Rape Victim NOT examined being not a competent Witness, It is not hard and fast rule that examination of the prosecutrix is essential requirement of law

PUNJAB AND HARYANA HIGH COURT (D.B.)

Before :- Hemant Gupta and A.N. Jindal, JJ.

Maghar Singh @ Manga Versus State of Punjab, D/d: 27.2.2012

For the Appellant :- Ms. Anju Sharma Kaushik, Advocate.
For the Respondents :- Mr. Pavit Singh Mattewal, Addl. A.G. Punjab.

IMPORTANT Rape on prosecutrix aged 8/10 year - Prosecutrix not being competent witness and thus not examined - Conviction upheld - It is not hard and fast rule that examination of the prosecutrix is essential requirement of law and condition precedent for recording conviction against the accused.

A. Indian Penal Code, Section 376 - Evidence Act, Section 118 - Rape on a minor girl aged 8/10 years - Prosecutrix not examined as Court found her as incompetent witness - Accused convicted on basis of other evidence on record - Further held :-
(1) It is not hard and fast rule that examination of the prosecutrix is essential requirement of law and condition precedent for recording conviction against the accused.
[Paras 25 and 26]
B. Indian Penal Code, Section 376(2) - Reduction in sentence - Rape on a minor girl aged 8/10 years - Accused convicted and sentenced to life imprisonment - Sentence reduced to 12 years.
[Para 3]
C. Indian Penal Code, Section 376 - Criminal Procedure Code, Sections 53 - Medico legal examination of accused - Consent of accused is not required - Accused arrested in a rape case and his Medico legal examination conducted - Contention that consent of accused was not taken, therefore medico legal examination was of no consequence - Contention not tenable - Held;-
(1) Sections 53 and 53-A of Cr.P.C. permit the Investigation Officer to arrest the accused and if he finds that some evidence could be made available from the body of the accused, then he could get him medico-legally examined.
[Paras 21 and 22]
D. Evidence Act, Section 118 - Indian Penal Code, Section 376 - Child witness - Rape on a simpleton girl aged 8/10 years - The prosecutrix appeared for examination - She was not able to make rational answers to the questions put to her and she being the child was declared as incompetent witness - She was unable to understand the sanctity of oath - Further held :-
(1) It is not hard and fast rule that examination of the prosecutrix is essential requirement of law and condition precedent for recording conviction against the accused.
[Para 25]

Cases Referred :

State of Punjab v. Gurmit Singh, 1996(1) R.C.R.(Criminal) 533 : (1996)2 SCC 384.
Suresh Chand v. State of Haryana, 1976 Cr. L.J. 452.
State of Karnataka v. Mahabaleshwar Gourya Naik, 1992(2) R.C.R (Criminal) 159:1992 Cr.L.R. 586 (SC)
Manga v. State of Haryana, AIR 1979 SC 1194.
Arjun Singh v. State of Bihar, 2001(2) FJCC 268.
Thana Ram v. State of Rajasthan (Jodhpur Bench), 1996 Cri.L.J. 502.
Lalan Jhaku v. State of Bihar (Now Jharkhand), 2010(5) RCR (Criminal) 111 (DB).

JUDGMENT

A.N. Jindal, J. - This is yet another case where a helpless, minor and simpleton girl was picked up; taken away and raped by the accused-appellant (herein referred as, 'the accused') to satisfy his lust, for which he was indicted for the offences under Sections 363/366/376 IPC and vide judgment dated 17/18.5.2004, he was convicted and sentenced as under :-

U/s 363 IPC	:	Rigorous imprisonment for five years and to pay fine of Rs.2,000/-.
U/s 366 IPC	:	Rigorous imprisonment for ten years and to pay fine of Rs.5,000/-.
U/s 376(2) IPC	:	Rigorous imprisonment for life and to pay fine of Rs.10,000/-.

