Umesh Kumar DECISION
Umesh Kumar, J.
1. Present appeal is preferred against the judgment and order dated 23.09.2005 passed by Addl. Sessions Judge, Court No. 4, Pilibhit in S.T. No. 448 of 2004 (State Vs. Rajesh Kumar Gupta) arising out of Case Crime No. 69 of 2004, under Section 376 of IPC, Police Station, Bisalpur District Pilibhit, by which learned Trial Judge has convicted and sentenced the accused-appellant under Section 376 of IPC for life imprisonment with a fine of Rs. 10,000/- and in default of payment of fine, to further undergo two year rigorous imprisonment.
2. In brief, prosecution story is that on 24.02.2004, Km Meenu/daughter of Budhsen Singh, minor girl aged about 11 years went to get labour charges from appellant-Rajesh Kumar Gupta at his residence and when she returned from there, she was drenched with blood, when informant and victim's mother asked about the incident, the victim narrated transgression of accused-appellant, who forcibly committed rape with her in the room constructed on the roof of his house. The victim tried to cry but the accused-appellant shut her mouth with his hand, due to which, she could not raise alarm. Hearing this from his daughter (victim), the informant, for lodging first information report, went to police station with her minor girl Meenu who was ensanguined. On the said written report of the informant-Budhsen, a First Information Report (Ex. Ka-7) was lodged at the police station as Case Crime No. 69 of 2004, under Section 376 of IPC and victim was sent for her medical examination. Her underwear and Shalwar were handed over to the police by informant-Budhsen. A recovery memo of the said clothes of the victim was prepared by the Investigating Officer and it was sealed in presence of Triveni Prasad, Fakirey Lal which is Ex. Ka. 2. G.D. Entry of the said FIR was made by Head Constable Shyam Pal Singh which has been explained in GD Entry No. 33 on 25.2.2004 at 14.50 P.M., which is Ex. Ka. 6. The medical examination of the victim was conducted by Dr. Surabhi P.W. 3 who has proved medical report and supplementary report Ex. Ka-4 and Ex. Ka. 5. The x-ray report and pathological report Ex. Ka-9 has been proved by Dr. Udaivir Singh P.W. 7. Chick FIR-and GD entry No. 32 (Ex. Ka. 7 & Ka. 8) have been proved by P.W. Bhanwar Pal Singh. The Investigating Officer has prepared site plan Ex. Ka-10 and collected the report from Forensic Laboratory which is Ex. Ka. 11.
3. The Investigating Officer, after completion of investigation has submitted charge sheet Ex. Ka-12, in the Court of A.C.J.M., Court No. 1, Pilibhit, who took cognizance of the offence on 3.6.2004 under Section 376 I.P.C. The case being triable by Court of Sessions, was committed to the Court of Sessions on 5.7.2004 and it was registered as S.T. No. 448 of 2004. The case was transferred to the Court of Additional Sessions Judge-IV, Pilibhit, who framed charge under Section 376 I.P.C. against the accused-appellant on 19.10.2004, which reads as under:
"I, Jaiveer Singh, Additional Sessions Judge, Pilibhit, charge you, accused Rajesh Kumar Gupta, in the following way:-
That on 24.02.2004 at about 3:00 p.m. within the limits of Mohalla (locality) - Gayaspur, PS - Beesalpur, District - Pilibhit, when Meenu, aged around 11 years, minor daughter of the complainant, Buddhisen, had gone to your house to collect wages for packaging of incense sticks, you, intimidating her, took her to a room constructed on the roof of your house and committed rape on her by force and without her consent. In this way, you have committed such an offence that is punishable u/s. 376 IPC, which is in the cognisance of this court.
It is, hereby, directed that you be tried by this court for the aforesaid charge."
(English Translation by Court)"
4. Accused pleaded not guilty and sought trial.
5. Learned Trial Judge framed charge against the appellant-accused under Section 376 of IPC which was read over to the appellant-accused, but he denied and claimed trial.
