Hon'ble Subhash Chandra Sharma,J.
(Delivered by Hon'ble Subhash Chandra Sharma,J.)
1. This criminal appeal emanates from the judgment and order dated 23.05.2007 passed by learned Additional Sessions Judge/F.T.C.-2, Kushi Nagar at Padrauna in Session Trial No. 111 of 1999 (State Vs. Munna Alias Teerathraj) arising out of Crime No. 142 of 1996, under Section 376 of Indian Penal Code, Police Station Kotwali Hata, District Kushinagar by which appellant has been convicted and sentenced under Section 376(1) IPC with life imprisonment and fine of Rs.50,000/-. out of which 80 percent amount was to be given to the victim and the amount was to be realized as arrears of land revenue. No additional sentence for imprisonment was provided in case of default in making payment of fine.
2. The prosecution case in brief is that on 19.06.1996, victim aged about 8 years was alone at her house at about 2 p.m. Appellant Munna Alias Teerathraj went there and on the pretext of sprinkling insecticide, took her in the field of sugarcane and there he committed rape with the victim. Consequently, she became unconscious and younger brother of appellant, Raj Kumar brought her to his home where his mother gave some treatment to her. At that time parents of victim were not at home. Father of victim returned on 20.06.1996 and then they went to police station and lodged an F.I.R. on 21.06.1996 at 11.15 o'clock at Police Station Kotwali Hata against accused-appellant as Case Crime No. 142 of 1996 under Sections 376 & 506 IPC.
3. Victim was taken to Women Hospital, Padrauna where she was medically examined. The detail of medical examination is as under:-
General Examination: Height 129 c.m. Weight 20 Kg. Number of teeth upper jaw 13 and lower jaw 11. The incident as narrated by uncle (maternal) Bhikhu of the patient has occurred at about 2 p.m. on 19.6.1996.
Injuries: No marks of external injury present over any part of body. A linear tear, margin of tear is whitish in colour. Vascularisation, seen, about 2 c.m. present at posterior wall at the midline of fornix. Vagina admits little finger. Hymen not present. Uterus very small in size. Bleeding on finger examination. Vaginal smear taken and handed-over to constable Prem Shankar Singh C.P. for vaginal smear test to District Hospital Deoria for pathological examination for presence of spermatozoa and gonococci. Girl was also sent to District Hospital, Deoria for x-ray examination of right knee, right ankle, right elbow and right shoulder joint for verification of age. Duration about 3-4 days old.
Opinion: Vaginal injury is caused by some hard and blunt object by forceful penetration. Opinion about rape is to be given after the pathological report.
Supplementary report of the victim: All the epiphysis around ankle, knee, elbow and wrist joint are not fused. Carpal bones 7 in number present.
Pathological report: No spermatozoa and gonococci are seen in vaginal smear as reported by Dr. L.P. Gupta, Pathologist, District Hospital, Deoria. Opinion: Evidence of rape is found.
4. One piece of trouser worn by victim was taken into possession by the police which was already washed but some blood stains were seen to be present on its miyani. Memo was prepared.
5. The investigation of the case was handed-over to Sub-Inspector R.N. Tandon, who after recording the statements of informant and other witnesses including victim, visited the place of occurrence and prepared site plan. Prima-facie commission of offence under Section 376 IPC was found to be established against the accused appellant Munna Alias Teerathraj and charge-sheet was submitted.
6. The court concerned, took cognizance of the offence and having provided essential papers to the appellant in compliance of Section 207 Cr.P.C, committed the case to the court of Sessions for trial.
7. The learned Sessions Judge framed charge under Section 376 IPC against the appellant on the basis of material on record which was read-over and explained to the appellant. He did not plead guilty but claimed for trial.
8. In support of its case prosecution examined P.W.1 Ramakant who is informant and father of victim, P.W.2 Dr. Rita Barnwal who examined victim, P.W.3 Victim herself, P.W.4 Smt. Phoolmati mother of victim, P.W.5 Shambhu Kushwaha-head-master Primary School, Singhpur and P.W.6 Sub-inspector Virendra Pratap Singh who lodged F.I.R. on the basis of written Tahreer given by informant at police station and also proved the handwriting of Sub-inspector R.N. Tandon who submitted charge-sheet.
