HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved.
Court No. – 44
Case :- CRIMINAL APPEAL No. – 231 of 2000
Appellant :- Ramvir
Respondent :- State Of U.P.
Counsel for Appellant :- Viresh Mishra,A.K.Singh,Anil Kr.Srivastava,B.Mishra,Rajeev Sharma
Counsel for Respondent :- A.G.A.
Hon’ble Bharat Bhushan,J.
Hon’ble Satya Narain Agnihotri,J.
(Delivered by Hon. Bharat Bhushan, J)
1. This Criminal Appeal is directed against the judgment and order dated 16.12.1999 passed by XIIIth Addl. Sessions Judge, Aligarh in S. T. No. 456 of 1999 (State Vs Ramvir), whereby the appellant was convicted under Sections 376, 452 IPC and sentenced to life imprisonment and imprisonment for one year respectively.
2. In view of provision of Section 228-A of IPC, we are not disclosing the identity of the victim of alleged rape. We will hereinafter refer her as the ‘victim’.
3. Prosecution story in brief is that the complainant Shashi Sharma, P.W.-1, mother of 7 years old victim, had left her daughter at her tenanted residential room on 15.12.1998 and gone to work in a factory in Mohalla Vishnupuri, District Aligarh. When she came back at 6 p.m. in the evening she found that her blood-stained daughter was crying. The ‘victim’ told her mother that she had been ravished by the appellant Ramvir. Complainant took her daughter (victim) to the Varun Nursing Home where she was given some treatment. Subsequently, she took the victim to the police station and lodged the First Information report (Ex-Ka-1). The police personnel carved out the check report (Ex-Ka-9) and made an entry in the General Diary (GD) of the Police Station (PS), the extract of which is available on record as (Ex-Ka-10). The police personnel took the victim to Mohan Lal Gautam Female Hospital, Aligarh where she was medically examined. The police also gathered the blood stained clothes of the victim. Memorandum of these clothes was prepared, which is available on record as [Ex-Ka-2]. Victim was first treated and medically examined at Varun Hospital, Vishnupuri, Aligarh wherein following report (Ex-Ka-8) was prepared:-
“A care of let cervical tear no external injury. Seems to be a case of intercourse with smear Adv Medico legal examination.
Information to police.
Girl came profusely bleeding P/v in shock on examination lat. Cervical tear on Rt side seen profusely bleeding. To save Pt. Life. Tear Stitched and hemostats done under general (sic) police information send to P.S. Civil Lines on Tel No. 402471. Adv Medico legal examination in Female Hospital (Mohan Lal Gautam Female Hospital).”
4. Later on Government Female Hospital also examined the victim and following report (Ex-Ka-5) was prepared:-
“Local Examination:-She is not wearing undergarments.
-Vaginal packing present.
-Urinary catheter already put in.
-She was admitted at some private hospital for bleeding p/v.
-No bleeding p/v seen at present.
Adv:- – Xray Rt. Elbow, wrist and knee joint for confirmation of age.
Admit sep. ward for treatment.
Opinion:- No opinion about rape can be given.”
Supplementary report of victim is also available on record (Ex-Ka-6), which is as under:-
“No spermatozoa seen in smear.
Conclusion:- From above report no opinion about rape can be given she is a little girl of about three four years of age.
She was admitted in this hospital for examination and treatment. Vaginal packing and cathedral was removed. No bleeding p/v was seen. She was discharged in a good condition.”
5. Investigation was initially done by P.W-3 Sri R.D. Dohre and later on completed by P.W.-5 Sub Inspector Tejeshwari Singh, who on finding sufficient evidence against the accused appellant submitted a charge sheet against him (Ex-Ka-7). Trial judge framed charges against the appellant under Sections 376, 452 IPC on 6.7.1999. Appellant denied the charges and desired to be tried. During course of trial, prosecution adduced the evidence of P.W.-1 Smt Shashi Sharma (mother of victim), P.W.-2 the victim, P.W.-3 Sri R.D. Dohre, (first Investigator), P.W.-4 Dr Asha Kumar (Prepared medical report), P.W.-5 Sub Inspector Tejeshwari Singh (Second Investigator), P.W.-6 Dr. Mani Bhargava (provided initial treatment to victim), P.W.-7 Dr Sanjay Bhargava (Scribed the medical report prepared by Dr. Mani Bhargava and P.W-8 Constable Bhuri Singh (recorded FIR).
