Bhagwania vs State Rajasthan

Sunil Kumar Garg, J.—This appeal has been filed by the accused-appellant from jail against the judgment and order dated 26-6-1999 passed by the learned Addl. Sessions Judge No. 3, Udaipur in Sessions Case No. 18/99 (53/99) by which he convicted the accused-appellant for the offence u/s 376(2)(f), IPC and sentenced him to undergo ten years'' rigorous imprisonment and to pay fine of Rs. 500/-, in default of payment of fine, to further undergo SI for one month.

Since it is a jail appeal and accused-appellant was not being represented by anybody, therefore, this Court vide order dated 18-8-2000 appointed Mr. Vijay Purohit, as Amicus Curiae and he has argued this appeal on behalf of the accused-appellant.

It arises in the following circumstances :--

On 1-12-1998 at about 10.15 PM, PW-1 Amra lodged a written report Ex. P/1 before PW-13 Lal Singh, ASI, Police Station Parsola District Udaipur stating inter alia that on that day he and his wife PW-2 Rukmani were digging their well in the field and at about 5.00 PM in the evening when they were ready to return to their house, they heard the cries of children from their house, which was near to their field and thus, they rushed towards their house and found PW-4 Harji and PW-3 Veliya, who were neighbours. It was further stated in the report that they saw accused-appellant running from their house and upon this, PW-4 Harji and PW-3 Veliya caught hold (of) accused-appellant, but later on he managed to run away from the scene and also found his daughter Bhulki (hereinafter referred to as the child prosecutrix) aged about 8 years in unconscious state and she was deaf and dumb by birth and she was wearing frock and blood was coming out from her private part. It was further stated in the report that they also saw that accused-appellant was wearing white shirt and underwear and both were stained with blood and, thereafter, many people assembled there. It was further stated in the report that accused-appellant committed rape with the child prosecutrix.

On this report, FIR Ex. P/15 at Police Station Parsola District Udaipur was chalked out and investigation was started.

During investigation, accused-appellant was arrested on 2-12-1998 through Ex. P/6 and his shirt and underwear were seized through Ex. P/3. The frock of the child prosecutrix PW-14 Bhulki was seized through Ex. P/5. The certificate of the doc-tor showing that child prosecutrix PW-14 Bhulki is deaf and dumb, is Ex. P/11. The accused-appellant was got medically examined and his medical examination report is Ex. P/13, which shows that he received four simple injuries. The child prosecutrix PW-14 Bhulki was also got medically examined and her medico-legal examination reports are Ex. P/16 and Ex. P/18.

After usual investigation, police submitted challan against the accused-appellant in the Court of Magistrate, from where the case was committed to the Court of Session.

On 21-1-1999, the learned Judge, Special Court, SC/ST Cases, Udaipur framed charge for the offence u/s 376(2)(f), IPC against the accused-appellant. The charge was read over and explained to the accused-appellant, who pleaded not guilty and claimed trial.

During trial, the prosecution in support of its case examined as many as 1(5 witnesses and got exhibited some documents. Thereafter, statement of the accused-appeallant u/s 313, Cr.P.C. was recorded. In defence, no evidence was produced by the accuseds-appellant.

After conclusion of trial, the learned Addl. Sessions Judge No. 3, Udaipur through his judgment and order dated 26-6-1999 convicted and sentenced the accused-appellant for the offence u/s 376376(2)(f), IPC in the manner as indicated above holding inter alia that the prosecution has been able to prove its case beyond all reasonable doubts against the accused-appellant for the offence u/s 376(2)(f), IPC.

Aggrieved from the said judgment and order dated 26-6-1999 passed by the learned Addl. Sessions Judge No. 3, Udaipur, this appeal has been filed by the accused appellant from jail.

In this appeal, the learned counsel for the accused-appellant has made the following submissions:

That in the present case, the statement of the child prosecutrix PW-14 Bhulki should not be believed as, according to certificate of the doctor Ex. P/11, she is deaf and dumb by birth, but in Court statement recorded as PW-14, she spoke something.

That statement of the child prosecutrix PW-14 Bhulki is not worth reliable.

That there are material contradictions between the statements of the doctors, namely, PW-15 Dr. Sunita Maheshwari, who prepared the medico-legal examination report Ex. P/16 of the child prosecutrix and PW-16 Dr. Anis Ahmad, who prepared the medico-legal examination report Ex. P/18 of the child prosecutrix.

Hence, it was prayed that this appeal be allowed and accused-appellant be acquitted of the charge framed against him.

