Himachal Pradesh High Court
Indru vs State Of Himachal Pradesh on 21 March, 1989
Equivalent citations: 1989CRILJ2238
JUDGMENT V.P. Bhatnagar, J.
1. This appeal is directed against the judgment dt. May 1, 1985 of the learned Sessions Judge, Solan and Sirmaur districts at Solan whereby he convicted accused Indru under Sections 366 and 376, IPC, and sentenced him to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs. 2,000/- and in default of payment of fine to undergo further imprisonment for a period of one year, under Section 376, I.P.C. The accused was further sentenced to undergo rigorous imprisonment for 2 years and to pay fine of Rs. 1,000/- under Section 366; I.P.C. In default of payment of fine of Rs. 1,000/-, it was further ordered that he would undergo imprisonment for 6 months.
2. The victim of rape is Km. Mohini whose parents are PW 4 Dila Ram and PW 6 Kamla. It is not disputed that Mohini was about 6 years old on the day of occurrence viz., Sept. 24, 1984. Mohini, her parents, PW7 Purna Chand, PW 8 Balak Ram and the accused are all residents of village Barog.
3. The prosecution case is that Mohini was playing after the school hours when Indru accused allured her with sweets and took her to the nearby fields. He tore her salwar and then put his fingers into the private parts of the girl and then committed sexual intercourse with her. His lust having been satisfied, the accused carried her and put her on the backside of her house. Her mother PW6 Kamla heard the cries at about 7.00 p.m. and brought her to the house. She noticed her daughter's salwar smeared with blood as also blood coming out of her private parts. The mother herself started weeping which attracted the neighbours. She enquired from the girl as to what had happened and was told that Indru accused had taken her to the fields, torn her salwar, put his fingers into her private parts, committed sexual intercourse and then lifted and placed her near the house. PW 4 Dila Ram is the father of the girl. He was then working as pump operator at Barog in the Department of Tourism. He was sent for. He then made the report Ex. PJ to the police on the basis of which FIR Ex.PL was recorded at 9-15 p.m. on the day of occurrence itself. Mohini was immediately removed to primary Health Centre where PW 1 Dr. (Mrs.) Sudha Prakash examined her. Ex. PB is the medico-legal certificate given by the aforesaid doctor who found no mark of injury on Mohini's body except genitals. Mohini was not allowing examination due to severe pain and, therefore, had to be administered injection forthwith. The doctor found her lebia-minora bruised and about 1 c.m. tear of the posterior four chetta almost extending up to anus. As Mohini was not permitting proper medical examination, Dr. Sudha Prakash referred her to District Hospital at Solan. PW 2 Dr. N. Verma also examined Mohini and found same injuries as noticed by Dr. Sudha Prakash. He opined vide his report Ex. PF/2 that the injuries seemed to be due to forcible sexual assault.
4. Indru accused was examined by PW 3 Dr. Alok Uppal at 1-10 a.m. on Sept. 25, 1984. His medico-legal report is Ex. PH and the findings were that there were no marks of external injuries on the body of the accused. He was found capable of performing sexual intercourse but there was absence of smegma indicating that his penis had been used within last 24 hours. Dr. Sudha Prakash collected shirt P-1 and Salwar P-2 being worn by Mohini at the time of her medical examination whereas Dr. Alok Uppal collected underwear P-3 which the accused was wearing at that time.
5. These garments were seized and handed over to the police. Besides, the accused is stated to have produced shirt P-4 and pants P-5 from underneath the cot lying in his house at Barog on the following day, that is, Sept. 25, 1984. These garments were sent to the Chemical Examiner at Patiala whose report is Ex. PE. The analysis showed the presence of blood stains on all the five clothes, in addition to semen stains on salwar P-2 belonging to Mohini and underwear P-3 belonging to the accused. The Serologist vide his report Ex. P-5 found stains of human blood on shirt P-1 and Salwar P-2 of Mohini and shirt P-4 and pants P-5 belonging to the accused.
