1. Heard learned counsel for the appellant and Shri Sharad Dixit, learned AGA for the Stae respondent.
2. This criminal appeal has been filed challenging the judgment and order dated 17.7.2010 passed by the learned Additional Sessions/Fast Track Court No.10, District Pratapgarh in case of State v. Ramu Tiwari, Sessions Trial No.102 of 2009, crime no.67 of 2008, under Section 376 IPC and Section 3 (1) (12) of the SC & ST Act, Police Station Maheshganj, District Pragapgarh by which the appellant was convicted under Section 376 (2) (f) IPC and was acquitted under Section 3 (1) (12) of the SC & ST Act, and was directed to undergo 10 years RI and to pay fine of Rs.10,000/-. In default of payment of fine, he was directed to undergo 6 months RI.
3. As per prosecution version, FIR was lodged by Sukhram in Police Station Maheshganj, District Pragapgarh on 24.3.2007, at about 7.35 AM, through an application that the informant had gone to work of brick klin at Moradabad. He had four daughters; one was married, and his three daughters and wife were living at home in village Kutalia Majre Raigarh, Police Station Maheshganj, District Pratapgarh. On 8.5.2008, his wife had gone to Shrengverpur Ghat to participate in the last rites of one villager, and his daughter no.2 had gone to school to appear in the examination. Daughter no.3 (the victim) and daughter no.4 were at home. When his wife returned in the evening, she found the the victim in a bad condition, then she went to sorcerer. When there was no improvement, she went to hospital at Kunda. The doctors raised their hands for treating her. As she had no money, she came back and informed him on telephone. He came back on 13.5.2008, and admitted her daughter in a hospital at Kunda where swelling in the intestine was found in the ultrasound. After some treatment, when her condition improved, he asked from his daughter, then she told him that on 8.5.2008, at about 9 AM, when she was washing utensils out side the house, the accused Ramu son of Kedarnath Tiwari called her and tried to give her money, but she refused, then he dragged her towards back side of the house, near the bush. When she tried to raise alarm, he gagged her by hand and raped her due to which her condition worsened. On this, a case under Section 376 IPC and Section 3 (1) (12) of the SC & ST Act was registered. The Magistrate took cognizance and committed the case to the court of sessions for trial. The trial court framed charge under Section 376 IPC and Section 3 (1) (12) of the SC & ST Act. The accused person pleaded not guilty and claimed to be tried.
4. The prosecution examined Sukhram, the informant as PW-1, the victim as PW-2, Prema Devi as PW-3, Dr. R.A. Verma as PW-4, Shivbaran Singh, Circle Officer as PW-5, Jangi Lal, Constable as PW-6 and Dr. Reena Prasad as PW-7. After the statement of accused, he was asked to enter into defence, but he did not adduce any evidence and stated that he has wrongly been implicated to to partibandi and enmity.
5. The court below, after going through the record and hearing the learned counsel for the parties, found the appellant guilty and convicted him under Section 376 IPC and the appellant was acquitted under Section 3 (1) (12) of the SC & ST Act. After conviction, he was directed to undergo sentence, as mentioned above.
6. Learned counsel for the appellant has submitted that no case under Section 376 IPC is made out. He further submitted that the appellant is innocent and he was implicated due to enmity on the behest of other villagers, and lastly, it was argued that if, at all, any case is made out against the appellant, it will be of attempt to commit rape. Learned counsel for the appellant also submitted that FIR is delayed and there is no eye witness of the incident. As there is no injury on the private part of the victim, occurrence appears to be doubtful, and thus, the appellant is liable to be acquitted. Alternatively, it was prayed that the appellant is in jail for the last six years, then the sentence be reduced to the period already undergone.
