Gujarat High Court
Mango @ Mangalbhai Pratapbhai Pagi vs State Of ... on 20 June, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
R/CR.A/928/2009 CAV JUDGEMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 928 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? ================================================================ MANGO @ MANGALBHAI PRATAPBHAI PAGI....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance:
MR HARNISH V DARJI, ADVOCATE for the Appellant(s) No. 1 MS CHETANA M.SHAH, APP for the Opponent(s)/Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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R/CR.A/928/2009 CAV JUDGEMENT
Date : 20/06/2014
CAV JUDGEMENT
(PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) The present Appeal is at the instance of a convict accused of the offence under Sections 376, 323, 506(2) of the Indian Penal Code and is directed against the order of conviction and sentence dated 7th May 2009 passed by the Additional Sessions Judge, 3rd Fast Track Court, Godhra, in Sessions Case No.91 of 2008.
By the aforesaid order the learned Additional Sessions Judge held the accused-appellant guilty of the offence under Section 376 of the Indian Penal Code and consequently, sentenced him to undergo life imprisonment and a fine of Rs.5,000/-, with a further stipulation that in default of payment of fine the accused shall undergo further rigorous imprisonment for one year.
The learned Additional Sessions Judge also found the accused-appellant guilty of the offence under Section 323 of the Indian Penal Code and consequently sentenced him to undergo rigorous imprisonment for one year and a fine of Page 2 of 57 R/CR.A/928/2009 CAV JUDGEMENT Rs.5,000/-, with a further stipulation that in default of payment of fine the accused shall undergo further imprisonment for six months.
The learned Additional Sessions Judge also found the accused-appellant guilty of the offence under Section 506(2) of the Indian Penal Code and consequently sentenced him to suffer rigorous imprisonment for one year and a fine of Rs.5,000/- with a further stipulation that in default of payment of fine the accused shall undergo further imprisonment for six months.
I. Case of the Prosecution :
Shorn of facts, the case of the prosecution that could be unfolded from the charge Exh.5 framed by the Additional Sessions Judge is that on 21 st March, 2008, the prosecutrix viz.
Radha aged 9 years had gone out to play and watch holi which was lighted in a nearby field from the house of the prosecutrix.
It appears that on the date of the incident i.e. 21 st March 2008, the festival of holi was celebrated by the villagers. It is the case of the prosecution that at that time the accused Page 3 of 57 R/CR.A/928/2009 CAV JUDGEMENT herein lured the minor Radha by offering her a chocolate and thereby took her to a field of jowar and had a forcible sexual intercourse with her. It is further the case of the prosecution that at that time while ravishing the minor Radha, the accused inflicted injuries on her face with his nails and on her private parts and also threatened the minor stating that if she would disclose anything about the act then she would be killed.
It is the case of the prosecution that in this manner the accused committed the offence punishable under Sections 376, 323 and 506(2) of the IPC.
It appears that a First Information Report Exh.47 was lodged by the mother of the prosecutrix, viz. Kaliben wife of Rupabhai Nathabhai, on 22nd March 2008 at around 18:30 hours. In the complaint lodged by the mother of the victim it has been stated that she resided at village Veraiya situated in the District of Panchmahals. Her family consists of four daughters and two sons. It has been stated that her daughter Radha i.e. the victim had studied upto IIIrd Std. On 21st March 2008, the complainant, her husband and her children were at home at around 7 O'clock in the evening. It is stated that at that time Radha went to a nearby field where holi was lighted Page 4 of 57 R/CR.A/928/2009 CAV JUDGEMENT as Radha wanted to play over there. It has been stated that at around 8 O'clock, her son Raju and one Tino (son of the brother of her husband) brought Radha home and informed her husband Rupabhai that the accused lured Radha by offering her a chocolate and took her to a nearby jowar field from where they could hear the sound of Radha crying. It has been further stated that on hearing the sound of the cries of Radha, both of them i.e. Raju and Tino went near the place from where the sound was coming and found that the accused was ravishing Radha. It is further stated that as Radha started crying loudly, the accused ran away from the place of occurrence. It is further stated that on inquiring with Radha as to what had happened, in reply Radha narrated that Manga Pratap i.e. the accused residing in the village asked her to accompany him for buying a chocolate, and saying so, took her to a nearby jowar field by gagging her mouth. It is further stated that Radha informed the complainant and the other family members that thereafter the accused ravished her and also inflicted injuries on her face with his nails. It is further stated that on account of forcible sexual intercourse, the private part of Radha got swollen and she found difficulty in passing urine. It is further stated in the complaint that Radha also informed her mother that the accused had threatened to Page 5 of 57 R/CR.A/928/2009 CAV JUDGEMENT kill her if she would disclose anything regarding the incident. It is further stated that at that time the other persons who had gathered to pay their respects where the Holi was lighted, were not informed regarding the incident as the complainant and her family members apprehended that by disclosing the same a lot of problem would crop up in the village.
On the complaint being lodged, the investigation had commenced. The victim was sent for medical examination and the medical examination revealed that the labia majora were slightly swollen. White coloured discharge was found from the vagina. The hymen was found ruptured. The clothes of the victim worn at the time of the incident were collected by drawing a panchnama Exh.12. The scene of offence panchnama Exh.10 was drawn in presence of the panch-
witnesses. The Investigating Officer collected the Birth Certificate - Exh.58 which indicated that the victim was a minor. The accused was arrested and his arrest panchnama Exh.30 was drawn in presence of the panch-witnesses. After the arrest, the accused pointed out the place where the crime was committed and a panchnama Exh.21 in that regard was drawn in presence of the panch-witnesses. The accused was also subjected to medical examination. The statements of Page 6 of 57 R/CR.A/928/2009 CAV JUDGEMENT various witnesses were recorded. Finally, charge-sheet was filed in the Court of the Judicial Magistrate, First Class, Lunavada, of the offences under Sections 376, 323, 506(2) of the Indian Penal Code.
As the offence was exclusively triable by the Sessions Court, the JMFC, Lunavada, committed the case to the Court of Sessions under Section 209 of the Code of Criminal Procedure.
The Additional Sessions Judge framed charge Exh.5 against the accused and his statement was recorded. The accused claimed to be tried.
II. Oral Evidence :
The prosecution adduced the following oral evidence in the course of the trial :
Exh.
