Criminal Appeal No.317 of 1997

6th August, 2001

Petitioner Counsel: Shri N.N.MOTGHARE
Respondent Counsel: Shri B.H.LANJEWAR

JUDGMENT

JUDGMENT :- The order under challenge in this appeal was passed by the Second Additional Sessions Judge, Akola in Sessions Trial No.82/97 whereby she convicted the accused who is the appellant herein, of the offence under Section 376(2)(f) read with Section 511 of Indian Penal Code and sentenced him to suffer rigorous imprisonment for six years and to pay a fine of Rs.2,000/- or in default to suffer rigorous imprisonment for six months more.

2. The case of the prosecution is as follows :

(A) At the relevant time, prosecutrix Savita D/o Harischandra Khandare was residing at Sirso with her parents, 2 sisters and 2 brothers. That time, the prosecutrix was aged 11 years. Her sisters and brothers were younger to her. On the date of incident i.e. on 8.12.1996, the parents of the prosecutrix had gone for agricultural work. Since it was holiday it being a Sunday, the school was closed and the prosecutrix was at home only. Around 1 to 2 p.m. the prosecutrix left the house for answering the call of nature. Her sisters and brothers were present at home only. The prosecutrix was accompanied by Anta and Pinki. All the three went for answering the call of nature by Hirpur road. After easing, all of them were returning home. The accused/appellant came and told the prosecutrix that her mother was calling her in the field of one Narayanbuwa. The prosecutrix thereupon went to the field of Narayanbuwa. On reaching there she gave a call to her mother, but her mother was not there in the field. So, the prosecutrix got scared and she started running from that place. The accused who had followed the prosecutrix in the field shut her mouth by pressing his hand on her mouth. Then he removed the knicker of the prosecutrix and pressed her breasts. He made her lie down. He also undid his clothes and inserted his penis in the vagina of the prosecutrix. The prosecutrix felt some gummy substance on her private part. She started shouting. The accused thereupon fled from the spot. The prosecutrix went home weeping.

(B) On the arrival of her mother P.W. Gokarna at home in the evening, the prosecutrix narrated the incident to her. Gokarna informed the incident to the father of the prosecutrix. The father of the prosecutrix P.W. Harishchandra saw the clothes of the prosecutrix and noticed the stains of gummy substance thereon. He also observed the private part of the prosecutrix and noticed that it had a swelling. He took the prosecutrix to the house of Police Patil, but the Police Patil was not available. He then took the prosecutrix to Police Station. Murtizapur and the prosecutrix lodged an oral report. P.S.I Muley who was attached to Police Station, Murtizapur recorded the said report and registered the crime.

(C) P.S.I. Muley referred the prosecutrix to Laxmibai Municipal Hospital, Murtizapur for her medical examination. He also seized the knicker of the prosecutrix which she was wearing. The accused was brought from the village and was arrested. The clothes from the person of the accused i.e. Payjama and knicker were seized from him. He was also referred for medical examination.

(D) In the next morning P.S.I. Shinde who had received the case papers from P.S.I. Muley for further investigation, visited the spot and drew the spot panchnama. He then seized the other clothes of the prosecutrix on the production thereof by her mother Gokarnabai from the house. He also seized one tumbler produced by Anta form the house which was taken by the prosecutrix at the time when she went for answering the call of nature. The further investigation was carried out.

(E) The prosecutrix was medically examined by Dr.(Mrs.) Japsare on 8.12.1996 itself at 11.30 p.m. On external examination, she did not notice any injury on the back, thigh or abdomen of the prosecutrix. On local examination, Dr.(Mrs.) Japsare noticed a slight edema on the middle aspect on right and left labia majora. She also noticed the tenderness of labia majora. The labia minora was normal and there was no injury on that part. Her hymen was also not ruptured. In the opinion of Dr.(Mrs.)Japsare, the edema with tenderness which was present with labia majora was due to forcible attempt of coitus.