6. Indru accused, when examined under the provisions of Section 313, Cr. P.C., denied his involvement in the crime. However, he admitted that he was arrested on the day of occurrence itself, that is, on Sept. 24, 1984 and further that he was medically examined and found potent and that his underwear P-3 was then taken into possession. Regarding the recovery of shirt P 4 and pants P 5, he stated that these articles had been produced by his mother to the police and not by him. When asked as to why the case had been made against him, his answer was that one Sardar (Harpaul Singh), with whom Dila Ram complainant resided, had made this case against him. Sardar wanted to purchase his entire land but he did not agree. This resulted in the planting of the case against him at the instance of that Sardar.
7. It may be stated here at the very outset that Mohini, when produced before the Court, was not found to be a, competent witness inasmuch as the learned Sessions Judge observed that she had not developed mentally so as to understand the significance of making a statement in a court of law. Therefore, she was not put in the witness box and was discharged.
8. The main plank of the prosecution case rests on the testimony of PW 4 Dila Ram, PW 6 Karala, PW 7 Puran Chand and PW 8 Balak Ram. PW 6 Kamla deposed that about 5-6 months back she was at her house when she heard her daughter weeping at about 7-00 p.m. she found Mohini on the backside of the house. Mohini was profusely bleeding from her private parts. There was blood on her shirt P 1 and salwar P 2. The salwar was smeared with blood. She took her daughter inside the house and gave some water to her and then started crying herself as well. Lambardar Nek Ram and other neighbours reached her house. Her husband at that time was at the pump house. She then enquired from Mohini as to what had happened and her daughter disclosed that while coming back from the school the accused had offered her sweets and taken her to the fields nearby. He took off his trousers and also her salwar. He put his male organ into her private parts which resulted in the bleeding. Thereafter the accused kept her at the backside of the house.
9. PW 8 Balak Ram is a neighbour and has stated on oath that he went inside Dila Rani's house on hearing noise and found Mohini in her mother's lap. He saw the torn salwar and blood coming from private parts of the girl. It was in his presence that Mohini told her mother that Indru accused had taken her to the fields after giving her "Ranch ki goli" and "Mithi goli" and then committed "bura kam". He could not bear the sight and came out. PW 4 Dila Ram (Mohini's father) came after about 10 to 15 minutes. While in witness box, Balak Rate identified shirt P 1 and salwar P2 as the clothes which Mohini was wearing on the day of incident at the time he saw her in bad shape.
10. Another neighbour of the accused and the girl's parents is PW 7 Puran Chand, According to his statement, he was present at his house on the day of incident at about 7 p.m. when the news spread in the village that someone had committed rape on Dila Ram's daughter. He went to Dila Ram's house where PW8 Balak Ram, Lambardar Nek Ram, Wazir Chand and other villagers had gathered. Mohini was lying on a cot. He was told by Mohinfs mother that Indru had raped Mohini. He saw the private parts of the girl bleeding and was highly upset. To the same effect, is the statement of PW 4 Dila Ram.
11. PW 14 is the District Inspector of Police Ram Kumar who was then posted at Solan. He was, going to Police Station, Dharampur when at Barog on the way, PW 4 Dila Ram handed over to him the application Ex. PJ on which he made the endorsement Ex. PJ/2 and handed it-over to PW 17 S.H.O. Shiv Ram. This formed the basis of F.I.R. Ex. PL and further investigation which was done by PW 17 Shiv Ramand PW 11 Dy. S.P.J.R. Thakur.
12. The learned Sessions Judge has held the statement of the minor girl to her mother admissible in evidence under Section 6 as well as Section 8, of the Evidence Act This finding requires some detailed examination inasmuch as lengthy arguments have been addressed before us in the matter and a number of decisions cited.