PW1 Muljibhai Virabhai Patel (Panch-Witness) 9 PW2 Ramanbhai Bhagwanbhai Maliwad (Panch- 11 Witness) PW3 Dr.Nirav Pravinbhai Hamirani (Medical Officer) 22 PW4 Raijibhai Kuberbhai Patel (Panch-Witness) 29 PW5 Dr.Narendragiri Shankergiri Gosai (Witness) 37 PW6 Dr.Pikesh Maheshbhai Modi (Medical Officer) 40 Page 7 of 57 R/CR.A/928/2009 CAV JUDGEMENT PW7 Kaliben Rupabhai (Complainant) 46 PW8 Radhaben Rupabhai (Prosecutrix) 51 PW9 Chandubhai Mohanbhai Talpada (Witness) 56 PW10 Somabhai Nathabhai Solanki (Witness) 57 PW11 Maheshbhai Babubhai Pagi (Witness) 60 PW12 Mohanbhai Manilal Vanand (Witness) 65 PW13 Jignesh Ganeshbhai Amin (Investigating Officer) 67 III. Documentary Evidence :
The following pieces of documentary evidence were adduced by the prosecution :
Sr.No Document Exh. . 1 Panchnama of the place of offence. 10 2 Panchnama of the clothes of the victim. 12 3 Panchnama of the place shown by the accused. 21 4 Panchnama of the physical condition of the 30 accused. 5 M.L.C. Certificate of the victim. 41 6 Complaint I.CR.No.16 of 2008 of Khanpur Police 47 Station. 7 Birth Certificate of the victim. 58 Page 8 of 57 R/CR.A/928/2009 CAV JUDGEMENT 8 Yadi for sending the sample of the victim to the 44 Laboratory. 9 Yadi for sending the sample of the victim to the 78 Laboratory. 10 M.L.C. Certificate of the victim by the Civil 23 Hospital, Godhra. 11 Office copy of the yadi made to the Medical 76 Officer for taking muddamal article. 12 Office copy of the yadi made to the Medical 77 Officer for taking sample of the accused. 13 Xerox copy the fitness certificate. 38 14 Receipt in token for the muddamal received by 72 the Laboratory. 15 Yadi written for giving analysis certificate of the 68 muddamal. 16 Despatch note of the muddamal. 69 17 Receipt in respect of the muddamal. 73 18 Yadi made for giving analysis certificate of the 70 muddamal. 19 Despatch note of the muddamal. 71 20 Report of the muddamal analysis. 74 21 Serological report of the muddamal. 75 Page 9 of 57 R/CR.A/928/2009 CAV JUDGEMENT
After completion of the recording of the evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded in which the accused stated that the complaint was a false one and he was innocent.
On conclusion of the trial, the trial Court convicted the accused of the offence under Sections 376, 323 and 506(2) of the Indian Penal Code and sentenced him as stated aforesaid.
IV. Contention on behalf of the accused- appellant.
Mr. Harnish Darji, the learned advocate appearing for the accused, vehemently submitted that the trial Court committed a serious error in finding the accused guilty of the offence under Sections 376, 323 and 506(2) of the Indian Penal Code.
Mr.Darji submitted that the medical evidence on record is conflicting in nature. According to Mr.Darji, the incident is alleged to have occurred on 21st March 2008 at around 8 O'clock in the night. The complaint was lodged by the mother of the victim on the next day i.e. on 22nd March 2008 at around 18:30 hours at the Khanpur Police Station. Mr.Darji submitted Page 10 of 57 R/CR.A/928/2009 CAV JUDGEMENT that the medical certificate Exh.23 issued by the Medical Officer of the General Hospital at Godhra would suggest that there was an abrasion of 0.5cm x 0.1cm over the right side of the nose oblique and black in colour and some tenderness over the right cheek. According to Mr.Darji, the said certificate states that the hymen was not torn, no marks of any injury were found over the perineum, and in the opinion of the doctor who issued the certificate, there was no evidence of any vaginal penetration. According to Mr.Darji, the swab taken from the vulva did not indicate any presence of live or dead spermatozoa. Thus, according to Mr.Darji, the medical examination of the victim at the General Hospital, Godhra, suggested that there was no forcible sexual intercourse as alleged by the victim herself. Mr.Darji submitted that the medical certificate Exh.41 issued by the Medical Officer of the Cottage Hospital at Lunavada reveals that there were injuries on the private part of the victim and the hymen was also found ruptured. Mr.Darji submitted that the victim was first examined by the Medical Officer of the Cottage Hospital at Lunavada and thereafter she was referred to the General Hospital, Godhra, for further treatment and examination. In light of such conflicting medical opinion, Mr.Darji submitted that the trial Court ought to have given the benefit of doubt to Page 11 of 57 R/CR.A/928/2009 CAV JUDGEMENT the accused.
Mr.Darji further submitted that assuming for the moment that there is some element of truth in the allegations levelled against the accused, then at the best it could be a case of an attempt to commit rape and not actual rape.
Mr.Darji further submitted that the victim Radha was examined by the prosecution as PW8. However, the victim in her evidence Exh.51, was not in a position to depose anything before the trial Court. In such circumstances, according to Mr.Darji, the trial Court ought not to have convicted the accused solely relying on the medical evidence on record. Mr.Darji lastly submitted that the complaint was lodged almost after 24 hours of the incident and the same was lodged only due to suspicion towards the accused.
In such circumstances referred to above, Mr.Darji prayed that there being merit in the Appeal, the same may be allowed.
V. Contentions on behalf of the State :
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R/CR.A/928/2009 CAV JUDGEMENT
Ms.Chetana Shah, the learned APP appearing for the State, has vehemently opposed this appeal and submitted that the trial Court committed no error in finding the accused guilty of the offences under Sections 376, 323 and 506(2) of the Indian Penal Code. Ms.Shah submitted that the medical evidence on record is very clear and suggestive of the fact that there was forcible sexual intercourse by the accused with the minor victim. Ms.Shah submitted that there was no reason for the minor as well as her family members to falsely implicate the accused in the crime at the cost of the reputation of the family. Ms.Shah submitted that even the Serological Test Report Exh.75 reveals that semen was found on the trouser of the accused, the vulva swab also showed the presence of semen and the vaginal swab also showed the presence of semen of the blood group 'B' matching with the blood group of the accused.
In such circumstances referred to above Ms.Shah prayed that there being no merit in the Appeal, the same may be dismissed.
VI. Oral Evidence on record :
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R/CR.A/928/2009 CAV JUDGEMENT
The PW1 Muljibhai Virabhai Patel has been examined by the prosecution to prove the scene of offence panchnama Exh.10. The PW1 in his evidence Exh.9 has deposed that on 23rd March 2008 he was called by the Khanpur Police at village Veraiya to act as a panch-witness. He has deposed that he had gone to the agricultural field of one Mohanbhai Manilal Vanand. The second panch viz. Jayantibhai Dajibhai was also present. He has deposed that in the field there was a crop of jowar of the height of approximately 4 feet. Adjoining the field where the offence was committed is the field of one Ambalalbhai. Nothing substantial could be elicited through the cross-examination of this witness.
The PW2 Ramanbhai Malivad has been examined by the prosecution to prove the panchnama of the clothes of the victim Exh.12. The PW2 Ramanbhai in his evidence Exh.11 has deposed that on 22nd March 2008 he was asked by the Khanpur Police to come at the Khanpur Police Station to act as a panch- witness. This witness has deposed that the clothes of the victim girl were shown to him and the same were put in a bag and the bag was sealed. The PW2 proved the contents of the panchnama Exh.12. Nothing substantial could be elicited through the cross-examination of this witness. Page 14 of 57
R/CR.A/928/2009 CAV JUDGEMENT The PW3 Dr.Nirav Hamirani has deposed that on 23rd March 2008, he was on duty at the Government Hospital, Godhra, and at that time, a patient by name Radhaben Rupabhai was sent for medical examination with a transfer note issued by the Cottage Hospital, Lunavada. The PW3 has deposed that the girl was brought at the hospital as a victim of rape by her mother Kaliben. The PW3 has deposed that in the history given by the mother of the victim, it was stated that on 21st March 2008 a person by name Mangalbhai Pratapbhai Pagi had forcible sexual intercourse with the minor victim. The PW3 has deposed that there was no bleeding from the private part. The victim had taken bath after the incident and had also changed the clothes. The examination revealed one abrasion of 0.5cm x 0.1cm over right side of the nose oblique and black in colour. The victim complained of pain on her right cheek. The PW3 has deposed that the menstruation cycle had not started and the victim was unmarried. The victim was completely conscious and was cooperative. Her movements and speech were found to be normal. The PW3 has further deposed that the hymen was not torn and no injuries were found on her genitals. He has further deposed that no marks of injury were found over the perineum. The gynecological Page 15 of 57 R/CR.A/928/2009 CAV JUDGEMENT examination was done by Dr.D.M.Patel, and in the opinion of the Gynecologist, there was no evidence of any penetration in the vagina. The blood group of the victim was found to be B+ve. The vulva swab showed no presence of live or dead spermatozoa. He has deposed that the samples of blood, nails, vaginal swab and saliva were collected for being sent to the Forensic Science Laboratory. He has deposed that a certificate Exh.23 was issued by him. The transfer note issued by the Cottage Hospital, Lunavada, showed the age of the victim to be 8 years. In the cross-examination of this witness, he has deposed that it was not true to suggest that there was only one injury found on the body of the victim. He has deposed that the injury which was found on the nose can be caused by coming in contact with any hard and blunt object. He has deposed that his opinion was based on the laboratory reports. He has deposed that while giving his own opinion, he also relied on the opinion expressed by the Gynecologist Dr.Patel. He has deposed that he had also read the history which was stated in the transfer note issued by the Lunavada Hospital.
