Rape - Age of prosecutrix - Mother is the best person to tell about the age of her daughter in absence of medical evidence

ANDHRA PRADESH HIGH COURT

Before :- Ch. S.R.K. Prasad, J.
Criminal Appeal No. 542 of 1999. D/d. 23.7.2003

Masiripamu Nukaiah @ Nukaraju - Appellant
Versus
State of A.P. - Respondent

For the Appellant :- Mr. Ghangula Ashok Kumar Reddy, Advocate.
For the Respondent :- Public Prosecutor.

Andhra Pradesh High Court

JUDGMENT


Ch. S.R.K. Prasad, J. - This Criminal Appeal is directed against the judgment rendered by the Assistant Sessions Judge, Bhimavaram in S. C. No. 7 of 1990 convicting and sentencing the accused to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 100/- in default to suffer simple imprisonment for one month for the offence punishable under Section 376 IPC.
2. The facts that arise for consideration can be stated in brief as follows :
    P.W. 2 Avula Mariamma is the daughter of P.W. 1, Avula Katlamma. On 16-8-1997 at about 6.30 p.m. when P.Ws. 2, 3 and 4 were playing in Vinayaka Temple situated at Shanthinagar, Akiveedu, the accused came there and took away P.W. 2 forcibly and laid her on the floor, undressed her and pounced upon her and moved his penis into her vagina. In that process inserted his right hand fingers forcibly into her vagina as a result of which she (P.W. 2) sustained bleeding injury to her private part. On seeing this, P.Ws. 3 and 4 rushed to P.W. 1 and informed her about the incident. Immediately, P.W. 1 along with P.Ws. 3, 4 and P.W. 5 Avula Durgamma and P.W. 6 Marthina Subbamma rushed to the scene of offence and found the accused lying over the body of P.W. 2 and on seeing them the accused ran away. Thereafter they shifted P.W. 2 to a private hospital (Dr. Krishna Hospital) at Akiveedu and after first aid was given to her, she was taken to Akiveedu Police Station. P.W. 1 gave a report to the police about the incident and P.W. 14 the A.S.I. of Police registered the same as Crime No. 45 of 1997 under Section 376 IPC read with Section 511 IPC and sent P.W. 2 to Government Hospital, Bhimavaram for treatment. The Inspector of Police seized the bloodstained clothes, bloodstained earth and controlled earth from the scene of offence under the cover of observation report in the presence of P.W. 9 Marella Narasimha Bapiraju Vara Prasada Rao and P.W. 10 Bhimanandam Pandurangarao. On the next day i.e., one 17-8-1997 the accused was arrested by the Inspector of Police near Railway canteen, Akiveedu and sent him to the Government Hospital, Bhimavaram for examination and later he was remanded to judicial custody. P.W. 2 the victim girl was referred to Rangaraya Medical College for determination of her age and the material objects collected from her were sent to RFSL Vijayawada for analysis. After the investigation, charge-sheet was filed against the accused for the offence under Section 376 IPC.
3. The plea of accused is one of total denial.
4. During trial, the court below examined as many as 13 witnesses on behalf of the prosecution viz., P.Ws. 1 to 13 and got marked Exs. P-1 to Ex. P-19. On behalf of the defence, Exs. D-1 and D-2 were got marked.
5. P.W. 1 is the mother of the prosecutrix. P.W. 2 being the prosecutrix, is a girl aged about 9 years. P.W. 2 in her evidence stated that the accused forcibly took her away when she was playing with P.Ws. 3 and 4 at Vinayaka Temple and that the accused forcibly laid her on the floor after removing her clothes and pounced on her. She Also stated that the accused caused injuries to her private part by putting his hand forcibly into her vagina as well as penis. P.W. 1, the mother of the victim girl also stated about the incident on the same lines. She has also stated that she has taken P.W. 2 to a private doctor initially and thereafter to the Police Station for lodging the report. The police sent her daughter (P.W. 2) to Government Hospital for treatment. P.Ws. 3 and 4 who were playing with the victim at the time of the incident also deposed that the accused forcibly took away P.W. 2 when they were playing and removed her clothes and laid her on the floor by force and pounced on her.
