(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.136/2006, whereby the accused has been convicted for the offence under Section 376 of IPC and sentence has been imposed of 10 years R.I., with the fine of Rs.10,000/- and further one year S.I., for default in payment of fine.
2. As per the prosecution case, on 22.1.2006, the victim informed that on the last hight i.e.21.1.2006, when she had gone to see the T.V., and while coming back at about 11 O' Clock her maternal uncle – accused herein caught hold of and took her to house of Babu Bajania, which was closed and in chopad – varanda, rape was committed upon her and she had come to the house crying, but since the complainant who was the mother of the mother of the victim (maternal grandmother) sleeping, she did not inform at that time, but when she got up, she informed the complainant. Thereafter, the complaint (Exh. 33) was filed with Idar Police Station.
3. The aforesaid complaint was investigated and ultimately charge-sheet was filed and the case was committed to the Sessions Court being Sessions Case No.136/2006. The prosecution, in order to prove the guilt of the accused, examined 13 witnesses, the details of whom are mentioned by the learned Sessions Judge at paragraph 5 of the judgement. The prosecution also produced documentary evidence of 19 documents, the details of which are also mentioned in the very paragraph of the impugned judgement. The learned Sessions Judge thereafter recorded the statement of the accused under Section 313 of Cr.P.C., wherein he denied the evidence against him and in the further statement he stated that a false case was filed against him and he did not known anything. The learned Sessions Judge thereafter heard the prosecution as well as the accused and found that the prosecution has been able to prove the case and consequently he held the accused guilty for the charged offence. The learned Sessions Judge also heard the prosecution and the accused for sentence and ultimately imposed the sentence as referred to herein above. Under these circumstances, the present appeal before this Court.
4. The testimony of PW-1 – Dr. Sonia – Exh. 7 shows that she had examined the victim at the first instance on 23.1.2006. In the medical history given to her, the victim had stated that at about 11 O'Clock on 21.1.2006, her Mama (accused) had called and he made an attempt for intercourse, but as stated by the complainant, Leelaben, the maternal grandmother of the victim, was intimated by the victim on the next date. As per her testimony, old blood stains were found on her pyjama – trousers, there were no external marks on the body and as per the said doctor, since blood stains were found on pyjama, it was forwarded to the FSL. The defence in the cross- examination of the said witness has not been able to show any material contradiction.
5. The testimony of Dr. Vinod – PW-2 – Exh. 11 as well as Dr. Bhaminiben, who was Gynecologist – PW-3 – Exh. 13 completely supports the case of the prosecution, inasmuch as in the history narrated by the complainant and which was admitted and confirmed by the victim before the doctors, her maternal uncle – Kalabhai, accused herein had committed rape by applying physical force on 21.1.2006 and there was bleeding after the rape was committed on 21.1.2006. Thereafter, there was no bleeding on 22nd and 23 January 2006 and again the bleeding had started on 24.1.2006. In their examination, it was found that the clothes of the victim were studded with blood and on her private parts, old as well as new injury marks with blood were found. It was also found that she was complaining severe pain and after the anesthesia was applied and she was further examined, injuries were found in the vagina and its perineal region. There was also infection and bleeding in the vagina. The skin was raptured and the hymen was also broken. As per the opinion of the doctor, the sexual assault must have been within 2 to 3 days prior to the examination and the doctor had opined that such injury could be caused if the well-built body person commits rape violently upon the girl of a tender age of 11 years. In the cross-examination of both the witnesses, the defence has not been able to bring any material contradiction about the history given and the injury found on the private parts, vagina of the victim.
6. If the aforesaid evidence of the doctor is further examined with the scientific evidence of FSL – Exh. 36 and more particularly the serological report, it has transpired that on the pyjama of the victim, the sperm/semen is found of the accused, having 'B' Group and even on the pants of the victim, the sperm/semen is found having 'B' Group. Therefore, there is clear corroboration of the scientific evidence to the case of the prosecution.