The PW4 Raijibhai Patel has been examined as one of the panch-witnesses. The PW4 in his evidence Exh.29 has Page 16 of 57 R/CR.A/928/2009 CAV JUDGEMENT deposed that on 23rd March 2008, he was called by the police at the house of the accused where two boys were present. On inquiring with those two boys, they informed that the house was of Mangalbhai. Mangalbhai i.e. the accused was present at his house and he had worn a pant and a shirt with a lining. A handkerchief was found tied on his forehead. The PW4 has deposed that the clothes of Mangalbhai were collected. He identified the trouser Article-4 which was collected from the house of the accused. The PW4 accordingly proved the panchnama Exh.33. Nothing substantial could be elicited through the cross-examination of this witness so as to render his evidence doubtful in any manner.
The PW5 Dr.Narendragiri Gosai in his evidence Exh.37 has deposed that on 26th March 2008, he was on duty as a Medical Officer at the Primary Health Center, Khanpur. At that time at around 10:30 in the morning, the accused Mangalbhai Pratapbhai Pagi was brought for medical examination by the Police Constable Kantibhai Rumabhai, Buckle No.893. The PW5 has deposed that he had examined the accused and a certificate Exh.38 was issued. In his cross-examination he has deposed that no injuries were found on the body of the accused.
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R/CR.A/928/2009 CAV JUDGEMENT The PW6 Dr.Pikesh Modi in his evidence Exh.40 has deposed that on 22nd March 2008, he was on duty as a Medical Officer at the Cottage Hospital, Lunavada. At that time at around 4 O'clock in the evening, a girl by name Radhaben aged 8 years was brought at the hospital without a police yadi. The PW6 was informed by the father that her daughter was a victim of rape. The PW6 has deposed that he, in turn, informed the PSO Mr.K.G.Chauhan, Buckle No.82, Khanpur Police, regarding the same. At around 7 O'clock in the evening the PSI sent a yadi for the medical examination of Radhaben. He has deposed that he had examined the victim at around 7:30 in the evening. He has deposed that there was a scratch of 0.5 cm over right side of the nose reddish in colour. Two bite marks were found on the right cheek, light bluish and red in colour. The victim complained of pain on the right cheek, left thigh and on both forearms at the elbow joint. He has deposed that the two labia majora were found slightly swollen. There was a white coloured discharge from the vagina. The hymen was found torn. He has deposed that there was no bleeding from the private part. He has deposed that the victim was sent for the medical examination to the higher center for P.I.V. examination and speculum examination. He has Page 18 of 57 R/CR.A/928/2009 CAV JUDGEMENT deposed that he had issued a certificate regarding the injuries found on the private parts of the victim Exh.41. In his evidence, he has deposed that the injuries which were noticed on her private part can be caused if any person has forcible sexual intercourse. In his cross-examination, he has deposed that along with the victim, her father, her mother and other relatives had come to the hospital. He has deposed that after the medical examination was carried out by him, the victim was examined by the Gynecologist Dr.Jignesh Lalitchandra Ravat. He has further deposed in his cross-examination that the white discharge from the vagina can be due to some disease or also due to extreme heat. He has deposed that the reason for the hymen to get torn could be cycling or could be anything else also. The external examination of the victim did not reveal any bleeding. He has deposed that the swelling which was noticed can be due to heat or for any other reason.
The PW7 Kaliben Rupabhai is the mother of the victim. The PW7 in her evidence Exh.46 has deposed that she has four sons and two daughters. Radha, the victim, is her third child and had studied upto IIIrd Std. They all had gone to reap the crop of wheat at the farm on 21 st March 2008 and had returned home thereafter. It was a festival of holi on the date of the Page 19 of 57 R/CR.A/928/2009 CAV JUDGEMENT incident. The holi was to be lit in a farm just nearby their house. She has deposed that her daughter and son were playing near the house. Her daughter Radha was around 9 years of age at the time of the incident. She has deposed that while at home, his son Raju and her other son Mahesh came home carrying Radha. She was informed by her sons that Manga had made good his escape by leaving Radha. She has deposed that the accused Manga was present in the court. The PW7 has further deposed that on inquiring with Radha, she was informed that Manga, the accused had removed her clothes and had committed the crime. Radha further stated that the accused had gagged her mouth. Radha had sustained injuries on her mouth, cheek and on her body. Radha was not able to pass urine. Thereafter, many persons had gathered at the house of the PW7 and they all were informed about the incident. Radha was taken to the Lunavada Hospital. The PW7 thereafter lodged a complaint at the police station. She has deposed that Radha informed her that Manga took her to the field, saying that he would buy her a chocolate. She has deposed that Radha also conveyed to her that the accused threatened to kill her if she would disclose anything about the act to any other person. She has deposed that the Police Officer of Khanpur Police Station had come to the Lunavada Page 20 of 57 R/CR.A/928/2009 CAV JUDGEMENT Hospital for recording the statement. The treatment of Radha continued for 20 days. The clothes worn by Radha at the time of the incident were collected by the Khanpur Police. She has deposed that Radha was first taken to the Lunavada Hospital and thereafter she was examined at the Godhra Civil Hospital. She has also deposed that Radha was taken to the Khanpur Hospital, but over there she was told to take Radha to the Lunavada Hospital. In her cross-examination, she has deposed that Radha was taken to the hospital next day in the afternoon. She has deposed that the doctor resided in their village. She has deposed that in cases of emergency the doctor would even visit their house. She has deposed that the village Vadagam is at a distance of 2 kms. from their village and there is a Government dispensary at the village Vadagam. There are about 5 to 6 Government doctors at the village Vadagam. She has deposed that nearby her village there is a village by name Vatanamuvada and there are doctors at the village Vatanamuvada too. If any person residing in the village needs the services of the doctors, then they are available from the nearby villages. She has further deposed that there are Chhakdas, Rickshaws, Jeep etc. in the village. The younger brother of her husband also owns a motorcycle. There is a facility of telephone also in the village. The brothers of her Page 21 of 57 R/CR.A/928/2009 CAV JUDGEMENT husband possesses the mobile phones. She has deposed that if anyone in the family falls sick, then the doctor is called up from the mobile phone. She has deposed that one of her relatives also owns a Tata make vehicle. She denied the suggestion given to her that the house of the accused is situated near her house. She deposed that the house of the accused is situated on their street but a little far from her house. She denied the suggestion that her family members and the family of the accused were having good relations. She also denied the suggestion given to her that the accused was doing labour work at Ahmedabad. She denied the suggestion given to her that the accused used to help her family monetarily. She denied the suggestion given to her that in the past the accused had given Rs.8,000/- as a help to her family. She also denied the suggestion that for the second time also the accused had extended help to her family by giving them Rs.6,000/-. She denied the suggestion given to her that the accused had given bullocks to her family. Bhuri happens to be the elder daughter of this witness. She denied the suggestion given to her that the accused used to frequently visit her house and helped the family which was not liked by her husband. She denied the suggestion given to her that her husband had a doubt that the accused wanted to get married Page 22 of 57 R/CR.A/928/2009 CAV JUDGEMENT with their daughter Bhuri. She also denied the suggestion that the people in the village started talking about the illicit relationship between the accused and her daughter Bhuri. She has deposed that her husband had informed an MLA regarding the incident. She has deposed that they had reached the hospital from the police station within an hour and the officer had also accompanied them. They had to wait for four to five hours before the doctor arrived at the hospital. She has deposed that as the doctor had not arrived, it was decided that if necessary, Radha be taken to the Godhra Hospital. Except this, nothing substantial could be elicited through the evidence of this witness.
