High Court
Case Details
CRL.A(J) 8/2008 BEFORE HON’BLE MR. JUSTICE UJJAL BHUYAN J U D G M E N T AND O R D E R(CAV) UJJAL BHUYAN J This appeal is directed against judgment and order dated 29-11- 2007 passed by the learned Assistant Sessions Judge, Lakhimpur in Sessions Case No.86(NL)/2007 convicting the accused (appellant herein) u/s 376 (2)(f) IPC and sentencing him to undergo Rigorous Imprisonment (RI) for 10 years and to pay fin e of Rs.10,000/- (Rupees ten thousand) only, in default, to undergo further RI f or 1 year, the period of detention already undergone to be setoff. 2.
Legal Reasoning
Facts of the case may be briefly noted. 3. On 09-12-2006, one Md. Aftar Hussain, resident of Ward No. 3, CD Road, North Lakhimpur lodged an ejahar before the North Lakhimpur police statio n stating that his wife had taken his minor daughter of 5 years old to the tailo ring shop of the accused as an order was placed earlier for stitching of churida r for his daughter. At the shop, the accused asked his wife to leave his daughte r behind. Believing the accused, his wife left his daughter at the shop and came back home. After about 15 minutes, his daughter came back home and told her mot her that the accused had committed rape on her. The incident took place at about 9:45 am. On receipt of the FIR the same was registered as North Lakhimpur Polic e Station Case No.341/06 u/s 376(2)(f) IPC. 4. Police investigated the case and after conclusion of investigati on, submitted charge-sheet against the appellant under the aforesaid section. Ca se being sessions triable, it was committed to the Court of Sessions Judge, Lakh impur, who thereafter assigned the case to the Court of Assistant Sessions Judge , Lakhimpur. 5. Charge u/s 376 (2)(f) IPC was framed against the appellant which was read over and explained to him, to which he pleaded not guilty and claimed to be tried. 6. Prosecution examined as many as 8 witnesses to prove the case. T hough the defence did not adduce any evidence, the accused was examined u/s 313 Cr. PC. The defence plea was of total denial. At the conclusion of the trial, learned trial Court convicted th 7. e accused under the section charged and imposed the sentence as indicated above. 8. learned Additional Public Prosecutor, Assam for the respondent state.
Legal Reasoning
Heard Ms. P. Chakarborty, learned amicus-curiae and Mr. D. Das, 9. Learned amicus-curiae fairly submits that the prosecution could succeed in proving its case beyond all reasonable doubt. She submits that the vi ctim was a minor girl and commission of such heinous offence should be dealt wit h severely. She submits that the statement of the victim girl has been fully cor roborated by the medical evidence and by the evidence of the other witnesses. Th erefore, there is no infirmity or illegality in the conviction. The sentence imp osed is also justified, being the minimum of the punishment statutorily prescrib ed. Learned Additional Public Prosecutor also submits from the recor 10. d that from the evidence adduced, no other conclusion is possible other than the guilt of the accused. 11. sitioned have also been perused. Submissions made have been considered. The original record requi 12. PW 1 is the victim. Since she was below 12 years of age, no oath was administered to her. She stated that she was reading in class- (cid:28)Ka (cid:29) in Bapu ji School where she was taught the alphabets (cid:28)Ka (cid:29), (cid:28)Kha (cid:29) etc. [The trial judge r ecorded that the victim girl had the ability to understand and to answer the que stions without any hesitation]. She stated that she knew the accused standing in the dock. Her mother had placed an order before the accused for stitching of ch uridar. She and her mother had gone to fetch it. The accused had asked the mothe r to leave on the plea that some measurement was to be taken. Thereafter, the ac cused forced her to lay down and after removing her undergarment, he put his gen ital organ in touch with that of hers. When she wept, accused starting beating h er and pressed her mouth. She removed her undergarment (panty) from her person a nd carried it in her hand as she reported to her mother. She stated that she had told about the incident in the Court earlier also as well as before the police. Though she was cross-examined by the defence, she remained steadfast in her evi dence and stated that she had handed over the undergarment to her mother. 13. PW 2 is the father of the victim and the informant. He stated th at he knew the accused, who was a tailor, by name and face. He stated that the v ictim, who is his daughter, was about six and half years old at the time of occu rrence. At the time of occurrence, he was not at home as he was in his place of work which was nearby. He stated that his wife came to his place of work and tol d him that the accused had committed rape on their daughter by inserting his sex ual organ into that of his daughter. When he came back home, the undergarment of his daughter was shown to him and he found semen present. Police came and seize d the undergarment. He stated that the victim was medically examined and her sta tement was also recorded by the Magistrate. 14. PW 3 is the mother of the victim. She stated that she took her m inor daughter to the tailoring shop of the accused to get her daughter’s churida r stitched. He asked her daughter to stay back for taking measurement. PW 3 left the shop for home and was doing domestic works. A short while later her daughte r came back home crying and carrying her undergarment in her hand, followed by t he accused close behind. The accused told that the victim had urinated. When PW 3 took the undergarment, she felt some sticky substance on it. She took her daug hter inside and upon checking her private parts, she found the area around the v agina red. Her daughter told her that the accused had laid her on the ground, re moved her undergarment and inserted his penis into her sexual organ. She then we nt to her husband’s place of work and informed him about the incident whereafter , he lodged the ejahar. 