6. P.W. 5 Marthina Subbamma deposed that P.Ws. 3 and 4 on seeing the incident came running to her and told her that the accused was putting his fingers into the vagina of P.W. 2 and later he was putting his penis into the vagina of P.W. 2. On hearing the same, she along with one Durgamma whose house is also situated by the house of P.W. 1 rushed to the temple where they found the accused lying over P.W. 2 and on seeing them, the accused ran away. She also deposed about removing of the petitioner to the private hospital initially and thereafter to the police station.
7. P.W. 6 is the practicing R.M.P Doctor. He deposed that he examined the prosecutrix on 16-8-1997 at about 8.00 p.m. and gave first aid to her. P.W. 7 is the Village Administrative Officer. He spoke about the drafting of observation report, Ex. P-2 on 17-8-1997 at about 8.00 a.m. He also stated that the police seized the bloodstained clothes of P.W. 2 and controlled earth under cover of Ex. P-2 and that he signed Ex. P-2 as scribe.
8. P.W. 8 is working as Civil Assistant Surgeon in Government Hospital, Bhimavaram. She speaks about the examination of the prosecutrix and finding the girl with injuries. P.W. 9 is Dr. K. Indu Sekhar. He was working as Deputy Civil Surgeon, Headquarters Hospital, Bhimavaram. He speaks about examining the accused on 17-8-1991. He opined that the accused is capable of performing sexual intercourse. He issued Ex. P-6.
9. P.W. 10 is one B. Jnaneswara Rao. He was working as the II Additional Judicial First Class Magistrate, Bhimavaram. He spoke about the recording of statements of P.Ws. 1 to 5 and another under Section 164 Cr.P.C.
10. P.W. 11 is the Assistant Sub-Inspector of Police, Akiveedu Police Station. He speaks about the registering of the FIR in the beginning under Section 376 read with 511 IPC and subsequently altering the same into one of 376 IPC. P.W. 12 is the Inspector of Police, Bhimavaram. He deposed that he conducted the investigation and laid the charge-sheet. P.W. 13 is the Professor of Forensic Medicine, Rangaraya Medical College, Kakinada to whom P.W. 2 was sent for determining her age. After examining P.W. 2 he issued Ex. P-19.
11. After going through the entire evidence, both oral and documentary, the learned Assistant Judge, Bhimavaram held that the prosecution was able to prove the guilt of the accused and accordingly for the charge under 376 IPC sentenced the accused to suffer R.I. for ten years and to pay a fine of Rs. 100/- in default to suffer simple imprisonment for one month. Aggrieved by the same, the present criminal appeal has been preferred by the accused through Jail. Sri Gangula Ashok Kumar Reddy has been appointed as his legal aid Counsel to defend the accused before this Court.
12. The point that arises for consideration in this appeal is whether the prosecution has proved the guilt of the accused beyond all reasonable doubt for a charge under Section 376 IPC.
13. It is the case of the prosecution and also the version of P.Ws. 1 to 4 that the incident happened on a rainy season on 16-8-1997 at about 7.00 p.m. at Vinayaka Temple when P.Ws. 2 to 4 were playing. P.W. 2 is the prosecutrix. P.Ws. 3 and 4 are her playmates. It is stated that P.W.2 is aged about 9 years. Therefore, it is for the prosecution to prove that aspect. It can be seen from the evidence of the prosecutrix that in the description portion of her evidence, she was showed as aged about 8 years. During evidence, it is recorded as 9 years. It is not known as to how the court can record the age of the victim girl as 8 years when the witness herself is saying that she is aged about 9 years. Obviously, the Court is not bestowing its proper attention while recording the deposition. It is not mentioned anywhere in the record as to whether the proceedings have been conducted in camera or in the open Court. The seal and stamp put to the depositions clearly indicate that it was conducted in the open Court. If that is so, it shall be deprecated since it is against the specific directions given by the High Court as well as the provisions of Code of Criminal Procedure.