The PW8 Radha is the victim. It appears that few questions were put to her by the learned Additional Sessions Judge so as to test her competency to depose, and after being satisfied with the capacity of the PW8 to depose, she was administered the oath. The PW8 in her evidence has deposed that the children in the village go out to play at the time of holi. She had also gone to play on the day of the holi. She has deposed that holi was lit in the agricultural field where her house is situated. She has deposed that when she had gone to see the holi, Mangaliya, the accused, asked her to accompany Page 23 of 57 R/CR.A/928/2009 CAV JUDGEMENT him to get a chocolate. She has deposed that thereafter she was taken in thick bushes. A question was put to her as to what had happened on her cheek, and in reply, it was stated that she was given a bite by Mangaliya. Thereafter it has been noted by the trial Judge in her evidence that the PW8 had got confused and was unable to give any answers to the questions which were put to her in her examination-in-chief. In her cross-examination, a question was put to her, whether any relatives were there when she had gone to see the holi. However, the PW8 was unable to give any reply. It appears that four to five questions were put to her in her cross- examination, but the victim was unable to answer those questions.
The PW9 Chandubhai Talpada has been examined by the prosecution vide Exh.56. The PW9 has deposed that between 9th May 2005 and 23rd June 2008 he was serving as a Mamlatdar and Executive Magistrate at Khanpur. He has deposed that at that time the Khanpur Police had brought the victim Radhaben and her mother Kaliben at his office on 26 th March 2008. The PW9 was requested by the police to record the statement of the victim Radha. The PW9 was informed by the police that as the offence was one of rape, it was Page 24 of 57 R/CR.A/928/2009 CAV JUDGEMENT necessary and important to record the statement of the victim. He has deposed that thereafter he had inquired with Radha regarding the incident. He has deposed that whatever was stated by Radha was reduced into writing. He has deposed that he had brought the original statement and produced the same. Radha had put thumb impression of her right hand in the statement and the PW9 had also put his signature on the statement. It appears that at that time the defence raised an objection regarding the admissibility of such a statement in evidence. In his cross-examination, he has deposed that he was performing duty as a Mamlatdar & Executive Magistrate since the year 2001. He has deposed that he was mainly concerned with the maintenance of law and order. He has deposed that he has also to record the dying declaration. He has deposed that he is not supposed to record the statements of any witness in general. However, he clarified that if there is any requirement, then he may record the statement. He has deposed that if there is any requirement to record the statement, the police would bring such person before him to record the statement. He has deposed that he may also refuse to record the statement if he would not find it necessary. He has deposed that while recording the statement of Radha, he did not feel that if he would not record, then she might not be Page 25 of 57 R/CR.A/928/2009 CAV JUDGEMENT available in future.
The PW10 Somabhai Nathabhai Solanki in his evidence has deposed that he was serving as an Assistant Teacher at Veraiya Primary School since 1988, and in the year 1992, he was promoted as the Principal of the school. He has deposed that Radhaben Rupabhai, i.e. the victim, was studying in his school. He has further deposed that the name of the victim figures in the general register at serial no.398. He has further deposed that on the strength of the Guardian Certificate No.363, Radhaben was admitted on 26 th June 2003 in the Ist Std. He has deposed that the name of Radhaben continuous to figure in the register. According to the rules framed by the Government, for a period of 14 years the name cannot be deleted. He has deposed that the police had asked for the birth certificate which was issued by him. In the birth certificate, the date and the year of birth has been shown to be 1 st May 1998. Nothing substantial could be elicited through the cross- examination of this witness so as to render the evidence of the PW10 doubtful in any manner.
The PW11 Maheshbhai Babubhai Pagi has been examined as a child witness. The trial Judge, after being satisfied with the Page 26 of 57 R/CR.A/928/2009 CAV JUDGEMENT competency of the PW11 to depose, administered the oath and permitted the prosecution to examine him as a witness. The PW11 has deposed that he was also known as Tino over and above his name Mahesh. His house is situated at village Veraiya. His uncle, aunty and his parents all stay together in the house. He has deposed that he was studying at Vadagam Primary School. He has further deposed that the incident had occurred on the day of holi. On that day, he had gone to the shop of one Ramanbhai to buy biddies for his father. While he was on his way to the shop of Ramanbhai, he saw many people adding wood in the pyre, which was to be lit in the night to celebrate the festival of holi. He has deposed that at that time he saw the accused telling Radha to come along with him as he would buy a chocolate for her. Thereafter, the accused took Radha to a nearby field and he heard the cries thereafter. He has deposed that he heard Radha telling the accused to leave her otherwise her mother would beat. He has deposed that the place where the incident had occurred was opposite a well in an agricultural field of one Vanand. He has deposed that thereafter he called Raju. i.e. the brother of Radha. He has deposed that both together, i.e. he himself and Raju, asked the accused to leave Radha, and saying so, the accused ran away. Thereafter, Radha was made to wear her pyjama. Her brother Page 27 of 57 R/CR.A/928/2009 CAV JUDGEMENT Raju caught hold of her hands and picked her up and brought Radha at home. He has deposed that he disclosed about the incident before his uncle and aunty. The PW11 identified the accused as one sitting in the court. Except few minor contradictions in the form of omissions, nothing substantial could be elicited through the evidence of the PW11 so as to brand the PW11 as a got-up witness or unreliable in any manner.
The PW12 Mohanbhai Manilal Vanand has been examined as the owner of the field where the incident had occurred. The PW12 in his evidence Exh.65 has deposed that at the time of the incident he had cultivated the crop of jowar. He has deposed that some part of the jowar was damaged, broken and some of the plantation of jowar had bent down.