13. There can be no manner of doubt whatsoever that the statement in question can be received in evidence under Section 8 since it constitutes subsequent conduct of the victim. The bare language of Section 8 makes it abundantly clear that the subsequent conduct of any party to a proceeding is relevant if it is in reference to such proceeding or is in reference to any fact in issue therein or relevant thereto. In the present case Mohini, aged about 6 years was subjected to rape in a field situated near her house. She was left at the backside of her house and her mother Kamla (PW 6) heard her weeping and crying. The mother found her in a serious condition Mohini was then bleeding from her private parts which is indicative of the fact that the crime had just been committed Kamla then herself started crying which attracted the neighbours to her house. When she enquired as to what had happened, Mohini informed her the name of the perpetrator of the crime and the manner in which it had occurred. This would certainly constitute a complaint relating to the crime and therefore, relevant as specifically laid down in illustration (J) to Section 8, Evidence Act. This illustration reads:
(j) The question is, whether A was ravished. The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which and the terms in which, the complainant made, are relevant.
The fact that, without making a complaint, she said that she had been ravished, is not relevant as conduct under this Section, though it may be relevant as a dying declaration under Section 32, Clause (I), or as corroborative evidence under Section 157.
The above illustration applied to the facts of this case with all appositeuess. Mohini, shortly after the gruesome incident made a complaint; to her mother narrating the circumstances and the manner in which she had been subjected to rape by accused Indru. A girl of such tender age can only seek protection by merely imparting information which would necessarily take the character of a complaint Being the victim herself, she is a party to the proceedings within the ambit of Section 8 and her complaint to the mother is her subsequent conduct having direct bearing on the fact in issue. Admissible, therefore, it is.
14. It may, however, be made clear that the mere fact that such a statement is admissible under Section 8 would not mean that it has to be accepted in all cases. Whether it is per se sufficient to return a verdict of guilty would depend upon the facts and circumstances of each case and no hard and fast rule can be laid down in the matter. This evidence will have to be tested and scrutinised like any other piece of evidence and a finding recorded whether it would be safe or not to act upon it. In other words, the court will have to come to a conclusion if such a statement, on the facts of the case, is reliable and trustworthy. We will deal with this aspect of the case a little later.
15. The finding of the learned Sessions Judge that the statement of Mohini to her mother is a part of res gestae and, therefore, admissible under Section 6, Evidence Act as well is, however, not free from doubt
16. The doctrine of res gestae stands incorporated in Section 6 which reads:
6. Relevancy of facts forming part of same transaction.-- Facts, which though not in issue, or so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.
This principle is an exception to the hearsay rule. Manifestly, facts which may be proved as part of res gestae must be facts other than those in issue. Furthermore, these facts must form part of that very transaction and be thus connected with the facts in issue. Evidence regarding facts in issue disclosed by a transaction can be given under Section 5 whereas evidence regarding other facts which must be connected with the facts in issue in a manner so as to form part of the same transaction can be given under Section 6.
17. It is well settled by now that a statement in order to be a part of res gestae, must have been made substantially contemporaneously with the act or immediately after it so that there is no opportunity for reflection or fabrication. It is in this background that the interval between the act and the statement assumes significance. In no case, the statement should be in the nature of a mere declaration or narration of a past event.
18. Now, what is a transaction adverted to in Section 6? The word transaction has not been defined but it can be equated to a crime so far as a criminal case is concerned. Each essential ingredient of that crime will be a fact in issue and those facts which are connected with the fact in issue forming part of the same transaction would be relevant as res gestae.
19. In the instant case, the transaction is complete and over as soon as rape had been committed. The fact in issue is whether the minor girl Mohini was subjected to sexual intercourse by the accused. As already discussed above, what the girl stated to her mother by way of complaint is relevant as constituting subsequent conduct under Section 8. In a specific case, it can also be used as a corroborative piece of evidence under Section 157, Evidence Act, though not in this case as the statement of the raped girl was not recorded in the Court. But, in no case the statement to her mother after the incident can form part of the transaction constituting rape, which is a fact in issue.