14. P.W. 13 is one T. Rama Rao. He has examined P.W. 2 on 27-8-1997 at about 9.00 a.m. He deposed that he conducted general, physical, dental and radiological examination of P.W. 2 and issued Ex. P-10 opining that the victim girl was aged about 8 years. Unfortunately, though he is giving expert opinion, he has not mentioned the reasons or basis on which he is relying to decide the age of P.W. 2 as 8 years. The X-ray is not filed into the Court and the X-ray report is also not available. He has also not given the number of teeth found when he conducted dental examination of P.W. 2 Further, the physical features he observed are not forthcoming. It can safely be taken that expert is not supposed to give such evidence before the Court and ask the Court to believe his version. I am of the considered view that the prosecution has not properly elicited the necessary particulars from this witness. When an expert gives evidence, it is his duty to mention the reasons for giving such an opinion and the court is entitled to peruse the same to accept the said evidence. The non-production of X-ray reports and not mentioning the details of the teeth found during dental examination and radiological examination, does not carry us anywhere. On mere physical examination, the age of a person cannot be determined. In the circumstances, his evidence has become totally unhelpful to the Court to arrive at the age of P.W. 2 and the same cannot be accepted. I hope and trust that necessary instructions will be given by the Director of Prosecutions to all the prosecutors to elicit necessary information whenever the Doctors do not speak to the same and also insist for producing the X-rays taken so that the Court can peruse and judge the correctness of the evidence of the Doctor. Hence, the evidence of P.W. 13 is not helpful to determine the age of the prosecutrix.
15. If the evidence of P.W. 13 is discarded on this aspect, there remains only the evidence of P.Ws. 1 and 2 for determining the age of the victim.
16. P.W. 1 the mother of the victim girl who has given out the age of P.W. 2 as 7 years. According to her, she has four sons and four daughters. The mother is the best person to tell about the age of her daughter. In that view of the matter, the evidence of P.W. 1 is entitled to be given great weight. Moreover, she is an illiterate and rustic witness. There is no need to disbelieve her evidence. The version of P.W. 1 is corroborated by the evidence of victim girl. In all probability, the prosecutrix might have been aged less than ten years.
17. It is next to be seen as to whether the incident of rape has actually occurred.
18. It is contended by the State Brief Counsel for the accused that it is not mentioned in Ex. P-1 report that the accused committed rape over P.W. 2. It is only mentioned that the accused caused injury with hand to the private part of P.W. 2. It is also further canvassed by the State Brief Counsel for the accused that at the most, the offence would come under Section 324 IPC and not an offence punishable under Section 376 IPC. It is further contended that P.Ws. 2 to 4 are child witnesses and they can be tutored very easily and therefore their evidence cannot be believed. It is also contended that the act of putting fingers or hand into the private part of P.W. 2 and also putting his penis into her vagina appears to be unnatural and cannot be believed.
19. The learned Public Prosecutor contends that P.W. 2 categorically stated in her evidence about the accused putting his hand as well as penis into her vagina and hence her version has to be believed.