The PW13 Jignesh Ganeshbhai Amin is the Investigating Officer. The PW13 in his evidence Exh.67 has deposed that on 22nd March 2008 he was on duty at the Khanpur Police Station. He has deposed that the doctor at the Cottage Hospital, Lunawada, had sent the complainant to the police station to lodge her complaint regarding rape committed by the accused on her 9 years' old daughter by name Radha on 21 st March Page 28 of 57 R/CR.A/928/2009 CAV JUDGEMENT 2008. He has deposed that the complaint was taken down in writing as dictated by the mother of the victim. He has further deposed that he had reached the Cottage Hospital, Lunawada and had handed over a yadi to the doctor for the purpose of carrying out the medical examination of the victim. He has deposed that as Radha was a minor, he had recorded her statement in a questionnaire form. He has deposed that the statement of the father of the victim was also recorded as he was present at the hospital. He has deposed that the clothes worn by the victim were collected by drawing a panchnama. He has deposed that on the next day he had gone to village Veraiya, and in presence of the two panch-witnesses, Mahesh @ Tino had pointed out the place of occurrence which was an agricultural field of one Mohanbhai Manilal Vanand. He has deposed that on 23rd March 2008 at around 18:15 hours, the accused was arrested and the arrest panchnama was drawn in presence of the panch-witnesses. The accused was arrested nearby from his house at village Veraiya. The clothes worn by the accused at the time of committing the offence were collected in presence of the panch-witnesses. On 26th March 2008, the accused expressed his willingness to show something, and accordingly, the two panch-witnesses were called at the police station. The PW13 alongwith the two Page 29 of 57 R/CR.A/928/2009 CAV JUDGEMENT panch-witnesses, the accused and other police officials reached at the place led by the accused. He has deposed that the medical certificates of the examination of the victim by the doctors were collected. He has also deposed that the arrangements were made for recording of the statement of the victim through the Executive Magistrate. Nothing substantial could be elicited through the cross-examination of the PW13 so as to render his evidence doubtful or unreliable in any manner.
Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in this appeal is, whether the trial Court committed any error in finding the accused guilty of the offence of rape of a minor punishable under Section 376(2)(f) of the Indian Penal Code.
The picture that emerges on a close scrutiny of the evidence on record is, that on the date of the incident i.e. 21 st March 2008, the villagers of village Veraiya were preparing themselves to celebrate the festival of holi by lighting a pyre. It appears that the accused was not an alien or was not unknown to the family of the victim. It is not in dispute that the accused was also residing in the same village. Taking advantage of the Page 30 of 57 R/CR.A/928/2009 CAV JUDGEMENT innocence and tender age of the victim, the accused lured her to accompany him with an offer to buy a chocolate. It appears that the victim fell in the trap of the accused, as a result the accused gagged her mouth and took her in a nearby field of the PW12. The evidence on record, more particularly, the version of the victim herself suggests that the accused, to satisfy his sexual lust, administered force on the victim and had a forcible sexual intercourse. The victim, in her evidence, has deposed that the accused inflicted a bite on her cheek, which is fully corroborated by the medical evidence on record. The medical evidence also reveals that there was an abrasion of 0.5cm x 0.1cm over the right side of the nose oblique black in colour. It appears that the victim was first spotted by the PW11 Mahesh on hearing her cries, and the PW11 in turn, informed about the same to the brother of the victim viz. Raju. Both the boys immediately rushed at the place of the incident and were able to save the victim from further sexual assault. The victim was thereafter brought at home. It appears that the family members were informed about the incident. After giving a lot of thought and considering the nature of the offence committed with the minor daughter, the mother first thought fit to take the victim to the Cottage Hospital at Lunawada. On reaching the Cottage Hospital, Lunawada, the doctor on duty Page 31 of 57 R/CR.A/928/2009 CAV JUDGEMENT was informed that her daughter had been raped. The history narrated by the victim herself alongwith her mother was noted down by the doctor on duty in the medical papers. Thereafter, the PW6 Dr.Pikesh Modi thought fit to inform the Khanpur Police Station regarding the incident, and that is how the police machinery was put in motion. On the next day, i.e. on 22 nd March 2008, the PW7 Kaliben, the mother of the victim, lodged a complaint at 18:30 hours. It appears that the victim was first examined medically by the PW6 Dr.Pikesh Modi, who, at the relevant point of time, was serving as a Medical Officer at the Cottage Hospital, Lunawada. In the certificate Exh.41 issued by the PW6, the history of rape by the accused has been noted. Exh.41 further reveals that the hymen was found to be torn and the labia majora was found to be swollen. It appears that the PW6 Dr.Modi referred the victim for further medical examination to the higher centre. The further medical examination of the victim was carried out at the General Hospital, Godhra. In the medical certificate Exh.23 issued by the Medical Officer of the General Hospital, Godhra, it has been stated that the hymen was not torn and there was no evidence of any vaginal penetration. The medical certificate Exh.23 further revealed that the vulva swab did not show presence of any live or dead spermatozoa.
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R/CR.A/928/2009 CAV JUDGEMENT Mr.Darji very strenuously submitted before us that the medical evidence on record is not consistent. Mr.Darji submitted that according to the PW3 Dr.Hamirani, there was no evidence of any vaginal penetration, whereas in the opinion of the PW6 Dr.Modi, the hymen was also torn and swelling was also found on the labia majora. There was a white coloured discharge noticed from the vagina. Thus, according to Mr.Darji, in view of such conflicting opinions, the benefit of doubt ought to have been given to the accused by the trial Court.
We are not impressed by such submission of Mr.Darji for the simple reason that the entire case of the prosecution cannot be rejected in light of some conflict of opinion between the two doctors. We should be mindful of the fact that here is a case of a victim who was 9 years' old at the time of the incident. There was no reason worth the name for the victim or the family members of the victim to falsely implicate the accused at the cost of reputation of the family. Immediately before both the doctors, the name of the accused was disclosed as the assailant and the same has been noted in both the certificates i.e. Exh.23 and Exh.41. Page 33 of 57
R/CR.A/928/2009 CAV JUDGEMENT The medical evidence has never been considered to be substantive evidence of the charge, but has been accepted as corroborative of the charge. It has been accepted since long that knowledge of medicines and human body is a matter of science, and hence, courts have treated expert medical opinion with respect. A medical expert cannot be allowed to give his opinion on matters which are within the province of the courts to decide. Indeed, it is expected of courts that they would not surrender their will, independence or judgment to an expert, and would, in all cases in which expert evidence is adduced before it, after giving it such weight as they may think it deserves, make up their own mind upon an issue in respect of which the expert testimony has been given. The absence of external injuries may or may not indicate absence of physical violence, and absence of physical violence, by itself, does not mean that sexual intercourse has not been committed forcibly. A force need not be actual physical force. A threat of violence may, at times, prompt submission of the prosecutrix to sexual act and may not cause any physical injury. Similarly, the prosecutrix, because of age, physical capacity or other circumstances, may not be in a position to offer resistance or struggle and, therefore, may not suffer any bodily injury. Page 34 of 57
R/CR.A/928/2009 CAV JUDGEMENT In the present case, both the doctors noted two external injuries on the face and one of those was a bite mark on the cheek of the victim. The victim, while narrating the history, has specifically stated that the accused had kissed her two to three times and at that time the accused gave a bite on her cheek. According to the opinion of the PW6 Dr.Modi, the labia majora was also found swollen and reddish. White discharge was found from the vagina and the hymen was also found torn. We are indeed taken by surprise as to how come that these injuries were not noticed by the Medical Officer at the General Hospital, Godhra. The serological test report Exh.75 indicates that semen stains were found on the muddamal article no.4, i.e. the pant of the accused, of 'B' group matching with the blood group of the accused. The vulva swab as well as the vaginal swab showed the presence of semen of 'B' group. There may not have been full penetration, but it definitely appears from the evidence on record that there was ejaculation of the semen with partial or slight penetration.