9. After conclusion of prosecution evidence statement of appellant under Section 313 Cr.P.C. was recorded in which he stated that wrongful statements had been given by the witnesses against him. He did not adduce any evidence in defence.
10. After hearing the arguments for accused/appellant as well as the State, learned trial court passed the impugned judgment dated 23.5.2007 in which he found appellant guilty under Section 376(1) IPC and punished him as aforesaid.
11. Being aggrieved with the conviction and sentence this criminal appeal has been preferred by the appellant.
12. Heard Shri Balwant Singh, learned counsel for appellant as well as Shri R.P. Pandey, learned A.G.A. for State and perused the record.
13. Learned counsel for the appellant submits that he is innocent and has falsely been implicated in this case. The conviction and sentence passed against him is against weight of evidence on record which is bad in law. He further submitted that in this case, F.I.R. had been lodged after two days' delay without sufficient cause. There is no any independent witness of the occurrence. P.W.1-informant is father of victim and P.W. 4 is mother of victim. Both of them are not eye-witnesses. The sole witness of the incident is victim herself. None saw the victim to be taken by the appellant to the field of sugarcane. Even during pathological examination, no spermatozoa and gonococci were found in the vaginal smear. This fact has not been taken into consideration by the learned trial court. The injury found on the private part of the victim would have been caused by falling on some hard and blunt object like cut root of sugarcane. No any external injury was found on any part of body of victim. The absence of spermatozoa in vaginal smear also verify that injury was not caused by penetration but by falling on the cut root of sugarcane. The trouser of the victim was also not sent for chemical examination to assure as to whether it was blood stained or not. In this way, it cannot be concluded that the injury to the private part of the victim was caused by appellant while committing rape. He further argued that the incident was narrated by the victim to her mother and father. Her father lodged the F.I.R. but in written Tahreer Ext. Ka-1 informant has not disclosed that incident was narrated to him by the victim. Even during his examination before the court, he has disclosed that he came to know about the incident from the villagers not from the victim. The statement made by the informant and victim are contradictory, yet learned trial court has relied on such statements. The statement of victim is also not reliable and does not get corroboration with the medical report. He has further argued that in this case investigation was conducted by the Sub-Inspector R.N. Tandon but he has not been examined before the court by the prosecution. In such a way, learned trial court has held guilty to the appellant against established principle of law and conviction and sentence based on such evidence is not sustainable, therefore, impugned judgment is liable to be set aside and appeal to be allowed.
14. Learned A.G.A. vehemently opposed the contentions made by learned counsel for the appellant and submitted that in this case delay in lodging the F.I.R. has been explained properly by the informant even in his written Tahreer as Ext. Ka-1 and also during his examination before the court. Appellant took the victim with him into the field of sugarcane on the pretext of sprinkling insecticide when she was alone at her house and parents were out. As soon as they returned, she narrated the incident to them, thereafter they lodged an F.I.R. She was medically examined and injury was found at her private part. Though, spermatozoa and gonococci were not found in vaginal smear but there was bleeding present from the tear of hymen of the victim. On the basis of which doctor conducting the medical examination has opined that rape was committed with the victim. It is not necessary that spermatozoa and gonococci would be present on the private part of the victim or in the vaginal smear. For the offence of rape only penetration is sufficient as defined under Section 375 IPC. There was no cut root in the field of sugarcane at that time as is clear from the statement of victim herself. Even the doctor-P.W.2 has also not expressed possibility about the injury to be caused otherwise. Victim has stated categorically about the incident as taken place with her and she also complained of it to her mother and also stated about it before the court. During cross-examination also she has supported the version of rape with her. There is no any material contradiction which is likely to affect her testimony adversely. The medical report and testimony deposed by doctor-P.W.2 also corroborates the version of rape as stated by the victim and supported by her mother as P.W.4. It cannot be said that lack of independent witnesses falsify the prosecution case. In such cases of rape accused always chooses some secret place where ingress and egress of people would not be possible. It is settled principle of law that in case of rape the testimony of victim is sufficient to hold conviction of accused, corroboration is not necessary at all, if the account given by the victim inspire confidence. In the present case, victim was aged about 8 years, she was alone at her house and on the pretext of sprinkling insecticide in the field appellant took her with him to the field of sugarcane where he committed rape with her. She became unconscious on the place and was brought to the home of appellant by his younger brother and after giving some primary treatment by his mother, she was left to her home. As soon as the parents of victim came back from outside to their house, victim narrated the incident as happened with her to her mother on which F.I.R. was lodged. The testimony of victim as well as her mother inspire confidence and it is corroborated with the testimony of medical expert, therefore, no suspicion arises in the case about the complicity of appellant in committing rape with victim. Learned trial court has considered all facts along with evidence and concluded that rape was committed with victim by the appellant and convicted him which is based on sound principle of law. The impugned judgment is not bad in the eye of law but the appeal lacks merit which is liable to be dismissed.
