(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) 1. The present appeal is directed against the judgement and order passed by the learned Sessions Judge in Sessions Case No.156/2006, whereby the appellant – accused has been convicted for the offence under Section 376 of IPC and sentence has been imposed of 10 years' R.I., with fine of Rs.1,000/- and one month's further S.I., for default in payment of fine.
2. As per the prosecution case, Ishwarbhai Jivabhai – PW-1 (Exh.12), complainant and the father of the victim, on 16.8.2006, had gone to his brother's place and when he came back at about 12.45, he was informed by his mother that his daughter – victim had not come to the house and she had yet to take lunch. Therefore, since it was a festival of Janmashtami, he went for searching her and at the end of the village, there was Pan-bidi shop of Bhopabhai Nathabhai – PW-11 and he enquired him as to whether he had seen his daughter and the complainant was informed that his daughter was with accused and they had gone towards Anganwadi. Therefore, the complainant further went to Anganwadi and heard shouting. When he reached near urinal in the Anganwadi, he saw that the accused had embraced the victim and he had put off his pants down and the underwear of the victim was lying nearby and she was crying. At that time, the complainant told the accused about his conduct and then the complainant released victim and went away. He found that there was bleeding on the private parts of the victim. Thereafter, the complaint was filed with the Police Station, Bavla.
3. The complaint was investigated and as the material was found, the charge-sheet was filed against the accused and the case was thereafter committed to the Sessions Court being Sessions Case No.156/2006.
4. The prosecution, in order to prove the guilt of the accused, examined 12 witnesses, the details of whom are mentioned by the learned Sessions Judge at paragraph 8 of the judgement. The prosecution also produced documentary evidence of 20 documents, the details of which are mentioned by the learned Sessions Judge at paragraph 9 of the judgement. The learned Sessions Judge thereafter recorded the statement of the accused under Section 313 of Cr.P.C., wherein the accused denied the evidence against him and in the further statement he stated that a false case is filed against him, he was not knowing anything and there was hot exchange of words between him and the father of the victim and thereafter the family members had supported them and the father of the victim had filed the complaint with the police and he had gone to Calcutta and came back and went to his sister's place, he came to know that the case was filed against him by the father of the victim for his daughter. The learned Sessions Judge thereafter heard the prosecution and defence and found that the prosecution has been able to prove the case against the accused and, therefore, found the accused guilty for the offence under Section 376. The learned Sessions Judge thereafter also heard the prosecution and defence on the aspect of sentence and ultimately convicted the accused and imposed sentence as referred to herein above. Under these circumstances, the present appeal before this Court.
5. The learned Counsel appearing for both the sides have taken us to the entire evidence on record. We have considered the judgement and reasons recorded by the learned Sessions Judge. We have heard Ms.Sadhana Sagar, learned Counsel appearing for the appellant – accused and Mr.Pandya, learned APP for the State.