On the other hand, the learned Public Prosecutor supported the impugned judgment and order dated 26-6-1999 passed by the learned Addl. Sessions Judge No. 3, Udaipur.

I have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case.

Before proceeding further, first medical evidence of this case has to be examined.

The injury report of the accused-appellant is Ex. P/13 and the same has been proved by PW-11 Dr. B.L. Agrawal, who has stated that on 2-12-1998 he medically examined the accused-appellant, and found following four abrasions on his person : --

Abrasion 1 cm. x 1 cm. on right wrist.

Abrasion 0.3 cm. x 0.3 cm. on right eye.

Abrasion 1 cm. x 1 cm. on right knee.

Abrasion 1.5 cm. x 1 cm. on left knee.

Thus, from the evidence of Dr. B.L. Agrawal, PW-11, it appears that accused-appellant received the above four injuries.

So far as the point that child prosecutrix PW-14 Bhulki. is deaf and dumb is concerned, the prosecution has produced the certificate of the doctor Ex. P/11 and the same was admitted during trial by the learned counsel for the accused-appellant and thus, this certificate Ex. P/11 should be held to be proved. In that certificate Ex. P/11, it is stated that it is certified that Miss Bhulki D/o Amra, 7 years, R/o Dhona Talai P.S. Parsola is deaf and dumb and she cannot speak and hear.

Thus, from the above certificate Ex. P/11, it appears that child prosecutrix PW-14 Bhulki is deaf and dumb.

PW-16 Dr. Anis Ahmad states in his statement that on 2-12-1998 he was Medical Jurist and he examined child prosecutrix PW-14 Bhulki for the purpose of rape as well as for determination of her age. He states that during examination of the child prosecutrtx, he found the following two injuries on her person : --

Abrasion 3 x 1 cm. on dorsal spin.

Abrasion 2 x 1 cm. near injury No. 1. He further states that for the purpose of examination of her private part, the medical examination was done by Dr. Sunita Maheshwari, PW-15. He has further stated that it was found that her vagina was having swelling and there were spots of blood and she was feeling pain and there was evidence of penetration in her vagina and so far as her age was concerned, it was estimated as about seven years. He has proved the report Ex. P/18.

Another doctor produced by the prosecution in this respect is PW-15 Dr. Sunita Maheshwari. She states that on 2-12-1998 she examined genital of the child prosecutrix PW 14-Bhulki and found that her vulva and perineum were stained with blood; there were no fresh bleeding; her hymen was torn at 6 O''clock position, admitting one finger easily; and there were two abrasions on her back. She has proved the report Ex. P/16.

14-15. Thus, from the evidence of PW-15 Dr. Sunita Maheshwari and PW-16 Dr. Anis Ahmad, it is proved that: there were signs of rape with the child prosecutrix PW-14 Bhulki.

This is the medical evidence In the present case in respect of determining whether rape with the prosecutrix PW-14 Bhulki was committed or not.

The other evidence is found in the statements of eye-witnesses and other witnesses apart from the statement of the child prosecutrix PW-14 Bhulki herself.

From the statement of PW-1 Amra, who is father of the child prosecutrix, it appears that when he and his wife PW-2 Rukmani were in the field, they heard the cries and after hearing cries, they rushed towards their house and found PW-3 Veliya and PW-4 Harji and accused-appellant was also there who was caught hold first and, thereafter, he ran away from the scene and it was also found that blood was coming out from the vagina of the child prosecutrix PW-14 Bhulki and he was told at that time that accused-appellant committed rape with her. Similar is the statement of PW-2 Rukhmani.

The statement of PW-1 Amra gets corroboration from the statement of PW-5 Harji, another child of six years, who is son of PW-1 Amra, PW-5 Harji states that the name of his sister is Bhulki, child prosecutrix and accused-appellant fell on her and thereafter cries were made and Baba means PW-1 Amra and PW-4 Harji came and accused-appellant was caught hold.

In the preliminary examination of this witness PW-5 Harji, the Court: has observed that this witness did not answer the preliminary questions, therefore, oath was not administered to him.