20. It would be a different matter if Mohini had been heard crying or making entreaties to Indru accused to desist from the act and to leave her alone. The statement of those persons who heard Mohini thus naming the accused would be admissible as res gestae. Or, take an instance where the accused after committing rape starts running to make good his escape and the prosecutrix makes hue and cry for apprehending him. Then, the statements of persons reproducing what she said could be brought into evidence as part of the same transaction. It is, however, not so in the present case where Mohini's statement is more of a narration of past event notwithstanding its close proximity in time.
21. A number of cases touching upon the scope of Sections 6 and 8 of the Evidence Act have been placed before us. We find our conclusions aforesaid fortified. We may now refer briefly to those cases.
22. In (Rameshwar v. State of Rajasthan), the Supreme Court has held that the previous statement of the raped girl to her mother, 'immediately after the occurrence, is not only admissible and relevant as to her conduct, but also constitutes corroboration of her statement under the provisions of Section 157, Evidence Act. In order to come to the aforesaid conclusion, illustration (j) to Section 8 of the Evidence Act was relied upon. In that case, the victim, named Purni, was 7/8 years old. She was not administered oath, but was held to be competent witness and, therefore, duly examined and believed. The statement made by her after the occurrence to her mother was held to lend corroboration to her testimony. However, the question whether the previous statement by the minor rendered. The (sic) made by their Lordships in para 27 of the judgment to the effect that ....seeing that corroboration is not essential to a conviction, conduct of this kind may be more than enough in itself to justify acceptance of the complainant's story" show that the conduct as disclosed from the making of her previous statement to her mother immediately after the occurrence, was pressed into aid to accept her version leading to the conviction of the accused.
23. Another case from which support is sought on behalf of the State is State of Orissa v. Pichika Parvartisam . In that case, the raped girl was six years old. She also stepped into the witness box though no oath was administered to her. She had also made previous statements to her mother and father immediately after the occurrence. Relying on the ratio of Rameshwar, it was held (Para 4):
The legal position is that the previous statement of the complainant at about the time of occurrence is legally admissible and relevant as evidence of conduct under Section 8 of the Evidence Act. It is also admissible as corroboration of the evidence of the complainant in Court under Section 157 of the Evidence Act. What weight is to be attached to such statement is of course a different matter. In some cases its weight may be nil but in other cases, where corroboration is not essential to conviction, conduct of this kind may be more than enough in itself to justify acceptance of the complainant's story. This depends Upon the facts of each case.
Manifestly, the question whether the statement made by the minor raped girl to her parents immediately after the occurrence would be admissible as part of the res gestae under Section 6, Evidence Act did not fall for determination there also.
24. The facts of State v. Hiraman, relied upon by the learned Asstt. Advocate General, are nearest to the facts and circumstances of the case in hand. Therein, the raped girl Suman, was aged four years and she could not be examined as she was found to be too young to give rational answers. Suman had been left by her mother, Indubai, at their neighbour's house before Indubai went to the river for washing clothes. On her return, after a short time, she saw Suman answering call of nature. Suman on seeing her mother, started weeping. Indubai then found Suman's. private parts injured and bleeding. On being questioned, Suman named the accused having caused injuries to her. Indubai contacted accused's brother, who asked for forgiveness. She then went to her neighbour, Shantabai, who advised her to contact her husband Her husband was posted at Nasik from where she brought him back after which the complaint was lodged by him with the police. Thus, the entire evidence consisted of Suman's complaint to her parents naming the accused, besides the medical evidence to the effect that she had been raped by some one and the clothe (payjama) of the accused was stained with blood and semen. On the above facts and circumstances the Division Bench of the Bombay High Court stated thus:
(8) Though evidence of statements made to Indubai by Suman cannot be given, in our view evidence of her and Indubai's conduct is relevant under the second part of Section 8 of the Evidence Act Explanation I to the Section further shows that even a statement very closely connected to the conduct, in that it explains the conduct, would be admissible, That this is intended by the Section is demonstrated by Illustration J. to it In the case above referred to we have the following observations (at p. 162).