(F) On the same date, i.e. on 8.12.1996 at 10.45 p.m. Dr.Sharma who was the Medical Officer attached to L.D. Hospital, Murtizapur examined the accused medically. The secondary sexual characters of the accused were well developed and he was found able to perform normal sexual act. No external injuries were noticed on his body, pubic area and penis. No signs of forcible intercourse were noticed. The smegma underneath the glans penis was absent.

(G) The property i.e. garments of the prosecutrix as well as accused were forwarded to Chemical Analyser, Nagpur for examination. So also the vaginal swab and smear collected by the Medical Officer and the phials of the blood of the accused and prosecutrix were sent to Chemical Analyser for examination. The Chemical Analyser's reports were received. The reports of examination in respect of garments show that the Payjama of the accused was stained with human blood. So also few semen stains were detected on the jangiya of the accused as well as bodyfrock of the prosecutrix. However the group of blood or semen could not be determined as the results were inconclusive. No semen or spermatozoa was detected on the vaginal swab or smear.

(H) On completion of the investigation, the accused was charge-sheet.

3. The learned Additional Sessions Judge, Akola framed the charge of the offence under Section 376(2)(f) Indian Penal Code. It was read over and explained to the accused and he pleaded not guilty. At trial the prosecution in all examined 15 witnesses on its side. The accused claimed enmity with the father and uncle of the prosecutrix. According to him, his father and the father and uncle of the prosecutrix named Harishchandra and Vikram respectively were on rival terms with each other. He also pleaded that the father of the prosecutrix demanded money, but he refused to pay. For the above reasons, as per the accused, a false report came to be lodged against him and he was falsely implicated.

4. The learned trial Judge found that the offence under Section 376(2)(f) read with Section 511 I.P.C. was proved against the accused. She accordingly convicted and sentenced the accused as detailed earlier.

5. On going through the evidence of prosecutrix Savita, I find that it is most natural and convincting. There is no reason why the prosecutrix would state lie against the accused and would implicate him falsely. She does not appear to be a tutored witness. Her testimony is further corroborated by the evidence of P.W.8 Anta who was accompanying her at the time when she went for answering the call of nature and further by the evidence of her mother P.W. Gokarna whom she made the disclosure about the incident on her arrival at home in the evening. The evidence of prosecutrix Savita is as is detailed in the prosecution story above. The evidence of P.W. Anta is that, on the date of incident at about 2 p.m. she herself, Pinky and prosecutrix Savita went for answering the call of nature. While they were returning home after easing, the accused met them on the way. He told the prosecutrix that her mother had called her. The witness also claimed that the accused asked her and Pinky to go home and took the prosecutrix with him. The further contention of the witness is that the prosecutrix came home and she was weeping. The evidence of P.W. Gokarna who is the mother of prosecutrix is that, on the date of incident she returned home in the evening. She saw the prosecutrix weeping. She asked her as to why she was weeping and the prosecutrix narrated the incident to her in detail. The father of the prosecutrix, on getting the information about the incident from the mother of the prosecutrix, observed the private part of the prosecutrix and noticed swelling thereon and then he immediately took the prosecutrix to Police Station, Murtizapur. The report of the incident was lodged to Police Station, Murtizapur on the date of incident itself. The F.I.R. also corroborates the story of the prosecutrix. The further corroboration to the testimony of the prosecutrix is from the recitals in the spot panchanama Ex.17 which shows that at the place of incident the cotton plants were seen broken and the grass was seen trampled. The medical evidence also corroborates the testimony of the prosecutrix. A slight edema was noticed by Dr.(Mrs.) Japsare on the middle aspect of right and left labia majora with tenderness. In the opinion of Dr.(Mrs.)Japsare, the above findings suggest the forcible attempt of coitus. On medical examination of the accused, Dr.Sharma found him capable of performing the sexual intercourse. The Chemical Analyser's report Ex.32 also corroborates the story of the prosecutrix to the extent that the semen stains were detected on the Jangiya (Knicker) of the accused and the body-frock of the prosecutrix.

