Bagdi Ram vs State of Rajasthan

S.S. Vyas, J.—This is a jail appeal by accused Bagdiram against the judgment of the learned Sessions Judge Pratabgarh dated February 26, 1983 convicting the appellant u/s 376, I.P.C. and sentencing him to years'' rigorous imprisonment with a fine of Rs. 500/-, in default of payment of fine to further undergo 3 months imprisonment.

In the afternoon of 11-2-82, the prosecutrix Ramudi (P.W. 1) a girl of tender age of 11-12 years went to her field situate in village Mayakhera to bring the grass. When she reached there, the accused who was biding himself came out from the standing crop. He caught hold of her and threw her down. Thereafter, he lifted her skirt and committed rape on her. She started weeping but the accused did not leave her. Hearing her acreams, P.W. 2 Mangu and P.W. 3 Jeeva, who were passing by that side, came there. Seeing them, the accused ran away. They brought the girl to her house. On the next day, P.W. 5 Mangu went to Police Station, Arnod and lodged report Ex. P/1 of the occurrence. The Police registered a case and proceeded with investigation. The medical examination of the prosecutrix was made on 12-2-82 by P.W. 7 Dr. Anish Ahmed, the then the Medical Officer-in-charge, Government Hospital, Arrod. He was of the opinion that there had been sexual act out side the vagina and upto the portion below the hymen, but there was no penetration into the hymen. The accused was arrested on 2-2-82. The clothes viz. skirt of the prosecutrix and underwear of the accused were seized and sealed. On chemical examination, human semen was detected on both of them. On the completion of investigation, the Police submitted a challan against the accused in the court of the learned Judicial Magistrate, Pratabgarh who in his turn committed the case for trial to the Court of Sessions Judge, Pratabgarh. The learned Trial Judge, framed a charge u/s 376, I.P.C. against the accused. He denied the guilt and claimed absolute innocence. During trial, the prosecution examined 11 witnesses and filed some documents. In defence, the accused adduced no evidence. On the conclusion of trial, the learned Sessions Judge held the charge duly proved against the accused. He was consequently convicted and sentenced as mentioned above. Aggrieved against his conviction and sentence, the accused has taken this appeal.

I have heard the learned Amicus Curiae and the Public Prosecutor.

Leaned Amicus Curiae made a scathing criticism of the judgment of the Trial Court and contended (sic) that the conviction of the used was wholly unwarranted. In assailing, the conviction, he took various points, which I propose to deal with at seriatim.

The first contention is that the prosecutrix P.W. 1 Ramudi was a child of tender age of 10-12 years. No preliminary examination was made by the trial court to ascertain her competency to testify and whether she understood the sanctity of oath. And yet, oath was administered to her and she was examined as a witness. It was argued with vehemence that the preliminary examination of a child Witness is imperative and any departure from it makes his or her statement inadmissible. Admittedly, P.W. 1 Ramudi is a child. Her age has been mentioned from 10 to 12 years in her statement. The statement does not show that any VOIR DIRE was made to judge her competency to testify. But the absence of VOIR DIRE does not render IPSO FACTO the statement of a child witness inadmissible, provided it can not be gathered from the statement that he or she understood the questions and had given rational answers. Where there is no preliminary examination, it is the recorded statement of a child, which ordinarily furnishes sufficient material to judge the competency of that witness. If the recorded statement of a child witness shows that he or she has a rational understanding it cannot be wiped off merely on account of the absence of VOIR DIRE. There is consensus of judicial opinion on this point including toe view of this Court taken in State of Rajasthan v. Vijayram RLW 1968 1.

In the instant case, the statement of P.W. 1 Mst. Ramudi shows that she had a rational understanding. The way, in which, she replied the questions both in examination-in-chief and cross-examination leaves the impression that she bad rational understanding and was competent to testify. Her statement, therefore, cannot be wiped off from consideration. The first contention, thus, holds no ground.

It was next contended that the accused was wrongly convicted. There was no convincing and acceptable evidence to show that the girl was raped by the accused. It was argued that the prosecutrix P.W. 1 Ramudi and P.W. 2 Mangu were closely related inter se. P.W. 3 Jeeva was a chance witness. No reliance can be placed on what they testified against the accused. I have gone through the evidence of these witnesses carefully.

The prosecutrix P.W. 1 Mst. Ramudi deposed that in the afternoon of the day of occurrence, she went to her field to bring the grass. The accused who had hidden himself in the standing crops came out. He caught hold of her and took her aside. There, he three her down and raised her skirt. Thereafter, he committed rape on her. She started weeping. She was cross-examined, but nothing could be elicited from her, which may make her testimony unworthy of belief or credit. It has not been suggested that there was any bad blood between her and the accused. No reason has been ascribed before me as to why she would depose falsely against the accused.

