Judgment reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 48 of 2008 Kailash. ……..…Appellant. Versus State of Uttarakhand. …….….Respondent. Present: Mr. B.S. Adhikari, Advocate for appellant. Mr. Nandan Arya, learned AGA for the State of Uttarakhand/ respondent. Coram: Hon’ble B.C. Kandpal, J Hon’ble Nirmal Yadav, J. (Per Nirmal Yadav, J) Appellant has preferred this appeal against the judgment and order dated 28.09.2007 passed by Additional Sessions Judge / 1st FTC, Haldwani, Nainital in sessions trial no. 99 of 2006 whereby the learned trial court convicted the appellant under section 376 (2)(f) of the Indian Penal Code (hereinafter referred to as “IPC”) and sentenced him to undergo 15 years rigorous imprisonment and a fine of Rs. 5000/- and also convicted under section 506 IPC and sentenced him to pay a fine of Rs. 2000/-. In default of payment of fine, he has been ordered to further undergo one year simple imprisonment. Out of above fine so deposited in the court, Rs. 4,000/- has been ordered to be paid to the victim, who is minor, through her parents. This is an unfortunate case of a five year old girl child who has been a victim of the appellant, who is a 2 very close relative (brother of her uncle’s wife) and was living in the neighbourhood. On 06.04.2006, complainant Diwan Ram, father of the victim had gone to attend some religious function (Jagaran) along with his wife. Accused appellant Kailash had taken the victim with him on the pretext of taking her to attend the same function. Complainant and his wife came back home at 11.00 o’clock in the night but they did not find their daughter at home. Around 11.30 p.m. she was found outside the house smeared with blood. She disclosed to her parents that accused appellant Kailash, instead of taking her to Jagaran, had taken her to his house and committed rape upon her and thereafter, he left her outside and threatened her not to disclose anything to anyone, otherwise, she will be finished. During night the complainant did not disclose about the incident to anyone out of fear. On the next morning, he disclosed about the incident to her neighbours, who informed the police on telephone. The victim was taken to the hospital where she was medico-legally examined. Thereafter, the complainant got the application scribed (exhibit Ka1) from PW1 Shankar Lal and submitted the same to police station – Kathgodam. On the basis of said complaint, chick FIR (exhibit Ka6) was recorded on 07.04.2006 at 1.30 p.m. The investigation was undertaken by PW7 Mohd. Zaheer Khan. He went to the house of the complainant and took into possession the clothes worn by the victim vide memo exhibit Ka 5 and recorded the statement of victim. He inspected the spot, prepared 3 scaled site plan (exhibit Ka 9). He also took into possession quilt-cover stained with blood from the house of the accused vide memo exhibit Ka 10. He recorded the statement of other witnesses on the same day. The accused was also arrested on the same day in the evening. Accused appellant Kailash disclosed that he could recover the underwear of the victim which he had hidden near the bushes of the house. On his pointing out underwear of the victim was taken into possession vide memo exhibit ka 11. The underwear of the accused was also taken into possession vide memo exhibit ka 12. The accused was medico legally examined on 11.04.2006. The underwear of victim and of the accused, quilt cover stained with blood were sent for chemical examination. Report of Forensic Science Laboratory is exhibit Ka16. On completion of the investigation, challan was presented and accused was charged under section 376 (2f), 506 IPC to which he pleaded not guilty and claimed trial. The prosecution, in order to prove its case, produced as many as eight witnesses. PW1 Shankar Lal, is scribe of the complaint. PW2 is the victim. PW3 Diwan Ram, PW5 Prema Devi and PW8 Phool Chand, are the father, mother and uncle of the victim respectively. PW4 Dr. Sangeeta Tripathi, medico- legally examined the victim. PW6 Shankar Ram Head Constable had recorded the FIR on the complaint 4 submitted by PW3 Diwan Ram. PW7 Mohd. Zaheer Khan, is the Investigating Officer. Accused when examined under section 313 Cr.P.C. denied the incriminating evidence put to him by the prosecution and pleaded false implication. According to him, PW5 Prema Devi, mother of the victim was having dispute with his sister Heera Devi, wife of PW8 Phool Chand. PW8 Phool Chand is stated to have thrown out his sister Heera Devi from the matrimonial home. Since accused appellant Kailash had been defending his sister, therefore, he has been falsely implicated. Heera Devi, sister of the accused appellant Kailash, appeared as DW1. We have heard learned counsel for the parties and gone through the entire evidence and documents on record. Learned counsel for the appellant argued that from the perusal of the testimony of the victim it is clear that she did not understand the sanctity of deposition before the court. She remained quiet when several questions were put to her by the court before lunch. But her mother had tutored her during the lunch time and after lunch, when the case was taken up she gave replies to all the questions. In the cross examination she specifically stated that she had been told by her mother and Mahesh, Gram Pradhan as to what statements is to be made in the court. Thus, she has been tutored by her mother and others during the lunch and even before her deposition. 