2. Necessary facts as essential for disposal of the appeal are that Paramjit Singh- complainant (herein referred as, `the complainant'), a rickshaw puller in his statement Ex.PH recorded on 13.6.2002 at about 12.10 PM disclosed that on 12.6.2002, his minor daughter (name not disclosed, herein referred as, `the prosecutrix') had gone to the place of Baba Chinta, but she did not return till morning. Worried about her missing, on 13.6.2002, in the morning, he in the company of Mela Singh Sarpanch and Nirmal Ram continued searching her. During search, they came across Avtar Singh, who told that they had seen the accused offering "kulfi" (ice candy) to the prosecutrix, then sniffering that she might not have been taken away by him, they visited Rurkan Kalan (the place of the accused) but he was found missing. Thereafter, when the complainant along with Nirmal Ram and Mela Singh Sarpanch went towards the side of village Rasla and reached near the sugarcane field in possession of Gurcharan Singh but owned by Surjit Singh, they heard the shrieks of a girl and when they entered the field, they saw that the prosecutrix was lying, in a naked condition on the thighs of the accused and the latter was gagging her mouth to make her silent. On seeing them, the accused tried to flee but he was caught at the spot. Much blood had fallen on the grass grown at the spot and on enquiry, the prosecutrix told that the accused had committed rape upon her. Much blood had oozed out from her vagina. The complainant made her to wear baniyan and underwear and took her to the house and thereafter she was taken to the Civil Hospital, Bara Pind for her medicolegal examination.
3. On the basis of the aforesaid statement Ex.PH, FIR Ex.PH/2 was registered and investigation commenced. Inspector Jasbir Singh, Investigating Officer arrested the accused; visited the place of occurrence; collected his blood stained shirt which was taken into possession vide memo Ex.PC; took into possession the blood stained underwear and white coloured undershirt of the prosecutrix; recorded the statements of witnesses; prepared the site plan and got the accused medico-legally examined. After receipt of the report of the Chemical Examiner Ex.PW8/C and that of Forensic Science Laboratory Ex.PW8/D, the accused was challaned.
The accused was charged under Sections 363/366/376 IPC, to which he pleaded not guilty and claimed trial.
4. In order to bring home charge, the prosecution examined Dr. Sukhdev Dumeli, who conducted the medicolegal examination of the accused on 13.6.2002 and 14.6.2002. On 13.6.2002, at about 2.00 PM he detected injuries on the genital, fresh abrasion on prepuce present and superficial abrasion on lower abdomen. He also observed that the shirt was torn near neck and stains of blood were present on the clothes. He opined that there was nothing to suggest that the accused was unfit to commit sexual intercourse. He proved his medicolegal report Ex.PB. On 14.6.2002, he proved the duration of the injuries. He again medico-legally examined the accused and found the superficial abrasions on his abdomen and according to him duration of injuries synchronized with time of occurrence.
5. Dr. Tejpreet Kaur (PW2) had medico-legally examined the prosecutrix on 13.6.2002 at 6.55 PM and observed as under :-

".....she was of average built and nutrition. Secondary sex characters were not developed. Breast not developed. Axillary and pubic hair absent. Pulse was 100 per minute. Blood pressure 110/80 mm. Her teeth were 24 in number. Her mother had changed her clothes and washed her private parts. There was no mark of any physical injury on the body except on private parts as described below :-

No history of menarche. Advised x-ray for radiological and dental age. On P/V examination, two vaginal swabs taken, two slides made and sent to chemical examiner Patiala for presence of semen. Hymen torn. Posterior vaginal wall tear, perennial muscles torn and second degree tear extending up to the level of anus. Anal muscosa and sphincter not involved. Vagina admits one finger easily, fresh bleeding present and the tear bleeds on touch. Evidence of sexual intercourse present. However report of chemical examiner awaited. Cervix just palpable, uterus infantile."