There would have been no objection to the grandmother saying; 'The little girl made a complaint to me' and she could have been asked : 'In consequence of that complaint what did you do?' and the answer would have been 'I took her to the doctor and later to the police.' One realises that, although the term of the child's statement must not be given, any jury could see at once that as a consequence of the complaint the grandmother took the child to the doctor and the police and that the terms of the complaint would mention her father.
Indubai says:
I saw her answering call of nature outside in the open and on seeing me she began crying and on questioning she told me that : accused had placed her on his lap and blood came out.
The latter part is by way of explanation of her crying arid clearly is admissible. The first circumstance therefore against the accused is that the child made the complaint naming the accused.
(9) The other circumstances are (1) that her private parts did show that she had been raped and (2) that the clothing of the accused strongly suggested that he could be the offender.
On the above findings, the order of acquittal made by the learned Asstt. Sessions Judge was set aside. While doing so clearly, the teamed Judges took recourse to the provisions of Section 8, Evidence Act Neither they considered nor held that the previous statement made by the raped girl to her mother immediately after the occurrence was relevant as part of the same transaction under the provisions of Section 6, Evidence Act Also, the question of using the said statement for the purposes of corroboration under Section 157, Evidence Act, was not taken into consideration, and rightly so, because the victim had not made any statement in the witness box. The bare language of Section 157 shows that it is the testimony of the witness which can be corroborated by a former statement as to the same fact when made at or about the time when the fact took plaice. The provisions of Section 157, therefore, had no applicability on the facts of Hiraman's case, as also in the present case.
25. In Pratapsingh v. State of Madhya Pradesh 1971 Cri LJ 172 (Madh Pra), Partapsingh and Janved were tried for having committed the murder of one Ram Charan. The accused suspected illicit relations between Mahan Devi (wife of Partapsinch and sister of Janved) and the deceased. Head Constable Sarfaraj Beg, who lived at a distance of about 400 yards from the house of Partapsingh, heard some noise at about 10 p.m. He went towards the house of Partapsingh near which a large crowd had collected On going inside the house, he found the dead body lying with fresh wound from a sword. When questioned, Mahan Devi stated to Sarfaraj Beg that her husband and brother had run away after committing the murder, Madtiya Pradesh High Court, on the above facts, held that Mahan Devi's statement made to Sarfaraj Beg was not admissible in evidence under Section 6 as part of res gestae because the statement did not appear to be spontaneous and, in any case, was made sometime after the incident in answer to a query. It was further held that a statement in order to be admissible as part of res gestae should not narrate a past event but it should pertain to the event itself.
26. In Kashmira Singh v. State AIR 1965 J and K 37 : 1965 (1) Cri LJ 554, one girl Fatma Begum was going to the school when the accused was stated to have stopped his car and started teasing her and using obscene words. The prosecution neither proved the First Information Report nor examined the informant (Fatima Begum). The only evidence from which it sought support was the statement of one Hajee Ahad Dar who had deposed that when he reached the spot the girl had told him that the accused had used the obscene words towards her which annoyed her. The question which fell for determination was whether the testimony of Haji Ahad Dar was admissibly under Sections 6 and 8, Evidence Act. After adverting to the language of Section 6, the court was of the view that the Section pre-supposed the existence of a fact in issue in order to prove other facts connecting with it as corroborating piece of evidence being of the view that the fact in issue in that case was whether the accused had used insulting words against Fatima Begum and that there was no independent evidence to prove it, it was held that the evidence of Hajee Ahad Dar, who had admittedly not seen the actual occurrence, could not form part of res gestae so as to be admissible under Section 6, Evidence Act.