20. Adverting to the said contentions, it is stated in Ex P.1 which was given to the police at the earliest point of time that the accused forcibly took away P.W. 2 when she was playing with P.Ws. 3 and 4 at about 7.00 p.m. at the Vinayaka Temple, laid her on the floor and pounced on her and put his fingers into her private part. It is also in her evidence that before lying her on the floor, the accused removed her clothes. The act of committing rape has not been mentioned at the earliest point of time in Ex. P-1. Nobody witnessed the act of the rape. What all they deposed is that they saw the accused lying over P.W. 2. This version of rape was not spoken to even when the statement under Section 164 Cr. P.C. of P.W. 2 has been recorded by P.W. 11-B, Jnaneshwar Rao, the then judicial First Class Magistrate of Bhimavaram. According to him, the Station House Officer, Akkiveedu filed a requisition before him and thereupon he recorded the 164 statements of P.Ws. 1 to 4 and another. P.W. 2 spoke about the accused putting his fingers into her vagina in the first instance and later putting his penis. It is contended that the said version appears to be unnatural. In order to show the unnaturality, the circumstances relied on by the State Brief Counsel for the accused is non-finding of injuries on the penis of the accused when he was examined by P.W. 9 on 17-8-1997 at about 8.00 p.m. What all P.W. 9 stated is that there is nothing to suggest that the accused is not capable of performing sexual intercourse. Ex. P-6 is the certificate issued by him. He also deposed that he did not find any blood on the organ of the accused and there were no external injuries on the body of the accused. He also stated that he did not find any sperm on the organ of the accused. The non-finding of injury on the penis of the accused may rule out the possibility of having sexual intercourse and it may show that the prosecution version cannot be taken as totally correct unless there is corroboration.
21. P.Ws. 3 and 4 are the playmates of P.W. 2. They were with the victim at the time of the incident. There is no motive for these child witnesses to speak falsehood. They corroborate with the testimony of P.W. 2 about forcibly taking away P.W. 2 by the accused when they were playing at Vinayaka Temple at 7.00 p.m. It is they who went and reported the matter to P.W. 5 and thereafter to P.W. 1. The evidence of P.Ws. 3 and 4 is natural. There is no artificiality in their evidence. The evidence of those child witnesses corroborates with the version of P.W. 1. Their evidence also corroborates the fact of the accused forcibly taking away P.W. 2. There is cogency and consistency in their evidence regarding the accused forcibly taking away P.W. 2. Hence, I disagree with the contention of State Brief Counsel for the accused that the evidence of P.Ws. 3 and 4 is not reliable and trustworthy.
22. There is also corroboration forthcoming from the evidence of P.W. 5 regarding the incident. P.W. 1 went to the scene of offence on learning from P.Ws. 3 and 4 about the incident and she found her daughter lying on the floor. P.W. 5 also saw the accused lying over the body of P.W. 2 and on seeing them he ran away. The evidence given by P.Ws. 1 to 4 is natural. There is no artificiality in their evidence. It is also contended that they are deposing due to enmity. The nature of enmity is not placed before this Court. The accused is a rickshaw-puller. They are illiterate and rustic witnesses and moreover P.Ws. 2 to 4 are only child witnesses. There is no motive for them to speak falsehood against a rickshaw-puller. There is no unnaturality in their evidence. I do not think that people will offer their children to wreck vengeance against any person. Except saying that the case is foisted and there is enmity, the nature of enmity is not stated. In the absence of the same, I am not inclined to believe the version put forth by the defence counsel, which is suggested just for the sake of suggestion.
23. It is also the prosecution version that immediately P.W. 2 was removed to R.M.O. Doctor who gave first aid to her and directed P.W. 1 to take P.W. 2 to a Government Hospital. Thereafter P.W. 2 was taken to the police station and from there to the Government Hospital. P.W. 8 the Civil Assistant Surgeon working at Government Hospital, Bhimavaram examined the victim and found the following injuries on her body;
    "General Condition : painful gent, contious, P.R. 90/Nil. B.P. 100/70 P.A. foft. O/Es - there is a tear of 1 cm. x 1/8 cm. x 1/8 cm. size present on the four chattel bleeding present. Hymen is not intact. There is a tediale hymenal tear on the 3 O'clock position size is 1/4 cm. x 1/8 cm. There is another hymenal tear at 8 O'clock position bleeding present size is 1/2 cm. x 1/4 cm. There is a lacerated injury of 1 cm. x 1/4 cm. x 1/8 cm. size present on the lacerated wall of the vagina. Bleeding present. Carvic is conjected."