Section 375 of the Indian Penal Code reads as follows:
"A man is said to commit 'rape' who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six Page 35 of 57 R/CR.A/928/2009 CAV JUDGEMENT following description:
First: Against her will.
Secondly : Without her consent.
Thirdly: With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly: With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is a another man to whom she is or believes herself to be lawfully married.
Fifthly: With her consent, when at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly: With or without her consent, when she is under sixteen years of age."
Prosecutrix was less than 12 years of age. The first Page 36 of 57 R/CR.A/928/2009 CAV JUDGEMENT explanation to Section 375 reads as follows:
"Explanation : Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape." A bare perusal of explanation to Section 375 clearly shows that penetration is necessary to constitute the sexual intercourse to the offence of rape. From a reading of the aforesaid provisions, it is clear that no offence under Section 376 can be made out unless there was penetration to some extent. In the absence of any penetration, the offence would not fall within the four corner of Section 375 of the Indian Penal Code. However, it is not necessary that the entire sexual act should be completed. Mere penetration of the male organ within the private part of the woman with or without any emission of semen is sufficient to constitute a rape.
Penetration of the male organ completely, partially or slightly would be enough to constitute an offence within the meaning of Sections 375 and 376 of IPC. This point stands decided by the Apex Court in State of U.P. v. Babul Nath : (1994)6 SCC 29 .
In Tarkeshwar Sahu v. State of Bihar, (2006)8 SCC 560, the Supreme Court dealt with the word penetration in great detail. It held as follows:
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R/CR.A/928/2009 CAV JUDGEMENT "13. In order to constitute rape, what Section 375, IPC requires is medical evidence of penetration and this may occur and the hymen remain intact. In view of the Explanation to Section 375, mere penetration of penis in vagina is an offence of rape. Slightest penetration is sufficient for conviction under Section 376, IPC. xxx xxx xxx xxx
21. In view of the catena of judgments of the Indian and English Courts, it is abundantly clear that slight degree of penetration of the penis in the vagina is sufficient to hold the accused guilty for the offence under Section 375, IPC punishable under Section 376, IPC."
The Apex Court in Aman Kumar v. State of Haryana, 2004 Cri.L.J. 1399 has held as under:
"7. Penetration is the sine qua non for an offence of rape. In order to constitute penetration, there must be evidence clear and cogent to prove that some part of the virile member of the accused was within the labia of the pudendum of the woman, no matter how little (see Joseph Lines, IC & K 893). It is well known in the medical world that the examination of smegma loses all importance after twenty-four hours of the performance of the sexual intercourse (See S.P. Kohli (Dr.) v. High Court Page 38 of 57 R/CR.A/928/2009 CAV JUDGEMENT of Punjab and Haryana). In rape cases, if the gland of the male organ is covered by smegma, it negatives the possibility of recent complete penetration. If the accused is not circumcised, the existence of smegma around the corona gland is proof against penetration, since it is rubbed off during the act. The smegma accumulates if no bath is taken within twenty-four hours. The rupture of hymen is by no means necessary to constitute the offence of rape. Even a slight penetration in the vulva is sufficient to constitute the offence of rape and rupture of the hymen is not necessary. Vulva penetration with or without violence is as much rape as vaginal penetration."
Mr.Darji also submitted that the accused was also subjected to medical examination and the medical certificate Exh.38 would indicate that there were no external injuries on the body of the accused, including his private part.
We are not impressed even by this submission of Mr.Darji as it is not necessary that the male organ must suffer injury when sexual act is committed by a fully developed male with a girl of a tender age. Lack of injuries on the male organ of the accused as well as lack of any major injuries on the prosecutrix is not conclusive of the fact that penetration did not take place. Each case has to be decided on its own fact. The evidence in this case reveals that after the accused had Page 39 of 57 R/CR.A/928/2009 CAV JUDGEMENT undressed the prosecutrix, he then took off his pant, made the prosecutrix lie down on the ground and climbed on the top of her. On hearing her cries, the PW11 Mahesh @ Tino rushed towards the spot and saw the accused sexually assaulting the victim and thereafter he, in turn, informed the victim's brother Raju, and both together saved the victim from being further assaulted sexually. The accused immediately got up, wore his pant and ran away. Therefore, probably the accused did not have time to complete the sexual act but the penetration, even if slight, had already taken place, the offence stood completed. The redness and the swelling on the labia majora on the prosecutrix is a pointer in this regard, which is in total harmony with the statement of the prosecutrix. Therefore, we are of the considered opinion that the offence was complete.
We have, accordingly, reached to the conclusion that the trial Court rightly found the accused guilty of having committed an offence punishable under Section 376 of the Indian Penal Code, and since the prosecutrix was less than 12 years of age, he has been rightly found guilty by the trial Court of the offence punishable under Section 376(2)(f) of the Indian Penal Code.
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R/CR.A/928/2009 CAV JUDGEMENT The statement of the prosecutrix is absolutely clear that the accused threatened her that he would kill her if she would disclose about the act to any other person.
We have no reason to disbelieve this statement of the prosecutrix and, therefore, the accused is also rightly held guilty of having committed an offence punishable under Section 506(2) of the Indian Penal Code.
We are not impressed by the submission canvassed on behalf of the appellant that in view of delay of around 24 hours in lodging the complaint the entire case of the prosecution becomes doubtful. It is true that the incident occurred on 21 st March 2008 at about 8 O'clock in the night, whereas the complaint was lodged on the next day at 18:30 hours by the mother of the prosecutrix. Delay in lodging the complaint in rape cases in India does not raise inference that the complaint was false. The reluctance to go to police is because of society's attitude towards such victim. In Indian society, the victims of rape ordinarily consult relatives and are hesitant to approach the police since it involves the question of morality and chastity of a woman. In the present case, the victim was 9 years' old at the time of the incident. In such circumstances, Page 41 of 57 R/CR.A/928/2009 CAV JUDGEMENT the victim and her family members have to struggle with several situations before deciding to approach the police, more so, when the culprit happens to be residing in the same village and knowing the family of the victim very well. Therefore, the belated disclosure about the rape by the mother of the victim cannot be mitigated against her version.
There is one more aspect of the matter which deserves consideration as it gives rise to a question of law. It appears that after the complaint was lodged by the mother of the victim and the statement of the victim was recorded by the police, the police took the victim before the Executive Magistrate and requested the Executive Magistrate to record the statement of the victim. It also appears that such statement was recorded by the Executive Magistrate, Khanpur on 26th March 2008. In the course of the trial, the statement of the victim recorded by the Executive Magistrate, Khanpur, was sought to be admitted in evidence, but in the wake of the objection raised by the counsel appearing for the accused, it was given Mark-'A'. The trial Court, while recording such objection raised on behalf of the accused, observed that the evidentiary value of such a statement recorded by the Executive Magistrate of the victim would be taken into Page 42 of 57 R/CR.A/928/2009 CAV JUDGEMENT consideration at the final stage while deciding the guilt of the accused. It also appears from the judgment of the trial Court that the trial Court did take into consideration the entire statement of the victim dated 26th March 2008 recorded by the Executive Magistrate, Khanpur. In the statement dated 26 th March 2008, the victim has narrated about the incident which had occurred on 21st March 2008.
