Rakesh vs State of Haryana

A.N. Jindal, J.—A five year girl, (hereinafter referred to as the ""prosecutrix"" and name not disclosed) fell prey in the hands of the

accused/appellant, Rakesh (hereinafter referred to as accused) who attempted to commit rape but having failed in his mission, committed sodomy

for which he was tried, convicted, sentenced to undergo RI for 7 years and fine of Rs. 2000/- u/s 377 IPC and RI for 5 years u/s 376, read with

Section 511, IPC.

Factual matrix of the case which culminated into trial is that on 31st March, 1996, at about 3 P.M., Bhanwar Singh, complainant (hereinafter

referred to as ""complainant"") was present at his house along with his wife Smt. Gopal Kamal, who was preparing food for him. In the meanwhile,

prosecutrix, aged about 5 years came shrieking and disclosed that the accused induced her to go to his room on the pretext of showing her

television, and made her to lay on the bed, removed her underwear and inserted his penis in her anus. When she started crying out of pain, the

accused shut her mouth with his hand. On the basis of the aforesaid statement, the case was registered and the investigation was handled by ASI -

Bhagat Ram, Investigating Officer who visited to the place of occurrence; arrested the accused got recorded the MLRs. Ex.PA and Ex.PB

respectively, took the blood-stained underwear of the prosecutrix into possession vide memo. Ex.PF.

The completion of investigation was followed by a report u/s 173 Criminal Procedure Code against the accused.

On commitment, the accused was charged u/s 376, read with Section 511 and 377 Indian Penal Code.

To prop up its case, the prosecution examined Dr. A.K. Gupta, Medical Officer (PW1), Dr. Veena Sharma, Medical Officer (PW2), Bhanwar

Singh, complainant (PW3), prosecutrix (PW4), Head Constable Hari Chand (PW5), Dr. Avinash Sharma, Medical Officer (PW6), Inspector

Niadar Singh (PW7), Sukhbir Singh (PW8), Constable Anoj Kumar (PW9), Constable Mukesh Kumar (PW10) and ASI Bhagat Ram,

Investigating Officer (PW11).

When examined u/s 313 Criminal Procedure Code, the accused denied all the circumstances appearing against him and pleaded his false

implication. No evidence was led in the defence.

The trial Court ended in conviction.

Heard.

On the same day of occurrence (i.e., 31.3.1996) immediately after the occurrence, i.e., at about 3.00 PM the prosecutrix was taken to the

hospital and was medically examined at about 9.15 PM by Dr. Veena Sharma, Medical Officer, B.K. Hospital, Faridabad. She observed that

prosecutrix was fully conscious and no external mark of injury was seen. Hymen was intact on external genetallia. There was no bleeding.

However, there was laceration on anal sphincter. One laceration posteriorly was red in colour and fresh bleeding was present. Further there was

small laceration on anterior aspect of anal sphincter. She had further opined that the possibility of per anus sexual intercourse cannot be ruled out.

She further proved Ex. PF underwear which was taken by her at the time of medical examination. During cross-examination, she highlighted this

fact that though no injury in the vagina was present, yet attempt to commit intercourse could not be ruled out. From her testimony, it transpires that

there is definite evidence revealing the carnal capulation. But the observation made by this witness are hardly sufficient for forming an opinion

regarding the factum of rape. However the opinion regarding rectum intercourse as observed made by Dr. Veena Sharma, finds support from the

statement of prosecutrix herself. She after clearing her test of being a competent witness appeared as PW4 and testified regarding the crime. The

relevant extract from the statement is reproduced as under:

About 10 months ago, (in the winter season), I was playing in my house from where the accused, present in the Court, induced me to company

him to his house saying that he will show her television. Accordingly, I accompanied him to his house. I was kept in a room, the door of which was

bolted. Accused, present in the Court, removed her underwear. Firstly, I was made to lie down on the cot and he tried to insert his penis in my

uterus, then I was made to lie on the other side and he put his penis in my rectum. Due to pain, I cried. Then the accused allowed me to put my

underwear and I was asked to go out. Then I narrated the incident to my mother. I was medically examined.

