JUDGEMENT :-
1 This appeal by the State under S. 378(3) & (1) of the Criminal Procedure Code, 1973 (for short 'Cr. PC) is directed against the judgment, dated 5th January, 2001, in S.C. No. 70 of 1999 on the file of the Assistant Sessions Judge, Miryalguda, whereunder and whereby, the respondent/accused was found not guilty of the offence punishable under Section 376 of the Indian Penal Code, 1860 (for short 'IPC') and was acquitted.
2 The brief facts that are necessary for the disposal of the present appeal may be stated as follows :
The accused and P. Ws. 1 to 3 are residents of Vepulasingaram of Huzurnagar Mandal, Nalgonda District. P.W. 2 (victim), who is handicapped due to polio, is the daughter of P.Ws. 1 and 3. On 30th August, 1998, P.Ws. 1 and 3 left for coolie work and left P.W. 2 at house with instructions to see the house. P.W. 2 and other children played for some time on the terrace and after playing for some time, at about 4.00 p.m. when all other children were getting down, it was difficult for P.W. 2 to get down through the staircase as she was handicapped. At that time, the accused came there and she requested him to help her in getting down to the ground floor. Then the accused lifted her, took her into his house, laid her on a cot and committed rape. The children, who were present there, saw the incident by peeping from the side of the door curtain and informed the same to P.W. 1, father of the victim, after he returned from the coolie work. Thereafter, P.W. 1 went to the Police Station and lodged Ex. P. 1-complaint. P.W. 16-Sub-Inspector of Police, Huzurnagar Mandal, registered a case in Crime No. 96 of 1998 against the accused for the offence punishable under Section 376, IPC, recorded the statements of P.Ws. 1 to 3, seized the skirt and jacket of P.W. 2 in the presence of mediators and sent P.W. 2 to the Head Quarters Hospital at Nalgonda for treatment. P.W. 15 the then Civil Assistant Surgeon in the Nalgonda District Headquarters Hospital examined P.W. 2 on 1-9-1998 at about 12.10 p.m. and found abrasion on the right labia majora 1/2" x 1/4 " (inches) (scratch marks), examined pergina vagina and found hymen intact, tip of the little finger admitting, congestion present and sent vaginal slides taken for spermatozoa to Forensic Science Laboratory. Thereafter, the Circle Inspector of Police took up the investigation on 31-8-1998, visited the scene of occurrence in the presence of P.W. 10 and others and drafted Ex. P.17 panchanama. He examined P.Ws. 4 to 7, who were eye-witnesses to the incident, and arrested the accused on 4-9-1998, seized the lungi, said to have been worn by him at the time of the incident, and sent him to the Government Hospital, Huzurnagar, for potency test. He also gave requisition to the Judicial I Class Magistrate to record the statement of the child witnesses (P.Ws. 4 to 7) under Section 164, Cr. PC. After completion of investigation, he filed the charge-sheet.
3 The charge levelled against the accused is,
"on 30-8-1998 in the morning hours at Vepulasingaram Village. P.W. 2-Chedapangu Aruna, D/o. Anjaiah, age 12 years, was playing along with other children, after finishing her play near your house, she requested you to get her down from the steps, since she is a handicapped, on that you get her down, and took her to the house of L.W 2, there you laid her down, and committed rape on her, thereby you committed an offence punishable u/S. 376 of the Indian Penal Code and within my cognizance."
4 When the above charge was read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried.
5 In order to prove the charge, the prosecution examined P.Ws. 1 to 18 and got marked Exs. P.1 to P.21 besides case property M.Os. 1 to 3. On behalf of the defence, except marking Ex. D. 1, no oral evidence was adduced.
6 The trial Court, after considering the evidence on record, observed that the evidence of the defacto-complainant was half-spoken; that P.Ws. 2 and 3 i.e. the victim and her mother, did not speak anything; that P.Ws. 5 and 7 stated that they were in police custody about 6 days prior to giving evidence; that the evidence of P.W. 6 was not trust worthy; that there was no evidence that the spermatozoa found on the skirt of P.W. 2 relates to the accused; that therefore, the prosecution failed to establish the guilt of the accused beyond all reasonable doubt of the offence punishable under Section 376, Cr. P.C. and accordingly, acquitted the accused. Challenging the same, the present appeal is filed by the State.