The question that falls for our consideration is, what evidentiary value could be attached to such a statement. We are considering this issue keeping in mind that the statement Mark-'A' is not a statement recorded by any Judicial Magistrate or a Metropolitan Magistrate under Section 164 of the Code of Criminal Procedure. At the same time, it could not be considered as a statement recorded under Section 161 of the Code of Criminal Procedure. There is no provision of law in the Criminal Procedure Code which empowers an Executive Magistrate to record a statement of a victim of rape. It is no doubt true that an Executive Magistrate has been empowered to record a dying declaration of the victim vide Regulation No.173 as contained in the Gujarat Police Manual, 1975 Vol.III 1st Edition.
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R/CR.A/928/2009 CAV JUDGEMENT We are of the view that the statement which was recorded by the Executive Magistrate (Mark-'A') dated 26 th March 2008 could be termed as a previous statement of the victim and it could have been relied upon for the limited purpose of contradicting or corroborating the substantial evidence of the victim led before the Court. We may give one simple illustration. Many a times, the history of the victim is recorded by a doctor. Although a doctor is not empowered or supposed to record a statement of any victim of any offence, yet if the history of the assault or incident is noted by a doctor as disclosed by a victim, then even such a history could be termed as a previous statement of the victim and the victim could be contradicted or corroborated with such a previous statement. When a previous statement is used in order to contradict a witness, it does not become substantive evidence, it does not take the place of evidence which he has actually given at the trial, it merely serves to discredit him or to set him up as a witness of truth. Even the statement of a witness for prosecution, made under Section 164 of the Code of Criminal Procedure can be used only to discredit the evidence given by him in court and not for any other purpose. Such a statement cannot be treated as a substantive piece of evidence of the Page 44 of 57 R/CR.A/928/2009 CAV JUDGEMENT facts stated. It is an improper use of such statements if they are used as substantive pieces of evidence. Thus, we are of the opinion that the statement recorded by the Executive Magistrate of the victim at the instance of the police cannot be said to be per se without any evidentiary value. It is difficult for us to take the view that the Executive Magistrate had no authority worth the name to record such a statement. In the aforesaid context, the word "investigation" as defined under Section 2(h) of the Code of Criminal Procedure deserves to be looked into :
"'investigation' includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf."
As against the aforesaid, it is also necessary to look into the provisions of Section 157 of the Evidence Act, which reads as under :
"157. Former statements of witness may be proved to corroborate later testimony as to same fact. - In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, Page 45 of 57 R/CR.A/928/2009 CAV JUDGEMENT or before any authority legally competent to investigate the fact, may be proved."
In Section 157 of the Evidence Act, the words are 'legally competent to investigate the fact'. The word 'investigate' has not been defined in the Indian Evidence Act; it has not been defined in the Indian General Clauses Act either; it has, however, been defined by Section 2(h) of the Code of Criminal Procedure aforenoted. The word thus defined in the Code of Criminal Procedure is a word of narrow import and refers to the proceedings of a police officer directed to the collection of evidence. We do not find any warrant for the view that the word 'investigate' used in Section 157 of the Evidence Act should be understood in the narrow sense in which the word is used in the Code of Criminal Procedure. We think the word 'investigate' occurring in Section 157 must be taken in its ordinary dictionary sense of ascertainment of facts, sifting of materials, search for relevant data; it merely means in this section a fact finding process and is not confined to one conducted by the police for the collection of evidence. As long as an authority legally competent to deal with the matter investigates, the requirement of Section 157 appears to be satisfied. Therefore, a statement made before any authority Page 46 of 57 R/CR.A/928/2009 CAV JUDGEMENT which has the legal competence to investigate the fact, can be proved to corroborate present testimony. It seems to us that a very extended meaning was impliedly accorded to the words "legally competent to investigate" by the Supreme Court in the case of Bhagwan Singh v. The State of Punjab, AIR 1952 SC
214. The question there was, whether the statement made before the committing Magistrate was available to corroborate the evidence-in-chief of a witness in the Court of Session who had resiled completely in cross-examination. Apart from the question of admitting the statement under Section 288 (old Code) of the Code of Criminal Procedure, the point was, whether the statement made before the committing court could be availed of to corroborate the evidence in chief of the witness concerned. It was observed :
"...it (the prosecution) was entitled to use the former statement (statement before the committing court) either to contradict what was said in cross-examination or to corroborate what was said in chief. In either event, Section 288 of the Criminal Procedure Code could be used to make the former statement substantive evidence because what the section says is "subject to the provisions of the Indian Evidence Act" and not subject to any particular section of it. Section 157 is as much a provision of the Indian Evidence Act as Section 145 and if the former statement can be brought in under Section Page 47 of 57 R/CR.A/928/2009 CAV JUDGEMENT 157 it can be transmuted into substantive evidence by the application of Section 288."
It is quite plain that in order that a previous statement before the Executive Magistrate could be availed of under Section 157 of the Evidence Act, the conditions laid down in that section must be fulfilled. The statement made by the victim in the present case could definitely be termed as a statement made before an authority legally competent to investigate the fact. That being the position, it seems plain that the word 'investigate' used in Section 157 must be taken as a word of wide import and the restricted meaning given to the word 'investigation' in the Code of Criminal Procedure cannot be attached to it.
Mr.Darji also strenuously submitted before us that considering the medical evidence on record, more particularly, the medical certificate Exh.23, it could be said that there was an attempt to commit rape but no actual rape could be said to have been committed. According to Mr.Darji, an attempt to commit rape is punishable under Section 511 of the Indian Penal Code. We are not impressed even by this submission of Mr.Darji. What is an attempt and what is actual rape, has been Page 48 of 57 R/CR.A/928/2009 CAV JUDGEMENT explained by the Supreme Court in the case of Koppula Venkat Rao v. State of A.P., AIR 2004 SC 1874. In the said case, the victim along with her friend and two others started by walk from their village to go to a nearby place for witnessing a movie. They reached cross-roads of the village where the accused along with his friends who were going to Borrampalem on their bicycles met them and gave lift to the victim girl and her friends and all of them witnessed the picture at a movie hall. At the time of return accused nourished an idea of quenching his lust by committing sexual intercourse with the victim, invited her to board his bicycle and the victim girl agreed to accompany him and sat on his bicycle and the accused rode the bicycle at high speed and reached near a cattle shed, stopped the bicycle dragged the victim by using criminal force into the cattle shed took out her sari, and got on top of her before actual intercourse ejaculated. The accused left the victim on hearing some sound and went away along with his bicycle. In the facts of that case, the Supreme Court made the following observations, which are worth noting :
"9. A culprit first intends to commit the offence, then makes preparation for committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has committed the offence, if it fails due to reasons Page 49 of 57 R/CR.A/928/2009 CAV JUDGEMENT beyond his control, he is said to have attempted to commit the offence. Attempt to commit an offence can be said to begin when the preparations are complete and the culprit commences to do something with the intention of committing the offence and which is a step towards the commission of the offence. The moment he commences to do an act with the necessary intention, he commences his attempt to commit the offence. The word "attempt" is not itself defined, and must, therefore, be taken in its ordinary meaning. This is exactly what the provisions of Section 511 require. An attempt to commit a crime is to be distinguished from an intention to commit it, and from preparation made for its commission. Mere intention to commit an offence, not followed by any act, cannot constitute an offence. The will is not to be taken for the deed unless there be some external act which shows that progress has been made in the direction of it, or towards maturing and effecting it. Intention is the direction of conduct towards the object chosen upon considering the motives which suggest the choice. Preparation consists in devising or arranging the means or measures necessary for the commission of the offence. It differs widely from attempt which is the direct movement towards the commission after preparations are made. Preparation to commit an offence is punishable only when the preparation is to commit offences under Section 122 (waging war against the Government of India) and Section 399 (preparation to commit dacoity). The dividing line between a mere preparation and an attempt is sometimes thin and has to be decided on the facts of each case. There is a greater Page 50 of 57 R/CR.A/928/2009 CAV JUDGEMENT degree of determination in attempt as compared with preparation.