6. Statement of appellant was also recorded under Section 313 Cr.P.C. who claimed false implication. He has specifically asserted that the mother of victim used to live in their house till some 20-25 days prior to the incident and that his parents developed suspicion regarding his relationship with P.W-1 Shashi Sharma (complainant mother of victim), therefore parents forcibly threw her out of the house and she thereafter falsely implicated him in order to seek vengeance. The appellant has produced one witness in defence namely D.W.-1 Ravindra Singh. He is said to be neighbor of appellant Ramvir.
7. On conclusion of the trial, trial judge found sufficient evidence against the appellant and convicted and sentenced the appellant aforesaid vide order dated 16.12.1999. It is this judgment, which is subject matter of challenge before this court.
8. We have heard Sri Jitendra Kumar, Advocate holding brief for Sri Anil Kumar Singh, learned counsel for the appellant, Sri Nagendra Kumar, learned AGA for the State and have gone through the record of the case.
9. Before analyzing the entire evidence of the prosecution, it would be proper to have a glance over the individual testimonies of the witnesses examined in this case.
10. P.W-1 Smt Shashi, is mother of minor ‘victim’. She has testified that on the date of occurrence she had gone to work in the factory at Vishnupuri and when she came back in the evening she found her minor seven years old daughter crying in pain. The girl was blood stained. On questioning, she informed her mother that the appellant Ramvir had sexually assaulted her. The girl also told her that this incident had occurred at 5 p.m. in the evening. The victim was first taken to nearby nursing home known as Varun Nursing Home, thereafter she lodged a report at the police station (Ex-Ka-1). The police personal sent the victim to the Female Govt Hospital where the medical examination was done. Blood stained clothes of victim were also taken into possession by the Investigating Officer. This witness has conceded that she had not seen the act of rape herself but stated that she left her daughter in the morning in normal condition but in the evening at 6 p.m. she found her daughter in brutalized and blood stained state. The victim infact informed her mother about the commission of rape by the appellant Ramvir. The victim and her mother were known to the appellant Ramvir because he was son of the previous landlord in whose residence they had spent two years as tenants.
11. P.W-2, is the main witness and ‘victim’ of the incident. This girl was tested by the trial judge to ascertain her capacity to testify. Trial Judge concluded that the victim was competent to testify. The victim has stated that on the date of incident appellant Ramvir came to her residence at about 5 p.m., when she was alone and inquired about her mother. At that point of time, owner of the house was also nearby but as soon as owner of the house went down the stairs, appellant closed the door of the room and thereafter lured her by pretending to play. He disrobed her and thereafter inserted his penis into vagina of this little girl. The victim was asked to be silent, when she cried in pain. The offender said to her that he was going to take the medicine. Some portion of quilt (jtkbZ) was also stained with blood. Accused tore and took away that portion with him. She communicated the entire incident to her mother, when she came in the evening at 6 p.m. Mother took her to the Doctor and later to the police. This girl (victim) has conceded that she was a student of Class III but did not go to the school on the day of incident because she was required to purchase groceries from Public-Distribution -Shop (PDS). Her mother had infact given her the Ration Card and money for this purchase. This girl very simply has stated that she knew Ramvir from earlier days as he was frequent visitor to her residence. He even used to take food with them sometimes. She has admitted that her younger sister and children of owner of the house, also used to live with victim and her mother. This girl has further stated that she was tied down by the appellant later on and some clothes were inserted in her mouth.
12. P.W-3 Sri R. D. Dohre, is the first Investigating Officer (IO). He has testified that he made considerable efforts to arrest the appellant Ramvir and obtained process under Section 82/83 Cr.P.C. from the Court but could only take his statement inside the jail.
13. P.W-4 Dr Asha Kumar had examined the victim in Govt Hospital. This doctor has testified that she found medicinal packing and tube inside the vagina of victim, apparently provided at Varun Hospital. She has stated that spermatozoa were not found in the vaginal smear. She conceded that she could not see any injuries on the person of the victim because vaginal area was full of medicinal packing from earlier treatment.
14. P.W.-5 Sub Inspector Tejeshwari Singh is the final Investigating Officer, who submitted charge sheet (Ex Ka-7) on conclusion of the investigation.