15. Learned counsel for the appellant has lastly submitted that appellant has been languishing in jail since long and at the time of commission of offence he was too young i.e. about 25 years old. It was his first offence. He comes from a poor family. The award of life imprisonment and fine of Rs. 50,000/- is excessive. This fact was also mentioned before the trial court but not considered at the time of awarding punishment and without assigning any reason maximum punishment for said offence was awarded which should be mitigated in the present case. The learned A.G.A. appearing for the State vehemently opposed the submission.
16. From the submissions and perusal of record, the following questions emerge for consideration of this court as to whether there was delay in lodging the F.I.R, witnesses are relative and no independent witness have been examined. No spermatozoa and gonococci found in the vaginal smear, nature of injury is not likely to be caused with penetration but it suggests to be caused by falling on cut root of sugarcane or some other hard and blunt object. Contradictions in the statements of witnesses, none examination of Investigating Officer and at last the excess of punishment.
17. Before we deal with the contentions raised by learned counsel for the appellant, it will be convenient to take note of the evidence which has been adduced by the prosecution.
18. P.W.1 Ramakant is father of victim who has deposed that age of his daughter (victim) was about 8 years. She was playing at the door at about 2 p.m. His wife was at home. The house of appellant Munna Alias Teerathraj was located in south of his house. He works in the field of Munna Alias Teerathraj. On the pretext of sprinkling insecticide in the field of sugarcane, he took his daughter. There being loneliness, he committed rape with his daughter. She became unconscious from where, she was brought by her mother. He was not at home but came back on the next day evening. Her mother narrated the story to him. He was going to lodge the F.I.R. but prevented by the people belonging to the caste of Munna Alias Teerathraj, thereafter on the next day, he went to police station with written Tahreer in company of other persons where F.I.R. was lodged. He identified his signature on the written Tahreer which was marked as Ext. Ka-1. Her daughter was examined medically by lady doctor. The statement of his daughter was recorded by the policemen. Her trouser was also taken and memo was prepared by the police. Site plan was also prepared by Sub-Inspector R.N. Tandon after visiting the site. This witness was subjected to gruel cross-examination by the learned counsel for the appellant in which he has disclosed that on the day of incident, he was out and when he came back the villagers narrated him about the incident. His wife did not tell him, thereafter he went to police station for lodging the F.I.R. He got the Tahreer written by Vairister. Victim was also brought to police station.