6. It deserves to be recorded that the victim as stated in the complaint was aged 3½ years. Her father, Ishwarbhai – PW-1 is examined at Exh.12 and he himself is the eye-witness to the incident. He has fully supported the prosecution and as per him, when he went for searching the victim, he was told by Bhopabhai – PW-11 that the accused with her daughter had gone to Anganwadi. As per his testimony when he went to the urinal of Anganwadi, he found that the Accused had put off his pants half and the underwear of his daughter was also removed and he had embraced the victim and was committing rape. When he saw the accused, he told the accused that what was he doing and the accused in response thereto, threw the victim and by pushing the complainant aside, he left the place. Ishwarbhai – PW-1 has admitted the complaint having been filed by him and he has also identified the clothes, including underwear, which was put on by the victim at the relevant point of time. In the cross-examination of the said witness, defence has not been able to bring any material contradiction, which may lead the Court to doubt his capacity as eye-witness to the incident. There is further corroboration of the say of the complainant – PW-1 by the testimony of Dr.Mitesh – PW-8 (Exh.30), who had examined the victim at the first instance. As per his testimony when he had examined, there were injuries of 3 to 4 nails on the thigh of the victim and abrasions on the skin of the knees. Further, there were also injuries on the private parts of the victim and the skin was raptured and there were also marks of mud on her both the legs and for her further examination, she was referred to the Civil Hospital. The testimony of the said doctor – PW-8, fully supports the case of the prosecution for rape on the victim. In the cross-examination, the said doctor has denied such injury on the private parts would be caused because of itching and he had also stated that when he examined the private parts, the victim was complaining lot of pain and as injections were not there in the hospital and, therefore, he had referred the victim to the Civil Hospital. The evidence of Dr. Jayshriben – PW-9 (Exh. 32) also confirms the case of the prosecution for rape upon the victim In the medical history given to the said doctor, the place and the name of the accused have been stated. When she examined the victim there was swelling on the Vagina and the vagina was of the reddish colour and it was found that there was abrasions of 5 mm on the vagina and hymen was torn. It is true that she has opined that the age could be about 5 to 5½ years of the victim, but, in our view, the same would not make any difference to the case of the prosecution, since even if the age of 5½ years is considered, it is too tender age for any sexual intercourse by any girl. In this manner, the testimony of Dr.Jayshriben fully supports the case of the prosecution and defence in the cross- examination has not been able to bring about any material contradiction.
7. The clothes of the victim as well as the accused were recovered and on the clothes of the victim blood stains are found as per the FSL report (Exh. 45).
8. The prosecution has also drawn the panchnama for the place at which the offence was committed. Further it has also come in evidence of the witness that the place was such where normally such urinal would not be used by the common public since it was interior in the Anganwadi. The evidence of the I.O., Mr.Somabhai Koyabhai – PW-12 (Exh. 40) shows that the manner in which the complaint was registered and the investigation was made and he also supports the case of the prosecution. Since Bhopabhai – PW-11 (Exh.37) had turned hostile, the contradiction is proved in the cross-examination of the said witness as well as in the Examination-in-Chief of I.O., Mr.Somabhai – PW-12 (Exh.40).
9. The aforesaid evidence goes to show that as such the prosecution has been able to prove the case for too tender age of the victim, the sexual assault and rape committed by the accused upon the victim during the deposition of the eye- witness and with the support of the medical evidence and also the scientific evidence of FSL report.
10. The learned Counsel appearing for the appellant, raised the first contention that no semen or sperm or blood marks are found from the clothes of the victim of the accused or the blood marks of the victim upon the clothes of the accused and, therefore, it was submitted by her that thee was no corroboration of the scientific evidence and the accused would be entitled for the benefits thereof.
11. It is hardly required to be stated that for the offence under Section 376 of IPC, discharge of semen is not a sine qua non though may be one of the aspects to be taken into consideration while examining the case for the offence under Section 376 of IPC. As such, the requirement under law is the penetration into the private parts of the female. The medical evidence goes to show that the skin of the vagina was torn and even there was tear in the hymen coupled with the circumstances of bleeding on the private parts of the victim.
12. Under these circumstances, in our view, when the penetration was proved by the prosecution with the medical evidence, mere non-availability of the semen on the clothes of the victim or clothes of the accused would not be fatal to the case of the prosecution. We may also record that it is not a matter where the accused has been arrested immediately after the incident and the clothes were recovered. Even as per the accused he had gone to Calcutta and in any case, as it has come out in the record that the accused was arrested after about two weeks. Therefore, it is possible that the blood stains of the victim or the semen/sperm may not be available on the clothes of the accused. Further, as observed earlier, the discharge of semen is not a 'must' for proving the case for the offence under Section 376 of IPC when the penetration is proved, the same is sufficient to constitute the offence.
13. It also deserves to be recorded that the blood group of the victim is of 'A' and so is the blood group of the accused. On the clothes of the victim the blood stains are found of 'A' Group. It is true that if any doubt arises the benefit may go to the accused, but in our view, the existence of blood stains on the clothes of the accused or the existence of the semen on the cloths of the accused or the victim is not a 'must' considering the facts and circumstances of the present case when the prosecution has been able to prove the case by medical evidence of bleeding on the private parts of the victim and also the penetration on the private parts of the victim.