7. In light of the aforesaid evidence of the prosecution, we have to further consider the testimony of the victim and her grandfather. It deserves to be recorded that when the grandfather, Amrutbhai – PW-5 – Exh. 16 was examined, by that time the original complainant, the grandmother of the victim had expired. The testimony of the victim is at Exh. 17 and she was examined as PW-6. She, in the examination-in- chief, has stated that when she was coming back after watching T.V., her maternal uncle, Kalabhai – accused herein had destroyed her chastity and there was also bleeding and her clothes were studded with blood. She has also identified her maternal uncle – accused, who was present in the Court. She has also confirmed that she was examined by the doctor. Thereafter, in the cross-examination, she has made a contrary statement that the maternal uncle did not call her, but some other person was there and the one who destroyed her chastity had run away and village people had given the name to her maternal uncle.
8. We need to keep in mind that the victim is of a very tender age and she is the daughter of the sister of the accused and the manoeuvering of the victim by the accused and his family members cannot be ruled out. The said aspect can be gathered from the testimony of PW-5 – Exh. 16, the grandfather of the victim and the father of the accused, inasmuch as he has not sated as per the complaint, but he only stated that his wife Leelaben – complainant had informed him that the accused and the victim had slept together and, therefore, since the accused was beaten he had left the home. In the evidence of I.O., Vikramsinh - PW-3, - Exh. 32, the prosecution has been able to bring about the manner of investigation and the material found in the investigation, including the medical evidence and the recovery of clothes and other supporting incriminating material, including the FSL Report. In the cross-examination of the I.O., the defence has not been able to bring about any material contradiction.
9. The learned Counsel for the appellant raised the contention that if the victim herself has, in her cross-examination, stated that her chastity was destroyed by some other person, the benefit of statement of the victim should be made available to the accused by doubting the story or in alternative, it can be said that the prosecution has not been able to prove the case beyond reasonable doubt and, therefore, the accused would be entitled to the benefit.
10. In our view, the learned Sessions Judge has rightly appreciated the evidence of the victim, so as to find out as to whether the case of the prosecution would be frustrated or such contradiction would vitiate the case of the prosecution or not. The victim in examination- in-chief has made the statement as per the case of the prosecution for destroying the chastity by her maternal uncle – accused. She has also stated that there was some bleeding and the clothes were studded with blood and she has further stated that she was examined by the doctor at Himatnagar. All the aforesaid statements made in the deposition of the victim are fully getting support from the history given before the doctor and there is further corroboration of medical evidence of all the three doctors and more particularly, PW-2, Dr.Vinod – Exh.11 and Dr. Bhamini – PW-3 – Exh. 13, on the aspects of various injuries sustained on the private parts of the victim, bleedings and the application of physical force by an able adult on a girl of a tender age. There is further corroboration to the said aspects with the FLS report as referred to herein above, inasmuch as the semen/sperm of the accused is found on the clothes of the victim. However, there is no corroboration whatsoever to the statement made by the victim in her cross-
examination. Further, while appreciating the testimony of the victim, we need to keep in mind that the victim and the accused are closely related and the grandmother – Leelaben, who was the complainant had expired just 5 days prior to the date on the grandfather was examined i.e. 28.12.2008 and the date on which the victim was examined. Therefore, it appears to us that as the attempt may have been made on the part of the accused to frustrate the case of the prosecution by tampering the key-witness, who was victim either by pressurizing or by manoeuvering her or otherwise.
11. Under these circumstances, we find that the contradiction made in the cross-examination by the victim as is not getting any corroboration from any other evidence and more particularly medical evidence and the scientific evidence, such contradiction cannot be termed as resulting into frustrating the case of the prosecution and, therefore, the contention does not deserve to be accepted.
12. In view of the aforesaid observations and discussion, we find that the learned Sessions Judge has not committed any error in holding the accused guilty for the offence. Even on the aspects of sentence we find that the quantum of sentence imposed by the learned Sessions Judge could be more than what has been imposed of 10 years R.I., keeping in view that the victim was of a tender age of 11 years at the time of incident and the rape committed by the accused is none else but her real maternal uncle, but as the State is not in appeal for enhancement of sentence, we leave the matter at that stage.
13. Under these circumstances, the appeal is meritless. Hence, dismissed. The judgement and order of the learned Sessions Judge for conviction and imposition of sentence is hereby confirmed.
(Jayant Patel, J.) (Paresh Upadhyay, J.) vinod