Nagam Gangadhar vs The State

The Revision petitioner was charged u/s 376, IPC for sexually assaulting P.W. 3, Karuna, aged four years and convicted thereunder the sentenced to undergo R.I. for a period of three years and to pay a fine of Rs. 500/- in default, to undergo S.I. for two months in S.C. No. 59/92 on the file of the Assistant Sessions Judge, Nizamabad, and his appeal to the Sessions Judge, Nizamabad, Crl. A. No. 12/94 having been dismissed by judgment dated 13-12-1995, he is before this Court u/s 397, Cr.P.C.

The prosecution case is that on 5-2-1988 at about 12.00 noon P.W. 3, Karuna was taken by the revision-petitioner, a resident of the opposite house, on the pretext of playing. Subsequently, she came out weeping and her private parts were bleeding and she told her mother that she was raped. The mother was aghast at the scene and raised hue and cry. The neighbours gathered and found bleeding from the private parts of Karuna and entered the house of the revision-petitioner and found a bed sheet and towel spread on the floor with blood-stains. The revision-petitioner was present and his lungi was also smeared with blood. In the meantime, father of the victim reached his house. The mother in turn informed her husband who lodged a report at Police Station, Morthad, where a case in Crime No. 7/88 u/s 376, IPC was registered and investigated. The victim was referred to a Civil Hospital for examination and treatment and P.W. 5, Dr. Kantha Devi examined her and issued Ex. P. 8. The Investigating Officer seized blood-stained underwear of the victim and conducted panchanama at the scene of offence and the blood-stained bed sheet and towel were seized. The revision-petitioner was arrested and his lungi was seized and he was also referred to the Hospital for examination and P.W. 7, Dr. A. Lakshma Reddy issued Ex. P. 9 medical certificate to the effect that the tip of penis called prinorm was having a cut and it is possible due to forcible intercourse with a virgin girl and that there is ecchymosed. With the above material, a charge sheet has been filed against the revision-petitioner alleging that he committed rape on a four year girl, Karuna and he is liable u/s 376, IPC. A charge was accordingly framed by the learned Assistant Sessions Judge, Nizamabad. The revision-petitioner pleaded not guilty to the charge.

During the trial, the prosecution examined eight witnesses in all and got Exs. P. 1 to P. 10 and M.Os. 1 to 4 marked. P.W. 1, Gangaram is the father of the victim and the de facto complainant and he narrated the incident as gathered from his wife and as observed by himself that there was bleeding in her things and the underwear was drenched with blood and on his enquiry, the victim told him that the revision-petitioner took her to his house and did something (meaning ''rape'') and she was getting pain in her private parts. He further testified that he immediately went to the house of the revision-petitioner and found blood-stains on the bed and that he caught hold of him and took him to M.R.O. Office and thereafter he went to the Police Station and lodged Ex. P. 1, report P.W. 2, Paske Raju is a neighbour and deposed that on the date of occurrence she was sitting in front of her house at about 12.00 noon and that she found the victim coming from the house of the revision-petitioner weeping and her mother raised hue and cry. It is also in her evidence that herself, Muthyamma and Posani went there and found blood-stains on the underwear of the victim and she stated that the revision-petitioner raped her and thereupon they all went to the house of the revision-petitioner and found blood-stains on his lungi. P.W. 3, Karuna is the victim. On the date of her evidence, she was studying IV class and aged nine years and she gave a vivid narration of the incident. She testified that the revision-petitioner took her to his house stating that she would give some nuts removed her underwear and raped her and she had bleeding from her private parts and also plain. P.W. 4, A. Lachanna is a Panch in whose presence the scene of offence was observed and it was found that the bed-sheet and a towel were having blood-stains and the same were seized under a panchanama. P.W. 5, Dr. Kantha Devi, is Civil Assistant Surgeon at Government Hospital, Nizamabad, at the relevant time and she examined the victim and found that she was irritable and restless, there was tenderness of genital area, abrasion on the private parts and that the vulva was admitting one finger and in cross-examination she has ruled out the possibility of the above injury being caused by scratching or by mosquito. P.W. 6, Y. Chinna Marrenna is a Panch for seizure of blood-stained lungi and underwear of the revision-petitioner. P.W. 7, Dr. A. Lakshma Reddy is the concerned Deputy Civil Surgeon, who examined the revision-petitioner and found a tear on the prinorm (tip of penis) and he opined that it is possible due to forcible intercourse with a virgin girl. P.W. 8, M. A. Rahman is the Investigating Officer. That is all the oral evidence.

