1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR J U D G M E N T Babu Khan Vs. State of Rajasthan. DB CRIMINAL JAIL APPEAL NO.1061/2003. DATE OF ORDER: 4th May, 2010. HON'BLE MR.JUSTICE S.P.PATHAK HON'BLE MR. JUSTICE K.S. CHAUDHARI Mr. S.P. Poswal for the appellant. Mr. J.R. Bijarania, PP for the State. BY THE COURT (PER HON'BLE PATHAK,J): This criminal appeal under section 374 Cr.P.C. has been filed by the accused-appellant Babu Khan against the judgment of conviction and order of sentence dated 31st March, 2003 passed by the learned Special Judge, Women Atrocities and Dowry Prohibition Cases cum Additional Sessions Judge, Jaipur District, Jaipur in Sessions Case No.90/2002 whereby the accused-appellant has been convicted under section 376 IPC and sentenced for imprisonment of life and a fine of Rs.25,000/-, in default of payment of fine to further undergo five years rigorous imprisonment. 2. Briefly stated the facts giving rise to the present appeal are that a written report (Ex.P-5) was submitted before Rajendra Singh (PW-6) as one Laxmi Narain (PW-8) informed on telephone in police station Phulera that a small girl of his village was raped. In the written report (Ex.P-5), it was, inter- 2 alia, stated that accused Babu Khan who is maternal father-in- law of Seema (PW-9) had come to her house on15.4.2002 from his village and was staying with them. It was also alleged that on the day of incident, since morning accused was taking liquor and between 1.30 p.m. to 2.00 p.m., she had to leave the house for buying tea leaves and when she returned back, she found that her daughter Naaz aged six months was lying on the cot and was crying loudly. It was also stated that accused was lying on her and was trying to insert his penis into her vagina as a result of which blood was oozing out of her vagina. On seeing her daughter being raped, she cried. As a result of her cry, her sister-in-law and some of the villagers of the vicinity came there. It was also alleged that accused when tried to run away from the place of incident after tightening his pent and washing underwear, he was caught by the neighbourers. It was also alleged that Naaz was raped in a very cruel manner as a result of which she fainted and her vagina torned and blood was coming out of the vagina. The accused be punished for the inhuman act committed by him. 3. On the basis of above report in the police station case no.81/2002 under section 376 was registered. 4. During the course of investigation, site was inspected, site inspection note was prepared, the clothes were seized by the police. Kumari Naaz was medically examined by Dr. Maya (PW-4). A report (Ex.P-4) was prepared in relation to 3 medical examination of Kumari Naaz. Articles seized were sent for examination to the Forensic Science Laboratory, Jaipur. The FSL report received is Ex.P-14. After completion of investigation, charge-sheet was filed in the court of sessions and ultimately the matter came for trial before the learned Special Judge, Women Atrocities and Dowry Prohibition Cases cum Additional Sessions Judge, Jaipur district, Jaipur. The learned trial court after hearing both sides framed charge for the offence under section 376 IPC against the accused- appellant to which he denied and claimed trial. 5. In support of its case, the prosecution examined as many as 9 witnesses and tendered 14 documents. After close of the prosecution evidence, explanation under section 313 Cr.P.C. was sought from the accused. In his explanation, accused denied the prosecution case and stated that he has been falsely implicated in the case by Laxmi Narain, Santra, Seema and Pappu in connivance with police. He has also stated that neither he was arrested from the alleged place of incident nor his clothes were seized by the police. He has stated that he had lended money to the complainant and when he asked the complainant to return the money back, they gave beating to him, as a result of which his right hand bone was broken and he sustained several other injuries on his person. He has further stated that he is impotent and is incapable of performing sexual intercourse. No evidence in defence was 4 produced. After hearing final submissions, the learned trial court convicted and sentenced the accused appellant as indicated above. 6. It has been the contention of the learned counsel that initial report in relation to the incident was given by Laxmi Narain (PW-6) regarding commission of offence and the subsequent report submitted by Seema (PW-9) is not the FIR. It has also been contended that the prosecution has changed the place of occurrence in as much as that as per Seema (PW- 9), the rape was committed in a room on a cot whereas in the site plan (Ex.P-7), the place of occurrence is a court-yard. It has further been contended that the appellant is incapable of causing penetration. It has also been contended that the medical examination report of the accused does not bear his signature and it is also not known as to who was the person examined to test potency because the appellant was not identified before the alleged medical examination. It is also contended that there are material contradictions in the prosecution evidence and particularly in the statement of complainant PW-6. Alternatively, it was argued that the appellant has served more than eight years of imprisonment and the sentence which has been awarded to the appellant is excessive, therefore, sentence awarded by the trial court requires to be reduced to the period already undergone by him. 5 7. On the other hand, learned public prosecutor contends that the present case is a glaring example of heinous offence committed by the accused. It is submitted that the accused did not even spare a six months old girl in the lust for sex as apparent and for such an act the sentence awarded to the accused is appropriate and the appeal deserves to be dismissed. 8. We have heard learned amicus curiea as well as learned public prosecutor for the State and carefully examined the material available on record. 