6. This witness also opined that on 19.6.2002, on receipt of the report of the dentist and that of the radiologist, she had opined that the age of the prosecutrix was between 8 to 10 years. She proved her report Ex.PD in this regard. On 4.9.2002, on receipt of the report of the Chemical Examiner, she had opined vide report Ex.PE that the prosecutrix had been subjected to sexual assault and rape. On 30.9.2002, she again gave her opinion vide report Ex.PF.
7. Dr. Mukesh Gupta (PW3), Radiologist also proved the diagrams Ex.P1 to Ex.P5 regarding the x-ray conducted on the prosecutrix and according to him also, she was of the age about 8 to 10 years.
8. Paramjit Singh (PW4), father of the prosecutrix, has re-iterated the prosecution version while indicting the accused.
9. Mela Singh Ex-Sarpanch (PW5) of the village has also corroborated the testimony of Paramjit Singh (PW4) in all minute details.
10. The prosecutrix appeared in the witness box as PW-6. However, the trial court after putting her certain questions with regard to test her competency opined that she was not a competent witness. He also recorded that at the time of questioning her, she kept mum and did not answer any question.
11. HC Jaswinder Singh (PW7) had accompanied the Inspector Jasbir Singh and proved the part of investigation.
12. Inspector Jasbir Singh (PW8) has testified that the complainant Paramjit Singh had met him at 11.00 AM when he recorded his statement Ex.PH and after making endorsement Ex.PH/1, sent the same to the police station on the basis of which FIR Ex.PH/2 was recorded. He also recorded the statement of Mela Singh and Avtar Singh alias Tari. He went to the Civil Hospital, got the prosecutrix medico-legally examined, reached the place of occurrence, prepared the rough site plan Ex.PW8/A. He also took the blue coloured underwear and white coloured undershirt vide memo Ex.PW8/B. That apart, while proving the various other documents, he proved the entire investigation.
13. Avtar Singh @ Tari (PW9) has also corroborated the testimony of Paramjit Singh (PW4).
14. When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. He further added that he was taken away from the bus stand Goraya and implicated in the false case.
15. In defence, he examined Resham Singh (DW1), Record Clerk Sessions Court, Jalandhar in order to prove that he was arrested in case FIR No. 63 dated 17.6.2002 registered under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, Police Station Goraya.
The trial resulted into conviction.
Arguments heard. Record perused.
16. The learned counsel for the appellant, in order to assail the prosecution version, has urged that since no consent of the accused was taken at the time of his medicolegal examination, therefore, the same is of no consequence. HC Jaswinder Singh (PW7) has stated that statement of the prosecutrix was recorded but her statement was not proved on the record. It was further observed that the prosecutrix (PW6) herself did not identify the accused and did not depose against him at all; the owner of the field was not examined; no site plan of the place of "Baba Chinta" has been proved on the record. It was also conended that since the accused was also arrested in another case, of which, the Investigating Officer was the same, therefore, the inference will be drawn that ASI Jasbir Singh was directly inimical against him and impleaded him in this false case.
17. To the contrary, learned State counsel has countered the arguments while urging that mere non examination of the prosecutrix in the case particularly when she is minor of the age of 8 to 10 years hardly effects the prosecution case when there is another eye witness account as well as the medical evidence in order to prove the offence against the accused. The accused in this case was last seen in the company of the prosecutrix and the prosecutrix was recovered from his possession. There is overwhelming medical evidence in order to indicate that the prosecutrix was raped. Not only this, the accused, when was got medico-legally examined, was also found to have suffered certain injuries on his private parts which also not only prove the factum of rape but also prove the resistance made by the prosecutrix. There is no delay in lodging the FIR. The accused got undue benefit of helplessness of simpleton nature of prosecutrix and her minority and exploited her. As such, he does not deserve any benefit of doubt.
