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Judgment
In this present appeal, the State counsel assails the judgment of acquittal rendered by Sessions Judge, Vidisha in S.T. No. 123/2000 on 31st January,
2001 acquitting the sole respondent of the charge u/s 376 (f) IPC for having committed rape against the prosecutrix aged 10 years.
The facts in nutshell are that on 04.07.2000 in the evening when prosecutrix aged 10 years was playing next to the house of her uncle Nirpat, the
accused / respondent caught hold of her hand and took her to the roof of house of Nirpat where the respondent committed rape and threatened her of
dire consequence, if she disclosed the incident to anyone. The prosecutrix being of tender age out of fear do not disclose the said act of the respondent
to any one. Two days thereafter when the prosecutrix was having a bath along with her father Munshi Lal (PW-3), near the well, Munshi Lal (PW-3)
noticed the prosecutrix to be bleeding. Munshi Lal brought the prosecutrix home and informed his wife Parwati Bai (PW-2) about the injuries caused
to the prosecutrix. Parwati Bai took the prosecutrix to a private place and asked her the cause behind the said injury. It was then that the prosecutrix
informed her mother about the incident which took place two days back. Mother of the prosecutrix informed her husband about the incident, who in
turn informed Roop Singh Thakur. Due to dearth of money, the prosecutrix could not be taken for treatment on the same day but on the next day FIR
Ex.P-2 was lodged on 07.07.2000 at 10:00 am and the prosecutrix was subjected to medical examination on the very same day at 12:15 pm vide Ex.P-
3 where Doctor Kirti Madoiya (PW-4) confirmed the incident of rape. The investigation was conducted and necessary legal formalities were
completed including arrest of the accused on 13.07.2000. Vaginal swab and other seized items were sent for forensic examination vide Ex.P-11. Vide
Ex.P-12 the FSL report was furnished on 04.09.2000 inter alia opining that the article B underwear of the prosecutrix was found to contain traces of
semen. Vide Ex.P-4 respondent / accused was subjected to medical examination opiniing that there is nothing to suggest that the respondent is
incapable of performing intercourse. Statements u/s 161 Cr.P.C. of the prosecution witnesses were recorded including that of the prosecutrix. The
charge sheet was filed and case was committed to the court of Sessions where charge u/s 376(2)(f) IPC was framed against the respondent.
The prosecution produced 5 witnesses i.e. (PW-1), Parwati Bai (PW-2),Munshi Lal(PW-3), Dr. Kirti Madoiya (PW-4), I.M. Quraishi (PW-5).
Prosecution also exhibited documents from Ex.P-1 to Ex.P13. On the other hand, defence has examined three witnesses namely Bhuribai (DW-
1), Shyam lal (DW-2) and Mahendra Singh (DW-3).
Accused denied having committed the offence in his statement statement u/s 313 Cr.P.C and alleged false implication by revealing that it was
Babla who infact had committed rape but the respondent has been falsely implicated on account of animosity between the two.
Learned trial judge after marshalling the evidence and other material brought by the prosecution on record including the evidence in support of
defence, acquitted the accused / respondent of the said charge primarily on the following grounds :-
(i) The injuries found on the private part of the prosecutrix were opined by Dr. Kranti Madoiya (PW-4) to be caused about 24 hours before the
examination, whereas the examination was conducted after three days of the incident.
(ii) Absence of cogent evidence to establish that how the accused / respondent climbed the roof top when there were no stairs and the accused is
admittedly disabled.
(iii) The FIR dated 07.07.2000 was lodged after three days of the incident which occurred on 04.07.2000.
(iv) Failure of the prosecution to examine Nirpat who was owner of the house where the incident took place.
(v) The underwear of the prosecutrix which was seized and sent to FSL for examination was not cogently proved to be the one which was worn by
the prosecutrix at the time of incident.