Ex. P. 1 is the earliest report lodged by P.W. 1 and it was received in the Magistrate''s Court at 5.15 p.m. on the same day. Ex. P. 2 is panchanama of the scene of occurrence showing that there were blood-stains on the bed-sheet and a towel. Ex. P. 3 is the rough sketch of scene of occurrence. Ex. P. 4 is panchanama of seizure of blood-stained clothes of the victim. Ex. P. 5 is the panchanama of seizure of blood-stained lungi of the revision-petitioner. Exs. P. 6 and P. 7 are chemical examiner''s reports showing that items 1 to 4 (underwear of victim, bed-sheet of the accused, towel of the accused and lungi of the accused) contained human blood. Ex. P. 8 is the case sheet maintained by P.W. 5 for treatment of P.W. 3, Karuna and the injuries found by P.W. 5 are recorded therein. Ex. P. 9 is requisition to examine the revision-petitioner and on the reverse the injuries noted by P.W. 7 are recorded. Ex. P. 10 is the printed F.I.R. It was issued on the same day at about 2.00 p.m. and reached the Magistrate''s Court at about 5.15 p.m.

The revision-petitioner was examined u/s 313, Cr.P.C. He has merely denied the prosecution version.

The learned Assistant Sessions Judge after sifting the above oral and documentary evidence held that the prosecution has established the guilt of the revision-petitioner u/s 376, IPC and accordingly he has been convicted thereunder and sentenced to undergo R.I. for three years and to pay a fine of Rs. 500/- in default to undergo S.I. for two months. The learned Sessions Judge, Nizamabad, reassessed the evidence on record and confirmed the conviction and sentence passed by the trial Judge. At the end he observed that the sentence awarded is too lenient and a severe sentence was called for. Aggrieved by the above findings conviction and sentence the revision-petitioner filed this Revision Case.

During the course of hearing by my learned brother KSS, J., a notice was issued to the revision-petitioner to show cause as to why the sentence should not be enhanced. The revision-petitioner did not file any written submission in pursuance of the above show cause notice but the learned Counsel for the revision-petitioner Sri H. Srinivasa Rao assailed the findings on the following grounds : (1) that the mother of the victim is not examined (2) that there was no symptom of rape as per Ex. P. 8 and the evidence of P.W. 5, (3) that P.W. 3 is of tender age and susceptible for tutoring, (4) that the case is foisted due to grudges springing from certain money transactions.

Sri Venkatesh, representing the learned Public Prosecutor, however, contended that the prosecution evidence is cogent and consistent and that the testimony of P.W. 3 who is a child witness is corroborated by independent evidence of a neighbour and circumstances like finding blood at the scene of occurrence and on lungi of the revision-petitioner and that there is no explanation for the injury found on the private parts of the revision-petitioner and thus, the conviction of the revision-petitioner is sustainable. As regards the sentence, it is urged that P.W. 3 being less than twelve years of age a minimum sentence of ten years is prescribed and that there are no adequate and special reason for imposing lesser sentence as provided in the proviso. He, therefore, urged that the sentence of imprisonment may be enhanced to ten years of rigorous imprisonment.

I have applied my earnest consideration to the evidence on record and the rival contentions. Ordinarily the solitary testimony of the prosecutrix is sufficient to base a conviction u/s 376, IPC, but the prosecutrix in this case is aged four years and she does not appear to have sufficient understanding and maturity so as to express the acts attributed to the revision-petitioner. Hence, the circumstances that have been established by the prosecution will have to be considered in order to see whether the conviction is well founded or not. It is not in dispute that the revision-petitioner is a resident of the opposite house. It is on record that P.W. 3 was taken by the revision-petitioner at about 12.00 noon and subsequently she was seen coming out of that house weeping. P.W. 2 is a neighbour and an independent witness and she testified to the above effect besides herself, the mother of the child and two other neighbours observed that bleeding from the private parts of P.W. 3 and the undergarment being drenched in blood. P.W. 1 also reached the spot while this was going on and all of them entered the house of the accused and found blood-stains on the bed-sheet and towel, and also on the lungi which was on the person of the revision-petitioner. P.W. 1 reached to the Police Station and lodged a report Ex. P. 1 by 2.00 p.m. Evidently, it is a spontaneous disclosure of the incident without any delay. The F.I.R. was issued and despatched to the Magistrate''s Court without any delay as can be seen from the endorsement of the learned Magistrate. Ex. P. 1 in this case, therefore, deserves lot of credence. P.W. 3 was referred to the Governmental Hospital at Nizamabad on the same day and P.W. 5 examined her and found an injury on her private parts suggesting sexual assault. The conduct of P.W. 1 in apprehending the revision-petitioner then and there and handing him over to the M.R.O. Office is also consistent with the ordinary course of nature. The revision-petitioner himself was referred to the hospital where P.W. 7 examined him and found an injury to his organ and in his opinion it was possible due to forcible intercourse with a virgin girl. He also found echymosis. The blood-stained lungi was seized from him and blood-stained undergarment of P.W. 3 was also seized. The bed-sheet and towel were seized from the scene of occurrence and all four of them were forwarded to forensic laboratory for analysis and they were found to contain human blood. These are all the incriminating circumstances that have been satisfactorily established by the prosecution.

