High Court
Case Details
Crl.A. 41/2009 BEFORE THE HON’BLE MR JUSTICE UJJAL BHUYAN This criminal appeal has been filed against the judgment and ord er dated 24-12-2008 passed by the learned Sessions Judge, Tinsukia in Sessions C ase No.117 (T)/2007 convicting the appellant u/s 376 (2) (f) IPC and sentencing him to suffer rigorous imprisonment (RI) for ten years and to pay fine of Rs.500 0/-, in default, to undergo further RI for six months. 2. Facts of the case may be briefly noted. 3.
Legal Reasoning
On 13-05-2006, one Shri Rameshwar Singh of Chirwapatty, Tinsukia lodged a first information before the Tinsukia police station stating that at a bout 2:15 in the afternoon of that day, the appellant, who was a co-tenant and l iving in the next room on rent, by enticing his six years old daughter with mone y took her to his room and after closing the door committed rape on her. The fir st information was registered as Tinsukia police station case No.222/2006 u/s 37 6 (2) (f) IPC. Police investigated the case and after completion of the investig ation, submitted charge sheet against the appellant under the aforesaid section. The case being exclusively triable by a Court of Sessions, it was committed to the Court of the Sessions Judge, Tinsukia. Charge under the aforesaid section wa s framed against the appellant and when the same was read over and explained to the appellant, he pleaded not guilty. In the course of the trial, prosecution ex amined as many as eight witnesses. At the end of the prosecution witnesses, appe llant was examined u/s 313 Cr.P.C. Plea taken by the defence was of total denial . The defence, however, did not adduce any evidence. 4. e appellant u/s 376(2)(f) IPC and sentenced him as indicated above. At the conclusion of the trial, learned trial Court convicted th 5. 6. Aggrieved, appellant has filed the present appeal.
Legal Reasoning
Heard Mr. B. Padun, learned Counsel for the appellant and Ms. A. Begum, learned Additional PP, Assam. 7. Learned Counsel for the appellant heavily relies upon the medica l evidence. He submits that as per medical opinion, the hymen of the victim was found intact. Medical examination of the undergarments of the victim and the acc used did not give any conclusive opinion that the blood stain which was examined was that of the appellant. No trace of spermatozoa was found. Learned trial Cou rt also relied upon alleged extra-judicial confession of the appellant made befo re PW 4, which was not justified. He also submits that landlord of the informant as well as of the appellant Shri Shyamal Choudhury was a vital witness, who was not examined. The failure of the prosecution to examine such a vital witness ha s cast a shadow of doubt over the prosecution case. Relying upon a Supreme Court judgment in the case of Harjinder Singh alias Bhola -Vs- State of Punjab report ed in (2004) 11 SCC 253, learned Counsel for the appellant submits that on the b asis of the evidence on record there is considerable doubt about the culpability of the appellant in the commission of the offence and, therefore, appellant is entitled to the benefit of doubt. Opposing the submissions made by learned Counsel for the appella 8. nt, learned Additional Public Prosecutor submits that from the testimony of the witnesses, there can be no manner of doubt about the guilt of the appellant. No other view than the prosecution version is possible. Appellant had committed a h einous offence and, therefore, no interference is called for either in the convi ction or in the sentence. 9. so been perused. Submissions made have been considered. Record of the case has al 10. Since it is a case of rape of a minor, let us first examine her testimony. She was examined as PW 5. Learned Court below was clearly of the view that the victim was a minor, aged about 7 or 8 years. She was studying in class -I. Learned Court below put several questions to her and it was observed that sh e not only understood the questions but could answer them intelligently. Therefo re, the learned Court below came to the conclusion that the victim girl though a minor, was competent to depose. In her evidence, she stated that she knew the a ccused and used to call him uncle. On the day of occurrence at about 3 pm while she was playing alone, the appellant came there and gave her one rupee. He took her to a room of a nearby house and disrobed her. He also undressed himself. Aft er gagging her mouth with his hand, he forced his penis into her private parts. Accused also grabbed her both hands by his other hand. She started bleeding from her vagina and experienced pain. After committing the offence, the appellant fl ed away. She later on narrated the incident to her mother and her aunt Smt. Poon am Devi. She further stated that she was taken to a hospital where she was exami ned by a doctor. She was also taken before a Magistrate and her statement was re corded u/s 164 Cr.P.C. She was cross-examined but her testimony could not be dis lodged. 11. PW 2 is the informant, the father of the victim. He stated that at the time of occurrence his daughter was studying in class-I and her present a ge was ten years (occurrence took place about 2 years back). On the day of occur rence at about 2 to 2:30 pm, he was sleeping in his house after having meal. On hearing hue and cry, he came out of the house and the neighbouring people told h im that the appellant had committed rape on his daughter. When he went to the pl ace of occurrence, he saw his daughter in an unconscious state. He could see tha t her private parts and her undergarment were stained with blood but the accused was not to be seen. The accused was later on apprehended from Bara Bazar on the same day. 12. Smti. Sabitri Devi is the mother of the victim, who deposed as P W 3. She stated that she knew the appellant and he used to call her (cid:28)Didi (cid:29). On t he day of occurrence, she was sleeping in the house of her mother, which is situ ated nearby. At about 2 pm, her sister-in-law Smti. Poonam Devi woke her up and told her that the accused had committed rape on her daughter. When she went to t he place of occurrence, she found her daughter there. Blood was coming out from her private parts and her undergarment was stained with blood. She also found in jury marks on both the hands of her daughter, wrists and her cheeks. She stated that her daughter was about six years old at the time of incident. Her daughter told her that the appellant gave her one rupee and thereafter took her to a room and after undressing her and himself, he committed rape on her. The accused was apprehended at Bara Bazar by her brother Shri Sanjay Singh. 