There is then ample corroboration of what she stated against the accused. P.W. 2 Mangu deposed that he and P.W. 3 Jeeva were coming together and happened to pass near the place of oceurrence. They heard screams in the field and went to that side. He saw the accused committing sexual intercourse with Ramudi. Seeing them, he took to heels. He and Jeeva (P.W. 3) ran after him but could not catch him and he made good his escape. They took the girl to the village and thereafter, he went to Police Station to lodge the report. P.W. 3 Jeeva also gave the same account of the incident. He stated that hearing the screams of Ramudi, he went towards her. He saw the accused running away. Ramudi (P.W. 1) told him that the accused had committed rape on her. She was then weeping. He and Mahgu (P.W. 2), who was with him, took her to the village. There is nothing in cross-examination of these witnesses to help accused. No previous enmity and strained relations exist between them and the accused. The learned Trial Judge accepted their testimony as true and no reasons are there to persuade me to take a different view.

From what has been stated by the prosecutrix P.W. 1 Ramudi and the two witnesses, it can be safely concluded that the accused made an assault on the girl, felled her down and lay over her.

It was pointed but by the learned Counsel that there was delay in lodging report of the occurrence to the Police and that makes the entries of prosecution story highly suspicious. The occurrence took place in the late afternoon of 11-2-82 and the first information report Ex. P/1 was lodged at 4.30 p.m. on 12-2-82. Now, Police Station, Arnod, where the report was lodged is nearly 21 K.M. away from the place of occurrence. P.W. 2 Mangu, who had lodged the report, Stated that they reached the village after sun-set He is an illiterate rustic villager. Looking to the distance of the Police Station and the other circumstances, the delay of some hours cannot be made a ground to discard the whole prosecution story.

It was next argued that no offence u/s 376, I.P.C. is made out. Though, the prosecutrix staled that there'' was full intercourse with ''her,'' the medical evidence does not support her on this material point The offence made out if any, should be taken only of an attempt. The contention is not without force.

The Medical Examination of the prosecutrix Ramudi (P.W. 1) was made at about 5.30 p.m. on 12-2-782 by Dr. Anish Ahmed (P.W. 7). The report issued by him is Ex. P/3. He stated that on examination, he found the following:

Labia Majora - Bruised and Tender.

Labia Minora - Bruised and Tender.

Hymen - Intact and admits one index finger but is painful. No injury on the thigh, breast and cheeks

The doctor further stated that there had been sexual act out side the vagina and upto the portion below the hymen, but there was no penetration into the hymen.

It was argued by the learned Public Prosecutor that as per explanation annexed to Section 375, IPC, penetration is sufficient to constitute the sexual intercourse to make out the offence of a rape, a is immaterial to what extent and depth, the penetration-has taken place. It was urged that even partial penetration has been accepted as sexual intercourse sufficient to make out the offence of rape.

I have taken the respective contentions into consideration. It is true that all that is required to make out an offence of rape, is that the private parts of the male must be inserted in those of the female. As such, even partial penetration is sufficient to constitute an offence u/s 375, IPC. But, the difficulty in the instant case, is the want of required material on the point. The girl is of the tender age of 10-12 years. No injuries were noticed by the doctor on her private parts. Of course, the doctor found Labia Majora and Labia Minora bruised and tender. But the hymen was found unruptured. The doctor did not state that Labia (majora or minora) was found bruised due to any injury. It was held in Suresh Chand Vs. The State of Haryana, that in case of a girl of tender age, if penetration takes place, there should be wide spread damage of the fourchetta, hymen, Labia majora, Labia minora, volva and the vaginal canal. If no injuries are noticed on the Labia majora and Labia minora, it can be deduced that no penetration had taken place. The offence in these circumstances would not be of a rape but that of an attempt to commit rape.

The prosecutix P.W. 1 Ramudi deposed that penetration was full and there was bleeding from her private parts, She also deposed that the skirt she was wearing got drenched with the blood of her private parts. But these facts are not borne by the medical evidence. No blood was found on her skirt. The doctor also did not notice any blood on her private parts. In these circumstances, coupled with the facts that her hymen was found intact and unruptured and no injuries were found on her private parts, it is difficult to hold that penetration even partial had taken place. As such, no offence of rape can be said to have been made out.

All that can be safely said on the basis of the testimony of prosecutrix is that the accused took the girl a side, felled her down, raised her skirt and lay over her. He tried to insert her male organ in the private, parts of the girl. The act of the accused, thus, amounts to an attempt to commit rape. A similar view was taken in Suwalal v. State of Rajasthan 1972 RLW 620.

No other contention was raised. From what has been discussed above, the accused should be held guilty u/s 376/511 and not u/s 376, IPC.

In the result, the appeal of accused Bagdiram is partly allowed. His conviction u/s 376 is altered to one u/s 376/511, I.P.C. and he is sentenced to two years R.I. The accused is already in jail and he be informed of the result of appeal.