To understand the above problem, the proviso to Section 4 of the Oaths Act, 1969 must be read along with Section 118 of the Indian Evidence Act and Section 7 of the Oaths Act. An omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in Section 118 of the Indian Evidence Act. Every witness is competent unless the Court considers he is prevented from understanding the questions put to him, or from giving rational answers, by reason of tender years, extreme old age, disease, whether of body or mind or any other cause of the same kind. It should be observed that there is always competency in fact unless the Court considers otherwise. No other ground of Incompetency is given. Therefore, unless the Oaths Act adds additional grounds of incompetency, it is evident that Section 118 of the Indian Evidence Act must prevail. The Oaths Act does not deal with competency. Therefore, an omission to take the oath does not affect the admissibility of the evidence, unless the Judge considers otherwise the witness is competent.

In this respect, the latest judgment of the Hon''ble Supreme Court in Paras Ram v. State of Himachal Pradesh JT 2000 (1) (Suppl) 236 (SC) may be referred to, where a minor girl was not administered oath and it was held that there is no legal bar in relying upon her testimony without oath.

Thus, in the present case, from perusing the statement of PW-5 Harji, it does not appear that he was giving wrong version. He has simply stated that accused-appellant fell on the child prosecutrix PW-14 Bhulki and nothing more. Therefore, this statement as a whole is not sufficient to convict the accused-appellant for the offence of rape, but it may be a supporting evidence to other evidence.

Before proceeding further, appreciation of evidence of child witness and legal position in respect of child witness has to be seen.

It is well settled that although legally there is no bar to accept the uncorroborated testimony of a child witness yet prudence requires that Courts should not act on the uncorroborated evidence of a child whether sworn or unsworn. This was so held by their Lordship of the Privy Council in Mohamed Sugal Esa Mamasan Rer Alalah v. King, AIR 1946 PC 3 : 1946 ALJ 100 . The same view was taken by their Lordships of the Hon''ble Supreme Court in Rameshwar Vs. The State of Rajasthan, and later on, in so many cases.

As to the nature and extent of cor-roboration, which should be required, it may be stated here that it did not mean that the corroboration as to the identity must extend; to all circumstances necessary to identify, the accused with the offence, yet there has to be independent evidence which would make it reasonably safe to believe the witness''s story that the accused was the one who committed the offence.

The law has also cast duty on the Court while recording the evidence of the child witnesses. The competency to testify depends on the witness''s ability to undertstand questions put to him and to give rational answers to those questions. Once a witness is found to be a competent witness, even if he is not competent witness to take an oath or if there is an omission to take an oath that will not invalidate proceedings or render inadmissible the evidence. The rule generally is in favour of admission of evidence though the weight to be attached to it will naturally be a matter for consideration by the Court. There is always competency unless the Court considers otherwise.

Whenever a witness appears before the Court, the Court will proceed on the basis that he is competent to testify. The satisfaction to be arrived at by preliminary examination of witness. However, his evidence does not become inadmissible in evidence in absence of such preliminary examination.

In Raja Ram Yadav v. State of Bihar, 1996 (4) JT SC 140 : 1996 Cri LJ 2307 the Hon''ble Supreme Court observed that the evidence of a child witness is not required to be rejected per se but the Court, as a rule of prudence, considers such evidence with close scrutiny and only on being convinced about the quality of such evidence and its reliability, bases the conviction by accepting the deposition of the child witness.

In tills respect, the latest judgment of the Hon''ble Supreme Court in Suryanarayana v. State of Karnataka, 2001 (1) JT (SC) 230 : 2001 Cri LJ 705 may be referred to.

Keeping the above principles in mind, the evidence of P.W. 5 Harji, child of six years has been examined and similarly, the evidence of the child prosecutrix P.W. 14 BhulKl would also be examined just later on.

As per report Ex, P/l, when P.W. 1 Amra came to his house, he found P.W. 3 Veliya and P.W. 4 Harji and both have beeh examined by the prosecution.

P.W. 3 Veliya states that on relevant date when he was going to his field, he heard the cries of the children of P.W. 1 Amra and when he reached there and asked about what had happened, he was told by P.W. 4 Harji that accused-appellant has committed rape with the child prosecutrix P.W. 14 Bhulkl and he also saw that blood was coming out from her private part. Thereafter, police came and arrested the accused-appellant. Similar Is the statement of P.W. 4 Harji.