18. As regards the kidnapping, it is duly established from the evidence of Avtar Singh alias Tari (PW9) that he had seen the prosecutrix in the company of the accused one day prior to the occurrence when the latter was offering her ice candy. He had no axe to grind against the accused for implicating him falsely in the case. It has also come in the statement of Paramjit Singh (PW4) and Mela Singh Ex-Sarpanch (PW5) that when they reached the house of the accused on seeking information from Avtar Singh alias Tari, then he was found missing from his house. The prosecutrix was also recovered from the possession of the accused on the next day and the medical evidence affirms the factum of rape upon her. Thus, the intention of the accused that he had picked up the prosecutrix from the lawful guardianship of her parents with an intention to commit illicit sexual intercourse upon her, stands duly established.
19. As regards the age of the prosecutrix, it may be observed that there is an overwhelming evidence on the record that the prosecutrix was aged between 8 to 10 years. First of all, Dr. Tejpreet Kaur, Medical Officer, Kala Bakra (PW2), who had medico-legally examined the prosecutrix on 13.6.2002 opined vide her report Ex.PD that as per report of the Dentist and that of the report of the Radiologist, she was between 8 to 10 years. During cross-examination, she has reiterated her opinion. Dr. Mukesh Gupta, Radiologist (PW3) has also affirmed this fact while proving his report Ex. PG/1, wherein he has stated that as per his observations and the report of the Dentist, the prosecutrix was of the age between 9 to 9- = years. Paramjit Singh (PW4), father of the prosecutrix, has also given the age of the prosecutrix as 8 years. No evidence has been led in rebuttal by the accused in order to establish that the prosecutrix was more than 10 years of the age. Besides the categorical opinion made by the aforesaid doctors, Dr. Tejpreet Kaur (PW2) when gave the data of her body parts described that she was average built and nourished; secondary sex characters not developed; breast not developed; axillary and pubic hair absent; vagina admitted only one finger and also indicated that she was still undeveloped and immature girl not more than 10 years of age.
20. As regards the factum of rape, the prosecution has led sufficient evidence in order to establish that she was raped by the accused. We not only have the evidence of Dr. Tejpreet Kaur (PW2), but also the evidence of Dr. Sukhdev Dumeli (PW1) who had found injuries on the genital and fresh abrasion on 'prepuce' and superficial abrasions on the lower abdomen of the accused, his shirt was torn, stains of blood were also present on his clothes. We have also the report of the Chemical Examiner Ex.PW8/C who found that semen was found on exhibits I and II i.e. Vaginal swab and vaginal slides. That apart, Avtar Singh alias Tari (PW9) has stated that he had seen the prosecutrix in the company of the accused, whereas, Paramjit Singh (PW4) and Mela Singh (PW5) have stated that when they were passing by the side of the field in possession of Gurcharan Singh, owned by Surjit Singh, then they heard the cries of the girl and when they entered into the fields, they saw the accused in the company of the prosecutrix, who was lying naked on the thighs of the accused. Though, two witnesses have made certain improvements while stating that the accused was seen committing intercourse at that time, yet, even while ignoring this portion of their statements, their evidence cannot be said to be a weak evidence to prove the factum of rape as both Dr. Sukhdev Dumeli (PW1) and Dr. Tejpreet Kaur (PW2), who had examined the accused and the prosecutrix respectively, had opined that there was evidence of rape upon the prosecutrix and there were injuries on the private parts of the accused and even on the lower part of his abdomen indicating resistance. The accused has failed to explain as to how he received the injuries on his body.
21. As regards the argument that consent of the accused was required to be taken at the time of his medical examination, the same does not prevail with us as Sections 53 & 53-A of Cr.P.C. permit the Investigating Officer to arrest the accused and if he finds that some evidence could be made available from the body of the accused, then he could get him medico-legally examined. Sections 53 & 53-A of Cr. P.C. read as under :-