10. An attempt to commit an offence is an act, or a series of acts, which leads inevitably to the commission of the offence, unless something, which the doer of the act neither foresaw nor intended, happens to prevent this. An attempt may be described to be an act done in part execution of a criminal design, amounting to more than more preparation, but falling short of actual consummation, and, possessing, except for failure to consummate, all the elements of the substantive crime. In other words, an attempt consists in it the intent to commit a crime, falling short of, its actual commission or consummation/completion. It may consequently be defined as that which if not prevented would have resulted in the full consummation of the act attempted. The illustrations given in Section 511 clearly show the legislative intention to make a difference between the cases of a mere preparation and an attempt.
11. In order to find an accused guilty of an attempt with intent to commit a rape, Court has to be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person, but that he intended to do so at all events and notwithstanding any resistance on her part. Indecent assaults are often magnified into attempts at rape. In order to come to a conclusion that the conduct of the accused was indicative of a determination to gratify his Page 51 of 57 R/CR.A/928/2009 CAV JUDGEMENT passion at all events, and in spite of all resistance, materials must exist. Surrounding circumstances many times throw beacon light on that aspect.
12. The sine qua non of the offence of rape is penetration, and not ejaculation. Ejaculation without penetration constitutes an attempt to commit rape and not actual rape. Definition of "rape" as contained in Section 375 IPC refers to "sexual intercourse" and the Explanation appended to the Section provides that penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Intercourse means sexual connection. In the instant case that connection has not been established. Courts below were not correct in their view.
13. When the evidence of the prosecutrix is considered in the proper perspective, it is clear that the commission of actual rape has not been established. However, the evidence is sufficient to prove that attempt to commit rape was made. That being the position, conviction is altered from Section 376 IPC to Section 376/511 IPC. Custodial sentence of 3 and '/2 years would meet the ends of justice. The accused who is on bail shall surrender to custody to serve remainder of his sentence."
Applying the principles of law explained by the Supreme Court as aforenoted, it could not be said in the present case Page 52 of 57 R/CR.A/928/2009 CAV JUDGEMENT that there was no penetration. The injuries sustained by the victim definitely suggests atleast partial or slight penetration, which is sufficient to complete the offence.
Mr.Darji also tried to convince us that the accused was 21 years of age at the time of the incident. Considering the age of the accused, it would be extremely harsh to confirm the sentence of life imprisonment imposed by the trial Court. We are not impressed even by this submission of Mr.Darji.
In State of Karnataka v. Raju, 2007 Cri.L.J. 4700, the Supreme Court held as follows:
"6. It needs no emphasis that the physical scar may heal up, but the mental scar will always remain. When a woman is ravished, what is inflicted is not merely physical injury but the deep sense of some deathless shame. An accused cannot cling to a fossil formula and insist on corroborative evidence, even if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable. Judicial response to human rights cannot be blunted by legal jugglery.
7. It is to be noted that in Sub-section (2) of Section 376, IPC more stringent punishment can be awarded taking into account the special features indicated in the said sub-section. The present case is covered by Section Page 53 of 57 R/CR.A/928/2009 CAV JUDGEMENT 376(2)(f), IPC i.e. when rape is committed on a woman when she is under 12 years of age. Admittedly, in the case at hand the victim was 10 years of age at the time of commission of offence.
8. The measure of punishment in a case of rape cannot depend upon the social status of the victim or the accused. It must depend upon the conduct of the accused, the state and age of the sexually assaulted female and the gravity of the criminal act. Crimes of violence upon women need to be severely dealt with. The socio-economic status, religion, race, caste or creed of the accused or the victim are irrelevant considerations in sentencing policy. Protection of society and deterring the criminal is the avowed object of law and that is required to be achieved by imposing an appropriate sentence. The sentencing Courts are expected to consider all relevant facts and circumstances bearing on the question of sentence and proceed to impose a sentence commensurate with the gravity of the offence. The Courts must hear the loud cry for justice by the society in cases of the heinous crime of rape on innocent helpless girls of tender years, as in this case, and respond by imposition of proper sentence. Public abhorrence of the crime needs reflection through imposition of appropriate sentence by the Court. There are no extenuating or mitigating circumstances available on the record which may justify imposition of any sentence less than the prescribed minimum on the appellant. To show mercy in the case of such heinous crime would be a travesty of Page 54 of 57 R/CR.A/928/2009 CAV JUDGEMENT justice and the plea for leniency is wholly misplaced. The legislative mandate to impose a sentence, for the offence of rape on a girl under 12 years of age, for a term which shall not be less than 10 years, but which may extend to life and also to fine reflects the intent of stringency in sentence. The proviso to Section 376(2) IPC, of course, lays down that the Court may, for adequate and special reasons to be mentioned in the judgment, impose sentence of imprisonment of either description for a term of less than 10 years. Thus, the normal sentence in a case where rape is committed on a child below 12 years of age, is not less than 10 years' R.I. though in exceptional cases 'for special and adequate reasons' sentence of less than 10 years' R.I. can also be awarded. It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso particularly in such like penal provisions. The Courts are obliged to respect the legislative mandate in the matter of awarding of sentence in all such cases. Recourse to the proviso can be had only for 'special and adequate reasons' and not in a casual manner. Whether there exist any 'special and adequate reasons' would depend upon a variety of factors and the peculiar facts and circumstances of each case. No hard and fast rule can be laid down in that behalf of universal application.
These aspects were highlighted in Dinesh Alias Buddha v. State of Rajasthan : 2006 Cri.L.J. 1679 (paras 12-13).
9. The law regulates social interests, arbitrates Page 55 of 57 R/CR.A/928/2009 CAV JUDGEMENT conflicting claims and demands. Security of persons and property of the people is an essential function of the State. It could be achieved through instrumentality of criminal law. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the Courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a corner-stone of the edifice of 'order' should meet the challenges confronting the society. Friedman in his 'Law in Changing Society' stated that, 'State of criminal law continues to be - as it should be - a decisive reflection of social consciousness of society'. Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration."
Similar view was taken by the Supreme Court in Ramkripal v. State of M.P., 2007 Cri.L.J. 2302 and State of Page 56 of 57 R/CR.A/928/2009 CAV JUDGEMENT Punjab v. Rakesh Kumar, 2009 Cri.L.J. 396.
We find no good reason to take a sympathetic view in favour of the accused. There can be no misplaced sympathy with such a person. We do not find any infirmity worth the name in the judgment and order of conviction passed by the trial Court.
Resultantly, this appeal fails and is hereby dismissed. The order of conviction and sentence passed by the trial Court are hereby affirmed.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) MOIN Page 57 of 57