The prosecutrix is a 10 year old girl who was examined as PW-1 after confirming her mental maturity to be subjected to the rigors of examination-
in-chief and cross-examination. The prosecutrix deposed in examination-in-chief that she was playing near the house of Nirpat when respondent /
accused came and caught hold of her hand and took her to the roof top of the house of Nirpat where he committed rape (Bura Kaam) with her. The
prosecutrix further disclosed that due to the act of the accused she sustained injuries in her private parts which led to bleeding. The threat of dire
consequences if she reveals about the incident to anyone was given by the accused as disclosed in her examinationin-chief. Prosecutrix further states
in examination-in-chief that thereafter she fell ill and when after three days she was having bath at the well along with her father, the injury sustained
by her in private part started bleeding which was noticed by her father. On being inquired by her father PW-3, the prosecutrix disclosed about the
incident. The prosecutrix then deposes that she was taken home by the father where she disclosed to her mother about the incident. She further
reveals that her father then lodged the FIR and she was subjected to medical examination.
6.1. In cross-examination, the prosecutrix has admitted that toreach the spot where the incident took place there are no stairs and one has to take the
assistance of ladder. Prosecutrix further disclosed that she goes to school every day after having a bath. In the cross-examination, the prosecutrix
has been questioned about certain omissions made in her earlier statement that she had screamed but the accused prevent her from doing so by
covering her mouth, that she had bled at the time of the incident and that she had informed her father after three days during bath that accused /
respondent had committed rape with her. Prosecutrix has further admitted that the accused /respondent is lame and cannot walk properly. She denied
that she had told her friend Preeti about the incident. Prosecutrix further deposed that she used to have bath on the well with her father everyday after
the incident. She further disclosed that the day on which the incident took place she had attended her school and on the very next day she had been
given bath by her mother but on that day she did not disclose about the incident to her mother.
6.2. Prosecutrix further deposes that on the next day of the incident there was no bleeding from the injury in her private part and the prosecutrix has
shown her ignorance when asked about the meaning of expression “ Bura Kaamâ€. Importantly in para 17 of her deposition prosecutrix has denied
that Babla and Hari Singh ( with whom the accused had alleged passed animosity) did not commit any such act with her as committed by the
respondent / accused. Prosecutrix further denied in this paragraph that she had herself climbed the ladder. Prosecutrix on her own stated that the
accused respondent had taken her up on the ladder carrying her on his shoulder. Pertinently the prosecutrix denies in this paragraph that the accused /
respondent finds it difficult to climb a ladder. Lastly the prosecutrix has denied the suggestion that she has been tutored by her parents before deposing
in the court and further denies the suggestion that accused had not committed rape with her.
The medical evidence in shape of MLC Ex.P-3 was prepared by Dr. Kirti Madoiya (PW-4) who examined the prosecutrix on 07.07.2000 at 12:15
pm and proved the said MLC by stating that on external examination she did not find any injury on the private part of the prosecutrix but on internal
examination two injuries were found. The first was a lacerated wound ¼ inch x ¼ inch in the vagina of the prosecutrix while the other was a
lacerated wound admeasuring ¾ inch x ¼ inch x ¼ inch. PW-4 opined that both these injuries appeared to be caused by hard and blunt object.
Dr. Madoiya further testified that the hymen was found ruptured with bleeding present. PW-4 further disclosed that looking to the injuries sustained by
the prosecutrix in her private parts, possibility of rape cannot be ruled out. This witness further deposed that blood found in the said injury was fresh
and did not rule out the possibility that the bleeding was because of some internal abrasion which was not visible to naked eye. PW 4 also stated that
the injuries found could have been caused within 24 hours of the examination and did not rule out the possibility that the injuries could have been
caused by some wooden twigs. This witness lastly denied absence of traces of semen on the underwear of the prosecutrix. This witness also clarified
on being asked that by using the term hard and blunt weapon in the MLC she meant “hard and blunt object†. 8. Statements of the mother of the
prosecutrix Parwati Bai(PW2) and father Munshilal (PW-3) were recorded which when read in unison do not belied the prosecution story except for
certain minor and insignificant contradictions, embellishments and omissions when compared with the earlier version. The deposition of both these
witnesses inspire confidence and point towards the guilt of the respondent of having committed rape against the prosecutrix.
The investigating officer I.M. Quraishi (PW-5) has stated that he has followed the procedure for conducting investigation. Investigating officer
admitted that he had not taken the statement of Nirpat, the owner of the house, where the incident took place and the reason assigned by I.O was that
the said Nirpat had no knowledge about the incident.