Thus, from the statements of P.W. 1 Amra, P,W. 2 Rukhmani, P.W. 3 Veliya and P.W. 4 Harji and P.W. 5 Harji, it can easily be said that rape was committed by the at cused-appellant on the child prosecutrix P.W. 14 Bhulki and furthermore, their statements further get corroboration from the statement of the child prosecutrix P.W. 14 Bhulki, as would be discussed just later on

Another important witness in this case is P.W. 14 Bhulki, child prosecutrix herself. In the beginning of her statement, the learned trial Judge has observed that as per certificate Ex. P/11, this witness is deaf and dumb by birth and, therefore, the learned trial Judge took the help of Section 119 of the Indian Evidence Act and proceeded further under that section and this witness was not administered oath and on being asked, she only uttered the words (vernacu lar matter omitted) and by saying these words, she pointed out towards the accused-apellant. The learned trial Judge further observed that after that she did not speak anything and nothing was said by that child prosecutrix even by pointing out something. Hence, her evidence was closed.

In my considered opinion, from perusing the statement of the child prosecutrix, one thing appears that what she wanted to say she has stated that is she was raped by accused-appellant. The Court is aware that this is not the alone evidence in the present case, but apart from this, there is medical evidence as well as other evidence which is found in the statements of P.W. 1 Amra. P.W. 2 Rukhmani, P.W. 3 Veliya, P.W. 4 Harji and P.W. 5 Harji. Thus, there is ample evidence to conclude that child prosecutrix P.W. 14 Bhulki was raped by the accused-appellant.

It has been argued by the learned counsel for the accused-appellant that evidence of the child prosecutrix P.W. 14 Bhulki should not be believed as she was deaf and dumb and if she has uttered some thing in Court, she was not deaf and dumb. In my considered opinion, this argument carries no weight. A deaf and dumb person may utter something and if he utters something, it does not mean that he was not deaf and dumb. There are so many cases where deaf and dumb person speaks some words or makes other person understand by making gesture. Thus, if child prosecutrix P.W. 14 Bhulki has uttered something in Court, it does not mean that she was not deaf and dumb. Therefore, the testimony of the child prosecutrix P.W. 14 Bhulki, which gets cor-roboration from other sources, is reliable.

There is one more aspect of the case which should not be lost sight of. In the present case, P.W. 14 child prosecutrix has uttered something which is suggestive of the fact that rape was committed with her by the accused-appellant.

Mange Vs. State of Haryana, the Hon''ble Supreme Court has held that when the victim of the rape was a deaf and dumb a girl of 13 years and she was not examined, the infirmity which has resulted because of non-examination can be cured when eye-witnesses are there and further medical evidence supports.

In the present case, evidence of eyewitnesses is there, medical evidence is there and to some extent, evidence of the child prosecutrix P.W. 14 Bhulki, who is deaf and dumb, is also there. Thus, this case is more strong than the case in which above observations were made by the Hon''ble Supreme Court.

The learned counsel for the accused appellant has placed reliance on the judgment of the Hon''ble Supreme Court in Rahim Beg and Another Vs. State of U.P., especially on para 26 where it was held that if a girl of 10 or 12 years, who is virgin and whose hymen is intact is subjected to rape by a fully developted man, there arelikely to be injuries on the male organ of the man. Relying on these observations, the learned counsel for the accused-appellant submitted that since in the present case, there was no injury on the male organ of the accused-appellant, therefore, the case of the prosecution should not be believed.

In this case, no doubt injury on male organ of the accused-appellant is not found, but other injuries are found which are also suggestive that he would have received these injuries during struggle at the time of committing rape with the child prosecutrix P.W. 14 Bhulki.

In this respect, it may be stated here that to constitute the offence of rape, it is not necessary that there should be complete penetration of penis with emission of semen and rupture of hymen. Partial penetration of the penis within the labis majora or the vulva or pudenda with or without emission of semen or even an attempt at penetration is quite sufficient for the purpose of the law. It Is, therefore, quite possible to commit legally the offence of rape without producing any injury either to the genital part of victim or to the male organ.

In the present case, since the victim (child prosecutrix P.W. 14 Bhulki) was eight years old, therefore, no question of''penetration in full sense arises and by putting the penis into her vagina, the offence is complete and it is possible that when accused-appellant would have tried to put his penis with force into her vagina, bleeding started and matters ends. In these circumstances, no question arises that penis of the accused-appellant must have received injuries.

Hence, the above argument stands rejected.

For the reasons stated above, the findings of the learned Addl. Sessions Judge No. 3, Udaipur convicting the accused-ap-pellant for the offence u/s 376(2)(f), I.P.C. are liable to be confirmed, as they are based on correct appreciation of evidence.

In the result, the appeal filed by the ac-cused-appellant-Bhagwania fails and the same is hereby dismissed, after confirming the judgment and order dated 26-6-1999 passed by the learned Addl. Sessions Judge No. 3, Udaipur.