7 Now, the point for consideration is, whether the prosecution proved its case against the accused beyond all reasonable doubt of the offence punishable under Section 376, IPC.
8 The learned counsel representing the learned Public Prosecutor contended that the evidence of P.Ws. 5, 6 and 9 would clearly go to show that the accused committed rape on P.W. 2; that because P.W. 2 was not mentally matured, she had not stated anything against the accused, that her silence cannot be taken advantage by the accused; that the medical evidence would clearly go to show that sexual assault was committed on P.W. 2, that the ocular evidence is completely in corroboration with the medical evidence; that there is, absolutely, no reason for P.Ws. 5 to 7 to implicate the accused falsely in a case of this nature; that the statements of P.Ws. 5 to 7 recorded by the Judicial I Class Magistrate, Kodad, at the earliest point of time, are completely in corroboration with the evidence of P.Ws. 5 to 7; that therefore, the prosecution proved its case beyond all reasonable doubt for the charge levelled against the accused; and hence, she prays to set aside the order of acquittal.
9 On the other hand, the learned counsel for the accused contended that P.W. 2 did not state that she was subjected to rape; that P.Ws. 5 to 7 were confined in the Police; Station for about 6 days prior to their examination in the Court; that they were tutored and threatened by the Police to give false statement against the accused because of some disputes between the accused and the Sub-Inspector of Police; that the spermatozoa found on the skirt of P.W. 2 was not shown to be that of the accused; that the medical evidence to the effect that hymen of P.W. 2 was intact suggests that there, was no sexual intercourse or penetration inside the vagina; thats the trial Court, after elaborate consideration of the evidence on record, rightly found the accused not guilty; and , therefore, there are no compelling or substantial reasons to interfere with the judgment under challenge.
10 While dealing with an appeal against the order of acquittal the Supreme Court in Prandas V/s. The State, AIR 1954 SC 36 : (1954 Cri LJ 331), held as under :
"It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under Section 417, Criminal P. C, to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under Section 417, Crimial P. C, in appeal from an order of acquittal has been stated in 'Sheo Swamp V/s. Emperor (AIR 1934 PC 227(2) : 1935 (36) Cri LJ 786), in these words : "Sections 417, 418, and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always given proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will at in accordance with rules and principles well known and recognized in the administration of justice."
11 Bearing the above principles in mind, it is to be seen whether the impugned judgment needs any interference by this Court.
12 The observation of the Court below in respect of evidence of P. W. 2 is reproduced as it is :
"The witness though speaks not so coherent, when questions were put to her she gave her name and also the names of her parents and when questioned again whether she knows the accused who is in Court nodded her head approvingly."
"Again she was questioned by this Court as to why she came to Court she saw the accused. This Court sent the accused out with escort as he is injudicial custody. The learned Counsel for the defence also present in court. When she was insisted again and again as to why she came to Court hesitatingly looked with tears slightly in her eyes. She got down from the witness-box and went outside in spite of the warning by the Court attender not to go outside. Her parents brought her inside and allowed to sit in the witness-box."
"Though witness nodded her head that she understood questions, but passively looked as to what she should speak. When it was put a question whether she was ravished by the accused she nodded her head approvingly and again when questioned that the accused did not ravish her, she nodded her head indicating that he did not ravish her. She also nodded her head with positive indication that she appeared in Magistrate Court at Kodad. When again she was put a question as to why she gave statement before the Magistrate again she looked passively. Finally she was put a question by this Court whether she wants to speak anything she nodded her head negatively. The witness appears not mentally matured though aged about 14 years. When the witness is not in a position to give evidence she was discharged."
13 So from the above observation, it is clear that P. W 2 was not mentally matured and she was discharged rightly from giving testimony. Admittedly, P. Ws. 1 and 3, parents of the victim, were not present when the alleged incident has taken place.
14 The entire case rests upon the evidence of P. Ws. 5 to 7, who are child witnesses, aged about 9 years, 13 years and 8 years respectively. Their evidence has to be scrutinized carefully to know as to whether they were giving evidence as a result of tutoring or prompting by some persons.