The defence produced three witnesses namely Bhuri Bai (DW-1), Shyam Lal (DW-2) & Mahendra Singh (DW-3). The defence tried to raise
the bogey of inimical relationship between the rival parties.
The above said evidence adduced by the prosecution as well as defence, in particular the testimony of the prosecutrix and her parents coupled
with the testimony of Dr. Kirti Madoiya (PW-4) establish beyond reasonable doubt the factum of rape having been committed against the prosecutrix.
Factum of rape has not been disputed even by the trial court which though found absence of cogent evidence to connect the respondent with the
crime of rape. In this regard the trial court has relied upon the fact of the respondent being lame and there being absence of clinching evidence that he
could have climbed the roof top with the help of ladder in the absence of any stairs and that the medical evidence in shape of Ex.P-3 opining that
injury to the private parts of prosecutrix may have been caused within 24 hours of the examination. The trial court found that since the examination
was done on 07.07.2000 at 12:15 pm injuries must have been caused not before morning of 6th and 7th July,2000 whereas prosecution came with the
case that incident occurred on 04.07.2000.
11.1 A priori this is a case where medical evidence, which opinesapproximation of period within which the injury must have been caused, contradict
the ocular and circumstantial evidence of rape in the shape of testimonies of prosecutrix PW-1 and her parents PW2 and PW-3. However, this is not
a case where the factum of rape has not been proved. By the statements of prosecutrix, her parents and the medical evidence, rape is proved beyond
all reasonable doubt. However, there is a weak or missing link between the incident of rape and the respondent which to some extent creates doubt as
regards the complicity of the respondent.
The charge of Sec. 376(2)(f) is alleged against the respondent which reads thus :-
“376. Punishment for rape - (1).Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous
imprisonment of either description for a term which shall not he less than seven years, but which may extend to imprisonment for life, and shall also be
liable to fine.
2. Whoever,â€
a.  xxx xxx xxx
b.  xxx xxx xxx
c.  xxx xxx xxx
d.  xxx xxx xxx
e.  xxx xxx xxx
(f). being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or
g. xxx xxx xxx
h. xxx xxx xxx
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(m)Â while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or
(n).commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but
which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to
fine.
Explanation.â€"For the purposes of this sub-section,â€
(a) .""armed forces"" means the naval, military and air forces and includes any member of the Armed Forces constituted under any Jaw for the time
being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government!, or the State
Government;
(b). ""hospital"" means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during
convalescence or of persons requiring medical attention or rehabilitation;
(c) ""police officer"" shall have the same meaning asassigned to the expression ""police"" under the Police Act, 1861;
(d) ""women's or children's institution"" means aninstitution, whether called an orphanage or a home for neglected women or children or a widow's home
or an institution called by any other name, which is established and maintained for the reception and care of women or children.â€
12.1 At this stage it would be apt to reproduce the provision defining rape u/s 375 IPC as follows :-
'375. A man is said to commit ""rape"" if he-â€
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so
with him or any other person; or
(c). manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any ~ of body of such woman or makes
her to do so with him or any other person; or
(d). applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling
under any of the following seven descriptions:â€" First.â€"Against her will.
Secondly.â€"Without her consent.
Third/y.â€"With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourth/y.â€"With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another
man to whom she is or believes herself to be lawfully married.
Fifth/y.â€"With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him
personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which
she gives consent.
Sixthly.â€"With or without her consent, when she is under eighteen years of age.
Seventhly.â€"When she is unable to communicate consent.
Explanation I.â€"For the purposes of this section, ""vagina"" shall also include labia majora.
Explanation 2.â€"Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal
communication, communicates willingness to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to
the sexual activity.
Exception I.â€"A medical procedure or intervention shall not onstitute rape.
Exception 2.â€"Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.â€
The above definition of rape prescribes any kind of penetration into the vagina to be sufficient to constitute rape without consent of the
prosecutrix. The definition further provides that consent becomes inconsequential if the prosecutrix is below 18 years of age. In the instant case, the
defence has not disputed that prosecutrix is below 18 years of age and therefore, the only aspect which requires consideration in the present case is
whether there was any kind of penetration into the vagina of the prosecutrix. The medical evidence proves the factum of penetration and therefore,
the said ingredient of rape is satisfied.