"53. Examination of accused by medical practitioner at the request of police officer - (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence and to use such force as is reasonably necessary for that purpose.

(2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner.

`Explanation. - In this section and in sections 53A and 54, -

(a) "examination"shall include the examination of blood, blood stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case;

(b) "registered medical practitioner" means a medical practitioner who possesses any medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 (102 of 1956) and whose name has been entered in a State Medical Register.'

53A. Examination of person accused of rape by medical practitioner. - (1) When a person is arrested on a charge of committing an offence of rape or an attempt to commit rape and there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of such offence, it shall be lawful for a registered medical practitioner employed in a hospital run by the Government or by a local authority and in the absence of such a practitioner within the radius of sixteen kilometers from the place where the offence has been committed, by any other registered medical practitioner, acting at the request of a police officer not below the rank of a sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the arrested person and to use such force as is reasonably necessary for that purpose.

(2) The registered medical practitioner conducting such examination shall, without delay, examine such person and prepare a report of his examination giving the following particulars, namely :-

(i) the name and address of the accused and of the person by whom he was brought,

(ii) the age of the accused,

(iii) marks of injury, if any, on the person of the accused,

(iv) the description of material taken from the person of the accused for DNA profiling, and

(v) other material particulars in reasonable detail.

(3) The report shall state precisely the reasons for each conclusion arrived at.

(4) The exact time of commencement and completion of the examination shall also be noted in the report.

(5) The registered medical practitioner shall, without delay, forward the report to the investigating officer, who shall forward it to the Magistrate referred to in section 173 as part of the documents referred to in clause (a) of sub-section (5) of that section.

22. As such from the bare reading of the aforesaid sections, it has been established that a duty has been imposed upon the Investigating Officer as well as on the court to get the accused medically examined at the time of his arrest when some evidence appears to have been found from the body of the accused which may prove the offence for which he is suspected to have committed.
23. As regards the argument that Gurcharan Singh and Surjit Singh were not examined, it is not the case of any recovery of any incriminating article and also that if they were present at the time of occurrence but in this case, the accused had stealthily taken away the prosecutrix to the field for which the accused could explain if he was there with the permission of the occupier of the land or against his wishes and their non examination hardly effects the prosecution case.
As regards the delay in lodging the FIR, it may be observed that though the girl was found missing since 7.00 PM on 12.6.2002 yet she was recovered on 13.6.2002 at 10.00 AM. First anxiety of the parents is to find out as to what happened with their kith and kin and then after looking to the circumstances, if any offence had been committed, then they had to take the matter to the police station. So happened in the present case. The complainant first made efforts to search her and after she was recovered from the possession of the accused, then the case was got registered without any delay, therefore, this case cannot be said to be suffering from any delay in lodging the FIR.
24. As regards the argument that the prosecutrix did not support the prosecution case, it needs to be mentioned that the accused had targeted the minor simpleton girl and while making misuse of her immaturity and lack of understanding, took her away after offering her the ice candy, kept her throughout the night and then shifted her to the field where he committed rape upon her. It is not a case of girl over 16 years of age where the question of consent normally remains debatable. But in this case the consent of the prosecutrix is immaterial and as such when there is sufficient medical evidence with regard to commission of the crime and the girl has been recovered from the possession of the accused, then the accused has to explain as to who else had committed the offence upon her.
25. As a matter of fact, it is not a case where the prosecutrix did not support the prosecution case, rather from the order dated 11.9.2003, the court observed that she was not able to make rational answers to the questions put to her and she being the child was declared as incompetent witness. She was unable to understand the sanctity of oath. In any case, it is not hard and fast rule that examination of the prosecutrix is essential requirement of law and condition precedent for recording conviction against the accused.
26. Normally, conviction could be entailed if there is evidence worth the name to prove the guilt of the accused. In case, where the prosecutrix is a married lady or mature enough, it needed certain corroboration and in case of young girl, less than 16 years of age, the testimony of the prosecutrix, if inspires confidence of the court when her evidence is evaluated, no further corroboration was required. Actually, this principle of law has been enshrined by the Apex Court for the reason that the victim of rape would not implicate a person of such heinous crime falsely by sacrificing her own repute and that of the repute of the family. The Apex Court in case State of Punjab v. Gurmit Singh and others, 1996(1) R.C.R.(Criminal) 533 : (1996)2 SCC 384, observed that sexual violence operate from being dehumanizing act, is an unlawful intrusion in the right of privacy and sanctity of the family. It is a serious blow to her supreme honour and often destroy her self-esteem, dignity and degrade and humiliate the victim and where the victim is helpless, innocent minor child, it leaves behind a traumatic experience. A rapist not only causes the physical injuries but more in deliberate leaves a scar on the most cherished possession of a woman i.e. her dignity, honour, reputation and not the less her chastity. The rape is not only a crime against the person of a woman, but it is a crime against the entire society.
27. The law is well settled that the prosecutrix is not an accomplice and as such is not under any disability to make a deposition. If her testimony inspires confidence, then she alone, without corroboration, can be relied upon. Reference, if any, can be made to the judgment delivered in case Suresh Chand v. State of Haryana, 1976 Cr. L.J. 452.
28. In order to discard the testimony of the prosecutrix, the defence should spell out a motive which could prompt some one on the side of the prosecution to persuade a witness to make a statement against the accused. There is another class of cases where the victim of rape: (i) are dead; (ii) found to be deaf and dumb or otherwise incapable of making statement; or (iii) they are too small and immature to understand the sanctity of oath; make any such statement or they are incompetent witnesses. In such situation, mere non examination of the victim of crime is hardly sufficient to prove the innocence of the accused, when there is evidence otherwise available on record for proving the criminal act of the accused. Similar observations were made in case State of Karnataka v. Mahabaleshwar Gourya Naik, 1992(2) R.C.R (Criminal) 159 : 1992 Cr.L.R. 586 (SC).
The Apex Court in case Manga v. State of Haryana, AIR 1979 SC 1194 has observed as under :-