24. The evidence of P.W. 2 is corroborated with the medical evidence. The Doctor found three injuries. There is no motive for P.W. 6 and P.W. 8 to speak falsehood. They have noticed the injury caused to the victim. It is contended by the State Brief Counsel for the accused that injury might have been caused due to fall on a sharp edged material while the children were playing. The prosecution has placed before the court the evidence of the children who were playing with the victim at the time of the incident. None of the witnesses spoke to the falling of P.W. 2 as a result of which she sustained the injuries. They have categorically stated that the accused took away P.W. 2 forcibly while they were playing. The positive and reliable evidence placed by the prosecution indicates and rules out the possibility of P.W. 2 sustaining the injury due to fall on a sharp edged material. Hence, I disagree with the said contention.
25. Yet another argument that has been canvassed by the State Brief Counsel for the accused is that no injury is found on the back of the prosecutrix when she was said to have been forcibly laid on floor and hence the incident might not have taken place as spoken to by the prosecution. The absence of injury does not in any way disprove the evidence of P.Ws. 2, 3 and 4. The evidence of P.Ws. 2, 3 and 4 is reliable and trustworthy which is supported by res gestae evidence of P.W. 1, the mother to whom the victim girl narrated the incident and the same is also supported by medical evidence. Unless the injuries are found, the possibility of sexual act might not have been completed. It is in the evidence of prosecutrix if in the first instance fingers have been kept in her vagina and on seeing the same, P.Ws. 3 and 4 ran outside and informed the same to P.W. 5 who immediately came to the spot and saw the accused lying over her. The earliest version given out is that he has put his hands and caused the damage. The non-finding of blood on the private part of the accused makes me disbelieve about the sexual contact by the accused. Insofar as the accused putting his hand into the vagina of P.W. 2 is concerned, the evidence of the prosecution witnesses corroborates and the same has been probablised due to existence of injuries and the said injuries can be best explained only by the prosecutrix. At the earliest point of time the prosecutrix stated that the accused caused damage to her private part by putting his fingers or hand into her vagina. It is contended by the State Brief Counsel for the accused that P.W. 2 has not stated that the accused put his fingers into her vagina. She only stated that the accused caused injury to her vagina by putting his hand inside her private part. Court cannot expect a girl aged 8 years to narrate such an incident in detail. It is not necessary to mention in detail every particular act in the FIR as it is not be all and end in all.
26. On a close scrutiny of the evidence of P.Ws. 1 to 5 and the medial evidence I am of the considered view that this is not a case of rape. If really the act of rape has occurred, the same could have been spoken to at the earliest point of time. There is ample evidence to show that the accused caused damage to the private part of P.W. 2 with hand by lying over her after removing her clothes. In that view of the matter, I find that the charge of rape is not proved as it is not mentioned at the earliest point of time in the FIR, Ex. P-1 and also during the 164 statements recorded by P.W. 15.
27. It is next to be seen as to what is the offence that has been made out in this case.
28. The evidence of P.W. 2 clearly discloses that she was taken forcibly and her clothes were removed and that the accused inserted his fingers into her vagina forcibly and caused damage. The said act certainly falls under the offence under Section 354 IPC. Moreover, the injuries were said to have been caused to the private part of P.W. 2. It is contended that offence at the best falls under Section 324 and not under Section 354 or under Section 376 IPC. I respectfully disagree with the said contention. For, it as to be seen whether causing damage to the private part said to endanger the life of a person. Grievous hurt has been defined under Section 320 IPC. It reads as follows :
    "320. Grievous Hurt - The following kinds of hurt only are designated as "grievous" :
    Firstly - Emasculation
    Secondly - permanent privation of the sight of either eye.
    Thirdly - permanent privation of the hearing of either ear.