6. The prosecution, in support of its case, has examined as many as 8 witnesses viz. P.W. 1 Budhsen, father of the victim, P.W. 2, victim Meenu, P.W. 3 Dr. Surabhi, P.W. 4 Smt. Chameli-mother of the victim, P.W.-5 Syam Pal Singh Head Moharrir, P.W. 6 Bhanwar Pal Singh-Head Moharrir, P.W. 7-Dr. Udaivir Singh and P.W. 8-Shyam Karan Singh, the Investigating Officer of the case.
7. Statement of the accused-appellant under Section 313 Cr.P.C. was recorded. He denied the charge and stated that he has been falsely implicated. Further, he has stated that informant-Budhsen had borrowed money from his father-Ram Gopal and despite several demands, he failed to return that money and for this reason, he has been falsely implicated.
8. We have heard Sri Manish Tiwary, learned Counsel for the appellant and Sri Nikhil Chaturvedi, learned AGA for State and have perused the record.
9. P.W. 1-Budhsen in his statement has narrated the prosecution version and has proved tahrir Ex. Ka-1. He has narrated the facts mentioned in the first information report stating that her minor daughter-Meenu went to collect her labour charges from accused-Rajesh which was due to her in connection with packing of incense stick (agarbatti) and when she returned home, she was drenched with blood and blood was coming out from her private part and her clothes were also soaked. When they asked from victim Meenu, she narrated that the accused-Rajesh had committed rape. She also narrated that rape was committed at the residence of accused-Rajesh in the room situate on the top of his house. She has also narrated this fact to her mother-Chameli (P.W. 4) and soon thereafter, this witness dictated report to Chotey Lal who reduced it in writing. The witness put his thumb impression on tahrir (Ex. Ka-1). From the police Station, her daughter was sent to Bisalpur Government Hospital by the police, where doctors refused to provide medical treatment and thereafter, she was brought to Government Hospital, Pilibhit, where she was medically examined and treatment was provided to her. This witness has also proved blood stained underwear and shalwar, recovery memo of which was exhibited as Ex. Ka-2. He has very rightly stated that although he was not present at the place of occurrence, but has stated that when accused-Rajesh called his daughter-Meenu, then, Geeta and Kalawati had seen the victim. Nothing material is available in his cross examination which contradicts or falsifies his statement. There is no reason to disbelieve the testimony of this witness.
10. P.W. 2 Victim Meenu, in her statement has stated that she knows accused-Rajesh. She went at the shop of Geeta to purchase some items for her sister's son. She stated that Luxmi the sister of accused-Rajesh called her and when she went there, the mother of accused-Rajesh namely Girja Devi told that Luxmi is on the roof and you may go there. She reached on the roof where accused-Rajesh told that Luxmi is inside room, papad is also kept there and she should bring the same. When she went inside the room, neither Luxmi nor papad was there. In the meantime, accused-Rajesh came in the room and gauged cloth in her mouth and when she started hammering with her hands, accused-Rajesh tied her hands with chunari. The accused-Rajesh forcibly put her on the bed and committed rape with her. When, the accused was committing rape, she suffered a lot and became unconscious. When she came in sense, blood was coming out from her private part and Luxmi brought clothes and got her hands unfolded saying that you are not well and now you go your home. The witness has stated that then, she returned to her house and narrated entire incident to her mother-Chameli and father-Budhsen stating that accused-Rajesh has committed rape forcibly at his house. Then, her father-Budhsen took her to Police Station, Bisalpur, from where, with a lady constable, she was brought to the hospital, where she was medically examined and medical treatment was given. Her x-ray was conducted. The witness has also stated that the Investigating Officer and the Magistrate have recorded her statements. She has supported her statement recorded under Section 164 Cr.P.C. before the Magistrate which is Ex. Ka-3. She has also narrated that her photograph is also affixed on her statement. She has also deposed in her cross examination that how she was crushed and forcibly raped by accused-Rajesh. She has supported her sufferings during commission of incident and complained about pain also. Although, there are some minor discrepancies, but this argument of learned counsel for the appellant that how she reached to the house of accused-Rajesh is meaningless, in the facts and circumstances of the present case. Moreover, that has not been argued by learned Counsel for the defence at this stage.