7. Learned AGA has opposed the appeal and submitted arguments in support of judgment.
8. Dr. R.A. Verma, PW-4 has conducted x-ray of the victim on 19.5.2008, and has proved x-ray Ex.Ka.2 and also proved x-ray plate, which is material Ex.1. This witness has stated in his examination in chief that on the basis of x-ray report, the age of the victim was ound to be 11 years. In his cross examination, this witness has stated that there can be variation of two years either way in the age fixed by him on the basis of x-ray report and x-ray plate.
9. Dr. Reena Prasad, Medical Officer, District Woman Hospital, Pratapgarh PW-7 has stated that on 17.5.2008, she was posted at District Woman Hospital, Pratapgarh. On that day, at about 2.15 PM, she has medically examined the victim, who was brought and identified by a woman constable 184 Akhtarunnisha. She has stated that on examination of her body following injuries were found: -
(1) Abraded contusion over left side of scapular region 6 cm x 4 cm. Black scab present;
(2) Abraded consution 5 cm x 3 cm about 9 cm below the neck between two scapulars;
(3) Abraded contusion 4 cm x 2 cm over the coceygral region. Black scab present;
(4) Abraded contusion 4 cm x 2 cm over the neck 7 cm above injury no.3. Black scab present. All injuries are over onw week old.
10. On examination of private part hymen was not intact and it admits one fingure with difficulty. All the injuries were found to be about one week old. The injury report was prepared by Dr. Reena Prasad, and it was marked as Ex.Ka.7. This witness has further prepared supplementary injury report and found the age of victim tobe about 11 years. She has stated that no clear opinion regarding sexual intercourse can be given. This supplementary report was proved and marked as Ex.Ka.8.
11. PW-2 the victim has stated on oath that on the fateful day, she was cleaning the utensils besides her house, as father and mother were not at home. The accused Ramu Tiwari came there and called her. When she refused to go, then he asked her to come and take money. She again refused, then Ramu Tiwari dragged her to nearby field, and after throwing her on ground raped her. She tried to raise alarm, but he gagged her. After committing rape, Ramu Tiwari fled away. She became unconscious. When she regained consciousness, she reached home and lied on a cot. When her mother came from funeral of one villager, she did not inform her mother about the incident due to fear. Her mother started her treatment. When her father came back from Moradabad, she informed her father, then her father lodged FIR. She has further submitted that she was produced before the Magistrate by the police, and she has given her statement before the Magistrarte.
12. PW-1 Sukhram - father of the victim has stated on oath that he has gone to work as labour in brick klin of Moradabad. His wife informed about the incident, then he came back on 13.5.2008. He got his dauther admitted in Mahavir Hospital, where x-ray was advised. After x-ray, treatment continued, but when there was no relief relief, he contacted the doctor, who told him that continue the treatment up to two days, and then there will be relief. Doctor further told him that cost of treatment will be Rs.1,200/- per day. He further stated that as he was unable to pay the amount, he brought back his daughter home. When after some time she felt relief, she informed him about the incident, then he got the FIR scribed from the munshi of village Pradhan. After hearing it, he found the narration correct and then he put his signature over that. Later on, he gave this to police of police station. The witness has proved FIR Ex.Ka.1 to be under his signature, and which was written on his direction
13. PW-3 mother of the victim has stated on oath that on the fateful day she had gone to attend the funeral of Sunder and along with the procession she went to Shringverpur. When she returned in the evening, she found her dauther in high fever. Her husband was not at home. He was at Moradabad. When there was no relief to her daughter, and her condition became serious, she informed her husband on telephone. Her husband came on 5th day of incident, then her daughter narrated the incident to him. After that her husband lodged the FIR.
14. No doubt, there is statement of the victim only against the accused, and there is no eye witness, hence her statement is to be scrutinized as if she is an injured witness. There are catena of judgments in which the Apex Court has held that an accused can be convicted on the basis of sole testimony of the prosecutrix without any further corroboration provided the evidence of the prosecutrix inspires confidence, and appears to be natural and truthfull.