13. Shri Sanjay Singh was examined as PW 4. He stated that on the da y of occurrence at about 2 pm, he was taking (cid:28)pan (cid:29) after his lunch when he heard a hue and cry coming from the direction of his house. When he went there, he fo und his niece (victim) weeping with a number of ladies near her. When he was tol d that the appellant had committed rape on her, he went out searching for the ap pellant and apprehended him at Bara Bazar. When he asked the appellant as to whe ther he had committed rape or not, the appellant confessed before him that he ha d committed the offence. PW 4 was not cross examined. 14. Wife of Shri Sanjay Singh, Smti. Poonam Devi also deposed as PW 6. Her deposition was along similar lines as PW 3 and PW 4. She was also not cro ss examined. 15. The doctor was examined as PW 1. She stated that on 13-05-200 6 i.e. on the day of occurrence, she was working in the Tinsukia Civil Hospital as Medical and Health Officer. On that day, at about 5:20PM, she examined the ap pellant, who was brought by the police. Among other things, the undergarment of the appellant which was seized, was sent for forensic examination. On that day, the doctor also examined the victim. She found that the victim was unable to wal k and her gait was painful. There was abrassion in the vulva. Bleeding was found in the labia majora. Though the hymen was found intact, the fourchette was tor n. There was bleeding from the vagina. Bruises were present over her arms, thigh s and knees. As per medical opinion, the victim had signs of general physical in jury consistent with the case history. Her age was between 6 to 7 years. As per forensic evidence (PW 7), undergarments of both the accus 16. ed and the victim tested positive for human blood but negative for spermatozoa d ue to mixture of blood and hymen. The IO was examined as PW 8. He stated that he had arrested the 17. accused person after he was apprehended by the public. He had sent the victim fo r medical examination and also got her statement recorded u/s 164 Cr.P.C. After he completed investigation, he found sufficient evidence against the appellant u /s 376(2)(f) IPC and accordingly submitted charge sheet. 18. It may be mentioned that in her statement recorded u/s 164 Cr.P. C., the narration of the incident by the victim was identical to her deposition in Court. 19. From a careful analysis of the evidence on record, it is evident that the victim was a minor girl. While recording her statement u/s 164 Cr.P.C. and her deposition in Court, both the learned Magistrate and the learned trial Judge tested her ability and competence to depose and they were satisfied that t he victim had the desired intelligence and capability to depose. She categorical ly stated that the appellant had forced his penis into her vagina leading to ble eding. In view of such a categorical assertion, there is no reason to disbelieve the testimony of the victim. A child has no axe to grind. Normally a child will never tell a lie. Moreover, she was medically examined within 3/4 hours of the incident. As per medical opinion, blood was found in the private parts of the vi ctim. The injury suffered by her matched with the case history. The doctor found that the victim was unable to walk and her gait was painful. As per forensic ex amination, the blood stains found in the undergarments of both the victim and th e accused, which were seized immediately, were of human blood. In such circumsta nces, the testimony of the victim inspires the confidence of the Court. Though n o corroboration is required, nonetheless the evidence of the other witnesses as noticed above only fortifies the prosecution case. Moreover, the evidence of PW 4 that when he apprehended the accused, the accused confessed before him that he had committed rape on the victim, remained unchallenged as he was not cross-exa mined. 20. The absence of spermatozoa and the hymen of the victim being int act would not dent the prosecution case as it is a settled law that penetration and not ejaculation is the sine-qua-non for commission of the offence of rape. F urthermore, full or complete penetration is not required, even partial or the sl ightest penetration will suffice. Moreover, in this case, the fourchette of the victim was found to be torn on medical examination. In any case, the victim bein g a minor girl of 6 to 7 years, full penetration would be an impossibility. 21. Thus, on a cumulative assessment of the evidence on record, it b ecomes crystal clear that it was the appellant who had committed the offence of rape on the minor girl. No other view is possible. In such circumstances, this C ourt finds no infirmity in the findings of the learned trial Court and the sente nce imposed. 22. There is no merit in the appeal. Appeal is dismissed. 23. Before parting with the record, a word about victim compensation . In exercise of the powers conferred by Section 357A of the Criminal Procedure Code, State of Assam has framed a scheme called the Assam Victim Compensation Sc heme, 2012 providing funds for the purpose of compensation to the victims or the ir dependants who have suffered loss or injury as a result of a crime and who re quire rehabilitation. As per the schedule to the scheme, the maximum limit of co mpensation for rehabilitation in case of rape of minor, has been fixed at Rs.1,0 0,000/-. In view of above, the record of this case may be placed before the Assa m State Legal Services Authority for payment of compensation to the victim in te rms of the above scheme. 24. Registry to send down the case record immediately.