15 There is no legal bar for basing a conviction on the testimony of child witnesses and after careful scrutiny of the evidence of child witnesses, if the same is found to be true and trustworthy, it can be accepted. On this aspect, it is pertinent to refer to a decision reported in Nivrutti Panduranga Kokate V/s. State of Maharashtra (2008) 12 SCC 565 : (AIR 2008 SC 1460), wherein it was held as under:
"The age of the witness during examination was taken to be about 12 years. The Indian Evidence Act, 1872 (in short "the Evidence Act") does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, Section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by Brewer, J. in Wheeler V/s. United States 159 US 523. The evidence of a child witness is not required to be rejected per se, but the Court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability can record conviction, based thereon. (See Suryanarayana V/s. State of Karnataka 2001 Cri. LJ 705) (AIR 2001 SC 482)."
16 The evidence of P. Ws. 5 to 7 would go to show that on the date of incident, P. Ws. 2, 4 to 6 were playing on the terrace of the house of the accused and at about 4.00 P. M., when P. Ws. 5 to 7 were getting down from the upstairs to watch cinema in the television of one Eswar Rani, whose house is situated nearby, P. W. 2 victim found it difficult to get down as she was physically handicapped. At that time, the accused came there. P. W. 2 requested him, calling him as uncle, to help her in getting down to the ground floor. The accused took her into his hands, went inside his house, laid her down on the cot, lifted her skirt, removed his lungi, fell on her and committed rape on her. P. Ws. 5 to 7 witnessed the incident by removing the door curtain a little aside. The accused saw the same and threatened them and therefore, they ran away. P. Ws. 5 to 7 are not related to P. W. 1 and their parents also have no enmity or grouse against the accused. The evidence of P. Ws. 5 to 7 was disbelieved by the trial Court on the ground that they were confined in Garidepalli Police Station six days prior to their giving evidence in the Court. Further, P. W. 5 admitted that she gave statement before the Judicial First Class Magistrate Court, Kodad, only at the instance of the Police. There must be some reason for the Police to tutor P. Ws. 5 to 7 to speak false against the accused. But the defence did not elicit anything from these witnesses or from P. W. 17 Investigating Officer to show that the Police entertained a grouse or enmity against the accused so as to implicate him in a case of this nature. The suggestion given to P. W. 17 Investigating Officer is that the accused was implicated falsely at the instance of his enemies, but the same is denied. If the admission made by P. Ws. 5 to 7 that they, were detained in the Police Station six days prior to their giving evidence in the trial Court is taken to be true and correct and it is considered that they were tutored by the Police, then P. Ws. 2 to 4 also would have testified in the trial Court that they were deposing as tutored by the Police. But P. W. 4 did not support the case of the prosecution and turned hostile. P. W. 2 was not mentally matured to give evidence. P, Ws. 5 to 7 being child witnesses, would not be knowing as to what is rape, but their evidence is clear that the accused lifted the skirt of P. W. 2 and laid on her after removing his lungi. This aspect of the case has to be read in consonance with the medical evidence.
17 P. W. 15 the then Civil Assistant Surgeon in the Nalgonda district Headquarters Hospital examined P. W. 2 on 1-9-1998 at about 12.10 p. m., and found abrasion on the right labia majora 1/2 " x 1/4 " (inches) (scratch marks), examined pergina vagina and found hymen intact, tip of the little finger admitting, congestion present and sent vaginal slides taken for spermatozoa to Forensic Science Laboratory. Ex. P. 20 medical examiner's report would go to show that human semen and spermatozoa were detected on the polyester skirt of P. W. 2, whereas human blood was detected on the cotton lungi of the accused. Therefore, from the recitals in Ex. P. 20 coupled with the evidence of P.W. 15 - Civil Assistant Surgeon, there is no escape from the conclusion that P. W. 2 was subjected to rape.