15. P.W-6 Dr Mani Bhargava is very important witness who examined the victim immediately in the aftermath of the incident at 6 p.m. P.W-1 Shashi Sharma took the victim to nearby Varun Nursing Home as soon as she became aware of the incident. Victim was examined at 6-7 p.m. in the evening. This witness has narrated pitiable condition of this little girl. She has said that the victim was completely blood stained. She was frightened. Anesthesia was given to the victim and thereafter she was medically examined in presence of Dr. Sanjay Bhargava. She has stated that vagina of this girl was full of blood clots. They were removed and thereafter post surgical examination was done. Lateral vaginal wall tears were found with lateral cervical tear on the right side. Blood was oozing from vagina. She stitched the tears. Internal examination was done. She found lacerations in the vagina of victim. Drip was also given to this victim.
16. P.W-7 Dr Sanjay Bhargava is a formal witness who was present at the time of examination of the victim. Dr Mani Bhargava had dictated her report to Dr Sanjay Bhargava. He has formally proved his own signature and the report of Dr Mani Bhargava.
17. P.W-8 Constable Bhuri Singh, has formally proved the check report (Ex-Ka-9) and the extract of G.D. (Ex-Ka-10)
18. Learned counsel for the appellant has contended that there is no eye witness account of the incident and the incident is said to be occurred in the house full of inmates including the landlord and his other tenants and yet not a single witness was procured or produced in support of the allegations. He has expressed surprise that not a single residents of that house interfered in that gruesome act. He has also submitted that the informant claims to be illiterate person yet contents of the FIR belie this claim and that the complainant is using her daughter to wreck vengeance upon the appellant who was her close friend and son of landlord of previous house from where she had been ejected only 20-25 days prior to this incident.
19. He has also argued that the medical report Ex-Ka-8 prepared by the first doctor in Varun Hospital is not consistent with medical report Ex-Ka-5 and the supplementary medical examination report Ex-Ka-6 prepared in the Govt. Hospital. Injuries and bleeding shown by Varun Hospital were not found by Govt Hospital, despite the fact that the victim was taken to Varun Hospital in the evening and also examined in the Govt. Hospital in the same night at 1 a.m. He has drawn the attention of the court that the victim was first taken to Varun Hospital in the evening of 15.11.1998 at about 6-7 p.m. where she was medically examined for substantial period of time as indicated by the fact that the stitches were done on the tears found by Dr. Mani Bhargava on the private parts of the victim. Learned counsel for the appellant has stated that it must have taken at least 2-3 hours. The fact that the FIR was lodged at 11.15 p.m. indicates that the victim was with her mother at least almost till 12 p.m. in the night. Medical report Ex- Ka-5 indicates that the victim was examined at 1 a.m. in the same night in Government Hospital and yet the two medical examination reports are contradictory in nature.
20. Learned counsel for the appellant has further submitted that the story given by the victim, indicates that she had been tutored and being used by the mother. Prosecution story that this seven years old victim was ravished by the appellant for two hours is not supported by other physical evidence and medical report. It is further contended by the learned counsel for the appellant that the trial court has failed to appreciate the evidence in proper perspective and not considered the material contradictions in the testimonies of prosecution witnesses therefore, the judgment of conviction deserved to be annulled.
21. To the contrary, learned AGA has submitted that in case of rape sole testimony of victim is sufficient for conviction of the miscreants and no corroboration is required. He has further argued that seven years old victim has narrated the entire story in trustworthy manner and there is no reason to disbelieve her story. He has argued that no sane person would use her minor daughter merely to wreck vengeance. In any case, he has argued that ejection of complainant from house per-se is not such a serious things so as to impel the mother of the victim or the victim to falsely implicate the appellant. Submission further is that trustworthy evidence of victim supported by medical report is enough for the conviction of appellant.
22. That conviction for offence under section 376 IPC can be based on the sole testimony of a rape victim is now well settled proposition. In State of Punjab Vs Gurmit Singh and others, [(1996) 2 SCC 384], referring to State of Maharashtra Vs Chandraprakash Kewal Chand Jain [(1990) 1 SCC 550], Hon’ble Apex Court has held that it must not be overlooked that a woman or a girl subjected to sexual assault is not an accomplice to the crime but is a victim of another person’s lust and it is improper and undesirable to treat her evidence with a certain amount of suspicion, treating her as if she were an accomplice. It has also been observed in the said decision that the inherent bashfulness of the females and the tendency to conceal outrage of sexual aggression are factors which the courts should not overlook. The testimony of the victim in such cases is vital and unless there are compelling reasons which necessitate looking for corroboration of her statement, the courts should find no difficulty to act on the testimony of a victim of sexual assault alone to convict an accused where her testimony inspires confidence and is found to be reliable. Seeking corroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury.