It is firstly contended by Sri H. Srinivasa Rao, that mother of the victim has not been examined. It is true that mother of the victim is a material witness but she was not been examined by the prosecution. It is noteworthy that P.W. 1 is said to have reached the scene within a short while and P.W. 2 who is an independent neighbour was sitting in front of her house and she has testified that she saw the revision-petitioner taking the victim to his house and thereafter the victim emerging from his house and weeping. P.W. 2 and two other neighbours and mother of the victim enquired from the weeping girl while observing that there was bleeding from her private parts. Though P.W. 1 was not present for some time in the beginning, he appears to have reached the scene within a short while and he too enquired the victim girl and then all of them entered the house of the revision-petitioner and found blood-stains on bed-sheet and towel which were spread on the floor. Since this part of the prosecution version is sought to be established by the evidence of P.W. 3 herself as well as P.Ws. 1 and 2 non-examination of the mother of the victim cannot affect the case in any manner. If the mother of the victim was the sole witness to all the events stated above it would have been another thing, but she is not the sole witness and in such a case it is not the quantum of evidence that is required to be seen but the quality and probative value of the evidence on record. In this context it may be pointed out that the evidence of P.Ws. 1 and 3 is very cogent and consistent as regards all the material particulars indicated above. Hence, I am satisfied that non-examination of mother of the victim is of no consequence.

It is next contended that there is no medical corroboration to the evidence of P.W. 3. I carefully perused Ex. P. 8 case-sheet and also the evidence of P.W. 5 lady doctor, who examined the victim. It is noteworthy that the victim is a four year old girl. The testimony of P.W. 5 establishes that there was abrasion of 1 cm x 1/4 cm. above the middle side of left libia majora and vulva near the hymen was admitting one finger, the child was irritable and restless. It cannot, therefore, be said that there is no medical corroboration. A point was sought to be made on the basis of a correction in the charge-sheet that P.W. 3 was examined by Dr. Somalatha but not P.W. 5. The memo of evidence annexed to the charge-sheet shows that the name of Dr. Somalatha was typed against Sl. No. 12 but the same has been rounded off and the name of Dr. Kantha Devi is written and a note is found at the bottom that the victim was examined by Dr. Kantha Devi. Ex. P. 8 is the relevant case-sheet which is in the handwriting of Dr. Kantha Devi and hence there can be no doubt that P.W. 3, victim was examined by P.W. 5, Dr. Kantha Devi and not by Dr. Somalatha.

It is then contended that P.W. 3 is a child witness and no importance can be attached to that evidence. It is true that the evidence of P.W. 3 cannot be given the same weight as a grown up victim in a case of rape, the reason being that she is aged four years at the time of occurrence. However, she appears to have communicated to her parents that the revision-petitioner has committed an act due to which she was getting pain in her private parts. P.W. 1 as well as P.W. 2 have sworn to the fact that P.W. 3 disclosed the said act. Even if the testimony of P.W. 3 is to be ignored, the circumstances set out supra are in my view sufficient to bring home the guilt of the revision-petitioner.

It is lastly contended that the case is foisted against the revision-petitioner on account of some disputes arising from money-lending transactions. I am unable to find any basis for the above version inasmuch as no material is elicited from P.W. 1 or any other witness to probabilise the above version and the revision petitioner also did not make any such statement in his s. 313, Cr.P.C. examination.

Taking the cumulative effect of all the circumstances that are established by the prosecution, I am satisfied that the conviction of the revision-petitioner u/s 376, IPC is sustainable and fit to be confirmed.

Adverting to the sentence, it is not in dispute that the victim was aged four years at the time of the incident. It, therefore, falls u/s 376(2)(f), IPC for which minimum sentence of ten year''s rigorous imprisonment is prescribed. However, for adequate and special reasons to be mentioned in the judgment lesser sentence can be imposed. The learned Assistant Sessions Judge did not pay any attention to this aspect. He did not bother to see whether there are any adequate and special reasons for awarding lesser sentence than the minimum of ten years of rigorous imprisonment and he appears to have mechanically passed the sentence. The learned Sessions Judge while disposing of the appeal, however, observed that the sentence of three years of rigorous imprisonment is too lenient. Be it noted that whenever the statute prescribes minimum sentence subject to a provision that for adequate and special reasons lesser sentence can be imposed, awarding minimum sentence is a rule and lesser sentence is an exception. The revision-petitioner was aged twenty years and he was going to the college and hence there can be no doubt that he attained sufficient maturity. As such a person who has committed a heinous offence of rape upon four year old girl there can be no room for any sympathy in the matter of sentence and hence there are no adequate and special reasons for awarding lesser sentence than the minimum of ten years'' rigorous imprisonment. In my considered view the ends of justice require that the sentence is enhanced to ten years rigorous imprisonment from three years rigorous imprisonment. As pointed out earlier, the revision-petitioner has already been put to notice of the proposed enhancement of sentence as required by the proviso to Section 386, Cr.P.C.

In the result, the Criminal Revision case is dismissed confirming the conviction of the revision-petitioner u/s 376, IPC and sentencing him to rigorous imprisonment for ten years in addition to fine of Rs. 500/- in default, simple imprisonment for two months. The learned Assistant Sessions Judge, Nizamabad is directed to issue a modified warrant of sentence pursuant to this judgment and to commit the revision-petitioner to jail in which he is to be lodged after securing his presence by issuing non-bailable warrant against him.

Petition dismissed.