15. PW 7 is the doctor who had examined the victim. He stated that a s per ossification test, victim would be below 10 years of age. Though her hymen was found intact and there was no sign of violence on the body of the victim, h e stated that as per his report vaginal bruise of few hours old could be seen an d that there was sexual relation within few hours. In his cross examination, he stated that he did not clearly mention in his report that there was penetration. 16. PW 8 is the IO. She stated that though the victim was medically examined immediately, the accused was not examined medically. She stated that sh e had investigated the case and had also arrested the accused. Upon finding proo f and witness in support of the allegation, she submitted charge-sheet against t he accused in the Court. During his examination u/s 313 Cr.PC, relevant questions based o 17. n the evidence that had come on record were put to the accused. The accused deni ed all the allegations and stated that he did not commit any offence. 18. The medical examination report was exhibited as exhibit-3. As pe r the said report, the victim was examined on 09-12-2006 at 11:40am i.e. within 2 hours of the incident. As per the said report, bruise of few hours old was see n in the vaginal region. The medical opinion reads as under :- (i) the age of the girl is below 10 years, (ii) there is no sign of violence on her body, (iii) had sexual relation within few hours. 19. Statement of the victim girl was also recorded u/s 164 Cr. PC on the same day i.e. on 09-12-2006. During the recording of her statements, the le arned Magistrate though did not administer oath, however, observed that the vict im girl had developed her understanding and was capable of testifying as a witne ss. In her said statement she narrated the incident in the same manner as in her deposition later in trial. The seized undergarment was sent to the Forensic Science Laborat 20. ory (FSL) at Guwahati. As per FSL report, the forensic examination gave positive test for human semen. A conjoint and careful reading of the evidence on record would i 21. ndicate that there was sexual assault on the victim by the accused. The victim w as a minor girl below 10 years of age at the time of occurrence. She had clearly stated about the incident in her statement recorded u/s 164 Cr.PC on the same d ay without any exaggeration. When her evidence was recorded during the trial, sh e stated the same thing and there was no discrepancy. There is no reason to disb elieve the statement of the victim. Ordinarily and in the normal course, a child will not tell a lie. There is no reason why she would have falsely implicated t he accused. The evidence of the victim girl with the observations of the recordi ng Magistrate and the trial Court inspires the confidence of the Court. As alrea dy noticed, the victim was medically examined within a few hours of the incident . Though no corroboration is required, the medical evidence and the finding of t he FSL report reinforces the prosecution case. 22. The victim was a minor girl below 10 years of age. Opinion given in the medical report that hymen of the victim girl was found intact and that t here was no sign of violence on the body of the victim cannot be of much help to the accused as rupture of hymen is not essential to constitute the offence of r ape. As per explanation to Section 375 IPC, penetration is sufficient to constit ute sexual intercourse necessary to the offence of rape. As has been judicially held, even a slight penetration would be sufficient. Moreover, absence of sign o f violence on the body of the victim, who is a minor, cannot be taken to mean th at no sexual assault had taken place. 23. In the case of Rajendra Datta Zarekar -Vs- State of Goa reported in (2007) 14 SCC 560, the Hon’ble Supreme Court in the contextual facts of that case where the victim was also a very young girl of 6 years of age, held that i t was quite likely that full penetration did not take place as the accused was a grown up person as in the present case. Both in Rajendra Dutta Zarekar (supra) and in the subsequent case of Wahid Khan -Vs- State of Madhya Pradesh reported i n (2010) 2 SCC 9, the Hon’ble Supreme Court referred to the opinion expressed by Modi in Medical Jurisprudence and Toxicology, which reads as under :- (cid:28)Thus, to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Pa rtial penetration of the penis within the labia majora or the vulva or pudenda w ith or without emission of semen or even an attempt at penetration is quite suff icient for the purpose of the law. It is therefore quite possible to commit lega lly, the offence of rape without producing any injury to the genitals or leaving any seminal stains. In such a case, the medical officer should mention the nega tive facts in his report, but should not give his opinion that no rape had been committed. Rape is a crime and not a medical condition. Rape is a legal term and not a diagnosis to be made by the medical officer treating the victim. The only statement that can be made by the medical officer is to the effect whether ther e is evidence of recent sexual activity. Whether the rape has occurred or not is a legal conclusion, not a medical one (cid:29). It has been the consistent view of the Courts that even the slig 24. htest penetration would be sufficient to make out an offence of rape and depth o f penetration is immaterial. In view of above, there is no room for doubt that the accused (a 25. ppellant) had committed the offence of rape on the victim. In such circumstances , the conviction of the appellant u/s 376 (2)(f) IPC is justified and is accordi ngly upheld. Coming to the sentence imposed, it is seen that the learned trial C ourt had imposed the minimum of sentence as statutorily prescribed. Considering the fact that the victim was a minor girl and the accused was aged about 50 year s, no leniency can be shown for commission of such heinous offence. 26. 27. 28. There is no merit in the appeal. Appeal is dismissed. Registry to send down the LCR.