9. The contention of the learned amicus curiea that the accused-appellant was impotent and was not competent to perform sexual intercourse, therefore, in the absence of identification of accused that he was actually medically examined, accused appellant can not be held guilty for the offence under section 376 IPC is liable to be rejected for the reason that Dr. Saroj Kumar (PW-2) in his statement has stated that on 17.4.2002 while he was posted as medical officer in the hospital, on the request of the SHO of the police station, he examined accused-appellant Babu Khan to ascertain as to whether he was impotent or potent. He has also stated that when he medically examined, he found that the accused- appellant was capable to perform sexual intercourse. The size of the penis was normal and after erection the size of the penis was 7 inches. The erection was present. After erection of 6 penis, angle was more than 45° from horizontal axis. He has stated that after examination he found that the accused was capable of performing sexual intercourse. In the cross- examination, he has stated that it has not been mentioned in the report (Ex.P-2) that on whose requisition the accused was examined and who identified the accused. He has also admitted that he has not written the method applied for erection of penis of the accused in the report. A perusal of the above statement of the doctor and the medical examination report (Ex.P-2) shows that the accused-appellant is fully developed man and his age at the relevant time was 52 years. In the report, identification mark of the accused was also mentioned and the doctor in his statement before the court stated that he examined the same person who was present in the court at the time of recording his statement on the basis of identification mark mentioned in the medical examination report Ex.P-2. So, in the above circumstances, simply to contend that the person who was examined by the doctor was some other and not accused appellant is not sufficient to discard the testimony of the doctor in the absence of any material to show that the statement of the doctor was not trust worthy. There is no suggestion put to the witness that in fact accused was not medically examined by him and the medical examination report Ex.P-2 was false. It is to be seen further that the opinion of the doctor in relation to potency is based upon proper clinical 7 examination of accused-appellant as stated in the report Ex.P- 2 which indicates that accused was competent to perform sexual intercourse and there appears no reason to discard the testimony of the doctor in this regard. 10. It has also been the submission of the learned counsel that on account of demand made by the accused in connection with the loan given to the complainant, a false case has been lodged against the accused-appellant, is also liable to be rejected for the simple reason that it is not in dispute that the accused is also in relation of the complainant. It is also not in dispute that the accused was staying in the house of the complainant, therefore, even if assuming for the arguments sake that the accused-appellant lended some money to the complainant, then why the complainant would involve the appellant in such a heinous crime where the reputation of her innocent daughter is involved only on making a demand to repay the loan by the accused-appellant. It is to be seen that Seema (PW-9) is the mother of Kumari Naaz who was subjected to rape has stood the test of lengthy cross- examination but nothing material could be extracted to believe that she has falsely implicated the accused in the case. Be that as it may, we agree with the reasoning given by the learned trial court that such a serious allegation would not normally be levelled in the Indian society by a mother where her minor daughter is involved because that allegation would 8 remain with the girl through-out her life. We are satisfied after scanning the evidence of Smt. Santra (PW-7), Laxmi Narain (PW-8) and Smt. Seema (PW-9) that the same inspires confidence and the argument raised that on account of asking by the accused to return the loan amount, the accused would be involved in such a heinous offence, is not liable to be accepted. 11. The contention of the learned counsel that in the instant case, Laxmi Narain (PW-8) informed on telephone to the concerned police station regarding the offence committed in his village, therefore, subsequent report given at spot by Smt. Seema (PW-9) cannot be treated as FIR in the present case is concerned, this argument is also liable to be rejected for the reason that on coming to know about the incident, Laxmi Narain (PW-8) being Sarpanch telephoned at the police station and gave information that some rape was committed in the village. Rajendra Singh (PW-6), SHO police station Phulera immediately reached at the spot after recording information in the rojnamcha. Rajendra Singh (PW-6) in his statement says that immediately after receiving the information on telephone, he made entry in the rojnamcha and reached at the spot where report (Ex.P-5) was handed over to him by Smt. Seema (PW-9) in relation to rape committed by the accused with her daughter Kumari Naaz, aged six months. The report (Ex.P-5) was immediately handed over to Bhanwar Lal, constable by 9 Rajendra Singh (PW-6) who took the report (Ex.P-5) to the police station for registering a case. Vijay Singh (PW-5) in his statement stated that he registered the case on the basis of report (Ex.P-5) in the police station as case no.81/2002. He has also stated that immediately after registering the case formal FIR (Ex.P-6) was chalked out and the signature of Bhanwarlal constable obtained by him at place 'C' to 'D'. He has also stated that the report (Ex.P-5) was thereafter sent to Rajendra Singh (PW-6), investigating officer. 