23. In State of H.P. Vs Gian Chand, [(2000) 1 SCC 71], the Apex Court has observed that the Court first has to assess the trustworthy intention of the evidence adduced and available on record. If the court finds the evidence adduced is worthy of being relied on, then the testimony has to be accepted and acted on though there may be other witnesses available who could have been examined but were not examined. It is pertinent to point out that ordinarily offence of sexual assault are not committed in public view. They are usually committed in a solitary place.
24. We have scanned and scrutinized very carefully the evidence on record in particular the evidence of the mother of the victim, the victim and the Doctor who had first examined the victim with a view to satisfy our conscious to find out whether the verdict of conviction passed by the trial court suffers from any infirmity.
25. The evidence has been found by us to be trustworthy, convincing and reliable. Being a child witness, we have examined the testimony of the victim and that of her mother with utmost care and caution. The cases involving sexual molestation and assault require a different and sensitive approach and not an approach which a court may adopt in dealing with a normal offence under penal laws. It was also sought to be suggested that there were some disputes between the parents of the appellants and the mother of the victim over tenancy and her stated forcible expulsion from tenanted house was shown to be the reason for implicating the accused. There is nothing reliable on the record to substantiate this allegations. On the facts in hand, we find it difficult to accept that alleged tenancy dispute would be avenged by the mother of the victim by foisting a false case of rape on the accused involving her own minor daughter.
26. Learned Counsel has also drawn the attention of the court towards statement of victim wherein she has conceded that children of family of landlord etc also live in the same house. Argument is that it looks little odd or surprising that this offence of rape was committed in their presence without any intervention from others. PW-1 Smt. Shashi has admitted that on the date of incident, house owner Pappu Tejveer and his family were present in the house. Stairs leading to the room of victim goes through the courtyard of landlord. Submission is that this incident could not have happened in their presence. Careful perusal and examination of evidence in chronological order would reveal that this assessment has no foundation. The victim (PW-2) has asserted that when appellant came, the landlord was also up-stairs. But as soon as landlord left, appellant entered her home and closed the door from inside on the pretext of initiating a game. This kind of behaviour is typical of a pedophile. The appellant first disrobed the victim than tied her hands and put cloths in her mouth. Thereafter she was ravished. The victim has clearly stated that she could not raise any alarm on account of cloth stuffed in her mouth. She has further stated that she started crying but nobody came to help her. Probably everybody thought that the child is crying either because of hunger or some other reasons. Whatever may be the reason, none of them came to help her. Things started moving only when victim’s mother came back in the evening.
27. Most important testimony in this regard is of victim who has deposed as PW-2. She has categorically narrated the events in a very trustworthy manner. She stated that appellant Ramveer came in her house while her mother had gone out to work. He enquired about her mother. It is pertinent to point out that appellant was not a stranger to victim. She has admitted that appellant was frequent visitor of her house. In fact, he used to take food with them on some occasion. PW-1 Smt. Shashi herself was not present at the time episode. She left her house in the morning and came back at 6PM therefore her knowledge is primarily based on the information communicated to her either by her daughter or some other person.
28. Learned Counsel for the appellant has also submitted that story of ‘two hour rape’ given by victim is not sustainable. I am afraid, this kind of knit-picking is not acceptable. This seven years old girl was narrating a very horrid experience. This victim obviously did not calculate the time of rape in precise manner. Victim has said right in the beginning that appellant entered her room at about 5 p.m. meaning thereby that every thing started after 5 p.m. It is pertinent to point out this portion of evidence would reveal that every thing did not happen instantly. First, appellant entered into conversations with the victim. He also waited for the departure of landlord and then lured the victim. P.W.-1 mother of victim has testified that when she came back at 6 p.m. appellant had already left, meaning thereby that everything happened within 30-40 minutes.