15. Woman or girl raped, is not an accomplice and to insist for corroboration of the testimony amounts to insult to womanhood. On principle, the evidence of victim of sexual assault stands on par with evidence of an injured person. The evidence of a victim of a sex offence is entitled to great weight, absence of corroboration notwithstanding.
16. If the evidence of the victim does not suffer from any basic infirmity and "probabilities factor" does not render it unworthy of credence as a general rule, there is no reason to insist on corroboration except from the medical evidence where having regard to the circumstances of the case.
17. So far as the submission of no injury on the private part of the victim is concerned, Dr. Reena Prasad has categorically stated that hymen of the victim was found not intact. It is to be considered that the incident took place on 8.5.2008, and the victim was medically examined on 17.5.2008. The counsel for the defence of the trial court had the temerity to ask the victim about the thickness and size of male organ. The victim has stated that male organ was as thick as pen and 2 to 3 inches long. The victim has stated that she was dragged by the accused in a near by field. The injuries found by Dr. Reena Prasad is all are on the back side of the victim. This clearly goes to show that she was dragged. The doctor has specifically stated that the scab remains present for 5 to 7 days. Pointing out this fact, it was submitted that these injuries did not corroborate the dragging of the victim to the field on that date. The doctor, in her cross examination, has stated that scab formation starts after 12 hours of the injury, and the process of scabing is complete withi 24 to 36 hours, and the colour of scab brown remains up to 2 to 3 days, and after 3 to 5 days, this scab changes its colous to brown black. After 7 to 8 days scab starts to fall. The victim was medically examined after nine days of the incident. The colour of scab found by the doctor was black. This means that these injuries are within 5 days to 12 days old. It has not been specifically asked by the defence counsel that these injuries cannot be of 8.5.2008. It has not been suggested that she received injuries after the incident, thus these injuries corroborate the version of the victim.
18. Admittedly, the victim was 11 years old. She has no enmity with the accused, and there is no reason for falsely implicating the accused. Her parents also have no reason to falsely implicate the accused appellant. A sweeping suggestion was given that her parents work as labour for Mukesh and others and on their instigation and in greed of government money, the applicant has been falsely implicated. The witnesses PW-1 and PW-3 have denied this suggestion.
19. The statement of the victim is very natural. She has given her statement in a very natural way, and there is nothing to doubt her statement.
20. In the case of Radhakrishna Nagesh v. State of Andhra Pradesh, Criminal Appeal No.1707 of 2009, decided on 13th December, 2012, the Apex Court has held that the mere fact that the hymen was intact and there was no actual wound on her private parts is not condusive of the fact that she was not subjected to rape.
21. In the case of Hem Raj v. State of Haryana, (2014) 2 SCC 395 the Apex Court has held that absence of injury on the body of the prosecutrix is not a must to prove commission of rape. In this case, hymen was found to be not intact, so this clearly indicates of penetration. The evidence of the victim is fully corroborated by the medical evidence.
20. Learned counsel for the appellant has relied upon the decision of Apex Court in the case of State of Rajasthan v. Babu Meena, (2013) 4 SCC 206. This case is not of any help to the appellant, as in that case the prosecutrix statement was found to be wholly unreliable. The Apex Court has in that case held that oral testimony can be classified in three categories. (1) Wholly reliable, (2) Wholly unreliable, and (3) Neither wholly reliable, nor wholly unreliable.
21. I find the evidence of the victim to be wholly reliable.
22. So far as delay in lodging of FIR is concerned, the delay has been satisfactorily explained.
23. In view of the above, the appeal filed by the appellant is totally devoid of merit and is liable to be dismissed.
24. So far as the argument of reduction of sentence is concerned, learned counsel has not shown any mitigating circumstances to reduce the sentence. The appellant has raped an 11 years old girl. He deserves no mercy.
25. The criminal appeal is dismissed. The appellant is in jail. He shall remain in jail to serve out the sentence awarded by the trial court.
Order Date :- April 18, 2014 Anupam (Justice Arvind Kumar Tripathi - II)