27. In Ram Das Cheedi v. State 1972 Cri LJ 57 (All) a minor married girl was abducted by the accused and others from the house of her father. The accused secured the ornaments which she was wearing on her person by dishonest inducement through convincing her that it would not be safe for her to be putting on ornaments as it was getting dark. She then handed over the ornaments to Ram Dass which he placed in a bag. Both of them went to the nearby railway station. In the meanwhile, her absence was discovered at her house by her brother and uncle who, on reaching the railway station found her sitting with the accused on a bench at the platform. On seeing them the accused fled along with the ornaments which were contained in the bag. She then told her brother and uncle the circumstances under which she handed over her ornaments to the accused and that he had run away with the said ornaments. On the above facts, it was held by a learned single Judge of the Allahabad High Court that her statement immediately after the occurrence was admissible as res gestae under Section 6, Evidence Act and further that it provided the necessary corroboration so as to lend assurance about the trustworthiness of her testimony on the question of exercise of dishonest inducement by the accused. It may be stated here that in Ram Das' case the accused was acquitted of the offence punishable under Sections 3637 366/379, I.P.C. on the finding that the girl, who had been deprived of her ornaments, was over 18 years of age and that she was a consenting party when she left the house of her father. All the same, the conviction of the accused under Section 420, I.P.C. was maintained and her statement to her brother and uncle immediately after the accused had taken to heels was found to be admissible and relevant as res gestae. Manifestly, the accused ran away with the ornaments when he saw her brother and uncle approaching and, therefore, what she stated to them at that very time was held to be part of the same transaction.
28. Having examined the legal provisions regarding admissibility of Mohini's statement made to her mother, we proceed to scan its evidentiary value. This has to be done as observed earlier, in the background of the entire facts and circumstances of this case.
29. Mohini, the victim of the heinous crime, her parents PW 4 Dila Ram and PW 6 Kamla and two independent witnesses namely PW 7 Puran Chand and PW 8 Balak Ram belong to the same village. They are neighbours. In fact, PW 7 Purari Chand's house is adjacent to the house of accused Indru. None of these persons, in the ordinary course of thing, can be interested in foisting a false criminal case of the present nature on the accused. Their statements, already referred to above, are free from blemish and squarely indict the accused by connecting him with the crime.
30. The defence raised by the accused in his statement under Section 313, Cr. P.C. supported by his mother DW 1 Shanti, leaves us completely unimpressed. Even if it be accepted as established that Sardar Harpaul Singh was after his land, we find the case totally bereft of any evidence worth the name leading to the conclusion that accused Indru got involved in the crime due to manipulations and machinations of that Sardar. It cannot be lost sight of that medical evidence proves it beyond a shadow of doubt that Mohini was subjected to a serious sexual assault in the evening hours of Sept. 24, 1984. It is unbelievable that the parents of the minor girl would become active participants in not only falsely implicating an innocent co-villager but also in permitting the real culprit to go scot free.
31. It is in evidence that many villagers had gathered at the house of the victim immediately after the incident when Mohini named accused Indru as the rapist. This, verily, is the crux of the prosecution story from the very beginning. It is, therefore, worth noticing that the accused could not find a single co-villager to say that he was not so named by the victim.
32. Mohini, being about 6 years old, was an innocent girl of tender age. There could be possibly no reason whatsoever for her to name a wrong person or to resort to falsehood. Being a co-villager, she was in a position to clearly identify the accused. Her statement therefore, to her mother, so close to the incident that she was still bleeding from her private parts, carries great weight and inspires complete confidence.
33. We are also of the opinion that this evidence is sufficient per se to warrant conviction of the accused. In fact, the present case stands on a much stronger footing that the one reported in Krishan Lal v. State of Haryana . In that ease, Shashi Bala aged below 16 years was sleeping outside her house with her mother and other children when the accused in the company of others carried her away under intimidation to a neighbouring godown and committed rape on her. Shashi Bala nearly became unconscious and was put back in her cot. Her mother found blood on Bala's salwar in the morning. It was then that Shashi Bala narrated the criminal assault of the previous night. Her father was away and on his return was apprised about the incident He took the victim to the police station and lodged a report.