29. Allegation of rape certainly finds support from the medical reports. Victim was initially taken to Varun Hospital wherein severe injuries were found on the private parts of this tender age girl. Dr. Mani Bhargava, PW-6 has testified that vagina was full of blood clots. There were vaginal wall tears. They were in fact stitched by Dr. Mani Bhargava. Vagina was found torn in internal examination. Her medical report and testimony completely and absolutely establishes prosecution version. Relevant portion of testimony of P.W.-6 Dr. Mani Bhargava is reproduced as under:-
“fn0 15@12@1998 dks ‘kke ds 67 cts ds djhc dq0 lksfu;k mez lkr lky dks mldh eak ysdj vkbZ Fkh og [kwu ls yFkiFk Fkh diM+s Hkh [kwu esa lus gq, FksA yM+dh Mjh gq;h Fkh yM+dh dks csgks’k djds yscj :e esa yhFkksVjh iksft’ku esa mldk ijh{k.k fd;k x;kA esjs lkFk csgks’kh ds MkDVj lat; HkkxZo esajs lkFk Fks tksfd nkSjku ijh{k.k esjs lkFk jgsA
ijh{k.k ds nkSjku ;ksfu esa Qzs’k CyM ds FkDds ls Hkjh gq;h FkhA mu FkDdksa dks ;ksfu ls fudkyus ds ckn ih0 ,l0 bDtkfeus’ku esa ySVjy oStkbuy oky fV;j foFk ySVjyh lokZbdy fV;j jkbZV lkbM esa FkkA ;ksfu ekxZ esa bl txg ls jDr izokg gks jgk FkkA
fV;lZ dks Vakdsa yxk;s x;sA gheksLVsSfVl ds fy, yxk;s x;sA bl batjh ds vykok vkSj dkbZ bDlVjuy bUtjh ugha FkhA bl vkUrfjd pksV dh otg ls oStkbuk QV x;k FkkA eSusa ejht dk ijh{k.k fd;k rFkk batjh dk fooj.k esjs cksyu ij esjs ifr Mk0 lat; HkkxZo us fy[kkA fjiksVZ i+us ds ckn eSus gLrk{kj fd;s FksA ejht dks eSus fM`i yxk;k FkkA is’kkc dh uyh yxkdj Vkads yxk;s FksA eSusa ;g dk;Z ejht dk thou cpkus gsrq fd;k FkkA mipkj ds ckn eSus dsl ds ckjs esa flfoy ykbZUl ds iqfyl dks lwfpr fd;k FkkA ejht dks esfMdks yhxy bDtkfeus’ku gsrq jktdh; eksgu yky efgyk fpfdRlky; jsQj dj fn;k FkkA batjh fjiksVZ] o:.k gkfLiVy]tks ikoyh esa nkf[ky gS] ml ij esajs gLrk{kj gSaA mDr fjiksVZ esajs cksyus ij] esjs ifr Mk- lat; HkkxZo ds ys[k esa rS;kj fd;k x;k Fkk] ftl ij i+us ds ckn eSus gLrk{kj fd;k FkkA bl rjQ dh bUtjh vo;Ld yM+dh ds lkFk dksbZ lEHkksx djs rks vk tk;sxhA ejht ds HkrhZ gksus ds igys ;s tkudkjh djrs gSa fd fdl rjg dk dsl gSA eqs ;g irk gS fd cykRdkj o nq?kZVuk ds dsl ljdkjh vLirky esa tkuk pkfg,A”
30. Aforesaid testimony would reveal that victim suffered terrible sexual assault. It further establishes the fact that by 6 p.m. vaginal portion of victim was full of various kinds of injuries and tears. It cannot be accepted that these injuries were caused by victim herself. It is apparent that victim was subjected to sexual assault. Name of appellant Ramveer came up in the FIR lodged within few hours of the incident. The incident occurred after 5 PM in the evening and discovered at 6PM by the mother of the victim. She first took the victim to the Varun hospital thereafter victim was referred to female Govt. Hospital and then immediately FIR was lodged at 11.50 P.M. Place of occurrence is 3 KM away from the Police Station. Evidently FIR was lodged after about six hours.
31. Considering the seriousness of the offence and the tender age of the victim, it cannot be said that the FIR was lodged with any delay. In Ravindra Kumar Ors. V. State of Punja 2001 AIR (SCW) 3366, it has been held that mere delay in lodging of the FIR per-se is not sufficient ground to reject the prosecution story or a satisfactory ground for acquittal of the accused. The court made following observation in paragraph no. 13, which reads as :
13. The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein.
32. Apex Court in Harpal Singh and another Vs State of Himachal Pradesh, AIR 1981 SC 361 has held that delay in lodging the FIR by itself is not sufficient to reject the prosecution story. In this case, Apex Court refused to give any credence to even ten days delay in lodging the FIR and justified the conviction of accused person.