14. Therefore, under these circumstances, we find that the contention even if considered and examined would be of no help to the appellant.
15. The learned Counsel next contended that there is delay in filing the complaint. It was submitted that such would leave room for improvement and false implication of the accused and it was submitted that the delay be considered as fatal to the case of the prosecution and the benefits be extended to the accused.
16. It is hardly required to be stated that the delay, per se, would not be fatal to the case of the prosecution, but in a case of delay, Court may examine the aspects as to whether any sufficient explanation comes up on record or not. The deposition of the complainant read with the complaint itself shows that after the incident the complainant had come back to the residence and thereafter, the family members decided to file the complaint. Further in a matter like this, the normal reaction on the part of the parents/complainant herein, who father would be to make arrangement for treatment and that was so done and the complaint was filed thereafter. Under these circumstances, when the explanation has come for such delay in filing the complaint on record, we do not think that the same would result as fatal to the case of the prosecution. Hence, the contention fails.
17. The learned Counsel next contended that it is on account of the personal enmity between the complainant and the accused, the accused has been wrongly roped in in the present case and, therefore, the testimony of PW-1 – complainant Ishwarbhai may not be believed. She submitted that if his evidence is taken out from the case of the prosecution, there would not be any other eye-witness and, therefore, the accused would be entitled to the benefits.
18. We are not at all impressed by the said submissions, because of two reasons; one is that there is no evidence showing that there was any hot exchange of words or otherwise between the accused and the complainant. Unless any strong evidence is available on record, it is not possible for this Court to believe that the father for such a dispute would rope in his daughter aged about 3½ years or even 5 years for such a serious case of rape, which may in future attach stigma to his daughter. At this stage, we may refer to the decision of the Apex Court of Rajendra Datta Zarekar vs. State of Goa, reported in AIR 2008 SC, 572 and more particularly the observations made at paragraph 13, wherein the relevant of which reads as under:-
“13. ... The rape leaves a permanent scar and has a serious psychological impact on the victim and also her family members and, therefore, no one would normally concoct a story of a rape just to falsely implicate a person.”
19. Secondly, it is not a case where the allegation of rape is there without there being any corroborative medical evidence for sexual assault upon the victim of a tender age by the accused aged 21 years. Therefore, the said contention deserves to be rejected.
20. The learned Counsel next contended that in medical history given to the first doctor, who examined the victim – PW-8, Dr. Mitesh (Exh. 30), the name of the accused was not given, whereas the name is given for the first time to Dr. Jayshriben - PW-9, who examined the victim on the next day and, therefore, she submitted that the delay created the doubt to the case of the prosecution for involvement of the accused and, therefore, the benefit be given to the accused.
21. We find that the said contention also deserves to be considered for rejection, inasmuch as when the father of the victim himself is the eye-witness coupled with the medical evidence for sexual assault and the injury caused to the private parts of the victim, merely because in the first medical history the name is not stated of the accused, would not make the case of the prosecution unbelievable as sought to be canvassed. It is true that the medical history given to the doctor has relevance, but cannot be the sole ground to conclude that the prosecution case would be unbelievable. If the other material evidence is available worth trustworthy, including the oral evidence of a witness with the credibility, the aspect of medical history may result as inconsequential. Hence, we find that the said contention is meritless.
22. The learned Counsel lastly contended that the sentence be reduced than as imposed by the learned Sessions Judge.
23. We find that as such, if the incident is taken into consideration of causing rape upon a girl of too tender age may attract more severe punishment, but as the State is not in appeal for enhancement and the learned Sessions Judge has imposed the sentence of 10 years' R.I., we leave it at that stage, but, in any case, we are not in a position to find that the sentence imposed by the learned Sessions Judge for the offence proved is on a higher side. Hence, the said contention is rejected.
24. In the result, the appeal is meritless.
Therefore, dismissed.
(Jayant Patel, J.) (Paresh Upadhyay, J.) vinod