5 He further submitted that as per the evidence on record, it is established that there was a dispute between appellant’s sister Heera Devi and PW8 Phool Chand, brother of PW3 Diwan Ram. PW8 Phool Chand was having an affair with PW5 Prema Devi, mother of victim, thus, there were serious differences between Heera Devi and Prema Devi. Heera Devi had been thrown out of the matrimonial home by PW8 Phool Chand. This fact has been admitted by PW2, the victim, in her cross-examination. Since accused had been supporting his sister he has been falsely implicated in this case in collusion with Gram Pradhan. The next argument raised by the learned counsel for the appellant is that actually the alleged crime was committed by uncle of Kaajal, as he had left the victim during that night outside the house. However, this fact was not even investigated by the Investigating Officer, as to who this ‘uncle of Kaajal’ was. The victim is stated to be in the company of said ‘uncle of Kaajal’ immediately prior to the time when she was found by her father in an injured condition. Learned counsel for the appellant argued that the FIR has been lodged on the next day which also cast doubt in the prosecution case. Lastly, learned counsel for the appellant argued the ingredients of section 376 IPC are not established. As per medical evidence, no offence of rape was committed upon the victim. It is not proved on record 6 if there was complete penetration with the emission of semen and rupture of hymen. On the other hand, learned AGA submitted that mere dispute between uncle of the victim and his wife Heera Devi or jealousy between mother of the victim and Heera Devi, sister of the accused cannot be a ground to falsely implicate the accused appellant Kailash, who is also a close relative of the complainant. The complainant would not like to stake the honour of his daughter on this account. He further submitted that testimony of the victim, who is a child, has been totally convincing and her testimony is fully corroborated by the medical evidence. On careful consideration of the rival submissions of learned counsel for the parties and perusal of evidence on record, we find that PW2, the victim is the star witness in this case. It is true that she being a child her testimony has to be scrupulously examined with microscopic eyes and has to be accepted cautiously. The court has to satisfy itself in a case where the victim of rape is the girl of tender age, that she has clear understanding and adequate intellectual capacity to narrate the alleged crime. Omission on the part of trial court to record a certificate that child witness understood the duty to deliver the truth before the court does not in any way adversely affect admissibility of her evidence when such a witness has withstood satisfactorily to the searching questions. She cannot be disbelieved only because of minor 7 contradictions or the mere fact that she remained quiet to some of the questions put to her during her examination. Witness was asked number of questions by the defence counsel and the court and she replied quite satisfactorily. The trial court has clearly mentioned that child was capable of answering the question put to her. The victim categorically and specifically pointed out towards the accused stating that accused is her mamu, that of course, he is, being the brother of her uncle’s wife and therefore, she rightly called him mamu. She further categorically stated that he took her to his house when her parents were not at home and after taking her to his house he scratched her with his nail and also bitten her with his teeth and closed the channel of his house and had torn her clothes. She further stated that there was bleeding from her vaginal part. From the answer given by the victim we are quite satisfied that victim had given satisfactory answers and had explained the act done by the accused. Mere fact that she remained quiet to some of the questions put to her as to how blood was coming out from her urinary tract etc. etc., does not in any way demolish her testimony. Argument of learned counsel for the appellant that the victim had been tutored by her mother and others cannot be accepted. We fail to understand how a child of five year would be tutored in such a short duration. After going through the testimony which was recorded after lunch also shows that her testimony is quite convincing and truthful. It appears that she 8 has not been able to understand the nitty-gritty of the legal questions while answering to the repeated questions put by the defence counsel. She might have endorsed to the questions put to her repeatedly by the defence counsel, however, her answer to all the questions are quite innocent and appears to be convincing and truthful. Despite strenuous cross examination, nothing could be brought out to discredit her testimony. In fact, the decision on the question whether child witness has sufficient intelligence primarily rests with the trial court, who notices the demeanor, apparent possession or lack of intelligence of the witness, and thus, the trial court may resort to any examination, which will tend to disclose the capacity of intelligence and understanding of such witness. The decision of the trial court can only be disturbed by the appellate court, if from what is preserved in the records, it is clear that conclusion drawn by the trial court is erroneous. It is of course necessary to examine the testimony of child witness carefully as the child witness is amenable to tutoring and liable to be influenced easily, however, it is also accepted norm that if after careful scrutiny of the testimony of such witness the court comes to the conclusion that there is an impress of truth in it, the evidence should be accepted without any other