"......... It appears, however, that Raj Bala was a deaf and dumb girl of only 13 years of age. So apart from being a child witness, she was also deaf and dumb and no useful purpose would have been served by examining her. Moreover, if there was any infirmity in the prosecution case the same has been removed by examination of P.W. 4 Mohinder Singh who was a full-fledged eye-witness to the act of rape. Once the courts below believed the evidence of P.W.4 that the appellant had forcibly performed sexual intercourse with Raj Bala there was an end of the matter. No further corroboration was required......."

29. The aforesaid dictum of law as laid down by the Apex Court in Manga's case (supra), was followed by the various High Courts in number of cases including Arjun Singh v. State of Bihar, 2001(2) FJCC 268 and Thana Ram v. State of Rajasthan (Jodhpur Bench), 1996 Cri.L.J. 502.
30. Recently, the Division Bench of Jharkhand High Court, in case Lalan Jhaku v. State of Bihar (Now Jharkhand), 2010(5) RCR (Criminal) 111 (DB) also took the similar view and observed as under :-

"....... It would be noted here that the victim has not been examined by the prosecution but non examination of the victim, in view of the testimonies of the witnesses, as discussed above, which find corroboration from the medical evidence, does not effect the prosecution adversely in any manner."

31. The present case also is based on the testimonies of the independent witnesses namely Paramjit Singh (PW4) and Mela Singh Ex-Sarpanch (PW5). No father would throw his own repute to the dust for no enmity against the accused by implicating him falsely in the case. Similarly, Mela Singh Ex- Sarpanch (PW5) had also no enmity with the accused and he withstood the test of cross-examination. No finger has been raised to make his veracity doubtful. The statements of these two witnesses stand corroborated by the medical evidence of the prosecutrix as well as that of the accused. As per the medical evidence, the private parts of the prosecutrix as well as the male organ of the accused were found having injuries. The report of the Chemical Examiner as well as that of Forensic Science Laboratory also lend support to the fact that the prosecutrix was made the victim of rape. The accused had no plausible defence to plead and prove. That apart, no enmity between the complainant and the accused has been brought to fore which may be cause for false implication.
32. As regards the quantum of sentence, keeping in view the peculiar facts and circumstances of the case, we are inclined to take some lenient view on the quantum of sentence.
33. Resultantly, the appeal is dismissed with the modification in the sentence which is reduced to 12 years under Section 376(2) IPC. However, sentence qua the remaining offences shall remain intact.

Appeal dismissed.