Section 376 IPC deals with punishment wherein Sub-section (2) relates to graver form of rape which inter alia include rape committed by persons
who are relative or guardian or hold position of trust or authority over the prosecutrix as contained in clause (f), which is the case herein. Indisputably
the respondent was aged 20 years residing in close neighbourhood of prosecution, was held in a relationship of trust by the prosecutrix. More so,
the prosecutrix has denied the suggestion that the respondent did not subject her to rape. The prosecutrix has further denied that respondent could not
climb the ladder despite his physical disability. Infact the prosecutrix has clearly stated that she was taken by the respondent on his shoulder to the
roof top with the help of ladder. The respondent on the other hand has not brought any evidence to establish that with the kind of disability he suffered,
he was physically incapable to climb the ladder. His medical examination to which the respondent was subjected by MLC Ex.P-14 opined that there is
nothing to suggest that the respondent is incapable to perform intercourse. However, it seems that Ex.P-14 has not been proved by its maker. More
so, the suggestion made by the defence that due to past animosity between the parents of the prosecutrix, respondent has been falsely implicated, has
been clearly denied by the prosecutrix as well as her parents.Â
As aforesaid, there seems to be some contradiction between medical evidence of Dr. Kirti Madoiya (PW-4) opining that the injuries found in the
private parts of the prosecutrix could have been caused within 24 hours of the examination on one hand and the version of the prosecutrix and her
parents in their testimony needs to be addressed by this Court.
15.1 The above shown conflict between the medical evidence in shape of MLC and testimony of prosecutrix on one hand and the ocular and
circumstantial evidence brought forth by prosecutrix PW-1 and her parents PW-2 and PW-3, stems from the approximate opinion expressed by Dr.
Kirti Madoiya (PW-4) that the injury may have been caused between 24 hours of the examination. The said opinion of PW-4 in MLC Ex.P-3 is an
approximate opinion in regard to which no suggestion has been made by the respondent to the said doctor that the injury found in the private parts of
the prosecutrix could not have been caused in the evening of 4th July, 2000 when the incident is alleged to have taken place. In the absence of any
such suggestion made by the defence, the said opinion cannot have binding effect and looses its probative value and therefore, rendered
inconsequential for the defence to take advantage of. Thus the trial court committed error of law in relying upon the said variance between the
medical evidence and ocular cum circumstantial evidence for acquitting the accused / respondent.
Learned counsel for the respondent has submitted by citing the decision of the Apex Court in the case of Mahavir Singh Vs. State of M.P.
reported in (2016) 10 SCC 220 ( para 12 to 14) that the interference in verdict of acquittal is a course to be exceptionally taken with great
circumspection especially when the view taken by learned trial judge of acquittal is one of the plausible possible view which could have been taken in
the given facts and circumstances available on record. This Court has already held (supra) that in the attending facts and circumstances available on
record that the only view which could have been taken was of conviction since the prosecution has proved the offence of rape against the respondent
beyond all reasonable doubt. Thus, the view taken by the learned trial judge was erroneous and needs to be unsettled.
In the considered opinion of this Court and looking to the clinching evidence presented by the prosecution in shape of testimony of prosecutrix aged
10 yeas, her parents PW-2 and PW3 and Dr. Kirti Madoiya (PW-4), it is established beyond all reasonable doubt that the respondent has subjected
the prosecutrix to rape and since the respondent, qua the prosecutrix held a position of trust as defined in Clause 2(f) , the offence punishable u/s
376(2)(f) is found proved.
Since we have held the respondent guilty of the offence punishable u/s 376(2)(f) IPC in regard to which he had been acquitted by the trial court, it
is essential to hear the respondent on the question of quantum of sentence.
Consequent upon conviction, the respondent be committed to jail by way of jail warrant which be prepared forthwith by the Registry and to
produce the respondent in custody on 26.03.2018 for hearing on sentence.
Let the case be taken up for the said purpose on 26th March, 2018.