6. The learned counsel for accused/appellant submitted that the prosecutrix did not disclose the incident immediately on going home to her brothers and sisters who were present at home and she for the first time disclosed the incident to her mother in the evening when she arrived at home. The learned counsel also further canvassed that the evidence of P.W.Anta shows that her house is adjacent to the house of the prosecutrix and when the prosecutrix came home after the incident she was seen weeping, still the prosecutrix did not disclose the incident to Anta even and Anta also did not make any enquiry with the prosecutrix as to why she was weeping. It may be seen that all the brothers and sisters of the prosecutrix are younger to her. So she was not expected to narrate the incident to them. The brothers and sisters would not have been able to understand the gravity of the incident. The prosecutrix also had no reason to disclose the incident to her friends Anta and Pinky who had accompanied her for answering the call of nature. Naturally, after the incident, the prosecutrix must have been in a confused and frightened state of mind she being of the tender age. So she was not expected to disclose the incident to Anta and Pinky also who were not the members of her family. A girl will disclose the incident to elder member of her family who would be the person of her confidence. In the present case, the mother was the person of confidence of the prosecutrix and naturally, the prosecutrix waited for her arrival and soon after her arrival in the evening she disclosed the incident to her.

7. The counsel for the accused/appellant pointed out that the incident of rape is alleged to have happened in the broad day light. He further submitted that the days were of harvest and the labourers were bound to be present in the adjacent fields. The learned counsel also contended that when the prosecutrix allegedly gave a call to her mother in the field, the attention of the labourers in the surrounding fields would have been attracted. The spot panchanama and the map of spot drawn by the concerned agency show that the spot was surrounded by only two fields. There was a cotton and wheat crop standing in those fields. The agricultural operations in the wheat and cotton crop are not supposed to go on daily; but they are intermittent. The cotton is plucked when it becomes ripe and that time the labourers are engaged for collecting the cotton. If it is not ripe, then labourers are not engaged. So it cannot be presumed that the labourers must be present in the surrounding fields.

8. The learned counsel for the accused/appellant further pointed out that the medical evidence shows that there were no injuries on the back and buttocks of the prosecutrix and the absence of injuries on the above parts of the body would indicate that no sexual intercourse was performed with the prosecutrix. In this connection, it may be seen that the recitals in the spot panchanama show that at the place where the sexual intercourse was performed, the stems of the cotton plants were seen broken and the grass was seen trampled. The learned A.P.P. submitted that the above recitals in the spot panchanama show that some scuffle or resistance took place at the time of sexual intercourse, but since the cotton stems and grass are not stiff, there was no possibility of injuries. At the time of harvest in the beginning of December, the cotton stems are fragile. So also the grass is green and therefore smooth and soft. The recitals in the spot panchanama show that the sexual intercourse was committed on the ground covered by grass. Obviously, the injuries were not likely to be on the person of the prosecutrix. The absence of injuries on her back and buttocks thus stands explained.

9. The counsel for accused/appellant further canvassed that the medical evidence does not support the story of the prosecutrix that the sexual intercourse was performed with her. He pointed out that the hymen of the prosecutrix was not ruptured and no injuries were noticed by Dr.(Mrs.) Japsare on the labia minora of the prosecutrix. The fact that the hymen was not ruptured would at the most indicate that the penis was not inserted up to that depth. However the edema which was found present on the middle aspect on right and left labia majora which was also coupled with tenderness, is a suggestive factor. The edema noticed by Dr. Japsare was slight. She opined that the slight edema with the tenderness on the middle aspect of right and left labia majora was due to forcible attempt of coitus. The evidence of Dr.(Mrs.)Japsare shows that in the case of complete penetration, the hymen would be ruptured. In the instant case, since the hymen was not ruptured, it can be said that there was no complete penetration. But the evidence of Dr.(Mrs.)Japsare shows that the slight edema occurs due to slight penetration. Thus, it can be gathered form the medical evidence that the accused had used force and although it was not a complete penetration there was certainly a slight penetration. Though Dr.(Mrs.) Japsare deposed that in her opinion, the aforesaid symptoms were due to forcible attempt of coitus, her further evidence indicates that there was a slight penetration. The word 'attempt' used by Dr.(Mrs.)Japsare has to be understood in the context that there was no complete penetration so as to cause the rupture of hymen. Thus, the medical evidence corroborates the story of the prosecutrix about the sexual intercourse having been performed by the accused with her.