18 The learned Counsel appearing for the learned Public Prosecutor relied upon a decision reported in Madan Gopal Kakkad V/s. Naval Dubey (1992) 3 Supreme Court Cases 204 : (1992 AIR SCW 1480) wherein it was held as under :
"In interpreting the above explanation whether complete penetration is necessary to constitute an offence of rape, various High Courts have taken a consistent view that even the slightest penetration is immaterial. Reference may be made to (1) Natha V/s. Emperor (1925) 26 Crl. L. J. 1185 : AIR 1923 Lah 536 : 88 IC 705); (2) Abdul Majid V/s. Emperor (AIR 1927 Lah 735 (2) : 28 Crl. L. J. 241 : 100 IC 113); (3) Mst. Jantan V/s. Emperor (1934) 36 Punj LR 35 : AIR 1934 Lah 797) : (1935 (36) Cri LJ 310); (4) Ghanashyam Misra V/s. State (1957 Cri. L. J. 469 : AIR 1957 Ori. 78); (5) Das Bernard V/s. State (1974 Cri. L. J. 1098); In re Anthony (AIR 1960 Mad 308 : 1960 Cri. L. J. 927) it has been held that while there must be penetration in the technical sense, the slightest penetration would be sufficient and complete act of sexual intercourse is not at all necessary. In Gour's The Penal Law of India, 6th Edn. 1955 (Vol. II) Page 1678, it is observed, "Even vulval penetration has been held to be sufficient for a conviction of rape."
19 Therefore, from the medical evidence, it can be said that the accused penetrated his penis into the vagina of P. W. 2 and had slightly penetrated within the labia majora without rupturing the hymen, thereby, the accused satisfied his lust after emission of semen. In the earliest point of time, the statements of P. Ws. 4 to 7, recorded by P. W. 14 Judicial I Class Magistrate, Kodada, were marked as Exs. P. 8 to P. 12 respectively and those statements have more relevance. There cannot be any dispute that the statements recorded by P. W. 14 Judicial I Class Magistrate, Kodada, under Section 164, Cr. P. C. can be used to corroborate the evidence as required under Section 156 of the Indian Evidence Act, 1872 . The earliest version in the statements recorded by P. W. 14 is completely in corroboration with the evidence of P. Ws. 5 to 7. If really P. Ws. 5 to 7 have not seen the incident, they would not have stated that the accused removed his lungi and laid on the victim girl after lifting her skirt. In view of the admission made by these witnesses, there was a scope or possibility for the Police to tutor the witnesses. But, at the same time, there is no other reason for these witnesses to give false evidence against the accused as tutored by the Police. Similarly, the Police also have no grouse or enmity against the accused so as to implicate him in a case of this nature by tutoring the witnesses. Because of the presence of spermatozoa on the skirt of P. W. 2, it can safely be held that rape has been committed on her. No doubt, there is no evidence to show that the spermatozoa found on the skirt of P. W. 2 is that of the accused but at the same time, from the oral evidence of P. Ws. 5 to 7, it can be safely said that the accused committed rape on a minor girl, aged about 12 years and spermatozoa on the skirt of P. W. 2 is that of accused and none else.
20 From the evidence of P. W. 17 - Investigating Officer, it is clear that the scene of occurrence is in the house of the accused, that it was newly constructed; that the house consists of two rooms; that the doors have not been fixed; that a teak cot was there in the room; and that there were steps to go to terrace. As seen from Ex. P. 17- scene of observation panchanama, curtains were affixed to the door frames. Though the mediators did not support the case of the prosecution with regard to the scene of observation report, but from the evidence of P. W. 17 - Investigating Officer coupled with objective findings in Ex. P. 17 - panchanama, it is manifest that the doors contained curtains without wooden planks. The evidence of P. Ws.5 to 7 would further go to show that they witnessed the incident after slightly pushing the door curtain aside. Therefore, the objective findings of P. W. 17 Investigating Officer as mentioned in Ex. P. 17 panchanama probablises the presence of P. Ws. 5 to 7 and also the possibility of their witnessing the incident.