19. P.W.2 Dr. Rita Barnwal has deposed that on 22.6.1996, she was posted as in-charge Medical Officer, Women Hospital, Padrauna. On that day, victim aged about 11 years was brought to her by constable Prem Shankar Singh. She examined her. General examination:- Her height 129 c.m. Weight 20 Kg. Teeth 13/11. The maternal uncle was with her. According to him incident took place at about 2 p.m. on 19.6.1996. There was no any mark of external injury on the body of victim. Linear tear 2 c.m. on posterior wall of vagina was found. A linear tear margin of tear in whitish in colour. Vascularisation seen in the wound. Hymen not present. Vagina admits little finger. During examination, blood was oozing from the tear. Vaginal smear was taken and handed-over to constable Prem Shankar Singh C.P. for pathological examination about spermatozoa and gonococci. Victim was sent to District Hospital Deoria for verification of age and x-ray of right knee, right ankle, right elbow and right shoulder joint. Vaginal injury was found to be caused with some hard and blunt object by forceful penetration. Injury was simple in nature and 3-4 days old. Medical report was prepared in her writing and signature and on which identification mark and thumb impression of victim was affixed, which has been proved as Ext. Ka-2. X-ray and pathological reports were received on 26.6.1996 and then supplementary report was prepared. As per x-ray report elbow, ankle, knee, wrist epiphysis joint were not fused. Number of carpal bone in wrist was seven. In pathological report, there was no spermatozoa and gonococci in vaginal smear. On the basis of radio-logical and pathological report, the evidence of rape was found. The age of victim was about 9 years old. She prepared supplementary report and proved it as Ext. Ka-3.
This witness was also subjected to cross-examination by the learned counsel for the appellant, during her cross-examination she has cleared that there were no mark of teeth bite on the cheek or breast of the victim. The injury sustained on the vagina could be possible with penis which could be hard and blunt object. She has further cleared that if victim fell in the field of sugarcane or on stone, such type of injury could not be sustained because by falling in such a way injury on other near by parts might also be sustained. Since, there was no any such injury, therefore, injury could not be sustained by falling. She has also opined that for the offence of rape presence of spermatozoa is not necessary. She found the evidence of rape on the basis of nature of injury which disclosed that rape was committed. Further she has categorically denied that such injury could be sustained by falling on any pointed thing.
20. P.W.3 victim has deposed that at about 2 p.m. she was at her door where appellant Munna Alias Teerathraj came and took her on the pretext of sprinkling insecticide in the field of sugarcane. There was, Raj Kumar younger brother of appellant, present whom he sent for purchasing biscuit from chauraha. When there was loneliness he opened her trouser by force and committed rape with her. Blood began to ooze from her private part. She became unconscious. Younger brother of appellant, Raj Kumar brought to her to his home. She was feeling pain and was weeping. Mother of appellant said to her that she would treat her. After treatment she left her at her home. At evening about 4 o'clock her parents came back, at the time of incident her parents were not present at home. She narrated the incident to her parents. Her father took her to the police station from where she was brought to Government Hospital for medical examination. She was examined medically and treatment was given in Government Hospital, Deoria. Her statement was also recorded in the court before the Magistrate and also she was examined by Investigating Officer.
This witness was also subjected to gruel cross-examination by the learned counsel for the appellant in which she stated that the house of appellant Munna Alias Teerathraj was near to her house. When the appellant came to call, she was alone. Her parents were not present. She went to the field. Appellant was having machine used for sprinkling pesticide. He told to sprinkle pesticide. She also stated that appellant made her fall down, opened her trouser and made her naked. He put off her sameej and committed rape with her in the mid of sugarcane field. He put off his pant. She became unconscious on account of rape. When she cried, Raj Kumar came there who lifted her then she became conscious and took her to his house. Blood was oozing from her vagina. There was no other injury. He made her wear her trouser. Her parents were out and came back about 4 o'clock then she narrated the incident to them. In the meantime, mother of Raj Kumar provided treatment to her. Appellant did not bite on her cheek. F.I.R. was lodged on the next date of incident. She has denied the suggestion that while cutting sugarcane, she fell down and sustained injury with the sugarcane. She has also denied the suggestion for implicating him falsely.