This witness has been examined at length. But she withstood the test. The only suggestion given to her is that she was tutored by her father. But

on scrutiny, her statement inspires confidence of this Court. Though the prosecutrix has stated that she was told by her father only that she should

not disclose the happenings with her to anyone except in the Court obviously does not mean that her father tutored her everything but she was told

to make the statement in the Court only. The chain of evidence is complete as the prosecution in order to support its version examined his father,

Bhanwar Singh, who tore out his abdomen while saying that the prosecutrix came shrieking and told about the sequence of events which happened

with her. His statement forms part of res-gastae.

As regards the argument that prosecutrix being a child witness, in all probabilities, could be tutored in the manner she was required to depose.

Therefore, the child witness being tutored one, should not outrightly be believed and no conclusion could be drawn on the testimony of such

witness. The point of law as put forward by the counsel for the accused cannot be ignored. There may be cases where a child witness is

introduced as a witness to the crime and could be disbelieved if his/her competency is challenged; his/her evidence is found doubtful; does not find

corroboration from any other source; if he/she has made contradictory statement, creating a dent in the prosecution case; if there is lot of evidence

regarding prompting or tutoring. It is also equally settled that child witnesses are dangerous one and the Court should look for some corroboration

so as to strengthen his/her reliability/credibility and trustworthiness and also take precautions if these witnesses being of immature age, are not living

in the realm of belief and their testimonies have been obtained by tutoring and prompting. But, keeping in view the present day scenario, with the

development of science and technology, the introduction of new methods of education, grooming the child by diverse techniques, it would not be

incorrect to say that there is no legal bar in accepting the testimony of the child witness, particularly where the child himself is the victim; his

testimony stands supported by other evidence and also when he had no motive, enemity or animosity against the accused for implicating him in the

case. A child, undisputedly, is competent to testify if he understands question(s) put to him and gives rational answers thereto. If, after careful

scrutiny of the evidence of the child witness, Court feels impressed and reaches its subjective satisfaction about his competency to make the

statement, then no embargo could be placed to act upon such statement and so as also to accept evidence of such a witness. In appropriate cases,

the Court may look for corroboration from independent source or from circumstances of the case. The evidence led in the instant case incites me

to have faith over the prosecutrix who herself being the victim did not conceal anything and came with the true version and so also her testimony

finds necessary corroboration from medical as well as other evidence. It is true that no injury or swelling, blood or semen was found on the penis

of the accused, but on this ground alone, the prosecution evidence with regard to sodomy committed by the accused could not be disbelieved. The

absence of injuries on the penis is hardly sufficient to rule out sodomy as injuries on the genetal parts may result from force exerted by the accused

or from the force applied by the victim and it depends upon evidence which is laid by the prosecution or which is collected by the investigating

agency.

In the instant case, PW4, prosecutrix being herself the victim, did not mince the words and deposed that firstly the accused tried to put his penis

in her vagina. But, thereafter, she was made to lie on the other side and put his penis in her anus. She further stated that as there was no T.V. in

their house, therefore, she used to watch T.V. at his house. Though the accused has come with the defence that case was the result of dispute

between the complainant being the landlord and the accused being his tenant. But no evidence of litigation qua this controversy has been brought to

fore. There is no delay in lodging the FIR. Bhanwar Singh would be the last person to sacrifice the honour and repute of his daughter and also the

family at the cost of tenancy of the appellant. Further the forensic science loboratory Ex.PX reveals that the underwear of the prosecutrix was

found blood stained. One medium size blood and traces of blood were also detected on the swabs. Even human semen was also found over the

underwear of the prosecutrix.

Thus, the observations made by the trial Court regarding the commission of crime by the accused, punishable u/s 377, IPC could be approved,

no evidence has been led by the prosecution in order to establish the offence u/s 376 read with Section 511 IPC. Even the DAG, Haryana has

also not disputed the absence of evidence of rape.

Consequently, I partly allow the appeal, set-aside the impugned judgment, punishing the accused u/s 376 read with Section 511, IPC. However,

the sentence awarded against him u/s 377, IPC is ordered to be maintained.

Copy of the judgement be sent to the learned Chief Judicial Magistrate, Faridabad for compliance.