34. The Supreme Court, rejecting the argument addressed in defence that there ought to be substantial corroboration, made the following observations : (Para 4) We must bear in mind human psychology and behavioural probability when assessing the testimonial potency of the victim's version. What girl would foist a rape charge on a stranger unless a remarkable set of facts or clearest motives were made out? The inherent bashfulness, the innocent naivete and the feminine tendency to conceal the outrage of masculine sexual aggression are factors which are relevant to improbabilise the hypothesis of false implication. The injury on the person of the victim, especially her private parts, has corroborative value. Her complaint to her parents and the presence of blood on her clothes are also testimony which warrants credence. More than all, it baffles belief in human nature that a girl sleeping with her mother and other children in the open will come by blood on her garments, and injury in her private parts unless she has been subjected to the torture of rape. And if rape has been committed, as counsel more or less conceded why, of all persons in the world, should the victim hunt up the petitioner and point at him the accusing finger? To forsake these vital considerations and go by obsolescent demands for substantial corroboration is to sacrifice common sense in favour of ah artificial concoction called 'judicial' probability. Indeed, the Court loses its credibility if it rebels against realism. The law Court is not an unnatural world.
35. In the present case also, the reports of the chemical examiner and the Serologist at Exs. P-4 and P-5 respectively, do afford reasonable corroboration to the prosecution. Underwear P-3 belonging to the accused was found, on analysis, to contain semen and bloodstains. This underwear was taken into possession when the accused was medically examined by Dr. Alok Uppal at 1.10 a.m. on Sept. 25, 1984, which means after about 7 hours of the incident. His shirt P-4 and pants P-5 were also found to contain stains of human blood.
36. These garments, even according to the accused in his statement Under Section 313, Cr. P.C., belong to him and were handed over to the police by his mother. His medical examination also disclosed absence of smegma. These pieces of evidence may not be strong in themselves for inculpating the accused but they do fit in with the other evidence which is quite formidable in nature.
37. The learned Counsel for the accused has drawn our attention to that portion of the document Ex. PJ which is the first report lodged by P.W. 4 Dila Ram to the police wherein it is recorded that Mohini had merely stated to her parents that the accused had inserted his hand into her private parts and then to the fact that the police concluded from the said report that offence punishable Under Sections 354 and 323, I.P.C. had been committed and not one Under Section 376, I.P.C. The learned Counsel for the accused has then referred us to the medical evidence in which both the doctors who examined Mohini did not state that she had been subjected to rape. P.W. 2 Dr. N. Verma opined that the injuries seemed to be due to forcible sexual assault. It has, therefore, been argued that the offence Under Section 376, I.P.C. of which some penetration by the penis is an essential ingredient is not made out. Another reason in support of the above argument urged is that no injury or abrasion was found on the male organ of the accused. We are afraid we cannot agree with this submission. The complete statement of Mohini recorded in document Ex. PJ by her father P.W. 4 Dila Ram is that the accused inserted her hands into her private parts and that therefore due to pain she did not know as to what had happened.
38. The absence of the injuries on the male organ could be due to the assistance derived by the accused from the fingers to facilitate penetration. Above all, Dr. Sudha Prakash, on medical examination, found not only her labia minor a bruised but also about I cm tear of the posterior for chetta almost extending up to anus. The presence of semen stains oh the underwear P-3 belonging to the accused and such serious injuries to the private parts of Mohini are clearly indicative of penetration howsoever small it may be. This would bring the offence within our concerns of Section 376, I.P.C.
39. Cumulatively, therefore, we have no hesitation in holding that the prosecution fully succeeded in bringing the guilt home to the accused. The order of conviction recorded by the learned Sessions Judge is, therefore, unassailable.
40. As regards the quantum of punishment, the accused had been sentenced to undergo rigorous imprisonment for a period of 10 years Under Section 376, I.P.C. An offence of this nature against a helpless child calls for no leniency. All the same, we are of the opinion that the ends of justice would be met in case the accused is instead awarded rigorous imprisonment for a period of 6 years Under Section 376, I.P.C. To this extent, the sentence is reduced. However the sentence awarded Under Section 366, I.P.C. including the amount of fine is maintained, Both sentences would run concurrently. As a result, the appeal preferred by the accused against the order of conviction is dismissed but the sentence is modified as indicated above.