21. P.W.4 Phoolmati, mother of victim has deposed that she was out in relation to Jajmani. Victim was alone at her house. When she came back about 4 o'clock her daughter was at home and was weeping. She was lying disorderly. She told her that appellant took her on the pretext of sprinkling insecticide in the field of sugarcane and he sent his younger brother Raj Kumar, to bring biscuit from Chauraha and he committed rape in the field of sugarcane forcefully. Blood was oozing from the vagina of the girl and blood stains were present on her trouser. She also narrated that brother of appellant, Raj Kumar brought her to his home and his mother provided treatment to her and dropped her at home. On the next day her husband went to police station with the victim and lodged an F.I.R.
This witness was also subjected to exhaustive cross-examination by the learned counsel for the appellant in which she has answered clearly the questions put to her. She stated that she was out in relation to Jajmani and came back at 4 o'clock. She examined the body of her daughter. The clothes worn by the victim were blood stained. There was no other injury on the body of victim except oozing blood from her vagina. Her husband came back on the next day, she narrated the story to her husband then he took the victim to police station. She has also stated that she went to the place of occurrence with the victim. The incident took place in the mid of the field of sugarcane. No person of the village told her to have seen the incident. There was tear in the vagina of the girl from where blood was oozing. She has denied the suggestion put to her on behalf of appellant that there was quarrel with the family of the appellant from before and also there was party-bandi in the village with her.
22. P.W.5 Shambhu Kushwaha, head-master of primary school has deposed about date of birth of victim as 04.07.1991 on the basis of school record.
23. P.W.6 Sub-Inspector Virendra Pratap Singh has deposed that on 21.06.1996 he was posted as head-constable in the police station and on the basis of written Tahreer, he lodged an F.I.R. as Crime No. 142 of 1996 under Sections 376 & 506 IPC in his writing & signature and proved as Ext. Ka-4. Detail of which was entered into G.D. in his writing & signature which he proved as Ext. Ka-5. He has also stated that investigation of the case was handed-over to Sub-Inspector R.N. Tandon. He has further stated that Sub-Inspector R.N. Tandon was also posted at police station and he saw him while reading and writing and was well acquainted with his handwriting. He proved site plan as Ext. Ka-6 and charge sheet as Ext. Ka-7 being in writing and signature of Sub-Inspector R.N. Tandon. He further stated that Sub-Inspector R.N. Tandon has died.
24. So far as the argument relating to delay in lodging the F.I.R. in a rape case is concerned, it is not of much "significance" as the victim has to muster courage to come out in open and expose herself in a "conservative social milieu".
In rape cases the delay in filing the FIR by the prosecutrix or by the parents in all circumstance is not of significance. Sometimes the fear of social stigma and on occasions the availability of medical treatment to gain normalcy and above all psychological inner strength to undertake such a legal battle.
25. In the case of H.P. vs. Shree Kant Shekari, (2004) 8 SCC 153 the Hon'ble Supreme Court has held that:-
"18. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of first information report does not in any way render the prosecution version brittle. These aspects were highlighted in Tulshidas Kanolkar v. State of Goa."
26. In the case of Sohan Singh and another vs. state of Bihar (2010) 1 SCC 68 the Hon'ble Supreme Court has held as under:-
"12. As far as delay in lodging the FIR is concerned, we are also satisfied that it cannot be termed to be inordinately delayed. Even otherwise, in our considered opinion too, it cannot be said that there has been inordinate or unexplained delay in lodging the FIR.
13. When FIR by a Hindu lady is to be lodged with regard to commission of offence like rape, many questions would obviously crop up for consideration before one finally decides to lodge the FIR. It is difficult to appreciate the plight of the victim who has been criminally assaulted in such a manner. Obviously, the prosecutrix must have also gone through great turmoil and only after giving it a serious thought, must have decided to lodge the FIR. Precisely this appears to be the reason for little delayed FIR. As mentioned hereinabove, the delay has already been found to be properly explained by both the courts below. Thus, we are not required to deal with this issue any more."
27. In the instant case, incident took place on 19.6.1996 and F.I.R. was lodged on 21.6.1996 at 11.15 o'clock after two days. In the written Tahreer as Ext. Ka-1 the cause of delay has been explained by informant as he was not present at his home on the da