corroboration. The argument that there is delay in lodging the FIR is without any force. Ordinarily, when the honour 9 of girl child is involved, family of the victim would not intend to get stigma attached to the victim. Delay in lodging the FIR in such a case would be normal phenomenon as parents would think many a times before going to the police, more so, when accused is a relative of the family. After going through the entire testimony of this witness, we are of the view that evidence of victim is quite convincing and truthful and the trial court has rightly accepted the evidence of this witness. The testimony of this witness is fully corroborated by the medical evidence. PW4 Dr. Sangeeta Tripathi found external injuries on the person of the victim. Contusions have been found on the right cheek and neck. Scratch of nails found on the left and right thigh. Laceration was found on the vaginal orifice. Hymen has been found red and injured. The doctor has categorically stated that the victim has been sexually assaulted. She gave specific opinion that rape had been committed on the victim as the penetration has been proved because her hymen was found red and injured. Though she stated that as per forensic lab report symptoms of complete penetration has not been found. This opinion of the doctor appears to be quite erroneous. In Modi’s Medical Jurisprudence 23rd Edition, at page 897 – 928, it is observed as under: “To constitute the offence of rape, it is not necessary that there should be complete 10 penetration of penis with the emission of semen and the rupture of hymen. Partial penetration of penis within the labia majora or the vulva or pudenda, with or without the emission of semen, or even an attempt of penetration is quite sufficient for the purpose of law. It is therefore, quite possible to commit legally, the offence of rape without producing any injury to the genitals or leaving any seminal stains. …………. In small children, the hymen is not usually ruptured but may become red and congested along with the inflammation and bruising of the labia. If considerable violence is used, there is often laceration of the fourchette and the perineum.” Keeping in view the medical jurisprudence and the nature of injury found on the victim, we are of the considered opinion that the rape was committed on the victim. To constitute the ingredient of rape, it is not necessary that there should be complete penetration. Learned counsel for the appellant argued that prosecution has not been able to bring on record as who was alleged ‘uncle of Kaajal’. As per the statement of victim, she was left by uncle of Kaajal and even Diwan Ram also says that his daughter was brought by uncle of Kaajal. Thus, it was very important to know and find out who this Kaajal’s uncle was and how he was ‘last seen’ with the victim. This argument of the learned counsel for the appellant is quite 11 misconceived and without any force. In fact, this argument is just a figment of imagination of the accused. A suggestion was also given to the witnesses that rape might have been done by ‘uncle of Kaajal’, however, this has not been further clarified even by the defence counsel as to how this ‘uncle of Kaajal’ was connected with the incident. Moreover, if such an act was done by ‘uncle of Kaajal’, parents of victim would not shield the real culprit and rope in an innocent person, more so, when accused is a neighbour of the complainant and close relative of the complainant’s family. Even if PW8 Phool Chand and his wife Heera Devi were having strained relations but no father would like to put the honour of his daughter at stake only because there was dispute between his brother and brother’s wife. In the present case there is no dispute with regard to identity of the accused. The victim disclosed all the facts to her father and mother, immediately, after the occurrence. Even she pointed out towards the accused in the court, therefore, there is no question of false implication. The prosecution story is further fortified by the statement of PW3 Diwan Ram and PW5 Prema Devi, to whom victim had disclosed all the facts immediately after the occurrence. Testimony of Heera Devi, sister of the accused, appears to be biased and interested. She is admittedly the elder sister of the accused. Her statement that PW5 Prema Devi usually quarreled with her so that she could live with her husband PW8 Phool Chand and Diwan Ram gave her 12 beatings and thrown out of the matrimonial home, does not appear to be plausible. If that was the case, Diwan Ram would not support his own wife Prema Devi and give beatings to Heera Devi, wife of his brother. Heera Devi was living at her parent’s house at the relevant time and accused appellant Kailash was living alone. The plea of the accused that he has been falsely implicated at the instance of Mahesh, Gram Pradhan has not been substantiated from any cogent evidence. If accused Kailash had any grudge that would be against Phool Chand and not against Diwan Ram and Prema Devi. Neither parents of the victim nor Phool Chand would gain anything if they falsely implicate the accused in this case. We fully agree with the findings recorded by the trial court, who has relied on the testimony of the victim and has found her testimony cogent and reliable to base the conviction of the accused. We are, therefore, of the opinion that the impugned judgment and order passed by the trial court warrants no interference by the court, thus the same are affirmed. For the reasons recorded above, the appeal has no merit and is dismissed accordingly. (Nirmal Yadav, J.) (B.C. Kandpal, J) 21.05.2010 SKS