21 However, the learned Counsel for the accused placed reliance on a decision of the Supreme Court reported in Radhu V/s. State of M. P. AIR 2007 SC (Supp) 847 : (2007 Cri LJ 4704) wherein it was held as under :
"The evidence of the prosecutrix when read as a whole, is full of discrepancies and does not inspire confidence. The gaps in the evidence, the several discrepancies in the evidence and other circumstances make it highly improbable that such an incident ever took place. The learned Counsel for the respondent submitted that defence had failed to prove that Mangilal, father of prosecutrix was indebted to Radhu's father Nathu and consequently, defence of false implication of accused should be rejected. Attention was invited to the denial by the mother and father of the prosecutrix, of the suggestion made on behalf of the defence, that Sumanbai's father Mangilal was indebted to Radhu's father Nathu and because Nathu was demanding money, they had made the false charge of rape, to avoid repayment. The fact that the defence had failed to prove the indebtedness of Mangilal or any motive for false implication, does not have much relevance, as the prosecution miserably failed to prove the charges. We are satisfied that the evidence does not warrant a finding of guilt at all, and the trial Court and High Court erred in returning a finding of guilt."
22 But, in this case, there are no such discrepancies in the evidence of P. Ws. 5 to 7, who are eyewitnesses to the incident.
23 The learned Counsel for the accused further relied on a decision of the Apex Court reported in State of Karnataka V/s. Mapilla P. P. Soopi (AIR 2004 SC 85) : (2004 Cri LJ 44), wherein it was held as under :
"......This is primarily because of the fact that though P. W. 1 had examined P. W. 3 on 24-9-1981, the prosecution has not produced any medical report in regard to the said examination of P. W 3. As a matter of fact, there is no evidence whatsoever produced by the prosecution to show that the doctor did prepare a medical report in regard to the condition of the victim as examined by him on 24-9-1981."
24 That is a case where medical evidence has not been established with regard to the committing of rape on the victim and the medical officer didn't prepare any medical report with regard to the condition of the victim at the time of examination. In the present case, two days after the incident, P. W. 2 victim was examined and all the details have been noted in wound certificate- Ex. P. 13. Except the admissions made by P. Ws. 5 to 7 which disclose that they were detained in the Police Station six days prior to their evidence, no other reason has been assigned by the trial Court for disbelieving their evidence. The Court below has also not given any Reasons or findings to arrive at the conclusion that the evidence of P. Ws. 5 to 7 was untruthful or that they were giving false evidence. The evidence of P. Ws. 5 to 7 has to be examined with reference to the probability factor, their presence, enmity, if any, and the possibility of seeing the incident of this nature. The fact that all these witnesses including P.W. 2 were playing on the terrace in the afternoon, is quite probable because the date of incident happens to be Sunday and holiday for the school going children. There is every possibility of these witnesses to get down from the upstairs through the stair case to watch television at 4 p.m. and P.W. 2 was unable to get down from the stairs because of physical incapacity i.e. right leg and right hand were affected with polio. At that time, the accused came there and P.W. 2 requested him to take her to the ground floor, but the accused after taking her by physically lifting to the ground floor, taken her inside his house and committed rape on her. There is a ring of truth in the evidence of P.Ws. 5 to 7 coupled with the objective findings in the observation report. When P.W. 2 was taken inside the house, there will be curiosity for the other children i.e., P.Ws. 5 to 7 to see what was happening inside the house. Admittedly, wooden door planks have not been fixed to the door frames, but only curtains were fixed. When such is the case, P.Ws. 5 to 7 peeped through the curtain by pushing the curtain slightly aside and witnessed the incident, cannot be ruled out.
25 In view of the above discussion, this Court has no hesitation in holding that there was no appreciation of evidence at all by the trial Court and that the prosecution proved its case against the accused beyond all reasonable doubt of the offence punishable under Section 376, IPC. Therefore, the impugned judgment is liable to be set aside.
26 Accordingly, the Criminal Appeal is allowed and the impugned judgment, dated 5th January, 2001, in S.C. No. 70 of 1999 on the file of the Assistant Sessions Judge, Miryalguda, is hereby set aside. The respondent/accused is found guilty of the offence punishable under Section 376, IPC and accordingly, he is convicted and sentenced to undergo rigorous imprisonment for a period of seven years and to pay fine of Rs. 1,000/-, in default, to suffer simple imprisonment for a period of one month. Period of remand, if any, undergone by the accused shall be given set off under Section 428, Cr. P.C.
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