10. The learned counsel for the accused/appellant also submitted that there were no injuries on the penis of the accused and this suggests that no sexual intercourse was performed by him. In this connection, it may be seen that although the accused used force, there was no complete penetration and the penetration was very slight. In such event the injuries were not likely on his penis. Dr. Sharma who examined the accused medically was cross-examined on this point and he testified that in case of a partial penetration of the penis by a grown up male in the vagina of the female child there may not be injuries on his penis. One more factor which needs to be considered in favour of the prosecution is that, on the examination of the penis of the accused, the smegma was found absent. The absence of smegma corroborates the story that the accused had performed the sexual intercourse.

11. The learned counsel for accused/appellant invited the attention of this Court to the version of the prosecutrix that she felt some gummy substance on her private part and contended that the Chemical Analyser's report Ex.34 shows that neither semen nor spermatozoa was detected on the cotton swab or vaginal smear of the prosecutrix. He also submitted that although the semen stains were detected on the garments of the accused and prosecutrix, the group of blood in the semen could not be determined as the results were inconclusive and thus there was no conclusive evidence to show that the said semen stains were of the accused only. The medical evidence shows that there was no complete penetration. So, there was no possibility of detection of spermatozoa or semen on the cotton swab or vaginal smear. Further though the group of blood in the semen detected on the jangiya of the accused and the body-frock of the prosecutrix could not be determined, the detection of semen corroborates the story of sexual intercourse to the limited extent. This corroboration is to be considered coupled with the other evidence on record.

12. As already stated above, the accused has pleaded enmity of his father with the father and uncle of the prosecutrix. However, those are merely the allegations and the plea of enmity is not substantiated. It may be noted further that only because of the so-called enmity of the father of the accused with the father and uncle of the prosecutrix, the prosecutrix will not implicate the accused falsely and the father of the prosecutrix also will not put the reputation of the character of his daughter in peril. The entire evidence discussed above is reliable and trustworthy. The prosecution witnesses have stood test of cross-examination and the story of the prosecution is not dislodged.

13. In fact the offence that was made out against the accused in this case was under Section 376(2)(f) Indian Penal Code. The medical evidence clearly shows that there was a slight penetration. As per the definition of rape in section 375, the penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Even if it is a slight penetration, it would be sufficient. Dr.(Mrs.)Japsare, however, opined that the edema with the tenderness on the labia majora noticed by her was due to forcible attempt of coitus. The word 'attempt' used by Dr.(Mrs.)Japsare has created confusion. In fact her evidence clearly shows that the presence of slight edema was due to the slight penetration. It seems that she used the word attempt of coitus because there was no complete penetration and the hymen was not ruptured. The Medical Officers are not conversant with the legal terms. Since there was a slight penetration, the act of the accused constitutes sexual intercourse. The prosecutrix was below 16 years of age. So the sexual intercourse performed by the accused amounted to rape. However, the learned trial Judge convicted the accused of the offence of attempt to commit rape. The State has also not preferred any appeal against the abovesaid order.

For the reasons given earlier, the appeal has no merits.

14. The appeal deserves to be dismissed and the same is dismissed.

Appeal dismissed.