11. P.W. 4-Chameli, mother of the victim has stated in her statement what was narrated by her daughter and about the bad condition of her daughter due to rape having been committed with her, one can understand, her mental status during her examination before the Court. She has supported the statement made by P.W. 1 and P.W. 3. Moreover, she has exhibited underwear and shalwar (Material Exhibits 1 and 2) which were examined in the Forensic Laboratory, Agra.
12. P.W. 3-Dr. Surabhi is the doctor who has medically examined the victim-Meenu and her medical report and supplementary report are Ex. Ka-4 and Ex. Ka-5. During examination, she has found following condition of the victim;
"External Condition
Breasts have started developing, auxillary and pubic hair started appearing, sparse. No marks of injury visible at present on any part of the body externally. Dried blood stains present over both lower limbs.
Internal Examination
On inspection, dried blood stains and clots seen in vagina, vulva and thighs and lower limbs. Blood clot present over vagina with fresh bleeding also from vagina. Patient was not allowing herself for internal examination. Patient was admitted in D.W.H., Pilibhit, I/V drip started to maintain B.P. and internal examination done under G.A., with consent of her father and in presence and with the help of C.M.S., DWH, Pilibhit and anesthesia DWH, Pilibhit. On examination, hymen was found torned on 6 O'clock position. Posterior vaginal wall was torned, 6 cm in length, muscle deep, anteriorly reaching upto posterior formix and posteriorly reaching upto perineum, just 1 cm above (anterior) to the anus. Vagina was full of blood clots. Rectum was intact. Cervix and uterus small size, intact. Clob cleaned and tear was stitched under G.A. Patient (victim) was kept in DWH, Pilibhit for observation and medical treatment. Vaginal smear taken and two slides made and sealed slides sent to pathology department, DH, Pilibhit for presence or absence of dead or alive spermatozoa.
Victim sent to radiology department, DH, Pilibhit for x-ray right wrist joint, right knee joint and right elbow joint for determination of her age. Blood stained undergarments handed over to C.P. 649 Mohd. Naseem Khan, who brought the case."
13. Thereafter, a supplementary medical examination report (Ex. Ka-5) of victim-meenu was also prepared by the same Dr. Surabhi, PW-3, which is quoted below:
Vaginal Smear Report:
No spermatozoa seen dead or alive. RBC's seen.
X-ray plate No. 355/04 dated 25.2.2004 received on 10.3.2004, seen by radiologist Dr. U.V. Singh, District Hospital, Pilibhit.
X-ray Reports
(1) X-ray right knee-The epiplysis around knee joint are not fused with corresponding bones.
(2) X-ray right wrist-The epiplysis around wrist are not fused corresponding bones.
(3) X-ray right elbow-The epiplysis of sat condyla is fused & epiplysis of mid condyle & head of radius is in process of fusion with corresponding bones.
Opinion-On the basis of above reports and medical examination findings:-The age of victim is 14 years the possibility of rape cannot be denied.
14. In this regard, statement of P.W. 7 Dr. Udaivir Singh, Orthopaedic Surgeon who had x-rayed the victim is Ex. Ka-9. He found following conditions:-
"1. In the X-ray of right knee, the edges of the bones were found not attached to the corresponding bone.
2. In the X-ray of right wrist, the edges of the bones were found not attached to the corresponding bone.
3. In the X-ray of right elbow, lateral condyle humerus was found 'fused', and medial condyle and head of the radius were in the process of being attached to their respective bones.