    Fourthly - privation of any member or joint.
    Fifthly - destruction or permanent impairing of the powers of any member of joint.
    Sixthly - permanent disfiguration of the head or face
    Seventhly - Fracture or dislocation of a bone or tooth
    Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain or unable to follow his ordinary pursuits."
29. It is clear from Section 320(8) that any hurt which endangers the life cannot be said to be a simple injury. In the instant case, the injury was caused with a hand to the private part of a young child who has not attained puberty. Further, the injuries were caused to the hymens as well as to the vaginal portion it certainly endangers the life and falls under Section 320(8). The injuries sustained by the victim cannot be styled as simple hurt. It must be taken as grievous hurt. Obviously, no charges are framed either under Section 354 or under Section 324 IPC. The accused is tried for a major offence. The lower Court has extracted a wrong provision while mentioning the accused as guilty. Further, while convicting the accused, the Sessions judge ought to have mentioned Section 376(2F). Instead of that, it is found in the judgment as Section 376(1F). There is no such clause in Section 376. It shows that the lower Court is not bestowing any proper attention to the material on record and the provisions before deciding a grave offence which is said to have taken place against an innocent illiterate young girl. Whenever an offence is committed against the girl aged below 12 years, the only provision applicable is 376(2F) which is punishable with imprisonment for a term up to life. I have already stated that the offence falls under Section 354 IPC. The offence that can be culled out from the evidence is only 354 which is punishable for a term which shall not be less than 5 years and may extend to 7 years. A reduced punishment also can be given under Section 354 as applicable to Andhra Pradesh i.e., a sentence of less than two years. Obviously, this is a minor offence that has been made out viz, an offence punishable under Sections 354 and 325 IPC. The offence under Section 324 is punishable only up to 7 years.
30. On a reappraisal of the entire evidence I am of the considered view that the version of P.Ws. 2, 3 and 4 is believable to the extent of forcibly taking away P.W. 2 by the accused and removing her clothes, lying her on the floor and pouncing on her and causing damage or hurt with the hand to her vagina. The said evidence is also corroborated by the evidence of P.W.1 as well as the medical evidence. The acts which are proved beyond reasonable doubt constitute an offence under Section 354 as well as 324 IPC. Hence, I find the appellant guilty for the offence punishable under Sections 354 and 325 IPC.
31. It is stated that the accused is in custody since 17-8-1997 when he was arrested. He is said to have undergone almost six years of sentence. In the circumstances, I convict and sentence the petitioner to undergo Rigorous Imprisonment for a period of 5 years 10 months for the offence under Section 354 IPC and pay a fine of Rs. 100/- and in default to suffer Simple Imprisonment for one week. He is also found guilty for the offence under Section 325 IPC and sentenced to suffer Rigorous Imprisonment for a period of two years and pay a fine of Rs. 100/- in default to undergo Simple Imprisonment for a week. Both the sentences shall run concurrently. He is said to have been in custody from 17-8-1997 and is undergoing the imprisonment for the alleged offence. The period of custody is ordered to be given set off. As the period of custody exceeds the sentence already awarded, the appellant shall be released forthwith.
32. To sum up, I find the accused guilty for the offence under Sections 354 and 325 IPC. He is convicted and sentenced to undergo RI for 5 years 10 months for the offence punishable under Section 354 IPC and pay a fine of Rs. 100/- in default to suffer SI for one week. He is also convicted under Section 325 IPC and sentenced to undergo RI for a period of two years and pay a fine of Rs. 100/- in default to suffer SI for one week. Both the sentences are ordered to run concurrently. The period of custody from 17-8-1997 is ordered to be given set off as both the sentences are ordered to run concurrently. He shall be released forthwith as the sentence undergone is sufficient.
33. Accordingly, the criminal appeal is allowed and the sentences are modified from Section 376 to Sections 354 and 325 accordingly.

Appeal allowed.
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