12. In the above circumstances, on perusal of statement of Vijay Singh and Rajendra Singh Pws 5 and 6 respectively, there remains no doubt that Rajendra Singh (PW- 6) investigating officer, soon after receiving telephone at the police station regarding cognizable offence, reached at the spot, there a written report was handed over to him which was sent by him with Bhanwarlal to the police station where the case was registered by Vijay Singh (PW-5) on 17.4.2002. It is correct that in the present case Bhanwar Lal, constable has not been examined but the mere fact that he was not examined will not make much difference in view of the statement of Vijay Singh and Rajendra Singh Pws 5 and 6 respectively and also statement of Smt. Seema (PW-9) wherein the factum of submitting report (Ex.P-5) stands proved. 13. In view of above facts, we are of the opinion that it cannot be concluded that report (Ex.P-5) is not liable to be 10 treated as first information report and in fact the first information report was one which was received by Rajendra Singh (PW-6) through a telephonic message. 14. It has also been contended that in the instant case, medical evidence is not sufficient to prove that Kumari Naaz was raped by the accused because from the cross-examination of the doctor, it would appear that the injuries on the vagina could have been suffered by the victim by falling on some hardand blunt object. According to the learned counsel that such injuries could be suffered by victim by falling on hard and blunt substance. If that be so, then to say that the accused committed rape on the basis of statement of Smt. Seema (PW- 9) alone, it cannot be said that the prosecution was able to prove the case against the accused beyond reasonable doubt. It has also been contended that in the instant case, there is no statement of the prosecutrix Kumari Naaz as she was alleged to be six months old when the incident took place. 15. On the other hand, it is contended that the medical evidence clearly suggests that the victim suffered injuries on her vagina and blood was oozing out and there is no reason why the mother of the victim would tell lie and involve an innocent person particularly a person who is in her relation. 16. We have considered the above submissions. 17. It is to be seen that Smt. Seema (PW-9) has specifically stated that the accused was inserting his penis into 11 the vagina of her daughter while the victim was lying on the cot on the day of incident. Dr. Maya (PW-4) in very clear terms has stated in the report (Ex.P-4) prepared by her that the injury on vaginal wall internally seen with bleeding from vagina and part of rectum was also injured. The injury was about 1/2 cm in irregular shape extending upto rectum. The injury was deep and involving skin, muscles of mucosa with rupture of hymen. The statement of Smt. Seema (PW-9) is corroborated with the medical evidence and also with the evidence of Santra (PW-7) and Laxmi Narain (PW-8). The above witnesses have stated that the victim was seen by Smt. Seema (PW-9) while she was being raped and on making hue and cry by Smt. Seema (PW- 9), the mother of the victim, other persons also came there. They saw that the accused at that time was trying to run away from the place of occurrence, he was caught and was given beating. As a result of beating he also sustained injuries. 18. The law is well settled on the point that if the court is satisfied from the evidence led in the case that victim was subjected to rape then on such evidence conviction can be recorded. In the instant case, the learned trial court has also seen the victim in the court and also stated in the impugned judgment that there were marks of stitches on the lower part of vagina extending up to the rectum. 19. In the present case, as at the time of incident, the victim was six months old and when her mother Smt. Seema 12 (PW-9) was examined, in the court, the victim was only 1-1/2 years old then it was not possible to record her statement. The evidence of mother of victim which is corroborated by the medical evidence establishes the fact that Kumari Naaz was raped. The contention of the learned counsel that since as per the statement of Dr. Maya (PW-4) the injury could be suffered by the victim by falling on hard and blunt substance is concerned, in our opinion it would not be suffice to reject the evidence of Dr. Maya (PW-4) on this count alone. In the instant case, there does not appear any material to show that there was any enmity of the complainant with the accused. The accused appellant though in his statement under section 313 Cr.P.C. has stated that on asking the complainant to return the loan amount, a false case has been lodged against him, in our opinion, is not convincing reason in the absence of any material to discard the evidence led in this case. It has also been the contention of the learned counsel that the accused did not suffer any injury on his private part, therefore, it should be presumed that in fact he did not commit any rape with the victim. In our opinion, this argument is also of no help to the accused because the victim was of six months old delicate infant child, therefore, even if there was no injury on his private part found at the time of medical examination, is not sufficient to disbelieve the evidence adduced by the prosecution in the case. 13 20. Now, the alternate argument advanced by the learned counsel for the accused appellant that the accused- appellant is in jail since last more than eight years, therefore, the punishment which he has already suffered should be treated as sufficient, is concerned, we are of the opinion that in the instant case, the victim, infant child of six months, was subjected to rape by her relative committed such a heinous offence then he should not expect that on the quantum of sentence his matter should be considered sympathetically. 21. After carefully examining the evidence and the material brought on record and also the reasonings given by the trial court while appreciating the evidence, we are of the opinion that the trial court has rightly convicted and sentenced the accused and the appeal filed by the accused-appellant deserves to be dismissed. 22. In the result, this criminal appeal is dismissed. (K.S. CHAUDHARI), J. (S.P.PATHAK) J. BBLM