This report was prepared on the basis of the X-ray plate. It is in my handwriting and bears my signature. It has identification marks and thumb impression of the injured. The same has been attested by me. X-ray report was marked as Ext. Ka-9 and X-ray plate was marked as Object Ext.-3."
(English Translation by Court."
15. P.W. 5-Shyam Pal Singh is the Head Moharrir who, in his statement has proved Ex. Ka-6 (G.D. entry). P.W. 8 Shyam Karan Singh is the Investigating Officer of the case. From perusal of his testimony, nothing adverse has come out.
16. In State of Chhattisgarh Vs. Dehra MANU/SC/0390/2004 : (2004) 9 SCC 699, Court has upheld conviction of the accused, wherein rape was committed on a girl of 8 years. In that case, blood was present on private parts of victim, hymen was torn and medial side of labia minora inflamed and the victim was not habituated to sexual intercourse and held that the High Court erred in reversing the conviction awarded by the Trial Court.
17. In the present case, rape with a girl of 11 years has been committed. The evidence of witnesses of fact are well supported by medical evidence, hence, conviction of the accused-appellant is liable to be affirmed.
18. Sweeping changes are introduced by the legislature to curb down with iron hand the offence of rape which affects the dignity of a woman. In "Encyclopedia of Crime and Justice" (Volume 4 page 1356), it is stated that even slight penetration is sufficient and emission is unnecessary. Similarly, in Halsbury's Statute of England and Wales (Fourth Edition) Vol 12, it is stated that even the slightest degree of penetration is sufficient to prove sexual intercourse.
19. It is violation with violence, of the private person of a woman, an outrage by all means. By the very nature of the offence, it is an obnoxious act of the highest order. In the Indian setting, refusal to rely on the testimony of the victim of sexual assault corroborated by medical evidence, will add insult to injury to a girl in the tradition bound non-permissive society of India. In State of Punjab Vs. Ramdev Singh MANU/SC/1063/2003 : AIR 2004 SC 1290, Court has expressed grave concern in respect to rape victim and has observed that sexual violence apart from being a dehumanizing act is an unlawful intrusion on the right of privacy and sanctity of a female. It is a serious blow to her supreme honour and offends her self esteem and dignity. It degrades and humiliates the victim and where the victim is a helpless innocent minor girl. It leaves behind a traumatic experience, a rapist not only because physical injuries but more indelibly leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and her chastity.
20. Court in State of Rajasthan Vs. Om Prakash, MANU/SC/0416/2002 : AIR 2002 SC 2235 has held that sole testimony of victim is sufficient to record conviction. On over all scrutiny of the evidence, we are of the view that it is unimaginable that a minor girl would subject herself to the ignominy and embarrassment in the society by making an allegation of rape on her. A bare reading of the statement of the victim unequivocally indicate that the minor girl has narrated the entire incident truthfully, and if at all, minor discrepancies are here and there, that cannot be held to be any material contradiction in her statement.
21. In regard to the submission of learned Counsel for the appellant that appellant who has been convicted with life imprisonment and is languishing in jail since conviction, for reducing the lifer sentence, suffice it to note that no circumstance whatsoever, or otherwise any peculiar situation is pressed or presented before the Court for consideration by the Court for reducing the sentence of the appellant in the present case, where rape has been committed with a minor girl of 11 years of age. The offence is of heinous nature. It is not a crime only against a girl, but it is also an offence against civil society and therefore, our conscious does not permit us to show any sympathy in the matter.
22. Apart from the trustworthy evidence of the victim herself, there are several circumstances as found by the Trial Court which corroborate the victim's statement and thus it can safely be held that her statement is wholly reliable.
23. The appeal having no substance, is accordingly dismissed. The conviction and sentence awarded to the appellant-Rajesh by learned Trial Judge is hereby affirmed.
24. As the accused-appellant is in jail, Registry is directed to transmit the original record of the Trial Court and the judgment for immediate compliance to the Court concerned so as to ensure that the accused-appellant serves out the remaining sentence, in accordance with law.
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