33. Similar view was taken by Apex Court in the case of State of Punjab Vs Gumit Singh, AIR 1996 SC 1393 wherein the Apex Court has observed that the courts must, while evaluating evidence remain alive to the fact that in a case of rape, no self-respecting woman would come forward in a court just to make a humiliating statement against her honour such as is involved in the commission of rape on her.
34. In the present case, crime was discovered at 6 p.m. Victim was in terrible condition. Her treatment was necessary. Her mother took her to Varun Hospital. Her treatment included removal of blood clots and stitching of vaginal tears etc. Subsequently, FIR was lodged. We cannot ignore the fact that victim belonged to economically weak section of society. Considering the facts and circumstances of the present case, argument of delay in lodging the FIR cannot be accepted and is hereby rejected out rightly.
35. Learned counsel for the appellant has further argued that no corroborative evidence is available as far as allegations of victim are concerned. We are afraid that this argument is also not sustainable. The evidence of P.W.-1 Smt Shashi is very revealing though she was not present at the time of incident. She came at 6 p.m. just after the incident and found her seven years old daughter blood stained with serious injuries in her genitals. Evidence of P,W-1 Smt Shashi itself provide support to the allegations of P.W-2, as far as victim of rape is concerned. It is pertinent to point out here that the victim also took the name of the appellant immediately to her mother and there was no time, occasion or opportunity to concoct a false story.
36. In Bharwada Bhoginbhai Hirjibhai vs State Of Gujarat, 1983 AIR 753, Apex Court has held that in cases of sexual assault, demand of corroboration is not justified. If testimony of victim is otherwise trustworthy then to seek further corroboration is wrong.
37. Apart from testimony of P.W.-1 Smt Shashi, the evidence of P.W.-6 Dr Mani Bhargava can be treated as supportive evidence. The victim was immediately taken to Varun Nursing Home and her condition as found and recorded by P.W-6 lends considerable support to the evidence of victim of sexual assault.
38. Learned counsel for the appellant has submitted that evidence indicates that the victim was tutored and has been used by mother for wrecking vengeance upon the appellant. This claim of appellant is not supported by any evidence. Bald statement on the part of the appellant cannot be treated as gospel truth. We have carefully and critically examined the testimony of the victim and we believe that this little girl has established the guilt of appellant with her credible evidence.
39. Learned counsel for the appellant has submitted that two medical reports are not in consonance with each other and oral evidence therefore story of prosecution should be rejected. We are afraid that we do not subscribe to this view. Evidence discloses that the victim was in intense physical pain at the time of her initial medical examination at Varun Hospital. She was in shock and bleeding profusely. There were cervical tears. Those tears were stitched. Drip was administered. All these things were carefully noted by Doctor when victim was sent to Government Medical Hospital by police after lodging of the FIR, she had already been treated by competent doctor. Report of Govt Hospital (Ex-Ka-5) too disclose vaginal packing, urinary cathedral etc thereby confirming earlier report of Dr. Mani Bhargava. There was no reason for Dr. Mani Bharaga to implicate the appellant falsely. In any case, there is no law which contemplate comparison of medical evidence with other documentary evidence and oral testimony in mathematical manner.
40. Apex court in Vitthal Pundalik Zende versus State of Maharashtra, 2009 (2) ACR 1497 (S.C.)” held that minor discrepancies between ocular testimonies and medical evidence would not result in rejecting the evidence of injured witness. Apex Court in G.S. Walia Vs State of Punjab, (1998) 5 SCC 150 has held that medical evidence should not be mechanically compared with oral testimony. In the case of G.S. Wallia (supra) certain injuries caused by sharp edged weapon was found on the body yet oral testimony did not refer any sharp edged weapon yet the Apex Court declined to reject the oral testimony.
41. In this connection, it would be also relevant to refer the case of “Ajay Singh versus State of Bihar, AIR 2000 (S.C.) 3538”, location of second injury in postmortem report was described at different place in oral testimony but still oral testimony was not rejected by Apex Court on this stated inconsistency.
42. Learned counsel for the appellant has also pointed out that spermatozoa were not found on the vaginal smear taken within five hours of the incident, which belies the prosecution case. We do not agree with this argument as well. Victim was first taken to nearby private nursing home where substantial treatment was given. It is apparent that the cleaning was done. Blood clots were removed. All kind of chemicals were apparently used. Medicinal packing was employed. Then victim was taken to police station and police personnel sent the victim to Government Hospital, where vaginal smear was taken. It is clear that the application of all kind of chemical negated any chance of finding spermatozoa.
