of minor nature and does not affect the basic case of the prosecution that rape was committed on her by the accused appellant.
23. The statement of PW. 5 Nainaram is also relevant that as soon as the alleged incident took place he was called by PW. 2 Andaram and fact that rape was committed by the accused appellant with the child prosecutrix was told by PW. 2 Andararn to him arid this witness has testified that statement. Therefore, he is a witness of just after occurrence and has got relevancy. Similar is the statement of PW. 6 Joraram.
24. Thus, from the statements of these two witnesses, namely, PW. 5 Nainaram and PW. 6 Joraram, the case of the prosecution gets corroboration.
25. Hence, looking to the statement of the child prosecutrix PW. Kama, which is supported by the other evidence and medical evidence, it can easily be concluded that accused appellant has committed rape with the child prosecutrix PW. 4 Kama.
26. The argument that there was no injury on her labia, minora and majora, would not be helpful to the accused appellant in the present case, as blood was coming out from her vagina and there was ulcer.
27. It may be stated here that in India, 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 within the labia majora or the vuvla or pudenda with or 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 the offence of rape without producing any injury to the genitals or leaving any seminal stains.
28. Looking to this aspect, if no injury is found on her labia, minora and majora, it would not at all affect the case of the prosecution as other injury on her private part is found, which is visible in the medical report Ex. P/8 and statement of PW. 10 Dr. M.P. Joshi.
29. No doubt in the present case, Shriram has not been produced by the prosecution, though his name is mentioned in the list of witnesses, but looking to the other evidence in the present case, his, non-production would not affect the prosecution case and doubt on the prosecution story cannot be gathered in the absence of his statement. Hence, the argument with regard to non-production of Shriram stands rejected.
30. So far as delay in lodging the report is concerned, the same has been explained by PW. 2 Andaram, as penalty of Rs. 25,000/-has been imposed on the accused appellant and villagers did not want that report be lodged and in such circumstances, if there is delay, it is not fatal to the prosecution. Hence, the argument with regard to delay stands rejected.
On point of sentence
31. Since the child prosecutrix PW 4 Kama is below ten years of age on the date of occurrence, this case would fall under Section 376(2)(f) IPC and for that offence, the minimum sentence is ten years and the same has been awarded by the learned Addl. Sessions Judge, Sojat and, therefore, this Court does not want to interfere with the minimum sentence awarded to him. Therefore, on this count also, the accused appellant does not deserve any sympathy.
32. For the reasons stated above, the findings of the learned Addl. Sessions Judge, Sojat holding the accused appellant guilty for the offence of rape are liable to be confirmed, as they are based on correct appreciation of evidence and they do not suffer from any infirmity.
In the result, the appeal filed by the accused appellant Ghewar Ram fails and the same is hereby dismissed, after confirming the judgment and order dated 4-4-1998 passed by the learned Addl. Sessions Judge, Sojat.