43. Learned counsel for the appellant has also submitted that the Investigating Officer did not invest sufficient time and energy in investigating the matter. He has further submitted that people from nearby places were not produced by the prosecution. Investigating Officer did not seek forensic report. We believe that all these arguments are in the realm of speculations. Courts are expected to deal with the material which is available on record. Apex Court in Vishnu Deo Poddar and another Vs State of Bihar, 2003 CR.L.J. 1558 has held that fate of prosecution does not depend what ought to have been done by prosecution and the Investigating Officer. The fate depends on the material already available on record. If the available material is sufficient to establish the guilt of accused then the court cannot refuse to convict the accused on the ground that some part of investigation was poor or could have been done in more professional manner. Similarly in Dhananjay Singh @ Shera and others v. State of Punjab 2004 (48) ACC 940, Apex Court has held that defective investigation by itself is not sufficient for acquittal of accused. In Ram Singh @ Chhajju v. State of Himanchal Pradesh (2010) 1 SCC (Cri) 1496, Apex Court has held that defective investigation is not necessarily sufficient for rejection of entire prosecution case.
44. Learned Counsel for the appellant has also drawn the attention of the court towards testimony of DW-1 Ravindra Singh who has testified that parents of appellants Ramveer had ejected victim and her mother from their house few days earlier and that Smt. Shashi mother of victim had threatened him to implicate in some case.
45. Careful perusal of testimony of D.W.-1 Ravindra Singh would reveal that the story primarily depends on the hearsay. He was not present at the time of the incident. He is neighbor of the appellant. Even if, it is accepted that at the time of ejectment of PW-1 Smt. Shashi from the house of parents of appellants Ramveer, some bickering had taken place, that by itself would not necessarily mean that appellant has been falsely implicated. It is pertinent to point out that seven years old victim has testified that appellant was frequent visitor to her residence even after ejection of PW-1 Smt. Shashi from the house of his parents. In fact the victim has also stated that the appellant some times used to take meals with him. So far as appellant is concerned he did not have antagonistic relationship with mother of victim or victim. We do not believe that seven years old victim self sustained serious genital injuries merely to implicate the appellant in a false case. There are other ways to settle scores with each other. We do not believe that victim was used for this purpose especially in the light of the medical reports which are consistent with ocular testimony.
46. Thus, in the light of the discussions made herein above, the overturning of a well considered and well analyzed judgment of the trial court on the grounds like non- examination of other witnesses, when the case against the appellant otherwise stand proved, beyond any reasonable doubt is not called for.
47. At this stage, learned counsel for the appellant has further submitted that the accused was 22 years of age at the time of incident and he has already undergone agony of long incarceration.
48. Considering the facts and circumstances of the present case, we see no reason to differ with the findings recorded by the trial court regarding commission of the charged offences. But keeping in view the attending circumstances, we are of the considered view that ends of justice would be met, if the period of imprisonment awarded to the appellant is reduced and heavy fine is also imposed. It appears that, in the present case the sentence of 10 years’ rigorous imprisonment under Section 376 IPC and a fine of Rs 1 Lacs would meet the ends of justice.
49. In view of above facts and discussion, the order of conviction u/s 376 and 452 IPC imposed on the appellant is hereby confirmed. Sentence for charge under Section 452 IPC is also confirmed. But the sentence of imprisonment for life for the charge u/s 376 IPC is modified to rigorous imprisonment of 10 years along with a fine of Rs. 1 Lacs. In default of payment of fine, the appellant shall have to suffer imprisonment for additional two years. Both substantive sentences would run concurrently. The fine, if recovered, shall be divided between the victim and state. The victim shall receive three-fourth share as per provision of Section 357 Cr.P.C. and rest amount shall be deposited in favour of the State.
50. With this modification of sentence, the appeal stands partly allowed. Record of the court below be returned forthwith.
51. However, record further discloses that the appellant is on bail by this court. His bail bonds are cancelled and sureties are discharged. He shall be taken into custody to serve out the remaining sentence within ten days.
52. Let a copy of this judgment be sent to the concerned Trial Court forthwith for information and compliance within two weeks. The compliance report by the concerned Trial Court shall be submitted to this Court within a month thereafter.
(Justice S. N. Agnihotri) (Justice Bharat Bhushan)
Order Date :- 18.4.2017
RavindraKSingh
